Webster and Cody (No 2)
[2012] FamCA 638
FAMILY COURT OF AUSTRALIA
| WEBSTER & CODY (NO. 2) | [2012] FamCA 638 |
| FAMILY LAW - CHILDREN – Where an application by father for children to relocate to the United States is dismissed – Children’s best interests – Expert evidence – Orders for the children to live with the mother – Where a child has a poor relationship with the father - Where regular holiday time is ordered for the children to spend time with the father on a graduated basis – Parental responsibility - Where there is poor communication between the parties – Where each parent is to have parental responsibility but that it need not be exercised jointly - Where the mother has sole parental responsibility in the relation to decisions about the children’s education. |
| Family Law Act 1975 (Cth) ss 60AA, 60B, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA |
| Goode & Goode (2006) FLC 93-286. |
| APPLICANT: | Mr Webster |
| RESPONDENT: | Ms Cody |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 1571 | of | 2010 |
| DATE DELIVERED: | 27 August 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 13-17 February 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kearney |
| SOLICITOR FOR THE APPLICANT: | Meyer Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Levy |
| SOLICITOR FOR THE RESPONDENT: | York Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That excluding orders made by this Court on 20 March 2012, all prior parenting orders in relation to the children T born … February 1998 and L born … July 2000 (“the children”) are discharged.
That the children live with the mother.
That the children spend time with the father as follows:
(a)in Australia for at least one week during the school holidays at the end of Term 3 2012, between 9.00 am and 6.00 pm each day, together with three periods of overnight time but not being consecutive days unless requested by the children;
(b)unless by 29 August 2012 different dates are agreed, the father shall spend time with the children at the end of Term 3 2012 from and including 21 September 2012 and 28 September 2012 with the father to collect and return the children at the mother’s home;
(c)during the Christmas 2012/2013 holidays from 23 December 2012 until 14 January 2013 in Town V in the United States and to implement this order:
(i)the mother and children shall depart Sydney for Los Angeles by air no later than Thursday, 20 December 2012, and
(ii)the children leave Town V on 14 January 2013;
(d)during that period:
(i)the children spend time with the father for the first five (5) days and nights starting at 10.00 am on the first day (23 December 2012) and conclude at 6.00 pm on the last day (28 December 2012);
(ii)the children spend time with the mother from 6.00 pm on 28 December 2012 until 6.00 pm on 30 December 2012;
(iii)the children spend time with the father for the next seven (7) days and nights starting at 6.00 pm on 30 December 2012 and concluding at 6.00 pm on 7 January 2013;
(iv)the children spend time with the mother from 6.00 pm on 7 January 2013 until 6.00 pm on 9 January 2013; and
(v)the children spend time with the father from 6.00 pm on 9 January 2013 for five (5) nights which will conclude at 6.00 pm on 14 January 2013.
(e)during the school holidays starting at the end of Term 1 2013, for a period of not less than seven (7) days and not more than 14 days as agreed one (1) month before the start of the school holiday but if not agreed, then from 11 April 2013 to 20 April 2013, either in Sydney or in Hawaii as the parties may agree but if the parties have not agreed by one (1) month before the start of the holiday then in Sydney, such time to be overnight and:
(i)if in Sydney, the father to collect the children from the mother’s home at 9.00 am on the first day and return them to the mother’s home at 8.00 pm on the final day;
(ii)if in Hawaii, the mother to fly the children to Hawaii unless she and the father agree in writing that the children may travel unaccompanied, and if the former then the mother to deliver the children to the father’s hotel or residence as previously advised by the father to the mother, by not later than three (3) hours after the time of arrival notified by the father to the mother, and if the latter then the father meet the children at the airport.
(f)during the school holidays starting at the end of Term 3 2013, as in accordance with Order 3(e), but from 19 September 2013 to 28 September 2013;
(g)during the Christmas 2013/2014 school holidays in Town V in the United States for three weeks commencing 27 December 2013 (when the mother and children shall depart Australia) with the children to be delivered by the mother to the father at his residence in Town V in the United States no later than 10.00 am on 30 December 2013 with the father to return the children to the mother at an address no further than two (2) hours drive from Town V ten (10) days later and return to the father two (2) days later for a further ten (10) days;
(h)from the commencement of the end of Term 1 2014 and each year thereafter:
(i)during the school holidays, not less than twice each year in Australia or Hawaii, as the parties may agree not less than two (2) months before the end of term, and if not agreed then in Sydney, for not more than two weeks in each period with the same provisions as to overnight, collection and delivery of the children and times for such collection and delivery as set out in Order 3(b);
(ii)during the Christmas school holidays in 2014/2015, for a period of four (4) weeks in the United States as the parties agree in writing not less than two (2) months before the end of term, and if not agreed, then in Town V in the United States, such period to include Christmas Day in 2014 and thereafter in alternate years, provided that the period of time that the children spend with the father cease at least seven (7) days before the start of the school term in the following year;
(iii)for 2015/2016, for a period of not less than four (4) weeks in the United States in accordance with Order 3(h)(i), but not to include Christmas Day;
(iv)unless the parties agree otherwise in writing by not less than one (1) month before the start of any Christmas vacation, the mother to fly with the children to the United States and they shall be returned to her in accordance with Order 3(g).
(i)for all travel of the children outside Australia to spend time with the father, he shall pay their return economy airfares and accommodation expenses whilst in the United States and the mother shall pay and be responsible for her own travel costs and accommodation whilst in the United States.
That the father shall ensure the mother is kept informed as soon as is reasonably practicable of any significant medical problems or illness suffered by either child while in his care.
That the mother shall ensure the father is kept informed as soon as is reasonably practicable of any significant medical problems or illness suffered by either child while in her care.
That the mother and father are restrained from discussing these proceedings with the children, within their presence or within their hearing and ensure as far as possible that no person other than the Independent Children’s Lawyer, the family therapist or T’s child analyst discusses these proceedings with either child, or within their presence or hearing.
That the Independent Children’s Lawyer explain the orders to the children and include the mother (with which the mother agrees) in that explanation to the extent that the Independent Children’s Lawyer considers appropriate.
That the mother and father are restrained from showing either child transcripts, affidavits, reasons for judgments, applications or reports prepared for the purpose of these proceedings and any material annexed or exhibited thereto.
That the mother and father are restrained from criticising or speaking badly of the other parent or their family in the presence of or the hearing of either child.
That both the father and mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or a member of the other parent’s family either to or in the presence of either child.
That each of the mother and the father provide to the other his or her mobile and landline telephone numbers.
That each of the mother and father give the child access to his or her mobile telephone and landline or provide the children with their own mobile telephone(s) so that the children are able to communicate with the other parent.
That if the father is in Australia the mother must advise him of special school events (including parent evenings and the like) which the school may schedule that the children attend, such notification to be no less than three (3) days before such events.
That the mother and father notify the other not later than seven (7) days PRIOR to any change to their address, landline telephone number, mobile telephone number, email address, facsimile number or postal address including the details of such new address or number.
That liberty to all parties to relist on short notice at first instance before Justice Ryan if possible in relation to the implementation of these orders.
That the children communicate with each party at all reasonable times when they are not in that party’s care by telephone as agreed and, failing agreement, once a week between 7.00 am to 8.00 am Sydney time on Saturday if the children are in Australia or 6.00 pm to 7.00 pm EST on Sunday if the children are in the United States.
That in relation to telephone contact and Order 16 above, if a child or the children is unavailable or does not wish to take or accept a call, the party in whose care the children then are, is not required to have the children rearrange their commitments or receive or make a telephone call against the child’s wishes.
That the mother has sole parental responsibility in the relation to decisions about the children’s education.
That pursuant to s 65DA(2) and s 62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Webster & Cody (No. 2) 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 SYDNEY |
FILE NUMBER: SYC 1571 of 2010
| Mr Webster |
Applicant
And
| Ms Cody |
Respondent
REASONS FOR JUDGMENT
On 20 March 2012 I made interim parenting orders, the primary purpose of which was to enable the parties’ two children to spend time with their father, Mr Webster (“the father”), in Australia during the then looming Easter school holidays. In relation to those orders, reasons were published simultaneously. In addition to Easter school holiday arrangements, my reasons touched upon the manner in which the father’s primary application that the children live with him in the United States (“the States”) would be determined. In those reasons, the parties were informed that the application would not be granted and thus, the children would continue to live with their mother, Ms Cody (“the mother”) in Australia. Time constraints made it impossible to address more than what was to occur at Easter 2012 and enable the parties to commence family therapy informed about the outcome of the father’s relocation application.
These reasons address the other matters that arose during the hearing, as well as disposition of the father’s primary application. They should be read in conjunction with my reasons for judgment delivered 20 March 2012.
Background facts
The father was born in 1958 in the United States and is a US citizen.
The mother was born in 1959 in Australia. She is an Australian citizen.
In 1986, with each party having earlier moved to the United Kingdom (“the UK”), the parties met and by late 1986 they had commenced a personal relationship.
T, who is the elder of the parties’ two children, was born in the UK in February 1998.
The parties married in Australia in April 1998 and returned to live in the UK. They agreed that the mother would primarily care for their children and the father would be the primary income earner. He held a senior position with a firm in the city. Although most domestic work was undertaken by staff, from birth, the mother was primarily and overwhelmingly responsible for T’s care. From the beginning, the father loved T and felt extremely close to him. To the extent that his employment permitted, he was actively involved in T’s life.
L was born in July 2000 in the UK. She was an unsettled baby, and in addition to a full-time nanny, the parties had assistance from a maternity nurse. Although the father was no less involved in L’s care than he had been with T, the father explained that he did not have the same opportunity for involvement with L as he had with T.
In July 2001, the parties separated. T was three and a half years old and L was 12 months.
