TATTON & TATTON (No.2)
[2018] FCCA 2395
•7 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TATTON & TATTON (No.2) | [2018] FCCA 2395 |
| Catchwords: FAMILY LAW – Competing applications for final parenting orders in respect of children aged 13, 12, 10 & 9 – parties originally lived on northern outskirts of Adelaide – mother moved with children unilaterally to provincial township 140 kilometres away – issues of relocation – presumption of equal shared parental responsibility – issues of family violence – views of children – high conflict – section 60CC factors – best interests. |
| Legislation: Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 64B; 65C; 65D(1); 65DAA; 65DAE; 65DAC Evidence Act 1995 (Cth), s.140 |
| Cases cited: Tatton & Tatton [2017] FCCA 3409 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 |
| Applicant: | MS TATTON |
| Respondent: | MR TATTON |
| File Number: | ADC 172 of 2017 |
| Judgment of: | Judge Brown |
| Hearing dates: | 17 & 18 May 2018 |
| Date of Last Submission: | 18 May 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 7 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Camatta Lempens Pty Ltd |
ORDERS
The parties to these proceedings Ms Tatton (hereinafter referred to as “the mother”) and Mr Tatton (hereinafter referred to as “the father”) be conferred with equal shared parental responsibility for the children of the marriage [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010 (hereinafter the children [X], [Y] and [Z] are referred to collectively as “the children”).
The living arrangements of the child [W] be as she wishes and she be able to spend time with her parents in accordance for the arrangements for her younger siblings, pursuant to these orders as she deems fit.
In the event the mother elects to move her permanent residential address from Town A to a location within a radius of 10 kilometres of the parties’ former home located at Suburb E, no later than the start of the academic year in 2019, the children live with each of their parents, during school terms, on a week about basis, with the commencement of the weeks to be nominated by agreement, but failing agreement to be at the conclusion of school each Friday and during each school holiday period and on special occasions in accordance with orders (5) & (6) hereunder.
Pending the mother taking up the election contained in order (3) hereof and/or in the event she elects not to move from Town A and/or she elects not to move to live within a 10 kilometre radius of the former family home, the children live with the father from the commencement of term 4 of the 2018 academic school year and spend time with the mother, during school terms as follows:
(a)on alternate weekends from 5.00 pm Friday until 5.00 pm the following Sunday with the children to be exchanged between the parties at the BP Service Station at Town B or such other location as the parties agree from time to time;
(b)during school holidays and special occasions in accordance with orders (5) & (6) hereunder.
The children spend equal periods of time with each of their parent, during each school holidays period as agreed between the parties and failing agreement with the father to have the second half of each such school holiday period in 2018 and each even ending year thereafter and the mother the other half in each such year and with the mother to have the second half in 2019 and each odd ending year thereafter and with the father to have the other half in each such year.
The child spend time with each of their parents on special occasions as follows:
(a)At Easter at times to be agreed between the parties so that the children spend equal time with both of them during the period of Easter and failing agreement as follows:
(i)With the father from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2019 and each alternate year thereafter;
(ii)With the mother from 6:00pm on Easter Saturday until 9:00am on Easter Monday in 2019 and each alternate year thereafter.
(iii)With the mother from 3:30pm on Good Friday until 6:00pm on Easter Saturday in 2020 and each alternate year thereafter.
(iv)With the father from 6:00pm until 9:00am on Easter Monday in 2020 and each alternate year thereafter; and
(b)At Christmas time at times to be agreed between the parties so that the children spend equal time with both of them during Christmas and failing agreement as follows:
(i)With the father from midday on 24 December 2018 until midday on 25 December 2018 and each alternate year thereafter;
(ii)With the mother from midday on 25 December 2018 until midday on 26 December 2018 and each alternate year thereafter;
(iii)With the mother from midday on 24 December 2019 until midday on 25 December 2019 and each alternate year thereafter; and
(iv)With the father from midday on 25 December 2019 until midday on 26 December 2019 and each alternate year thereafter;
(c)On each of the children’s birthday so that the children spend at least three hours on their birthday with the parent who is not providing a residence for them on the occasion of their birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm.
(d)In the event that Father’s Day falls on a weekend when the children are in the care of the mother the children will spend from 9:00am until 6:00pm with the father on Father’s Day.
(e)In the event that Mother’s Day falls on a weekend when the children are in the care of the father the children will spend from 9:00am until 6:00pm with the mother on Mother’s Day.
Pursuant to section 65L of the Family Law Act 1975 the children attend upon Ms B at her rooms located at Suburb F on Friday, 14 September 2018 at 12:00pm in order to enable Ms B to explain to the children (including [W]) of the import and effect of these orders particularly the order which will enable [W] to live in the residence of her preference and other orders which will direct the other children to return to live in the area of Suburb E either with their father or equally with each of their parents depending on the mother’s election.
All changeovers to occur as agreed between the parties and in default of agreement at the father’s place of residence other than the changeover arising as a consequence of order 4(a) hereof.
In the event the children are suffering a medical condition or requiring medical attention while with either parent, that parent shall notify the other parent by text message as soon as is practicable such notification to include the details of the practitioner or medical facility upon which the children attend.
The parties shall keep each other advised of medical appointments for the children and issues relating to the children’s health generally.
The parents shall do all such things and sign all such documents as to ensure that all medical practitioners and medical facilities be advised that both parents shall have access to the child’s medical records and the information contained within them upon request.
The parties shall keep each other advised of their landline and mobile telephone numbers and email addresses with each party notifying the other of any intended change within three (3) days of arrangements for the change being made.
Each parent shall have the right to obtain copies of the said children’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to the children’s school and school related sports activities.
Each party has the right to attend at the children’s school for all events that are routinely attended by parents.
The parties are directed to exchange proposals regarding which school the children are to attend for the remainder of the 2018 academic year and for their future education and failing agreement the children are to attend the closest public school to the former family home in Suburb E.
The parties be at liberty to communicate with the children by telephone or video call at reasonable times as may be requested by the children.
In addition to the above the parent who has the care of the children shall facilitate the other parent to be able to telephone the children each Tuesday and Thursday between 6:30pm and 7:30pm.
The parties facilitate the children’s regular attendance at any extra-curricular activities which the parties have agreed that the children should attend.
The parties be restrained and an injunction is hereby granted restraining them from removing the children from the State of South Australia without first providing, not less than twenty-one (21) days prior to the first date of travel, the following documents:
(a)An itinerary;
(b)Flight, bus and/or train numbers (if applicable);
(c)Contact telephone numbers
The parties be restrained and an injunction is hereby granted restraining them from removing the children from the Commonwealth of Australia without the prior written consent of each of the parties. If such consent is given, the party taking the children out of the Commonwealth is to provide not less than twenty-eight (28) days prior to travel all relevant details including but not limited to copies of all:
(a)Airline and or train/bus tickets;
(b)Itineraries;
(c)Addresses; and
(d)Contact phone numbers for where the children will be and that may be used to contact the children throughout the trip.
The parties shall use a communication book to inform one another of all issues relevant to the children including but not limited to issues such as the children’s physical needs, medical appointments and information, dietary needs and extra curricula activities, school events and achievements.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tatton & Tatton (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 172 of 2017
| MS TATTON |
Applicant
And
| MR TATTON |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment are concerned with what lawyers routinely categorise as a relocation case. Such cases arise when one parent wishes to live some distance away from the other relevant parent, and it is likely that the distance involved in the proposed move will impact on the ability of the children concerned to have a meaningful level of relationship with the parent who is not inclined to move.
Ms Tatton “the mother” and Mr Tatton “the father” are the parents of [W] born 2004; [X] born 2006; [Y] born 2008; and [Z] born 2010.
The mother seeks orders that would enable her and the children to live in Town A, a small town on the western side of the Region 1. She proposes that the children spend time, with their father, on alternate weekends, during term time and for around half of each school holiday period, if she is successful in her principle application.
The father wishes the children to live in the Town C area, where they grew up and where he, they and Ms Tatton formerly had their family home, which is very important to him. In the event Ms Tatton continues to live in Town A, he proposes that the children live predominantly with him and spend regular time, with their mother, along the same lines she proposes for him.
However, in the event that Ms Tatton elects to live within a radius of 50km of Town C, the father proposes that the children live in a shared care regime, moving between their parents respective homes, on a week about basis. From Mr Tatton’s perspective, this outcome would be ideal, as it would ensure the equal involvement of both parents in the children’s lives and care, in an area which is very familiar to them and which is shared with very many members of their wider family.
These proceedings are directed to resolving this difficult dispute between the parties. The tyranny of distance arises by degrees. In this context, it needs to be borne in mind that it is approximately 140km between the Town C area and Town A and takes approximately 2 hours to drive it. The relocation proposed is not a vast one.
It is Ms Tatton’s case that she is the parent who has been more involved with the parenting and care of the children concerned. She does not want to live in the Town C area any more. It is her case that Mr Tatton is a controlling person, from whom she needs to extricate herself.
From her perspective, bending to his will, in respect of where she is to live, now the marriage between the parties has come to an end, is just another example of his desire to control her and dictate what she should do with her life.
Background
The parties met in 2002 and began to live together, when the mother became pregnant with [W]. They married on 2004 and finally separated, in difficult and controversial circumstances, on 26 December 2016. They agree that their marriage was, at times, a turbulent one.
Mr Tatton has a close relationship with his grandmother, Ms J. In 2005, Ms J purchased the parties’ former family home, located at Suburb E, which is a suburb of Town C, a township on the outskirts of Adelaide. It is a semi-rural area.
The parties and Ms J lived at the Suburb E property between 2005 and December 2012. The children know the property well. It is located on a large block and has a swimming pool. The children each have their own room there.
