WALTHORPE & VASS
[2018] FCCA 3583
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALTHORPE & VASS | [2018] FCCA 3583 |
| Catchwords: FAMILY LAW – Parenting – application by Mother to relocate from Australian Capital Territory to Sydney to be near her sister (Mother’s first preference was to relocate to Perth to be near her Mother) – considerations relevant to best interests of the child moving with the Mother or remaining in the ACT where the Mother feels isolated and somewhat unsupported which was also the case during the marriage with the Father who required the Mother to adjust her life to accommodate the Father’s business and other interests – application granted. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(3)(a) – (l), 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Sigley v Evor (2011) 44 Fam LR 439 Starr & Duggan [2009] FamCAFC 115 Vontek v Vontek [2017] FamCAFC 28 Wiley & Wiley [2008] FamCAFC 153 |
| Applicant: | MS WALTHORPE |
| Respondent: | MR VASS |
| File Number: | CAC 769 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 29 March 2018 |
| Date of Last Submission: | 26 April 2018 |
| Delivered at: | Canberra |
| Delivered on: | 7 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stagg |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Solicitors for the Independent Children's Lawyer: | Yeend & Associates |
ORDERS
The Applicant Mother and the children, [X] (born: 2008) and [Y] (born: 2011) (“the children”), be permitted to relocate to Sydney, New South Wales.
Thereafter, absent any Court Order or the consent of the Father, the children’s residence is not to be moved outside of Sydney, New South Wales.
The parties have equal shared parental responsibility for the children.
The parents shall communicate with each other using the ‘talking parents’ app or similar device. For more urgent communication they shall send SMS or emails to each other.
Each of the parents shall advise the other of any issues affecting the children’s health or education as soon as practicable.
Each of the parents is responsible for organizing care (e.g. after school care or school holiday programs) for the children during his or her time with them if he or she has work commitments while the children are in their care. He or she must give the first option of caring for the children to the other parent but that parent is not obliged to provide that care although he or she must advise the first parent within 3 days of the request.
The children live with the Mother and subject to any other agreement in writing between the parties, they shall spend time with their Father as follows:
(a)Every second weekend with the Father (the parties are to finalise the pick-up and drop-off times and changeover, but in the absence of agreement between the parties in writing, changeover is to occur at Suburb A, New South Wales);
(b)Half of each school holiday period;
(c)The children shall be at liberty to contact either parent at any reasonable time (which shall be facilitated by the resident parent);
(d)The Father and the children shall telephone (or Skype) each other as agreed, and failing agreement, no less than twice per week (with the times to be agreed between the parties; in the absence of agreement, those times shall be at 6pm each Tuesday and Thursday); and
(e)Whichever parent has the care of the children at the relevant time shall ensure the children have a video call with the other parent at 6:00pm on:
(i)Each child’s birthday;
(ii)The relevant parent’s birthday;
(iii)Christmas Day at the time the absent parent is likely to have a family gathering;
(iv)Easter Sunday (both the Australian and (nationality omitted) days);
(v)Mother’s day; and
(vi)Father’s day.
Either parent shall be at liberty to take the children on holidays whether domestic or international during the time the children are due to be with them, and for additional time if agreed between the parties in writing.
The parent who proposes to travel shall provide the other parent with a detailed itinerary at least 3 months in advance, unless otherwise agreed.
Each of the parents shall do all things necessary to enable the travelling parent to obtain passports for the children.
Neither parent, nor their agents and servants, shall denigrate the other parent to the children, in front of the children or within the children’s hearing.
The parties are restrained from denigrating the other parent, or the other parent’s partner and family, to the children, in front of the children or within the children’s hearing, and are to use their best endeavours to ensure that no one else does so.
The parties are restrained from discussing these proceedings with the children, in front of the children or within the children’s hearing, and are to use their best endeavours to ensure that no one else does.
IT IS NOTED that publication of this judgment under the pseudonym Walthorpe & Vass is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 769 of 2016
| MS WALTHORPE |
Applicant
And
| MR VASS |
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter that involves two young boys, [X], now aged 10 years) and [Y] (very soon to turn 7 years). Their Mother seeks to move to Perth with the children, where her Mother resides. In the alternative, the Mother proposes that she be permitted to move with the children to Sydney where her sister lives.
For his part, the Father seeks that the Mother and the boys remain living in Canberra.
The Independent Children’s Lawyer (“the ICL”) proposed that the Mother and the boys remain living in Canberra, but also said at the commencement of the trial that she would not stand in the way of a move by the Mother and the children to Sydney. Implicitly, any move to Perth, from the ICL’s perspective, was very much “a bridge too far.”
The ICL’s Case Outline neatly summarised the issues and her position in relation to them, which (subject to what is set out later in these reasons) I generally share (paragraph references have been added):
(a) The primary issue appears to be whether or not the mother should be able to relocate to Perth (or Sydney) with the children. The ICL would oppose a relocation to Perth, but not necessarily to Sydney. The ICL suggests arrangements for each of the possible three locations for the children to live.
(b) The secondary issue appears to be the father’s assumption that the mother is the primary carer and should adjust her arrangements to enable the father to focus on his work. The ICL seeks specific orders and restrictions in this regard that are designed to enable the mother to plan her non-parenting commitments and to require the father to prioritise his parenting commitments.
(c) Also in issue is the cultural and religious background of the children. The father seeks order relating to christening the children in the (religion omitted). It is no known whether this is a point of contention.
Regarding the primary issue of the Mother’s relocation, the experienced Family Consultant, Dr A, said (at par.116 of her Report dated 15th March 2018):
If the children relocate away from Canberra, it is recommended that they relocate to Sydney (rather than Perth), where they are closer to their Father’s residence and closer to their paternal extended family which will facilitate them to continue their positive relationship with their Father.
For the reasons that follow, in my view it is in the best interests of the children that their Mother be permitted to relocate with them to Sydney, and thereafter, absent any Court Order or the consent of the Father, the children’s residence is not to be moved outside of Sydney.
Orders Sought by Applicant Mother
The Applicant Mother filed a Case Outline on 27th March 2018, which contained the Orders as sought by her, which were as follows:
Final orders sought by the Applicant Mother
Children
1. That the parents have equal shared parental responsibility for the children [X] born 2008 and [Y] born 2011, ("the children").
2. That the children live with the mother.
3. That the mother be permitted to relocate with the children to Perth, Western Australia.
OR IN THE ALTERNATIVE
4. That the mother be permitted to relocate with the children to Sydney, New South Wales.
Living arrangements should the mother and children relocate to Perth
5. That the children spend time with the father under the following arrangements:
For the entirety of terms 1 and 3 school holidays each year;
From 28 December until 18 January each year;
School holidays are deemed to commence at 3 pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid-point of the school holidays is deemed to be a 6pm on the middle Saturday.
At such other times or alternative as may be agreed in writing.
6. That any change either parent wishes to make to these arrangements must be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing within 3 days.
7. That each parent shall be responsible for the cost of half the children's travel from Perth to Sydney on each occasion and the father shall collect the children from the airport in Sydney. The mother must notify the father of the flight details at least 14 days in advance and must choose flights closest to the times the children are meant to spend with the father.
Living arrangements should the mother and children relocate to Sydney
8. That the children spend time with the father under the following arrangements:
From 6pm Friday until 6pm Sunday each second week during school terms;
For one half of each school holiday period at terms 1, 2 and 3 being the second half of holidays in odd-numbered years and the first half of holidays in even numbered years;
From 28 December until 18 January each year;
School holidays are deemed to commence at 3 pm on the last Friday of terms and to conclude at 6pm on the Sunday before school resumes. The mid-point of the school holidays is deemed to be 6pm on the middle Saturday.
At such other times or alternative as may be agreed in writing.
9. That any change either parent wishes to make to these arrangements must be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing within 3 days.
10. The handover for the purpose of the children spend time with the father shall be at Suburb A McDonald's unless otherwise agreed by the parents in writing.
Should the court not allow the mother and children to relocate
11. That the children spend time with the father under the following arrangements:
a. From after school Thursday until 9 am Monday, (or Tuesday if the Monday is a public holiday), each second week during school terms;
b. For one half of each school holiday period at terms 1, 2 and 3 being the second half of holidays in odd-numbered years and the first half of holidays in even numbered years;
c. From 28 December until 18 January each year;
d. School holidays are deemed to commence at 3 pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid-point of the school holidays is deemed to be a 6pm on the middle Saturday.
e. At such other times or alternative as may be agreed in writing.
12. That any change either parent wishes to make to these arrangements must be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing within 3 days.
13. That handover for the purpose of the children spend time with the father shall be at school whenever possible but otherwise at McDonald's, unless otherwise agreed by the parents in writing.
Communication
14. That the parents shall communicate with each other using the 'talking parents' app or similar device. For more urgent communication they shall send SMS or emails to each other.
15. That the children shall be at liberty to contact either parent at any reasonable time.
16. That if the children are not living in Canberra the mother shall ensure they speak with their father at least once each week. Unless otherwise agreed in writing the mother shall cause the children to call at 6:00pm each Wednesday.
17. That each pf the parents shall ensure the children call the other parent at least once each week during school holidays by some form of video call (skype, facetime, or similar). Unless otherwise agreed in writing the parent with the children shall cause the children to call at 6:00pm on Wednesdays and Sunday when not in the other parent's care.
18. That whichever parent has the care if the children at the relevant time shall ensure they have a video call with the other parent at 6:00pm on:
a. Each child's birthday;
b. The relevant parent's birthday;
c. Christmas Day at the time the absent parent is likely to have a family gathering
d. Easter Sunday (both the Australian and (nationality omitted) days)
e. Mother's Day
f. Father's Day
Other matters
19. That each of the parents is responsible for organising care (eg after school care or school holiday programs) for the children during his or her time with them if he or she has work commitments while the children are in their care. He or she must give the first option of caring for the children to the other parent but that parent is not obliged to provide that care although he or she must advise the first parent within 3 days of the request.
20. That both parents shall provide to any school that the children attend, whether now or in the future, a written direction to the school authorising them to send a copy of school reports, applications for school photographs and newsletters to each of the parents with any costs to be the responsibility of the relevant requesting parent as necessary.
21. That each parent is to notify the other as expeditiously as possible of any matters relating to the health or wellbeing of the children (save for common coughs and colds), which require the attention of a medical practitioner or health professional with both parents acknowledging that they each have an equal right to participate in the decisions on the appropriate treatment to be administered to the children.
