SOLOMON & NEISS
[2014] FCCA 855
•30 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SOLOMON & NEISS | [2014] FCCA 855 |
| Catchwords: FAMILY LAW – Parenting – mother wishing to relocate from (omitted) to Sydney with four children – father opposing the relocation – father proposing a continuation of the existing arrangement of the children living with the mother and spending time with him but with an increase in his time – where it is appropriate to order that the parents have equal shared parental responsibility for the children – where the court is satisfied that the children spending substantial and significant time with each of their parents is in their best interests and reasonably practicable – where the court is then required to consider making an order of that kind – where the court is also required to consider the mother’s proposal on its merits – no advantages and many disadvantages to the children in moving to Sydney – orders made as proposed by the father. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| AMS & AFS (1999) 199 CLR 160 Mazorski & Albright (2007) 37 FamLR 518 MRR & GR (2010) 42 Fam LR 531 |
| Applicant: | MS SOLOMON |
| Respondent: | MR NEISS |
| File Number: | NCC 870 of 2010 |
| Judgment of: | Judge Terry |
| Hearing dates: | 4, 5, 17, 18 & 19 February 2014 |
| Date of Last Submission: | 19 February 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 30 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Catherine Henry Partners |
| Counsel for the Respondent: | Mr Boyd |
| Solicitors for the Respondent: | Ian G Dun |
ORDERS
All previous orders concerning the children W born (omitted) 2001, X born (omitted) 2002, Y born (omitted) 2003 and Z born (omitted) 2009 are discharged.
The parties shall have equal shared parental responsibility for the children.
Each of the parties is restrained and an injunction is granted restraining them from relocating the residence of the children outside the township of (omitted) without the written consent of the other party or an order of the court.
The children shall live with the mother.
The children shall spend time with the father:
(a)from after school on Thursday until the commencement of school on Monday on the first and each alternate weekend of each school term;
(b)from after school on Thursday until the commencement of school on Friday commencing on the second and each alternate Thursday of each school term;
(c)for the first half of all school holidays in odd-numbered years and the second half of all school holidays in even numbered years;
(d)At such additional or alternate times as may be agreed between the parents.
That the following provisions shall apply to special days:
(a)The children shall spend time with the father from after school (or 3pm on non-school days) until 7.30pm on the birthday of each child provided that if the children are otherwise spending time with the father at those times then the father’s time with the children during these times shall be suspended and the children shall spend this time with the mother.
(b)In the event that the children are not in (omitted) or surrounds on the birthday of any of the children then the parent not then having the children in their care shall have telephone communication with the children between 6.00pm and 6.30pm on the birthday, the call to be initiated by the parent with whom the children are then spending time;
(c)The children shall spend from 9.00am until 5.00pm on Father’s Day with the father and from 9.00am until 5.00pm on Mother’s Day with the mother regardless of the ordinary operation of the above orders.
Changeovers for the children on school days shall be effected by the father arranging the collection/delivery of the children to and from their respective schools and on non-school days shall take place at McDonalds (omitted).
Each parent shall notify the other within 48 hours of any change to their residential address, telephone contact number(s) or email address.
Each parent is restrained and an injunction is granted restraining them from denigrating the other parent or the other parents’ partner or permitting any other person to do so to or in the presence or hearing of the children.
Each parent shall promptly notify the other should the children while in their care be involved in an accident or be the subject of a medical emergency requiring attendance at hospital or be diagnosed as suffering from a serious medical condition and each parent shall be at liberty to visit the children in hospital.
Each parent may obtain from any school attended by the children or any school through which Y is doing distance education copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and each parent may attend events at the school or organised by the provider of distance education which are normally attended by parents.
The parents shall do all acts and things to enrol Z at (omitted) Public School or another school in (omitted) agreed by the parties in writing to commence at the beginning of the 2015 school year and neither parent shall do any act or thing to unilaterally cease Z’s school enrolment once he has commenced school.
AND IT IS NOTED
That it is the hope of the court that the parties will take active steps to investigate the issue of whether it would be preferable for Y to be enrolled in school rather than be home-schooled and to support Y in a transition to school if attending school in the same manner as his brothers is agreed to be in Y’s best interests.
IT IS NOTED that publication of this judgment under the pseudonym Solomon & Neiss is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 870 of 2010
| MS SOLOMON |
Applicant
And
| MR NEISS |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern parenting arrangements for W, 13, X, 12, Y, 10 and Z, 5.
Since their parents separated in March 2009 the children have lived with the mother and spent regular time with the father. The orders currently in place provide for them to spend time with the father each alternate weekend from Friday to Monday and each alternate Thursday from 4.00pm to 8.00pm during school terms and for half of the school holidays.
The parents both live in (omitted) and the reason for the proceedings is that the mother wishes to relocate to Sydney with the children and the father opposes her doing so.
The mother wants to move to be closer to her family who all live in or near Sydney and she believes that Sydney offers better educational and medical options for the children. It was her case that she had done a good job bringing up the children so far and could be trusted to continue to do so in Sydney and that the children would be able to maintain a good relationship with the father even if they lived at a distance from him.
The orders sought by the mother were that the parties have equal shared parental responsibility and that the children live with her and spend time with the father on the first weekend of each month during school terms from Friday to Sunday (which would of necessity have to be in Sydney) and for half of each school holiday period.
The father wants the children to remain in (omitted). It was his case that the children did not want to move to Sydney, that they might not cope if this change was imposed on them and that they would suffer if they were unable to spend frequent time with him and enjoy the experiences only he was able to offer them. The father disputed that better educational and medical options are available for the children in Sydney.
The orders sought by the father were that the parties have equal shared parental responsibility and that the children live with the mother and spend time with him each alternate weekend from Thursday to Monday morning and each other Thursday overnight to Friday during school terms and for half of the school holidays.
The father proposed that in the event that the mother chose to relocate anyway the children live with him and spend time with the mother for half of the school holidays and for a reasonable amount of time if she visited (omitted).
The Evidence
The mother relied on her Application filed on 9 January 2013 and her affidavit filed on 20 January 2014.
The father relied on his Response filed on 27 February 2012, his affidavit filed on 22 January 2014 and the affidavit of his partner Ms B filed on 28 January 2014.
A Family Report dated 20 June 2013 was prepared by Mr N, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.
An assessment of the witnesses
The mother’s answers during cross-examination revealed that some of the evidence in her trial affidavit was inaccurate or misleading.
In her affidavit she said as follows for example:
If I were permitted to relocate to Sydney, I would look to returning to paid employment, most likely as a (occupation omitted) in the (employer omitted) given my past experience in that role.[1]
[1] Mother’s affidavit filed 20 January 2014 paragraph 25
During cross-examination the mother said that she had no current plans to return to paid employment and no wish to do so and that she would only consider doing so once Z turned 8 and she was faced with going onto Newstart Allowance.
Another example was that the mother said as follows in her affidavit:
I have discussed with my doctor my difficulty in managing the four children without support, my difficult parenting relationship with Mr Neiss, and the effect that those things have on me. I have been prescribed anti depressants by my doctor but I felt worse after taking them so I have stopped.[2]
[2] Mother’s affidavit filed 20January 2014 paragraph 21
This implies some long standing adverse impact on the mother of trying to manage her parenting role in (omitted) but during cross-examination the mother said that the consultation she referred to occurred in 2010 and that she stopped taking the anti-depressants after one week. There was no evidence that she had seen her doctor about any such issue since.
The father’s answers during cross-examination demonstrated that he was not good with dates but he made reasonable concessions when his inaccuracies were demonstrated to him and he impressed as a witness who was doing his best to be honest and reasonable.
The father made a number of frank admissions during cross-examination such as that he accepted that the mother could be trusted to provide appropriate day to day care for the children. There was no flavour in his evidence of him being hostile to the mother or opposing her relocation to Sydney out of stubbornness or a desire to control her. He impressed as being genuinely of the belief that it was in the children’s best interests to stay in (omitted).
