WOODHAM & ERICKSON
[2018] FCCA 3785
•13 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WOODHAM & ERICKSON | [2018] FCCA 3785 |
| Catchwords: FAMILY LAW – Parenting – relocation – family violence. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, CA,60CC, (2), (b) , 65DA, (1), 65DAA, (1), (b) |
| Cases cited: Bale & Bale [2016] FCCA 680 Taylor & Barker (2007) FLC 93-343 Paskandy & Paskandy (1999) FLC 92-878 MRR & GRR (2010) 240 CLR 461 Champness & Hanson [2009] FamCAFC 96 McCall & Clark (2009) FLC 93-40 |
| Applicant: | MS WOODHAM |
| Respondent: | MR ERICKSON |
| File Number: | BRC 13010 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing date: | 28th, 29th, 30th November 2018 & 13th December 2018 |
| Date of Last Submission: | 13 December 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 13 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms McCardle |
| Solicitors for the Applicant: | Cherry Family Lawyers |
| Counsel for the Respondent: | Mr Lawrence |
| Solicitors for the Respondent: | P M Lee & Co |
ORDERS
That all extant parenting orders in respect of the children [X] born 2004; [Y] born 2008 and [Z] born 2008 (“the children”) be discharged.
That except as otherwise stated, the parties shall have equal shared parental responsibility for the children [X], [Y] and [Z].
That the children live with the mother.
That the mother be entitled to change the place of primary residence of the children from Brisbane to the municipality of Location A in the State of Queensland.
That the children spend time and communicate with the father as follows:
(a)In each Queensland gazetted term school holiday period from the first Friday until the second Monday at particular times to be agreed between the parties;
(b)For one half of each Queensland gazetted summer school holiday as agreed between the parties but failing agreement then for a block of three (3) weeks being the last three weeks of the summer school holidays in 2018/2019 and in each alternate year thereafter and for the first half of such holidays in 2019/2020 and in each alternate year thereafter;
(c)For one weekend in Brisbane in each school term, such to be nominated by the father with not less than twenty-one (21) days’ prior notice to the mother and such to incorporate a long weekend if possible;
(d)At any reasonable time in Location A upon reasonable notice to the mother;
(e)At such other times or variations of the above as agreed between the parents from time to time; and
(f)By telephone, FaceTime, Skype or other available media on a reasonable basis.
That for the purposes of the children’s time with their father in Brisbane the parties shall be equally responsible for the costs of the children’s unaccompanied flights between Location A and Brisbane and return on the basis that the father will book and pay for the children’s flights on each occasion and that the mother then reimburse the father for one half of such costs within seven (7) days of provision of tickets/itinerary/confirmation of payment or otherwise as agreed between the parties in writing or email from time to time.
That each of the parties be and is restrained from discussing the evidence in these proceedings in the presence of or to the children or any of them directly or indirectly or by their servants or agents and from providing to the children or any of them with any document filed in these proceedings.
That each of the parents be and is hereby restrained from denigrating, abusing or insulting the other parent to or in the presence of the children or any of them.
That until further Order or else subject to the written consent of both parties, each party, MR ERICKSON born 1972 and MS WOODHAM born 1975, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the children, [X] born 2004, [Y] born 2008 and [Z] born 2008 from the Commonwealth of Australia.
That the Marshal of all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these Orders, including all things necessary to include and retain the children’s name on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the children’s name on the Watch List for a period of three (3) years.
IT IS NOTED that publication of this judgment under the pseudonym Woodham & Erickson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 13010 of 2016
| MS WOODHAM |
Applicant
And
| MR ERICKSON |
Respondent
REASONS FOR JUDGMENT
Delivered ex-tempore
Applications
There are current applications before this Court for parenting orders and also in respect of financial matters including the setting aside of a binding financial agreement. These reasons deal only with the parenting proceedings and are handed down ex-tempore. The mother is the applicant in respect of the three children of the relationship namely: [X] born 2004 (aged 14); [Y] born 2008 (aged 10) and [Z] born 2008 (aged 10).
The mother seeks orders confirming that the three children live with her and that she be permitted to relocate their primary place of residence from Brisbane to Location A in North Queensland. She proposes that the children spend time with the father for one half of each school holidays together with one weekend per term in Location A together with communication by media.
She asks for orders whereby the parties equally meet the costs of the children's travel between Brisbane and Location A.
The mother proposes an order that she have sole parental responsibility for the children.
The respondent father opposes any relocation of the children from Brisbane. He asks for an order for equal shared parental responsibility and has a primary position whereby the children live in an equal time regime between the parents. Alternatively, he argues that [X] live primarily with the father and spend each second weekend with the mother with [Y] and [Z] to live in the equal time arrangement. He agrees that the children spend half of their school holidays with each parent.
Background
The husband is 46 years of age. He is originally from Country B. He lived in Country C for some time before meeting the mother and emigrating to Australia. The father says that he now holds Australian citizenship. He works as a driver and says that his work hours are flexible.
The mother is 43 years of age. She works for D and has recently obtained a permanent promotion in her employment requiring a three year deployment to Location A. That employment commenced 5 November 2018 and the mother, in the short term and pending resolution of these matters, is attending to her duties remotely from Brisbane although I accept that this is not a situation which can continue.