In 2012, Ms J moved in with Mr Tatton’s parents, who also live in the Town C area. Ms J, who is now in her nineties, more recently moved to live in a nursing home, close by to where she had previously lived. Mr Tatton remains close to his grandmother. The parties continued to live there until the time of their final separation.
It is agreed between the parties that Ms Tatton gifted a half share in the Suburb E property to the father. The property is very important to him. Mr Tatton grew up in the Town C area. It is his case that the majority of his family, (and indeed that of the mother) also live in the area and, as a consequence, the children have close ties to family based in and around Town C.
Mr Tatton is in receipt of a disability pension, as a consequence of sustaining a serious back injury in 1993, when he was a teenager. He is now forty-two years of age. The mother is thirty-nine. The father has had limited work since incurring his injury.
The mother ceased paid employment around about the time [W] was born. She became entitled to a carer’s pension because of the extent of Mr Tatton’s disabilities. Accordingly, both parties were at home during the greater majority of [W], [X], [Y] and [Z]’s childhood to date.
In this context, one of the major evidentiary issues arises in the case, namely the nature and degree of the relationship each of the children share with their respective parents. It is the mother’s case that she discharged the vast majority of parenting responsibilities for the children and is therefore to be characterised as their primary carer.
The father contends that, although his injury caused him to suffer periods of prolonged pain and precluded him from lifting the children, he played an integral role in providing care for them, both emotionally and practically. In these circumstances, he refutes any suggestion that he played a subsidiary parenting role to the mother. He characterises himself as a stay at home dad.
More recently, in an attempt to get ahead financially, Ms Tatton began a business (business products) which she has sold at local markets around Town C and the suburbs of Adelaide and which she proposes to continue to do, if she is successful in her application, at other markets located at Town A, Town D and other townships on the Region 1.
It is Mr Tatton’s case that when Ms Tatton became engaged in her business activities, she became increasingly pre-occupied with them and, as a consequence, responsibilities in respect of the children fell more and more onto him.
It is his position that the extensive time the mother devoted to the business and the money she invested in it, was one of the factors, which led to the end of the marriage between the parties. Underpinning this assertion is his view that Ms Tatton is a somewhat selfish and self-absorbed in respect of what she wants to do, which comes at a cost to others around her, including her family.
Ms Tatton presented as a forceful and determined person. Mr Tatton would categorise her as an emotionally brittle person, who is prone to overreach herself and alienate those around her by her labile personality. It is his case that the mother has fallen out with almost all her close family, particularly her own mother, the children’s maternal grandmother, Ms C, who also lives in Suburb E.
Mr Tatton presented as a quiet and reflective person, but one who was as equally determined as the mother. Ms Tatton would categorise him as a coercive and controlling person, who has been physically, verbally and psychologically violent towards her, during the parties’ marriage, including in the presence of [W].
Ms Tatton places significant emphasis on an incident, which took place in late 2012, when she alleges the father tried to strangle her. Mr Tatton was charged by police, with aggravated assault. A family violence order was also issued, naming Ms Tatton as the protected person.
However, Ms Tatton elected not to proceed with the charge and sought the withdrawal of the family violence order. The police, apparently with some reluctance, agreed to this course, on the basis of Ms Tatton’s indication to them that she would be unwilling to give evidence against the father.
It is Ms Tatton’s position that she took this course because, at the time, she was struggling to find suitable accommodation for herself and the children and felt that she did not have sufficient emotional support from her family to enable her to go ahead with the case, which nonetheless retains its factual basis. In effect, it is her case, that she was compelled by circumstances to return to an abusive and unhappy relationship.
Underpinning her position is her contention that her business represents her attempt to secure a modest form of financial self-sufficiency and so some independence for herself. In these circumstances, from her perspective, the Town C region represents the past for her and Town A the future.
Mr Tatton concedes that the marriage between the parties was frequently deeply unhappy and often dysfunctional, particularly in its later stages. However, he asserts that it was the mother who would yell and scream at him, rather than vice versa. In these circumstances, he refutes the seriousness of the 2012 incident and asserts that the case did not proceed against him because it was evidentiary flawed.
Essentially, it is Mr Tatton’s case that it is the mother, rather than he, who is unable to control her temper and that she is a person who puts her own desires and emotional needs before those of everyone else, including the children. He also alleges the mother has a short temper with the children, and frequently yells at them, which has caused some problems in her relationship with [W].
There can be no dispute that the circumstances in which the family lived in Suburb E were marked by several significant stresses, which include the following. Ms Tatton felt it was incumbent on her to care for Ms J, who was an elderly and infirm person, which she did without any assistance from the father.
Ms Tatton agitated for Ms J to leave the home of which she (Ms J) owned a significant proportion, having gifted the remainder to Mr Tatton. He, in turn, felt resentful, when Ms J went to live with his parents. This situation, a frequent occurrence for contemporary families, who must cope with providing care for elderly relatives, caused tensions to arise between the parties.
In addition, given Mr Tatton’s back injury, it must be the case that the family was subject to some level of financial stress, although they did not have the pressure of a mortgage. They were reliant on social security and had the care of four young children. As I observed to the parties, during the trial, life cannot have been easy for them, from time to time.
More significantly, the two older children, [W] and [X] have significant special needs. [X] suffers from severe allergies to nuts, eggs, animal hair and some types of plastic, which cause him to suffer life threatening anaphylaxis. He also has asthma and particularly debilitating eczema. In 2010, he nearly died following an attack at school, when he was aged around four.
In these circumstances, the parties took the significant decision to home school both him and [W]. It is Ms Tatton’s case that she took the lead in obtaining the necessary government approval for this to occur and performed the entirety of the tuition required. Mr Tatton, to his credit, concedes she was “very good at the home school stuff”.
[W] suffers from selective mutism, exacerbated by anxiety. She was bullied when she was at school. It is Ms Tatton’s case that [W]’s mutism arises as a consequence of her exposure to the father’s displays of family violence directed towards her mother. [W] also suffers from asthma. [Z] and [Y] require speech therapy. [Z], in particular, is not currently able to express herself verbally with any degree of facility.
Undoubtedly, the pressures involved in home schooling [W] and [X] must also have been significant. These pressures were compounded by the nature of the worry which must be experienced by parents when their child has a life threatening condition. They must have been constantly vigilant so far as [X] is concerned. He requires a complex regime of treatment for his eczema, involving the careful applications of various ointments and must always carry an epi-pen in the event of a serious allergic reaction.
In the context of the complex demands upon them, arising from their challenging familial situation, both parties make serious criticisms of lifestyle choices of the other. Ms Tatton alleges that Mr Tatton has substance abuse issues, relating to his use of marijuana, which he has also grown and sold in the past. She also asserts that he has alcohol problems, which have led to a number of drink driving charges. Finally, Ms Tatton disapproves of Mr Tatton’s gambling.
For his part, Mr Tatton alleges that the mother also abuses alcohol and is likely to have undiagnosed mental health issues. In this context, Ms Tatton asserts that she is in the process of obtaining appropriate medical referrals, including her general medical practitioner and psychologist, which will confirm a preliminary diagnosis of PTSD, relating to her long-term exposure to family violence. However, no formal evidence has been provided to the court in respect of this.
Things came to a head, between the parties, leading to the institution of these proceedings over the Christmas period of 2016. Christmas Day was apparently an unhappy family occasion, not helped by the consumption of alcohol.
Ms Tatton perceived that she had been subject to an unacceptable level of verbal bullying from the father at a Christmas meal, to which members of her family had tacitly added their approval. On Boxing Day, Ms Tatton went to visit her mother at Ms C’s home to seek refuge for herself and the children there. It was Ms Tatton’s perception that Ms C rebuffed her plea for help. The two have been estranged ever since.
Ms C lives with her husband, for whom she cares, as he is in poor health. Also living with her is the mother’s sister, Ms S and her son [A], aged 8. Ms Tatton has also fallen out with Ms S, whom she alleges has physically assaulted her. There is no controversy, however, that Ms S has also posted a number of very unflattering comments about the mother and her parenting of the children on Facebook. This has led to further tensions between all concerned.
In addition, Ms Tatton has a second sister, Ms T, who lives with her three children, aged 15, 13 & 6, at Town B, which is approximately mid-way between Town A and Town C. It is Ms Tatton’s evidence that she also asked Ms T if she and the children could stay with her following her mother’s alleged rebuff of her. Ms Tatton has deposed that Ms T was only prepared to offer her a tent in her garden, which she found unsatisfactory. It seems to be the case that Ms T and the mother are now no longer talking.
In these circumstances, Ms Tatton felt that she had no alternative other than to take the children to Town A where she sought accommodation with Ms G, who is Ms C’s sister-in-law. Ms G and Ms C now have little, if anything, in common. Ms G has a son, Mr P who also lives in Town A, where he cares for his mother.[1]
[1] The parties refer to Ms G as Ms Tatton’s Aunt and to Mr P as her cousin. It appears that the three are not biologically related
Mr Tatton did not know where the mother and children were between Boxing Day and 3 January 2017. He was clearly not consulted about the move to Town A, which the mother intended to be permanent. As such, it is to be characterised as a unilateral relocation. Ms C and Ms S placed a missing person alert with police.
On 3 January 2017, the mother contacted the father and it was agreed that he and the children would go on a pre-arranged holiday, which was scheduled to conclude in mid-January, when Ms Tatton anticipated the children would be returned to her care in Town A.
From the father’s perspective, this was a typical example of the mother behaving in a high handed and directorial manner towards him, in respect of the children. He was not inclined to return them, particularly as it was his perception the children did not wish to live in Town A.
Against this background, on 19 January 2017, the mother commenced both children and property proceedings in this court and on an interim basis, sought the immediate return of the children to her care, together with the court’s imprimatur that they could live in Town A. Ms Tatton was also aggrieved that the father was apparently preventing her access to her (business stock) stored at the former family home.
