W and W
[2007] FMCAfam 647
•4 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
W & W [2007] FMCAfam 647
FAMILY LAW – Parenting – application to live with parent overseas – relationships with parents and half-siblings – mother’s capacity to parent – strong and consistent views of child – age and maturity of child – father’s influence – questionable support by father of relationship with mother – child allowed to move overseas.
Family Law Act 1975, ss.60CC, 61DA, 65DAA, 65DAC, 65DAE, 117
King and Finneran (2001) FLC 93-079
Rice and Asplund (1979) FLC 90-725
Applicant: BW
Respondent: JW
File number: CAM 2312 of 2001
Judgment of: Mowbray FM
Hearing dates: 28 & 29 May 2007, 12 June 2007
Date of last submission: 30 July 2007
Delivered at: Canberra
Delivered on: 4 September 2007 REPRESENTATION
Solicitors for the Applicant: Applicant in person
Counsel for the Respondent: Mr I. Nash
Solicitors for the Respondent: Legal Aid Office ACT ORDERS
(1)All previous parenting orders for LW born August 1995 apart from Order 5 of 7 August 2006 be discharged.
(2)The parents have equal shared parental responsibility for the child.
(3)The father and mother each have sole responsibility for the day to day welfare and development of the child whilst the child is in their respective care.
(4)
The child travel to London in the United Kingdom no earlier than
27 December 2007.
(5)The father pay the cost of the child’s travel to the United Kingdom pursuant to Order 4.
(6)The child live with the mother until he travels to the United Kingdom pursuant to Order 4.
(7)The child live with the father after he travels to the United Kingdom pursuant to Order 4.
(8)Order 5 of 7 August 2006 be discharged from the time the child commences living with the father in the United Kingdom.
(9)From 1 January 2008 the child spend time and communicate with his mother in Canberra, Australia as follows:
(a)For two weeks at Christmas in each odd year;
(b)For the whole of the UK summer school holidays in each even year;
(c)For one other UK term school holiday period in each year, the particular holiday period to be agreed between the parties;
(d)Such other or alternative times as agreed between the parties;
(e)By e-mail at any reasonable time;
(f)By telephone each Wednesday and Sunday at times agreed between the parties, with the calls to be initiated by the father.
(10)The father be responsible for the travel costs associated with the child travelling to Australia pursuant to Orders 9(a), 9(b) and 9(c) and shall provide to the mother a paid ticket 28 days prior to departure.
(11)When the child travels to Australia pursuant to Orders 9(a), 9(b), 9(c) and 9(d):
(a)The mother shall telephone the father upon the child’s arrival in Australia and allow the child to speak to the father;
(b)The father shall telephone the mother on the child’s return to the United Kingdom and allow the child to speak with the mother.
(12)When the child travels to Australia pursuant to Orders 9(a), 9(b), 9(c) and 9(d) the father shall communicate with the child by telephone each Wednesday and Sunday at times agreed between the parties, with the calls to be initiated by the mother.
(13)The child spend time with the mother in the United Kingdom at such times as agreed between the parties.
(14)The father ensure that the child calls the mother and half-siblings by telephone on their birthdays and the mother on Mothers Day.
(15)The parents consult and endeavour to reach a joint decision on the school the child is to attend in the United Kingdom.
(16)The father within 48 hours of enrolling the child in the school advise the school of the mother’s contact details and advise the mother of the school contact details including the term dates.
(17)The child’s passport be kept by the father.
(18)Each party inform the other within seven days of any change in their principal place of residence, mobile and/or landline phone number or e-mail address.
(19)The father ensure that details of his principal place of residence is made known to the Department of Foreign Affairs and Trade and the Australian High Commission or Australian Consulate in London.
(20)Each party bear their own costs.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERAACAM 2312 of 2001
BW Applicant
And
JW Respondent
REASONS FOR JUDGMENT
1.Mr BW and Ms JW have one child, L born in August 1995 and now twelve. He was three when the parties separated in 1998.
2.Until 2005 L divided his time between his mother’s and father’s homes in Canberra in the Australian Capital Territory. In August 2005 his father moved to the United Kingdom. He now wants L to go to the UK to live with him.
3.For the reasons below I have decided, albeit with some hesitation, to allow L to live in the UK with his father, with him spending time in Australia at least twice a year to assist maintain his relationship with his mother.
Background
4.The father was born in February 1964 and is 43, the mother January 1965 and is 42. They met in 1993-1994 and commenced cohabitation in May 1995. They married in 1997, separated in 1998 and subsequently divorced.
5.
