Vince and Vince
[2016] FCCA 2590
•7 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VINCE & VINCE | [2016] FCCA 2590 |
| Catchwords: FAMILY LAW – Parenting issues – relocation. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC(2) & (3), 65DA(1), (2) & (4), DAA(1), (2), (3) & (5) |
| Cases cited: B & B (1997) FLC 92-755 |
| Applicant: | MR VINCE |
| Respondent: | MS VINCE |
| File Number: | ADC 4545 of 2007 |
| Judgment of: | Judge Mead |
| Hearing dates: | 5 & 6 November 2015, 25 January 2016 |
| Date of Last Submission: | 25 January 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 7 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cocks |
| Solicitors for the Applicant: | Ian Charman & Associates |
| Counsel for the Respondent: | Mr Richards |
| Solicitors for the Respondent: | CG Family Law |
| Counsel for the Independent Children's Lawyer: | Ms Lee |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
That all previous orders be and the same are hereby discharged.
That the father and the mother have equal shared parental responsibility for the children X born (omitted) 2001 and Y born (omitted) 2004 (“the children”).
That the said children live with the mother.
That the mother be at liberty to relocate the children to reside in the Adelaide Metropolitan Area as and from the gazetted conclusion of the 2017 school year.
That pending the children relocating to reside in the Adelaide Metropolitan Area the children spend time with and communicate with their father:
(a)During school term time from the conclusion of school each alternate Wednesday until the commencement of school the following Monday in accordance with the existing pattern;
(b)From the conclusion of school on the last day of each of Terms 1, 2 and 3 until 5:00pm on the middle Saturday of each short school holiday period NOTING THAT the terms of paragraphs 5(c) hereof will prevail over the Easter period;
(c)In 2017 from the conclusion of school on the Thursday before Easter (or 3:00pm if not a school day) until 3:00pm on Easter Saturday;
(d)From the conclusion of school on the last day of Term 4 until 5:00pm seven (7) days after that date and on each alternate week thereafter between the same times during the December/January 2016/17school holiday period NOTING THAT the terms of paragraph 5(e) hereof will prevail in the Christmas week;
(e)From 3:00pm on Christmas Eve until 3:00pm on Christmas Day in 2016 PROVIDED THAT the children are in the care of the mother from 3:00pm on 25 December until 3:00pm on 26 December in 2016;
(f)By telephone at 5:30pm on the occasions of each of the children’ birthdays, the father’s birthday and Father’s Day in the event that the children are not otherwise in the care of the father on those days NOTING THAT in the event the children are in the father’s care on any of the children’s birthdays, the mother’s birthday or Mother’s Day the mother shall be at liberty to speak with the children by telephone at 5:30pm that day.
That pending the children relocating to reside in the Adelaide Metropolitan Area paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 20 and 21 of the Order of 16 June 2010 remain in full force and effect.
That the parties use a communication book and/or email to relate information as to day to day and long term care, welfare and development of the children.
That upon the said children relocating to reside in the Adelaide Metropolitan Area after the gazetted conclusion of the 2017 school year the said children spend time with the father as follows:
(a)For the Christmas holiday period in each year as follows:
(i)Commencing in the 2017/18 Christmas school holiday period, for the first half of the period between the conclusion of fourth term in 2017 and 3:00pm on 24 December 2017 and each alternate year thereafter between the same times;
(ii)Commencing in the 2017/18 Christmas school holiday period for the first half of the period between 3:00pm 25 December 2017 and the commencement of the first school term in 2018 and each alternate year thereafter between the same times;
(iii)Commencing in the 2018/19 Christmas school holiday period for the second half of the period between the conclusion of fourth term in 2018 and 3:00pm on 25 December 2018 and each alternate year thereafter between the same times; and
(iv)Commencing in the 2018/19 Christmas school holiday period for the second half of the period between 3:00pm on 26 December 2018 and the commencement of the first school term in 2019 and each alternate year thereafter between the same times.
(b)As and from the commencement of the 2018 school year during school term time as follows:
(i)Commencing on the third weekend of each new school term, from the conclusion of school Friday to the commencement of school the following Monday within 40 kilometres of the Adelaide General Post Office, with the time to extend to the commencement of school on Tuesday in the event the time falls on a long weekend and with the father to be at liberty to take the children to (omitted) during that long weekend PROVIDED HOWEVER that the father facilitate the children’s attendance at all school and extra-curricular sport activities and, in the event of seven days written notice to him of same, their reasonable social activities; and
(ii)That the father be at liberty to increase the time the children are to spend with him pursuant to paragraph 8(b)(i) hereof on each of those weekends such that it extend for up to five consecutive nights commencing at the earliest on the Wednesday preceding the weekend in question PROVIDED HOWEVER that:
(ii.i)Such time is to be taken within 40 kilometres of the Adelaide General Post Office;
(ii.ii)The father provides to the mother not less than fourteen (14) days’ notice in writing of his intention to so extend the time and for how long; and
(ii.iii)The father obtains appropriate accommodation for the extended stay and facilitates the children’s attendance at school on time on each school day and facilitates their attendance at all school and extra-curricular sport activities, and in the event of seven (7) days written notice to him of same, their reasonable social activities.
(c)From the conclusion of school on the last day of each of Terms 1, 2 and 3 to 5:00pm on the middle Saturday of each short school holiday period commencing in April 2018 NOTING THAT the terms of paragraph 8(d) hereof will prevail over the Easter period; and
(d)From the conclusion of school on Maundy Thursday to the commencement of school on the Tuesday immediately following Easter (unless same falls during the school holiday period when the children are in the care of the mother in which circumstances the time shall conclude at 9:00am on the Tuesday immediately following Easter Monday) in each alternate year commencing in 2018 PROVIDED HOWEVER that the children will be in the care of the mother during the same period in 2019 and each alternate year thereafter.
That the children communicate with the parent with whom they are not living at 5:30pm on the occasion of each of the children’s birthdays, the parents birthdays and Mother’s Day and Father’s Day each year by way of the parent with whom they are living facilitating such communication or ensuring the children facilitate such communication by way of their own mobile telephones.
That as and from the time the said children relocate to reside in the Adelaide Metropolitan Area all handovers that do not occur at the children’s schools occur by way of the mother delivering the children to the home of the maternal grandparents and the father collecting them therefrom at the commencement of any such time the children are to spend with the father and by of the father delivering the children to the home of the maternal grandparents and the mother collecting them therefrom at the conclusion of any such time, SAVE AND EXCEPT in the event that the father has moved to reside in an area closer to the Adelaide Metropolitan Area than (omitted) when and in such case handovers will occur outside of a business or café in the town closest to which the father may reside.
That upon the said children locating to reside in the Adelaide Metropolitan Area after the gazetted conclusion of the 2017 school year paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18 and 21 of the order of 16 June 2010 and paragraph 7 of this order remain in full force and effect.
That in the event that subsequent to the said children relocating to reside in the Adelaide General Post Office after the gazetted conclusion of the 2017 school year the father relocates to premises no further from the Adelaide Metropolitan Area than 40 kilometres THEN AND IN SUCH CASE paragraph 5(a) of this order continue in full force and effect in lieu of the terms of paragraph 8(b)(i) and 8(b)(ii) PROVIDED HOWEVER that paragraph 8(b)(ii.i) and 8(b)(ii.iii) shall remain in full force and effect.
That the order for Independent Children's Lawyer made herein be discharged as and from the finalisation of any pending Application in a Case.
