FEDERAL CIRCUIT COURT OF AUSTRALIA
| TABER & TABER | [2014] FCCA 11 |
| Catchwords: FAMILY LAW – Parenting orders – Mother wishes to relocate with child – Father reuses to communicate with Mother – whether it is in child’s best interests to order sole parental responsibility. |
| Legislation: Family Law Act 1975, ss.11F, 60CA, 60CC, Part VII, 61DA, 65DAA Commonwealth of Australia Constitution Act, ss.79, 80, 109 |
| Hall & Hall (1979) FLC 90-713 Friscioni & Friscioni [2010] FamCAFC 108 Hannigan & Sorraw [2010] FamCAFC 257 Vigano & Latimer [2010] FMCAfam 660 Mazorski & Allbright [2007] FamCA 520 Godfrey & Sanders [2007] FamCA 102 McCall & Clark [2007] FamCA 92 Tait & Densmore [2007] FamCA 1383 G & C [2006] FamCA 994 Champness & Hanson [2009] FamCAFC 96 |
| Applicant: | MS TABER |
| Respondent: | MR TABER |
| File Number: | DGC 504 of 2009 |
| Judgment of: | Judge Jones |
| Hearing date: | 16 December 2013 |
| Date of Last Submission: | 16 December 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Bonney |
| Solicitors for the Applicant: | Moores Legal Pty Ltd |
| Respondent appearing in person |
| Counsel for the Independent Children's Lawyer: | Ms McCreadie |
| Solicitors for the Independent Children's Lawyer: | Bowlen Dunstan & Associates |
ORDERS
Paragraph 2, so far as it concerns [X], born [in] 2001 (“the child”), and paragraphs 4 and 6, of the Orders made by consent on 22 December 2010 are discharged,
The child shall live with the Mother.
The Mother shall be permitted to relocate with the child to [L], Victoria
The Mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child.
The Father shall communicate and spend time with the child:
(a)During the school term, each third weekend from 6.00pm on Friday to 6.00pm on Sunday;
(b)Subject to order (5)(C), during school holidays, for half of each holiday being the second half in even numbered years commencing at 12 noon on the first day of the half period and ending at 4.00pm on the last Sunday proceeding the first day of the next school term and being the first half in odd numbered years, commencing at 6.00pm on the last day of the school term day and ending at 4.00pm on the last day of the half period; and
(c)Should the relevant holiday period be an odd number of days, the Father’s time be extended by one day at the commencement of time spent with him; and
(d)Both parents have liberal Skype, telephone, SMS text message and email communication with the child when she is living with or spending time with the other parent and, in default of agreement by Skype or smart phone on Tuesday and Thursday between 5.00pm and 6.00pm.
The Father is to collect the child from the Mother’s residence at the commencement of time spent with the Father, and the Mother or Mr A is to collect the child from the Father’s residence at the conclusion of time spent with the Father.
The Mother shall notify the Father as soon as practical of any significant injury suffered by the child and within seven (7) days of the date hereof notify the Father in writing of the name and address of any doctor or allied health worker who treats or provides services to the child and authorise those doctors and allied health workers to provide information to the Father at his request (and his own expense) about the child’s treatment and care.
The Father be authorised (at his own expense) to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited or usually attend.
Within seven (7) days of the date of these Orders the parties are to do all things necessary for each of the Mother and Father, [X] and the children, [A], born [in] 1994 and [B], born [in] 1997, to attend family therapy with Dr M at the dates and times specified by Dr M. The Mother is to provide Dr M, 7 days prior to the first appointment a copy of Ms F’s Family Report dated 10 December 2013 and a copy of this decision.
Within seven (7) days of the date of these Orders the parties are to do all things necessary to attend individual counselling to address unresolved relationship issues and to strengthen their parenting capacity at the dates and times specified by counsellor. Each party is to provide the counsellor 7 days before the first appointment a copy of
Ms F’s Family Report dated 10 December 2013 and a copy of this decision.
The Independent Children’s Lawyer is discharged save for any argument in respect of costs.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
That all extant applications are otherwise dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Taber & Taber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 504 of 2009
| MS TABER |
Applicant
And
| MR TABER |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns a dispute between Ms Taber (“the Mother”) and Mr Taber (“the Father”) regarding the parenting arrangements for [X], born 16 May 2001 (“[X]”).
[X] is 12 and half years old and ready to start secondary school in 2014. She has two brothers, who are the children of the Mother and the Father, [A] born [in] 1994 (“[A]”) and [B] born [in] 1997 (“[B]”). [A] and [B] live with the Father and have done so since the parties separated in 2008. Sadly for [A] and [B] and the Mother, the relationship between [A] and [B] and their Mother is estranged, there being very little contact between the Mother and her two sons since separation and apparently no contact in last few years. The Mother has re-partnered with Mr A and together they have a daughter, [Y], born [in] 2012. The Father has formed a relationship with Ms E and has been in that relationship for around 12 months. The Father and Ms E live nearby each other. Ms E has a three year old son and two year old daughter who spend time with their Father on alternate weekends.
The Father was born [in] 1969 and following a career as an [omitted] is now self-employed operating [business omitted]. The Mother was born [in] 1977 and is presently a home maker. Mr A is [occupation omitted]. The Mother and Father commenced a relationship in September 1993 and finally separated on 27 December 2008 when the Mother left the family home, she alleges because of family violence by the Father. The Father denies there was any family violence.
The essential matters in dispute are:
a)With whom [X] should live, although it is to be noted that at the end of the proceedings the Father submitted that given [X]’s wishes as recorded in the family report, he did not dispute that [X] should live with her Mother;
b)Whether the Mother should be allowed to relocate with [X] from her present residence in [H] to [L] near [omitted]. The Father vigorously opposes [X] being relocated to [L];
c)How much time should [X] spend with the parent, with whom she does not reside.
There are other issues in dispute; including, how any change over should be effected. This is because, whilst the Father is prepared to share the collection and delivery of [X], if she continues to reside with the Mother in [H], he is not sure if he will share the collection and delivery of [X] if the Mother relocated to [L].
Evidence
I have considered the following evidence.
For the Mother:
a)Affidavit filed by the Mother on 20 November 2013;
b)Affidavit filed by Mr A on 20 November 2013.
The Mother and Mr A were cross examined.
For the Father:
a)Affidavit filed by the Father on 10 December 2013.
The Father was cross examined.
A Family Report prepared by Ms F dated 10 December 2013, filed by leave of the Court on 16 December 2013 and marked as “Court Exhibit 1”. It is to be noted that Ms F has prepared four family reports in relation to the three children [A], [B] and [X] since litigation began in early 2009.
Ms F was not called for cross examination.
Parenting proposals
By the Mother’s amended initiating application filed 20 November 2013, the Mother proposed that the Father and Mother have equal shared parental responsibility for [B] and [X], that [B] live with the Father and spend time and communicate with his Mother in accordance with his wishes, that [X] live with the Mother and spend time and communicate with the Father in accordance with her wishes and that the Mother be permitted to relocate to [L], Victoria with [X].
It is to be noted that the Mother did not, in the proceedings, press her proposed parenting orders for [B].
At the commencement of proceedings, Ms Bonney informed the Court that the Mother was prepared as a compromise to adopt the recommendations of the family consultant, Ms F that:
“166.[X] lives with Ms Taber and she is permitted to live in [L], Victoria.
167.[X] spends time with Mr Taber – including [A] and [B] – on alternate weekends between Friday and Sunday and half school holidays as a minimum, along with other flexible times.
168.Changeover should be the parental residences and driving should be shared.
169.As a matter of some urgency, [X] attends family therapy with Mr Taber, Ms Taber, [A] and [B] with an experienced clinical psychologist such as Ms T or Dr M.
170.Mr and Ms Taber attend individual counselling to address unresolved relationship issues and to strengthen their parenting capacity.”
The orders sought by the Father in his response to the initiating application filed on 25 January 2013 is that [X] live with the Father and spend time and communicate with the Mother as the Court deems fit. As already stated, during the proceedings before the Court, the Father advised the Court that, given [X]’s wishes, he did not object to [X] living with the Mother but strenuously objected to [X] being relocated to [L]. The Father also stated that he would like structured time spent with [X] being alternate weekends and half school holidays. He was not sure whether he would agree to share the driving on changeover if [X] relocated with her Mother. Also he stated that, whilst he would take [A] and [B] for family therapy, he would not participate himself nor attend individual counselling as recommended by Ms F.
