Swisher and Swisher
[2010] FMCAfam 1051
•8 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SWISHER & SWISHER | [2010] FMCAfam 1051 |
| FAMILY LAW – Parenting – relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61DA, 65DAA |
| Applicant: | MR SWISHER |
| Respondent: | MS SWISHER |
| File Number: | WOC 1016 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 2-3 September 2010 |
| Date of Last Submission: | 3 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schonell |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Counsel for the Respondent: | Mr Harper |
| Solicitors for the Respondent: | DGB Lawyers |
ORDERS
That the parents are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children [X] born [in] 1996 and [Y] born [in] 1998.
That the Child [X] lives with the Father.
That the Father is to do all things necessary to encourage and facilitate [X] spending time and communicating with the Mother.
That the Child [Y]:
(a)Lives with the Mother until 31 March 2011 or the day before the Mother returns to live in the United Kingdom, whichever first occurs;
(b)Lives with the Father as from 31 March 2011 or the day before the Mother returns to live in the United Kingdom, whichever first occurs.
As from the time that the Mother commences residing in the United Kingdom, [Y] spends time with her Mother:
(a)At any reasonable time the Mother is in Australia provided the Mother gives one month notice of her intention to travel to Australia to see the Child;
(b)In the United Kingdom in even numbered years during the Christmas school holidays to include Christmas Day for a period of 4 weeks inclusive of travel time and in odd numbered years over the Easter or July school holiday break but for no longer than 3 weeks inclusive of travel time;
(c)That when the Child is in the United Kingdom the Mother shall allow her to visit with her paternal grandmother and uncle and cousins;
(d)The costs of the return airfares between England and Australia be met by the Father as well as any reasonable internal travel costs caused by the Child visiting the Father’s family;
(e)At such other times as agree;
(f)The Mother shall no later than 42 days prior to the commencement of any time pursuant to this order provide to the Father an itinerary of travel identifying departure dates and times together with copies of prepaid return airline tickets.
As from the time that the Mother commences residing in the United Kingdom, the Father is to do all things necessary to cause and facilitate [Y] communicating with her Mother at least weekly via email, SMS, webcam and telephone.
Until [Y] commences living with the Father in accordance with these orders, [Y] is to spend time with her Father as follows:
(a)Until the end of [Y]’s school term, every Tuesday afternoon from 4:00pm to 6:00pm, and from after school each alternate Thursday to the commencement of school on Monday;
(b)For half of the December/January school holidays as agreed, but failing agreement for the first half (with the exception of 2:00pm Christmas Day to 5:00pm Boxing Day when [Y] is to be with the Mother);
(c)From the commencement of [Y]’s school term for an equal time as between the Father and Mother as agreed, or failing agreement, with the Father from after school on the first Friday of the school term to the commencement of school on the following Friday;
(d)From the first Monday in March 2011, from after school on Monday to before school on Friday morning each week;
The Court requests that Family Consultant O meet with [Y] (and if considered appropriate [X]) to explain these orders, and also to recommend to the family appropriate therapeutic counselling and support services.
Leave to relist before Federal Magistrate Altobelli on 7 days notice in relation to the implementation, interpretation or enforcement of these orders of if the mother decides not to return to the United Kingdom on a permanent basis.
IT IS NOTED that publication of this judgment under the pseudonym Swisher & Swisher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 1016 of 2009
| MR SWISHER |
Applicant
And
| MS SWISHER |
Respondent
REASONS FOR JUDGMENT
This case is about two children: [X] who is 14 years old and her sister, [Y], who is 12 years old. Currently, [X] lives with her father, and [Y] with her mother, both in the [L] region of New South Wales. The children’s mother would like to relocate with [Y] back to the United Kingdom. The family migrated from there in 2005. The father opposes the relocation. This case is, therefore, about the parenting arrangement that is in the best interests of [Y], having regard to the competing proposals advanced by their parents.
Background
The children’s father is the applicant in these proceedings. He is 46 years old and works at [omitted]. The respondent is the mother. She suffers from depression and is currently not working. The parents married in 1988 and separated in 2009 after a period of 11 years of cohabitation, most of that occurring in the United Kingdom where they were both born and lived until 2005 when they came to Australia.
For most of the time since separation, both children lived with their mother, and had fairly regular contact with their father. The mother’s initial application related to both children, [X] and [Y]. On 5 August 2010, [X] moved to live with her father with whom she now lives full-time. The mother no longer seeks orders for contact in relation to [X]. Indeed, neither parent seeks orders in relation to [X] and both have indicated that, whatever the outcome of these proceedings, they will support [X] spending time with both parents. Whilst in some respects, therefore, the focus of these proceedings is on [Y], the evidence will demonstrate the strength of the relationship between [Y] and her sister [X]. The mother’s position throughout these proceedings has been that she will move to the United Kingdom irrespective of the decision the Court makes about [Y]. In the circumstances of this case, even in these background comments, I am able to say that I both accept and understand the mother’s position. I understood the mother’s evidence to be, however, that she would not leave immediately and that there would be a period of months within which any necessary transitionary arrangements could be made.
The matter was originally listed before me to determine both parenting and property issues, but the parents, much to their credit, were able to settle the property proceedings. They have agreed that what was once the family home will not be listed for sale until the earlier of my decision in the parenting proceedings, or 30 January 2011. Once the house is sold, the net sale proceeds are to be paid as to 77.5 per cent to the mother. The father will make all mortgage payments up to
1 November this year and the mother assumes responsibility thereafter, but, if she cannot pay, then the father will pay and he will be reimbursed from the sale proceeds.