That all extant Applications SAVE AND EXCEPT as to paragraphs 2 and 3 of the father’s Application in a Case filed herein on 19 September 2016 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Vince & Vince is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4545 of 2007
| MR VINCE |
Applicant
And
| MS VINCE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr and Ms Vince have two children X who is now aged 15 years and Y aged 12 years. The parties commenced litigation with respect to parenting issues in August 2007. Extensive interim orders were made by consent on 8 October 2008. These orders included an interim order for sole parental responsibility in favour of the mother.
As a result of the increasing complexities in the matter an Independent Children's Lawyer was appointed for the children on 16 June 2009. At the trial on 16 June 2010 final orders were made by consent after negotiation. These orders included a discharge of the order for Independent Children's Lawyer.
The order provided inter alia for the children to live with the mother and spend time with the father for four nights each fortnight during school term time and for half of school holiday periods as well as on special occasions.
In late 2014 the mother unilaterally relocated the children to the Adelaide Metropolitan Area from (omitted). On 30 December 2014 Mr Vince filed an initiating application seeking, on an interim basis, to prevent the mother from relocating the place of residence of the children to Adelaide and an order that the children live with him. On a final basis he sought an order that the children live with him.
In the mother’s response she sought to have sole parental responsibility for Y and X and for them to live with her in Adelaide. She proposed the children spend time with the father from Friday evening to Sunday evening each alternate weekend with handovers in Adelaide and that otherwise existing orders in relation to school holidays and special occasion time essentially stay the same except for a slight variation to Easter time spending.
On 10 March 2015 the Court re-ordered an Independent Children's Lawyer.
On 7 April 2015 after argument on the papers an interim order was made requiring the mother to return the children’s principal place of residence to (omitted) as and from the commencement of Term 2 of the 2015 school year.
The matter came on for trial before me on 5 November 2015 continuing on 6 November 2015 and 25 January 2016.
Background
Mr Vince is 47 years old and Ms Vince is 45 years old. The parties were married on (omitted) 1999 and separated in February 2007. The separation followed upon a significant deterioration in the father’s mental health during a lengthy period of unemployment arising from a work place injury.
At the time of separation the mother alleged and it was conceded that the father was violent towards her. A short time later he was admitted to hospital for treatment with regard to a psychiatric condition. Subsequent to his discharge from hospital he spent some months in Darwin where his parents resided. The father received treatment in Darwin for a diagnosed Bi Polar Disorder condition.
The father subsequently returned to (omitted) to reside in the latter part of 2007. In the early part of 2008 the mother and the two children moved to rental accommodation in (omitted) and at the time of the making of the consent order on 16 June 2010 the mother, the children and the father all resided in (omitted).
The first return date of the father’s application seeking that the mother return the children to reside in (omitted) was on 19 January 2015, at which time the parties and the children were ordered to attend upon Ms M on a private basis for a Child Inclusive Conference pursuant to Section 11F of the Family Law Act 1975 (as amended).
A memorandum as to that intervention was before the Court when interim orders were made on 7 April 2015 providing for the mother to return the children’s principal place of residence to (omitted) by the beginning of Term 2 of the 2015 school year. The mother was also ordered to do all things necessary to effect the enrolment of X at (omitted) High School as and from the start of Term 2 of 2015 and the enrolment of Y at (omitted) Primary School as at the same date. The Court varied the place of handover to the (omitted) at (omitted).
The Independent Children's Lawyer was ordered to facilitate the obtaining of a Family Assessment Report from Ms M. This was filed by the Independent Children's Lawyer on 14 August 2015.
The effect of the orders of 7 April 2015 was to restore the operation of the final consent orders of 16 June 2010.
Issues at Trial
Both parties prepared case outline documents and tendered same at the commencement of the trial. The applicant father’s position changed when it became clear that in the event the Court did not permit the mother to relocate the children’s residence to Adelaide she would remain in (omitted).
His position at the time of summing up was that sought an order for equal shared parental responsibility but he accepted the children would remain living with the mother. He sought that they remain living in (omitted). He sought an order that the children live with him for five consecutive nights per fortnight commencing at the conclusion of school Wednesday and concluding at the commencement of school the following Monday.
He also proposed that the children continue to spend one half of each school holiday period with him and an order that the mother be restrained from changing the children’s residential address from (omitted), as well as what might be described as “usual orders” providing for the children’s time to be shared between their parents on Christmas Eve, Christmas Day and Boxing Day in each year. The father sought an order that the parties communicate regarding the children by email.
The father was adamant that he was not prepared to move either to Adelaide or to somewhere near to Adelaide such as the (omitted). It was hard to gain a clear understanding of the father’s position in terms of the time he sought to spend with the children during school term time in the event that the mother was able to relocate with them to Adelaide.
In her final submission his counsel noted that Ms M did not see much difference between four and five overnights per fortnight and that the mother had conceded that she would agree to five overnights per fortnight if she and the children moved to Adelaide.
In the case outline document tendered on behalf of the father he sought, in the event that the mother relocated to live more than 50 kilometres from (omitted) that the children spend time with him on every third weekend from 8:00pm Friday until 5:00pm Sunday (or Monday in the event that the Monday immediately following such a weekend is a public holiday), and on each alternate long weekend from 8:00pm in the day immediately preceding the commencement of the long weekend until 5:00pm on the final day of the long weekend.
Ms Lee, counsel for the Independent Children's Lawyer, asked the father in cross-examination what his proposal was in the event that the mother was able to relocate with the children to Adelaide. His answer mainly related to the stresses that would be upon him if he moved to Adelaide or nearby and he expressed thoughts of perhaps having a rental property in Adelaide and renting or buying a property in (omitted). He was clearly distressed in even contemplating such a scenario.
There was no doubt that from the father’s perspective he found it very difficult to contemplate how time the children spent with him during the school term time would work in the event the children relocated to Adelaide to live with the mother.
At the time of trial the mother sought orders for sole parental responsibility and for the children to live with her.
She sought leave to relocate to Adelaide with the children and orders that the children spend time with the father during school term time on alternate weekends and for half of the mid-year school holidays and three weeks during the Christmas school holidays. She conceded four overnight periods on each alternate weekend.
She sought orders that the parties be restrained from discussing the proceedings with the children and that other than in the event of an emergency they communicate solely by use of a communication book. She sought that the communication book use be limited to issues pertaining to the care of the children and that the father be restrained from taking either of the children to a treating medical practitioner other than in the event of a medical emergency. Ultimately she conceded in cross-examination that communication by email may also be a good idea.
It was the mother’s position that it was in the children’s best interests to move with her to the Adelaide metropolitan area in terms of their education and general opportunities, and that such a move would benefit her employment opportunities such that the children would also benefit.
It was her case that there was nothing preventing the father from moving either to the Adelaide metropolitan area or to a semi-rural area near to Adelaide such that the children’s time with him was not reduced due to travel. When counsel for the Independent Children's Lawyer put to her that what she really expected was for the father to fall into line with her proposal she agreed that she thought it was best that he moved.
The father was adamant that he was not in a position to move either to Adelaide or to a semi-rural area near to Adelaide for reasons relating to both physical and psychological health.
At the time the proceedings commenced it was the father’s position that he could not afford to move to Adelaide or anywhere nearby. The father told Ms M in March of 2015 that he received a disability pension, paid a comparatively low rent in (omitted) and could not afford to make the 700 kilometre round trip from (omitted) to Adelaide every fortnight. He also told Ms M that he had nowhere in Adelaide that he could stay with the children on alternate weekends.
When she spoke with Mr Vince again in June of 2015 she reported on page four of her second report
“…that his financial problems have been difficult. He was travelling 700 kilometres to pick the children up to bring them back, as well as paying for motel stays. Mr Vince said he has borrowed some money from his parents. His dad still works and he has delayed his retirement to help Mr Vince…”
Mr Vince swore his trial affidavit, filed 20 October 2015, on that same day. He deposed to his financial circumstances and issues in relation to his Work Cover claim in paragraphs 25 to 34 of that affidavit. He deposed in paragraph 29 to having recently been approved to receive on-going weekly payments from Work Cover Victoria and to the fact that he was to receive back-pay for the payments that were stopped some years previously, as well as being reimbursed for medical and associated expenses.
