Worley & Worley (No. 2)

[2007] FamCA 1052

FAMILY COURT OF AUSTRALIA

WORLEY & WORLEY (NO. 2) [2007] FamCA 1052

FAMILY LAW - CHILDREN – With whom a child lives – Relocation from Tasmania to Queensland - Orders made for children to live with mother, for sole parental responsibility to the mother and for relocation to be permitted.

FAMILY LAW - PROPERTY SETTLEMENT – Property acquired after separation.

APPLICANT: Mr Worley

RESPONDENT: Mrs Worley

INDEPENDENT CHILDREN’S LAWYER: Mr McVeity

FILE NUMBER: HBF 734 of 2006

DATE DELIVERED: 10 September 2007

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 7 &  8 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Applicant in person

SOLICITOR FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Temple-Smith Partners

SOLICITOR FOR THE RESPONDENT: Mr McGuire

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McVeity

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McVeity & Associates

Orders

1. THAT Mrs Worley (“the wife”) have sole parental responsibility for the children M Worley born … June 1995 (“[M]”), E Worley born … December 1998 (“[E]”) and K Worley born … September 2002 (“[K]”) (hereinafter collectively called “the children”).

2. THAT all previous parenting orders regarding the children be and are discharged.

3. THAT the children live with the wife.

4. THAT the wife be permitted to relocate the residence of the children from Tasmania to Queensland after 31 December 2007.

5. THAT UNTIL FURTHER ORDER the husband spend no time with M. 

6. THAT The husband be at liberty to send letters and cards to M.

7. THAT when the wife relocates to Queensland she notifies the husband in writing, within twenty one days, of the name and address of the nearest Contact Centre.

8. THAT each party shall:-

   (a)contact such Contact Centre within a further period of seven days and arrange an appointment for assessment of suitability for supervised time and changeovers;

   (b)attend the assessment;

   (c)comply with any appointment made by the Contact Centre for supervised time and changeovers;

   (d)comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre.

9. THAT if after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of time and changeover as set out in these orders then each party and the Independent Children’s Lawyer has leave to restore the matter to the list upon the giving of twenty one days written notice to the other party and to the Court.  Such leave to remain in place for eight months after the date of this order.

10. THAT the Contact Centre may recommend that the parties or either of them participate in a program or programs, and in that event either party may re-list the matter for mention on the giving of seven days notice.

11. THAT if after assessment the parties are accepted by the Contact Centre as suitable for supervised time and changeover, then the orders are as provided herein.

12. THAT the wife shall deliver the children to and collect the children from the Contact Centre at times specified by the Contact Centre and on each occasion shall promptly leave the building and vicinity.

13. THAT in the event that the Contact Centre offers supervised time/changeovers only at times which are less regular than specified in these orders then the time will be spent at times which are offered by the Contact Centre.

14. THAT pending further order the time E spends with the husband is to be supervised by the Contact Centre and the husband shall pay the fees for the supervision on each occasion.

15. THAT the husband shall not attend the Contact Centre or its vicinity before his time with the children is to start and shall promptly leave the Contact Centre and the vicinity when the time is at an end.

16. THAT the orders relating to the Contact Centre in Queensland shall have the same meaning and effect in relation to the Contact Centres in B or the R Contact Service at D in Tasmania.

17. THAT the husband spend time with K as follows:-

    (a)one part day each week for up to five hours with the Contact Centre being the place of changeover; and

    (b)such other times as is agreed in writing between the parties;

18. THAT the husband spend supervised time with E as follows:-

    (a)three hours on a weekend day of each week (to include part of the time when K is spending time with the husband);

    (b)such other time as is agreed between the parties; and

    (b)such time is to be supervised by the nearest Contact Centre as ordered herein. 

19. THAT both parties be restrained from abusing, demeaning or belittling the other party or member of the other parties family in the presence or hearing of the children.

20. THAT the wife give directions to any school to which the children attend to provide copies of school reports and assessments to the husband.

21. THAT the wife keep the husband informed, within a reasonable period of time, of any medical treatment afforded to the children and any medical or health issues pertaining to the children, a reasonable time should be at least within fourteen days and any such notice should be in writing, by SMS or by email.

22. THAT leave be given for the parties to apply in relation to the time the children spend with the husband and the communication the children have with the husband for further hearing such leave to be open for twelve months from the date of this order.

23. THAT the appointment of the Independent Children’s Lawyer be extended for a period of twelve months from the date of these orders.

24. THAT pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

25. THAT the parties do all acts and sign all documents to direct L Ruddle, Solicitor, to pay out to the wife the whole of the balance of the net proceeds of sale held by him on trust for the parties.