The parties met in Country C when the mother was on a working holiday and commenced cohabitation in either 2000 or 2001. The mother then moved back to Australia and then again back to Country C. The parties settled in Australia in early 2004 shortly before [X]'s birth.
The parents married 2007.
The mother says that the parties separated on 12 September 2013 when the father left on one of a number of trips to Country C. The father says that separation occurred in January 2015. In any event, the parties agree that they remained living, albeit separated, under the one roof until 25 July 2017 following the mother obtaining orders from this Court inter alia that the father vacate the former matrimonial home.
Those same orders of 4 July 2017 provided that the children live primarily with the mother in the interim and spend alternative weekends with the father.
Both parents agree that the relationship was a volatile one but essentially place the blame each on the other as major perpetrators and instigators of family violence. Each obtained domestic violence orders against the other in the months following separation and again in 2017 after the father had left the former matrimonial home.
Matters of family violence feature highly in these applications. The parties agree that the behaviour of the children [X] and [Y] has been aggressive both in respect of their parents and at their schools. Both boys have been suspended from school on occasion and regular parental intervention has been required. The father says that the relationship between the boys and the mother is highlighted by their mutual aggression and violence.
The Mother's case
The mother says that she is the primary parent of the children. She says that she has good reasons for asking to relocate the children from Brisbane to Location A including her employment opportunities where she is the major financial support for the children. Further, she says that the behaviour of the two boys is such that a 'new start' and a move away from bad influences will be for their ultimate benefit. The mother says that she will encourage and facilitate the children's relationship with their father including sharing the costs of travel. She says that the relationship between the children and the father is an established one which will endure the changes in those relationships by reason of a relocation and a different and less frequent direct contact regime.
The mother says that the father does not have a demonstrated history of consistent and capable parenting of the children. She says that he was absent during much of the children's formative years. She says that the relationship between the boys and the father is based on discipline fear. She says that the father has improperly imbued the children in the relationship difficulties between the parents and also these proceedings and that he therefore lacks insight into the needs of the children. The mother suggests that the father's application for the children to live with him might be a motivated by matters other than the children's ultimate best interests and including financial considerations.
The Father's Case
The father's says that his relationship with the children is a close, attached, regular and frequent one and that a relocation to Location A will impact negatively on that relationship by reason of the change in frequency of contact. He says that the relationship between the boys and the mother is a poor one and highlighted by physical violence and discipline. He says that the mother relies on him to a high degree in the care and discipline of the children including requests that he intervene in issues at the children's schools. He disputes the mother’s contention that the children have a preference to move with her to Location A. He says that he can provide better for the children's stability and cultural needs including their connection with the Brisbane Country B community. He says that he is better equipped to deal with the discipline problems evident in his two sons. He denies that he has been a perpetrator of family violence.
The Evidence
The mother relied on her trial affidavit of 9 October 2018, together with a voluminous tender bundle of supporting documents filed the same day.
The mother was represented by Counsel at the trial. She gave evidence and was subject to intrusive and lengthy cross-examination.
I had the advantage of watching and hearing the mother give evidence. She was an impressive witness and one able to give informed, considered, and child focused responses. She was able to be appropriately complimentary of the father in relation to some aspects of his parenting. Her responses in cross-examination were thoughtful, candid and direct. She maintained a calm demeanour despite the subject matter of the cross-examination including assertions as to her being physically violent within the relationship and to the children.
The father relied on his trial affidavit of 22 October 2018 and also a sizeable tender bundle of further supporting documents. Mr Erickson was also represented by Counsel at the trial. He was cross-examined.
Even taking into account that English is not the father's first language, he was not as impressive a witness as the mother. He was not as candid in his responses as was she. His tendency was to deflect from the question and to give lengthy answers seemingly to shore up his own the case. He was reluctant to make admissions against interest. Consequently, in discreet issues of credit I generally preferred the evidence of the mother to that of Mr Erickson.
The father adduced evidence from two lay witnesses being the mother's former neighbours namely Ms E and her husband, Mr F. Both swore affidavits on 13 September 2018. Both have experience as public servants and gave their evidence in a forthright and direct manner. That evidence was mainly directed to them hearing a dispute between the mother and [X] on 26 November 2017. Each was cross-examined candidly and agreed that they were unable to assert the prime aggressor in any dispute between the mother and [X]. Their evidence was otherwise unremarkable except to corroborate that perhaps each of these parents has experienced some difficulty in disciplining the aggressive dispositions of [X] and [Y].
Family report – Ms G
Ms G is a social worker in private practice and has provided two reports in this matter dated 3 July 2017 and 9 October 2018. She gave evidence and was cross-examined.
Ms G made the following recommendations in her second report:
a. That [X], [Y] and [Z] live with the mother; and
b. That [X], [Y] and [Z] spend time with the father:
·If they relocate to Location A and Mr Erickson remains in Brisbane:
I.As a minimum each school holidays for at least one week;
II.Preferably for one weekend per term (Friday p.m. to Monday a.m.); and
III.At least three phone calls/FaceTime calls per week.
·If they remain in Brisbane or if Mr Erickson moves to Location A:
I.To continue the current arrangement for alternate weekends but to increase the time from after school Friday to before school Monday so the handovers occur through school;
II.For up to one week and each school holiday; and
III.2 phone calls per week.