The father’s proposal is contained in a minute of order sought by him, and which is reproduced in the schedule to these reasons for judgment. He proposes equal shared parental responsibility in relation to both children, that they live with him, and that [Y] spend time with the mother depending on whether she is living in the [L] region, or in the United Kingdom. If the mother resides in the [L] region, the father’s proposal is, in effect, a shared care arrangement. If she resides in the United Kingdom, then [X] would be able to spend time with her mother during school holidays in both Australia and/or the United Kingdom.
The mother’s proposal is contained in a minute of order which is also reproduced in the schedule to these reasons. She proposes there be equal shared parental responsibility and that [Y] be permitted to relocate to England with her mother and thereafter spend time with her father during holidays. As foreshadowed above, neither parent is seeking orders in relation to contact for [X], but both are willing to facilitate this. This, no doubt, reflects [X]’s age, maturity and the developmental stage that she is currently experiencing.
The evidence in this case consisted of the affidavits of both the mother and the father and their respective supporting witnesses. Only the mother and the father were required to give evidence. There was a family report dated 6 July 2010 prepared by family consultant, Ms O. She also gave oral evidence.
This is a difficult case. It has an aura of sadness about it. The mother is clearly sad, depressed, and longing to return to the United Kingdom where, she hopes, life will be better. It is very hard to be critical of either the mother or the father for anything that they done, or failed to do, in the circumstances of this case. True it is that the adversarial process of litigation shines the light into the dark corners of the mother and father’s lives to reveal actions and omissions which, I have no doubt, both parents regret. But those matters are not determinative in this case. The real focus is on [Y] and how she will cope if she goes with her mother to the United Kingdom, or if she stays in Australia with her father and sister.
Applicable Law
The orders sought are governed by Part VII of the Act. The objects and principles underlying Part VII are set out in ss.60B(1) and (2):
(1) The objects of this Part are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
e)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
f)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
g)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
h)parents should agree about the future parenting of their children; and
i)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The child’s best interests are paramount: s.60CA. How a child’s best interests are determined is set out in s.60CC. I must consider these matters. There are primary considerations set out in s.60CC(2):
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3):
(3) Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
f)the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
j)any family violence involving the child or a member of the child's family;
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
m)any other fact or circumstance that the court thinks is relevant.
As I am required to make a parenting order, a presumption of equal shared parental responsibility applies, subject to the terms of s.61DA:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The Family Report
It is important to recognise that, at the time that Ms O prepared this report, [X] was still living with her mother, and the mother’s application related to both children. Nonetheless, the report, in its written form, contains much useful evidence. It is useful, in this case, to record some of the reflections and perceptions of the parents themselves. For example, the father reported the following to the family consultant:
11. Mr Swisher stated that he now regrets not taking a larger role in day to day parenting and said he has enjoyed becoming a much more involved and active parent since the separation.
12. Mr Swisher complimented Ms Swisher’s parenting of the girls as younger children but highlighted that she has struggled to be emotionally available and adjust her parenting style as they enter adolescence. He stated that in his view, she is overprotective and does not negotiate or communicate openly with the girls. He stated that [X] in particular enjoys a much more open relationship with him. He reported that both girls are able to relax and “have fun” with him and they are not subject to the same degree of pressure and control that reportedly exists in their mother’s home.
13. Mr Swisher questioned the benefits of any relocation. He stated that although Ms Swisher has never settled into life in Australia, he is uncertain that her situation would improve back in England. He argued that Ms Swisher has not had an especially close relationship with her family and he is sceptical that they would be the support Ms Swisher suggests. He also doubts that Ms Swisher would facilitate the girls’ visits to Australia, stating that the cost would probably be prohibitive and he believes that once back in England, Ms Swisher would discourage any contact between himself and the girls.
14. Mr Swisher reported that, in his view, Ms Swisher has suffered from depression for many years. He claimed that when the family lived in England, he initiated Ms Swisher seeking medical care resulting in her being diagnosed with Depression and briefly taking a course of anti-depressants. He described
Ms Swisher’s depression as “an aura” of pessimism within the home, describing her as negative and withdrawn and subject to mood swings. He reported that this has impacted on the girls, who, amongst other things, can be overly sensitive to criticism. He raised a concern that the girls’ wellbeing may be affected should they be living with their mother, so far away, with little contact with him.
In relation to the mother, the family consultant records:
17. On the day of the interviews, Ms Swisher presented as a quietly spoken woman who expressed her sadness and desperation to return to England with the children.
18. Ms Swisher reported that she is currently in “limbo” as she waits to learn if she can move with the children. She reported that she in unable to remain living in the [L] region as she can not afford to buy or rent a suitable property for herself and the children. She stated that in England she would have the support of her mother and stepfather, and her brother and his family would also be nearby. She is proposing to move to the North East of England where she herself lived as a child. She stated that her family could offer practical and emotional support, including temporary employment until she was able to find something appropriate. Ms Swisher stated that while she does have good friends in [L] region, she cannot imagine herself remaining here, highlighting that the family have only been in Australia for four years.
19. Improved mental health was raised as a key reason for the relocation by Ms Swisher. She explained that he has battled depression for many years and was diagnosed in 2001/02. Other than a brief period of six months following the diagnosis, she has not taken antidepressants regularly and is currently managing her condition with visits to a counsellor organised through Medicare. She stated that the separation and subsequent inability to return home has exacerbated her depression, at one stage leading to suicidal thoughts. Ms Swisher stated that she can not imagine continuing to function if she was unable to return to England.