22. That the parents notify each other and keep each other informed of any sporting event, school event and/or extracurricular activity in which the child is involved and each parent shall be entitled to attend all such activities to which parents are normally invited regardless of with whom the child may from time to time then be spending time.
23. That the parents be restrained by way of injunction, pursuant to section 68B of the Family Law Act, from denigrating each other or a partner of either parent, in the presence and/or hearing of the child, and that they each ensure that no other person denigrates the other parent or a partner of either parent in the presence and/or hearing of the child.
Orders Sought by Respondent Father
The Respondent Father’s Minute of Orders Sought was filed on 28th March 2018, and provided as follows:
Father’s Amended Minute
ORDERS SOUGHT
Parental Responsibility
1. That the parents have equal shared parental responsibility for the children [X] born 2008; and [Y] born 2011.
2. That the parents shall communicate with each other using the ‘talking parents’ app or similar device. For more urgent communication they shall send SMS or emails to each other.
3. That each of the parents shall advise the other of any issues affecting the children’s health or education as soon as practicable.
4. That each of the parents is responsible for organising care (eg after school care or school holiday programs) for the children during his or her time with them if he or she has work commitments while the children are in their care. He or she must give the first option of caring for the children to the other parent but that parent is not obliged to provide that care although he or she must advise the first parent within 3 days of the request.
Living Arrangements in Canberra
5. That the children shall live with the mother.
6. That the children shall spend time with the father, and he shall have responsibility for them) as follows:
a. From after school on Thursday until 9am Monday each second week during school terms, and in the event Monday is a public holiday to 4pm Monday;
b. From after school on Thursday until 9am Friday in the alternate week, during school terms;
c. For one half of each school holiday period being the second half of holidays in odd-numbered years and the first half of holidays in even-numbered years;
d. School holidays are deemed to commence at 3pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid point of term holidays is deemed to be 6pm on the middle Saturday.
e. For such further or alternative times as agreed in writing.
7. That any change either parent wishes to make to these arrangements much be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing within 3 days.
Living Arrangements in Sydney
8. That the children shall live with the mother.
9. That the children shall spend time with the father, and he shall have responsibility for them) as follows:
a. From 6pm Friday until 6pm Sunday each second week during school terms;
b. For the entirety of the (nationality omitted) Easter from after school on the Friday until before school on the Monday.
c. For one half of each school holiday period being the second half of holidays in odd-numbered years and the first half of holidays in even-numbered years;
d. School holidays are deemed to commence at 3pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid point of term holidays is deemed to be 6pm on the middle Saturday.
e. For such further or alternative times as agreed in writing.
10. That any change either parent wishes to make to these arrangements much be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing.
11. That the mother shall deliver the children to the father in Canberra at the commencement of his time with the children; and that the parties meet at Suburb A McDonalds (on the northbound side) when the children are due to return to their mother.
Living Arrangements in Perth
12. That the children shall live with the mother.
13. That the children shall spend time with the father, and he shall have responsibility for them) as follows:
a. For the entirety of each of the terms 1 and 3 school holidays each year;
b. For one half of the Christmas School holidays each year being the second half of holidays in odd-numbered years and the first half of holidays in even-numbered years;
c. School holidays are deemed to commence at 3pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid point of term holidays is deemed to be 6pm on the middle Saturday.
d. For such further or alternative times as agreed in writing.
14. That any change either parent wishes to make to these arrangements much be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing.
15. That the mother shall be responsible for the cost of the children’s travel from Perth to Canberra and return. The mother must notify the father of the flight details at least 14 days in advance and must choose flights closest to the times the children are meant to spend with the father.
Communication
16. That the children shall be at liberty to contact either parent at any reasonable time.
16.1 Notwithstanding Order 16 the Mother will facilitate the children speaking with the father each Monday and Wednesday to converse between 6:30pm and 7:00pm.
17. That if the children are not living in Canberra the mother shall ensure they speak with their father at least once each week. Unless otherwise agreed in writing the mother shall cause the children to call at 6:00pm each Wednesday.
18. That each of the parents shall ensure the children call the other parent at least once each week during school holidays by some form of video call (skype, facetime, or similar). Unless otherwise agreed in writing the parent with the children shall cause the children to call at 6:00pm on Wednesdays.
19. In addition, the father seeks orders in accordance with those set out at paragraphs 26, 27, 30, 31 and 36 of his affidavit filed 23 March 2018.
Travel
20. That either parent shall be at liberty to take the children on holidays whether domestic or international during the time the children are due to be with them, and for additional time if agreed in writing.
21. That the parent who proposes to travel shall provide the other parent with a detailed itinerary at least 3 months in advance, unless otherwise agreed.
22. That each of the parents shall do all things necessary to enable the travelling parent to obtain passports for the children.
Other
23. That each of the parents shall pay the sum of $3,136 to Legal Aid ACT being 50% of the cost of the ICL appointment.
24. that the parties make the necessary arrangements for the christening of [Y] in the (religion omitted) Church:
24.1 The father will provide the Mother with the location of the ceremony, and time.
24.2 The Mother and her family are at liberty to attend/
24.3 that within 14 days of the Orders the Mother return to the father the children’s religious crosses.
Orders Sought by Independent Children’s Lawyer
The Independent Children’s Lawyer filed a Case Outline on 23rd March 2018, which contained the Orders sought by her, which were as follows:
ORDERS SOUGHT BY ICL
Parental Responsibility
1. That the parents have equal shared parental responsibility for the children [X] born 2008; and [Y] born 2011.
2. That the parents shall communicate with each other using the ‘talking parents’ app or similar device. For more urgent communication they shall send SMS or emails to each other.
3. That each of the parents shall advise the other of any issues affecting the children’s health or education as soon as practicable.
4. That each of the parents is responsible for organising care (eg after school care or school holiday programs) for the children during his or her time with them if he or she has work commitments while the children are in their care. He or she must give the first option of caring for the children to the other parent but that parent is not obliged to provide that care although he or she must advise the first parent within 3 days of the request.
Living Arrangements in Canberra
5. That the children shall live with the mother.
6. That the children shall spend time with the father, and he shall have responsibility for them) as follows:
a. From after school on Thursday until 9am Monday each second week during school terms;
b. From after school on Thursday until 9am Friday in the alternate week, during school terms;
c. For one half of each school holiday period being the second half of holidays in odd-numbered years and the first half of holidays in even-numbered years;
d. School holidays are deemed to commence at 3pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid point of term holidays is deemed to be 6pm on the middle Saturday.
e. For such further or alternative times as agreed in writing.
7. That any change either parent wishes to make to these arrangements much be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing within 3 days.
Living Arrangements in Sydney
8. That the children shall live with the mother.
9. That the children shall spend time with the father, and he shall have responsibility for them, as follows:
a. From 6pm Friday until 6pm Sunday each second week during school terms;
b. For the entirety of the (religion omitted) Easter from after school on the Friday until before school on the Monday.
c. For one half of each school holiday period being the second half of holidays in odd-numbered years and the first half of holidays in even-numbered years;
d. School holidays are deemed to commence at 3pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid point of term holidays is deemed to be 6pm on the middle Saturday.
e. For such further or alternative times as agreed in writing.
10. That any change either parent wishes to make to these arrangements much be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing.
11. That the mother shall deliver the children to the father in Canberra at the commencement of his time with the children; and that the parties meet at Suburb A McDonalds (on the northbound side) when the children are due to return to their mother.
Living Arrangements in Perth
12. That the children shall live with the mother.
13. That the children shall spend time with the father, and he shall have responsibility for them) as follows:
a. For the entirety of each of the terms 1 and 3 school holidays each year;
b. For one half of the Christmas School holidays each year being the second half of holidays in odd-numbered years and the first half of holidays in even-numbered years;
c. School holidays are deemed to commence at 3pm on the last Friday of term and to conclude at 6pm on the Sunday before school resumes. The mid point of term holidays is deemed to be 6pm on the middle Saturday.
d. For such further or alternative times as agreed in writing.
14. That any change either parent wishes to make to these arrangements much be proposed in writing at least two weeks in advance and include specific dates and times. The other parent is not obliged to agree to the proposal but must provide their response in writing.
15. That the mother shall be responsible for the cost of the children’s travel from Perth to Sydney on each occasion and the father shall collect the children from the airport in Sydney. The mother must notify the father of the flight details at least 14 days in advance and must choose flights closest to the times the children are meant to spend with the father.
Communication
16. That the children shall be at liberty to contact either parent at any reasonable time.
17. That if the children are not living in Canberra the mother shall ensure they speak with their father at least once each week. Unless otherwise agreed in writing the mother shall cause the children to call at 6:00pm each Wednesday.
18. That each of the parents shall ensure the children call the other parent at least once each week during school holidays by some form of video call (skype, facetime, or similar). Unless otherwise agreed in writing the parent with the children shall cause the children to call at 6:00pm on Wednesdays.
19. That whichever parent has the care of the children at the relevant time shall ensure they have a video call with the other parent at 6:00pm on:
a. Each child’s birthday;
b. The relevant parent’s birthday;
c. Christmas Day at the time the absent parent is likely to have a family gathering
d. Easter Sunday (both the Australian and (nationality omitted) days)
e. Mother’s Day
f. Father’s Day
Travel
20. That either parent shall be at liberty to take the children on holidays whether domestic or international during the time the children are due to be with them, and for additional time if agreed in writing.
21. That the parent who proposes to travel shall provide the other parent with a detailed itinerary at least 3 months in advance, unless otherwise agreed.
22. That each of the parents shall do all things necessary to enable the travelling parent to obtain passports for the children.