There is one child of the marriage, LM W, born on 20 August 1995. He was three years old when the parties separated and is now twelve. Following separation L lived week about with the two parents. This was confirmed in orders of this Court on
28 May 2001. This remained the case until the father relocated to the United Kingdom in August 2005. On the father’s application interim orders were then made for L to live with his mother but to have a number of visits to his father.
6.The mother has two children from a previous relationship, A currently 19 and S now 17. Neither party has repartnered.
Competing proposals
7.As a consequence of his move to the UK in August 2005 the father seeks to change the parenting orders made in May 2001 to provide that:
·L live with him
·he have responsibility for making long term decisions concerning L
·L spend time with his mother in Australia twice yearly
·the father pay for the airfares.
8.The mother wishes essentially to continue the regime put in place after the father went to the UK:
·equal shared parental responsibility for L
·L live with her in Australia
·L spend two holidays in the UK each year with his father
·the father pay for the airfares.
Issues
9.I have set out below the relevant evidence on the principal matters in dispute which are:
·relationships with the parents and half-siblings
·father’s concerns about the mother
·L’s views
·the N e-mails
·father’s financial capacity and support
·effect of change in circumstances.
10.There is also the question whether there has been such a significant change in circumstances since the May 2001 orders to justify reopening the parenting orders (Rice and Asplund (1979) FLC 90-725).
Relationships with the parents and half-siblings
11.The father arranged for L to see a Child and Family Counsellor, Ms Wendy Styles, in February 2004. Ms Styles who did not interview the mother concluded:
·L was a cheerful boy who was attached to both parents
·he seemed comfortable in both his parents’ households
·test results suggest the highest level of emotional involvement was with his father
·L probably derived most of his feelings of self worth from his father and he experienced the father/son relationship as strongly positive
·the comparatively lower level of emotional involvement with his mother was unusual – the explanation may have been that the mother was less available due to illness and study
·L had a negative experience of his relationship with his half-brother A.
12.Ms Styles was cross-examined on this report and asked to make comparisons with the later tests conducted by the family reporter and clinical psychologist, Ms Connor (see [37]-[41] below). Her responses were qualified as she had not interviewed the whole family, in particular the mother. Ms Styles said that the Connor test results could mean that L felt positively towards his dad and negatively towards his mum. It could also mean he liked the idea of moving to the UK and “had been seduced by the idea of going somewhere new.”
13.Ms Styles said that it is fairly unusual for a child to be as polarised as suggested in her 2004 testing without some influencing. It could however still be how L feels. But whatever the circumstances in 2004, in particular about provision of evening meals, they were not enough to put L off going to his mother’s.
14.She suggested in her report that a more thorough investigation might be warranted but it would need to include interviews with the mother and the two half-siblings. The father never followed this up.
15.The mother is insistent that L loves both of his parents. She accepts that he has missed his father since the father went to the UK.
16.According to the mother S lives with her and L, but A moved to Sydney in December 2006. He now is resident in Alice Springs. S was very upset when she heard that L might be moving away.
17.Further evidence on these issues is provided by Ms Connor in her reports and oral testimony which is considered at [37]-[41] below.
Father’s concerns about the mother
18.The father says:
·he has concerns over the mother’s capacity to parent and “meet ‘home-based’ parental responsibilities in respect of L’s education”
·the mother did not put in the required effort when L faced difficulties with reading and does not assist with homework
·the mother does not encourage or assist with outside activities for L – not only sporting activities but also such things as visiting school friends
·L likes to do “boys stuff”
·L told him that the mother does not provide regular meals for him – A and S did the bulk of the cooking
·L says that he often does not get to sleep at his mother’s until the early hours of the morning
·the mother refers to relatively regular outbursts by L – but L has always been well behaved in the father’s presence although not perfect and he is not aware of such outbursts
·the father uses “normal conversation” on the rare occasions L needs to be disciplined
·as a result of arguments with the mother including the mother telling L’s half-sibling A “to fuck off” in front of L, A left home in 2006.
19.The mother disputed L’s version of what happened in this conversation with A as relayed by the father, but agreed she did have an argument with A and asked him to leave. Under cross-examination the father said that he had discussed with L the possibility of his son giving his views to the Court in chambers. This was in the context of this allegation that the mother had told A “to fuck off” following which A had left home.
20.According to the father he delayed telling the mother about his UK plans for about two months after he mentioned the possibility to L. One of the reasons for this was the mother’s mental health status – her depression, anxiety, panic attacks, lack of openness and trust – as well as the uncertainty at that stage whether the UK option would eventuate. He was also endeavouring to find out L’s views. He in effect asked L to keep it a secret.
21.The father’s concerns about the mother’s health and her many other inadequacies which he mentioned in his affidavits did not however prevent him going to the UK and leaving L in her care. But “circumstances were tough at the time” and the mother was making more of an effort with some improvement.