In his response, filed 16 February 2017, the father sought that the children live with him, if Ms Tatton continued to live in Town A. In this scenario he proposed the mother spend time with the children each weekend. In the alternative, if Ms Tatton lived in Town C, he proposed an equal time arrangement. He also sought orders to enable the children to be enrolled at School 1 in Town C.
At this stage, Mr Tatton was critical of the mother’s accommodation in Town A, which he characterised as crowded and not suited to protect [X] from exposure to allergens. Significantly, it was his position that the children had also indicated to him that they did not want to move to Town A because of their strong connections in Town C, particularly in the form of their family, friends and other extra-curricular activities.
In addition, Mr Tatton deposed his view that the children’s education was not being well served by their home schooling. In this context, he proposed School 1, which is a private school in Town C, attended by a number of the children’s cousins. He was dubious about the quality of education in Town A and the mother’s capacity to home school the children without assistance.
The interim proceedings were bitterly contested and occurred following a referral by the court to Ms A, a family consultant, who provided a memorandum of advice, on 9 February 2017. In this report, Ms A reported as follows:
·The evidence available to her indicated that the care of the children had not been optimal;
·The anxiety of [W] and [X] was concerning and could be as a consequence of witnessing violence;
·The mother appeared to be a credible and coherent witness, who described a parenting relationship between the parties, which required her to do everything and left her exhausted;
·The mother appeared attuned to the children’s health needs;
·The father did not dispute the mother’s claims that she had provided the bulk of the care to the children but this had been a result of his back injury, which was now better managed;
·The father claimed to be the victim of the mother’s erratic personality traits and indicated to Ms A that he had the support of the mother’s family in this respect;
·Expert therapeutic intervention was required for the children, particularly to determine whether home schooling should continue;
·It was recommended that both parents attend a parenting program and Ms Tatton access counselling for herself.
In all the circumstances of the case, Ms A cautiously recommended as follows:
“Given these children have been home schooled by their mother, it might be preferable to maintain as much stability as possible while other measures, such as those suggested above, are put into place. As well, given the level of conflict and lack of a co-parenting relationship, this would suggest a week about arrangement is contra-indicated. The Court could consider the mother having the children during the week to maintain their routine, with the father having the children from a Friday night to Sunday night each weekend.”
In the lead up to the interim decision, which was provided on 2 March 2017,[2] the parties agreed on some holding orders, which saw the children living week about, with handover to take place at Town B. This regime was not viable in the longer term.
[2] See Tatton & Tatton [2017] FCCA 3409
Ultimately, for reasons provided at the time, on 2 March 2017, I concluded that the children should continue living with their mother in Town A, during the week and spend each weekend, with their father, from 5:00pm Friday until 5:30pm the following Sunday. I confirmed the BP Service Station at Town B as the handover point.
At the end of February 2017, Ms Tatton obtained rental accommodation for herself and the children in Town A, at a rental of $260.00 per week. The children began to attend School 2 Primary School. The mother continues to occupy this property. It is her case that she receives emotional and practical support and assistance from Mr P, whom she describes as a friend and Ms G.
As I indicated in the interim judgment, the evidence available to the court, at the interim stage, is limited in nature. Invariably, the most significant piece of evidence, not available to the court at this stage, is an independent and expert assessment of the family concerned, which, if relevant, can involve a canvassing of any views of the children involved.
Such a report was ordered on 19 June 2017. The compilation of the report was allocated to Ms B, a social worker and family consultant. Her report was released to the parties in mid-October of 2017.
Ms B has a significant advantage, over me, in this case. She was able to speak with each of the children concerned and observe them interacting with both their mother and father. As such, she was able to form a direct impression of the personalities of each child. Necessarily, Ms B’s report is an important piece of evidence in this case.
In her report, Ms B noted a high degree of parental conflict between the parties. However, she also observed that [W], [X], [Y] and [Z] to be delightful and polite young people. In addition, she was of the view that the children had made a positive transition to mainstream schooling.
It was also clear to Ms B that the children, particularly [W], retained significant connections in the Town C area. It was also apparent that the children had a close relationship with each of their parents.
Because of parental conflict, Ms B was not in favour of an equal time regime. In these circumstances, she recommended as follows:
“Ms Tatton and the children relocate to Adelaide (within a reasonable proximity to Mr Tatton’s home) but not before the conclusion of the current school year and before the commencement of the 2018 school term.
[X], [Y] and [Z] live with Ms Tatton and spend time with Mr Tatton as outlined above. That is, in week one the children spend time with Mr Tatton from the conclusion of school on the Thursday to the commencement of school on the Monday and Thursday overnight in week two.
[Y]’s living arrangements and time spending arrangements be subject to her wishes.
The parties share parental responsibility for the children and this may need to be supported by the use of community based mediation on a regular basis.
The children continue to attend mainstream schooling, with Ms Tatton and Mr Tatton following any recommendations made by the children’s teachers or school in relation to their needs.”[3]
[3] See family report at [95]
Issues relating to parental conflict, particularly at the Town B handover, and divisions within the children’s wider family, both on its maternal and paternal aspects, continue to loom large in this case. It is apparent to me that [W], [X], [Y] and [Z] are torn emotionally between the conflicting parties, who now include Mr P.
Mr Tatton regards Mr P as a dangerous and unsavoury character, to whom the children should not be exposed. He believes Ms Tatton and Mr P are in a committed relationship with one another. Ms B did not interview Mr P, but obtained the children’s views in respect of him.
Ms Tatton denies that she is in any form of intimate relationship with Mr P. It is her case that he is a friend, who provides her with moral support and some assistance with the children when she is busy. She anticipates being reliant on him when she re-activates her business, particularly at market time. She would characterise Mr P as a rough but kindly diamond who has put his checkered past behind him. She disputes anything other than that the children have a positive relationship with him.
Ms Tatton is not inclined to return to live in the Town C area. It is her evidence that this area only has unhappy associations for her. In addition, it is her perception that, for her to return there, on the instigation of her former partner, would be tantamount to her returning to what she describes as a coercive relationship, in which she would, in effect be told what to do and where to live by Mr Tatton.
In her evidence to the court, Ms Tatton candidly conceded that the children had experienced some difficulty in adjusting to living in Town A and attending school there. However, it is her position that the children have now successfully adapted to their new environment and are enjoying living in Town A and attending school there.
As such, she seeks a continuation of the current regime with the adjustment that the father’s weekend time be reduced to alternate fortnights, in order to ensure that she gets some weekend time with the children. From her perspective, such an arrangement will be sufficient to ensure the children maintain a meaningful level of relationship with their father.
Mr Tatton does not accept that the children have become accepting of and adjusted to living in Town A. Rather, it is his position that they pine to return to their extended family and friends based in Town C. In addition, he asserts that they have a difficult and guarded relationship with Mr P, whom they know from their own experience is involved in an intimate relationship with their mother of which they disapprove.
Tensions between the parties remain unacceptably high. These tensions have come to the fore at the Town B handover and have necessitated police involvement from time to time. Ms C assists Mr Tatton in driving him to and from Town B. She has become aligned with the father and sees him as the only means by which she can maintain a relationship with the children.
In addition, there has been a spilling over of animosity about the issues arising in this case, in postings placed on social media, by wider members of the family. These postings can be best described as a vitriolic ventings of feelings. There has been a significant falling out between the mother and Mr Tatton’s sister, Ms D.
The circumstances are utilised by Ms Tatton to support her contention it is emotionally impossible for her to return to Town C, even if she wanted to do so, because her family has ostracised and abandoned her.
From Mr Tatton’s perspective “family is number one”. To him and the children and his family is in Town C. It is his position that the mother has “put herself out on a limb”; so far as her family is concerned by “running away” from her responsibilities and what is best for the children.
As this background indicates, the positions of the parties are polarised in the extreme. When asked, by me, if Mr Tatton had any positive qualities, Ms Tatton replied as follows: “I suppose he can back a winning horse”. I do not consider that she was being ironic. When pressed, she could think of nothing else.
Mr Tatton described Ms Tatton as being “very driven and highly strung”. He conceded that she was a “good mum” but qualified this with the statement “most of the time” in the sense that she fed and clothed the children and cleaned their home.
At an earlier stage of proceedings, the parties were able to resolve consensually the property proceedings between them. It was agreed that the father’s half interest in the Suburb E property, which he owned jointly with his grandmother, was worth approximately $210,000.00. Against this background, it was agreed that Mr Tatton would retain his interest in the property and pay to Ms Tatton the sum of $90,000.00.
In addition, it was agreed that Ms Tatton would retain the plant and stock relating to her business. It is Mr Tatton’s evidence that he obtained the settlement sum by mortgaging the Suburb E property. He has also borrowed moneys to fund these legal proceedings. At this stage, he is significantly in debt.
For her part, Ms Tatton has indicated that she used the funds advanced to her to pay off her outstanding legal fees in an amount of $40,000.00, incurred in pursuing the interim proceedings. In addition, she paid off $21,500 relating to a personal loan incurred to purchase her motor vehicle. She represented herself at final hearing.
Accordingly, neither party can be regarded as being in a strong financial position. Mr Tatton has deposed that he is approximately $150,000.00 in debt. Much of that expense relates to his legal fees, as he is personally funding the proceedings.
As such, it is his case that he is not in a position to move to live in Town A even if he was inclined to do so. He does however concede that it is theoretically possible, with his grandmother’s acquiescence, for him to either sell or rent the Suburb E property. However, this is not his preference.
The amount of money and emotion invested by both parties in the case make it a high stakes endeavour for both of them. From both of their perspectives, compromise is impossible. From my perspective, there is no obvious right answer to the case. As with all relocation cases, it is “a delicate interplay of concepts” as well as “an imbroglio of principles.”[4]
[4] See B v B [2006] FamCA 1207 (delivered 15 November 2006) [1] per Warnick J.