Other
23. That each of the parents shall pay the sum of $3,136 to Legal Aid ACT being 50% of the cost of the ICL appointment.
Evidence of the Mother
The Mother’s evidence – summarised - was as follows:
i)Ms Walthorpe did not seek relocation in her first Application;
ii)She confirmed that she sought an Order for sole parental responsibility but is more than content to consult with the Father on some, albeit limited, parenting matters (for reasons explained later);
iii)She said that “finances” were part of the reasons why she wanted to move to Perth;
iv)There was in-principle agreement in October 2016, which resulted in Consent Orders being filed in March 2017;
v)The Mother confirmed that, post-separation, the Father had given $30,000 to assist her in relation to her financial situation;
vi)The Mother said that she is presently working on a part-time basis as a (occupation omitted), earning approximately $55,000 per annum. She has worked in this capacity for about 7 months at (employer omitted). This work necessarily depends on (schedules). The Mother has provided pay-slips, tax returns and bank accounts for the last six months (prior to trial), and was challenged on this evidence by the Father;
vii)The Maternal Grandmother came from Perth to stay with the Mother around 7 months ago and has lived with her full time apart from when she has visited Perth. The maternal Grandmother, initially, did not pay board; she does so now on a weekly basis;
viii)Regarding “communication” and the relationship with the Father generally, the Mother said that –
a)From time to time, she withdraws from communication because she finds the Father intimidating
b)She tries to be more “business-like” in her dealing with the Father;
c)She thinks clear and concise parenting Orders will make things better in the communication between the parties, as will use of communication “apps”; she remains generally “hopeful” in all of the circumstances;
d)The parenting relationship with the Father remains strained;
e)She accepted that, whether she resides in Sydney, Canberra or Perth, she will still have to deal with the Father.
ix)Regarding the geographical distance between Canberra and Perth, the Mother confirmed that it was a journey of 4.5 hours by plane. Otherwise, she said that she had not turned her mind to the practical issue of “physical distance;”
x)The Mother did say, however, that she would pay 50% of the travel costs for the children to visit the Father in Canberra;
xi)The Mother said that she has stated from day 1 her plans for the living arrangements for the boys; she said that she had spoken to the Father in person about the Perth living arrangements;
xii)If she lived in Sydney, the Mother said that she would have the support of her sister. However, she has provided no evidence to the Court about the costs of living in Sydney; she said that she did not realise she should put such evidence forward. Unfortunately, her sister is not a witness. She said that her sister prepared an affidavit but she does not know if this was filed. Her sister has a child 2 weeks older than [X];
xiii)The Mother said that she will engage with the Father to get help for their son who was having issues at school. In this respect, there has been generally a positive interaction;
xiv)It was suggested to the Mother that only one substantive issue was raised in the Family Report, namely that the children have to convey messages between the adults;
xv)The Mother confirmed that she took the children to Perth for a wedding and a birthday party. She said that the Father was informed via some kind of electronic communication (which she could not readily identify). She said that the Father sent messages to her when she was in Perth, including “enjoy the wedding”;
xvi)The Mother said that the Father has wanted what is, in fact, irregular time with the children. Unfortunately, this has been haphazard and often with only a couple of days’ notice;
xvii)The Mother said that she formerly communicated with the Father, at the end of 2016, through her (then) lawyer at the Legal Aid office;
xviii)The Mother denied that the Father claimed that he was very interested in increasing his time with the children. As she often did during the trial, the Mother said that there was always “more to such requests” from the Father;
xix)In January 2017, the Mother sent an email to the Father informing him that she wanted to move to Sydney (because she had received a job offer) and that the children would be starting school in Sydney. She was advised by her lawyers not to move. Following this, the Mother returned to Canberra;
xx)If the Mother moved to Sydney, she would live temporarily with her sister. She said that she was offered a position at (employer omitted), which is only some 20 minutes or so from her sister’s residence (the Mother said that she had confirmation of her position in an email. A “call” was made for that email, which the Mother said she would seek to find in the course of the hearing);
xxi)The Mother said that she was looking for extra work in Canberra, Sydney or Perth because she wanted more than just casual or part-time employment;
xxii)The Mother said that she had not already moved to Sydney. She said that she was just visiting over Christmas -
a)She was proposing that the boys be living in Sydney for the start of the school term (in January 2019);
b)In an email to which she was referred, she was trying to inform Mr Vass of the crisis she feels that she is in and her attempts to get herself out of it;
c)At this time, it was suggested to her that there was a cash payment that was due from the Father who, it was said, did not know where the children were until he saw them at school in Canberra at the beginning of the school term. To this, the Mother said that the Father knew precisely where the children were because, among other things, he spoke to them via Skype. Moreover, as she noted, why would the Father attend school if he did not think or know that they would be there?
xxiii)In 2016 there were issues regarding [X] being bullied at school over a number of months. The Mother acknowledged and thanked the Father for his assistance in resolving the matter with the school;
xxiv)In June 2017 there was another instance where [X] was upset about a certain incident at school. The Mother informed the Father of this. This too was resolved positively for all involved;
xxv)In February and March this year, it was put to the Mother that the parents worked together to support [X]. In response, the Mother said that the Father only attended one meeting but, nonetheless, there has been greater involvement by the Father when he can get time off work;
xxvi)The Mother said that she had no objections to the children spending time with the Father over (nationality omitted) Easter as sought by him;
xxvii)The Mother said that the parties have been able to celebrate special occasions together to some degree;
xxviii)That said, the Mother said that she felt nervous and anxious about incidents occurring between the Mother and Father at the child’s birthday dinner. She has dialled 000 on a previous occasion;
xxix)There were contested accounts of a “go-carting incident”. The Mother said that she was slammed into a wall and that she was pushed so hard that the wall was ‘on top of her’. On the Father’s account, he said that it was a night of effortless fun;
xxx)In relation to comments in the Family Report of Dr A (Exhibit A):
a)The Mother said that she does not believe that the children’s lives will be disrupted if she were to relocate, or that the children’s time with the Father will be diminished (a somewhat surprising comment, one might reasonably think). Rather, she said that she thinks “the plan” will actually provide the Father with more time with the children;
b)The Mother acknowledged that the Father will not be able to attend the school for concerts or any sporting matches if she relocates (especially to Perth, but perhaps not so drastically if she relocates to Sydney);
c)The Mother also thinks that the children will be able to play sport in Sydney every second weekend – despite being in Canberra (again, I have to say a somewhat surprising view);
d)The Mother confirmed that the Father’s parents live in Suburb B in Sydney;
e)The Mother fairly acknowledged that Mr Vass is a good Father in some ways. She said that he jokes with the children, and he tries to give [X] more confidence by teaching him martial arts;
f) The Mother also confirmed that it is positive when the children engage with the Father.
xxxi)In December 2017, the Father sent the Mother an email where he asked for additional time with the boys during the period when he would not be working and asked for additional time with the boys. The Mother asked the Father to contact her through her lawyers. In the result, the Father did not end up having the extra time with the children that he sought but some arrangements were ultimately made whereby the Father did end up spending more time with the children than was provided for in the Orders;
xxxii)The Mother is seeking that the children spend every Christmas with her because (nationality omitted) Christmas is in January. This led the Mother to confirm that:
a) The Mother is not open to sharing Christmas;
b) She said that she has made proper concessions in the Father’s favour, including allowing the children to spend (nationality omitted) holidays with the Father.
xxxiii)The Mother also said that the Father wants to be the keeper of the religious crosses of the boys. She objects to this.
In response to questions from the ICL, the Mother said, summarised:
a)The Mother’s biggest issues with the Father are that he is unpredictable and inflexible;
b) The Mother wants, for herself and the children, stability and predictability in the Orders;
c)The Mother said that she thinks that the Father would not pick the kids up if she had work;
d)She said that [X] has been “dumped” on her at work before when they were in a relationship;
e) Since separation, the Mother said that on several occasions, the Father has cancelled his time with the children at the last minute when the Orders have said that he would have the children;
f)The Mother said that she does not think that the Father will comply with Orders, which, in her view, is what has happened regularly;
g)The Mother said that the Father believes strongly in very “traditional roles”. This has led, in her strong view, to her work being “sabotaged” by the Father, by which she meant, among other things, that her work was not respected, and that she invariably had to “pick up the slack” in the care of the children created by the Father when he was working;
h)The Mother said that the Father would not even look after the children at home when they were in a relationship so that she could go and play (sport) for an hour;
i)Quite truthfully and, in my view, very candidly, the Mother said that she felt resentful that the Father always put his work above the interests of the children;
j)The Mother said that she had control over small things, but that the Father was the “boss of the household” and only he got to make the big decisions;
k)The Mother said that she finds it difficult to communicate with the Father because of their troubled history but said that she is trying to be more “business-like” now by informing him rather than consulting;
l)Again, quite candidly, the Mother said that there were wonderful times in their relationship; and she ultimately maintains that the Father is basically a good parent (even though he bullies a bit);
m)In her view, the main difficulty in co-parenting is because of the different parenting styles of the parties;
n)The Mother confirmed that the children adore both parents and that they [impossibly] want to spend more time with both parents;
o)If she were to live in Perth, the Mother said that, in her view, the bigger blocks of time will help to facilitate the Father’s connection with the children. She proposed that the children spend time with their Father 3 times per year;
p)The Mother had checked on the frequency of direct flights from Perth to Canberra. She said that for unaccompanied minors, such as her children, it is necessary that there be a legal guardian at each end of any direct flight. She also said that the average price for a direct flight was $300 per child each way, plus a fee for each unaccompanied minor;
q)The Mother said that she has a job guarantee in Perth, although the details were somewhat sketchy. She said that she (and the children) could stay with her Mother for some time. Thereafter, rent, she said, was cheaper in Perth than elsewhere in Australia;
r)In response to questions as to whether she could afford to live in Sydney, the Mother said that there was more financial strain in Sydney, and that she would have to work extra hours to offset this. However, she also had the possibility of promotion in Sydney, which she does not have in Canberra working casually;
s)In Sydney, the Mother said that she will be able to “step up” in her work regime because there is early “before-school care”, her work will finish at 3:30pm, and her brother-in-law will be able to pick up the children;
t)From the Mother’s perspective, the issue with the Father being “supplementary carer” is his unreliability and unpredictability, highlighted by the late cancellations of his time with the children;
u)The Mother said that, at the moment, the children do not see enough of their Father, and this is when the arrangement is weekly. The Mother’s concern remains, as noted earlier, the frequency, predictability and certainty of the children’s time with the Father;
v)The Mother said that she is considering moving the children to a different school anyway;
w)If both parents lived in Sydney, the Mother said she would propose that the children spend every second weekend with their Father, and if he was consistent with this, she would then propose an increase in such time.
