Thornhill and Maurice
[2019] FCCA 3745
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THORNHILL & MAURICE | [2019] FCCA 3745 |
| Catchwords: FAMILY LAW – Parenting – where the mother lives on the Region A – where the father lives between Sydney and Brisbane – where the father seeks that the children attend school in the Brisbane area – where the mother seeks that the children remain living and attending school on the Region A – family violence – repeated derogatory taunts. |
| Legislation: Family Law Act 1975, ss.4AB, 60CA, 60CC, 61DA, 65DAA |
| Cases Cited: Adamson & Adamson [2014] FamCAFC 232 Morgan & Miles [2007] FamCAFC 1230 |
| Applicant: | MS THORNHILL |
| Respondent: | MR MAURICE |
| File Number: | BRC 1721 of 2018 |
| Judgment of: | Judge Howard |
| Hearing dates: | 19 & 20 August 2019 |
| Date of Last Submission: | 1 October 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms McMillian QC |
| Solicitors for the Applicant: | HopgoodGanim Lawyers |
| The Respondent attended as a self-represented litigant |
ORDERS
That each party shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to each other party by 4:00pm on 10 January 2020.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 17 January 2020.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Thornhill & Maurice is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 1721 of 2018
| MS THORNHILL |
Applicant
And
| MR MAURICE |
Respondent
REASONS FOR JUDGMENT
Background
The applicant mother is Ms Thornhill. The mother was born in 1982. The respondent father is Mr Maurice. The father was born in 1982.
The parties met at university and commenced a relationship in 2011. They moved in together in late 2011 or early 2012. The parties married in 2014. They separated on a final basis in November or December 2017.
From the commencement of cohabitation until March 2017 the mother, the father and (after their birth) the two children lived in Brisbane. The two children are X born in 2013 and Y born in 2016.
The parties cannot agree on parenting arrangements for the children.
The family moved to Sydney in March 2017 and lived there until final separation occurred in November/December 2017. At that point in time, the mother left Sydney and travelled to the Region A in Queensland to stay with her parents. I accept the mother’s evidence that when she first left Sydney with the children that it was her intention to take a break from the marriage. I infer from her evidence (which I accept) that the mother needed some space to decide whether or not she wanted to remain in the marriage. The mother did not return to the marriage and has remained living with the children on the Region A since November/December 2017.
The applicant mother's primary position is that she be permitted to remain living with the children on the Region A. In the event that the father moves to the Region A then the mother seeks orders that the children spend time with the father progressing up to four nights per fortnight. Full details of the mother’s proposal are contained in Exhibit 5.
In the event that the father does not move to the Region A the mother, essentially, seeks orders that the children remain living with her and the father spends time with the children every second weekend.
Initially it was the father's request that the mother and the children return to live in Sydney. He no longer seeks that outcome. The father provided an Outline of Case (filed on 13 August 2019). In that document the father sets out his primary position, which was that he sought orders for the children to attend school within a 25 kilometre radius of the Brisbane GPO. He sought that this order become operative from the commencement of school term one in 2020. Following on from that order, the father sought, over a number of years, a progression of time with the children leading up to six nights per fortnight from the commencement of school in 2022. During the course of the proceedings, the father (who is self-represented) stated to the Court on more than one occasion (including during his evidence) that he felt a moral obligation to move to live on the Region A in the event that the Court decided that the children should remain living with the mother on the Region A. In that event, the father originally sought an order whereby his time with the children would progress up to six nights per fortnight.
In the father’s written submissions filed 16 September 2019 he has amended the orders that he seeks. He has postponed his proposal that the children attend schools in Brisbane until 2021. The father states that such a postponement would allow the mother a period of time to relocate to Brisbane and proposes that the parties attempt to reach an agreement in relation to a school – but in the absence of an agreement, then the father proposes that X, “is to attend a state government primary school within the catchment area boundary of the father’s residence in Brisbane (as defined by the Queensland Government Statistician’s Office) that is closest to the father’s residence in Brisbane measured by the shortest, most direct route by road to and from the main entrance of the school.” (Note paragraph 5 of the fathers “Precise Minute of Final Orders Sought by the Father”, contained in the father’s written submissions filed 16 September 2019).
Further, his new proposal was that the children's time with him would progress up to five nights per fortnight – not six nights per fortnight. In the alternative to requiring the mother and the children to return to Brisbane – the father set out alternative orders in his written submissions. They are contained from paragraph 27 of the father's, “Precise Minute of Final Orders Sought by the Father”. The alternative proposed by the father again leads to the children living with the father for five nights each fortnight. It does not, however, require that the children attend a school (and/or day care) within a 25km radius of the Brisbane GPO. Indeed, in the father’s alternative proposal the child X is to attend a school as agreed between the parents and failing agreement – a state government primary school within the catchment area boundary of the mother’s residence. This proposed order is contained in paragraph number 28.
The father’s primary submission is that the children attend a school (and or day care) within a 25 km radius of the Brisbane GPO.
That requirement is central to the father's primary submission. If such an order were to be implemented it would, effectively, require the mother to relocate the residence of the children from the Region A to Brisbane – or much closer to Brisbane. That is the practical effect of the father's primary contention contained within his written submissions. The father's primary contention contained within his written submissions would, of course, amount to a coercive order for the mother to relocate the children’s residence and her own residence. This is so because the father still requires, as part of his primary submission, an order whereby the mother will be the primary carer of the children.
I note what was said by the Full Court in cases such as Sampson & Hartnett(No.10) (2007) FLC 93-350 and Adamson & Adamson [2014] FamCAFC 232. The father doesn't specifically seek an order that the mother move her own residence. But that is the net effect of the orders that he seeks concerning the location of the children’s schools.
In the Sampson v Hartnett (supra) case, the Court concluded that there is power under section 114(3) of the Act to “enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of power is likely to be rear”. (Note Sampson v Hartnett (supra) at paragraph 58).
Further, in the decision of the Full Court in Adamson & Adamson (supra) at paragraph 37, the Court stated:-
“37. In Sampson this Court thus made it plain that ‘the proper exercise of such a power is likely to be rare’ and orders made pursuant to an exercise of that discretion would be ‘…at the extreme end of the discretionary range…’ (Sampson at [58] and [83]). It follows that there should exist ‘rare’ or ‘extreme’ factors that warrant the Court exercising its discretion to make ‘coercive’ orders requiring a parent to relocate so as to continue to be the primary carer of their child/ children (Sampson at [17]).”
In the mother’s written submissions filed 1 October 2019 reference is made to paragraph 53 of the Adamson & Adamson (supra) decision. In paragraph 53 the Full Court stated, inter-alia:-
“53. In our judgment the central findings which we have identified thus far do not sit conformably with a conclusion that rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order…”
I agree with the submission made on behalf of the mother. In the current case before the Court there do not exist rare or exceptional circumstances which would justify a legitimate exercise of discretion to make what is, in effect, a coercive order sought by the father – namely that the mother should relocate to Brisbane and, in effect, “parent” the children (to adopt a phrase from paragraph 59 in the decision of Sampson (supra)).