The family report notes the parents concerns and those of the schools as to the behaviour of [X] and [Y].
Ms G gave evidence and was cross-examined. Her evidence in Court was of considerable assistance as was that in her family reports.
Ms G notes that the children and the mother are currently living with the maternal grandmother given that the former matrimonial home has recently been sold. She notes the mother's proposal to move to Location A or, if the relocation of the children is not permitted then that the mother intends, in any event, to move so as to give the children new schools in an attempt to moderate their behaviour.
At [122] Ms G notes the father's position as:
He also has a firm view that 50% shared care is the best outcome and that he is entitled to this. He relates ' I need my 50/50 it is my right.'
Ms G had the advantage of speaking with the children’s counsellor, a Ms H. That counsellor indicated that she had heightened concerns for [X] when he was living with Mr Erickson but that these had decreased following [X]'s return to live with Ms Woodham [128]
At [129] Ms G reports Ms H, in respect of [X], as follows:
During the period [X] lived with Mr Erickson she described [X] as angry, withdrawn, 'down' and sad. She recalled he wanted to see her but couldn't/wouldn't talk. She was unaware initially the [X] had been made to stay with his father. She states [X] finally disclosed that Mr Erickson was keeping him as Mr Erickson wanted to obtain the house. She notes [X] said he had read Court papers.
And at [130] Ms H (to Ms G) contrasted [X] when in Ms Woodham's care thus:
… [X] was able to express his feelings of anger, frustration and upset. There was a marked difference in [X]'s behaviour when in Mr Erickson's care. Ms H described [X] as repressed and seeing scared. She asserts that [X] had a picture of what it would be like living with his father but he discovered the reality was quite different.
Not surprisingly, it is noted that [X] presents as a role model for his younger brother [Y].
Importantly, at [134] Ms G reports Ms H noting that [X]'s current school 'had now labelled [X] as a problem and consequently he no longer receives the benefit of the doubt in any situation. She assessed he would benefit from the change of school.'
At [135] Ms G notes Ms H reporting that the deputy principal of [X]’s school viewed that the father is a more appropriate parent. In her cross-examination, Ms G agreed that she might have benefited from a more direct approach to [X]’s school teachers and/or the deputy principal given the apparent conflict in views between the deputy principal and Ms H.
Ms G interviewed and observed each of the three children. Of some concern is that at [151] both [Z] and [Y] reference Mr Erickson having asked them to write a note for him expressing a preference in them to live in a 50/50 basis. Mr Erickson, in cross-examination, denied attempting to influence the children accordingly although his evidence and denials were unconvincing in light of the children's reports to the family reporter and other similar type evidence.
At [163] appears the following in respect of [X]:
During his individual interview, [X] indicated he was well aware of the conflict between his parents. He related his parents said nothing good about each other. He related 'Dad makes sly comments. He says sometimes your mother is so wicked. He talks crap and I ignore him.' [X] recalled his father had said he would one day show him all the court documents and that [X] would really know his mother. [X] claims his mother tries hard not to say nothing about Mr Erickson but [X] could tell how she really felt. He related ' when she is really annoyed she gets mad. Dad laughs and pisses her off.'
Although Ms G observed that [X] and [Y] to 'contain themselves and interact pleasantly' [171], she says that both acknowledged they fought physically including using their fists.
[X]'s views were elicited and set out at [185 – 187] as follows:
[X] was asked if there was anything he wanted the court to understand. He thought for a moment and then said 'I guess I’m fine with how it is now. I just get annoyed with dad sometimes. I'm fine with second weekends.'
[X] related 'I don't know about spending more time with dad. I never said that. I don't really want more time with him.' It was observed that [X] then became quiet and put his head down. He focused on playing with the finger puppets.
[X] indicated an outcome he would not like would be a reduction in time with his mother. He commented 'we fight but I love her.' He acknowledged he had hit her.' I took my anger out on her. I couldn't get it out with dad.'
Significantly, at [190] in respect of [X] appears the following:
In relation to a potential move to Location A, [X] spoke about positive and negative impacts. He offered the option that if he didn't go, he could stay with his maternal grandmother. [X] indicated he would be concerned if he only saw his father during the holidays but he might miss his friends.
In her report and in her evidence in Court, Ms G emphasised that [X] was anxious that his father not be appraised of their conversation and his statements.
Ms G observed [Z] to be uncomfortable about making choices between her parents and understandably so at just 10 years of age. At [193] Ms G reports:
[Z] spoke about having written a note about future arrangements at her father's requests. She related she was unsure whether she actually did want to spend 50% time with each parent. 'I don't really know if I want of a week with dad.'
At [127] [Z] indicated:
… She wanted the court to know that she felt it would be good to see her dad even if they moved away. She explained a good outcome would be for the arrangements to stay as they are 'because we see dad and we get to stay with Mum'.
At [197] [Z] indicated:
… She wanted the court to know that she felt it would be good to see her dad even if they moved away. Shen (sic) explained a good outcome would be for the arrangements to stay as they are 'because we see dad and we get to stay with Mum.'
[Y] was also anxious in expressing his views and Ms G reports at [198]:
[Y] explained he was worried about what he said as 'I don't want dad to get upset. I might say something he doesn't want me to say.' [Y] believed 'mum won't get upset. She said 'say what you want'.
