Tait & Densmore
[2007] FamCA 1383
•27 November 2007
FAMILY COURT OF AUSTRALIA
| TAIT & DENSMORE | [2007] FamCA 1383 |
| FAMILY LAW – RELOCATION – Application by both parties – Husband’s application to change residence – Wife’s desire to move to Queensland from country New South Wales – Husband’s desire to move the children from country New South Wales to Melbourne – Wife’s proposal to set aside fund for contingencies in circumstances where she could not afford to pay airfares in the future – Meaningful relationship maintained – Best interests of the children |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| A & A; Relocation approach (2000) FLC 93-035 Parkinson P (2006), “Decision-making about the best interests of the child: the impact of the two tiers”, 20 AJFL 2 |
| APPLICANT: | Ms Tait |
| RESPONDENT: | Mr Densmore |
| INDEPENDENT CHILDREN’S LAWYER: | Loretta Terrill |
| FILE NUMBER: | MLF | 2039 | of | 2004 |
| DATE DELIVERED: | 27 November 2007 |
| PLACE DELIVERED: | Albury |
| PLACE HEARD: | Melbourne/Albury |
| JUDGMENT OF: | Justice Cronin |
| HEARING DATE: | 17, 18, 19, 20, & 21 September; 23 November 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Stewart |
| SOLICITOR FOR THE APPLICANT: | Robb & Associates Solicitors Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Forte Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Weil |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Loretta Terrill Family Lawyers |
Orders
That all previous orders in relation to the children be and are hereby discharged.
That the parties have equal shared parental responsibility for the children of the marriage:
(a)J born … January 1997; and
(b)M born … October 2001.
That the children live with the wife.
That the wife is permitted to relocate the children to the State of Queensland but not before the conclusion of the 2007 calendar year.
That the time to be spent by the husband pursuant to the orders of 9 August 2006 continue and otherwise remain in force until 31 January 2008.
That the children spend time with the husband as follows:
(a)during school terms in Queensland on the third weekend of each calendar month from after school (or 3.30pm) on Friday (or such other day as the husband arrives in Queensland) until the commencement of school (or 9.00am) Monday (or the next school day following the weekend) such time to take place in Queensland with the husband to travel to Queensland at his expense;
(b)during school terms in Queensland on the first weekend of each calendar month from Thursday evening until Tuesday morning with the wife, at her own expense to deliver and collect the children to and from Melbourne Airport;
(c)for one week in the Queensland Gazetted April school holidays with the parties to share equally in the cost of the children’s airfares;
(d)for two weeks in the Queensland Gazetted June/July school holidays with the parties to share equally in the cost of the children’s airfares;
(e)for one week in the Queensland Gazetted September school holidays with the parties to share equally in the cost of the children’s airfares;
(f)for one half of the Queensland gazetted long summer holidays with the husband to have the first half in 2008/2009 and alternating years thereafter and the husband to have the second half in 2009/2010 and alternating years thereafter.
(g)at such further or other times as may be agreed between the parties from time to time.
That the husband communicate with the children by telephone, he making the telephone call and the wife facilitating its reception and delivery to the children on each alternate night when the children are in the care of the wife.
That the wife communicate with the children by telephone, she making the telephone call and the husband facilitating its reception and delivery to the children on each alternate night when the children are in the care of the husband.
That the husband and the wife as soon as practicable do all acts and things as may be necessary to set up a functioning internet communication by webcam and maintain such internet connections and for that purpose, the husband communicate with the children and the wife facilitate such communication accordingly at reasonable times each week.
That the wife facilitate the children communicating with the husband at any time they request to do so.
That in order to facilitate the husband spending time with the children changeovers which do not take place at school, take place at Melbourne airport.
That the wife place $10,000 in an interest bearing account in the joint names of the parties, such account only to be accessed by both parties’ signature or further order of this court, and these monies are to be utilised for the wife’s share of the travel costs in the event she asserts she is unable to afford such costs.
That upon M’s eighteenth birthday, any monies remaining in the said trust account be paid to the wife.
That the husband have liberty to apply with respect to monies in the trust account in the event that the balance of the said account reduces below $2,000.
That each of the parties advise and keep the other advised of their current residential addresses and telephone numbers (landline and mobile numbers).
That each of the parties do all such acts and things and sign all such documents as may be necessary to:
(a)authorise the children’s schools to forward to the other (at the recipient’s expense) copies of all school reports, school photographs, certificates, achievement awards and like academic memorabilia;
(b)advise and keep the other advised of any serious and/or significant health issue experienced by the children or either of them during periods they are in their respective care;
(c)advise and keep the other advised of the children’s medical and treating health professionals from time to time.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIED
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That all applications are otherwise dismissed and all proceedings removed from the list of cases awaiting a hearing.
That all exhibits be returned to the party producing them upon the expiration of one month after the date of these orders.
That any material produced pursuant to any subpoenae be forthwith returned to the recipient of the subpoena.
IT IS NOTED that publication of this judgment under the pseudonym Tait & Densmore is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE/ALBURY |
FILE NUMBER: MLF 2039 of 2004
| MS TAIT |
Applicant
And
| MR DENSMORE |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
These are proceedings between the parties for parenting orders.
There are two issues. The first is whether there should be a change of the current parenting arrangement to give the husband the primary responsibility for the care of the children or whether they should remain predominately living with the wife. The second issue which really precipitated the proceedings is the application of the wife to relocate the children to reside in Queensland.
Interestingly, this case was tagged as a “relocation case” because of the wife’s desire to move from R on the New South Wales/Victoria boarder to Queensland. However, apart from the wife wanting to move to Queensland, the husband wanted the children to move to Melbourne. In either case there would be significant relocation of not only the children’s residential life but also some change in their relationship with each of the parents.
The children
The children are J born in January 1997 and therefore 10 years of age and M born in October 2001 and therefore almost six years of age. Throughout the proceedings and in these reasons for judgment, the children are referred to as J and M.
The existing orders
Final orders were made by consent of the parties on 9 August 2006. Those orders were all-encompassing and included property orders.
In respect of the parenting of J and M, the parties agreed that they would have equal shared parental responsibility but that predominately, the children would live with the wife and spend considerable time with the husband. The orders need to be examined in full because each party wishes to depart from their terms and that impacts upon the question of the meaningful relationship between each child and each parent as well as what is in the best interests of the children. The relevant paragraphs of the order therefore are as follows:
2.That the Husband and the Wife have equal shared parental responsibility for the children of the marriage [J] born […] January 1997 and [M] born […] October 201 (“the children”);
3.That during the school term the children live with the Husband each alternate weekend as follows:
(a)From the first alternate weekend from after school Friday to the commencement of school Monday with the Husband to collect and return the children to the Wife in [R], such residence period commencing on Friday 21 July 2006 and concluding on Monday 24 July 2006 and each fourth weekend thereafter.
(b)From the second alternate weekend from 8:00pm Friday to 3:00pm Sunday and each fourth weekend thereafter. The Wife is to drop off the children in Melbourne at the commencement of contact and collect them from Melbourne from the Husband commencing 4 August 2006 and each fourth weekend thereafter PROVIDED that the husband pays child support in accordance with the Child Support Agreement which has been agreed upon by the parties whether or not the Child Support Agreement is registered by the Child Support Registrar. In the event that the Husband does not so pay child support, then he is to collect the children at the commencement of contact and return them to the wife at the conclusion of contact.
(c)For the entirety of the second school term vacations in June/July commencing June 2007.
(d)That save as provided in paragraph (c) above for one half of all other school term vacations as well as half of the long summer school vacation.
(e)For the Christmas period in 2006 and each alternate year thereafter.
(f)For Easter 2008 and each alternate year thereafter with the Wife to have the children for Christmas and Easter in 2007 and each alternate year thereafter.
(g)On Father’s Day if the children are not otherwise living with him save that if the children are living with the Husband on Mother’s Day then the Husband’s residence period with the children will be suspended to enable the Wife to have contact with the children on Mother’s Day.
(h)For a minimum of 2 hours on each of the children’s birthdays if they fall during the week, at times to be agreed and for a minimum period of 5 hours should they fall on a weekend, at time to be agreed, and in the event that the children’s birthdays fall on the husband’s period of residence, the wife have the children for a minimum period of 5 hours at times to be agreed.
(i)For the purposes of pick up and return of the children the venue shall be at the Wife’s residential address and for Melbourne the Husband’s residential address.
