Weber and Crossman
[2013] FamCA 525
•10 July 2013
FAMILY COURT OF AUSTRALIA
| WEBER & CROSSMAN | [2013] FamCA 525 |
| FAMILY LAW – CHILDREN – With whom the children shall live – overseas relocation by the father – mental health issues – whether the mother has the ability to be the primary carer for the children – whether the mother has the ability to manage the children’s behaviour – conflict in the children’s relationship with the mother – children’s views are equivocal – disruption to the children if they relocate to live with the father – children live with the mother and spend time with the father – presumption of equal shared parental responsibility is rebutted – parent with whom the children live shall have sole parental responsibility |
| Family Law Act 1975 (Cth) ss 60CC, 61B, 61DA, 65DAA Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), s 2 and Schedule 1, Part 2, s 45 |
| MRR v GR (2010) 240 CLR 461 Muldoon & Carlyle (2012) FLC 93-513 Sayer & Radcliffe & Anor [2012] FamCAFC 209 |
| APPLICANT: | Ms Weber |
| RESPONDENT: | Mr Crossman |
| FILE NUMBER: | CAC | 1767 | of | 2008 |
| DATE DELIVERED: | 10 July 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 19, 20, 21 and 22 March 2012; 8, 9 and 10 May 2012; 19 September 2012 and 27 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Jo Haughton |
| SOLICITOR FOR THE APPLICANT: | Mazengarb Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Julian Millar |
| SOLICITOR FOR THE RESPONDENT: | Blaxland Mawson & Rose |
Orders
The mother have sole parental responsibility for the children, Z, (born on … 2000) and Y (born on … 1998) subject to the orders set out hereafter.
(a)The mother will inform the father of every medical or allied health professional consultation the children may have as soon as practicable after that consultation.
(b)The mother will keep the father informed of the children's progress in relation to Order 1(a) above.
(c)The mother will authorise and direct any medical or any other health professional who may consult with the girls to provide such information to the father as he might reasonably require.
The mother will provide a copy of these Orders to any school the children attend and will authorise and direct the school to provide such information to the father about the children's progress at school and copies of all reports, school photographs and notices as the father may request. Such documents and information is to be provided at the father's expense.
The mother will not cause the children to attend a different school from those they are currently attending without first advising the father of her proposal to do so and listening to and consulting with him about whether such a change of school is in the children's best interests.
Notwithstanding the last order, the mother will have the ultimate determination about the school that the children attend.
The children will live with the mother.
The children will spend time with the father as follows:
(a)For the whole of the end of year school holidays in 2013 and 2014, such time to:
(i)Commence from as soon as practicable (within two to three days) after the completion of the last term of the school year.
(ii)Conclude not later than the third day before they are obliged to attend school in the New Year.
(b) For periods of at least ten days during the term 1 and term 2 holidays.
The father will pay for and arrange all travel for the children to and from the South Pacific location.
The children may communicate with the parent with whom they are not currently living at any reasonable time, and the parent with whom the children are living will facilitate such communication. Such communication may be by telephone, by Skype or by Face Time.
The parent with whom the children are not currently living may communicate with the children at any reasonable time, and the parent with whom the children are living will facilitate such communication. Such communication may be by telephone, by Skype or by Face Time.
In the context of Orders 8 and 9, "at any reasonable time" would ordinarily mean that the children will communicate with the parent with whom they are not living at least every week.
Each of the parties will do such things as may be necessary to cause passports to be issued for the children (if they do not already have them). Such passports may be retained by the mother, except when the children are travelling.
If either parent seeks to travel internationally with the children (other than the time the children will spend with their father in the South Pacific location) that parent will give not less than three months' notice to the other parent and provide the other parent an itinerary for such travel and evidence, if the other parent requires it, of return tickets having been purchased.
The mother will attend upon a psychiatrist (and any other professional that psychiatrist may recommend she attends upon) on a regular basis as suggested by that psychiatrist (or professional) and will adhere to the treatment or medication prescribed for her. The mother will advise the father of the name and contact details of the psychiatrist she attends and will authorise that psychiatrist to provide to the father, upon request by him, a report confirming that the mother has been attending upon the psychiatrist (or other person at his or her recommendation) as the psychiatrist or that person has prescribed or directed - or as the case may be. The father will pay for the cost of any such report so requested.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.
This matter is removed from the pending cases list.
It is noted that:
(A)Orders 8 and 9 above do not prescribe defined times or days on which communications between the children and either parent may occur. This is to acknowledge the fact that communications are not always effective or convenient and each of the parents must apply his or her best efforts to understanding and accommodating the exigencies of the other parent and of the children’s circumstances at any time.
(B)It is expected that each of the parents will, if for some reason a call is not convenient or cannot be made, accommodate the other parent’s communication at the first time reasonable available thereafter.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Weber & Crossman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 1767 of 2008
| Ms Weber |
Applicant
And
| Mr Crossman |
Respondent
REASONS FOR JUDGMENT
This matter concerns two children, Y (born in 1998) and Z (born in 2000), and has a history of protracted litigation.
The primary issue at the heart of this dispute is the father’s desire to relocate the children to the South Pacific, where he currently resides and works. The children live in southern New South Wales town X with their mother and X is where the parents and children lived together as a family before the parents’ separation. There are other factors which affect the primary issue; those factors include the children’s views, the mother’s mental health and the mother’s and the father’s circumstances in southern New South Wales and South Pacific respectively.
The proceedings commenced when the mother filed an Initiating Application for parenting orders on 2 August 2011. The matter came before me for final hearing on 19 to 22 March 2012, 8 to 10 May 2012 and 19 September 2012.. Judgment was reserved on 19 September 2012 pending the receipt of written submissions from the parties. However, on 15 March 2013 the father filed an application to re-open the case. That issue was dealt with on 27 March 2013 and, after I determined the case should be re-opened, further evidence was also taken on that day.
Applications of the parties
The father is the respondent in these proceedings; however, given that he wishes to relocate the children to the South Pacific, it is convenient to set out his application first.
The father’s orders sought are set out in his Application in a Case filed 15 March 2013:
a)The father have sole parental responsibility for the children.
b)The children live with the father in the South Pacific location.
c)The children spend time with the mother as follows:
i)During the first and second term holidays for a period of at least 10 days.
ii)During the Christmas holiday for a period of not less than four weeks.
d)The father will be responsible for arrangement and payment of all travel arrangements to and from the South Pacific.
e)The children shall not be prevented from residing internationally with the father nor shall they be prevented from international travel following time spent with the mother.
f)The mother undergo psychological assessment and/or a parenting evaluation with an appropriate expert and comply with any recommendations made by the expert.
The mother sought orders set out in her amended Initiating Application filed on 19 March 2012:
a)The children live with the mother.
b)The children spend time with the father as follows:
i)During the first and second term holidays for a period of at least 10 days.
ii)During the Christmas holiday period for a period of no less than four weeks.
c)The father shall be responsible for arrangement and payment of all travel arrangements to and from the South Pacific.
d)Within three months, the parties will do all things necessary to have both children issued with a passport.
e)The children shall not be prevented from travelling internationally following time spent with the father.
f)When the children are in the care of either parent, that parent will not leave the children alone for more than one hour and will not allow the children to come into contact with Mr C.
g)The parties shall communicate, as far as possible, only by email or text message.
h)Neither party will disclose confidential communications regarding parenting orders to any persons other than the parties’ respective lawyers, without first indicating the intention of the party to make the disclosure.
Background
The parties married overseas in April 1995 and moved to southern New South Wales town X (“X”) in January 1996. The parties moved numerous times during the early years of their marriage and when the children were young because of the father’s employment.[1]
[1] Mother’s affidavit, filed 20 October 2011, [12] to [35].
In January 2001, the parties returned to live in X.[2] However the father’s employment was mainly overseas. He was away from the family home in X for weeks at a time. The mother remained in X and cared for the children and maintained the family home.[3] The mother describes her time in X without the father as incredibly tiring and lonely.[4]
[2] Mother’s affidavit, filed 20 October 2011, [23].