Section 60CA
Section 60CA states:-
“60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC states how it is that a Court is to determine what is in a child’s best interests. The primary considerations are set out in section 60CC(2). That section states:-
“60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS
Determining child’s best interests
60CC(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
In the circumstances of this case there are very great benefits to both of the children in continuing to have a meaningful relationship with both their mother and their father. I note paragraph 169 of Ms B’s most recent family report (annexed to an affidavit filed 30 July 2019). At paragraph 169, Ms B states:-
“169. X and Y presented as lovely little children who have a close primary attachment with their mother with whom they have been since birth. It was also observed that the children have a secure and loving attachment to their father. X and Y also have an affectionate and loving relationship as evidenced by X gently rubbing his sister’s abdomen. The children described loving and close bonds with their maternal and paternal grandparents.”
I accept this evidence of Ms B.
The children in this case are not at risk of physical harm. However, in relation to the question of psychological harm, there is evidence that X is becoming stressed and anxious in relation to a particular issue. The issue is religion. There is a disagreement between the parents as to the attendance of the children at a religious school. The father is adamant that he does not want the children to be educated at a religious school. He doesn't want the children to receive any form of religious education or instruction. He does not want the children baptised as Christians. I note the mother's evidence contained in her trial affidavit (filed 10 May 2019). I note that the attendance of Y at the early learning centre attached to the C School has been the source of significant dispute between the parents. I note the mother's evidence that the dispute between the parents concerning religion is ongoing. The father has engaged in conversations with the child X regarding X’s school and regarding X's religious education. I make these findings based on the evidence of the mother (which I accept). In particular I note the mother's evidence contained in paragraphs 171 to 175 of her trial affidavit. In those paragraphs, the mother has stated:-
“171. Despite the issue being unresolved, Mr Maurice has engaged in conversations with X regarding his school and regarding his religious education. I know this because since mid-2018, X has increasingly and frequently stated to me such things as:
(a) ‘I’m shooting Jesus with a gun.’
(b) ‘I don’t believe in God for two reasons. One it doesn’t make sense and two you would need a really, really long ladder to go above the roof to the sky.’
(c) ‘It doesn’t make sense Mum, and Dad doesn’t believe it. We’re scientists. That makes sense.’
(d) ‘Only people who believe in religion believe God created everything and people. I believe in science with my dad. I don’t believe in God.’
(e) ‘Dad showed me a video of dinosaurs turning into humans.’
(f) ‘Dad told me the story of [Buddha]. He lived in a palace and had everything, but he wanted to sit outside and see normal people so he sat under a tree.’ X then followed this story by asking me ‘Is it a real story?’
(g) ‘I don’t like Christmas because me and Dad don’t believe in Jesus’.
172. On 19 February 2019, X’s teacher has also reported to me that X has been acting out in religion class, for example, by putting his fingers in his ears during class. X’s teacher further advised me that she can arrange access to the school counsellor for X if the situation ‘is too heavy on his heart’. This concerns me as it seems X feels isolated from and different to his classmates and as a result of Mr Maurice’s conduct.
173. When X has made the above statements, I have attempted to relieve him by saying things like ‘Don’t worry, Mummy will love you whatever you believe.’
174. I have also attempted to address this with Mr Maurice. For example, in my email to Mr Maurice on 17 November 2018 I set out examples of what X was saying and finished with ‘Mr Maurice, whilst I cannot directly attribute these comments to you, it is a strange coincidence that X has come home stating these things around the same time that I have received these emails from you. If you have caused or encouraged these comments then please stop. It is not appropriate to engage X in our disputes or for him to be exposed to them in any other way. Also, your comments will only confuse him at a time when he needs to feel included, safe and supported. I appreciate that you will want to share your world views with X, but you can do so at a time and age when X can comprehend them. For example, if X says ‘I hate God’ then this assumes that God does exist, which is obviously inconsistent with your atheist view and your wish to teach X facts.’
175. However, Mr Maurice has flatly denied any type of responsibility for it, including in his email to me on 17 November 2018.”
The father lacks insight in relation to this issue. He does not seem to understand that he should not be discussing these issues with X. He knows that X is anxious and worried about the religion/God issue and still the father fails to change his approach. He does not accept that he has done anything wrong. The father does not have the insight, maturity, skill or ability to navigate this particular parenting issue with X.
I note the father’s evidence at page 240 of the transcript between lines 1 – 10. As indicated in the transcript (later on page 240) I indicated to the father during the course of the evidence that he needs to utilise a counsellor in order to ask for strategies about how to deal with this sort of question (the religion/God question) when asked by a five or six year old child. The father seemed to agree that he needed to see a counsellor to obtain such strategies. He certainly does not seem to have those strategies himself currently.
The types of things the mother has reported that X has said to her (concerning religion and religious education) accord with the father’s own views – namely that (in essence) science trumps religion. I have no doubt that the father has raised these issues with X.
The science versus religion debate is all well and good – but it is an adult matter and not an issue to be discussed with children – certainly not a child as young as X. In September 2019, X turned six years of age.
X has been feeling anxious and upset. He is conflicted. On the one hand, the father is saying negative things to the child about religious belief and religious education. On the other hand the child attends the C School. The children attend chapel on a regular basis. As noted, X has been putting his fingers inside his ears during religion class. He recently put his hand up during religious education and stated “I need support here”. The child is now seeing a counsellor in respect of the anxiety that he is feeling as a result of this issue. In her report, Ms B states at paragraph 173:-
“173. Both parents are seeking to be actively involved in their children’s lives and milestones such as school. It would be beneficial for the children for their schooling experiences to be free of any potential for X and Y to be exposed to parental conflict such as the issue of religion. X is attempting to advocate for his father's views but has limited understanding of this complex issue. This Prep child cannot even acknowledge that he enjoys Chapel as he is seeking outside of school to uphold his father's views. Consistency between parents will help these children to internalise social norms and values. A positive co-parental relationship also models interpersonal skills, such as showing respect, communicating clearly, and resolving disputes through negotiation and compromise. Ms Thornhill and Mr Maurice now live in separate households and cooperative co-parenting is not the norm. They need to readjust their focus to X and Y's needs instead of their adult needs.”
Additional Considerations
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The children are still very young. X turned six years of age in September 2019. Y is four years old. Their views cannot be given weight. It is, however, worthy of note that both children were happy, comfortable and at ease in the presence of both their mother and their father. This was noted by Ms B during her observations of the family for the preparation of her most recent family report. The children are well-settled living with the mother and the maternal grandparents on the Region A in Queensland. The children do enjoy spending time with their father. The children move from one parent to another with ease. The mother has noted that, on occasions, the children have appeared to be reluctant to spend the weekend with their father – but on a proper consideration of the available evidence I have come to the conclusion that this is more a factor of tiredness at the end of the week. Young X has mentioned that he is “running out of batteries”. There is no doubt it is tiring for the children to travel from the Region A for the changeover that takes place in Brisbane at the paternal grandparents home at Suburb D each alternate Friday afternoon.