Evidence of the Father
The Father’s evidence – summarised – was as follows:
i)Contrary to the Mother’s evidence, the Father said that his family celebrates Christmas on 25th December notwithstanding his (nationality omitted) heritage;
ii)In response to the earlier “call”, the email was produced by the Mother confirming that she had been offered a (employment omitted) position in Perth as she asserted. The Father said that he did not remember receiving this email on the date specified on it. He contended that the gist of the email was that it does not state that the Mother has accepted the position. There is obviously a distinction between a position being offered (the Mother’s evidence) and that position being accepted (the Father’s position);
iii)Ultimately, the Father indicated that he “forgot” the email in question;
iv)The Father said that the Mother does not communicate with him or provide him with information. Fairly and candidly, he said that there is a chance he just forgets the information he is told by the Mother. Indeed, just like the Mother, the Father said that the [mis]communication is an issue. He confirmed that the parents communicate using a variety of platforms. In his view, telephone calls work best because they are unmonitored, and that telephone communication actually works better for the parties. He said that he finds email correspondence with the Mother difficult. He said that using the “Talking Parents” App may be better because all communication is through one channel;
v)On the issue of the Father not taking time off work to spend with the children, the Father said that he took time off the week before the hearing to care for one or both boys. He confirmed that he did not refuse to take the time off, instead saying that he could not do so;
vi)The Father confirmed that the week before the hearing was the first time that he has taken time off to spend time with children since the parties separated simply because it was the first opportunity to do so. The Father was taken to multiple examples of times when the Mother has asked for him to look after the boys. The Father flatly denied these examples and said that they were lies. Likewise, he refuted that he has not spent time with the children when he was scheduled to do so under the Orders;
vii)The Father said that the Mother was trying to portray him as a certain type of character (e.g. unreliable, inconsistent, disinterested, and the like). He said strongly that he has the capability/capacity to look after the children;
viii)The Father was taken to the email chain dated 19th April 2017 between the parents, which is set out in the Mother’s trial Affidavit, in which the Mother was required to take time off work when the Father did not agree to take the children as had been agreed between them. The Father said that he did not recall this event;
ix)The Father said that he does not know, as a general proposition, if the Mother is lying;
x)He was taken to an incident, which he said took place on 1st May 2015. In par.120 of his Affidavit, filed 14th October 2016, he set out a detailed response to the Mother’s account of the same incident at par.21 of her Affidavit, filed 16th May 2016. Summarised, the incident, according to the Father, was that the parents had agreed that the Mother required assistance to get [X] ready for school because the Father (a) was under “intense scrutiny at work”, and (b) was working long hours;
xi)The Father contended that the Mother was not looking after herself at this time, including sleeping on the couch. He said that the Mother’s “malaise” at the time led (among other things) to her waking up late, rushing [Y] out of bed, and not preparing anything for [X] in the mornings. The Mother stated in her Affidavit that she did not make lunch for the children that day as she was rushing to get to work;
xii)In relation to this incident the Father commented (par.120(g)): “This incident occurred as Ms Walthorpe had been taking me for granted.” He also deposed that “there was not enough groceries in the fridge to make lunch for [X] and he did not have clean clothes”;
xiii)In the same place, the Father denied the Mother’s contention that, when he came to the (employer omitted) with the children, and (she said) demanded that she look after the children and that he “could not handle this”, she was (employment omitted) in fact commenced. In cross examination, he confirmed that the Mother was (employment omitted). To state what I hope is obvious: the Father’s actions clearly and inappropriately pressured the Mother. And they improperly impacted upon other people who were engaged in vital work. In my view, the Father’s actions were grossly inappropriate;
xiv)Fairly, the Father conceded that this was “a petty incident and was not the best outcome.” He sought to justify it in his Affidavit by stating: “I did not know what else to do to make Ms Walthorpe understand the pressure she was putting me under with my work;”
xv)The Father contended that he was trying to teach the Mother a lesson, which (he said) worked because the Mother’s attitude and actions “improved”. He said that he apologised and they went out to dinner afterwards to make up;
xvi)He said that they had both “grown” since that time. For my part, I can only hope so. Even on the Father’s own evidence, it painted a rather graphic picture of a person who was ready to denigrate, and who sought to control the Mother;
xvii)The Father said that he does not put the Mother’s work below his. His actions, certainly in 2016, clearly showed the contrary;
xviii)In relation to his proposed “time with” arrangements for the boys, he said that he did not have any problem with spending time with them each alternate weekend;
xix)He confirmed that his income is approximately 3 times that of the Mother. He said he also accepted that the Mother’s ability to work was very much dependent upon the children’s needs. He also said that he accepted that when the Mother is working she cannot also be looking after the children.
Under the Orders the Father is seeking, he confirmed that the weekend time is disproportionately in his favour. He said that this [simply] followed “tradition.” If granted, the Father’s Orders would significantly limit the Mother having “fun” time with the boys; he accepted this.
The Father denied that the Mother is close to her sister, who lives in Sydney. Rather, he said, they have bonded over the relationship break-up. Previously, he said the relationship of the sisters was estranged.
The Father said that he is open to being flexible with the Orders, because (he said) he is “an easy-going guy.” Respectfully, historically at least, on his own evidence, his “easy-going” nature was very much dependent on him getting what he wants and his interests being put first.
The Father denied that the intention of his proposed Orders is to control the Mother.
Regarding holiday time, the Father proposed that the Mother have the first half of school holidays, which would give the Father the option to have the second half of the school holidays. He said that this would align with his work commitments. He said that he would still be open to discuss alternative holiday arrangements with the Mother. This was, in part, dictated by the fact that he is a “contractor”; he does not get paid if he does not work. Moreover, the Father said that in early 2017 he started a new job and he was conscious about taking too much time off.
It was noted to the Father that if he did not exercise his “school holiday” time with the boys, it would mean that the Mother would not be able to work for the whole holidays. In those circumstances, he did not agree with the characterisation of the Mother thereby providing a “service” to the Father that enables him to work. Perhaps better expressed, it was a clear example where the Mother would be required to “sacrifice” her work and income to mind the children and thereby to enable the Father to work. Nor did the Father acknowledge that his attitude and “demand” (express or implied) that the Mother look after the children while he worked, could be seen by the Mother as another example of him controlling her.
In my view, he seemed to consider the reality of the Mother looking after the children of the relationship as simply a circumstance of “the cards falling where they will.” Respectfully, at many points, the Father’s evidence, showed a remarkable lack of insight into many things including (a) the needs of the children, (b) his parental responsibility to them, and (c) the Mother’s need to earn income. All things must come second to his own “needs.” This included the expectation that the Mother would “adjust” her time with the children always to accommodate the Father’s needs/wishes.
The Father accepted that, in relation to arrangements for Christmas in 2017, his expectation was that the Mother would make no arrangements in case he wanted to spend time with the children in her portion of the holiday time. Again, the Father’s presumption and expectation about the Mother invariably accommodating his wishes was, in my view, astonishing.
He said that his expectation [now] is that both parents will help each other out. I confess that in the light of the Father’s evidence (in Affidavits and orally), I am not convinced that such an attitude is a well-settled one. I remain highly sceptical of the supposed “conversion” of the Father to such a view. I will happily await evidence to be convinced that I am wrong in this regard.
There was an extended discussion regarding the Father seeking an Order that the Mother be restrained from “yelling” at the children or making ultimatums [sic: “ultimata’]. The Father confirmed that such an Order was too broad. He said he sought it because he was fearful that he would not be present in the children’s home with the Mother to bring a level of “normality.” He admitted that such an Order would actually be ludicrous, and he confirmed again that he was not trying to control the Mother by seeking such an Order.
The Father’s intention, he said, was to assist the Mother to understand her emotions. More broadly, he said that his other intention (or hope) is that the parties are able to communicate effectively in relation to parenting matters without restriction.
It was pointed out to the Father that he sends an SMS to the Mother immediately after she does not “pick up” the telephone; it was suggested that this shows – again – that the Father expects constant communication with and availability of the Mother. In my view, there are few other interpretations of the Father’s conduct.
Somewhat hesitantly, the Father acknowledged that this conduct could be seen by the Mother as a form of control.
The Father said that he was content to withdraw the quite restrictive Order he sought regarding the children’s passports.
The Father confirmed that he distrusted the Mother.
On 19th April 2017, the Father sent a message to the Mother saying that he was working, and therefore he was unable to have the children. The Father was shown these messages. He acknowledged that the Mother was working on this day. The Father said that there was understandable upset over this, but that it was “a long time ago.” He said that he preferred things to be “ad hoc”; he also confirmed that he expected the Mother to “pick up the pieces” if he could not have the children. For my part, and not for the first time, the Father’s consistent attitude towards parenting of his children is to place all demands on the Mother and for his needs or wishes always to be accommodated – more often than not at the Mother’s expense. Such an attitude was, and is, utterly selfish and irresponsible.
Various matters were canvassed with the Father about one occasion when the Mother had the children in Sydney and there was an issue in relation to whether the Father would pick them up in Sydney or Canberra. The Father would not agree to changeover being in Sydney despite the fact that that was where the children were at the time.
The Father said that he speaks to the children at least once per day, often several times a day. He said that he is an “integral” part of their lives. Sometimes he tries to call them on Skype around 8pm but sometimes it has been around 9pm. Curiously, he said that he was unaware that the children go to bed around 7.30 – 8pm. For someone who is an “integral” part of the children’s lives, it was quite remarkable how many basic things about their lives about which he had no knowledge, or of which he was generally oblivious, mainly because he was so focussed on his own life and work.
The Father accepted that he is not worried about the Mother’s parenting skills.
He also said that he wanted the Mother to be forced to take his telephone calls. He does not think that calling her several times each day is unreasonable. He said that it was the Mother’s nature to feel that she is being “checked up on” by the Father. In my view, given the history of each party, and the evidence at trial, this would be a perfectly natural thing for the Mother to think about the Father’s actions.
The Mother is plainly in the position where she has to balance matters between the children and the finances available to her. The Father does not have this responsibility.
If the Mother relocated, the Father was asked what Orders would best suit in those circumstances. He simply said that it would be very difficult for him to consider what would be best if he remained living in Canberra. He confirmed that the family’s move to Canberra was at his instigation.
The Father was asked what impact it would have on the children if the Mother was forced to remain in Canberra, and thereby remain unhappy. He said this was related to the basic reasons why the Mother is unhappy. He said that he hoped she would seek more of a support network and be able to rely on “us” (i.e. the Father’s family). He said that in his view, the Mother already has support network in Canberra, regardless of the support of the maternal Grandmother. He agreed that the happiness of the children was paramount. He said that if the Mother was to move interstate, whether it was Sydney or Perth, there would be less interaction between the Father and the children, which, in his view, would affect their happiness and development.