26. THAT BY CONSENT

    (a)the wife shall to deliver all negatives of all processed and unprocessed film to S… Photos, B, within seven days of the date of these orders;

    (b)the husband shall not remove those negatives from the said S… Photos, B, but the husband be at liberty to arrange for electronic or paper copies of those photographs to be taken and retained by him at his expense;

    (c)the wife shall deliver to her solicitors, within fourteen days of this order, the Chinese tiger print, and the solicitors for the wife shall inform the husband who shall have a further period of twenty one days to collect that print from that solicitor’s office.

27. THAT this matter be removed from the list of cases requiring determination.

28. THAT all subpoenaed documents remain on the file for a period of twelve months from the date of this order and then at that time be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same after the expiry of twelve months.

    IT IS CERTIFIED

29. THAT pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Benjamin delivered this day will for all publication and reporting purposes be referred to as Worley & Worley. 

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 734  of 2006

Mr Worley

Applicant

And

Mrs Worley

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. These are proceedings between Mr Worley (“the husband”) and Mrs Worley (“the wife”).  The proceedings commenced in April 2006 and relate to issues of parenting and property.

2. There are three children of the marriage, namely M aged twelve, E aged eight and K aged four, but who will be turning five in September 2007 (“the children”).  (I will refer to the children individually by their first names and as a group by the term “the children”).

3. An Independent Children’s Lawyer had been appointed and appeared by counsel during the hearing.

4. The husband sought orders by way of a stepped and complex living arrangement as set out in the husband’s application for interim orders filed in these proceedings on 13 March 2007 (document 21).  He also sought orders that the parents have equal shared parental responsibility in respect of the children.

5. The wife seeks orders that she have sole parental responsibility for the children, that they live with her and that she be permitted to relocate from Tasmania to Queensland.  She said that any time spent or communication had by the husband with the children should be on a supervised basis in Queensland conditional upon the husband giving twenty eight days notice.  The Independent Children’s Lawyer submitted that the orders regarding the time the children spend with the husband should be dealt with by way of interim order rather than final order to enable the development of a relationship between the children and the husband.  The Independent Children’s Lawyer’s submission is that there ought not to be any order for M to spend time with the husband and that as far as E is concerned, the time he spends with the husband ought to be supervised.  In terms of K, the Independent Children’s Lawyer submitted that her relationship with the husband is closer and that therefore the husband should be able to take her out from the Contact Centre from time to time for short periods of time.

6. In terms of property the husband seeks orders that the sum of $32,493.56 held in a solicitor’s trust account be applied to payment of an ANZ credit card debt of $8,000.00, a personal loan to the husband from Mr Ruddle (solicitor) of $2,000.00, a loan from his parents of $400.00, a GE credit line of $1,680.00 (for a king size bed acquired prior to separation), a GE credit line of $380.00, an electricity bill of $400.00 and a KC account of $350.00 and the balance then be distributed equally between the parties.

7. There was an issue as to some items of personal property: the husband sought namely some unprocessed photographs of the family and some paintings from China.

8. Orders were otherwise sought that each party should retain property debts in their possession.

9. The wife’s application was that she be paid the whole of the sum of $32,493.56 held in the trust account of the solicitor.

10. In these reasons a statement of fact constitutes a finding of fact unless otherwise indicated

    BACKGROUND

11. The husband is aged forty one and is in good health.  The wife is aged thirty four and is in good health.  The parties were married in March 1993 and did not cohabit prior to their marriage.  It was agreed that the parties separated in July 2005 and they were divorced in October 2006.

12. Proceedings were commenced by the husband in April 2006.

13. The parties met and married in Tasmania.  The wife had moved from Tasmanian, after originally living in Queensland.

14. In October 2004, about nine months before separation, the husband left Tasmania to live and work in Victoria.  This was done with the consent of both parties.

15. The wife has at all times been the primary carer of the children and she has continued to have that responsibility from separation to the date of hearing.

16. Whilst living in Victoria between October 2004 and July 2005, the husband returned home on about three visits of seven to ten days duration plus a further visit at the time of E’s birthday in December 2004.  The children stayed with the husband during these post separation visits. 

17. In Easter 2006 the children travelled from Tasmania to Victoria and stayed with the husband for a period of about ten days.  The husband had the care of the three children over that time.  The children had regular telephone conversation with the wife and on one occasion, at the request of M, he saw the wife at a McDonalds franchise for about half an hour.

18. Between April 2006 and November 2006 the children had telephone contact with the husband.  The relationship between the husband and the children deteriorated over that period. 