In relation to the children communicating with the father by telephone – I note that the mother has been doing her best to facilitate those telephone calls. As Ms B points out, it is difficult to engage little children for any longer than 5 to 10 minutes. The children have now been using face-time to communicate with the father. The mother is facilitating the face-time. There is no suggestion that the children do not enjoy this communication with the father. The father was concerned that the telephone communications were of short duration. Ms B has addressed that issue. I accept her evidence.
Section 60CC(3)(b) – the nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
Both children were observed by Ms B. I note paragraph 156 of Ms B’s most recent report where she stated:-
“156. The children were again very relaxed and comfortable in their mother's care. Their interactions were calm and spontaneous without reservations. It was again observed that the children have a strong primary attachment to their mother.”
Ms B also observed the children with the father and in her most recent report she noted at paragraph 168:-
“168. At the end of the session the children affectionately embraced their father and their affection was reciprocated. It was noted that the children's interactions with their father were very happy and loving indicative of a strong attachment. The children left with their mother.”
I also note paragraph 169 of Ms B’s report included above at paragraph 12 of these reasons.
I accept this evidence of Ms B.
Notwithstanding the high level of disagreement and conflict between the parents, both parents maintain strong attachments to the children. This is, in fact, a credit to both of the parents.
Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child.
Both parents have taken every possible opportunity to spend time with the children. The children live with the mother on the Region A. That is where the mother moved with the children after separation from the father. The father, understandably, is desperate to spend more time with the children. He is in a difficult position. He has a very well-paid job in Sydney. The family had, of course, moved to Sydney in March 2017. His current salary is in the vicinity of $250,000 per annum. He is a Professional by profession, but currently works employed as a Professional for a company. He pays all of his child support obligations. He spends a significant amount of time and money travelling from Sydney to Queensland in order to spend regular time with the children. My impression of the father is that he is doing his absolute best in difficult circumstances to ensure that he can spend as much time as possible with children. He is being assisted in this regard by his parents.
The father is also doing his best to communicate with the children as often as possible. I have already noted the evidence concerning telephone time and face-time. I am satisfied that the mother is facilitating appropriate communication between the children and the father – utilising telephone calls and face-time calls. As noted, there are limits on the amount of time that such young children are willing to spend communicating by those methods.
In relation to making decisions about major long-term issues – both parents have very much wanted to be involved in the decision-making process. The inability to reach agreement in relation to certain issues was highlighted in evidence at the trial.
The first decision concerning a major long-term issue relating to the children is the question of the children remaining living on the Region A with the mother. As noted earlier, I accept the mother’s evidence that when she left Sydney with the children she considered that she was on “a break” from the marriage. Having got to the Region A she made the decision not to return to the marriage. The father wanted the mother and the children to return to Sydney. At the very least, he wanted the children to return to Sydney.
I note what was said by Ms B in her first family report (annexed to an affidavit filed 30 April 2018). At paragraph 239, Ms B said:-
“239. Ms Thornhill’s allegations of spousal abuse and aggression, and her fears are consistent with experiences described by many women who have left abusive relationships. If Ms Thornhill’s accounts are correct, it could be argued that it is understandable that she would want to leave her life with Mr Maurice and remove herself to a location where she feels safe and supported. Each parent has reported that they have engaged in volatile interchanges. Both parents have alleged that the other has instigated conflict during their relationship and during the post separation period and that the other is the primary aggressor.”
I accept that the mother wanted to remove herself to a location (the Region A), where she felt “safe and supported”. As in all marriages, both parents engaged (at times) in arguments and disagreements. But the father does have a particularly direct and forthright manner about him. The conclusion I have drawn having listened to him in the witness box and listened to him questioning the mother (and other witnesses) is that he has an expectation that his own views and wishes will be met – or agreed to. The father’s manner of questioning witnesses and, indeed, his manner of answering questions under cross-examination comes across (or did on occasions) as somewhat aggressive. His insistence in relation to the religion issue is a good example of his attitude. As Ms B points out, though, this is something that he can work on. He can improve his behaviour in this regard. That is to say, he needs to calm down and become more child focused in relation to that particular issue.
Having observed the father in the courtroom over the course of two days I have come to the conclusion that is more likely than not that the mother’s version of events is correct to this extent – where the mother alleges that the father was critical of her; was demanding; and was insistent (in relation to any range of issues) – that evidence from the mother is very likely to be correct.
The mother’s decision to remain on the Region A where she felt safe and supported is, in those circumstances, understandable.
The other major long-term issue is the question of the children’s schooling and, in particular whether or not such schooling should include religious education.
By an order made by Her Honour Judge Turner on 1 May 2018 – the parents were to exchange a list of three schools that they proposed the children should attend. The mother put forward:-
a)C School;
b)E School; Town F; and
c)G School, Town G.
The mother had informed the father of those schools by email on 12 July 2018. The mother had ascertained that there was only one place left in the prep class (at C School) for 2019 and in order to ensure that that option remained open the mother enrolled X in that school. I accept the mother’s evidence that she took that step in order to not lose the opportunity. At the time both X and Y (during 2018) were attending at the C School’s Early Learning Centre. The children had been there since 30 January 2018. The mother told the father about this on 30 January 2018 and there did not appear to be any objection. So during the calendar year of 2018 both children were at the C School Early Learning Centre.
The father sent an email to the mother on 17 July 2018 setting out his school preferences as follows:-
a)H School (New South Wales);
b)J School (Suburb K, Queensland); and
c)School L (Brisbane).
I note the mother's evidence contained in paragraph 170(c) of her trial affidavit (filed 10 May 2019), where she stated:-
“170(c). Further communication between us on the matter followed (with Mr Maurice writing to me about it on 14 July 2018, 17 July 2018, 19 July 2018 and 25 July 2018 and myself writing to Mr Maurice about it on 17 July 2018 and 24 July 2018). In my correspondence, I asked Mr Maurice to set out the reasons why he elected those schools. For example, on 24 July 2018 I stated ‘To assist me to understand your preferences it would be useful if you could tell me why you like the schools you have listed? Then, perhaps we can work on finding some common ground with respect to the type of school(s) that we like’, as I was hopeful that our correspondence would lead to some agreement.”
Unfortunately, the parents were not able to reach an agreement in relation to schooling.
The father (at some stage) expressed to the mother that he had an issue with the children being exposed to religious education and he had a strong preference for secular and State based government schooling. I note paragraph 170(f) of the mother’s trial affidavit. The father had nominated J School in Suburb K as one of his preferences. The father has not adequately explained to the Court why he proposed J School – if he has such strong objection to religious education. J School is a Catholic primary school in Suburb K. The father did say that he was looking for a school halfway between Brisbane and the Region A. There are plenty of state schools between Brisbane and the Region A. That is not an adequate explanation from the father. Furthermore, the father has not (in my view) adequately explained to the Court why it was that during the marriage, X was placed on waiting lists for the M School and the N School. Both of those schools are faith-based schools, respectively.
