Tanner and Tanner
[2011] FamCA 476
•22 June 2011
FAMILY COURT OF AUSTRALIA
| TANNER & TANNER | [2011] FamCA 476 |
| FAMILY LAW – CHILDREN – RELOCATION – Where there is a history of family violence and high conflict - where the mother is the primary carer for the children – Where the mother has established a long term relationship online with a resident of Canada who has a child in Canada – Where sufficient arrangements have been made for contact and communication – where it is in the children’s best interests for relocation with the children to be permitted |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Vanderhum v Doriemus (2011) |
| APPLICANT: | Mr Tanner |
| RESPONDENT: | Ms Tanner |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Reaston |
| FILE NUMBER: | CSC | 615 | of | 2009 |
| DATE DELIVERED: | 22 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 25 - 27 October 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | O'Reilly Stevens Bovey Lawyers |
Orders
All previous parenting orders are discharged.
The mother have sole parental responsibility for the three children of the marriage L born … November 1994, H born … October 1997 and B born … June 2001, provided that:
2.1.Other than in emergencies, she consult with the father before making any major decisions about the children’s care welfare or development, except as expressly allowed for in these orders, and take the father’s views into account before making any firm decision; and
2.2.Inform the father of any decision she does make.
There be no further orders regarding the child L, subject to Order 24.
H and B, (“the children”) shall live with the mother at all times other than as specified in these orders.
The mother shall be at liberty to relocate with the children to City AA in Canada.
The mother shall provide the father in writing, at least 60 days prior to the children’s intended departure from Australia, with details of the date and time of their departure.
Until the children relocate pursuant to Order 5 and subject to Orders 8 and 9 below, they will spend time with the father as follows:
7.1.During school terms, on each alternate weekend from after school on Friday until before school on the following Monday;
7.2.One half of each school holiday period, (other than Christmas holidays) ;
7.3.On H’s and, if applicable, on B’s birthdays, from 3pm until 7pm if the birthday falls on a school day and from 12pm to 7pm if the birthday falls on a weekend day, unless agreed to in writing;
7.4.On Father’s Day from 9am until 5.30pm;
7.5.If the children are still in Australia, on the father’s birthday from 3pm until 7pm if the birthday falls on a school day and from 12pm to 7pm if the birthday falls on a weekend day, unless agreed to in writing;
7.6.If the children are still in Australia, Christmas school holidays on a week about rotational basis provided they are returned to the mother by 5pm the Saturday prior to the commencement of the new school year;
7.7.If the children are still in Australia, from 5pm on 24 December 2011 to 4pm 25 December 2011.
Wherever possible the changeovers will occur to or from school and otherwise, to or from the children’s home, and:
8.1.In the event the father cannot collect the children from school, his time will commence at 5.30pm Friday and he will notify the mother via email or text message at least 24 hours beforehand;
8.2.In the event the father cannot return the children to school on the Monday, he will return the children to the mother at 5.30pm Sunday, and he will notify the mother at least 24 hours beforehand via email or text message.
Notwithstanding Orders 7 and 8, the children will spend the following times with their mother where they are otherwise spending time with their father:
9.1.On the children’s birthday , unless they are with their father, from 3pm to 7pm;
9.2.On Mother’s Day from 9am until 5.30pm;
9.3.On the mother’s birthday from 9am until 5.30pm.
Subject to Orders 11, 12, 13 14 and 18 upon the relocation referred to in Order 5, the Father will spend time with the children:
10.1.in Canada:
10.1.1.every alternate year, commencing in the first year after their relocation for up to the entirety of the children’s summer school break; and
10.1.2.on up to four other occasions provided that the period does not exceed 3 consecutive weeks (excluding the periods of 48 hours referred to in Order 11.3); and
10.2.in Australia:
10.2.1.each other year for the duration of the children’s summer school holiday; and
10.2.2.For up to one 3 week block period (excluding the periods of 48 hours referred to in Order 12) at any time the mother and children travel to Australia.
10.3.If possible, on the children’s birthdays from 3pm to 7pm.
The father’s time with the children in Canada will be conditional upon:
11.1.the father giving the mother at least 2 months notice of his intention to visit and spend time with the children;
11.2.the father giving the mother details of his itinerary including his accommodation arrangements for himself and the children at least 30 days prior to his travel;
11.3.the children returning to their mother’s care for no less than 48hours after each 7 consecutive day period, unless the parties agree otherwise in writing; and
11.4.the father will ensure the children attend school every school day.
During all time the children spend with the father in Australia they will not spend more than a period of 7 consecutive days with the father without spending a 48 hour period with the mother or the maternal grandparents, at the mother’s nomination, unless the parties agree otherwise in writing.
In the event the mother travels with the children to Australia, she will give the father 60 days notice of her travel dates and the father will give the mother at least 30 days notice of his intended time to be spent with the children, unless the parties agree otherwise in writing.
When the children relocate, the father will communicate with the children:
14.1.by the mother facilitating telephone communication on her telephone once each Sunday for a period not exceeding 30minutes, such times to coincide with when both the father and the children are in normal waking hours;
14.2.at all reasonable times with the father to initiate contact with the children via personal phone, Skype account (or any similar facility), MSN account, PSN account, Facebook account, email or other agreed electronic means or by normal post;
14.3.and for the purpose of facilitating communication the mother will arrange forthwith upon their relocation:
14.3.1.internet connection to allow the children to access Skype, MSN, email and facebook accounts to communicate with the father; and
14.3.2.personal phone for H, transferred to a Canadian provider, and the new number for H provided to the father within 7 days of the new number being activated;
14.4.the father is to provide his own telephone and internet access details at all times; and
14.5.each parent is to keep the other informed of any new contact addresses, electronic addresses and phone numbers within 7 days of any change.
Until the children relocate the father will communicate with them at all reasonable times via electronic means.
The father is restrained from contacting the mother, other than in emergencies, except by email, or as otherwise agreed to in writing from time to time, and only in relation to issues pertaining to the children.
In the event of emergencies which involve, or will impact, upon the children’s welfare, the parents are to contact the other or their nominee via email or mobile phone.
The father is restrained from, and his time with the children is conditional upon he not:
18.1.using physical force on the children;
18.2.calling the children foul names;
18.3.calling the mother foul names within the presence or hearing of the children;
18.4.denigrating the mother or her partner within the presence of the children;
18.5.subjecting the children to physical violence or being physically violent to any person in the presence or hearing of the children;
18.6.being verbally abusive to the children; and
18.7.being verbally abusive to any person in the presence or hearing of the children.
The mother will apply the amount equivalent to one financial year’s payment received from the father for child support towards the cost of:
19.1.the children travelling once, bi-annually to and from Australia;
19.2.the father travelling once bi annually to and from Canada;
and where such travel costs exceed the child support received by the mother for that corresponding financial year, the remaining balance shall be split between the parties equally.
The father shall meet any other of his own travel costs.
The mother be authorised to sign all documents and do all acts necessary to obtain a passport for each of the children, at her expense, and thereafter, the mother be authorised to sign any documents relevant to the children’s residence or citizenship.
The mother shall facilitate B attending speech therapy, as is recommended by his speech therapist.
The mother shall continue to facilitate such counselling for H and B as recommended by Ms O.
The Independent Children's Lawyer is to make arrangements to meet with the family consultant and the children to explain to the children (including L) the effect of the orders that have been made.
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.
NOTATION:
The mother has permission to do anything in her power to have these orders recognised by an appropriate court in Canada exercising similar jurisdiction.
IT IS NOTED that publication of this judgment under the pseudonym Tanner & Tanner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 615 of 2009
| Mr Tanner |
Applicant
And
| Ms Tanner |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The mother commenced a romantic relationship with Mr K over the internet in 2008 and wishes to move to Canada with the children to live with him, no earlier than the end of 2011. The father opposes this relocation.
There are three children of the relationship, L (aged 16), H (aged 13) and B (aged 10). L finishes her schooling in 2011. In the family consultant’s supplementary report of 27 October 2010, it is noted that L may or may not come to Canada, depending upon whether she believes it would benefit her. The family consultant was confident that L would weigh up the advantages and disadvantages and make an appropriate decision. She no longer has a boyfriend in Town 1 but has a close circle of friends. She mentioned her plans to possibly move out of home upon the conclusion of her studies, depending on the circumstances. She said that even if she didn’t move to Canada with the mother, she would like to visit there.
