T and O
[2006] FMCAfam 709
•22 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & O | [2006] FMCAfam 709 |
| FAMILY LAW – Planned relocation by mother of children aged 9 and 8 from Darwin to M – father seeks shared care arrangement in Darwin and to restrain mother from removing children from Darwin – presumption of equal shared parental responsibility – whether children can have meaningful relationship with father in event or relocation – consideration of concept of freedom of movement – evaluation of parties’ competing proposals – consideration of father moving to maintain relationship with children. |
| Family Law Act 1975 – ss.60B, 60CC, 61DA, 64B, 65D, 65DAA, 65DAE |
| U & U [2002] FLC 93-112 B v B [2006] FamCA 1207 AMS v AIF; AIF v AMS (1999) FLC 92-852 A v A: Relocation Approach (2000) FLC 93-035 Bolitho & Cohen (2005) FLC 92-224 B v B: Family Law Reform Act (1997) FLC 92-755 D and S V (2003) FLC 93-137 Fragomeli & Fragomeli (1993) FLC 92-393 |
| Applicant: | S C T |
| Respondent: | N R O |
| File number: | DNM453 of 2005 |
| Judgment of: | Brown FM |
| Hearing dates: | 6 and 7 December 2006 |
| Delivered at: | Darwin |
| Delivered on: | 22 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bowen |
| Solicitors for the Applicant: | Bowen Lawyers |
| Counsel for the Respondent: | Ms Farmer |
| Solicitors for the Respondent: | Withnalls |
ORDERS
The parties have equal responsibility for making decision regarding major long term issues pertaining to the children of the relationship J A T born ** January **** and M C T born * August **** (hereinafter referred to as “the children”).
From after 22 January 2007 the mother be permitted to live with the children in M in the State of Q and thereafter the children live with the mother.
In the event that the father does not elect to move to M the children spend time with the father as follows:
(a)For the whole of the mid year (June/July) Q school holiday in 2007 and each such mid year holiday thereafter;
(b)For 4 continuous weeks of the Q December/January school holiday in each year so that such 4 week period includes Christmas Day in 2007 and each alternate year thereafter but does not include Christmas Day in 2008 and each alternate year thereafter;
(c)For either the whole of the March/April Q school holiday in each year or the whole of the September Q school holiday in each year provided the father gives 28 days notice in writing in respect of the holiday he proposes to spend with the children and is responsible for the payment of all transport costs in respect of the children spending such period with him;
(d)At any other times as may be agreed between the parties from time to time.
The mother bear the costs of the air travel necessary for the children to spend time with the father pursuant to orders 3(a) and (b) hereof with the mother to be responsible for booking and paying for the cheapest available economy airfare for the children between M, Darwin and return 28 days prior to the time scheduled for the travel and advising the father in writing of the flight details, including flight numbers and times of arrival and departure.
In the event that the father elects to move to live permanently in M during 2007 the children spend time with him as follows:
(a)During school terms in alternate weeks from after school on Thursday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday);
(b)For half of all school holiday periods, the halves to be agreed between the parties and failing agreement to be the first half in years ending with an odd number and the second half in years ending with an even number;
(c)On each of the children’s birthdays, in the event that the children are not otherwise with the father, at times to be agreed between the parties and failing agreement to be from 3.30pm until 6.30pm;
(d)On Father’s Day should the children not otherwise be with the father, from 9.00am to 6.00pm on Father’s Day;
(e)In the event that Mother’s Day falls on a day on which the children would be otherwise with the father pursuant to these orders then the father shall return the children to the mother at 9.00am on Mother’s Day;
(f)At any other times as is agreed to between the parties.
In the event that both parties are at the same location at Christmas the party who is not otherwise entitled to spend time with the children at Christmas pursuant to these orders shall spend time with the children from 6.00pm on 25 December to 6.00pm on 26 December.
The father communicate with the children by telephone on occasions when the children are not in his care on each Tuesday and Saturday between the hours of 6.00pm and 7.00pm at the time zone at which the children are located.
The mother communicate with the children by telephone on occasions when the children are not in her care on each Tuesday and Saturday between the hours of 6.00pm and 7.00pm at the time zone at which the children are located.
The parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone numbers, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within 2 days of such change.
If either party intends to travel away from their usual place of residence with the children during any holiday period they provide the other with an itinerary setting details of departure and return and the address and telephone number of the place where the children will be staying predominantly during such holiday.
The mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the children.
The mother authorise the principal of each school attended by the children from time to time to send to the father:
(a)A photocopy of each school report concerning each child;
(b)An order form for each school photograph of each child.
The father be at liberty to attend or visit the school or schools attended by the children from time to time for events, activities or functions routinely attended by parents.
The father and mother be restrained and an injunction be granted restraining them from denigrating the other, the other parent’s partner or the other parent’s family or permitting any other person in their presence to denigrate the other parent, the other parent’s partner, or the other parent’s family to or in the presence of the children.
All outstanding applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM453 of 2005
| S C T |
Applicant
And
| N R O |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. S C T “the father” and N R O “the mother” are the parents of J A T born 15 January 1997 and M C T born 6 August 1998. Mr T and Ms O have been separated for nearly seven years. During that period, the children have lived mainly with their mother but have regularly spent time with their father. This arrangement is reflected in Family Court orders, which were made in Darwin on 3 July 2001.
Now Ms O and her current partner, M D, want to move to live in M in Q, so that Mr D can pursue employment opportunities there. Ms O wishes to take the children to live with her in M. Mr T does not agree to the children moving. It would be his preference that the children live with him and Ms O in a shared care, week about arrangement, in Darwin. If Ms O does go and live in M, Mr T would want the children to live with him in Darwin.
There is no doubt that J and M have a close and loving relationship with each of their parents. Both children also have close associations with Darwin, where they have each lived for the whole of their lives. Mr T, and so the two children, are part of a large extended family, most of whose members live in Darwin. Mr T has no interest in moving away from Darwin.
Ms O and Mr D believe that they will be better off financially in M. Mr T has not been regularly employed for some time now and has not paid child support to Ms O for many years. As a result, the main burden of financially supporting J and M falls on Mr D’s shoulders. This has led to a significant level of resentment on the part of Mr D and Ms O.
In addition, the parenting relationship between Mr T and Ms O is poor. The parties do not communicate well and are mistrustful of each other’s manner of parenting and lifestyle. Ms O believes this level of conflict between the parties has consequences for her and the children’s emotional wellbeing, particularly J, who has recently been displaying some disturbing behavioural problems. Ms O believes a move to M may remove her from a tense and difficult situation and make her personally much happier.
Neither the T nor the O/D household is in a strong position financially. If J and M do move to M and Mr T remains in Darwin, he will be restricted to seeing the children in school holidays only. The costs of the children travelling between M and Darwin will be high. It will be difficult for the parties to find the money necessary to fund this travel and to communicate about the necessary arrangements.
Mr T wishes to be involved in every aspect of J and M’s lives – their sporting activities; their education; and their intellectual and social development. At a basic emotional level, he wishes to spend as much time as possible with J and M, whom he loves dearly and wants to be a significant influence in their lives. His aspirations are reflected in recent amendments made to the Family Law Act 1975.
Although it is not his preference, Mr T has indicated that he will move to M, if the court makes orders that result in J and M living there in future. In such circumstances, he would want the children to live with him and Ms O on an equal basis, preferably week about. Ms O does not believe that such an arrangement would be in J and M’s best interests.
Mr T’s main objection from moving away from Darwin at this time is that it would be very difficult financially for him. He owns a house in Darwin, which he does not wish to sell. It may be difficult for him to find a tenant for the property. It will be expensive for him to move to M. In addition, he does not wish to move away from his family and friends and leave behind a business in Darwin, which deals in glowing novelty items, such as bracelets and swords. Mr T is currently in the process of establishing this business with his father.
As a compromise, Mr T has suggested that J and M’s move to M, with their mother, be delayed until the end of the school year in 2008. This will coincide with J starting high school at the commencement of 2009. Mr T believes a move at this stage will be less disruptive for both children, particularly J. It is a strong element of Mr T’s case that he does not wish the children to change school in their primary school years, if possible. A delay along these lines will also give him more time to arrange his affairs in Darwin.
Ms O and Mr D have another child together. This is M W D born ** July ****. Obviously, he is J and M’s half-sibling. As the three children have grown up in the same household, they have a close relationship with one another. Regardless of the outcome of these proceedings, Mr D has said he will go and seek work for himself in M. He believes he has the potential to earn significantly higher wages in M than Darwin and it would be irresponsible if he did not take up the opportunity for work he has been offered in M. If necessary, he will leave Ms O and the children behind in Darwin.
Ms O has said she will not leave Darwin without J and M. Accordingly, a possible outcome in this case is that Ms O, J, M and M will be living in Darwin and Mr D will be living in M. Mr D will only be able to visit Darwin infrequently. It will be difficult for him to maintain his relationship with M, who is a child of tender years. In such circumstances, it is likely that significant strains will develop in the relationship between Ms O and Mr D. It is likely that both will develop a significant level of resentment against Mr T, whose actions have led to the frustration of their mutual ambitions and resulted in the disruption of their family.
Mr T is suspicious of the mother and Mr D’s motives for wanting to move to M. He doubts Mr D will be able to obtain better paid employment in M. He also believes that Ms O and Mr D may be disappointed with life in M and will want to return to Darwin. He points to the fact that they have changed addresses, in Darwin, at least four times in the past few years. As a result, he does not believe that Ms O is capable of providing the children with stable living conditions. In his submission, this is another factor which suggests moving J and M to M will not be in their best interests.
As this brief introduction shows, this is a complex case, with several possible outcomes; namely:
·J and M relocate to M immediately with Ms O. Mr T remains in Darwin and sees the children in school holidays. Significant issues arise regarding the children travelling between M and Darwin in this eventuality.
·J and M relocate to M with Ms O. Mr T elects to live in M as well and there is an arrangement whereby the parties have the shared care of the children, on a week about basis or Mr T spends “substantial and significant time” with them. Ms O would be opposed to such an outcome, which she believes would not be in the children’s best interests. Some other form of order is made in respect of the children spending time with the parties.
·An order is made preventing the children’s place of residence being changed from Darwin on an indefinite basis. If this occurred, it would be necessary for the court to consider appropriate arrangements for the care of J and M. Should they live predominantly with Ms O; predominantly with Mr T; or week about with them both?
·A moratorium is placed on the mother preventing her moving J and M from Darwin until the end of 2008 or such other date as the court considers appropriate.
