Waldgrave & Segura

[2009] FMCAfam 409

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALDGRAVE & SEGURA [2009] FMCAfam 409

FAMILY LAW – Parenting – best interests of the children – mother’s unilateral relocation – separation of siblings – mother’s failure to promote relationship between children and father.

Family Law Act 1975, ss.60CC, 60B, 68 F(2), 60CA, 65DAA

Mazorski & Albright [2007] FamCA 520
AMS v AIF (1999) 92-852
A and A Relocation Approach (2000) FLC 93-035
U & U [2002] FLC 93-112 a High Court decision
Bolitho & Cohen (2005) FLC 93-224
Taylor and Barker [2007] FamCA 1246

Applicant: MR WALDGRAVE

Respondent: MS SEGURA

File Number: TVC 406/2008

Judgment of: Willis FM

Hearing dates: 31 March, 1, 2 & 17 April 2009

Date of Last Submission: 17 April 2009

Delivered at: Townsville

Delivered on: 27 August 2009

REPRESENTATION

Counsel for the Applicant: Mr Betts

Solicitors for the Applicant: Dillon Lawyers

Counsel for the Respondent: Mrs Pack SC

Solicitors for the Respondent: Curtis Delaney Gray

ORDERS

1. The Mother and Father have equal shared parental responsibility for the major long term issues of the children, [X] born in 1994 and [Y] born in 1999 (“the children”), including but not limited to:   

   (a)a child’s education (both current and future);

   (b)a child’s religious and cultural upbringing;

   (c)a child’s health;

   (d)a child’s name;

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

2. The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)they shall inform the other parent about the decision to be made;

   (b)they shall consult with each other on terms that they agree;

   (c)they shall make a genuine effort to come to a joint decision.

3. Notwithstanding the provisions of Order 1:

   (a)The Mother shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with her; and

   (b)The Father shall be responsible for the daily care, welfare and development of the children whilst they are living with or spending time with him.

4. The children live with the Father.

5. The children spend time with the Mother as follows:-

   (a)For the whole of the end of Term 1, June/July and September/October school holidays each year; and

   (b)For four (4) weeks during the Christmas school holiday period being the first half and including Christmas Day in the even numbered years and the second half excluding Christmas Day in the odd numbered years;

   (c)For the purpose of facilitating the children’s travel to the Mother during the school holiday periods as provided for in these Orders, the Mother shall be responsible for arranging and paying for the children’s travel at the commencement of each visit and the Father shall be responsible for arranging and paying for the children’s travel back to Townsville at the conclusion of each visit; and

   (d)Upon the Mother visiting the Townsville district, upon giving at least fourteen (14) days notice in writing the children shall spend additional time with the Mother during such visiting including overnight time by agreement between the parties provided the Mother shall ensure that the children attend any of their extra curricular activities as notified by the Father in writing.

   (e)Any other time as agreed.

6. Both parents shall install a web cam communication facility within seven (7) days of the date of these Orders and each parent shall have either web cam or telephone communication at all reasonable times with the children when the children are spending time with the other parent but in particular each Tuesday, Thursday and Sunday between 7:00pm and 8:00pm Queensland time.

7. Each party shall keep the other informed of their address and telephone contact number and shall advise the other party within twenty four (24) hours of any change.

8. The parties shall wherever possible, communicate with respect to matters of parental responsibility and arrangements otherwise relating to the children by way of email and each party shall keep the other informed of their email address and advise the other party within twenty four (24) hours of any change.

9. The parent with whom the children are living shall telephone the other as soon as practicable upon the happening of any of the following:-

   (a)Either child becoming seriously ill;

   (b)Either child becoming hospitalised;

   (c)Either child being involved in an accident, where such events require the attendance of the child upon a medical practitioner.

10. The parent with whom the children are living shall telephone the other parent in the event of either child being absent from school on the day of such absence.

11. Each of the parties do all acts and things to enrol and complete a “Focus on Kids” course as soon as practicable and provide evidence of their completion to the other party.

IT IS NOTED that publication of this judgment under the pseudonym Waldgrave & Segura is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

TOWNSVILLE

TVC 406 of 2008

MR WALDGRAVE

Applicant

And

MS SEGURA

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter Mr Waldgrave (“the father”) was in a relationship with the respondent Ms Segura (“the mother”) between 1986 and June 2003. The parties married in 1990 and divorced 9 October 2004.  During the 17 years that the parties were together, they had four daughters [A] born in 1987 (“[A]”), [B] born in 1992 (“[B]”), [X] born in 1994 (“[X]”) and [Y] born in 1999 (“[Y]”). 

2. This litigation did not commence as a relocation application, rather, it was started in 2006 with the father’s request to spend more time with the children than was provided for in the parties’ first consent orders dated 15 June 2004 (“the consent orders”). 

3. The consent orders provided for the children to live with the mother and spend time with the father overnight Saturday in each alternate week and on certain other specified special occasions.

4. The father’s initiating application filed on 23 April 2008 sought shared residence on a week-on week-off basis in Townsville the city where the parties have lived for many years.  Whilst the mother’s initial response filed 2 July 2008 was an application that the father’s application be dismissed, the mother’s final response is for one of the parties four daughters, [Y] aged 10, to relocate from Townsville to [S] to live with the mother and her second husband Mr S. 

5. It was Mr S’s decision in 2008 to return to his career with the Australian Regular Army and his subsequent posting to [S] on 13 October 2008, which has triggered the mother’s relocation application.

6. In considering this matter I have had regard to: each of the documents to which I was referred in the course of the proceeding; the oral evidence taken; the exhibits tendered in the course of the proceedings; and the submissions, both oral and written, made on behalf of the parties by their respective Counsel.

7. In these reasons a statement of fact constitutes a finding unless otherwise indicated.

History

1. The parties separated in June 2003 and the children remained living with the mother.  At that time the parties’ four daughters were aged 16, 11, 9 and 4 respectively.

2. Directly following separation, the father went for a period for 2 months in which he did not spend time with the children.  The mother contends by that stage she was concerned that the children were not having a relationship with their father, and so she organised a meeting between the children and their father.  For the first six months after separation when the father did not have a car, the mother agreed to do the driving taking the children to and from their father’s home. This changed after six months when the father purchased his own car. In the property settlement, the mother retained the family car[1]. The children, excluding [A], spent irregular time with the father for the first twelve months. It is accepted between the parties that at the time of separation their eldest daughter [A] then aged 16, was affected by the parties separation and she was not seeking a relationship with her father.

   [1] Affidavit of the father filed 16/3/09 paragraph 7.

3. The father contends that the first six months post separation was a period when the parties co-operated and the mother’s willingness to facilitate the children seeing the father by agreeing to do all the driving, seems testimony to this co-operation. 

4. It is the father’s contention that once he started a relationship with his current wife Ms M in late 2003 early 2004, the mother became difficult and hostile toward him.  The mother on the other hand contends that the father used to make threats about taking the children away from her and that he was abusive and aggressive to her in the presence of the children[2].  Nonetheless, consent orders were entered into.

   [2] Mother’s affidavit 25 March 2009 paragraph 6.

5. When the consent orders were entered into the father was working [in the transport industry] on rotating shifts and was frequently away.  The father concedes that the nature of his work precluded him from having any more time with the children at that stage[3].  After the nature of the father’s work changed in April 2006, however, the father sought legal advice. On 23 October 2006 he communicated with the mother regarding his wish to spend more time with [B], [X] and [Y] (“the children”) during his alternate weekends.[4]

   [3] Affidavit of the father filed 16/3/09.

   [4] Affidavit of the father 16/3/09, annexure WMW 1.

6. At that stage in 2006 the eldest child [A] was almost 19 and she obviously was not a child about whom Orders or arrangements were sought.  

7. The mother informed the father that she was unwilling to increase the children’s time with the father, and that she has not taken this decision lightly, but she has consulted the children and the children were concerned at the “disruption to their current routine and would like to keep things the way they are under the current orders”[5]. 

   [5] Affidavit of the father, annexure WMW 2.

8. The father made an appointment with the Family Relationships Centre in January 2007.  No resolution was achieved, nor did any mediation occur.  The mother went to the Centre and had her own meeting for a couple of hours, informed the Centre of what she referred to as “abuse issues”, was given pamphlets and left.[6]  There was no meeting between the mother and father.  The mother gave evidence that she felt the father had no mediation skills and it would be fairly useless.  The father was granted a certificate under Section 60I. 