22.The mother denies that L has ever gone to bed without any dinner. She cooks for the family most nights. She also involves L in activities outside the home and listed a number of places they had visited including the Botanical Gardens, the Mint, Telstra Tower, and Jenolan Caves. She said that L had agreed to S’s suggestion to do “more expensive one off activities rather than doing a term of one sport.”
23.The mother says that:
·her parenting style is child focussed
·she wants to develop her children’s potential and teach them skills
·she has been able to do this for L with sewing, water colour painting, cooking and gardening
·L’s need for discipline varies and she does not use physical discipline but rather time out and talking
·when L has misbehaved she has been able to cope
·she took medication for depression on and off over about five years
·although she suffers chronic fatigue syndrome this is not now a significant problem and she recently started full time work.
L’s views
24.This is a major issue in this case given L’s age and maturity. In his evidence the father says:
·L has consistently repeated his wish to reside with him in the UK
·after the Christmas 2006 trip he did however say he wanted to stay with his mother
·there were a series of extenuating circumstances surrounding L’s comments on his return to Australia after this trip – the weather in Edinburgh, the theft of his PC games and DVDs on the return trip, the mother’s accidental destruction of his i-pod, the father having to work for a significant period L was with him, the father’s laptop which provided home entertainment collapsing, A leaving home, L’s turtle disappearing
·after two weeks he altered his mind again saying he wished to live with his father
·the father did not influence L’s responses to Ms Connor.
25.In her affidavit the mother says:
·L has expressed different views about where he wishes to live – at times in the UK and at times with her
·he did not enjoy his Christmas 2006 trip to the UK as it was cold and dark and he was lonely – he also said “I’m worried that dad will be upset if I tell him I want to live in Australia.”
·following a telephone conversation with his father L said he was going to live with his father but he could not tell her why
·she is concerned that the father tries to bribe L by promising to buy him things if he moves to UK – he denies this.
26.In oral evidence the mother again accepted that L says he wants to live in the UK with his father. He does miss his father. He has also expressed the opposite point of view. He changes his mind “when we aren’t leading up to things like this [the court hearing] the view tends to be different to when we are.” She believes that he does not really understand what such a change will involve.
27.L’s views are also considered in the material from the family reporter Ms Connor at [37]-[41] below.
The N e-mails
28.The mother expressed concern that the father forwarded e-mails to L that had come from a friend of his named N. N died from cancer. In the e-mails reference is made to L as “our son”. The mother did not think L had ever met the woman.
29.The father testified that he had sent these e-mails to L as L had requested to see them – “I felt that perhaps it was better in case he did want to grieve in some form.” L had known of N. He did not forward the e-mails to L until after N’s death.
Father’s financial capacity and support
30.The father gave evidence that:
·he applied for a position in the UK because he could not get one in Australia, placing him in some financial difficulty
·his transition to the UK had been more difficult financially than he initially anticipated
·after work in a restaurant he obtained a three month contract with the RBS
·due to a recent promotion in March 2007 to a permanent managerial position in the RBS he is now able to meet all financial commitments for L’s full-time care
·his current salary package is 56,250 pounds, including a salary element of 45,000 pounds
·he has not since applied for any positions in Australia because of his age, his financial position and as his role in the UK allows him to develop a career which he would not be able to do in Australia
·he has always made appropriate arrangements for L’s care and never left him alone
·he works Monday to Friday normally starting at 8:00 or 8:30, stopping at 5:30 or 6:30, sometimes working back to 7:30 or 8:00 but not very often
·he does some work on weekends but not very frequently.
31.Mr GM who is the father’s line manager at the RBS gave evidence by phone. He said the father’s performance to date has been very good from his team’s perspective. Although it is reasonably early days in terms of employment prospects he thought he has a good future with the Bank. The father has relatively recently been provided with a “Fob key” allowing him computer access from home. Mr M confirmed that the Bank would allow the father to work from home in times of necessity. Weekend work would be very rare although there would be such occasions.
32.When the father went overseas he was about $3,000 in arrears in child support. He has not paid any child support since leaving Australia as he has not had the money. In February 2007 the Child Support Agency advised the mother his arrears was $8,306.45. Since then it would have increased. His current assessment is $172.67 a month. This is based on a considerably lower income than that which he now earns.
33.The father stated that he was going to lodge a change of assessment application because of his altered circumstances since January 2005. He had previously sent documents to the Child Support Agency but it had lost his paperwork in September 2005 and also earlier in January 2005.
34.The father also agreed he had not contributed towards orthodontic work for L in October 2005. According to the mother this occurred in 2005 and 2006 and cost $1,250.