[3] Mother’s affidavit, filed 20 October 2011, [25] to [32].
[4] Mother’s affidavit, filed 20 October 2011, [30] to [35].
In May 2006 the parties purchased a home to renovate and the father employed someone to assist with the renovations. That person was the stepfather of Mr C. At the time of employing Mr C’s stepfather, the parents had not yet met Mr C. The parties did not meet Mr C until September or October 2006. In July 2007, Mr C became an employee in the father’s business.[5] Mr C, (the parties later discovered) had been convicted of indecently assaulting a young girl. During the course of this matter, there was significant concern about each parent’s involvement with Mr C and the extent to which Mr C had and might come into contact with the children. That is no longer a live issue in one sense as both parents have severed their contact with Mr C and agree that he should not be brought into contact with the children.
[5] Mother’s affidavit, filed 20 October 2011, [40]; Father’s affidavit, filed 24 October 2011, [8.2].
N’s[6] father is Mr K. The mother had a relationship with Mr K. He was a witness in the mother’s case. Mr K and the mother remain friends although the romantic relationship appears to have ended.
[6] N is the daughter of the mother’s relationship with Mr K. She was born in 2009.
After separation, the children lived with the parents on a fortnight-about basis. This continued for about three months and the parties then changed to a week-about arrangement.[7]
[7] Mother’s affidavit, filed 20 October 2011, [41] to [43].
Final orders were made by on 28 September 2010 in the Federal Magistrates Court (as it then was) for the children to live with the parents on a week about basis and an injunction was imposed on each of the parents preventing him or her from allowing the children to have any contact with Mr C.
In June 2011, the child Y told the mother about an incident with Mr C. Y alleged that she had been staying at the father’s home and had invited the other children there to listen to her play her guitar. This occurred in her bedroom. The father, his present wife (whom he married in 2011[8]) and Mr C came in to listen as well. After she finished playing, everyone left her bedroom except Mr C. Y told the mother that Mr C stayed to help Y tune her guitar. She told the mother that she did not want Mr C to stay, but she did not want to be rude to him because she did not want her father to be angry with her. The father denied that Mr C had been in Y’s bedroom.[9]
[8] Father’s affidavit, filed 24 October 2011, [1.6].
[9] Mother’s affidavit, filed 20 October 2011, [56] to [60].
The mother became concerned about the father’s relationship with Mr C and Mr C’s contact with the children and consequently, she filed an application for parenting orders on 2 August 2011 in the Federal Magistrates Court.
Although concerns regarding Mr C and his contact with the children were the initial reasons for the mother’s filing proceedings, the case has moved on from that issue. Mr C ceased working for the father in September 2011 and no longer lives in X. Mr C no longer attends the father’s church and the father does not see Mr C on a social basis anymore.[10]
[10] Father’s affidavit, filed 24 October 2011, [4.7].
The relevant issue now is whether the children should relocate to live with the father in the South Pacific. I have made reference to the various claims about Mr C because they occupied a significant part of the hearings and the evidence before me. As I indicated previously,[11] Mr C no longer seems to be relevant to the parties’ cases except to the extent that each asserts that the other demonstrated a lack of parental responsibility in failing to isolate or protect the children from what was seen (by each of the parents, serially) as an adverse influence or danger.
[11] See [9] above.
This matter was transferred to the Family Court on 14 November 2011.
On 24 November 2011, I set this matter down for final hearing, commencing on 19 March 2012.
On 19 December 2011, the father’s solicitors sent a letter to the wife’s former solicitors advising:[12]
… Our client has been offered a position with the Government of [the South Pacific country] … This position would require him to be based in the Capital City of …. If our client accepts such position, his employment will commence at the end of January 2012. We note that the contract would be for a two year plus a one year option.[13]
…
It is our client’s wish that [the children] reside with him, in [the South Pacific]. Accordingly, we hereby place you on notice that our client intends to amend his application in that he proposes the girls live with him in [the South Pacific] and spend school holidays with [the mother].
[12] Mother’s affidavit, filed 19 March 2012, annexure A.
[13] See also father’s affidavit, filed 13 March 2012, [1.10] and annexure D.
Upon receiving advice that the wife’s former solicitors no longer acted for her, the father’s solicitors sent another letter to the mother on 31 January 2013 with the letter dated 19 December 2011 attached.
In early February 2012, the father moved to the South Pacific with his wife. The children have been living with the mother since that time.[14]
[14] Mother’s affidavit, filed 19 March 2012, [14].
The children have spent time with their father from time to time. This time has not been as frequent as the father proposes for the children to spend time with the mother if they are living with him. The mother criticised the father for not spending as much time with the children as he might have. The father for his part asserted his financial circumstances (which he intended to improve by moving to the South Pacific) did not permit him to see the children as often as he wanted.
I accept that the father would have liked to have seen the children more often. I also accept that his inability to do so, casts at least some doubt about his ability to enable the children to spend as much time with the mother as he proposes if the children were to be living with him.
The children have also been able to communicate with the father by telephone while he has been in the South Pacific.[15]
[15] Mother’s affidavit, sworn 21 August 2012, [9].
The matter came on for hearing from 19 to 22 March 2012 and was adjourned part-heard. The final hearing of this matter resumed on 8 May and continued for three days. Evidence was given during those hearing dates which counsel submitted the single expert, Dr M, should be made aware of.
The matter was adjourned part-heard once again to enable Dr M to look at certain material and to provide a further report. Dr M provided a further report and neither party wished to cross-examine him on that report. The hearing resumed on 19 September 2012 and the parties were, once again, cross-examined.
After the hearing concluded on 19 September 2012, judgment was reserved pending the receipt of written submissions. Written submissions were received from the father on 27 September 2012 and written submissions were received from the mother on 18 October 2012.
In March 2013, the father made an application for the matter to be re-opened. On 27 March 2013 I determined the matter should be re-opened and took further evidence.
Relevant law
The Family Law Act 1975 (Cth) ("the Act") was amended in 2011 by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) ("the amending Act"). Those amendments affect the provisions that apply in parenting matters. The amending Act stipulates that certain amendments, which are relevant in this matter, "apply in relation to proceedings instituted on or after commencement."[16] The amendments relevant to this matter did not commence until 7 June 2012.[17] These proceedings were instituted on April 2011, therefore the relevant amendments do not apply to this matter. When I make reference to the Act, I refer to the provisions as they were before the amendments came into effect.
[16] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), Schedule 1, Part 2, s 45.
[17] Family Law Legislation Amendment (Family Violence and other Measures) Act 2011 (Cth), s 2.
Under the Act, I am obliged, when making a parenting order, to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[18] In this regard, "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."[19] Hence, equal shared parental responsibility is a presumption that relates solely to the allocation of parental responsibility, as defined in s 61B, and is not a presumption about the amount of time a child spends with each parent.
[18] Family Law Act 1975 (Cth), s 61DA(1).
[19] Family Law Act 1975 (Cth), s 61B.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child, or another child who is a member of the parent's family, or engaged in family violence.[20] Family violence means "conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety."[21]
[20] Family Law Act 1975 (Cth), s 61DA(2).
[21] Family Law Act 1975 (Cth), s 4.
The presumption of equal shared parental responsibility may also be rebutted if the Court is satisfied that equal shared parental responsibility would not be in the child's best interests.[22]
[22] Family Law Act 1975 (Cth), s 61DA(4).
In determining what is in the child's best interests, I must have regard to the factors set out in s 60CC of the Act. Those factors are divided by the Act into "primary considerations" and "additional considerations".
If the presumption of equal shared parental responsibility applies,[23] I am obliged then to consider whether the child should spend equal time with each of the parents or substantial and significant time as defined in the Act.[24]
[23] Indeed if I propose to make an order for equal shared responsibility.
[24] Family Law Act 1975 (Cth), s 65DAA(1) and (2).
In determining whether a child should spend equal or substantial and significant time with each parent, I must have regard to the best interests of the child as the paramount consideration and also have regard to whether it is reasonably practicable for the child to spend such time with each parent.[25]
[25] Family Law Act 1975 (Cth), s 65DAA(1) and (2).