Each of these outcomes has permutations within it and each has potentially both positive and negative implications for J and M and indeed for the parties themselves, as well as for Mr D and M. The court is required to examine each of those outcomes, from the perspective of J and M’s interests and determine which of them is likely to serve those interests best. In this, as in all cases involving children, the best interests of the children concerned are the paramount consideration.
However that is not the end to the matters, which the court must consider. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose. Pursuant to rights read by the High Court into the Australian Constitution, Australians have a right to freedom of movement. This right pertains just as much to parents, as to other citizens. At the same time, pursuant to the Family Law Act, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term. These principles are frequently difficult to reconcile in relocation cases, and this case is an example of such difficulty.
There is no satisfactory outcome in this case. The various options available cannot be manipulated, like the surface of a Rubik’s Cube, to reach a perfect result. Both parties wish to play as large a role as possible in J and M’s lives, as they grow to maturity. At the same time, Ms O wishes to live in M, where she and Mr D will be more financially secure and happy. Mr T does not wish to move away from Darwin, where he has lived for nearly all his life and where most of his family live. He will be bitter and resentful, if compelled to move to M, just as Ms O will be if she feels compelled to remain living in Darwin, effectively against her will. Inevitably, regardless of the outcome in this case, one or other of the parties will feel hard done by.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
In U & U[1] Hayne J said:
“What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[1] U & U [2002] FLC 93-112 at 89,102
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their children should live, it is the best interests of the children concerned which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the children concerned. It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent, as to where he or she wishes to live in future.
The balancing of these considerations has been described by Warnick J as both “a delicate interplay of concepts” as well as “an imbroglio of principles.”[2] The level of complexity is intensified by the fact that the Commonwealth Parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Accordingly, the law relating to arrangements for the parenting of children is not well settled, particularly in regards to the issue of parental relocation.
[2] See B v B [2006] FamCA 1207 judgment delivered 15 November 2006 at paragraph 1
The competing applications and the history of the litigation
The father was born on ** August **** in Darwin. The mother was born on ** December **** in Alice Springs. The parties began their relationship in early 1997. Accordingly, the father is not J’ biological father. J’ biological father is S H. The mother has not had any contact with Mr H since well before J was born. She does not know where Mr H currently lives.
In recognition of the significant relationship between Ms O and Mr T, around the time J was born, Mr T was entered on J’ birth certificate as his father. This registration was made on * April ****. It is common ground between the parties that Mr T has fulfilled the role of J’ father since this very early stage. J was born in Darwin on ** January **** and has lived in Darwin ever since. Currently he is in Grade 4 at B Primary School. M was also born in Darwin on * August ****. Currently, he is in Grade 2 at B Primary School. The parties finally separated in late 1999. Since that time, both J and M have lived predominantly with their mother.
In January of 2000, the father commenced proceedings in the Family Court at Darwin, seeking orders that both children should live with him. The mother opposed this application. Ultimately the parties’ competing applications came on for final hearing before Collier J, in Darwin, on 3 July 2001. Following a contested hearing, His Honour made the following orders:
“1.That all existing parenting orders in relation to the two children be and they are hereby discharged.
2.That the children J A T born ** January **** and M C T born * August **** reside with the mother.
3.That the parties retain joint responsibility for making decisions about the long term care, welfare and development of the said children.
4.That either party have the sole responsibility for making decisions about the day to day care, welfare and development of the said children whilst the children are with that parent.
5.That the father have contact to the said children as follows:
a) Each alternate weekend from 6.00pm Friday to 6.00pm Sunday, commencing Friday 6 July 2001;
b) Each week from 5.00pm Wednesday until 9.00am Thursday, commencing Wednesday 4 July 2001.
6.That in respect of the contact ordered above, the father shall collect the children from outside Coles Supermarket at P at the commencement of each period of contact, where the mother shall make the children available, and return the children to the mother at that supermarket at the conclusion of each period of contact.
7.That until the children commence school, the father have contact to the said children for a period equal to one half of every school holiday period.
8.That once the children commence school, the father is to have contact to the children for one half of each and every school holiday period as agreed between the parties, and failing agreement, for the first half in years ending in an odd number and the second half in years ending in an even number.
9.That the party who does not have the children with them for Christmas pursuant to these orders shall have contact to the children from 6.00pm on 25 December to 6.00pm on 26 December.
10.That in the event that Father’s Day does not fall on a contact weekend, the father shall have contact to the children from 9.00am on that day.
11.That in the event that Mother’s Day falls on a contact weekend, the father shall return the children to the mother at 9.00am on that day.
12.That so far as the contact changeover for Christmas Day is concerned, the party to have the children pursuant to these orders shall collect the children from the other party at that party’s residence at 6.00pm on 25 December, and shall return the children to the other party’s residence at 6.00pm on 26 December.
13.That in the event that contact is due to commence on Good Friday, the father shall collect the children from the mother’s residence at the commencement of such period of contact, and shall return the children to the mother outside Coles Supermarket at P at the conclusion of such period of contact.
14.That the father have such other contact as is mutually agreed between the parties.
15.That the contact pursuant to Order 5(a) and (b) shall be suspended during school holiday periods.”
The father commenced the current round of proceedings on 18 October 2005. At this stage, he sought to discharge the earlier orders and inaugurate a week about shared care arrangement in respect of J and M.
The mother responded to this application on 14 December 2005. She proposed some slight extension to the time the father would spend with the children and proposed specific times for telephone contact and other special occasions. She also sought an order that Mr T not consume alcohol or any other illicit substance, during the times he spent with the children and that he contribute half of the costs of the children’s school fees, uniforms, books and other extracurricular activities. Otherwise she did not wish the orders of 3 July 2001 to be significantly altered. At this stage, she did not raise the issue of the children being relocated to M.
These respective applications were fixed for final hearing before the court on 15 May 2006 and a family report was ordered to be prepared. This report, prepared by Mr V, an experienced psychologist was released to the parties in April of 2006. During the course of the interviews for this family report, Ms O first formally raised the prospect of her relocating to M with J and M. As a result, Mr V made the following recommendation:
“I am very hesitant about making any recommendations about variation in contact until the relocation prospect is properly and fully clarified. As yet, Ms O is still waiting on further details before deciding to make such an application or not. If I were to recommend some variation in contact without there being an absolutely definitive decision about relocation, then the boys might very well be exposed to considerable uncertainty and undue pressure from all the concerned adults, given the strong views expressed by each of them on the subject, in addition to their perceptions of the current arrangement’s disruptiveness to the boys’ lives.”[3]
[3] See family report dated 18 April 2006 at paragraph 36
Given Mr V’s views and the uncertainty about Ms O’s plans, it was determined that the hearing scheduled for May of 2006 could not proceed. However, on 9 June 2006, the parties were able to agree on some interim arrangements for the care of the children. It was agreed that Mr T would contribute half of the cost of the children’s school fees, uniforms, school books and extracurricular activities; that the children would not be removed from the B Primary School; and that Mr T would collect and return the children for his periods of contact at their school, rather than at the Coles Supermarket. The aim of these orders was to reduce the opportunity for the parties to come into contact with one another and so minimise the potential for conflict between them.
Subsequent to these orders, the mother has confirmed her desire to move with J and M to M and, in the light of that, each party has amended his or her formal position. In addition, Mr V has prepared an addendum to his earlier report, which addresses the issue of the relocation. Mr V’s evidence has been of central importance in this case. Mr V’s second report was released to the parties on 9 November 2006.
In the light of the mother’s wish to relocate J and M to M, the father filed an amended application on 26 September 2006. It is that application which is currently before the court. In support of his application, he relies on the following documents:
i)An affidavit of himself filed on 18 October 2005;
ii)A further affidavit of himself filed on 4 December 2005;
iii)
An affidavit of his mother, P C filed on
4 December 2005;
iv)An affidavit of D J S filed on 4 December 2005;
v)An affidavit of A H filed on 4 December 2005.
The mother filed an amended response, in which she formally raised the issue of the children’s relocation, on 21 August 2006. In support of that application, she relies on the following documents:
i)An affidavit of herself filed on 14 December 2005;
ii)A further affidavit of herself filed on 5 December 2006;
iii)An affidavit of M D filed on 5 December 2006.
In a minute of the orders sought by him, filed shortly prior to the commencement of the hearing, the father indicated that he sought the following orders:
“1.That the parents have equal shared parental responsibility for the children J A T born ** January **** and M C T born * August **** (“the children”).
2.That the children reside with the Father at times as agreed to between the parents, but in default of agreement as follows:
a.during school semesters from the conclusion of school week for a period of one week and each alternate week thereafter, to commence on the first Monday after these orders.
b.On children’s birthdays at times as agreed to between the parents, should they fall on the day they would normally spend time with the Mother.
c.Liberal telephone contact at all reasonable times, but no less than on two occasions during the week the children live with the other parent between the hours 6-7pm.
d.For half of each and every school holiday period with the father to spend each alternate week with the children to commence as follows:
(i) at the conclusion of last school week before December 2006 school year, and each alternate year thereafter;
(ii)from second week of all holidays in 2007 and each alternate year thereafter;
(iii) from the first week of all school holidays in year 2008 and each alternate year thereafter.
e.on Father’s Day should it not fall on the day the children otherwise be spending time with the Mother, from 9am to 6pm on that day.
f.In the event that the Mother’s Day falls on a day the children would otherwise be with the Father, then the Father shall return the children to the Mother at 9am on that day.
g.or at such other times as is agreed to between the parents.
3.That the party who is not spending time with the children for Christmas pursuant to the orders, shall spend time with them from 6pm on 25 December to 6pm on 26 December.
4.That so far as the contact changeover for Christmas Day is concerned, the parent to spend time with the children pursuant to these orders shall collect the children from the other parent’s residence at 6pm on 25 December, and shall return them to the other party’s residence at 6pm on 26 December.
5.That the mother shall make all necessary arrangement to deliver the children to their extra curricular activities including rugby training and matches, and school events, that occur during the periods when the children live with her, and in the event that the mother is unable to do so, the mother shall give the father at least 24 hours notice of such inability and make the children available to the Father to deliver them to their extra curricular activities or school events.
6.That for the purpose of changeover each parent shall collect the children from school and deliver the children to school during school semesters, and during all other times the changeover shall be Coles Supermarket at P, or as otherwise agreed to between the parents.
7.That in the event that the mother shall relocate to Q, then the children shall live with the Father, and spend time and communicate with the mother as follows:
a.for the whole of Q mid-year school holidays in each year;
b.for the second half of 2006/07 Christmas school holidays and each alternate year thereafter;
c.for the first half of 2007/08 Christmas school holidays and each alternate year thereafter;
d.liberally by telephone at all reasonable times.
8.That the Father shall be responsible for all costs associated with the children’s travel to spend time with the Mother.
