WORDSWORTH & WORDSWORTH
[2021] FCCA 368
•17 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WORDSWORTH & WORDSWORTH | [2021] FCCA 368 |
| Catchwords: FAMILY LAW – Parenting– final orders – two children, aged 12 and 8 – where the parties agreed to move from Melbourne, Victoria to City B, New South Wales – where the relationship broke down – whether the mother should be allowed to relocate with the children back to Melbourne, Victoria – where the Court has significant reservations as to the mother's capacity to foster the father's relationship from Melbourne – best interests of the children. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII |
| Cases cited: MRR & GR (2010) FLC 93 – 424 Zahawi & Rayne [2016] FamCAFC 90 |
| Applicant: | MS WORDSWORTH |
| Respondent: | MR WORDSWORTH |
| File Number: | NCC 2637 of 2019 |
| Judgment of: | Judge Betts |
| Hearing dates: | 15, 16 and 17 February 2021 |
| Date of Last Submission: | 17 February 2021 |
| Delivered at: | Newcastle |
| Delivered on: | 17 February 2021 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mooney |
| Solicitors for the Applicant: | Winder Lawyers |
| Counsel for the Respondent: | Mr Guyder |
| Solicitors for the Respondent: | Delaney Roberts Family Lawyers |
ORDERS
That the parties have equal shared parental responsibility for the care, welfare and development of X (born in 2009) and Y (born in 2013) (“the children”).
That the children live with both parents in a week about arrangement shared care arrangement with changeovers of the children to occur at 9am or the commencement of school each Monday.
During the school Holidays at the conclusion of term 4, Order 3 be suspended and:
(a)During odd numbered years commencing in 2021, the children spend time with the father from 3pm or the conclusion of school on the last day the children are required to attend school for term four until 3pm on 6 January, and with the mother from 3pm on 6 January until 9am or the commencement of school on the first day that the children are required to attend school for term 1;
(b)During even numbered years commencing in 2022, the children spend time with the mother from 3pm or the conclusion of school on the last day the children are required to attend school for term four until 3pm on 6 January, and with the father from 3pm on 6 January until 9am or the commencement of school on the first day that the children are required to attend school for term 1.
If the children are spending the Christmas period within a 40 kilometre radius of the City B Post Office then the parent with the care of the children during the first half of the school holidays shall facilitate the children spending time with the other parent from 1pm Christmas Day until 9am Boxing Day.
If the children are spending their respective birthdays within a 40 kilometre radius of the City B Post Office then the parent with the care of the children shall facilitate the children spending time with the other parent from 1pm on the day of the birthday until 9am on the day after the birthday.
Notwithstanding any other Order herein, children spend time with the father from 9am until 5pm on Father’s Day.
Notwithstanding any other Order herein, the children spend time with the mother from 9am until 5pm on Mother’s Day.
Where changeovers do not occur at school, the parent commencing time with the children will collect the children from the residence of the other parent.
That the mother be hereby restrained by injunction from unenrolling the children from B School at City B without the prior written consent of the father.
All outstanding costs applications on the parenting aspect of the proceedings are reserved.
A copy of these reasons be provided in writing to the parties as soon as possible.
The property proceedings are adjourned for Directions to 13 April 2021 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Wordsworth & Wordsworth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2637 of 2019
| MS WORDSWORTH |
Applicant
And
| MR WORDSWORTH |
Respondent
REASONS FOR JUDGMENT
These reasons for judgment were delivered orally. They have been corrected from the transcript so as to make them easier to read.
Introduction:
These are parenting proceedings relating to two (2) children, X born in 2009 and Y born in 2013.
They are the children of the applicant mother, Ms Wordsworth and the respondent father, Mr Wordsworth. The parents met in New South Wales and formed a relationship in 2005. At that time the father was based in Sydney. The mother was based in Melbourne. After conducting a long-distance relationship over the ensuing years the parties ended up living together in Melbourne after the father left New South Wales and moved down there to make a start of his relationship with the mother.
The parties remained in a relationship, albeit one that had its difficulties over the years, before finally deciding as a family to relocate to the City B area, where the father’s family are based, at the end of 2018. That arrangement has proven problematic for the mother and the children and the relationship between the parties has subsequently broken down irretrievably.
The parents separated in August of 2019. The mother remained living in the parties’ rental home in the Suburb C area.[1] The father moved in next door to his parents at Suburb D.[2]
[1] A suburb in the City B region
[2] Which is also quite close to City B
The parties have been embroiled in some fairly unhappy litigation in this court as to both property and parenting issues.
The parenting issues are live before me and have been the subject of a hearing over the last two (2) days and into today.
In the course of the hearing I have had the opportunity to see both of the parents give evidence. I have also had the benefit of evidence from the Family Report writer in the proceedings, Ms E. There are also two (2) affidavits from friends of the mother based in Melbourne.
Fundamentally, the issue before the court at this time is whether or not the children should relocate with the mother back to the Melbourne region (as she seeks) or whether they should remain living in the City B region (as the father seeks).
The father’s proposal is that the children live effectively in a week-about arrangement with handovers to occur on a Monday and that the school holidays be shared. The mother’s proposal is that the children would live with her and spend some time with the father during school terms and school holiday periods.
By agreement, the children have been spending five (5) nights per fortnight with the father since he moved out of the Suburb C property in August 2019. He spends from Thursday evening to Monday morning with the children one week and from Thursday evening to Friday morning with the children in the other week. The parties have been able to negotiate this arrangement without needing a court order to that effect, which is perhaps somewhat unusual.
Each parent comes to this case advancing what they consider to be in the best interests of these children. The mother adamantly proposes that the children’s best interests would be served by returning to Melbourne, which is where she is from and where she has some support. Likewise the father strongly contends that the children’s best interests would be served by them remaining to live in the local area.
Material before me & some witness observations and findings:
In terms of the evidence and material before me, I have had regard to the documents relied on by each party.
I have taken into consideration the competing trial affidavits of the parties as well as the affidavits of the mother’s two (2) witnesses. I have had regard to the Case Outline documents, the proposed orders of the parties, the Family Report and, broadly speaking, exhibits 1 to 7 contain relevant documents that I have taken into consideration.
I have also been assisted by both Mr Guyder and Mr Mooney of counsel, who have each forcefully pushed their client’s interests in this litigation. I consider that each of them has made all reasonable arguments that could be made in respect of each of their client’s case.
It is always an advantage, sitting as a trial judge, to watch people give their evidence in a witness box. In this case, having had the opportunity to see the mother give evidence and the father give evidence was of great assistance to me in understanding the dynamics of this couple. The mother came across consistently as having a very strong personality. She came across as being very determined about what she wants and, to use the colloquial, is not someone to lightly take a step backwards.
The mother’s evidence began somewhat unfortunately when Mr Guyder asked her whether the father was a “good dad”.
Ordinarily, such questions could fairly be described as “Dorothy Dixers”. The mother responded - after a long and noticeable pause - that he was an “okay dad”, but considered that he was not acting in the best interests of the children in insisting they should remain in the City B area.
She followed it up by stating that her thoughts of him in 2019 - that he was nasty, selfish, lying and manipulative - was as true for her today as they were back then. She agreed with the proposition that she had a “poor opinion” of the father. These were regrettable things for her case and regrettable things for the children.
The mother, in my view, demonstrated a distinct lack of empathy for either the father’s circumstances, but also the children’s circumstances.