L has not seen her father for a considerable time and is currently estranged from him. The father does not seek any order in relation to L, but seeks parenting orders in relation to the two younger children (“the children”).
The father has served time in jail for shooting the family dog with a bow and arrow. The mother makes various other allegations of violence against him and raises issues about his parenting ability.
APPLICATIONS
The mother wishes to have sole parental responsibility for the children, and to relocate with the children to Canada at the end of 2011. The mother had initially indicated that she wished to move to Canada straight away. She changed her position on that because she wished L to have the opportunity of coming to Canada with her. As indicated, L’s current intentions are uncertain, but there is a possibility she will move to Canada. Accordingly the mother wanted to remain in Australia until L finished her higher school certificate in 2011. A second reason why the mother changed her position as to the timing of the move to Canada was because, against her expectation, her personal injury claim has not been finalised and the final determination of that claim was anticipated to be some time during 2011. She intends to use part of the award that she receives to re-establish herself in Canada.
At the commencement of the hearing, the mother proposed:
6.1.That the father visit the children in Canada every two years through the whole Canadian summer school holiday and the children visit the father in Australia in the intervening years for two months during the July/August Canadian summer school holidays. If L does not relocate to Canada then the mother proposes she is to live with the maternal grandparents.
6.2.That the cost of travel be paid for by the mother accumulating and quarantining child support payments made by the father for the purposes of paying for the children’s air fares. The mother further proposes that in the event that those child support payments are insufficient to pay for the travel expenses, then the parties would thereafter bear the responsibility for those payments equally.
6.3.If I decide the children are to remain in Australia, the mother says she will remain here. She wishes the children to be primarily with her (that is agreed between the parties). The mother wishes to have the children on alternate weekends, so that she shares more of the children’s leisure time.
6.4.That the father attend an anger management course.
During final submissions, the mother, having read the orders sought by the Independent Children's Lawyer, contented herself with adopting those orders.
The father wants equal shared parental responsibility. If the mother is to relocate to Canada then the father wishes for the children to live with him. He proposes the children spend time with the mother for half of the Christmas holidays and the entirety of the other two holiday periods, and the mother may visit the children in Town 1 any time if it is convenient for the father.
During the hearing the father indicated from the bar table that if the children were allowed to go to Canada, then he would follow them and establish himself in Canada to be in close proximity with them. When I subsequently asked the father to come back into the witness box to give evidence about his new proposal the following day, he had obviously reconsidered his position. He indicated that there was no way that he could relocate to Canada given his employment and connections to Australia. It appeared that his statement the previous day that he intended to relocate to Canada if the children went there was an impulsive and emotional position and one that he retracted once he had considered it more carefully.
At the conclusion of the hearing, the father proposed that, if the mother is able to relocate to Canada with the children, the children stay with him during the entire summer holiday (two months) and the entire mid-winter holiday period (10 days in January), and that he is also permitted to visit them in Canada. He proposes that the mother pay for the travel arrangements. If the children are not permitted to go to Canada and the mother remains in Town 1, the father wishes to see the children each weekend and half of each holiday period in accordance with the current arrangements. The two younger children currently see their father from 5.30pm on Friday to 3-5pm on Sunday on one weekend and from 5.30pm Friday to about 3-5pm Saturday on the other weekend. The father indicated that the current orders which would allow him to have the children each alternate weekend to before school Monday were varied by agreement between the parties given the distance that he currently resides from the children’s school. He said during evidence that he was in the process of attempting to obtain accommodation at Town 1 so that the current interim orders could be re-implemented and he would then be able to take the children to school on Monday mornings.
The Independent Children’s Lawyer seeks the following orders:
1.The mother have sole parental responsibility for the three children of the marriage [L] born […] November 1994, [H] born […] October 1997 and [B] born […] June 2001 provided that:
1.1.Other than in emergencies, she consult with the father before making any major decisions about the children’s care welfare or development, except as expressly allowed for in these orders, and take the father’s views into account before making any firm decision; and
1.2.Inform the father of any decisions she does make.
2.There be no further orders regarding the child [L].
3.The children, [H] and [B], (“the children”) shall live with the mother at all times other than as specified in these orders.
4.The mother shall be at liberty to relocate with the children to [City AA] in Canada.
5.The mother shall provide the father in writing, at least 60 days prior to the children’s intended departure from Australia, with details of the date and time of their departure.
6.Until the children relocate they will spend time with the father as follows:
6.1.During school terms, on each alternate weekend from after school on Friday until before school on the following Monday;
6.2.One half of each school holiday period, (other than Christmas holidays) subject to Orders 7&8 below
6.3.On the children’s birthdays, from 3pm until 7pm unless agreed to in writing ;
6.4.On Father’s Day from 9am until 5.30pm;
6.5.On the father’s birthday from 9am until 5.30pm;
6.6.Christmas school holidays on a week about rotational basis provided they are returned to the mother by 5pm the Saturday prior to the commencement of the new school year.
7.Wherever possible the changeovers will occur to/from school and otherwise, to/from the children’s home, and
7.1.In the event the father cannot collect the children from school, his time will commence at 5.30pm Friday and he will notify the mother via email or text message at least 24 hours before hand;
7.2.In the event the father cannot return the children to school on the Monday, he will return the children to the mother at 5.30pm Sunday, and he will notify the mother at least 24 hours before hand via email or text message.
8.Notwithstanding Orders 6 and 7, the children will spend the following times with their mother where they are otherwise spending time with their father:
8.1.On the children’s birthdays, from 3pm until 7pm unless agreed to in writing;
8.2.On Mother’s Day from 9am until 5.30pm;
8.3.On the mother’s birthday from 9am until 5.30pm.
9.Subject to orders 12&13 upon Relocation, the Father will spend time with the children,
9.1.in Canada
9.1.1.every alternate year, commencing in the first year after their relocation for the entirety of the children’s summer school break; and
9.1.2.at any other time provided that the period does not exceed 3 consecutive weeks; and
9.2.in Australia
9.2.1.each other year for the duration of the children’s summer school holiday; and
9.2.2.For up to a 3 week block period at any time the mother and children travel to Australia.
10.The father’s time with the children in Canada will be conditional upon:
10.1.The Father giving the mother at least 2 months notice of his intention to visit and spend time with the children;
10.2.details of his itinerary including his accommodation arrangements for himself and the children at least 30 days prior to his travel;
10.3.the children returning to their mother’s care for no less than 48hours after each 7 consecutive day period, unless the parties agree otherwise in writing;
10.4.the father will ensure the children attend school every school day.
11.During all time the children spend with the father in Australia they will not spend more than a period of 7 consecutive days with the father without spending a 48 hour period with the mother or the maternal grandparents, at the mother’s nomination, unless the parties agree otherwise in writing.
12.In the event the mother travels with the children to Australia, she will give the father 60 days notice of her travel dates and the father will give the mother at least 30 days notice of his intended time to be spent, unless the parties agree otherwise in writing.
13.When the children relocate, the father will communicate with the children:
13.1.By the mother facilitating telephone communication on her telephone once each Sunday for a period not exceeding 30minutes, such times to coincide with when both the father and the children are in normal waking hours;
13.2.at all reasonable times with the father to initiate contact with the children via personal phone, Skype account, MSN account, PSN account, Facebook account, Email or other agreed electronic means or by normal post;
13.3.and for the purpose of facilitating communication the mother will arrange forthwith upon their relocation:
13.3.1.Internet connection to allow the children to access Skype, MSN, email and face book accounts to communicate with the Father;
13.3.2.Personal phone for [H], transferred to a Canadian provider, and the new number for [H] provided to the Father within 7 days of the new number being activated;
13.4.The Father is to provide his own telephone and internet access details at all times;
13.5.Each parent is to keep the other informed of any new contact addresses, electronic addresses and phone numbers within 7 days of any change.
14.Until the children relocate the father will communicate with them at all reasonable times via electronic means.