He said that the Mother is unhappy now, but this does not seem to affect the boys because they are happy. The Father also said that he would ensure that he was more available to care for the boys if the Mother stayed in Canberra and sought to increase her work hours. While I accept the Father’s good intentions, his history of very significant lack of co-operation with, and giving due or proper attention to, the Mother’s concerns and work responsibilities does not augur well. Whatever of my doubts and pessimistic view based on the Father’s evidence, again, I hope I am wrong in this regard.
The Father accepted that, if there was a choice between Sydney or Perth for the Mother’s relocation, he would prefer that it was Sydney. He confirmed that he had family in Sydney, but said there was no chance of him moving to Sydney.
In answer to questions from the ICL, the Father acknowledged that his attitude towards the Mother (e.g. her work, the Mother being available to pick up the pieces if the Father was not available to look after the children) was “completely sexist.” Likewise, he acknowledged that his actions could be seen as him exerting control over the Mother.
He said however that, in his view, the Mother is now trying to control him and his time with the children. The Father also accepted that he had behaved poorly at times towards the Mother.
The Father said that he now accepts that the work of each parent is equally valuable and important, and that his work and commitments are no more important than that of the Mother. He said that he has taken advice on these things. He said that, in his view, “flexibility” is the same thing as “ad hoc”. The Father said that he would change his ways by being more flexible and accommodating of the Mother.
The Father said that he can work mostly from home now, which enables him to better manage his time. He could not do this from Sydney.
The Father said that seeing the children every fortnight would be difficult for them and for him. He said that the children currently have stability with both parents in Canberra.
The Father said that he accepted that the children are safe and happy in both households.
Evidence of the Family Consultant – The Report
I note the following matters from the Report of Dr A, dated 13th March 2018, which became Exhibit A.
The first section of the Report outlined (at pars.1 – 6) the current parenting arrangements and some other background of relevance, thus:
1) The children are [X] born 2008 currently nine years of age and [Y] born 2011 currently six years of age. The children live with their mother in Canberra. Their maternal grandmother has recently commenced living with them and plans to live with them until approximately September of 2018.
2) The children spend time with their father and their father’s partner (Ms B) at their Canberra home during school terms in accordance with the Court Order; week 1 from after school Thursday to Saturday afternoon and week 2 after school Friday to Saturday afternoon.
3) Despite a Court Order stipulating that the children spend the final week of school holidays with their father, this has not occurred for the children. The father reported that he has been unable to spend this time with his children due to his work commitments.
4) A current DVO stipulates that Mr Vass is not permitted to be in proximity to Ms Walthorpe or the children, unless time with the children is Ordered by the Court or agreed to in advance by Ms Walthorpe.
5) Ms Walthorpe works part-time as a (occupation omitted). She has arranged her work shifts around the children’s needs and she works on the days they children spend time with their father.
6) Mr Vass works as an (occupation omitted), full time hours. He does not arrange his work shifts around the children’s needs, for example, he did not spend school holiday time with the children as arranged for the most recent school holidays because his work commitments did not allow it.
Next, after noting (par.30) the Mother’s report to Dr A that the Father was “periodically physically violent towards her, and pervasively verbally and emotionally abusive and controlling of her by restricting her access to transport and finances”, the Family Consultant noted the following matters (pars.35 – 39)
35) Ms Walthorpe alleged that Mr Vass encourages [X] to relay messages as a means of communicating with her. Ms Walthorpe reported that she has talked to [X] and [Y] about this and told them not to put themselves in the middle of their parents as it is not fair to them.
36) Ms Walthorpe alleged that Mr Vass is not reliable and responsible in keeping commitments to care for the children. She alleged that he has a pattern of cancelling and attempting to try to change arrangements and will blame her for disruptions to the children’s care, for example, he allegedly told the children that she said they cannot go to (country omitted) with him when she did not. According to Ms Walthorpe, Mr Vass cancelled arrangements to spend time with the children for the 2017/2018 New Year period and he spent time with the children on only two occasions over the most recent Christmas school holidays, despite her attempt to follow the Court Orders for the children’s time with their father. Ms Walthorpe reported that this causes the children distress and impacts significantly on her financially as she has had to cancel shifts at work due to Mr Vass being unavailable to care for the children at his arranged times.
37) Ms Walthorpe reported that initially, [Y] became distressed when he had to leave her to spend time with his father; he would cry and cling to her. Now, Ms Walthorpe reported that both children are able to separate from her to spend time with their father without significant distress.
38) Ms Walthorpe reported that the children attended the Marymead Child and Family Course (Kids and Youth are Kool Post Separation – KAYAKS). She reported that she has concerns about [X]’s emotional well-being; he has “shut down” at school and the teacher has reported concerns, he was bullied at school last year and he has made comments about not wishing to wear shorts because he is too fat (when he appears to be a normal weight for his age). Ms Walthorpe reported that she completed a parenting course with Relationships Australia in 2017 “Putting Children First”. She plans to follow up with arranging further counselling for [X].
39) Ms Walthorpe reported that she has significantly decreased communication with Mr Vass. She reported that she has restricted communication because Mr Vass intimidated and harassed her if she did not comply with his requests to spend time with the children; she reported “I would get hundreds of calls if it was not convenient” (for the children to spend time with their father). In Ms Walthorpe’s opinion, she and Mr Vass will never be able to repair their relationship to the point that they will be able to communicate freely or parent co-operatively together.
At pars.41 – 42, Dr A recorded:
41) Ms Walthorpe denied that she has prevented the children from communicating with their father when in her care. Ms Walthorpe reported that the i-pad belongs to [X] and he takes responsibility for keeping it charged and having it available to communicate with his father; she reported that she does not take it away from him. Ms Walthorpe reported that [X] has become upset when his has father changed arrangements and has not spent time with the children as arranged; at these times [X] has turned the i-pad off to block communication with his father. Ms Walthorpe reported that [X] changes the i-pad password as he wishes to and she does not always know the password.
42) Ms Walthorpe spoke of her desire to relocate away from Canberra with the children. She reported “I want to go where there’s family support. I have no family support. I was having to cancel work because Mr Vass was inconsistent with his availability to care for the children. I want to go to Perth, my brother is there, my Mum, my uni friends, I’m welcome to go back to my previous job. (Or, if not Perth) Sydney, my sister is there, her daughter is two weeks older than [X]. She’s married to a really good guy. And Mr Vass’ parents live within fifteen minutes. If I have to stay in Canberra I’ll be devastated.”
In discussions with the Father, Dr A recorded the following matters at pars.45 – 50:
45) Mr Vass lives in a stable home in the Canberra suited to his children’s needs. His household consists of himself and his partner (Ms B) and the children, when they spend time with him.
46) Mr Vass alleged that Ms Walthorpe was periodically violent towards him during their relationship. He alleged that she would become angry at him and attack him and that he contacted the police for help a number of times, however each time the police did not help him. On the most serious alleged attack, Mr Vass alleged that Ms Walthorpe physically injured him to the point that he was bleeding.
47) Mr Vass denied that that he was abusive in any form in the relationship. He reported that he managed conflict in a way that is typical in his (nationality omitted) culture, becoming loud and sometimes yelling, but he was not verbally abusive, physically abusive, or controlling of Ms Walthorpe’s behaviour or the family finances. Mr Vass reported that the DVO orders that stipulate that he is not to be in proximity to Ms Walthorpe or the children unless it is Court Ordered or agreed by Ms Walthorpe is unnecessary and the claims that he was abusive are “ridiculous”.
48) Mr Vass denied that he has inappropriately disciplined the children. He reported that he talks with the children in relation to their behaviour and the children respond well to this form of correcting their behaviour and the ‘points for chores’ system he has instigated.
49) Mr Vass reported concerns in relation to Ms Walthorpe’s discipline of the children in the past, reporting that she has verbally bullied the children. He also reported concerns that Ms Walthorpe’s mother’s partner speaks in derogatory ways about him to the children, calling him names such as “drop-kick”. Overall, Mr Vass reported that Ms Walthorpe is a good mother and she loves the children; he does not have any serious concerns about her parenting and he believes the children are developing well.
50) Mr Vass adamantly denied that the schedule for spending time as suggested by the Family Consultant Memorandum to the Court would be workable for his family. He was concerned that spending time with the children on a fortnightly basis would lead to him missing too much time and they would be growing up without him. He reported “I don’t want to lose my kids. I want to be involved in their lives daily”. He described the proposal of the children moving away from Canberra to Perth or Sydney as even more “devastating” and a “ridiculous” idea. Mr Vass reported his concern that he would not be involved in the children’s lives and would not be able to participate in future activities he has planned, for example, “getting [X] into (sports)”.
At pars.52 – 56, Dr A noted the following:
52) Mr Vass denied that he has been irregular or unreliable in spending time with the children. He reported that he believes Ms Walthorpe is using this accusation as a way to increase the probability that she will be permitted to relocate away from Canberra with the children. Mr Vass reported “I think Ms Walthorpe will co-parent as soon as this thing drops. She’s not co-parenting because she believes it will help the Court approve the move to Perth”.
53) Mr Vass was not in agreement with the possibility of spending more time with the children during the school week. He reported that the school is one hour away from his home and he would not be able to manage school pick-up and drop-off for the children alongside his work commitments.
54) Mr Vass spoke of some valued cultural activities that he has been unable to participate in with the children for some time, including Christmas, Easter and having [Y] Christened. He described the importance of building family relationships with the children “we’re a clichéd (nationality omitted) family, we’re close, big gatherings and parties for family events. My family in Sydney ache to see the kids”.
55) Towards the end of the interview, Mr Vass proposed an alternate arrangement for the children whereby he would stop work and become the children’s primary caregiver and they could live with him. When the Consultant further explored this option and whether Mr Vass would be in a position to care for the children if they lived with him, he clarified that he is not seeking that the Court consider this option, rather, he would like to discuss more options and possibilities in general with Ms Walthorpe.
56) Mr Vass repeatedly emphasised his view that he would like the children’s arrangements to be more “ad-hoc” and negotiations with Ms Walthorpe to be more responsive. He discussed his thoughts on how the parental relationship can evolve in the future, saying “if we talk we can help each other out. She could reach out to me for help. She doesn’t. Last year [X] had a bullying issue at school, the teacher contacted Ms Walthorpe. She was at work. I looked after him. Last year [Y] was sick, the school called, Ms Walthorpe was working, she asked me to pick up the boys so I did that. In the future we’ll rely on each other more. We won’t need further Orders. The boys will naturally be drawn to me more”.