Effect of change in circumstances
35.The father gave the following evidence under cross-examination:
·he did not think L would be affected negatively by a move to the UK
·L has never been away from his mother for more than a few weeks at a time
·the longest times away from his mother have been the four trips to the UK to visit him –of up to four weeks
·if L lived in the UK he would have to make an entire new set of friends and settle into a new school
·the father had to work for two of the four weeks L was with him during Christmas 2006 in Edinburgh – L was cared for by two new friends of the father
·the father could be contacted by mobile phone when he left L with his friends
·the father is still looking at schools for L – preferably a private school
·the UK schools he has been considering generally have pre and after school care
·if he needed to he could also work from home
·the father has told L that if he is not permitted to go to the UK life would go on but the father does not intend to return to Australia “at this point in time”.
36.This matter is also considered by Ms Connor below.
The family reports
37.There are two family reports prepared by the Clinical Psychologist Ms Sue Connor – 16 June 2006 and 23 May 2007. In the first Ms Connor said:
·the mother told her that L wanted to live with his father
·L’s sporting activities had always been a source of tension between the parents
·finances also seemed to be an on-going issue
·the mother’s test profile supported Ms Connor’s impression of her as being a person who was anxious and depressed
·the mother was not an emotionally robust person – she was already having behavioural problems with L
·the father said that he and L were “much more than father and son” – they were “as close as two people could get”
·the father said he told L that if L said he wanted to stay with his mother the father would not pursue the dispute
·L told her he wanted to live with his father in UK
·he had always had a much closer relationship with his father than with his mother
·he said that no-one had told him what to say to Ms Connor
·L recognised that his mother did not want him to go
·she did not let him go out and “do stuff” like football
·he spoke to his father twice a week and exchanged e-mails once or twice a fortnight
·A and S did not want him to go
·L’s test results showed his strongest attachment was to his father and he derived his greatest feelings of self-worth from his perceptions of his father’s regard for him
·L generally believed that his mother felt negatively towards him.
38.Ms Connor’s assessment and recommendations in her 16 June 2006 are set out below:
7. Assessment
7.1 The dispute in this matter follows a long history of bitter conflict between these parties. Despite this until almost 12 months ago they had sustained a shared arrangement apparently quite well for number of years. It was perhaps unfortunate that Mr W sought to alter this although he argued moving to the UK was the only way he could obtain employment in his field.
7.2 L was strongly aligned with his father and expressed a strong wish to go to the UK. Given his age and manner of relaying his wishes to me, I could not discount that he had been coached. L, sadly, was even able to excuse his father having sold items such as his cricket bat and soccer ball in a garage sale “because he needed the money”. It is hard to believe that the sale of such items made a significant difference in Mr W’s resources.
7.3 As a child, L would not consider practical issues such as where he and his father would live, how his father would support him and care for him while he was working. He could not anticipate how much he would actually miss his mother and half-siblings.
7.4 Despite my doubts about Mr W’s role in encouraging his son’s wish to be with him, there was no doubt that L holds a strong wish to do so. This matter is very difficult and it is hard to be definitive about what would be best for L. It is to neither parent’s credit that L is placed in the invidious position of having to have relatively minimal contact with one or other of them.
7.5 Life with his father would, in my opinion, offer L greater opportunities to participate in sporting activities and give him the experience of going to school in another country. On the downside, he will have to move at least once more and would be separated from his half-siblings and mother. Separation from his half-siblings, given the age differences – will shortly be inevitable anyway at least as far as his half-brother is concerned. A proposes leaving home next year and moving to Italy and S will most probably move away in due course. Mr W assured me that he would make appropriate arrangements for L when he is at work.
7.6 Ms W did not present as an emotionally robust person and she is already having behaviour problems with L. These may well worsen with adolescence and if her son’s strong wish to go to his father is thwarted. Not surprisingly, Ms W was rather preoccupied with her financial circumstances, earlier learning problems, previous court disputes and employment issues. I had to encourage her to focus on L. She did not place great weight on L participating in team sports although she did say she would take him to soccer. Ms W did not see L as being sports-minded.
8. Recommendations
8.1 On balance, awareness of L’s wishes and concerns about the behavioural consequences if his wishes are thwarted, would lead to a recommendation that L be allowed to go to the UK. My difficulty in being definitive about this is that I have not met Mr W, cannot verify any of his claims about his suddenly improved circumstances and certainly feel he has strongly influenced his son’s wishes.
8.2 L was an unusual boy. His parents both considered that he was gifted although I cannot be conclusive about this without further testing. He certainly presented with maturity beyond his years and was verbally very advanced. Given his age and sex, his wish to be with his father was understandable.
8.3 Mr W impressed as a very persuasive, determined man. If L stays with his mother, his settling down will be significantly enhanced by his father using his powers of persuasion to convince his son that this is for the best and by enjoying holiday periods. Given Mr W views about Ms W I doubt he will be able, or willing to do this.