(j)That each party shall be at liberty to telephone the children, if they are not in their care, for a one week period on two separate evenings and in default of agreement as to the evenings, each Tuesday and Thursday between the hours of 6:00pm and 7:00pm.
(k)For the Husband’s birthday.
4.That the children otherwise live with the wife.
There are three notations to those orders which need to be contemplated as part of the background. Those notations read:
A.That neither party should go without seeing the children for more than three weeks at one time.
B.Each of the term holidays has eighteen days with the parties to each have nine days each save for the second term holidays as provided for in paragraph 3c above. The Christmas period has 46 days with each party to have approximately twenty-three days each.
C.That the wife will prepare a schedule of contact at the commencement of each year on a calendar which she will provide to the husband before Term 1 commences.”
The proposal of the wife
The wife proposed that she be permitted to relocate the children to the Gold Coast and that thereafter, the children continue to spend almost alternate weekends with the husband. She proposed that one fortnight she would bring the children from Queensland to Melbourne at her expense from Thursday evening until Tuesday morning and a fortnight later, the husband travel to Queensland and spend the weekend with the children there.
The wife proposed that there be no alteration to the time spent between the husband and the children during the school holidays.
As a result of the husband seeking to alter the August orders so that the children should live with him, the wife had to contemplate a proposal for her time with the children in the event that the husband was successful. She said that if the children moved to live with the husband in Melbourne, she would move there as well and be nearby but it was clearly not her desired position.
In so far as the children currently reside in R on the New South Wales/Victoria boarder, should she be not permitted to relocate the children to the Gold Coast, she would remain in R with them. If that was the situation, life would go on as normal in accordance with the orders of 9 August 2006.
In final address, the wife proposed that an order be made that she place $10,000 in an interest bearing account in the joint names of the parties for the purposes of covering her share of the travel costs in the event that she asserted at any stage she was unable to afford those costs. It was suggested that the husband have liberty to apply in the event that the trust account balance to which he would have access, fell below $2000.
The husband’s proposal
The husband proposed that the children live with him in Melbourne. In respect of the time to be spent by the wife with them, the husband initially said that she could have liberal time but it would effectively be alternate weekends and a night overnight in the other week. In final submissions, counsel for the husband said it would be appropriate to implement a week-about arrangement in Melbourne.
The husband suggested that there would otherwise be no change to the holiday structure of any substance.
In so far as he was unsuccessful with his Melbourne proposal and the children moved to Queensland, he proposed that at best he would be able to travel to Queensland about one weekend in the middle of each school term and that otherwise there be some adjustment for the holiday time to make up for the time lost. It goes without saying that that was clearly not his preferred position.
In fairness, the husband also indicated that regardless of the outcome of these proceedings, his view was that for a period of about three months after the orders were made, there should be no travelling by the children regardless of where they live so that they had an opportunity to settle in the one place. I think that is not in the children’s best interests.
There was some discussion about the wife being ordered to live in Melbourne with the children. Mr P, the psychologist, said that it was the ideal solution. Apart from the wife being opposed to the idea, two important issues had to be contemplated. The first was the jurisdiction to make an injunction dictating where the wife lived (as distinct from the children) and the other was the absence of any evidence about the practicalities of where the wife would live, what schools the children would attend, what financial ramifications would follow and how the wife would psychologically and emotionally cope with such a move. In the absence of very clear evidence, it is not a matter I could seriously contemplate.
Ms Stewart for the wife raised the first issue querying the jurisdiction to order the wife to so move. Ironically, as the issue was being raised, the Full Court handed down Sampson & Hartnett [2007] FamCA 1365. That case looked directly at the issue. Because I have no evidence upon which I could seriously make such an order, I propose to do no more than refer to the observations of the Full Court. Bryant CJ and Warnick J said at paragraph 57:
57.If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at leats once existed. This contrasts with a person who may not wish to go some where and therefore the order is much more of an imposition on that person’s freedom.
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59.The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
Kay J said at paragraph 121:
Whilst we have not been directly asked to determine the issue of the power of the court to make an order requiring a parent to move from a well established place of residence to a different location so as to place the children in closer proximity to the other parent, I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances.
Using the words of Kay J, in this case, I could not find that exceptional circumstances.
Notwithstanding the various combinations therefore, the two issues are plain.
My general comment about the proceedings is that the husband opposed the wife moving to Queensland on the basis that he did not trust her to continue to foster the relationship but went further and indicated that the proposition that the wife was putting was unrealistic from a financial point of view and that that would have dire consequences for the relationship he currently has with the children.
Mr Robinson on behalf of the husband urged me to find that because of the wife’s lack of candour, her evidence should be treated cautiously particularly as it related to her capacity to fulfil the proposals for travel at her expense. He urged me to find that consistently with some comments made by Mr P to which I shall refer below, this move to Queensland was really about what the wife wanted rather than what was in the best interests of the children. Mr Robinson pointed to a whole raft of shortcomings associated with the move to Queensland including lack of money, lack of connection with Queensland, the distance from Melbourne, the very practicalities of moving to Queensland and the fact that in the eyes of Mr P, it was important for the children to be close by to the husband.
The wife equally does not trust the husband and believes that he is destructive of her relationship with the children.
Ms Stewart on behalf of the wife urged me to find that what happened in the husband’s household in relation to his respect for the wife and in particular of her role as the mother of the children, was not good. She highlighted that the attitude of the husband and his partner Ms T may very well be unintentional but even if that was the case, it indicated that the husband had no capacity to change his stance in relation to the wife as a result of which I could have no confidence that the husband would be positive of the relationship between mother and children in the future.
The position of the Independent children’s Lawyer
At the commencement of the proceedings, the Independent Children’s Lawyer said that the evidence needed to be tested before any proposal could be put that would advance the interests of the children.
In final address, Mr Weil on behalf of the Independent Children’s Lawyer said that he had no concise position to put. He said however that there was no reason to change the current residence orders.
Mr Weil was very positive about the husband and the wife in terms of their evidence. In his view, looking at it from a positive perspective, each of them was doing their best for their children. He highlighted however that the children were living effectively in two totally different worlds. Part of that gave rise to the most unfortunate aspersions which were set out in the various affidavits but he put that down to a lack of communication. As I shall set out in these reasons, I disagree. Mr Weil said that I had to decide whether or not it was simply a lack of insight into the needs of the children or whether it was something more serious. Mr Weil went on to say that in respect of the question of stability for these children, the location of where they lived whilst a factor, was not as important as the quality of the care that they received.
Ultimately, Mr Weil’s synopsis of the issues was that I had to find whether or not the husband’s mistrust of the wife was misplaced and whether if orders were made permitting the children to live with the wife in Queensland, she would carry out what in fact she was being ordered to do let alone offering to do.
Overview
It is quite clear from the evidence to which I shall refer that each parent is quite capable of providing adequate physical care for the children. There is no issue of any consequence relating to accommodation and other arrangements that each parent can offer the children. Regardless of who is primarily responsible for the day to day care of these children, I am quite satisfied that the other parent will still have a substantial involvement in the lives of the children. In substance, my task is to consider which of the two proposals will most likely promote the welfare of these two boys.
Mr P
Mr P is a clinical psychologist who was appointed by the Court as a single expert witness. His qualifications and experience were not challenged.
Mr P has been involved in this case since June 2005, so to some extent, he has been an objective observer of the parties and the children for virtually the entire history of the litigation.
In June 2005, in a comprehensive report, Mr P said that the children should reside with their mother and have contact with their father each alternate weekend but that there be extra time during school holidays with the husband. Mr P at that time prefaced his remarks by saying that the evidence needed to be tested but his observation at that time was that the relationship between the parties had reached “a very low ebb”, that communication was extremely poor, there was a high level of acrimony, no level of trust and no cooperation or communication. Little appears to have changed.
In 2005, Mr P observed that the children enjoyed and valued the relationship with both parents.
In January 2006, Mr P saw the parties and the children again. He opined that what was of the “greatest concern” to him was that the parties were simply unable to discuss any matters of importance regarding the children and did not even communicate either using email or SMS text messaging at its most basic. He found that both J and M were coping well with the arrangement notwithstanding the distance that they were then travelling between parents. He was encouraged by the generally positive comments about J’s school work. He did not at that time support a change of residence for the children and particularly a shared residential arrangement given the overt hostility and the lack of communication between the parties.
In May 2007, armed with all of those indications, the parties saw Mr P again. This time, the report was prepared in anticipation of the final hearing. Mr P expressed particular concerns about M and his behavioural problems as well as his anticipated significant learning problems. Mr P thought that it was essential that the difficulties be assessed and the necessary management and intervention be obtained.