Mr Vince was cross-examined at length as to those financial matters. It was abundantly clear from his evidence that he had deliberately avoided providing details of his Work Cover settlement to the mother or her legal practitioners prior to trial notwithstanding numerous requests for same.
He conceded that at the time of trial he was receiving a weekly payment of $1,570, that he had received a settlement of $80,000 in 2011 with respect to a serious injury claim and had received the sum of $760,000 by way of settlement after an agreement in principle on or about 2 June 2015. He said that he had to reimburse Centrelink $140,000 from those funds and that after tax and legal fees he retained something over $400,000 which he received in late July 2015.
He conceded in answer to a question from the Court that he did not want to tell the Court or the mother’s legal representatives that information.
When asked by the mother’s counsel why he did not tell Ms M that the financial impediment to him moving to Adelaide or its environs had been removed, he said there were other reasons why there were impediments to moving, including his stress levels.
When it was put to Mr Vince in cross-examination as to whether it had occurred to him that the information about his financial situation should have been put before the Court, he replied that it did not count for who was the better parent.
I am satisfied that the Mr Vince knew in advance of his appointment with Ms M on 12 June 2015 that he was to receive a substantial sum in settlement of his Work Cover claim, as well as receiving on-going weekly payments.
I am satisfied that he deliberately withheld that information from Ms M, the mother’s legal representatives and from the Court. I find there is no financial impediment to the father moving to Adelaide or somewhere near Adelaide in the event that the mother is permitted to relocate the children to live with her in Adelaide.
The mother was clear in her evidence that in the event that the Court decided against the relocation of the children to Adelaide she would remain in (omitted). In those circumstances the father did not pursue the question of the children living with him because whatever the Court determined the children would be living with the mother either in (omitted) or in Adelaide and continuing to spend time with him either in Adelaide or in (omitted) or both.
Relevant Legal Principles
Part VII of the Family Law Act 1975 (as amended) provides the legislative framework within which the court determines the parties competing parenting proposals. Section 60B(1) sets out the objects of the Act as regards children’s orders, namely to ensure that the best interests of the children are met by:-
a)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and
b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential;
d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the object are set out in Section 60B(2) and provide that, except when it is or would be contrary to the child’s best interests:-
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order. [1] To determine the best interests of a child the court must consider the factors set out in section 60CC(2) and (3) of the Act.
[1] Section 60CA
Section 61DA of the Family Law Act 1975 provides that 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’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in abuse of the child or family violence, and may be rebutted if the court is satisfied that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility. [2]
[2] Section 65DA(1)(2)(4)
In the event that an order is made for equal shared parental responsibility the court must consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practicable for this to occur. [3]
[3] Section 65DAA(1)
If the court determines that such an order is not in the child’s best interests, it must consider whether it would be in the child’s best interest to spend substantial and significant time with each parent and whether that is reasonably practicably. [4]
[4] Section 65DAA(2)
The Act defines what is meant by substantial and significant time, [5] and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable. [6]
[5] Section 65DAA(3)
[6] Section 65DAA(5)
All of those issues must be considered in this case against the backdrop of the requirement that the parting order the Court makes must be in X and Y’s best interests, as determined in accordance with the provisions of Section 60CC of the Act, being mindful of the objects of the Act and the principles underlying those objects.
This case involved an application for relocation. As was made clear by the Full Court in B & B (1997) FLC 92-755 at p84,194:
“Relocation cases are not are not a separate category within the Family Law Act…each is a case under Part VII relating to the best interests of the children but within a particular context and,…is to be determined in accordance with the principles contained in that Part.”
Evidence and Findings
It is convenient to deal with the areas of dispute in this matter by way of considering the parties evidence as it applies to the relevant provisions of the legislation.
Section 60CC(2) – Primary Considerations
a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
The orders proposed by each of the parties contemplated the children having a meaningful relationship with the other of them. The orders that have been in place since June 2010 have provided for the children to live with the mother but spend substantial and significant time with their father including four overnight periods in each alternate week during school term time, special occasion time and half of school holiday time.
The orders conceded by the mother would not reduce the amount of time the children spend with their father during school term time but there would be a significant travel component that does not currently exist. They would also remove existing specific provisions with respect to the children’s time with each parent at Easter. She would otherwise largely continue the orders of June 2010, save of course that her proposal encompasses her and the children living in Adelaide.
I find that it is inherent in the proposals of each of the parties that they acknowledge that it is to the benefit of both X and Y to have a meaningful relationship with the other of them. There is no doubt that the mother continues to have a high level of concern and disdain as to the father’s parenting capacity but other than at a practical level relating to the distance between (omitted) and Adelaide she does not effectively seek to reduce the children’s time with their father. She acknowledges both children love their father and would, particularly Y, like to spend more time with him.
Ms M noted on page ten of her report dated 9 August 2015 that “observed interaction indicates that the children relate well to each parent, and both Ms Vince and Mr Vince are warm, responsive and engaged with the children. The indications are that the children have a warm and loving relationship with each of their parents.”
I find on the evidence that the children have a good relationship with both of their parents and that it is to their benefit to have a meaningful relationship with both parents. Such finding is consistent with the view expressed by the Independent Children's Lawyer.
b) the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence.
There is no doubt that at the time of separation the relationship between the parties was extremely tense and there is no dispute that an incident of family violence occurred at the time of separation. The mother obtained an intervention order which expired in May 2009.
The mother’s affidavit raised numerous examples of what might be referred to as “harassment and bullying” of her by the father in more recent years but for the purposes of these proceedings I am not satisfied that there is a need for orders to be framed in such a way that they protect children from physical or psychological harm or abuse, neglect or family violence or exposure thereto.
On page six of Ms M’s report she noted that “…when asked, X said he ignores his parents conflict and said that emotionally he is managing adequately…”
On page five of the same report Ms M reports asking Y whether his mum and dad are friends or whether they are fighting. She reported “…Y told me that they are fighting. When I asked how he knows this, he was silent and he looked sad…”
I am satisfied that both X and Y would be grateful if their parents could learn to put aside their differences and communicate effectively and respectfully so that the emotional burden clearly carried by both boys but in particular by Y could be minimised.
Section 60CC(3) – Additional Considerations
a) any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.
The Court had the benefit of X and Y being interviewed by Ms M on two occasions during 2015 and their comments and views recorded firstly in her memorandum and secondly in her Family Assessment Report.
In her memorandum dated 4 March 2015 Y reported that things were not as good in Adelaide as he did not get to see his father as much and that if he could change anything he wanted to spend more time with his father.
He was of the view that the family should return to (omitted) because both he and X had lots of friends in (omitted). Y expressed a view that he missed his father more than he missed (omitted) and did express a view that the new school in Adelaide was a little better than that in (omitted). He commented that he had already made friends at the new school.
X commented to Ms M that he was very positive about (omitted) High School and he liked the shopping, lots more people and lots more events in Adelaide.
He expressed concern about driving back and forth between Adelaide and (omitted) to spend time with his father and commented that the two overnight periods that he spent with him when he and Y and the mother were living in Adelaide was not the amount of time he would like to spend with his father.
X expressed a very positive relationship with his father saying that they had lots in common. X expressed a preference to return to live in (omitted) if school was not factored into his thinking process but if it was, his preference was to stay in Adelaide and have the father move to Adelaide to live.