This matter is, to an extent, a relocation matter. The children currently live in southern New South Wales with their mother. The father’s application is that they move to live with him in the South Pacific.
The pathway for making a determination in relocation matters has been explored in MRR v GR[26], Muldoon & Carlyle[27] and Sayer & Radcliffe & Anor.[28]
[26] (2010) 240 CLR 461.
[27] (2012) FLC 93-513.
[28] [2012] FamCAFC 209.
The principles to be followed in determining the best parenting orders in a relocation matter are, in summary:
a)The question of whether a parent should be permitted to relocate should not be the focus of the Court's inquiry as to the parenting orders that would be in the children's best interests. Instead, the Court must consider each proposal in the context of what is in the best interests of the children, by reference to s 60CC factors.
b)If an order is made for equal shared parental responsibility, taking into account ss 60CC and 61DA, the Court must consider whether equal or substantial and significant time are in the children's best interest based on the s 60CC findings. If an order for whether equal or substantial and significant time is in the children's best interests, whether such an order is reasonably practicable, taking into account the matters set out in s 6DAA(5).
In this particular matter, the father has already moved to the South Pacific. It is therefore necessary to consider his proposal for the children to move to the South Pacific and the proposal of the mother that they stay in X in the context of the s 60CC factors. Put in its simplest terms the dispute in this matter is about whether the children will live, at least for the next few months or possibly up to about eighteen months, with their father in the South Pacific or whether they will continue to live with their mother in southern New South Wales. Although some of the evidence in the early parts of the trial suggested that the mother had wanted to relocate to far north Queensland (where her parents live), by the time final submissions were received it seemed no longer to be part of the mother’s case that she wanted to relocate from X.[29]
[29] Submissions in reply from the mother, received 18 October 2012, [26].
What might happen to the father after his contract in the South Pacific or any extension of it is completed, remains unknown. Whether the mother will stay in X for the rest of the children’s’ education or until they turn 18 is also unknown. It is in the nature of a relocation case that there will be some uncertainties. The task I am to undertake is to consider whether it would be in the children’s best interests for them to live in accordance with the proposals of each of the parents respectively.
Best interests of the children
Primary considerations
Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with each parent
Both parents profess an earnest and sincere wish that the children should have a proper relationship with the other parent. This is not withstanding the significant antipathy between the parents. Each of the parents asserts that there would be a benefit to the children in having a relationship with the other parent.
In relation to the children’s relationship with the mother, it would seem that they love her and she loves them. The single expert’s observation of the children and the mother in late 2011 was:[30]
The children were brought to the assessment by the mother, together with Mr [K] and [N]. A delightful rapport was evident between them. …
[The children] were observed to have a primary attachment relationship with their mother. A close rapport was identified.
[30] Single expert’s report, 10 November 2011, [60] and [119].
In relation to the father, the single expert said in 2011:
Although they spoke in a more guarded manner with regard to their father, describing him as being unavailable and angry at times, numerous close and loving interactions were observed.[31]
[31] Single expert’s report, 10 November 2011, [119].
In March 2012, the single expert noted that there was “no significant change in the nature of the relationship of the child with each parent”.[32]
[32] Single expert’s report, 6 March 2012, [18].
I am satisfied that it remains the case that the children continue to love both parents and each parent loves the children. The children would benefit in continuing meaningful relationships with both parents and neither parent argues to the contrary.
Section 60CC(2)(b) – need to protect the children from harm as a result of being subjected or exposed to child abuse or family violence
The father’s evidence raises the issue of whether there is a need to protect the children from physical or psychological harm as a result of being subjected to or exposed to child abuse or family violence while in the mother’s care.
The child Y told the father about an extremely serious incident where, Y says, the mother tried to commit suicide in front of both her and Z:[33]
In January 2011 [Y] confided in me that her mother tried to commit suicide in front of her and [Z] in September 2010. The attempt consisted of [the mother] trying to strangle herself with a scarf. [Y] said that she [was] distraught, trying to stop her mother, trying to call the emergency number before her mother smashed the phone and trying to raise the alarm to neighbours. … [Y] indicated that her mother tried to commit suicide on another occasion, but did not want to discuss that matter further.
[33] Father’s affidavit, filed 24 October 2011, [9.6].
The mother says that she “pulled a scarf around my neck in shear [sic] frustration”. She states that the Department of Community Services interviewed Y about this incident and concluded “Our very lengthy conversation with [Y] confirmed to us these were minor events and were understandable given the context in which they occurred.”[34]
[34] Mother’s affidavit, filed 8 May 2012, [16].
There was also an incident in 2009 where the mother had reportedly left suicide notes in the X home and then left for town G. The notes were found by Mr K. The mother denies she tried to commit suicide and denies she left any suicide notes. She states that she “went for a walk to get some space and to try and stop thinking about how sad I was about how my relationship with [the father] had soured so much”. She says that she admitted herself to hospital because she was suffering from a “severe cough and incontinence”.[35] The hospital records support the father’s allegation that the mother had, in fact, left suicide notes:[36]
Reported she wrote the “suicide note” yesterday afternoon impulsively, because she was feeling overwhelmed with stress and fatigue from not sleeping due to physically unwell [sic].
She left [X] and started hitch-hiking to [G]. On the way there when she was in the car she decided she needed to go back to [X] and that she couldn’t do something to herself that would adversely affect her kids.
…
She reports nil current suicidal or self-harm ideation. …
She also reported she “just wanted to escape” yesterday and no intent to suicide. She felt overwhelmed and wanted to get away.
[35] Mother’s affidavit, filed 20 October 2011, [127] and [128].
[36] Exhibit F1.
Regardless of whether the mother had intended to commit suicide, her actions at this point indicate, at least, that she was mentally overwhelmed. These events occurred two to three years ago. There is no evidence that, since then, the mother has threatened suicide or made any attempt to do so. If the father were aware of any such incident I have no doubt I would have been made aware of it. I am not satisfied that if the children were with the mother they would be at any unacceptable risk of harm because the mother might threaten, or worse, attempt to take her own life. My conclusions in this regard are based on the context in which the “incidents” took place and the nature of the incidents themselves and my acceptance of the mother’s evidence about them.
The father gives evidence that the child Y told him about an incident where the mother had hit her. The father asserts that the following conversation took place in April 2012:[37]
On 2 April I rang to speak to the girls. I spoke with [Y] first and she didn’t sound herself, so I asked her:
What is wrong?
[37] Father’s affidavit, sworn 2 May 2012, [4.1].
She said words to the effect:
This morning I was in my bedroom getting changed for school. [N] was swinging on the door and [Mr K] could see me getting changed. I didn’t want him to see me so I closed the door and it knocked [N] over because she was standing behind it still. It didn’t hurt her.
Mum got very angry and then suddenly hit me in the head very hard… and
It really hurt and I was crying, and I was so upset and hurt that I was an hour late for school.
The mother denies she hit Y very hard in the head. She says she “reprimanded her for [pushing [N]] by smacking her lightly”.[38]
[38] Mother’s affidavit, filed 9 May 2012, [12].
It is difficult to determine precisely the extent and severity of the hit administered. If I were to accept the mother’s evidence, what she did was a light tap. It seems to me that Y certainly regarded the matter as being more significant than a light tap. I form the impression that the mother was minimising her actions in the course of her cross-examination about this issue.
Nevertheless, there is no indication that it was part of a continuing course of conduct or that the assault was a physical threat to the child - in the sense of likely to have caused her any serious harm. It may nevertheless have been more serious than the mother was prepared to acknowledge. At the very least it demonstrated on the part of the mother that, at times, she has not been entirely in command of all of her actions. While not being positively indicative of what might happen in the future, it is something to be taken into account. Taken in isolation this incident, again, is not in itself cause to find that to leave the children with the mother would expose them to any unacceptable risk because there is no evidence of a continuing course of conduct.