[Y] indicated that he wanted 50% time with Mr Erickson … 'So he could go to soccer every day with Mr Erickson'
At [202] and in respect of the relocation [Y] says:
If his mother does move away, [Y] reflected he would be sad but he felt confident she would facilitate 'face time' calling his father. He explained 'she's not mean. We'd go see him on school holidays.'
In her evaluation Ms G notes a continuing lack of parental co-operation, communication and co-parenting. She says that the parents have a pattern of ‘negative attitudes towards each other.'
Ms G’s notes that the children's physical needs are met by each parent, but she has concerns in respect of the children's emotional needs. She suggested that the children have been exposed to adult conflict and that this has upset all three children. She notes the boys have ‘externalised behaviour' including physical fighting and 'lashing out'. Ms G says that [Z] presents as having 'internalised her anxiety'. She notes the children have witnessed and are aware of the domestic violence. All these matters combine for Ms G to opine that any proposal for 50/50 time would be unlikely to work for the children.
In respect of the mother's proposed relocation of the children, Ms G says at [215 – 216]:
From the children's perspective there are positives associated with the moved to Location A. [X] in particular has become labelled at school is a problem. He is associated with a peer group who are getting into trouble. A move away would give him an opportunity to take a different path. There is concern that if action is not taken to read – direct [X] he will start to fulfil, the negative image others have of him.
A move would also take the children out of the position in the middle of the parents’ conflict. From the children's comments it is clear they are well aware of their parents’conflict and their parents’ attitude towards each other.
Ms G concludes that the children are clear in wanting to continue to spend time with their father but assesses that they would 'manage if they spent less time with him'.
Relevant Law
In Bale & Bale[1] at [64] I note generally in respect of matters involving a proposed relocation of children and pertinent to this matter:
Matters involving a proposed relocation of a child, and in particular a young child, are among the more difficult ones coming before these Courts. Unlike the majority of parenting matters which often involve only discrete disputes as to actual time between children and parents, the relocation of a child will inevitably leave the remaining parent aggrieved and with a significant sense of loss. The nature of the relationship between the child and the parent will almost surely be changed in its frequency and, therefore, in its nature. Relationships for the child with extended family members will be impacted. The feelings of loss will often be accompanied by a sense of bitterness toward the parent successful in the relocation of the child resulting in future mistrust, communication difficulties, lack of flexibility, and lack of co-operation. The remaining parent will be denied a relationship of flexibility or spontaneity. Opportunities for involvement in the child's schooling and extracurricular activities will be made more onerous and often lost altogether. Practical issues arise in respect of travel and the costs of such travel. Children, as they grow older, develop personal relationships which test the durability of any court ordered time – with arrangements.
To the contrary, however, orders obligating an unsuccessful applicant to live in a location other than their preferred one will inspire similar loss and bitterness. Feelings of blame might understandably be placed on the other parent and again resulting in a loss of trust, flexibility and co-operation. A parent left without perceived family or other support may suffer consequent difficulties in their own parenting capacities and the nature of a relationship of the child with the parent may also be negatively impacted. As such, the nature of parenting matters involving a relocation inevitably bring with them a sense of 'win' or 'lose'. The court is therefore left with little or no room for subtle construction in its orders.
[1] [2016] FCCA 680
Notably, the Family Law Act (1975) ('the Act) is itself silent as to the notion of 'relocation'. It follows that relocation is neither expressly prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate children is simply one factor to be considered among a plethora of considerations in arriving at orders which, on balance, provide for the best interests of the children. In this sense, the Full Court in Taylor & Barker[2] confirmed an earlier authority of Paskandy & Paskandy[3] that there can be no dissection of a parenting matter into discrete issues of, firstly, with whom the children shall live and then a further or separate issue as to whether a relocation should be permitted'. The Court in Taylor & Barker observed:
In our view, His Honour dealt with the relocation proposed in the context of his considerations of s.60CC and s.6560DAA, at least in so far as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of making the necessary findings in relation to the s.60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s.65DAA.
[2] (2007) FLC 93-343
[3] (1999) FLC 92-878
Fundamentally, s.60CA of the Act obligates a Court to make orders which have the children's best interests as its paramount consideration.
Nevertheless, peculiarities of matters involving relocation have seen the High Court in MRR & GRR[4] note and emphasise the dual requirements of parenting orders to be both in the children's best interests and 'reasonably practicable'. Such considerations are to be seen within the context of trial judges being statutorily mandated, upon a finding or an order for equal shared parental responsibility in parents, to follow that statutory course of consideration being, firstly, whether it is both in the children's best interests and reasonably practicable for the children to spend 'equal time between the parents' or, if the answer to either of those questions is in the negative, then for the children to spend ''substantial and significant time' between the parents. The latter notion is defined in the Act as involving time for children with a parent on both weekends and week days and time which allows the children and the parent to be mutually involved in each other's activities and interests.
[4] (2010) 240 CLR 461
In the matter now before me, the father proposes alternatives of equal time or substantial and significant time. To the contrary, the mother's proposal for relocation of the children to Location A effectively negates either proposal as being not 'reasonably practicable'.