Ms B was cross-examined at length about the history of care of her own children and the proceedings concerning them which are current in the Federal Circuit Court at Brisbane. Ms B was reasonably responsive during cross-examination and did not try to hide the tortuous history of her children’s care since she separated from their father many years ago.
Background
The father is from (omitted) and the mother from Sydney. They met and formed a relationship in about 1996 after the father moved to Sydney and they married in 1997. They ultimately bought a house at (omitted).
There are four children of the marriage: W born on (omitted) 2001, X born on (omitted) 2002, Y born on (omitted) 2003 and Z born on (omitted) 2009.
During the first few years of the relationship both parties were employed; the mother worked in various roles including as a (occupation omitted) in a (employer omitted) and the father worked as a (occupation omitted). The mother left the workforce around the time of W’s birth however and for the remainder of the marriage the mother was the primary homemaker and parent and the father was the financial provider for the family.
In 2004 or 2005 the mother and father and the three children then born moved to (omitted). The paternal grandmother and one of the father’s brother’s were living in (omitted) which was a draw for the father but the mother said that the parties also decided to move for a change of scenery and she was content with the move.
Z was born in (omitted) on (omitted) 2009.
In about March 2009 the parties separated. I accept the father’s evidence that the separation was instigated by the mother and that he found it difficult to accept. In May 2009 an incident occurred between the parties which I shall refer to again later but things settled down and on 8 October 2009 parenting orders were made by consent in the Local Court at Inverell.
When the orders were made W was 9, X 8, Y 7 and Z 9 months old and the orders provided for the children to live with the mother and for W, X and Y to spend time with the father each alternate weekend from after school Friday until before school on Monday, each Thursday from 4.30pm to 8.00pm and at such other times as were agreed.
They provided for Z to spend time with the father for half an hour each week from 4.30pm until 5.00pm on Thursday.
No order was made for the children to spend time with the father during school holidays rather the alternate weekends and the time each alternate Thursday was to continue. The orders envisaged that the mother might want to take the children to Sydney during the holidays and Order 8 provided that:
In the event that the children are spending time with the mother’s family in Sydney and are not available to spend time with the father in accordance with Order 7 the children will spend time with the father in the preceding or following week in substitution as agreed between the parties.
The order signed by a Local Court Registrar stated that the attached orders were final orders but the document attached is headed “Minute of Interim Orders” and the following Notation appears on the orders:
Notations
A The Parties enter into these orders on an interim basis only with the agreement that the parties will review the arrangements with the prospect of making further arrangements for the father to spend time with the child Z after a four month period.
As Z grew older the father began to ask for increased time with him, with a view to Z eventually spending the same time with him as the other children. The parties attended mediation to discuss the issue but no agreement was ever reached and until the current proceedings commenced in January 2013, by which time Z was about to turn 4, he was still only spending half an hour per week with the father.
On 9 January 2013 the mother filed an application seeking orders that she be permitted to relocate the children’s place of residence to Sydney and the father filed a response on 27 February 2013 opposing the relocation.
The matter came before the court for the first time on 4 March 2013 and it was agreed on that day that Z’s time with the father would gradually increase until commencing on 31 May 2013 he was spending time with the father from 4.30pm on Friday until 12 noon on Sunday. Provision was also made for the children to spend half of the Term 1, 2 & 3 school holidays with the father.
On 4 December 2013 an interim order was made which provided for Z to spend the same time with the father as his brothers and for children to spend 18 days with the father during the Christmas school holidays.
The Children
W is 13 and is in his first year at (omitted) High School. Prior to that he attended (omitted) Public School.
W has been diagnosed with autism. The mother said in her affidavit that the diagnosis occurred when he was four although during cross-examination she said that it was first mentioned as a possibility when he was 2 ½.
The father originally said in evidence that he thought the diagnosis was made when W was five but conceded during cross-examination that it might have been made earlier.
The mother said that W also had dyslexia.
The only report the mother provided about W was one by Dr C, a paediatrician in (omitted) dated 9 September 2009 in which Dr C suggested that W might fit the mould of autism.
The mother said that W had difficulties at school and that she had been advised by (omitted) High School that he qualified for the “MC [Multicategorical] Support Class” but that there was no current vacancy for him in that class.
W is certainly not achieving highly at school; his 2013 school reports stated that his achievement in all areas but creative arts was basic. However there are numerous comments in the reports about his level of commitment, his willingness to learn as well and his friendly manner and kind nature.
X has just turned 12 and is in Year 6 at (omitted) Public School.
The mother said that X had been diagnosed with “Asperger’s syndrome and/or Autistic Spectrum disorder and dyslexia.” She attached to her affidavit a letter from Dr C dated 27 April 2011 in which Dr C said that she had confirmed the diagnosis of Autism Spectrum Disorder in X.
The mother said that X also had learning difficulties. That may be so but X’s achievements in subjects other than English in his 2013 second semester report are reported as sound and his achievement in English as basic and on the face of it his learning difficulties do not appear to be as serious as W’s. X is commended throughout his 2013 school reports for his politeness and courtesy and his persistence and willingness to learn.
Y is 9 and the mother home schools him through the (omitted) College which is based in Queensland. No evidence was provided about Y’s level of achievement either generally or in respect of individual subjects.
Y commenced kindergarten at (omitted) Public School in 2009 when he was 6 years and 3 months old. The mother asserted that he “failed kindergarten” and that as a result she decided that she would not return him to school the following year but would home school him.
The father said that he was not happy about Y being home schooled and that Y had complained about not having many friends. The mother conceded that Y had little social involvement besides visiting the father and attending Sunday school and attending some occasional distance learning camps.
Although the father said in his affidavit that he did not agree with Y being home schooled he did not seek any order about Y’s schooling in his response and the issue of whether home schooling should continue for Y was not explored to any great length during the hearing.
The mother said that Y had also been diagnosed with “Asperger’s syndrome and/or Autistic Spectrum disorder and dyslexia.” The only evidence she produced in support of this was a letter from Dr C referring Y to an audiologist in which Dr C stated that such diagnoses had been confirmed by somebody else in May 2011 and that it had been suggested that Y might have an auditory processing disorder.
The mother said that W, X and Y often needed to attend specialist appointments and that she had to take them to (omitted) or (omitted) (2 hours and 3 hours respectively from (omitted)) for these appointments.
The mother’s evidence about this was in very general terms. She did not specify how many times each year (if indeed it did happen each year) she needed to take the children to these appointments. She provided only two paediatrician’s reports for the children, one from 2009 for W and one from 2011 for X and Z (although the reference should perhaps have been to Y) and the 2013 school assessment for W noted that there was no more recent report about him than 2009.
Other general evidence given by the mother proved to be misleading and during cross-examination the mother said that the last time the children had appointments in (omitted) or (omitted) was in 2012. There was no evidence to support the mother’s assertion that she was often required to take the children to specialist’s appointments in nearby regional centres.
The father said that he accepted that W was on the autism spectrum as it was “clear to see” but that he did not see it in X and Y and in his affidavit he said that he would like to obtain a second opinion. Given that the children have not seen a paediatrician for three years or more this suggestion has merit but the father did not seek any orders about it in his response.
Z is 5. He could have commenced school at the beginning of 2014 but he is not legally required to do so until he is six and the mother does not want him to start school until he legally has to. There was no evidence that she had discussed this with the father and no evidence that she had discussed with the father what appeared from her answers during cross-examination to be her wish to homeschool Z.
The father does not agree with Z being homeschooled.
The mother’s current circumstances and future plans
The mother is 41. She is engaged in home duties and receives parenting payments which total $949.13 per week and in addition she receives $118.87 per week child support from the father. She owns her home in (omitted) free of encumbrances.
The mother has not re-partnered.
The maternal grandparents and the mother’s four brothers and five nieces and nephews all live in Sydney or in areas reasonably close to Sydney. None of the mother’s family gave evidence but I accept that the mother values keeping in contact with them and that she would particularly like to be closer to her mother who is in ill health.