The father’s friend, Ms T, who Y sometimes speaks to, also gave evidence that Y had reported a time in April 2012 when the mother had hit her:[39]
On Tuesday 3 April … [the school pastor] and I met with [Y] again. She said words to the effect
…
I was speaking to Dad on the phone. When I got off mum asked me what I was talking about and I said it was private. She started shouting at me and smacked me across the head. She said to me “You are a child you must not forget your place” so I had to tell her what I had said to dad.
[39] Affidavit of Ms T, sworn 3 May 2012, [21].
Y also told both the father and Ms Tr that Mr K had physically hurt her. The father reports the following conversation with Y in April 2012:[40]
I phoned [Y] and she said words to the effect:
[Mr K] was looking after us at the motel as mum was out. [Mr K] went through the swinging kitchen doors to see a customer. [N] tried to follow him and she got her fingers jammed in the door. [N] started screaming so I called out to [Mr K] to come back and help. He started yelling at me that he had to look after a customer. [N] was still screaming.
…
[Mr K] got very angry and grabbed my arm and dragged me. I was really frightened. He ignored [N] although she was still screaming. He grabbed my arm between the shoulder and the elbow and squeezed it until I yelled and it left a welt and bruise and he dug in his finger nails until it punctured my skin and made it bleed.
[40] Father’s affidavit, sworn 2 May 2012, [4.3] and [4.4].
Ms T gives the following account of the same event:[41]
We [Ms [T]and [Y]] met again on Tuesday 24 April and [Y] said words to the effect:
[N] got her fingers slammed in a door and [Mr K] just walked out with a customer without comforting her. When he came back I asked him how he could just leave her crying and not comfort her. [Mr K] then grabbed me by the arm and shook me violently to the point of leaving finger nail marks on my arm.
[41] Affidavit of Ms T, sworn 3 May 2012, [22]. In relation to the recording of Y by Ms T, the possible application of section 7of the Surveillance Devices Act 2007 (NSW) did not interfere with this becoming evidence in the proceedings. Section 138 of the Evidence Act 1995 (Cth) applied.
Mr K told the mother that “[Y] was being very rude so I held her by the arm to calm her and get her to think about her behaviour.”[42]
[42] Mother’s affidavit, filed 8 May 2012, [13].
Again, this incident suggests a degree of lack of self-control. Given the reports are third-hand (or, at least, second-hand) it is difficult to be satisfied about the potential harm for the girls. Of itself, it does not cause me to revise my conclusion that the girls are not in a situation of unacceptable risk.
The parties’ and Ms T’s affidavits which contain the details set out above were provided to the single expert for his consideration and further opinion. The single expert made the following comments:[43]
1.The additional information primarily related to concerns regarding [Y]. Her emotional and behavioural response whilst in the mother’s care was identified to have been problematic. … It was evident from the statements of the mother and Mr [K] that at times her behaviour had been difficult to manage. …
…
5.It was of concern that the mother had failed to attend regular psychiatric follow-up. Although I had noted that the mother had reported that her mental state had stabilised at the time of my previous assessment, based on the history obtained from the mother and her mental state examination, it appears likely that this has continued to fluctuate over time. … It is likely that [Y] will continue to be concerned about the mother’s mental state and suicidality, given her own experience of the mother’s behaviour over time and discussions held with her father regarding the mother’s suicidal behaviour. This is likely to further fuel [Y’s] anxiety and concerns. [emphasis added]
…
[43] Single expert’s report, 14 June 2013, [1] and [5].
9.I would respectfully make the following recommendations.
…
c)It will be important for the mother to maintain regular ongoing psychiatric review and treatment. Should she be unable to do so, this would raise questions regarding her ability to provide a stable primary residence for the girls. Should she be unable to effectively manage [Y’s] behaviour that too would be an indication that relocation to [the South Pacific location] with the father would be in their best interests.
It would appear from this report that the mother’s behaviour could pose some risk of emotional and psychological harm to Y. However, this aspect of the single expert’s report nevertheless is somewhat circumscribed by the fact that he had not seen the parties prior to the preparation of this report and his reflection on changes in the mother’s mental stability must have been brought about by reports that he received from the parties.
It was also asserted by the father that there was physical punishment meted out to Z for misdemeanours.[44] How the father could have known this given his absence from the family home was not adequately explained. I place little weight on this so-called evidence.
[44] Father’s affidavit, filed 24 October 2011, [9.15]
However nothing operates in isolation and it is necessary to consider the remaining s 60CC factors.
Another matter which may have been seen to have been a risk to the children is their possible involvement with Mr C. Mr C’s past and potentially future activities seemed to be a matter of major concern for each of the parties. In the end, as I have suggested above, there does not seem to be any current risk to the children because both parents are agreed that Mr C should not be brought into contact with the children.
Given the degree of time spent on this issue during the proceedings, I make the following comments, but I make them in passing only.
When the mother was associated with Mr C and the father was critical of the association, it was, in many respects, on my assessment of the evidence at that point, reasonable for the mother to rely upon the denial by Mr C of what his activities had involved.[45]
[45] She had no other points of reference at that time.
When that relationship ended and Mr C was primarily associated with the father (to the significant concern of the mother), Mr C gave the father a very explicit and detailed outline of the conduct which gave rise to the charges against him, his conviction and imprisonment. There could be little doubt that, at the end of that conversation, the father could not have been left in any doubt about the extent and gravity of Mr C’s actions. This did not, however, apparently cause him to take a strong position against Mr C at least so far as the children were concerned. This is something which I find difficult to understand.
While the danger from Mr C may no longer be present for practical reasons the father’s attitude, given his knowledge, is a factor which, in my opinion, reflects adversely upon his capacity to be a protective parent.
Additional considerations
Section 60CC(3)(a) – the children’s views
The children have expressed views about where they would like to live and their views about each parent’s household throughout these proceedings. Those views have changed throughout the proceedings. I do not say that as a criticism of the children, far from it. Rather, I suspect that each parent has been committed, to some extent, both consciously and subconsciously to influencing the children in their views. It is hard not to feel sorry for the children in this matter because of what find is the pressure exerted on them by both parents, either consciously or unconsciously. I set out below the children’s views as they have been recorded throughout these proceedings.
The child Y wrote a letter to her father in June 2011 and said (among other things):[46]
As far as schooling and home life is going – at … your house I feel abandoned, forgotten and unheard; I know you are trying to make it right but [it’s] just not working for me … I apologize and forgive you, but to make it better for me I want to live at one house only; it’s taken me three years to make a decision (and it was far from easy due to the fact that I love you both terribly), but I decided that since I’m a girl going through puberty I need my ‘own’ mother around, so I wish to live with her from now on. I hope to see you every second weekend – I wanted to tell you first so you don’t get a surprise.
[46] Mother’s affidavit, filed 20 October 2011, annexure E.
In or about March 2012, Y expressed a different view, telling her mother “I would like to visit [the South Pacific] but I don’t want to leave you or [N] or my friends and school.”[47]After watching a tourism video of the South Pacific, both Y and Z said to the mother “We are interested in going to [the South Pacific], but we don’t know what it would be like to live there, and we aren’t ready to leave family and friends, especially [N] and you.”[48] Similar views were expressed in May 2012 by Y after she had spent time with the father in Australia after he had already moved to the South Pacific. She said “I don’t know if I want to live in [the South Pacific] but I want to see what [the South Pacific] is like”.[49]
[47] Mother’s affidavit, filed 19 March 2012, [20].
[48] Mother’s affidavit, filed 10 March 2012, [21].
[49] Mother’s affidavit, filed 8 May 2012, [7].
Y, however, was alleged by the father to have expressed views contrary to what she had expressed to the mother. In March 2012, Y said to Ms T:[50]
I don’t think the court knows I want to live with dad. I was so confused and actually wanted the court to decide as I felt by choosing to live with one parent, I would be telling the other parent that I did not actually love him/her. But I am so sure now that I want to live with [dad] and I need your help so I can be with dad.
[50] Affidavit of Ms T, sworn 3 May 2012, [17].
In July 2012, Y said the father during a telephone conversation “I want to live with you Dad, I miss you and [Ms S] and [L] …”[51]
[51] Father’s affidavit, sworn 14 September 2012, [1.8].