Litigation in the High Court of Justice ensued, which relevant to the children, centred on the mother’s application that she be given permission to permanently remove the children to Australia.
After he took legal advice with deep sadness and ongoing regret the father agreed that the mother could relocate the children to Australia. He knew that this “meant a great diminution in my relationship with them” but believed he had no realistic alternative. This was a considered decision and any suggestion that his decision constitutes proof that he prioritises his career and interests ahead of the children’s is firmly rejected. Rather, this was a heartfelt decision which recognised that the children were primarily attached to the mother and should live with her in an environment where her parenting capacity would be maximised. It is my view that the father’s decision evidences his great commitment to the children’s and mother’s emotional and psychological well-being and one where he undoubtedly sacrificed in their interests, his own desires and needs as a parent. As will become apparent, both parties underestimated the impact of this decision on the children’s relationship with the father and what would be asked of them all if meaningful father and child relationships were to be maintained and developed.
There is no doubt that in the UK the mother struggled emotionally in relation to which she saw a psychologist, voluntarily attended a Medical Clinic and engaged in intense therapy (which it is inferred is psychotherapy), every day for a period prior to T’s birth. In the UK she was very lonely and depressed, and on one occasion the mother overdosed. Lest it be thought that these difficulties first arose after she started to live with the father, her history of depression and an eating disorder were apparent before she moved to the UK. Nonetheless, there is a little reason to doubt that the father’s judgment that the mother’s parenting capacity was inextricably linked to her emotional and psychological wellbeing which, in turn, would be maximised if she returned to Australia where she had family support, was sound.
So that it is clear, the mother had permanent residence in the U K and had she wanted to, she was able to live there (with the children) indefinitely. Nor is it accepted that the mother’s desire to return to Australia arose out of the father’s proposal that he return to live in the States. His decision to return to the States to live was made some years after the mother moved to Australia with the children.
The parties divorced in December 2001.
Parenting orders were made by consent in the High Court (UK) on 20 February 2002. The orders are set out below:
Upon it being agreed as follows:
(1)The Petitioner [the mother] will leave the United Kingdom for Australia in early May;
(2)The parties shall agree upon the schools in Australia that the children shall attend: it being recorded that the Petitioner’s current proposals are that both shall initially attend [O School] or [U School] and that [T] shall proceed to [K School] and [L] shall proceed to [I School];
(3)The Respondent [the father] will pay business class fares for all travel referable to the children’s contact; the children, if not accompanied by the Respondent, shall travel on an airline to be agreed between the parties; and until such times as it has been agreed that the children shall travel without either parent, the Respondent’s liability for fares shall include payment for the travelling costs of the Petitioner or another responsible adult whose identity shall have been agreed between the parties;
(4)The parties will work together during the children’s minorities to maintain current passports for them from Australia, the United States and the United Kingdom.
By Consent It Is Ordered That:
(1)The 2 children of the family [the children] shall reside with the Petitioner.
(2)The petitioner be at liberty permanently to remove from the United Kingdom to Australia the 2 children of [the children].
(3)Contact during 2002 …shall be as follows:
a. After the 27 March 2002, the Respondent may take [the children] accompanied by their nanny, on a holiday to South Carolina for 2½ weeks;
b. In August 2002 (during the (Australian) winter school holidays) the parties will meet in a location to be agreed for between 2 and 3 weeks for the purpose of a shared holiday (the expense of which will be borne by the Respondent);
c. At Christmas 2002:
i the Respondent (who will travel to Australia for this purpose) shall have contact for part of Christmas day; and
ii the parties will plan for the Respondent to take away [T] and (if their nanny is available) [L] for up to 2 weeks.
(4)Contact thereafter
After the expiry of the children’s holidays in January 2003 (which are provided for above), the arrangements for contact shall be as follows:
a. For 2 periods of up to 3 weeks Respondent shall have contact with the 2 children in the United States or in Europe or elsewhere by agreement: for these trips the children shall be accompanied by the Petitioner or another responsible adult whose identity shall have been agreed between the parties, until the parties agree that they are old enough to travel unaccompanied;
b. For 1 additional period of up to 3 weeks the Respondent may have contact either in or out of Australia, but on the basis that the Respondent will be personally responsible for the children’s travel arrangements and himself accompanies the children;
c. The Respondent may have contact with the children for part of each Christmas day; but such contact shall (unless and until the parties otherwise agree) take place in Australia;
d. The Respondent shall have the facility to have additional visiting (or staying) contact to the children in Australia as frequently as may be arranged; provided that the Respondent shall give reasonable notice to the Petitioner of his intention to take up such contact;
e. Such additional contact as the parties shall agree.
(5)Each party do pay his/her own costs of this application.
In accordance with Order 3(a), in April 2002, the father took T to the States (accompanied by T’s nanny) for 2 and a half weeks. At that time the parties were agreed that L was too young to make the journey. The father and T visited Disney World and H Island an island off the American Atlantic Coast. It is a place of fond memories for the father, where his parents owned a holiday home and where he now owns two properties. On the children’s trips to the States more often than not time was spent at the island. There is no doubt that the island is a special place for the father and his family and could be for the children.
The mother and children left the UK for Australia on 30 April 2002 where they have lived in Australia ever since.
The father met his wife Ms J in May 2002.
In August 2002 the parties met in Hawaii (in accordance with Order 3(b)). This was a resort holiday attended by the children, the parties and their babysitter. It would appear that this trip went well in relation to which the parties adjusted the children’s time with the father in accordance with the children’s needs. Unfortunately, this was the last occasion that the mother accompanied the children abroad to see their father. In circumstances where, for other purposes, she and the children travel abroad together, there is no doubt that more could have been done by her to make it easier for the children to spend time with their father in the States.
Challenged by Dr W about her failure to travel with the children the mother simply pointed out that she had her own life. While this is true, following T’s birth she has not had paid employment, received a large property settlement and very significant child support. There is little doubt that she could and should have accompanied the children on their journeys to the States to see the father, at least, until that long distance arrangement was working well for both children. Had she done so, this would have lessened the severity of the impact for her and the children of regular long separations as factors have subsequently caused enormous difficulty.
In any event, in February 2003, the father visited the children in Australia for four days. T accompanied him back to the States and returned two weeks later. On return, the father remained for three days, during which both children stayed with him in accommodation arranged by the mother near her home.
After a defended hearing, property and maintenance orders were made in the High Court (UK) on 18 March 2003. In general terms, the mother received 40 per cent of the matrimonial property, which equated to US $8.635 million. Calculated on the basis that the father was ordered to pay 60 per cent of the children’s maintenance costs, Order 13 provided as follows:
i)From 1st March 2003 the Respondent do pay to the Petitioner for the benefit of [the children], periodical payments at the rate of A$40,000 per annum per child payable quarterly in advance until they shall respectively attain the age of 18 years or complete tertiary education whichever shall be the later or further order;
ii)As from the date each child ceases secondary education the Respondent may discharge his obligation under (a) above by paying two thirds to the child direct and one third to the Petitioner; and
iii)The rate of periodical payments ordered under (a) shall be varied on 1st March of each year by reference to the movement in the Australian retail price index for the then most recent available 12 month period.
Thereafter, and until June 2008, the father paid $442,691.00 child maintenance. As was mentioned in the first judgment, on the spurious basis that he was unable to afford child maintenance at that level, he reduced his then maintenance payment from the $91,932.00 per annum he was obliged to pay to $40,000.00 per annum. This was no more than a tit-for-tat response to what he viewed as the mother’s persistent lack of cooperation and support for the children’s relationship with him and his belief that child support had become excessive.
On only a few days notice, the father arrived in Australia, from the UK, in early April 2003. Although the mother had arrangements in place for the children, these were appropriately rearranged to enable the children to spend two days with him. As the years have passed the mother has been less accommodating and increasingly unwilling to alter the children’s commitments in order to facilitate time with the father. Although in relation to most instances when this has occurred, the father views this as further evidence of her lack of regard for the children’s relationship with him, it is accepted, particularly after Dr P’s report issued in June 2008, that it was also beneficial for the children to have him participate in their activities. The point being, a balanced approach was required and, as the children matured, proper regard needed to be had to commitments which they viewed as important.
Between 5 and 21 July 2003 T spent time with the father and Ms J at H Island. For this trip, T’s nanny (Ms E) travelled with him. Again, the parties agreed that L should not make the journey.
The mother needed to be in Europe during the latter part of 2003. She offered to take the children, so that from 19 – 30 September (accompanied by their nanny) they could be with the father. She and L would then return to Australia whereas T would remain with the father until 6 October 2003, when accompanied by his nanny, he would return to Australia. This was an appropriate and child-focussed arrangement which regrettably the father rejected. So that it is clear, the mother’s proposal was not an offer of additional time, but in substitution for time later that year.
T travelled again to the States between 19 September 2003 and 11 October 2003. On this occasion he was accompanied by his then nanny, Ms N. On his return, T was unsettled, quiet and unresponsive. For about one week he had nightmares two or three times a night. Although she was disturbed by T’s unsettled behaviour, unfortunately the mother did not seek advice from a health professional or inform the father. This is not intended to be critical of the mother. However, there is no doubt that there were signs that T was struggling which went undetected.
T (but not L) next spent time with the father between 1 January 2004 and 21 January 2004. He was accompanied by his then nanny, Ms A, with the majority of this trip spent at H Island.
Both children, in L’s case for the first time, spent time with the father in the States between mid June 2004 and early July 2004. On this occasion, their then nanny, Ms C, travelled with them. For the first week, she remained with the children and the father and, it would appear, once they were settled she had time to herself before meeting the children in Los Angeles for the return flight. During this trip, L accidentally hit T with a golf club. He suffered delayed concussion and was ill on the flight home. Regrettably, the father did not tell the mother as a consequence of which she obtained medical assistance without being informed about steps he had taken or an adult’s account of what occurred.