I had real concerns about her capacity to separate the children’s needs from her own needs. She was, in many ways, a less than impressive witness in things that she said. For example, she made it clear in no uncertain terms that she was absolutely not responsible for any of the mental health difficulties that have been experienced by the eldest child, who I will call “X” in these reasons since that is what the parties call her. The mother could not accept, she could not countenance, that maybe, just maybe, she had contributed to the awful difficulty that the children have been in in the past two (2) years or so, during which time there has been, I consider, significant pressure on them.
The mother has clearly wanted to return to Melbourne with the children and she is a contributor in a major way to the stress and anxiety that the children experience. She could not admit or even countenance the possibility that she had in any way contributed to that problem.
I was concerned about some of her evidence and, most importantly, about her attitudes and her capacity to reflect on the viewpoints of others to the extent that they differ from her own viewpoint.
Having said these things, the mother is a person who in many ways is very impressive. She has run and conducted a successful business. In that sense she is very much a self-made and driven person.
The father as a witness impressed me significantly.
He indicated when asked about the current difficult situation that it was half his fault that the relationship had broken down and that the parties found themselves in their current situation.
He expressed a concern that he thought the mother was going to hate him forever because he had taken his current stance. He expressed a concern that the mother would have been “hounding” X in particular, but both children generally, in relation to the move. He said:
I know what Ms Wordsworth’s like. It just comes out.
The father is a person who has made many sacrifices in his life. He lived in Melbourne in circumstances where the parties’ relationship was not always easy. He moved away from his own family. He involved himself in things such as social cricket and managing a local football team. He missed the passing away of three (3) of his own grandparents, something which I observed that he was upset about or, at least, temporarily upset about, when it came up in the witness box.
He has demonstrated a degree of resilience. He was an impressive witness, who I thought had a very positive attitude in relation to the children. Unlike the mother, I did not detect that he had a tendency to exaggerate things or, perhaps to be so dramatic in some of his language as the mother was.
As a general statement, I was more impressed with the evidence of the father than of the mother, but I want to make clear that a lot of the factual matters these parties debate do not really affect the outcome in this case. I do not intend to dwell on skeletons from the past that are best not exhumed for present purposes.
The two (2) witnesses called by the mother, who were not required for cross-examination, are close friends of hers. Ms F, who has been very good friends with the mother since 2013 and was asked to be the matron of honour at the parties’ wedding, is no doubt a supportive person to the mother, whose children are good friends with these children.
Likewise, Ms G, who met the mother through H School in Melbourne. Again her children get on well with, and are friends with, these children. Ms G made an interesting observation in her affidavit, which is that if the girls were to return to Melbourne she was sure they would fit right back into the community as they did previously:
Having said that, as the girls have maintained their relationships over the past two years, I believe they never stopped being part of the community.
There is some truth in that.
The Family Report writer was cross-examined by videolink.
She has concerns about whatever order the court might make. In some ways she affirms my own view of the matter - that it really is rather unfortunate that we are all sitting here having to make such decisions about the future care of these children because they love both parents, but sometimes circumstances like this arise and it is unavoidable that a court just has to make a decision. It is regrettable because there is really not an ideal outcome in this case, whatever I do.
The Family Report writer might fairly be said to have “sat on the fence” to a significant degree in terms of recommendations beyond pointing out the strengths and weaknesses of each parent’s proposal.
She did not think that the father’s primary proposal of equal time was a particularly attractive option because she considered that the children needed more stability at this time, and perhaps a primary home. She also thought there were risks to the children if the mother stayed in City B and was unhappy and “unable to move on” - a point exploited by Mr Guyder.
She also considered that issues of “reasonable practicability” were significant as well and that there may be a negative impact on the mother if she could not manage both her business and her childcare responsibilities from City B - a point exploited by Mr Mooney.
The law:
These are of course parenting proceedings which arise pursuant to the provisions of Part VII of the Family Law Act (“the Act”).
There are a number of key objects and principles which underpin the operation of Part VII that are set out in section 60B of the Act. I do not propose to restate them.
When deciding whether or not to make a particular parenting order the children’s best interests must be regarded as the paramount consideration: section 60CA and section 65AA. In arriving at a best interests determination, the Act prescribes mandatory considerations in section 60CC. These comprise two (2) “primary considerations” in section 60CC(2)(a) and section 60CC(2)(b) and then fourteen (14) “additional considerations” prescribed in section 60CC(3)(a) – section 60CC(3)(m), the last being a catch-all designed to accommodate the facts of each individual case and family that comes before the court.
Parental responsibility is legislatively defined in section 61B as:
All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 65DAC obliges parents who share parental responsibility to consult with each other about major long-term issues and make a genuine effort to come to a joint decision.
Section 61DA imports a rebuttable statutory presumption that, when making a parenting order for children, it would be in the children’s best interests for the parents to be allocated equal shared parental responsibility.
Once I make such an order, I trigger section 65DAA of the Act. This section requires that as the first option the court considers making an order for the children to spend equal time with the parents if such an order is in the “bests interests” of the children and “reasonably practicable”.
If an equal time order is not in the best interests of the children or is not reasonably practicable, then section 65DAA requires that the court must consider making an order that the children live primarily with one parent, but spend “substantial and significant time” with the other parent.
“Substantial and significant time” is legislatively defined in section 65DAA(3) as including time not just on weekends and holidays, but also time apart from weekends and holidays - and time which enables the parent to participate in occasions and events that are that are of particular significance to the child.
If equal time is not in the best interests of the children or not reasonably practicable, and if substantial and significant time are not in the best interests of the children or reasonably practicable, then the court must consider making an order that the children live primarily with one parent, but spend time with the other parent that falls short of “substantial and significant time.” In essence, the question is at large.
“Reasonable practicability” arises in this case as a relevant consideration. It always is. It is a matter that goes to the court’s jurisdiction to make orders. On one view, reasonable practicability is every bit as important as a best interests finding because best interests findings without an associated reasonable practicability finding render the best interests finding effectively irrelevant. For example, if equal time was in the best interests of the children, but was not reasonably practicable then the court cannot make an equal time order.
The High Court discussed “reasonable practicability” in MRR & GR (2010) FLC 93-424.
I will address that issue briefly by observing that in that case the High Court held that section 65DAA is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent with each parent. The presumption in favour of equal shared parental responsibility in section 61DA is not determinative of the questions arising under section 65DAA. In an equal time context, “reasonable practicability” in section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
In MRR & GR the mother was living in less than ideal circumstances in Mount Isa. The High Court observed that since equal time parenting would only be possible if both parents remained living in Mount Isa, the trial judge was obliged to consider the circumstances of the parents, more particularly those of the mother, in determining whether equal time was reasonably practicable.
The High Court went on to hold that had consideration been given to that question, then only one conclusion could have been reached, one which did not permit the making of an equal time order. The High Court referred to the fact that the mother was living in a caravan park with limited facilities, little availability of alternative accommodation, a long rental waiting list and no real opportunities.
Each case, of course, turns on its own facts. MRR & GR in some ways was a ground-breaking decision because it opened up the eyes of perhaps judges, but also the profession and the public at large to what had perhaps not been a fully appreciated provision in the Act relating to “reasonable practicability”, a provision that had in earlier authorities perhaps been conflated with the general assessment of matters arising under section 60CC. And it is true that section 60CC and section 65DAA(5), insofar as they relate to “reasonable practicability”, do overlap and, in a practical sense, that overlap is probably inevitable, but they are required to be given separate consideration. That is, best interests and reasonable practicability must be considered separately.
In Zahawi & Rayne [2016] FamCAFC 90, the Full Court (comprising Thackray, Murphy & Austin JJ) made a number of observations about relocation cases.