Ms McCreadie for the Independent Children’s Lawyer submitted that, having heard the evidence and in particular the Father’s evidence and submissions, that any parenting orders should provide that the Mother have sole parental responsibility for the child [X] but this should be accompanied by specific issues orders providing for the Father to be informed of decisions regarding [X]’s attendance at medical and other health professionals and authorisation for the Father to receive relevant reports and information regarding [X]’s attendance at school and participation in [X]’s school activities. Ms McCreadie emphasised that counselling for all children and both parents must be a component of any parenting orders having regard to the history of the matter and the opinions of Ms F contained in the Family Report. Ms McCreadie observed that given Ms F’s long standing involvement with the family by way of four family reports and the fact that the family report was itself unchallenged, considerable weight should be given by the Court to Ms F’s recommendations. Ms Bonney likewise submitted that for the same reasons the Family Report should be accorded considerable weight by the Court in formulating parenting orders.
History of proceedings to date
The following extract from Ms F’s Family Report summaries the history of proceedings:
“1.Mr and Ms Taber have a long history of litigation. Three family reports prior to the current report have been prepared and more recently, a Section 11F report was also ordered.
2.Following a fifteen-year relationship during which three children – [A], [B] and [X] – were born, Ms Taber and Mr Taber finally separated in 2008 when the children were respectively fourteen, eleven and seven years old.
3.Ms Taber left the family home and had limited contact with the children until Court Orders dated 3rd March 2009 provided for weekly shared care between alternate Fridays.
4.However, the two older children [A] and [B], only attended time with Ms Taber on one occasion and refused to return following altercations with Ms Taber and the maternal grandMother, who was living there at the time. [X] continued to spend alternate weeks with each parent.
5.A family report dated 29th June 2009 recommended that all three children live with Mr Taber for six months and spend time with Ms Taber on alternate weekends between Friday and Monday and Wednesday evening during school time. It was recommended that equal shared care be considered in 2010, but the family attend for counselling in the meantime, especially [A] and [B] with their Mother.
6.Court Orders dated 5th August 2009 provided for [A] and [B] to live with Mr Taber and spend alternate weekends between Friday and Monday with Ms Taber. [X] was to live with each parent on alternate weeks between Fridays.
7.An updated family report dated 11th January 2010 recommended that [A] and [B] live with Mr Taber and spend alternate weekends between Friday and Monday with Ms Taber, but before this was to commence, they attend family counselling. It was also recommended that [X] live with Mr and Ms Taber on a weekly basis between Fridays.
8.Court Orders subsequent to the above noted family report, dated 19th February 2010 provided for [A] and [B] to attend family counselling with Ms Taber, along with Mr Taber and [X].
9.A further updated family report dated 22nd November 2010 recommended that the above noted arrangements continue, but again emphasised the need for family counselling prior to [A] and [B]’s time with Ms Taber.
10.Court Orders dated 22nd December 2010 subsequent to the above noted family report, provided for [A] and [B] to live with Mr Taber and for him to ‘use his best endeavours to encourage’ them to attend the alternate weekend time with Ms Taber. [X] was to live with each parent on a week about basis between Fridays.
11.The Orders also provided for the family to attend counselling at Lifeworks Frankston.
12.In January 2013, Ms Taber applied to the Court for [B] to live with Mr Taber and for him to encourage the child to spend time with Ms Taber. Ms Taber applied to have [X] live with her and spend time with Mr Taber as the Court deems fit.
…
16.In providing oral evidence to the Court on 25th January 2013, the Family Consultant recommended that equal shared care should be discontinued and [X] lives with her Mother in an interim arrangement that included weekend time with Mr Taber.
17.The Family Consultant noted the long history of volatile parental communication and the increasing estrangement of [A] and [B] from Ms Taber. The Family Consultant indicated however, that there were no ‘significant issues relating to family violence or ill treatment’ of [X], identified by either [X] or Ms Taber. The Family Consultant noted that Ms Taber seemed to hold the view that she was ‘in a better position to provide for the emotional needs of [X]’.
18.In Court Orders dated 25th January 2013, until further order, [X] was to live with Ms Taber and spend time with
Mr Taber on two out of three weekends between Friday and Monday. Paternal Grandfather Mr T – who has been substantially involved in the children’s care since Mr and Ms Taber separated – was to collect and deliver [X] to school on the transition days.
19.Further Court Orders dated 14th March 2013 provided for Mr and Ms Taber to have equal shared parental responsibility for [B] and [X], save for the decision regarding [X]’s secondary school that she would be attending in 2014. [B] was to live with Mr Taber, who was to encourage the child to spend time with Ms Taber. [X] was to live with Ms Taber and spend alternate weekends between Friday and Monday during school time and up to five nights during term holidays and ten nights during the long summer holidays. Inter alia provisions, Mr Taber was to be in substantial attendance. Changeover was to be parental residences.
20.In May 2013, Ms Taber deposed that [X] was refusing to attend time with Mr Taber, that the child was claiming the relationship with [A] – now nineteen years – was strained and she spent long hours at Mr Taber’s [omitted] business.
21.From around February 2013, [X] did not spend time with Mr Taber at his home. Although they apparently came into contact at [X]’s [sport omitted] games, Ms Taber alleges that they did not speak and Mr Taber made no attempt to communicate.
22.In May 2013, Mr Taber deposed that [X]’s relationship with both [A] and [B] remained cordial and they had a close bond. Mr Taber alleged that Ms Taber influenced [X] in refusing to spend time. He alleged that Ms Taber intercepted messages to [X] and that her purported attempts to facilitate communication were ‘lies and fabrications’.
23.Mr Taber raised concerns about [X]’s mental health due to Ms Taber’s manipulative behaviour.
24.Court Orders dated 28th May 2013 provided for the appointment of an Independent Children's Lawyer and the preparation of a family report to deal inter alia with ‘the best interests of [X]; [X]’s relationship with [B] and [A]; and to make recommendations about the question of counselling for the parties and/or [X] and/or the children and [A]’.
25.Further provisions in the above noted Court Orders were inter alia for [X] to spend time with Mr Taber for two out of three consecutive Sundays commencing 9th June 2013.
26.In November 2013, Ms Taber filed an amended application, proposing inter alia that [B] live with Mr Taber and spend time with her as he wished; and for [X] to live with her and spend time with Mr Taber as she wished. Ms Taber also applied to be permitted to relocate to [L] Victoria with [X].
27.Ms Taber deposed that she and her partner Mr A were building a home in [L] and planned to move there around January 2014 with their young daughter [Y]. Ms Taber deposed that [X] was enrolled to commence 2014 at [M] School.
28.In December 2013, Mr Taber responded that he opposed
Ms Taber’s application to relocate with [X], and proposed that the child live with him and attend a local secondary school. He proposed that [X] spends time with Ms Taber as she wishes.”
The Father commenced proceedings with a submission that his Constitutional rights had been infringed and in saying this he relied on ss.79, 80 and 109 of the Commonwealth of Australia Constitution Act (“the Constitution”). He also stated he would be seeking an adjournment.
It appears that his submission as to the infringement of his Constitutional rights derived from interim parenting orders made by Federal Magistrate Curtain (as His Honour then was) on 14 March 2013 in the absence of appearance by or on behalf of the Father.
The Father submits that under the Constitution, the Court can only proceed when both parties are face to face. He also maintained he was entitled to have a trial by jury. The Father maintains he did not receive a copy of orders made by Federal Magistrate Curtain on 25 January 2013 that pursuant to s.11F of the Family Law Act 1975 (“the Act”) the Mother, Father and [X] attend an appointment with a Family Consultant and that the matter be adjourned to 14 March 2013. The Father says that the orders that were sent must have been taken from his letterbox. Ms McCreadie pointed out that the Father was in attendance at the return date on 25 January 2013, however, the Father maintains that he did not hear the orders being made. The Court doubts that the Father, who is an intelligent and successful business man, was not aware of the orders being made by Federal Magistrate Curtain on 25 January 2013. Without needing to decide the matter as the Father’s submissions on his Constitutional rights were not pressed further, it appears that the more likely explanation is that Father simply decided not to attend. The consequence of this, of course, was that the Father did not attend the s.11F conference scheduled for 13 March 2013. In any event the Father participated in a subsequent return date on 28 May 2013, apparently without protest.