9.That the Father make all arrangements for the children to spend time with the mother during school holidays, and notify the Mother in writing providing itineraries not less than 28 days prior to impending travel.
10.That the Father nor the mother and/or the Mother’s partner consume alcohol or illicit substances 24 hours prior to spending time with the children.
11.That if either parent travels with the children away from their usual place of residence during the time they would be entitled to spend time with the children during holiday periods, they shall provide to the other parent as least 14 days prior to departure an itinerary containing details of the proposed dates of departure and return and the addresses and telephone numbers of the places where the children shall be living during their holidays.
12.That each party notify the other forthwith if any of the children are involved in an accident requiring hospitalisation or medical treatment, or is/are suffering from a serious medical condition and that each parent shall be permitted to obtain copies of reports relating to the children.
13.That the mother and the father be restrained and an injunction be granted restraining them from denigrating the other, the other party’s partner or the other party’s family or permitting any other person in their presence to denigrate the other parent, the other parent’s partner, or the other parent’s family to or in the presence of the children.”
From her amended response, the mother seeks the following orders:
“1.That the children J A T born ** January **** and M C T born * August **** (“the children”), reside with the mother.
2.That the parties have joint responsibility for the long term care, welfare and development of the children.
3.That either parent have the sole responsibility for making decision about the day to day care, welfare and development of the children whilst the children are with that parent.
4.That the mother be permitted to relocate with the children to Q.
5.That the children spend time with the father as follows:
5.1For the whole 2 week period of the Q mid year school holidays in each year;
5.2In the school holiday period of 2006/7 for the second half of the Christmas school holidays and in each alternate year thereafter;
5.3In the school holiday period of 2007/8 for the first half of the Christmas school holidays and in each alternate year thereafter.
6.That the father meet jointly the costs of all associated air travel for the children.
7.That the mother make all arrangements for school holiday contact and notify the father in writing, providing itineraries not less than 28 days prior to impending travel.
8.That the father not consume any alcohol or illicit substances 24 hours prior to or during any contact.
9.That if either party travels away from their usual place of residence with the children during their period of school holiday contact, they shall provide to the other party at least 14 days prior to departure an itinerary containing details of the proposed dates of departure and return and the addresses and telephone numbers of the places where the children shall be residing during the holiday.
10.That each party notify the other forthwith if any of the children are involved in an accident requiring treatment at a hospital or are diagnosed or are suffering from a serious medical condition and that each parent shall be permitted to obtain copies of reports relating to children.
11.That either party be restrained and an injunction be granted restraining them from denigrating the other party, the other party’s partner or the other party’s family or permitting any other person in their presence to denigrate the other party, the other party’s partner or the other party’s family to or in the presence of the children.”
During the course of her closing submissions, Ms Farmer, counsel for the mother, indicated that her client now proposed that the long end of year school holiday be divided between the parties, in the event of a relocation, so that the children spent four weeks of it each year with the father, provided that Christmas Day itself alternated between the parties. Ms Farmer has not specifically addressed the issue of equal shared parental responsibility and the application of the presumption created by s.61DA of the Act.
Both parties were represented by counsel in the hearing before me on 6 and 7 December 2006. In the case of the father, he was represented by his solicitor Ms Bowen. In the case of the mother, she was represented by her solicitor Ms Farmer. Ms Farmer indicated that she required the father, Ms C and Mr S to attend at court for cross-examination. Ms H was not required and her affidavit was admitted into evidence. Ms Bowen indicated she wished to cross-examine the mother and Mr D. Both parties had questions they wished to put to Mr V in respect of his two family reports.
The father and mother were both extensively cross-examined, as were Ms C and Mr D. Mr S was not able to attend court due to family responsibilities. His affidavit was admitted into evidence but the weight I can give to it is reduced because of the absence of cross-examination. In any event, his evidence was not greatly contentious. Mr V attended at court on 7 December 2006 and was cross-examined about his reports and conclusions by both Ms Bowen and Ms Farmer. His evidence was of central importance. Mr V’s family reports dated 18 April and 8 November 2006 were tendered into evidence.
In addition, the parties agreed that the school files of both J and M could be tendered into evidence before the court, as well as a number of police records, which had been subpoenaed. In particular I was provided with a copy of the school roll in respect of J and M’s attendance at school. These various documents, the affidavits referred to above and the oral testimony of the various witnesses comprise the evidence on which the determination of the parties’ competing applications is based. In these reasons for judgement, findings of fact are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned.
The parties’ respective cases in outline and the central issues
(a) The father’s case in outline
The father has raised concerns about the mother’s abilities to parent J and M. He is particularly critical of her in regards to the children’s attendance and punctuality at school. He asserts that they are not always provided with a proper nutritious lunch. He also asserts that the mother is not supportive of the children engaging in extra-curricular activities, particularly sporting ones.
It is common ground between the parties that J has significant behavioural problems, which manifest themselves at school. The father believes that these problems are related to J feeling frustrated that he is not spending sufficient time with his father. The father contends that J’ behaviour has improved since the orders of mid June 2006 were made, which resulted in an extension of the time the children spend with him.
The father asserts that the mother does not support or facilitate the children communicating with him by telephone. In such circumstances, he is apprehensive that she will not support his relationship with J and M, in the eventuality of them living from away from him in M.
It is the father’s case that the children are well settled in their current environment in Darwin and it would be extremely disruptive for them to change school at this point. He is a person who has an Indigenous background and is concerned that this aspect of the children’s background will not be fostered by a move to Q. He is also concerned that the children will not be able to spend sufficient time with their extended paternal family in Darwin, in the event of a relocation.
The father does not believe that the mother has provided the children with a stable home environment in the past. She has changed the children’s residence four times since early 2000. He asserts that the mother has not thought through properly the implications of her and the children’s proposed move to M and it is unlikely that the move will provide the benefits, financial or otherwise, which she advocates. The father asserts that he is able to provide the children with the more stable and established environment and is the more proficient parent. Whereas, on the other hand, the mother’s proposals are untested and shrouded by uncertainty. Certainly he does not accept that M is likely to offer superior educational opportunities for the children or that J’ behavioural needs will be better catered for there.
The father has a negative view of Mr D and believes he is a poor role model for the children. He asserts that Mr D often makes derogatory comments about him to J and M. He further asserts that Mr D is a heavy and regular drug user. He himself denies any illicit drug use on his part.
For these reasons, the father is opposed to the children being relocated to M and believes that they would benefit from being able to spend more time in his care. His preference would be a week about arrangement but as an alternative he seeks the extension of the current order to include both Thursday and Monday evenings.
(b) The mother’s case in outline
The mother denies that she is a poor or neglectful parent. It is her position that she has provided the larger proportion of care required by the children, both before the parties separated and certainly since. She asserts that the father is determined to undermine this central relationship in the children’s lives and is derogatory and demeaning of her and Mr D to J and M.
It is her position that one of the main benefits of her and the children relocating to M is that it will protect her from the abusive and dysfunctional parenting relationship she has with Mr T, the negative attributes of which she believes Mr T seems determined to perpetuate. By implication the mother is concerned at the potential detrimental consequences for the children of the parties’ poor parenting relationship. Certainly she does not believe that the relationship will be able to sustain a shared care regime for J and M. It is her perception that the relationship between her and Mr T is getting worse rather than better. She feels worn out by what she sees as constant conflict.
One of the central planks of the mother’s case is that she and the children will be better off financially in M, where Mr D has the opportunity to obtain training and work as a crane operator. From her perspective, this is an important consideration given the almost total lack of financial support the father has provided to her for J and M, since the parties separated. The mother also asserts that J’ behavioural issues will be better managed in M.
It is the mother’s position that the children have expressed a strong view that they wish to move to live in M, which the court should consider. It is the father’s position that the children are influenced by the prospect of being able to visit tourist attractions in Q but that they have no proper appreciation of what life will be like for then in M, particularly being separated from their father for extended periods. It is common ground between the parties that neither the mother nor the children have ever visited M, although Mr D has strong connections with the town.
The mother asserts that the father is heavily involved with marijuana, both as a user and dealer of the drug. It is her case that the children have been exposed to this behaviour and it is detrimental to their best interests. In particular J brought home five bags of marijuana, which the mother asserts can only have come from the father’s home. The father denies any involvement with illicit drugs.
(c) Issues
Accordingly the following issues arise to be determined by the court on the evidence available before it:
·What is the nature of the parties’ parenting relationship? Is it likely to be amenable to the shared care of the children? Is one of the parties more responsible than the other for its current poor state?
·What are the attributes and qualities of each of the parties as parents?
·What is the relevance, if any, of drug use in the case? Is the evidence sufficient to make findings in this regard?
·What are the respective financial positions of each of the parties? Is this a relevant matter in respect of the mother’s proposed relocation?
·What are the children’s views on the proposed relocation? If the children do have a view about the matter, what is their level of insight into the issue and what factors are likely to have influenced them in reaching that view?
·Is it possible to attribute some cause to J’ behavioural issues? If so, are these issues likely to be better addressed if J lives with the mother in M or remains in Darwin?
·What is the relevance of the children’s Indigenous background? What will be the potential consequences for them of being unable to spend frequent periods of time with members of their extended paternal family in Darwin, particularly their grandmother?
·Obviously and most fundamentally, it will be necessary to contrast and compare the parties’ proposals and assess the plus and negatives involved from the perspective of the children’s best interests.
The Evidence and Findings
Mr V described Mr T as “a genial big brother”.[4] By this expression, Mr V indicated his impression was that the father was likely to want to be “more on side” with the children, rather than confronting them, as a parent sometimes had to do and set boundaries for them. These impressions accorded with my own. I do not question Mr T love and devotion for J and M but I believe that Ms O is likely to have provided more of the “nuts and bolts” parenting of the children, particularly in regards to such boundary setting and the assumption of responsibility for the children.
[4] See Family Report dated 18 April 2006 at paragraph 23
Ms O impressed me as a considered and thoughtful witness. She too was clear in her commitment to J and M. It was obvious to me that, she has not in the past and does not currently hold, Mr T in a good light. Given the many years which have passed since the parties separated, it seems unlikely that she will ever change her opinion of him. However, in her evidence, she acknowledged the children loved their father very much and did wish to spend more time with him. This concession and my other impressions of her led me to the view that Ms O was a frank and honest witness, whose evidence could be relied upon. I think she is likely to have a considerable degree of insight into the issues currently confronting J and M and the factors which influence their emotions.