The dilemma of the case
The legal principles, relating to cases involving relocation are complex. I will do my best, in due course, to explain them as succinctly as I can. However, at the outset, it is appropriate to point out that it is impossible for the court to achieve an outcome which will be satisfactory to both parties.
Relocation cases are invariably very difficult for all concerned, involving, as they do, two competing and irreconcilable claims of right. These claims of right arise when the parents of children have separated and, for legitimate reasons, wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of children to maintain a meaningful relationship with both their parents, regardless of the state of the relationship between the parents concerned.
The various outcomes, available in this case, cannot be manipulated, like the sides of a Rubik’s cube, to achieve a perfect result for all concerned, including [W], [X], [Y] and [Z]. No matter what is the result someone will be dissatisfied with it. I say this in order to express my regret for the inevitable distress, which will be accorded to some or all of the individuals involved in the case through its resolution.
Particular difficulties arise in relocation cases in which the presumption of equal shared parental responsibility [section 61DA] is applied, which engages the court’s obligation to give active consideration to any children spending either equal time or significant and substantial time with each of their parents [section 65DAA]. For obvious reasons, distance impacts upon such outcomes.
In the current case, notwithstanding the seemingly entrenched conflict between the parties, Ms B recommended that they share parental responsibility for their children.[5] Mr Tatton is open to it also. Ms Tatton’s initial application, prepared by her former solicitor was silent about the issue. However, it is clear from her recent affidavit[6] that she seeks sole parental responsibility for the children.
[5] See Family Report at [94]
[6] See mother’s affidavit filed 23 April 2018 at [140]
The various preferences of those concerned can be summarised as follows:
·The mother wants to live in Town A because she is happy there and feels supported by the Ms G & Mr P. She also wants to be able to operate her business on the Region 1. Above all she wants to be away from Town C, where she perceives she will be free from the control and direction of Mr Tatton;
·The father wants the children to be where he and they have lived primarily since they were each born and where the majority of their extended family live. Family is everything to him. He is sick and tired of the current ad hoc contact arrangements centred on Town B, which he believes will be unworkable in the longer term;
·Ms C wants her grandchildren close by and will align herself with the parent whom will be most cooperative to her. Presently this is Mr Tatton. She too is sick of driving to Town B each weekend;
·The paternal grandparents, who have not given evidence in this case want the same outcome as Mr Tatton and Ms C;
·Mr P wants his “friend” to be close by to where he lives. He cannot move away from Town A because of his responsibilities to care for his mother;
·In generic terms, the children are likely to want both of their parents to be happy and well-functioning in their provision of care to them. A happy parent is likely to mean a happy life for them and an unhappy parent a stressful and challenging environment for them. They are also likely to be more conservative than otherwise and as with many children may be diffident about expressing any preference, preferring to try to keep everyone happy, if possible;
·[W] has expressed some reservations about Mr P and misses spending time with her cousins and playing (sport) in Town C. She complains about her mother screaming at her. She leans towards returning to live in Town C;
·[X] wants his mother to move closer to Town C, so he can live week about with each of his parents. He too has expressed some reservations about Mr P and his mother’s propensity to swear;
·[Y] enjoys the current arrangement and feels safe with both her parents. She is in favour of keeping things as they are;
·[Z] was not interviewed, but from observations, she is comfortable with both her parents as indeed are all the children;
·No doubt, there are various members of the extended Tatton and Ms C families, who have strong views about the appropriate outcome of this case and want [W], [X], [Y] and [Z] to return to Town C.
Accordingly, if the court does what the mother proposes, the father, Ms C, Ms J (the paternal grandmother) and all manner of other relatives of the children based in and around Town C, will feel unheard and hard done by.
On the other hand, if the court does what the father proposes, the mother will feel that she is has scant rights of self-determination and, if she wants to be regularly physically close to her children, has to live somewhere she does not want to, at the direction of a person with whom she no-longer has a marital relationship.
For obvious reasons, such an outcome has a strong potential to make her feel bitter, poorly disposed towards Mr Tatton and hardly likely to be able to cheerfully take up the burdens of being a parent in any location which she finds unpalatable.
There are also public policy considerations. Australia is a free and democratic country whose citizens are free to live how and where they please. As a consequence, the High Court has found provisions in the Constitution to impliedly grant everyone the right to freedom of movement in Australia.
Indeed, one of the essential and often over-looked purposes of the Family Law Act is to provide individuals with easy mechanisms to disentangle their involvement with one another, both in proprietary and familial terms, once the intimate relationship between them has ended. There is no principle of law that separated parents must live in close proximity to one another during the infancy of their children. Such a concept would offend the principle of freedom of movement.
In due course, it will be necessary for me to contrast and compare the various permutations available to the court, in this case, in order to attempt to reach the outcome, which I consider is the one most likely to serve the best interests of the children concerned. Their interests remain paramount.
However, necessarily, given the polarised positions of their parents, there can be no perfect outcome for them. Whatever happens there will be some level of defect in the outcome because one or other of their parents will feel the result is wrong. As such, in resolving the dispute, the process itself will lead to more conflict, which will not be emotionally helpful to the children whose care arrangements are the focus of that conflict.
For obvious reasons, the best interests of children are most likely to be served in circumstances in which their parents agree about what is best for their children and are cooperative and conciliatory in the implantation of their own personal plans and preferences and so able to arrive at suitable and workable compromises.
Such happy circumstances are not available in this case – the parties are at loggerheads because of the difficult situation in which they found themselves at the end of their marriage. Each parent (and those associated with them) wants what they want, in the case, for readily understandable and rationale reasons. As such neither Mr Tatton nor Ms Tatton can be described as being inherently unreasonable or a lax or obstructionist parent.
In these circumstances, the court is called upon to resolve the dispute because the parties themselves cannot do so. In so doing, the best interests of [W], [X], [Y] and [Z] remain its lodestone.
The formal orders sought by the parties
In her affidavit material, under the heading orders sought Ms Tatton has indicated that she seeks the following orders:
“I the applicant mother remain in Town A, The children remain at School 2 primary school and commence secondary schooling at School 3 high school when needed.
The applicant mother has full rights regarding education enrolment but is still to notify Mr Tatton of school functions and important dates. I must notify Mr Tatton of which school the children will be attending for each academic year.
The children spend time with the father each alternate weekend.
School holidays are to be split 50/50 with the father having the first week of each two-week block of school holidays and the mother having the last week to allow her to prepare them for the school term.
The 6-week holiday be split 50/50 with the parties alternating each even year the mother will have the children for the first two weeks and the last week the father have the three weeks in between that time. Every odd year the mother has the first week and the last two weeks with the father having them at the space in between those weeks.
Children’s birthdays the parent not in care of the child be entitled to have the child for 4 hours the time may be agreed between both parties no later than 48 hours prior to the day.
Intervention order to prevent Mr Tatton from attending in or near my residence. Harassing, intimidating or threatening me.
I the mother be at liberty to attend any medical clinic needed regarding the children's health needs.”[7]
[7] See mother’s affidavit filed 23 April 2018 at 19
In his amended application, which was orally amended by his counsel, Mr Anderson, Mr Tatton has indicated he seeks the following orders:
That the parties share equal parental responsibility for the children [W] born 2004, [X] born 2006, [Y] born 2008 and [Z] born 2010.
That the mother do deliver up the children to the father’s address not less than 7 days before the start of the next school term after final orders being made.
That until such time as order 2 herein is complied with the children do live with the mother and spend time with the father during the school term each Friday from 5pm until Sunday at 5:30pm and during school holidays and special occasions as set out in order 4 herein.
That upon compliance with order 2 herein the parties spend time with the children as follows:
If the mother resides within 50 km of the Town C General Post Office:
During the children’s school term the parents spend equal time with the children as follows:
In the first week after Final Orders have been made:
with the mother from the Conclusion of school on Monday to the commencement of school on Thursday and during the same period each alternate week thereafter; and
with the father from the conclusion of school on Thursday to the commencement of school the following Monday and during the same period each alternate week thereafter.
In the second week after Final Orders have been made:
with the father from the Conclusion of school on Monday to the commencement of school on Thursday and during the same period each alternate week thereafter; and
with the mother from the conclusion of school on Thursday to the commencement of school the following Monday and during the same period each alternate week thereafter.
If the mother does not reside within 50 km of the Town C General Post Office:
The children do live with the father.
That the mother spend time with the children during term time as agreed between the parties and in default of agreement each alternate Friday from 4 5pm to the following Sunday at 5:30pm.
School Holidays
With the father for one half of all school holidays in alternating seven (7) day weekly blocks.
With the mother for one half of all school holidays in alternating seven (7) day weekly blocks.
For half of all gazetted school term holidays.
The father’s school holiday time to commence on the first week of the school holidays in even numbered years and on the second week in odd numbered years.
Children Birthday’s
The parent who does not have care of the child be at liberty to spend time with the child for four (4) hours in the location the child is that day ordinarily located on the child’s birthday and should the child’s birthday fall on a school day the four (4) hours from after school.
Father’s Birthday
On the father’s birthday the children shall spend time with the father from 10 am until 10 am the following day if the children are not otherwise in the care of the father.
Mother’s Birthday
If the mother resides within 50 km of the Town C General Post Office the children shall spend time with the mother from 10am on the day of her birthday until 10am the following day if the children are not otherwise the mother’s care.
If the mother resides in Town A the children shall spend time with her on her birthday as follows:
if mother’s birthday falls on a weekend day the children shall spend time with the mother from 10am until 10am the following day if the children are not otherwise in the care of the mother.
If the mother’s birthday falls on a week day the mother be at liberty to spend time with the children for four (4) hours after school in the Town C area.