Reflecting on the parents in the light of the observations and discussions with them, Dr A made the following preliminary comments or observations, firstly regarding the Mother, at pars.58 – 61:
58) Ms Walthorpe and Mr Vass appear to have significantly differing perceptions of their relationship and the role they have played in the development of their relationship problems.
59) Ms Walthorpe appears to continue to be impacted by the previous conflict in the relationship. It appears to continue to distress her, for example, she became teary when discussing the previous conflict in the relationship.
60) Ms Walthorpe appears to be open to discussing her role in the relationship conflict; she openly discussed her behaviour, even when it reflected poorly on herself (for example, speaking of times when she was aggressive and verbally abusive towards Mr Vass).
61) Ms Walthorpe appears to hold the belief that she will not be able to repair her relationship with Mr Vass to improve their communication or co-parenting in the future. It appears that Ms Walthorpe wishes to create as much distance as possible in her relationship with Mr Vass. It appears that she does not perceive him as a person who can be trusted to help or support her in parenting the children; rather, she perceives him as someone who will continue to try to undermine her and control her.
In relation to the Father, and then briefly in relation to the parents generally, Dr A opined, at pars.62 – 65:
62) Mr Vass appears to not be emotionally impacted by the previous conflict in his relationship with Ms Walthorpe. He appears to be happy and contented with his life post-separation, reporting his life to be “perfect”.
63) Mr Vass appears not to take responsibility for his role in the previous conflict in his relationship with Ms Walthorpe; he blames Ms Walthorpe for the relationship problems.
64) Mr Vass appears to believe that the current poor relationship between himself and Ms Walthorpe is a ploy on Ms Walthorpe’s behalf to increase the chance of the Court allowing her to relocate away from Canberra with the children. He appears to believe that the parental relationship will improve dramatically if Ms Walthorpe is made aware that she will not be able to relocate.
Summary of adult relationships
65) In respect to the differing opinions of Mr Vass and Ms Walthorpe concerning the future of the parental relationship, it is the opinion of the Consultant that Mr Vass appears to be under-estimating the degree to which Ms Walthorpe has felt hurt and disadvantaged by the history of the relationship. It is the Consultant’s opinion that the parents are unlikely to be able to improve their parenting relationship in the short to medium term future.
Given the ages of the children, it is sufficient to note that (at par.70) Dr A said that [X] said he is “always lonely and he does not have many friends.” He was also recorded (at par.74) as stating that when he was at his Father’s house he “did not see him much”, having also noted that it was good to spend time with his Father. [X] also said (at par.76) that his Father’s partner, Ms B, was “nice”, and that she did not “shout or argue much with our Dad.”
After noting (at par.83) the parents’ wariness towards each other during the time of the interviews with the Family Consultant, there was the following “Evaluation” and Dr A’s “Recommendations”, both of which I set out in full (pars.101 – 128):
101) [X] and [Y] appear to enjoy positive relationships with both of their parents.
102) Both parents appear to enjoy spending time with their children. In turn, it appears that this helps the children grow in confidence, self-esteem and enjoyment in life.
103) The children appear to miss their father and they would like to spend more time with him. However, they do not wish to spend less time with their mother. They both wish their parents had not separated, so that they would not have to be separated from either parent.
104) [X], in particular, appears to be trying to understand and adjust to the parental separation and the resulting family changes. He is trying to negotiate a closer connection with his father (for example, by trying to arrange to travel to Melbourne with him). It appears very important to [X] to connect more closely with his father; [X] does not like the idea that his father has life experiences that he cannot share in, he wants to be included. This appears to create tension for [X] as it triggers uncomfortable feelings in his mother (who misinterprets, due to [X]’s unsophisticated way of expressing his desires, and who thinks Mr Vass is passing messages to her through [X]). Likewise, through his pretend telephone conversation with his mother, [X] indicated that he is adjusting to his mother’s work schedule and he does not like her leaving him to go to work. His mother is sensitive to this and resolves the pretend conversation in a way that reassures [X] that she prefers his company and will choose to spend time with him whenever possible. Adjusting to these changes, combined with being bullied in school and apparently lacking a connected friendship group makes [X] vulnerable to suffering from symptoms of anxiety or depression. Based on the interview, Ms Walthorpe appears more sensitive to this than Mr Vass; she plans to follow up by organising suitable counselling for [X].
105) It appears that there may be some cultural differences in parenting which may compound [X]’s difficulties adjusting to the parental separation. In [X]’s relationship with his father, it appears accepted that [X] will “take charge” of situations and help his father, which sometimes includes taking charge of [Y]. [X] appears to take this responsibility seriously, for example, taking the lead to recover [Y]’s drink bottle and apologising to the Consultant for not turning the room light back on. Mr Vass appears to consider this to be appropriate behaviour for his eldest son. In contrast, Ms Walthorpe actively intervenes and stops [X] from taking charge of his brother; it appears Ms Walthorpe believes this responsibility is not appropriate for [X] as it is a parental responsibility. These parenting differences are likely to be causing [X] some confusion and stress.
106) It appears that [X] and [Y] have both been negatively affected by their parents’ former conflict. This is based on [Y]’s memories of his mother smashing a plate and [X]’s comments about his father’s new partner not arguing with his father. It is likely that [X] and [Y] have distressing memories of their parents’ conflict. This distress is likely to dissipate over time, if the parents are able to form a conflict-free post-separation parenting relationship.
107) It appears that both parents are closely connected to their children and closely involved in their everyday lives. This is important for the children and they gain a great deal from having the close involvement and love of both of their parents.
108) It appears that the mother has been (and continues to be) the primary caregiver. The father appears to love his children and he highly values spending regular time with them. However, he appears to believe that there is no need to significantly sacrifice his career or reduce his work hours to care for the children. It appears that the father has the expectation that the mother will continue to take primary responsibility of the routine matters related to the children’s care, such as school drop-off and pick-up and taking time off from work for their school holiday care. This puts the mother in a financially vulnerable position. Although she has a stable profession, she is less likely to be able to advance her career, progress financially or contribute to her superannuation fund while the division of the children’s care reduces her ability to save money.
109) There are concerns that the state of affairs discussed above may be a perpetuation of a pattern of violence as alleged by the mother in the marital relationship. Whilst there are no concerns that physical violence is a continuing pattern, there are concerns that the father maintains a privileged position in the relationship and continues to exert control by making demands that suit his needs without making reciprocal sacrifices to support to the children. If this is the case, it is likely to affect the mother’s well-being, contributing to a sense of powerlessness and compounding her sense of isolation. This is likely to indirectly affect the children; their parents are their primary role models for gender relationships. The children are likely to benefit from seeing their mother happy, in control of her life circumstances and surrounded by people she feels respected by, safe and connected with. In contrast, if the children come to believe through their parental role-modelling that men have the right to take a privileged position over women, this could have the negative effect of perpetuating a pattern of family violence into their future relationships.
110) It appears that Canberra is better suited to the father’s needs than the mother’s needs. The father has re-partnered; his partner has a stable Canberra based job. He is happy in his career and looking forward to further progression in the coming years. In contrast, the mother describes feeling lonely, isolated and without support in Canberra; she has not re-partnered and she misses her family. When relocation options were discussed with the father, it appeared that he would not consider relocating away from Canberra if his children were to relocate. In terms of the children’s best interests, it is complex to assess whether they are best served by remaining in Canberra or relocating with their mother. On the one hand, remaining in Canberra gives the children the best chance of maintaining a close and positive relationship with their father, which is very important to their well-being. On the other hand, relocating away from Canberra gives the mother the best chance of resolving her unhappiness and rebuilding her life in a positive direction. In turn, this would have a positive flow-on effect for the mother-children relationship and this would benefit the children.
111) If the children were to relocate away from Canberra, it is likely that they would adjust well to a new environment. [X] has been (and continues to be) unhappy at his current school. It appears that he would not suffer greatly if his peer and teacher connections were disrupted by a move to a new school. [Y] is of an age and temperament that would facilitate his adjustment to a new environment. The children have not yet become greatly attached to Canberra community activities, for example, his father would like to enrol [X] in (sports), but this has not yet occurred. Therefore, relocation would not greatly disrupt the children’s connections.
112) If the children were to relocate away from Canberra, there are benefits to relocating to Sydney rather than Perth. It is more likely that they could maintain a strong positive relationship with their father from Sydney than from Perth. The father’s parents live reasonably close to where the mother wishes to relocate to in Sydney. This may facilitate a stronger bond between the children and their paternal extended family. It also may provide for the opportunity for the children to spend time with their father at their paternal grandparents’ home. If the children relocated to Sydney, it is expected that regular time with their father, such as one weekend per fortnight plus school holiday time, would help them maintain their positive and strong relationship with their father. In contrast, relocation to Perth would make it unpractical for the children to spend regular time with their father during the school term due to the distance from Canberra. It is likely to be devastating to the children, to be deprived of regular weekend time with their father. The cost of moving between Perth and Canberra is considerable and likely to further limit the number of times per year that the children could spend time with their father.
113) The father’s expectations in relation to the children’s communication with him while they are in their mother’s care are not likely to be able to be realistically met. It is in the best interests of the mother-child relationships that there are some boundaries to communication; it is not realistic that the family would be always available to communicate with the father. In particular, it is not realistic that the mother would necessarily wish to make her personal devices available to the father’s communications. While it is in the children’s best interests to have relaxed and open communication with both parents while in the other parents’ household, the children’s exclusive access to electronic devices in the mother’s household potentially puts the children at risk of accessing inappropriate content on the internet and communicating with people who are unknown to them and potentially dangerous to them.
114) In general, it is in children’s best interests to spend a mix of weekday and weekend time with both parents. This enables children to experience both structured and unstructured time with each parent. In the case of the Walthorpe-Vass family, the father is reluctant to spend weekday time with the children due to the demands of school drop-off and pick-up and this current arrangement suits the mother’s work schedule for the present. Neither parent appears to have thought deeply about how arrangements may need to change as the children mature. Due to the parents’ lack of thinking to the future, there is the risk that Court Orders will be made that take the current circumstances into account but which become less workable in the future. It is possible, for example, that the mother’s work schedule will change, or that the children will become more sophisticated in expressing their views about how they wish to spend their time between their parents. It is likely to benefit all family members if there is a plan for how adjustments can be made for the children’s care in the future, for example, through a mediation process.