Mr P went on to describe the conflict between the husband and the wife as chronic.
The factual situation by the time of this third report however had changed. Instead of Mr P contemplating a situation of the children living in R and travelling between Melbourne and R, a relocation to Queensland of the children was now being contemplated.
Mr P thought that the wife’s move to Queensland was particularly poorly thought out without any real plan and he acknowledged that he had no real sense of why she was going and what she considered would be the advantages to the children other than superficial ones. Two important things came out of the report. The first is that Mr P thought that careful consideration needed to be made about whether and if so how, the wife was promoting the welfare of the children and in particular, whether she was genuinely interested in promoting a strong and positive relationship for the children with their father. Mr P expressed concern that J was embroiled in the parental dispute and that he found it confusing and frustrating. It is hard to imagine how those words could be anything other than a reflection of the boy’s understanding of the position having regard to his age. Mr P went on to say that J’s alignment with his mother was largely as a result of his mother sharing with him her views about the husband and what the husband had done.
The issue of the parents not only talking to the children about significant issues but embroiling them in this dispute seems to be something that on the evidence, applies to both parents. I shall endeavour to make that clear in these reasons.
Specifically I accept that the wife did tell the children earlier in the year if not late 2006 about the potential move to Queensland. The children raised it with the husband. I also accept however that parents cannot simply ignore issues such as this and to a large degree, they should raise the issue with the children providing it is not used as a form of manipulation. In this case, I am satisfied that the wife did not endeavour to manipulate the children.
The second issue that Mr P raised generally related to relocation of children. He said that it could work, as well as promote the health and welfare of children:
On condition that the move away parent maintains an open, strong, positive and committed attitude towards the children’s relationship with the non-move away parent.
In respect of these philosophical issues, Mr P said that he had concerns about whether the wife would fulfil that role. However, he also said that it was difficult to ascertain to what extent the husband was able to provide the children with the level of commitment, parenting and support that he professed.
Both of these issues are matters that I propose to address below.
Mr P made the point that he thought the best outcome for the children would be a relocation to Melbourne so that they could maintain a relationship with both parents. In my view, that is unrealistic having regard to all of the unresolved issues between the parents.
Mr P in his final report opined that a relocation in this case ran the risk of further “fragmenting an already strained parental relationship”. It is hard for me to see how that relationship could get any worse than it currently is or for that matter, has been for all of the time since separation. I reject his opinion that “the justification for such a move (to Queensland) offered by [the wife] is simplistic and superficial”. Quite the contrary, remaining in R does not seem to be realistic any more than moving to Melbourne is something about which the wife could feel comfortable.
Whilst on the subject of Mr P, he attended for cross-examination. He added little to his significant comments that I have outlined above. He said that the wife had attended to the needs of M and that her action was appropriate. In respect of the behaviour aspects of M, Mr P was unable to point to any one cause.
Mr P said that the children certainly felt the chronic conflict between the husband and the wife and that as parents, they would have conflictual difficulty with one another regardless of where they lived. He added that whether the wife went to Queensland or the children went to Melbourne, the situation would not ease.
Mr P was asked whether the wife’s proposal that the children would spend time with the husband was enough. He indicated it was clearly not ideal but that it was enough. I am satisfied that he clearly understood the wife’s proposal as it was put to the Court rather than what he described in his report. He added that a reduction of time between the children and the husband would be of concern but the impact of the change of primary caring role was one that was difficult to gauge.
A synopsis of the evidence of Mr P is set out his third report on page 8 as follows:
What is clear is that [the] boys are dependent and reliant upon their mother, they perceive her as their primary carer, and it is their expectation that they will reside with her. Ultimately, it may be that there needs to be a testing of evidence to determine to what extent [the wife] has exercised her parental care and responsibilities to a level that has maximized the welfare of the children, and no doubt the time requirements of her work at [the motel] must have compromised her availability to the children at some level. However, there can be no escaping that the children have had difficulties, and to some extent, [the husband]’s concerns about the lack of stability, security and routine must be relevant. I note that his proposal is that the children reside with him, that he offer to them a stable, secure base, that he emphasize routine and involvement in a broader social family network, and at this level alone there is significant attraction to the option.
The questions raised by Mr P of whether the wife will now exercise her parental care and responsibilities in a way that will maximise the welfare of the children and whether the husband’s concerns about stability, security and routine have any significance, influence the decision that I have to make. It goes without saying that I also have to be satisfied about the husband’s capacity to fulfil what he is suggesting he will provide.
Factual background
Prior to the birth of J, the parties worked together in a business in Melbourne. My impression is that they worked hard and were successful. In 1997 when J was born, they moved into a residence at the back of the business premises so that the wife could not only care for J but also be involved in the administrative side of the successful business. In 1999 whilst J was only two years of age, he was involved in earning an income from promotional work..
The relationship between the parties between the birth of J and M was difficult. They clearly lacked trust in each other.
In March 2003, the husband purchased a business in Melbourne in addition to the one that had already been conducted by the parties. A manager was put in charge of that.
In September 2003, the parties purchased a motel in New South Wales which the husband commenced to run whilst the wife remained in Melbourne to enable J to complete the school year. The wife was also involved in the running of those Melbourne businesses.
At the end of 2003, the wife moved to New South Wales with the children and thereafter the husband went backwards and forwards to Melbourne conducting the Melbourne businesses as well. In May 2004, the husband left the motel business and the parties separated.
From that time onwards, the wife ran the motel business and the husband conducted the business in Melbourne. Around the same time, the wife’s mother travelled to New South Wales and began to live at the motel.
Regardless of what view one takes of the work required of the wife in running the motel, it is clear that she was also predominately the parent managing the daily lives of the children.
In July 2004, the husband initiated court proceedings.
Initially the parties agreed that the husband would spend three weekends out of each month with the children from Friday afternoon until Monday morning and half of all of the school holidays. The husband was to do all of the travel.
The orders provided for the husband to telephone the children twice each week but there is a very clear notation that at that time, the parties agreed to trial this process for three months.
At the same time as those orders were made, the parties embarked on financial litigation. The file records a variety of applications including an ex parte Anton Pillar application and removal of the wife from the motel business which Kay J dismissed in January 2005. A brief examination of the judgment of Kay J noted that financial issues between the parties included the involvement of Victoria Police. These issues give some indication of why the relationship is still poor.
Matters in relation to the children seemed to have settled down then because it was not until April 2005 that the parties came back to court in respect of parenting issues at which time, they agreed to attend upon psychologist Mr P.
In July 2005 however, the parties required Senior Registrar Fitzgibbon to deal with holiday issues and the Senior Registrar made interim non-denigratory orders against both parties.
Whilst financial and children’s issues continued, they came to a conclusion on 9 August 2006 when final orders were made in relation to all issues. Before turning to parenting orders in relation to that time, it is to be noted that the wife retained the motel business and the husband retained the Melbourne businesses. Hence, the picture clearly painted at that time was that the wife was remaining in New South Wales and the husband in Melbourne. That is how the new parenting orders appeared. They began by providing for the parents to have equal shared parental responsibility notwithstanding the obvious and still ever-present conflict between the parties. The wife was to remain primarily responsible for the care of the children and the husband’s time with them was to be each alternate weekend. On the first of the alternate weekends, he was to have them from Friday through to Monday but he was to do all of the travelling. On the other fortnight however, the wife was to do all of the travelling but the husband had them from Friday night through to Sunday afternoon.
The travel by the wife to Melbourne was conditional upon the parties entering into a child support agreement and I was told that that never eventuated. Nonetheless, the arrangements set out in the order otherwise continued. School holidays were shared between the parties although the husband was to have the whole of the second term vacation period.
It will be seen that the husband had a significant and important role in the children’s life but the wife had the responsibility for the day to day activities and management of the children. It is that situation that largely subsisted subsequent to August 2006. However, at the end of 2006, the wife raised the issue of moving to Queensland.
The standard of proof of issues
The standard of proof required of a party in an application such as this is the balance of probabilities[1].
[1] Section 140(1) of the Evidence Act 1995 (Cth)
In cases where there may be grave consequences for a finding of fact, I have applied the standard which is set out in s 140(2) of the Evidence Act 1995 (Cth).