   [6] Transcript, page 103

9. The father sought legal advice and on 22 October 2007 a letter was sent to the mother setting out the father’s wish to move to a shared week-on week-off arrangement, to be introduced over a two month period[7].

   [7] Affidavit of the father, annexure WMW 3.

10. Six months later on 20 March 2008 the mother wrote to the father saying she had again discussed the matter with [X] and that [X] was adamant that she did not wish to vary the arrangements. The letter goes on say that she did not wish to differentiate between [X] (then aged 13) and [Y] (then aged 6)[8].

    [8] Affidavit of the father, annexure WMW 4.

11. The father instigated proceedings on 23 April 2008 to increase his time with the children.  Three months later on 2 July 2008, the mother filed a response that the father’s application be dismissed and that she be given sole parental responsibility.

12. A private family report was commissioned through Cairns psychologist Loretta Protheroe who prepared a report on 10 July 2008 (“the first family report”). 

13. The report recommended that [X] and [Y]’s time with the father be increased to three consecutive nights per fortnight from Friday to Sunday nights inclusive by incremental steps, with Friday night being the initial step.  The second stage, introducing Sunday nights as well, was then to be implemented after three months.[9] 

    [9] First Family Report, paragraph 108.

14. Miss Protheroe’s overall view was that the mother was not facilitating a positive relationship between the children and the father and observed that:

    “there is a likelihood of Mr S being posted.  Although beyond the scope of this report, the writer doubts Ms Segura’s ability to promote a positive relationship between the children and their father if they were geographically separated.”[10]

    [10] First Family Report, paragraph 102.

15. In the recommendations of the family report the transition from stage 1 to stage 2 were not conditional.  In a letter of 31 July 2008 the mother introduced two conditions:

    a)moving from stage 1 to stage 2 be “subject only to the implementation of the first stage having proceeded smoothly. 

    b)the orders with respect to [X] and [Y] also be made subject to the children’s wishes as all times”[11].

    [11] Mother’s affidavit 25 March 2009, annexure A, page 2.

16. In a letter of  12 August  negotiations continued and the mother through her solicitor wrote:   

    “With respect to your client’s proposal that the parties consent to an order restraining each party from relocating the children away from Townsville, such an order is not necessary.

    Our client instructs us that if at some stage in the future her relocation becomes of relevance then she will certainly not be relocating the children without either your client’s consent or without an order of the Court.”.[12]

    [12] Transcript, page 147, line 10

17. As later events will show, this turned out to be a hollow assurance. 

18. On 22 October 2008 the mother’s solicitor wrote to the father’s solicitor proposing the initial recommendation of Miss Protheroe be implemented subject to a review by her[13].

    [13] Father’s affidavit 25 March 2009, annexure WMW 8.

19. Evidence at the trial has subsequently shown that the mother knew at this stage that her husband Mr S had accepted a posting to [S] and left Townsville to take up his posting on 20 October, 2008, two days before the letter was received.

20. On 6 November 2008 the father was informed for the first time that the mother’s circumstances had changed due to Mr S reapplying to join the regular Army and being posted to [S]. The letter advised that the mother wished to go to [S] with her husband, and that she has spoken with [B], [X] and [Y] and that they have indicted their desire to remain with their mother and relocate also to [S].  The letter stated that the mother intended relocating in early 2009 and asked for the father’s urgent agreement to her proposals.

21. The father replied on 11 November 2009 and disagreed with the relocation instead proposing that [B], [X] and [Y] live with he and his wife in Townsville.  The father sought an assurance from the mother that the girls have been re-enrolled at their respective schools in Townsville.

22. In response to the father’s proposal that the [B], [X] and [Y] live with the father in Townsville, the letter of 21^st November 2008 provided the mother’s instructions that [B] and [X] 

    “have clearly indicted their desire to remain with their mother and will accordingly relocate to [S] with our client. Our client instructs us that [Y] has likewise indicated that she wishes to continue living with our client and her sisters.  We would submit that on the basis that both [B] and [X] intend moving with our client to [S] that the likelihood is that the Court will not want to separate [Y] from her siblings”[14]. 

    [14] Father’s affidavit 16 March 2009, annexure WMW 10.

23. That correspondence was the final correspondence sent by the mother, prior to her making an abrupt decision to collect the three children after school in the first week of December 2008, leave Townsville and drive south to Brisbane and then [S] without prior notice to the father, the father’s lawyer, the children’s schools, Mr S or the children. This sudden departure was so she could be with her second husband Mr S.

24. The father, unaware of the mother’s removal of the children from Townsville, attended at [B] State School on Friday 5 December 2008 to collect [Y] for his week-end to find that [Y] had not been at school since Tuesday that week and that her absence was unexplained.  The father then phoned [X] at [P] High School and his call was unanswered. 

25. He was subsequently advised that [X] had not been at school since Tuesday and that her absence was unexplained.  The father could not access any further information from either school as he was advised by each that he was not a person authorised to receive information about the girls without the mother’s permission[15].

    [15] Father’s affidavit 16 March 2009, paragraph 38.

26. The father had no knowledge of the whereabouts of the children. He checked with the mother’s workplace and was advised she had left her employment.

27. The father was finally able to contact [X] more than a week later on

    
    

    9 December 2008 and he spoke to [Y] as well.  Neither child could say when they were returning[16].

    [16] Father’s affidavit 16 March 2009, paragraph 43.

28. On 11 and 16 December 2008 the father wrote to the mother’s solicitors urgently requesting her intentions about returning the children to allow the father to spend time with the children pursuant to the existing Order and also for the Christmas period[17] [18].

    [17] Father’s affidavit 16 March 2009, annexure WMW 15.

    [18] Father’s affidavit 16 March 2009, annexure WMW 16.

29. The final letter received from the mother’s solicitors of 22 December 2008 stated that the writer himself has not been able to speak with the mother since 8 December 2008.

30. The mother did not return the children at all during December or the Christmas holiday period pursuant to the consent orders. 

31. The father spoke by telephone with [X], [Y] and [B] and was informed that [X] and [B] were enrolled in schools in [S] and would not be returning to Townsville[19].

    [19] Father’s affidavit 16 March 2009, paragraph 50.

32. The father filed contravention and recovery proceedings on 29 January 2009 and having no address for the mother at that stage, arranged urgent service through Mr S’s Commanding Officer in [S].

33. The mother’s response to the father’s application for the return of the children was that his application be dismissed and that the children live with the mother in [S] pending the trial.

34. On 4^th February 2009 the mother was still in [S].  Consent orders were negotiated on the basis that [X] and [Y] were returned to Townsville by the 7^th or 8^th February 2009 where they were to reside until further Order. [X] and [Y] were subsequently re-enrolled in their schools in grade ten and five respectively in Townsville. 

35. The father also advised the mother’s solicitors he would be pleased to have [B] return with her sisters, and stay with the father if that is what she wanted to do, which she did.

36. On 16 February 2009 the Contravention Application was heard by Federal Magistrate Coker in Townsville. The mother did not admit the three contraventions and the matter proceeded to a contested hearing in which the mother was found to be in breach of Orders. 

37. Following that hearing on 16 February, 2009 interim consent orders were made on that day, providing for [X] and [Y] to remain living with their father in Townville and for an updated private report which was filed on 20 March 2009 (“the second Family Report”).

38. The mother then returned to live in [S] with her current husband.

39. [A] remains living in Townsville in her own accommodation and has made it known to the report writer that she wishes to see [X] and [B] on a regular basis every two or three week-ends from lunchtime Saturday to lunchtime Sunday.

40. It is agreed by the parties that given [B]’s age (17) that no orders ought to be made about [B], but I note in any event the having been taken to [S] by her Mother in December 2008, that she returned voluntarily to live with her father in Townsville and that she was still living with her father and his second wife, at the time of trial. [B] is no longer at school looking for work with the assistance of the father and his second wife, Ms M.

1. The Mother has informed the Court that she is not returning to live in Townsville.

2. At the conclusion of the trial, during final submissions Mrs Pack of Senior Counsel made an oral request for a further Family Report to be obtained.  I indicated that I would consider that request, which I have done.  My decision not to Order a further Family Report is explained in the reasons which follow.

Competing proposals

1. The competing proposals before the Court which I need to evaluate are quite different.  One of the significant distinctions is that on either of the father’s two proposals both [X] and [Y] are to remain living together, whereas the mother proposes separating the siblings with [X] to live with the father in Townsville and [Y] to live with the mother in [S].

2. The father’s two proposals are put in the alternative.  One which refers to the mother returning to live in Townsville and one which he proposes in the event that the mother is not residing in the Townsville district.  On either scenario the father proposes equal shared parental responsibility. 