The Full Court said (omitting footnotes):
43. …Conformably with what had been said by the High Court in [AMS v. AIF (1999) 199 CLR 160] that a parent seeking to relocate with children need not show “compelling reasons” for the relocation, the Justices in the later decision of U v U [(2002) 211 CLR 238], and in particular Kirby J, referred to long-standing English authority, the emphasis of which can be seen in what Sachs LJ said in Poel v Poel:
…The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.
44. As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:
[W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.
and:
[T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.
45. His Honour went on to say:
This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject. However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation. So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.
46. However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
In Adamson & Adamson (2014) FLC 93-622 the Full Court (Ainslie-Wallace, Murphy & Kent JJ) held at paragraphs 65 & 66 of the joint reasons for judgment that:
·It follows from the decisions of the High Court in AMS v AIF and in U & U that in parenting proceedings there is no requirement for a parent to demonstrate compelling reasons to live where the parent chooses to live, be that a proposed new location or axiomatically in their current place of residence;
·the right of a parent to effectively live where he/she wants to live, and the freedom of mobility of that parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference and then the interference is legitimate only to the extent necessary to avoid such adverse effects.
In U & U the High Court held that this court is not strictly bound by the competing parenting proposals of each party. Subject to each party being given procedural fairness, the court can craft different orders if required to meet the best interests of the children in any given case.
“Relocation” itself is a term that does not appear, so far as I am aware, in the Family Law Act. It only appears inferentially as part of the statutory definition of a “major long-term issue” in section 4, wherein “major long-term issues” are defined to include:
… changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The legislature have clearly left open to the court to make decisions about what is in the best interests of the child in any particular case, which includes this one. Relocation cases are not a special category of case. They have to be determined just as any other parenting case subject to the reality that parents should be free to live where they want to live, that Australia is a free country, people ordinarily have freedom of movement, but that fundamentally the question will always remain one of the best interests of the children.
Findings of fact:
I propose to touch on the past history as briefly as I can and then to move onto a consideration of some specific, more recent events and a consideration of the section 60CC factors.
As I have indicated, the parties lived the bulk of their relationship in the Melbourne region when the father moved down there in 2008.
The mother had already by then established her business, J Pty Ltd, and the father was (and remains) a professional.
The parties agreed that the father would be a stay-at-home dad when X was born. The mother was effectively the breadwinner for the family. Having read what each parent says about their relationship, having seen these parties in the witness box and having considered all of the evidence in this matter, I am satisfied that from the mother’s perspective the father did not do enough in terms of being involved in the raising of X and later in relation to Y and that she felt she had taken on a disproportionate share of the burden.
The mother says that after about a year the father lost interest in looking after X, and generally running the household and attending to all of the necessary things that had to be done. I consider that the mother is genuine in that view.
I also consider that the father is accurate when he says that nothing he ever did was good enough for the mother anyway.
The parties simply did not have as amicable and cooperative an arrangement as could have occurred. They were both under some degree of pressure. The father was not doing what the mother considered necessary. Equally, he felt that nothing he did was good enough anyway. It seems to me that both of the parties were under quite a bit of stress.
They were probably both doing the best they could. I do not know that much turns on the exact details of who did what at that time because we are dealing here with events that occurred a very long time ago. It suffices to say though that some of the unhappy dynamics in the parents’ relationship were established fairly early on after X was born.
The mother, for instance, was unhappy about the father being involved in extra-curricular activities like cricket and football. He wanted to be able to do those things to connect with the community and to live his life in Melbourne, where he was choosing to live with the mother. This is just one example of a difficulty that the parents had.
Certainly, I do not for a moment question that it would have been hard for both of them. The mother was expressing milk for X, for example, as well as going to work during the day. I have no doubt that life was tough for this couple and, as I indicate, I am not sure that it really takes me very far.
It seems that around 2013 the mother wanted to have X start school at K School. It seems on the evidence before me that the father was not particularly happy about that. He was not working at the time and the father calculated that by the time both children went to that school that it would be costing the parties about $70,000 a year in school fees.
This is a lot of money in my view, having regard to the financial situation these parties were in.
The father ultimately acquiesced and the decision was made that X would go there. Indeed, both children did.
The parties had also purchased land, built a house and gotten themselves into quite significant debt. All of these things are common stressors for any couple. Human experience reveals that many relationships struggle without adding financial burdens on top.
These parties were financially stretched. It became apparent that the father would have to go back to work. Accordingly he did some contract work.
The father then started full-time work around the end of 2014. Life would have been tough for this couple. I have no doubt about it. The father was walking out the door early in the morning before the kids went to school. The mother was having to organise the children in the morning. She was then going to work. She and the father remained in difficult circumstances in terms of tension between them and it was pretty obvious that their relationship was a challenge for both of them. In truth, the mother could not really juggle all of these things on her own and the father could not really assist her that much given his work hours. He complains that he would come in the back door and be asked to make dinner straight away. I can empathise with both parties here. Their life was really stretched.
Part of that difficulty was the decision to enrol these children at K School at very significant cost. The parties ended up hiring a number of au pairs or nannies, some who lasted but a matter of weeks, some who lasted longer - but it is clear that they were stretched. It is clear that things were difficult for the parties. The mother, from her perspective, was trying to juggle full-time work effectively while also spending significant time with the children. She would say full-time. I do not accept that the father had little to no involvement with the children as the mother suggests. However, I do accept that his work commitments were significant.
Notwithstanding these difficulties, the parties got married and life continued on. By the end of 2017 or 2018 the parties had restructured their life somewhat in terms of the mother’s business and a decision was made that they would send the children to a much more affordable school, something the father had been wanting to do in the first place. The children were therefore moved to H School and it would seem, on the evidence before me anyway, that H School has been a good school. However, the mother complains that she was still working very hard, working long hours and there still remained significant tension between herself and the father about how they managed their household.
The mother was working long hours and struggling and, from the father’s perspective, he was working 10 to 12 hours a day to try to make ends meet as well. All of this culminated in the mother having some sort of a breakdown in March of 2018. She rang the father, telling him that she had had enough. She could not keep going this way. He went home, found that she had drunk some two bottles of wine and thrown various bits of paperwork around the house. He helped to settle her and put her in bed and the children do not seem to have been exposed to what happened.
To be clear, I do not want it to be suggested that I am being critical of the mother about this. This is just something that happened. The father did not allege that the mother’s mental health per se posed any risk to the children.
But the mother went to see a GP about it and subsequently after that she consulted Mr L, a psychologist. I have his notes before me as part of exhibit 7.
What happened next is a point of some conjecture between the parties where, perhaps, neither of them is entirely accurate. The mother paints the picture that the father suggested to her that in her seemingly vulnerable state that maybe the solution was for the parties to sell up and move to City B, where it was cheaper to live. A house had recently sold nearby in Suburb M for $1.5 million and the mother’s case essentially is that the father painted a great picture of City B, convincing her that they would be better off and debt free if they sold the house and moved there. She says she agreed to sell up and move to City B as a family thinking everything would be different. She would not have to work. The father would become the primary breadwinner and she could focus on the children as well as pursuing a degree if she wanted to do so.
That said, when their Melbourne home went to auction in late 2018 the mother said she “very reluctantly” signed the contract.
The father says that it was the mother who came to him suggesting that they move to City B because she was the one who was looking for a change of lifestyle.