39.The second report was produced just before the hearing at the end of May 2007. In this report Ms Connor said:
·since her previous report L had several visits to his father in UK
·the mother told her that after the Christmas trip L had changed his mind about living with his father in the UK – apparently because he did not enjoy the weather in Edinburgh
·but he had reversed his views again after the last trip which he really enjoyed
·the mother said that L loved computer and television games but was still not participating in regular sport
·according to the mother her health was better without the father being around – she was feeling happier now than a year ago
·the father said that although L loves his mother he does not think his mother can make him happy
·the father assured Ms Connor that he had no intention of stopping L seeing his mother and half-siblings
·L told Ms Connor that he had said to his mother that he wanted to live in UK with his father
·he recognised that this made his mother sad
·he and his father understood each other – “he’s very trustworthy”
·with his mother there was always “a certain degree of mistrust” – this seemed to focus on her preventing him playing soccer
·he would not feel particularly happy if he had to stay with his mother
·he missed his father more than he would his mother – “if anything, it would be more of a relief to leave Mum and go to Dad”
·L said his father had asked him to come to court to verify “certain issues”
·about four days after her first meeting with L in May 2007:
6.9 I saw L with his father in my office and again talked to him alone. L told me that he was worrying more about the dispute and having doubts about what he wanted. He was worried if whatever happened would seem right afterwards and if he went to the UK if he would miss people, get to do certain things and maybe even want to come back. L told me that he had talked to his mother about this the day before and that she had not offered any definite advice. He still had said however “I’m more than 50% on Dad’s side”. Sadly L said “I can’t please both people”. He went on “I don’t particularly want to leave my sister behind but and I should look after myself for a little bit.” L thought that his sister would miss him and said that he would miss his dog, C, and his mother as well as his yabby. L assured me that he still wanted to go however.
·Ms Connor observed L and his father together interacting in an affectionate, jovial manner with much friendly debate.
40.Ms Connor’s assessment and recommendations in this report are:
7. Assessment
7.1 My previous assessment in this matter was written in June 2006, almost 12 months ago. I concluded “I recommend that L be allowed to go to the UK with his father and that he visit his mother at twice a year.” During the intervening period L has visited his father several times in the UK. Apart from a brief change of mind after his Christmas visit to Edinburgh, L has maintained his view that he wants to go to the UK to live with his father.
7.2 Mr W is his own best salesman. Ms W is somewhat preoccupied with her own needs and constraints. Both undeniably love their son and there is no real risk to his well-being with either of them. The issues being argued about in the main are quality of life and lifestyle preference issues. It is most unfortunate, as well as understandable, that neither of L’s parents have been able to step back and allow the other to assume a primary role. Not surprisingly as the court decision looms nearer, L has begun to have doubts this week about his stated wish but still maintains his view.
7.3 Both of L’s parents are convinced of the merits of themselves as primary parent and necessarily have to criticise the other. L as a bright child has certainly picked up on this. His father is a very persuasive man and his mother is less robust and needier. L’s responses exhibit a level of sophistication beyond his age and I do not doubt that he is reflecting discussions with his father.
7.4 Mr W is more able, by virtue of his finances, personality and health, to engage in more activities with L. Participation in team sports, while not all important, would benefit L socially as well as physically. Mr W offers a different parenting style than Ms W which will be more attractive as L approaches adolescence.
8. Recommendations
8.1 I again recommend that L be allowed to relocate to the UK with his father and that he visit his mother twice a year.
41.Ms Connor gave the following evidence under cross-examination:
·it is important for a boy approaching adolescence to have a good male role model
·the father sets out to be very persuasive, not easily accepting an opposing view, persistent in pushing his own views
·as such he would be a formidable influence on a twelve year old child
·the father may have that sort of influence over L’s views
·L’s responses at times “exhibit a level of sophistication beyond his age” – “he is reflecting discussions with his father”
·she concluded that there was “a definite degree of coaching or influence or something of that kind by the father on the child in relation to his wishes”, although children are obviously influenced by their parents
·this direct and indirect influence of his father on L had been evident in 2006 and 2007
·Ms Connor had reservations about L’s ability to be able to consider some of the larger issues
·but L also had a level of maturity and perceptiveness
·he may also be dramatising his situation to support his views on living with the father
·the parents offer contrasting lifestyles for L, for example the father offers team sports – but neither would involve gross neglect or gross deprivation and L would compensate
·L has not raised any negative issues about his father
·the father showing e-mails to L in which a dying lady friend of the father described L as “our son” could be seen as likely to result in the undermining of L’s relationship with his mother – but Ms Connor noted that she did not know the circumstances relating to this issue
·the father told her that he did not see his mother from the time he was six to fourteen – they discussed his concerns that he did not want to do that to his son
·Ms Connor did not give a great deal of weight to the break in the sibling relationships which would occur if L went to the UK – there was a considerable age difference and S would increasingly be engaged in activities outside the home
·L will undoubtedly miss his mother if he went to the UK and Ms Connor was “not a hundred per cent certain” the father would promote an ongoing relationship with the mother
·she was also concerned whether the mother would make the necessary changes if L stayed with her – she did not understand why she had not done so during the previous twelve months
·on the other hand the father would be unable to accept an adverse decision and he would convey his anger and disappointment to L
·in the final analysis Ms Connor still recommends that L be allowed to go to the UK.