After the matter was stood down to enable the parties to discuss matters with Ms F, the author of the Family Report, the Court asked the Father whether he was pressing his application for an adjournment. He stated that he was not and the matter proceed by way of defended hearing. The proceedings were not without difficulties:
a)In the course of giving his evidence the Father stated that he was not interested in these proceedings;
b)During what can only be said to have been gentle and respectful cross examination by Ms Bonney, the Father said that he felt that he was a victim in this matter; and
c)The Father was at times inclined to respond to cross examination with sarcasm including making statements he clearly did not believe that truth of.
Near the end of proceedings, the Father stated, pointing at the Mother who was sitting in the Courtroom, and with a great deal of emotion in his voice that he would not communicate with her at all, including about parenting arrangements with [X]. He packed his bag and then departed before the formal end of the proceedings, stating that he was walking out of this Court and going to another one and then after that another one.
Consideration of the parties evidence
I do not intend to address all the matters disputed by the parties, and there are many, including the reasons for the Mother’s estrangement from her sons and the genesis of these proceedings which were initiated by the Mother. For the purpose of dealing with the maters in dispute in these proceedings, the following evidence is relevant:
a)Notwithstanding orders from January 2013 onwards for the Father to spend time with [X], the Father has in fact spent very little or no time with his daughter. Indeed it is not disputed that she has not seen her Father for some six months, the Mother says she was unable to persuade [X] to spend time with the Father. The Father does not believe that these were [X]’s wishes and stated that it was up to Mother to deliver the child to him in accordance with the orders. His evidence is that the Mother has been planning this (these proceedings) for some two years commencing with the purchase of a block of land in [L] with Mr A and she has manipulated [X] into expressing the views that she has about living or time spent with her Father. The Father maintains that the Mother has set about deliberately to undermine and destroy his relationship with his daughter by denying or preventing electronic or social media contact with his daughter;
b)It is clear that the communication between the parties since the end of 2012 has been a best minimal and generally ineffective. The Father variously said that he had not spoken to the Mother in three years and that he has not spoken about the Mother in the presence of the boys for two years;
c)The Father’s evidence was that he would take the boys to counselling in accordance with Ms F’s recommendations but that there was no need for him to have counselling to co-parent. He was adamant that, if the Mother were allowed to relocate to [L], then she should be responsible for the delivering and collection of [X] during the time spent with him. He maintained spending four hours on alternate weekends driving [X] did not fit in with his work commitments, would eat into his time with his partner and would interfere with his commitments and be impractical. He said that he would have to think about whether he would comply with an order requiring him to share the driving. He also stated during his oral evidence and in final submissions that he does not want to communicate with the Mother and he would never communicate with her, “I don’t want to have a relationship with her. Not now – and I’m speaking about [X]’s Mother – not now, not next week, not five years from now, not 10 years from now.”[1]
[1] Transcript of Proceedings on 16 December 2013, p.96, line 20
The Father says he has no attitude towards the Mother, there is no conflict, there is just no communication. His evidence was that he does not want a relationship with the Mother because of the hurt the Mother caused him and the sons when she left the family home. Having observed the Father, including the grief expressed regarding the hurt he says the Mother caused him and his sons, I concur with Ms F’s opinion at [132] of the Family Report that the Father’s, “… bitterness and cynicism towards Ms Taber however, continues to pose a risk to the possibility of [A] and [B]’s repair of their relationship with their Mother, and may well have contributed to the recent rupture in [X]’s relationship with him.”
As to the Mother, it was very apparent that she is experiencing significant grief and I concur with the opinion of Ms F in her Family Report that this is associated with the loss of her relationship with the [A] and [B] [134]. There is no doubt that the Mother does need to address this by way of ongoing counselling as it is clear from the views expressed by [X] to Ms F that she is emotionally involved and attuned to her Mother’s sadness and this is clearly a burden that a young adolescent child should not have to bear.
Ms McCreadie asked the Father, in cross examination, what he would like the Court to know about his case:
“This is your opportunity now for you to tell her Honour anything that you want her to know about your case for her to take notice – for the court to take notice of. I’m going to give you your opportunity now to address her Honour and tell her all it is that you want her to know about your case?‑‑‑All of this I want her to know? I think my affidavit states it clearly – of – I think I’ve proved myself as a parent. I’ve raised two boys that have done well at school. I have a background in working with kids. I’ve [occupation omitted] children. Been there and assisted during [occupation omitted] children. I’m not a [occupation omitted] which constantly keeps being put down, which is – it’s just not what I am or what I was. I was an [occupation omitted]. This has been addressed many times in court, but that’s disrespectful. They know that that’s not the case, but it’s just that I have no ..... sign of disrespect I guess. It’s like calling a barrister a – I don’t know, a law clerk. My kids are happy. They’re very happy. They have everything they want. I think Ms F has pointed that out, that they’re happy young men and I think [X] would be exactly the same under my care. It would make – very little would change, at all. She has her current group of friends that she has been with since prep and she would most likely go to school with a few of those as well, because there’s probably a few that would be going to [E]. I don’t know about [W], but there certainly would be with [E]. Other than that I have nothing else to add, your Honour. I work hard. I’m building a business. I’ve always kept a roof over their heads. I’ve always fed them and I’ve done it without the help of the Mother. To the Mother’s – to her credit, she has always given them something on their birthday, except for this year with [A]. But prior to that she has always given them something on their birthday. There’s – I don’t dispute that. She has always given them something on Christmas. I’ve never disputed that, ever. What I’ve disputed is the fact that she’s not interested in them. And she hasn’t been for many years and she hasn’t been the day that we separated and she tried to come back into the house a month later and take [X] and leave the boys exactly where they were and I can tell you, your Honour, had she taken [X] that day, we wouldn’t be here now. Because these proceedings wouldn’t have gone ahead and that’s the reality. And you can argue until you’re black and blue - that all the family reports pretty much suggest that. In hindsight, I’m sorry that the day that she actually did break into the house that I didn’t have her arrested. Because I should have. But you know what, I didn’t. And now, in hindsight, I probably should have. Because as a male, over the last five or six years, that’s what I’m constantly threatened with. And to be honest, your Honour, I’m fed up with it. And I want it over and done with. Whatever happens here today, the court wears that decision. Whatever orders are set down, the court wears that decision. If the court feels that she’s best with her Mother, well so be it, but one thing I am is I will stick to my word and if my daughter is hurt in any way, shape or form, through these proceedings, then the court will have to live with it, I guess, won’t they. So that’s what I have to say. That’s all there is to it, nothing more, nothing less.”[2]
[2] Transcript of Proceedings on 16 December 2013, line 30 to 20, p.75 to 76
Family Report
Both Ms McCreadie and Ms Bonney emphasised the long term involvement of Family Consultant, Ms F, by way of the preparation of four Family Reports from early 2009 until the most recent Family Report in December 2013. They submitted that in light of this significant weight should accord to the opinions and recommendations of Ms F.
The evaluation by Ms F is set out in full below:
“EVALUATION
In the following evaluation, I address the issues identified, and then offer recommendations based on the information available at the time of writing this report. I will particularly address the factors identified as significant in the context of relocation and those requested of me in the Court Orders dated 28th May 2013.
Mr Taber’s parenting effectiveness. His involvement in parenting and his willingness and ability to provide for the children’s welfare, development and safety.
130.Mr Taber presents as a competent and involved parent to [A], [B] and [X]. Since he and Ms Taber separated some five years ago now, as a sole parent, Mr Taber has provided for the children’s welfare, safety and development. Despite Ms Taber’s views to the contrary, Mr Taber presents as a calm and thoughtful parent, providing nurturing and leadership. The sound development of the two older children – [A] and [B] – reflects Mr Taber’s positive parenting capacity.
131.Mr Taber’s response to [X] in the observation for this report also reflects his appreciation of the need for emotional support of a child who is in her position.
Mr Taber was calm, warm, firm and responsive to [X], who responded positively to his emotional leadership.
132.Mr Taber has now established a successful business and a positive relationship with Ms E, who presents as a positive figure in the children’s lives. His bitterness and cynicism towards Ms Taber however, continues to pose a risk to the possibility of [A] and [B]’s repair of their relationship with their Mother, and may well have contributed to the recent rupture in [X]’s relationship with him.