Having seen the evidence in exhibit 7 and considering the matter generally, I do not think that the mother was as “gullible” as she might have thought or necessarily as vulnerable. Her notes with Mr L indicate that, far from having a terrible marriage as she portrayed in this court, things were happy and apparently the parties worked together as a team. I am not sure what to make of that evidence frankly.
On 27 June 2018 the notes of Mr L record that the mother told him that they were “talking sensibly” about moving to New South Wales.
Consistent with the father’s case, there is also evidence (page 39) that the maternal grandfather was going to be moving from Melbourne to City B, and also that the mother’s nephew Mr N, was going to be moving out of the maternal grandfather’s home and living somewhere else or having other care arrangements put in place for him. So it all makes sense to me that the grandfather was apparently intending to move as well.
The father indicated when cross-examined by Mr Mooney that, broadly speaking, the mother was excited to be moving to City B and that is consistent with the evidence. The girls were excited as well.
The picture clearly emerges that, from the mother’s perspective, the relocation to City B was a considered decision.
Upon sale of their Melbourne home, the parties netted $641,422 which included paying out some very high credit card debts.
The mother was going to shut down her Suburb O office and, effectively, she would have a lot more time to be available with the children and there would be more family time.
Initially it seems there was no difficulty at all with the parties living in City B in the Suburb C property, but it is fairly obvious that very quickly things came completely unstuck.
The father says that the mother experienced a culture shock moving to City B. Certainly I would think that City B and Melbourne are two very different places - but equally the mother had some familiarity with City B. She had spent some time there. The father’s family were from that area.
I broadly accept the father’s evidence that the mother complained about the people in the area. She did not like the people at the supermarket. She generally repented of her decision to move fairly quickly.
The mother says that the father was effectively up to his old ways in that he wanted to have a break from work; that he was not going to be supporting the family as had been intended, and he was not even particularly interested in spending more family time with them.
The father did admit that he wanted to have a “break” from work, having worked very long hours for the past four years or so, which, in my view, is entirely reasonable. But the reality of the matter is that he applied for a job in December 2018, was interviewed in January 2019 and started work in February 2019. To criticise him in that context about being lazy, indolent or otherwise failing to meet expectations strikes me as rather harsh. I agree with the father that the mother never really gave City B a chance. I do not think there is any other reasonable way to look at the evidence in this case. Very quickly she wanted to return to Melbourne after the parties had just decided to sell their house, relocate, get a rental house and look at other houses in City B to build. I can well understand in the situation why the father was initially very reluctant to want to “up and leave” and go back to Melbourne again.
There had already been a change of school for the children in 2018 and it would be somewhat of a chaotic move, frankly, to return to Melbourne so quickly.
I accept that after that time the father was under significant pressure from the mother to move back to Melbourne. From her perspective, I also accept that she was concerned about the level of debt that the parties were looking at getting themselves into in City B. While she did not give City B really, in my view, any reasonable opportunity to actually work, it seems to me that – rightly or wrongly - she was carrying some of the emotional baggage and attitudes from the past in relation to the father’s behaviours and attitudes and that these informed her decision, namely her fairly quick “turnaround” in terms of what she wanted.
I have no doubt that the mother would have been strongly urging the father to return to Melbourne. The father’s evidence is that they had two big arguments in March and April 2019, each of them lasting for approximately two hours. The father was concerned that the mother was going to leave and he could recall begging her, saying, “Please don’t leave. I will do whatever it takes.” The mother talks about the father vacillating, about his behaviour becoming erratic and vacillating wildly. At times he would start crying and begging her to stay. At other times she says he would be very aggressive, looming over her and pointing his finger and making threats, telling her, “You had better watch what you fucking say to me” or “You had better be fucking careful about what you do.”
Other times the father would say he did not know what to do. The children were well aware that the mother wanted to move back and by this time X was also expressing a desire to go back to Melbourne, a desire that she has expressed consistently since then.
The father wanted to stay in City B, but he could see that it made sense to go back as “three of the four of them” would be happy.
Mr Mooney submitted that the mother was concerned about the children’s best interests in City B, that her proposed relocation back to Melbourne was not so much about the mother as about what would be best for the children.
I accept that the mother thinks that going to Melbourne is best for the children. But I am strongly of the view that the mother’s initial reservations and desire to leave City B very much influenced the children. Unlike what the mother might think, I consider that her proposed return to Melbourne did not have as much to do with the children as about the mother’s wishes.
I accept the mother’s evidence that the father would have been somewhat erratic around that time. I accept that he, on occasion, may have behaved in an angry or aggressive fashion towards her. I struggle to think that he would have done so in any way that caused her any genuine intimidation. The father, on all of the evidence before me, is a conflict avoider rather than a conflict initiator.
He may well have said things to the mother in anger, but I accept that the father was torn. From his perspective, his life was being torn apart just as much as the mother’s was. This is a case that involves two parents, two human beings, two sets of feelings, two desires, two expectations, two futures, not just one and, of course, two other little futures that I have to be primarily focused upon.
So I accept from the mother’s perspective that the father was vacillating. I think he probably was. He was between a rock and a hard place and so, from her perspective, was the mother.
The father went off to see Dr P, Clinical Psychologist at Region Q Psychology. The mother did too.
The mother told Dr P about the father being selfish, about his apparent history of lying (describing him as an “amazing liar”). The mother’s denigration of the father there is as apparent as it was in the Family Report and as it was in the witness box when she gave her evidence.
From the father’s perspective, he talked about being hurt, how his hurt had turned into anger. He talked about missing out on his grandparents passing away. He accepted the mother had had to go through a culture shock. In my view he was himself lost and struggling with the situation. Both parents were struggling. The baggage that followed them from Melbourne up to City B had not gone away.
Much emphasis was placed on the events of 6 June 2019, which in many ways tell a story about this case. The parties were at an impasse. Clearly, if the father wanted to go back to Melbourne he would have done so. He had not. The mother clearly wanted him to agree to move back and on this particular day she initiated another discussion about it.
The father had just finished a night shift. On his own evidence he said to the mother:
Fine. We’ll fucking go back to Melbourne, but I’m not lifting a finger. You can do the lot this time. I’ll be the one who swans about in the airport.
From the mother’s perspective, he said:
Okay. We’re moving back to Melbourne. That should make you fucking happy. Are you satisfied? You won. We’ll fucking move back to Melbourne.
On either version of events, this was a pretty unhappy concession. The father says he had had two (2) hours sleep, the mother says he had had six (6) or seven (7) hours sleep – and I would be inclined to believe the father’s evidence over the mother’s on this - but perhaps it does not matter much anyway.
The mother says that the father agreed that they could move. He clearly did so in a situation where he felt some degree of duress, to be fair to him.
The next day the mother went to the City R for a conference. I am satisfied that there was no further discussion about the matter. Frankly, I would be surprised if the mother wanted to raise the subject again at all.
She had the father’s consent to move and she was very keen to go as soon as possible. She had told the girls about what the father had said that same afternoon. I accept that the girls, particularly X, made clear to her that they were happy that they were moving. The mother interprets them genuine expressions of the children’s wishes. This may be the case, but also, given the obvious tension between the parties to which the children seem to have been exposed (as is clear enough from the Family Report), it seems to me that it is just as likely, if not more likely, that the children were just glad that the parental fight was over. X particularly was immersed in all of this from a very early stage and has found herself “caught” between these parents.
When the mother went to the City R, the father went with the children to Town S where they spent time with the paternal grandparents over the ensuing days while the mother was away. I accept the father’s evidence that it was then that the father discovered that the mother had been emailing the Principal at H School about the children being re-enrolled there without having talked to the father about it.