However, after spending time with the father in September 2012, the girls said to the mother “We felt out of place with Dad and his new family … we want to finish school in Australia”.[52]
[52] Mother’s affidavit, filed 27 March 2012, [3].
Yet in October 2012, the father reports that Y said to him “I don’t want to be in this house and I hate it. I told mum about me wanting to commit suicide last night.”[53]
[53] Father’s affidavit, filed 15 March 2013, [12].
The children have also expressed views about where they want to live to the single expert. These views reported by the single expert may be regarded as more reliable than those the children expressed to the parents because the single expert is an independent reporter.
In the earliest report, the single expert reported the following from the children:[54]
[54] Single expert’s report, 10 November 2011.
68. After discussing their family portraits [which the single expert had asked them to draw], [Z] asked: “Excuse me. Will it be definite that we’ll only be living with one parent? I kind of love both my parents. I want to live with both.”
…
71. [Z] described Dad’s house as “like a madhouse”. [L] was crazy, [R] was crazy and [O] would be in his room playing Playstation. [[L], [R] and [O] being [Ms S’s] children] [L] would make a big fuss over what she wanted and would get what she wanted. … Her Dad would always be busy, as would [Ms S]. …
…
80. [[Z]] identified that it was her preference to live at her Mum’s house, because she cared for her more. Nonetheless, she restated: “I think both houses, but I think Mum’s house because she cares about us more.”
…
112. [Y] agreed: “The annoying thing for me is when I go to live with my Mum, I’m convinced I want to live with my Mum. And when I go to live at Dad’s house, I’m convinced I want to live with my Dad.
…
115. [Z] restated: “I want to live with both parents. …”
[emphasis added]
In a later report, in March 2012, the single expert again reported on the children’s views:[55]
8. The children were highly motivated to express wishes with regard to their residence in the context of the assessment. They were brought to the assessment by their father and understood that this was their opportunity to express their views. [Y] and [Z] both clearly asserted their desire to travel with their father’s family to [the South Pacific] … This had been the subject of discussion in their father’s household. …
9. [Z] spoke in a somewhat immature manner with regard to this issue. … She spoke of the excitement of such an adventure in a manner which a child would view an exciting forthcoming holiday to the South Pacific. There was a lack of consideration of more significant issues involved in such a relocation. She did acknowledge that she would miss her mother, sister, [Mr K] and friends from school.
10. [Y] spoke in a more mature and motivated manner. This was consistent with her level of developmental maturity. She, too, was highly motivated to join her father’s family in [the South Pacific]. She viewed this as an opportunity to benefit educationally, as she regarded her father as more capable of attending to her educational needs. She did not, however, consider the possible limitations of the educational environment in [the South Pacific]. This was consistent with her father’s view that the education there would be at least as good as her current schooling. …
…
12. The girls had been powerfully influenced in their views by their exposure to the excitement within the father’s household involved in the packing and relocation to [the South Pacific]. This was well underway at the time of the assessment. The father had already visited and the family were partially packed to relocate the following week.
13. Given their age, it was difficult for them to consider more significant aspects of such a transition. Both girls acknowledged that they would miss their mum. …
[55] Single expert’s report, 6 March 2012.
The single expert also considered, in his report of March 2012, the impact upon the children if the Court made a decision contrary to their wishes, their wishes at time of the second report being to relocate to the South Pacific with the father:[56]
16. … they indicated that they would be prepared to accept continuing to reside with their mother, with visits to see their father and family in [the South Pacific], although this was clearly not their preferred position. Such an arrangement would be associated with disappointment, given their evidence excitement and anticipation with regard to the proposed relocation to [the South Pacific].
[56] Single expert’s report, 6 March 2012.
The single expert did not specifically consider the children’s views in his third report.
The most recent independently recorded views expressed by the children are in the single expert’s report of March 2012. Those views indicate the children wish to move to the South Pacific and the single expert concluded that if a decision were made contrary to that view, then the children would be disappointed. However, the comments made by the single expert indicate the children’s views were influenced by “their exposure to the excitement within the father’s household involved in the packing and relocation to [the South Pacific].” The single expert also clearly stated that the girls, given their age, were not able to consider more significant aspects involved with a move to the South Pacific.
Subsequent to the March 2012 report, the children expressed to the mother in September 2012 that they wished to remain in Australia and Y expressed to the father in October 2012 that they wished to live in the South Pacific.
In the end I cannot be satisfied that the children’s views are unequivocally that they want to live in southern New South Wales or unequivocally that they want to live in the South Pacific. Their views have fluctuated over time. I believe both children are, but particularly Y, is, under pressure to please and/or appease each parent about where she, in particular, and they, in general, want to live. The different views expressed by the children at different times may indicate that the children have been under stress about where they will live and may also demonstrate conflicting emotions. I am however conscious that I do not have any expert evidence on this particular matter which would help me to reach a conclusion about stress and / or conflicting emotions.
It is reasonable that the views of the children be equivocal given that the preponderance of their lives have been spent in southern New South Wales and their support systems and schools are there. It is reasonable for Y to want a close association with her mother during puberty, it is also reasonable for the children to be attracted by the prospect of living on a tropical island with all of the pleasant and exciting images that conjures up for them. It is also reasonable for them to want to spend time with their father when their time with him in recent years has been somewhat limited.
What is not reasonable is to take any one expression of opinion and to translate it into a definitive choice on the part of either of the children. Not only is it unreasonable to do this, it is also unfair. The children should not have to choose where they might live in circumstances where their parents cannot. In the end it is appropriate that it is the Court’s decision. This will relieve the children from having to make decisions which they believe will cause distress to one parent or the other.
Section 60CC(3)(b) – nature of the children’s relationship with the parents and other persons
The children appear to enjoy a good relationship with each of their parents. This was evident in the single expert’s observation of the children with each parent. The single expert commented that the children had a “delightful rapport” with the mother[57] and observed the children to have “numerous close and loving interactions” with the father.[58]
[57] Single expert’s report, 10 November 2011, [60].
[58] Single expert’s report, 10 November 2011, [119].
The father’s submissions suggest that the girls are frustrated by their mother and want to spend more time with him. This may be what they have expressed to him from time to time but, for the reasons set out above, I do not accept such statements as conclusive of their views and opinions.
Although I do not accept the children’s views as being indicative of where they want to live for the reasons discussed above, there are two observations that can be drawn from what the children have said to the single expert. The first is that, although the children, in particular Y, may feel frustrated with the mother and complain about living with her, the children also feel the mother has more time for them and cares for them more than the father. I refer to Z’s comments above in bold at [77] and also the following comments from Y:[59]
85.… I like being at Mum’s house because I get to spend more time with her and she’s not always busy. And you get to tell her how you feel. Whereas at Dad’s, I practically go over there to spend time with him, but he’s always so busy. … The only thing I wanted to tell you is that I feel when I go to Dad’s house, I go to spend time with him, but he doesn’t always say ‘Hello’. I’m mostly with [Ms S]. …
…
88.She was thoughtful in describing her father: “Nowadays, he’s really busy. I hardly get to talk to him. Before that, he listened to me an asked my opinion [referring to before [Ms S] came]. … Since [Ms S] came, Dad started ignoring me.”
89.She smiled when asked about her Mum: She’s really funny. She’s always trying to entertain us. She spends time with us. We do talk. She sees it, that if you want to be a part of the family, you have to do stuff. We look after [N] together.
…
91.… [Mum] listens to me.
[59] Single expert’s report, 10 November 2011.
These comments were made about the mother in late 2011.
The mother’s mental health issues have had an effect on her relationship with the children. For example, the scarf incident was stressful and upsetting for Y and Y has complained to the father on a number of occasions about her experience in living with the mother. The incident where the mother hit Y could also have adversely affected their relationship.