3. The father’s proposals are essentially that if the mother returns to live in Townsville the parties have a shared residence arrangement of week on week off and share the holidays equally.

4. If the mother does not live in Townsville, the father proposes that [Y] and [X] live with him in Townsville, and spend the whole of the end of first term holidays, June/July and September/October school holidays in each year with the mother and four (4) weeks during the Christmas school holiday period.

5. In relation to the cost sharing, the father proposes the mother shall be responsible for arranging and paying for the children’s travel at the commencement of each visit and the father shall be responsible for arranging and paying for the children’s travel back in Townsville at the conclusion of each visit. 

6. The father also proposes additional time in Townsville between the mother and children upon the other giving 14 days notice, in the event she is visiting Townsville.

7. The father proposes sharing birthdays, and the children spending Mother’s day and  Fathers Day with their respective parents, Webcam contact regularly, the use of a communications book and phone notice from one parent to the other regarding children’s illnesses and other matters.

8. The mother’s final proposal is set out in an amended Response filed on the morning of trial by leave.  It proposes that [Y] lives with the mother and [X] lives with the father and that the mother have sole parental responsibility for [Y] and that the father has sole parental responsibility for [X]. The mother proposes sharing the costs equally.

9. The mother’s amended response does not set out the Orders she seeks if [Y] does not live with her however Mrs Pack of Senior Counsel has advised the Court that in relation to the issue of parental responsibility, the mother seeks orders to give sole responsibility to the parent with whom each child lives.    

10. The mother’s proposal also includes the children spending holidays together and with the other parent fluctuating between Queensland and New South Wales.  Orders similar to the father’s are proposed for web cam and telephone contact and equal sharing of costs of travel. Orders are also sought for [Y] and [X] to spend time with the maternal grandmother and the two older sisters [A] and [X].

Legal Principles

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975. The objects and principles of this part are set out in s.60B(1), (2) and (3). In making parenting orders, the best interests of the child are the paramount consideration (s.60CA). The Act provides two primary considerations described by Justice Brown in Mazorski and Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated succinctly:

   ·“The provisions of the Family Law Act 1975(“the Act”) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC (1).

   ·When deciding what parenting orders to make it is the best interests of the children which are paramount. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.

   ·There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.

   ·If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))”.

2. If neither equal time or significant and substantial time is in the child’s best interests and practical, then I need to determine the best interests of the child having regard to all the circumstances including the matters referred to in s.60CC

3. This is also a relocation matter and I am guided in my approach by a long line of authorities  including the High Court decision in AMS v AIF (1999) 92-852 where Justice Kirby set out the general principles to be followed; A and A Relocation Approach (2000) FLC 93-035; U & U [2002] FLC 93-112 a High Court decision; Bolitho & Cohen (2005) FLC 93-224 and more recently the Full Court decision in Taylor and Barker [2007] FamCA 1246 a decision handed down after the substantial amendments were enacted to the Family Law Act under the Family Law (Shared Parental Responsibility) Act 2006. 

4. Relocation cases are notoriously difficult cases and in which, sadly, one parent will inevitably be disappointed with the outcome.

Evidence

1. The father’s witnesses consisted of himself and his second wife Ms M. They both of whom gave evidence and were cross examined. 

2. The mother’s witnesses consisted of herself, her second husband Mr S and the maternal grandmother Ms S.  Each of these witnesses gave evidence and was cross examined.

3. The report writer was required for cross-examination.

The witnesses – for the father

The Father

1. I found the father to be a truthful witness. The father impressed me as being genuine in his desire to spend more time with his daughters and committed to ensuring that they received the benefit not only of his love and affection, but also that of their mother. I accepted that the father’s view that the children all had a close relationship with the mother and that she was a significant person in their lives, as being genuinely held.

2. He has clearly deferred to the mother’s significant role in the children’s lives.  I considered the father to be child focused on the separate needs of each of the four children.  It was apparent to me that he felt deeply about the wellbeing of the children and that his first preference was to put place the best arrangements for the children which he believed was the mother remaining in Townsville and the children living between the two households on a week on- week off basis.

3. I consider that the father, despite all the criticisms of the mother, is well in tune with the needs of each of his children.

Ms M

1. The father’s current wife Ms M also impressed me as being a capable and experienced parent who had been through the difficult years of parenting with her own children. I consider she had adopted a reasonably neutral stance in this matter and that she was most concerned as to the wellbeing and needs of each of the children.  She was pragmatic in her approach and showed sensibility in her parenting describing the brush with drugs that her own son had experienced and how the situation was dealt with within the family. 

2. Ms M is described by [X] as being very approachable and good.  She showed a common sense and caring approach in her parenting of her own children and the children in this matter.

Witnesses  - for the mother

The Mother

1. The mother impressed me as being a capable and hard working mother committed to sole parenting and raising the four children of this marriage after separation. The mother has high hopes for the success of her children in life and she appeared very focused on the organisation surrounding the children’s day to day activities. I have  no doubt she has worked hard in her role as primary parent and that she has juggled her own working life with that role, a task requiring much energy. The father makes no criticism of the mother’s day to day care physical of the children and I am sure that the mother is capable of providing for the children’s physical needs. 

2. The mother made several references to herself as “running a tight ship” or “being on a roll” and I was left with no doubt at all that the mother was the captain of that ship and that her views and wishes were central to the running of the family.  I concluded that the needs and wishes of others, including the children and the father, were subservient to hers.

3. Having had the opportunity to watch the mother in the witness box and having listened to her answers during cross-examination  I found her to be lacking in candour.

4. I consider that in many of her answers the mother was deliberately vague and off point, she was evasive and non responsive and her memory often failed on critical issues such as what she discussed with the children about moving to [S] when she found out about Mr S’s transfer.  I consider the mother’s evidence about other issues such as where Mr S applied for posting as a [omitted] and how long the mother had to talk with Mr S between when he came back from out bush and left for [S], was simply untruthful.

5. The mother was asked questions about [P] High School. Her answers about whether or not she had a telephone number for the father were typical of the mother’s failure to answer a question directly.  Under cross-examination the mother often offered cascading and changing answers.  As each answer was proved incorrect, she offered a different one.  Time was wasted during the trial while the mother split hairs about what she had actually said or done, even when shown documents that clearly contradicted her.  

6. The mother’s evidence as to why she did not return the children to Queensland so they could spend half the Christmas holidays with their father pursuant to the consent orders captures the essence of her untruthfulness.

7. The mother at first said there was no point in trying to get flights back, that it was far too late and that it is hard to get seats in the school holidays. When asked why she didn’t drive back, the mother said she could have but she was working and got a job immediately when she arrived in [S].  Immediately then became virtually that week, she got a job as a [omitted] after walking around [S] with her resume.  When asked about who was looking after the children for the holidays if the mother was working, the mother then admitted that she got the job straight away but did not start her job until a month or so later on 3^rd or 4^th January 2009.

8. When asked what she did during the holidays the mother then admitted that in December they went on a holiday to Canberra and Wollongong to see Mr S’s mother and sister.  She said they went to the Questacon and Covent Gardens - all in the period when the girls were supposed to be holidaying with the father.  This final answer is the correct answer, not as suggested by the mother initially, that she did not bring the girls back to Queensland because it was too late to book flights. 

9. Wherever the mother’s evidence contradicts that of other witnesses, I prefer the evidence of the other witness.

Mr S

1. I found Mr S to be an honest forthright witness who did not mince his words.  His directness and honesty in giving answers was refreshing and a stark contrast to the mother’s evasiveness.  At age 35, he impressed me as being very keen to further his career in the military. He explained his first choice was to be a [omitted] which could only occur in Freemantle where there are [omitted] and not Cairns as had been suggested to the Court by the mother.  He said he had never told the mother he might be transferred to Cairns. 

2. Mr S has been sent to [S] for two years, and asked for a third year when he thought [X] was going to high school in [S].  Mr S also explained that when he found out about his posting to [S], he rang the mother within a day or two from out in the bush where he was on a training exercise.  When he went back to Townsville he stayed for 3 weeks before leaving for [S].  During that time he and the mother had a discussion or discussions with [B], [X] and [Y] about moving to [S].  Mr S said that the children were keen enough to go. He said that during the discussions there was no mention of the father at all.  This all occurred prior to the father even being informed of the transfer.

3. Mr S’s evidence on these discussions contradicts the mother’s evidence which was that the he had been away in the bush, came back and left almost straight away and there was no time to discuss the move.  I prefer the evidence of Mr S to that of the mother.