The mother had not actually taken steps to unilaterally move with the children back to Melbourne, and I give her credit for that, but she had certainly made inquiries and organised to get the children back into school there without consulting him.
The paternal family strongly support the father and his desire to stay with the children in City B in the same way as the maternal grandfather strongly supports the mother to return with the children. It seems to me likely, if not probable, that while the father was at Town S the paternal family may have had a discussion with him about his agreement to return to Melbourne along the lines of, “What the hell are you doing, son?” or words to that effect.
Perhaps emboldened by his parents or perhaps having made the decision entirely unassisted by them, the father decided that he was going to stand up and tell the mother “No”. It came about in a most unfortunate way in terms of the mother's perspective because she says that when she came home on 13 June 2019, X asked her whether they were still moving to Melbourne. The mother said, "Yes, of course, we are. Why do you ask?" and X said, "Nanny said we weren't, that it was just a joke". (“Nanny” being a reference to the paternal grandmother.)
The mother says she told X not to worry, that they would sort it out when they got back.
The mother rang the father that evening to discuss the move. He said to her at that time, "I'm going to stop you there. We're not moving back to the Melbourne". The mother says she couldn't believe it.
To be fair, the father had also gone to see a solicitor as well around this time, or slightly before then, because he clearly wanted some comfort in terms of his legal position. So, as had been the case with this couple through their marriage, trust was not always the number one hallmark of this relationship and nor was communication at different times.
Both parties felt cheated, both parties felt like victims. I completely understand why each of them felt that way.
Regrettably however, the next day after another of the father’s night shifts, the mother demanded that the father come out into the kitchen. He had had something like three (3) hour’s sleep. She then called what might be called "a family meeting" wherein she said, "Right. Everyone around the dining room table. Right. Let's all tell daddy where we want to live." X replied "Melbourne", but Y pointed at the father and started to cry.
The father describes this as one of the lowest days of his life, and he says that he cried for two (2) hours after the mother left with the children to take them to school. He admits this is the first time that either child said anything to him about moving back to Melbourne. He thought they were happy where they were.
I can understand the rationale for the mother holding this meeting. The circumstances were that she had been regularly returning to Melbourne with the girls in the intervening period; she had continued to travel to Melbourne and she suddenly she felt as though there was great uncertainty again about what was going to be happening. She felt she was stuck.
But it was not a wise decision to conduct this family meeting, and it would be nice or at least comforting had the mother been willing to even admit some degree of contribution to the inevitable stress and angst that has followed on from that event when the difficulties between the parties were flushed out into the open. It is plainly obvious that this was a terrible situation for the girls to be in, but the mother did not seem to understand, in my view, or empathise with that.
In any event, the father moved out of the Suburb C property, moving to a rental property next door to his parents where the children had their own rooms. There is a section of the fence between their two homes that has been removed that enables the children to go from one yard to the other. The mother stayed living in the Suburb C property.
The parties reached a parenting agreement whereby the father would spend five (5) nights a fortnight with the children, as I have indicated earlier.
The children have since made some complaints to the mother about the father going to work early in the morning and about them being cared for by the paternal grandparents. But on balance I do not consider that such concerns have any real significance. It is quite apparent to me that the relationship between the mother and the paternal grandparents has broken down rather badly at this time.
The mother, for instance, complains that the paternal grandparents had organised paternal family dinners on Friday nights which included the parents and the children, as well as the father’s sister and her children. The mother says that the decision to hold family dinners was purely tactical to assist the father in his litigation. The father denies this.
The mother admitted calling the dinners “forced Fridays”, that the children overheard it, and that the children then adopted that expression.
The circumstances since then have seen the mother regularly commuting to Melbourne somewhere between every second and every third weekend up until the insidious COVID-19 wreaked its havoc on the parties in 2020. The mother kept the children with the same general practitioner and the same dentist in Melbourne. She never really established a doctor or a dentist in the City B area until she was able to return them to Melbourne.
The lack of trust between the parties has festered. In July 2020 the father brought an application to effectively obtain urgent relief that the mother not be able to travel with the children to Melbourne. This was around the time of a particular COVID-19 breakout down there.
His application also sought that the mother not spend time with the children in the interim, which was overkill. He says that he wasn't sure how that order got slipped into the application.
It would disappoint me if a “no contact” order is a default or “standard” solicitor’s form of order that will appear in an application unless positively deleted. I’m sure that that's not the case.
In any event, I can see how the mother was pretty offended by that order, but equally the “no contact” order was never pressed. The parties ultimately came before the court and an interim order was made that, effectively, prohibited the children from travelling outside of New South Wales. That restraint was later “lifted” by way of consent order on 20 November 2020.
The reality of the matter is that, up until the July 2020 restriction on interstate travel, the mother had been regularly and significantly involving the children in their life in Melbourne, catching up with her friends, and continuing to work in her business. She had maintained such a significant role in Melbourne because she was determined, from her perspective, that that was where she was going to be returning.
In the Family Report interviews in April of 2020 the mother came across as very angry and frustrated about the situation she was in, referring to the father in sarcastic and derogatory terms. She talked about the difficulty in travelling to Melbourne and running her consultancy business from City B. She talked to the Family Report writer about having to catch 6.10 am flights to Melbourne for work and return in a day. She talked about how she was trying to juggle client appointments for times when she was in Melbourne, and that involved a degree of elaborate planning with the maternal grandfather, who I note is now 82, somewhat deaf, I gather, and has some difficult walking at times, so it's no small imposition in that regard.
The mother complained about feeling socially isolated. Some of the language the mother used was exaggerated, if not histrionic in parts. That perhaps illustrates her negativity about City B more than anything else. She describes the children's friends living in "whoopdy whoop" which I'm not sure how to interpret, but I assume presumably means some backward place somewhere in the middle of nowhere, is how I would read that. The mother said that they have not been invited to one birthday party in City B, that she had been made “as welcome as leprosy”, to borrow her expression.
The father's evidence is that the mother herself had withdrawn from a local Facebook group in May of 2019, around the time when she was actively initiating a move back to Melbourne, and that does seem to be the case. The mother says that the only purpose of the group was to organise a pub crawl, but even if that is right - and it doesn't seem to me really that will I have to make a finding about it - I have no evidence whatsoever really of the mother making any effort to establish any social connections in City B. She has taken a very negative view of the place.
In terms of the father, he was complaining to the Family Report writer about the children sometimes being pulled out of school early on a Friday by the mother (so she could take them to Melbourne). He told the Family Report writer about the mother taking the children to business meetings in Melbourne, rather than taking them to school.
Somewhat poignantly, the mother would not ask the father or the paternal family to help care for the kids, even though the mother seems to get on reasonably well with the father's sister. Rather, she had her elderly father travel to City B to provide care for children for when she was away or to otherwise assist her, which is an extraordinary imposition to put on him, but one which he took on seemingly willingly. It really demonstrates that there were so many other much easier childcare options available that were not taken by the mother, one would think, but anyway it speaks as to the mother's negativity, if you like, about City B more than it does about anything else.
The Family Report writer, as I've indicated, addressed the relevant issues in her Family Report. She noted issues of family violence between the parties. She noted that the father and the mother both made allegations of emotional, psychological and verbal family violence, but that neither appeared as fearful of the other.
I do not see this, for my part, as a family violence case. While I accept that the father may have behaved aggressively to the mother on occasion, as she indicates, this was all in a situation of heightened emotion for everyone. Moreover, the father demonstrated some awareness and insight in relation to the impact of their arguments on the children in a way that the mother did not. The father did concede tracking the mother on her phone on one occasion. So there were some events which occurred, but I do not see them as being of any great significance in this case.