Fathers’ Day
The children spend Fathers’ Day as agreed between the parties and failing agreement with the father from 5pm the day before Fathers’ Day until 4pm on Fathers’ Day if the children are not otherwise in the father’s care.
Mothers’ Day
The children shall Mothers’ Day as agreed between the parties or failing agreement with the mother from 5pm the day before Mothers’ Day until 4.00pm on Mothers’ Day if the children are not otherwise in the mother’s care.
Christmas
In odd numbered years commencing in 2017 the children spend Christmas with the father from 2pm 25 December until 4pm 26 December.
In even numbered years commencing in 2018 the children spend Christmas with the mother from 2pm 25 December until 4pm 26 December.
Easter
In odd numbered years commencing in 2017 the children spend time with the mother from 5pm the Thursday before Good Friday until 5pm Easter Monday.
In even numbered years commencing in 2018 the child spend time with the father from 5pm the Thursday before Good Friday until 5pm Easter Monday.
Changeovers
All Changeovers to occur as agreed between the parties and in default of agreement at the father’s place of residence.
Medical
In the event of one the children suffering a medical condition or requiring medical attention while with either parent that parent shall notify the other parent by text message as soon as is practicable such notification to include the details of the practitioner or medical facility upon which the children) attend(s).
The parties keep shall each other advised of medical appointments for the children and issues relating to the children’s health generally.
The parents shall do all such things and sign all such documents so as to ensure that all medical practitioners and medical facilities be advised that both parents shall have access to the child’s medical records and the information contained within them upon request.
The parties shall keep each other advised of their landline and mobile telephone numbers and email addresses with each party notifying the other of any intended change within three (3) days of arrangements for the change being made.
Education
The parties shall forthwith do all things and sign all documents necessary or desirable to cause the children to be enrolled in School 1 OR School 2 with the children to commence at the said school tat the beginning of the next school term after Final Orders are made.
The parties be at liberty to obtain, at their own expense, copies of all School Reports and other School materials.
The parties be at liberty to attend the children’s School sports days, parent/teacher interviews, sporting events, plays, recitals and/or other events to which parents are usually invited.
Non Denigration Order
The parties be restrained and an injunction is hereby granted restraining them from abusing, harassing or denigrating one another in the presence or hearing of the children or allowing any other person to do so.
Telephone/ Electronic Communication
The parties be at liberty to communicate with the children by telephone or video call at reasonable times as may be requested by the children.
In addition to the above the parent who has care of the children shall facilitate the other parent to be able to telephone the children each Tuesday and Thursday between 6.30pm and 7.30pm.
Travel
The parties be restrained and an injunction is hereby granted restraining them from removing the Children from the State of South Australia without first providing, not less than twenty one (21) days prior to the first date of travel, the following details:-
An itinerary;
Flight, bus and/or train numbers (if applicable);
Contact telephone numbers.
The parties be restrained and an injunction is granted restraining them from removing the Children from the Commonwealth of Australia without the prior written consent of each of the parties. If such consent is given the party taking the Children out of the Commonwealth of Australia is to provide the other party no less than twenty eight (28) days prior to travel all relevant details including but not limited to copies of all:
Airline and or train/bus tickets;
Itineraries;
Addresses; and
Contact phone numbers for where the Children will be and that may be used to contact the Children throughout the trip.
The parties shall use a communication book to inform one another of all issues relevant to the children including but not limited to issues such as the children’s physical needs, medical appointments and information, dietary needs and extra curricula activities, school events and achievements.
Such further or other orders as this Honourable Court deems fit.
Such further or other orders as this Honourable Court deems fit.”
During the course of the trial, Mr Anderson, counsel for the father indicated his client would be open to an equal time regime, if Ms Tatton elected to leave Town A and move closer to Suburb E. He amended his client’s application orally to reflect his stance.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[8] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[9]
[8] See Evidence Act1995 (Cth) at section 140
[9] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
(a) The family report and the evidence of Ms B
Ms B qualified as a social worker in 2000 and has a background in child protection. She has been a family consultant since 2015. I found her evidence to be thorough and well considered. She also has a significant advantage over me, in these proceedings, in the sense that she had the opportunity to meet and speak directly with the children and see them interact directly with each of their parents.
I have not met the children and it is unlikely that I will ever do so. I have only read about them. For axiomatic reasons, the opportunity for an expert to observe parent/child relationships and report back to the necessary decision maker is an invaluable resource for the decision maker concerned. Accordingly, Ms B’s professional assessment of the children, derived from her direct observation of them, both in interview and interacting with their parents, is a significant piece of evidence in this case.
Ms B noted the history of significant conflict between the parties, which she did not consider was likely to abate any time soon. Notwithstanding this factor, she recommended that the parties share parental responsibility for [W], [X], [Y] and [Z] equally. This recommendation was made in reflection of the excellent relationship the children had with each of their parents and the obvious interest both Mr Tatton and Ms Tatton displayed to her in respect of their welfare.
Ms B also appears to have approached the case with a view to exploring ways in which the conflict between the parties could be either reduced or at least managed better. In this context, she viewed the distance between Town A and Town C, which currently had to be accommodated weekly, as a major flashpoint.
I agree. The distance is not so great as to rule out regular weekend time during term times between parents and children but is of sufficient magnitude to represent a significant burden for all concerned. I accept the drive involved is time consuming and tedious. The half way meeting point is inconvenient and so a source of friction. In addition, it is my impression that neither party has a strong inclination to bite the lip when situations of conflict arise. These circumstances are not helpful to the on-going emotional equilibrium of the children.
Given the unilateral circumstances in which Ms Tatton moved to Town A, it is inevitable Mr Tatton will remain, at the least, annoyed at having to undertake the commute to Town B weekly. An attitude which will be shared by Ms C who helps him with the driving. Necessarily, this is far from ideal. However, at the same time, long commutes are a staple of many separated parents who live in the major congested cities of this country.
These factors seem to have been instrumental in Ms B’s written recommendation that the children live predominantly with Ms Tatton but on the proviso she move to within a reasonable proximity to Mr Tatton’s home. Two things should be noted from this recommendation.
Firstly, Ms B did not propose the reverse – that is consideration be given to Mr Tatton moving closer to where Ms Tatton lives in Town A; and secondly, such an outcome could only come about at the cost of Ms Tatton’s entitlement to live in the place of her preference and through some exercise of judicial leger-de-main.
Ms Tatton has made it very clear that she does not want to move closer to Town C and does not accept Ms B’s recommendation. In practical terms, the court has no authority to direct Ms Tatton as to where she should live. Its authority only resides in its power to make parenting orders pursuant to the provisions of section 65D(1) of the Act, in respect of one of the matters delineated in section 64B(4), which include an order directing the person with whom a child is to live.
In these circumstances, in order to bring about the outcome recommended by Ms B, it would be necessary for the court to provide Ms Tatton with an election – the children live with her subject to the condition that she move back to Town C or if, in theory, she declines to return to do so, the children live with their father, in that location.
For obvious reasons, any person in Ms Tatton’s position would be ill-disposed to return to the place which they had left voluntarily, vowing never to return, unless the alternative proposed was even more unpalatable. In effect, live where you choose, but without your children.
Mr Tatton is not presented with the same degree of dilemma. He is compelled to consider moving closer to the children, only if Ms Tatton is successful in her application. I am concerned that Ms B perhaps under-estimated in her report the significance of issues to do with the mother’s entitlement to freedom of movement and its implications for the children, particularly how Ms Tatton would react psychologically to having her hand forced in this way.
In U v U Gaudron J (who was in dissent) said as follows, in respect of the dilemma created by such a situation, particularly from the perspective of a mother:
“A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interests to those of her child; a mother who opts to stay with her child runs the risk of not having her reasons for relocating treated with the seriousness they deserve.
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.”[10]
[10] See U v U (2002) FLC 93,112 at 89,082
In the same case, Hayne J commented in respect of the level of consideration to be given to the prospect of the parent whose preference is to remain in the original location moving in tandem with the other parent. He said as follows:
“… it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.” [11]
[11] Ibid at 89,103
However, notwithstanding any criticisms of Ms B that she had not grasped some of the legal niceties of the case, it is clear, from her report, that she considered the children’s interest would be best served, if they lived in Adelaide, where they would be closer to their father and other relatives and to resume the various activities, important to them, in which they had previously engaged in Town C.
As will be explained in greater detail shortly, Part VII of the Act, which deals with children, emphasises the joint responsibility of parents and envisages a situation, wherever beneficial and practical, in which children live with each of their parents for either equal periods of time or substantial and significant periods.
This was [X]’s preference. Ms B did not favour it, at least in her written report, because of the on-going and significant conflict between the parties and her view that there was cogent evidence to indicate that exposure to this conflict had had a detrimental emotional effect on the children. As such, Ms B did not consider this to be an outcome calculated to be in their best interests.
In these circumstances, Ms B posited an arrangement, if the children returned to live in Town C, of them living with their mother and, during term times, spending time with their father, on a fortnightly basis from Thursday afternoon until commencement of school the following Monday, in one week; and in the other week, overnight on Thursday (five nights out of fourteen).
The benefit of this arrangement being the problematic handover was removed as the children could be notionally exchanged at school. This would lessen exposure to conflict and enable both parents to have a significant involvement in the children’s day to day lives and their education and extramural activities.
One of the significant difficulties arising in the case concerns the disparate views of the children involved and the weight to be given to those views in the overall circumstances of the case. Neither of the parties advocates that the court take a different approach to any of the children, although Ms B herself recommends that [W] be offered some form of autonomy in respect of her living arrangements.