L turned four the day after she returned from the States. Both children were unsettled and for several nights following their return, neither would sleep in their room. L slept with the mother and T slept on a fold-up bed in her room. For the first time, T, who was then six, told the mother that he hated his father and did not want to visit the States again. The mother did not inform the father or seek advice about how she should deal with this situation.
The father and Ms J spent time with the children in Australia between 4 and 16 October 2004 in accommodation arranged by the mother nearby. This was partly time during which the father was able to take T to school. Again, on his return, T was teary, said he hated his father and insisted on sleeping in the mother’s bedroom. Again, this information was not relayed to the father nor was advice sought by the mother.
The children next spent time with the father between 27 December 2004 and 22 January 2005 in the States. On this trip they were accompanied by L’s preschool teacher. By now it will be apparent that in the mother’s home nannies changed frequently and that the accompanying nanny was unlikely to be someone with whom the children had strong relationship. The point being, these were not people likely to have the depth of relationship and understanding to help the children as they coped with the long journey and being away from their primary carer for reasonably long periods. In any event, for the latter part of this holiday, the father took the children skiing. The mother arranged to ski at Aspen and proposed that the children spend an additional week with the father. In the event, he was unable to take the children for the longer period. A dispute arose about where and at what time the father would return the children, the details of which need not be discussed. Suffice to say there was merit in each party’s proposal. It would appear that when changeover took place, tensions between the parties were heightened and changeover occurred without conversation. When the children saw the mother they ran to her, in L’s case crying. There can be little doubt that the children’s response shows that they were acutely aware of the tensions which by then existed between their parents and the totality of the arrangements in relation to spending time with the father (and away from the mother) were troubling for the children. Lest it be thought that this is an implied criticism of the father’s parenting capacity or his care of the children, these remarks are intended to convey no more than the children were obviously struggling with the situation in relation to which steps to alleviate their stressors should have been taken.
The next trip occurred between 1 and 20 July 2005 when, accompanied by their Deputy Principal and L’s teacher, the children visited the father in the States. There is no doubt that the total journey is long and tiring. On this occasion, the children flew from Sydney to Los Angeles where they changed planes. They then flew to New York where the father met them. From New York they drove 12 hours to H Island. It comes as no surprise that both parties gave evidence about the children being unsettled before departure and upon arrival. The father viewed this as a “transition” issue which is not dissimilar to the mother’s then opinion. Regrettably, communication between the parties was poor and information which should have been shared about the children and how they were coping was withheld.
Notwithstanding the poor communication between the parties, from Australia the children spoke with the father on average three times a week. Commonly, this involved calls placed by the father to the children and, if they were unavailable, the mother helping them to return his call. Curiously, the mother was frustrated and complained if the first call went unanswered the father made follow up telephone calls. While she may have found the number of calls tedious, they were no more than a genuine and reasonable attempt by the father to maintain regular contact with the children. Her irritation was apparent to the children and did nothing to make it easy for them to maintain and develop good relationships with their father. Indeed this is a simple vignette of the conflicted messages the children received from the mother about the father. In other words, she helped the children telephone the father while simultaneously complaining about it.
In any event, at about the same time (mid 2005) the father advised the mother that he and Ms J were to be married in September 2005. As the mother correctly observed in an email dated 16 August 2005, this was an important time and required adjustment by the children to their father’s changed circumstances. That email is part of a series which passed between the parties in relation to arrangements for the children to attend the father’s wedding. Unfortunately, correspondence which started respectfully and included an offer by the mother to accompany the children for the period 20 September 2005 – 6 October 2005, descended into recriminations. Once the father rejected her offer the situation deteriorated with both nonetheless in stated agreement that the other needed to co-operate to ensure that the children had positive relationships with both parents. This was against the father’s refrain that the mother needed to do more to support his relationship with the children and, for the first time, complaint from her that she was:
… extremely disappointed that I am hearing frequent negative comments about me from the children following their visits to you and your family. This is very upsetting for them and of course are untrue. I am not prepared to accept a continuation of this unfounded and destructive behaviour. I am their mother, this will never change, and this will always be their home.
The mother’s remarks have the flavour of being a defensive response to the formal inclusion of a step-mother in the children’s lives. At the same time, the mother wrongly claimed that the orders required that the father accompany the children when they travelled to see him. So that it is clear, although this scenario is addressed in the orders, it was not a requirement. Nor was the mother obliged to travel with them. In any event, the father proposed that Ms J would collect and return the children from Sydney. In relation to this proposal, the mother wrongly stated “I have every right under the court order not to agree to this arrangement as it clearly states that it is you who is meant to be accompanying the children. As you constantly suggest that you have no formal employment it seems strange that you cannot find the time to pick up your own children”. From the time the parties separated until now the mother has had constant and obviously reliable legal advice, it is not accepted that she was unaware about the effect of the orders and the erroneous nature of this statement. Rather, these remarks reflect her strongly held view, that the father’s failure to travel is indicative of his lack of commitment to the children. Her views have been adopted by the children; not by osmosis but because the mother has basically persuaded them to accept her way of thinking.
As will be discussed later, in relation to the mother, there is no doubt that she has discussed with the children actions by the father which she views as inimical to him meeting his parental responsibilities (for example, notwithstanding that she could readily afford private school fees, once the father stopped paying child support, telling them they may not be able to continue to attend schools which it is agreed they love).
In a similar vein, from discussions with Dr W, it is clear that the children are aware of the father and Ms J’s unflattering opinions of their mother. In circumstances where it is accepted that the father and Ms J have not shared their views about the mother with the children, a question arises about how the children know what they think. The parties agree albeit, considered it to be unlikely, that the children may have overheard adult conversations without the adults being aware that the children were within earshot. In circumstances where the father and Ms J have shared their critical opinions about the mother with her, it is no less likely that she is the source of their knowledge. Indeed, the mother acknowledged that the children saw her tears and distress following contact with the father and that it is likely they heard her discussing such matters with family and friends. For the avoidance of doubt, I am satisfied that the children heard from the mother the unpleasant things said by the father and Ms J about her. I am less certain but consider it reasonably likely that while spending time with the father, through inadvertence by the adults, they also overheard unpleasant comments about the mother. Although it is not possible to discern when it was that the children were burdened in this way, the unpleasant changeover half way between where the children were skiing and Aspen can have left them in no doubt about their parents’ antipathy for each other. As will be discussed further, this knowledge has been burdensome for the children and contributed in a real way to their opposition towards their father.
It is accepted that the children greatly enjoyed their role in the father and Ms J’s wedding, with T notably able to make an impromptu speech a theme of which was his love for his father. There is no evidence that either child was unhappy or troubled on their return to Australia. It is inferred they were not, which in turn lends strong support to the father’s evidence that for the children this trip went well. As was mentioned earlier the mother’s specific reference in her August 2005 email about her status as the children’s mother suggests that she may have been quietly concerned that the father might seek to diminish her significance by reference to the children’s new stepmother. Had the father and his wife mishandled her position this would have been apparently quite early on. Simply put, there has never been an issue about this for the children and it is accepted that notwithstanding the mother’s concerns, the father and his wife handled the issue well.
Towards the end of 2005 the father returned to live in the States where he has lived ever since.
The father requested that the children join him in the States skiing during the 2005/2006 Christmas school holidays. By email dated 21 November 2005 the mother correctly observed that during that year the children had made three trips to see the father in the States, which were tiring and, given their ages, she suggested that the father spend time with the children for two weeks commencing 3.00 pm Christmas Day. The children were then seven and a half and five. The mother went on to propose that for the next couple of years the father spend Christmas with the children in Australia and that from Christmas 2007, when “L will be [seven] and more and more amenable to missing Christmas with me and my family” consideration be given to alternating Christmases annually thereafter.
Although the mother’s proposal sought to establish a regime different to that which the orders provided, it was not unreasonable. Nor was the father’s rationale, expressed in his email dated 8 December 2005, for rejecting the mother’s proposal. In this regard, he pointed out “Christmas is all about family and you seem to forget that I have a family and that they are an integral and necessary part of [the children’s] life. My family and Ms J’s cannot all come to Australia (nor should they be expected to). Furthermore, as an obvious point, I do not have a house in Australia nor has my home ever been Australia”. In this email the father goes on to describe how “… skiing with [the children] is a real treat for me. I love skiing and the children love to ski as well. I consider my skiing holiday with the children to be the most enjoyable of all of the holidays (with the exception of Christmas which I have yet to have)”. The father goes on to accurately describe his and the children’s delight in snow sports and the lack of flexibility career commitments impose on him. He was clearly greatly disappointed that the mother would not accommodate the children spending this first Christmas with him and explained how important Christmas Day and Easter are to him. Nonetheless, he agreed with the mother’s essential point that “holidays should be alternated between us” but observed “they have not been as of yet”. The father set out his plan for the forthcoming year which essentially involved the children spending time with him in the States over Easter, for three weeks in June and that he would visit in September/October 2006. In any event, at the mother’s insistence, the children did not see their father in the States in the 2005/2006 Christmas holidays.
So that the point is not overlooked, the father gave evidence that the mother failed to inform him that L had been referred to Dr Y, who is a paediatrician, in relation to L’s physical development. In this respect, the father’s evidence is wrong and it is accepted that in her email dated 21 November 2005 the mother provided the father with sufficient information for him to follow up with Dr Y matters in relation to L.