One aspect that does arise is the mother's statement to the Family Report writer in paragraph 90 of the Family Report that she had been given advice to move the children back to Melbourne and call the Police if the father tried to stop her; she reported that she feared that if she did so, that he would fly down and kill her; she was alleging that he had made unclear threats about harming himself, but she only worries about the safety of the children and herself; she said she was afraid that the father might “bump off” her and the kids as he "knows dodgy characters" and some of his friends have firearms.
The mother expressed these fears arising out of a high-profile murder which she clarified related to a lady in Brisbane who was killed in January of 2020 by her estranged husband.[3] That particular man appears to have been a “psychopathic animal” (my description). How you could compare the father in this case with anything I have read whatsoever about the father in that case is drawing such a long bow that it barely requires any elaboration.
[3] The mother was referring to the family of the late Hannah Clarke
The mother explained that she was extremely concerned living by herself at the time of the Family Report interviews and she was fearful that the father could “lose it”.
The mother was being totally and utterly histrionic in my view.
The Family Report writer interviewed the children, as I've indicated, and X was very clear that she wanted to return to Melbourne. She wasn't worried about plane travel. Her views may have been, it appears, influenced by loyalty conflicts, and I accept that as well. As for Y, she wanted the judge to know that she wanted the current time arrangement to continue.
As I've indicated, the Family Report writer ultimately made recommendations sitting on the fence, but it was quite apparent that she saw risks to the children's long-term welfare in terms of whatever order I might make.
In more recent times, there has been a deterioration with X. She does seem to have been caught up fairly intensely in this dispute. From February of 2020 in the subpoenaed records, exhibit 7, I have a record of her talking to Ms T who is the pastoral care worker at her current school, B School. In those notes, it is clear that X was expressing concern about going to her father's place, about him wanting to talk about what was happening, and her becoming upset.
Things seem to have become much worse for X around June of 2020. According to the records that are before me, the father’s cousin (or perhaps the child's cousin, it's somewhat unclear), was suffering from terminal stage 4 cancer. X was upset about that, and wanted to make presents for the cousin. This may well have impacted X to some extent. It was certainly a concern that X raised with Ms T.
Not long after that, on 23 June 2020, X was following Ms T around the playground. X disclosed hearing voices, a dark sounding voice warning her about playing with her friends, getting hurt, and not eating food that could be unhealthy or make her fat; and a fair description might be that the thoughts were generally obsessive compulsive fearful-type thoughts.
The child's mental health became somewhat worse over time. She clearly has been caught in the middle of a very difficult situation.
After school on 3 September 2020, X spoke to the mother about feeling suicidal. X said she had seen Ms T at the school and that she didn't want to be there anymore – which I interpret as X “didn't want to live anymore”. X said she had been thinking about hurting herself, thinking about suicide. She just wanted everything to stop. She couldn't go on until February [the final hearing date].
The mother was understandably upset about what X had told her. She spoke to Ms T at the school. The next day the mother received a call from the school Principal, referred to at trial as “Ms U”, who told her that she had contacted Child Protection Services as a result of X’s statements to Ms T.
There does not seem to have been good communication between the parties at this time. The mother does not seem to have taken any active role in talking to the father on 3 September about X's disclosures, but she said that the school told her that they would inform the father about it. So she assumed he would be told anyway.
It's not ideal, but then by the same token, the evidence about 3 September was all a bit confusing.
The father later accepted that he had in fact been contacted by the school on 3 September about X’s statements.
What matters is that on 4 September the father texted the mother stating that he took it that she was going to take the lead on the issue and organise what had to be done with the GP and a counsellor.
The mother responded by text that she would do so. Her text to the father went on to say:
This is about X and I'm devastated that the situation we're forced to live in has now caused our once happy, carefree child to be under such enormous pressure. I'm extremely worried about her and what this Court situation is doing to her. To really help X would be to help resolve this immediately out of Court, sign an agreement for the girls and I to relocate to Melbourne with visits back up here and she wouldn't be in this position. She would be happy and this would be over for all involved. Will you please reconsider your position for the sake of the children. In the meantime, I will keep you advised of doctors' details, appointments, etcetera.
The mother was clearly pressuring the father to agree to the relocation back to Melbourne and blaming him for all of X's problems, which she affirmed in the witness box. But equally, to be fair to her, she did obtain a Mental Health Plan for X who was referred by the GP to a psychologist, Ms U, whose notes are also before the court. The mother also kept the father informed about X’s subsequent follow-up appointments, and the father attended a number of them.
The situation got somewhat worse with X. In October 2020 there is some dispute about exactly what happened, but on 28 October X talked to Ms U about not only hearing voices, but also that she now saw the voice as a black figure, so she was having some sort of visual hallucination or ideation and clearly that was of great concern. The father gave evidence, as did the mother if I recollect correctly, that Ms U suggested that X have a “code word” to get her back into the present moment if she became lost in anxiety.
The 28 October 2020 meeting with Ms U was an unfortunate meeting for the parties. The child had told Ms U that the father had talked to her recently about the mother poisoning her mind against her.
The mother raised this matter at the meeting (between the parents and Ms U), and it seems clear that Ms U found herself stuck in a horrible family law dispute between two warring parents, or two parents who didn't get on at that time. The father adopted a passive position of just not responding to the allegations. The mother says that that the father said "It's best if I don't say anything". (It seems to me from reading the material that he had often adopted a passive position of just not responding during their arguments).
Effectively Ms U told both parents to watch what they were doing, and try not to make it worse for X.
The father denies saying to X that the mother would poison her mind but did agree that he had spoken to X on 22 October about his concerns if X were to move away to Melbourne. He says he told her that he was concerned that he wasn't going to be able to see her very often.
I don't make a finding that the father said to X that the mother would poison her mind. However, I accept that the child interpreted the father’s words in that manner and was affected by it.
The child has continued to have counselling since then. Fortunately, she has improved to a significant extent. But notwithstanding, the father accepted in his evidence that X remains “fragile”. I accept that.
The last counselling session with Ms U on 16 December 2020, notes of which are annexure “H” to the father's affidavit, record that they discussed issues with her friends and about feeling caught in the middle, but that the voice and figure had completely disappeared.
X was still experiencing suicidal ideation but, instead of it being a voice saying something to her, she was now thinking it in her own voice, and Ms U talked to X about a safety plan if she felt that way.
It also appears that the mother had discussions with the Department of Communities and Justice about putting in place a safety plan at her home. She didn't communicate with the father about it, but nor, it seems, did he communicate with her.
Best interests findings:
Turning then to section 60CC and the specific findings in terms of best interests, the two primary competing proposals are an equal time arrangement versus a relocation to Melbourne.
Neither party wants a 9/5 arrangement where the mother remains living in City B, but the mother has that as her “fallback” position and it's something that I also have to consider. Obviously, the mother’s fallback position is not in any way a concession by her.
Primary considerations:
In terms of the primary considerations, I have to compare the two competing primary proposals, bearing in mind that equal time is the first proposal that the court must consider, having regard to section 65DAA.
In terms of section 60CC(2), there is a benefit to the children having a meaningful relationship with both parents. The children love both parents. I accept that in crafting orders, it is not the most meaningful relationship that I must craft. It is not the optimum relationship, but a meaningful relationship: per Kay J sitting as the Full Court in Godfrey v Sanders [2007] FamCA 102.