X and Y spoke to Ms M again on 12 June 2015. By that time they were back living in (omitted) pursuant to the Court order of 7 April 2015. Ms M reported Y as being positive about being back in (omitted) again. She reported on pages 4 and 5 that he was liking it back at (omitted) school because all of his friends were there and he was happy living with his grandparents. He said he really did not want to change anything at that time but that he did not mind if things did change. His thought was that the change could involve seeing his dad more.
Y was not able to express anything that he missed not being in Adelaide when asked by Ms M. He was not sure about a suggestion put by her about living with his dad and seeing his mum for four nights a fortnight. He was also unsure about how it would be if he lived with his parents a week-about basis. Ms M commented that he continued to present as sad about his knowledge of his parents fighting, although he did not specifically answer her question in that regard.
In discussions with X as reported by Ms M on pages 5 and 6 of her Family Assessment Report, he was unable to specifically say whether he would prefer to be back at (omitted) High School rather than at (omitted) High School and said he is “kind of torn.” Overall however he said he would like to be back in Adelaide not because he was especially keen about (omitted) High School but that he liked being in a place where he considered the shops were better as well as there being more community events.
Ms M asked X if he could express on a scale of zero to ten how much he liked being at (omitted) High School. He said five, and he would rate (omitted) High School at five as well. He rated being in (omitted) as six out of ten and being in Adelaide as six out of ten.
When asked if everybody remained living in (omitted) he liked the idea of living with his parents for equal time on a 50/50 basis, he said he would like that even if his parents continued to disagree about what should happen. He said that was because it was even.
X said when asked that he was not in favour of a reversal of his care arrangements such that he lived primarily with his father and spent four nights a fortnight with his mother.
Ms M described him as being open to spending five nights per fortnight instead of the existing four with his father but she opined that he was clear he did not want to be living mainly with his father.
X said to Ms M as reported on page six of her report, that the problem that he had was that when he was in (omitted) he wanted to be in Adelaide and when he was in Adelaide he wanted to be in (omitted) with his dad. In answer to a question from Ms M he said the important thing was being with dad rather than not being in Adelaide. X told Ms M that he would not want mum to live in Adelaide and him to stay living with dad in (omitted) but he confirmed that his relationship with his father was important.
At the time of the June interviews X was aged 13 ¾ years and Y just over 11 years. In cross-examination Ms M agreed with the father’s counsel that there was no suggestion that the children had been coached or influenced in their views in any way.
She agreed with the suggestion that as the children got older they may want more time with their father and that it was important that he was accessible to them.
She agreed in principle with the suggestion of the father’s counsel that it would be good for the children to spend five nights a fortnight with their father but said she had concentrated in her report about the impact on the children of re-location rather than the issue of four nights or five nights per fortnight.
She did not consider that the children spending two nights per fortnight with their father was sufficient and was of the view that such a circumstance would make them sad and upset and not be what they want. She did not however consider that they would “unravel”.
This was in the context of the father’s counsel suggesting that was what would happen if the mother was able to move to Adelaide with the children and the father simply refused to move to Adelaide under any circumstances.
Ms M was also cross-examined by counsel for the mother, Mr Richards. Ms M agreed that from the mother’s point of view her proposal to move to Adelaide with the children was genuinely what she considered would be best for the children.
She agreed that the concept of best interest of children included a whole range of factors and not just the children’s wishes. She agreed with his suggestion that the father had conceded that even if the children returned to (omitted), week-about living arrangements were not workable.
When it was put to her by Mr Richards that it was better for the children if they and the mother were able to work and study near to where they lived she agreed, but said the issues became more vexed if it meant that such an arrangement would mean the children would spend less time with the father.
She agreed that the mother’s aim in continuing her study to enhance and develop her own chances of suitable remunerative employment and to expand the children’s opportunities were appropriate issues in this matter.
Mr Richards put to Ms M that if the father lived near Adelaide, perhaps in a semi-rural area (for example the (omitted)) and the mother and the children lived in Adelaide, such an arrangement would allow for the children to continue spending four days each alternate weekend with the father and that such an arrangement would be the best outcome.
Ms M agreed. She said that if the children were with the father in a rural or semi-rural area and the mother was able to get on with her studies and X attend at school in Adelaide that would more desirable. She agreed that the current arrangements provided well for the father but not for the proper aspirations of the mother.
Taking all of those matters into account I am satisfied that:
a)The children love both of their parents;
b)They are very comfortable in their current living arrangements in (omitted);
c)X is ambivalent about whether or not school in Adelaide or (omitted) is better, but certainly enjoyed his time at (omitted) High School and enjoyed what he perceived to be the additional lifestyle opportunities that would be available to him in Adelaide;
d)Y is still at an age where those bigger and better opportunities as perceived by X are not as important to him and he is clearly concerned about having less time with his father;
e)X was particularly concerned to ensure that he presented as being “fair” to both of his parents;
f)The choices X and Y have to face in the circumstances of the positions taken by each of their parents in these proceedings are very difficult and the Court is of the view that it should be cautious as to the amount of reliance to be placed on the wishes of the children.
g)Both children do everything possible to rise above their parents on-going disputes which make Y in particular sad.
In those circumstances although the wishes of the children are important, I do not find that they should be the defining element of the decision making process in this matter.
b) the nature of the relationship of the children with:
each of the child’s parents; and
any other persons (including any grandparent or other relative of the child).
I find for the reasons already stated that both X and Y have a close and loving relationship with each of their parents. I am satisfied that their primary day-to-day needs are met and have been met since separation by their mother.
I find that the reluctance of both of the children to vary their living arrangements so that they primarily live with their father rather than with their mother is to a great degree reflective of their understanding that their mother is the parent better suited to meeting the demands of the day-to-day parenting. They are fully aware their father loves them dearly but struggles on occasion with managing his own day-to-day needs as a result of the depressive elements of his diagnosed psychiatric disorder.
The evidence overall was clear in supporting a finding that it is the mother who since separation has almost solely attended to the children’s day-to-day care, needs, educational requirements and social and extra-curricular activities. The father has had a much more limited input into those aspects of the children’s care, although he gave evidence in cross-examination as to the activities they share.
The children both love their father very much. They clearly both enjoy their time with him and share interests with him.
At the time of trial the children had been living with their maternal grandparents as well as their mother for some considerable time. I am satisfied that the children have a close and loving relationship with their grandparents. This was referred to in the second report of Ms M.
The father does not view the maternal grandparents in a positive light and in cross-examination said that he did not trust them. That is another unfortunate aspect of this matter from the children’s perspective.
I find that the children have always relied and continue to rely on their mother for all significant practical aspects of their day-to-day care and that it would be in their best interests to continue to do so.
c) the extent to which each of the child’s parents has taken or failed to take the opportunities:
to participate in make decisions about major long term issues in relation to the children;
to spend time with the children; and
(iii) to communicate with the child.
I find that there was really no significant issue between the parties concerning making any decisions as to any major long term issues in relation to the children until the mother’s unilateral decision to relocate to Adelaide at the end of 2014.
On 7 April 2015 I delivered ex-tempore reasons for my order requiring the mother to return the children’s principal place of residence to the town of (omitted) in South Australia as and from the commencement of Term 2 of the 2015 school year.
Those reasons were given and orders made after argument on the papers only and in circumstances where the Court had a short memorandum from Ms M as to the children’s views about the matter.
The mother gave evidence in her trial affidavit and was cross-examined as to any communication or lack thereof she had with the father prior to physically moving the children to Adelaide.
I find, as conceded by the mother to counsel for the Independent Children's Lawyer in cross-examination, that between April 2014 and 20 October 2014 the mother tried to hide significant information from the father with respect to her intentions to relocate. This information included an application for X to be accepted into a gifted children’s program at (omitted) High School.