For the commencement of the 2006 school year, the mother withdrew the children from P School and enrolled them at G School. The orders provided for the children to attend nominated schools which did not occur. Instead, the mother enrolled the children in P School which was geographically close to where she and the children lived and with which the father was in agreement. However, after they moved residence, P School became inconvenient and the mother decided, quite appropriately, that the children should change schools. Regrettably, she did not give the father advance notice and their enrolment at G School was completed without his imprimatur. He, however, made his own enquiries and satisfied himself that the mother’s choice of school was sound. Without demurring he continued to pay the school fees.
The father sent the mother an unpleasant email on 21 February 2006 in which he complained about the adequacy of the arrangements she made for the children to see him in the States during the forthcoming Easter break and his inability to speak with T on the child’s birthday. The mother’s response was more balanced and correctly pointed out, in effect, that the father’s father had no difficulty speaking with T and, if problems arose, they were of the father and not her making. In this regard, she is demonstrably correct.
The children spent time with the father in the States between 12 April 2006 and 1 May 2006. The mother employed an escort named Ms S to travel with them. On their return, both children told the mother that the father and his wife said “mean things” about her; that she is sick and had taken their father’s money. They also told the mother that the father and his wife “say that we should live with them”. The details of the children’s conversation with the mother are recorded at paragraph 30. As is apparent from the volume of material which includes evidence about conversations which occurred many years ago and emails of similar antiquity, the parties seem to have anticipated litigation and retained records about their communication.
On the basis that the conversation referred to in paragraph 30 purports to be a reasonably contemporaneous record of the conversation, it is notable that nowhere in that conversation does either child claim that the father and his wife made these remarks to them. The point being, at its highest, the children’s statements support a finding that they have either overheard conversations of this type or whilst in the States someone told them that these were the father and his wife’s views.
Following this trip, T’s behaviour deteriorated. He was withdrawn and, according to the mother, “was overeating obsessively”. Given the mother’s history of eating disorders if T’s eating habits changed in a concerning way, the mother would have known she needed to obtain professional assistance. That she did nothing raises some doubt about the reliability of this aspect of her evidence, particularly about whether this was a serious issue.
According to the mother, “on 27 June 2006 the children received an email from [the father] admonishing them for not sending him a birthday card for his birthday [seven] days earlier”. The email is actually an email the father sent the mother. If its contents were communicated to the children, this must have been a step taken by her. The email itself is illustrative of the deteriorating parental relationship. However, in order to appreciate the context in which it was written, other facts must be considered. On the father’s birthday, the mother arranged for the children to call him and the children sang to him for his birthday. Although the mother usually took the children to buy their father a birthday card, her father was very ill in hospital and this was overlooked. Throughout 2006 the father and children spoke about three times a week albeit, time differences often meant missed calls.
Turning then to the father’s email it is as follows:
I wanted to let you know that I am extremely upset that I did not even receive a birthday card (let alone any … from [the children]) on my birthday. While I am very happy that they actually called on my birthday and sang happy birthday on the phone, I am upset that nothing more was done. Of course the issue is not whether I got anything from [the children], the real issue is that they are not learning respect for very important principles and occasions and even worse, this applies to their father. I hope and expect that you will … this critical aspect of their lives and teach them to respect their family. While you may not feel that way about me (and that is entirely your prerogative) I am their father and I love them dearly. Furthermore, I teach them to respect you and yet you appear not to respect me in a similar manner. (Annexure “K”, mother’s affidavit)
In an attempt to address the perpetual problem of missed telephone calls, on 14 August 2006, the mother suggested to the father that:
To end the constant toing and froing it would be … have 2 designated times to speak with the children. I suggest Saturday morning between 9-10am and Wednesday evening between 7-8pm. Additionally you could provide a mobile phone for [T] and then be able to contact the children directly. (Annexure “L”, mother’s affidavit)
This suggestion was not taken up and the “toing and froing” which was clearly an irritant for both parties continued. In circumstances where the father paid very substantial child support, the mother’s comment that he provides a mobile telephone for T is arch. If this was a good idea (which it was) just as the father could have provided the mobile telephone, so too could the mother.
The father and Ms J’s son, R, was born in August 2006. A couple of weeks after R’s birth the father wrote to the mother and explained that he would not make it to Australia for the planned October 2006 trip. In essence, he and his wife understandably thought it inappropriate to leave their new born son with a nanny and, with Ms J having to return to work, it was necessary that the father remain at home. In that letter, he also set out his proposals in relation to the children’s time for the following year. Because of what occurred in relation to child support, it is useful to record the father’s comment:
As a final observation, I do not consider it fair, appropriate or equitable that I always adhere to my financial obligations to you in a timely manner and yet I cannot even get agreement from you … my contact arrangements for Christmas with [the children] after almost six months of having made the original request. (Annexure “M”, mother’s affidavit)
By her solicitor’s letter dated 11 September 2006, the mother confirmed the Christmas arrangements and observed that:
Once again, the children are extremely disappointed that you cannot make the time to travel to Australia to see them. It is not appropriate for our client to again bear the burden of the children’s disappointment at your failure to come. We ask you to explain to them the reasons why you are not coming to Australia. (Annexure “N”, mother’s affidavit)
It follows that the children would only be “extremely disappointed” if they valued their relationships with the father and were looking forward to seeing him. Were they indifferent or upset by things he said or did, “extreme disappointment” would not have been the predominant mood; indeed, indifference or antipathy would have seen the children react with relief. It is not clear how the father’s failure to make the planned trip to Australia was explained. With little effort, it could have been explained in age appropriate terms and without the unfortunate gloss contained in the 11 September 2006 correspondence.
In any event, the father was able to rearrange things so as to spend a week with the children in early November 2006. By all accounts this trip went well and, in the absence of evidence which suggests that either child was uncomfortable with the father, it is inferred that all had a nice time.
There was, by then, an issue between the parties about the mother’s desire to change the children’s schools. The UK orders required that decisions about where the children attended school were made consultatively and together. In any event, the mother proposed that T leave G School for either of B School, S School or M Preparatory School. D School or Q School were proposed for L. Notwithstanding that after the father indicated that he regarded the children’s current school as being a fine educational institution and the mother engaged her solicitor to conduct further negotiations on the topic, she withheld from the father that T was being bullied at school. Notwithstanding his clearly communicated opposition to the children changing schools the mother enrolled T at M Preparatory School and L at D School. As the name suggests, M Preparatory School does not have a senior school and for T further school change necessarily followed.
The mother’s decision to change the children’s school when and for the reasons stated by her, are matters upon which minds may legitimately differ. The father’s stated aim of stability and the opportunity for matriculation success to the finest colleges and universities in the world are obviously highly relevant considerations. The mother’s desire to settle the children into single sex well regarded private schools for their senior years was no less reasonable. In the end, that the parties were unable to agree about the children’s future schools is relevant only to the mother’s application for sole parental responsibility. It is timely to note that it was during exchanges about this issue that the father indicated that he was unable “to commit to paying all of the future private schooling needs for the children”.
There is no doubt, that by late 2006, the father and the mother agreed, albeit for different reasons, that the extant parenting arrangements were not working. With this in mind, on 15 December 2006, the father provided the mother with a detailed “joint custody proposal” which, to coincide with the commencement of the US school year, involved the children relocating from Australia to the in United States in August 2007. He proposed that the mother also relocate and that the children live with her two out of every three weeks provided that “she remains in the local area”. The father proposed that the mother “have unlimited use of a residence in the US” in relation to which he was willing to purchase a home for the mother in an area no further than ten miles from where the children would attend school. The property would comprise “a three bedroom condominium with a minimum of approximately 2,500 square foot of internal floor area” and of a higher quality than the parties’ former home in England. Provision was made for the children to regularly return to Australia and the holiday arrangements were well structured. Because the mother does not have US citizenship or permanent residence, the father understood that she would need to leave the States, albeit briefly, every three to six months. Because the children are US citizens for them those issues did not arise.
There is no doubt that the father’s proposal was made with the children’s interests in mind and had a great deal to commend itself. Self-evidently, the children would have had both parents intimately involved in their lives, the opportunity to develop close relationships with their half-brother and paternal relatives and to immerse themselves in American culture. Within the week, the mother rejected the father’s proposal. Just as she does now, the mother viewed the father’s proposal that the children move to the States as basically outrageous and designed with his and no-one else’s interests in mind. During the hearing, it was demonstrably clear that the only way the children might live in the States for even part of their minority was if a court so ordered. It is equally clear that the father’s joint custody proposal unsettled the mother and there is little doubt that for her it became a source of ongoing concern.
As planned, the children spent from 23 December 2006 to 13 January 2007 (inclusive of travel) with the father at his home in the United States. This was the first and, as events have transpired, the only Christmas Day the children have spent with the father. For this trip, the mother arranged for a student named Ms F to accompany the children. Shortly after they arrived, each child told the father that if they failed to return to the mother he would go to gaol. Both were distressed and needed their father’s assurance that they would return to their mother and he was not going to gaol.
There is an obvious temporal connection between communication to the mother of the father’s joint custody proposal and the children’s distress. Knowing the mother as he well as he does, it is difficult to understand why a week before the children were due to arrive in the States he made the proposal. The father should have known that it would not be welcomed by the mother and would heighten her anxiety and probably also the tension between them. Notwithstanding the inherent merits of the proposal its timing constitutes a lack of judgment by the father. Had he delayed making the proposal until after the children had returned to the mother, there would have been no risk that they would have learned about it. Unfortunately, in relation to both parents, it is apparent this issue was handled poorly.
At the commencement of 2007 school year, T started Year 4 at M Preparatory School. Although the reasons for decision which supported the 2003 UK orders stated that the father would pay the children’s education expenses until the conclusion of full-time tertiary education, this was omitted from the orders. Opportunistically the father decided that he would no longer pay school fees unless he agreed about the school. Thus, he stopped paying T’s school fees. Although the mother was irritated about doing so, she was readily able to afford to pay. For no reason associated with the children’s welfare the mother told them that the father had reduced his financial support.
