W and G
[2003] FMCAfam 18
•7 February 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & G | [2003] FMCAfam 18 |
| CHILDREN – Planned relocation of mother – father seeking residence – evaluation of parties’ competing proposals – children of tender years – evaluation of adequacy of mother’s proposals for contact – recognition of mother’s entitlement to freedom of movement to pursue legitimate interests. Family Law Act 1975 – ss.60B(1); 60B(2); 65E; 68F(2) U & U [2002] HCA 36 |
| Applicant: | D J W |
| Respondent: | S-A M G |
| File No: | DNM 2081 of 2002 |
| Delivered on: | 7 February 2003 |
| Delivered at: | Darwin |
| Hearing dates: | 14 & 15 January 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Jarrett |
| Solicitors for the Applicant: | Povey Stirk |
| Counsel for the Respondent: | Mr Kelly |
| Solicitors for the Respondent: | Northern Territory Legal Aid Commission |
ORDERS
That the father and mother have joint responsibility for making decisions concerning the long term care, welfare and development of the children of the marriage, J P W born the 9th of June 1998 and H M W born the 28th of June 2001.
That the said children reside with the mother in the Tathra region of southern New South Wales.
That the father have contact to the said children at any times and at any places as may be mutually agreed between the parties and in particular as follows:
(a)Until the child H reaches the age of five years on the 28th of June 2006 on four occasions each year in Alice Springs as follows:
(i)For half of the end of first term New South Wales school holidays;
(ii)For the whole of the mid year New South Wales school holidays;
(iii)For half of the end of third term New South Wales school holidays;
(iv)For the first half of the 2003/2004 Christmas school holiday period, and each alternate year thereafter;
(v)For the second half of the 2004/2005 Christmas school holiday period, and each alternate year thereafter.
(b)After the child H has reached the age of five years on the 28th of June 2006 on three occasions each year in Alice Springs as follows:
(i)For the whole of the mid year New South Wales school holiday period;
(ii)For the second half of the 2006/2007 Christmas school holiday period, and each alternate year thereafter;
(iii)For the first half of the 2007/2008 Christmas school holiday period, and each alternate year thereafter;
(iv)For the whole of the end of first term New South Wales school holidays or for half of the end of third term New South Wales school holidays as the father shall nominate to the mother in writing at least 30 days prior to his intention of exercising such contact.
That for the purposes of the father’s contact as set out in orders 3(a)(ii), (iv), (v) and order 3(b)(i), (ii), (iii) the parties shall share equally the costs of the children’s transportation from Tathra to Alice Springs and return.
For the purposes of the father’s contact as set out in order 3(a)(i) and 3(b)(iv) the father shall bear the entire cost of the children’s transportation from Tathra to Alice Springs and return and in the event that he elects not to exercise such contact he shall inform the mother in writing of this 30 days prior to the date that such contact would otherwise be scheduled to occur.
For the purposes of the father’s contact as set out in order 3(a)(iii) the mother is to bear the entire cost of the children’s transportation from Tathra to Alice Springs and return.
In the event that the mother judges it appropriate that the said children be accompanied on any travel between Tathra and Alice Springs and return either by herself or some other person, including an airline employee, she shall pay the costs of travel of herself or of any other person who accompanies the children.
That in the event that the father installs an internet audio-visual link in his home, the father have contact with the said children via such internet audio-visual link each Tuesday, Thursday and Sunday evening prior to 7.30pm Eastern Standard Time or Eastern Daylight Saving Time as the case may be, with the mother to encourage the children to make contact at any other times and with the mother to take the necessary steps to install such an internet audio-visual link in her home within fourteen (14) days of receiving notice from the father that he has installed such a device in his home.
That the father have telephone contact to the children in lieu of such internet audio-visual link at all reasonable times, but no later than 7.30pm Eastern Standard Time or Eastern Daylight Saving Time as the case may be.
That the father have contact to the children at any other reasonable time as agreed between the parties and in particular in the event that the father is visiting the Tathra area on his giving 7 days written notice to the mother.
That the paternal grandparents, D J R W and M A W have liberal telephone contact with the children at all reasonable times.
That the mother authorise the principal of each school attended by the children from time to time to send to the father:
(a)A photocopy of each school report about the said children;
(b)An order form for each school photo of the children.
That in the event that he is in the Tathra area the father be at liberty to visit the school or schools attended by the said children from time to time for events, activities or functions routinely attended by parents.
That the mother and father each keep the other informed of any major illness or accident suffered by the children when in his or her care and advise the other as soon as practicable of the name of each treating doctor or like professional attended by the children.
That the parties each inform the other of any change in his or her residential address, telephone number or other contact details within 48 hours of such change in writing.
That all applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALICE SPRINGS |
DNM 2081 of 2002
| D J W |
Applicant
And
| S-A M G |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are D J W (“the father”) and S-A M G (“the mother”). The father and mother are the parents of two children, J P W born the 9th of June 1998 and H M W born the 28th of June 2001.
The case concerns where the two children will live in future and with which of their parents. Both J and H were born in Alice Springs in the Northern Territory and have lived the majority of their lives there. It is the father’s application that the children should live with him in Alice Springs. Failing that, and in the event that the children continue to live with the mother, he seeks that the mother be restrained from removing J and H from Alice Springs and that he have regular defined contact to them.
The mother wishes to live with J and H in the Bega region of New South Wales. If she is successful in her application, she proposes that the father have regular defined contact to the children in school holidays, by telephone and by internet camera.
Due to the recommendation of Mr Stephen Ralph, a court counsellor who prepared a report to assist the Court with the disposition of this matter, a fourth possibility arises as to the ultimate outcome in the case[1]. That is that the mother be restrained from leaving Alice Springs with the children until they have each consolidated and extended their existing relationship with the father. Mr Ralph proposes that this period be until the start of the school year in 2004. The father proposes the period be until H reaches the age of 6 years.
[1] Family Report paragraph 48
This is what is commonly known as a “relocation case”. Such cases are invariably very difficult for all concerned, involving as they do two competing and often irreconcilable claims of right. These claims of right arise when the parents of children have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of parents to live how and where they wish and to get on with their lives as they see fit, both as parents and as individuals separate from the other parent concerned. On the other hand is the right of children to maintain a meaningful relationship with both their parents in the now changed circumstances of their parents’ separation.
In U & U[2] Hayne J said:
What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[2] U v U [2002] HCA36 at paragraph 170
In this case, it is clear that J and H are much loved children by all who are involved with them. I appreciate that not only the parties themselves and J and H will be affected by the orders that will be made but so too will be many of their relatives, including both of their paternal and maternal grandparents. Although J and H’s best interests are my paramount consideration, I am well aware of the painful ramifications of my decision for many who have been involved intimately in their care.
Applications
At the outset it is appropriate to set out the primary competing proposals of the parties. In his form 3 application,[3] the husband seeks the following orders:
(1)That the children of the marriage, namely P J W born 9 June 1998 and H M W born 28 June 2001 reside with the husband.
(2)That the husband and wife have responsibility for the day to day care, welfare and development of the children while the children are residing with, or having contact with, each parent.
(3)That the parties share responsibility for the long term care, welfare and development of the children.
(4)The wife do have liberal personal and telephone contact with the children, the terms of which are to be determined by the location of the parties’ residences.
(5)That the husband retain sole entitlement to the former matrimonial home and indemnify the wife in relation to the Westpac mortgage encumbering the property.
(6)The parties otherwise retain the property and financial resources which are in their possession or held in their sole names.
[3] Husband’s form 3 application filed 4 February 2002
In his evidence[4], the husband delineated in great detail the orders he would propose in respect of the mother’s contact to the child in the event that the children should reside with him and the mother continues to live in Alice Springs as follows:
[4] Husband’s affidavit of evidence in chief paragraph 53
a)On alternate weekends from 4.30pm Friday until 5.00pm Sunday, to be extended by 24 hours if contact falls on a long weekend, and once they commence school, that the contact be increased to 3.00pm Friday.
b)On Tuesday nights every week from 4.30pm to 8.30am Wednesday.
c)For five hours on the day before or after each of the children’s birthdays.
d)That the children have contact with their grandparents for five hours on each of the grandparents’ birthdays and S have then for five hours on her birthday if those birthdays fall on weekdays, or alternatively, from 9.00am to 5.00pm if the birthdays fall on weekends.
e)That the children spend Mother’s Day with S from 9.00am to 5.00pm and Father’s Day with me during the same hours if Father’s Day falls on a contact weekend.
f)That the children spend half of each Easter with S.
g)Each Christmas Day from 12.00 noon until 6.00pm to be spent with S.
h)If any of the special contact occasions fall on the day before or after S’s contact with the children, then the children stay overnight with her on that night.
i)Once the children reach school age, that alternate weekend contact take place during school term, and S have the children stay with her for half of each school holiday period.
In the event that the children are ordered to reside with the father and the mother elects to live outside of Alice Springs, the father would propose that the mother have contact to the children for 3 weeks in the December/January school holidays and 2 weeks in July[5].
[5] Husband’s affidavit of evidence in chief paragraph 55
The husband has no plans to leave Alice Springs. Although it is not his preferred option, in the event that the Court rules that the two children should live with the mother, he would wish her to be restrained from changing the children’s residence from the area of Alice Springs for an indefinite period.
In her amended application[6], the mother seeks the following orders:
[6] Wife’s amended application filed 11 November, 2002
(1)That the children J P W born 9 June 1998 and H M W born 28 June 2001 (“the children”) reside with the respondent mother and that the respondent mother be free to relocate with the children to the Bega region of NSW on 26 December 2002.