The mother proposes moving to Sydney immediately if she is able to take the children with her and she said that an elderly friend had offered to rent a home to her in (omitted) for $200.00 per week.
The elderly friend did not give evidence and some of the other evidence in the mother’s affidavit (for example about her intention to return to the workforce and the extent to which she had suffered from depression) proved to be misleading, so I have reservations about whether I can be confident that the mother is assured of reasonably priced accommodation in Sydney and I certainly cannot assess whether there is any guarantee that it will be available in the long term.
The mother gave no other evidence about other accommodation options or the likely cost of other accommodation in Sydney. She said that she had placed her home in (omitted) on the market and hoped that it would sell for about $185,000.00 but common sense suggests that this might not be sufficient to enable the mother to purchase a home in Sydney. The father’s evidence uncontradicted evidence was that homes took a long time to sell in (omitted).
The mother said that she intended to enrol the children (presumably she meant W and X) at (omitted) Public School. She said that she had been told that the children would be assessed for suitability to go into a support classroom but may be placed on a waiting list and said that if such a class became available at another school the children may need to change schools.
She said that she had been informed that if the children did not fall into the classification of requiring a support classroom they could receive individual help with their reading.
It was never adequately explained why the mother proposed to enrol W in a primary school when he has now commenced high school but this may simply be due to a lack of attention to detail when the affidavit was drafted because the matter was originally listed for hearing in December 2013.
The father’s current circumstances and future plans
The father is 44. He is employed by (employer omitted) in (omitted) as a (occupation omitted) and he supervises 5 to 8 other employees and work experience students. He leaves for work at 7.00am and returns home at about 4.00 or 4.30pm each weekday.
The father has re-partnered with Ms B. He met Ms B who was then living in Queensland online in January 2010. They commenced a relationship and in December 2010 Ms B moved to (omitted) to live with the father.
Ms B is 45 and has five children, A, B, C, D and E. She separated from the children’s father Mr E years ago and there have been many changes in the care arrangements for her children since then.
A, 14 and D, 10 live with Ms B and the father in (omitted). They have done so since either March 2012 according to the Family Report or early 2013 according to other evidence.
C, 11, has been living with Ms B and the father since Ms B failed to return her to Mr E in Queensland at the end of the last Christmas school holidays.
B, 13, lives with Mr E and has done so for some time and E, 9, lives with the maternal grandmother in Queensland and has done so for some time.
Ms B and Mr E are currently involved in family law proceedings in the Federal Circuit Court in Brisbane. Ms B’s ambition is to have all of the children save for E live with her; she considers E settled and happy with her maternal grandmother and does not wish to disturb that placement. The father supports Ms B’s application.
The father said that he and his children had met Ms B’s other children and her mother Ms S on visits to Queensland.
Ms B has worked in (employer omitted) as a (occupation omitted) in the past but at present is engaged in home duties.
The father owns a home in (omitted) subject to a mortgage. There are sufficient beds in the home for the father’s four sons when they visit but the father said that if an order was made that the children live with him he would build an extension to his home to turn it into a five bedroom home. The father may well have to consider this option if even the current number of children continue to live or spend time as the case may be in his home.
The paternal grandmother and the father’s brother live in (omitted). The father’s sister lives in (omitted) with her family and visits the father and the children in (omitted) several times a year.
To his credit the father said that he had thought about whether he could move to Sydney; he has after all lived there in the past. He said that he had come to the conclusion that it would be impossible for him to re-establish himself somewhere else now.
The father said that he had a “top job and a nice house” and that to start again at his age was impossible. If he moved to Sydney he would have to look for a new job and there was no certainty that he would easily get one or that he would be able get one in the area where the mother wished to live and Sydney is a big place. The father would have to obtain accommodation and he gave evidence about the likely cost of that. He was not challenged about his evidence that homes in (omitted) took time to sell.
The father could not be criticized for refusing to consider moving to Sydney but it was clear during cross-examination that he was conflicted about the issue. He has a strong desire to be a meaningful part of his children’s lives and said that if the mother “won the case” he didn’t know what he would do.
The children’s best interests
In deciding whether to make a particular parenting order about the children I must treat their best interests as the paramount consideration and to determine what is in the children’s best interests I must have regard to the matters in s.60CC (2) and (3) of the Family Law Act.
In relocation cases the best interests of the children are not the only consideration however. The court must have regard to people’s right to freedom of movement and their right to get on with their lives after separation and the dilemma this creates is illustrated by the following passage from the judgment of Kirby J in AIMS & AIF:
One of the objects of modern family law statutes….is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.[3]
[3] AMS & AIF(1999) 199 CLR 160
S.60CC(2) provides that the primary considerations to which I must have regard in order to determine the children’s best interests are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to abuse neglect or family violence.
S.60CC (2A) provides that in applying the considerations in s.60CC (2) the court is to give greater weight to the consideration set out in s.60CC (2) (b). However s.60CC(2)(b) has no relevance in this case; there is no likelihood of the children being subjected to or exposed to abuse neglect or family violence in the care of either of their parents.
The first primary consideration is the only one which is relevant.
A meaningful relationship has been described as one which is “significant, important and valuable to the children”[4]. The father has a meaningful relationship with his children at present and if certain conditions were met the father could continue to have a meaningful relationship with them even if he lived at a distance from them.
[4] Mazorski & Albright(2007)37FamLR 518
One condition is that the children continued to spend time with the father and this condition would certainly be met. The father is committed to his children and would make sure that he spent time with them after their relocation even if it was only in the school holidays, and the mother has always complied with the letter of orders about the children spending time with the father.
A subtle factor however which can influence whether the parent living at a distance remains a significant and important part of children’s lives after relocation is the attitude to other parent to the parent living at a distance.
If the parent having the primary care of the children merely tolerates the existence of the other parent and does not value the children’s relationship with that parent, cannot be trusted to comply with court orders about parental responsibility and does not ensure that the other parent is kept advised about issues to do with the children’s health and education then the relationship between the children and the parent living at a distance from them may cease to be significant and valuable to the children and may be undermined.
History is against the mother in this regard. The final orders made in October 2009 included the following:
1. That the father and the mother retain equal shared parental responsibility for the long term care, welfare and development of the [children].
2. That the long term care, welfare and development of the children includes:
(a) education including primary, secondary and tertiary;
(b) health care, medical and dental issues;
(c) religious observance; and
(d) cultural and social activities.
3. That in respect of each issue concerning the long term care, welfare and development of the children the father and the mother shall:
(a) consult with any other person in relation to the decision to be made; and
(b) make a genuine effort to come to a joint decision about that issue.
The mother has never complied with the order for equal shared parental responsibility.
She has repeatedly since separation taken the children to medical appointments and made medical decisions without telling the father either before or afterwards and has not been forthcoming when he has sought information from her.
She did not consult with the father before ceasing Y’s attendance at (omitted) Public School and gave evasive answers when cross-examined about whether she had discussed home schooling with the father before making a decision to implement it. Her eventual answer about this was:
When I approached him about home schooling Y he was told that he would be home schooled.
The mother agreed that the father made it known to her that he preferred that Y remain at school but that she went ahead and took him out and home-schooled him anyway commencing in 2010.
The father could have been more forceful in his opposition to this but that does not absolve the mother for her failure to consult with the father and make a genuine attempt to reach an agreement with him about a major long term issue before making a decision.
The mother agreed that when the father asked about the name of the organisation which was overseeing Y’s home schooling she provided misleading information to him. The father gave evidence about the efforts he had made to find out how Y was doing and about how when he finally managed to contact the provider of the home schooling they refused to give him information about Y.
The mother’s counsel sought to exculpate the mother by obtaining a concession from the father that during the marriage he was content to leave it to the mother to make decisions about the children’s health and education. The mother’s counsel suggested to the father that after the end of the marriage the mother simply continued to act as before in making all the decisions about the children; and what could be wrong with that or what else could be expected was the unspoken end to this suggestion.