Change in circumstances
42.The current final parenting orders providing for shared care for L were made on 28 May 2001. Interim orders were then made changing these in August 2005 just prior to the father moving to the UK. The final orders were thus made only four years before the father’s application in the present matter.
1.The authorities onwhether or not a matter should bereopeneding recently made parenting orders refer to the need for a significant change in circumstances.
In Rice and Asplund the Full Court of the Family Court said:
… the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that
,… there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.44.The decision in Rice and Asplund has been subsequently followed in a whole series of cases.
,fFor example in King and Finneran (2001) FLC 93-079.Collier J sitting on appeal explained the way in which the Court should apply the test:44. To apply the test in Rice & Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision.
…
50. … The change or fresh circumstances must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.
This clearly is a matter where it is appropriate to reopen the parenting orders. The father’s move to the UK makes it necessary as does L’s expression of views.
L’s best interests – section 60CC factors
46.Section 60CA of the Family Law Act 1975 makes clear that in deciding whether to make a particular parenting order the Court must regard the best interests of a child as the paramount consideration.
47.Section 60CC sets a range of matters which the Court is bound to consider in determining what is in a child’s best interests. Section 60CC(2) contains two primary considerations and s.60CC(3) a series of additional considerations. As is often the case some of these matters are not relevant and I will not say anything more on them. Others on which there is no significant dispute will be briefly discussed.
48.From the evidence L presently benefits from a meaningful relationship with his mother (s.60CC(2)(a)). It is questionable how meaningful the relationship with the father has been since the father’s move to the UK. L has made four visits to the UK since August 2005 and has regular telephone contact. But the father’s move was of his own volition, albeit he says because he could not obtain employment in Australia.
49.The father asserts that his proposals allow for adequate contact between L, his mother and his half-siblings. If L were to reside in the UK the father says the benefit of a meaningful relationship with both parents would not be an issue.
50.In the mother’s view a move to the UK would see the meaningfulness of her relationship suffer in several respects:
·L would be unable to see her or be in her care as he has been since birth
·he will only spend time with her twice a year and then only if the father pays for the travel, something she says the Court could not be confident of on an ongoing basis
·the father’s attitude to the mother would adversely affect the meaningfulness of her relationship.
51.I have a great deal of sympathy with the mother’s viewpoint. Any move to the UK will however provide for enforceable orders for trips paid by the father to Australia at least twice a year. Failure to comply will have consequences for the father. The picture the father painted of himself throughout the hearing does not suggest any degree of flexibility, sympathy or understanding of the mother’s position. He did not impress as a compassionate, perceptive or sensitive person.
52.Nevertheless whichever proposal is accepted L is going to be living on the other side of the world from one parent. This must have significant consequences for the meaningfulness of the relationship with that parent.
53.There is no evidence which satisfies me that L is at risk of physical or psychological harm in either household (ss.60CC(2)(b) and 60CC(3)(j)). I reject the assertions of the father about evening meals for L at his mother’s home. They are dated, unconvincing and not meriting any real weight.
54.There can be no doubt about L’s views (s.60CC(3)(a)). He definitely wants to live with his father in the UK. The mother agrees that is what he desires, despite a change in his views for a short time after his return from Edinburgh at Christmas 2006.
55.Ms Connor has no doubt that this is what L wants. She saw him for two reports a year apart. He maintained his position. She saw him for the second report when he was not quite twelve years old.
56.Ms Connor said that there was “a definite degree of coaching or influence or something of that kind by the father on the child in relation to his wishes”, although children are obviously influenced by their parents. I accept Ms Connor’s view that there has been an undesirable level of coaching and influence by the father. He is persistent and unable to accept views contrary to his own. I do not agree with the mother however that the level of coaching is such that L’s views should only receive very limited weight.
57.Ms Connor found L to have a level of maturity and perception. Ms Connor nevertheless had reservations about L’s ability to be able to consider some of the larger issues. But in the final analysis and not without some reservations Ms Connor still recommends that L be allowed to go to the UK.