(2)That until 26 December 2002, the father have contact with the children as follows:
(a)Each alternate weekend from 10.00am Saturday until 5.00pm the following Sunday;
(b)On Wednesday from 5.00pm until 7.00am the following Thursday;
(c)From 10.00am on Wednesday 25 December 2002, until 5.00pm on Thursday 26 December 2002 with the paternal grandparents to collect and return the children;
(d)By telephone at all reasonable times;
(e)At such other times as agreed between the parties.
(3)That until 26 December 2002, the paternal grandparents D J R W and M A W have contact to the said child J P W each Monday from 1.00pm to 5.00pm, with the child to be collected and returned at 10 Sunset Court, Alice Springs.
(4)That after 26 December 2002, the father have contact with the children as follows:
(a)For the whole of the mid-year NSW school holiday period, commencing 2003;
(b)For the second half of the 2003/2004 Christmas school holiday period, and each alternate year thereafter;
(c)For the first half of the 2004/2005 Christmas school holiday period, and each alternate year thereafter.
(5)That for the purpose of facilitating contact as set out in Order 4:
(a)The parties share the costs of the children’s transportation;
(b)Until such time as the children are able to fly unaccompanied, the mother travel with the children or arrange for the children to be accompanied, with the mother to meet the costs of her own transport or that of the accompanying person.
(6)That the father have telephone or internet audio-visual contact, at his option, with the children each Tuesday, Thursday and Sunday evening prior to 7.30pm Eastern Standard Time or Eastern Daylight Saving Time as the case may be, with the children to be encouraged to call spontaneously at other times.
(7)That the mother have telephone or internet audio-visual contact with the children, each Tuesday, Thursday and Sunday evening prior to 7.30pm Central Standard Time, during those periods when the father is exercising holiday contact with the children, with the children to be encouraged to call spontaneously at other times during such periods.
(8)That for the purpose of contact as set out in Order 6 and 7 above, each party is to be alternately responsible for initiating the call or connection and each party is to be responsible for establishing and maintaining the facility to engage in the said internet audio-visual contact.
(9)That for the purpose of Orders 6, 7 and 8 it is expected that during the children’s school holiday periods, internet audio visual contact may not be possible, and telephone contact suffice, if the children are holidaying with their mother or father away from their respective residences.
(10)That the paternal grandparents D J R W and M A W have contact with the children, in addition to contact they exercise while the father is exercising contact with the children, for two days between the hours of 9.00am and 5.00pm once each year on non-school days should they visit the location where the children are residing.
(11)That the paternal grandparents D J R W and M A W have liberal telephone contact with the children at all reasonable times.
(12)That the mother provide copies of the children’s school reports and school photographs to the father, with the father to meet the cost of such photographs.
(13)That each party facilitate and encourage the sending and receiving of written correspondence and gifts by the children and the parent they are not at the time residing or having contact with.
The wife has indicated[7] that in the event that she is not permitted to relocate the residence of the children to Bega, she would seek orders that the children continue to live with her in Alice Springs and have regular defined weekly and holiday contact with the father. She has not seriously considered her position in the event that the existing residence arrangements for the children are changed. However, I take it that she would not easily countenance a situation where she would reside in a different region to that of the children and not have regular interaction with them.
[7] Wife’s affidavit of evidence paragraph 61
Neither party advocated the amalgamated position put forward by Mr Ralph. However, in submissions to me through his counsel, the father indicated that in the event that the Court was to impose a moratorium, during which the wife could not leave Alice Springs with the children, it was his view that the minimal acceptable extent of such a moratorium would be until H turned six years of age or 28 June 2007.
The parties have reached agreement as to how the assets of their marriage should be divided between them and this agreement has been ratified by an order of the Court.
The documents relied upon
Each party filed a list of the documents they relied on[8]. In the father’s case, each of the deponents of the affidavits listed in his list of documents attended at Court and was cross-examined by counsel for the mother. The father also relied on a number of other documents, which were tendered during the course of the hearing. These were a number of exercise books, which the parties use to communicate with one another in respect of arrangements for the children; police records relating to the circumstances surrounding the parties’ separation in Alice Springs in January 2002; J’ pre school enrolment form; and a letter from the wife’s previous solicitor to the husband.
[8] List of documents filed by the mother on 10 January 2003; List of documents filed by the father on 10 January 2003
In the mother’s case, each of the deponents of affidavits on which she relied, but one attended at Court for cross examination. The witness who did not attend was a psychologist, Michael Tyrell, who has been treating both the mother and J and who prepared a report containing a psychological evaluation of the mother and an opinion as to her mental state. At the time the matter was heard, Mr Tyrell was overseas on a ship on holiday and so was not able to be contacted by telephone. It should also be noted that the matter had been previously listed for hearing in November of 2002 but, due to the unavailability of a Federal Magistrate to hear the matter at that time, it was adjourned until January 14 2003. For obvious reasons, both parties were anxious to proceed with the hearing of the matter and did not wish it to be unduly delayed.
Background
The father was born in Kalgoorlie on the 3rd of August 1967. However, he has strong connections with Alice Springs, having attended primary school in the town and having lived there from 1984 until the present time. He purchased a residential property in Alice Springs in 1994, in which he still lives and which was the parties’ and the children’s home until January of 2002.
The father’s parents, Mr D and Mrs M W also live in Alice Springs as do his two older sisters, J D and A S. His brother, N W, lives south of Alice Springs at his camel farm. Both Ms D and Ms S have children, ranging in age from 9 years to 22 years, who also live in Alice Springs. Accordingly, J and H have a number of paternal relatives who live in the area. The evidence is clear that each of these relatives is dearly interested in the well being of the two children concerned.
The wife was born on the 11th of September 1973. She is a registered nurse by occupation. Her career brought her to Alice Springs, where she met the father in late August of 1997. They began to live together shortly afterwards in the house owned by the father in Alice Springs. The wife fell pregnant with J in September of 1997. At least from the mother’s point of view, the pregnancy was not planned. At the time that she fell pregnant, the mother had already accepted a job in Tamworth, New South Wales, which she did not take up because of her pregnancy. The mother’s parents, P and Christine G live in Tathra, New South Wales, where they run a real estate business. Her brother J lives in Canberra. Accordingly, the wife’s personal connections to Alice Springs are not as strong as those of the father.
The parties married in Pambula, New South Wales, on the 9th of January 1999. As yet, the marriage between them has not been dissolved.
The parties separated in early January 2002. At that time the husband was living and working in Tennant Creek, whilst working on the Alice Springs to Darwin railway. The separation was unexpected to him and was extremely traumatic to all concerned. The father returned to Alice Springs and the mother’s mother, Mrs G, flew in from Tathra. The parties continue to bear the emotional sequellae of what occurred in Alice Springs between the 13th and 17th of January, 2002. The end result of this period was that the mother, Mrs G, J and H left Alice Springs by car and travelled to Tathra. The father was not advised of their departure and it is clear that he did not agree to the children being removed from Alice Springs. As a result, the father commenced proceedings[9] in this Court seeking the residence of both children on both an interim and final basis and that the mother be compelled to return them to Alice Springs. The mother opposed these orders and sought permission to live with the children in Tathra on an interim and final basis. At the time she was living with her parents in Tathra.
[9] Father’s application filed 4 February 2002
These proceedings were heard by me on the 27th of February 2002, on which occasion I made the following orders:
(1)That within 21 days of today’s date the wife return the two children of the marriage, J P W born 9 June 1998 and H M W born 28 June 2001, to Alice Springs.
(2)That in the event that the wife returns to live in Alice Springs, the said children shall reside with her and she shall be responsible for making decisions concerning their day to day care, welfare and development.
(3)That in the event that the wife returns to live in Alice Springs, the husband shall have contact to the said children as follows:
(i)Each alternate weekend from 10.00am Saturday until 5.00pm the following Sunday;
(ii)On one evening overnight per week by agreement and failing agreement, on Wednesday from 5.00pm until 7.00am the following Thursday;
(iii)On such other occasions as the parties may mutually agree;
(iv)For two days to be agreed at Easter and failing agreement, for Good Friday and Easter Saturday.
(4)That neither party remove the said children from the township of Alice Springs without the written permission of the other.
(5)That the matter be lister for further directions on 29 April 2002 at 9.30am, and in particular to establish if a Child Representative or Family Report is required.
The mother returned to live in Alice Springs with the two children on the 16th of March 2002 and obtained rented accommodation for herself and the children. In April 2002, the paternal grandparents, Mr and Mrs W sought to intervene in these proceedings to seek specific orders regarding their contact with J and H. The mother opposed Mr and Mrs W having any contact to the children outside the periods earlier ordered by the Court in favour of the father. On the 20th of May 2002 I made the following orders:
(1)That the father have contact to the children of the marriage J P W born 9 June 1998 and H M W born 28 June 2001 in addition to the contact as set out in the Orders made 27 February 2002 as follows:
(a)for four hours on each of the said children’s birthdays and Father’s day.
(2)The paternal grandparents D J R W and M A W have contact to the said child J P W each Monday from 1.00pm to 5.00pm, with the child to be collected and returned at 10 Sunset Court, Alice Springs.
On the 24th of April 2002 the mother applied for a Domestic Violence Order in the Local Court at Alice Springs. This application was contested by the father and heard by the Court on the 9th of May 2002, on which occasion the following orders were made:
The defendant to be restrained from :
(1)Approaching, entering or remaining at 10 S Court, Alice Springs or any place where S-A G is living or staying.
(2)Contacting S-A G, directly or indirectly except via the Alice Springs Family Contact Centre’s communication book and only for the purpose of exercising contact with the children of the relationship.