The disagreement between the parents continued through late 2018, in relation to schooling.
I note the evidence of the mother contained in paragraph 170(h) of her trial affidavit. In that paragraph the mother stated:-
“170(h). On 17 November 2018, I responded to Mr Maurice acknowledging his preference. I further expressed as follows “ …However, this is inconsistent with your position in the past as you will recall that during our marriage X was placed on both M School and N School’s waiting lists at your direction. I further note that one of your preferred schools in your email to me dated 17 July 2018 was J School. If you have since changed your view and now have a 'strong preference 'for X to attend a secular, state school then I acknowledge this and confirm that I will consider it in terms of X's future education. At the present time however, l am of the view that it is better for X to continue attending C School so as to provide him with stability pending a final outcome in our case. X is due to commence Prep next year and it will be possible to move him into a new school, if necessary, depending on a final outcome in our case. In this regard, I do not think it would be beneficial for X to move to say, G School and then potentially another school depending on the outcome of our case (keeping in mind that he is still adjusting to our separation too). I appreciate that this might disappoint or frustrate you however l genuinely believe that this is in X's best interests at this time. I also request that you re-read and consider my email to you dated 12 July 2018 which sets (out) the reasons why I believe C School is a good school. There were many reasons for choosing C School for the children that aren’t religious grounds. In addition, my understanding is that C School has longer school days so that the time for religious education does not have an impact on core studies…”
I accept this evidence from the mother. The sentiments conveyed by the mother to the father in her email to him dated 17 November 2018 are reasonable and sensible. X and Y were already at the early learning centre which is a part of the C School. Stability for X was best met by commencing him in prep at the C School at the commencement of 2019. The mother was quite correct when she stated that the child could be moved from that school at the conclusion of the final hearing – if that became necessary. Ms B stated more than once during her evidence that the best outcome for X was that he remain at his current school. This will provide him with stability – especially given that there has been so much change in his life – in particular the separation of his parents.
Section 60CC(3)(c) talks about the parents taking the opportunity to participate in making decisions about major long-term issues in relation to the children. There can be no doubt that both the mother and the father have at least tried to be involved in reaching agreements concerning decision-making for the children. They were not able to reach an agreement in relation to the precise school that X should commence at the start of 2019. I accept that the father did not raise an objection when the matter was mentioned in Court in late 2018. He said that he expected that the matter would be resolved prior to the commencement of the prep year. At least that is what I understood him to say when he was in the witness box. I am unsure why he thought that would be the case.
The father cross-examined Ms B at page 194 of the transcript – in relation to the question of schooling and the fact that the mother enrolled the children in religious school. Ms B stated:-
“At the point that I saw everyone the second time, you (i.e. the father) had accepted that the children were attending that school (i.e. the C School). The little one was going to childcare at that school. So from my perspective, once that acceptance has occurred, it's – it's not in the children's best interests to – to put them in a situation of conflict about parental views.”
Mr Maurice was not happy with the answer from Ms B – he did not consider that it was responsive to the question that he had put. That may or may not be so – but nonetheless, Ms B stated what had happened and stated her opinion in relation to what had happened. I accept her evidence.
The father considers that the mother made a unilateral decision to enrol X at the C School. He put this to Ms B and he was basically asking for her opinion concerning the mother’s approach. Because he is a self-represented litigant I assisted the father in framing the question and I asked Ms B (note page 199 of the transcript from line 37):-
“HIS HONOUR: I suppose from what you’ve heard… – what’s your view or your opinion as to what the mother did – if the father is right that he was adamant that they ought not go to a religious school and he was adamant that they ought not go to C School but mum nonetheless enrolled X at C School, what opinion, if any, could you proffer that might assist the court in sorting out that situation?
MS B: My concern, your Honour, is that as far back as – I think it was May, Judge Turner asked the parents to seriously, you know, resolve the situation if they could. The father only objected to C School formally at the end of 2018. In the meantime, X and Y are both enrolled in a school and have been attending there for some time.
HIS HONOUR: That’s the early learning centre they were at?
MS B: Yes, yes, yes. X has now commenced school at C School. So I’m a bit confused as to why the father left it that late, and secondly, why he proposed a religious school in the first place if he – he was – because he would have the same dilemma if the mother agreed to the Catholic school halfway between. The dilemma would be still the same. The issue for me, your Honour, is that now that the children are (attending) there, it’s not appropriate – it’s not in the child’s best interests to be introducing such complex issues as him attending the school and having to dispute the existence of God and that sort of stuff.”
The observations made by Ms B reinforced the conclusion that I have reached. The mother’s actions in enrolling X and commencing him at prep at the beginning of 2019 were reasonable – noting that the parents had not been able to reach an agreement between themselves.
It is important to refer to one further aspect in the evidence which followed immediately during the cross-examination of Ms B at page 200 the transcript. I note the following evidence:-
“MR MAURICE: Actually, let’s go back to that. In the event that he was to attend at state school, where there are some opt-out provisions – so in other words, religious education is not part of the core curriculum – in your view, would that help resolve X’s issues of alignment?
MS B: I think that my view at this point in time is that he’s very settled in that school. He has had a lot of adjustments in his life, and he has had a lot of losses, and we’re – we’re almost at the end of term 3 for his first year at school, and it would be very – it would impact on him to have to change schools.”
Ms B’s opinion is that the best outcome for young X is to remain at his current school. I accept her opinion. This is one of the reasons I have come to the conclusion that the children should remain on the Region A living primarily with the mother.
Section 60CC(3)(ca) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
Both parents have fulfilled their obligations to maintain the children.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The children are currently well-settled living with their mother at the maternal grandparent’s residence on the Region A. X is well-settled in the C School at Town F in his prep year. My comments in that regard are subject to the young boy needing some counselling concerning the religion issue. A good outcome in that regard for young X will depend very much upon the attitude of the father. As Ms B pointed out – the father needs to, as it were, “back off”, in relation to the religion issue. The father needs to leave the young boy in peace in relation to that issue. It is an adult issue and not one for continual discussion with a five year old or six year old.
If the children remain living on the Region A they will, of course, be with their mother primarily and they will continue to spend significant time with their maternal grandparents.
If the father does not move to the Region A, then he will continue to see the children every second weekend. The children will also see their paternal grandparents every second weekend. If the father does move to the Region A the children will spend more time with the father.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Obviously, if the father does not move to the Region A there will remain the obvious practical difficulties and expenses. These include the mother driving the children every fortnight to the paternal grandparent’s residence at Suburb D. It will involve the father travelling from Sydney every fortnight (if he remains living in Sydney). One of the difficulties with this case (especially from the fathers' perspective) is that he has not reached a concluded decision as to where he will live. I'm not unduly critical of the father in this regard. He is waiting for the outcome of the present proceedings. As noted earlier, he did state more than once during the course of the trial that he felt that he had a moral obligation to move to the Region A in the event that the children will remain living on the Region A. If that occurs, the practical difficulties and expenses will be minimised or disappear.