15.The Father is restrained from contacting the Mother, other than in emergencies, except by email, or as otherwise agreed to in writing from time to time, and only in relation to issues pertaining to the children.
16.In the event of emergencies which involve, or will impact, upon the children’s welfare, the parents are to contact the other or their nominee via email or mobile phone.
17.The Father is restrained from, and his time with the children is conditional upon he not:
17.1.using physical force on the children;
17.2.calling the children foul names;
17.3.calling the mother foul names within the presence or hearing of the children;
17.4.denigrating the mother or her partner within the presence of the children;
17.5.subjecting the children to physical violence or being physically violent to any person in the presence or hearing of the children;
17.6.being verbally abusive to the children; and
17.7.being verbally abusive to any person in the presence or hearing of the children.
18.The Mother will continue to facilitate such Counselling for [H] and [B] as recommended by [Ms O].
19.The Mother will facilitate [B] attending speech therapy, as is recommended by his speech therapist.
20.The Mother will apply the amount equivalent to one financial year’s payment received from the father for child support to the cost of:
20.1.the children travelling once, bi-annually to/from Australia;
20.2.the father travelling once bi annually to/from Canada;
and where such travel costs exceed the child support received by the mother for that corresponding financial year, the remaining balance shall be split between the parties equally;
21.The father shall meet any other of his own travel costs.
22.The mother be authorised to sign all documents and do all acts necessary to obtain a passport for each of the children, at her expense, and thereafter, the mother be authorised to sign any documents relevant to the children’s residence or citizenship.
23.The Mother requests permission from the court to have these orders noted in the Canadian Family Court.
24.The Independent Children's Lawyer is to make arrangements to meet with the family consultant and the children to explain to the children (including [L]) the effect of the orders that have been made.
25.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.
DOCUMENTS RELIED UPON
The father relied upon the following documents:
12.1.Minutes of Order proposed, filed 15 April 2010;
12.2.Father’s affidavit filed 25 September 2009;
12.3.Father’s affidavit filed 15 April 2010;
12.4.Father’s affidavit filed 16 September 2010; and
12.5.Affidavit of Ms E filed 16 September 2010 (the father did not make Ms E available for cross examination and consequently her evidence in this affidavit is untested).
The mother relied on the following documents:
13.1.Case Summary document filed 15 April 2010;
13.2.Amended Response filed 24 February 2010;
13.3.Mother’s affidavit filed 19 October 2009;
13.4.Mother’s affidavit filed 6 September 2010;
13.5.Affidavit of Mr K filed 06 September 2010; and
13.6.Mother’s financial statement filed 14 October 2010.
The Independent Children’s Lawyer relied upon the following:
14.1.Case Information document filed 19 April 2010;
14.2.Issues Assessment report dated 29 April 2010;
14.3.Family Consultant’s Reports dated 22 July 2010 and 27 October 2010; and
14.4.Affidavit of Ms O filed 18 October 2010.
SHORT HISTORY
The father was born in March 1975 and is currently aged 36.
The mother was born on in 1977 and is currently aged 34.
L was born in November 1994 and is currently aged 16.
The parties commenced cohabitation in November 1994 and married in April 1995.
H was born in October 1997 and is currently aged 13.
B was born in June 2001 and is currently aged 10.
The parties separated in October 2008.
The mother started the relationship with Mr K (aged 36) in December 2008.
The father was in a relationship with Ms E from November 2008 to October 2009.
CREDIT
Father
On many occasions I doubted the accuracy of many statements made by the father. A few examples will suffice.
The father was asked questions about him throwing his dinner plate still full against a wall (as detailed in paragraph 102 of the mother’s first affidavit). Originally he agreed that he had done that. He then in his oral evidence attempted to minimise what had happened, but then when pressed, again agreed that he had done what was alleged.
The father asserted in cross examination that the mother made an application for a domestic violence order in response to him complaining to her that she had removed $600 from a joint account. The mother tendered documents (exhibit C) which demonstrated that the $600 had been withdrawn by her at least a month after she had made the application for the domestic violence order.
The father has given inconsistent versions of the incident in 2006 involving a knife, which led to him attending a hospital for treatment. I deal with this incident in more detail below.
I also refer below to the father’s inconsistent evidence when dealing with the allegation that he had threatened to slit the throat of J, the son of his subsequent partner, Ms E.
Mother
Whilst the mother has a criminal record for fraud and attempted fraud, I found the mother gave evidence in a fairly straight forward way and freely made concessions against her interests, particularly in relation to physically retaliating on occasions to the father’s aggression.
Mr K
Mr K gave evidence in person. He was an impressive witness who gave evidence in a relaxed and forthright manner.
Conclusion about credit
Whilst the father was prepared to concede some of what he had done, he had difficulty in conceding various aspects of his behaviour and needed to be pressed before important elements of an event were conceded. There is a significant disparity between the father’s evidence and the mother’s evidence in respect of particular events. Where it conflicts, I accept the mother’s version over the father’s version.
CHRONOLOGY
The mother’s new partner Mr K was born in 1975.
The father was born in 1975.
The mother was born in 1977.
The parties began cohabitation in November 1993.
L was born in November 1994 after which the mother suffered 18 months of post-natal depression.
The parties married in April 1995.
H was born in October 1997.
B was born in June 2001.
In February 2003 the father was convicted of malicious wounding to an animal after he shot the family dog with a bow and arrow. Prior to the court case, the father attempted suicide and was hospitalised. As a result of his conviction, he received a sentence of two months prison and was released in April 2003.
The maternal grandparents relocated from Western Australia to Town 1 in 2004, and the parties followed them soon after with the children. The father says this was because the children missed the grandparents. The mother said it was because of the community backlash received after the father’s publicised crime against the dog. I accept that it was more the latter than the former.
In February 2006 the mother discovered a lump in her breast. She had a lumpectomy on 23 October 2006.
In May 2006 the father stabbed a knife into the kitchen table when the children were sitting at it. I discuss this incident in more detail below.
In June 2006 a notification was made by L’s school that she suffered ‘emotional damage’. A Child Safety interview was conducted and she was found to have suicidal ideation and self harming tendencies. She was aged 11 at the time.
In May 2008 the mother fell at work, hitting her head severely. She still suffers complications as a result including memory loss, and difficulties with language and concentration.
In August 2008 the parties purchased … K Street, Town 1. The mother’s parents lent $80,000 and the parties obtained a loan of $250,000.
On 12 October 2008 the children witnessed violence by father towards the mother. The father agrees H said to him, “Stop hurting Mum. Leave her alone. What are you doing?”
On 16 October 2008 the father found out the mother had been engaging with other men by computer whom she accepted as friends on Facebook. The children witnessed domestic violence by the father and the father snap the new laptop in half. The father says this is the first and only time he had laid his hands on the mother but I do not accept that to be so.
The parties separated in October 2008 and the father moved out of the home. An agreement was reached for the father to see the children every weekend.
On 12 November 2008 the mother filed an Application for Protection Order. A Temporary Order was obtained on 20 November 2008 in favour of the mother. The mother said the father breached this numerous times and admitted she still dropped the children at the father’s house every weekend.
In December 2008 the mother began her online romance with Mr K, resident in Canada.
The mother says that at Christmas 2008 she found out that father had given L two alcoholic drinks and the other children had also been drinking alcohol.
On 8 January 2009 the father consented to a protection order that included the children. The children were removed as protected persons from the order in September 2009 by consent.
The father did not see the children between January 2009 and 19 May 2009.
In March 2009 the mother resigned from her workplace. At that time she was assessed as having 15 percent total body impairment.
The parents reached an agreement as to parenting on 19 May 2009.
In early June 2009 H and B told the mother that J, a 7 year old child of the father’s partner, had inappropriately touched H (then aged 11) and had been pressuring B to allow him to touch B’s penis. The father said contact occurred due to the disparity in the children’s heights. H was interviewed by CPIU and the matter was found to be an ‘unsubstantiated risk’ as both parents were willing to intervene to protect the children.