20. Ms Swisher acknowledged that both [X] and [Y] are resistant to leaving Australia. She stated that their opposition is understandable given their age and desire to maintain their friendships. Despite their opposition, she expressed a view that both girls would accept a decision by the Court and would eventually adjust. She reported that [X] is resilient and would make new friends in a new environment and that [Y] is due to commence High School next year and will experience some change regardless. Ms Swisher stated that she is aware that whatever the Court’s decision, things will be difficult for the girls initially.
…
22. When questioned about how she imagined Mr Swisher would manage care of the children should they live with him fulltime, Ms Swisher became tearful and stated that she could not imagine that possibility. She suggested that the girls would be left to “bring themselves up” as Mr Swisher would be preoccupied with work responsibilities. She stated that the girls do not have a realistic view of what life would be like with their father as they view him as a fun and friendly figure and not as an authoritative figure. She expressed sadness that the children have reacted negatively to her since the separation and stated that [X] in particular has been “dismissive and rude”, choosing to see things from her father’s perspective. She explained that she is concerned that Mr Swisher has spoken with the girls about Court and presented them with his version of events. She stated that she has not discussed matters with the girls in order to protect them and to avoid Mr Swisher from accusing her of influencing them. Because of this, though, she is worried that the girls do not have the full information and do not see things for what they are.
23. Ms Swisher spoke of some difficulties she is currently experiencing in her relationship with [X]. She reported that [X] is resisting boundaries and is drawn to the greater freedoms in her father’s home. She stated that [X] is also very mindful of her powerful position within the dispute and her father is willing to do “anything to keep [X] happy”.
Each of the parents demonstrated a capacity for self-reflection and a good appreciation of the relevant issues.
The family consultant, of course, met with the children. [X] expressed a clear view that she would like to remain in Australia and eventually to live with her father. [X]’s appreciation of the difficult situation is reflected at paragraph 32 of the report:
32. [X] appeared aware of the possibility that her mother may choose to relocate without her. She expressed a view that sooner or later Ms Swisher will move back to England as she misses her family and it would be better for her “state of mind”. She reported that she would cope if her mother did move as she would want her to be happy. She said that [Y] may find it more difficult to manage without Ms Swisher, but [X] would also accept a decision by [Y] to move to England with her mother.
The observations about [Y] commence at paragraph 38 and conclude at paragraph 41 with observations about both the children and their parents:-
38. [Y] was guarded during the interview but did express a desire to remain living in Australia. She reported that she would not like to return to England as she would miss her father and her friends. She stated that, like [X], she would like to spend some more time with her father as she finds him approachable and easy to talk to. She expressed some concern that if she did move overseas, she would be unable to remain in contact with her father as her mother would be unlikely to support regular visits. [Y] suggested that her mother is likely to remain in Australia if her bid to relocate the girls is unsuccessful.
39. [Y] reported that she has found it difficult to fit in socially at times and unlike her sister does not have a large group of friends. She identified that she is quite different to some of her peers and has a small number of close friends which she would miss greatly should she move away. [Y] seemed to identify [X] as a good source of support for her and indicated that she would not like to be separated from her, that is, with different living arrangements.
40. [Y]’s teacher, Ms P, described [Y] as a mature and sensible student who is “capable” but does not always work to her ability. She reported that in recent months, [Y] has appeared withdrawn and distracted at times and, on occasion, has seemed quite down. She reported that both herself and the school counsellor have attempted to support [Y] but she has refused to engage or open up, preferring to keep her feelings to herself. Ms P reported that Ms Swisher has been in contact with the school and has appeared as a supportive and caring parent.
41. [X] and [Y] were observed both formally and informally with their parents. In the waiting room, both girls radiated around their father, seeking him out and sitting close to him. In formal observations the girls were animated and jovial with their father, joking with him. In observations with their mother, the atmosphere was slightly more subdued and [X] appeared somewhat sullen while [Y] seemed to try to diffuse any tension with laughter.
Both parents identified that [Y] was not as resilient as her older sister and may be more vulnerable to longer term emotional difficulties.
Although lengthy, I think it is important to reproduce the family consultant’s evaluation and recommendations:-
42. [X] and [Y] have experienced much uncertainty since separation. Their parents relationship ended relatively recently and since them, the spectre of relocation has hovered over the family leaving all involved with a sense of apprehension and anxiety. The family situation is complex as a result of the past care-giving history, the mother’s mental health, the girls’ ages and, of course, the significant distance associate with the proposed relocation.
43. It appears that parenting arrangements prior to separation were fairly clear. Ms Swisher held the role of stay at home parent and, as such, took on primary responsibility for both day to day care and decision making. It seems that Mr Swisher was largely focused on his employment outside of the home and often deferred to Ms Swisher’s decisions regarding the girls. There has been a seismic shift since the separation, Mr Swisher has now taken on a much larger role with the girls, as it is not uncommon following separation, and differences in parenting styles and attitudes have become apparent.
44. Mr Swisher’s application for full time care of the girls is based on his belief that he can provide the children with a more positive home environment away from the “oppressive” and “depressive” elements he describes in the mother’s home. He suggests that [X], especially, would prefer to live with him and that both girls would benefit from his more inclusive and open parenting style. He suggests that if Ms Swisher needs to relocate to England, then she should move and have time with the girls during holidays.