(3)Approaching S-A G directly or indirectly except on Thursday mornings between 6.45am and 7.15am at 19 F Crescent, Alice Springs and only for the purpose of S-A G collecting the children of the relationship.
(4)Assaulting or threatening to assault S-A G directly or indirectly.
(5)Behaving in a provocative or offensive manner towards S-A G.
(6)Causing or threatening to cause damage to property of or in the possession of S-A G.
The father was not represented at the hearing but appeared on his own behalf.
The parties were able to negotiate a further period of contact for the father of 14 days, during the recent Christmas period, when the mother went for a holiday to Tathra. Apart from this period, the father has not had any contact in addition to that stipulated in the orders.
Currently the mother is working as a registered nurse at the Alice Springs Hospital. The father is employed as a trades assistant on a full time but casual basis. He works a 30 hour week, working from 7.30am until 3.30pm on Monday to Friday. There is some limited overtime work on Saturdays.
It is the mother’s position that she is the most significant person in the children’s lives at present and the more competent of the two parties as a parent. She asserts that she is deeply unhappy and frustrated at being compelled to remain in Alice Springs against her will. As a consequence, she is fearful that her ability to adequately parent J and H will be compromised if she is forced to remain in Alice Springs any longer than is necessary. It is her position that she never intended to remain permanently in Alice Springs, either before or after the birth of J and that it was understood between her and the father that the family would relocate to the south coast of New South Wales, prior to J starting primary school. She also asserts that, due to a lack of family and social support, she feels isolated in Alice Springs. This sense of isolation has ramifications for her mental health and in turn may prevent her reaching her full potential as an effective parent. It is her position that in Tathra, she will have the support and opportunities that she lacks in Alice Springs. In addition, she remains fearful of the father and asserts that she still bears the emotional legacy of what she says was an abusive relationship between her and the father, from which she will not recover if compelled to remain in Alice Springs. She also asserts that there is an unbridgeable gulf between her and members of the father’s family, of whom she is apprehensive and estranged from.
It is the father’s position that, if the mother is permitted to relocate the residence of J and H, given their ages at the present time and the distance between Alice Springs and Tathra and the practical and financial considerations of the children moving between the two locations, it will have the inevitable consequence of removing him from their lives as a contributing and capable parent. In effect the children will loose him as a father. His major concern is, that given both children’s current ages and levels of cognitive development, but particularly H, they do not have a fully established relationship with him and if permitted to leave, the current level of that relationship is doomed to diminish. It is also the father’s position that a relocation will deprive the children of the opportunity to maintain and develop their current level of relationship with members of their paternal family. Further, it is his position that the mother, either actively or unconsciously, wishes to diminish his proper role as a joint parent, with her, of J and H. As a result, he argues that he is the more likely of the two parents to foster and maintain the children’s relationship with both their parents. Because of what he says is the antipathy of the mother for him as a parent and, of his family playing an active role in their lives, it is his position that at this stage, it is appropriate to change the current residence arrangements for the children and permit them to live with him so that they can maintain their relationship with both parents and with their wider paternal and maternal families. He denies that there is any proper basis for the mother’s assertion that she is fearful of him or that her mental health will be seriously jeopardised if she remains in Alice Springs. Accordingly, he asserts that it cannot be established that her parenting skills will be compromised to any serious degree if she does remain in Alice Springs. In essence, he asserts that in wishing to relocate to Tathra, the mother is unreasonably putting her needs and ambitions before those of the children and in particular, their entitlement to maintain their current relationship with him.
The issues
The authorities are clear that it is necessary to compare the pros and cons of the parties competing proposals, from the prospective of the children’s best interests. In completing that exercise, the following issues appear to be relevant:
·What was the nature of the relationship between the parties – in particular was it denigratory or emotionally abusive as the mother alleges;
·What are the likely consequences for J and H, given their current ages and the level of their attachment to their father, if they are taken to live in Tathra;
·What are the likely consequences for J and H, if the parent who has primary responsibility for providing their residence is changed at this stage;
·What are the likely consequences, in terms of the mother’s ability to reach her optimal parenting capacity, of her remaining in Alice Springs, as she perceives it, against her will.
The evidence
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
I observed both of the parties carefully as they gave their evidence and at other times during the course of the proceedings. There are many issues in dispute between them, chiefly in regards to the nature of the relationship between them and what occurred when it ended. Some, but not all of these differences are a matter of perspective, for the parties are very different by way of personality and background. The father is a bluff, no nonsense person, a person who in former times might have been described as a “man’s man”. He conceded that during his marriage, he did not communicate with the mother as well as he might have done. He has spent much of his working life in remote areas, especially when working on the railways in South Australia.
I have no doubt that he is a hard worker, who is valued by all who employ him. The father places a high priority on hard work, stability and family loyalty. It was a great shock to him when the mother told him that she was leaving the marriage. The father places great store on the permanence of marriage, especially where children are concerned. I accept that when he met the mother and she fell pregnant shortly afterwards, his deepest personal ambition was realised. I formed the view that he was something of a traditionalist when it came to the division of responsibility within the home. He saw his role very much as being the main breadwinner and of doing the gardening and household maintenance. Domestic duties, such as cleaning, laundry and cooking being the primary province of the mother. I also formed the view that he saw himself as being very much the head of the household. He is not the sort of person who would find it easy to ask for help outside of the family. However, there can be no doubt that he is a devoted father, who holds the best interests of J and H to the forefront of his heart.
The mother is a university trained nurse. She has aspirations to study medicine. I suspect she could be described as being more “progressive” in her views regarding the division of labour between partners in a relationship than the father. Although, Mrs G Senior cannot be described as an impartial witness, I accept her evidence that her daughter and son-in-laws relationship was, to a large degree, one marked by incompatibility.
I accept that the mother had no plans to form a relationship and begin a family when she came to Alice Springs in 1997. Her aspirations lay in other directions and other places. That was not the case with the father. Having a family was his most cherished wish and Alice Springs, where his parents and sisters live, is the place to which he feels most attached. I accept that the wife made no secret of her wish to leave Alice Springs during the marriage and of her desire to live closer to her family in Tathra. There can be no other explanation for the father applying for a ranger’s job at Narooma in February of 2000 and the parties looking at properties for sale whilst on holiday at the mother’s parents’ home in Tathra. I also accept that at one stage the father gave an indication to the mother that the family would move from Alice Springs, prior to J starting primary school. Accordingly, the desire of the mother to leave Alice Springs has long been a issue between the parties. I also accept that the mother felt that her wish to move was being given lip service by the father, who had no real intention of uprooting himself from Alice Springs.
However, once the mother became a parent, she quickly established herself as a skilled and confident mother, who was happily devoted to her tasks. Given her training as a nurse, it is not surprising that she was particularly adept as a parent. It is my impression that from the time of J’ birth, she saw it as being her primary responsibility to provide for his needs and the father was happy to go along with this because of his somewhat traditional views of family life. The mother, I suspect, by virtue of her training as a nurse, was also liable to be dogmatic in her views as to what was appropriate for J in terms of his care and particularly his medical treatment. It was she who arranged immunisations and made decisions about what to do when he proved to be a difficult child in terms of having colic. It was she who sought advice about controlled crying. If there can be any criticisms of the mother’s capacity as a parent, it is that she is somewhat over protective of her role as the children’s mother and of the children themselves.
Following J’ birth, the father continued to work as he had done before. I am not critical of him in this regard, as it was of vital importance that the financial security of the family be maintained. The father worked conventional hours, which were not modified to any significant degree because of the advent of his family. However, the major burden for caring for J fell to the mother. J was breastfed until he was 9 months of age.
The mother returned to work at the Alice Springs Hospital on a part time basis three months after J was born. Whether this was as a result of financial pressure or in order to enable her to continue her nursing career, is unclear to me. As a result, through necessity, she had to have recourse to outside help to assist her with J’ care. This assistance was in the main provided by Family Day Care with some input by Mr and Mrs W senior. The mother worked five shifts per fortnight and some overtime. If she worked evening and night shift, the father provided some care for J. However, I have no doubt that the mother continued to zealously guard what she saw as the primacy of her role in caring for J and after her birth, H as well. That has remained her attitude to the present time. She does not easily brook interference in what she sees as her entitlement to parent the children as she sees fit.
During 2001, the father continued to work hard. It was a difficult time for the mother, who was juggling many responsibilities. After H was born, the pressures on her intensified. Things were not helped by the father’s decision to take work in Tennant Creek on the Alice Springs railway, a move that was financially advantages but left the mother with less support in Alice Springs. As a result, there is no doubt that the father had significantly less input into the care of H than in respect of J.
a) Mr and Mrs W
Mr and Mrs W impressed me as decent and thoughtful people, who were still shocked at the end of the marriage between the parties and deeply hurt by the gulf that has opened up between them and the mother. They are both, but particularly Mrs W, anxious to play as large a role as possible in the lives of J and H. I do not regard them as meddlesome grandparents in this regard. To this end it is to Mr W credit that he acknowledged that the mother was a “good mother to her children and continues to be so”. Mr and Mrs W involvement with the children has been limited of late but remains of significant value to the children.
I do not accept that Mr W attempted to intimidate the mother in the aftermath of the parties’ separation in Alice Springs. He is not a counsellor or a person who is particularly skilled in expressing his emotions. What he was attempting to do was to mediate between the parties in a well meaning but ham fisted way. He was also clearly not immune to the high emotion of the situation. I do not think the mother has any proper basis to be fearful of either Mr or Mrs W.