She agreed that at no time prior to October 2014 had she approached the father for his views on her proposed relocation with the children to Adelaide and when it was put to her that she made the arrangements hopeful that the father would follow her to Adelaide like he had to (omitted) she said that it wasn’t her hope but her belief. She agreed however that she knew by at least late 2014 that the father was not renting any accommodation in Adelaide.
The mother conceded that there were no problems with the children’s schooling in (omitted) in 2014 or with their social activities and that the only real reason she had for wanting to relocate to Adelaide was to pursue her studies.
I find that the father had made repeated attempts over several months in 2014 to communicate with the mother as to her intentions for X’s attendance at high school as and from the 2015 school year. I find that the mother had been deliberately evasive with respect to providing such information. I find that she was so evasive because she knew that the father would not consent to her proposed move.
The effect of that was that the father was prevented from being involved in making a decision about major long term issues with respect to the children, namely a change of their residence from (omitted) to Adelaide, a distance of some 330 kilometres, the associated changes to their schooling and the possible impact on the amount of time that they could realistically spend with each parent.
I find that otherwise both parties complied with the final consent order of 16 June 2010 as to the time the children were to spend with each of them.
At the time of the making of that order a previous interim order for sole parental responsibility in favour of the mother was not discharged. The mother initially advanced a position based on what she said was a belief that she had the right to make the decision to move to Adelaide with the children because of that order.
I reject that position in its entirety. I find that overall the mother has a very low opinion of the father and was hopeful that if she simply took the children and moved he would, as he had done in 2007, follow them.
In answer to a question from the father’s counsel as to whether she had trouble giving the father any credit for what he did with the children she agreed that she did.
When the mother conceded in cross-examination that both children wanted to spend more time with the father, that she accepted those views but had done nothing to cause the children to spend extra time with the father since reading of those issues in the report of Ms M she replied that with court orders in place and significant ongoing conflict there was no need to offer for the children to have extra time with the father and that she did not honestly believe it was in the children’s interests in any event.
I find that the father has a genuine interest in the wellbeing of the children and that he genuinely attempted to ascertain from the mother for many months prior to October 2014 her ideas as to what would be best for, in particular, X’s schooling when he went to high school in 2015. I find he had a genuine desire to be involved in that discussion and decision.
I accept that the mother found the father’s correspondence and attempts to communicate with her overwhelming and overbearing at times, but her refusal to enter into respectful and sensible negotiations with the father I find fuelled the father’s increasing agitation and increased efforts to communicate.
I find the mother conveniently determined to adopt a belief that she had the sole decision making power with respect to the children’s move to Adelaide and their change of education institution and determined to prevent the father being involved in that process, as she knew that he would not agree to her proposals.
I find that it is important for the children and in their best interests for there to be an order for equal shared parental responsibility so that both parties are clear that there needs to be consultation about major long terms decisions concerning the care, welfare and development of the children.
I find that these are parents who both love their children, the children love them and that both parents are concerned as to the care, welfare and development of their children on both a short term and long term basis.
There is no doubt that the mother has made most of the decisions and that it is the mother who attends to most of the children’s care needs. Nevertheless, the father is a parent who wants to be involved in the decisions, who has attempted to be so involved and has been thwarted in those attempts, least with respect to the significant issue of the move to Adelaide by the mother.
ca) the extent to which each of the child’s parents has fulfilled or failed to fulfil the parents obligations to maintain the child.
At the time of trial the father was not paying child support. His evidence was that he had contacted the Child Support Agency when he had either received his lump sum payment or began receiving further weekly payments.
His evidence about his finances was totally unsatisfactory. Not only had he deliberately avoided disclosing any financial information to the mother’s solicitors prior to trial but he was exceedingly coy in that regard at trial and it was difficult to ascertain exactly what his financial circumstances were at the time.
It appeared from cross-examination that there were ongoing disputes with the Child Support Agency and/or the SSAT. I accept that by the time this judgment is delivered further information would have been obtained by the Child Support Agency and the matter perhaps to some extent remedied.
I find however that post-separation and to the date of trial the father was less than committed to providing funds to maintain the children.
I am satisfied that the primary financial support for the children was provided by the mother.
I consider that this is an important responsibility of parenthood and that post-separation and to the date of trial it was a responsibility primarily borne almost solely by the mother and avoided by the father.
The father’s evidence about contributions made to the costs of some of the children’s extracurricular activities illustrated an attitude on his part of expecting the mother to provide effectively all of the children’s financial support.
I find that even on the unsatisfactory evidence as to the father’s financial position at trial, he certainly had the capacity to make financial contributions to the children’s upkeep even if his offers were informal and not through the normal child support channels, but he clearly had not intentions of so doing.
d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any:
either of his or her parents; and
any other child, or other person (including any grandparent or other relative of the child) with whom she or he has been living.
This is an important factor in this matter. Adelaide is 330 kilometres from (omitted). The children, and in particular the child X, expressed concern to Ms M at his first interview with her in March 2015 that he “finds driving back and forth tedious.” (page 6).
By the time of the Family Assessment Report both children were resident back in (omitted) with the mother and the issue of travel was not a feature of their discussions with Ms M.
Mr Vince was adamant in his evidence and in his counsel’s submissions that he would not move to Adelaide, or as suggested to him by the mother’s counsel, to an area such as the (omitted) in close proximity to Adelaide.
As I have said previously, his proposals in the event of the children relocating to Adelaide with the mother were, as far as term time spending time, somewhat confusing. In the months between when the children came to Adelaide in late 2014 and went back to (omitted) for the start of Term 2 of 2015, the children continued to spend alternate weekend time with the father, with the father doing all of the travelling. This was to his credit.
The mother conceded in cross-examination that the children would be sad if they had less time with their father.
In cross-examination the mother agreed that if she and the father were both in the same location the children should be in the care of the father for four nights per fortnight. She did not agree to an extension to five nights per fortnight.
In cross-examination the mother said she had not really considered how travel and handovers would work if she and the children were living in Adelaide and the father in (omitted).. When asked to think about it in the witness box said that she supposed that one parent could travel one way and the other parent could travel the other way, or they could meet half way for example at (omitted).
She conceded that she did not offer to do any of the travelling whilst she and the children were in Adelaide in early 2015 and was unable to think of a reason why that was so. When it was put to her that she had taken the view that if the father wanted to see the children he should do the travelling, she said that she had not thought of it in those terms.
She also conceded that notwithstanding having had the memorandum of Ms M as early as March 2015 and having read it promptly, she had made no proposals to increase the children’s time with their father. This was even though she accepted the children had expressed a genuine view that they would like that to happen. She said in fact that the time the children spent with their father had decreased at his request because he said his accommodation was expensive. She said she didn’t understand why that was so as she had been of the belief he had a room at a friend’s home in (omitted).
The reality of this matter from the perspective of the children is that if the mother’s application to relocate with them to Adelaide is refused she will remain living with the children in (omitted). They will continue to spend either the same four nights per fortnight and half of the holidays that they have been spending with the father, or the Court may increase the number of nights per fortnight during term time to five. That order may have a positive effect on the children as it is in accordance with their view as to extending time with their father.
If the mother is permitted to relocate to the metropolitan of Adelaide, I find that the father is determined not to follow them. I find that that is no longer based on economic grounds but on a desire on the part of the father to remain living in a country location. He considers that to be far less stressful for him and he believes that he is more easily able to manage his mental health challenges. I find that this belief is very strong and impacts on his ability to see things from any other persons perspective, including the children’s.
I am not satisfied that travelling from Adelaide to (omitted) and return on a fortnightly basis is in the best interests of the children, particularly at X’s age when he will have more of his own interests and activities on weekends.
I find that school holiday time with the father could continue in its existing form in circumstances where travel for block periods of time is not onerous.