45. Ms Swisher’s reasons for relocation are compelling. She and Mr Swisher are both from England originally and have only lived in Australia for a relatively small amount of time. All her family and a number of friends live there. She apparently has associated opportunities for employment and accommodation as well as emotional support. By her own admission, she has suffered from depression for many years and finds this exacerbated by feeling trapped in a foreign country. She describes a difficult relationship with Mr Swisher and both her claims of his emotional/mental abuse during the marriage and the circumstances of his infidelity indicate that she would benefit from some distance from him. She reports that she is financially unable to support herself and the children in Australia or secure suitable accommodation. Ms Swisher gives the impression of a woman who is desperate to return to her country and unable to imagine building a life in Australia as a single parent.
46. The timing of the Court action is very unfortunate. The girls have already experienced one major upheaval in moving to the other side of the world and starting a new life and they are at ages when another move is an unattractive prospect to them. Both [X] and [Y] have made it clear that they do not want to move to England and would be upset and angry should a move be ordered. Their opposition appears to centre around a desire to remain close to their father and to their close friends and familiar environment. The girls are at ages, and are assessed as having significant maturity, where their views should be given some weight.
47. Both girls have identified that they do not wish to move away from their father as they each enjoy a strong relationship with him. Both girls identify that Mr Swisher is approachable and emotionally available to them and each independently expressed concern that this relationship may not be facilitated should they move to England. The girls identify that their mother is angry at their father and not encouraging of their relationship with him.
48. Should the girls be ordered to go against their will, they may resent their mother for the move and this may place increased pressure on the already delicate relationship between [X] and
Ms Swisher. It is suggested that Mr Swisher may be unable to himself accept this decision, or encourage the girls to accept such a decision, and may in fact endorse the girls self-placing and ignoring the Courts decision. [X], at fourteen, and [Y], at eleven, are aware that they ought to have a say in decisions which affect them and may feel a strong sense of moral outrage, which would be directed at their mother if they are ordered to relocate.
49. Relocations are always difficult because so much remains unknown. It is uncertain whether the mother’s circumstances will be greatly improved in England and if this will correlate to improved mental health. Following from this, it is unknown that if her mental health and mood improve, whether or not this will have a trickle down effect on the girls. This is certainly possible, but it is also possible that the mother may continue to struggle with depression and the girls will be isolated from their other existing supports, most notably their father and friends. Positive involvement at school and strong peer relationships are important protective factors for young people and can mitigate against disruption. Importantly, the girls are at a developmental stage whereby these relationships are taking on increased significance as they separate from the family and develop their own identity. For these reasons, it is considered that relocation would not be in the girls’ best interests at this time.
50. It is unclear whether Ms Swisher will choose to relocate without the children. While the girls are both aware of their mother’s strong desire to return home, only [X] appeared to consider the real possibility that Ms Swisher may choose to leave without them. It would be hard for the girls to imagine this eventuality as their mother has been a central fixture of their lives. Although they speak positively of their father, they have little experience of the realities of him being primarily responsible for their care and his full time parenting capacity is untested. The fact that he has only just commenced living with Ms R suggests that there will be a number of changes that the girls will need to adjust to. Some of Mr Swisher’s comments regarding his plans for full time care appear uncertain and unrealistic. What he proposes represents a massive change from the care history the girls have long experienced. In an ideal situation, it is suggested that the girls would benefit from maintaining the existing attachment relationship with their mother, but at the same time be given the opportunity to spend more time with their father.
51. Should Ms Swisher choose to remain in Australia, it is recommended that consideration be given to the children remaining living with her but increasing the time they spend with their father. Ms Swisher has indicated that she would not want to leave the girls here without her. It is also imperative that she continue to receive appropriate counselling and support to manage her depression. An equal time arrangement is not considered viable at this time given the parents lack of communication and cooperation and the significant differences in their parenting approaches. It seems that Mr Swisher has adopted an inclusive and open style with the girls where he attempts to discuss and share information with them, including information about the current court action. Ms Swisher suggests that this approach is overly permissive with the girls and that he is motivated to win over the girls to support his application.
Mr Swisher on the other hand accuses Ms Swisher of refusing to negotiate or discuss issues with the girls or be emotionally available with them He suggests that she is excessively overprotective.
52. What is critical with navigating adolescence is consistency and parents taking a similar stand on important issues that their children face. It is concerning that [X], especially, is receiving very mixed messages from her parents and their opposing styles undermine both of their parenting in the longer term. It is important for the parents to develop a strategy to communicate about what they consider acceptable boundaries, routines and rules for her and that [X], and [Y], see the parents implementing these consistently. Both girls appear aware that their father does not support their mother’s rules and his actions do undermine
Ms Swisher’s relationship with the children. Showing [X] the latest affidavit, for example, is not helpful in quarantining her from the parental conflict and simply serves to further damage her relationship with her mother. Where children have inconsistent messages from the parents and inconsistently applied rules, there can be a lack of respect for any rules and a general disregard for parental authority. It appears that, historically, the parents considered this limit setting and decision making ultimately the domain of Ms Swisher. While separation has obviously necessitated some need for this to change, it is important that some common ground be reached. There is a real danger that the lack of commonality will create insecurity for the girls in the longer term.
53. [X] has expressed a desire to, in the long term, live with her father. She reports that she has an affinity with him and it seems that they share similar personality traits. It is suggested that this desire has also stemmed from the conflict in the relationship with her mother and the apparent independence and involvement she is allowed with him. It is not surprising that both girls would be drawn to the parent who appears to be the more inclusive, giving them information and discussing matters with them. Both girls are clearly enjoying spending one on one time with their father. [X] and [Y]’s time with their father has been limited to weekend recreational time where they have been the main focus of
Mr Swisher’s attention and Ms R has been sensitive to remain in the background. It could be that [X] has an idealised view of what life with her father may be like. Mr Swisher assuming full time care is untested and his ability to be physically available and set the girls routines is unknown. Also, although the girls appear to enjoy a good relationship with Ms R, it is not known how they will adjust to living with her and accepting her important relationship with their father.