In March 2007, the mother formally proposed that L leave G School for D School. The father refused. Nonetheless, the mother made arrangements so that in 2009 L would do so.
In any event, negotiations continued between the parties, in the father’s case undertaken by him and, in relation to the mother, through her solicitors. By then she had decided that she was unable to communicate with the father and thus, to his dismay and irritation attempts by him to engage her in discussion failed and his correspondence was routinely answered by her solicitor. In a similar vein, within the mother’s home the children saw that she refused to speak with the father in relation to which the mother demonstrated as clearly as possible that her approach was acceptable. There is little doubt that this contributed to the children’s subsequent refusal to talk to their father. Simply put, in this respect ultimately they mimicked their mother.
Accompanied by a student named Ms X, the children who were then 9 and 7 spent three weeks in the States with the father in June and July 2007. They spent time at his home, at H Island and visited Disneyland. From the father’s perspective this visit went well and, according to the mother, it was three or four weeks after the children returned home before anything which might cause concern arose.
In August 2007, T made comments to the mother along the lines “[h]e pretends I’m not there. I feel ignored”. She thought T was distressed and spoke with his teacher (but not the father) whose recommendation that T see the school counsellor she implemented. By then, the father informed the mother that he would be unable to make the planned October 2007 trip to Australia. By October 2007, both children were saying they did not want to see their father in the States and questioning why he did not see them in Australia. Nonetheless, the mother maintained that the father “should assume the burden of travel once a year to see the children as well as the benefit that entails his relationship with the children in seeing them in their own environment” and “our client advises that the children are enjoying their holidays with your client whilst he is on holiday”. Her point being, that long periods in the States during which the father worked would be of little benefit.
An impasse having been reached the parties sensibly consulted a counsellor. The mother attended in person and the father by telephone. It would appear that the counselling did not involve joint sessions and nothing fruitful was achieved.
Although the father perceives that it is significant that the children happily travelled with the mother to Europe during 2007, in relation to the matters under consideration, this is irrelevant.
It is the mother’s evidence that during the latter quarter of 2007 both children started to say they did not want to visit their father in the States. T was the more vehement and told her he was “so scared”. This information was not communicated to the father. While I have serious reservations that his response would have been anything other than to lay responsibility for this at the mother’s feet it is possible that had he known about it, he may have been better able to deal with the terribly difficult situation that unfolded when the children came to him in December 2007.
In the lead up to the December 2007 trip, both children were very upset and made it plain to the mother they did not want to go. She reassured them that they would have a good time and reminded the children that the father looked forward to their arrival. Notwithstanding the children’s obvious distress, the mother arranged for another student (Ms Z) to accompany them. The children had no relationship with Ms Z and her presence is unlikely to have been a comfort. There is no doubt that the children needed the mother’s support and presence if this trip was to be successful. Although it would have involved effort and expenses, the mother had the time and financial resources to accompany the children and remain while they settled in. It was a significant lapse of judgment that she did not do so.
At Sydney Airport both children cried about leaving in relation to which the mother gave T her mobile telephone and showed him how to send a text message. Once she returned home, the mother emailed the father and, in relation to how the children fared said “[t]he children are on their way on time, teary but hopefully they will pick up on route. Ms Z is a lovely girl and I am sure they will have a good time with her. I have sent the mobile again. T will try to text if not able to call”. The email goes on to discuss aspects of the children’s care, with nothing further said about what they had been saying.
The children arrived in New York in the evening on 28 December 2007. After greetings and an evening meal they went straight to bed. The father’s home is very large and the children’s room is a considerable distance from where he sleeps. That night, both children telephoned the mother crying and saying that they missed her and were unable to sleep. To the single expert (Dr W) T described the father’s house as “big and scary”. With this description L agreed. Both children explained to Dr W (in the father’s presence) that their father knew they were missing their mother and that on the first night T had a nightmare and was upset. T’s nightmare was “about mummy falling down a flight of stairs and dying in a pool of blood. I can’t leave mummy alone and I feel bad doing it. Mummy is very sad. She is alone a lot and cries a lot”. It would seem that during the night, anxious and upset the children tried to wake the father and then telephoned the mother.
Over the following days the children remained upset and the father did his best to encourage them to discuss their feelings. In these discussions, the children made plain that they were saddened by the family situation and wished “that we could be with mummy and daddy as much as possible”. Without the father’s knowledge the children were in telephone contact with the mother, somewhat more frequently than he understood. In these conversations the children were distressed, with T’s call on 31 December 2007 involving him crying and saying “I miss you mum. Can you please come over?” When L called later that day, she was distraught. She too requested the mother to come.
That evening matters came to a head and the father suggested to the children “[p]erhaps mummy should come to New York to see you both. Mummy could fly over and then she could take you home if you are still so upset. I don’t think mummy has much to do in New York at such short notice so she might not want to stay here”. The children then became upset about the prospect of missing out on the planned trip with the paternal family to H Island and Colorado. In essence, they were conflicted, distressed and overwhelmed by the situation.
Appropriately, the father contacted the mother and explained the situation and asked her to come to New York to take the children home. She too in the meantime had realised that the children needed her and thus made arrangements to travel. Before she could inform the father of her arrangements, he sent her the following email:
[The mother], if you travel to New York, you should plan on meeting [the children] at the airport either immediately when you arrive in the evening after landing on QF107 or the following day when you will depart with [the children] back to [Australia]. You will need a hotel room for one night only.
The mother’s email in reply, gave the father her arrival time on 2 January 2008. Relevantly, she said:
I will be staying in New York for a few days but can be flexible till about the 9th. It would make more sense for the children to be dropped at the hotel. I will be on my mobile and will call when landed. I hope they are settling down. See you Thursday. (Annexure “U”, mother’s affidavit)
Once the children knew the mother was on her way they began to settle down. Indeed, before she left Australia, the father suggested she need not make the trip. Given the children’s distress, the mother appropriately decided she would go. There is no doubt that the mother made it clear that she was willing to remain for a while and to see if the situation settled down so that the children could continue their stay with the father. The father made it plain that if she came to New York she need simply take the children back to Australia. Although the father had commitments with his family for a family holiday, his decision not to defer that holiday and attempt to resolve the situation with the children and the mother was a serious lapse of judgment. So too was his decision to have his wife deliver the children to the mother on her way to her office rather than do so himself. It is not accepted that arrangements could not have been made for his wife to arrive at her office later than usual (and care for R) or some other satisfactory arrangement made which would have enabled the father to make the one hour journey with the children to Grand Central Station. In any event, Ms J delivered the children to the mother at 8.00 am. Changeover was bleak with virtually no conversation between the adults or Ms J and the children.
No attempt was made by the father to speak with the children that day. T telephoned him a number of times and, having not made contact, that evening left a message on the father’s answering machine “[w]e are going out to dinner tonight and we are leaving tomorrow. It’s too cold here and there is nothing really to do. I love you”. An audio recording of T’s message was tendered. T sounds sad. There is no doubt that he should not have been required to make this call and that the mother should have personally informed the father about what was happening. Of course, amongst other matters, a dilemma she faced was the real likelihood that he may not have discussed the situation with her.
The following day, the father telephoned the mother and asked to meet the children for lunch. She agreed and along with R and his nanny (Ms BT) the father lunched with the children. He described the children as “reasonably okay tho [sic] sad”. Both children told him they would like to visit him again and commented that they understood there would be court action.
It is extraordinary that the parties did not seek to discuss what had occurred with the children or their distress. Or that no steps were taken to attend a counsellor or family therapist. The father did not ask the mother to remain in New York, as she was willing to do, nor as the mother would have accommodated, for the children to return to him
As it transpired, bad weather resulted in the mother contemplating staying on. Again, to that effect T left a voicemail message for his father. As it transpired, the mother and children departed on 5 January 2007. The children have not been to the States since. Lest it be thought that the father walked away from this terribly difficult situation, he asked the children to visit him for April, June and September 2008, April and June 2009, June, October and December 2010 and April and June 2011. Each request was refused.
It would seem that the parties realised that the situation was now very serious and that they were out of their depth. In other words, having grappled with a terribly difficult situation for years without input from a health professional, they knew professional assistance was required to guide them for the future. Appropriately they selected a child psychiatrist who was experienced in separation and divorce and their sequelae.
Agreement was reached that the parties would retain Dr P, who commenced his work with the family in April 2008. In the meantime, T decided that he wanted “a break from speaking to my Dad, for about a month” (Exhibit “L”). This was communicated to the father and precipitated a gradual and almost complete cessation of telephone contact between them. This step was not taken by the father lightly and was part of his attempt to engage T on the child’s terms which, in one sense, has backfired and made the way forward that much more difficult.
In the lead up to the appointments with Dr P, the father made it clear that it was his expectation the children would join him in the States in June. By email dated 28 March 2008 the mother confirmed with the father Dr P’s contact details and wrote “[y]ou should not be making any plans until this assessment has been completed. I have had to cancel our long-awaited trip to Europe this April to ensure we can attend the assessment”. According to the mother, in an email the father wrote the following day, he said “I’m glad [the children] are seeing [Dr P]. I do not want or need to be involved with [Dr P]” (par 43, mother’s affidavit). In fact, the father expressed his pleasure that the children were seeing Dr P and said “I do want and need to be involved with [Dr P] … I do not view planning a trip to the U.S. in June and seeing [Dr P] as mutually exclusive … You should make plans as if the trip will proceed. I will of course speak to [Dr P] to discuss this if needed”. (emphasis added) (Annexure “X”, mother’s affidavit)
Dr P saw the mother and children together and separately and the two children together on 9 April 2008 for a total of 1.5 hours. He conferred with the mother for 1.5 hours on 6 May 2008 and twice with the father by telephone for 1 hour on 9 May and 16 May 2008. His report was provided to the parties’ solicitors on 2 June 2008. Simply put, both parties took from Dr P’s recommendations those which suited their views about the situation and rejected those which constituted an inconvenient truth. It is the father’s view that Dr P seriously misjudged the situation and lacked experience with difficulties of the type involved.