Where parties give differing versions of events, a court can often accept one version or the other on the general credit of either party. That is difficult to do where parts of the evidence of one party are plausibly acceptable but others not. In this case, there are statements of each party which I do not accept on the balance of probabilities. Accordingly, I have endeavoured wherever possible to make determinations on the standard to which I have referred. There are however issues which I have determined do not affect my determination and accordingly, have not made any finding.
The relationship between the husband and the wife
I have already indicated the chronic state of the relationship between the parties. It is not new and there are no signs of the problem abating.
The wife said that in December 2006, she contacted the husband and told him that she had sold the motel and asked whether it was alright for her to move to Queensland with the children. Her evidence was that his response was that she could go but not the children and that there was no negotiation about the issue. She was cross-examined about the fact that not only was the decision not well thought out but also that it was done with undue haste. The husband however said in evidence that he had known of the wife’s desire to move to Queensland as early as 2005. He said that it came as no shock. According to the husband, the call of the wife came the day after he had spoken to the children and they asked him could they go to live in Queensland. In respect of the wife’s version of the telephone conversation, he agreed that the wife was basically right but that he did not use “as much colour” as she alleged. Whilst the “colour” does not trouble me very much, it is indicative of the way at least the husband speaks to the wife. I shall deal with a number of incidents as between the parties in which there is little dispute about the context of the conversation but in respect of each, the husband disputed that he used “colourful” language. Sadly, what he described as colourful was really the word “fucking”. In respective of the issue to which I shall turn concerning Mr B, when the husband was challenged about his reaction, he described himself as “excitable” and on that particular day “lost focus” because what Mr B was doing was “like a red flag”. In respect of that day, the husband conceded that he called Mr B “a fucking wanker”. Thus, having regard to the fact that the husband said that he was put on notice by the children the day before the wife telephoned, I have little doubt that he did use the language which he denied and that it is indicative of the level of his conversation with the wife.
A similar exchange took place between the parties just prior to the final orders being made in August 2006 relating to the question of M being enrolled at C School. The wife said that she had received a telephone call about the school not having a vacancy for M in 2007 and it distressed her to the extent that she telephoned the husband. Her description of the conversation was that she was upset and she proposed an alternative. She said the husband described her as a “fucking bitch” and said that it was her fault for not enrolling M in time. The husband made clear in his evidence that the wife had neglected to enrol M because she was expecting to have relocated to Queensland. He said that when she ultimately applied to enrol M, there were no places for him. It was only because of his efforts that M was ultimately able to be placed at C School. The husband was candid in saying that the description of the wife’s complaint that he blamed her, was in fact what did happen. He disputed some of the conversation and did not recall other parts. The saga went on because a month later, the wife said that she had another conversation with the husband as a result of being advised by the school that there was then a position for M. She said that the husband called her “idiot” and then told her how he in fact had been able to get M into the school. When questioned about the use of the word “idiot”, the husband conceded that that’s exactly what he did say.
I do not accept that the wife did not enrol M at C School because she had an expectation that she was going to Queensland. Just exactly what conversations took place between the respective parents and the school and the exact sequence of events was not led in evidence. In my view, it matters little. The fundamental issue here is the way in which the parties communicate with one another and in this case, I accept the wife’s version of the various conversations over that issue and it reflects poorly on the husband. It gives me little confidence that there would ever be any respect between the parties over such important issues as the progress of their children in school.
Another example of the dilemma is that in August 2006, J was to get an award as a result of his efforts in the rugby grand final. According to the wife, J said that his father was going to take him to the rugby so the wife contacted the husband to ask whether she could attend. Why she needed to ask the husband, I am not sure but that fact alone is something I find troubling in respect of an issue as significant as a presentation of an award for their child. More importantly, the wife said that at the game, the husband spoke to her and threatened her. The husband denied that. Having regard to the way in which I have found the husband spoke to the wife as I have outlined above, I find that the wife’s version of that event to be what happened. My view is reinforced by the fact that a considerable part of the case was conducted about the relationship of the wife with Mr B. That is a subject to which I shall return. However it was made very clear by the husband that he strongly believed that the marriage broke down because of an affair between the wife and Mr B and notwithstanding when the wife was under oath in court denying the affair, the husband when questioned about that statement, said he did not accept it. The recent event involving Mr B convinces me that the husband is still very angry with the wife about the breakdown of the marriage as he sees it and as such, it is most likely that on any occasion when there is conversation between the parties, the husband cannot contain his distaste for the wife.
The wife alleged that on 3 September 2006, in a conversation, he used the words “you skitso bitch”. The husband said that this incident “didn’t happen”. I find that it did.
Similar conversations occurred in October and November 2006 and always when there was a handover between the parents. The wife referred to what little conversation there was and it was clearly denigratory by the husband of the wife. The husband was asked about each of those incidents. Again, he recalled some of the incidents and not others. In incidents that were recalled, he either denied the reply which the wife alleged or what he described as the colourful language. For example, on 3 November 2006, the wife said that when she collected the children at the end of the weekend, in a denigratory way, the husband said that her parenting skills needed “evaluating”. She went on to allege that he said:
You have no idea. The boys are unhappy, insecure and unstable. You need fucking help.
When that was put to the husband, his response was that the statement was made but not with “that colour”. He denied saying some of the things but not others. He was asked whether he said anything that might give rise to the wife making the allegation and he said that he had not. However, having regard to the fact that he did acknowledge telling the wife that her parenting skills needed “evaluating”, for the reasons I have set out above, I find that it is probable that that is the way the husband usually speaks to the wife and that I have little hesitation in finding that he is “colourful” in the language that he uses.
The wife’s evidence was that in December 2006, the husband told her she was an unfit mother. On 28 January 2007, she said he called her a selfish bitch. In respect of both of those incidents as set out by the wife, the husband simply denied the conversations occurred. There is little doubt that on each of the occasions to which the wife referred, there was a meeting between the parties because it was at the time that the changeover of the children occurred. I find that the husband did speak to the wife in the way she alleged.
The incident on 4 March 2007 involving Mr B
An incident occurred on 4 March 2007 which in my view epitomises the problem between the parties. There is little dispute about much of what occurred. However, it is the issue in this case that has satisfied me that whilst I consider that the wife is not a shrinking violet, her reticence in discussing matters with the husband is not surprising having regard to his constant approach towards her.
The wife’s description of what occurred on 4 March 2007 was that she, Mr B and her mother were in the car returning to the home of the husband to collect the children. There was significant debate between the parties about whether Mr B should have been there at all and the fact that it was a provocative act. To the extent that the wife ought to be criticised at all, I accept that discretion is the better part of valour and Mr B ought not to have been there knowing how inflammatory Mr B’s involvement in the wife’s life is to the husband.
According to the wife, the husband saw Mr B and brushed past her rushing at the car. There was considerable disagreement between the parties as to whether Mr B could be seen and how far the car could be away from the front door of the husband’s home. None of those is relevant. The real issue in this case is the fact that the husband went to the car at a time when he was clearly angry and agitated. He denied he was angry but conceded he was excited. He was endeavouring to get Mr B out of the car and certainly conceded that he called him a “fucking wanker”.
There was also much dispute about where the children were in all of this incident. The wife’s mother said that the children witnessed the whole incident. The husband said that the children were in their bedroom but when cross-examined, he conceded at the time that he was near the car, he did not know where the children were. The wife’s mother said that she had to comfort the children who were distressed. Sensibly, Mr B did not get out of the car because I have little doubt there would have been a physical altercation. The husband said that he regretted the incident but his instructions to his counsel were to cross-examine the wife about the fact that she was the provocative one by having Mr B there. That tends to ignore two significant things. The first is that a very nasty incident could have occurred and the second is that the children were privy to something which I would describe as disgraceful behaviour.
The husband said that this incident was all about the fact that on the previous Thursday evening, in a telephone conversation with his children during which he could hear adults in the background, one of the children said that Mr B had described him as a “wanker”. The husband in cross-examination said that having heard this, he told the child to tell Mr B that he in return was a “wanker”. None of this explanation for his excitable behaviour was in his affidavit nor was it led in evidence in chief. When questioned, he said that he had put it out of his mind on the Friday and had not discussed it with the child M over the weekend. He also added that the reason he approached Mr B in the car was because Mr B gestured to him. This also had not been in any of his evidence. His telling answer when asked for an explanation about it all was that Mr B was sitting in the car at the end of the driveway smiling and “thinking everything’s okay and it’s not”. He acknowledged that he lost control.
The wife’s mother said of the incident that the boys came to the car and hopped into the back of it with her. She said that the husband came to the front passenger door at the point at which the children were already in the car. She described both children as crying.