19. The husband saw the three children at a McDonalds franchise in B for two hours in December 2006 and saw both boys in Tasmania for about one and a half hours prior to Christmas 2006.  He did not otherwise see them until the commencement of arrangements at R Contact Centre in July 2007.

20. On 14 December 2006 the wife obtained a Police Family Violence Order against the husband.

The relevant legal principles pursuant to the Family Law Act – parenting orders

1. In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). The objects of the provisions of the Act relating to children are to ensure that the best interests of the children are met by[1];

   (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 child; and

   (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.

   [1] Family Law Act 1975 (Cth) s 60B(1).

2. The basic principles underlying those objects are that, except when it would be contrary to a child’s best interests[2]:

   [2] Family Law Act 1975 (Cth) s 60B(2).

   (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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly 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).

3. Each of the parents of a child have complete but several parental responsibility for such child[3]. This is subject to any court orders and must be subject to any presumption arising out of the operation of s 61DA of the Act. This section is part of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the 2006 amendments”) and became operative on 1 July 2006. The section provides that a court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for that child.

   [3] Family Law Act 1975 (Cth) s 61C.

4. A court must make a positive order or declaration to grant equal shared parental responsibility under s 61DA of the Act. If the presumption applies and is reasonably practicable[4], then an order must be made in accordance with the section. If not, then the court must either make a declaration that the presumption does not apply as a consequence of s61DA(2) or, if the parenting order is made in interim proceedings, the Court must find that such a joint parental responsibility order would not be appropriate in the particular circumstances of that case under s61DA(3). Additionally, if the presumption would not be in the best interests of the child then the court should make a declaration that the presumption has been rebutted pursuant to a determination made under s 61DA(4) of the Act.

   [4] Family Law Act 1975 (Cth) s 65DAA(1).

5. Once the question of parental responsibility is determined the court needs to determine the question of with whom the child lives and/or spends time with and the degree of communication a child is to have with another person[5]. In this case there is no issue as to where the children live, the only question is should the children spend time or communicate with the husband.

   [5] Family Law Act 1975 (Cth) s 64B(2) sets out the meaning of a parenting order and related terms.

6. In determining what orders it should make the court must regard the best interests of the child as the paramount consideration.[6]

   [6] Family Law Act 1975 (Cth) s 60CA.

7. The factors that the court takes into account in determining what is in the best interests of a child are set out in s 60CC of the Act.

8. Prior to the 2006 amendments, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists ‘primary considerations’ and ‘additional considerations’. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.

9. How does a court deal with this new “two tier list of factors” set out under s 60CC in determining the best interest of a child?

10. To give effect to s 60CC(2), the court must treat the listed considerations as being the “primary considerations”. This does not mean that they inevitably outweigh the other considerations, but some weight must be attached to the term “primary”. The Court must consider each of the additional considerations separately.

11. The Court should also have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.

12. In this case the primary considerations set out in s 60CC(2) of the Act go to the core of this decision, although they must be taken into account with the other considerations under s 60CC(3). The meaning of the primary considerations was considered by Bennett J in a recent unreported decision[7] where her Honour said;

    [7] G and C [2006] FamCA 994.

    The primary considerations

    65 The primary considerations echo the first two objects set out in s.60B. The primary considerations are set out in s.60CC(2) of the Act described as follows:-

    (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.

    66This is a case where both of the primary considerations are relevant.

    The benefit of a meaningful relationship – as a primary consideration.

    67 The correct interpretation of s.60CC(2)(a) is not free from doubt. One possible interpretation is that the court must take the benefit to the child of having a meaningful relationship with both of the child’s parents as a given – that is that there is a benefit to a child of having a significant relationship with both parents and the other factors have to be evaluated taking that matter into account. 

    68   The second possible interpretation is that the court must evaluate the nature and quality of the relationship to establish whether any “benefit” or meaningful relationship exists. 

    69   While I did not have the benefit of legal submissions on this point, I must nevertheless determine the issue as best as I can.  Because I am required to interpret new legislation the meaning of which is not immediately apparent, I am permitted to have regard to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006[8].

    [8] pursuant to s.15AB of the Acts Interpretation Act 1901 (Cth).

    70   The arguments supporting the first possible interpretation include:

    (a) Had the legislature intended an examination of benefits and detriments it would have phrased the sub-section to include the words “or otherwise” after the word “benefit”;

    (b)The explanatory memorandum in that part which deals with this sub-section is generally expressed to support the suggestion that the benefit of the child having a meaningful relationship is intended to be understood as a “given”;

    71   The arguments supporting the second possible interpretation include;

    (a)Section 60CC read in its entirety is a section which calls for the various factors therein outlined to be evaluated and weighed in coming to a view on what is in a child’s best interests;

    (b)The primary considerations are described in the explanatory memorandum (paragraph 4) as follows:-

    “The intention of separating these factors into two tiers is to elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act which are set out in the new section 60B...”