Somewhat begrudgingly, I thought, Mr T indicated that Ms O was a “good mother [but in his view] there was need for improvement.” In making this comment, it seemed to me that he displayed little ability to empathise with the mother and her situation. She has the care of three children; her partner is in receipt of a modest wage; she receives virtually no child support from him. The mother’s lot is a difficult one. However, the father was unwilling to concede that there were any significant issues to do with his parenting, arising in the case, particularly in regards to financial issues. Rather, he is quick to be critical of Ms O and accept no responsibility himself. Overall I consider that Ms O is likely to have considerably more insight into the children’s needs and that her evidence is likely to be more reliable than that of Mr T.
The mother seemed to me to have a more reflective personality. Both parties acknowledged that their parenting relationship with one another is very poor and unlikely ever to improve. Both blamed the other for this parlous state of affairs. My impression of the mother is that she is likely to withdraw from conflict by trying to ignore it. On the other hand, the father is likely to relish it and, where ever possible, stand on his rights. Although both parties must bear some responsibility for their poor relationship, my impression was that Ms O is not the main driver in this regard.
(a) Financial Issues
The mother provided detailed evidence of her and Mr D’s current financial circumstances. Mr D is currently a security officer, employed by C. Ms O is a swimming instructor, who works part time. The family live in rented accommodation. In total, their net family income, together with the relevant family tax benefits and allowances, is $1,941.05 per fortnight. Ms O estimates their recurrent fortnightly expenses as being $1,935.51. Their major expense, per fortnight, is rent of $500.00. I was impressed that the mother commits $84.00 per fortnight for a computer maths tutor for the children. This is a substantial sum for her, and in my view, is indicative of her commitment to the children’s education.
It is common ground between the parties that Mr T provides no direct financial support to Ms O in respect of J and M. I accept the mother’s evidence that it is a struggle for her and Mr D to raise J, M and M. At present, they have no capacity to save any money at all, as their expenses almost equal their income. I also accept the mother’s evidence that the father has never provided any direct financial assistance to her for J and M, since the parties separated in 1999. The mother has in the past formally applied for an administrative assessment of child support.
This issue of financial support is a major irritant in respect of the relationship between the parties themselves and between Mr D and the father. I can well understand why Mr D would be somewhat resentful that he is essentially raising J and M. In July of this year, the mother sought court orders to compel the father to make some contribution towards the children’s educational and extra-curricular expenses. I accept that up to this point, these expenses had largely been borne by her and Mr D.
The father was less forth coming about his financial circumstances and I am concerned that he has not been completely frank about them. At present the father is in receipt of a Newstart Allowance. He receives an amount of about $1,100.00 per month. He owns his own home, which is subject to a substantial mortgage. Over half of his income is apparently allocated to paying the mortgage. The house is worth about $280,000.00 and is subject to a mortgage of $170,000.00. The father describes himself as being “very good with money”.
As previously indicated, the father would seriously consider moving to M from Darwin, if the outcome of these proceedings is that J and M live there with the mother. One of his main objections to moving is that it would be financially detrimental for him to move. He does not wish to sell his home, preferring to retain it to pass onto J and M upon his passing. Accordingly, in the event of a move, he would have to find a tenant for the property. He is concerned that this would be a time consuming process and may not result in a suitable tenant. He is also concerned that a lease of the property would not necessarily result in the production of a profit for him. I accept that there would be financial implications for the father of such a move, particularly in terms of him obtaining accommodation for himself in M. These difficulties are likely to be intensified, if he remains in receipt of social security payments.
Previously the father was employed as bus driver. In the past he worked as a roof cladder. I accept that he injured his shoulder, whilst working in this latter capacity, some years ago now and the injury was exacerbated whilst he was driving buses. I do not fully understand why the father is not pursuing a claim for worker’s compensation. The father said, in effect, that he could not be bothered. A medical certificate, tendered by the father himself, indicates that he is fit for full time work. In his affidavit material, the father indicates, somewhat obliquely, that he “choose[s] to take care of myself, and earn some funds to be able to maintain and support myself, and the children, when they are in my care.”[5] The father did not delineate, with any precision, how precisely he earned these funds and what was their magnitude. Certainly such funds have not been translated into such a form, where they could form the basis of a child support assessment.
[5] See father’s affidavit filed 4 December 2006 at paragraph 35
The father has an interest in motor vehicles. In his affidavit material, he proudly asserted that he had recently purchased a coaster bus equipped with double bed, toilet, shower, three water tanks, solar panels and television. He proposes to use the bus to take the children on holidays with him. When questioned, Mr T, indicated that the bus was worth about $5,000.00 and he had been able to acquire it without providing any cash but rather by exchanging a vehicle he owned worth about $1,400.00 for it. This seems to me to be an unusual transaction.
The father also has an interest in a business, which he operates with his father. The business seems to be in its early stages. It involves the sale of glowing novelty items, imported from China, at shows, markets and gatherings of that kind. The father is optimistic regarding the potential of the business. The mother is pessimistic, from her point of view that it will result in the payment to her of any child support. She has deposed that the father has told her in the past that he would rather be receiving unemployment benefits than paying her child support.[6] From the evidence in this case there appears to be some level of corroboration of his attitude in this regard, as reported by the mother.
[6] See mother’s affidavit filed 14 December 2005 at paragraph 25
The father, in oral evidence, provided details of monies he expends on the children from time to time. He asserts that he bought the children some shoes and shirts for school use; paid for their haircuts; and provided entertainment, such as movies and outings for them, as well as some “treats”. He also pays for them to attend rugby. Obviously Mr T provides for the children, in a material sense, when they are staying with him on alternate weekends and on Wednesday evenings.
It is Ms O’s view that she pays the lion’s share of the children’s recurrent expenses. It is her apprehension that Mr T is only prepared to fund things for the children, when they are actually with him. She disputes the extent of the school clothing bought by Mr T and asserts that these items of clothing remain at his house. I accept the mother’s evidence in this regard.
The father deposed that he provided $250.00 to the children to allow them to attend the Royal Darwin Show. The implication of this evidence was that the mother was in some way neglectful in not being able to provide this luxury to the children. Ms O confirmed that the sum had been provided. I can understand why she would be somewhat resentful at this financial largesse on the father’s part, when he is otherwise unable to make any regular financial contributions of child support to her.
It also provided a concrete example of Mr T’s tendency, as described by Mr V, to behave as a big brother towards the children, rather than a parent. I suspect that J and M would have been impressed by the gesture. I am concerned that the impression Mr T wished to convey to them was that he was generous, in contrast to the children’s parsimonious mother. Certainly the incident confirms my impression that the parties infrequently have a common strategy in regards to parenting J and M and in many ways subtlety try to undermine one another. I believe this tendency is more pronounced on the father’s part than the mother’s.
One of the father’s areas of criticism of the mother is that she does not provide the children with an adequate and nutritious packed lunch, when they attend school. This has led him to open an account for them at their school tuck shop. It is the mother’s position that she has provided the children with sandwiches and fruit but they have thrown these items away, so that they can have pies or chips from the tuck shop. Given my impressions of the mother, as a parent and a witness of credibility, this evidence has the ring of truth about it. It also confirms my impression that the father has tendency to think the worse of the mother and her parenting of J and M, rather than discuss matters about the children with her and devise a common strategy to deal with difficulties.
(b) Mr D’s evidence
Mr D and the mother have been involved in a relationship together since May of 2000. It was clear to me that their relationship is a committed and secure one. Clearly Mr D has been a significant figure in J and M’s lives for many years. On the evidence before me, I do not believe that his has been a negative role.
Mr D was a frank and pleasant witness. He did not appear to be to be the aggressive and abusive person described by the father. To the contrary, my impression of him was of a calm and thoughtful person. He did however concede that his relationship with Mr T was not a good one and, as a result, he avoided having anything to do with the father as much as possible. All concerned agreed that the use of the children’s school for contact handovers was a marked improvement on the supermarket which had previously been used and which had brought Mr T and Mr D into contact with one another.
Mr T complains that Mr D is an inappropriate person to hold any sort of parental role, so far as J and M are concerned. It is his position that Mr D denigrates him to the children and has engineered confrontations between the two at contact handover. On the other hand, it is Mr D’s evidence that it is Mr T who has in fact abused and threatened him. As perhaps is to be expected, the mother corroborates Mr D’s view. In my estimation, Mr D and Ms O are likely to be the more reliable historians in regards to this issue.
I was impressed in regards to Mr D’s insight into the nature of his role in respect of the care of the children. He is placed in a difficult position. It seems clear that Mr T resents him being involved with J and M to any large degree, yet Mr D is called upon to support them materially. It also seems that Ms O leaves issues of discipline of the children to Mr D. Again likely to be a controversial area, so far as Mr T is concerned.
Mr D was frank that he had smacked the children in the past, when they had been naughty, but only as a last resort. He indicated the aim of such discipline was “shock value”, rather than to hurt the children. He preferred other sorts of discipline. Accordingly, I do not accept that Mr D has ever assaulted the children, as Mr T has suggested. I was also impressed that Mr D, in conjunction with Ms O, had attended a parenting course in 2002. Mr D described his role with the children to be a “set of ears” for them. He acknowledged that it was not appropriate for him to try to assume Mr T’s position, as the children’s father. I accept that he has promoted the children’s relationship with the father.
Mr D is the main instigator of the proposed move to M. He sees great benefits for his family, in a financial sense, if the move occurs. Mr D has lived in Darwin since 1991. Since that time he has held a number of semi-skilled jobs. He has been a sandblaster; driver; bobcat operator; a lawnmower; and more recently, a security officer. He does not have any formal trade. He is originally from Q.
It is Mr D’s ambition to get a start in the building industry, which he believes will allow him to acquire some marketable skills. In Darwin, it is his perception and experience that he is at the bottom of the job market pyramid because of his lack of skills. He has been unsuccessful in applying for positions on the LPG Plant construction site in Darwin. He believes that his only opportunities, in construction in Darwin, are likely to be as a labourer on building sites, which would not provide him with any greater salary than that which he currently has. In order to gain skills in Darwin, say as a dogman or crane driver, he would have to take time off work and attend a course. It is his evidence, which I accept, that he can neither afford the course fees or to take the time off work.
Mr D has two male cousins, who live in M, to whom he is close. His cousins have previously worked for a construction firm in M and have been able to obtain crane driver and rigger tickets for themselves, through on the ground work experience with the firm. Mr D has been offered a similar opportunity with this firm, W W Cranes Australia. I accept that it is through personal connections of this kind that individuals often secure advancement for themselves. Mr D believes that he will be able concurrently to work and be trained, as a crane driver and rigger, with W W and this will enable him to earn a significantly higher wage in future. He believes that he will be able to earn between $300.00 and $600.00 more each week than he currently does. Ultimately he and Ms O wish to be able to purchase a home for themselves.