Frankly, if the test was an optimum relationship with both parents, very few relocation applications would ever succeed.
If the parents both live in the City B area, the children can have a meaningful relationship with both.
If the mother lives in Melbourne, the father can still have a meaningful relationship with the children. However, there is a real risk, a real likelihood that his relationship with the children will be diminished to a point that it will become less than meaningful, or otherwise difficult for the father and the children to maintain a relationship. I say that because the evidence of the mother's long-term resentment of the father is apparent through all of this material and her views about him remain unabated.
It is one thing to comply with orders, it is another to genuinely promote a relationship, and I have some significant reservations as to the mother's capacity to foster the father's relationship from that distance.
I would add here that I have also significant concerns about the mother fostering the father's relationship with the children from City B. She would be very unhappy with a 7/7 order. I have concerns about the mother's capacity to foster the father's relationship in both locations, frankly.
Turning to subsection (2)(b), I don't see any relevant risk factor raised in respect of either party in terms of abuse or family violence or neglect. I am not satisfied that any family violence that may have occurred makes any real difference in this case. It does not give rise to any unacceptable risk.
Both parties propose equal shared parental responsibility, and I do not consider that there are any real risks arising under that subsection, save for the potential emotional risk to the children in terms of going forward whichever outcome the court arrives at. There are risks to the children whatever I do.
Additional considerations:
In terms of subsection (3)(a), I accept that X strongly wishes to go to Melbourne. She said as much. The father concedes as much.
The Family Report writer is concerned that the wishes are the product, or at least partly the product, of a loyalty bind. She agrees that, if X cannot return to Melbourne, that it may take a lot of time and intervention for the child to lose that wish. She may be disappointed, significantly disappointed, if I do not permit the relocation. I accept all of those things.
I also consider that X has been involved in the dispute between these parties and has found herself hopelessly caught in the middle for a very long time. She does experience significant loyalty conflicts in my view.
In terms of Y, she is much younger than X. The child told the Family Report writer she wanted to keep things the same. She pointed at the father in that tearful family meeting in June 2019. I think that she, on the evidence before me, does not want to go back to Melbourne.
Neither child’s wish is determinative. In my view, the children are caught in a very difficult loyalty situation.
In terms of subsection (3)(b), both parties were significantly involved in the care of the children during the relationship, the mother more so in the later years, the father more so in the earlier years. The mother has been the primary carer for the children since separation. I accept that the children have a close bond with both of their parents, but, certainly, the mother, in more recent times, has been the primary carer.
The children have relationships with the paternal family. They have friends in City B.
They have friends in Melbourne. They have the maternal grandfather in Melbourne. They have some other relatives of the mother in Victoria. But, in my view, their most significant relationships, by far, are with their parents.
In terms of subsection (3)(c), each parent has taken an active role in decision-making, spending time with the children and communicating with them.
I am not given any evidence, or any evidence of any significance, in relation to subsection (3)(ca).
In terms of subsection (3)(d) - the effect of any change in circumstances - the mother says that if she can return to Melbourne then she will be much happier there; life will be much better for her; she will be in a stronger position to parent the children; and she will be able to be an active and involved parent.
The situation is never entirely clear when one is predicting the future. The mother did struggle with the raising of the children and juggling her financial responsibilities back in 2018 and in the period prior to that. Her support in Melbourne consists of her father, who is in his 80s, and no doubt some close friends.
But from the children’s perspective, they also have paternal grandparents who are very actively involved, and an aunt, all of whom are fairly close by in the City B area.
I’m not so sure that the mother has quite as much support as she might believe in Melbourne, but she believes she will be happy if she returns there. And it may well be that she will be happier, at least in the short term. But she has never lived with the children on her own in Melbourne with the father at a distance. There are some unknowns, inevitably, as to how well things will go.
But significantly for the children, they are not used to living at a significant distance from the father either. It would be an enormous disruption to them. Their mother might well be happier, but the children will lose their day to day, or week to week, connection with the father in exchange for a much lesser period of time - with all of the travel and other issues involved, catching aeroplanes and the like.
Living in City B, the children could spend more time with the paternal grandparents and the paternal family. Equally living in Melbourne they will spend more time with the maternal grandfather, and perhaps the mother’s other maternal family members.
Moving again would be another disruption for the children. Remaining in City B is less disruptive.
But the question is whether the mother will cope longer term, and what negative impact that might have on her parenting, and in turn, on the children.
Another question in this case is what the impact will be on the father and his parenting if the mother and children move and he remains behind in City B, as he says he will. He has not found life easy himself. It seems to me that there is a real question mark about how well he will cope as well. The fact that he has proven to be more resilient than the mother perhaps might be a reflection of his desire to just “get on with the job” and make the best of his situation. But he clearly has experienced his own stresses as is indicated from the material from Dr P. The children could as easily feel sorry for him and feel loyalty and sadness about his situation down the track if they were to move to Melbourne.
Practicalities in subsection (3)(e) are an issue. Flights are manageable, but make the children tired, no doubt.
There are uncertainties around COVID-19. One would hope that with vaccination being rolled out at some point this year, hopefully, that life will return to a more normal keel, but in the short term, there are real uncertainties. This case is a very good indicator and example of that, given the past history.
No real issues arise in terms of practicality if the parties live locally or live in the same location.
In terms of parental capacity and attitudes in subsections (3)(f) and (i), the father has a much greater capacity to reflect and show insight into the needs of others than the mother does. I am concerned that the mother does not really separate the children’s needs from her own very effectively.
I have concerns about the mother’s capacity if she remains living in City B, and whether she can properly support the children. She paints the most dire picture imaginable of living “a life of misery and poverty” which is rather dramatic, but I suspect that a part of that so-called misery and poverty arises from the fact that she didn’t really give City B a go in the first place, having decided she was going to return to Melbourne.
The mother is certainly not obliged to live in City B, any more than the father is obliged to live in Melbourne. But part of the concern to this point and part of the real difficulty in this case is that the mother has never really given City B any chance to work. The father, in contrast, lived in Melbourne for years.
The mother’s capacity to parent the children may be adversely affected to a greater degree if she stays in the City B area than if she returns to Melbourne. That is definitely a greater risk, but I see risks wherever the mother goes given her rather negative – stridently negative – attitude to the father, and her inability, or unwillingness, to show any empathy for his situation.
In terms of attitudes generally, I think both parents have involved the children in this dispute to some extent. X talks about being under some pressure from going to the father’s home. The paternal grandparents have probably contributed, to some extent, to some of this as well. Both parents seem to have had the children caught up in this rather unfortunate dispute. The difference between the parents, though, is that the father has a capacity to at least see, and perhaps empathise with, and show some understanding in relation to these matters.
In terms of subsection (3)(g), I have already noted X’s difficulties. There are real risks to X if the mother does not cope with, or accept, a life in City B. There are real risks to both children if they were to go to Melbourne and miss their dad, as I suspect they will, and if they find themselves in a loyalty bind and feeling sorry for him, which is also a very serious risk.
There are no aboriginality issues that arise in this case. I have touched on family violence. It is impossible to make orders that lead me to a guarantee of no future litigation. Whatever I do in this case involves a degree of risk.
COVID-19 is an issue that I have touched upon. It has the capacity to wreak potential havoc on these parents and the children’s lives, potentially for the next year or maybe more. It is unclear. No one can really say. That will be a much bigger problem for the children if they are living in Melbourne than if they are living in City B.
Statutory pathway:
So I weigh up the two competing proposals in terms of the statutory pathway.