54. [Y] appears to be an especially vulnerable child. She was guarded in the interviews and this is a pattern which her mother and the school describe. Even Ms R reports that in her view, [Y] has been “bewildered” by the changes to her family in the last year. It appears that [Y] has a warm relationship with her mother and is keen to remain involved with both parents. Her close bond with [X] is also an important source of support for her.
55. Separation in this family has been relatively recent and the parents are assessed as being at very different stages of their acceptance of the relationship ending. Although [X] and [Y] relocating is not considered to be in their best interests, a number of other options may be suitable. Consideration could be given to Ms Swisher taking an extended trip to England, to spend time with her family and supports. This would also give the girls the opportunity to experience what life would be like with their father. Ms Swisher could contemplate delaying her move to England until the girls have completed their education or some additional assistance could be provided to her to support her in financially setting up a life and home in Australia without Mr Swisher. It is recommended that the family be referred to an agency such a Relationships Australia to support the girls relationships with both parents and assist the parents to develop common parenting practices and approaches.
RECOMMENDATIONS
56. It is recommended that the girls not relocate to England with their mother.
57. It is recommended in the first instance, that the girls remain living with Ms Swisher and spend time with their father each alternate weekend from Thursday to Monday and on the alternate Thursday evening
58. It is recommended that the family be referred to Relationships Australia to develop some co-parenting strategies and to be assisted in supporting the relationship between [X] and her mother.
59. It is recommended that Ms Swisher be encouraged to return to England for a vacation to visit her family and supports.g
When the family consultant gave her oral evidence, she was clearly advised about the changes, including [X]’s move to live with her father, the mother’s clearly stated desire to return to the United Kingdom, irrespective of the orders that might be made in relation to [Y], and also the details of the property settlement. When asked whether any of the matters that have changed since the date of the report interviews changed her views, the family consultant reported that either proposal would result in a significant loss for [Y], but that, ultimately, she did not believe it was in [Y]’s best interest to relocate to the United Kingdom. This does not mean, however, that the family consultant did not have concerns about how she would cope without her mother.
She seemed keen to emphasise that if the Court accepted that [Y] should not relocate, and if the mother insisted that she would go anyway, that it was important to introduce a transitionary regime by which [Y] spend gradually increasing time with her father, before her mother moves. She also emphasised the importance to the children of both mother and father communicating to them that they support these changes.
When cross-examined by counsel for the mother, the family consultant was confronted with what was clearly the “elephant in the room”, that is, the risk that [Y] would feel that her mother has abandoned her, specifically in the context of [Y] remaining in Australia, and whether or not both parents communicated that this was a joint decision. Ms O felt that this was a real issue but that it was, nonetheless, possible for the parents to so communicate a decision that it would avoid, or at least greatly mitigate, [Y]’s perception that she was being abandoned by her mother. She agreed that she, that is, the family consultant, could have a role in arranging appropriate therapy for the family, should the Court make that decision.
There was very useful evidence from the family consultant about the “red flags” in [Y]’s behaviour that might demonstrate that she is not coping with the changes in her life which would occur on either proposal, and which might be indicative of her suffering grief. Ms O explained how the grief might be commonly manifested in obvious distraction with school work, less enjoyment with her friends, a diminution in self-confidence, social withdrawal, anger, and a reduction in trust. She also emphasised the need for both parents to be able to communicate sensitively with [Y], to encourage the relationship with the other parent, to be close to and understand her social and school environment, and to be prepared to intervene if there are changes in her behaviour indicative of grief or a sense of loss. I think it was very important for both parents to hear this oral evidence from the family consultant.
When pressed, Ms O also agreed that both the mother and the father, respectively, have the capacity to monitor these potential changes in [Y]’s life, and to intervene appropriately. She acknowledged that the father’s past involvement in the children’s life was not as great as the mother’s, but, ultimately, her opinion was that his capacity was as great as the mother’s.
The family consultant agreed, in cross-examination, that any expression of view elicited from [Y] clearly did not contemplate a scenario whereby the mother would move without her. Indeed, the family consultant indicated that, in her opinion, [Y] could not imagine that possibility. Certainly, this causes me to be very careful about what weight I attribute to any evidence about [Y]’s views.
Counsel for the mother undertook what I considered to be a robust reality testing of the family consultant’s views about how the father would cope in a household where he had the full-time care of both children, as well as maintained his current employment. She conceded that there would be significant changes in the father’s household that would need to be implemented in order to adjust. Ultimately, however, this did not detract from the family consultant’s views that it was not in [Y]’s best interest to relocate. I detected a real sense of concern in the family consultant about how the mother would cope if she returned to the United Kingdom at a time when both the mother and [Y] would be very vulnerable. This was particularly in the context of the mother’s depression which is reactive in nature, and which, of course, presents even greater challenges in new and stressful situations.
The other aspect of the evidence is that the family consultant emphasised the importance of not separating [X] and [Y], particularly at a time of intense change in their lives, such as their mother relocating to the United Kingdom. The strength of the relationship between the two girls, and the mutual support that they have to offer each other, are matters emphasised in the family consultant’s evidence and family report.
At the end of the day, I formed the strong impression that the family consultant remained of the view that it was not in [Y]’s best interests to relocate with her mother to the United Kingdom, notwithstanding the additional evidence that became available after the report was written. I sensed, however, that the family consultant may have been hopeful that the mother would remain in Australia if I did not allow [Y] to relocate. Having heard all of the evidence, I am not sure that that hope is well-founded.