However the father pointed out that while he was content to let the mother make those decisions when the marriage was intact and the parties were living under one roof once they separated it was no longer satisfactory for the mother to act unilaterally of him in regard to those matters. He further pointed out that the parties agreed to the order that they have equal shared parental responsibility for the children and that he had never accepted that it was all right for the mother to leave him out of the loop when decisions were required after separation.
The fact that the mother’s counsel pursued this line of cross-examination at some length confirms my view that the mother is unrepentant about her failure to comply with the order for equal shared parental responsibility and sees nothing wrong even now with her failure to involve the father in making decisions about major long term issues for the children or her failure to inform him about such things as the name of the organisation overseeing Y’s home schooling.
The evidence supports a finding that the mother does not value the input the father could provide and simply tolerates his existence and tries to ensure that he is involved to the minimum extent possible.
This is shown starkly not only by the mother’s behaviour about Y’s schooling but by her failure to allow Z to spend more than half an hour with the father until he was four years old.
It was put to the mother by the father’s counsel that the father had been requesting greater time with Z for a considerable period prior to the current court proceedings commencing. The mother agreed that this was so but said that no increase had occurred because she and the father could not agree on the extent of the increase at mediation.
A telling piece of evidence was that when the mother was asked about how she had responded to a letter dated 20 April 2012 sent to her solicitors by the father’s solicitors about the issue of increasing the father’s time with Z she replied:
I think we responded by saying that I wanted to move to Sydney.
If the mother is permitted to move to Sydney it is highly likely that she will continue to behave as she has done in the past and not consult with the father when major decisions are required about the children if she can possibly avoid it. The fact that the mother ultimately agreed to an order for equal shared parental responsibility after originally seeking an order for sole parental responsibility gives me no comfort in that regard and if the father is living at a distance from the children he will have very limited opportunity to become aware of what the mother is up to so that he can step in and do something in a timely fashion.
I must also have regard to the additional considerations in s.60CC(3) and the first of these is any views expressed by the children and any factors such as the children’s maturity and level of understanding that the court thinks is relevant to the weight it should give to the children’s views.
The father said that he had spoken to the three older children about moving to Sydney and that X was openly resistant to the idea and did not want to leave the country and that he had the impression that W would be content with week about.
I have to be cautious about placing weight on what one parent says about the views of the children when that evidence happens to coincide with the parent’s preferred outcome. There is always the risk that the children have said something to please a parent or that a parent has selectively reported what was said. Mr N however provided evidence on which weight can be placed about the views of the three older children and his evidence was consistent with what the father reported.
W told Mr N that “living with Mum is great, living with Dad is great.” He said that he was aware that his mother wanted to relocate to Sydney but that he wanted to stay in (omitted).[5]
[5] Family Report paragraph 61
X told Mr N that his living arrangements could be improved if he spent more time with this father and Mr N added that:
X was clear to tell the Family Consultant that this was his idea and nobody else’s and he did not feel any pressure from his father.[6]
[6] Family Report paragraph 65
Y told Mr N that he lived with his mother and spent every second weekend with his father and when asked if had a magic wand what he would change about his life he said:
No change.[7]
[7] Family Report paragraph 72
Mr N did not interview Z.
It was submitted in the case outline document filed by the mother on 29 January 2014 that little weight should be attached to these views because of the conditions from which the children suffered and also because the father had told the children prior to the interviews that they needed to express a view about where they wanted to live and this might have influenced them to express a preference.
I am satisfied however that some weight should be given to the views the children expressed to Mr N.
The children have visited Sydney regularly with their mother since separation and they have some experience of what it is like there. They have extensive experience of living in both households and they do not suffer from such serious cognitive difficulties that anything they say should be ignored. Their views also do not suggest some comprehensive coaching fixating on one issue.
The Family Report was prepared some time ago of course and there has been a change in the composition of the father’s household since the report was prepared but the mother did not suggest that the children had recently been expressing any views to her different to what was in the Family Report and I am certain that I would have heard about it if that was so.
I consider it significant that the mother did not suggest that any of the children were expressing a wish to live in Sydney. The highest the mother’s evidence on this point went was that she told Mr N that whenever she had spoken to the children about relocation they had vacillated between going and staying.[8]
[8] Family Report paragraph 49
The views of the three older children do not support the mother’s relocation, they support the father’s case for no less time than he has with them at present and perhaps an increase in time.
The next additional consideration is the nature of the children’s relationship with each of their parents and any other relevant persons including grandparents of the child.
The children have a good relationship with each of their parents. The three oldest children spoke positively about both parents to Mr N during their individual interviews and Mr N observed warm interaction between the parents and all four children during the observation session.
To give the flavour of the relationships I include the following from the Family Report:
During my observation of the father spending time with the subject children, all four children were excited to see their father. Mr Neiss engaged the three eldest children in play, whilst Mr Neiss was warm with all the children throughout the entire observation. Y and X in particular appeared very attached to their father, whilst Z was a little bit disconnected from his siblings, but Mr Neiss maintained verbal contact with him and demonstrated interest in Z’s play. When the children’s stepmother entered the observation room, Z straight away initiated affection with her. W mostly played independently during the entire observation.
During my observation of the mother spending time the subject children, Ms Solomon engaged the three eldest children in a card game. Z continued to play independently, whilst W subsequently played independently as well. Ms Solomon was warm with all three children, and subsequently engaged both W and Z in play. The mother appeared to appropriate her time capably with all four subject children. There were no overt child protection concerns during either of the two observations.
Mr N expressed the opinion that the children had a good sibling relationship and this was not disputed by the parents.
W was positive about his relationship with Ms B when speaking to Mr N. X said that his relationship with her was okay but that she occasionally smacked him. Mr N said that when Ms B entered the observation session “Z straightaway initiated affection with her.”
The mother made no complaint about Ms B, who has been in the children’s lives for several years, and I am satisfied that Ms B has a satisfactory relationship with the children.
W told Mr N that he felt he got on well with Ms B’s children A and D and X and Y made no complaint about them. There was nothing in the mother’s material to suggest that the children had raised any issue with her about A or D, I am satisfied that these relationships are also satisfactory.
There was no evidence about the relationship between any of the children and C.
The mother emphasised the value to her of being in Sydney close to her parents and her siblings and nieces and nephews but she gave no evidence about these people’s relationship with the children and none of these people gave evidence in the proceedings.
The next additional consideration is the extent to which the children’s parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children or to communicate with the children.
The mother has taken the dominant role in decision making for the children since separation and certainly cannot be faulted for failing to take opportunities to participate in making decisions or spending time with children.
The father acknowledged that he had not attended school events or parent teacher interviews at W and X’s school and his passivity in the face of the mother’s failure to involve him in decision making has played a part in the current situation of him being sidelined in decision making evolving.
The father has never failed to spend the time with the children available to him pursuant to the court orders.
I must consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their obligations to maintain the children.
The father is assessed to pay and does pay child support and this was not an issue in the case.
I must have regard of the likely effect of any change in the children’s circumstances including the likely effect of separation of the children from either of their parents or any other children or person including any grandparent or relative of the child with whom the child has been living.
This is a significant issue in the case.
It takes about nine hours to travel between Sydney and (omitted) and this means that if the children live in Sydney they will not be able to spend time with the father in (omitted) during school terms. This would be a significant loss for the children.
The father does a range of activities with the children. He said as follows in his affidavit:
When the children spend time with me we do activities around the home (trampoline, bike-riding, computer or remote-controlled toys and games) or go to the town pool or bowling alley. We have had a number of camping trips to (omitted) and coastal locations, and Z recently came on his first camp and seemed to enjoy it. The children look forward in particular to our camping and fishing trips.
The father’s unchallenged evidence was that W and X’s friends visited his home and had sleepovers and that Y enjoyed the opportunity to spend time with these children.
The activities and variety of experiences the father can offer the children and the exposure to different children and adults which he can offer them is very important to the children especially Z and Y who do not attend school.