There was an incident on 7 June 2009 where L called the mother at approximately 8pm, wanting to come home. The father had raised his voice at the children and at L’s boyfriend, and L reacted due to her embarrassment. She called the mother. The mother suggested to the father that the father put the children in the car and have his partner drive them home. The mother says the father responded, “We’re not driving them up there anymore. You can take all the kids back tonight. I don’t care if I never see them again. Have a nice life, I hope you die.” The mother called the police, who attended the father’s home later that evening. L refused to have further visits with her father and refused to talk with him on the phone from this date.
On 14 July 2009 Mr K arrived in Australia and lived with the mother and children for a month.
On 19 July 2009 H and B told the mother that the father had questioned them about Mr K. The father had said to B, “I don’t care anymore, don’t bother coming back”. L refused to speak to the father on 20 July 2009 and the father sent a text message to L saying “Do not try to contact me again, I do not care about you.”
On 22 July the father came to the mother’s house to collect the children, and he began harassing the mother. He took the children and returned them not long after, with the children distraught, saying that their Dad was scary and mean.
On 24 July 2009 the mother revoked the written parenting agreement, refusing visitation. She allowed the children to contact the father by phone, video calls and MSN but would not allow face to face contact until the father had undergone a parenting course and the anger management counselling. The mother said the father was dangerous and abusive and the children were scared of him.
The father again did not see the children from 24 July 2009 to 11 September 2009.
On 18 October 2009 the mother flew to Canada to spend time with Mr K for one month. The father cared for the two younger children in a week about arrangement with the maternal grandparents. The children did not attend school on six days out of the 15 school days they were with the father, and the father attended work, leaving them at home.
On 23 November 2009 Interim Consent Orders were made, whereby the two younger children were to spend time with the father each weekend and half of the holidays. L was still refusing to see the father at this time.
On 7 February 2010 the matter was transferred to the Family Court of Australia.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII FLA 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
The principles underlying those objects (unless contrary to a child’s best interests) are:
(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 60CA FLA provides that when 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.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests. The Full Court said in Starr and Duggan [2009] FamCAFC 115:
36. The Full Court [in McCall & Clark [2009] FLC 93-405] … pointed out that in seeking to address the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
In the same case, the approach of earlier Full Courts to the manner in which the parenting enquiry should take place was endorsed:
38. … it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·First make findings concerning the relevant s 60CC(3) factors;
·Then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·Then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
A decision by a single judge after the High Court’s determination in MRR v GR (2010) 240 CLR 461 doubted the soundness of the approach in Starr & Duggan (see Cowley v Mendoza (2010) 43 FamLR 436). However, the Full Court in Vanderhum v Doriemus (2011) has said that it has not been established that anything in MRR v GR created a “process or pathway” which rigidly had to be followed. In this case I will say something briefly about the parties’ proposals and then make findings relevant to section 60CC(3) factors. I will then consider whether or not an order for equal shared parental responsibility is appropriate and whether or not, in this case, I am required by section 65DAA Family Law Act to consider equal time or substantial and significant time.
RELOCATION PROPOSALS
The mother proposes to relocate, with the two younger children, and L if she wishes, to City AA Canada. As outlined specifically above, she proposes that the father spend time with the children for the entire Canadian summer holidays and for any other three week period.
I have also already set out the father’s proposals.
Mother’s future prospects in Canada
The mother’s father has an illness at the moment and he is having an operation. I have no further information about that. The father made the point that the mother currently works for her father and if her father is unable to continue in business then that may well affect her ability to work for him in Canada by electronic means.
I am unable to place any great weight on that submission because I have no detail whatsoever as to the current health of the mother’s father nor any information about what would happen to the mother’s father’s business if he was to become unable to continue in that business for some reason. I find that the mother has skills which would enable her to continue to earn income into the foreseeable future.
The position adopted by Mr K
Mr K has a very significant involvement in the life of his son D (aged 7 years) in Canada. The mother of D has considerable difficulties in caring for D arising out of her employment and Mr K accommodates that by picking D up on four out of five school mornings a week and then taking him to school. He has D with him overnight each Wednesday night, each alternate weekend and half school holidays. Mr K has a very stable job, a government job, well paying with government benefits. Despite all that, he said that if the children were not allowed to go to Canada, he would be coming in Australia and joining the mother’s household here. Although he said he would be able to make satisfactory arrangements, it was far from clear to me as to how he was going to work that out. Mr K said that there was significant family support structure on both sides of D’s family in Canada and Mr K would need to rely upon this support when working out his arrangements with his former wife. I got the impression that there would not be a court case about it and he certainly would not be pursuing a court case in Canada on the basis it would be appropriate to bring his son to Australia. I note that his former stance on the matter, when speaking with the family consultant, was that “if it were the only option then I would consider coming over for a short time period” and I accept that was no longer his position.
The father in these proceedings seized upon the evidence of Mr K, asking him rhetorically:
78.1.“If you’re not going to force your child to come to Australia why should you be forcing my children to go to Canada?”; and
78.2.“If you are going to come here why are we even having this court case?
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) FLA)
Both parties acknowledge that the mother has been the primary carer of the children prior to and after separation, but that both parents were involved in raising the children.
The father submits that if the children move overseas it will prevent a meaningful relationship between them and the father in the short and long term. The mother submits that physical presence is not necessary for a relationship. The family consultant advises that physical presence may not be necessary for H, but at B’s age, face to face activities will serve to develop his relationship with the father.
The need to protect Children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)
The mother said she experienced ongoing physical and emotional abuse at the hands of the father and recounts numerous incidences from throughout their relationship. The children too have recounted some incidents. The father makes a number of concessions. I detail the reported incidents below.
The mother describes, and I accept, the father often got angry. I accept her description of the father during occasions in the following terms, “the veins in his neck were standing out, his face was turning purple and his eyes were ‘bulging’ out of his face”. The family consultant noted the same reddening of the face when the father became angry.
The mother said she reacted violently only once to the father’s taunts and abuse, after another argument about her cooking and about her being a bad wife and mother. The mother said she saw “a red film pass over [her] eyes” and the next thing she knew she was straddling the father with her hands around his neck. She was alarmed at where she found herself, jumped off and curled into a ball on the chair whispering apologies. The father agreed that on the one occasion the mother put her hands around his throat, but he denies that on that occasion he then picked her up, carried her to the front door and threw her through the air over the porch into the front yard.
Knife Incident
It is an agreed fact that in 2006 the father cut himself with a knife when he was sitting at the kitchen table. The family consultant made the point that the father minimised some of the descriptions of the acts in which he had been involved. One example of that was his description to the family consultant of what had happened when he had threatened at the table with a knife after money had been stolen. The family consultant’s description of that event made it clear that the father had minimised to her the nature of that event and the level of alarm that it may have caused in the children.
The mother deals with this incident at paragraphs 303 to 319 of her original affidavit. She says that one evening in the middle of 2006 the father noticed a sum of money had gone missing from his wallet. The mother believed that it was about $10 to $20. She says he had the children sit down at the table and told them to place their hands on the table, palms down. He then lectured them and accused them of taking the money. The father had a steak knife in his hand. He asked who had taken the money and each of the children denied the act. The mother says that the father’s face started to go red and his veins stood out on his neck. She said the father was yelling and waving the steak knife around. He yelled again at the children and he plunged the knife into the table while their hands were splayed out on it. At one point in time, he did it so hard that his hand slipped down the blade and he deeply cut three fingers. He went to hospital for medical attention in relation to his injuries.
L, in an interview at her school on 22 June 2006 with a Departmental officer (Ms M) indicated that her father had picked up a steak knife and had threatened to stab the children in the hand however stabbed himself. It did not immediately look like there was much blood. He went to the hospital and they all picked him up after it had been treated. There was some blood through the house when the father walked out.
The father disputes L’s and the mother’s versions. He comments that L, in the same interview with the Departmental officer, said that there were maggots in the house when he said there were never maggots in the house.
The father’s initial version of what happened in March 2006 was that he was talking to the children about the missing money and tapping his knife on the table. He hit his hand and cut his finger. He said he had had a couple drinks but he was not drunk. The hospital report records that there was “an incident”. The ambulance report says that the father was “cutting vegetables”. When presented with the ambulance report, the father commented that he was probably cutting vegetables on his dinner plate.