The reality for the children would be that at best if they lived in Adelaide with their mother they would only be able to spend one weekend every three or four weeks with their father in (omitted) and it would have to be from after school Friday to something like 5:00pm on Sunday or the commencement of school Monday so as not to interfere with the children’s schooling.
I am not satisfied on the father’s evidence that the Court could even contemplate an order in the alternative, namely that if he lived within for example 50 kilometres of the Adelaide GPO the children continue to spend four nights or even five nights per fortnight in his care. I would be concerned that such an order may create uncertainty and may raise in the children hopes of the father following that course, which on the evidence I do not consider to be realistic. That may result in the children facing significant disappointment.
An order however that may be in the best interests of the children in the event that the mother was able to relocate to live with them in Adelaide would be the ability of the children to spend four consecutive nights with the father no more than once every two weeks upon the father giving notice to the mother of his intention to take the time not more than seven days prior to the relevant Thursday and on the proviso that the father took the children to any extracurricular sport or social activities to which they had already committed for that weekend. That time would have to be taken in the Adelaide metropolitan area.
An order providing for the children to reside in the Adelaide metropolitan area with the mother would have the inevitable result of the children spending significantly less time with their father. Unless he was prepared to spend some time with the children in Adelaide during school term time. They have no burning desire to reside in Adelaide and would be disappointed and sad if their time with their father was reduced.
Nevertheless, these are children who have relied on their mother for all significant aspects of their care since the parties separation in 2007. The children’s best interests are not determined solely by what they wish, but what, taking into account all of the relevant factors, is best for them.
The mother has little regard for the father. She is not confident that he can attend adequately to children’s education, health or general wellbeing. She accepts that notwithstanding all of those issues the children love their father and wish to spend more time with him.
The effect of her evidence is that she wants to improve her education and improve her job opportunities and that having done her best to follow that course whilst remaining living in (omitted), the time has come for her to need to be living in the city to finalise her qualifications and be able to obtain suitable and appropriate work close to where she lives.
The mother is entitled to live a fulfilling, productive and satisfying life herself. That of course goes directly to the ability of the mother to provide a happy, stable and supportive life for the children.
The father has no ties in (omitted). His parents live in Darwin. There was no evidence of a close knit group of friends in or about (omitted), although he does engage in some limited social activities in (omitted) and interstate.
On the face of it there is no good reason why the father could not move closer to Adelaide to facilitate the children being able to continue to see him for either the same amount of time or even slightly more than they currently do pursuant to existing orders. He seems however determined not to do so.
I find that the mother’s proposal to relocate to Adelaide with the children has, as a result of the father’s attitude, the capacity to have an adverse effect on X and Y’s circumstances in that the children’s time with their father at least during school term time may be significantly reduced. This is not in accordance with their wishes.
I am not necessarily convinced however that such an outcome should mean that the mother’s application is unsuccessful, in circumstances where to at least some extent the father is capable of ameliorating that outcome.
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.
I have referred at length to the fact that in the event of the mother being permitted to relocate to Adelaide with the children it will create a distance of some 330 kilometres between the residence of the children and that of the father.
X in particular commented to Ms M in his initial discussions with her in March 2015 that he did not enjoy the travel between Adelaide and (omitted).
I have already found that if the children and the mother relocate to Adelaide the children’s time with their father during school term time would almost certainly significantly reduce, other than in circumstances where perhaps the father was prepared to travel and spend time with the children in Adelaide.
That main expense that would relate to travel would be wear and tear on the parties’ motor vehicles and the expense of petrol. I do not consider that these are insurmountable expenses in the case of either parent.
I am not persuaded that, notwithstanding the practical difficulties and expenses that may arise from a distance of 330 kilometres between the children and their father, this would substantially affect X and Y’s right to maintain personal relations and direct contact with both of their parents on a regular basis. The amount of time the children can spend with their father during school term time will inevitably, if the mother and the children relocate, come down to how often the father is prepared to travel to Adelaide to spend time with the children.
The father’s counsel cross-examined Ms M as to whether X and Y would be unhappy if they did not increase their overnight time with the father from four nights per fortnight to five nights per fortnight. It was her opinion that such an outcome would not cause problems but that the children might want their father at sports or need to be able to communicate with him regularly by Skype or something similar. In her opinion they have a good connection with their father and it would be good for them to have more interaction with him.
She said however that if that did not occur nothing bad was likely to happen. She said that if the children’s time with the father reverted to for example, two nights per fortnight in circumstances where the children and the mother moved to live in Adelaide and the father declined to move closer to Adelaide to make more time a practical possibility, she did not consider that would be an outcome in the children’s best interests but said “I don’t think the children would unravel but they would be sad and upset and this is not what they want.”
Taking into account all of those matters I am not satisfied that a move to live in the Adelaide metropolitan area with the mother would substantially affect X and Y’s right to maintain personal relations and direct contact with their parents on a regular basis. They have a secure and loving relationship with their father and they are of an age where other forms of communication such as Skype, email and the like are practical ways of maintaining their secure connection. I find however that would not be the children’s preferred option and that they would rather spend more physical time with their father.
f) the capacity of:
each of the children’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.
For all of the reasons to which I have already referred I find that it is the mother who is better equipped to provide for the children’s needs on a physical level.
I am also satisfied that it is the mother who has been the most active parent in terms of organising and supporting the children’s education and hence supporting their intellectual needs.
That is not to say that the father is not interested in those aspects of the children’s lives but the demands of facing and dealing with his own psychological and physical challenges have resulted in him having less capacity to meet those needs.
The mother has also facilitated to a greater degree the children’s extra-curricular and sport activities, although the father clearly shares interests with the children and the children’s time with him has been mutually enjoyable with many shared interests. This is clear from the comments made in relation to those issues by the children to Ms M as reported by her.
As to the children’s emotional needs, I am satisfied that both parents are well-equipped to deal with the children’s emotional needs. This is evidenced by the close and loving relationship that the children have with each of their parents. Such a close and loving relationship would not be evident if the children’s emotional needs were not being met by both of their parents.
I find that the children’s maternal grandparents have assisted in the care of the children whilst the mother has travelled to Adelaide to study and for work and that notwithstanding the lack of trust the father places in the maternal grandparents, they have at all times attended to the best interests of the children and met their needs.
The mother sought assistance for Y from a psychologist in (omitted) in 2012. The father received a letter from a psychologist Ms A in early May 2012, setting out difficulties Y seemed to be experiencing with respect to anger issues. Y had apparently hurt his dog and expressed a view that he would harm himself or his mother.
It was the mother’s evidence that her concern at the time was that the father was part of the cause of Y’s anger and confusion. It was her evidence that the father was putting pressure on both children to spend more time with him.
In cross-examination from the father’s counsel the mother was unable to recall whether Ms A gave her the feedback that she referred to in her correspondence to the father. She was also unable to recall whether Ms A had told her that some of the mother’s entries in the communication book appeared hostile as also referred to in her letter to the father, or whether Ms A told her that she would provide support for the family as referred to in the correspondence.
The mother also gave evidence in her trial affidavit, in paragraphs 34 and following and in cross-examination, about Y sleeping in the same bed as the father and making comments to her such as “we like noodles, don’t we dad” and asking one of his friends “would you like some man juice in your mouth?”
The mother was asked whether she had raised those issues with the father. She said she had not done so but was concerned at the time because Y was angry, he was sleeping in the same bed as the father and she was wondering what was going on with the children. She said she was not accusing the father of abuse but was concerned with the children’s behaviour and that is why she took Y to see Ms A.