58.Despite some last minute concerns and the reversal of views for a short period following the Christmas visit I have no doubt L wishes to live with his father. This is a matter to which I must give very great weight, given L’s age, maturity and the consistency of his views over an extended period of time. These views are supported by the Bene-Anthony Family Relations testing undertaken by both Ms Connor and earlier Ms Styles.
59.L is involved with each of his parents (s.60CC(3)(b)). I agree with the mother that she has “a close and clear relationship” with L. He does nevertheless have perceptions that his mother feels negatively towards him.
60.The evidence is compelling that L’s relationship with his father is the much stronger. The Bene-Anthony Family Relations testing over a period of years shows that his strongest attachment is with his father from whom he derived the greatest feelings of self-worth. He experiences the father/son relationship as strongly positive. This again is a matter to which significant weight must be given.
61.L’s relationships with his half-siblings appear to have been positive although the evidence is somewhat unclear. In any event only S now lives with the mother as A is in Alice Springs. In view of her age S can also be expected to spend less time at home. There was no evidence about whether other family members live in or near Canberra.
62.The mother submits that the willingness and ability of the father to facilitate and encourage a close and continuing relationship between L and her is a matter of real concern (s.60CC(3)(c) and (4)). The father says that as he did not see his own mother or sister for an extended period of time he has no wish to deny L reasonable access to his mother in the UK and proposes trips twice yearly to Australia.
63.The mother points to:
·the insensitivity and inappropriateness of the father in showing N’s e-mails to L – she says that it also reflects a dismissive attitude to the position of the mother
·the father’s inability to accept any responsibility for the lack of success for the Edinburgh holiday and the attempt to place part of the responsibility on the mother
·the father blaming others for his own failings or lack of insight
·the father’s high child support arrears when at the same time he criticises the mother for failing to pay for sporting activities for L
·the father’s unilateral decision to go to the UK as an indication of his inability or willingness to encourage a close relationship with the mother.
64.While there is substance in what the mother says, I am not of the view that it is as grim as she makes out. I think the father has failed to display a great deal of insight. Nevertheless I am hopeful that he will foster a continuing relationship with the mother, to the extent one is able to in view of the distances. It would give me further confidence if he gave some priority to meeting his child support obligations and if he was prepared to accept some responsibility for some of his own shortcomings. The father asserts he has in the past and is proposing to address the child support issues. He says that the final debt may be somewhat lower. In my view he has been dilatory in pursuing this.
65.On the other hand I was very unimpressed by the mother not allowing L to visit his father in the UK during Christmas 2005 because the father was late in providing the necessary documents to her. Even if what she did was consistent with part of the orders it certainly was not in accordance with the spirit of them. It reflects poorly on her willingness to foster a close relationship for L with his father.
66.There is no doubt that L would miss his mother significantly if he moves to the UK and only comes to Australia twice a year (s.60CC(3)(d)). She would not be readily available to comfort and support him. From his comments to Ms Connor he would also miss S although Ms Connor points out a person of S’s age of 17 will be increasingly engaged in activities outside the home.
67.L will have to establish a new set of friends, enter a new school and settle in a very different environment. His father will be the only person whom he already knows available to support him. But as I have noted above his father is the most significant attachment he has. L is very close to him and has a lot of faith in him. L had said that he would miss his father more than his mother if separated from them.
68.I am satisfied with the father’s evidence and that of Mr M that adequate and flexible work/family arrangements within reason can be made for L to be cared for in the UK.
69.Obviously the practical difficulty and expense of L spending time with each parent is of great significance in this case (s.60CC(3)(e)). But given the father’s insistence that he proposes to live in the UK and the mother’s ties in Canberra this difficulty will remain no matter what orders I make. The father has committed himself to paying for two airfares a year for L to come to Australia each year. The mother seeks a similar commitment from the father if L remains with her and is to travel to the UK.
70.The mother raises the question of the father’s commitment to financing these trips given his past record with his financial obligations. The father points to his new found permanent employment with the Royal Bank of Scotland and the security that brings.
71.I am cautiously optimistic from the evidence that should L move the father will be able and willing to pay for the airfares. It would of course form an order of the Court. His financial circumstances have certainly improved. He was cross-examined on his income and expenses. He has a good income and on his evidence will be able to meet his expenses. There is no threat to his employment with the Royal Bank of Scotland.
72.Despite some criticisms from both parents, I have no doubt that both parents have the capacity to provide for the emotional, intellectual and other needs of L (s.60CC(3)(f)). Ms Connor agrees.
73.
The mother has had to undertake L’s care alone for the last two years although Ms Connor felt she had trouble coping at times.