Both the mother and the paternal grandparents blame the other for not taking the initiative to try to mend relations between them. I accept that in the aftermath of what has happened, particularly in January of 2002, that would require a significant amount of magnanimity on the part of all concerned. However, the mother’s response to Mr and Mrs W being involved in the lives of J and H to a very limited degree, in my view, exhibits a significant lack of grace on her part. Her refusal to acknowledge the paternal grandparents at hand over could be as a result of many things – embarrassment or more likely, her perception that they form part of the enemy camp. However, it concerns me that J is allowed to walk from his mother’s home to his grandparent’s car, without there being any acknowledgment between the adults involved. This cannot be conducive to J feeling comfortable in moving between his maternal and paternal family. The mother begrudgingly accepts that there should be contact between J and his grandparents, not because J is likely to benefit from spending time with them but because there is a Court order. I suspect that she continues to be resentful of what she sees as their unwarranted intrusion into her personal affairs.
b) The nature of the relationship between the parties
The antipathy that the mother feels for the father is deep and abiding. It is her position that her attitude towards him and indeed her fear of him are explicable only in terms of the relationship between them being emotionally and physically abusive, particularly in the sense that the father was regularly denigrating of her. The father denies any serious wrong doing on his part. He also argues that the allegations against him lack particularity and as such are unlikely to be true. By implication, he suggests that they have been either fabricated to achieve a strategic advantage on the wife’s part or if not fabricated, certain events have been purposefully misconstrued for the same purpose.
By their nature, incidents involving emotional or physical abuse by one spouse on the other occur within the confines of the family and as such, it is very often the case that no corroborative evidence exists to support the allegations made. For the same reasons, it is often difficult for the person against whom allegations have been made to refute those allegations.
In this case, the evidence in support of the mother’s position consists of her testimony and that of her mother, Mrs G and a friend, B D G.
The wife’s allegations fall into two main categories. Firstly, that the husband verbally and emotionally abused her by denigrating her personally and her capacity as a parent, by referring to her as “fat” or “lazy” throughout the marriage. She alleges that J was often present during these exchanges. She alleges this verbal abuse was particularly bad on Sundays. However, she is not able to specify exact dates on which this denigration took place. She specifies it as a constant feature of the relationship between the parties.
Ms G gave evidence by way of a telephone link from Doomadgee, where she is currently working as a nurse. In that sense the father was at a disadvantage, as all concerned were unable to see her, as she gave her evidence. She deposed that as a work friend of the mother’s, she was a regular visitor to the parties’ home. In that capacity, she said that she had heard the father say to the mother, in the presence of J, the following comments or words to the same effect:
“You’re a fat slut;
You’re a useless mother;
Without me you wouldn’t cope;
You’re a fat cow;
You’re a fat pig;
I don’t know how they put up with you at work. You just sit on your butt and do nothing (at work) while I work.”[10]
[10] Ms G’s affidavit paragraph 5
Ms G was unable to give specific dates on which these exchanges took place or place them in any particular context. Under cross-examination, she maintained that the father had used these particular expressions to the mother.
Mrs G deposed that during the time that she spent in the parties’ home during holidays in Alice Springs, she heard the father “constantly” refer to the mother as “lazy”. On another occasion, around the time of the Alice Springs Show, she deposed that she heard the father refer to the mother as “fat and lazy”. Of some note, is the fact that Mrs G indicated that J on occasions mimicked his father’s language.
The father denies that he ever consciously denigrated the mother, particularly by using the word “fat” or other terms of abuse such as “slut” or “pig” to describe her. He asserts that he used the word “lazy” in a general sense, with no particular reference to the mother. In this regard, I do not accept his evidence. The mother’s evidence is corroborated to a large degree by Ms G and Mrs G. I do not believe that the inability of the mother, Ms G or Mrs G to give specific dates or the exact context in which the words were used necessarily weakens the effect of their evidence. In my view, the evidence is relevant because it is symptomatic of the nature of the relationship between the parties. Ms G and Mrs G are not to be criticised for failing to intervene or express their disapprobation for the father’s conduct. After all, they were each guests in his house and I can understand why they would not want to interfere between husband and wife.
Secondly, the mother alleges that the father would “spasmodically” but “regularly”[11] pinch her or punch her with a protruded knuckle. She also asserts that on at least three occasions, the father would squeeze her hand so tightly that she would be in great pain. These incidences are not episodes of extreme violence and certainly did not require medical treatment. In my view, they are akin to the actions of the school-yard bully, asserting his dominion over a weaker person.
[11] Mother’s affidavit paragraph 15.4
The mother also alleges that the father would inflict love bites on her, although she did not consent to this practice and indicated so to him. The father agrees he would do this from time to time. The mother saw such things as a mark of possession. The father as a sign of love.
The father denies that he was ever maliciously violent towards the mother and that whatever physical episodes there were between the parties, were mutual and were akin to affectionate horseplay. I do not accept his evidence. I believe that the relationship between the parties was characterised, to a large extent, by the father’s belittling and demeaning conduct towards the mother. I do not believe that the mother has concocted this evidence in concert with her mother and Ms G. The behaviour complained of is not the most serious of its kind but it is not appropriate behaviour to display in front of a child. The behaviour indicates a power imbalance between the parties and is not an appropriate way for an adult to behave towards another adult, certainly not that adult’s partner. I accept that the behaviour complained of by the mother would have a cumulative and corrosive effect on the recipient of that behaviour, particularly if that person was emotionally vulnerable. Obviously, it is not behaviour that would predispose a person to think favourably of the person who inflicted that behaviour upon him or her.
c) A S
Mrs S is the father’s 41 year old sister. She has three children aged 19, 17 and 9. I accept that she, her husband and children love J and H and are accordingly very supportive of the father’s application. Prior to the parties’ separation, the relationship between the mother and Mrs S was polite but not intimate[12]. I have no doubt that since January 2002, things have deteriorated to a marked degree between the mother and Mrs S. In my view, given that the relationship was not strong in the first place, there is unlikely to be any great rapprochement between her and the mother in future. The mother will not feel comfortable with Mrs S and Mrs S will not feel comfortable with the mother. This is also likely to be the situation with other members of the W family. I do not believe that the mother has ever felt particularly close with any members of the W family. Because of her marriage to the father, her relations with them have been courteous but not particularly warm. Now that the relationship between the parties has ended and ended in traumatic and abrupt circumstances, it is inevitable that there should be some resentment between some members of the extended W family and her. It is difficult to see how they could be a source of any great emotional or other assistance to her in future, given that the relationships were not strong in the first place. I accept that the W family is close and tightly knit. In all these circumstance, I can well understand why the mother would have an “us and them” mentality regarding the W family and in Alice Springs would feel outnumbered. Alice Springs is most certainly not her home town.
[12] Mrs S’s affidavit paragraph 12
d) Mrs G
Mrs G was a pleasant and frank witness, who obviously shares a close relationship with her daughter and as a result has a similar relationship with J and H. She was closely involved with the care of J and H between January and May of 2002, the period in which the mother left and returned to Alice Springs. No doubt this was the time the mother was at her lowest ebb. Prior to this time, Mrs G regularly visited Alice Springs, particularly after the birth of J and then H. As a result, I have no doubt that Mrs G is the first person to whom the mother turns when she is in need of emotional support. In my view, the relationship between mother and daughter is particularly close. I accept that the G home in Tathra would provide safe and appropriate accommodation for the two children concerned and that Mrs G would be in a position to assist the mother with their care from time to time.
e) The circumstances surrounding the parties’ separation
The parties’ separation was traumatic for all concerned. From the father’s point of view, it was totally unexpected and as a result he was emotionally unprepared for it. I accept that both parties said and did things at the time that they now regret. The husband did behave in an erratic and to the wife, unpredictable manner. It is understandable that he would do so as the foundation of his life had been upturned. The clear tenor of the mother’s behaviour from the 15th of January 2002 onwards was that she was leaving Alice Springs and was taking J and H with her. In those circumstances, it is understandable that the father would be upset. As matters transpired, the mother did leave Alice Springs with the children without first informing the father of her plans. However, the fact remains that the father did not directly threaten the mother or inflict violence on her at any time during the period from when he returned from Tennant Creek until the mother left Alice Springs. He did say a number of things that were ill considered and intemperate, in the heat of the moment. It was as a result of the mother’s concerns and the involvement of the police that he voluntarily surrendered his firearms to them. Apart from seeking the assistance of the police to remove her belongings from the former matrimonial home, during which time the police report that Mr W was “rational and polite”,[13] the mother did not have to seek any further assistance from the police.
[13] Northern Territory Police case report 17 January 2002
From the mother’s point of view, I can appreciate that the intensity of the father’s response to the separation would have been unsettling and at times frightening. There can be no doubt that the father did monitor her movements around Alice Springs. I accept that he did this because he was fearful that the mother would leave Alice Springs and take J and H with her. The father had good reasons to have such fears.
I believe that it is disingenuous for the mother to suggest that her apprehension about the father’s mental state was a major cause of her leaving Alice Springs. In my view, the evidence is clear, that the mother had determined that she would leave Alice Springs with J and H regardless of what happened and what the father’s view was of the matter. As I have already found, the actions of Mr W Senior were not designed to be intimidatory of her. He, like the father himself wanted the mother to give the marriage another chance. As matters transpired, the father’s fears were well founded and the mother did in fact leave Alice Springs with J and H without further consultation with him.
f) Events since separation
Since the mother has returned to Alice Springs, she has rented a two bedroom unit. The rent is $210.00 per week. Initially she supported herself and the children by means of a sole parent benefit and child support paid to her by the father. The basis of the child support was the administrative assessment. The mother found it difficult to support herself on these sources of income alone and as a result she recommenced part time employment with the Alice Springs Hospital. She is currently working two nights each fortnight.