She agreed that Y had not said anything like it again. When it was put to her that the material was in her trial affidavit because she thought it was in some way linked to the father she said she thought that maybe it related to something he had seen at the father’s house because when she and the father were together he had pornography. She agreed that she had a close relationship with both X and Y and that neither of them had ever said anything to her about seeing pornography on the internet at the father’s.
She said that she had reported the issues to (omitted) and that she had reported concerns about the father in that report to (omitted) as she had been advised to do by Anglicare.
When she was asked whether she had any current concerns about the father sexually abusing Y she said no, that Y had settled and was sleeping in his own bed. She agreed that she had never had any concerns about the father abusing X and when it was put to her that the material was in her trial affidavit to raise suspicion against the father she said that now that Y had stopped sleeping with the father she was satisfied with the injunction.
There is no doubt that in 2013 Y was angry as is evidenced by the communication from Ms A. The mother agreed in cross-examination that neither of the children had made any comments in the nature of the comments allegedly made by Y in 2013 since that time, notwithstanding that X had still been sleeping in the father’s bed in 2014.
I find that the reason the mother included that material in her trial affidavit was to create a suspicion as to the father’s conduct towards the children and to portray him in a bad light. I find that that accords with the mother’s overall view of the father which in almost all aspects is negative.
I find that the father poses no risk to either X or Y with respect to any behaviour of an inappropriate sexual nature.
I am concerned that if the mother’s attitude towards the father does not change the children, particularly Y who is especially sad about the state of the relationship between his parents, may suffer a decline in their emotional balance.
Having said that, the father suffers significant difficulties from time to time coping with the effects of his mental health challenges including physical effects, including particularly tiredness.
There is no suggestion the children have been placed in the role of caregivers to their father at any time but there is no doubt that they are acutely aware of the difficulties he faces, particularly at times of more significant depression, and it is important that the father continue to manage his physical and mental health so that neither X or Y find their own emotional health suffering as a result of concerns for their father. That is not in any way to suggest that the children should not be sympathetic to their father’s particular circumstances.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
X and Y are two sensible and likeable young men. Y is clearly more emotionally fragile than X. X is already at high school and expresses to Ms M that he shares many interests with his father. Y likewise enjoys his time with his father, wants more time with him and enjoys the activities they share together.
Both children love their mother and enjoy living with her. They have expressed a view that they don’t want to significantly change the balance of time that they spend with each parent.
All of those factors are indicative of the benefits to the children of spending time on a consistent and regular basis with each of their parents so as to have the ability to share and enjoy the lifestyles of each of their parents and gain perspectives about life from their mother and their father.
Both parents are intelligent, they have a range of interests and they have much to offer the children in terms of exposure to each of their lifestyles and interests.
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.
Not relevant.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Both parents love X and Y. Both parties have used their best endeavours to attend to the responsibilities of parenthood to the best of their respective abilities. They are hampered however in doing so because of the deep level of distrust towards the mother on the part of the father and the disdain the mother exhibits towards the father’s parenting role.
It is clear from the father’s evidence that distrust of the mother is a feature of his thinking not only towards the mother but to many other individuals and organisations.
The communication between the parties is difficult, with the mother being reluctant to communicate with the father and the father’s need for communication with her being considered by her to be overbearing ,controlling and excessive. I have previously commented on the need of each for the parents to ameliorate their views with respect to communication.
To date the parents’ mutual antipathy and lack of respect each for the other does not seem to have significantly impacted on the emotional wellbeing of either of the children. It is clear however from the matters to which I have already referred that the children are aware of the difficulties between their parents and that such awareness causes them both sadness, particularly Y who seems emotionally more fragile than X.
An important responsibility of parenthood is for parents to ensure that they give children the freedom to have a close and meaningful relationship with their other parent without engendering any feelings of disloyalty.
If the parents in this particular matter do not improve the state of their relationship it may eventually come to the point where the children determine that to protect their own emotional wellbeing they will have to take sides. This would be very unfortunate and an outcome which could not be in the best interests of the children.
The reality is that whatever criticisms the parents each have of the other these are nice children who are progressing satisfactorily in their education and seem to be socially adept. In circumstances where they have spent considerable time with each of their parents now for several years it is obvious that the parents must each have provided an appropriate nurturing and loving environment for the children.
It is of some concern that the father is either unable or unwilling to consider whether he might be in a position to move closer to the Adelaide metropolitan area if that would result in the mother being able to fulfil her desire to complete her education and improve her employment prospects. On the face of it there is nothing to tie the father to (omitted) other than his wish to continue a country lifestyle and avoid what he considers to be stresses in the city, such as dealing with traffic.
The manner in which the father’s case was presented suggested elements of his proposals being based on his needs rather than the needs of the children. He was able to present his case in that manner in circumstances where the children were not unhappy about staying in (omitted) and where X in particular, notwithstanding the opportunities at (omitted) High School, did not present to Ms M as having a pressing need or desire to move to Adelaide. Nevertheless, as I said earlier, this matter involves more than simply a consideration of the children’s wishes and rather an assessment of what would be best for them overall taking into account all of the relevant factors.
The father is supportive of the children, he loves the children and he has supported their education and general advancement in life. There is no doubt however that it is the mother who has been the driving force behind organising almost all aspects of the children’s lives at a practical level. The children know and appreciate that.
On significant responsibility of parenthood that had not at the time of trial been properly addressed by the father was the responsibility to financially support the children. I have referred to that matter earlier in my consideration of Section 60CC(3)(ca).
It was clear that the father was unable to put his responsibility to contribute to the maintenance of the children ahead of his obsessional desire to avoid telling the mother or anyone in authority details of his financial circumstances.
There was clearly a level of self interest in the mother’s determination to move to Adelaide and move the children to Adelaide without any consultation with the father. Nevertheless, I accept that she genuinely thought that was a move that would be in the best interests of the children as well as her interests. It is unfortunate that she did not consider there was any need to canvas that with the father.
On both parties’ proposals the children will continue to live primarily with the mother. I find, taking into account the father’s own personal challenges, that it is the mother who will continue to fulfil the role of the “organising” parent and who will undertake the majority of the responsibility for the children’s day to day care. The mother’s capabilities in that regard are greater than those of the father. This does not lessen the strength of the bond the children have with their father.
j) any family violence involving the child or a member of the child’s family.
I have already referred to this issues earlier herein and do not consider that this is a matter where the Court needs to be concerned about issues of family violence notwithstanding the historical aspects of the matter.
k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
any findings made by the Court in, or in proceedings for, the order; and
any other relevant matter.
Not relevant
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is to be hoped that whatever orders the Court makes the parties will desist from any further litigation taking into account the age and the maturity of the children.
It is to be hoped that both parents will accept the determination of the Court because to do otherwise would continue to subject the children to feelings of conflicted loyalty and insecurity which would not be in their best interests.
m) any other fact or circumstance the Court thinks is relevant.
Not relevant
Parental Responsibility
Parental responsibility is defined in section 61B of the Family Law Act[7] as follows:
“In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
[7] Family Law Act 1975 (as amended)
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. The section is in the following terms:
“This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
Section 65DAE makes it clear that there is no need for parents to consult on issues that are not major long term issues. That section is in the following terms:
“If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major-long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.”
The most common issues that arise that require joint decisions to be made involve schools attended by children, observation of particular events, activities or customs that arise from particular religious and/or cultural beliefs and major health issues arising from serious ill health or accident.
I have referred earlier herein to my finding that X and Y would benefit from an order providing that their parents have equal shared parental responsibility. Both parents love the children and are interested in the children.
The mother seeks an order for sole parental responsibility. She has little regard for the father’s parenting abilities and unilaterally relocated the children to Adelaide in late 2014. This was after many months of avoiding questions from the father as to her intentions for X’s high school years and against a backdrop of deliberately concealing information from the father so that he could not attempt to prevent her moving the children to Adelaide until it was too late.