4. I accept Mr S’s evidence that he did not know the mother had abruptly left Townsville until she phoned him when she was in Brisbane, having already left.

5. Whilst Mr Segura has no children of his own, I accept that he would put his best foot forward in his parenting endeavours with the children.

Ms S

1. The maternal grandmother gave evidence at the trial.  I have no doubt that she loves her grandchildren and that they love her.  Even allowing for her to be supportive of her daughter’s position which I would expect, I found her to be a completely partisan witness.  When asked by Mr Betts of Counsel on behalf of the father what good things she could say about the father’s parenting, Ms S literally could not think of one good thing to say. 

2. Ms S harboured grievances about the father going back to when [A], who is now 21, was in high school and back to when [B] now 17 was about 3. Ms S gave evidence relating to the father being insensitive about [A] getting a poor mark on a report card, and making references that as a 3 year old [B] was sweet, not the like “the other one”, allegedly referring to [A]. 

3. Conversely she was not at all critical of the mother in abruptly relocating to [S]. Ms S said her daughter “needed to be with her husband”.  Ms S said however she was devastated that the children had to be returned to Townsville. 

4. I am satisfied that the letter sent to the father on behalf of Ms S, Ms C, Mr P and [A] seeking time with [B], [Y] and [X] was a contrivance and completely unnecessary if the purpose was to request time with the children.  Ms S admitted that she did not ever ring the father, or ring the mother to get the father’s phone number so that she could simply ask him for time with her grandchildren.  Her evidence that she thought the father had a silent number was disingenuous.  I place little weight on her evidence.

5. Ms S’s evidence however, did provide me with an opportunity to see first hand the strength of the mother’s family’s low regard for the father.

The Family Reports

1. The first family report dealing with the father’s application for more time unequivocally supported an increase in time between the father and the children and the retaining of equal parental responsibility.

2. The report was highly critical of the mother’s attitude toward the father. It referred to her passive control of the children’s relationship with their father, the fact that the mother had created a situation where the children were not able to properly engage with their father as they knew it would not be acceptable to the mother.

3. The mother’s continued anger with the father was also evident to the report writer as was the mother’s wish to avoid communicating with the father.  Also evident was the mother’s extreme criticism of the paternal family and strong criticism of the father made to the children, the Mother told the report writer, “all the girls think I made a bad choice in selection of my first husband”[20].   I accept Miss Protheroe’s version of events as to the context in which this statement was made.

   [20] First Family Report, paragraph 52.

4. The report referred to the children having aligned themselves with the mother’s position noting that the children’s own statements expressing their love for their father but then adding their comments “it is so cruel to give him [Mr Waldgrave] more time; she [Ms Segura] would not like it”[21] and a comment by one of the older girls about the mother that “it would be nice for her to relax, I worry about her, I feel her pain”[22].   

   [21] First Family Report paragraph 81.

   [22] First Family Report, paragraph 70.

5. In what has become a most relevant observation, the report writer stated at paragraph 103:

   “At the present time, the writer does not consider Ms. Segura is facilitating a positive relationship between the girls and Mr Waldgrave.  Furthermore, there is a likelihood of Mr S being posted.  Although beyond the scope of this report, the writer doubts Ms. Segura’s ability to promote a positive relationship between the children and their father if they were geographically separated”.

6. At the trial Miss Protheroe agreed that the underlying narrative of her first report was that the mother held negative views about the father, the mother would not be able to facilitate a relationship between the children and their father and that the children’s allegiance with their mother was an impediment to moving to equal time with the father.  Miss Protheroe gave evidence that in her view, “I’d say to this day that she knew that she was influencing the girls”[23].

   [23] Transcript page 219, line 5.

7. The second family report recommends the mother be permitted to relocate to [S] with [Y] and that [X] remain living in Townsville with the father.  It also recommends equal shared parental responsibility.

8. At the trial, Miss Protheroe was asked to explain the basis of her new confidence in the mother’s parenting such that the mother’s relocation application is supported, bearing in mind all of the previous criticisms of the mother.  Miss Protheroe responded that seeing the mother on the day of the contravention hearing at Court just after the hearing finished, she considered that the mother had a massive shake up and realized at that point that this was not what the children wanted and nor was it in their best interests[24]. 

   [24] Transcript page 221 line 45.

9. Miss Protheroe also had the impression that the mother now realized the seriousness of not complying with Orders and regretted her behaviour. This is not mentioned in her report. Miss Protheroe said she observed that [Y] had matured greatly from one interview to the next and [Y] really wanted to live in [S] and that the children’s need to protect their mother had abated slightly.

10. The first interviews for the second report were held with the mother, Mr S, [B], [X] and [Y] on the very day of the contravention proceedings along with observations.  [A] was interviewed alone three days later.

11. The father was interviewed almost 11 days later with his wife Ms M, [X], [Y] and [B] and Miss Protheroe did no further “observations” instead relying on her earlier observations for the first family report on 26 June 2008[25].

    [25] Second family report, paragraph 13.

12. Miss Protheroe reported that she saw what she called “the reunion” in the hotel foyer between the children and the mother after the contravention proceedings concluded.  Miss Protheroe said children had seen their mother very briefly after her Court appearance, before they had their first interview with her for the purposes of the Family Report[26].

    [26] Transcript page 222 – line 35 to 45.

1. Miss Protheroe was aware of the mother’s abrupt relocation to [S], the contravention proceedings and the outcome of those proceeding when she did the interviews[27].  The second report makes a one line reference to the contravention at paragraph 5 saying “In January 2009, Mr Waldgrave initiated Contravention proceedings”. 

   [27] Transcript page 220, line 40.

2. Under cross examination Miss Protheroe quite properly accepted that she did not refer to the circumstances leading up to the mother’s relocation in the second report in any depth.  She agreed, nonetheless, that the mother’s conduct in relocating the children to [S] in the manner which she did, without the father’s or the court’s agreement, and failing to make the children available to spend half Christmas holidays with their father was entirely dismissive of the father’s relationship with the children[28].

   [28] Transcript page 219, line 35.

3. Miss Protheroe conceded that she knew that the father did not even know for a period where the mother and children were living, and that she knew from inspecting the subpoenaed material that enrolment forms for schools in [S] either made no mention of the father, or alternatively wrongly listed Mr S as “the father”.  Miss Protheroe’s stated under cross examination these were negative actions of the mother which reflect very poorly on her attitude to the father’s relationship with the girls. 

4. None of the concessions made under cross-examination were included in the second family report of Miss Protheroe.  The second family report offered no commentary, opinion or analysis in relation to the implications drawn from the mother’s conduct.

5. I accept the criticism by Mr Betts of Counsel of Miss Protheroe’s omission to include such matters in her report. I consider these omissions were particularly significant given that that the mother’s relocation was done in the face of the father’s opposition, in the midst of litigation and in breach of her written assurance to the father through her solicitors that she would not be relocating without his approval or that of the Court.  It was also in breach of the consent order in relation to the time spent between the father and children and the mother’s decision was in disregard of the provision for joint decisions to be made in relation to long-term issues, such as where the children live, provided for in the consent orders.

6. Miss Protheroe’s earlier had reservations of the mother’s capacity to promote the children’s relationship with the father.  The mother’s failure to comply with the Court Orders strongly supports those reservations.  However, Miss Protheroe relies upon the mother’s reaction to being found guilty of the three contraventions as reason for the Court to consider that the mother will now comply with orders and encourage the children’s relationship with the father. 

7. On the contrary, I do not share Miss Protheroe’s new found confidence in the mother’s ability to promote the relationship between the children and the father or the likelihood of her complying with orders in the future.

8. In relation to recommending the separation of siblings, Miss Protheroe gave the matter much thought as she said she would not normally make such a recommendation.  The basis of her thinking in this regard was that she considered that [X] would be less available to [Y] given her age.  Also, that to the separate the siblings would ensure that the mother would invest in the relationship with the father.  Miss Protheroe considered that if both girls live with the mother, the mother would not have the motivation to facilitate a relationship. 

9. I do not consider either of these reasons to be a valid reason to separate the siblings.  I am not putting arrangements in place to ensure the mother invests in the relationship with the father or to keep up the mother’s motivation to do so.  I am making arrangements centred on what is in the best interests of the children, not to help the mother cope with her difficulties and anger with the father and invest in the relationship. I do not accept that the children’s lives are so compartmentalised due to their ages, that they may as well live separately.  The evidence is that the siblings have a close relationship.