Importantly, the High Court in MRR & GRR (supra) noted at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, and not whether it is deable that there be equal time spent by the child with each parent. The presumption in s.65DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both the parents remained in (X location), (the trial judge) was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
For the benefit of trial judges, (and also following the relevant amendments to the Act in 2006) Full Courts of the Family Court have over some years compiled a list of ‘principles' which are a helpful in respect of matters involving a proposed relocation of children. Those principles can be summarised as follows:
·Relocation matters are to be determined generally with reference to part VII of the of the Act;
·The child's best interests remain the paramount but not the sole consideration;
·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interest (section 60CC matters) and where appropriate, s.65DAA (reasonably practicable);
·The Court must consider the parties’ proposals, including the advantages and disadvantages of the proposed relocation, and may be required to formulate proposals itself in the best interests of the child;
·Neither party bears an onus to establish that a relocation or a continuing of an existing regime will best promote the interests of the child;
·An applicant for relocation need not show 'compelling reasons' in support of the relocation but must provide probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and
·The child's best interests must be weighed and balanced with the 'right' of the proposed relocating parent’s freedom of movement but that such an adult 'right' must ultimately defer to the child's best interests.
The starting point for the Courts consideration is the presumption offered at s.61DA of the Act of equal shared parental responsibility for parents in their children. 'Parental responsibility' can be defined as all the duties, powers or responsibilities and authority which parents hold in respect of their children by reason of law. Such responsibilities usually manifest in important decisions for children in respect of matters such as education, religion, medical procedure and similar.
Importantly, for the matter now before me where family violence is featured, the presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or abuse of a child. Alternatively, the presumption may be rebutted by evidence satisfying the Court that such an order would not be in the children's best interests. The mother here asks for an order for sole parental responsibility but with obligations of notification to the father. Mr Erickson proposes an order for equal shared parental responsibility.
The children's best interests are determined by referencing the parties proposals and the probative evidence to the framework set out in s.60B of the Act and then by a reference of that evidence to the more pragmatic considerations set out in section 60CC(2) and (3) of the Act. Section 60B of the Act sets out the objects and principles of the legislation in the following terms:
The objects of this part are to ensure that the best interests of children are met by:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children;
(b) Protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children;
The principles in underlying these objects are that (except when it would be contrary to a child's best interest):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The section 60CC considerations are categorised as 'primary' at subsection (2) and 'additional’ at subsection (3). There is, however, no hierarchical importance and each matter is to be considered as to its own factual platform with weight and balance to be attributed accordingly. The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2) & (3) Considerations
s.60CC(2)(a) – the benefits to the children of having a meaningful relationship with both of the children's parents
The family report makes it clear that all three children are desirous of having a continuing and successful relationship with both of their mother and their father. The tenor of the family report interviews with the children and consistent with the mother being the primary carer of these children since separation and perhaps during the course of the relationship due to the father's absences, sees these children's primary attachment and source of support laying with their mother. That is, despite the difficulties for the mother with the boys, in particular, even they show a tendency towards the mother as does [Z].
The father by implication argues that a relocation of the children to Location A will impact on his relationship with the children and might disrupt the development of those relationships. This is obviously an important consideration for the Court in respect of the mother's proposal and, in particular, whether the relationship between the children and their father is established to a degree whereby those relationships would ensure and survive the proposed move. Nevertheless, such a consideration is not of itself determinative of the ultimate best interests of these three children but simply one factor to be weighed and balanced with the numerous others set out in section 60CC (2) and (3) of the Act and ultimately the children's best interests[5].
[5] Champness & Hanson [2009] FamCAFC 96
Understandably, Mr Erickson fears a fracturing of his the relationship with his children because of the change in frequency of direct contact. Importantly, however, and within the same context, the Full Court in McCall & Clark[6] emphasised that the adjective 'meaningful' in the section is to be seen in qualitative rather than quantitative terms where the enquiry for the Court is essentially a prospective one but obviously considering the evidence in its current and historical terms.
Section 60CC(2)(b) - the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[6] [2009] FLC 93-40
These issues of physical and/or emotional violence are highlighted in this matter. Firstly, the mother argues that the father has shown a propensity to imbue the children in these proceedings and in the adult relationship between he and the mother. Despite the father's denials in cross-examination, there is evidence from the family report which corroborates the mother's concerns in this respect. There is the above-mentioned evidence from the children that Mr Erickson has encouraged them to write letters with their preferences for living arrangements. At [163] [X] is reported as relating 'dad makes sly comments. He says sometimes your mother is so wicked. He talks crap and I ignore him.'. [Y] was even more forthcoming at [156] and in respect of both parents thus:
[Y] referred (sic) his parents making negative comments about each other. 'he (Dad) says sometimes she (Mum) can lie, that some things she tells us are lies – like that dad wants half million dollars.' [Y] added his mother said about his father 'that he is the one that lies and he does want half a million.'.
Importantly, at [2008] the family reporter says:
There is concern as to the children's emotional needs. It is assessed that the children have been exposed to the adult conflict. All three 3 children present as upset by this. The boys have reacted with externalised behaviour. There physical fighting and lashing out presents as a tool to manage their feelings. [Z] presents as having internalised her anxiety.
Mr Erickson was unconvincing in his denials and attempted explanations and deflections when challenged in cross-examination as to involving the children in both these proceedings and in the adult dispute. Whilst the mother may also be culpable in this respect, my impression is that the father has been more direct and calculating in that involvement of the children than has the mother.