The father did not ask the mother any questions about her version of the incident. I accept the mother’s version about what happened on this occasion. Her version is corroborated by L’s statement to the Departmental officer. The father has given inconsistent versions of what he said has happened. It is disturbing that the father did what he did to the children. All of the children must have been very apprehensive that they could have been cut or have lost a finger in the way their father was threatening them.
Computer Incidents
From 12 to 16 October 2008 the mother and father had a number of serious arguments, arising out of the father discovering that the mother was interacting with other men on Facebook and assuming she was having affairs. In relation to this period, the father conceded he:
90.1.removed from the mother her car keys, her purse and her mobile telephone, and that when he refused to give those items back to her, the mother was forced to walk to work, and protested that he was keeping her prisoner;
90.2.made the mother get into a motor vehicle, drove her to a beach, and verbally abused her saying things which ended in “you are a lying, cheating bitch” or “dirty slut”;
90.3.grabbed the mother by the arm saying that she was behaving like a whore, that she was a slut and that she had no right to anything;
90.4.said that she was a bad mother and that she was a ‘fucking psycho’;
90.5.smacked the mother on the head several times;
90.6.dragged the mother by the hair and pulled her back from the gate, holding it closed with his other hand. He accepts that H came out of the house at this time. He conceded that the mother was crying and telling him to get off her and to leave her alone and that H started yelling at him saying, “Stop hurting mum. Leave her alone. What are you doing?”
90.7.forced L to give him access to the mother’s computer and access to the mother’s two email accounts, her MSN account and her Facebook account;
90.8.told the mother that he had inserted a worm into her computer that would monitor her accounts and report all activities or conversations to him and also automatically forward any password changes to him;
90.9.smashed the mother’s mobile phone on the cement and when doing so, called her a whore; and
90.10.damaged the home computer.
A short time after the father moved out, he visited the home to collect some documents. The mother’s contemporaneous statement of what happened is annexure B to her first affidavit. She said he demanded to see the text messages on her phone and there was a struggle, witnessed by H who pleaded “get off Mummy and leave her alone”. The parties went outside and the mother said the father “knuckled her head”. The father denies this but I accept the mother’s version.
Later the father demanded the laptop. After an argument the father agreed to leave the laptop if the mother showed the children her internet conversations and told them why they were separating. The father conceded that he complained to the children that “Your mother is making you think that I am a prick, that it was my fault”. For some reason, presumably due to the intimidation the mother felt from the father, she called the children in. The father conceded belittling L when L referred to the father’s previous admitted affair. The mother showed the children messages and pictures (in which the father said she was in a bra but the mother said she was in a singlet top).
The younger children got bored and wanted to go to bed so the mother switched off the laptop. The younger children went to their rooms. Shortly after, the mother says that L witnessed her father pulling her mother’s hair and the father reaching over and snapping the laptop in half. The younger children heard this and returned to the room the mother and father were in, whereupon they were told to return to bed. I accept the mother’s evidence that the children were significantly shocked during this incident, particularly when they saw and/or realised their father destroyed the laptop.
Animal cruelty
The mother has set out in paragraphs 193 to 208 of her affidavit, the circumstances in which the father maliciously wounded a dog in July 2002. The father did not seek to challenge any of the details set out by the mother.
The mother said the father chased the dog around the neighbourhood, beating it and shooting it a number of times with a bow and arrow. The RSPCA took the dog away and the father was charged with malicious wounding of an animal. The father was found guilty and was jailed for 2 months.
The father on a previous occasion had sought to minimise his actions but during the final phase of the hearing seemed to accept full responsibility for what he had done. The father’s behaviour on this occasion was callous and very disturbing.
The father had been prescribed and was using Zoloft in July 2002. The father attempted suicide before he was due to attend court for the crime.
The mother also alleges that the father buried the pet cat and her new-born kittens alive. This allegation did not attract any particular focus during the hearing and I have insufficient evidence to conclude that the husband was responsible for the disappearance of the cat and kittens.
Emotional Abuse
The mother claims the father was consistently emotionally abusive, often calling her names like ‘slut’ and undermined her efforts in the home, making her feel worthless and telling her as much.
The father agreed that he often complained about the quality of the mother’s cooking and finally agreed (having attempted to minimise it), that at least on one occasion, in 1997/1998 he threw his dinner plate which was still full, at the wall.
The father agreed that on one occasion during an argument in their bedroom, he had told the mother she was a slut and that she was not fit to sleep in the bed.
The father in cross examination conceded that he probably did on occasions call the mother a “dumb bitch”.
Other violence against the mother
The mother said when she was pregnant the father threw her against a door frame and across the bed.
The mother claimed on another occasion in 1994 the father kicked her in the stomach while pregnant, because he thought she was flirting. The father conceded that he had accused the mother of flirting, but did not concede he kicked her. I accept the mother’s version.
Although the father said that the parties wrestled during foreplay, he denied that in late October 2001 there was an argument and he had picked the mother up and thrown her onto the bed, tearing her dressing gown and that he thereafter slammed her head back into the foot of the bed, which was a caste iron bar. I accept the mother’s version.
I also accept the mother’s allegation that the father head butted her and punched her in the face after the incident where he shot the family dog.
The father admitted at one point he grabbed the mother by the hair. The mother says he then dragged her by the hair and slapped her over the face and body.
The mother secured a protection order against the father on 12 November 2009.
Whilst the mother concedes on one occasion she physically retaliated, it was the father who was the primary perpetrator of family violence in the relationship.
Violence against the children
I accept the mother’s evidence that L too has experienced family violence by her father towards her in the form of being ‘knuckled’ or ‘clipped’ over the head.
The mother said, and I accept, that L has also been the recipient of unpleasant comments by her father, including that he would happily adopt her out. L informed Child Services that her father was often yelling at her and calling her names.
Reported violence against others
The father agreed that in 2002 he had thrown a bottle of beer at a neighbour named Ms P. He said this was in circumstances where the mother and Ms P were arguing and he was attempting to stop the argument, but I do not accept that explanation.
One of the things that concerned the family consultant and concerns me is the incidents of violence that happened in the father’s most recent relationship with Ms E in 2009. There are two separate occasions when Ms E’s child J was assaulted by the father.
Ms E applied for a temporary protection order which was made on 18 February 2010. The protection order application, which contained the information upon which she sought that order, is contained at pages 213 through to 234 of exhibit B. The application discloses that on a Saturday in October 2009, there was an argument between Ms E and the father. Events happened which led to the escalation of a serious dispute and culminated in the father slapping Ms E’s son J across the face, telling him “to shut the fuck up”. Ms E responded by punching the father in the face, yelling at him ‘how dare he hit her son’. She then told J to get in the car and they both ran to get away from the father:
“As I started my car, [the father] says to my son [J], ‘If I ever see your face again I will do this’ and does the hand action across his throat. To say I will cut ya throat”.
The father was questioned about this. The father agreed that he had said the words alleged to J. He denied however that he had used a hand movement indicating that he intended to cut J’s throat. He demonstrated in the witness box a hand movement that was more akin to one that would be made when you were brushing away a fly. I was less than convinced with the father’s evidence about this as he originally dismissed out of hand that J or Ms E could have interpreted his action as being one that would indicate a slitting of a throat.
Ms E goes on to record that after the threat, she and her son J went to her sister’s house a couple of minutes away. The father turned up there. Ms E’s sister told the father to leave and that the police had been called. After Ms E’s sister instructed the father to leave the premises, he yelled at Ms E, calling her names such as “skank” and “slut”. He then stated to her that he would slice her throat. The father in cross examination agreed that he had been drinking at the time and that he may well have used the words that were alleged.
I find that on this occasion in October 2009 the father did in fact threaten J and Ms E’s sister by indicating on one occasion and saying on another that he could cut their respective throats.
There is a separate incident where the father admits he threw a broom handle like a spear at Ms E and hit her in the middle of the forehead. He said that he didn’t actually mean to hit her and expressed immediate remorse when that contact happened. During this event however the father did threaten J with his fist.
Effects of Family Violence
The father denies or minimises any family violence throughout the relationship and said it only occurred around the time of separation, and then accepting only that he pulled the mother’s hair. I have accepted the mother’s version of the history of family violence.