It is the wife’s position that it is financially difficult for her to remain in Alice Springs. She deposed that she had inquired about the possibility of purchasing a home in Alice Springs for herself but has been informed that she will not qualify for a mortgage due to her income. In addition, she complains that she has been unable to get J and H into daycare in Alice Springs and as a result is unable to increase her hours of work. She is unwilling to contact the Family Daycare Centre in Alice Springs, which provides daycare, because the father’s sister, P D works for this organisation and, as a result, the mother feels uncomfortable having anything to do with it.
In my view, things are not as bleak for the mother in Alice Springs as she would have me believe. In my view, the mother is anxious not to give the impression that it is either comfortable or logistically tenable for her to remain in Alice Springs.
However, I accept that the mother does not feel particularly comfortable in Alice Springs. It is clearly the case that she is without close emotional support in the town at the present time. I accept that she has few if any close friends in Alice Springs and certainly no blood relatives.
The wife successfully applied for a Domestic Violence Order in May of 2002. Since her return to Alice Springs, there have been no incidents of direct conflict between the parties. They have communicated with one another regarding issues pertaining to the children in writing, by means of a series of communication books.
I have read these books. The entries are restricted to information concerning the children and it is apparent to me that there is a frank exchange of information both ways.
The mother gave evidence that she remains fearful of the father and Mr W and feels vulnerable in Alice Springs. It is a central plank of her case that so long as she is compelled to remain in Alice Springs, her fears will not subside and she will not recover from the emotional legacy of what occurred when the parties separated and during the marriage. I agree with Mr Ralph’s assessment that the mother’s “level of apprehension, does not appear to be consistent with an assessment of the risk posed by Mr W and his family.”[14] As a result of her fears, the mother has consulted a Domestic Violence Counsellor in Alice Springs, who in turn referred her to Mr Tyrell, a psychologist. Mr Tyrell has recommended to Ms G that she should attempt to forge some friendships in Alice Springs in order to provide her with some emotional support and, to her credit, the mother has been trying to do this.
[14] Family Report paragraph 44
The father and his parents have had contact with the children strictly in accordance with the orders of the Court and their requests to extend the periods of contact have been rebuffed by the mother apart from the period of the recent school holiday period when she visited her parents in Tathra. The mother remains fearfully protective of her role as the children’s main provider of care.
The father has continued on in his same employment. He has been able to adequately care for both children during the times that they have been with him. From time to time, J has slept over at his paternal grandparent’s home. The husband has successfully completed a parenting course. In her evidence, the mother indicated that it was her view that at the present time the father was “trying to be a more effective parent and a more active father for J”. These are important comments. For obvious reasons, the mother is likely to be the father’s harshest critic.
It is the father’s position that the mother holds back information from him regarding the children and that what information is given to him, is given begrudgingly. He believes that this is because the mother does not wish him to play an active role in the children’s lives. It is a central plank of his case that of the two parents, it is he who is more likely to foster a situation where both parents can be freely involved in the children’s lives. In support of his position he points to J’ enrolment form at the I S Pre School, which is dated the 11th of June 2002. It is clear that the mother enrolled J at the pre school. The father’s name is noted as J’ father but no contact number is noted for him. The nurse coordinator at the Alice Springs Hospital is noted as the “alternative emergency contact” in the event that the mother cannot be reached. There is no reference to the father in this regard. This form was not specifically put to the wife and as a result I do not have the benefit of her explanation for it. I can well understand why the father would feel aggrieved by it but there may be a logical explanation for his omission from the form. In any case, there is no evidence at all to indicate that the mother would not inform the father in the event that one or other of the children was the victim of some calamity.
I do not believe that the communication books demonstrate that the mother necessarily fails to provide information to the father about the children. Her entries in the communication book are terse but informative. For example the mother provided information about frozen breast milk to the father; advised him about prune juice; the use of Panadol for H’s teething; some ant bites suffered by J; the receipt of the I S Pre School newsletter (in this regard it is important to note that the entry was made only three days after J had been enrolled at the pre school); J’ asthma and its management; the fact that H had been taken to the doctors.[15]
[15] Communication book entries for 29 March; 17 April; 19 June; 13 July; 17 July; 18 September; 7 November 2002.
True it is that the tone of the father’s entries are more emotionally engaging from time to time. A tone to which the wife does not respond, maintaining a businesslike manner at all times in her entries. I think what the communication book reveals is that, at this stage and most probably for the immediate future, the parties will not have a free and open relationship in which they will be easily able to exchange information. As I say, it is my impression of the mother that she zealously guards her role as the person who has provided the majority of care for the children.
g) The parties’ future proposals
It is of course the father’s preferred position that the children should live with him in Alice Springs. He would continue to work full time in his current position and as a result would utilise his parents, Mrs S and Mrs D to assist him with the care of the children before and after work. The mother is critical of this proposal as it is untested and may result in the children having a number of carers during the course of any given week. However, in my view, there is no evidence to indicate other than that the people concerned are capable of providing the necessary level of care for the children. The father anticipates that as the children grow older, members of their extended family will play a more significant role in their lives. He believes that this will provide a strong sense of emotional stability and identity for the children.
The father would continue to live in the property that was the former matrimonial home. This is clearly adequate to provide for the accommodation needs of the children. It is the father’s position that J strongly identifies with this property as his home. J also has a friend of his own age, who lives across the road from this property.
It is the father’s hope that the mother will elect to remain living in Alice Springs, notwithstanding the change of residence of the children that he seeks. In his evidence to me, he indicated that he would in future like to work towards a situation where the residence of the children was shared between the parties on an equal basis.
In the event that the mother is granted permission to relocate the children from Alice Springs to Tathra, she would initially live with her parents. She proposes seeking part time work at the Bega Hospital. There seems little doubt that she would be able to get such work. One of the main benefits of the mother living with her parents is that she would be able to save the necessary deposit to purchase a home for herself and the children in future. Whilst the mother is at work, she anticipates that her mother would provide care for both J and H when necessary. However it is anticipated that J will commence at Tathra Primary School and H has been booked into a daycare centre in Merimbula.
The mother has asserted that she has greater career prospects for herself in Tathra. I am not necessarily convinced that this is the case, although Alice Springs is clearly isolated from major population centres on the eastern seaboard. However, in my view, the mother’s future employment proposals are somewhat nebulous, other than that in the short term she proposes remaining employed as a nurse and in the longer term she would like to either embark on a course of study or change her career. In this regard she has mooted several possibilities. These include studying midwifery or medicine or possibly joining her parents in their real estate business. In terms of both midwifery and medicine, the mother indicated in her evidence that she could commence study in both these fields in Alice Springs, as the Alice Springs Hospital is a teaching hospital attached to Flinders University. Clearly, it would be practical for the mother to work with her parents if she wished to become a Real Estate Agent. Although the mother has employment prospects in Alice Springs, it is clearly the case that it would be her preference to pursue these opportunities elsewhere.
h) The mother’s current state of mental health
In this regard, the mother relies significantly on the report and assessment of Mr Tyrell. As such, the father was at a significant forensic disadvantage because Mr Tyrell was not able to be cross examined. The reason why Mr Tyrell was not available was, in the circumstances of the case being rescheduled, plausible and to a large extent unavoidable. The only way to have him available was to adjourn the proceedings, a course that neither party wished to pursue.
Pursuant to the Family Law Rules[16]
[16] Order 16 Rule 10 (2)
“If a party requires a deponent to attend cross examination and the deponent fails to do so, the Court, or a Registrar may;
a) Refuse to allow the deponent’s affidavit to be used; or
b) Allow the affidavit to be used only on terms directed by the Court, or the Registrar; or
c) Adjourn the proceedings until the deponent attends for cross examination.”
In the circumstances of this case, I determined that the mother should be allowed to rely on the affidavit. However, in my view, I must be cautious in respect of the evidence which it contains. However, I note that Mr Ralph, the family report writer and also a psychologist, discussed the mother’s psychological status with Mr Tyrell and reached broadly the same conclusions as Mr Tyrell did.
The mother indicated to Mr Ralph that she had been diagnosed by Mr Tyrell as suffering from a post traumatic stress syndrome. This was not the case. It is Mr Tyrell’s opinion that the mother has displayed symptoms that are “consistent with a post traumatic stress reaction.”[17]
[17] Family Report paragraph 45
In my view, the mother has a propensity to exaggerate the extent of the adverse consequences for her of remaining in Alice Springs. This is hardly surprising given that she is emphatically not predisposed to see any positive features of her remaining in the town. In those circumstances, it is not surprising that her negative reactions to the town should come to the fore. To Mr Tyrell, the mother reported she was “socially very avoidant”; had sleep disturbances and recurring nightmares and that she felt “numb” and “trapped” in Alice Springs.[18]
[18] Mr Tyrell’s report page 4
As a result, Mr Tyrell made the diagnosis that the mother was suffering “an anxiety based post traumatic reaction to some aspects of her relationship with Mr W… [which] has since mildly resolved, but has left residual adjustment symptoms which are anxiety based, with a back drop of emotional numbing and overall depressed mood…” This diagnosis caused Mr Tyrell to conclude that
“Based on the above history there is very little doubt that Ms G will continue to exhibit symptoms of episodic depressed mood, numbed emotions, social avoidance responses, hyper arousal symptoms, including disturbed sleep and associated fatigue along with marked lack of joie de vivre while she is obliged to stay in Alice Springs.
Clearly such a mental state is far from optimal to manage two infants, at least one of whom is likely to continue to exhibit adjustment symptoms derived from the whole situation.”[19]
[19] Mr Tyrell’s report page 5
It was Mr Tyrell’s opinion that the mother’s symptoms would be relieved if she moved away from Alice Springs, as she wished to do. The corollary of this was that her continuing to remain in Alice Springs was likely to be psychologically detrimental for her and as a consequence likely to have an adverse impact on her ability to adequately parent the two children concerned.