133.Regrettably, the chronicity of this dynamic does not bode well for positive change, but in the interests of continuing to provide emotional leadership for his children,
Mr Taber should attempt to address his reactivity towards Ms Taber. While he may not consider it necessary, it would nevertheless benefit Mr Taber to attend time limited counselling with an experienced clinical psychologist such as Mr C [phone number omitted], who will also assist him in repairing the relationship with [X].
Ms Taber’s parenting effectiveness. Her psychological stability, and ability to provide for the children’s welfare, development and safety.
134.Ms Taber is also a competent parent and her youngest child [Y] appears to be developing well. Ms Taber is still grieving the loss of her relationship with [A] and [B], and this is now so chronic that [X] is highly attuned to her Mother’s emotional wellbeing and appears to be caught in a conflict of loyalty and sense of responsibility to remain with her Mother.
135.Ms Taber has not adequately addressed her grief and she has shown a level of limited insight about the effect on [X] of not doing so. Ms Taber’s support of [X]’s apparent feelings of discomfort in the relationship with Mr Taber, do not provide emotional leadership for the child in addressing the rupture.
136.Additionally Ms Taber’s comment to [X] about
Mr Taber’s possible motivation of jealousy in the photograph incident can only send ambivalent messages to a nearly adolescent girl about adult relationships. I do not agree that [X] is sufficiently emotionally mature to choose how to manage significant relationships such as those with her brothers and Father, and even paternal Grandfather. If [X] had been allowed to choose not to see her Father in the observation for this report, the underlying strength of that relationship would not have been experienced by the child or observed for the Court.
137.Notwithstanding these concerns, Ms Taber appears to have a sound relationship with Mr A and they have established a nurturing family unit for [Y]. [X] also appears to be well included in this unit and warmly thought of by Mr A.
138.As already noted, Ms Taber’s chronic grief reaction to the loss of [A] and [B] must be addressed if her parenting capacity in relation to [X] - and [Y] - is not to be compromised. The chronic parental conflict and patterns of emotional projection onto Mr Taber – and he onto her – must also be addressed in order to protect [X] in her own development. As a matter of some urgency, Ms Taber should seek professional counselling and should attend for at least six months on a regular basis.
Ms Taber’s capacity to support [X]’s relationship with
Mr Taber.139.The effects of divorce on children’s adjustment has been extensively studied and clearly indicates that children have the best long-term adjustment when they have meaningful relationships with both parents, and more importantly, parents who have a low conflict relationship with each other.
140.In relocation cases, the role of the primary parent in supporting the non-relocating parent’s relationship with the children is considered to be most significant. Promoting access and verbally supporting the other parent will maximise the probability of an ongoing relationship for children and that parent, thus resourcing the children with ongoing emotional, psychological and social support.
141.While not moving a long distance from Mr Taber’s residence, Ms Taber will need to demonstrate active facilitation of the relationship between [X] and her Father. While acknowledging the need for [X] to have a relationship with Mr Taber – and her brothers – Ms Taber is also conveying ambivalent messages when she refers to [X] ‘choosing’. Ms Taber should be firm and unequivocal in her communication to [X].
142.The quality of attachment relationships for children is affected by the quantity of time. [X]’s overall positive response to the quite regular time with Mr Taber until only recently, indicates the benefit to her development. In the observation for this report, the underlying security of the attachment relationship for [A], [B] and [X] with
Mr Taber was marked, despite the relatively recent rupture for [X] and her Father.
The age of the child. Her development, individual resources and temperament, including physical, cognitive and emotional capacity.
143.Adolescent children are found to have increased difficulty adapting to relocation, due to the increased significance of social networks and peer group at this age. [X] is well settled in her community and if she were to remain living in the area, would likely attend secondary school with a group of familiar friends. Should relocation be permitted, this factor will be a risk to [X]’s emotional development and will need to supportively monitored by Ms Taber particularly.
144.To add to the picture, the child’s temperament and their own resourcefulness, particularly cognitive functioning, should also be considered. Children with an easy temperament are more adaptable and elicit positive responses from adults and peers, and with sound cognitive functioning, they can understand the issues more effectively.
145.Up till recently, [X] was a happy and well cared for child who was managing the equal shared care by parents who were in at times considerable conflict. Despite the unresolved issues between Mr and Ms Taber and the almost complete estrangement of [A] and [B] – aside from the remaining emotional intensity – from their Mother, [X] has reportedly continued to develop well academically, socially and in sporting prowess as well.
146.Should [X] move to the [omitted] area with Ms Taber, then her temperament is likely to support a positive adaptation to school and the community.
The child’s relationship with both parents, significant others and extended family.
147.[X] is securely attached to Ms Taber, although with a level of anxiety about her Mother’s emotional wellbeing. It will be crucial that Ms Taber attend counselling to strengthen her own emotional functioning.
148.As a young girl moving towards adolescence, she is likely to need Ms Taber’s supportive role modelling, as well as support in re-establishing the relationship with her Father.
149.[X] is also securely attached to Mr Taber with an underlying strong bond. The rupture to this bond has only recently emerged and it is essential that every effort be extended to repair the relationship. Mr Taber and [X] particularly must attend an experienced family therapist – such as Ms T or Dr M – to address their relationship, and Ms Taber and [A] and [B] should be included as recommended by the therapist.
150.[X] and her two older siblings have a strong relationship that has undoubtedly been strengthened as a result of their parents’ separation and Mr Taber’s support.
151.A significant figure for all three children has also been Mr T, who has also provided consistent and loving care as the children have developed.
152.[X] has a positive relationship with Mr A and her half-sister [Y]. It is regrettable that [A] and [B] have not built a relationship with [Y], supported as this might have been by both Mr and Ms Taber.
The child’s likely adjustment to relocation.
153.The stress of change and transition in moving away from her familiar community, known since birth, settling into new schools, as well as extended separation from
Mr Taber and [A] and [B], may be significant emotional overload for [X]. It will be crucial that Ms Taber is sensitive to these stressors and provides emotional leadership.
154.If relocation does proceed, it will be crucial that Ms Taber particularly, is emotionally supportive and physically present to provide a buffer for [X] as she commences school and establishes outside activities, as well as social relationships. Mr Taber’s ongoing interested support – albeit from a distance - would also be crucial.
155.The most significant risk to a successful outcome for [X] would be the potential loss of the psychological and social involvement of Mr Taber in her life. Despite
Ms Taber’s views to the contrary, it is apparent that
Mr Taber has provided stimulation, nurturing and the ongoing extended family support.
156.While the research indicates that in relocation cases, the loss of frequent time is not as significant as the loss of the quality of involvement with the non-relocating parent, the strong underlying bond for [X] with her Father will undoubtedly lead to further grief than what she is experiencing now in response to the ruptured of their relationship. As an adolescent under increased stress should she move to live in [omitted] with Ms Taber, [X] will need to be supported and monitored.
157.Should relocation proceed, it will be crucial that a workable parenting plan is in place that not only includes as frequent and regular times as possible for Mr Taber with [X], but one that also includes [A] and [B], and regular and frequent contact using telecommunications.
158.A positive outcome for [X] with relocation will only be optimised with Mr and Ms Taber’s supportive response that remains child focussed, and particularly if Ms Taber supports [X]’s ongoing relationship with her Father.
159.If relocation does not proceed and [X] is ordered to live with her Father, it is likely that her emotional distress will be significant, given the turbulent family relationships, particularly of the past twelve months. Nevertheless, given the strength of the relationship with [A], [B] and Mr T Senior, as well as the underlying strength of the relationship with Mr Taber, [X] is likely to settle after some time, but she will require considerable professional support and the recommended family therapy that must occur anyway.
The geographical distance involved in relocation and the travel time.
160.This is a risk factor associated with the loss of parental involvement as a result of relocation. High parental involvement before relocation – as in Mr Taber’s case up until only recently – has been shown to be placed at risk when geographical distance is significant and travel time is considerable.
161.The travel time between outer Melbourne and [omitted] is around two hours and the return trip would not be conducive to short visits.
162.It would be imperative that driving is shared between Mr and Ms Taber.
Living arrangements that might meet [X]’s best interests.