Associated with this issue is the apparent antipathy Ms B noted in regards to how the older children described, to her, their relationship with Mr P. As will be indicated in due course, when I come to their evidence, neither Ms Tatton nor Mr P accept that the children are reliable reporters in respect of the matter. In this context, Ms Tatton herself is critical that Ms B did not interview Mr P or observe him with the children and in these circumstances, this aspect of her report is likely to be unreliable.
[W] was described by Ms B as being “quite firm and forthright” in the views expressed by her. In this context, Ms B was of the view that [W] knew why she was being interviewed by her and was aware that it was important that she made every effort to get her opinion across. Ms B detected no indication that [W] had been influenced malignly by any other person or that she was parroting the opinion of another person.
[W]’s clear preference, as expressed to Ms B, in what Ms B described as a spontaneous and confident manner, was to live with her father, so she could spend more time with her extended family and play (sport), as she had been able to do previously. She also expressed a positive view about the possibility of her being able to attend the same school as her cousins did. She apparently expressed this view twice, including in the context of being asked her view about the existing arrangements, which she did not endorse.
[W] indicated to Ms B that Mr P “sleeps with mum in the same bed.” She does not appear to be entirely comfortable with this situation, given [W]’s understanding Ms Tatton and Mr P were cousins, and asked Ms B for reassurance about it. I have little doubt that [W] was of the view that her mother and Mr P are in an intimate relationship.
[W] also expressed other criticisms of Mr P regarding motor vehicle safety issues, including [X] riding on the bonnet of his vehicle and a lax attitude towards seat belts. [W] was noncommittal about such safety issues. Mr P and Ms Tatton assert that [W] (and indeed [X]) are being unduly censorious about inconsequential issues.
More significantly, although I accept [W] loves her mother deeply, she also expressed to Ms B that she has a somewhat fractious relationship with her. [W] told Ms B that her mother “swears a lot” and when asked to desist would not, which was in contrast to her father.
Accordingly, although the relationship is a good one, it is not without its challenges. As previously indicated, to her credit, Ms Tatton accepts that it took the children some time to adjust to their change of circumstances in Town C. The tenor of Ms B’s evidence is that [W] is still adjusting to the change and is not yet accepting of it.
This report of [W], in respect of her attitude to her parents, is consistent with my own impressions of the parties, albeit that I concede these impressions have been drawn from the highly imperfect tool of the oral presentation of their evidence in the witness box. Mr Tatton seems to be a quieter and more docile person than Ms Tatton, who seemed to me to be a more emotionally volatile one, who did not always think through the consequences of her actions before committing to them.
In her oral evidence, Ms B accepted that there would arise significant perils if [W] perceived that she had put herself out on a limb by expressing her preferences to Ms B, well aware that they would be disseminated back to her parents, and then felt no one had given them any significance.
Ms B considered [W] would feel “angry and unheard”. She was likely to utilise her mother as the subject of her anger and blame her for the thwarting of her preferences. This would likely lead to the relationship between mother and daughter to become more conflicted, which would not be helpful to [W] developmentally.
At thirteen years of age, Ms B considered that [W] was likely to be insightful about the various issues arising in this case and accordingly recommended that the court give her views a significant degree of weight. This is the underpinning of her recommendation that [W]’s living arrangements be subject to her wishes.
If this recommendation is implemented and [W] elects to live with her father, her presence in Town C, in my view, is likely to be a pull factor for the other children, which will potentially add to the tensions and uncertainty surrounding the family following the children’s relocation to Town A.
I am satisfied that, as with her father, family is everything to [W]. Given the similarity of their situation, the other children are likely to hold the same sort of views. Again, one of the sad and difficult aspects of this case is that this is not an attribute which the children currently share with their mother, who as Ms C reported to Ms B considered her daughter to be “dead to her”.
I am also satisfied that one of the emotional pressures on all the children, particularly [W], is their perception that they are torn between their competing loyalties to their mother, who has isolated herself from family and to their father and their wider family, which he exemplifies and to which they each strongly identify.
One of the significant problems of the children continuing to live in Town A is the risk of them drifting away from their wider family because of their mother’s estrangement from it. As indicated in the introduction, the children’s connection to family is particularly important to Ms Tatton and so it would seem to [W] as well.
In her oral evidence, Ms B pointed to the significance of the vast majority of the children’s extended family living in the suburbs of Adelaide. In Ms B’s opinion the children derived significant emotional support from these relationships, particularly their maternal grandmother. She also was of the view that the children had a very significant relationship with dad.
In these circumstances, Ms B did not consider it to be helpful if the children’s time with their father, during the school year, was significantly reduced, which is an essential component of the mother’s position. In this context, the driving time between was, in Ms B’s terminology “achievable but a burden” which in my view is an apt way to put it.
Ms B observed everyone concerned to be angry about the driving, which seemed to be a pull factor for the children to want to gravitate back to what they had previously known in Town C. Ms B considered that Mr Tatton and Ms C were “going to become more angry” if the driving requirement remained but their time with the children was reduced.
Ms B described [X] as being a “resilient and adaptable” child. He was almost twelve at the time of interview. Like his older sister, he found the current regime far from ideal and expressed a desire that he wanted his mother to move closer to his father so that he could live week about. He was resigned to the fact that his mother would not do so.
[X] also expressed reservations about Mr P and complained about his mother swearing at him and his sisters, something he indicated happened a lot. [X] expressed a degree of regret as his perception of Ms Tatton had taken Mr P’s side regarding a complaint when he had fallen at home, which he regarded as being as a result of an intentional action on Mr P’s part and which he regarded as accidental.
It is clear, I think, from what Ms B has reported, that [W] and [X] are struggling with their mother’s relationship with Mr P and they see as some lack of clarity and or ambivalence about it. This was also a concern of Ms B who viewed the mother as lacking a degree of emotional resilience and fragility, demonstrated by her cutting off ties abruptly with her own family.
In these circumstances, Ms B was concerned at the possibility of the relationship failing between Ms Tatton and Mr P, which would leave the mother bereft of emotional support in Town A. I agree that this is a significant cause of concern. If Ms Tatton became more isolated socially, it would not be helpful for the children’s care.
This concern seems to have been a major factor influencing Ms Tatton’s recommendation that the mother and children move back to the Town C area. The rationale being that not only was this more congruent with the children’s wishes but also more likely to prevent the them becoming socially and emotionally isolated in the event that Ms Tatton suffered some form of setback in her current support relationships with Mr P and Ms G. Ms B did not consider it improbable that this would occur at some stage, although she did not interview Mr P personally.
Ms B indicated that she had no concern about the father’s level of parental capacity. She was, however, concerned that the mother lacked a sufficient degree of insight into how the children had reacted poorly to the move to Town A and might not feel they had their mother’s emotional support given her current apparent allegiance with Mr P.
These are complex issues, which I concede are difficult to assess in the context of a two day adversarial court case. What struck me about Ms Tatton was her propensity to see things in black and white terms and to burn her bridges with people. In this context, I consider that there are real risks for the children, of the mother falling out with either Mr P or Ms G, leading to her emotional isolation, which is likely to render her more emotionally fragile.
Ms B consulted with the principal of the School 2 Primary School, who reported that the children had settled in well there. The children had been somewhat behind academically due to home schooling, but were catching up. The children seem to be polite and well cared for children. Ms B was impressed with the knowledge that both parents displayed regarding the various health issues of the children.
From her interviews with the parties, Ms B was unable to present a definitive view regarding who of the parties was the chief protagonist of the incidents of family violence between them. [W] and [X] both reported to Ms B the equal involvement of their parents in incidents of swearing and arguing. [W] indicated both her parents were responsible for the fights between them.
In this context, [X] reported to Ms B that “it was probably best that he and his siblings lived with Mr Tatton as there was less swearing at his home.” Mr Tatton reported to Ms B that he had only been acting in self-defence during these acknowledged incidents of family violence. As indicated above, it is Ms Tatton’s position that Mr Tatton instigated the violence in the parties’ relationship and she must be regarded as its sole victim.
As with their evidence to the court, both parties indicated to Ms B that the other had very significant issues relating to alcohol abuse. However, it is Mr Tatton’s position that he no longer drinks due to adverse interactions between alcohol and his current medication.
I consider it more likely than not that alcohol use was previously problematic for each party and added to the tensions in their marriage, which frequently precipitated violent interactions between them, to which the children were regularly exposed.
As I have attempted to describe, their relationship was replete with stressful factors. It seems to me that the potential for violent episodes between them is much reduced given their separation. However, the bitterness between them, which these proceedings have intensified, creates the potential for flashpoints to arise, the most visible of which is handover at Town B.
Both parties have invested a great deal in these proceedings – both emotionally and financially. As such, whatever is the outcome, it would be unrealistic to consider that it will be easy for either of them to adjust to an outcome which they consider both adverse and erroneous. This will be inevitable given the zero sum game the case presents to the court.
Ms B had no clear view as to who of the parties was likely to be more capable of adjusting to an adverse outcome or more able to make a magnanimous gesture favouring the other party. In these circumstances, Ms B was concerned that the central question remained how to control the children’s exposure to conflict.
On reflection, Ms B did not think any reduction in the father’s time with the children would be in their best interests, certainly not to one overnight per fortnight, as Ms Tatton proposes. She also indicated that the current regime of every weekend time was very difficult.
In these circumstances, she posited that week about might be workable, if conflict could be managed. Necessarily this would require Ms Tatton to move back to Town C. This might lead to the demise of her relationship with Mr P and a concomitant exacerbation in her feeling of bitterness directed towards Mr Tatton.
There is no evidence to indicate that [W] is subject to any influence from her father. In these circumstances, I accept that the views expressed by [W] to Ms B are legitimate. As such, in my view, the court must give them a significant degree of weight.