115) The father appears unwilling to adapt his work schedule to spend holiday time with the children and he consistently appears to desire more flexibility in the children’s schedule to facilitate short-notice changes to parental care. This does not facilitate the children’s routines, which are important to their healthy development; children develop best when they have the security of knowing their daily and weekly routines will be predictable and stable. Likewise, it is important to the children to know in advance when they will spend time with their father so that they can feel confident that he will spend time with them as arranged. It can be disappointing, distressing and anxiety provoking for children to have their arrangements changed.
RECOMMENDATIONS
116) That the pros and cons of the children relocating away from Canberra are considered in making the final decision. If the children relocate away from Canberra, it is recommended that they relocate to Sydney (rather than Perth), where they are closer to their father’s residence and closer to their paternal extended family which will facilitate them to continue their positive relationship with their father.
117) If the children relocate away from Canberra, it is recommend that they spend time with their father every second weekend, from Friday evening to Sunday afternoon. If the weekend includes a public holiday, it is recommended the children’s time with their father extend to include the public holiday.
118) If the children relocate away from Canberra, it is recommended that the father re-organises his work schedule to make himself available to spend one week each school holidays with the children.
119) If the children remain in Canberra, it is recommended that the children’s pattern of time with their mother and father remains the same in week 1 (after school Thursday to Saturday afternoon) and increases in week 2 to be the same as week 1 (after school Thursday to Saturday afternoon). That this pattern be the same whether it is school term time or school holiday time, apart from the changes recommended in the following point.
120) If the children remain in Canberra, it is recommended that the children spend weekends that include a Monday public holiday alternating between the care of each parent. For example, if Easter is the first weekend that includes a Monday public holiday, that the children spend time with their father from the normal start time (Thursday afternoon) until Monday afternoon. If 11th June is the next weekend that includes a Monday public holiday, that the children do not spend time with their father that weekend (unless agreed between the parents), rather, the children spend the entire weekend with their mother.
121) That the father does not change his scheduled time with the children. If the father is unable to care for the children during his scheduled time, that he offers the mother the opportunity to care for the children. If the mother does not accept the offer to care for the children, that the father be responsible for arranging alternate care for the children, for example, arranging for the children to be cared for by their paternal grandparents or arranging after school care for the children.
122) That holidays of special significance such as Easter and Christmas be shared (from one year to another) to enable the children to spend special holidays with both parents.
123) That the father have the opportunity to organise for [Y] to be Christened.
124) That the parents take some time to consider arrangements that will be in the children’s interests for the longer term future and attempt mediation with the view of considering adjustments in arrangements that will support the children’s development in the future.
125) That the parents change their primary method of communication to ‘Talkingparents.com’.
126) That the children attend therapeutic counselling to help with adjustment issues and their parents attend to support the child counselling. [X], in particular, is likely to benefit from therapeutic counselling.
127) That the parents consider the ramifications of a child having unrestricted access to the internet on a device that is not closely monitored by a parent. That the mother educates herself on how to safely protect the children from internet-based threats. That the parents each upload a statutory declaration onto ‘Talkingparents.com’ outlining the actions they have taken to better protect the children from internet based threats.
128) That the parents complete a parenting course for separated parents, such as the Marymead Child and Family Centre ARCK (Assisting Responsible Care for Kids) course.
Two other preliminary comments are also important to record here. First, the Full Court observed in Wiley & Wiley (a “relocation case”):[6]
... it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
[6] Wiley & Wiley [2008] FamCAFC 153 at [70].
Secondly, in U v U, Kirby J emphasised the importance to consider the long-term interests of the child rather than just focusing on their short term interests.[7]
[7] U v U (2002) 211 CLR 238 at p.283 [164]. His Honour said: “It is also highly desirable that courts, such as this Court and the Family Court of Australia, should consider such [relocation] cases in accordance with principles that are consistent, conformable to like legislation and attentive to the paramount consideration of the best interests of the child, viewed in the long term and not just the short term.”
I recall too Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[8]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[8] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[9]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[9] M v S (2008) 37 Fam LR 32.
All of the comments I have just referred to apply to the facts, circumstances, principles and discretion in the current proceedings.
It is as well also to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have proper regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully, I adopt her Honour’s comments. Brown J said:[10]
[3] The provisions in 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).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] 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.
[6] 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 interests (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))
[10] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[11]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[11] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Finally, I consider – briefly – such matters not otherwise addressed in these reasons that might be said to arise out of “relocation cases.”
In F v F, I set out a summary of relevant principle drawn from High Court and Full Court authorities in relation to relocation.[12] That summary is set out below, but with an edited selection of internal citations quoted; thus:[13]
a)In the absence of legislative direction, no single factor is dispositive of decisions governing residence of a child in a context of the proposed relocation of the parent with whom the child resides. (AMS v AIF, Kirby J, [143]; cf. Powell v Ptolemy, [48]).
b)The over-arching issue is to ensure that any parenting order is in the best interests of the child. (AMS v AIF, Kirby J, [144]; U v U, Gummow & Callinan JJ, [80],[14] Hayne J, [171]; Bolitho v Cohen, [71]; Powell v Ptolemy, [40]). This is also to say that if there is a conflict between the welfare or best interests of the child, on the one hand, and the legitimate interests and desires of the parents, on the other, priority must be given to the best interests of the child. (AMS v AIF, Kirby J, [144]; Hayne J, [217-219]; cf. Goode v Goode, [72]).
c)Freedom of movement of parents is a significant priority. That freedom is linked with the object of family law legislation to facilitate parties to a broken relationship to start a new life for themselves, including the possibility of forming a new relationship “free from unnecessary interference from a former spouse or partner or from a court.” (AMS v AIF, Kirby J, [145]. On “freedom of movement” generally, see AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [40-45]; Gaudron J, [96]; U v U, Gummow & Callinan JJ, [89]; cf. Powell v Ptolemy, [36]. Inhibition of movement may impinge upon the happiness of the custodial parent, which may in turn be transmitted to the child. (AMS v AIF, Kirby J, [145]).[15] Freedom of movement, however, takes second place to the paramount interests of the child.
d)There is no presumption in favour of a custodial parent to reside wherever he or she wishes. (AMS v AIF, Kirby J, [146]).
e)The applicant who seeks to relocate need not establish “compelling reasons” for such a move. (AMS v AIF, Gleeson CJ, McHugh & Gummow JJ, [47]; Gaudron J, [92]; Kirby J, [191] & [195]; Hayne J, [209]; U v U, Gummow & Callinan JJ, [82]). Nor does either party bear an onus to establish whether relocation is, or is not, in a child’s best interests.
f)Transport and modern means of telecommunication may be relevant factors in making proper arrangements (“new and different facilities of access and contact … with the other parent”) as between a child and his or her non-resident parent, especially in relation to relocation within Australia. AMS v AIF, Kirby J, [147], [148 & 192]; Paskandy v Paskandy, [57]; cf. M v S and “virtual visitation” [93].
g)In determining a relocation case that involves changed parenting arrangements, a court must evaluate each of the proposals advanced by the parties, without necessarily being bound by them. (U v U, Gummow & Callinan JJ, [70 & 89]; Hayne J, [171] & [172]; Bolitho v Cohen, [83-85]). Put another way, without embarking upon “some roving inquiry”, and subject to the evidence led – and affording procedural fairness to all – a court will not necessarily be constrained solely by the proposals of the parties in determining what is in the best interests of the child. (U v U, Hayne J, [172]; Bolitho v Cohen, [84]; Powell v Ptolemy, [40]).
[12] F v F (2008) 38 Fam LR 52 at pp.56-58 [7]. A more abbreviated summary is provided by Ryan J in Sheldon & Weir (No.3) [2010] FamCA 1138at [244] & [245].
[13] It will be seen that, in the light of Full Court authority which confirmed that the earlier decision of A and A (2000) FLC ¶93-035 no longer reflects the principles to be applied in relocation cases and, therefore, should not now be followed, all references to that case have been omitted. See Hepburn & Noble (2010) FLC ¶93-348 at [100], and Cales & Cales (2010) 44 Fam LR 376 at [139].
[14] It should be noted that in U v U, Gleeson CJ agreed with the judgment of Gummow & Callinan JJ, as well as with the comments of Hayne J. See (2002) 211 CLR at p.240 [1].
[15] Cf.Payne v Payne [2001] Fam 473, where Thorpe LJ, summarised, at [26], the two governing propositions under UK legislation and judicial authority over 30 years in relocation cases as (a) the welfare of the child is the paramount consideration and (b) refusing the primary carer’s reasonable proposals for relocation of her family life is likely to impact detrimentally on the welfare of her dependent children. See also the reasons of Dame Butler-Sloss P [85], as well as the comments of Bryant CJ and Finn J in Taylor & Barker (2007) 37 Fam LR 461 at [84] – [113].
This summary of principle must, of course, be understood in the context of the ‘prescribed legislative pathway’ or scaffold in Part VII of the Act, to which I have already referred. Thus, as stated by Bryant CJ and Finn J, who constituted the majority in Taylor v Barker, at [53] (internal citations omitted):
We agree that when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible.
To this instruction, I note too the similar, and slightly more fulsome, remarks by the Full Court in McCall v Clark, where their Honours said, at [60]:[16]
In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:
While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.
[16] See also the Full Court’s discussion in Starr & Duggan [2009] FamCAFC 115 at [38] & [39], and by Ryan J in Sheldon & Weir (No.3) at [242] – [243].
And at paragraphs 66 and 67:
Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child. We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.
In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…
I draw attention also to the comments of the Full Court in Blanding, which involved a parent seeking to relocate, and being permitted to do so.[17]
[17] Blanding v Blanding (2017) 55 Fam LR 218.
In the course of considering at some length the grounds of appeal, the plurality (Ainslie-Wallace and Berman JJ – with whom Finn J generally agreed) said, at [141] – [142]:[18]
[141] There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
[142] This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
[18] See also the Full Court’s comments at [148] regarding issues of “weight” given by the trial Judge to certain evidence. The Court there said that such matters were “entirely a matter for his discretion.”
Then the Court said further, at [153] and [159] – [160]:
[153] It was contended that his Honour should have “indicated what weight he places on their views and why”. We reject this submission, which carries with it the suggestion that a judge, in considering a range of issues as part of the exercise of a wider discretion in relation to the best interests of children, is in some way required to indicate “weight”. Such a submission misstates the very nature of the weighing process. His Honour clearly rejected the concern that the father had influenced the children directly but was open to the proposition that being aware of his opposition may have an influence on their views. In our view nothing further was warranted nor needed to be said.