Y has wrote emails to her father in February 2013 expressing her frustrations with her mother:[60]
... just the other day, [the mother] was saying bad stuff about Mrs [T] and you, and then when I finally stood up to her about that, she went CRAZY!! … when I walked away I gave her a bit of a hard tap on the arm … She started pushing me and hitting me and yelling in my face!!! So much to the extreme that I slapped her… She then went worse and started yelling, “Do it again! Hit me HIT ME AGAIN”
[60] Father’s affidavit, filed 15 March 2013, annexure A.
In another email to her father, Y wrote “I told [the mother] that as soon as I turn 15, ‘I’m gone’ if I’m not already.”[61]
[61] Father’s affidavit, filed 15 March 2013, annexure B.
A couple of days after an argument with the mother, Y told the mother “I like you. I don’t have to like you but I do.”[62]
[62] Proceedings on 27 March 2013.
Y’s comment to the mother that she “likes” the mother would indicate that their relationship has remained good despite the mother’s mental health issues. It also perhaps indicates that adolescents are not likely to be unwavering in their views about either of their parents. I should also add that I accept the mother’s evidence that Y did say this.
The second observation that can be made from the children’s comments is that they feel the father is often too busy to spend time with them, even when they are physically with him, and that his attention is elsewhere when they are with him. This is evident from the comments made by Y above and also made by Z in November 2011 that “she felt sad at her Dad’s house, because her Dad wasn’t usually around much.”[63]
[63] Single expert’s report, 10 November 2011, [76].
More recently, after the children had spent the September/October 2012 school holidays with the father in the South Pacific, they returned to the mother and said “we felt out of place with Dad and his new family.”[64] Y also said to the mother “Mum, I noticed that dad’s attention has shifted from [Z] and I to his new family, [Ms S] and her children.”[65]
[64] Mother’s affidavit, filed 27 March 2013, [3].
[65] Mother’s affidavit, filed 27 March 2013, [4].
While the children are primarily attached to the mother[66], have a good relationship with her, have in the past expressed that their mother is more available to them and cares for them, it is clear that Y has had issues with the mother. Y has also informed the father that Z hides from the mother and goes into her room.[67]
[66] Single expert’s report, 10 November 2011, [119].
[67] Father’s affidavit, sworn 14 September 2012, [1.2].
I am satisfied that their relationship with Mr K is, at least, satisfactory. It is hard to be more definitive based on the evidence before me.
The children have a loving relationship with their father, despite their comments they feel he is busy and often unavailable to them. The same applies in relation to their relationship with Ms S.[68] The mother has been the primary parent for the children and, as the history of the relationship with the parties and the father’s overseas work engagements indicate, they have had a closer association with her in the past then they have had with their father. That is not in any way to diminish the father’s commitment to his relationship with the girls or their commitment to him.
Section 60CC(3)(c) – willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
[68] Single expert’s report, 10 November 2011, [119].
Each of the parents is suspicious of the other parent’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and him or her.[69]
[69] Single expert’s report, 6 March 2012, [20].
It is asserted in the father’s written submissions that there are a number of factors which suggest the mother would not encourage the children to spend time with their father. When the father first moved to the South Pacific, he asserts he attempted to call the children, but often had difficulty reaching them:
3.1 During the period from … 22 March 2012 to the date of this Affidavit [2 May 2012], I have spoken and attempted to speak with the girls on regular occasions; normally every 2-3 days.
3.2 On nine separate occasions, I have tried to call the home number and [the mother’s] mobile with no answer. On 2 April 2012 I phoned but [the mother] said words to the effect:
“you can’t speak to them”
On that occasion, I insisted and I eventually spoke to [Y] and [Z]. …
3.3 On 13 April 2012 I tried to call [the mother’s] home. There was no answer. I called [the mother’s] mobile and again, no answer or reply. So I called [Y’s] mobile she answered and said
“We are at home. I heard the phone ring but mum didn’t answer it.”
Over nine days in July 2012, the father attempted to have telephone contact with the girls. The mother could not be reached on either the landline or her mobile and the father left voice messages. When the father finally was able to contact the mother on 19 July 2012, the mother told the father he could not speak to the girls because they were “about to eat.” When the father did speak to the girls, he asserts he could hear the mother in the background telling the children to “get off the phone.”[70]
[70] Father’s affidavit, sworn 14 September 2012, [5.1] to [5.3].
The father also asserts that he tries to call the children at the “appointed time of 5.30pm EAST” but on three occasions was unsuccessful. One occasion, Y told the father that either the mother or Mr K were eavesdropping on her conversation with him.[71]
[71] Father’s affidavit, sworn 14 September 2012, [5.4] to [5.6].
The mother states that she has never refused to allow the father to speak with the children. If the phone is unanswered, the mother says this is because she does not always have her mobile with her or switched, or it may be because she is cooking dinner or attending to other duties.[72]
[72] Mother’s affidavit, filed 8 May 2012, [8] to [10].
If the mother is at home at the appointed time when the father is due to call and she does not answer the phone when it rings, this reflects poorly on her. However, I am unable to find definitively whether this is so or not.
The father also says, in support of his submission that the mother’s willingness to facilitate a relationship between the children and him is questionable, that the mother in some way impeded the obtaining of passports for the children. Having listened to the evidence about the passports issue, I am satisfied that the mother behaved reasonably. I do not accept that that, in itself, is an example of the fact that the mother will not encourage the relationship with the children with their father.
The mother, on the other hand, submits that the father does not have the willingness nor ability to facilitate and encourage the children’s relationship with her. It was submitted on behalf of the mother that the father’s failure to provide the children with a mobile telephone was indicative of that lack of willingness to facilitate a relationship. It was submitted that his failure to do so demonstrates “that the priority for the father is financial matters to the detriment of the Children’s welfare”. The father’s reason for not supplying a mobile phone was that Ms S’s children do not have one. I do not accept the mother’s submission on this matter. The father’s failure to provide a mobile telephone does not necessarily indicate that he is unwilling to facilitate the children’s relationship with the mother. His failure to provide the mobile may have been to ensure consistency within his household, and if he cannot afford to provide the mobile phone, that is a reasonable excuse.
In any event, there are few opportunities to draw upon the reported behaviour of the father with the children to demonstrate with any degree of certainty whether it would be likely that he would encourage the children’s relationship with their mother. There is no doubt that he has expressed the view that he would. On the other hand, there is little solid evidence to support that. This is not a criticism of the father. He has had limited opportunities to demonstrate his willingness and effectiveness in encouraging the children’s relationship with their mother.
I am not satisfied that there is such evidence as would allow me to differentiate between the comparative positions of the parties on this ground alone.
In coming to this conclusion, I am also conscious of the fact that the father chose to move quite remotely from southern New South Wales in furtherance of his career. The single expert suggested that the father’s relocation to the South Pacific “did not suggest a commitment to this important issue [facilitating the children’s relationship with the mother].”[73] I do not unqualifiedly accept this is so. The father said he took the job in the South Pacific to establish himself financially when he could not do so in the X district. In broad terms, I accept that. It was, nevertheless, a decision deliberately made which removed him from the children’s established home.
[73] Single expert’s report, 6 March 2012, [20].
Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances
If the children move to the South Pacific, they would be removed from any stress they are currently experiencing in the mother’s household.
On the other hand, they have indicated to the single expert that they would still miss the mother. They would also be removed from the environment they have grown up in and are familiar with, their friends, their school, their church.
Moving to the South Pacific would be a major change for the children and would require some adjustment – to a new country, a new household where the dynamics are different and a new school and school system. The children would move to a household where they have expressed that they feel the father has limited time for them (as does their step-mother). They would need to share their father’s time with their step-siblings.
The single expert also gave evidence that the children very much want to spend more time with the father. However, the single expert cautioned that if the children were to relocate to the South Pacific and their expectations of how much time they spend with the father are not met, this would be a great disappointment to the children.
There is also uncertainty associated with a move to the South Pacific. The father’s residence and employment beyond December 2014[74] cannot be predicted. If he has no further extension to his contract and, even more strongly, if he fails to take up his extension option on his contract he and his new family will no longer be living in the South Pacific. It was open to the father to provide more authoritative evidence about his future plans but he did not do so.
[74] Or maybe December 2013 if he does not get an extension.