Having closely read Mr Tyrell’s report and bearing in mind that its writer has not been subject to cross examination, I think that I can conclude that it is Mr Tyrell’s view that Alice Springs does not and is unlikely to provide in future, the optimal environment for the mother’s personal development and emotional security and this may have ramifications for her ability to parent J and H. This is certainly the view of the mother herself and of Mr Ralph.
It was Mr Tyrell’s opinion that;
“While it could be expected that some of her traumatic responses will moderate with graded exposure to their reminders, it is very doubtful that she will recover in her present environment to the extent that she can optimally parent her children.”[20]
[20] Mr Tyrell’s report page 7
The extent of the mother’s capacity to recover her emotional equilibrium in Alice Springs is a matter of controversy between the parties. In those circumstances, given that Mr Tyrell was not cross examined about his opinion, I do not believe that it is appropriate that I give this aspect of his conclusion any great weight. It was Mr Ralph’s opinion that the mother was more emotionally resilient and had better coping skills than she gave herself credit for. In Mr Ralph’s words, the mother had an ability to “bounce back”.[21] This coincides with my own impression of the mother, who as a medical professional can easily and confidently access professional support for herself and the children. However, the general tenor of Mr Tyrell’s report confirms my assessment of the mother that she is deeply unhappy in Alice Springs and that this unhappiness is long standing and is not likely to dissipate to any great degree in the long term. However, as a mature and intelligent person, she is likely to be able to cope with living in Alice Springs, albeit that it will be against her will.
[21] Family Report paragraph 46
i) The Family Report and the evidence of Mr Ralph
A family report was prepared to assist the Court in the disposition of this matter. The report was prepared by Stephen Ralph. Mr Ralph is a psychologist with approximately 20 years experience. He holds both a Bachelor and Masters degree in psychology. He has been employed as a Court Counsellor by the Family Court for approximately 13 years and during that time has prepared literally hundreds of family reports for this Court and the Family Court. I found him to be an impressive and well qualified witness. Mr Ralph’s report was measured and well considered. He described the case as being “finely balanced” and as such it was not possible for him to make a definite recommendation in regards to it.[22] The difficulty from Mr Ralph’s position was that, in his view, both J and H had a firm attachment to both their parents and their extended family on both the maternal and paternal side. In short the children loved both their father and mother and as a consequence it would be a major act of adjustment for them to leave Alice Springs.
[22] Family Report paragraph 40
In his report, Mr Ralph closely evaluated the positive and negative aspect of each of the parties’ preferred options. He had serious reservations in respect of the father’s proposal that the children should come and live with him. In Mr Ralph’s view such a transition had the potential to be very difficult for the children, as the mother had been the children’s primary carer since their birth and, as a result, both J and H were firmly attached to her and accustomed to her care. It was Mr Ralph’s assessment of the mother that she was a capable and insightful parent. He was not impressed with the father to the same degree, although he accepted that Mr W was committed and loving. In short, it was Mr Ralph’s assessment that the mother had been more closely involved with both children and on balance, was more likely to be the more proficient parent. As a result, he was clearly concerned about the possible detrimental consequences for the children, if the parent who was primarily responsible for providing for their needs, was changed at this time.
That is not to say that Mr Ralph was greatly enthusiastic for the mother’s proposal that she should be permitted to live with the children in Tathra. In Mr Ralph’s assessment, the mother was likely to be extremely unhappy and distressed if, from her perception, she was compelled to live in Alice Springs and this was “likely to impact upon her capacity to effectively cope at least in the short term”.[23] Mr Ralph also agreed with Mr Tyrell’s assessment that the mother had experienced significant stress as a result of the break down of her marriage and that, as a result, her psychological functioning had been detrimentally effected. However, as I have already indicted, Mr Ralph was of the view that Ms G’s desire to leave Alice Springs, because of her fear of the father and his family, was out of proportion to his assessment of the risk posed by them as described to him by Ms G. It was also his assessment that, as a resilient and strong woman, she had the capacity to emotionally regroup if forced to remain living in Alice Springs.
[23] Family Report paragraph 43
In Mr Ralph’s assessment, the major negative aspect of the mother’s preferred outcome was that the children would have little opportunity to maintain the significant relationship they had with their father and his family from the distance of Tathra. Given her age, this was a particular concern in respect of H. In this regard, he was concerned that the contact proposed by the mother – that is on two occasions each year in Alice Springs, regularly by telephone and by video camera and at other times as agreed between the parties – was not sufficient to enable the children, particularly H, to maintain what was clearly a significant and well developed relationship between father and children.
This clearly is the central aspect of the case and was the subject of much cross examination by counsel for the father. Mr Ralph agreed with the proposition that generally speaking, children formed their main attachments to their parents and significant other relatives between birth and about six years of age and that the nature of this attachment changed and ordinarily became stronger over time, as the child developed cogitatively in his or her early years. In that sense, Mr Ralph agreed that the bond between J and his father “had some way to go and more so with H”. Accordingly, in Mr Ralph’s view, it could not be said to be in the children’s best interests to, in effect, break their bond with the father at this stage. The long term possible consequences of this were that the children might feel alienated from their father, might have difficulty maintaining a long term relationship with him and might suffer from the loss of a father figure later in their lives. These were significant matters in Mr Ralph’s view.
Although Mr Ralph agreed that the ages between zero and six were important ones between which a child developed his or her attachment with a parent, he did not necessarily believe that there was anything “magical” about the age of six. The issue that had to be addressed in each case was whether the child’s intellectual and cogitative development was such that his or her relationship with a parent would be able to be sustained in spite of the rigours of separation. In H’s case, given her age of about eighteen months, he was concerned that she would not be unable to conceptualise time and the idea of separation from her father at this stage and as she had limited verbal skills, contact by telephone had little meaning for her. As a result, the effect of her being relocated to Tathra would be that she would forget her father and lose her attachment with him. He had similar concerns for J, but not to the same extent, given his greater maturity.
It was in this context that Mr Ralph formulated his recommendation that consideration be given to the mother’s relocation being deferred until the children had become more mature and intellectually developed. Clearly Mr Ralph considered that the mother had a more comprehensive understanding of parenting issues than the father and on this basis, he was not supportive of a change of residence at this time. However, Mr Ralph was of the view that it was likely to be more disruptive for the children to go to Tathra with her than to remain in Alice Springs with her. Accordingly, Mr Ralph opined as follows:
“If it is the decision of the Court that the children reside with Ms W in NSW then the children will be distanced from their father and his family although they will also have the opportunity to forge stronger ties to their maternal grandparents in NSW. However, the distancing of the children from their paternal extended family is a concern due to the attachments that have already been forged and the age of the children. In particular, H at 18-months of age would have little opportunity to maintain a significant relationship with her father from such a distance. Although Ms W has proposed that contact would occur on two occasions each year in Alice Springs for extended periods (as well as phone contact and other contact as agreed) I do not believe that this would be sufficient for H to maintain a significant relationship with her father and his family. She is too young to have meaningful phone contact with her father and I believe her father would come to play a very limited role in her life as she grows and develops.
If it is the decision of the Court that Ms W be permitted to relocate with the children I believe that consideration should be given to deferring the relocation at least until the commencement of school in 2004 in order to allow the children to more effectively develop and consolidate their relationship with the father and his family. If this is the decision of the Court then clearly Ms W will be disappointed and upset with such an outcome. If this is the case it is possible that her discontent and unhappiness will initially impact upon her coping ability and parenting capacity. I believe, however, that Ms W has the capacity to overcome this setback and that with professional support and assistance she may effectively adjust to such an outcome and move forward.”[24]
[24] Family Report paragraphs 47 and 48
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents 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.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve J and H’s best interests.
As the issue of the location of the children’s residence is at the heart of the case, it is necessary for me to make some specific reference to a number of recent decisions of both the High Court of Australia and the Full Court of the Family Court of Australia.
The High Court considered the issue of relocation in AMS v AIF; AIF v AMS. In the case[25], which was the subject of appeal, both parents sought residence of the child concerned. In addition, the mother sought to be released from an undertaking that she had given not to remove the child from Perth without the father’s consent. At the time of the hearing, she wished to be able to return to the Northern Territory with the child concerned. The orders of the trial judge provided for the child to live with the mother but her application to be released from her undertaking was dismissed and an injunction was granted restraining her from changing the child’s principle place of residence from Perth. On appeal, the Full Court of the Family Court, refused to set aside the restraints on the mother changing the child’s principle place of residence. The High Court (Gleeson CJ. Gaudron, McHugh, Gummow, Kirby and Hayne JJ, Callinan J dissenting) allowed the mother’s appeal. The majority of the High Court held that the trial judge had erroneously exercised his discretion by requiring the demonstration by the mother of “compelling reasons” to counter the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan area of Perth. They found that the Full Court should have intervened on this ground.
[25] AMS v AIF; AIF v AMS (1999)FLC 92-852
In the judgment Kirby J set out nine general propositions derived from the authorities relevant to the question of relocation of a child’s residence, as follows:[26]
[26] AMS v AIF FLC92-852 at page 86,041 – 86,043
“141.This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.
142.First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a ‘careful and delicate analysis’, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
143.Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the ‘welfare’ (or ‘best interests’) of the child should be the paramount consideration. It may provide a list of considerations or ‘principles’ to be applied in the exercise of the court’s powers. However, the ‘paramount’ consideration is not the same as the ‘sole’ or ‘only’ consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144.Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these consideration, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145.Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146.Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the ‘feminisation of poverty’ resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v. Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147.Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas, wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in other jurisdiction but with different orders as to access and contact.