There was no evidence that the mother’s family were likely to be frequently involved in activities with the children or would fill the huge gap in the children’s lives left by the absence of their father and the restriction of their pleasurable activities and experiences with him to six weeks a year during school holidays.
The children would only be able to spend time with the father on weekends if the father travelled to Sydney and time in Sydney would not be the same as time in (omitted). The father might well face logistical or financial obstacles to seeing the children in Sydney one weekend a month; the travel time might mean that he had to take two days of work for instance, and the time would not be the same.
The father would have to rent accommodation for example a cabin in a caravan park or a motel room and the children would not be surrounded by the normal things in his home. He would not be able to collect them or return them to school unless he took extra time off work and he would not be able to have any involvement in their school life. He might well not be able to bring his partner and her children to Sydney and the children would probably not see their friends on those weekends as they currently do.
The children would be able to spend time with the father during school holidays but this is different to time during the week or on weekends during school terms.
I agree with Mr N’s observation that if the children moved to Sydney:
...the father/children relationships would be less significant than what would be beneficial for the subject children.
The children would have a lot of adjusting to do if they moved to Sydney. W and X would have to change schools. All the children would leave behind the friends they have in (omitted) and would have to make new friends, and they would be with the mother most of the time when they were not at school. The mother, and the children, would not have the respite of the children spending the alternate weekends with their father and alternate Thursdays with the father.
The children benefit enormously from having the father in their lives in a meaningful way. He is employed and has a responsible job and is a valuable role model for them. The mother has not worked outside the home in the living memory of any of the children and has no aspiration to return to the work force. In saying this I am not being critical of the mother for taking on the role of full time parent, merely pointing out that the modelling of a productive incoming earning lifestyle is important for children who would normally be expected to enter the workforce after leaving school.
There is also the fact that these children are country children. The three older children moved to (omitted) when they were about 5, 4 and 3 and Z has never lived anywhere else. It is by no means guaranteed that the children would easily settle into city life.
The mother said that the education was better in Sydney but she intends to continue home-schooling Y and would prefer to home school Z. W and X are settled in school in (omitted) and are trying very hard. They are not unhappy or unsettled at school and there was no evidence to support a finding that their performance at school would improve in Sydney. There was also no evidence that entry to support classes would be any more readily available to them in Sydney.
I must have regard to the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
I have referred to that above. It takes about 9 hours with rest breaks to drive from Sydney to (omitted). Such a distance makes it completely impracticable for the children to spend time with the father on weekends or weekdays during school terms in the place where he lives
I must take into account the capacity of each of the children’s parents and any other person to provide for the needs of the child including their emotional and intellectual needs.
The mother is providing for the children’s day to day needs satisfactorily at present in that she is feeding and clothing them appropriately and attending to any day to day medical needs they may have. .
The educational needs of W and X are being met while they live with the mother. They attend school regularly and they are trying hard. They are not achieving high grades but this may be due to their innate abilities.
No evidence was provided to verify Y’s level of achievement and I cannot be satisfied that the mother is providing satisfactorily for Y’s educational needs.
Z could have commenced school this year but the mother decided (without consultation with the father) that he would not start until 2015 when he is legally obliged to do so. This causes me some concern but I cannot determine on the evidence whether it was a reasonable decision.
The mother’s capacity to provide for her children’s emotional needs is questionable. She did not initiate any change in the arrangements for Z to spend time with the father despite the fact that the arrangements became inappropriate very soon after the orders were made in 2009. There is force in Mr N’s observation as follows:
In minimising the amount of time that Z has spent with his father during the last four years, has been an ill considered decision by the mother and reflects poorly on her, not just in terms of Z’s relationship with his father, but also his relationship with his siblings.[9]
[9] Family Report paragraph 50
The mother did not demonstrate any awareness or acceptance either during her interview with Mr N or in her trial affidavit or during cross-examination that this inaction on her part had been detrimental for Z, and this suggests that her insight into the children’s emotional needs is limited.
Mr N also said that:
It is the view of the Family Consultant that the mother has not seriously examined the repercussions for the children’s relationship with their father if she was to relocate the children to Sydney.[10]
[10] Family Report paragraph 50
This observation has force because the mother said nothing to Mr N, in her trial affidavit or in the answers she gave during cross-examination to suggest that she had given any thought to whether there might be any downsides for the children in relocating to Sydney away from their father.
The mother’s lack of insight into the children’s emotional needs and her failure to make an appropriate decision about Z’s time with the father means that I can have absolutely no confidence that the mother would recognise or be able to assist the children to deal with any difficulty or distress they experienced on moving to Sydney.
There must be some question mark over the mother’s accommodation in Sydney. She said that she had been promised accommodation at a reduced rental by an elderly lady but the lady did not give evidence to confirm this, and even if it is true (and the father’s counsel did not challenge the mother’s claim about this during cross-examination) the mother’s accommodation under these circumstances would have to be regarded as somewhat precarious.
In summary while I am satisfied that the mother is doing a good job feeding, clothing and housing the children in (omitted). I have considerable doubt about how she would cope in Sydney on her own and whether she has the capacity to provide for the children’s emotional needs and assist them to adjust to a transition to life in Sydney.
There was no evidence that the mother’s parenting capacity would be affected if she was not able to relocate.
In her trial affidavit the mother said that she had only two friends in (omitted) and little support. She said that the paternal grandmother and paternal uncle had cut all ties with her since separation.
I consider that the mother understated the extent of her connection with (omitted). She belongs to the (omitted) Church and attends church every Sunday and the children attend Sunday School. She has friends who have provided her with some back up child minding on the rare occasions when it has been required.
The mother mentioned only one occasion in the almost five years since separation (and that more than two years ago) when her own health had required her to call on someone to look after the children for a short period.
In her affidavit the mother said that she had discussed with her doctor her difficulty in managing four children without support and her alleged difficult parenting relationship with the father and had been placed on anti-depressants which she ceased taking very shortly after they were prescribed.
The mother did not provide any evidence from her doctor and in cross-examination it transpired that this consultation had occurred in 2010. There was no evidence that the mother had any mental health issues.
There was no evidence that the mother was ostracised by the (omitted) community and there may be an element of the mother’s own personality and inclinations at play when it comes to the issue of how many friends and how much social involvement the mother has in (omitted).
The problem with the evidence in the mother’s case was that it established that she might in fact be less supported in Sydney than she was in (omitted). The father is providing support in (omitted) by taking the children each alternate weekend and each other Thursday and for half of the holidays. There was no evidence that the mother’s siblings were likely to take the children at all (as opposed to visiting or being visited by the mother and children) and the maternal grandmother is ill and needs support and will not be providing it to the mother.
If the mother is finding it a bit challenging caring for the children in (omitted) when the father is caring for the children for some of the time each fortnight and providing them with social and recreational activities one has to wonder how the mother would cope in Sydney when this support was not available.
It is understandable that the mother would like to be closer to her family, particularly when one of her parents has health problems, but there was no evidence that she would be unable to cope if she could not leave (omitted). She will be able to continue to visit Sydney as she has always done.
The father has no drug or alcohol problems and no mental health issues. His only medical issue is that he suffers from a mild form of Tourette’s syndrome the only sign of which is a noticeable facial tic.
The mother’s counsel submitted that I should be concerned about the father’s capacity to provide for the needs of the children because of:
·the difficulty the father would have in accommodating up to eight children and two adults in a three/four bedroom home;
·the fact that A has Aspergers, D has been diagnosed with ADHD and Post Traumatic Stress Disorder and C and B if they came to live permanently with Ms B as a result of the upcoming proceedings in Brisbane may be coming out of a traumatic situation including a situation in which they may have been sexually abused and might have adjustment problems and behavioural difficulties;
·the fact that the father worked full time and Ms B would be incredibly stretched caring for eight children when the father was at work including a number of children with special needs.
I will deal with the housing issue first because this is really the father’s problem not Ms B’s.