10. Ms Protheroe gave me the impression that when she wrote the second report she had lost some objectivity in this matter.  Miss Protheroe’s endeavour to assist the parties has perhaps resulted in her being overly involved with the mother.  Miss Protheroe spent time with mother on the day of her quasi criminal proceedings about which one of the children said to the father that jail had been mentioned.  Miss Protheroe said she saw the mother “shell shocked” when she was obviously upset.  She was also present later in the day at what she described as the “reunion” at the hotel between the children and mother whom they had not seen for a period.  Interviews and observations were held on that day.[29]  The fact that it was [Y]’s birthday may have added some poignancy to the whole day.

    [29] Transcript page 326, line 25.

11. The mother says that she left it to Miss Protheroe to work out how the holidays would work if [Y] lived with her in [S] and holidayed with [X] in Queensland.  Miss Protheroe did that and annexed her schedule to the second family report at page 15. Mr Betts submitted that it appeared that Miss Protheroe had taken on the role of trying to assist the mother to work out how a proposal might work to enable [Y] to live with the mother.  There is some merit in that submission.

12. Miss Protheroe’s proposal was ultimately lacking in that it failed to address the issue of the differing dates between the interstate holidays and that some holidays had overlapping periods only.  At trial, Miss Protheroe seemed aware that the mother’s holiday arrangements proposed by her were inaccurate but I was not convinced that she fully understood the difficulties that arose as a result of the timing issues surrounding the amended proposals for inter-state holidays. 

13. Having said that, I make the observation that much complexity surrounded the mother’s emerging holiday proposals as shown in her drafted amended response filed by leave on the morning of trial. Aide memoires and schedules, each subsequently amended, were helpfully tendered by Senior Counsel for the wife. Despite the best efforts of both Counsel involved to explain to the Court and clarify the situation with each other and with the mother and father, it was a most difficult exercise to unravel the true position of precisely what the mother’s proposals would really result in regarding  actual days spent by either child, with whom and at what location. 

14. As to the father’s proposal there is no analysis in the second report of the benefits of the children living together or the benefits of the father’s overall proposals. His proposals were described by Miss Protheroe in oral evidence as a “default position” and said it is to be hoped that the mother would support the relationship if those proposals were implemented. 

15. Whilst I have found the family reports of Miss Protheroe helpful in many respects it remains the role of the Court to evaluate all of the evidence and decide matters based on those considerations.  Case law tells me that there is no magic in a Family Report, it is simply another piece of evidence[30]. 

    [30] Hall & Hall (1979) FLC 90-713.

16. After considering all of the evidence and following the legislative pathway as set out in the Act as I am required to do, it is my view that the weight of the evidence is not in line with Miss Protheroe’s final recommendations.

Evaluating the competing proposals

1. I now turn to discuss those factors which are relevant to the competing applications set out in s.60CC and then I will have reference to the primary considerations.

2. Turning to the additional considerations which are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

3. The children’s views expressed by the children at the time of the preparation of the first family report were universally in support of the mother’s position of no additional time with the father.  The reason for this view however, was clearly identified by the report writer as the children being aligned with and loyal to their mother.  Their awareness of the reaction of the mother to the prospect of them spending more time with the father was acute as demonstrated in comments I have previously referred to. The fact that these comments are still being made 5 years after separation indicates to me the strength of the children’s alignment. 

4. Unsurprisingly when the mother’s proposal changed, so that she now wished to relocate to [S] with only one child, the views of all four children changed.  When re-interviewed the children echoed support for the mother’s new proposal. Miss Protheroe said the siblings lobbied “[Y] is a special case; please send her back to mum; everybody would be happy if [Y] was happy.  Maybe dad would be okay; he can develop a connection with [Y] during block periods”[31].  

   [31] Second family report, paragraph 48

5. I note the observation of Miss Protheroe in the second report that the children’s need to protect their mother had waned a little.  The children were highly aligned with the mother at the time of the first report.  It is clear to me that they know that if their mother is happy, everyone will be happy. [B] stated, “I really want mum to be with her husband.  Both parents have their needs, but we have our own needs.  Parents love their children unconditionally... we girls [mother and siblings] have a strong connection: nothing can stop our love.  Any communication can help: I don’t think one has to worry about [Y] and [X]’s relationship.”[32]

   [32] Second family report paragraph 52.

6. Three of the four daughters who wish [Y] to go and live in [S], have themselves chosen to remain in Townsville.  

7. [B] said in the second report: “I love dad: I do appreciate what he has done.  If something happened to him, I would be upset: he would be upset if something happened to me”. 

8. [Y] has said that she wants to live with her mother and that she has missed her mother.  I accept that when [Y] was interviewed she was upset upon seeing her mother for the first time since being returned to Townsville, and that she would naturally have been missing her mother with whom she had previously always lived.  I had contemplated a further family report to obtain [Y]’s views at a time when she was more settled, and in her final submissions Mrs Pack of Senior Counsel requested that I do so. This was opposed by Mr Betts for the father. Having given that matter some consideration, I am not prepared to accede to that request.  I am not prepared to place [Y] or the other children under any further pressure. 

9. The mother says in the second report that [Y] “deserves to be raised her mother, the same as the other three girls”[33]  [Y] now echoes similar themes such as, “Mum raised me; I’m used to mum, I have lived with her for my whole life.” 

   [33] Second Family Report paragraph 38.

10. The lobbying of the report writer by the sisters who were not going to live in [S] to send [Y] back to the mother, is to my mind suggestive that the children are likely to be still accommodating the mother’s wishes and making sure that the mother is happy, as they did in the first family report.  Given my overall views that the children are very conscious of their mother’s wishes I cannot envisage that any further report will result in that changing.  I consider it will put [Y] in particular under more pressure from both the mother and her siblings to support the mother’s position.

11. I have taken all these matters into account when determining the weight that I place on the joint and several views of the children, being mindful of their ages and maturity.

12. In relation to [A]’s views about where [Y] should live, to the extent that I am required to take into account [A]’s views, I do so accepting that she is and always has been since separation affected by the separation and aligned with her mother. At 21 she is struggling to establish a relationship with her father and I consider she has had no assistance from the mother in establishing an open and flexible relationship with her father.

13. As to [Y]’s views, I consider that she is in a most difficult situation finding herself choosing between either living with her father and sisters or living with her mother. 

14. Other influences may be affecting [Y] in her views such as the reportedly wonderful time she had on her holidays with the mother, sisters and step father for the entire duration of the Christmas school holidays in New South Wales and Australian Capital Territory.  Miss Protheroe described [Y] as being vibrant when talking about the Christmas holidays in the Hunter Valley.  Miss Protheroe said in oral evidence that she sat in the motel room during the observation and spoke with [Y] about the family holiday in the northern area of the Hunter Valley.  Ms Protheroe stated “they were talking about the same places I had been in the Hunter Valley area and [Y] was vibrant when she was talking about this.  This was a child who was keen to go back – seeing her doing things I didn’t think she was capable of in June last year.”[34] [Y] has only known a happy time in [S].  She has not lived in [S] without any of her siblings. 

    [34] Transcript page 326, lines 25-40.

15. I am also mindful that [Y], like the other children, has been exposed to the litigation by the mother, that she was swept up in the panic that surrounded the mother’s return to Townsville and the contravention proceedings with one child reporting to the father that there had been talk in the family of jail for the mother.  [Y] has spoken to the father of looking forward to walking to school in Townsville by herself next year and expressed a level of comfort about living with the father.

16. Even though Miss Protheroe noted [Y]’s maturing, I am not satisfied that [Y], who turned ten on the day of her first interview for the second report, could fully appreciate what her day-to-day life will be like for the rest of her childhood without her siblings and living away from the familiarity of Townsville, her school, friends and father.  I also consider there are other issues beyond [Y]’s thinking and maturity, which are relevant to her own long term best interests, which are most relevant in this matter, such as retaining a relationship with her father, which I have referred to elsewhere in these reasons.

Section 60CC(3)(e) - The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. (including the concept of “meaningful relationship – a primary consideration).

1. Turning to the mother’s proposal I refer to the Orders sought by the mother as shown in her amended response set out elsewhere in these reasons. 