Before Dr P’s recommendations are recorded, it is appropriate to note his important qualification that:
This assessment is incomplete. To be complete it will require that all parties, including [the father’s] current wife and child, are present and involved.
Although limited, the assessment was adequate to address the limited issue of the children’s ability to sustain the current contact arrangements.
T was ten when he saw Dr P and the details of that meeting are found at pages 7-9 of Dr P’s report. To Dr P, T explained “[w]hen I’m over there I’m frightened of dad and I have a picture of mum sick and I’ll have to stay there. Dad showed me the schools where I’m going to go. I don’t want to see dad, only to have contact using email. I feel bad if I have no contact at all. I feel I’m doing something very wrong”. It is Dr P’s opinion that T “appeared to be coping with an unhappy and anxious world by turning to comfort in fantasy”.
L was seven and a half when she saw Dr P who she told that she did not like the States and did not want to travel again. “I want daddy to come here. It’s too hard for us to go back and forth. Too frightening. I feel we’re going to crash and never see mummy again … I want him to come here. I don’t like to go there and trees all around us it’s so spooky”. L described crying “so much at the airport when our nanny takes us to see dad”. And also, “I like my mummy better. July when my birthday is I want him to come here. He says he can’t come. He says he has to go to work. I don’t know what’s so important about his work”. The first of L’s three wishes was “[t]hat my dad would come here instead of me going there”. Dr P assessed her as being “… more robust than T indicating a clearer awareness of her own needs and wishes”.
Dr P’s recommendations are set out at page 19 of his report. There, he said:
193.Although it is not ideal, it is not in the best interests of the children’s emotional and physical development for the children to continue with the current contact arrangements, travelling to America on their own, unless, their experience of the lack of a supportive maternal environment in America can be addressed.
194.I use the expression ‘maternal environment’ in its broad sense without any wish to focus on their stepmother. I refer to their total experience with their father and within their father’s household which they do not experience as nurturing, caring and holding, particularly given their anxiety at being separated from their mother.
195.Given the practical difficulties, it is difficult to know or to suggest how to facilitate a more maternal environment for the children in America. To address this issue it will require attention to [the father’s] belief in and attitude towards [the mother], a more significant role for their stepmother, and the inclusion of their half brother as a sibling with whom they could share and from whom they could feel comfort.
196.Such an endeavour is likely to require more frequent and briefer contact by the children with [the father], provided [the father] and his household could provide the required maternal atmosphere and provided the children felt more supported with less distance from their mother.
197.More frequent contact could only be contemplated if [the father’s] household can adjust as described.
198.Indeed, [the father’s] proposal would appear to address the above suggestions, however, his proposal does not consider that [the mother], [and children], each have their own lives which are being established in Australia. This lack of consideration makes his proposal untenable.
199.A complete assessment, as described previously, will be required before such an arrangement can be appropriately assessed. (emphasis added)
Dr P’s reference to “maternal environment” or comparative lack thereof in the father’s home has been met with outrage from him and is seen as a slight on his wife. As paragraph 194 of Dr P’s report makes it clear that it is no such thing. As Dr P’s remarks at paragraph 198 make plain, the father’s joint custody proposal which inherently would see the children included in his family’s daily life would address his key recommendation. However, the problem with which the entire family needed to grapple was that the mother and children had made their lives in Australia. The children’s greater involvement in the father’s family life, through more frequent and briefer contact and less distance from the mother was, it follows, according to Dr P likely to result in the children perceiving their father “as nurturing, caring and holding”.
It was no less wrong for the mother to respond to Dr P’s report by insisting that the father only see the children in Australia. She wrongly disregarded the important qualification at paragraph 193 of his report that the children’s visits to the States “on their own” were problematic. The mother could not but have noticed that were she willing to accompany the children a significant component of the children’s anxiety and fear would have been alleviated. So that it is clear, each party’s approach to Dr P’s report is regrettable and both could have done much more to make it easier for the children to maintain their relationship with the father. Namely, him seeing the children more often in Australia and the mother taking the children to see him in the States.
At about the same time the father requested that the mother agree to a reduction in his periodic child support from approximately $92,000.00 to $40,000.00 per annum. This was rejected. He increased his offer to $45,000.00 per annum, payable quarterly. His timing was terrible.
On 17 June 2008, the mother’s solicitors wrote to the father’s solicitors in the following terms:
We refer to the report by [Dr P] dated 2 June 2008 and, in particular, his recommendations that it is currently not in the children’s best interests of their emotional and physical development for them to continue with the current contact arrangements of them travelling to America.
In the circumstances, please advise if your client is agreeable to the suspension of the current Orders for contact.
Of course, it was not Dr P’s recommendation that the current orders be suspended, nor is the first paragraph of the letter referred to above an accurate précis of his recommendations. The father did not agree and, in his response dated 10 July 2008 repeated his proposal that the children reside in the States. In the meantime, the June 2008 visit did not happen and the father’s wife attempted unsuccessfully to speak with Dr P.
Having failed to negotiate an agreement in relation to periodic child support, the father ceased paying periodic child support with the next payment being $2,500.00 paid on 9 January 2009. A schedule of his periodic child support payments is attached to his affidavit and marked “RW8”. That the children would discover this was probably inevitable and sat comfortably with their notion that work and money were the most important elements of the father’s life. To this end, T penned a letter to his father in 2009, in which he wrote “[y]ou care for your money so much that you don’t even pay the schooling at our school and Mum does”. Both parties should be ashamed that this happened and the children found out.
In August 2008, the father informed the mother that he would visit the children in Australia commencing 4 October 2008. Nonetheless, he continued to press for the children to visit the States in relation to which his request that they visit in September 2008 was refused.
Because of the father’s failure to pay T’s school fees and periodic child support, on 13 August 2008, the mother’s solicitors wrote to his solicitors inviting him to join in an application for a slip rule amendment to the UK orders. The amendment was to align the orders with the Court’s reasons for decision in relation to the father’s payment of the children’s school fees and associated costs. When no response was received, without further notice, the mother sought and obtained the slip rule amendment. Although the father is annoyed that the orders were amended without further notice to him, the Court’s reasons for decision are clear and amendment was inevitable. His criticisms of the mother’s actions are unwarranted.
Two days before the father was due to arrive in October 2008, he telephoned and, when no-one answered, left a voice message on the mother’s telephone that he was not coming. In response the mother emailed him and said she that thought it was imperative he visit and that “I can only stress that I think it is incredibly important that you visit the children”. With the mother’s assistance, the children telephoned their father and, with the telephone on loud speaker so that they could speak to him simultaneously, each child asked him to come. T said “I want you to come and visit but I want to sleep with Mum”. When the father was unable to dissuade him to stay overnight he said “I can’t help you with this. I cannot come if I cannot spend all the time with you”. To L, he said “I can’t come because T does not want me to come”. L replied “[i]t’s the other way round. Anyway come”. The children were upset and confused during this call and both cried. It will be recalled that the father and his wife work in finance and this was the commencement of the global financial crisis. That he was unable to leave the States at that time is accepted as is the constraints this imposed on his and his wife’s ability to easily travel.
The father saw the children in Australia between 5 and 12 December 2008. The mother asked him to come the day earlier for T’s speech day. This was not possible and it is a source of criticism by the mother. The father was cross-examined at some length about this matter and it is clear that he feels deeply his missing out on T’s speech day. Both parties ought to have been able to explain the situation to their son in a manner which he understood meant his father had not failed him. The father’s capacity to generate significant wealth underpins the mother and children’s lifestyle. He is not a free agent and unless all are prepared to forego the standard of living provided by him, trenchant criticism of his work/life balance is somewhat hypocritical.
By all accounts, the father’s December 2008 trip went well and, although the children did not stay with the father overnight, there was no reluctance about spending their days together.
In anticipation of the father’s arrival, the mother contacted Dr P who was willing to see the father during his visit. This, the father inexplicably refused to do.
The mother refused the father’s request that the children spend time with him in the States for three weeks during the 2008/2009 Christmas school holidays. He proposed collecting the children in Australia on 15 December 2008 and that the mother collects them in the States to bring them home. Albeit the duration was too long and to be successful the mother needed to be in close proximity, there was merit in his proposal. It is difficult to assess whether had the mother made an alternate proposal along the lines just mentioned, how the father might have responded.
In late January 2009, T prepared (but did not immediately send) an email addressed to the father. He wrote:
To Dad, I would like to inform you that I do not want to go over to America. And I would prefer for the moment if we communicate by Emails. I have started school, and I am having a lot of fun […] And everything is going well. I am about to watch the Australian Open Final and can’t wait. From [T]
PS Mum did not tell me to write this I swear.
About five weeks later (1 March 2009) the father wrote to the mother in relation to child support and that his contact arrangements “… in all respects must improve dramatically before I am willing to resume maintenance payments of AUS $45,000.00 per annum”. He explained that the purpose of his letter was:
… to inform you that I am no longer willing to accept an arrangement whereby I pay quarterly maintenance and get little or no support from you in encouraging [the children] to have a relationship with their Father. Since 2002 you have sought to frustrate my dialog and contact with our children. Clearly you do not value me in their lives or you would never have moved them half way around the world from their Father. My family and I will not be alienated from [the children]. I am not willing to be their Father solely for financial reasons; it is inappropriate and inconsistent with joint custody. I feel you need to actively encourage [the children] to have a relationship with me and, at a minimum, fulfill [sic] the original Contact Orders (as amended for the Christmas holiday periods), before maintenance payments can resume.