163.In light of the above discussion, the information and research that has informed that discussion, and my observations, I hold some misgivings about the effect on [X]’s development of moving to live in the [omitted] area with Ms Taber, particularly the capacity of Ms Taber to facilitate ongoing time for the child with her Father and brothers.
164.However, given [X]’s age and gender - a nearly adolescent girl – and her stated wishes, it may be more appropriate to live with Ms Taber, but only if she spends regular time with Mr Taber and her brothers.
165.It will be crucial that Mr and Ms Taber support the children’s relationship with each other, and so an arrangement such as alternate weekends between Friday and Sunday and any other flexible times, along with half school holidays for [X] with Mr Taber, would be a preferred option.”
The recommendations made by Ms F are set out at [15] above.
In Hall & Hall (1979) FLC 90-713 at [78819] the Full Court of the Family Court of Australia made some general and helpful observations about the weight a Family Report should be given:
“(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted[3].
This decision was considered and approved by the Full Court in Friscioni & Friscioni [2010] FamCAFC 108 and Hannigan & Sorraw [2010] FamCAFC 257.
In Friscioni & Friscioni at [10] quoting the trial Judge the Full Court said:
“Of course the family report process gives reporters a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life, and their assessments are based on the body of learning related to their professional qualifications and experience. But they do not have the advantage of hearing the evidence tested or of observing those involved in a different setting. Nor, usually, is it apparent that they have arrived at the outcome they recommend by taking the path imposed by the Act through the suite of provisions about best interest considerations, parental responsibility and time. Some of the components which underlie the best interest considerations fit well with their expertise and invariably their evidence about that is very important, but the outcome is for the court and while recommendations about it may be helpful in some cases, not the least with settlement discussions, plainly that does not prevail over the court’s responsibility to evaluate all of the evidence, including that given by the reporter, via the structure imposed by the Act and to come to an independent decision about what is best for the child in all the circumstances.”
I will consider Ms F’s recommendations later. I observe here that I concur generally with her opinions and observations in relation to the Mother and the Father subject to the following caveat. The calmness Ms F observed of the Father in her interview with him was not apparent in these proceedings. The Father struck me as person who is not able to accept his daughter’s wishes. Rather, he blames the Mother for his lack of contact with his daughter in recent times. He did concede to Ms McCreadie that both parties may have contributed to the present circumstances but he did not elaborate. Extraordinarily, he gave evidence in cross examination that the relationship was “dead” ten years before it ended. That he should have left the relationship after [A] was born. In fact the parents had two more children. This evidence was unnecessary and non-responsive and I formed the view that it was given in order to shame and hurt the Mother who was present sitting in the Courtroom at the time.
The Father’s stance in refusing to communicate with the Mother in the future and to participate in counselling to assist all children and to co-parent effectively displays a complete lack of ability to focus on the needs of all the children. It is extremely worrying and concerning that the Father cannot place the interests of his children above his bitterness towards the Mother.
I note here that the Mother has through her Counsel accepted that she needs to attend family therapy counselling and individual counselling.
The Father said in cross examination that he lost interest in these proceedings when he had a discussion with Counsel for the Independent Children’s Lawyer and Ms F and formed the view that, “it was not going well.”
In light of the evidence and the submissions of the Father in Court, whilst I accept that the Mother will need to work much more proactively in dealing with her grief about her two sons and in facilitating [X]’s relationship with her Father, I have formed the view that the Father will take no steps at all to facilitate [X]’s relationship with her Mother whether [X] lived with him or spent time with him. I disagree with Ms F’s opinion that the Father is a person who appreciates the need for emotional support for a child in [X]’s position. It is clear that he does not appreciate [X]’s needs for the security and emotional comfort of parents who display effective cooperation and communication.
The law and applicable principles
The Mother’s proposed parenting orders provide for her to relocate with [X] to [L], near [omitted]. She and Mr A are in the process of building a home on a 15 acre property in [L]. She anticipates the build to be completed in January or February 2014. She wants to move to [L] on 6 January 2014. She says that [L] is 149km west of Melbourne and around 30km from [omitted]. [X] is enrolled to start year 7 at [M] School, and has joined and played with the [sporting club omitted]. There is no dispute that [X] loves playing [sport omitted].
The Act does not expressly deal with relocation, rather any proposed parenting order which provides for relocation must be considered, together with numerous other considerations, in applying the statutory provisions of Part VII of the Act. In making a parenting order the Court must regard the children’s best interests a paramount consideration: s.60CA.
In determining the children’s best interests, the objects and principles set out in s.60B, Part VII of the Act are relevant.
Section 60CC(1) provides that, in determining what is in the best interests of the children, the Court must consider matters expressed as primary and additional considerations specified in s.60CC(2) and (3) of the Act. These matters are considered below.
Section 61DA provides that, when making a parenting order in relation to a child, the Court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parents family or family violence. Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Where a parenting order provides that the parents are to have equal shared parental responsibility for the child the Court must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time, and if not equal time, substantial and significant time with each parent; s.65DAA(1) and (2). The meaning of substantial and significant time is set out in s.65DAA(3).
Section 65DAA(5) provides that the Court must have regard to particular matters in determining whether it is reasonably practical for a child to spend equal time or substantial and significant time with each of the parents. These matters are specified as:
“…
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
Ms McCreadie for the Independent Children’s Lawyer submitted that, having heard the evidence of the parties, it is clear there is no scope for them to conduct even a business like relationship in relation to the long term care, welfare and development of [X]. The Independent Children Lawyer proposes that the Mother have sole parental responsibility subject to specific orders to inform the Father of decisions in relation to [X]’s education and health and to enable the Father to access information on and participation in [X]’s schooling and extra-curricular activities.
I find on the evidence that the communication between the parents is minimal, erratic and at times dysfunctional. The Father has made it clear that he will not in the future communicate with the Mother at all.
If the parental responsibility is to be shared between parties then section 65DAC(3) requires parents to “consult” and to “make a genuine effort” in reaching “joint decisions” about “major long term issues” for the child.
Major long term issues is defined in section 4 as “issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues…..about the child's education (both current and future)….religious and cultural upbringing… health…name and changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Having considered the evidence and the submissions I find that it is not in [X]’s best interest for the parents to have equal shared parental responsibility for the following reasons:-
a)The ability to consult as required by section 65DAC(3) is questionable as illustrated by the following:-
i)The Father stated in cross-examination that he hasn’t spoken to the Mother for two years;
ii)During the period from early 2013, when the Father was not spending time with [X], in accordance with the Orders, neither parent took proactive steps to contact each other to facilitate time being spent. The Mother says she can’t speak to the Father face to face or by phone, because he insults her. Consequently, she avoids face to face or telephone contact. The Father’s position was that it was up to the Mother to deliver [X] to him;
iii)The current level of communication between the parties is limited consisting mainly of text messages and emails;
iv)The evidence of this limited communication (contained in attachments to the Father’s and Mother’s affidavit) reveals misunderstandings regarding even the most basic arrangements[4] and is replete with accusations, threats and barbs directed at each other. For example; from the Father, “Again just a bunch of lies”, “we do plenty as a family especially now I’m seeing a women who finds family important and is not ashamed to be seen in public with the children”, “with your history of lies and deceit..”, “Dad will be making application for his right to see [X] regularly and so will [A] as he plans to be heard in the upcoming hearing which is his right. I also plan to take this fight to the next level of court based on my constitutional rights.”[5] From the Mother, “[Mr Taber] we are tired of your games..”, “You hurt ([X]) bad and you know it”, I emailed pleading for you to call ([X]) and again no response?? Are you really that surprised that she doesn’t want to come to see you?”, “You talk about complying with the orders but when we go out of our way to give you a chance to do something special, something that wasn’t ordered by a court you smash her dreams into a million pieces.”[6]
[4] Attachments “PAT7” to “PAT9”, Father’s affidavit filed 10 December 2013, Attachments “SLT1(i) to ((vi), Mother’s affidavit filed 20 November 2013
[5] Emails 8 November 2013, Attachment “PAT5”, Father’s affidavit filed 10 December 2013
[6] Ibid
v)It should be noted that this communication is occurring in circumstances where the parties have been separated for five years.