2. The submissions on behalf of the father are that the mother’s proposals are not easily understood, and that it is most unlikely that the Mother will comply with the Orders especially given the past difficulties in interpreting a fairly simply worded order regarding birthday time.  During the trial the mother was given various opportunities to explain how in practical terms her proposed orders would work.  Not once was the mother able to satisfactorily explain the specifics to the Court.  There was a moment of showing some understanding in relation to the Christmas period orders

3. Given that there were often separate holidays in Queensland and New South Wales, the mother also could not explain what was meant by terms used in her proposals such as “the midpoint” when referring to the clause:

   “in the event that the New South Wales gazetted school holiday period overlaps with the Queensland gazetted school holiday periods and the Queensland gazetted school holiday period commences first for half of the combined Queensland and New South Wales gazetted periods commencing on the day nearest to the midpoint of the combined Queensland and New South Wales gazetted periods and finishing on the day prior to the recommencement of the following school term” . 

4. In trying to interpret the mother’s complicated proposal in her Amended Response, I have reason to believe that purposely or not the mother would interpret her own proposals, such that the intended holidays between [X], [Y] and the father would either not happen at all or would happen only with difficulty and conflict. My belief is supported in part by the oral evidence of the mother that she interpreted the clause of the consent orders that read the father was to “have contact with the said children (my underlining) for a period of four hours on each of the children’s birthdays” as meaning the father could only have time with the child celebrating her birthday, not the other siblings.  The mother admitted that the father had not once spent a child’s birthday with all of the children.

5. Other than my concerns about the mother’s ability to interpret and implement her proposals, I have other concerns about the mother’s overarching proposal in relation to how long [X] and [Y] would really spend with each other and the non-resident parent during the holiday periods. After analysing the date of the holidays noting that some of the holiday periods between NSW and Queensland occur at entirely separate times, and other have some periods overlapping, I consider that the end result does not enable the girls to maintain a meaningful relationship with each other or the non-resident parent.

6. This mother’s proposal involves an arrangement where for the holiday periods (except Christmas) one child’s holiday periods will be  spent interstate with her sister  who will still be attending school for either all or part of the visiting sister’s holidays.

7. This means that if [Y] visits [X] during the Queensland School holidays, and it is one of the holidays where there is no overlap at all between Queensland and New South Wales holidays as occurs in the June/July 2009 and September/October 2009, [X] will be at school for the duration of [Y]’s holidays.  [Y] would then travel back to New South Wales, her holidays having ended.  When [X] then travels to and from NSW during the Queensland school holidays, [Y] will have returned to school and be at school the entire time of [X]’s visit. [X] would then return to Queensland. 

8. Where there is some overlap, such as in April 2009 (which is the same in 2010), the real time spent together is not all of the school holiday period, rather it is 9 days. 

9. Senior Counsel for the wife helpfully provided me with an aide memoire setting out a table of the proposed holiday periods in New South Wales and Queensland in 2009 and 2010, and then an amended one.  I have already referred to the 2009 position, and if the dates are accurate in 2010, there is an overlap of 9 days in April, 6 days in July/August, and 6 days in September/October. There is at least a four weeks overlap at the end of the year in December 2010.

10. This confirms my earlier concern that there are only limited periods where the girls would actually be on holidays together with each other and a parent. It is not the case, as originally suggested by the mother and Miss Protheroe, that each child will be together for each of the school holidays. Travelling for each child also has to be factored into this time. Upon arrival in Sydney having flown from Townsville, the journey continues by road for a period of one and half to two hours to [S]. 

11. Mrs Pack of Senior Counsel for the wife, submits that the issue of each girl living and attending schools in different states and holidaying with the other when one was at school for either all or some of the holiday period, was an opportunity for the non-resident parent to spend “quality time” with that child.

1. I am not convinced that this is so. The parent with the visiting child has to make holiday arrangements for one child on holiday whilst also ensuring that the other child is ready and able to continue with school commitments, homework and all that is entailed in their schooling. The mother’s proposal does not permit the parent with the child still attending school, to actually organise any day trips with both girls, other than after school.  Further, it does not permit a parent to organise cumulative days and nights away on holidays with both girls, except for a weekend, as one girl will be at school for all or some of the time. 

2. I consider the whole arrangement to be disjointed and problematic in terms of each child and parent spending family time together and the siblings spending time together.  I also consider the time available is restricted and insufficient and not conducive to enabling the sisters to enjoy a happy and meaningful period of time together as sisters in order to sustain their sibling relationship. I am  not satisfied that the proposal is sufficient in terms of quality and time to enable the relationship between the visiting child and other parent to be maintained in the long term.

3. On the father’s proposal, both girls will be on holidays at the same time, they will fly south for the school holidays together and spend their time together with their mother enjoying the holidays. The remainder of the holidays are spent together with their father as a family. 

4. The time spent with the children together and with the mother will be for a period of at least 9 weeks per year, which is well within the range suggested by Miss Protheroe as being sufficient to enable a meaningful relationship between [X], [Y] and the mother to continue. Miss Protheroe’s evidence was that a minimum of six weeks would be required[35]. 

   [35] Transcript page 331, line 5 onwards.

5. As to the cost of all this travelling, I am told by each Counsel that cost is not an issue for either family.  Having insisted on being provided with some details of income and expenditure, I was informed that the approximate cost of flying one child from Townsville to Sydney is $200 one way.  There is additional travelling from Sydney to [S] a journey of I am told 2 hours, and then the return [S] to Sydney.  Each party contended that the combined average income for each household was about $100,000.00 per annum and that each could afford the $1500.00 or so per year to cover travelling.  I am satisfied that this is so.

Section 60CC(3)(b) - The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. There is no doubt that all of the children have a close relationship with their mother. They have lived with her since separation with the agreement of the father, and the father acknowledges that the children have a close bond with their mother.  I accept this. 

2. I am satisfied also however the mother’s relationship with the children is one where they have been required to display their loyalty to her and have had to compromise their own hopes and needs in relation to having a more meaningful relationship with their father.  I accept the view of Miss Protheroe that the children’s responses suggest they are placing the mother’s needs ahead of their own[36].

   [36] First Family Report paragraph 100.

3. I am also satisfied that the children have a good relationship with their father.  In the first family report the children expressed their love for the father albeit they knew they ought not spend more time with him as to do so would upset their mother. 

4. The past criticisms of the father’s parenting made by the mother in the first family report appear to have vaporised, if they ever existed. The mother said that [B] saw her father as controlling and not listening to her needs, and [X] would see discrepancies in his emotional wellbeing and see his family as dysfunctional[37] and that none of the girls wanted to spend more time with their father. [B] herself at the time described how she would like to have a relationship with her father in the future, but could not imagine how anything spontaneous like an impromptu dinner would occur, as “it may upset mum, confuse mum.”  

   [37][37] First family report paragraphs 51 and 52

5. In her affidavit of 2 July 2008 the mother deposed that [B] was presently refusing to have anything to do with her father, [X] does not wish to spend more time with the father, and the mother did not consider it in [Y]’s best interest that she be separated from her two older sisters and made to spend additional time with the applicant, or made to live week about.

6. Since the upheaval in their lives by being removed to [S], both [B] and [X] at ages 17 and 14 have chosen not to live with the mother in [S] but instead to live with the father in Townsville.

7. [B] and [X] have expressed their love for their father in the second family report.  [X] says she is not surprised she and her father have a good relationship, “he understands me more, he is learning: I’m more confident. We can talk about my health, I’m more open.” [38]

   [38] Second family report paragraph 54

8. It is clear to me that given the opportunity to live with the father and develop a relationship with him, the children have consolidated and enjoyed their relationship with him. This opportunity only arose because the father objected to the mother’s unilateral removal of the children from Townsville and Orders were subsequently made for the children to live with the father pending a full hearing. 

9. I consider that if [Y] remains living with the father this will allow their father daughter relationship to develop assisted by the absence of the mother’s emotional pressure.  

10. If [Y] remains living with the mother, I am satisfied that there will be no encouragement at all for [Y] to build and maintain a close relationship with her father.  [Y] will spend most of the year influenced by her mother.  I consider that the mother will take advantage of the tyranny of distance to be less vigilant in her responsibility to ensure phone calls, web cam and regular holidays occur.

11. I am not convinced, despite her expressions of regret, that the mother will comply with the Court Orders regarding [Y] spending time with and communicating with the father once she leaves the Court room.  I am satisfied that she continues to show a lack of respect for this Court in being evasive and untruthful in her answers at the trial.  The mother has in the past shown disregard for written assurances she gave the father about not removing the children from Townsville as well as acting contrary to Court Orders.  

12. The mother has shown no insight into her conduct of passively ensuring the children are aligned with her in her negative view of the father nor does she accept that she has in any way failed to promote the children’s relationship with the father.  The mother’s oral testimony confirmed in my mind that there has been little to no room in the lives of the children for their father’s involvement and that is exactly how the mother sought to arrange their affairs. 