And I have already indicated both parents agree there should be equal shared parental responsibility, notwithstanding the difficulties in their relationship. They have been able to agree on major issues. They have a basic capacity to make things work, at least to this point, although it is a far from ideal situation between them.
The competing proposals give rise to problems.
I am concerned that the children may not be happy in the short term in City B, particularly if the mother is upset about the outcome, as she will be if I make an order for equal time in City B. The mother’s parenting may be adversely affected, and it may have an adverse impact on the children.
I am concerned about the children missing their father from Melbourne if they relocate. I am concerned about possible loyalty binds that might arise with them going in the other direction.
Though her happiness is very important to her and no doubt also has an impact on the children, I am very concerned that the mother’s negative attitude towards the father, and what seem to be some unresolved issues of anger and resentment against him, create a real risk for the father/children relationship if the mother relocates.
There is also that risk in City B as well. From one perspective, the risk may be greater because she may be more unhappy or more upset.
These children are not used to living away from their parents. Their parents have been actively involved in their lives throughout.
Weighing up the section 60CC considerations, my view is that on balance it would be in the best interests of the children for the parents to live in the same locality.
I consider that it would be in the best interests of the children to live in an equal time arrangement if that is reasonably practicable. An equal time arrangement would give the children the opportunity to spend maximum time with the father, but also to spend very significant time with the mother. It would keep the children in a situation where both parents are actively involved in their lives, and in my view, if such an order is reasonably practicable, it is an order that is more in the best interests of the children than an order permitting a relocation.
I am aware that the Family Report writer indicated that an equal time arrangement was not ideal for these children. The impact of some of the mother’s negativity and attitudes, in my view, are such that the additional time with the father would be a buffer, or a safeguard, against any damage that may be occasioned to the father’s relationship given the current situation.
In closing I should say then that I consider that a 7/7 arrangement is superior to, and better than, a 9/5 arrangement. And under section 65DAA, I need not go any further in that regard.
Reasonable practicability:
What about reasonable practicability? The mother’s case is that her business is based in Victoria, and that it is not reasonably practicable for her to continue to “hold the fort” from City B.
There is ample evidence before the court about the mother building up the business.
There is ample evidence before the court about the mother’s work. She has indicated in her evidence that 80% - 85% of her work is based in the office, 15% - 20% is based in the field.
She meets with clients. She has people who do the majority of work, or the labour intensive work – she having moved on from that work given her seniority over the years. She leases business premises in Suburb O, where her office is based. She keeps her equipment there, with which she photographs the various exhibits writes the relevant report/s.
Most of the mother’s work is office-based. She has been able to maintain the business from City B, even though it is based in Melbourne. The mother says that a typical day involves her meeting stakeholders for an hour in the morning when she is in Melbourne, and otherwise working from home.
She does have client and stakeholder meetings in Melbourne and surrounding suburbs. She says that if based in Melbourne she can arrange all of these for the mornings so she can do school drop off and drive to meetings.
When the mother has been living in City B, she has still had to organise her meetings in the mornings, which is inconvenient, but she has been able to do it.
The mother says she has no knowledge of the New South Wales legislation relating to cultural heritage. She has also, in my view, perhaps taken a “blinkered” approach on this.
The mother has worked in Western Australia. She has worked in the Northern Territory, South Australia, Queensland. The mother, it seems to me, does not want to look at the New South Wales legislation, does not want to develop a practice in New South Wales. There is no evidence of her having taken any steps at all to see whether, in fact, she could do so.
Now, she is not obliged to do any of these things, because she is no more obliged to live in City B than the father is to live in Melbourne. He does not want to return to Melbourne, even though he could obtain a job there quickly, because his evidence is that he will be back working long hours and he will not be able to see more of the children than alternate weekends anyway, which in my view, is not enough time.
A large part of the mother’s identity is based in her business. I accept that if the mother loses the business, that it would place her at a very difficult position – very difficult, indeed.
The mother’s commuting between City B and Melbourne has been a significant impost upon her, and she talks about that in her material. Her proposal, ultimately, is that she would do only Victorian based work so she would not be leaving the children alone at home if she was in Victoria. And that she would be able to manage that.
If I were to put in place a 7/7 type order, then the mother has seven days to travel down to Victoria to meet with clients and to organise things each fortnight. She has ownership of a home that her father lives in. She has been able to organise and manage her business quite successfully, it seems to me, since she moved to City B.
Do I suggest that it will be easy for her? Not at all. The question is whether it would be “reasonably practicable.”
I have no financial evidence whatsoever from the mother in this case as to losses, or as to disintegrating profits or the like since she moved to City B. Even though she says her business has been in caretaker mode since 2019, the fact is that she has still been able to earn a significant income in the order of $150,000, plus various fringe benefits and the like.
The question about reasonable practicability inevitably involves questions of degree.
The mother, it seems to me, has capacity to be able to work in New South Wales if she wanted to study the legislation. She is very intelligent, well educated, she has a successful business. Perhaps she could consider a transition of the existing business she has to New South Wales. I do not know for certain, I merely observe that she has not really made any effort to see whether it is viable.
It has been difficult for her to manage the business from New South Wales, but it has been do-able. It seems to me that she has continued to operate and run a significant and successful business, with difficulty.
She has not sought, at any time, to obtain any mental health diagnosis. She is not on anti-depressants; she stopped taking anti-depressant medication quite some time ago. There is no evidence that she is under any mental health disability at all.
The circumstances are such that she adamantly does not want to have to start a business again from scratch. But my view is, on the evidence before me, that she could continue to operate the business from New South Wales, albeit with difficulty.
Ultimately, I am of the view that difficult though it may be, it would be reasonably practicable for the mother to continue to operate that business from New South Wales. Though I say, to be clear, that I do not suggest that it would be easy.
The observations of Gummow and Callinan JJ in U & U arise:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents. Obligations, both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.
In this respect I should add that it would be open to the mother - and indeed she probably should do so - to seek some of her own assistance in terms of managing the future, and managing her own emotions in respect of this matter. Fundamentally, in the end, my decision is about what is in the best interests of these children, not what is in the best interests of one or other of the parents.
Conclusion & orders:
On all of the evidence before me, I have come to the view that an order for equal time and for these children to remain in the City B area, will ultimately work out to be in the best interests of the children from their perspective, once the dispute is extinguished. It will be a better outcome for them than an order that would permit the mother to relocate them to Melbourne.
In a situation where there is no perfect outcome, I am of the view that the father’s application should succeed.
Having regard to exhibit 3, being the proposed orders of the father, I propose to make orders in terms of orders 1, 2, 3, 4, 5, 6, 7, 8.
I am not going to make order 9 in relation to injunctions about where the mother lives. It is not pressed anyway. I see no reason to make that injunction. The mother can live in the general area, as long as she can have the children continue to attend at their school B School).
I propose to restrain both parents from un-enrolling the children from B School.
In terms of order 11, I don’t propose to make the specific order sought by the father restraining the mother from removing the children early on a school day. It may be that there will be some occasion that the mother may want to take the children with her to Victoria, and I would expect the father to be reasonable about such matters. The mother can continue to take the children to Victoria with some regularity if she wishes to. With difficulty, she can continue to manage her business.
The dispute needs to end. The children need a home. The loyalty conflict needs to end, and in my view, these children would be much better served living in the City B area.
I certify that the preceding two hundred and fifty-seven (257) paragraphs are a true copy of the reasons for judgment of Judge Betts
Associate:
Date: 1 March 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Injunction
-
Costs
0
4
2