In addition, I accept Ms B’s evidence that there is a significant risk if [W] perceives that her views have gone unregarded. If this occurs, she will blame her mother for this eventuality and this will render their relationship potentially problematic. In particular, [W] may act out her frustrations. This is the rationale for Ms B recommending that any residential arrangements for [W], be subject to her wishes.
For obvious reasons, there are likely to be perils arising, if there are different arrangements for [W], on the one hand, if she elects to vote with her feet and move back to her former family home in Suburb E and if it is ordered that the younger children remain living in Town A. The siblings, who have grown up together will be separated. In addition, it may not be appropriate for [W]’s views to become central in the determination of the arrangements for [X], [Y] and [Z].
[X]’s views are less clear cut than [W]’s. These views appear to be influenced by his antipathy for Mr P and his apparent dislike of his mother’s propensity to swear. Interestingly, [X] found the idea of living week about, with each of his parents, attractive. I do not gain the sense that this attraction was based on any desire, on his part, to placate his parents or appear even-handed between them. What is also clear, from what [X] said to Ms B, is that he is tired of the conflict between his parents and wants an end to it.
[Y] is not yet 10 and was obviously younger again when interviewed by Ms B. Her views appear to be ambivalent in the sense that she indicated that she felt safe at both her parents’ homes and enjoyed spending time with both her father and her mother. She was open to the current regime continuing. However, for practical reasons, such a regime involving time spending every weekend cannot easily continue.
In these circumstances, I am unaware if [Y]’s view would be different, if she was aware that there is a possibility her weekend time with her father could be reduced to fortnightly during school terms. In addition, Ms B did not explore with [Y] her feelings about spending time with her grandparents and other relatives based in Town C. However, in general terms, I have no reason to believe that she would have a different view in respect of this issue to that of [W].
Given her age and mutism, [Z] was not interviewed by Ms B. She and indeed her siblings were observed by Ms B, to happily kiss their parents and grandparents happily and confidently. This indicates that the children all have a degree of comfort in relationships within their extended family.
b) The nature of the children’s relationship with each of their parents and significant others
I accept that all of the children have a close and loving relationship with both their mother and father. This is apparent from Ms B’s evidence. I also accept that, as a stay at home dad Mr Tatton, until the date of the parties’ final separation, interacted with the children on a daily basis.
I also accept that, during the parties’ relationship, it was Ms Tatton who discharged more of the day to day parenting necessities for [W], [X], [Y] and [Z]. This was as a result of Mr Tatton’s physical incapacity. She also was responsible for the children’s home schooling. From time to time, this was both a difficult and thankless task.
However, it also formed the basis for the very significant of relationship which the children have with their mother. It is simplistic for the court to attempt to make an assessment of which parental relationship is likely to be more significant for the children concerned. The relationships are quite possibly different but, in my assessment, equally significant. This factor, which militates, in favour of some form of equal time regime, if practical.
I also accept that the children are at the centre of a wide, warm and complicated network of relationships involving their extended family, particularly grandparents, which is largely based in the Town C area. These relationships are strongly influential for [W] in particular. In this context, I found Ms B to be an impressive witness.
Grandparents are important to children. Not only are they a source of love but they are also able to provide family history to their grandchildren and give them a sense of where they fit in. The same can be said of cousins and uncles and aunts. [51]
[51] See Bright v Bright (1995) FLC 92-570
The relationship between siblings is potentially one of the most important of all human relationships. After all, the probability is the children involved in this case are likely to remain in contact with one another for the remainder of their lives. In these circumstances, it would, in my view, be a serious matter to inaugurate a different regime for [W], on the one hand and the other children, on the other hand.
It is also likely that if [W] is able to determine where she wishes to live, which is with her father and it is decided that, given [X], [Y] and [Z] have been in their mother’s care for a significant period of time, it would be unsettling to change this arrangement, nonetheless, it is likely [W]’s situation will be a pull factor for the other children. In my view, this is potentially unsettling.
For reasons already delineated, I do not accept Ms Tatton’s evidence that Mr P is merely her friend and a person who assists her with caring for the children. On balance, it seems to me to be far more probable that the relationship between Ms Tatton and Mr P is a romantic one, of which the children are well aware.
When parents separate, the issue of how a new partner is to be introduced to any children concerned, is necessarily a delicate one. At best, in my view, the evidence indicates that the children have a level of antipathy for Mr P. This appears particularly pronounced so far as [X] is concerned.
This is a factor which militates against Mr Tatton’s preferred outcome, as in my view, the evidence indicates that Mr P will remain a major figure in her household. In addition, I am not sanguine at the prospects of the children remediating their relationship with him in the short to medium term.
c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the children
I accept Mr Tatton’s evidence that he has maintained his relationship with the children in circumstances of some difficulty as a consequence of the distance between his home and the mother’s home in Town A. In addition, I accept that both parents have a deep interest in everything to do with the children, particularly issues relating to their health. As such, this criterion is not particularly relevant to the resolution of these proceedings.
ca) Provision of financial support for the children
Neither party is in a strong position financially. Both have incurred significant costs as a consequence of these proceedings. This is not a particularly relevant consideration.
d) The likely effect on the children of any changes in their circumstances
As a consequence of the initial interim decision, the children have been living in Town A for coming on to two years. The family report, which explored their views and the older children’s apparent preference to return to Town C, was released to the parties in October of 2017. It did not assist them to reach any consensus. To the contrary, its release seems to have deepened the controversy between them.
In all these circumstances, particularly the length of time the children have been in Town A, it will be a very significant change if they return to live in Town C. Necessarily, during the past 18 months or so, the children will have made some form of emotional adjustment to their changed circumstances in Town A. In particular, the evidence provided by Ms B indicates that the children have coped reasonably well with the transition to main-stream schooling.
However, notwithstanding the moment of the change proposed for the children, it is demonstrably clear that the children also have a great deal of familiarity and affection for Town C. If Mr Tatton’s proposal is acceded to, it will result in the children returning to their former family home which is set up with their needs in mind. In addition, they have been visiting this home each weekend for the period concerned. As such, putting aside the issue of education, the change would not be a major one.
As I have observed earlier, if the children are to change school, it would be preferable that this be done at a term break. However, to delay the decision until the end of 2018, after it has been announced to the parties, in my view, will inevitably lead to a great deal of friction between them in the period leading up to its implementation.
If there is to be a change, it is preferable that it occur without a period of inter-regnum. In addition, in my view, it would be preferable that some honest broker inform the children of the change proposed and provide them with some form of professional reassurance about it.
In many ways, Mr Tatton’s alternative proposal is likely to represent the most significant level of change for the children. It would envisage their current primary carer, Ms Tatton, packing up her home in Town A and finding new accommodation in the Town C area. This is likely to take some time and would occur in an atmosphere of some resentment, on her part, which would not be helpful to the emotional equilibrium of the children, who would also have to accommodate adjusting to a new school environment.
In addition, the children would have to adjust to moving regularly between their parents respective homes. As is indicated in the section of the judgment dealing with the legal principles applicable to the case, this factor requires the court to consider the matters delineated in section 65DAA(5), which deals with issues of practicality. At this stage, it is difficult to assess such issues given that it is not known whether Ms Tatton will move and, if she is prepared to do so, where her home is likely to be vis a vis the children’s former family home in Suburb E.
I acknowledge that a possible solution to these problems is to make the orders principally sought by Mr Tatton and leave the option of Ms Tatton moving, particularly when that move occurs, to Ms Tatton herself. This would give her time to seek out appropriate accommodation but would see the children’s living arrangements with Mr Tatton remaining relatively stable.
In this context, I acknowledge that the logistical implications of Mr Tatton moving are significant. She is a modest income earner. As such, she does not have ready access to the level of funds likely to be necessary for her to lease new accommodation and fund her removal expenses. Invariably, it is more difficult financially for the parent who has relocated to remain where he/she is than to return.
e) The practical difficulties and the expense of the children spending time and communicating with each of their parents
This is one of the central considerations in the case. Paradoxically, the distance between Town C and Town A is not so great as to rule out regular time between the children and their respective parents but is of sufficient magnitude to raise quite significant logistical issues, given Mr Tatton’s incapacity for driving and the costs of travel involved, which are significant, when the financial means of the parties are considered.
Mr Tatton presented as resentful in respect of the current interim arrangements for him to have weekly time with the children, which he considers untenable on a final basis. In addition, given what he would characterise as Ms Tatton’s manipulative and disingenuous characterisation of her need to move to Town A in the first place, he perceives it as being deeply unfair to him if his weekend time with the children is reduced.
I agree that it is impracticable for the current regime to continue indefinitely. It represented a quick fix to the dilemma raised by the case at the early stage. In these circumstances, if Ms Tatton is able to remain living in Town A as the children’s primary carer, it is inevitable that the father’s weekend time with the children must be reduced from its current levels. Such an outcome will be unhappily received by the older children, who wish to spend more rather than less time with their extended family based in Town C.
f) The capacity of the parents to provide for the children’s emotional and educational needs
The previous history of home schooling in the family concerned indicates that Ms Tatton is well placed to meet the educational needs of the children concerned. Some questions arise in respect of her capacity to support their emotional needs, given the complaints expressed by them to Ms B regarding their mother’s volatile personality at times. The children do not seem to like the fact that their mother loses her temper and has a propensity to swear.