Section 60CC(3)(f) – the capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
Each of the parents has the capacity to provide for the needs of the children, including the emotional and intellectual needs. The father does, however, need to gain some insight and put the religion issue to one side. He cannot continue to discuss this issue with X or Y (for that matter). There is, I note, no evidence that he has been raising the issue with Y. As noted already, the matter has caused some significant problems for young X. I note X told Ms B (noted at paragraph 126 of Ms B’s most recent family report):-
“126. When asked if he goes to Chapel, X said they do things about God there. He said - 'I hate Chapel as I do not believe in God '. X maintained that he does not want to tell the teacher, as ‘I will get into trouble because the whole school believes in God’.”
Ms B noted in her evidence that between the two family reports she noted an improvement in the mother’s encouragement of the children and their relationship with the father. Ms B remarked to Mr Maurice during the course of her evidence at the final hearing that he (Mr Maurice) needed to improve his approach and his attitude – particularly in relation to his vehement opposition to religious education – but more particularly he needs to make sure that the matter is not raised by him with the children. That, of course, is the issue. Mr Maurice, is fully entitled to his own views in relation to the question of religion and religious education. The problem is that he has been exposing the child X to these issues and in such a way that it has caused and is causing significant upset for the child.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
There is nothing in particular that needs to be referred to in relation to this subparagraph of section 60CC(3).
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this part will have on that right.
Section 60CC(3)(h) is not relevant.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Subject to what I have stated here in these reasons – both parents have accepted the responsibilities of parenthood. They both have good attitudes towards the children.
Section 60CC(3)(j) and Section 60CC(3)(k) - Family Violence
There are no family violence orders. However the mother does maintain that the father was abusive in the course of the marriage.
From paragraph 246 of the mother’s trial affidavit she sets out evidence in relation to the father’s conduct and attitude towards her. I note, specifically, the following evidence:-
“246. Throughout our marriage, Mr Maurice acted aggressively towards me, was controlling and belittled me in front of the children. Specifically, Mr Maurice used his height, weight, voice and expressions to assert power and over the years, I became submissive as I did my best to avoid conflict with him. While I have not included notes of each individual incident, I have summarised some below. The following incidents are also to be read in conjunction with the other incidents already set out in this Affidavit.
247. In or around mid-2016 when Y was a small baby, Mr Maurice was giving me a hard time again about my weight and repeated his statement that “I should spend my days pushing the pram uphill to lose weight like other mothers” ( or words to that effect). Mr Maurice badgered me nearly all day that day about my weight and repeatedly told me that I was ‘fat’ and ‘unattractive’. When I eventually got upset and raised my voice at Mr Maurice, he told me that he was recording me. At this point, I left the house and went to my parents with the children for the night to get some reprieve. Mr Maurice rang me repeatedly on my drive to the Region A and told me that I had broken his trust by leaving the house and that my actions would be ‘hard to fix’.”
I accept this evidence from the mother. The mother’s evidence in this regard accords with my own impression of the father. I have earlier referred to his demeanour, his manner of speaking and his very direct and forthright approach. I accept that the father was self-represented and that he is under a lot of stress. I'm not sure why he is self-represented having regard to his level of income. That is a matter for the father. But I have made earlier observations in these reasons for judgment concerning the father’s demeanour in the courtroom and it does lead me to conclude that the mother’s evidence contained, for instance, in paragraphs 246 and 247 is correct. I accept the mother’s version of events that the father acted or spoke in an aggressive manner towards her. His manner in the courtroom – even when cross-examining the mother – was on occasions, aggressive. And that was when he was under the spotlight of the Court. I accept the mother's evidence that, during the time that they lived together, the father would belittle the mother. I also accept the mother’s evidence contained in paragraph 256 of her trial affidavit that the father ridiculed her in front of his work colleagues at a dinner in Sydney in mid-2017.
Section 4AB of the Family Law Act 1975 defines the term, “family violence”. Section 4AB(1) states:-
“4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.”
Further, section 4AB(2)(d) states:-
“4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):
….
(d) repeated derogatory taunts; or
….”
I do think that the father's repeated belittling of the mother comes within the definition of family violence. The evidence from the mother contained, for instance, in paragraphs 246 and 247 of trial affidavit is of repeated derogatory taunts. In circumstances where this caused the mother to be fearful and submissive – I find that in the circumstances of this case it constitutes family violence. The father’s behaviour was not acceptable.
However, I am of the view that the father is capable of improving his conduct and his approach. It is, of course, too late in terms of the marriage – but the father needs to reflect on his conduct and attend counselling. He needs strategies to assist him in communicating with the mother so that they can develop a cooperative method of communicating and co-parent the children in the years ahead.
I note paragraph 262 of the mother’s affidavit. In that paragraph no fewer than 21 text messages sent by the father to the mother have been included. I appreciate that this was in the month prior to the final separation. It was not a happy situation for the parties. However, the fact that the father sent messages of that kind as text messages reinforces in my own mind, the Court's conclusion that the mother’s version of events is correct. By way of example, I note:-
“262. There were a number of occasions where Mr Maurice would threaten to leave me and the children if we had an argument. He would always revert back to alleging that I did not appreciate him or all the hours that he works. For example, during an argument over text message on 6 November 2017, Mr Maurice sent me a large number of consecutive messages, many within minutes. A portion of those messages are set out below, copies of which can be produced to the Court if necessary:
(1) ‘I hope your 2 hour meeting doesn't get to much in the way of you not cleaning my shit’
(2) ‘I will do my own washing and cleaning from now on - don't bother with anything’
(3) ‘If you think you feel “used” - welcome to my fucking world’
(4) ‘I do it 60 hours a week so you can stay at home – FACT’
(5) ‘And how I feel’
(6) ‘My effort ALLOWS you to spend time with our KIDS - if I did not do it - you would be working and not seeing your children - a fact you fucking ignore’
(7) ‘I sacrifice everything to allow you to do basically what ever you want and you don't even appreciate it - honestly Ms Thornhill - I'm close to being gone’
(8) ‘Just try me out - why do you do the leaving - clearly you are lining up for it’
(9) ‘Why don 't you have a good long think about what I do for you - you are totally fucking oblivious to it’
(10) ‘But I have a solution to that’
(11) ‘Why don't' you have a real long think about what you need to do to make me stick around’
(12) ‘Come on Ms Thornhill - you have already fucked up my return to work day - I'm waiting for your response’
(13) ‘I trust you have time’”
These are text messages sent by the father to the mother on 6 November 2017. The text messages are examples of abusive and belittling behaviour.
I accept the mother's evidence that she only raised her voice at the father on rare occasions and in retaliation to his conduct. I accept that this occurred when the mother was at the end of her tether.