b)The parties ability to “make a genuine effort” to make joint decisions is unlikely given:-
i)The Father blames the Mother for the lack of contact he has had with [X];
ii)The Father stated categorically in Court that he will not communicate with the Mother. In these circumstances it would clearly be impossible for both parents to consult and make a genuine effort regarding joint decisions;
iii)
The Father says he doesn’t trust the Mother. The material supports a mutual lack of trust between the parties with
Ms F commenting at [132] of the December 2013 Family Report of the Father’s “bitterness and cynicism” to the Mother and at [133] the “chronicity of this dynamic” not boding well for positive change;
iv)Despite separation having occurred some five years ago the parties still have not adequately addressed the adult issues which have caused and continue to cause conflict between the parties, and these rifts on the balance of probabilities will continue into the future;
v)Whilst the Mother has stated that she will undertake counselling in accordance with Ms F’s recommendations, the Father has stated he will not do so, he does not see the need for this to co-parent.
c)It is unlikely, therefore, that there will be any improvement in the parties’ capacity to consult and make a genuine effort to make joint decisions regarding the care, welfare and development of [X] of a long-term nature.
d)The children since 2009 have been and [X] continues to be the subject of litigation. Because of various factors including being part of the family report process and the parent’s high level of hostility towards each other, [X] has been enmeshed in the proceedings. I find that an order for equal shared parental responsibility will possibly lead to further litigation when agreement cannot be reached and this litigation will impact both directly and indirectly on [X].
Based on the above, I am satisfied that it is not in [X]’s best interests for parental responsibility to be shared by the parties.
There is no dispute that [X] should live with her Mother. The Father now agrees that [X] should live with the Mother because this is [X]’s wish. Ms F recommends that [X] live with her Mother. I am satisfied that it is in the best interests of [X] that she reside with the Mother. Foremost amongst the matters which favour this living arrangement is of course [X]’s age, her stage of life where she is transitioning to an adolescent, her view and my earlier finding that the Mother is more likely to further the relationship of the child with the other parent as well as her siblings.
I will provide in the parenting order that the Mother have sole parental responsibility for [X]. Provision will be made for the Mother to inform the Father of any long term decisions, including informing him as soon as practical of any significant illness of injury suffered by [X] whilst in her care along with the names and contact details of any treating medical practitioners and allied health professional so that he may liaise with them (at his own expense) about [X]’s diagnoses, prognosis and treatment. Provision will also be made authorising [X]’s school to provide the Father, at his expense (if any), any copies of school reports, newsletters, photograph order forms and correspondence normally provided to parents. The Father shall be able to attend any extracurricular or school related events that parents are normally invited to.
Whilst the Court’s consideration of proposals for relocation must be approached in the same way as any other parenting order, the Courts have developed and refined general principles applicable to relocation cases. The decision of McGuire FM (as His Honour then was) in Vigano & Latimer[7] distilled at [43] to [45] applicable principles in relocation cases (footnotes omitted):
“43.Prior to the amendments to the Act in July 2006 the authorities had set out a preferred approach to determining parenting matters involving relocation. In A v A: Relocation approach the Full Court set out a summary of principles to be applied in determining these matters. The High Court of Australia subsequently in U v U ameliorated the strict approach in A v A (supra). In yet a further subsequent case the Full Court in KB & TC said at [79,699]:
U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
44.After some academic discussion following the 2006 amendments, it seems clear that the general principles in relocation cases remain valid. In Morgan & Miles (supra) at [80] Boland J says:
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
45.A helpful summary of the law and extraction of the principles in relocation cases was made by Neville FM in Illidge & Norton at [13] where his Honour says, and repeating the same summary from an earlier judgment in F & F:
There is a growing body of judicial authority that provides the relevant legal principles to be applied in relocation cases, and the issues that regularly arise concomitantly in them, such as parenting orders. Drawing from the authorities listed, those principles may be summarised as follows:
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; A v A, [91]; cf. P v P, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80], Hayne J, [171]; KB & TC, [71]; P v P, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; A v A, [67] cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. P v P, [36]). Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]). Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; A v A, par.85; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether to relocate is, or is not, in a child’s best interests. (A v A, [96]).
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. (AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; A v A, [103 & 104] cf. M v S and “virtual visitation” [93]).
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (A v A, [65]; U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171 & 172]; KB & TC, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; KB & TC, [84]; P v P, [40]).
In addition to the above, it is essential to note the cautionary and critical observation of Gummow and Callinan JJ in U v U [92] which, in many respects, underlies the principles enunciated above:
The reality is that 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 have been incurred.
To this I would only add that, in certain respects, one responsibility of the Court is to apportion, according to principles of justice and equity in the context of what is in the best interests of the particular children involved, in what proportion, and how, the sacrifices will fall on each of the parents of the children. In saying this, the apportionment of the moral and legal obligations of parenthood should not be seen by either party as an apportionment of blame, and still less of “guilt.”
Having determined, on the evidence, that the presumption of equal shared parental responsibility is rebutted as I am satisfied that it would not be in the best interest of [X] for her parents to have equal shared parental responsibility for her, I am not required to follow the legal pathway mandated by s,65DAA. As noted earlier, s.60CC specifies the matters the Court must have regard to in considering what is in the best interests of the children. It is appropriate, therefore, to consider these matters having regard to the competing proposals of the parties and the evidence before the Court.
Primary considerations
Section 60CC(2)(a) – benefit to the child of having a meaningful relationship with both of the child’s parents
The adjective “meaningful” is a qualitative not strictly quantitative one: Mazorski & Allbright [2007] FamCA 520 at [26]. As Kay J observed in Godfrey & Sanders [2007] FamCA 102 at [36]:
“…Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
In McCall & Clark [2009] FamCA 92, the Full Court stated at [119]:
“It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
The concept of “meaningful” was expanded on by Cronin J in Tait & Densmore [2007] FamCA 1383:
“To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.”
The enquiry in relation to s.60CC(2)(a) is a prospective one requiring the Court to :
“…evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to B into the future.”: G & C [2006] FamCA 994 at [72]
Whilst the Court must consider the best interests of the child of having a meaningful relationship with each parent, this benefit must be weighed against all other factors, in determining orders which have the children’s best interests as the paramount consideration: Champness & Hanson [2009] FamCAFC 96 at [103].
Whilst the Father initially proposed that [X] live with him, in the proceedings, on the basis of [X]’s wishes, he stated he did not oppose [X] living with the Mother.
Ms F’s opinion is that [X] is securely attached to both her parents. Key risk factors identified by Ms F are [X]’s level of anxiety about her Mother’s wellbeing and the necessity to repair the rupture to the bond as between Father and daughter flowing from the absence of contact in recent times.
Whether or not [X] relocates to [L] with her Mother, much is required to be done by the Mother to further the bond between [X] and her Father and to do this she will clearly require therapeutic support on an ongoing basis. As pointed out by the ICL, in this family the complete estrangement between [A] and [B] is a stark reminder of the dysfunction and sadness which can result where the bond between child and parent is severed almost irreparably.
Ms F recommends family therapy for both parents (attending separately) and for all three children. The Mother accepts this therapeutic strategy. The Father says he will facilitate family therapy for his sons but he will not attend counselling. Likewise, the Mother accepts the need for her to attend individual counselling, the Father does not.
At the proceedings, the Father stated that he sought time spent with [X] on alternate weekends and half of school holidays. An order providing for [X] to relocate with her Mother to [L] will not in itself, given the distance, involve reduced time spent with the Father. It would, however, make substantial and significant time difficult.
Modern technologies means telecommunication, such as “Skype” can facilitate a meaningful relationship with parents. The evidence is that [X] actively engages in this type of medium in maintaining and sustaining her relationship with her brother [B].
Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
This is not a factor which is raised on the evidence before me.
Additional considerations
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] is 12 and half years old. Her views regarding her family are relevantly recorded by Ms F as follows:
“93.[X] said she has ‘lots of fun’ living with her Mother, and described the household as ‘calm and nothing bad happens’. [X] said that she plays [sport omitted] with her Mother and Mr A ‘takes me out a lot … I sometimes call him Dad … he helps with my homework’.
94.When I asked for positives about her Father, [X] said ‘there’s not a lot. He’s always working. When the boys are there, they take the opportunity to hang out with me. We do Mindcraft and play [sport omitted].’