The family consultant noted the effects of the family violence on the children. She assessed that H’s negative thinking that was affecting her mood, confidence and schooling, was typical of children repeatedly exposed to parental conflict. She opined that one of the biggest predictors of depression in adolescents is intense and unresolved parental conflict. H is currently undergoing counselling.
The family consultant also assessed that B “presents as having experienced trauma from incidents of significant violence by his father against his mother” and that this resulted in being fearful of the father and being fearful that harm would come to his mother.
The effect of family violence on B is amply demonstrated by the family consultant’s description at paragraph 159 of the family report which is in the following terms:
“[B] was asked about who he talked to in his family about things that worried him and the things that made him happy. [B] said he did not talk to anyone about the things that made him sad or scared. [B] appeared sad when explaining this. [B] said that sometimes he was “sad” when he was at his father’s and sometimes his father could be “scary”. [B] was asked when he first thought he could remember being scared by his father. [B] whispered, “boom, bang” and covered his head with his arms. When asked what he meant, [B] put his head on the table and covered his arms and face with his jacket. [B] wrote on a piece of paper “Boom! Bang! Crash!” and continued to crouch underneath his jacket”
B sees his father each weekend. He told the family consultant that he felt “scary” feelings about one in three weekends. He said the scary feelings are when his father raised his voice and got angry. B described to the family consultant how he would deal with his father’s anger by being quiet.
I note that L’s school reported suicidal tendencies in L to the mother in 2006.
The family consultant was very concerned about the mental health of each of the three children and the effect that the past and ongoing conflict between the parents was having on their mental health. Parental conflict was suggested by the family consultant to undermine the children’s security, worth and confidence. All three children have issues in relation to their mental status and I find that those issues are primarily a result of them being exposed to aggression by the father and the parental conflict which it generated.
The mother feels that she and the children can ‘heal’ from this ‘trauma’ in Canada while being supported by the mother’s partner, and that separation will also ensure that harassment, conflict and intimidation will be minimised.
THE ADDITIONAL CONSIDERATIONS
Children’s views (s60CC(3)(a))
L in the past did not wish to move to Canada. The mother said she is now considering it, but still is intent on finishing her education in Australia.
The family consultant reported that H wished to spend no less time with the mother than she already does and no more time with the father than she already does, and wanted more one-on-one time with her mother.
The family consultant expresses concerns that B remained fearful of the father and did not think he could express himself when he felt scared. I have set out above what B told the family consultant about his ‘scary’ feelings.
Relationships of the child with the parents and other persons (s60CC(3)(b))
The mother has a good relationship with all three children. She said that B is clingy at separation and the family consultant advises that this is due to the trauma suffered at witnessing violence and an ongoing fear that some harm will come to the mother.
As outlined above, the father does not share a good relationship with L. L is estranged from her father and has been for some time. This has apparently, at least in part, arisen out of her feeling of being rejected and loved less by her father in comparison with her sister.
The father says he has a good relationship with both H and B. The father during the hearing tendered a group of photographs which demonstrated the children having fun in various recreational activities in which he was involved. These activities included camping.
The family consultant said that a negative pattern was observed in the relationship between the children and the father, where the children wish for closeness and acceptance but fear his criticism, anger and withdrawal. This is exacerbated by the father’s mistrust of the mother and concerns about his relationships with his children. This negative pattern creates anxiety.
The family consultant advised that L’s relationship with H has been strained in the past where L blamed H for her father’s rejection. H’s confidence fluctuates with L’s attitude towards her. The parties agree that L has from time to time bullied the younger children. Recently the sisters have become closer as L has realised that H was not the cause of the hurt, and both are enjoying ‘getting to know’ each other. The family consultant said that “this relationship…will become a stabilising influence for [H] as it strengthens.” L is also supportive of her siblings’ relationship with the father, which the family consultant notes is a positive indication that the sibling relationships are not ‘conditional’.
The family consultant assessed that H and B get along well, with H being protective of B at times. B appeared both ‘amused and frustrated’ with his older sisters.
The mother says the children also have a good relationship with both Mr K and his son. L however does not wish to have Mr K as a step-father figure. Until soon before the hearing, the children had spent a total of one month with Mr K physically present, and the mother had spent a total of 2 months in Mr K’s physical presence. The majority of the relationship has existed over the internet, telephone and Skype video phone. The consultant says that nonetheless, a relationship has been forged, especially with B, which is assisted by his growing friendship with Mr K’s son. The mother described the way skype has been set up 24/7 in each of their respective homes to create a position where the mother and Mr K claim they were virtually members of each other’s household.
The children are very close to the maternal grandparents. The father says the parties’ decision to move to Town 1 from Western Australia was so that the children could see their grandparents regularly. Though the mother does not agree with the reason for moving to Town 1, she acknowledges the close relationship.
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 (s60CC(3)(c), noting (s60CC(4))
Both parties say they have promoted the children’s relationship with the other parent, but that the other parent has not reciprocated.
The father points to a history of the mother withholding the children for long periods of time from the father. The father fears this will continue if she is to move to Canada, despite what the orders say. The father says the mother has undermined his relationship with L, an example being her decision to call the police over what he considered to be a petty adolescent argument. He also says she involves the children in the proceedings, and has given them access to the communication book.
I accept that the reason why the mother has, at times, withheld the children arose out of fear for their wellbeing.
I have found the father has made derogatory comments about the mother to the children and/or in their presence.
The father disconnected the internet when the mother was in Canada to prevent communication between her and the children.
The father says that Mr K has emailed him in derogatory terms. Two emails exist at annexure D and E of the father’s affidavit of 15 April 2010. While there are a couple of unfortunate remarks, I find these emails to be not unreasonable. The family consultant opines that Mr K is likely to positively encourage the relationship between the father and the children.
The family consultant notes that the mother has mediated H’s frustrations with her father and I note that she is open to L seeing the father if she wishes.
The parents communicated for a time via a communication book. The mother’s first entry was thorough – informing the father about the children’s mental and developmental status, discipline and routines. The father responded by email because he became aware that the children had read the mother’s entry. The mother printed the email and attached it to the book and continued to use it in this manner. The parties used this book for the intended purpose of discussing the children between changeovers, but its use also moved into substantial dialogue on topics that were more remotely related including disputes about disturbing incidents and how each parent dealt with them, who should be covering certain elements of parenting, who ‘owes’ who extra days with the children, and L’s rejection of the father.
Likely effect of any change in the child’s circumstances (s60CC(3)(d))
It is both the mother’s intention and Mr K’s that they marry in Canada. The children will then have a step-father and a step-brother. The mother says there is no intention to have any more children. Mr K has a two bedroom apartment but says he can upgrade to a larger home for the children but his son and B would share a room. The mother has researched the schools that the children will attend. Mr K has flexibility in his job which allows him to care for the children at short notice if a situation arises.
The mother said that if she and the children are permitted to move to Canada, she may return after three years. Mr K will still have a child in Canada with whom he currently has daily contact, but Mr K has said it will be more tolerable if his son travels to see him once he has reached age 10. In three years time H will be 17 and B will be 13 ½.
The father questions the mother uprooting the children’s lives when she has spent little time in Mr K’s physical presence and the relationship is ‘untested’.
The consultant said the major advantage of the family moving to Canada would be the mother’s resulting positive mental health which will have a flow down effect to the children. There is some acknowledgement too that the distance would minimise ongoing parental conflict and therefore unpredictable stress on the children. Another positive would be experiencing a broader cultural experience and experiencing a supportive emotional environment between the mother and her partner Mr K.
The consultant assessed the disadvantages of moving the children to Canada would be having less access to the father’s parenting strengths which includes physical activities, and would harm the closeness and security of their attachment relationship. The father may be more likely to withdraw from the children. The relocation may also be a difficult transition.
L may not move to Canada with the rest of the family should they be allowed to go. If she does not, there will be a resultant separation of the siblings, in circumstances where L and H are beginning to repair their sibling relationship. There will also be a separation between L and her mother in circumstances where L has no relationship with her father and has shown vulnerabilities in the past.
The family consultant said H is of an age where her friends and social relationships are important for support and her growing identity. I note the consultant also said that H’s self-confidence was growing with the improving relationship between herself and L. The disruption from these sources of identity in moving to Canada is noted.