It is not my role to be unduly critical or censorious of anyone concerned in these proceedings. As I observed earlier, Ms Tatton’s life is one which has not always been easy. On the other hand, it is my impression that Mr Tatton, by temperament, is a calmer person. However, at the end of the day, both parties have much love to bestow upon [W], [X], [Y] and [Z]. In addition, as Ms B reports, they are each able to demonstrate this love to the children appropriately and they in turn respond to it.
g) The children’s maturity, sex, lifestyle and background
The parties share a similar background and have complimentary aspirations for their children. I bear in mind the ages of the children, particularly [W]. Otherwise, the matters which arise for consideration under this criterion are not generally applicable in the case.
h) Aboriginality
This is not a relevant consideration in the case.
i) The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the parties
As Ms A observed at an early stage in the proceedings, the parenting of the children concerned in this case has not always been optimal. However, when [X] suffered his life threatening anaphylaxis at school, the parties jointly agreed to home school their children. This was a very difficult and onerous decision to make and, in my view, is reflective of their dedication to the best interests of their children and their desire to ensure their safety. In these circumstances, I am satisfied that both parties aspire to be the best possible parents they can be for [W], [X], [Y] and [Z].
j) & k) Any family violence order
I have already discussed issues to do with family violence at some length in respect of the primary considerations arising in this case. I not propose to issue those issues further.
l) Whether it would be preferable to make the order that would be least likely to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The parties parenting relationship is poor and likely to remain so for the indefinite future, whatever order is made. This is not a good harbinger for the avoidance of future litigation between the parties in respect of the care of arrangements for the children.
In addition, if an order is made for [W] to be able to determine with whom of her parents she prefers to live and she elects to live with Mr Tatton, whilst the other children remain in the care of their mother, this outcome is likely to be a significant pull factor which may lead to the other children wanting to follow their big sister and so further controversy between the parties.
In all these circumstances, there is no neat package of orders available, which will satisfy all concerned. As such, one party will inevitably hard done by and this, of itself, will provide fertile ground for further litigation.
Presumption of equal shared parental responsibility
Mr Tatton wishes for the presumption to be applied. On the other hand, Ms Tatton, although she does not formulate in strict accordance with the provisions of the Act, in effect proposes that she have sole decision making responsibility for the children.
I do not consider that the presumption is rebutted on the basis that I can have reasonable grounds to believe either party has abused the children or engaged in family violence. That is not to say, I do not consider the relationship between the parties was not at times highly volatile and conflicted. However, in my assessment, both parties played a part in creating such an atmosphere.
In addition, having considered all the relevant best interest factors contained in section 60CC, I have come to the conclusion that it would not be appropriate to promote one parent above the other in respect of the exercise of parental responsibility for the children concerned. On any view, both the mother and the father aspire to be involved in every aspect to do with the welfare of [W], [X], [Y] and [Z].
Conclusions
In my assessments, as these lengthy reasons for judgment indicate, this is a difficult and perplexing case, which presents no easy outcome. With the application of the presumption of equal shared parental responsibility, in purely objective terms, when the various section 60CC factors are considered, in my view, it is clearly the case that the children’s best interests would be served if they lived with each of their parents, in an equal time regime.
This can only come about consensually, if either Mr Tatton is prepared to move to Town A or Ms Tatton is prepared to return to Town C. Neither party would willingly countenance such an outcome.
On balance, I have come to the conclusion that the father’s primary position is on balance more likely than not to be the outcome best calculated to serve the interests of the children concerned. Accordingly, I have reached the view that the best interests of the children will be served if they return to live, for significant periods of time, with their father at their former family home in Suburb E.
I reach this conclusion for the following reasons, which can be summarised as follows:
·The children’s extended family is of particular significance to them. It is based in Town C. All the children, particularly [W], yearn to spend more time with their grandparents and cousins.
·Ms Tatton is currently estranged from her family and likely to remain so. In these circumstances, she is not likely to be inclined to support the children maintaining a proper level of relationship with their extended family.
·This outcome is likely to be severely detrimental for them, given their level of attachment to them. Accordingly, Ms Tatton is likely to be inclined to isolate the children from their extended family.
·Ms C is extremely close to the children.
·[W] is clear in her wish to live with her father and Ms B is of the view that her wish should be implemented, regardless of what is the outcome for the other children concerned.
·If a different approach is inaugurated for [W] as opposed to her younger three siblings, it will result in the separation of the children who have grown up together in separate households. It is not likely to be in their best interests to be separated.
·Mr P is a significant person in the mother’s life. He is likely to remain so. There are difficulties in his relationship with the children, which are not likely to resolve in the short to medium term.
·The current regime of weekend time is unsustainable in the longer term. The lose this entails for the children in terms of maintaining their relationship with extended family, is likely to be extreme for them.
In purely theoretical terms, the best outcome for these children, following the application of the presumption of equal shared parental responsibility, would be for the children to live in either an equal time or substantial and significant time regime. This is because, for many years, both parents were significantly involved in caring for the children in their home environment.
Mr Tatton was a constant presence in the home due to his physical incapacity. I accept that it is likely Ms Tatton acquitted more of the parenting and homecare duties than him but he but he was active with all of the children. His life with the children was centred upon the home in Suburb E and their family close by.
However, these outcomes are not dependent upon a consideration of best interest factors alone. The court must also be satisfied that such an outcome is reasonably feasible in its implementation bearing in mind the reality of the situation of the family concerned. This entails a consideration of the matters contained in section 65DAA(5) of the Act.
The distances between the parties’ respective homes is not vast but it is great enough to pose particular difficulties in respect of both an equal time regime and a significant time regime unless one of them moves, which neither of them is inclined to do.
From Mr Tatton’s perspective, he rhetorically asks: “why should I” when it was Ms Tatton who moved unilaterally and presented him with a fait accompli which the court subsequently ratified at interim hearing. Ms Tatton, for her part, asserts that she had no realistic alternative but to move to Town A because she was fleeing an abusive relationship. In my assessment, Ms Tatton’s case is somewhat exaggerated in this regard.
I accept that it is not reasonably feasible for Mr Tatton to move to Town A. His life is in Suburb E, where he has his home of many years. More significantly, as with the children in this case, his sources of family support, which come unusually from both the paternal and maternal aspects of the children’s family is in the Town C area. I accept it would be a financial disaster for the father to have to move to be closer to Town A, even if he was inclined to do so.
Apart from her relationship with Mr P, Ms Tatton could conceivably move closer to Town C. I accept that this would be logistically difficult for her and would, for the reasons already enumerated at some length, be an outcome which would stick in her throat. She would perceive Mr Tatton could dictate where and how she was to live. The emotional consequences of her losing her relationship with Mr P, at the instigation of Mr Tatton would be severe.
Already the parties do not communicate well and have an extremely limited facility to solve parenting problems and issues arising between them. This facility is likely to become even more scarce if the mother feels she has been compelled to move against her will back to the Town C area in order to have a more significant relationship with the children than would be available to her through alternate fortnights and school holidays. However, in my view, she should be given the opportunity of making the election on the basis proposed by Mr Tatton.
The parties are each, in my assessment, basically good parents who want the best for their children. Although there are many problems between them, they are likely to resolve most of the big issues arising between them in respect of health and educational issues relating to the children. However, this capacity is likely to be stilted for some time to come.
If Ms Tatton does elect to return to live in the Town C area and take up the father’s proposal of equal time, I consider that the parties would be able to implement a shared care regime involving equal time. This would not be easy. Much damage has been done to their capacity to trust one another and empathise with the other’s situation. Ms Tatton also has a propensity to isolate herself from people with whom she has previously been close.
In addition, the dynamic of giving Ms Tatton the choice of taking up a shared time regime, ostensibly for the convenience of Mr Tatton and at his instigation, without any inconvenience to him, is likely to add a significant level of tension to the parties’ already difficult relationship as parents. It is hard to see that any consensus will emerge quickly between them. Their relationship would remain as it is, bemired in mutual resentment.
However, a degree of parallel parenting is likely to work to some degree, particularly if it is embraced by the children, which appears more likely than not. In addition such an outcome would sustain the children’s relationship with each of the parents and ensure regular contact between them and members of their extended family.
In my view, it is the best outcome for the children and, although challenging logistically supportable. It relies on the election of Ms Tatton. If she declines the election, the best outcome for the children, particularly in maintaining relations with their grandparents and cousins, is to live with their father and have defined alternate weekend time with the mother, during term times and for half of each school holiday period.
At the heart of this difficult matter is what happened when the parties separated and the mother and children moved unilaterally to Town A, without any input from Mr Tatton or his approval. This move has been a constant irritant in the parties’ parenting relationship ever since and prevents them trusting one another. Mr Tatton, in particular, feels betrayed by what happened.
These reasons for judgment occupy close to a hundred pages. As is self-evident from them, I do not regard this as a case with any obvious or ready solution. Whatever happens one or other of the parties will feel angry, bitter and unheard. It demonstrates the care which must be taken with relocation issues at an early provisional stage, when evidence is untested and invariably controversial and conflicted.
At the interim stage, however, it is usually easier to reinstate some form of parenting status quo involving the return of children to the area from which they have been unilaterally moved. For obvious reasons, this is much more difficult at the final hearing stage – the metaphorical egg is more scrambled. I am well aware of this difficulty and its possible implications for the children concerned, who are likely to be part way through the process of not only adjusting to living away from their father, in Town A, but also of being educated at school rather than at home.
Hindsight is a wonderful thing but I cannot go back and unmake the interim decision I made. Ultimately, if I could, this might have proved a kinder option for Ms Tatton than what occurred in early 2017, when it is viewed through the lens of this decision. However, I am not satisfied that this was the wrong decision and was not in the children’s best interests. [W], in particular, is resentful about it and her resentment is likely to be shared if not now, in time, with the other children.
The question is how should the transition back to the Town C area be best managed? I have decided that it should happen at the start of the fourth term. I will engage Ms B (or some other family consultant as nominated by the Director of Family Dispute Resolution Services at Adelaide) to explain the orders and their implications to the children.
I will also give Ms Tatton to the start of the 2019 academic year to decide whether she wishes to move back to the Town C area to take up the opportunity to parent the children in a shared care regime with Mr Tatton. Otherwise, I propose to make the orders essentially proposed by the father.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and one (501) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 7 September 2018
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