95.[X] said that on the Sundays when she is with her Father, the family visits Ms E. [X] said ‘she’s nice. The only problem is …’ [X] hesitated and went on, saying ‘Dad showed me a photo of someone and said he’s planning to leave [Ms E]. It was a month ago. He showed me a picture of a girl. I asked him why he didn’t like her and he didn’t answer’.
96.When I asked [X] why she was not seeing her Father, she replied ‘because he promised to take me to the Show. I waited all day. I lost complete and utter feelings for him’.
97.[X] went on, saying ‘Dad is not a nice person. He used to hit the boys. He threatened to hit them with a belt. It’s been going on before Court. It happened a lot when I was in grade four. I always talked to Mum, she said to be calm. She’s tried to talk to him, but he doesn’t want to co-operate and calls her names’.
98.[X] said that she and [B] communicate via Skype ‘a lot’.
99.Of her paternal Grandfather, [X] said ‘it was really good to see him. He’s really funny. I’d like to see them more’.
100.When I asked [X] what she would like to happen, she said ‘I prefer to live at Mum’s, it’s a safer environment. Dad’s always sleeping or he’s at [Ms E]’s house. I just want to hang with my brothers’.
101.[X] said that her Father ‘hasn’t hit me in years, but he yelled at me in December when I said I didn’t want to live with him anymore. He said me and the boys don’t want anything to do with you’.
102.[X] became very tearful when she said that she misses [A] and [B] ‘a lot’.
103.Of Ms Taber’s plans for relocation, [X] said ‘we’re building a house in [omitted] and I’m going to [M] School. We’ll be moving in January.’ [X] said that Ms Taber talked frequently about their plans.”
It is to be noted that whilst Ms F expressed concerns about [X] being highly attuned to the Mother’s emotional wellbeing and the Mother’s support of [X]’s apparent feelings of discomfort with the Father, Ms F did not suggest that [X]’s views expressed to her were being coached or manipulated by the Mother as alleged by the Father.
I am satisfied that [X] is of an age and emotional maturity that her views should be given weight in determining what is in her best interests.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The relationship between [X] and her Mother is clearly close and the family unit with Mr A and her half-sister [Y], is a warm and loving one. Ms F opines that the Mother must, with therapeutic intervention, deal with her grief regarding her estrangement from her sons so that she can provide a nurturing environment in which [X] and [Y]’s developmental needs can be nurtured. To her credit the Mother has stated that she will undertake individual counselling.
Ms F observed that that there is a strong bond and secure underlying attachment relationship between [X], her Father and her bothers, [A] and [B], notwithstanding the recent rupture between [X] and her Father. It is clear that [X] has a positive and loving relationship with her paternal Grandfather and she wants to see him more. It is important that, into the future, this bond and attachment is supported by way of regular time spent with this family unit and a proactive and firm approach taken by the Mother.
I concur with Ms F opinion that in the event that the Mother’s proposal for relocation is granted by the court, the Mother’s role in supporting the Father’s relationship will be even more important.
Ms F also observes that, given the rupture of the bond between the Father and [X], every effort must be made to repair the relationship. I agree. She recommends that the Father attend family therapy with [X], with the inclusion of [A], [B] and the Mother as recommended by the therapist. Unfortunately, the Father has stated that he will not attend counselling himself. This is short sighted of him. By his stance he reveals somewhat limited insight into what steps are necessary to further his relationship with his daughter. He says he wants to see his daughter and have a loving relationship with her. I do not doubt this. Sadly, however, in refusing to participate in counselling at all, he appears not to grasp that this natural desire of his may well be thwarted for some time, if not in a way that has happened as between the Mother and sons.
Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child
The Mother was given sole responsibility under Orders made on 14 March 2013 for deciding which high school [X] should attend.
Until the events of December 2012 when [X] decided she wanted to live with her Mother and the ever diminishing contact between Father and [X] after March 2013, both parents spent time and communicated on a week about basis.
Section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child
There is no evidence before the court in relation to [X] to suggest that both parents have not fulfilled their obligations in this regard.
Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living
Without doubt, relocation will require adjustment by [X] as she will be changing her home environment, leaving friends behind as well as starting secondary school.
Ms F observes that:
“140.In relocation cases, the role of the primary parent in supporting the non-relocating parent’s relationship with the children is considered to be most significant. Promoting access and verbally supporting the other parent will maximise the probability of an ongoing relationship for children and that parent, thus resourcing the children with ongoing emotional, psychological and social support.”
Ms F observes that adolescent children are found to have increased difficulty in adapting to relocation because of the loss of social networks and peer groups at this age. She also notes that the child’s temperament and resourcefulness, particularly cognitive functioning, is relevant to the effect of such change on the child.
As the Father has argued, if [X] relocates to [L] with her Mother, she would be leaving behind friends whom she has known since the beginning of her school life. She will inevitably be leaving behind her social group. However, there is no dispute that [X] has continued to develop well academically, socially and in her sporting prowess. She loves [sport omitted] and is already playing with the local [sport omitted] team.
The Mother is committed to ensuring [X] has access to family therapy and any necessary therapeutic support. Further, the Mother will attend individual counselling which will no doubt assist her nurture [X].
The most significant risk factor into the future is the erosion and loss of [X]’s relationship with the Father (and hence her brothers and paternal Grandfather). No doubt the Mother has a proactive role she must adopt in this regard. On the evidence, in the proceedings, the following factors will contribute to this risk:
a) The Father’s refusal to participate in therapeutic support with his daughter;
b) The Father’s refusal to communicate with the Mother; and
c) The Father’s reluctance to share travel driving time, were [X] to relocate to [L].
The first two risk factors apply whether or not the Court grants the Mother’s application to relocate
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The practical difficulty and expense is not an issue arising from the Father’s proposed parenting orders.
The Father’s evidence is that there are practical difficulties for him in sharing the driving necessary to give effect to changeover, were [X] to relocate to [L] with her Mother. These include interfering with his work and family time, including time with his new partner, Ms E.
In cross examination, he was not prepared to agree that driving would give him an opportunity for quality time with [X]. He did concede that, if Ms E’s time with her children correlated with any obligation under an order for him to deliver or collect [X] from [L], Ms E would be present for [A] and [B]. He also conceded that it would provide an opportunity for [A] and [B] to join in with the trip. He maintained that he would have to think about whether he would share the driving if his daughter relocated.
I accept that, were [X] to relocate to [L], there will be inconvenience to the Father if he were required to share. However, in my opinion, any inconvenience to the Father must be weighed against the benefit to [X] in having in place an arrangement which she will see is shared by both parents. Her best interests can only be furthered by conduct that displays co-operative parenting. The Father’s reluctance to state in cross examination whether he would comply with an order to share diving where the Mother is permitted to relocate with [X] is a concern which must be considered when framing parenting orders.
Section 60CC(3)(f) – the capacity of each of the child‘s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Ms F opined that both parents were competent involved parents. I have earlier dealt with the steps the Mother must take to ensure that [X] is not attuned to her grief regarding the loss of her relationship with her sons and to provide a nurturing environment for [X] and [Y]. The Mother has stated in evidence that she will take the necessary steps.
I have earlier commented on the risk factor posed to [X] as a result of the Father’s refusal to engage in therapy with his daughter, attend counselling to address his ongoing bitterness towards the Mother and his stance regarding future communication with the Mother.
It is clear that [X] has a positive and loving relationship with her paternal Grandfather and she wants to see him more.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
I have earlier dealt with the characteristics of [X] which I think are relevant to the matters I need to decide.
Sections 60CC(3)(h) is not relevant to a consideration of this matter.
Section 60CC(3)(i) – the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
There is no doubt that both parents love [X] and have, in their own way, been acutely aware of the responsibilities of parenthood, notwithstanding the conflict between them and damaging estrangement as between Mother and sons.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family; and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
These are not relevant factors in this matter.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is clearly preferable for the Court to make orders that are least likely to lead to the institution of further proceedings. It is in the interest of [X] that the lengthy litigation about parenting orders be finalised.