I accept the mother’s submission that although the father spent an inordinate amount of time cross-examining the mother about A’s school record, he could not suggest that L was not progressing well. The school reports tendered by the father demonstrate that L is showing steady and happy progress at school in Australia.
74.However given L’s closeness to him the father is in a better position to meet his emotional, intellectual and other needs. I agree with Ms Connor that:
Mr W is more able, by virtue of his finances, personality and health, to engage in more activities with L. Participation in team sports, while not all important, would benefit L socially as well as physically. Mr W offers a different parenting style than Ms W which will be more attractive as L approaches adolescence.
75.I have already covered most of the issues on the attitude of the parents to L and to the responsibilities of parenthood above (s.60CC(3)(i) and (4)). There have been the usual arguments about lack of consultation and participation in decision making.
76.The father spent a very long time cross-examining the mother about her parenting of A. I agree in general with the mother’s submission that this evidence showed she went to reasonable lengths to address various educational and social issues concerning A. It certainly did not reflect badly on her.
77.In light of the history of the matters involving L and the personalities, I cannot be confident that neither party will seek to relitigate this matter, whatever orders I make (s.60CC(3)(l)). If L stays with his mother I have no confidence that the father would refrain from further litigation despite his denials. If L goes to the UK there may well be litigation for enforcement of contact.
Equal shared parental responsibility
78.The father seeks an order for him to be responsible for making long term decisions concerning L. The mother submits that there is no evidence which would rebut the presumption in s.61DA(1) that it is a child’s best interests for the parents to have equal shared parental responsibility.
79.I agree with the mother. In my view this is a case where no satisfactory reason has been given which would defeat the presumption (ss.61DA(2) or (4)). I therefore propose to make an order for equal shared parental responsibility. This will require the parents to consult and make genuine efforts to come to joint decisions about major long-term issues concerning L (ss.65DAC and 65DAE).
Parenting orders
80.As I propose to make an order for equal shared parental responsibility I must consider whether L should spend equal time with each of the parents or substantial and significant time (ss.65DAA(1) and (2)). In view of the distance between the homes of the parents, Canberra and London, L spending equal time or substantial and significant time with each parent is clearly not reasonably practicable (s.65DAA(5)).
81.What then is in L’s best interests? With some hesitation I am compelled to agree with Ms Connor. L is twelve years old and Ms Connor says he is mature beyond his years. He is outspoken in his wishes to live with his father. He is clearly more attached and closer to his father. His father is in a better position to meet his various needs.
82.I am hesitant because I was unimpressed with the father’s lack of insight, and his approach and demeanour generally. I have expressed my views earlier. I would like to have more confidence that he will see L’s continuing relationship with his mother as very important and that he will foster and encourage it. I would hope that he takes steps very soon to meet his outstanding child support obligations to the mother.
83.I must give great weight to L’s views, his closeness to his father and his father’s greater capacity to meet his needs. In my view these clearly outweigh the other matters which I am required to consider. I do not agree with the mother that it is in L’s best interest to stay in Australia. L’s clearly expressed wishes should not be thwarted. This would not only be against L’s interests but would very likely damage his relationship with his mother.
84.L should live with his father in the UK and spend two holiday periods with his mother in Australia at his father’s expense and such other times in the UK or Australia as agreed by the parties.
85.To minimise disruption to L’s schooling I propose that he complete his primary schooling in Australia. He therefore will continue to live with his mother until after Christmas 2007. This will allow him to complete year 6, to participate in the year 6 end of year school celebrations and to spend Christmas with his mother.
Conclusions
86.In this matter the competing proposals are for L to remain living in Australia with his mother or move to the UK to live with his father. I have considered a range of matters which have been raised by the parents and the assessments and recommendations of family consultants.
87.In the end my decision turned on the weight that should be given to the various considerations I am bound to have regard to under section 60CC. I have placed great weight on the views of L, his closeness to his father and his father’s greater capacity to meet his needs. These outweigh the other considerations.
88.As I have indicated above I have reached the view, although not without some hesitation, that it is in L’s best interests to move to the UK to live with his father. His father shall pay for L to come to Australia twice a year to spend time with his mother.
89.I will also order that the parents have equal shared parental responsibility for L. This will require the parents to consult and make genuine efforts to come to joint decisions about major long-term issues concerning L. The parent in whose care L is at the time shall have sole responsibility for his day to day welfare and development.
90.At the end of the second day of the hearing Mr Nash for the mother foreshadowed an application for costs for the extra hearing day. No such application has been made. Having regard to the provisions of section 117 each party should bear their own costs. There will therefore be no order for costs.
91.I am satisfied that the orders which are set out at the commencement of these reasons are in the best interests of L. I accordingly make those orders.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Angela Kelly
Date: 4 September 2007
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