I accept the mother’s evidence that the father would yell at her in front of X. I accept that X had said to the father on at least one of those occasions “Stop being mean to mummy”. Or X would tell the father, “Not to yell at mummy”. This is extremely worrying. This is threatening behaviour from the father to the mother – in front of the child. I note section 4AB(3) of the Act. That subsection states:-
“For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”
I note the mother's evidence concerning communication between the parents. I note paragraph 112 of the mother's trial affidavit (filed 10 May 2019) where the mother stated:-
“112. In addition, I find the volume and relentless nature of Mr Maurice's correspondence to me unyielding such that at times, it causes me to 'shut down' and feel exasperated, particularly in circumstances where Mr Maurice's communication to me unnecessarily demands responses within a tight timeframe and where he follows up matters with me if I do not respond within his stated timeframe. In order to deal with Mr Maurice's communication, I often respond to him on various matters in the one email. For example, when Mr Maurice sent an email to me on 14 November 2018 informing me that he wanted to take the children to Sydney for a weekend on the 18th and 19th of January 2019, he requested a response “by no later than 21 November 2018” and then sent me a further email following up the matter on 22 November 2018 at 7.03am.”
I note the mother’s evidence in paragraph 114 of her trial affidavit to the effect that between 11 December 2017 and 25 April 2019 the father has sent 144 emails to the mother and the mother has sent 72 emails to the father.
I also note the mother’s evidence in paragraph 109 of her trial affidavit where she stated:-
“109. Since separation, Mr Maurice has continued to communicate with me in a condescending and demanding manner which I find provocative, as it causes me to feel like I am under pressure and like I am 'in the wrong' or unable to 'speak up'. As such, Mr Maurice's conduct has created a difficult environment for us in trying to co-parent the children.”
I accept the mother’s evidence in relation to all of these issues. There is no doubt that the father needs counselling in relation to his conduct. I note the father's written submissions in this regard – including at paragraph 63 of those written submissions (filed 16 September 2019). The mother was asked about this issue during cross-examination. The father had questioned the mother in relation to the content of his email sent to the mother on 21 July 2018. A copy of this email appears at page 107 of the mother’s trial affidavit (filed 10 May 2019). The mother gave her reply in answer to a question by the father (during cross-examination) and this evidence appears at pages 58 and 59 of the transcript on 19 August 2019. The following exchange took place:-
MR MAURICE:…Does that email cause you to feel undermined and under pressure, Ms Thornhill? And if so, what part of that email?
…
MS THORNHILL: I think what it is with the emails is that in this instance, I’ve sent a very simple email informing you that Y’s going to be increasing her days at day-care to three days a week, so that – letting you know that both children would then be there Wednesday, Thursday, Friday. And in response, I’ve got quite a – I guess, an – it’s somewhat aggressive email and it’s questioning my motives and the why and if I feel it’s reasonable and it’s not necessary because it’s almost like it’s trying to catch me out again on something very simply.
…
And I don’t believe that it’s necessary to be so constantly aggressive with every little thing. And this is a good example of that because it was a simple email saying Y has gone up to an extra day, which I had informed you months beforehand would be happening when it was possible.
I accept this evidence from the mother. The mother adequately explained her position. I accept that the mother may well have considered this email to be written in a “demanding” tone. I accept that it would make her feel under pressure. As the mother stated in her evidence – she had informed the father months beforehand that when it was possible it was her intention to increase Y’s attendance at day care by one day. When this finally happened and the mother let the father know – he sent an email (dated 21 July 2018) questioning the mother's motives and stating that the change had been made (in relation to Y’s one extra day of childcare) “without any consultation or prior discussion with me”. I accept the mother’s version of events. I accept that the mother did in fact raise this issue with the father some months before. The father was consulted. If the father wanted to dispute this rather minor decision (increasing the child at day care by one day per week) – then he should have taken it up with the mother in writing “months beforehand” when he was originally informed of the proposal. Given that the mother is the primary carer and was living on the Region A with the children and the day care centre is on the Region A and noting further that the father was primarily living and working in Sydney – it is unreasonable for the father to take the point and make an argument out of it. I accept the mother’s evidence.
I have had close regard to the mother's evidence in relation to family violence. In particular I note the evidence from paragraph 246 onwards in her affidavit, filed 10 May 2019. I have already made reference in other parts of the reasons for judgment to some aspects of this evidence. I had a chance to observe the mother in the witness box. I accept the mother’s evidence in relation to family violence to the extent that the father denies the mother’s assertions concerning family violence – I prefer the evidence of the mother. The mother is a more reliable witness than the father in this respect. I accept that the father behaved in an aggressive and irrational manner on occasions. I note paragraph 252(5) of the mother's affidavit. I also accept the mother’s evidence that the father made insensitive demands for sex.
The mother’s evidence relating to family violence is quite extensive. As noted, I accept the mother’s evidence in its entirety in that respect – and indeed in all respects. I particularly note paragraph 253 of the mother’s trial affidavit where the mother stated:-
“253. On 13 March 201 7, Mr Maurice sat at the front door of our home in Suburb O for an extended period of time and expressed to me that he was sitting there so I could not leave our house. As a result of where Mr Maurice was sitting I could not exit the house without having to go past him. This made me feel very threatened and intimidated. When I was eventually able to leave the house to take the children to the park, Mr Maurice followed up on his push bike to make sure I did not make any phone calls. I remember hiding in the park with the children on this occasion to speak to my parents and hoping that Mr Maurice would not find us. My parents wanted to make sure that I was OK and that the children were OK after the incident the night before.”
I accept this evidence of the mother. The mother was cross-examined about this incident. I accept the mother’s evidence in this regard. I find that the father was behaving in a manner designed to intimidate the mother.
In relation to the mother’s evidence concerning finances – I have no doubt that the father would have very closely monitored all expenditure. I accept the mother’s evidence that the father controlled the financial circumstances and that he was only willing to provide to the mother piecemeal information. I accept the mother’s evidence that the father would not allow her to have a full understanding of the financial circumstances. I have no hesitation in coming to a conclusion that the father did seek to maintain control over the family finances.
Having accepted that evidence from the mother I do not, however, consider that I have sufficient evidence before me to conclude that the father’s control of the family finances and his unwillingness to share information concerning those finances necessarily, in the circumstances of this case, amounts to family violence within the definition in the Act. Two of the examples provided in section 4AB(2) relate to finances. Those subsections state:-
“(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
…”
In relation to the father’s attitude towards the mother so far as the family finances are concerned, I have come to the conclusion that he was unreasonable and uncooperative. I do not, however, consider that the evidence is such that the Court would conclude that his conduct amounted to family violence.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The mother had initially included an order whereby she would be permitted to remain living with the children on the Region A and the father would spend alternate weekends with the children. During the course of the proceedings I asked for a new proposal from the mother in the event that the father moved to the Region A. The mother provided a draft order (Exhibit 5), whereby the father's time with the children would increase to four nights per fortnight. An order whereby the father’s time increases progressively (if he is living on the Region A) is an order which is least likely to lead to the institution of further proceedings in relation to the children in this case.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
In her first family report, Ms B came to the conclusion that the children should return to live with the mother in Brisbane. By the time of the second family report the report writer had changed her opinion. The report writer particularly noted (in evidence in Court) that the mother’s attitude had changed in the course of the 12 months between the two family reports. As noted earlier – Ms B was impressed with the mother’s improved attitude towards the father and Ms B was impressed with the significant improvement in the mother encouraging the children in their relationship with the father. This improvement was evidenced by the mother facilitating alternative weekend time with the father between the Region A and Brisbane. But it was not limited to that evidence. I note that in paragraph 171 of her most recent family report, Ms B states (inter-alia):-
“171. Ms Thornhill is willing to support the children to sustain their relationship with the father. The indications are that the children are settled in their mother's care and at school on the Region A. However it is noted that the relationship Mr Maurice would like to have with his children is equally significant, and also needs to be nurtured and supported.”