…
[159] His Honour carefully and clearly considered the father’s desire to remain a part of the children’s lives. He was conscious of the additional time spent by the father by being involved with the children’s after school activities. His Honour found that the children had a close and normal relationship with the father and the mother [20]. He further took into account that a move to the Central Coast will change the children’s circumstances and that they will see less of their father than before [25].
[160] His Honour referred to and took into account the difficulty and expense of the father spending time with and communicating with the children at [26]. He noted that while it would not prevent them from communicating, it would be more difficult and expensive [27]. His Honour further considered these issues when determining the advantages and disadvantages of the parties’ proposals [44(a)] to [44(e)].
Finally, at [166], the Court said:
In any event, the apportionment of weight or importance to evidence is a matter for the exercise of the trial judge’s discretion. As we have already said, the bar to appellate intervention in relation to such asserted errors in the exercise of discretion is high (see Gronow v Gronow (1979) 144 CLR 513).
Consideration and disposition
I turn to the detail of the legislative scaffold in Part VII of the Act, and s.60CC(3) in particular, in the light of the evidence before the Court. In the summary that follows, I follow each of the “considerations” sequentially, unless otherwise specified, and each comment or observation, also unless otherwise specified, should be taken as a formal “finding” by the Court.
I should note at the outset that I generally accept the outline of the evidence given by the ICL, and her balanced consideration of the fundamental issues upon which the case ultimately turns: on the one hand, the “happiness” of the Mother upon escaping from Canberra to start a new life away from the control of her former Husband, and on the other hand, the desirability and benefit of the children having more ready access to their Father should they remain in Canberra. If the latter was to occur, in my view, it would come at a very high price for which the Mother would continue to pay. The question, a delicately balanced one, is whether that price would be too high and ultimately to the detriment of the Mother, which would undoubtedly impact on the children.
In my view, the well-being and happiness of the Mother has been significantly compromised by the actions of the Father. Her presentation and her oral evidence at trial was characterised by, in my view, unfeigned fragility. At times, she was quite timid in her evidence, as if the years of battling with the Father had taken their toll. The Father’s constant unpredictability and unreliability in his care for the children had patently worn her down. His unreliability has also impacted negatively on the Mother’s availability to work, which in turn has adversely impacted on her income and finances generally. As well, his constant expectation of the Mother to “pick up the pieces” of any situation regarding the children has also had an obviously wearing-down effect on the Mother.
As the Family Consultant observed, the impact of the past relationship on the Mother remains the prism through which she sees her own emotional stability and strength, as well as the Father’s ongoing “control” over her, which adds to her strong sense of isolation.
The Father said in oral evidence that he had changed his views and attitudes in relation to his expectations of the Mother and parenting more generally. I hope so. In my view, over quite a number of years, he had shown very little insight into his own actions and the negative impact of them on the Mother, which in turn affected the children. He has been consistently selfish and self-focussed to a significant degree. The Mother has borne the brunt of these actions. He seemed often unable to distinguish his own “need” to be involved in the children’s lives from the best interests of the children. His personality was almost overwhelming, certainly as perceived and experienced by the Mother.
I have very serious doubts about the Father’s capacity to change as he asserted. Often his “insight” into the consequences and or general import of his actions on the Mother and, in turn, on the children seemed only to come into existence upon being questioned in the witness box. Such sudden conversion to insight into his actions may, I fear, be somewhat short-lived. I hope that I am wrong in this regard, but the evidence over a significant period of time points to it being a slow path to genuine enlightenment of, and change by, the Father.
In the light of the above, I strongly accept and very much prefer the evidence of the Mother over the evidence of the Father, especially regarding events relating to the care of the children. Not only was she more consistent, but the Father required some prompting before he acknowledged the many and various short-comings pointed out to him. I accept that none of his actions were (or are) malicious or malevolent. They were invariably dictated by a remarkably narrow view of the roles and responsibilities of parents. And I have already remarked how selfish he had been on many occasions. His lack of insight, at times, bordered on breath-taking, so self-absorbed was he.
I turn then, as promised, to the legislative scaffold/pathway by way of summary and consideration of the evidence, noting again that I follow here sequentially the “considerations” in s.60CC(3), unless otherwise specified.
The “views” of the children, given their ages, while relevant, are not of such significant weight as to be decisive or determinative. There is no doubt that they wish to spend regular time with both parents who they love dearly.
Regarding the considerations in s.60CC(3)(b), (c), (ca) and (g), there are certainly some vulnerabilities that need to be taken into account regarding the children, especially that of [X]. The children have obviously close attachments to the Father’s family in Canberra, noting too that he has some family in Sydney. There is no doubt that the children are well loved and cared for by both parents, with the Mother having historically (and otherwise) borne the bulk of these responsibilities. On the evidence, there are a significant number of examples where, notwithstanding his genuine love and care for the children, the Father has put his work before the interests of the children. This has led to a greater sacrifice of the Mother effectively to make up for the Father’s absence and related deficiencies.
I note in particular the Family Consultant’s comments that (a) the considerations regarding a relocation to Sydney and remaining in Canberra were quite delicately or equally balanced, and (b) the children would adjust well if they were to move from Canberra.[19]
[19] See the Family Report at par.111.
Regarding s.60CC(3)(d), (e) and (i) considerations, there is no question that, should the Mother relocate with the children to Sydney (and even more so to Perth), there would be significant issues regarding the impact on the children from spending less time with the Father, and similarly so regarding the practical difficulty and expense of that time occurring. For my part, I agree with the ICL (and likewise, Dr A) that a relocation to Perth would not be in the children’s best interests. Accordingly, I will not consider that aspect of the Mother’s Application further.
Regarding the same considerations if the Mother moved with the children to Sydney, the issues are not so immense. It is obviously a much shorter travel time than Perth. The Father has relatives in Sydney, who would have the benefit of seeing the boys more regularly and (notwithstanding the Father’s negative evidence in this regard), he may be able to stay with them, among other accommodation options. Moreover, a relocation to Sydney would enable the children and the Father to spend very regular time together – in both cities. The issue really would become one of logistics and accommodating the needs and activities of the different households in each city. Both parents are capable people. I have no doubt that, once the Father turns his mind to something, he will pursue it with great energy and force. It is time for him to do so regarding his boys. The question will also be whether his professed insight and conversion to their best interests – in a day-to-day practical way – will now translate into reliable, consistent action.
Historically, the Father has taken a view that his work takes precedence over that of the Mother. Such a view also translates into the Father, in many respects, seeing himself historically, as the “provider” for the children, and the Mother [solely or primarily] as the “carer.” Under his new-found guise as the “sensitive and responsible” Father, he will have proper regard to his reliability in spending time with the boys, as well as providing for them generally, but also properly considering the professional responsibilities of the Mother, and her re-calibrated role as their Mother too.
Formally, other than the issues of “control” that have been addressed at some length in these reasons, there are no other issues that arise regarding family violence.
In my view, however delicately balanced, the Orders now to be made by the Court are in the best interests of the children.
I should also note that I do not understand there to be any opposition by the Mother to either of the children either receiving, or generally participating in, any of the sacraments in the Father’s (religion omitted) tradition. Should there be any dispute regarding which parent holds or retains the children’s religious sacramentals or memorabilia (e.g. gold cross), I suggest (but do not formally order) that each parent obtain a copy of the said sacramental, so that there is one in each household.
Conclusion
Earlier in these reasons I noted the following comments from two regularly cited authorities. I said that it was important to recall Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[20]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[20] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[21]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[21] M v S (2008) 37 Fam LR 32.
It is also important to recall the observations from the majority judgment of Bryant CJ and Finn J in Taylor v Barker at [109] and [113], where their Honours said:
[109] Happiness is a state of mind to be inferred from evidence…
…
[113] It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment…
In the present matter, the “happiness” of the Mother does not, strictly speaking, need to be “inferred.” It (or the lack of it) was plain for all to see during the hearing, and plainly referred to by the Family Consultant. In certain respects, the Father acknowledged the Mother’s plight.
The Mother does not need to provide “compelling reasons” in order to relocate. In my view, the evidence clearly establishes the significant risks to the Mother’s well-being should she be required to remain in Canberra. In so many relevant respects, in my view, the “damage” to the Mother has already been done for the reasons outlined here. To remain in Canberra would, in my view, subject her to further risk. She (with the boys) needs the opportunity to re-build a life in Sydney. The boys will still be able to spend very regular time with their Father. It is up to him whether he will take any other opportunity to spend time with them, either in Sydney or in Canberra. On the evidence, given how good and strong the children’s relationship is with the Father, I do not consider that that relationship is likely to be diminished let alone harmed.
In my view, the following Orders should be made. They are in the children’s best interests:
(i)The Mother and the children be permitted to relocate to Sydney;
(ii)The parties shall have equal shared parental responsibility for the children. Subject to what is set out below, the related Orders set out in the ICL’s Case Outline should also be made;
(iii)The children shall live with the Mother, and subject to any other agreement in writing between the parties, they shall spend time with their Father as follows;
a)The children shall spend every second weekend with the Father (the parties are to finalise the pick-up and drop-off times and changeover, but in the absence of agreement between the parties in writing, changeover is to occur at Suburb A, New South Wales);
b)Half of each school holidays;
c)The children shall be at liberty to contact either parent at any reasonable time as they request (which shall be facilitated by the resident parent);
d)The Father and the children shall telephone (or Skype) each other as agreed in writing between the parties, and failing agreement, no less than twice per week (in the absence of agreement, the times shall be at 6pm each Tuesday and Thursday);
(iv)Otherwise, the communication between the children and the parents shall be as per Order 19 set out in the ICL’s Case Outline;
(v)Similarly, the Orders proposed by the ICL regarding travel (Orders 20 – 22 of the Case Outline) shall also be made.
In making an Order for equal shared parental responsibility, this requires the Court to have regard to the terms of s.65DAA, noting in particular that all relevant terms are subject to the best interests of the children and the stipulations by the High Court in MRR v GR.[22] Given that the Court here is authorising the Mother to move to Sydney with the children, neither an equal time, nor a substantial and significant time, arrangement is reasonably practicable. To consider otherwise would not be in the best interests of the boys.
[22] MRR v GR (2010) 240 CLR 461.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 7th December 2018
0
10
2