Concerning school costs, consistent with the Court Order (and common sense), I will not pay for private schooling for [the children] where I have not approved the school (let alone even been consulted on the schooling choice. (Annexure “BB”, mother’s affidavit, p 95)
Albeit at home and in a setting where they are most comfortable, when Dr W observed the mother and children together, he said “[t]he children seem very relaxed and happy … [T] was obviously proud of his achievements. [L] was once again natural and outgoing”. In this setting, the mother was also more at ease, except when Dr W pressed her about why she had not travelled to the States with the children when they were small. It was during this meeting that it became clearer to Dr W “[t]hat [T] was anxious about becoming anxious again should he be separated from his mother”. Dr W reflected that what seemed to be happening was that T “made his father into a total ogre” in order to “rationalise avoiding him and exposing himself again to being flooded with anxiety”.
In his interview with Dr W on 30 November 2011, T was entirely negative about his father and clearly anxious that his feelings of anxiety would return. Dr W sought to understand why T thought his memory was so fresh about the trauma he perceived, particularly during the last visit to the States. T described recurring dreams and flashbacks “of mum falling down the stairs” and explained “I was always anxious for mum to pick me up. I love and trusted her. The dream about her falling was the top of my anxiety. Now I’m far more independent”. He was cynical when Dr W reminded him about the large volume of happy family photographs in the father’s possession.
Discussion then turned to the recent observation session in relation to which Dr W reported:
[T] said: “I face my worst fear – I told him here what I thought. This gave me huge self-confidence. I have wanted to say it for years. I was afraid he would retaliate with anger. He used to ask me why I didn’t like him and try and convince me to be more positive. He never reacted to what I said – he didn’t acknowledge it.”
I told [T] that it has appeared to me that when his father heard what he had to say, he was genuinely shocked. I told him that I had confirmed that in the interviews in America.
[T] said cynically: “He tries to picture it like that. He’s bamboozled and he doesn’t want to know this. My attitude should have let him know exactly what I felt. I’ve written emails telling him that I don’t want to see him for a couple of years.”
I put to [T] that I thought what he had said to his father would be extremely hard for any father to accept. [T] emphasised that he had said in emails: “I’m afraid of you. You make me do things I don’t want to. I don’t want any more contact by phone. A normal father would have noticed something. He should have respected me. He should have asked what he could do –ertainly [sic] not ignoring everything I said to him.”
I again said to [T] that I thought that the information he had given his father was a little bit like telling someone they had cancer. I again stressed that I thought it was a natural reaction, not to want to believe something extremely painful. [T] was adamant. He said: “He has to accept this fact. He has to accept what I’ve said is true.”
I said to [T] that I thought his mother’s optimism must surely then count as a position where it appeared that she also was not listening and understanding him. I gave the example that she had given on the previous day of the two families meeting in Hawaii for a holiday.
[T] said: “She’s always wanted us to see him. She’s wanted to try to mend the relationship. She’s always said that we should meet halfway. I will not do this unless it’s something urgent.”
I asked [T] about continuing to meet with his father in Australia. He said: “I don’t feel supported enough to see him alone.”
[T] told me that he felt in America that he had to be ‘a one man army’. He believed he had been reduced to ‘half a man army because of [L]’.
I asked [T] at the end of the interview whether he felt that by my taking the devil’s advocate position, I was in fact supporting his father and trying to persuade him to a position. He admitted he had that doubt. He said: “You are speaking to dad as well.” ([Dr W’s] report, pp 55-56)
Dr W summarised the children’s views and analysed the weight which he said should be given. He said:
[T]
[T] was adamant that he wanted nothing further to do with his father. He expressed this in both of his individual sessions, and directly to his father in their family session.
He felt his father had no capacity to listen to him, and that his father had systematically attempted to turn him against his mother over periods of contact between them. He regarded his father as a powerful and frightening man whose aim was only motivated from evil intent. He saw his father as a destructive force that he had to defeat.
[T] also referred on more than one occasion to the notion of ‘trauma’ in relation to his father. However this appeared to be largely unrelated to any one major trauma that [the father] had inflicted on the children. He certainly did not behave towards them in this way during the family interview. If anything, it was [T]r who appeared most capable of inflicting trauma on his father by the cold and calculating way he delivered his message of total rejection to him.
It seemed more plausible to consider the trauma that [T] referred to as being comprised of a combination of the following experiences:
(1)The helplessness he felt as a child with a largely unfamiliar adult (his father) without his key attachment figure (his mother) close by. I would think that this was a major factor whenever [T] was forced to separate from his mother and travel to America. Her absence at these times effectively sabotaged any possibility of these separations being managed without overwhelming anxiety. I also believe that [L]’s anxiety on the last trip triggered these memories and feelings from earlier times for [T].
(2)There was an absence of any containing structure for [T] in these circumstances which may have helped him process his anxiety. A major factor here would be [the mother’s] absence on these occasions. Had she been able and willing to travel to America with [T] when he was small, and with the two children when they went together, then I think the outcome would have been different. [The mother] seemed quite angry when I explored this area with her, and in this instance it must be said that she was not acting in her children’s best interests. Indeed she thought the idea of travelling with them to be ‘ludicrous.’
(3)[The father] and [Ms J]’s hostility to [the mother] was palpable during the joint interview I conducted with them. It is hard to imagine under these circumstances, that [T] and [L] would have had much understanding shown to them about the degree to which they were missing their mother. When they needed this understanding extended to them, it would appear that in its place came instead [the father’s] attempts to influence them against their mother. [Ms J] showed no empathy for the children during my interview with them over this issue. Finally [the father] had shown [T] the school he could be attending if he came to live in America. I think this was a very inappropriate move and probably heightened [T]’s resolve to take a stand against his father.
(4)[T] referred on more than one occasion to the heaviness of the ‘burden’ he carried in relation to his mother and his sister. There appeared to be no other significant attachment figure in [T]’s life who could have taken some of this load from a small child’s shoulders. [The mother] rather glibly passed over this area by saying that [T] was now receiving this attention from being in the presence of men at an all boys school. She indicated that her father until his death had been a very significant attachment figure for [T]. However [T] identified three periods in his life when he had been depressed – only one of which his mother appeared to have sought help for. Even on this occasion, when her attention had been directed to this need by [Dr P], [the mother] delayed acting for some time.
[T] reported also how conscious he has been over many years to present nothing which could be used as evidence in a court case that he could be enjoying himself with his father. I think it is possible that this became such an issue for him because he could not bear the idea of neglecting his responsibility to his mother.
[The mother] was irritable and extremely angry in all of her interviews, at times. One interview took place when she was suffering from a migraine. [T] referred in a cautious way to these elements in his mother’s personality and health, which concerned him.
[The mother] seemed outraged at the idea that her earlier problems with alcohol, depression, and her eating disorder had anything to do with any factor other than her relationship with [the father] when she was married to him. She could not believe that the content of [T]’s recurring nightmare had anything to do with his current anxiety about her. In this area she was rigidly defensive and totally closed to any exploration.
If [the mother’s] own interpretation is that any misery she suffers in all from [the father], then it is not such a leap to imagine that her children would believe the same thing, and regard him as an evil monster to be avoided at all costs.
[L]
[L] did not seem so negative or so fixed in her views of her father. Her general mood seemed lighter than her brother’s and she did not exhibit any signs of anxiety and depression.
It seemed possible that for these reasons, [L] was able to be more realistic in her evaluation of her father. She had not had [T]’s experience of travelling alone to America when she was still very small, and to a certain extent she had always been in a protected position.
[L] made important observations about her time with her father, separate from her anxiety on that occasion. She noted for example that her father was often engaged in work in his study. She did not feel that activities were geared around her interests. She did not think it appropriate that her father spent time in his gym with them watching. She clearly did not feel any emotional support coming from [Ms J] at times when she was distressed. She believed her father was self- interested, and that she was all but invisible to [Ms J]
These observations about the level of interest of adults in her are important, because they do not correspond to a diminished sense of self which pervades [L]’s personality. To the contrary, [L] acts in a confident and engaging manner which reflects the expectation that she will be listened to, and her contributions valued. I therefore would give considerable weight to her observations about her father. ([Dr W]’s report, pp 88-90)
It would come as no surprise that Dr W opined that the children have their closest relationships with the mother and that in her presence they were relaxed and natural. He explained that the children had felt abandoned and isolated on their last trip to the States and that the children now “have no wish to leave their mother behind and visit their father when they know that if they do they are likely to be acutely anxious about her … While they are living with their mother, this anxiety is mostly kept in check”. It was accepted by Dr W and strongly established in this hearing, that in most respects the children have thrived in her care. They perform well academically; indeed T excels, and are actively involved in their schools, music and extra-curricular activities. They are well travelled and say and believe they are happiest with their mother. The children have strong sibling relationships. In short, it is appropriate to acknowledge that the mother has done her best to be the best parent she could be and, in most respects, she has excelled.
Because of the matters at issue, it is necessary to acknowledge that she too has contributed to T’s anxiety, feelings of vulnerability and as the father has made many mistakes about how, from the earliest days of the parties’ separation, the children’s relationship with him would be protected and developed. Although she has fought valiantly to resist any suggestion that her actions have contributed to the difficulties that have arisen in the children’s relationship with the father, the effect of concessions made by her during cross-examination and her willingness to support face to face contact between the children and the father, including in the States, persuades me that she has achieved at least a degree of insight. This lays the foundation for a more optimistic view of the future than she indicated to Dr W. Thus, while the mother’s reluctance for orders which would endure longer than 18 months is understood, orders which minimise the prospect of future litigation and provide a clear roadmap for future contact between the children and the father enable her to work constructively with the children and their father for the long term.