148.Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149.Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court'’ discretion.
150.Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”
The mother’s proposal also has major implications for the children.
I do not think that the physical removal of them from Alice Springs to Tathra has any great problems for the children. They are both young and not as yet attending school. They are unlikely to find the move to another town or the resumption of residence at the place where they spent some months living earlier last year unduly unsettling, provided they have continuity of care from their mother. There are some positives from their point of view in that their mother, their primary provider of their care, would be significantly happier and they would have the opportunity to develop their relationship further with the maternal side of their family. However, the detriments are obvious and serious. J and H will be deprived of the opportunity to have regular contact with their father. Given their ages, but in particular H’s, I accept that this might be tantamount to the children being deprived of the opportunity to have a relationship with their father. This may have implications for their long term development as they grow older in that they will not have a father figure in their lives. At any rate, there can be no doubt that the relationship will be severely curtailed. This is the central issue in the case. I am required on the one hand to balance the possible detriment to the children of their having an unhappy and unfulfilled mother with, on the other hand, the inevitability that they will suffer a severe curtailment of their relationship with their father. Given this background, the proposal advocated by Mr Ralph and extended upon by the father has substantial appeal. It allowing, to varying degrees, a moratorium during which the children can continue to develop their relationship with their father to the stage where it could more easily withstand the rigours of separation. The moratorium proposal also has the negative aspects to which I have already eluded.
d) The practical difficulties associated with contact
It is a very long way from Alice Springs to Tathra. Neither party provided me with evidence of the cost of air travel between the two locations but I accept that they are likely to be considerable, particularly if the children are accompanied, which given their ages would be necessary at this stage. Similarly to travel between the two locations by road would be time consuming and expensive.
Neither party is in a strong financial position. The mother is likely to be in part time work for the foreseeable future and to be augmenting her wages with social security and child support received from the father. The father is an average wage earner, earning about $620.00 gross per week. He pays a mortgage and is scrupulous with child support. It is the mother’s position that the parties should share the cost of travel between Alice Springs and Tathra, in the event that she is able to relocate to Tathra with the children.
The mother proposes that in the event of her moving to Tathra, the father should have physical contact to the children on two occasions each year at Christmas and in the mid-year school holiday. Accordingly, periods of physical contact will be separated by about six months. In addition, she proposes thrice weekly internet contact and regular telephone contact. Whilst video cam contact represents a considerable advance on telephone contact, the technology is still developing and it cannot represent a proper substitute for actual physical contact between a child and a parent. It does not allow a child to interact with a parent in a variety of circumstances. It may even be alienating. It is certainly artificial.
I am gravely concerned at the implication of the mother’s proposal that the children should have physical contact with their father only every six months or so. The father has concentrated in his case on his primary position and has not closely considered the contact he would seek in the event that the children would leave Alice Springs to live with their mother in Tathra. In this regard, I bear in mind what was said by the Full Court in A v A – Relocation Approach as follows:
“In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interest of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to consider a regime which would best meet the rights of the child to know and have physical contact with both its parents.”[37]
[37] A & A – relocation approach at page 87,553
In my view, given J’ and H’s ages and the distance between Alice Springs and Tathra, and in particular the matters referred to in section 60B of the Family Law Act, the contact proposed by the mother, in the event that she relocates the children with her to Tathra, is not adequate.
e) The capacity of each parent to meet the children’s needs
I am satisfied that both parents can provide for the children’s needs. The mother in particular is an exemplary parent. The father has gone to some lengths to improve his parenting ability by attending a parenting course. At the present time, J is a child who is reported to have displayed some behavioural disturbance since the parties separated.[38] However, in Mr Ralph’s assessment, with which I concur:
“Although Mr W has expressed reservations about the mother’s capacity to parent the children I do not consider the concerns he has raised in relation to the children’s medical care and supervision or Ms W’ management of J, to be factors that would support a change in the children’s residence. In relation to the management of J, Ms W has acted appropriately in seeking professional help and presents as more than capable of managing J’ behaviour. In contrast, Mr W own account of his management of J in terms of hitting him with a wooden spoon (because it was at hand) or “telling him off” does not convince me that he is well equipped to manage J’ behaviour.”[39]
[38] Mr Tyrell’s report page 5
[39] Family Report paragraph 42
I am satisfied that of the two parties in this case, the mother displays the greater aptitude to provide for the emotional and intellectual needs of the children concerned. This is a factor that strongly militates against a change in their residence arrangements at the present time.
f) The children’s maturity, sex, background and other characteristics
Neither of the children has any particular attributes that make this subsection particularly relevant, other than their ages and current level of intellectual and cognitive development, particularly in regards to their ability to vocalise their thoughts and conceptualise time in the context of have to possibly conduct a long range relationship with their father via the telephone and video camera, issues to which I have already made reference. In this context, H’s age is particularly relevant. She cannot use the telephone meaningfully and will not be able to assimilate what it means not to see her father for up to six months. Her memory of him and her attachment to him is thus likely to become disrupted over a six month period.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
I am satisfied that neither parent would actively expose either J or H to any direct physical or psychological harm. However, there is no doubt that the tensions between the parties following their separation, the circumstances of the wife leaving Alice Springs and of her return to the town, have been unsettling for J in particular. There is an uneasy truce between the parties. When J has contact with his paternal grandparents on Monday afternoons he walks unacknowledged from his mother to them. A similar atmosphere exists when the children move between their parents at other contact hand overs. Such an uneasy atmosphere is not conducive to the children’s psychological wellbeing. They are not able to assimilate the reasons for the enmity that exists between the people who are significant in their lives.
h) The attitude to the children and the responsibility of parenthood
I am satisfied that both parties have a positive attitude towards J and H and the responsibilities of parenthood generally. The father is critical of the mother because of what he indicates is her generally negative attitude towards him and members of his family. As I understand his criticisms, they are raised in the context of the matters set out in section 60B(2) of the Family Law Act. It is the father’s position that the mother is unlikely to foster in the children a positive attitude towards him personally and his role as the children’s father and in fact, is likely to be either actively or passively undermining of that role and the wider role that members of his family wish to play in the lives of the children.
I accept that one of the greatest protection that can be given to the children of separated parents, in order to safeguard their emotional well being, is the realisation that both their parents love them and that the parents themselves respect the others ability as a parent. When children have such an understanding they are comfortable to express openly their love for both parents without fear of disapprobation.
The parties have some way to go in this regard. I have found that during the parties’ marriage, the father was disparaging of the mother on a regular basis. As a result, he must bear a large part of the responsibility for the uneasy relations that currently exist between him and the mother. I do not accept that the mother has concocted the behaviour of which she complains on the part of the father in order to gain a strategic advantage later in these proceedings. In these circumstances, it is somewhat hypocritical for the father to accuse the mother of being undermining of his role as a parent. To describe a co-parent as “fat” and “lazy” and to subject him or her to acts of petty violence is not behaviour calculated to present a good role model to children. The mother was and is the most significant person in the children’s lives to date. The acts of which the mother complains are the types of action that cause the disruption of a cooperative parenting regime, an action of which the father complains of on the part of the mother.
The mother could do better in regards to her attitude to the father and his parents. In regards to additional contact she has been petty. She has only deviated from the strict observance of the orders when it has suited her. She is somewhat begrudging of Mr and Mrs W having contact to J and has been obstructive in regards to their contact with H. But I do not think that she has actively withheld information about the children from the father. She has utilised the communication book.
I believe that she accepts that it is essential that the children have a relationship with their father. To a certain extent I believe that she accepts that this is the price of her being allowed to relocate with them to New South Wales. I accept her evidence, when she said that one of the positive things that has come out of the parties’ separation is that it has catalysed the father to become a more active parent, who participates in the lives of his children. I also accept it is her wish that, when he is an adult, J be such an active parent. This is not the attitude of a mother, who wishes to exclude the father from the lives of the children concerned. I have indicated that I accept, given the circumstances that prevailed before and after the parties’ separation, the mother is apprehensive of the father. Accordingly, she is unlikely to be expansive with him about the children. However, I do not believe either that she has been alienating of the children from their father or, if permitted to relocate to Tathra, she would be likely to be so. Indeed, I think that the contrary is likely to be the case. If the mother is compelled to remain in Alice Springs, the tension between the parties is likely to be maintained rather than dissipated.
i) Any family violence involving the child or a member of the child’s family
The mother has made serious allegations regarding the abusive nature of the relationship between the parties during their marriage. I accept that the behaviour of which the wife complains seriously damaged her self confidence and have contributed to a large extent to her antipathy towards Alice Springs. I also accept that the father’s disparagement of her occurred, on occasion, in the presence of J. I also accept that J has in the past, mimicked his father’s behaviour towards his mother.
The evil that is represented by violent conduct of the type complained of by the mother, was described by the Full Court of the Family Court in In the Marriage of JD & BG[40] and In the Marriage ofPatsalou[41]. Such violence or derogatory behaviour does not have to be directed specifically at the children concerned to constitute such an evil. The behaviour may be potentially harmful for children and their future development by constituting an unacceptable role model on which they base their own future relationships and how they deal with conflict with the use of violence in the future. Children learn their own future behaviour and how they will deal with difficult situations from what they observe of their parents. In this regard, a parent who uses violence against another person as a means of resolving a dispute or who is derogatory of another person, especially the other of a child’s parents, is not a suitable role model for children.
[40] 1994 18FLR 255
[41] 1994 18FLR 426
Given that the relationship between the parties is now over, it is unlikely that J will be directly exposed to such behaviour in future.