And again in relation to this issue – I note paragraph 176 of the most recent family report where the family report writer stated:-
“176. Ms Thornhill should be commended for the change in her attitude to the children's relationship with their father. She has supported the children's relationship and has driven two round trips from the Region A to Suburb D each alternate weekend and has encouraged the children to speak to their father when they are reluctant to do so.”
Further, in relation to the question of schooling – of particular note is the opinion of the report writer in paragraph 172 of her most recent report in that paragraph, Ms B stated:-
“172. As previously reported children who are transitioning from home to school during their early primary school years are at a juncture and patterns of positive or negative school performance, study habits, interest in learning, and the child's sense of self as a student and peer all take shape during these early years at school. In 2019 X commenced school at C School. He is building new social networks, relationships with his teachers and school, maintaining new friendships both at school and out of school. This is a difficult transition for any child but compounded for X if his parents are not able to amicably work through the adult dispute including the issue of the children's school. Y will be experiencing this transition in 2021. It would not be in the children's best interests to change schools at this stage in their young lives.”
I accept this opinion from Ms B. X is just finishing his prep year. Y is attending the Early Learning Centre at the C School. She commences prep in 2021. It is not in the children's best interests to change schools at this stage.
I note that under cross examination the father did accept (having regard to X’s school reports) that X appears to be well settled and happy at the C School. In this regard I note page 244 of the transcript, lines 45 and 46 states:-
“MS McMILLAN: And so – but you accept that, otherwise, he appears to be happy and well settled at school; correct?
MR MAURICE: His school report says exactly just that.”
Furthermore, I note that the father also accepted that Y is progressing well for her age at the Early Learning Centre of the C School. In this regard I note page 245 of the transcript at lines 3 – 5:-
“MS McMILLAN: Right. Okay. And that in terms of Y again at early learning centre progressing well for her age?
MR MAURICE: According to her teachers, yes, I’ve read the reports and spoken to them, yes.”
There is no evidence, at this point of time, to the effect that the parties are unable to afford private school fees. As to what happens in the future will be a matter for the parents.
In relation to this question of the attendance of the children at the C School – it is not, at this point in time, in fact a question of the religious upbringing of the children. Ms B specifically has given evidence (which I accept) to the effect that X is well settled at the school and for his own well-being should not be moved from the school. He currently has stability, at least in that aspect of his life. Y is also in the stable environment of the Early Learning Centre at the C School. The opinion of the expert is clear – the children should remain where they are. It is a best interests question related more to the stability and well-being of the children – as opposed to the question of the benefits (or otherwise) of a religious education. What the issue has highlighted – in a very clear manner – is the father’s inability to look past his own view of the world and adopt an approach more beneficial to the children – namely, leaving the religion/God issue until the children are much older and more mature.
The father was continuing to advocate for the mother to relocate to the Brisbane area. I note the conclusions of the report writer at paragraphs 178 and 179. I accept Ms B’s opinions. In those paragraphs Ms B has stated:-
“178. It is the report writer's view that the best outcome for these children at this stage is for them to remain living with their mother on the Region A and for them to spend significant time with their father to develop an important and meaningful relationship with him.”
“179. It is commendable that Mr Maurice is considering relocation to the Region A in the future to maximise his time with the children. Living in close proximity to each other and to their children's school will ensure that a future increased care arrangement is not problematic. Both parents need to fully accept that their family is comprised of two parents who have a valuable role to play in their children's future well being.”
In the event that the father is not able to relocate to the Region A – there should be an order put in place whereby the children will live with the mother and spend alternate weekends with the father – probably facilitated in Brisbane – but this will depend upon where the father is actually living. That is one of the difficulties with the case. There remains significant uncertainty in relation to the father’s place of abode.
Ms B’s view was (at least in her written report) that if the father relocated to the Region A, then there should be an increase in time progressing up to 6 nights per fortnight with the father.
During the course of her oral testimony Ms B stated her opinion had changed. She was no longer willing to support an outcome of six nights per fortnight with the father. She stated that she did not support equal time or anything approaching full-time. In this respect, I note page 211 of the transcript between lines 37 and 47 where Ms B stated:-
“Ms B: My response that it – today, having heard the new information that has been given to me, my view is that anything resembling shared care at this point in time would not be appropriate for these children. If after you’ve done all of that, at some point in the future through a process of, who knows, mediation or whatever, that might be something for consideration. But I can’t give an – an opinion on it because they’re things that you’re saying are happening in the future. If after all of this time, I’ve – I saw the family two years in a row, you had a definite view about, “I’m going to move and live on the Region A,” and you had a plan and a definite one so that I had an idea. If, in fact, you know, with the religious thing that you had – that the school issue had been determined but it – from my point of view, at this point in time, this little boy is still attending a religious school and he’s having to – he’s having to struggle with adult issues about religion. They’re not his issues. They’re adult issues about religion. If I recollect, you challenged your own exposure to religion at a much later date than this poor little boy is doing at the moment. He’s in prep. He needs – he needs to adjust to being a little prep boy.”
Ms B was particularly concerned at the ongoing conflict between the parents over the issue relating to the school. Also, she was concerned about the ongoing involvement of the father in discussing the question of religion with the young child, X. In essence, Ms B’s evidence was to the effect that this was not child focused by the father.
At the end of her evidence Ms B said – or agreed with the father – that if, in the future, he and the mother had received psychological counselling and the issues concerning the school were addressed and the issue concerning religion was addressed then at some stage in the future she might be prepared to recommend five or six nights per fortnight.
The evidence of Ms B at this stage is that the progression, over time, should only be up to 4 nights per fortnight with the father. I accept this opinion by Ms B.
The latest affidavit from the mother filed 12 August 2019 included details of X's counselling. This was one of the updating issues in Ms B’s reference to “the further information she has received”.
I note the father’s reference to the decision of the Full Court of the Family Court (per Boland J) in the case of Morgan & Miles [2007] FamCAFC 1230. I do not consider that the mother engaged in “surreptitious and misleading conduct” as alleged by the father. As noted, I accept the mother’s explanation of what occurred. The mother left Sydney to spend time with her family and take a break from the marriage. It was not until the mother had spent time on the Region A that she came to the conclusion that she would not return to the marriage. Given the findings that I have made in relation to the father’s conduct, including, in particular, the family violence engaged in by the father – I do not consider that the mother’s actions were unreasonable in the particular circumstances of this case.