I do not consider that it is likely to be anything other than a short term problem. It was abundantly clear during cross-examination that the father had carefully thought through what would be required to extend his house, both practically and financially, and that he would get on with doing the necessary work as quickly as possible. It would take some while, perhaps months, to complete any necessary work and during that period the accommodation for the children and for the family as a whole would be cramped although the father said and I accept that he could do things such as obtaining a caravan to help ease the pressure. This is not a reason in itself to reject the father’s proposal for substantial and significant time.
A considerable amount of time at the trial was spent cross-examining Ms B about her parenting of her children and about the documentation produced by the Police and by the Department of Child Safety (DOCS) in Queensland about Ms B, Mr E and their children.
Initially after Ms B and Mr E separated their children lived with Ms B and spent no time with Mr E. In 2007 orders were made by consent for the children to commence spending time with Mr E. Ms B’s consent to this order does not sit comfortably with the fact that she seems to have a fixed idea that Mr E is a criminal, a child abuser and a paedophile and that there is a plethora of material in the records of the DOCS material about notifications and investigations in regard to complaints about Mr E’s treatment of the child and seven substantiated allegations.
At some subsequent time four of the children commenced living with Mr E. Ms B allowed this to happen and again this does not sit comfortably with Ms B’s allegations about Mr E.
There are some references in both the DOCS material and records produced by police to suggest that authorities have been sceptical on occasions about Ms B’s claims concerning Mr E.
The issues raised by the material produced on subpoena about Ms B, Mr E and their children must be considered however against the following background:
·Ms B has been living with the father for more than three years, during which period the three older children have spent time with the father each alternate weekend and in recent times for half of the school holidays;
·The mother did not suggest that the children had even once raised a concern with her about Ms B or about her children;
·X told Mr N that Ms B occasionally smacked him which he did not like but he felt that Ms B was generally ok and he wanted to spend more time with the father. W was positive to Mr N about his relationship with Ms B and her sons as was Y and Z initiated affection with Ms B during the observation session;
·There was nothing in the DOCS or police material to suggest that DOCS had at any time been concerned that Ms B was an unfit mother or a child abuser. An allegation recorded against her in the DOCS files in 2005 was unsubstantiated and there may have been one other allegation but it also was unsubstantiated.
Given the matters outlined above the DOCS and police material does not lead me to be concerned that the children might be abused by Ms B or her children or that they should cease spending regular time in the father’s household. This is particularly so when the mother did not suggest at the end of the hearing, after all of the evidence about Ms B had come out, that there should be any restriction on the children spending time in the father’s household. Her counsel advised the court that the mother agreed, if the she was unable to relocate from (omitted), to the children spending time with the father each alternate week during school terms from after school Thursday until the commencement of school on Monday.
The father has been strongly committed since his separation from the mother five years ago to being a part of his children’s lives and he is a very important part, an irreplaceable part, of their lives. There was nothing to suggest that he would be likely to prioritise his need for a relationship with Ms B over the needs of his children.
An issue which does concern me is that on one view of the evidence Ms B has failed to act protectively of her children in the past and has let them return to the care of their father because she was unable to cope with parenting four children with problems.
It is uncertain what the end result of Ms B’s family law litigation will be and whether she will have two additional children living with her in the future and the uncertainties about this and her coping capacity mean that I must have reservations about how the children the subject of these proceedings would cope with a complete change of residence.
I must have regard to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
I have referred earlier to the difficulties with which W, X and Y have been diagnosed.
The mother promoted the idea that a move to Sydney would give W & X better access to educational support services but there was no evidence that this would be the case – the highest the evidence went is that the mother hoped that it would be the case.
The father said that there was an Autism and Asperger’s Support Group in (omitted) which met bi-monthly and organised social occasions which advertised their activities in the (omitted) Public School Newsletter. It was not in dispute that the mother had never sought to be involved in this group.
I must have regard to the attitude of each of the parents to the children and the responsibilities of parenthood
The mother has devoted her life to the children and in some respects has shown a good attitude to the children and responsibilities of parenthood.
In other respects she has not. She has repeatedly breached the order for equal shared parental responsibility which was made in 2009 and is unremorseful about it. The fact that she was the primary decision maker in respect of medical matters prior to separation does not excuse this.
The mother failed to initiate any increase in time between the father and Z despite the fact that the half hour per week that Z was permitted to spend with the father pursuant to the court orders rapidly became absurd if it was ever appropriate and denied him for years the opportunity to develop a meaningful relationship with the father.
The father has shown a good attitude to the children and the responsibilities of parenthood in that he has remained a consistent and meaningful part of their lives since separation.
I must have regard to any family violence involving the children or a member of the children’s family.
The father admitted that he pushed the mother on one occasion during the relationship but neither the father nor the mother expanded on this and I cannot be satisfied that this constituted family violence as defined in the Family Law Act. I am not prepared to infer that the father’s action made the mother fearful when no particulars were provided about what occurred and there was no evidence to suggest that the behaviour was part of a pattern of coercive or controlling behaviour.
The mother told Mr N that there were other incidents of violence; she alleged that the father slapped her face once and hit and kicked her on three occasions. The father denied that any other physical incident occurred than the push described above. The mother’s allegations were unspecific as to time or detail and the mother’s evidence proved unreliable on other occasions and these allegations do not change my view that it is not open to me on the evidence to find that any family violence occurred between the parties during the relationship.
The totality of the evidence suggests that the time around separation was a difficult one for the parties. The father struggled to accept the separation and he made the following frank admission in his affidavit:
I became upset about the loss of my time with the children and I admit that I acted badly. I don’t recall saying to Ms Solomon that I was going to kill myself but admit that I may have said that, even in front of the children. I deny ever threatening harm to Ms Solomon herself of any of the children.[11]
[11] Father’s affidavit filed on 22 January 2014 paragraph 13
The mother made a lot of an incident which occurred in May 2009 soon after separation when her arm was bruised after being caught in the window of the father’s car.
The mother inserted her arm into the window and the father reacted by winding up the window and driving away. He drove a short distance before stopping and allowing the mother to release her arm.
The father said that the whole thing was an accident and I accept his evidence. He was a calm and forthright witness; he admitted against interest being upset and agitated at time of separation; and there was no evidence that he was by nature an aggressive person. It is quite possible that the mother inserted her arm and that the father drove off at about the same time without comprehending that her arm was caught and not with any intent to deliberately harm her.
The incident would have been distressing and frightening for the mother but I cannot be satisfied that the father deliberately committed an act of family violence.
This is not a case where there is of history of violence during the relationship or a continuation of violence after the relationship whether in the form of actual physical violence, harassment or stalking. Family violence is not an issue which assists me to determine this case.
There are no family violence orders in existence at present.
The mother obtained an Apprehended Domestic Violence Order against the father in May 2009 following the incident described above. It expired on 27 August 2010. In March 2011 she applied for a further order and another order was made in May 2011. It was renewed in May 2012 but expired in May 2013. The mother provided no information about why she considered it necessary to make these additional applications and the mere fact that the orders were made does not establish that family violence occurred and is of no assistance to me in determining these parenting proceedings.
I must consider whether it is preferable to make the order which is least likely to lead to the institution of further proceedings.
The order least likely to lead to further proceedings is an order that the mother remain in (omitted). An order that she lives in Sydney with the children has the potential to either lead to contravention proceedings or to further family law proceedings if the children or some of them fail to adapt to the change.
I must have regard to any other relevant matter and there are two of these.
First, it is legitimate to ask whether the mother would leave (omitted) if she was unable to take the children.
I allowed this question to be put to the mother during cross-examination and she said that she would not leave without the children but even absent this answer I consider that it is open to me to find that the mother would not leave without the children.
The children are the mother’s world. She enjoys her parenting role and has no desire to return to the workforce. She is not in a new relationship which is pulling her in a particular direction. She owns her own home in (omitted) and does not need to leave because she cannot obtain housing.
The mother would prefer to be in Sydney, but this preference is not so strong or the demand to care for a sick parent so pressing that the mother would be likely to leave (omitted) if the children could not.