However, this behaviour is one of the strongest motivating factors behind the mother’s wish to leave Alice Springs. It represents a deeply unhappy and unsatisfactory aspect of her previous life. I accept that her concerns about J mimicking his father’s behaviour in the past are genuine ones.
j) Any family violence order that applies to the child or a member of the child’s family
The mother has a current Domestic Violence Order against the father. There have been no transgressions of this order and no suggestion of any transgression since the order was made. As I have already indicated, I am of the view that to a large degree, the mother over emphasised her need for this order. However, I am satisfied that the order was properly made. However, given the current relations between the parties, the current order is not a significant consideration. The parties are able to make appropriate arrangements in respect of the children notwithstanding the existence of the order.
k) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parent’s circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
As I have already observed, neither of the parties are in a particularly strong financial position. Accordingly, it is desirable that as far as possible the prospects of future litigation be minimised.
I am concerned that the option proposed by Mr Ralph and extended upon by the father, do not bring these proceedings to a termination.
I am fearful that each party will use any possible incident that occurs between now and the end of the twelve month period postulated by Mr Ralph and the four and a half year period as postulated by the father, as a pretext to bring more litigation either to bring the moratorium to an end or to extend it. If compelled to remain in Alice Springs, the wife will undoubtedly be bitter and dissatisfied. I strongly suspect that her dissatisfaction is likely to be a catalyst to further litigation on her part. Certainly it will not lead to easy relations between the parties.
The most likely result that will bring about a situation where there are no further proceedings, is one where there is a definite decision between the two principle competing proposals of the parties – either the relocation of the children to Tathra with their mother or a change of their residence in Alice Springs.
l) Any other fact or circumstance that the Court thinks is relevant
Two major reasons that the mother gives for wishing to relocate to Tathra are that she will be more financially secure there and will have greater career opportunities. I do not believe that the option of the mother remaining in Alice Springs necessarily condemns her to a life of rural penury, living in rented accommodation indefinitely. She has a comparatively well paid job at the present time at the Alice Springs Hospital in terms of the remuneration she earns for the number of hours she works each week. She has a professional qualification, which is in demand. She is not prevented from studying either midwifery or medicine in the event that she does remain in Alice Springs. However, at the present time, for obvious reasons, the mother is not disposed to see anything positive for herself in Alice Springs. Again for obvious reasons, she has not seriously tried to obtain permanent accommodation for herself and the children in Alice Springs.
In the long run, I do not necessarily think that the mother would be prevented from purchasing a house for herself and the children if she does remain in Alice Springs. However, it would undoubtedly be a long-term struggle for her, as she would have to balance work commitments, her rent and child care commitments for the children, whilst she saved the necessary deposit for a property. I have little doubt that the wife would be able to obtain appropriate employment for herself in Alice Springs and I do not believe that her career would necessarily be stalled if she remained in the town.
One of the great advantages of her moving to Tathra is that she would be able to live rent free with her parents and so save a substantial portion of her wage each week. In Tathra, she has the same career opportunities in nursing as are available to her in Alice Springs, with the addition of the option of a career in real estate with her parents. In Tathra, she would be able to save a deposit for a house much quicker than in Alice Springs.
However, to my mind, the greatest advantage of Tathra, from the mother’s point of view, is the indefinable quality that she would gain from having a sense of controlling her own destiny. In Tathra, she would feel untrammelled in her choice of career. In Alice Springs, she would feel enthral to the father. As I have already said, I am concerned that her sense of being so confined, may have ramifications for her ability to care for the children to her maximum capability.
Finally, I have no doubt that the sense of isolation that the mother currently feels in Alice Springs will be greatly ameliorated if she goes to live in Tathra. There she will have the support of those she loves, especially her own mother. I accept that she has made attempts to seeks social support in Alice Springs, especially since seeking professional assistance from Mr Tyrell. I accept that the mother does have the ability to make new friends wherever she is. Certainly, in the past in Alice Springs, she made friends through her work at the Alice Springs Hospital. However, bonds and social networks do not develop overnight and depend on time and common enthusiasm to develop. The closest bonds and friendships are usually those of blood and those which are longstanding. Clearly, in the wife’s case, these bonds for her are in Tathra. I accept that certainly in the short-term and most probably in the long-term as well, the mother is likely to be happier in Tathra than in Alice Springs.
Accordingly, the fact that the wife will be able to control her destiny in Tathra, choose the work she wishes to pursue there and more quickly assume financial security for herself are factors that favour a move to Tathra. As I have already indicated, a happy and self fulfilled parent is likely to be a better one.
Conclusions
This is a difficult and finely balanced case. Each of the parties has a close and loving relationship with the children concerned and wishes the best outcome from these proceedings for the children.
The object of the Family Law Act as set out in section 60B(1)[42] is a statement of the optimum outcome in each case. The right to know and be cared for by both parents and the right to contact with both parents and with other people significant to them are rights of the children and not of the relevant adults. I have closely considered the effect a move to Tathra would have on the frequency and quality of face to face contact that J and H would enjoy with Mr W. It is clear to me that if the children were to live in Tathra, Mr W would not be able to participate in aspects of the children’s daily lives in the same way he currently does now that they live in Alice Springs. Against that must be set the ramifications of forcing Ms G to remain in the environment of Alice Springs and the continuing tension that is generated when she is in close proximity with Mr W. I accept that that tension must have the capacity to impact adversely on the children, particularly in the sense that Ms G’s ability to properly parent the children will be adversely affected.
[42] See paragraph 89 hereof
In assessing which of the parties proposals will best meet the children’s best interests, I take into account all of the findings that I have made earlier in this judgment. Of paramount importance in this regard is my finding that the mother has been the most significant person in the lives of the children to date and that as a result, the children are closely bonded to her. It is also of great importance that I have found her to have more competent parenting skills than those of the father. In my view, these are the most significant factors that militate against a change of residence at this stage. I accept Mr Ralph’s assessment that the children are likely to experience a considerable degree of difficulty in adapting to a change of residence at this stage.
As I have already noted, I am not entitled to consider the case in a way which differentiates the issue of residence from that of relocation into discrete issues. I have formed the view that the children should continue to live with their mother. In my view, the evidence establishes that this would be in their best interests. I am satisfied that the mother would be deeply unhappy and unfulfilled if compelled to remain living in Alice Springs. This leads me to the conclusion that she should be permitted to relocate with the children from Alice Springs to Tathra. The mother is not required to provide compelling reasons for her wish to move. In all the circumstances of this case, the reasons that she has given for wishing to move are natural and understandable and are clearly not motivated by any feelings of malice towards the father. To require the mother to demonstrate compelling reasons for any move, would have the effect of perhaps permanently tying her to live in physical proximity with the father for an indefinite period of time. As is obvious, the personal relationship, which in the past has held her in Alice Springs and which gave rise to the birth of the two children concerned, has finished, or at least materially altered. Given that the best interests of the children concerned is the paramount, but not the only consideration in this case, it behoves me to consider the legitimate expectations and ambitions of the mother, who wishes to pursue her life and career near her family in Tathra. In all the circumstances of this case, I do not believe that it is reasonable that she should be compelled to live in Alice Springs with the children, either for twelve months, the next four and a half years or indefinitely.
I have closely considered the proposal of Mr Ralph that the mother should be compelled to remain in Alice Springs until at least the commencement of the school year in 2004. I have also considered the father’s intermediary position that the mother and the children should remain in Alice Springs until H reaches the age of six years. On the surface, these proposals have much to recommend them. However, ultimately, I do not believe that either of them can be said to be in the children’s best interests. I do not believe that to compel the mother to be restrained from leaving Alice Springs for a period of one to four years is likely to significantly ameliorate her feelings of dissatisfaction and unhappiness. To the contrary, I believe that to so restrain her is likely to increase her feelings of powerlessness and entrapment. In such circumstances, I believe that it is unlikely that she would put significant personal resources into developing a social network for herself or in pursuing a career. There would be little point if her period of residence in Alice Springs is temporary. The tensions between her and the father are likely to be increased rather than reduced. As the time grows nearer for her to leave, the prospect of further litigation will increase. The father will be in the position of wanting to prevail upon her to stay and will look for every pretext to retard her plans for departure. The mother will feel that she has been compelled to put her life in limbo for the period of her restraint. For that reason I do not believe that these proposals are in the best interests of either J or H.
At the centre of these reasons is my conviction that of the two parties the mother is the one who is more attuned to the needs of the children and has the greater capacity to meet the children’s needs, both physical, intellectual and emotional.
The major fault with the mother’s proposal is that it significantly interferes with the entitlement of J and H to have regular and meaningful contact with their father. I do not believe that either telephone or video camera contact will adequately compensate the children for the loss of this right. Similarly, I do not believe that the mother’s proposal that there be actual face to face contact approximately every six months in Alice Springs is adequate to satisfy this entitlement on the part of the children.
In evaluating the competing proposals of the parties, I am entitled to evaluate the competing proposals of the parties and, if necessary order a regime which I consider will best meet the rights of the children to know and have physical contact with both of their parents.
I have closely considered this issue, particularly in the context of the financial circumstances of both parties, neither of whom are in a strong financial position and being well aware that the likely cost of transport between Tathra and Alice Springs and return is likely to be a significant one. Notwithstanding these factors, I am of the view that there should be contact between the father and the children on at least four occasions each year until H is five years of age in June of 2006. The burden of this travel should be borne by both parties equally.
In the event that the father visits Tathra or finds himself for any reason in the location of Tathra for an extended period of time, there should be more extended periods of contact. The father has never proposed his personal relocation from Alice Springs to the south coast region of New South Wales. Nor was he cross-examined about the practicalities of such a move. Accordingly, there is no evidence in respect of such a possibility. However, notwithstanding this fact, I propose to make orders for contact if the possibility ever eventuates.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date:
0