Further, the girls have been primarily associated with their mother and might be expected to be more affected by a change from living primarily with her once the novelty of the South Pacific experience has subsided a little.
If the children remain living with the mother in X, there will be some stability for them in the sense that they will continue at the same schools and will maintain contact with their circle of friends. However, if they continue to experience conflict with their mother, perhaps as a result of the mother’s mental health issues, this will be an area of stress for them. They will continue to see the father during holiday periods as they have now been doing for the past few months.
The children will miss the parent they do not live with, regardless of whether it is the mother or the father. However, Y has indicated that she will miss the mother more.[75]
[75] Proceedings, 27 March 2013.
There was some discussion about the possibility that the mother may relocate to far north Queensland, where her parents reside. There was evidence put that the mother and Mr K had explored the idea of moving up there and had even made a trip to Queensland to inspect housing. The father submits that it is highly likely that the mother will relocate to far north Queensland.
I accept that the Queensland move has now been reduced to a fairly slim possibility rather than a probability and I further accept that, even if it might not be her first choice, the mother is more likely than not to remain in southern New South Wales and hence in this situation to offer a higher degree of stability and continuity to the girls. In this connexion, I accept the evidence of the mother.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time and communicating with a parent and whether that difficulty or expense will substantially affect child’s rights to maintain personal relationships and direct contact with both parents on a regular basis
While the father resides in the South Pacific and the mother resides in X, there will certainly be practical difficulties and expenses associated with the children seeing the parent they do not live with.
The father’s application (mirrored in the mother’s) includes an order that he be responsible for payment and arrangement of all travel arrangements to and from the South Pacific. It is not clear whether this order is dependent upon orders being made that the children live with the father. The father’s financial circumstances are far superior to the mother’s. This is enough to warrant an order being made for the father to pay for and arrange travel to and from the South Pacific, even if the children do not live with him. It is to be noted, nevertheless, that notwithstanding the father’s move to the South Pacific for financial reasons, there has been little to show in the way of money being available for travel either by him or by the girls between X and the South Pacific.
Section 60CC(3)(f) – the capacity of each parent and any other person to provide for the needs of the children
The single expert was of the view that both parties are able to provide for the children’s developmental needs.[76]
[76] Single expert’s report, 6 March 2012, [22].
The mother submits that the father is not able to provide for the children’s financial or emotional needs. There is no evidentiary basis for this submission and I reject it. There may be some suggestion that the father influenced the children to express a wish to live with him. It might be said that he did this subconsciously by involving the children in the excitement of moving to the South Pacific. However, I can make no finding about this, particularly a finding that he did so deliberately. There is no evidence to support the mother’s assertion.
The capacity of the mother to provide for the children’s needs is in question. This is supported by the mother’s suicidal ideations, her alleged screaming at the children and hitting them. In March 2012, the single expert’s report noted that the mother’s mental health had stabilised and the children did not identify an evidence of distress or dysfunction at that time.[77] However, since then, Y has made some disclosures to the father about the mother hitting her. The single expert was made aware of this and, in his June 2012 report, commented that the mother had experienced difficulties in coping with Y’s behaviour. He recommended that:[78]
It will be important for the mother to maintain regular ongoing psychiatric review and treatment. Should she be unable to do so, this would raise questions regarding her ability to provide a stable primary residence for the girls. Should she be unable to effectively manage [Y’s] behaviour that too would be an indication that relocation to [the South Pacific] with the father would be in their best interests.
[77] Single expert’s report, 6 March 2012, [13].
[78] Single expert’s report, 14 June 2012, [9(d)].
Subsequent to that report, in February 2013, Y sent the father further emails about conflicts with the mother.[79] The content of those emails indicated Y was upset, frustrated and stressed about her conflicts with the mother.
[79] Father’s affidavit, filed 15 March 2013, annexures A and B.
Y also expressed[80] that she was worried about her mother because Y thought that her mother had stopped taking her medication and that made her mother really angry.
[80] Father’s affidavit, 14 September 2012, [1.2]
The mother suggested that if there were any difficulties for her, she would have the support of the local community, her church and friends, including Mr K who has remained loyal to the mother, notwithstanding the termination of their relationship. It should be noted in this context, however, that the mother’s parents live in far north Queensland and she does not have any relatives in X or near to X.[81]
[81] Proceedings, 19 March 2012.
Despite these support groups, the evidence appears to be that the mother continues to have difficulties with Y’s behaviour. Y has also informed the father that she needs to check that the mother has not hit Z or N, and that Z goes into her room and hides.[82]
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the children and of either parent and any other characteristics of the child that the court thinks are relevant
[82] Father’s affidavit, sworn 14 September 2012, [1.2].
There is no relevant comment to add here.
Section 60CC(3)(h) – factors regarding Aboriginal or Torres Strait Islander children
This is not relevant to this matter.
Sections 60CC(3)(i) and 60CC(4) – attitude to the children and to the responsibilities of parenthood demonstrated by each parent
While the mother’s attitude to the children and her capacity to properly care for them has been in question, she has been able to, nevertheless, demonstrate an appropriate attitude to the responsibilities of parenthood in that she is “thoughtful and concerned for the children’s welfare.”[83]
[83] Single expert’s report, 6 March 2012, [27].
However, the mother has failed on a number of occasions to involve the father in decisions about the children’s health. The mother took Y to see a therapist without first consulting the father. The father was also unaware of an incident where Y was taken to the hospital.[84]
[84] Father’s affidavit, sworn 14 September 2012, [2.1], [3.2] and father’s affidavit, filed 15 March 2013, annexure C, annexure P.
The father details in his affidavit occasions when he has attempted to call the mother to speak to the children or to discuss decisions relating to the children but those calls were unanswered.[85]
[85] Father’s affidavit, filed 15 March 2013, [33] to [65].
The mother has failed to continue to follow up on various forms of therapy and treatment and counselling from time to time.[86] It is unclear what the mother’s motivation was for not attending regular psychiatric follow-up. Her failure to do so, particularly in circumstances where her mental health and her ability to be the primary carer and to manage the children’s difficult behaviour are issues in this litigation, reflects poorly on her attitude to parenthood. It represents a failure to accept the responsibilities in relation to any illness which might affect her parenting and this is a factor which weighs upon my determination.
[86] Single expert’s report, 20 June 2012, [5].
The mother’s failure to involve the father in decisions about the children’s health and her failure to inform the father about matters relating to the children reflect poorly on her.
The mother asserts that the father has failed to spend as much time with the girls as he might. The father moved to the South Pacific in early 2012. Since he relocated, the children have spent time with him as follows:
a)On the last day of the final hearing in March 2012, the father spent time with the children for 4.5 hours prior to his departure from X back to the South Pacific.[87]
b)In May 2012 when the father was again in Australia for continuation of the hearing.[88]
c)From 25 September 2012 to 4 October 2012, the children visited the father in the South Pacific.[89]
[87] Father’s affidavit, sworn 2 May 2012, [1.1].
[88] Mother’s affidavit, sworn 21 August 2012, [7].
[89] Mother’s affidavit, filed 27 March 2013, [2].
The father did not see the children during the July 2012 school holidays. The children were not able to go and visit the father in the South Pacific due to a delay in the issue of their passports. The father did not come to Australia to visit the children.[90] The children also did not see the father in the 2012 Christmas school holidays.[91]
[90] Mother’s affidavit, sworn 21 August 2012, [7].
[91] Mother’s affidavit, filed 27 March 2013, [6].
I cannot form any definite conclusion about the father’s actions in this regard. I do not doubt that he has been under relatively significant financial pressure and this, to some extent, explains, but does not excuse, his failure to spend some time with the girls when he might have been able to do so.
The father has maintained a level of child support but the evidence during the trial was that there were arrears[92], notwithstanding the father’s significant income and that he must have known the proceedings were approaching. His inability to contribute in accordance with what appears to be a fairly significant salary is indicative of a lack of financial discipline - if not of responsibility.
[92] Mother’s affidavit, filed 27 March 2013, [12] and annexure B.