I accept the evidence and the recommendations of the family consultant. Of course, this is not determinative, and I need to consider all of the other evidence as well as her evidence in the broader context of a consideration of the matters referred to section 60CC of the Act. Nonetheless, the recommendations of the family consultant are an important aspect of the evidence.
Meaningful Relationship
The evidence indicates that both of the children currently enjoy a meaningful relationship with both of their parents. There is the potential for significant change to this, on either proposal. There is no win:win scenario here. If the mother is, indeed, determined to relocate to the United Kingdom irrespective of the orders that I make in relation to [Y], there is going to be a change in the nature of the meaningful relationship that exists between [Y], and either her mother or father. One can only hope that the existing relationships are so strong that the dramatic disappearance of one parent can have its inexorable consequences mitigated by contact which will, hopefully, be a few times a year in person, and, certainly, more frequently by alternative means of communication.
Protecting the Children From Harm
After considering all the evidence, I don’t believe this is a case where either scenario involves the risk of harm to these children. I have considered the mother’s evidence about her depression. I formed the view during the evidence that she was minimising the nature and extent of this problem and I think it was a significant omission in her case not to provide expert evidence about the nature of her condition and how it might impact on parenting. This was especially critical in the context of the inherent stress of a relocation back to the United Kingdom. Nonetheless, this family has coped with the mother’s depression for all of their life and thus I am reassured there are no harm issues.
Views of children
This is a case where I am not prepared to base my decision on what [Y] may have expressed by way of views to either of her parents, or to the Family Consultant. Any parental reports about [Y] expressing a view are unreliable. All members of this family are caught up in a difficult, stressful and emotional separation which renders unreliable any expression of views or report of the same. True it is that [Y] has expressed a view of the Family Consultant but, in context, she did not appreciate at the time that her mother would relocate to the United Kingdom whether or not [Y] was permitted to go. This significantly reduces the weight to be attached to this expression of views. In any event, in a difficult case like this, I would not want [Y] to feel that she has been responsible for the decision of the court. I therefore decline to take into account anything she may have said about where she wants to live.
Nature of children’s relationships
I accept that [Y]’s strongest relationship is with her mother. The mother’s evidence at paragraph 83 of her affidavit is a powerful and moving insight into the nature of their relationship. But there are two other significant relationships that will be effected by the mother’s proposal. She identified to the Family Consultant that she would not like to be separated from her sister [X]. Both parents acknowledged in their evidence the strength of the sibling relationship. The Family Consultant gave evidence about the importance of this, especially at a time in the children’s lives when they are vulnerable because of the change happening around them. [Y] clearly has a good relationship with her father. The Family Consultant reported that “both girls radiated around their father, seeking him out and sitting close to him … the girls were animated and jovial” with him. Regrettably the mother, in her evidence, sought either to minimise the nature of both girls’ relationships with the father, or was possibly unaware of it. The Family Consultant’s observations of the girls with their mother presents a strong contrast – “… the atmosphere was slightly more subdued and [X] appeared somewhat sullen while [Y] seemed to try to diffuse any tension with laughter.”
The mother’s commitment to return to the United Kingdom means that a change in [Y]’s relationship with one parent is guaranteed. But the father’s proposal means that the sibling relationship is preserved.
Willingness and ability to facilitate ongoing relationship
This consideration becomes critical in a case where the parents and children may be separated by vast distances, and when physical contact may be as little as twice annually. The father’s cross-examination does raise issues about his past unwillingness to facilitate and encourage the girls’ relationship with their mother. His failure to ensure that the girls spent time with their mother on Mother’s Day reflects poorly on him. That he tried to explain this as “responding to” the mother’s refusal to allow the children to spend time with him on Boxing Day is another poor reflection on him, and on the mother if it is true. Children play tit for tat. More is expected of parents.
Further problems are derived from the very different parenting styles of the parents that have come to the fore since separation. The girls are very much aware that their father does not support their mother’s rules.
It is also apparent from the mother’s evidence that she does not think very highly of the father as a parent. One must recognise that even the mother admitted that her depression more often than not, occurs after periods of change. In the Family Report, [Y] expressed a concern that if she moved overseas the mother would be unlikely to support regular contact with her father.
The powerful combination of a mother who does not think highly of the father, a very significant change in the mother’s life, and a vulnerable mother and child, all mean that there is a concern about her capacity to facilitate and encourage [Y]’s relationship with her father, from the United Kingdom.
This is an important consideration in this case. Of its own it is not determinative. There are reasons to have doubts about both parents as regards this consideration. Whilst my doubts about the father are somewhat stronger than the mother, he is not only more accountable to the court in the future because he remains in Australia, but he also demonstrated flashes of insight at times, e.g. in relation to Mother’s Day.
Likely effect of change
Whatever happens, there will be major change for [Y] – one of her mother or father will go from becoming a regular part of her life, to a far less regular part of her life. As I have discussed above, however, the mother’s proposal is the one that heralds far greater change for [Y], both qualitatively and quantitatively. A move to the United Kingdom takes her away from her sister, as well has her peer group, something which becomes increasingly important at her developmental stage. [Y] reported to the Family Consultant that she has found it difficult to fit in socially at times, and that she has a small number of close friends which she would miss greatly should she move away. Even the mother admitted that, on her proposal, they would be moving to an area in which they had not lived when previously in the United Kingdom. Both parents identified [Y] as the more vulnerable child, and yet the mother’s proposal exposes her to the greatest change thus rendering [Y] even more vulnerable. The mother’s perception of [Y] as being resilient at paragraph 37 of her affidavit is in stark contrast to the more objective observations of the Family Consultant.