The husband’s new partner was asked about this incident because she was not there at the time and she conceded that the husband still gets visibly upset about these matters. She said he certainly got emotional. In a telling question, she was asked whether the husband’s reaction like that to which I have described, exposed the children to conflict. Her response was that she did not think the children saw it that way because they were used to it. In her words “it’s just mum and dad”.
I am satisfied that the husband has not got over the breakdown of the relationship and is very angry with the wife and that there is little likelihood of the relationship improving. I find that the description given by the husband’s partner about his emotions is probably right but it is very disconcerting if these children are in fact still being exposed to that sort of behaviour. Mr P described the conflict as chronic and sadly I have to agree. Whilst I accept that chronic conflict is a fact of life in many relationships that come before the Court, the feature of this case which is disturbing is the fact that both parties acknowledge it exists and neither has made any serious attempt to bridge the gap. As I have pointed out, I accept that the wife has reached a point in which she has effectively shut down and the husband has little insight into the damage that has been done to the children. All parties were questioned about the impact of the conflict between them on the children and all acknowledged that it was bad. The husband certainly said that it could have consequences for the children affecting their emotions and ability to trust people. To that extent, he shows insight into what the needs of the children are emotionally but he is unable to do what is fundamentally needed to solve the problem. The wife equally has the insight about the impact upon the children but is unable to make any move without being confronted by the husband in the ways that I have set out above.
Each party indicated that there were some signs of a change. The husband said that in the three weeks before the case started, there had been a number of emails and that that was a good start. However, even in that period, the husband had no trust in the wife and as I shall refer to below, engaged a private investigator for forensic purposes to challenge the wife’s evidence about the involvement of her mother and Mr B in her life. The same problem arises when I come to deal with the husband’s partner Ms T because she is unable to communicate with the wife for reasons which are difficult to explain. The husband made an attempt to explain it by saying that Ms T wished to remain neutral however I do not accept that. Having regard to the very significant relationship that she already has with the children and her potential involvement with them in the future, that is not appropriate.
At paragraph 103 of her affidavit, the wife said that she wanted the husband to be involved in the children’s lives and she tried to keep him informed of issues associated with their lives by using a communication book but the husband lost it. She indicated that she was now using school diaries. Those diaries were tendered as an exhibit. They say very little.
The husband’s telephone communication with the children.
The orders of 9 August 2006 in respect of telephone communication are sadly not well worded. What the parties intended was that if they could not reach an agreement as to when the other party was to telephone, it was to be Tuesday and Thursday evenings between the hours of 6.00pm and 7.00pm.
The husband’s position was that one of his concerns about the wife relocating to Queensland was that he would “continue” to be denied telephone time with the children. He went further than that and said that the current position was “farcical”. As evidence of that, he indicated that the children were not made available on the telephone, had to speak to him on a speaker phone or had the conversations truncated by the wife’s presence. He referred to specific incidents from November 2006 until April 2007. His affidavit chronicled the attempts that he made to speak to the children on various dates. One such example related to 14 November 2006 when he telephone the motel and spoke to the wife’s mother. She told him that the children were not there and that she would get the children to ring him. A short time later, J telephoned the husband and it transpired that the children were with the wife on the Gold Coast. Whilst this example was put in the evidence in relation to a complaint about telephone contact, the husband’s complaint really was that the telephone was hung up and when he tried to call back, the telephone was turned off. He went on to say that the wife did not tell him that she was going to Queensland and furthermore that the children had been driven back to R after a weekend with him only to be driven back to the Melbourne airport the following day to travel to Queensland. When questioned about why she had not told the husband that she was taking the children to Queensland, the wife’s response was that she did not think she had to but in any event, she said that the husband did not tell her what he was doing. The husband described the travelling back to R rather than staying with him before they flew out to Queensland as an example of the wife not “prioritising” the needs of the children and “indeed acting contrary to their best interest”. That gratuitous comment was really indicative of the husband’s view about the wife’s parenting but it equally highlights the difficulty that these parties have in communicating with one another. In so far as the particular evidence was intended as an example of difficulties about the husband telephoning the children, I do not find that it was any indication that would satisfy me about the husband’s concerns as I have just set out.
The husband then set out examples of 13 December 2006 where despite his request, the children did not call him back. He gave another example on 6 February 2007 when he called at 7.00pm and the wife’s mobile telephone was switched off. He gave another example of the very next day where he said it took between five and eight calls to talk to the children and that on four occasions, the wife either “flicked” the call or hung up. He said she ultimately answered it and passed it on to the boys. Three days later on 10 February 2007, the husband said he rang approximately 15 to 20 times with no luck and then finally sent a text message to the wife noting that he had telephoned her 20 times and a minute or two later J telephoned him. His evidence went on to say that the very next day 11 February 2007, he telephoned the wife again and her mobile was “switched”. As with the example on 6 February 2007, he said that he was “denied” telephone time with the children.
The same complaint was made in respect of 2 March 2007 and 6 April 2007. The difficulty I have is that the order indicates that the parties had to reach agreement about the telephoning and failing agreement it was to be on two occasions each week. Whilst being cross-examined, the husband indicated to me that he rang the boys every second day. The complaint about being denied telephone contact was puzzling having regard to what had been agreed between the parties. What was disconcerting however was the husband’s own evidence that he rang approximately 15 to 20 times on one occasion and between five and eight calls on another. In circumstances where there had been no agreement between the parties as to the pattern to be followed and the order was at least unclear, it is hard to be critical of the wife. Notwithstanding that, the wife was cross-examined about these particular incidents. In respect of the 10 February 2007 incident, the wife said she recalled that day because it was extremely hot and everyone was outside. She said as soon as she realised that the husband had called, she had the children call him back. She was questioned as to why she didn’t have the telephone outside knowing that the husband always called about that time. The wife’s explanation was that the husband was free to call and that she had not stopped him having that time with the children. When it was put to her that she had hung up at various times, she said she could not recall and it was rarely that she ever turned the telephone off. If the husband was calling every second day as he said and the only complaints that he made were those set out above, I fail to see that the criticism was valid. It was put to the wife that she had no message bank voice mail service and her response was that she thought she had. In a rather theatrical way, counsel for the husband used his own telephone to ring the wife’s recorded number and it simply rang out. I was not comfortable with the wife’s explanation about the message bank response and her answer appeared to be mischievous. I find it hard to accept that someone would believe that there was a message bank service when in fact there was not. If she believed there was, one would have presumed that at some stage or other she would have accessed it. Having said that however, having regard to the number of complaints made by the husband in the context of the totality of the period during which he was making calls, I do not find that there is any justification for the husband saying that if the wife went to Queensland, his telephone communication with the children would be disrupted or disadvantaged. When the husband was cross-examined about the telephone issue, it was put to him that the boys generally returned his call. His response was that it never happened. When it was put to him that that answer was inconsistent with what occurred on 10 February on his own evidence, he said it would have had to have been the only occasion that they telephoned back. He did not see his criticism of the wife as unfair or unfriendly. I find his complaint unreasonable in the circumstances.
The diet of the children
Another issue raised by the husband about the wife relocating the children to Queensland was the fact that their diet was very poor. He went on to say[2] that little attention was paid to it and there were problems about J’s weight. The husband indicated in his evidence that he did not envisage that that would change.
[2] Paragraph 13.8
In elaborating, the husband said that the wife did not make enough effort with either their diet or exercise. He said they did not eat a proper breakfast and when they came to his place they wanted junk food for breakfast. In respect of J, the husband said that he bordered on obesity as a result of the poor attention to diet which came from eating too much junk food. He said he found in the lunch boxes of J left-over take-away food wrappers and pizza crusts but apples that had not been eaten. He went further and said that J relieved stomach ache by putting fingers down his throat and that he had done this three times whilst he had been in Melbourne.
Apart from the fact that the wife flatly denied any such dilatory behaviour in respect of the children, the husband’s partner Ms T did not think that any concerns that had been raised by her or the husband were criticisms of the wife. She was certainly at odds with the husband. Ms T described the diet issue as one of the more important and pressing issues. She said that neither J nor M ate a proper breakfast and that both children said they had no consistent breakfast with their mother. She said however that the children could not say what they ate daily. In what I found very confusing evidence, she said that the husband took the children to the supermarket and asked them to choose a breakfast cereal each but that M chose a variety pack and ended up eating the Frosties which is a very sweet brand of cereal. She was asked whether she was criticising the wife for the fact that M had chosen the sweet brand of cereal and she said she was not. She indicated she understood the dilemma and said that they had tried 20 different sorts of cereal.