It is Mr D’s position that such an opportunity is unlikely to arise for him in Darwin. The added advantage of M from his point of view, is that he a number of close relatives in the town, particularly his two cousins and two uncles. His father and brother also live in the vicinity. These relatives have families of their own and will be able to provide support to him and Ms O, in the event of a relocation.
Regardless of the outcome of these proceedings, Mr D has said he will pursue his opening with W Wand go and live in M. From his perspective it is too good an opportunity to pass up. Ms O has said that she would not be prepared to leave Darwin, without J and M. Accordingly, Mr D may have to go to M alone. If this occurred, he would be able to stay cheaply with relatives and would send money home to support Ms O and the children.
It seems likely to me that such an outcome would place a severe level of stress upon the relationship between Mr D and Ms O. Mr D himself was visibly moved when he considered the possibility of living far away from his son M for any extended periods. It is hard to conceive that such an outcome would not increase the level of resentment Mr D currently feels towards Mr T, regarding financial matters. I accept that it would also be very difficult for the mother to cope with parenting three children in the absence of Mr D. I do not think Mr D’s indication that financial considerations will compel him to go to M to take up the position with W W is feigned or designed to force the court’s hand in any way. Clearly such an outcome has some potentially deleterious consequences for the children.
It is Mr D’s position that, if the family do relocate to M sooner rather than later and Mr T remains in Darwin, he (Mr D) will be able to fund the children’s airfares between M and Darwin on two occasions each year. Inquiries have led him to believe the return fares are likely to be between $600.00 and $800.00 for each child. These are significant sums. I appreciate that, at this stage, Mr D is committed to paying them but it may be an ambitious undertaking, which he has not thought through thoroughly.
(c) Marijuana
Apart from the father’s assertion that Mr D is a “regular heavy drug user”[7], there is no evidence to support this contention. The father confirms that he has used marijuana in the past, but asserts that he has not used the drug since about 2000. Evidence in support of this assertion is more problematic. During the interviews for the first family report, in April of 2006, Mr V reports that J and M informed him that Mr T had “green tobacco hidden in plastic bags around the house and that he [Mr T] sold bags to his friends at least twice a week.”[8] In his report, Mr V reported the children as being “quite sad” about this behaviour. In cross-examination, Mr V indicated that his impression of this disclosure was that it was spontaneously given and was not as a result of any coaching or prompting by another person. Mr V deposed his view that J believed the truth of what he told Mr V.
[7] See father’s affidavit filed 4 December 2006 at paragraph 29
[8] See family report dated 18 April 2006 at paragraph 28
It is also common ground between the parties that, on 14 September 2006, a Thursday, J brought home five bags of marijuana to his mother’s home. Ms O believes that this marijuana could only have come from the father’s home, following a contact visit. The father denies this and asserts that he checks the children’s school bags each morning before they leave for school. Accordingly, it is his position that J could have obtained the marijuana at school.
Following this discovery, the mother withdrew the children from visiting their father, for a period of about three weeks. She also informed the police, who obtained a warrant to search the father’s home. Nothing illicit was found and no charges were laid. The father points to these matters in support of his assertion that he has no involvement with marijuana. For obvious reasons, the incident deepened the mistrust between the parties. Subsequently, there was a vitriolic dispute between them as to when weekend contact should resume.
Counsel for the mother asserted that it was not necessary for the court to make a finding about this matter. Although I accept that the court should avoid making adverse findings about a party, unless it is specifically relevant to the proceedings before it, I have some difficulty with this submission. I bear in mind the provisions of section 140 of the Evidence Act 1995 and particularly the gravity of the allegation. However, on balance, I consider that there is evidence to indicate that the father has some involvement with marijuana.
It was Mr V’s view that it was “a necessity for the boys’ development and wellbeing” that they not be exposed to any illegal behaviour, particularly behaviour involving drugs. I agree with that assertion.
(d) J’ behaviour
It is the parties’ position that J has displayed inappropriate behaviour at school during the past school year. The mother appeared to have a greater knowledge of this behaviour than the father. Whether she has been the first port of call, for the school authorities, in regards to managing this behaviour, I am unable to say. She described J as having engaged in making rude gestures to teachers; yelling at teachers and being disruptive in class; biting another child on the back; and destroying other children’s work. The mother described J as having a low level of patience and behaving in an unruly fashion, particularly if he does not feel he is getting sufficient attention. It was also her perception that other children knew of his propensity in this regard and “wound him up”.
The school authorities have devised a “time-out” technique to manage this behaviour. This has included being sent to the principal’s office to calm down. On one occasion, when this had occurred, J had “trashed” the principal’s office. This seems to be something of an exaggeration. J had most probably pushed some papers from the desk and had perhaps pulled the stuffing out of a cushion. Otherwise no property was damaged.
An educational psychologist, Mr McC has assessed J and concluded that he is functioning within the average range of cognitive and academic abilities for children of his age. It is his view that J has no major learning issues. Accordingly, the reasons for J’ misbehaviour in class are likely to be purely behavioural.
It is Mr T’s view that J’ poor behaviour is a reaction to J not being able to spend more time with him than is currently envisaged by the prevailing orders. It seems that at least one of J’ tantrums coincided with the period when J and M were withdrawn from the father, due to the marijuana incident. Ms C agrees with her son’s assessment in this regard.
It was Mr T’s evidence that he believes that J’ behaviour at school is steadily improving and he is now doing quite well. Ms O does not agree. It is also her position that J’ behavioural problems will be better managed at a school in M, known as the E Road State School. She knows of this school from some of Mr D’s relatives, who have children with behavioural problems, who have successfully attended the school. She provided the school’s behavioural management strategy in her evidence.
I consider that the father is being somewhat optimistic regarding J’ behaviour at school. The behaviour, is very concerning. In my assessment, the mother is more likely to have insight into the severity of the problems and so be better motivated to deal with them. However, I think the mother is being somewhat naïve to think that the E Road State School is likely to be the panacea to J’ difficulties. As Mr V noted, there is no “holy grail” with regards to such behavioural issues.
It is the father’s position that B Primary School, the school which J is currently attending, has a well developed strategy to assist J with his problems and this is a cogent reasons for the court to either disallow or postpone J’ relocation. I accept that the authorities at B are tying to help J with his difficulties. There appear to be some funding difficulties in respect of J’ having the further assistance of a school based psychologist at B. However, in my assessment, no one public school is likely to be better at managing behavioural problems in regards to a child of J’ age. Again, as Mr V noted, such things depend on the experience and energy of teaching staff at any particular school from time to time.
As well as being a psychologist, Mr V has been a school counsellor in the past. He was asked his opinion regarding the possible causes of J’ behaviour. He indicated that he was “convinced” that J’ disruptive and negative behaviour was a direct result of him being exposed to serious parental conflict. In Mr V’s view, J’ behaviour was a reaction to the emotional pain which he was suffering as a result of this conflict and particularly, a lack of identity and certainty, in respect of the role he played with his parents.
Mr V was greatly concerned at the possibility that J’ behaviour would continue. In the long term, he believed that this type of behaviour would have a negative impact on J’ self-esteem and would most probably impact further upon his school attendances and performance. At this age, Mr V indicated that behaviour of the type attributed to J was a frequent precursor to truancy and in time juvenile delinquency. Obviously, these issues have serious long term implications for J and his development into adulthood.
Given these factors, Mr V was concerned at the possibility of Mr D being removed from J’ life, as a positive role model. He was also concerned at the strains, which would be placed in the relationship between Ms O and Mr D, if Mr D went to M alone. In his assessment, Ms O was likely to have some difficulty in managing J’ challenging behaviour, in Mr D’s absence. These various matters persuaded Mr V that there were “great benefits” to an outcome which would see both children, but particularly J, lifted out of a situation of conflict between their parents. Given that it was Mr V’s view that both J and M had a secure attachment to their father, which could be maintained through spending time with him during school holidays, Mr V lent in favouring of the children having a “fresh start” with the mother and Mr D in M, as the outcome most likely to serve their best interests.
(e) Ms C
I accept that Ms C is a loving and devoted grandmother, who is actively involved in J and M’s lives. She would be very disappointed if they go to live in M, and clearly, if this occurred the children would have far less opportunity to interact with her. I accept that she has been a constant and positive presence during the whole of their lives to date. For these reasons, Ms C is strongly opposed to the children moving to M. She describes her son as a capable parent. In her estimation, so too is Ms O, but the two rarely talk to one another, I sensed there was some level of antipathy between them.
Ms C has six children and 19 grandchildren, who range in age from 18 months to 22 years. Some of her grandchildren J and M’s cousins are of a similar age to J and M. It is a strong plank of the father’s case that J and M are part of a large extended family on their father’s side. I accept that this is so. Clearly, a serious consequence of the children moving to M is that they will have less opportunity to interact with this family.
(f) Indigenous considerations
Mr T identifies himself as being a person with an Indigenous background. He describes himself as being “one eighth Aboriginal”. Mr T was born in Darwin and has lived in the city all of his life to date. As a result, he grew up with Aboriginal people, from a variety of communities in the Top End, including D W and K. He himself does not identify as being part of any particular Aboriginal group, such as the Larrakia, or Kungarakn. He is not a member of any specific Aboriginal corporation.
Mr T deposes that he has taken the children to see a number of Aboriginal bands and took the children to the Barunga Festival in mid-2006. This was the first time he had taken the children to Barunga. I accept that the children enjoyed the festival and have developed an interest in Aboriginal art. However, it is a significant matter that Mr T did not raise the issue of his Indigenous background with Mr V. In all the circumstance of this case, I do not think that this aspect of the children’s background should be strongly determinative of the outcome in the case.
(g) Mr S and Ms H
For the reasons already provided, I was not in a position to see either of these witnesses. They are both personal friends of the father and speak highly of his commitment to family values and of his competence as a parent. I accept that both Mr S and Ms H are honest witnesses, who have accurately attested to their impressions and knowledge of the father.
(h) The parties’ parental relationship
It is my finding that the parties’ parental relationship and ability to communicate effectively with one another is poor. In my estimation, this state of affairs is unlikely to change for the foreseeable future, regardless of what the outcome of the proceedings is. Clearly, if Ms O feels frustrated in her efforts to move to M, she will experience a significant level of resentment for Mr T. Similarly, in the event of the children moving to M, Mr T is like to feel bitterly disposed towards Ms O and Mr D. I also think it likely that, in the event of the parties both living in relatively close proximity in Q, the parties’ dysfunctional relationship is likely to continue. In this eventuality, Ms O is likely to feel that Mr T is pursuing her. Ms O had candidly indicated that one of her motivations for wishing to move is to extricate herself from what she sees as an abusive relationship with Mr T.