On the other side of the coin, the family consultant advises that the advantages of the children remaining in Town 1 is that they will spend more physical time with their father and grandparents, can maintain their support networks, and L’s relationship with H can further develop.
Mr K said he wished to maintain his relationship with the mother if the children were not allowed to go.
If I order the children stay in Town 1, Mr K will find it difficult to relocate to Town 1 due to his son and his employment. Where the mother is the source of the children’s emotional support, this will impact particularly negatively on them. The children will also likely be exposed to ongoing parental conflict which has already taken its toll.
Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))
If the mother moves to Canada, the difficulties and expense of the children spending time with the father increase dramatically. There are various suggestions made as to how the cost of flights will be organised. The father’s proposal is that the wife be responsible for all costs of travel associated with the children being able to spend time with him. The Independent Children's Lawyer’s proposal (adopted by the mother) is that child support received by the mother from the father should be quarantined and used solely for the purposes of funding international travel both for the children and the father, and that once that fund is exhausted from time to time then the parties should pay the costs of travel equally. The father’s position seems to be that because he opposes the children going to Canada then he shouldn’t have to pay any costs of contact if the children are allowed to go to Canada.
As mentioned, the mother currently works for the maternal grandfather in a web-based company. Her father is currently ill, but I have no indication that her job would be threatened by this. The mother currently earns a weekly income of $560. Her Family Tax Benefit will not continue if she leaves the country. She has minimal liabilities, though her weekly expenses outweigh the income she earns. She has savings in the sum of $7,000 in addition to household contents and jewellery assets, but no other significant property. As mentioned above, the mother expects her workcover claim to be decided in 2011, which the mother said will be ‘substantial’. Also mentioned above is Mr K’s job stability and assistance he is likely to be able to afford the mother.
Both parties are in full time employment and I find that the costs of the travel proposed by the Independent Children's Lawyer and the mother would be able to be funded by the moneys paid by the father to the mother for child support and thereafter the joint resources of the parties.
Based on the mother’s past behaviour of withholding the children, the father is not convinced that he will ever be allowed to see the children when they are in Canada, regardless of what the Court has ordered. I do not accept his position on that.
The children are proficient in the use of internet resources for communication, as that is how their relationship with Mr K has developed. This method would easily be available for the children to communicate with the father.
The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))
Both parents allege that the other does not provide for the emotional needs of the children. Both parties allege that the other is involving the children in the conflict. The father says the mother is putting her needs over the children. The mother said the father has been emotionally abusive in the past and doesn’t take the children’s concerns seriously.
The family consultant described her interview with the father at his home. The children were about 20 to 25 minutes late, through no fault of the mother. The father got very agitated and as I have already mentioned, the family consultant described, consistent with the mother’s description of the father when he gets angry, the father becoming very red in the face. The family consultant described the children’s reaction when they arrived at the father’s premises. She stated that “The children also appeared tense when they arrived and stood still appearing to wait for some direction.”
The family consultant commented about the father’s lack of insight and how he actually perceives particular events, and his lack of insight in relation to the effect that his behaviour has on the children. The father made the point on more than one occasion that he was not overly physically violent to the children. In fact he says, and I accept, that there was not excessive physical punishment of the children by him. It was however the threats that he made and the intensity with which he made them that has had enduring effect upon the children. They clearly are on occasions very apprehensive of him.
The family consultant noted that the father often grew anxious about the children’s opinion of him, and would react in anger. She also expressed concern that the father seemed to have a history of problematic communication and behaviour in relationships.
The family consultant recognises that the mother is the one the children turn to for reassurance and security.
Before the father’s court case in relation to the wounding of the dog, he took a packet of Zoloft and a packet of Panadol in an attempt at self harm for the purpose of avoiding having to attend Court the next day. While the dosages were not lethal, he was placed in the mental health ward of a hospital.
In regards to the mother’s mental health, the family consultant assessed that the mother is vulnerable to stress and depression but she has improved her coping mechanisms.
Financially, both parents are able to provide for the children. The mother will still be employed by her parents, operating via the internet. She has outlined a number of opportunities for employment in Canada and courses to enhance her employability. She will also have the benefit of a second household income from Mr K, who I find has secure employment in Canada.
The mother’s health arising out of her workplace injury is something which I don’t know a lot about. There are conflicting medical reports. A medico-legal report of 17 January 2010 (Exhibit B, E110) summarised the mother’s past medical reports from 2008 to 2009. These reports vary in their diagnoses and their opinion on the occupational potential of the mother. Dr C’s report, which conveys the mother’s injuries in the most serious light was criticised by the most recent medico-legal report of 6 April 2010, where Dr C’s findings were discounted for his incorrect reading of data. This most recent 2010 report concludes that the mother’s injuries were mild, and unlikely to have continued past a few weeks. He concluded there was no permanent condition and no restriction to the mother’s employment capacity. The mother’s most recent psychological report of 31 March 2010 concluded that the mother no longer suffered any psychological disorder prescribed in the DSM-IV. The mother hopes for a compensation verdict in the range of over $400,000. The insurer has made an offer of $100,000. The mother advises the matter should be settled in 2011.
The maturity, sex, background and lifestyle of the child and parents (s60CC(3)(g))
Both parents have criminal histories. The mother has a record for fraud, attempted fraud, and driving without a license. The father has a far longer record including assault, possessing a prohibited drug, possessing an offensive weapon, fraud, stealing, damage, drink driving, receiving, and as already mentioned, malicious wounding of an animal.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))
The mother details her parenting style in her affidavit of 6 September 2010. The family consultant does not have any direct criticisms of the mother’s parenting, and says she is coping well with her memory limitations.
The family consultant indicated a strength of the father’s parenting was his engaging in pleasurable activities with the children, and his parenting capacity has improved since separation. She expressed concern that the father has trouble being child-focused and is very critical of L. His emotional responses to situations makes his behaviour unpredictable for the children, such as threatening to cease contact with his former partner (who the children have spent time with) if it meant she would be interviewed for the family report. She is also concerned that the father minimalises his behaviour and the harm that it causes.
The mother says the father’s parenting style is “domineering and minimalistic”. The mother made allegations in her primary affidavit of 19 October 2009 that the father took drugs including the regular use of marijuana. The mother also says that on allocated weekends the father has often picked the children up late and dropped them home early and in holiday time he rarely takes time off from work and leaves the children in his apartment.
The mother says the father does not pay regular child support or assist with larger expenses such as dentist fees.
While the mother was overseas in Canada, she says that the father did not ensure that the children attended school, however it is now known that H has been skipping school regularly in her mother’s care also.
Any family violence order involving the child or a member of the child’s family (s60CC(3)(j) and(k))
The mother has a DVO against the father. The father admits he has breached the DVO by emailing the mother to ask her not to show the children anything in relation to the Court proceedings; and to get advice about H’s menstrual cramps. The mother says the breaches are far more numerous and disturbing.
The children are no longer named in the DVO.
Likelihood of order leading to further proceedings (s60CC(3)(l))
An order which would in effect prevent the mother moving to Canada may perhaps mean that it is less likely that there will be future litigation but speculation about that is not a weighty matter.
Others matters
Given that the child will live primarily with the mother, the mother’s future happiness is a relevant factor. As Kirby J said in AMS v AIF (1999) 199 CLR 160:
“unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge upon the happiness of the custodial or residential parent in a way likely to affect the welfare or best interests of the child...”
but his Honour went on to say:
“...the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected”
In Taylor v Barker[2007] FamCA 1246; (2007) FLC 93-345, the plurality of the Full Court were unable to say that a Federal Magistrate was wrong in elevating the mother’s happiness and contentment to be a decisive factor in what they described as a finely balanced decision. The plurality also found that there was sufficient evidence before the Federal Magistrate for him to reach a conclusion about the mother’s happiness.
In McCall & Clark[2009] FamCAFC 92; (2009) FLC 93-405 at pages 83,478 and 833,479, the Full Court referred to the statement of Kirby J in AMS & AIF and commented that, in that case, the Federal Magistrate was not entitled on the mother’s evidence in the absence of any expert evidence, to find that the mother’s quality of parenting would be so compromised or adversely impacted because she may be required to live in Australia that it would impact on the child.