The father also relies upon the first family report of Ms B. At that time the recommendation was for the mother and the children to live with the mother primarily in Brisbane. Ms B has since changed her opinion.
I note the father’s submission that he would be willing to provide substantial financial support to the mother to move to the northern part of Brisbane. There are two difficulties with that proposition. Firstly, the father does have a history of closely monitoring expenditure. Such a scenario would see the mother, once again, “tied to the father” in a financial sense. In addition, the evidence of the family report writer is that the best interests of the children are served by the children remaining living with the mother on the Region A. More particularly that it is in the children's' is best interests to remain attending the C School. This is the recommendation of the family report writer and, as noted, I accept this evidence.
Section 61DA Presumption
Section 61DA of the Family Law Act 1975 states:-
“61DA
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
I have come to the conclusion that the father did engage in family violence as defined in the Act. In those circumstances, the presumption of equal shared parental responsibility in section 61DA, does not apply. In this regard I note section 61DA(2).
Nonetheless, both parties have requested that an order be made for equal shared parental responsibility. Neither party seeks an order for sole parental responsibility.
Ms B, in her most recent family report, states at paragraph 183(a) her recommendation:-
“183. The following recommendations are not intended to be prescriptive. They are offered as a means of assisting the parents and their solicitors and the Court in reaching an outcome that is in X and Y's best interests.
(a) That the parents have joint parental responsibility for X and Y's long term welfare and needs.”
I accept Ms B’s opinion in this regard.
Notwithstanding the conflict between the parents I have formed the view that both parents have the intelligence and the capacity to improve their communication for the benefit of X and Y. An order for equal shared parental responsibility is in the best interests of the children.
Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances.
If the father moves to the Region A an order that the children live with the mother and spend time with the father progressing up to 4 nights per fortnight is an order which comes within the definition of substantial and significant time (note section 65DAA(3)). If the father is living on the Region A then such an order, would be reasonably practicable. I note section 65DAA(5) states:-
“(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
If both parents are living on the Region A – then I find that they actually have both the current and future capacity to implement an arrangement for substantial and significant time (up to 4 nights per fortnight with the father). An order for substantial and significant time (i.e. one leading up to 4 nights per fortnight with the father if he lives on the Region A) – is in the best interests of the children. I note Ms B’s opinion in this regard – which I accept. It will also be reasonably practicable.
Even if the father is living on the Region A however, the evidence is (in particular the evidence of Ms B, which I accept) that it will not be in the best interests of the children for there to be an order for equal time. The reasons have already been referred to herein. This is so even though it may have been reasonably practicable – if both were living on the Region A.
It is obvious that it would not be in the children’s best interests, and it would not be reasonably practicable for there to be an order for substantial and significant time (let alone equal time) in the event that the father is not living on the Region A.
Conclusion
To use the words of the Full Court in Adamson & Adamson (supra) (at paragraph 53) – the central findings in the present case before the Court “Do not sit conformably with a conclusion that rare or exceptional circumstances (exist) in this case, such as to justify a legitimate exercise of discretion to make (a) coercive order”. It is not in the best interests of the children to put in place an order that would require the mother to relocate the residence of the children to a location within 25 km of the Brisbane GPO.
The central findings to which I refer include:-
a)the children’s best interests are served by putting in place orders whereby the mother remains the primary carer;
b)during the course of the relationship the father engaged in family violence as defined in the Act, and as set out in these reasons;
c)notwithstanding that the father has shown some potential to improve his co-parenting skill – he continues to lack insight in relation to the impact of his conduct, including (but not limited to) his discussions with young X, in relation to religion and X's (religious) school;
d)since the time of separation (and continuing) the mother has lived with the maternal grandparents on the Region A and has obtained from her parents, a significant amount of comfort and support which assists her immeasurably in her role as the primary carer of the children;
e)notwithstanding the father’s lack of insight – the evidence of the family report writer (which I accept) is that the children have a well-established, loving, close and meaningful relationship with the father – as well as with the mother;
f)after circumstances settled down following the initial separation – the mother has worked diligently to facilitate the children’s relationship and time with the father including driving two roundtrips from Brisbane to the Region A every second weekend so that the children can spend alternate weekends with the father at the paternal grandparents’ house in the south of Brisbane (Suburb D);
g)it is common to the proposals of both parents and it is indeed, in the best interests of the children – that the children should continue to live primarily with the mother;
h)a scenario whereby the father assumed primary care (which is not sought by either party) is not supported by Ms B;
i)the mother was raised on the Region A;
j)The mother has secured employment on the Region A with child friendly hours so that she can be available to care for the children;
k)The father’s own family has a connection to the Region A – the paternal grandparents own a unit at Suburb P on the Region A. I do note that the property is tenanted;
l)the father stated his intention to move to the Region A in the event that the Court decides that it is in the best interests of the children to live on the Region A with the mother. I note the father’s evidence and comments that he felt he had a “moral obligation” to move to the Region A in that event; and
m)it is in the best interests of the children to live on the Region A with the mother and to spend time with the father each alternate weekend – unless he moves to the Region A, in which case it is in the best interests of the children for that time with the father to be increased progressively to four nights per fortnight.
I accept the evidence of Ms B to the effect that would be beneficial for the children to see both parents engaged in the delivery and collection of the children at handover at a midway point. In this regard I note page 186 of the transcript from lines 21 to 26. At that part of the evidence Ms B stated:-
“MS McMILLAN: All right. But, clearly, if it could be managed, it’s a good thing for both parents to participate in changeover in terms of making an effort to share driving, isn’t it?
MS B: Yes.
MS McMILLAN: Because it’s also symbolic, isn’t it, that children see parents participating in that?
MS B: That’s correct.”
Ms B's evidence at the trial (as noted above) makes it clear that her (Ms B’s) opinion is that handover at a midway point (say Town Q) is in the best interests of the children. The Court’s decision in relation to the handover point is made significantly more difficult because of the fact that the father’s plans and his residence are not at all well-settled. He remains working in Sydney; his parents live at Suburb D; he wants the children (and effectively the mother) to relocate to Brisbane (even though he may not be living in Brisbane); he has commenced a relationship with a woman who lives at Town R on the Region S. The unsettled situation in relation to the father's domicile brings an added complexity to the question of changeover. My view that the changeover should occur at the midway point (i.e. Town Q) (in the event the father is not living on the Region A) is reinforced by the fact that the father gave evidence that he will work in Brisbane from Wednesday through to Monday each alternate week. This, it seems to me, will make it significantly more likely that a changeover at Town Q is reasonably practicable for both the mother and the father.
I will give the parties time to submit draft orders reflecting the Reasons for Judgment.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 19 December 2019
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Family Law
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Statutory Interpretation
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Duty of Care
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