There is no suggestion that the mother has not marshalled whatever resources were available for her to enable the children to have as good and as effective a life as they might on a physical level.
The single expert examined the possibilities for the girls in being separated from one or either parent and concluded it would seem that they would be better off being with their father, at least in the short term. He thought that would have less of a psychological impact than their not being able to live with their father.
Section 60CC(3)(j) – any family violence involving the children or a member of the children’s family
I have discussed this above and have nothing further to add.
Section 60CC(3)(k) – any family violence order that applies to the children or a member of the children’s family
This is not relevant to this matter.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is also necessary for me to take account of what orders would be less likely to promote further litigation in the future. Given the somewhat vexed history of this litigation, it is hard to imagine that there could be any guarantee that there would not be further proceedings at some point.
However, at present there are some matters in the future which are more predictable than others. The first is that at the moment the South Pacific proposal has a finite ending. This means that if the children are removed from the environment in which they have been living for some time, and their friends, and their schools, and their mother, and translated to the South Pacific, it may be a relatively short period before they are again disrupted and possibly returned to X or, if the father should find employment somewhere else, possibly move to another place.
It is fair to comment that the mother’s future is to some extent also uncertain given the comments about far north Queensland.
However, I can only make a decision on the basis of the evidence before me. That evidence is that the father currently lives in the South Pacific and the mother in southern New South Wales. I have found that it is unlikely the mother will relocate from X.
Section 60CC(3)(m) – any other fact or circumstance the Court thinks is relevant
There is no other fact or circumstance relevant to my decision.
Parenting orders
With whom the children shall live
This matter has caused me considerable concern. On the one hand an objective consideration of the matters set out above might suggest (particularly if emphasis were placed upon the mother’s alleged deficits) that the children’s best interests might be better served by their living with their father. On the other hand, I am conscious that the father has not had the same time with the children and that, accordingly, any deficits he has as a parent may not have been as exposed.
On a line by line comparison of the parties pursuant to the provisions of s 60CC, it would be reasonable to say that there were more factors militating against the children's staying with the mother than with the father. However, this in part is misleading. No one factor (for example the mother's mental health or the possibility of a relapse from that) can be said, in itself, to constitute a basis for saying that an order that the children live with the mother would pose an unacceptable risk for the children.
This raises the question of whether the combination of these matters suggests that there would be an unacceptable risk if an order were made that the children live primarily with the mother. I could not be confident in coming to that conclusion based on the analysis of the evidence set out above.
There remain a number of factors which require comment.
The first is the children’s views. For the reasons outlined above I do not accept that the children have expressed unequivocal views about whether they wanted to live in the South Pacific or in southern New South Wales. Even if they had expressed such views, it is difficult to give a great deal of weight to those views as they have changed frequently throughout the course of the proceedings and the single expert indicated that the children’s expressed preference (at one point) to live in the South Pacific was likely influenced by exposure to the excitement of packing and relocating in the father’s household.
The second matter is Y's relationship with her mother, which has been difficult and stormy. In this regard the mother's conduct towards Y, particularly involving her in the scarf incident, fell short of what might be expected of a responsible and loving parent. However, accepting (as I do) that Y said to her mother after one such altercation "I like you, I don't have to like you, but I do like you" (or words to that effect) illustrates both the resilience and complexity of the relationship and goes some way towards demonstrating that there is enough fine weather between the storms in the relationship to provide a positive outcome for Y.
Another factor that has weighed heavily upon my considerations is the uncertainty associated with the father's future and where he might live with the children after the time in the South Pacific (if the children were to live primarily with him). To move the children from their settled environment which they have lived for some time to an uncertain environment with their father would require evidence that they would be better off with their father to the extent that the uncertainty and the disruption would be overcome.
In this context, the mother's future is also uncertain but I accept her evidence that she proposes to remain indefinitely in X for the benefit of the children. I cannot be certain that she will not attempt to move out of the X area once these proceedings have been completed. I cannot be certain that the husband will return to the X area once he has completed his posting in the South Pacific. He has indicated that he intends to move back to the southern New South Wales area, but that his move would depend on the work available.[93]
[93] Father’s affidavit, filed 13 March 2012, [1.10].
In some respects after the next eighteen months have been completed, if both parents were living in X a return to the shared parenting arrangement that previously existed may well fulfil many of the requirements for the children's best interests. However, this is both impossible to mandate on my part and equally impossible to confidently expect.
While there has been understandably a significant emphasis on the mother's difficulties with her mental health, it was particularly disturbing to me that the father, having been fully apprised of Mr C's previous activities, was not more vigilant in his protection of the children. While Mr C is no longer a concern personally, the father's reaction remains of concern.
The change from southern New South Wales to the South Pacific would also immerse the children in not only a change of geography but also many other changes including schooling, friends and family. The children have had little opportunity to live in such an environment and any negatives that may flow from it have not had an opportunity to arise. That is not to suggest that they must arise in the future but rather to explain why, in some respects, it is easier to comment on the mother's deficits. Of countervailing significance is that the girls reported over a period that there father was not as involved with them as they had hoped or expected.
I am conscious of the fact that the father chose to move to the South Pacific, away from the children. This in part was reasonably motivated by his desire to provide better for his families. Nevertheless, in circumstances where he was expressing concerns about the children being with the mother, this was a deliberate decision and he could not be certain that the children would ultimately be living with him.
In addition, his financial contributions have not been satisfactory. Of more concern perhaps is the children’s expressed views that when they are with him, they do not have his attention or commitment. As well, I am not satisfied that he has taken all the opportunities available to him to spend time with the children.
On balance, these factors would lead me to conclude that given that the father will, on his evidence at least, be returning to X in a maximum of 18 months’ time, to move the children to live with him at this point would be an unnecessary and unreasonable disruption of their established lives. I am not satisfied that disruption is outweighed by any detriment to the children in remaining in X with the mother.
In the end, the process of making a decision in this matter is to some extent an “intuitive synthesis”. It cannot be said that there is any one factor which necessarily outweighs any other. At some point a comparison of the respective circumstances of the parties and their proposals must end and a decision made.
In this instance, in my opinion, the children’s best interests would be served by their remaining with their mother in X.
Parental responsibility
Neither parent sought that there should be an order for equal shared parental responsibility. After considering the matters set out above about what might be in the girls’ best interest, I am satisfied that the presumption of equal shared parental responsibility is rebutted. The geography, the history of conflict between the parents and their inability to cooperate with each other demonstrate that the children would best benefit from one parent having parental responsibility. That parent should be the parent with whom the children live, in this case, the mother.
Notwithstanding that the mother has sole parental responsibility, it is important that she share information and facilitate the acquisition of information by the father.
If the parents ever returned to a situation where they were sharing the time the children spent with them, then it would be appropriate that there should be an equal sharing of parental responsibility.
Time spent with father
It would also be in their best interests to be able to spend as much time with their father as possible in the South Pacific before he leaves that region. In my opinion, it should include the whole of the 2013 end of year school holidays and, if the father should remain in the South Pacific after the end of the school year in 2014, the whole of the 2014 end of year school holidays as well. This will provide the children time to be a part of the father’s life in the South Pacific for an extended period. I note this is not the order precisely sought by either parent, but it is within the ambit of their respective applications.
If the children spend the whole of the end of year holidays in the South Pacific in 2013 and 2014, they will necessarily spend Christmas for the next two years in the South Pacific. This in part presupposes that the father will be in the South Pacific after December 2014 - and he may not be. Common sense would dictate that if the father was no longer in the South Pacific after December 2014 that the children would spend some part of their Christmas holidays with their mother in the 2014/2015 period.
I also make an order for the children to spend ten days with the father during the first and second term holidays. This was the application of each parent if the children were to live with him or her.
Neither parent sought particular orders about other forms of communication between the father and the children but I propose to make a permissive order which would encourage the parents to communicate with the children when they are not with them by telephone or by Skype or by Face Time.
I do not propose to impose any injunction in relation to Mr C. That is no longer an issue.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 10 July 2013.
Legal Associate:
Date: 10 July 2013
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Family Law
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Evidence
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