Prior to that there were no issues about the children’s schooling and I accept that, as I have said previously, the mother made the majority of the arrangements and facilitated the children’s attendances at school, extra-curricular activities, sport and the like.
Equal shared parental responsibility does not involve endless communication about day to day issues but a requirement for proper and respectful consultation about major issues. I am satisfied that by the end of the wife’s evidence she had re-thought her position on communication and accepted a need for a better approach. I am satisfied that the parties in this matter can communicate to the level required to support an order for equal shared parental responsibility and their mutual love and care for the children should be reflected in such an order.
It is important that the father is respectful of the mother and notwithstanding historical concerns that arose during 2014 and early 2015 the father needs to keep communication to a minimum, to direct it solely to issues concerning the children and ensure that he does not attempt to be controlling of the mother.
In circumstances where there is an order for shared parental responsibility, the Court of course must decide whether the children should spend equal time with each of their parents or substantial and significant time with each of their parents as referred to in Section 65DAA of the Family Law Act 1975 (as amended).
Neither parent was proposing that the children spend equal time with each parent. The mother was proposing that the children spend alternate weekend time with the father but had clearly not paid much attention to how that would be effected if she and the children lived in Adelaide.
She conceded in cross-examination that regardless of whether the children lived with her in Adelaide or with her in (omitted) there was no impediment to a continuation of four overnight periods with their father each fortnight. Her concerns about whether that would be appropriate if she and the children lived in Adelaide related to issues of the children being at school on time.
The father seeks to have the children spend time with him for five nights in each fortnight but on the basis that the children are residing with the mother in (omitted). As I have said earlier herein, his exact position in the event that the children lived in Adelaide with the mother was less clear, notwithstanding Ms Cocks submission that the mother had conceded that the children would be able to spend four nights per fortnight with the father if she and the children lived in Adelaide.
There is no doubt the children want to spend more time with their father. If the children remain living with the mother (omitted) then it is simply a matter of changing the existing order such that it commence at the conclusion of school on a Wednesday in each alternate week.
If the children live with the mother in Adelaide, I find that the children’s best interests would be met by spending time with the father in Adelaide during school term time other than if the time fell on a long-weekend. This is to avoid tiring travel for the children, taking into account their increasing school and extra-curricular demands.
In those circumstances I consider that the most appropriate order would be for the children to spend time with the father on each third weekend from the conclusion of school on Friday to the commencement of school on the Monday as I am not confident that he would have the capacity either physically or mentally to travel to Adelaide more often.
I consider however that the children’s best interests would also be met by an additional order giving the father liberty to increase that time to up to five nights with the children in Adelaide provided the mother had no less than fourteen days’ notice of the father’s intention to do so and the father met the children’s needs over those days, in terms of appropriate accommodation, school attendance and attendance for extra-curricular sport and social activities.
That would create a level of uncertainty for the children but I am satisfied that it would go some way to meeting the children’s needs to spend substantial and significant time with the father with the hope that at least once per school term the father would be able to accommodate that time.
I find that such an order would appropriately take into account the 330 kilometre distance between the children and the father’s residence if the children were living in Adelaide, the historical capacity of the parents to implement a time spending arrangement of similar time, the parties historical capacity notwithstanding their mutual antipathy to communicate with each other about time spending issues and the need for the children to maintain their close connection with the father.
I am satisfied that such an order, if the children lived in Adelaide, would provide for them to spend substantial and significant time with their father, and that it would be reasonably practicable.
Conclusion
This is not an easy matter. The Court needs to give paramount importance to the best interests of the children but not ignore the circumstances of the parties and the need for them to each have the best opportunity to provide for the physical, intellectual and emotional needs of the children.
Y will finish his primary school years at the conclusion of the 2017 school year. At that time X will have completed year 10 at high school. I find that it is in the best interests of the children for the mother to be able to relocate to Adelaide with the children at the conclusion of the 2017 school year.
Such an order will mean that Y will commence high school in Adelaide in 2018 and X will be able to undertake his two “senior years” of high school in Adelaide in 2018 and 2019.
It may have the effect of delaying the ability of the mother to finalise her qualifications but in my opinion not unreasonably so, and she will of course not be prevented from continuing to travel to Adelaide for employment during that period of time. It may be in the alternative she could undertake employment in the south east pending that move.
It will also give the father an opportunity to reconsider his position in relation to the place of his residence.
The children will have the benefit of spending substantial and significant time with their father in (omitted) during that time and continuing to attend at schools in (omitted) which they both enjoy. They will be moving to the city at a time when many children from the country move for the purposes of educational opportunities.
Pending the children moving to Adelaide with the mother, I am satisfied that it is in their best interests to spend five overnight periods per fortnight with their father such that the existing 2010 order should commence at the conclusion of school on a Wednesday rather than at the conclusion of school on a Thursday.
The mother sought to vary the orders of 16 June 2010 such that the school term time holidays and the Christmas school holiday periods were equal but less defined. She was also concerned that the existing order made no provision for the children’s time with her over Easter and sought that there be no specific orders in favour of either party for Easter.
The father sought a continuation of the existing Easter holiday order that provides for the children to spend half of that time with each of their parents.
Although I did not canvas this issue with counsel for either party, I am of the view that the children’s time with each parent at Easter should be shared equally in 2017 but thereafter when the children are living in Adelaide they should spend time with each of their parents for the whole of the Easter period in alternate years to enable holiday opportunities and to minimise travelling.
The current orders with respect to Christmas holiday time provide for the children to spend seven day periods week-about with each of their parents, with specific orders for time on Christmas Eve, Christmas Day and Boxing Day prevailing in the Christmas week.
Again this is not a matter that I canvased with counsel but I find that the children’s best interests would be met as and from the time they move to Adelaide to live with an order as proposed by the father which divides the children’s time between the end of fourth term each year and the three day Christmas period equally between each parent and then the period between Boxing Day and the commencement of the new school term again equally between each parent. This would enable the children to enjoy the expectation of Christmas with both parents and then share equally in the relaxing January holiday time with each parent. In cross-examination the mother said she preferred her proposal for Christmas holiday time.
Other than the variation to the number of nights the children spend with the father in each fortnight pending the children moving to Adelaide, I am not satisfied that there is any need to otherwise vary the order of 16 June 2010, save as to discharging paragraphs 19 and 22 thereof which orders are intrusive of the father and not sought by the mother and to delete those paragraphs that are not applicable.
I find that it would be in the children’s best interest for most of those orders to remain in place when the children and the mother move to Adelaide metropolitan area, save as to variations to term time and school holiday time to which I have referred.
I find however there will need to be new orders made as to the place of handover if it is not at the children’s school. The only handover that will not occur at the children’s schools are those that fall on non-school days during Christmas and school term time school holidays.
In circumstances where all of the handovers otherwise are to occur in Adelaide and require the father therefore to travel either from (omitted) or such other place as he may have determined to reside, I find that it is reasonable and equitable for the mother to deliver the children and collect them from the maternal grandparents home in the event that the father remains resident in (omitted), or otherwise outside of a business or café in the town closet to which the father may reside.
That order is made in circumstances where the father’s evidence is that he has no intention of moving from (omitted) and where on the facts of this matter if he did move it is expected that he would move closer to Adelaide.
There also needs to be an additional order added as to the parties being at liberty to communicate by email with respect to the children.
I find that it is in the children’s best interests for current orders relating to the father attending upon medical practitioners and taking prescription medication as prescribed to remain in place.
For those reasons I make the following orders.
I certify that the preceding two hundred and thirty eight (238) paragraphs are a true copy of the reasons for judgment of Judge Mead
Date: 7 October 2016
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