On the evidence before me, I accept that the parties’ parental relationship is highly dysfunctional. The parties find it practically impossible to engage in a common strategy regarding the care of the two children. Rather, they engage in a process “one-upmanship” against each other. I believe that this tendency is more pronounced on Mr T’s part than Ms O’s.
The father is critical of many aspects of the mother’s parenting, particularly in regards to the children’s attendance at school. During 2006, J was late for school on 25 occasions and M on 28. During the same year, J was absent from school, for an un-notified reason, on 18 occasions and M on 17 occasions. The mother concedes the children have been late for school, but asserts that not all of the occasions have been attributable to her. She also indicates that the children have been absent from school, from time-to-time, due to illness, which she has not informed the school authorities about. She also asserts that the children have failed to attend school, whilst they have been in the father’s care. I accept the mother’s evidence in this regard.
The mother’s life is not without its difficulties. J’ behaviour is obviously, at times, very challenging. She has a part-time job as a swimming instructor. The mother also has responsibilities in respect of caring for M, a child of tender years. I accept the mother’s explanation that juggling these various responsibilities has, on occasions, caused her to be late in delivering the children to school. There is nothing in the evidence before me to indicate that either the children’s level of punctuality or their attendance at school has been such to draw the notice of the school authorities such that it has been formally raised, either with the mother or the father.
As previously indicated, Mr V regards the father as being more akin to a big brother to J and M, rather than a parent. In his evidence, he indicated the desirability of pre-adolescent boys having strong and concrete role models. By this Mr V meant a person who set boundaries, guidelines and rules, which were enforced in a consistent way. It was Mr V’s impression that Mr T was perhaps permissive in his parenting and did not attend to what Mr V described as “key parental duties”. Overall, this led Mr V to the conclusion that Ms O, in conjunction with Mr D, had been doing more of the actual parenting of the two boys. In Mr V’s estimation, this was a very strong factor that militated against a shared parenting regime for J and M. I accept Mr V’s assessment in this regard.
It is the father’s case that the mother consistently frustrates his telephone communication with the children. The mother refutes this suggestion but acknowledges that, on some occasions, she does not answer the telephone, if she believes that the father is ringing. This is because she is fearful of receiving abuse from him. It is her position that she permits the children to telephone the father from time-to-time. I suspect that there is some truth in the perception of both parties, in regards to this issue. In my view, this difficulty between the parties is as a result of their dysfunctional parenting relationship.
The children’s views
It is the mother’s evidence that the children are excited at the prospect of going to live in M. The children confirmed this in their interview with Mr V on 5 November 2006. Mr V reported as follows:
“J and M were very clear and definite that they wanted to live with their mother in M. They said they would be very happy seeing their father during the holidays. It was clear to me that they are expecting to go to M with their mother. They were excited about the proposed change in their lives and were looking forward to it.”
In cross-examination, Mr V indicated that he would expect the children to be disappointed, if they could not move to M. However, he acknowledged that the children were unlikely to have a high degree of insight into the consequences of the move, particularly what it would mean not to be able to see their father, with the same degree of regularity as they currently enjoy. It is the father’s submission that the children do not wish to move to M, and in particular, he believes that J would be very distressed, if compelled to move away from Darwin. He is concerned that this is likely to have implications for his behaviour. In all the circumstances, I consider that Mr V’s opinion, regarding the children’s views, is most likely to be the accurate one.
(j) The Evidence of Mr V and the family reports
In the overall determination of this case, I have been strongly influenced by Mr V’s evidence. Mr V is a psychologist, who has extensive experience working with children and their parents, in the context of relationship breakdown. He has also been a school-based counsellor. I found his reports to be thorough and considered. I accept his evidence.
Mr V described the mother as follows:
“Ms O was clearly very loved by J and M and they appeared to be very much at ease with her. She exhibited strong parental capability in the consistency of her intentions to be an organised and structured parent and the natural manner of her executing those intentions. Mr D appeared to have a loving and positive relationship with the boys to which they clearly were very responsive.”[9]
[9] See Family Report dated 18 April 2006, paragraph 24
Mr V also considered that J and M had a strong and resilient attachment to both their father and Mr D. As such, Mr V believed that the children’s attachment to Mr T would withstand the processes involved in their relocation to M, provided the children were able to spend time regularly with their father during school holidays. Mr V described J and M as being generally “unphased”, at the prospect of such a relocation.
Given the conflictual nature of the relationship between the parties and his view that it was negatively impacting upon the children, particularly J, Mr V was not in favour of a shared parenting regime for the children. He was however in favour of some extension of the time the children spent with the father, if this could be managed, either in Darwin or M, in the eventuality of both parties moving there. In this regard, Mr V’s recommendation was that the father spend time with the children for a longer block each fortnight, rather than having an extended weekend and one overnight period with them each fortnight as currently occurred. He favoured an extension of one night, rather than two. In making this recommendation, Mr V was strongly influenced by the desirability of the parties not having too many opportunities to interact with one another.
Mr T’s relationship with J and M is also highly significant to the children, but I accept Mr V’s assessment that it is qualitatively different to the relationship which the children enjoy with their mother. In particular, it is highly significant that Mr V characterises the relationship between Mr T and the children, as being more fraternal than paternal. This difference in quality is also likely to be a significant impediment to the parties having a shared parenting regime. In such circumstances, it would be an unwarranted imposition on Ms O’s freedom of movement to require her to remain in Darwin, either indefinitely or for a finite period, to enable the possibility of a shared parenting regime to be explored.
Again these are difficult and controversial matters. The clear preference of the applicable legislation is that separated parents should have a shared care arrangement for the care of their children, provided that such an arrangement is in the best interests of the children concerned. Given that the parties have been separated for nearly seven years and given the difficulties which have prevailed in their parenting relationship to the present time, it seems unlikely that what could not arise organically can be created by court fiat.
For the reasons already provided, I found Mr D to be an impressive witness. The conflict between him and Mr T places him in an invidious position. He has no wish to overstep the proper boundaries of a step-parent or replace Mr T as the children’s father. However, undoubtedly Mr D is a significant person in the lives of the children. Mr V described him as “the significant other” in their lives. Mr V also noted that J and M were “definite about the appropriate distinction between their father and stepfather.”[28] Given this evidence, I accept that, notwithstanding his obvious antipathy for Mr T, Mr D is capable of supporting the children’s parental relationship with Mr T.
[28] See family report dated 18 April 2006 at paragraph 25
The relationships between siblings are amongst the most significant of all human relationships. It is important that whatever orders the court makes provide a means by which the nascent relationship between J and M on the one hand and their half sibling M on the other can be preserved and extended.
It is often said to be axiomatic that a happy and well settled parent is a good parent. Undoubtedly, Ms O will derive a sense of settlement in her life, if she is living where she wants with her partner, Mr D, M’s father. In this context, the mother’s proposal is the one most likely to support the children developing their very important relationship with M.
A significant feature in this case is the children’s relationship with their paternal grandmother, Ms C and their aunts, uncles and cousins, who all live in the Darwin area. I accept that the children are part of a warm and secure extended family, on their father’s side. These various relationships constitute a major detriment to the children’s relocation to M. However, Mr V was of the view that the children would be able to maintain these important relationships, through engaging with their paternal relatives during school holiday visits to Darwin. Clearly, in the future, if Mr T elects to move to M, in the event the children’s relocation is approved, this of itself may mean that the children lose a sense of connection to their wider paternal family because their sense of connection to this family will not be refreshed periodically. Again, this is a factor against the relocation.
c) The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship with the other parent
This sub-section is a new one and must be read in conjunction with section 60CC(4), which requires the court to consider how each of a child’s parents has in the past fulfilled or failed to fulfil his or her parental responsibilities towards the child concerned. The type of matters, which it is envisaged the sub-section will encompass, include the payment of child support and adherence and reliability in respect of past “contact” arrangements. It is a significant sub-section, which emphasizes the responsibilities of parenthood and the obligation of parents to meet those responsibilities.
It is the father’s position that the mother has failed to support his ongoing relationship with J and M, particularly in regards to the issue of telephone communications. In my view, the evidence is clear that both J and M have a close and loving relationship with their father. The parties separated when both children were very young. In my estimation, it is a testament to the mother’s willingness to facilitate the children’s relationship with the father that, in somewhat strained and difficult circumstances, the children have been able to both maintain and extend their relationship with Mr T.
It is the father’s fear that, if J and M move to M and he remains living in Darwin, the mother will not be willing to maintain a positive image of the father in her household and this, in turn, will lead to a diminution in the quality of the relationship between him and the children. I do not believe this is so. To the contrary, I believe that the mother is likely to have a more positive view of the importance of the father in the children’s lives than the father is likely to have in regards to the mother, particularly if their positions were to be reversed. Although there will be obvious difficulties, I believe that the mother and Mr D will be supportive of the children’s relationship with their father, in the event of a relocation.
The father has a very negative view of the mother and little ability to empathise with her position or perspective. One example of this is that he blames the mother for not providing the children with nutritious lunches. Instead of trying to devise with her a strategy to deal with the problem of what the children ate at lunch or ascertain what her point of view was about the matter, he assumed the worse of her and independently opened an account for the children at the school tuckshop.
To some extent, he allowed the children to play their parents off against each other. In addition, it is my impression, he believes that the mother is responsible for J’ behavioural problems. Again he assumes that they have arisen because the mother does not allow J to spend sufficient time with him. He does not consider that the problems may relate in some way to his attitude or behaviour. It also seems clear to me that he himself has done not as much as the mother has to involve himself with the school authorities about these problems.
However, in my mind, the greatest omission of the father is in regard to his failure to fulfil his obligations to financially support J and M. This responsibility has fallen primarily upon the mother and Mr D’s shoulders. I accept that the father has had some health difficulties. However, the fact remains that during the almost seven years since the parties separated, the father has paid practically nothing towards the support of the two children concerned. In such circumstances, it seems inequitable that the father should be able to restrain the mother from pursuing opportunities in M, which may result in her and Mr D being more financially secure in future and being able to pursue their modest ambition to buy a house for themselves and their family.
d) The likely effect of any change in the children’s circumstances, including the likely effect of being separated from one of their parents
Assessing the effects of changes and separations are at the heart of this difficult case. Obviously, this cannot be a precise exercise and must involve some form of speculation. However, that speculation will be informed by the expert evidence of Mr V and my impressions of each of the parties.
If Mr T is successful in his primary objective of preventing J and M from being moved from Darwin, I accept that Mr D will nonetheless go to M to pursue his opportunity there with W W Cranes. This will occur whether the children are restrained from being moved from Darwin on either a finite or an indefinite basis. Ms O has made it clear that, in such circumstances, she would not consider leaving the children behind in Darwin without her.