In framing parenting orders there are two matters, arising from the evidence and submissions of the Father, which cause the Court concern. These are:
a) The Father says he will not participate in family therapy with [X] nor attend individual counselling himself. This is a concern because it is evidently appropriate and necessary, given the recent rupture in his relationship with [X], for the repair of their relationship and the restoration of a meaningful relationship for Father and daughter to attend family therapy. [X]’s best interests are served by effective co-parenting. The Father should attend individual counselling to address his evident mistrust of and bitterness towards the Mother. The inability of the Father and Mother to communicate on even a business like basis puts at risk the implementation of parenting orders. The Father says he will only deal with [X]. This is unfortunate and not in her best interests as it places on her responsibilities which the parents should bear in co-parenting. As I have said, after a long period of litigation [X] is entitled to the security and comfort of effective co-parenting;
b) It is unclear whether the Father will comply with an order for shared driving in the event the Mother is permitted to relocate with [X] to [L]. This is a significant concern because it places at risk arrangements for time spent with him as well as the delivery of [X] back to her Mother following the Father’s time. Each of these circumstances clearly increases the likelihood of further litigation.
Section 60CC(3)(m) -any other fact or circumstance that the court thinks is relevant.
There is no need for compelling reasons to justify a parenting order involving relocation. The Mother’s reasons for relocating were not subject to cross examination by the Father. Her reasons are simply that she and Mr A have purchased land and have almost completed building a home in [L]. Together with [Y] and [X] she wishes to reside there with Mr A undertaking her role as Mother and homemaker.
Equal time/ Substantial and Significant time
Although I am not required to follow the pathway mandated by s.60DAA I nevertheless consider it appropriate to consider whether equal time between the parents or substantial and significant time spent with the Father are in [X]’s best interests and reasonably practicable. - #
Equal time arrangement is not sought by either party and I am not satisfied that it is in the best interest of [X] to spend equal time with each parent. This finding flows from my considerations of the matters specified under s.60CC of the Act.
I am further not satisfied that it is reasonably practicable for the children to spend equal time with each parent. In my opinion the parents presently lack the capacity to effectively communicate and resolve the difficulties that might arise and this will persist for at least the medium term future.
Although not pressed by any party, I have considered whether substantial and significant time with the Father is would be in [X]’s best interests. Substantial and significant time is defined in s.65DAA(3) as including time spent with a parent on weekend and holidays and days other than weekends and holidays and which enables the parent to be involved in the child’s daily routine. I am satisfied it would be, subject to the attendance by both parents in family therapy and individual counselling, in [X]’s best interests to have substantial and significant time with her Father.
Where the Mother and [X] remain in [H] substantial and significant time would be reasonably practicable.
Clearly, given the distance the parents would live apart, if relocation were allowed, it would not be reasonably practicable for such an arrangement to be in place.
Should the applicant be allowed to relocate to [L], Victoria NSW?
Having considered the evidence and the proposals of the parties against the relevant statutory criteria, I am satisfied that it is in [X]’s best interests that she reside with the Mother and that the Mother and [X] be allowed to relocate to [L], Victoria.
Parenting Orders
I must now determine what parenting order should be made.
As observed by Courts in relocation cases, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. The child’s best interests remain the paramount but not sole consideration. A judicial officer must consider all proposals, and may be required to formulate proposals in the child’s best interests.
I have found that the child should reside with her Mother and that the Mother has sole responsibility for the child.
I will include in the Orders provision for the Father to be informed of decisions regarding [X]’s attendance at medical and other health professionals and authorisation for the Father to receive, at his expense, copies of relevant reports and information regarding [X]’s attendance at school and participation in [X]’s school activities.
The Mother and Father both propose time spent with the Father on alternate weekends and half of school holidays. The Father has to think about whether he will share the driving if the Mother locates. The sharing of driving is recommended by Ms F and is not just a question of fairly sharing the travel time as between parents. More significantly, it conveys to [X] by way of conduct by the parents, that her parents are co-operating in the parenting arrangement which after all is what she says she wants. This co-operation has been sadly lacking for [X] for some time. I find that it is in [X]’s best interest that her parents share the driving involved when [X] spends time with her Father.
I take seriously the reluctance of the Father to commit to shared travel and have taken into account his reasons for doing so. This is because, the failure to implement the orders I make will only prove to be emotionally distressful for [X] at a time when she is making significant transitions and adjustments in her life.
I have decided that it would be in [X]’s best interests for her time spent with her Father during each school term to occur once every third weekend. This will no doubt place less of a burden on the Father given the commitments on his time which he has referred to in his evidence. I have decided that [X] should spend time with her parents for one half of each school holiday.
I find that both parents and each of their children should attend family therapy as recommended by Ms F and that both parents should attend individual counselling to address unresolved relationship issues and to strengthen their parenting capacity. I am mindful that the Father may refuse to attend the family therapy or counselling himself, nevertheless I will make the Orders.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 10 January 2014
- AGLC
- Taber and Taber [2014] FCCA 11
- Case
- [2014] FCCA 11
- Decision Date
CaseChat Overview and Summary
The court was required to determine the best interests of the child, [X], in light of the proposed changes to living arrangements, parental responsibility, and the father's time with the child. Specifically, the court had to consider the mother's application to relocate with the child to [L], Victoria, and to be granted sole parental responsibility for all major long-term issues concerning the child. The court also had to establish new communication and time arrangements between the father and the child, as well as address provisions for the child's health, education, and the parties' participation in therapy and counselling.
Judge Jones discharged specific paragraphs of the previous consent orders and made new orders reflecting a significant shift in the parenting arrangements. The child was ordered to live with the mother, who was permitted to relocate with the child to [L], Victoria. The mother was granted sole parental responsibility for all major long-term issues concerning the child. The father's time with the child was detailed, including specific arrangements for school terms and holidays, and liberal communication via electronic means was also ordered. Further orders mandated the parties to attend family therapy and individual counselling, and the Independent Children's Lawyer was discharged, save for costs. The court also included particulars of obligations and consequences of contravention pursuant to section 65DA(2) of the *Family Law Act 1975* (Cth).
Orders
Orders of the court
1.
Paragraph 2, so far as it concerns [X], born [in] 2001 (“the child”), and paragraphs 4 and 6, of the Orders made by consent on 22 December 2010 are discharged,
2.
The child shall live with the Mother.
3.
The Mother shall be permitted to relocate with the child to [L], Victoria
4.
The Mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child.
5.
The Father shall communicate and spend time with the child:
(a) During the school term, each third weekend from 6.00pm on Friday to 6.00pm on Sunday;
(b) Subject to order (5)(C), during school holidays, for half of each holiday being the second half in even numbered years commencing at 12 noon on the first day of the half period and ending at 4.00pm on the last Sunday proceeding the first day of the next school term and being the first half in odd numbered years, commencing at 6.00pm on the last day of the school term day and ending at 4.00pm on the last day of the half period; and
(c) Should the relevant holiday period be an odd number of days, the Father’s time be extended by one day at the commencement of time spent with him; and
(d) Both parents have liberal Skype, telephone, SMS text message and email communication with the child when she is living with or spending time with the other parent and, in default of agreement by Skype or smart phone on Tuesday and Thursday between 5.00pm and 6.00pm.
6.
The Father is to collect the child from the Mother’s residence at the commencement of time spent with the Father, and the Mother or Mr A is to collect the child from the Father’s residence at the conclusion of time spent with the Father.
7.
The Mother shall notify the Father as soon as practical of any significant injury suffered by the child and within seven (7) days of the date hereof notify the Father in writing of the name and address of any doctor or allied health worker who treats or provides services to the child and authorise those doctors and allied health workers to provide information to the Father at his request (and his own expense) about the child’s treatment and care.
8.
The Father be authorised (at his own expense) to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited or usually attend.
9.
Within seven (7) days of the date of these Orders the parties are to do all things necessary for each of the Mother and Father, [X] and the children, [A], born [in] 1994 and [B], born [in] 1997, to attend family therapy with Dr M at the dates and times specified by Dr M. The Mother is to provide Dr M, 7 days prior to the first appointment a copy of Ms F’s Family Report dated 10 December 2013 and a copy of this decision.
10.
Within seven (7) days of the date of these Orders the parties are to do all things necessary to attend individual counselling to address unresolved relationship issues and to strengthen their parenting capacity at the dates and times specified by counsellor. Each party is to provide the counsellor 7 days before the first appointment a copy of
Ms F’s Family Report dated 10 December 2013 and a copy of this decision.
11.
The Independent Children’s Lawyer is discharged save for any argument in respect of costs.
12.
Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.
13.
That all extant applications are otherwise dismissed and removed from the Pending Cases List.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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