13. The mother’s statement that [Y] “deserves” to be raised by the mother, provides some insight into the mother’s belief that she is the only parent who ought to be raising the children.  I disagree.

Section 60CC(4) - The extent to which each of the child’s parents has fulfilled or failed to fulfil, his or her responsibilities as a parent and in particular, the extent which each of the child’s parents - Willingness to promote the child’s relationship with the other parent.

1. As I have referred to elsewhere in these reasons, I agree with

   
   

   Miss Protheroe that the mother whilst the primary carer of the children since separation, has failed to nurture the relationship between the children and their father. This behaviour has been both subtle and overt.

2. I am satisfied after hearing the evidence of the father’s endeavours to increase his time with the children starting in 2006, that the mother stalled the process whenever she could. 

3. Examples of this behaviour include taking three months to file a response, months to answer a letter, jettisoning the dispute resolution process, and then finally agreeing to extra time per fortnight, only subject to the mother’s own conditions. Even when the mother did finally agree to one night extra, the evidence is that by that time the mother knew Mr S had applied for positions well away from Townsville. To my mind all this conduct on part of the mother demonstrates her opposition to the father becoming a more meaningful father figure in the children’s lives. 

4. When the mother spoke of her failure to ensure that [X] attended the week-end of December with her father, and any make up time that was to occur, the mother said: “it’s not up to me it’s up to [X]”[39]. 

   [39] Transcript page 136, line 15.

5. I therefore grave doubts about the mother’s ability to promote a relationship between [Y] and the father, or [Y] and [X] into the future. 

6. On considering the father’s willingness to promote the other parent, the father has conceded in what I consider a genuine statement, that he considers the children are closely bonded to the mother.  There is no evidence that he has tried to undermine that relationship.

7. I accept that the father will encourage that relationship in the event that both [Y] and [X] reside with him.  The father appeared to me to earnest and long suffering in his endeavours to spend more time with the children. I accept that the father felt deeply about the state of his fractured relationship with [A] and that he genuinely wanted an opportunity to be more of a father in the lives of all of his daughters.   

Section 60CC(3)(f) - The capacity of each of the child’s parents, and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

1. [X] admitted in the second family report  she quickly adjusted to living with Mr Waldgrave and with Ms M, of whom she said “Ms M is good: I find her really approachable”. [X] described her relationship with the father as ten out of ten, and said “I am not surprised we have a good relationship... dad understands more, he is learning.  I am more confident.  We can talk about my health.  I’m more open”[40]

   [40] Second family report, paragraph 54

2. I consider that the father has far more capabilities as a parent than the mother will ever give him credit for and it seems to me that at least [B] and [X] have worked this out for themselves.  He has quickly adjusted to the role of primary carer of the children, and done so in a difficult context. 

3. As I have said elsewhere, I consider that the mother has the capacity to cater for the children’s physical needs, however, her negativity towards the father and her controlling the children’s relationship with the father to ensure that it operated at the most minimal level demonstrates her lack of acknowledgement that the father has a role to play in the children’s lives and that they would benefit from having a strong relationship with him.

4. Removing the children from schooling and Townsville without warning in early December when they were so close to the end of the final term was unnecessary and showed little regard the children’s emotional well being. No opportunities were given for the girls to have farewells, end of year break-ups and award ceremonies, thank teachers or get a sense of closure on ending their Townsville life. 

5. Mrs Pack of Senior Counsel submitted that the mother’s sudden departure to [S] was “a moment of madness”.  I do not accept that it was.  The moment continued for weeks and months.

6. I also consider that the mother failed to consider the consequences for the children when she exposed them to the ramifications of the mother’s own disregard and distress at having breached the consent orders. The mother in doing so polarised the children from their father, as they would naturally have felt sorry for the mother who gave evidence that she and all the children were upset when court action commenced for her return. 

Section 60CC(3)(i) - The attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. I have touched on issues relevant under this section elsewhere in these reasons.

2. In addition I note that the first family report recommended that the father needed to become attuned to the needs of parenting adolescents with depression and anxiety, referring to the periods of depression suffered by [A] and [B]. The father seemed keen to do this. I accept that the father had little knowledge of the nature of the illness suffered by either of the girls.  The mother did not shy away from the position that she alone managed all aspects of the depression suffered by two of the children.    

3. The first family report observed that the mother was yet to come to terms with shared parental responsibility. There is no evidence of the mother including the father in any serious discussion about the children’s’ welfare, in either the day to day decisions or significant long-term decisions such as the depression episodes suffered by [A] and [B].  

4. I am critical of the mother for allowing the adult issues between herself and the father, and the failings of their married life to have impacted on the ability of the children to have a relationship with their father.

5. The mother was also unrelenting in her criticism of the paternal grandfather and grandmother. The mother overlooks the possibility of the children having some relationship with the paternal grandparents even if the mother personally did not approve of aspects of their living arrangements or all of their conduct.

6. As for the maternal grandmother, I accept that the father would encourage and permit the relationship between the children and their sisters [A], [B] and maternal grandmother to occur at reasonable times and that he holds no grudges against the grandmother. I see no necessity for any orders to be made as sought by the mother permitting the grandmother, [A] and [B] to spend time with [X] and [Y], as I am satisfied that the father will support these or similar arrangements.

7. In terms of their general parenting abilities, to feed and clothe and house the children and ensure that their day to day lives are conducted in an age appropriate manner, I consider both parents have the requisite ability.

Section 60CC(3)(c) - The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.

1. This is a matter of great concern to me.  As stated elsewhere in these reasons, I do not consider that the mother has been willing to encourage a close relationship between the children and the father. As opposed to this, I consider that the father is very aware of the role of the mother in the children’s lives, that he is attuned to the strength of the sibling relationships and that he has in no way acted to undermine or disturb the children’s relationship with their mother.

2. I saw no indication during the trial that the mother had gained any respect for the father’s role or any insight into her own negative behaviour regarding the father or his family.  The mother took every opportunity to criticise him and his family and when given the opportunity to rethink some of her criticisms, the mother failed to do so. 

3. When asked about the Christmas holiday period that the three children were supposed to be spending with their father pursuant to the Consent Orders, the mother gave an enthusiastic response about the places and sights she and Mr S had taken the children to in Canberra and said that they did lots of travelling and sight seeing. In answer to the proposition from Mr Betts of Counsel that the children might have had a good time, but they didn’t see their dad for the whole Christmas period, the mother told the Court how the children saw new things and how their horizons had been broadened by such experiences. 

4. I consider that the mother showed no insight into the gravity of her actions in failing to return the children in December 2008 to the father pursuant to the consent orders.  The mother showed no insight into the loss the children or father have suffered through not spending Christmas holidays together, which is the longest holiday period of the year.

5. The mother said that she was selfish in retaining the children for the entire holidays.  I agree.

6. There are many aspects of the mother’s conduct about which I am satisfied fall far short of encouraging a relationship between the children and their father.

7. I consider that if the mother is the parent left to promote [Y]’s relationship with the father that the relationship will most surely dissipate in the future.

8. I am satisfied that in the future, the mother would not deal honestly with the father in relation to the arrangements necessary to enable the children to spend time with and communicate with the father, without some difficulty.  The mother refused the father’s request for mutual undertakings not to remove the children from Townsville on the basis of her assurance that she would not relocate without his agreement or order of the court.  She did precisely what she said she would not do.[41]  The father did not even know her whereabouts for more than a week.

   [41] Transcript, page 147, line 10.

9. Miss Protheroe considers that if both girls lived with the mother, the mother would not have the motivation to facilitate the relationship[42]. This is line with Miss Protheroe’s first report, in which Miss Protheroe’s position was that she did not consider that the mother was facilitating a positive relationship between the girls and the father.[43] 

   [42] Transcript, page 318, line 35, and line 10 onwards.

   [43] Transcript, page 318, line 4.

10. Miss Protheroe questions whether if the Court Orders that the children live with the father, the mother would facilitate or sustain that relationship.  Miss Protheroe was aware of the mother’s phone calls with the girls which occur privately and behind closed doors, and queried whether if the children whinged about the father to the mother, whether the mother would side with the children and be seen as “white anting” the relationship between the children and the father.[44]

    [44] Transcript, page 319 – line 5 to 20.

11. Mrs Pack of Senior Counsel put the proposition to Miss Protheroe in cross-examination, that given the mother’s acquiescence in permitting the father to have sole long term responsibility for both children if both live with him, this must surely mean it is unlikely that the mother would then “white ant” the girls relationship with their father.  Miss Protheroe agreed “something must be happening” with such a proposal.