I think it is also inconsistent with what she herself told the Family Consultant. I believe the mother really has failed to appreciate the nature and extent of the change for [Y] that would be precipitated by an acceptance of her proposal.
Practical difficulty and expense of contact
This too is a significant issue on the facts of the case. Both parties seem to contemplate physical contact twice annually, one in the United Kingdom and one in Australia. In terms of physical contact, this should be a baseline, but one must acknowledge major issues of distance and cost. If I allow relocation of [Y], the relocating parent must bear the cost of travel to and from Australia for [Y] once a year. If I don’t allow relocation, the father must bear the cost of [Y]’s travel once a year, and the mother must travel to Australia at her expense at other times. In his evidence the father did recognise that if relocation was not allowed, and [Y] was not adjusting well to her mother’s absence, he may well have to fund additional travel for her, and to set aside an emergency fund for her. I encourage him to do so.
Parental capacity issues
The only significant issue that arises in this case about parental capacity relates to the mother’s depression, and the extent to which it will adversely impact on her parenting, especially when she is in the United Kingdom. She admits that she is depressed, and has been for many years. This is confirmed by the documents produced on subpoena by her GP, Dr S. The mother agrees that, more often than not, her depression sets in following change in her life. Despite this, she did not think that her move to the United Kingdom was likely to trigger her depression. She indicated that she had been prescribed a medication for her depression, but was not taking it. She was concerned that this medication might be addictive. Indeed Dr S’s notes indicate that on 15 December 2009 she was prescribed Cymbalta and Xanax for her depression and panic attacks. She was referred to her current treating psychologist, Ms J on that date. By 12 January 2010 the doctor notes that the mother was improving since seeing the psychologist. On 3 February it was noted that she was feeling better within herself, and never missed her appointment with the psychologist. On 13 April it was noted that the mother was improving but “her energy level is not 100% … still has panic attack and moments of social isolation.” By 9 June it is apparent that the mother was feeling acutely the stress of these proceedings, and this theme is present in the notes for appointments on 17 June. The notes do tend to confirm that the mother was not taking Cymbalta as prescribed.
The mother’s own evidence about her depression is found at paragraphs 13-16, and 165-172. In cross-examination she agreed that at a time when she was considering returning to the United Kingdom with both girls she found herself “in a very dark a desperate place” and that, at that time, she considered suicide as a way out.
In cross-examination the mother agreed that she had seen a Dr L to prepare a medical report in relation to her mental health, for the purposes of these proceedings. She also agreed that her psychologist Ms H has also been asked to prepare a report. She agreed that this would have been relevant and important information for the court if these reports had been available. No such reports were tendered in evidence in the mother’s case. I agree with counsel for the father who submitted that the absence of this evidence is a significant gap in the mother’s case.
There are clearly unresolved issues about the extent to which the mother’s depression will adversely impact on her parenting of [Y] should relocation be allowed. Whilst I accept on the one hand that the mother’s depression occurred in the context of an unhappy marriage that involved frequent changes in their lives, and that a relocation provides distance between the mother and the father, on the other hand I must recognise the enormity of the change proposed by the mother, in financial, physical and emotional terms. For one thing I am not convinced that the mother has emotionally dealt with the breakdown of her relationship with [X]. Indeed the impression formed is that, at least for the time being, she has compartmentalised this part of her life. There may well be unfinished business here. Emotions are not easily compartmentalised. The Family Consultant agreed in cross-examination that the mother has yet to deal with her own sense of loss and grief in relation to [X]. In any event the enormity of the change proposed by the mother is, in my mind, a significant risk factor for the capacity to parent [Y] at a time when she too may be highly vulnerable.
I recognise that there are issues about the father’s parental capacity as well. The focus here is on his capacity to meet their emotional needs. I am satisfied about his proposals to meet their physical and intellectual needs both in terms of him restructuring his work commitments, and in terms of the support that will be provided by his partner, Ms R. The ages of [X] and [Y] mean that their dependence on him for non-emotional needs will be progressively less. The concerns I have is about emotional needs. His track record with consistently spending time with the children in the early separation period is less than exemplary, but it seems to have improved with time. His inconsistent parenting and lack of appreciation of the problems this creates reflects poorly on his capacity to provide for the girls’ emotional needs. Despite all of this he showed insight and commitment to deal with these issues on cross-examination. In particular I was impressed with his appreciation of what grieving [Y] might experience if her mother relocates to the United Kingdom without her. Moreover the Family Consultant was satisfied that he had the requisite capacity to meet their emotional needs.
On balance, I remain more concerned about capacity issues relation to the mother than the father. This in itself is not determinative, but is an important factor.
Attitudes to children and parenthood
I am not critical of the mother’s choice to return to the United Kingdom. As I have previously indicated I both accept and understand her decision. I am thus not prepared to say that it reflects a poor attitude about her children, or to the responsibilities of parenthood. Nonetheless the decision I need to make is not about the best interests of the mother, it is about the best interests of her children.
There are probably aspects of the father’s behaviour during the relationship that reflect a poor attitude towards the children and to the responsibilities of parenthood. He agreed in cross-examination that there were decisions made in the post-separation period where it would have been better to consult the mother. The manner in which he handled the revelations contained in [X]’s diary was probably not the best. He undermined the mother’s authority at times after separation, in a context where he was perfectly happy for her to do most of the parenting before separation. He agreed that he lost his temper and became loud sometimes, and used offensive language at times in front of the children. I acknowledge that these are all negatives, but they must be seen in the broader context of a case where the best alternative for [Y] – that the mother remains in Australia – is simply not available because of her mother’s decision. When the best alternative is not available, what may well be important and decisive considerations in other cases, became far less significant in the present context.