Ms T said that on 31 July 2007, the wife provided a list of preservatives that she had eliminated from M’s diet including red food. She said that she understood that the wife had done that in an attempt to see whether it affected childhood behaviour. Ms T commented that she had made red jelly cups many times as a snack for the children and M’s behaviour had never altered. She said that the children mostly ate fruit, vegetables and meat which meals were prepared at home. Again, when asked about whether that was intended as some sort of criticism of the wife, she said it was not. In a rather poignant statement, she was asked about whether she was concerned about what the children were being fed in the context of a question about take-away foods. She replied by saying that if the children told she and the husband that they were having “KFC”, they made sure that they did not give them that same food on that day. She was asked whether she was serious and she replied “Absolutely”.
In cross-examination, the husband was asked whether he thought the children were being fed properly and he said that he didn’t think their diet was appropriate but acknowledged that that was based upon what the children had told him. He indicated that his view about the children having “left-overs” arose because on one weekend, he found a sandwich the contents of which he could not recognise. He said when he asked the children about having junk food, they said that they were. As to the truth of that, he acknowledged he did not know.
As I have indicated above, the husband indicated in his evidence that J had put his fingers down his throat to relieve himself of a stomach ache. When questioned, he said that it had happened once. That answer was inconsistent with his affidavit evidence in which he said it occurred three times. When challenged about that he said that it was all on the one weekend. When asked why it was in the affidavit in the first place, he said he was simply reporting an observation.
The wife’s evidence was that the children ate meat, vegetables, cereals and sandwiches. When cross-examined about J’s weight, she said that although she was not happy about it, it was not a concern. When challenged about what she had done about it, she said she went to the doctor. There was considerable cross-examination of the wife about absence of a proper diet and take-away foods. She said that J ate healthy food and that in respect of things like the KFC wrappers, she had never seen them in J’s lunch box. She was asked whether she had raised the subject with J and she said that he told her that he did not know how they got there.
In respect of the diet of the children, there is a very large conflict between the parties. It is important because of the fact that the husband asserts that if the wife was to live in Queensland with the children, she would continue to do what he alleges she is currently doing which is to ignore parental responsibility for things such as diet. I am left with the evidence of the wife indicating that she feeds the children in a proper and responsible way against the evidence of what the husband says the children tell him and Ms T’s evidence of how the children behave in relation to sugary and fast foods. On the balance of probabilities, I find that the wife is feeding the children responsibly and that when the issue of concern about J’s weight was raised, she took an appropriate course of action and attended upon a doctor. Accordingly, the complaint of the husband about the wife’s inappropriate parenting is unfounded.
The behaviour of M
The husband expressed concerns about aggression displayed by M. He said that he had not experienced any of this himself and from his perspective, the children were normal. According to the husband, a problem arose in April 2007 when J told him that M was on a “contract” at school and was not allowed to play with him or near him. The husband said that it was J who was upset notwithstanding M was the one who was on the contract. He said that he then telephoned the wife but she was not prepared to discuss it with him. This formed part of a complaint by the husband that the wife failed to keep him informed about what was happening to the children at school. He said the issue was highlighted when he discovered a letter had been written by M’s school teachers about concerning aspects of M’s behaviour when he attended upon Mr P.
The letter from the school was written on 11 May 2007 addressed “To Whom It May Concern”. The letter expressed concern about the ability of M to interact with his peers and his ability to follow instructions.
The wife gave evidence that in April 2007, one of the teachers reported that there had been an incident during that day involving M fighting with friends of J. M was apparently suitably disciplined. According to the wife’s evidence, she spoke to the children about it. The way in which the wife responded to the issue in dealing with the children seemed to me to be sensible and appropriate. However, the issue of the contract remained unresolved. According to the wife, she spoke to the teacher who indicated that there never had been any suggestion of a contract.
The wife was subjected to considerable cross-examination about this issue and she candidly acknowledged that some of M’s behaviour could have been as a result of her stress. She said she was unable to explain why during the two weeks prior to the commencement of the hearing the gains that M had otherwise made had fallen behind and he was regressing to the old habits that were referred to in the letter of 11 May. She was asked to what she attributed the improvement after 11 May and she replied that it may have had something to do with speech pathology, the diet of M and even his maturing over that period of time. She was tested as to why she thought M had regressed and her only thought was that it may have had something to do with the changes in his diet. She acknowledged that she had been introducing foods and taking others out but that she had not spoken to the teacher to see what had happened. It then came to light that in a discussion with the teacher of M, it was suggested that he might need counselling. The wife then asked and obtained from the teachers, the letter dated 11 May so that if she was to attend upon a counsellor, she would have something to show the counsellor indicating what the problem was. She gave evidence that she was told counselling was inappropriate because of M’s age. She went to a paediatrician Dr N and he felt that it was too early to do much about M as well.
Whilst I understand the concern of the husband learning of the letter at the offices of Mr P, it was clear that the problem had been brought to his attention by the school.
Teachers
Ms L and Ms S are the teachers of the children. Ms L described M as a happy child who had some difficulty outside the classroom playing with other children. She said he was a little boy coping with the world as best he could and that he was still learning how to behave in the playground. During the adjournment period, M had been involved in one incident involving rock throwing, tackled a child whilst playing soccer in another incident and was found to have been fighting. These incidents warranted time outs of a few minutes at a time and a report to parents. Ms L thought things had not deteriorated from what she earlier described but Ms S thought that they were quietly getting worse. Interestingly, Ms S said that M did not express how he felt. That seems consistent with what Mr P saw in May 2007.
Ms L thought M was maturing and spreading his wings a bit. In the classroom, M was easily distracted, not engaged and non-cooperative. Having said that, the teachers both seemed to be able to guide him back to things they wanted him to do. Just what difference a change of residence, a change of parent or even change of state would make is not known. However counsel for the Independent Children’s Lawyer asked Ms L what, if any, explanation she could give for this diversion of focus by M and she replied that it was happening at times leading up to a court case where M became more disengaged than normal. Ms L said that the wife and she had discussed issues around M and the wife had explained all of things that she was trying in an effort to alter his behaviour.
On the basis of this evidence, it is hard to see any justification for the husband’s criticisms of the wife about the way she handled and is handling the behavioural problems of M.
Ms L told me that she had good rapport with both parents. An example of the flow of information arose earlier in the year when M told the husband about the “contract” which had rather severe limitations and restrictions. The husband rang the principal and in turn, Ms L telephoned the husband. Ms L explained to the husband that there was no such contract and that M had not told him the truth which was that M was restricted to an area so he would not be playing with J’s friends. Since then, the husband has been informed by email of all issues in which M has been in trouble.
In May 2007, the two teachers wrote the letter I earlier mentioned which set out their concerns. This letter seems to coincide with the time that the school adopted a policy of conveying information to both parents.
In respect of J, Ms S said he was a quiet, hardworking, focussed, polite and eager to please child. J is clearly not a problem.
The parents’ treatment of the behavioural problem
Whether the reaction of both the husband and the wife about the behaviour of M was an over-reaction is hard to say. However it is clear that the wife in her role as a parent has taken the child to a variety of professionals pursuing an answer for whatever the problem is. Counsel for the Independent Children’s Lawyer questioned the husband as to whether he gave the wife credit for that and whilst acknowledging that credit should be so given, the husband said that it only happened after the problem was brought to her attention by the school and by the recommendations of Mr P. I do not find the wife to have been tardy in respect of parenting responsibility.
Counsel for the wife suggested to the husband that some of M’s behaviour might be a reaction to what he was observing in the parental conflict. The husband would not acknowledge that that was so predominately because of the fact that none of these problems were evident when the children were in his care. He said that they did activities involved with art and culture as well as exercise. The wife too when asked about what activities she was involved in, said that they were numerous including sporting activities. She was able to give a very detailed indication that satisfied me that she was acting in a diligent way in relation to the care of the children. That also has to be seen in the context of her travelling to Melbourne to deliver the children so that they could continue the relationship with their father. There is no suggestion that there had been any reluctance on the part of the wife to fulfil that part of the parenting responsibility.
Accordingly in so far as the husband was of the view that the wife had or would, fail to appropriately respond to an issue of discipline, I reject such a criticism.