12. I do not see the two concepts as mutually exclusive.  Given the low regard that I consider the mother holds the father in relation to his status as the children’s father, and the mother’s criticisms of he and his family, I am troubled to hear evidence that the children are taking phone calls behind doors.

13. Miss Protheroe also agreed in this context, that if [Y] resided with her father, that [Y] was going to be one very emotionally distressed little girl.[45]  I am mindful that [Y] has settled back into school, and is talking of going to school next year in Townsville and has shown a level of comfort with living with her father. I have confidence that the father and the capacity to assist [Y] to cope emotionally while she settles back into life in Townsville.  He will undoubtedly receive assistance from Ms M.  In Townsville [Y] will have the love and comfort of her big sister [X], and also [B] and [A].

Section 60CC(3)(d) - The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: either of his or her parents; or any child, or other person (including any grandparent or other relative of the child) with whom he or she has been living.

[45] Transcript page 319, line 35.

1. The mother’s proposal involves separating the siblings. This will constitute a significant change for the children who have all previously lived together. I am satisfied that the siblings enjoy a close relationship.  Growing up as part of a family of four girls, to my mind, would provide a loving and safe family circle for [Y].  I consider the proposal to separate [Y] from her sisters needs to be examined most carefully.  It is not difficult to conclude that by doing so, and removing [Y] from the day to day closeness and fun that sisters inevitably share, and relocating her thousands of kilometres away is going to have a significant affect on her current levels of sisterly intimacy with [X] and also her other sisters. Her relationship with her sisters becomes a long distance relationship and would take on a much different character than an arrangement where she remains living with her siblings.   

2. The mother herself conceded in evidence as recently as February 2009 she did not propose separating [Y] from [X] because the sisters were very close and separation might upset them.

3. The mother has never proposed this in the past, in fact she deposed in her affidavit of 4 February 2009 paragraph 12, “I am of the view that it’s best for [Y] [sic] not be separated from her sisters”.  This was only weeks before the trial. 

4. The decision to start separating the siblings comes at a time when the elder siblings have indicated their wish to stay in Townsville. This was not contemplated in the first family report, and the mother herself was totally opposed to the idea as articulated in correspondence referred to in the history of this matter, and previous responses. 

5. In separating out [Y] as the only child who should accompany her to [S], I consider that the mother is undervaluing the sibling relationships and she is clearly going against all her previous positions. 

6. If [Y] remains living with her father, [Y]’s close sibling relationship with [X] will be sustained.  It also provides the opportunity to live in a sisterly relationship with [B] whilst ever [B] remains living with the Father or in Townsville.  [A] has stated to the report writer her desire to regularly spend time with [X] and [B] on every second or third week-end, overnight from Saturday lunchtime to Sunday lunchtime.  This would provide an opportunity for all the siblings to share in the joy and closeness of their relationship and I am satisfied the father would encourage this or a similar arrangement.

7. I believe there are advantages in [Y] and [X] remaining living together.  I accept the submission that the children are doing different activities at their respective ages, however, I do not accept that the lives of these two sisters are so disconnected and separate that they would not have plenty of opportunity to still enjoy the benefits and closeness of their sibling relationship and growing up together living in a family setting with the father.  Whilst ever [B] remains living with the father, that is an extra benefit.  Sharing daily routines such as breakfasts, dinners and down time during the week and week-ends provides ample opportunity for [X] and [Y] to have incidental time to stay close and give each other the love and support that siblings can provide.

8. The mother’s proposal for [Y] to live in [S] away from Townsville, her father, her sisters, her school and all her friends in Townsville, will represent a significant change for [Y].  As I have said elsewhere, I am not satisfied that just having turned ten, she can fully understand the comprehensive changes that the mother’s plans entail.   

9. The father’s proposal also means significant change for [Y] who has lived with her mother all her life. [Y] has always lived with her mother, and she would no doubt miss her mother. I am satisfied however, that the father has the parenting capacity to assist [Y] cope emotionally.  He will be assisted by Ms M and also [B], [X] and [A].

10. I have doubts about how well [Y] would cope living away from all her sisters.  This has not been envisaged before by either parent, and I consider it a significant step and one which I am not convinced has any benefits for [Y] in the long term. 

11. In [S] the mother will be working, as will Mr S. The household will be a vastly different and quieter household with no other siblings present.  [Y] becomes an only child.  [Y] will face the challenge of settling in to a new school and making new friends, albeit she has had holidays in [S] and has attended school for about 5 days. 

12. I am not satisfied that [Y] has the maturity to fully understand that her move to [S] will be for probably 2 years, 3 at most.  After that she has to start all over again with another new school, leave her friends behind and move into a completely different living arrangement at whatever place Mr S is posted to.

Section 60CC(3)(l) - Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.

1. The position of the mother and Mr S is that according to Mr S he will be in [S] for two years.  He had intended asking for a 3^rd year if [X] was to complete high school in [S] which she is not now doing.  Mr S will then be posted to another location as required by the Australian Army.  The mother sought an order for sole parental responsibility and the emerging reason appeared to be so that she did not have to come back to Court again to seek the father’s agreement to a further relocation.

2. If I made an order that [Y] lives with the mother in [S], I would not consider it to be in the best interests of [Y] to enable the mother to then locate anywhere in Australia, without the father having any involvement.  It might be that there are cost of travelling issues or other difficulties that need to be ventilated at that point. Also, [Y] who would then be aged 12 or 13, and her views about any intended move, which should be given some weight in such a decision, would need to be ascertained.

3. In terms of future litigation, I anticipate that the complex proposals outlined by the mother in her amended response may well lead to confusion and possibly further contravention applications.

Parental Responsibility

1. Having considered all of the relevant section 60CC factors, I have concluded that there are no issues of family violence or abuse against the children and the primary considerations are not rebutted. Nor do I consider that there is any issue in the section 60CC factors which would preclude an order for equal shared parental responsibility.

2. The mother gave evidence that she didn’t want to have equal shared parental responsibility for a child that didn’t live with her and that to do so, would just be paying lip service to such an order.

3. I consider that it would be entirely appropriate and in the best interests of [B], [Y] and [X] to have the benefit of both their parents together making decisions about their long term decisions.  I accept there is distance between the parties, however if there are long-term decisions to be dealt with, this can be accommodated by telephone, emails or skype. The mother has had some experience dealing with the medical conditions of the children and I consider that future long-term medical decisions ought to be made after both parents are informed and both have considered the interests of the particular child. I consider any other long-term issues regarding the children would benefit from having the opinions of both parents expressed. If necessary the parties ought to attend dispute resolution, which can occur by phone, in an endeavour to communicate and resolve long term issues.

4. I intend making an order that both the parents attend a “Focus on Kids” course offered by the Family Relationship Centre in their respective states, to assist them to build a better atmosphere for good communication in the future.

5. Having considered that equal shared parental responsibility is appropriate, I must consider whether equal time is practical.  Given that the mother has informed the Court that she is not going to live in Townsville, I do not consider that it is a practical arrangement to have the children travelling week on week off between Queensland and New South Wales.

6. Similarly the opportunities are somewhat limited in considering significant and substantial time spent with the non resident parent.  Both parents have indicated to me that they seek as much times as possible with each of the children.  Without removing [X] or [Y] from school more often than the relevant school holidays, the time available appears to be restricted to the school holidays. The parties can of course by agreement organise other occasions at other destinations, if an opportunity presents itself.

7. Any orders I make will include a provision for the other parent to see the children on short notice if the other parent is travelling to where the child or children reside.

8. I will also make the Orders that each parent seeks for liberal telephone and web cam contact as at least with web cam, the children can see their parents and vice versa. 

9. I have considered the factors under s.60CC(4)(a) and had regard to all the matters that have occurred since separation.

10. I have had regard to all of the circumstances, facts, evidence and findings and I am satisfied that having evaluated the competing proposals, that the best interests of [Y] and [X], will be served by making an Order in terms of the father’s application, that is that [X] and [Y] live with the father and spend time with the mother as set out in his application.

11. In my view and having regard to the relevant s.60CC factors and weighing up the advantages and disadvantages of each, and then comparing the overall proposals, the advantages of the father’s proposals outweigh the advantages of the mother’s proposal. I intend therefore to make orders in relation to this matter in the terms outlined at the beginning of these reasons.

I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of Willis FM

Associate:  Megan Cunnane

Date:  27 August 2009