Is relocation in the best interests of [Y]?
Despite Mr Harper’s powerful advocacy on behalf of the mother in closing submissions, I am unable to find that relocation is in [Y]’s best interests. I am satisfied, on balance, that in the circumstances of this case, the father will be better able than the mother to deal with the sense of loss and grief that [Y] will suffer when her mother moves to the United Kingdom. The mother’s emotional and psychological vulnerability is too great for me to be satisfied that she will better be able to manage these issues than the father. There are too many unresolved issues about her depression. The magnitude of the change proposed by the mother is too great, and it fails to adequately consider the strength of [Y]’s relationship with both her father and sister. I am not satisfied that the issues and concerns about the father, referred to in these reasons, are significant enough to exclude him as primary carer for [Y].
I have no doubt that the best outcome for [Y] is that her mother remain in Australia. I accept that she won’t. The focus now changes to implementing a transitionary regime whereby [Y] spends progressively increasing time with her father so that by the time her mother goes to the United Kingdom, the impact of this will be mitigated. The orders I will make will reflect this. The family needs therapeutic assistance to help manage the dramatic changes that awaits them. The Family Consultant has offered to be a resource in terms of suggesting an appropriate therapist. I will take advantage of this. I hope that the mother will not leave Australia before the end of March 2011. That allows time for the family home to be sold, and it is a time frame that allows for an orderly transition of [Y] from one home to the other.
Both parties seek equal shared parental responsibility. Thus I am requested to consider equal time and substantial and significant time within the parameters of the proposals advanced by the parents. On the mother’s proposal neither equal time nor substantial and significant time is reasonably practicable. From the time that the mother departs for the United Kingdom, even on the father’s proposal, neither equal time nor substantial and significant time are reasonably practicable. I am satisfied that the best interests outcome for [Y] is as I have described above.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 8 November 2010
Schedule
Proposed Orders Sought by the Father
That the parents have equal shared parental responsibility of the children namely [X] born [in] 1996 and [Y] born [in] 1998.
That the children live with the father.
That the children spend time with the mother , if she is located in the [L] area follows:
a.from the conclusion of school Friday until the commencement of school the following Monday;
b.for one half of all school holidays as agreed and failing agreement for the first half in even numbered years and the second half in odd numbered years;
c.in even numbered years from 9 am Boxing Day until 6 pm on the 27 December and in odd numbered years from 5pm Christmas Eve until 9am Boxing Day;
d.on Father’s day from 9am until 5 pm if it doesn’t fall on a weekend;
e.in the event the children are with the father on Mother’s day he will return them to the mother at 9am on Mother’s day;
f.for a period of four hours on the girls birthdays as agreed and failing agreement, if on a week day, to be collected from school at 3pm and returned at 7pm and if on a weekend from 4pm until 8pm if on a weekend;
g.at such other times as agreed.
That the children spend time with the mother , if she located in the United Kingdom area follows:
a. At any time in Australia provided the mother give one months notice of her intention to travel to Australia to see the children
b. In even numbered years during the Christmas school holidays and include Christmas for a period of 4 weeks inclusive of travel time
c. In odd numbered years over the Easter or July School holiday break but for no longer than 3 weeks inclusive of travel time
d. That when the children are in England, the mother allow them to visit with their paternal grandmother and Uncle and cousins
e. The costs of the return airfares between England and Australia be met by the mother, but any internal travel costs caused by the girls visiting the fathers family shall be paid for by the father.
f. at such other times as agreed.
Proposed Orders Sought by the Mother
That the parents have equal shared parental responsibility of the children namely [X] born [in] 1996 and [Y] born [in] 1998 ("the children").
That each party have sole responsibility for the day to day decision making of the children while they are in their respective care.
That [Y] live with the mother and that the mother be permitted to relocate with [Y] to England.
That [Y] spend time with the father as follows:
4.1.During the father's holidays from work from December to January at dates and times to be
agreed with such time to coincide with the [Y] 's Christmas school holidays and with such time to be spent in England.
4.2.During the English summer school holidays (mid-July until early September) at dates and times to be agreed between the parties and with such time to be spent in Australia.
4.3.At any other times as agreed between the parties.
So as to give effect to the above Orders that require [Y] to spend time with the father in Australia:
5.1.That [Y] travel by air from the nearest airport in the UK to Sydney Airport accompanied by the mother or the father as agreed between the parties.
5.2.That the mother be responsible for the payment of the cost of the return airfares between
England and Australia in relation to the [Y] 's travel to spend time with the father.
5.3.That the mother will be responsible for arranging flights and will ensure that all booking details are provided to the father no later than 28 days before the proposed departure date.
That the children communicate with the father on a regular and flexible basis when the children are
living with the mother via e-mail, SMS, webcam and telephone with the father or the children to initiate the communication.
That the children communicate with the mother on a regular and flexible basis when the children are spending time with the father via e-mail, SMS, webcam and telephone with the mother or the children to initiate the communication.
The Court Notes:
The mother indicates
8.1.that she would welcome, and do her best to facilitate, [X] visiting and communicating with [Y] when [X] would wish to do so;
8.2.that she would welcome the father bringing [X] with him to the UK for periods when he is visiting [X] so that the children would see each other in person at least every six months.
0
0
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