If this is the outcome, I consider that it would pose significant risks for J and M’s ongoing wellbeing. Such an outcome would leave Ms O bitter and resentful towards Mr T, whose actions have effectively kept her a prisoner in Darwin, away from her partner. She would be deprived of the assistance of Mr D in raising not only J and M, but also M. It is highly likely that such an outcome would place her relationship with Mr D under a significant level of strain. The financial benefits of Mr D working in M are likely to be significantly diluted. All these factors are likely to conspire to reduce the effectiveness of Ms O’s parenting in respect of J and M and lead to an increase in the level of conflict between her and Mr T. There is already cogent evidence that J, in particular, is not coping well with this significant level of conflict.
On the other hand, it is Mr V’s view, which I accept, that given J and M’s ages at the present time; the level of cognitive maturity; and the strength of their attachment to their father; they will be able to maintain a significant level of relationship with their father, in the event of a relocation to M. In addition, it is open to Mr T himself to move to M, so that the children may maintain their current level of involvement with him. Mr V regarded this as a good outcome for the boys, provided that there was not an intensification of the current level of conflict between Mr T and Ms O.
In my view, this latter outcome is likely to be the best one for J and M. It is likely to have less negative implications for the children than their mother being restrained, either indefinitely or permanently, against her will in Darwin. I acknowledge that it is not Mr T’s preferred outcome. However, such a relocation would not result in Mr T being deprived of significant employment opportunities in Darwin or of being able to pursue an important on-going romantic relationship. Mr T is single. His business of selling novelty glow items is in its nascent stages. Apart from Mr T’s natural desire to remain living in his home and surrounded by his family, there are no other significant impediments to him moving.
Considerations of this kind are often the most difficult aspect of relocation cases. However, in my view, it is appropriate that the pros and cons of a relocation should not be considered only from the perspective of the parent who wishes to move. This would be an interpretation of the relevant legislation, which would be unduly favourable to Mr T. He would be subject to no injunction or restriction on his lifestyle but would require Ms O to remain in close proximity to him on an indefinite basis, with significant concomitant restrictions on her lifestyle.[29] In my view, it is incumbent upon the court to consider the practicality of both parties moving to bring about the result best calculated to serve the children’s interests.
[29] See AMS v AIF (supra) per Kirby J at 86,050
As I have previously indicated, a significant defect in the mother’s proposals concerns the likely reduction in the time the children will be able to spend with their paternal family. This deficit will be compounded if Mr T elects to move himself. If this is the outcome, he may not be disposed to return to Darwin, on a frequent basis. However, although this is a significant matter, I do not think it is of sufficient magnitude to militate against the mother’s desired outcome.
e) The practical difficulty and expense of the children spending time and communicating with their parents
Considerations grouped under this sub-section loom large in this particular case. It is a very long way between Darwin and M. In the event of a relocation and if Mr T remains living in Darwin, it seems that the most feasible means for J and M to spend time with him is if the children travel between the two locations by air, during school holidays. Such air travel is likely to be expensive and will probably require at least one change of flight. Given the volatility of world oil prices, it seems unlikely that air travel will become cheaper in the short to medium term. Given Mr T’s employment situation, it is likely that he will have difficulty contributing significantly to the fares. Mr D has indicated that he will pay for two return flights each year. This may be an undertaking which he will find hard to put to into practice.
I accept Mr V’s evidence that J and M will be able to maintain their sense of connection with their father and indeed with members of their paternal family, through spending less frequent periods of time than they currently do now. The children are of sufficient maturity that they will not forget their father and other relatives between visits even if those visits are separated by periods of up to six months at a time. Although this would not be an optimal outcome. In particular I accept that such long intervals between visits will have consequences for the freshness and spontaneity of the relationships involved. In such circumstances, it would obviously be preferable for the children to be able to visit Darwin more frequently. However, financial and logistical considerations are likely to loom large in this regard.
Obviously, these difficulties will be substantially reduced if the father elects to move to M, sooner rather than later. In addition, the parties will not have to negotiate themselves the practical details of the children travelling between M, Darwin and return. Something they are likely to find difficult, given the significant level of mistrust between them. It is however, of course, a matter for Mr T, whether he is prepared to move to M, in the event that the mother is successful in her application.
At the end of the day, I must consider whether the likely difficulties in the father being able to spend time with J and M are likely to be so severe that such considerations should prevail over the mother’s entitlement to freedom of movement. These difficulties are more pronounced in cases involving very young children, whose relationship with the non-locating parent is not well developed. This is not the case here. In addition, I am satisfied that the mother will facilitate the children being able to communicate with Mr T in a variety of ways, in the event of such a relocation.
f) The capacity of the parties to provide for the children’s emotional and intellectual needs
i) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties
These criteria are so closely linked that it is convenient to consider them together. It is the mother’s position that she will be better placed to provide for the children’s needs, if she is able to move with them to M. In M she and Mr D will be able to pursue possibilities, particularly in terms of Mr D’s employment, which will be attractive to them. This is likely to result in Ms O being happier, with flow-on benefits to J and M. In essence, she will be happy and well settled because she will be able to pursue her own ambitions and lead a life of her own choosing, untrammelled by her former partner. I accept that these expectations are likely to be significant, so far as Ms O’s future capacity to parent J and M to her optimal ability.[30] This is a significant factor, which favours the mother’s proposal for relocation.
[30] See Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
I do not necessarily believe that Ms O will be better placed to attend to the children’s educational needs in M as opposed to Darwin. For reasons already provided, I believe that J’ behavioural difficulties are likely to be as well catered for at a school in the Northern Territory as at a school in Q. However, if the relocation does result in a significant lessening of conflict between the parties, this is likely to have beneficial aspects for J. It may lead to an improvement in his scholastic performance and a reduction in his behavioural problems. I am concerned that the father’s proposal that the mother’s relocation be either permanently or significantly deferred will escalate the level of confrontation between the parties, with concomitant adverse consequences for J.
Considerations of this kind led Mr V to recommend a change for J, sooner rather than later. If Mr T does elect to move to M, it may be the case that the parties’ difficult parenting relationship will be translated unaltered to a new environment. I concede that it is not beyond the bounds of possibility that the relationship will be worsened, in this eventuality, because Mr T will be bitter at having to abandon his home in Darwin. However, as it is my finding that Ms O is the parent best placed to provide the principle place of residence for J and M, considerations of her entitlement to pursue the life of her choosing and the likely benefits of this for J and M loom large in this case and are a factor in favour of relocation.
In my view, the evidence supports a finding that Ms O has a positive regard for the responsibilities of being a parent and is committed to providing for both J and M’s emotional and intellectual needs. I did not find her to be the neglectful parent, whom Mr T described. The evidence indicates that the children are well cared for, whilst in their mother’s home.
On the other hand, it is a significant thing that Mr V regards Mr T as having some reluctance to set parental boundaries and guidelines for J and M, when they are in his care, but rather preferred to adopt the role of an indulgent older brother. I am concerned that this response may at times be calculated to undermine Ms O’s parenting of the children. I have already alluded to financial matters. In my assessment, the mother is likely to have a more comprehensive and insightful level of understanding of the responsibilities of being a parent. These are factors in favour of the court giving effect to the mother’s proposal for relocation.
Finally, one fundamental aspect of parenting involves preventing children being exposed to harm. Illicit drugs are harmful to children. J and M have been exposed to marijuana. As Mr V indicated it is a “necessity for the boys’ development and well-being that they not be exposed to illegal drug activity.”[31] The evidence indicates that the children have been exposed to marijuana at their father’s home.
g) The children’s maturity, sex, background and other characteristics
[31] See Family Report dated 18 April 2006 at paragraph 39
h) Aboriginality
That father places weight on his and the children’s Indigenous background. I accept that these are significant matters, so far as he is concerned. However, the impact of those concerns is much reduced by reason of the fact that Mr T did not raise them directly with Mr V. It is also clear to me that the children are inculcated into an urban and mainstream Australian lifestyle. In this regard, the environment of M is not likely to be greatly different to that of Darwin. I do not think that this is a case where the children’s ongoing sense of identity will be significantly affected if the mother’s proposal for relocation is successful. Apart from the children’s enjoyment at attending Barunga, earlier this year, and their interest in Aboriginal art, Mr T has not provided extensive evidence regarding the children’s exposure to aspects of indigenous culture and experience. Accordingly, I do not think that the matters for consideration under these criteria loom large in this case.
j) Any family violence involving the children
k) Any violence order
There are no relevant family violence orders in this case. The parties’ relationship with one another is a difficult and dysfunctional one, as both acknowledge. I accept Mr V’s assessment that the conflict between the parties is currently having an adverse effect on J in particular. I take these matters into account. However, apart from these matters, I do not think that this is a case where considerations of family violence loom large.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The rationale behind section 60CC(3)(l) is easy to glean. Litigation, in regards to children, is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, litigation has the potential to perpetuate conflict between parties, which is harmful to the emotional security of the children concerned. Accordingly, it is desirable that courts, such as this one, make orders that will minimise the prospects of the parties seeking further orders in future.
Unfortunately, the difficult circumstances of the parties make the possibility of further litigation high. Whatever the outcome, one party will feel dissatisfied with the result. I am concerned that if the children move to M and the father remains in Darwin, there will be difficulties in the parties making arrangements for the children to spend time with the father in Darwin. If the orders, which the father seeks are made, the mother is likely to be very dissatisfied with the outcome and likely to pursue further proceedings in the future. Accordingly, I do not think there is one particular outcome, which is more likely to lead to a situation which will limit the possibility of future proceedings.
The court has no power to compel Mr T to move to M, if he does not wish to do so. This remains an outcome open to him and one which he has seriously considered. For obvious reasons, this is the outcome which is the one least likely to lead to further proceedings, although Mr T himself is unlikely to be enamoured of it.
The clear advantage of the court acceding to the mother’s proposal is that it would provide a clear demarcation point, after which Mr T could closely give consideration to whether or not he is prepared to move. Thereafter, it would be hoped that both parties would be able to get on with their lives, with a minimum amount of conflict between them.
m) Any other fact or circumstance that the court thinks is relevant
Financial considerations loom large in this case. It is the mother and Mr D’s position that they will be financially better off in M. And, as up until this stage, they have jointly assumed the greater responsibility for providing for the children’s financial needs, this will have considerable benefits for J and M. On the other hand, it is the father’s position that the mother and Mr D’s proposals are not thoroughly thought through and so unlikely to result in the financial benefits envisaged. It is his view that the risks of the children being placed in what he sees as an unstable situation outweigh the uncertain prospects of financial advancement on the mother’s part by a marked degree.