Second, the mother claimed that she had a difficult parenting relationship with the father but in support of this contention she referred to the incident with the car soon after separation in 2009, an occasion in February 2012 when the police attended at her home after the father complained about not being able to get the children on the phone, a conversation in February 2012 when the father protested against her taking the children to see a psychologist, an occasion in May 2012 when W asked her why Z was not spending more than half an hour a week with the father, and an occasion in September 2013 when the parties argued over Z spending a week of the school holidays with the father and which on the face of it appears to have involved a misinterpretation of the orders by the mother.
The mother also gave evidence about telephoning the father twenty six times in October 2013 trying to speak to the children.
I do not accept that all of this adds up to a difficult parenting relationship as opposed to a parenting relationship in which some difficulties occur from time to time and nothing in what the mother described would require her to leave (omitted) for her own safety or wellbeing.
The mother must accept some responsibility for the tension between the parties insofar as it arose out of the patently ridiculous situation of Z spending half an hour per week with the father while his brothers went off for the weekend.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the children’s best interests that parents have equal shared parental responsibility for them absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the children or family violence.
The presumption can be rebutted by evidence that such an order would not be in the children’s best interests.
The presumption applies in this case and in the end both parents sought an order for equal shared parental responsibility and that is the order I intend to make.
I have some reservation about whether the parents will be able to alter the pattern of their post-separation relationship namely that the mother makes decisions without consulting the father and the father while unhappy passively allows the decisions to be carried into effect.
If I make an order for equal shared parental responsibility and the mother continues to behave as before and the father decides to do something rather than do nothing this may result in further litigation including contravention proceedings. However this is not a reason to absolve the parents from making an effort to comply with such an order.
The children will benefit from input in the future from both the mother and father when decisions are needed about education and medical issues. The parents will need to break a long standing mould if they are to co-operate about making those decisions but they owe it to the children to do so.
The recommendations in the Family Report
I was greatly assisted by Mr N’s report. It contained evidence on which I can rely about the children’s views and their relationships, evidence which was not available from any other source and it also contained insightful comments about the situation from the perspective of a professional social worker.
Mr N did not support the mother’s proposal to relocate the children to Sydney and there is considerable force in his opinion as follows:
Whilst there appears little rationale to place the four eldest children in the primary care of the father, given the previous living arrangements of the children during the last four years, it remains evident that the children and their father desire a significant relationship with each other, and it remains unlikely that this could be achieved by supporting the mother’s relocation to Sydney with the subject children.[12]
[12] Family Report paragraph 14
Mr N also said as follows:
The reality is that if the subject children relocated to Sydney, then the father’s relationship with the subject children would become disconnected, and the father/children relationships would be less significant than would be beneficial for the children.[13]
[13] Family Report paragraph 79
Mr N recommended that the children live with the mother and spend time with the father during school terms from Thursday to Monday each alternate week, from Thursday overnight to Friday in the other week and for half of the school holidays. He recommended that the more extensive time (presumably he meant the two Thursdays overnight) not commence until the father had extended his accommodation although this seemed to escape notice during submissions.
Mr N’s recommendations deserve respect but I cannot make orders simply because Mr N recommends them. His report is only one piece of the evidence available to me and there is evidence available to me which was not available to Mr N including extensive evidence about Ms B’s situation. In addition because I intend to make an order for equal shared parental responsibility and I am obliged to follow the pathway in s.65DAA of the Family Law Act before arriving at a conclusion about which orders will best meet the children’s needs.
Conclusion
S.65DAA(1) and (2) of the Family Law Act require me to consider whether the children spending equal time or alternatively substantial and significant time with each of their parents is in their best interests and reasonably practicable and if so to consider making an order of that kind.
In MRR & GR[14] the High Court said as follows, and while this quote refers to equal time it is also applicable to a situation where substantial and significant time is being sought :
Section 65DAA (1) of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given, under paragraph (c) to the making of an order.
[14] MRR & GR (2010) 42 Fam LR 531
The High Court went on to say:
Section 65DAA (1) is concerned with the reality of the situation of the parents and children not whether it is desirable that there be equal time.
The father did not seek equal time but he did seek an order to the effect that the children spend substantial and significant time with each of their parents and I will start by considering whether this would be in the children’s best interests.
There can be absolutely no doubt that it would be.
The children deserve and need to have a meaningful relationship with both of their parents. They have lived much of their lives with their mother and while I have been critical of aspects of her parenting she has provided satisfactorily for them on a day to day basis. They have also always spent regular time with the father who has a great deal to offer them; he is gainfully employed, has no drug, alcohol or mental health issues and is an excellent role model.
An order for substantial and significant time either as the father proposed or in some other configuration of time would be a comfortable fit with the wishes of W, X and Y especially as it would also mean that the children would remain in (omitted).
An order for substantial and significant time would be appropriate given the good relationship the children have with both parents and in the case of the father the commitment he has shown since separation to being part of their lives. The father has so much to offer the children in terms of activities and social interaction which complement things on offer from the mother and which the mother cannot supply.
It would give Z the opportunity to develop the same kind of relationship with his father as his brothers have while still spending a large amount of time with the mother.
Substantial and significant time could only happen if the children remained in (omitted) but that would be a good outcome for them. It would preserve them from all of the evils of leaving (omitted) and moving nine hours away including W and X having to change schools and make new friends (if they could make new friends) Y being at risk of becoming particularly isolated from social engagement by being home schooled in Sydney and not having the outlet of playing with Ms B’s children and W and X’s friends on alternate weekends and the mother, who said that she found it a challenge to cope now, finding it an even greater challenge if the circuit breaker of the children spending regular weekly time with the father was not available.
It would mean that the children were not exposed to the risk of moving to Sydney only to find that the mother could not cope and was unable to assist them to cope with the transition.
I accept that the mother does not want to remain in (omitted) but I do not accept that she is as unsupported or isolated in (omitted) as she claims or that her parenting capacity would be affected in any way which would impact on the children if she was unable to move to Sydney.
If the father’s version of substantial and significant time were implemented it would mean some change for the children in that they would be spending two extra nights per fortnight with the father, but they are already in a pattern of spending time with him each alternate weekend and on the alternate Thursday evening so it would not be that much of a change and there was nothing to suggest that the children would not adapt to it.
It would not expose them much more than they are at present to any risks posed by Ms B and her children, although I am not convinced that any risks have been demonstrated on the evidence. In any event the father impressed as devoted to his children and I am satisfied that the father would prioritise his children’s needs over his relationship with Ms B should any issues arise about the care of his children.
The father has managed in his current accommodation with two of Ms B’s children living with him and his four children spending time there each alternate weekend and each other Thursday evening but there is merit in Mr N’s suggestion that ideally if the father has extra time he needs to increase the size of his home. I am confident that the father has the willingness and capacity to do this if it is required.
I am comfortably satisfied that an order for substantial and significant time would be in the children’s best interests.
I am also required however to consider the matters in s.65DAA (5) in order to determine if an order for substantial and significant time would be reasonably practicable.
I must consider how far the parents live from each other, and they live sufficiently near to each other in (omitted) to make substantial and significant time reasonably practicable. It would only become impractical if the children lived in Sydney.
I must consider the parent’s current and future capacity to implement an arrangement of this kind.
The parents have successfully implemented the current arrangement of the children living with the mother and spending each alternate weekend from Friday to Monday and each other Thursday evening with the father and there is no reason why they could not implement an arrangement which involved the children spending slightly more extensive time with the father.
At present the mother picks the older children up from school and delivers them to school but there is no reason why the father and Ms B combined could not do this. Ms B’s children attend school after all.
I must consider the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of this kind.
The parents do not have a particularly good capacity to communicate but they communicate by text message when required and have been able to communicate sufficiently well to make the existing arrangement work. The three older children have been going back and forth on alternate weekends for years without there being any issues about things such as clothing or shoes or homework left behind and the parents are capable of communicating civilly about such things.
I am satisfied that the parents can communicate sufficiently well to make substantial and significant time work.