In Hepburn & Nobel[2010] FamCAFC 111; (2010) FLC 93-438, the Full Court upheld a Federal Magistrates decision in respect of his findings regarding the mother’s unhappiness and the conclusion the Federal Magistrate had reached as to the likely affect that unhappiness would have upon the children. In that case there was an argument about the sufficiency of the evidence to support the Federal Magistrate’s findings and the Full Court “on a comparative basis” found that the evidence was only just sufficient and should be viewed “at the bottom end of the scale”.
Having heard and observed the mother giving evidence, in the event that an order is made which restricts her from being able to be with Mr K in Canada, I find she will be unhappy. I take into account the likelihood that that unhappiness will have some impact upon the mother’s ability to fulfil her role as primary caregiver.
EQUAL SHARED PARENTAL RESPONSIBILITY
Given the clear and established history of family violence in this matter, the presumption of equal shared parental responsibility does not arise (s 61DA(2) FLA). Given the competing applications of the parties, I nonetheless have to consider whether or not to make an order for equal shared parental responsibility.
The family consultant advises that a positive co-parenting relationship requires high levels of trust, and low levels of animosity and conflict. This is not the case with the parties before me. There is a very high level of animosity between the parties and low levels of trust from both parents. The consultant warns that a negative co-parenting relationship will harm the children’s emotional and academic wellbeing. I have already referred to the consequences of the parent’s violent interactions on H and B above. Periods of cooperation in the past have been punctuated by instances of conflict. The relationship between the parents is combative.
The obligations placed upon the parties by an order for equal shared parental responsibility are described in s 65DAC(3) FLA. I find the parties are unable to fulfil those obligations.
I find that it is not appropriate to make an order for equal shared parental responsibility in this matter and I will in the best interests of the children, make an order of a different nature which will require the mother to consult with the father before making any significant decisions of a long term nature in relation to the children but will leave the ultimate decision to the mother.
If I allow the mother to relocate to Canada, this order will allow the mother to make the ultimate decision about if and when she returns to Australia with the children.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
There is no mandatory requirement to consider equal or substantial and significant time given that no order would be made for equal shared parental responsibility.
Nonetheless, the father’s proposal is arguably one for substantial and significant time in Australia (he has not specifically asked for time on special days although the mother has conceded that time whilst she remains in Australia). The question is, whether or not that is reasonably practicable. Although I am not required to do so, reference to the factors under s 65DAA(5) would lead one immediately to the consideration as to whether or not the parents in these proceedings have any ability to communicate with one another cooperatively. It seems that they do not have that capacity and that an arrangement for substantial and significant time is not reasonably practicable.
CONCLUSION ABOUT BEST INTERESTS
The father got upset during the oral evidence of the family consultant and during submissions by counsel for the Independent Children's Lawyer. He complained that the mother had not, in the period after separation, made any complaint about what had happened when they were together and it was only in recent times that she had created a “paper trial” which had set him up and which had become the focus at the hearing. He no doubt loves his children. I however find that there is a body of evidence, which leads me to conclude that the father has significant anti social personality traits. I have no doubt that the father has attempted to curb his aggressive behaviours in recent times and the fact that he has put in a effort to improve himself leads him to have a level of frustration and a feeling on injustice that his efforts have not been recognised by the mother, Independent Children's Lawyer and family consultant.
It is important to look at the reality of the situation. Whilst it might be said that the way the mother has formed her new relationship with Mr K is not by the well-worn path of a traditional courtship, I find that the mother and Mr K have, for a significant period of time now, demonstrated a commitment to one another. Whilst they have only physically been with one another for a relatively short period of time, they have lived in a virtual world with one another by the use of modern technology. I find that the mother has made a commitment to want to live with Mr K and Mr K has made a commitment to live with her. I have found that the mother will be unhappy if she is not allowed to go to Canada. I acknowledge that the mother has a secondary motivation for leaving Town 1. She wants to put distance between herself and the father, given, that what she describes and I have found to be a significant history of family violence.
Notwithstanding that history, the children have formed a relationship with their father and I acknowledge the risk involved in reducing the children’s, and particularly B’s, face-to-face time with his father. I find however that it would not be fatal to the continuation of a meaningful relationship between the children and their father to allow them to move with the mother to Canada. The proposal of the Independent Children's Lawyer as endorsed by the mother would give the father significant opportunities to spend quality face-to-face time with the children both in Australia and in Canada.
The mother indicated that if I didn’t allow the children to go to Canada that she would remain in Australia. Mr K also indicated that if I didn’t allow the children to go to Canada and the mother stayed in Australia, then he would have to find a way to come to Australia. It was less than clear to me however how he would be able to make such arrangements.
The mother indicated that she might only go to Canada for a period of about three years and they may then return. Mr K indicated that if that was the time frame, then him coming back to Australia was a far more realistic possibility, given that his son would then be three years older.
Neither of the parties nor the Independent Children's Lawyer asked me to limit the period of time that the children reside in Canada, and attempting to predict what the situation might be in three years time is problematic.
I have already indicated that given the conflict between the parties, sole parental responsibility about making decisions for the children’s welfare will be given to their primary carer, the mother.
I acknowledge that the lack of face-to-face time, particularly between B and his father, will lessen the ability of the two of them to maintain a meaningful relationship but it will not eliminate it. Also, that primary consideration has to be balanced against all the other matters that I need to consider.
The father asks why the children should be ‘forced’ to go to Canada when Mr K is not going to be ‘forced’ to undertake proceedings in Canada to see whether or not his child can come to Australia. I can at one level understand the father’s sense of injustice. However, the circumstances in which the children find themselves in this case are quite different to the circumstances in which Mr K’s son is currently living. It could not be reasonably expected that Mr K would initiate proceedings in Canada to attempt to obtain an order to allow him to relocate to Australia with his son.
The father also relies on the default position of both the mother and Mr K, that is, that if the Court doesn’t allow the children to go to Canada then the mother will remain in Australia and Mr K will attempt to join her. In many cases the fact that the mother will not relocate internationally if a child is not allowed to go, creates an option for the Court which may be attractive. I have concluded however that it is in the best interests of these children to allow the mother to go to Canada and for them to be with her. It will be a matter for the mother, exercising sole parental responsibility, to decide if and when the children return to Australia.
I conclude, having regard to all the matters discussed, when dealing with the statutory considerations, that it is in the children’s best interests for them to move to Canada with their mother.
PROPOSED ORDERS
The family consultant in her oral evidence changed her recommendations. Her initial recommendation in the family report was misconceived. She had thought that what she was doing was reducing the time the children were currently having with their father, but in fact, she was recommending what was currently happening.
The current order is for the children to be with their father on each alternate weekend from Friday through to Monday morning but that was not happening because of the distance the father had to travel. The parties had agreed to bring the children back on the Sunday afternoon. The father could not get them to school Monday morning. He said he was going to move to Town 1 to rectify that problem but those plans had not crystallised.
The mother at the commencement of the trial asked that an order be made that the father attend a parenting course and an anger management course. The father tendered a document indicating that he had completed a parenting course. It was clear the father did not have any insight as to his need to attend an anger management course. The family consultant was asked whether or not an order of that nature would be beneficial for the children. She referred to the father’s personal traits and to his lack of insight into why such a course would be necessary and concluded that there would be little utility in making an order requiring the father to attend such a course. I accept her opinion in that regard.
The Independent Children's Lawyer has sought an order that the children’s time with the father be subject to certain conditions relating to his behaviour, as set out in order 17 as sought by the Independent Children's Lawyer. I find that it is in the children’s best interests for an order to be made in those terms.
The Independent Children's Lawyer’s proposal for the father to be able to see the children in Canada was open ended (saying that an order should be made that the father could see the children in Canada for 3 out of every 4 week if he was in Canada). I intend to restrict the father seeing the children in Canada (except for the long school holiday break) to four occasions, each of three weeks, such three week periods to be subject to the condition that the children be returned to their mother for 48 hours every 7 days, unless the parties otherwise agree in writing.
I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 22 June 2011.
Associate:
Date: 22 June 2011
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