I accept Mr D’s evidence that he feels he is “going nowhere”, in terms of his employment in Darwin. His aspirations to be a crane driver or dogman, and so get a start in the construction industry, are modest ones and, in my view, cannot be regarded as unrealistic. He is following in the footsteps of his cousins, who have achieved such objectives through their relationships with W W Cranes. He can follow the same path as them. He has the support of his cousins in pursuing the opportunities in M. I accept that the job at W W Cranes is open to him and he has considerable familial support in M. More importantly, I accept that Mr D is determined to give the job “a go”, regardless of the outcome of these proceedings.
I accept Ms O’s evidence that she and Mr D are currently in a position where their recurrent weekly income is nearly equal to their recurrent weekly expenses. They have no margin for error financially and must budget carefully in respect of every potential expense. I accept that it would be a considerable boon to the family if Mr D was able to earn a few more hundred dollars each week. Obviously, this would ease some of the financial pressures impacting upon the family. It seems this will also be the quickest way for them to achieve their goal of purchasing a home together. A most commonplace aspiration but a very understandable one in the Australian context.
As matters currently stand, it is my assessment that Mr T contributes very little, in respect of easing these financial pressure. Rather, he prefers to spend his financial resources exclusively on the children, when they are in his care. In these circumstances, it seems to me that it would be an unwarranted restraint on the mother’s entitlement of freedom of movement, for her to be prevented from pursuing options with Mr D, which might result in her financial advancement, when the father himself does not pull his eight financially, so far as the children are concerned. These opportunities are likely to be much lessened, if she is compelled to remain in Darwin and Mr D goes on to M alone. These are considerations which strongly militate in favour of the mother’s proposals.
Conclusions
Relocation cases are difficult. At the end of the day, it is necessary for the court to weigh up the pros and cons of each feasible outcome in the case and focus on how it thinks J and M’s best interests will be achieved. That remains the paramount consideration, but it is not the only consideration. I must not overlook the mother’s entitlement to live how and where she chooses in future. The mother’s desire to follow the life of her choosing in M, with Mr D, is a legitimate matter for the court to consider.
In this case, I consider the most significant factor to be that Ms O is the better placed of the parties to provide a residence and the majority of the on-going care for the children. I accept Mr V’s evidence that she has been doing substantially more of the parenting of J and M, in conjunction with Mr D, since the parties separated, now almost seven years ago. This was also the effect of the orders of Collier J, made following the contested hearing in July of 2001.
Given the parties’ poor parenting relationship and the difficulty they have in communicating with one another, I accept Mr V’s evidence that a shared parenting regime is not a workable outcome in this case. Accordingly, at this point, I do not think that the presumption created by section 61DA should be applied. I do not think that this outcome would be in J and M’s best interests. Accordingly, the mechanisms created by section 65DAA are not engaged. Notwithstanding this fact, it is my view that it is not reasonably practicable for the parties to have an arrangement, whereby the children spend either equal time or substantial and significant time with Mr T, particularly if such an outcome would have the consequence of negating Ms O’s freedom of movement.
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain living indefinitely, in close proximity to one another, to ensure that their children maintain what one parent alone considers likely to be the optimal level of relationship between the children and each of their parents. Practical considerations may make such an outcome unworkable, particularly if it results in the negation of a person’s rights, as a citizen, to live how and where he or she chooses. In addition, such a result may often have possible and perhaps unforeseen consequences for the welfare of the child concerned.
In my view, a consideration of the matter, from the perspective of the children’s best interests, favours the mother being able to move the children to M, within the next few weeks. The significant factors are as follows:
·The mother is the parent who has discharged more of the parenting responsibilities, in respect of J and M, for many years. There are no cogent reasons to change this arrangement. Accordingly, it would be a significant matter for the court to restrain the mother from changing the children’s place of residence.
·Ms O is likely to be happier living in M, where she and Mr D will be able to pursue employment opportunities and have the possibility of being better off financially, in the long run. This is a significant matter, given Mr T’s lack of substantial financial support for the children, up until this stage.
·If Ms O cannot move J and M to M, she will remain in Darwin and Mr D will go alone. This will have significantly detrimental consequences for Ms O’s capacity to parent J and M, to the optimal level.
·The move to M is likely to remove J from a situation where he is being exposed to a high level of parental conflict, which is currently negatively impacting upon him and causing him significant behavioural problems. If these problems are not alleviated, there is a real risk that he will suffer long term harm, which will have implications for his long term wellbeing and self-esteem as an adult, particularly if he fails at school.
The relocation is not without significant detrimental consequences for J and M. The more severe detrimental consequences include the following:
·The children will not be able to have as meaningful relationship with their father, as would occur if they remain living in Darwin indefinitely.
·The children will not have the opportunity of interacting with member of their paternal extended family, as frequently as is the case now.
However, I consider that the children will be able to maintain a sense of connection with their father and his family through regular holiday visits, in the event that Mr T elects to remain in Darwin. It is a significant matter that Mr V regards the relationship between the children and their father as being strong and enduring. For reasons already provided, I accept that the mother has played a part in fostering this relationship and will continue to do so in future, notwithstanding the father’s misgivings in this regard.
Weighing up the various pros and cons, in favour and against, in regards to the relocation, I have reached the conclusion the factors in favour outweigh the factors against. In reaching this conclusion, I have given significant weight to the mother’s wish to pursue the life of her choosing in M and the strong possibility that this will lead to Mr D, and so her and the children being in a stronger financial position. Mr D has been a consistent figure in the children’s lives for many years. He has assumed a significant burden in respect of financially supporting J and M. In a strictly legal sense, he is under no obligation to do so. In these circumstances, it would be oppressive for orders to be made, which significantly impact upon Mr D, in terms of his relationship with Ms O and with M Junior and also in regards to how he may seek his living in future.
I accept that the father has much to offer J and M in future. The children’s relationship with him is close and loving. However, to compel the mother to live in Darwin indefinitely, effectively so that J and M may have the most meaningful relationship possible with their father, also has the potential to cause a significant level of detriment to the children. In addition, it also means that the burden of ensuring that this optimal level of meaning is provided to J and M, in their parental relationships, arises solely as a result of the mother’s sacrifice and at the price of the denial of her personal aspirations. It is open to the father to move to M so that, by his actions, the relationship between him and the children is given the optimal level of meaning, envisaged by the applicable legislation. As the relevant authorities indicate, this is a legitimate area of enquiry for the court.
As Gummow and Callinan JJ pointed out in U v U “maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[32] In this case it is not valid to expect the mother alone to be the parent who suffers restriction on her personal choices, so that J and M may have the most meaningful relationship with both their parents. I must not assume that the father himself cannot, in the not so distant future, move to M, as he has said he has considered.
[32] U v U (supra) at 89,091
In U v U, Hayne J said as follows:
“If effect is to be given to those principles, [the principles underlying Pt VII of the Act] it must not be assumed that one parent (the father) cannot move and the that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of his parents, let alone the interests of one of them.”[33]
[33] U v U (supra) at p 89,103
In this case, I am satisfied that the best interests of J and M will be served if they move with the mother, their proven primary carer, to M. This will not result in any curtailment of Ms O’s entitlement to freedom of movement. If Mr T remains living in Darwin, this is likely to result in J being placed in a more stable situation, where his behavioural issues can be better managed. I am satisfied that to compel J to remain living in Darwin, either indefinitely or for a defined period of up to two years, is likely to exacerbate these behavioural difficulties.
Precisely what will be the prognosis for these behavioural difficulties, if Mr T elects to move to M in conjunction with the mother, cannot be predicted. It may be that this will result in the parties’ unhappy relationship and the concomitant negative consequences for J being merely translated from one place to another. However, the possible financial benefits to the mother and Mr D and the fact they are pursuing their own personal ambitions will remain.
In the eventuality of Mr T electing to move to M, I propose to make orders that will allow him to spend time with J and M, each fortnight, along the lines supported by Mr V. That is, for a longer period each fortnight in one extended period, with the children moving from one household to the other at their school. For the reasons provided, I do not think a shared care arrangement is likely to be in the children’s best interests. The parties do not communicate well. Their parental styles are not complementary. Above all, they have no capacity to work together to solve problems as they arise. There is evidence to indicate that their present parenting relationship, which both describe as “poor”, is negatively impacting upon J.
Whether Mr T chooses to take up these orders, by moving to M, in future, is a matter for him. In this eventuality, it is appropriate that the children spend equal periods of the school holidays, with each of their parents. Orders will be made to this effect.
The more difficult question is what orders should be made for the children to spend time with Mr T, in the event that Mr T continues to live in Darwin. I have come to the conclusion that, in this eventuality, the children should spend at least all of the mid-year school holidays and four weeks of the end of year school holidays with the father, and that the mother should be responsible for paying for the children’s travel expenses between M, Darwin and return.
I have reached this conclusion for a number of reasons. Firstly, Mr D indicated a willingness to pay for these expenses and part of the motivation for the move is that he will be better off financially. Secondly, although I have some criticisms of the father’s financial circumstances, he remains in receipt of Social Security payments. Accordingly, it seems likely that the O/D household will be better placed financially than the T household for some time. I also propose to make orders allowing the father the opportunity of spending time with the children, in Darwin, at his election, in either the March/April or September Q school holidays. However, in the eventuality of the father exercising his election in this regard, the responsibility for the payment of the children’s airfares will fall on his shoulders.
Although I have determined not to make an order for equal shared parental responsibility, under the provisions of section 61DA of the Act, I consider that I must make provision in the orders in this case relating to the division of responsibility between the parties for making decisions regarding major long term issues which affect the children. Such long term issues include matters to do with the children’s education (both current a future); their religious and cultural upbringing; their health; and most importantly, in the context of these proceedings, any further changes in their living arrangements, which may make it significantly more difficult for the children to spend time with one or other of the parents.
In this context, I propose making an order that the parties share responsibility for making all major long term decisions concerning J and M. The parties will be required to consult about such issues and attempt to reach a resolution, in respect of these issues, in the event that a dispute arises between them. I have hesitated in regards to this matter. However, there are not likely to be very many such major issues about the children and, not withstanding my concerns about the parties’ difficult parental relationship, I do not believe that it would be appropriate, or, more importantly, in the children’s bests interest, to exclude Mr T from decision making responsibility in this regard.
Pursuant to the provisions of section 65DAE, the parties do not have to consult about issues that are not major long term ones and accordingly it is not necessary for the court to make orders in respect of J and M’s care, welfare and development, which arise on a day to day basis.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C W
Date: 22 December 2006