The mother in her affidavit material provides a litany of which she says was abuse perpetrated by the father including physical, verbal abuse and intimidation. She says she suffered injuries as a result of the physical abuse.
The father in cross-examination blanketly denies being the instigator or perpetrator of family violence. He points to mutual domestic violence orders and suggests that, at worst, he acted only in self-defence. Relevantly, however, the father accuses the mother of inflicting physical violence on the children. He brings corroborating evidence from two neighbours. He says that the children have made frequent complaint to him of physical discipline at the hands of the mother. However, this assertion and evidence must be seen in context and in this sense the family report is enlightening. At [12] the mother is reported as:
There was an incident on the evening of Sunday 26 November 2017. Ms Woodham states [X] was hitting [Y] and [Z] and so she had to pull [X] off [Y]. She states [X] threatened he'd run away, so she physically restrained him. She recalls [X] swore at her (calling her a ‘cunt’), calling [Y] a 'pussy' and said he would hit [Y]. She put [Y] and [Z] in her bedroom to protect them. [X] bashed on the door and yelled. She tried to calm him. [X] punched a hole in the bedroom door and when she opened it, [X] pushed hard and the doorknob made a hole in the wall. She described [X] physically struggling with her as she tried to quieten him. She recalls he had been so angry, he started to become drowsy. She saw lights outside and realised it was the police. She recalls by the time she went to open the gates to the property, police had driven away.
The above is the incident referred to in the affidavits of the neighbours brought to Court by the father. Further, at [30] Ms Woodham describes [X] as angry and reports on one occasion when she stopped him seeing a friend J (who both parents describe a bad influence), [X] responded with 'you can't stop me fucking bitch slut’ She goes on to describe [X] as assaulting [Y] during the same event. She says that she was physically attacked by [X] [31] when she discovered drug implements in his room.
Both parents indicated to the family reporter [63] that the school on the verge of expelling [X] due to his habitual aggressive and bad behaviour the dynamics around [X] are perhaps best explained by his comments to the family report at [187] and [189]:
[X] indicated an outcome he would not like would be a reduction in time with his mother. He commented 'we fight but I love her.' he acknowledged he had hit her. ‘I took my anger out on her. I couldn't get it out with dad.' …
[X] indicated he felt able to talk to his mother and was confident she would listen to him. He contrasted that he wanted to ask his father not to lecture him but he did not feel able to say that to Mr Erickson.
It is abundantly clear that aggressive behaviour and actual violence of the physical, verbal and emotional types has highlighted the relationship between these parents and the lives of these young children. I am comfortably satisfied on the evidence that there has been physical violence between the parents and power imbalances within that relationship. I am satisfied that the boys, and particularly [X], have exhibited serious violent tendencies in the mother's home. I am not satisfied on the evidence that the mother has instigated violence towards the boys in the sense asserted by the father but has acted appropriately in attempting to install some order and discipline within her home. The admissions of [X] himself make this clear. At square [215] the family reporter opines:
From the children's perspective there are positives associated with a move to Location A. [X] in particular has become labelled at school as a problem. He is associating with a peer group who are getting into trouble. A move away would give him an opportunity to take a different path. There is concern that if action is not taken to read-direct [X], he will start to fulfil the negative image others have of him.
Section 60CC(3)(a) – any views expressed by the children and any factors such as the children's maturity or level of understanding that the court thinks are relevant to the weight it should give to the children's views.
[X] is 14 years of age. The twins, [Y] and [Z], are now aged 10. Underlying any weight to be given to the children's views and preferences is the comment made by the family Reporter at [222]:
It is pertinent to note that although [X] is 14, he is still in the early stages of adolescence and does not yet have full capacity to understand the full implications of comments he makes. At [Z] and [Y]'s age and developmental stage they do not have the capacity to consider the implications of their comments.
The family reported noted that all three children indicated that they wanted to maintain contact with both parents. More specifically, however, the more particular indications from the children were positive in respect of a proposed move to Location A with their mother. In this respect the family reporter noted at [218]:
Whilst the children were clear they wanted to continue spending time with their father it is assessed they would manage if they spent less time with him. It would be important in this eventuality that the children had frequent phone contact with their father and guaranteed time in school holidays with him. It would also assist if Mr Erickson was able to visit them in Location A for a weekend during term time, or perhaps the children were flown to Brisbane for a weekend with him during term time.
Although [Y] the indicated at [199] that he would like 50% time with Mr Erickson 'so he could go to soccer every day with Mr Erickson', he also says at [202:]
If his mother does move away, [Y] reflected he would be sad but that he felt confident she would facilitate him ‘FaceTime' calling his father. He explained, 'she is not mean. We’d go see him on school holidays.'
Similarly, [Z] at [196] seems to consider it a given that she would remain with the mother if the mother took a job in Location A.
Similarly, [X] at [190] seems to give an indication of a preference to live with his mother when he says:
In relation to a potential move to Location A, [X] spoke about positive and negative impacts. He offered the option that if he didn't go, he could stay with his maternal grandmother. [X] indicated he wouldn't be concerned if he only saw his father during the holidays but he might miss his friends.
The children's views as to their living arrangements including potential moved to Location A must, of course, be viewed in the context of their ages and the fact that they have lived in a fractured family unit highlighted by tension between the parents but also where they have habitually experienced and understood their mother to be their primary carer. Nevertheless, all of the indications are that all three children wish to continue their relationship with their father.
Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents
The father was absent from Australia for long periods during the children's formative years. More recently the children have lived primarily with their mother by reason of interim Court orders. Undoubtedly, they see their mother as their primary support parent and carer. Even the tensions between the boys and their mother indicate this to be so and emphasised by [X]’s comments to the family reporter at [187] 'we fight but I love her … I took my anger out on her. I couldn't get it out with dad.'
The mother's evidence in Court and my observation and understanding of the father's evidence is that Ms Woodham might turn to him to assist with discipline of the children when such issues become extreme in her household. It is clear that the children are more fearful of the their father's discipline than that of their mother and, indeed, Mr Erickson suggests that his better capabilities in maintaining discipline and order for the children is one reason for them to remain in Brisbane with frequent contact with him.
It is clear that the children love each of their parents but view them in different and distinct roles in their lives.
Section 60CC(3)(c) - the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, spend time and communicate with the children and fulfil the parents obligations to maintain the children
The mother has been the primary carer. She has also been the major financial provider and support for the children. The father has had long absences from Australia. His income and consequent financial support for the children has been sporadic and minimal.
The father has, however, been involved in the children's schooling and extracurricular activities. [X] lived with the father during a period of dispute between [X] and the mother.
Section 60CC(3)(d) – the likely effect of any changes in the children's circumstances, including the likely effect of the children of any separation from either of their parents
This consideration is significant given the mother’s proposal to relocate the children from Brisbane to Location A. If this is to occur then the nature of the children's relationship with their father would change substantially in respect of frequency of direct contact. Whilst the children are of the ages where they can utilise various media, it is commonly accepted that such is not a substitute for direct time.
Further, the putting of substantial distance between the children and their father would remove the opportunity for spontaneous contact including the involvement of the father in the children's schooling and extracurricular activities which is something that both Mr Erickson and the children have obviously enjoyed.
Courts must also be conscious of the reality of children establishing new peer group relationships and interests if they were to re-locate and thereby placing strain on the children's compliance with any orders for them to travel to their previous place of residence during weekends and/or school holidays.
There are also the obvious logistical considerations of a move of some distance from Brisbane to Location A where the children are familiar with the flexibility and ease of frequent contact and moves between their parents.
Section 60CC(3)(e) – the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty and expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
There will be obvious logistical and cost factors in the children maintaining a relationship with their father if they should move with the mother to Location A. I expect that in these times there are regular flights between Location A and Brisbane but clearly at some cost for three children. The father, however, claims a deal of flexibility in his employment and he would perhaps be able to mitigate these difficulties by himself travelling at times to Location A. I note in this respect that the father categorically refuses any suggestion that he himself might move to Location A.
Section 60CC (3)(f) - the capacity of each of the children's parents to provide for the needs of the children, including emotional and intellectual needs.
The burden of attending to the children's physical needs has historically fallen upon the mother. She has generally been in employment and had the advantages of some injections of other finance. There is little criticism of the mother's capacity to physically provide for the children. To the contrary, Mr Erickson’s disclosed income is substantially less than that of the mother. He is untried as a primary carer of the children. Nevertheless, it seems that he has obtained rental accommodation which provides for the children to be with him at least for shorter periods.
The father criticises the mother's ability and insight in respect of attending to the children's emotional needs. He says that there is tension and anger in the household with the suggestion that the mother might be an instigator and culpable in this respect. A close consideration of the evidence, however, suggests that this is a mother dealing with two difficult boys negotiating their own anger management and behaviour issues and, in my opinion, she has addressed the children's emotional needs and their discipline in an admirable fashion.
Questions are also raised as to the father's understanding and insight into the children's emotional needs and, in particular, that he may have involved and imbued the children in adult dispute in these proceedings.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background of the child and of either of the child’s parents
The children enjoy and understand their Country B identity through their father and participate in various cultural events in Brisbane. I am satisfied that the mother acknowledges and is supportive of the children’s cultural identity with the Country B community and also satisfied that the children can directly continue to culturally identify through their father.
Section 60CC(3)(j) and (k) – any family violence involving the child or a member of the child's family and family violence orders
Matters of family violence including the issues with the children themselves are dealt with in detail above. It is clear that the parties themselves have had domestic violence orders mutually and that the father on an occasion has attempted to take out an order for the benefit of [X]. The evidence suggests, however, that there are no current orders.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to children
The orders that Courts make in parenting matters are by their very nature prospective. It follows that some changes in the children's or the parents’ circumstances are inevitable. Nevertheless, it is for Courts to make orders which they find on balance to be in children's best interests and then it is for the parents, armed with such orders, to move forward and parent their children are accordingly.
I note the children's ages and that the mother’s contract of employment is for a duration of three years only whereupon I expect she might then have an option for returning to Brisbane?
Findings and Conclusions
I am satisfied that all three children have attached and loving relationships with each of their parents. Nevertheless, I am persuaded that the nature of those relationships differs. It is clear to me that the children view their mother as their primary carer and source of direct support. The children themselves see their relationship with their father as being on a ‘spending time-with' basis. Nevertheless, Mr Erickson has in many ways been a positive influence and role model for his children. He has on occasion taken on the responsibilities of attending to issues with the children's schooling and discipline. He has assisted the mother when [X], in particular, has challenged her authority. He has shown a keen interest in the children's extracurricular activities.