The mother was clearly dismayed by the prospect the Court could even contemplate relocation orders along the lines proposed by the father. Her dismay related to not only disruption to her life but that the Court, armed with Dr W’s evidence, could give so little weight to the children’s strongly articulated views to the contrary and the strength of her and their ties to Australia. Dr W considered that the mother would be highly unlikely to adjust to the living in the States and that even with her nearby the children would not have access to the same level of emotional and personal support from her that exists in Australia. His point, which was strongly made and upon which considerable weight is attached, is simply that in the States the mother would be unable to parent the children as well as she does now. In other words, she would be a different and more vulnerable parent. The gravamen of Dr W’s evidence is that in this regard the mother’s history of depression and eating disorders could not be ignored and it needed to be recognised that she too has struggled with anxiety.
There is no doubt the father gave a great deal of thought to his relocation proposal in relation to which he sought advice from eminent health professionals. Of course, the advice he received was proffered on the basis of his view about the family’s situation. As has been discussed, the father’s notion that the children have been subjected to parental alienation which is the primary, if not sole, cause of his difficulties in establishing and maintaining a relationship with them, has not been accepted. Rather, as it is hoped can been discerned from these and my earlier reasons for decision, the situation is more complex. While it is accepted that there are obvious positive elements in the father’s primary relocation proposal; such as the opportunity to develop and maintain closer relationships with the father, his wife and R (as well as paternal relatives), to experience a different style of education and have the best opportunity to attend some of the world’s great universities plus, of course, to immerse themselves in a different culture from which one half of their genetic identity emanates. These factors, however, are not afforded the same or even comparable weight as is given to the children’s views against the father’s primary proposal, the effect of disrupting their lives into which they are settled and enjoy or Dr W’s evidence about the effect on the children emotionally and psychologically were such a change implemented. It is accepted and given significant weight that the children would rightly feel betrayed by their parents, adults and society were they required to relocate.
The parties and ICL agree that the children’s views against contact with the father in the States (or in T’s case at all) should be afforded considerably less weight than their views against relocation and disruption to their ability to continue to reside with the mother. Essentially, the different approach to the significance of the children’s views, centred upon acceptance that their relationship with the father had been mishandled and their views and attitudes towards him do not reflect the same clarity of thought or maturity in relation to the significance, or lack thereof, of a number of events which they view as negative, but which mature reflection would give a more benign context. In other words, he was judged too harshly and, for example, their views that he valued money more than them are unfair and do not reflect reality.
Dr W was surprised and pleased to learn that during the hearing agreement was reached for contact between the children and father during school holidays; twice in Australia in 2012 and for a longer period in the States during the 2012/2013 school holidays. It was Dr W’s opinion that the children would be positively influenced to hear from the mother her proposals and support for face to face contact in Australia and that she would take them to the United States to spend block periods of overnight time with the father. The mother agreed with Dr W’s suggestion that she participate in a meeting with the ICL and the children to reinforce her support for this contact. Although it is accepted that the ICL could properly consider that this role would be better facilitated by the family therapist, Dr W’s recommendation that the ICL facilitate this discussion has obvious merit.
It is appropriate to approach the impact of the parties’ agreement about the resumption of face to face contact with cautious optimism. Although both children perceive that their mother has previously encouraged contact with the father, as Dr W explained, this message was mixed with behaviour and remarks by her to contrary. The point being, from the mother the message about the value of their relationship with the father was mixed and probably confusing for the children. It is accepted that her support for this resumption of contact is likely to have a real and positive impact on the children’s willingness to re-engage with their father and establishes a framework to improve their troubled relationship with him, as well as contact thereafter.
The parties and children are enthusiastic skiers with skiing in North America during the Christmas school holidays an activity they have shared and enjoyed with each parent. The father has two expensive apartments in Town V in the United States, which is where it is agreed the children will spend time with him during the forthcoming Christmas school holidays. The mother has friends and relations in the States and she is able to arrange comfortable on-snow accommodation in or in reasonable proximity to Town V. Although it is accepted that she would prefer not to be tied down by having to take the children to and from the States annually, the inconvenience and expense can be accommodated by her over the next few years. In the event she returns to paid employment the duration of the children’s stay in the States should roughly coincide with her leave entitlement.
It was Dr W’s recommendation that in relation to the children’s time with the father, interim orders were appropriate and future contact should be reviewed after the Christmas 2012/2013 trip to the States. With this approach the mother and ICL agree.
Resolution of this issue has been finely balanced. It is accepted that it is not possible to determine with certainty that the children’s time with the father will be as successful as hoped for and thus, long term orders predicated upon a successful resumption could exacerbate rather than ameliorate conflict. On the other hand, it is contended by the father that orders which set out the Court’s support for the children’s future contact with the father and establish an expectation and obligation for the mother’s continued support is advantageous and makes it likely that the momentum achieved during the hearing will endure. According to the father, his approach is least likely to lead to further proceedings.
Two factors have tipped the balance in favour of the father’s approach. Namely, the benefits to the children and parties of continued momentum and that the father is unlikely to try and coerce the children to spend time with him against their strong contrary views. In this regard it is noteworthy that this case has not been peppered with contravention applications and that persuasion rather than enforcement has been pursued.
During Terms 3 and 4 this year T will live away from home and at his school’s country campus. In a setting which is familiar to him and where he will be supported by school colleagues and staff, he will experience prolonged separation from his mother. By then, he will have had the assistance of a child analyst and family therapy will be underway. It is to be expected that he will become more independent and better able to manage his anxiety for his mother. It is likely that this will make it much easier for him to cope with separations from her in order to be with his father. There is no doubt that this will be easier if the mother is in the same country as the children and if either child became anxious, they could know she is not too far away. It is in this context, that future contact along the lines proposed by the father is accepted as being in the children’s best interests. Of course, this conclusion is reached in the context of his commitment to visiting the children in Australia. If he fails to do so, it is difficult to discern how he could expect the children to view this other than with cynicism in relation to his commitment to them.
Communication by telephone and however else the children view as reasonable will be re-established. The father proposed orders for twice weekly telephone calls. While this can be accommodated by agreement with the children the orders will provide for a weekly call at a nominated time. The parties must anticipate that with the children’s increasingly busy social and academic lives, their commitments may make fixed time calls unworkable. Thus, provision will be made for the children to take calls if they are available and wish to and return calls on a similar basis.
As has already been mentioned, the evidence against relocation is very strong. It is only in the context of the parties and children living in close proximity (whether in Australia or the States) that equal or substantial and significant time considerations arise. The point being, irrespective of whether the parties have equal shared parental responsibility, the constellation of factors which weigh against relocation means that equal time or substantial and significant time is contra-indicated.
Parental responsibility is a surprisingly thorny issue.
The mother sought sole parental responsibility in relation to which emphasis was placed on the parties’ years of poor or no communication, their historically different opinions about the children’s needs, child support and schooling. It is accepted that serious disagreements arose in relation to all of these matters and that the mother’s desire and case in favour of sole parental responsibility is strong.
Equal shared parental responsibility is sought by the father, with him viewing this as strongly in the children’s best interests and the mechanism by which he can hope and expect to be involved in major long term decisions. While this is accepted, it is appropriate to be cautious about the extent to which the father would engage with the mother in a manner which is respectful of her greater knowledge of the reality of the children’s lives and the impact of decisions on them. His trenchant criticism of her decisions in relation to the children’s schooling is a point of obvious concern and suggests that further conflict is likely if equal shared parental responsibility is ordered.
A third option is that there is no order in relation to parental responsibility, as a consequence of which the parties would each have parental responsibility but that it need not be exercised jointly. Thus, the parties would each have the rights and obligations at law imposed on parents. For the children, absent a statement of equality about parental responsibility, this sends a strong message that the parties are their parents, which fact is unchanged and respected by the Court. It is a message of empowerment and the Court’s acknowledgement of their parents’ parental capacity and authority. Such an approach is in the children’s interests; save and except in relation to schooling. Schooling is an obvious ongoing source of conflict which the children’s interests require shared parental responsibility is averted. This is best achieved by an order that the mother has sole parental responsibility in relation to that matter alone.
The orders will provide for the father and children to spend time together for block periods twice during the school year and during the Christmas school holidays. They are structured to increase incrementally and facilitate the mother’s involvement, which is designed to give the children comfort and address concerns and, at times, their opposition to seeing the father.
Notably, the orders are not conditional upon the parties continuing with family therapy as each party impressed as obviously committed to family therapy, in relation to which an order is seen as otiose. Minor adjustments were made in relation to the Christmas 2012/2013 proposals, the intention being that this first long visit should not be so long that it exacerbates the risk of anxieties for the mother and children, provides a framework for the children to see her and for them to return home in advance of the commencement of term. Otherwise, the orders are self-explanatory and provide a structure around regular holiday contact which the parties can afford and are able to facilitate.
There is a suite of injunctions upon which agreement, at least in principle, was achieved, the terms of which self-evidently are designed to ensure that the children are not exposed to unpleasant comments about their parents or material from these proceedings, as well as to ensure that the parties have the information they need to stay in touch and facilitate communication with the children.
For these reasons, I am satisfied the orders are in the children’s best interests.
It is understood that there is an outstanding issue in relation to Dr W’s fees which is to be addressed either at a later time or elsewhere.
I certify that the preceding one hundred & eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 27 August 2012.
Associate:
Date: 27 August 2012
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