Stability for the children
Counsel for the husband cross-examined the wife about the fact that the principal of the children’s school had said that one of the things that the children needed was stability. The wife was criticised for the fact that she had not actually spoken to the principal to ascertain what his concerns were. Stability is more than just continuing to live the same existence in the one place. A move of school and residence can still provide stability for children providing that parenting responsibilities are fulfilled. Consistency of lifestyle and discipline seem to me to be as important as providing a sound education. Whilst a stable existence might be ideal, children in families where parents have to move because of occupations, face constant change but it is the security provided by the parents in respect of their lifestyle which is most important. In this case, the children have been exposed to two different households on a regular basis. The husband has made it very clear that his way of raising the children is very different to that of the wife. I am quite satisfied that the wife is providing a stable environment and that she has been fulfilling her parenting responsibilities.
The wife recognised the strengths and weaknesses of the children and talked about how she handled discipline issues and I was impressed with her insight. The husband argued that several of the things that the wife had done were simply a knee jerk reaction to the problem being brought to her attention. The husband was critical of the wife for the fact that she had been at the school several days per week but not noticed that there was a behavioural problem and then had not bothered to contact a principal when he expressed concern. I reject that view. In so far as there were problems for the children about which the husband was aware, I found it puzzling that the husband attacked the wife rather than endeavoured to put aside personal adult grievances to try and work out a solution. I was left with the very strong impression that the wife had acted responsibly and appropriately in the circumstances.
Specifically, the husband described the fact that on Ma’s first day at school, the wife arrived at 9.05am after the school bell had rung and the wife only arrived at the class five minutes later. The wife denied that she was late. I accept the wife’s version of that day.
The husband also asserted that the wife was not treating his time with the children by telephone seriously. I have already dealt with the telephone issue in some detail above but I accept the wife’s evidence that she does not interfere with the children, record their conversations nor have them on speaker phone.
Mr B
The wife’s evidence was that although Mr B was known to both parties prior to separation, she did not start any relationship with him until subsequent to separation. The husband asserts that the wife is still in a relationship with Mr B and because this is a parenting case, he will have a significant involvement in the lives of the children. The wife however says that whilst she was in an intimate relationship with Mr B for some time up until 18 months ago, they are now just good friends. The problem of exactly where Mr B fits into the picture is compounded by the fact that he was not a witness in the proceedings notwithstanding the fact that he has had involvement with the children this year as well as being of some assistance to the wife in respect of her Queensland business. The husband’s objection to Mr B is that he has an apparent past track record of little involvement with his own children. It was not suggested at any time that Mr B’s behaviour was otherwise inappropriate with J and M.
The issue was of sufficient concern to the husband to have Mr B followed by a private investigator whilst he was working at the wife’s business in Queensland. Whilst I am not critical of the forensic need for this exercise, I found it puzzling that a large sum of money would be spent when the husband claimed he had tight financial needs.
The wife was questioned about Mr B. She said that he was not being paid as an employee and that he was simply assisting her in a time of need. She said that it was fortuitous that Mr B came along when she was having difficulty obtaining staff for the Queensland business and as he was not engaged in his normal occupation any longer, he was able to go at her expense, to search for appropriate staff and it appears, help out in the business in Queensland. At the same time, he was provided with a key to the apartment owned by the wife’s mother in Queensland when the wife’s mother was also not living there.
Counsel for the husband probed the wife about the various times that Mr B had been involved in her life and it appears that he has attended hand-over times with the children and been at various sporting commitments of the children. Some time was taken up in the cross-examination of the wife about the fact that Mr B’s attendance at these events was inflammatory particularly having regard to the fact that Mr B had applied for an apprehended violence order against the husband and in earlier interim proceedings in this Court, allegations were made against the husband that he had damaged Mr B’s car by using brake fluid on the duco.
Counsel for the Independent Children’s Lawyer probed the husband about the fact that if what the wife said was completely untrue and there is to be relationship between she and Mr B, he, the husband, would have great difficulty in telephoning the residence of the wife if the telephone was answered by Mr B. My observation of the husband was that he was very uncomfortable about such a suggestion and in addition to the incident to which I have earlier referred, the acrimony between Mr B and the husband is still high.
Just what part Mr B will play in the wife’s future life and in respect of these children therefore is very hard for me to say. I was not at all convinced about the wife’s assertions that there was nothing other than a friendship between she and Mr B. For example, the wife said that Mr B went to Queensland to assist her in late August and when asked whether he had been there before at the business, she said that he had not. That was not only incorrect, I find it was untrue and misleading. He was clearly in Queensland in June 2007 assisting her in some form of maintenance at the business premises. The wife conceded under cross-examination that she had flown Mr B to Queensland because he had offered to assist her and there were many jobs that he seemed to be doing of what I would describe as a managerial nature.
The dilemma I face is that even with a finding that the wife’s evidence about her involvement with Mr B is untrue, there is no suggestion that he has anything other than a cordial relationship with the children about whose interests I have to be concerned. Whilst the wife’s attendance at handovers and sporting functions with Mr B may be seen by the husband as inflammatory, it is another example of the unabated and unresolved anger of the husband towards the wife that he blames her when he becomes upset in the presence of Mr B. I would not be prepared to find that the wife acted in an inflammatory way but knowing as she does of the husband’s excitability, discretion is the better part of valour and Mr B would have been better to have kept away.
Parenting orders
As to what parenting order I should then make, it is important to look firstly at the objects and principles of Part VII of the Act.
The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).Section 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
The best interests principle
Section 60CA is fundamental. It says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and (iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
What is noticeable is that in s 60B(1)(a) the Court is exhorted to ensure the bests interests of the children are met by ensuring that the children have the benefit of their parents having a meaningful involvement in their lives and s 60CA requires the Court to regard the best interests of the children as paramount. In determining what is in the best interests of the children, the Court is obliged to turn to s 60CC. It is a primary consideration for the children to have the benefit of a meaningful relationship with the parents.
Is there any difference between a meaning involvement and a meaningful relationship? I think not.
In a situation where there is what could only be described as a good relationship between parents and children, the impact of a relocation which alters that situation is something that must be seriously contemplated by a court.
Although it was a decision prior to the new legislation, there is still much to be gained from the decision of the Full Court in A & A; Relocation approach (2000) FLC 93-035 because it set out in reality what a court has to do. The Full Court said at 87,533:
In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposed for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the court to order a regime which would best met the right of the child to know and have physical contact with both of its parents.
As I have pointed out, s 60CC(2)(a) highlights the need to contemplate how the children currently benefit from a meaningful relationship with their parents and what changes would occur to that relationship by virtue of the proposals being put by either party. However, as Kay J said in in Godfrey & Sanders (2007) 208 FLR 287:
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 a case such as this, it is therefore important to examine not so much whether the relationship will change but rather whether the proposals will enable the children to have a significant, purposeful and constructive benefit from their association with their father. Will he still be able to influence and direct their development? Will he be able to show them how to live responsibly? Will he still be able to teach them things that we all expect of parents? Will the children be able to look up to and admire him as the person from whom they should seek both solace and guidance?
Kay J distinguished between the optimal relationship and the meaningful relationship. The questions that I have just asked apply in both situations. The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. 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.
Where there is a tyranny of distance, there is no logical reason why those same philosophical values cannot be imparted perhaps not to the optimum level but certainly in an advantageous way for the children.
From the perspective of the social scientist relating to these children, Mr P made it clear that there is a meaningful relationship between both children and the parents and notwithstanding the chronic nature of the parents’ relationship, the children seem to be thriving. Mr P was of the view that on the wife’s proposal, although the relationship would change and diminish, much depended upon whether or not the wife would encourage the continuation of the relationship not only in her parenting role but also by being physically able to carry out all of the proposals that she has offered. I am satisfied that the wife has encouraged the children to have a relationship with their father to date and that she does have the financial wherewithal to ensure that what she proposes can be fulfilled. Added to that is the husband’s own offer to be able to travel to Queensland on at least one occasion in the middle of the term, it seems to me that in terms of quantum there will not be a significant change in the amount of time that the husband spends with the children. I do not accept that the reduction of time would make a significant difference in this case to the meaningful relationship and in particular, the important attributes I set out between the husband and the children. There are other ways in which the relationship can be fostered and continued. Such an example is that relating to the webcam and the telephone. Here it is the quality not the quantity of time that is important.