I must consider the impact which an arrangement of this kind would have on the children and one aspect of this is that if the mother’s parenting capacity was likely to be adversely affected if she was unable to move to Sydney then any order which could only be implemented if she remained in (omitted) could well have an adverse impact on the children.
I do not accept however that the mother’s parenting capacity would be adversely affected by this outcome. The mother has an unencumbered home in (omitted), adequate income, a long familiarity with (omitted) and some connections in it including a long standing weekly involvement with a church. The mother is not confronted by the situation which confronted the mother in MRR & GR of being required by the decision at first instance to remain living in an isolated town to which she had recently moved because of the father’s work and where she only had a caravan for accommodation.
Another issue here, and one which was not addressed by the parties during the evidence or in submissions, is that if an order is made that the time on alternate weekends starts on Thursday then Y and Z, who do not attend school, will spend that day at home with Ms B rather than the mother. The mother did not however suggest that this was undesirable for them or that Y would miss essential schooling, indeed during final submissions her counsel said that the mother consented to the time being Thursday to Monday if she was not permitted to relocate the children to Sydney.
I also have to consider any other relevant matter and there are none.
I am satisfied that an order that the children spend substantial and significant time with each of their parents would be in the children’s best interests and reasonably practicable. However s.65DAA (2) only requires to me to consider making an order of that kind if I arrive at that conclusion and I need to give the mother’s alternative proposal that she be able to live in Sydney with the children proper consideration.
It is difficult to see any advantages to the children in relocating to Sydney.
There is considerable force in Mr N’s opinion that if the mother was allowed to take the children to Sydney the father might become a far less significant figure in their lives than was optimal for them.
I have real concerns about the mother's attitude to the father and her capacity to promote a meaningful relationship between the children and the father. She has complied with the court orders about time but has conspicuously failed to comply with the order about equal shared parental responsibility and she is not remorseful about that at all.
In failing to facilitate Z spending anything more than half an hour with his father until he was four years old she let Z down badly, and she is not remorseful about that either, preferring to focus on the fact that the father did nothing to force the issue.
There has to be considerable doubt about whether the children would cope with a move to Sydney. It is true that they would be with their primary carer but they would face a change of school in the case of the two older children, loss of friends and a move from the country to the city and they would only have the mother to help them adjust to that, the mother who is likely to find herself less supported rather than more supported in Sydney than she is in (omitted).
In (omitted) the children spend time with the father every alternate weekend and each other Thursday evening and although the mother does not see this as support for her it is exactly that.
There was absolutely no evidence that anything similar would be available in Sydney. Three of the mother’s brothers have their own families and none will be living close to the mother, a significant issue given the size of Sydney and its environs, and the maternal grandmother is ill and is hardly in a position to assist.The children would have a lot of adjusting to do if they moved. They would have to live for whole school terms very likely spending no time with their father and very likely with little or no alternative male input. Y and Z who do not attend school could become particularly isolated, and Z would lose the chance to build on the relationship with his father which he has only just started to develop.
The mother conspicuously failed Z in not extending his time with the father beyond half an hour until he was four years old and she could not see any problems for the children in relocating to Sydney. It is open to question whether the mother has the empathy with the children and the attunement to their emotional needs which would ensure that she was able to help them adapt to such a significant change in their care arrangements.
There was not a shred of evidence that W and X would have access to better educational support services in Sydney or that they were suffering as a result of lack of support services in (omitted), and no evidence that any of the children needed to be in Sydney in order to access health care in a timely fashion.
Given the uncertainties surrounding Ms B’s situation I could not make an order that the children live primarily with the father and spend time with the mother during school holidays and on any weekends if the mother happened to visit (omitted), but it does not follow that because I could not be satisfied that the children living primarily with the father would be in their best interests that I have to accede to the mother’s proposal that she relocate the children nine hours away from the father, in circumstances where it is open to me to find that the mother will not relocate without the children and that requiring her to remain in (omitted) will not have an adverse impact on her parenting capacity.
I am satisfied that the orders which would be in the best interests of the children are that they live with the mother and spend time with the father as he proposed, which of necessity means that the mother cannot relocate the children to Sydney.
The mother will be disappointed by this outcome and may well consider it most unfair. The father conceded that one of the reasons he wanted to move to (omitted) in 2004/5 was that he was not happy in Sydney and was unhappy being so far away from family when his mother was unwell. The mother wants to move to Sydney because she feels isolated from her family and her mother is unwell.
However I have to make the decision which I consider will be in the best interests of the children and the disadvantages to the children of moving to Sydney are huge and it is impossible to identify any advantages. This is one of the cases to which Justice Kirby referred in which the interests of the children must prevail over the interests of a parent.
The mother agreed that if the children remained in (omitted) they should spend time with the father from Thursday to Monday each alternate weekend and this would ensure that they spent substantial and significant time with both of their parents.
Mr N recommended that the children also spend time with the father overnight Thursday to Friday in the other week and to use one of Mr N’s favourite phrases there is no overt rationale to refuse to make that order.
The children are currently spending time with the father from 4.30pm to 8.00pm each alternate Thursday. To extend that to overnight would not be a great extension and it would allow the children some additional time with the father without the need of being rushed back to the mother’s to go to bed, and the father is perfectly capable of ensuring that the children attend school the following morning.
The father’s accommodation is an issue but I am satisfied that he has the willingness, the financial capacity and the practical skills to make such changes to his home as he considers necessary in a timely fashion.
In the father’s Minutes of Orders handed up on 19 February 2014 he sought an order which would require then mother to enrol both Y and Z in a public school in (omitted) from the commencement of the 2015 school year.
I have sympathy for the father in regard to this but I cannot make this order as far as Y is concerned.
In his trial affidavit the father expressed opposition to Y being home schooled but he did not seek an order about this issue until the very end of the hearing.
It was the mother’s case that Y would resist attending school.
If an order had been sought about this issue early on the following at the very least could have been done:
·Y’s school records for his kindergarten year could have been subpoenaed;
·The records of the organisation through which Y is doing home schooling could have been subpoenaed and an attempt made to ascertain his level of achievement and the mother’s compliance with the requirements of the program;
·Mr N could have thoroughly explored with Y his feelings about home schooling and attending a mainstream school;
·The mother could have been cross-examined at length about what she does by way of home-schooling Y and what social and cultural activities she organises for him. I acknowledge that there was some cross-examination about the social activities but there was little if any about the routine for his day to day schooling.
I am reluctant to condemn the parties to a further round of litigation but I simply do not have enough information to safely make a decision about Y’s schooling. In addition it would be procedurally unfair to the mother for me to do so it when she was not put on notice until the very end of the hearing that the father sought an order about it and did not have the opportunity to put comprehensive evidence before the court in support of her choice.
The mere fact that mother acted unilaterally of the father three years ago in deciding to home school Y is not sufficient reason without more for me to intervene now or for me to override the need for proper evidence and for the mother to be given procedural fairness.
The situation with Z is different. He has not yet commenced school. W and X both attend a public school and Y did his first year of schooling at a public school. The default position for most children is that they attend school rather than are homeschooled and the mother did not advance any reason why Z needed to be homeschooled. In the case of Z intend to order that unless the parents otherwise agree in writing Z is to be enrolled in a public school in (omitted) from the start of the 2015 school year.
This will leave Y alone on a limb while his brothers all attend school, just as Z was alone on a limb for four years while his brothers all spent regular time with the father. It is not a good outcome and I deeply regret it but I consider that it would be unsafe for me to deal with the issue when the mother might argue that she has not been accorded procedural fairness.
I can only hope that the parents do something proactive about this, perhaps by engaging Y with a local counsellor or consulting a paediatrician, rather than leave the issue to fester perhaps resulting in a further round of litigation.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
Neither parent sought an order that Christmas Day be shared if the parties were in the same locality on Christmas Day. There have never been any order to this effect and I have made no order about it now.
I certify that the preceding two hundred and eighty two (282) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 30 April 2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Procedural Fairness
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