The evidence of the family reporter persuades me the relationships for all these three children would endure a relocation for them from Brisbane to Location A. The children all wish to continue a direct relationship with their father. The comments, however, by them to the family reporter suggest they have already contemplated a separation from their father and contact on a less frequent basis.
Whilst there is no direct evidence of the children's views and preferences as to a relocation it seems clear that they are at least ambivalent or equivocal in their views. Certainly, there is little or no indication of the children being opposed to a relocation. To the contrary, the thrust of the children’s preferences seem to be to remain living primarily with their mother.
I am satisfied generally that there have been issues of family violence within this family unit and between the mother and the father. I am also easily persuaded that the boys themselves have been aggressive and at times violent in their relationship with their own mother. I do not accept the mother has been the instigator of any violence between her and the boys.
I am satisfied generally that both [X] and [Y] exhibit behavioural and social problems at their schools and that they have generally being labelled as troublesome in those schools. In this sense, there are some potential positives for both boys in a change of school or a change of location. I accept the evidence of both parents that the boys have been subject to poor peer group influences.
I am satisfied that the mother has a demonstrated capacity to provide for the children’s, physical, intellectual and emotional needs and has done so in large part as a sole similarly parent and under some difficulty given the behavioural issues with her two older children. I am not so persuaded in respect of the father. I find that he is a good, loving and caring father but only within the role that he has taken which is other than the primary role assumed by the mother. I am satisfied generally that Mr Erickson has attempted to influence and involve the children in this adult dispute and litigation and hence lacks some insight into the needs of adolescent children.
Whereas the mother is not required to show 'compelling' reasons for wishing to relocate the children, in my view, she must show some good or probative reasons where there are some obvious negatives for these children on the mother's proposal. The disadvantages of the mother's proposal include but are not limited to the following: –
a)That the very nature of the children's relationship with their father would be impacted by a move to Location A whereby the current high frequency relationship would be reduced to school holidays and the occasional weekend;
b)The nature of the children's relationship with their father would be further impacted by the loss of flexibility, spontaneity and the opportunity for mutual involvement in each other's activities;
c)Undoubtedly, the mother has experienced difficulties in disciplining the two boys and to this end has called upon assistance from the father who has been approximate and available. This support would be lost to the mother;
d)The already tenuous and intense relationship between the parents would be further tested by the need for logistical arrangements and the costs of travel for the children between Location A and Brisbane; and
e)The children themselves would need to adapt to new relationships, school and lifestyle.
There are, however, potential advantages of the children on the mother's proposal including but not limited to:
a)The children have an understanding of their mother as their primary parent and generally wish this to remain the case and the mother’s parenting would be enhanced by her being more emotionally stable and comfortable in her lifestyle and her employment;
b)The mother is the primary financial provider for these children and has an opportunity for promotion and security in her employment which will ultimately benefit the children;
c)The mother has, in any event, moved with the children from the former matrimonial home which has been sold and in this sense the children’s stability has already been disturbed;
d)There is clear influence that the two boys, in particular, are subject to poor influences and bad behaviour within their current social and school environments and, agreeing with the family reporter, might be assisted by a change in environment and a 'newstart'; and
e)The children have an established and strong relationship with their father which would endure their relocation to Location A.
On a consideration and balancing of all the evidence, I am of the view that the children's best interests are served by them continuing to live with their mother and also by the mother being permitted to relocate the children to Location A. I am satisfied that the mother will continue to foster a relationship for the children with their father. I am satisfied that the children are of an age and have such established relationships with their father that these relationships will endure. The mother is the primary financial provider for this family unit and has an opportunity to benefit both herself and her children through security and promotion in her employment.
I have also considered the question of parental responsibility. I am satisfied that the presumption at section 61DA of the Act does not apply by reason of there being family violence within this family unit and the parents’ relationship. However, despite the difficulties between their parents, these children have understood both their mother and their father to be involved in their discipline and in important decision-making for them. The children see and understand their father contributing in this role and in circumstances where the children’s direct contact with their father will be less frequent, I think it important for them that they continue to experience and understand Mr Erickson’s important role in discharging the obligations of parental responsibility.
In respect of the children's time with their father I am of the view that they will need to have quality holiday and weekend time with each of their parents but that some small adjustments can be made to school holidays so as to enhance and mitigate against the change in the nature of the children's relationship with their father by reason of a move to Location A.
I am persuaded that the parents should equally share the costs of travel for the children spending time with their father. Whilst, I acknowledge that it is the mother who has caused the expense by reason of a move to Location A and has a greater disclosed income than the father, I am also satisfied that she takes on a far greater financial responsibility for the support of the children. Whilst the bald evidence is of the father having a limited income there is also evidence before me of substantial cash injections in his favour.
I have also received submissions in respect of the imposition of an Airport Watch List order in respect of the children. Where the father has Country B connections, travels frequently overseas, and has tenuous connections to Australia and where Country B is not a signatory to the Hague Convention and also where there is minimal mutual trust between these parents. I am satisfied that the making of such an order is in the children’s best interests and there will be an order for three years.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 13 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Costs
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Injunction
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Procedural Fairness
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