More importantly, Mr P pointed out that the parent moving away had to foster the relationship from afar. Regardless of the quantum of time, it is the efforts that the wife would make in Queensland to encourage the children to think about and talk about their father as well as the husband’s efforts from Victoria not only in attending Queensland wherever he could but also actively talking to the children about their way of life that will make the difference in this case. For the children to benefit from what is already a meaningful relationship with both parents, that effort by both parents needs to be undertaken. As I pointed out at the commencement of these reasons, neither party trusts the other. However, I am quite satisfied on the evidence that the wife has not endeavoured to diminish the relationship between the husband and the children notwithstanding the appalling communication between the parties.
If ever a case was reflected in the writings of Patrick Parkinson[4] it is this. Parkinson said:
…courts cannot by order create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible.
[4] Decision-making about the best interests of the child: the impact of the two tiers, (2006) 20 AJFL 2
In my view, the move to Queensland notwithstanding the potential reduction of time and the wife’s own statement that the children would be “devastated” by a reduction of time, there is still evidence that the children will benefit from the meaningful relationship with their father as well as with their mother.
Section 60CC factors
I have already set out sufficient detail to indicate that there is a meaningful relationship between the parents and both children at the moment and I am quite satisfied that whilst it may not be optimal, there is no reason for me to think that providing both parties continue to commit themselves to the course that I propose, the relationship will not only be meaningful in the future but that children will benefit from it. In saying that, I appreciate that the husband will feel aggrieved by the orders that I propose but in reality, I have no doubt that he will move on with his life as he has in relation to the financial issues and continue the sort of involvement in the lives of these boys as he has to date. That involvement may necessarily change by virtue of distance involved but I am not convinced that it will mean that his relationship will decline. I accept that it will change.
Mr Robinson of counsel submitted that because of the inherent tensions between the parties and the effects of those upon the children, there is a risk that those problems will be emphasised much more by virtue of the distance between the parties. I do not accept that that is what the husband would do and having regard to the fact that the wife has consistently complied with all face to face contact orders, I do not believe that she would do anything deliberately to thwart the relationship between the husband and the children. That is not to say that the relationship between the parents could not be improved with the obvious benefit for the children.
I also accept that the nature of the relationship will change and that the internet proposal of the wife is not the same as physically touching the children but that by virtue of the orders that I propose, it is a reasonable substitute.
I have taken little account of the views of the children in this case not because of the fact that the wife may have influenced them in some way as I was urged to so find by Mr Robinson but rather that because of their age and state of confusion in all of this, those views can carry little weight.
I have carefully considered the nature of the relationship of each of the parents with the children and as Mr Robinson pointed out, there is no doubt that each of the parents not only does things differently but also well. It is important to remember however that it is the wife who has been predominately the daily care activities of the children but most importantly running around to the various health professionals involved in their lives. I do not accept that the nature of the relationship between the children and the husband will change however that very much depends on how he responds to the changes in the children’s life.
Section 60CC requires a consideration of the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. Notwithstanding the assertion that the husband makes about the wife’s capacity to be destructive of his relationship with the children, I do not accept that the wife has not facilitated nor that she will in the future not facilitate the relationship between the children and the husband.
Mr Robinson urged me to look at the communication of the wife as an indication to show that the wife does not facilitate information about things that the husband should know. I have made findings about the husband’s attitude to the wife, it is not surprising that she is not effusive about her communication. It seems to me that although the diary system is not ideal, until such time as the parties can work out a better way of improving their own communication, it is the best that can be done.
I have considered the effect on the children of separation from the husband. The wife said that the children would be devastated but that very much depends upon how each of the parties deals with the problem particularly in the lead up to the period of time that the children make the move. If each parent puts a positive spin on the fact that there will be not only regular face to face contact associated with the excitement of airline travel and the electronic communication, it is more likely than not that the children will not be distressed or devastated.
I have considered the question of the practical difficulty and expense of the children spending time with the husband and refer to my findings in relation to the wife’s capacity to meet the obligations proposed. I shall not repeat them now.
A significant feature of s 60CC (3)(f) relates to the capacity of the parents to provide for the needs of the children including emotional and intellectual needs. Mr Robinson urged me to consider two things. The first is the wife’s inappropriate involvement of the children so that they adopt her position and the second is that relating to her lack of concern about M and his problems. I reject both of those and say that it is my view that each parent has the capacity to provide for the needs of the children but in this case, I am satisfied that the wife has done the task well up until now and I see no reason for that to change in the future.
The questions of the maturity, sex, lifestyle and background together with the cultural issues in this case are of no moment.
Another significant feature however of s 60CC relates to the attitude of the parents towards the children as well as to their responsibilities of parenthood as they have demonstrated those things. This is one area in which the husband has to be highly complimented. He has demonstrated a significant commitment in the form of travel particularly until August 2006 and since then as well. I accept that he has taken his parenting role seriously. I accept that he has been conscious of the need to involve the children in activities that are different from those that they do when they are with their mother. The one area of significant concern relates to what I think is irresponsible behaviour in relation to his attitude towards the wife and in particular, I refer to the incident involving Mr B. The husband has to get over that problem and begin to treat the wife as the parent of his children.
In relation to the wife’s attitude, I do not accept the submission of Mr Robinson on behalf of the husband that her decision to move to Queensland was poorly thought out nor do I accept that she had deliberately lied about it. In my view, the wife has shown a responsible attitude to parenthood simply by virtue of the fact that whenever there was a problem associated with the children and in particular M, she attended to it. She fulfilled the role of a parent during the time that she was running the motel whilst the husband was in Melbourne and subsequent to separation, she has ensured that whenever there has been a requirement for face to face contact with the husband it has occurred. In my view, the wife has shown responsible attitudes towards the care of her children.
The issue of family violence and family violence orders in this case is a vexed one. I accept that there has been no violence of a physical nature as is often seen in these sorts of cases. However, the psychological battering of the wife to which I have referred must invariably rub off on the children. It is timely to remember the words of Chisholm J in JG & BF (1994) FLC 92-515 where his Honour said:
For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence.
In this case, each party acknowledged the impact of the chronic conflict upon the children. Quite frankly, the husband seemed to have very good insight as to the damage it might do. However, sadly, nothing seems to have occurred during the adjournment period that would convince me that it would ever change. I am very concerned that the children are aware of the conflict which in my view is well described as family violence. Section 60CC requires me to consider the matters in determining what is in the best interests of the children. In relation to family violence, I have not taken the view that the children should be permitted to live in Queensland on the basis of that family violence. I certainly have taken it significantly into account in respect of the decision that I have earlier made that there is no basis to change the primary parenting responsibilities and I say that it has formed a significant part of my decision.
I am also obliged to consider whether it would be preferable to make an order that would be least likely to lead to further proceedings. The husband urged me to find that it will only be time before the orders break down and the wife fails to comply to the extent that the husband has to exercise enforcement remedies. Having regard to the proposals put by Ms Stewart on behalf of the wife about a fund to cover those contingencies, together with the fact that the wife has always complied with the face to face contact, I do not believe there is any basis for such an assertion. The major complaint that the husband has had historically related to the telephone communication and the proposed orders of the wife seemed to me to move to the husband’s position adopted during the trial that notwithstanding what the orders of 2006 said, he wanted to speak to the children whenever there was something to talk about but more particularly every second day. Under those circumstances, it seems to me that it is preferable to make orders along those lines on the basis that all proceedings will hopefully come to an end between the parties.
I am also obliged under Part VII of the Act to consider what the parents have done subsequent to separation. I do not propose to say more than that I am satisfied that the wife has facilitated the relationship between the husband and the children enabling their communication to be good. I have a significant concern about whether the wife has properly facilitated the husband participating in decisions about major long term issues but to a very large degree, that problem has been a symptom of the very poor communication between the parties and I have already made statements about why that is so. The parties however have agreed to an order for equal shared parental responsibility and that means that each of them agrees to consult with the other in respect of major long term decisions concerning the welfare of the children. For the wife’s part, that would mean the necessity for her to explain to the husband where it is that she will be living in Queensland but also to consult with him in relation to schooling and health. Whilst I can make specific orders that set out obligations on each party to notify the other in respect of health issues, I wish to stress that I see the obligation to keep each other informed about and the quality of the education in those schools as extremely important as well as an obligation. In circumstances where the communication levels between the parties are extremely poor, the task becomes much more difficult but nonetheless still an obligation. The parties themselves for the sake of their children must be far more open about what they see is in the best interests of their children in the future and the sooner they get on with that role, the sooner the children will benefit accordingly.
I propose therefore to make orders which I think are in the best interests of the children.
I certify that the preceding One Hundred and Ninety Three (193) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate
Date: 27 November 2007
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