    The explanatory memorandum does not contemplate that the factor is to be accepted rather than evaluated. It simply explains that the legislature intended to elevate it to a more prominent role;

    (c)The whole of s.60CC calls for an evaluation of various factors by the court.

    (d)Had the legislature intended to build in a presumption that there is a benefit to every child in every circumstance the legislature would have made such a presumption clear.  I note in other parts of the amended legislation the legislature has clearly described presumptions which it intended the court to apply;

    (e)The terms of s.60B (1) (a) (one of the objects of Part VII) discuss the need to ensure that children have the benefit of both parents having a meaningful relationship to the maximum extent consistent with the best interests of the child.  The section calls for an evaluation of the best interests of the child in order to achieve appropriate compliance with the object.  It would be illogical to then require the court in establishing what is in a child’s best interest under s.60CC to accept as a presumption the very issue which will have an effect (in either a positive or negative way) on the attainment of the object. 

    72   My preference is to adopt the second possible interpretation and I do so.  It is a prospective enquiry.  I am therefore required to evaluate the extent to which a meaningful or significant relationship with both of his parents is going to be beneficial and of advantage to [the child] into the future. 

1. I agree with her Honour’s approach that “the court must evaluate the nature and quality of the relationship to establish whether there is any ‘benefit to the child’  in having or continuing a relationship and whether such relationship is or will be ‘meaningful’”[9].  Thus the evaluation should include consideration of whether, on the facts, a meaningful relationship can be established and, if so, whether it is of benefit to the child.

   [9] G and C [2006] FamCA 994, paragraph 68.

2. Whilst this is a somewhat “circular” approach, it seems the logical path to determine what parenting orders to make in the best interests of the child. It is the application of the facts to these principles that will enable the Court to make such a determination.

The relevant legal principles pursuant to the Family Law Act – relocation

1. In Godfrey & Sanders [2007] FamCA 102 (23 February 2007), Kay J gave consideration to the issue or relocation in light of the 2006 amendments to the Act. His Honour stated:

   28.    Relocation cases are notoriously difficult.  Both parties have valid claims of right.  The legislation requires the Court to regard the best interests of the child as the paramount consideration but what is in the best interests of the child is not a matter about which there may be universal agreement.  Further, as Kirby J said in AMS v AIF at 207-208:

   …a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents.  If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights.  However the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.  If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child.  There is no such universal rule.

   29.    The very many authorities that discuss the appropriate principles to be applied in relocation cases and as cited at the commencement of the Federal Magistrate’s judgment (see par 14 above) are all decisions that were made before the substantial amendments to the Act in July 2006. My research has only located one decision in which the effects on previous decisions relating to relocation cases as a result of the new amendments has been analysed by a Judge of this Court. That is a decision of Dessau J in M and S (formerly E) [2006] FamCA 1408.

   30.    That case concerned a proposed move to England from Australia by the mother of the child which would severely impact upon the existing arrangements that saw the child spending time with her father on two weekends per school term and half the school holidays.  Her Honour said:

   26. There is no explicit relocation provision in the new legislation, although one was considered. Recommendations of the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the exposure draft of the Bill (“the Report on the Bill”) recommended that the Act be amended to include a provision that, where there is a proposal for any change in the child's living arrangements that would substantially affect the child’s ability to reside or spend time regularly with the other parent or extended family, the court “must be satisfied on reasonable grounds” that such relocation would be in the child’s best interests. The recommended provision would have effectively placed an onus of proof on the moving party, and as such would have been a significant shift from existing case-law. The proposal was not adopted, although in second reading speeches there was discussion about possibly incorporating it into the Act after a report from the Family Law Council on relocation. For completeness, I note that the Family Law Council report was published in May 2006. The Council concluded that the best interests of the child should remain the paramount consideration in relocation cases, with the factors in s 60CC to be considered.

   27.The amended Act has one reference to a parent moving away from another, in s 4, where “major long-term issues” are defined as including:

   “(e) Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

   To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child.  However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.”

   Save for underlining the significance of such a move as an important issue for parents to decide, that definition does not assist further as to the correct approach in such cases.

   28.Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case [(2006) FamCA 1346] observed (at para 72):

   “… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”

   29.Before July 2006, the object of Part VII was expressed in s 60B(1) as follows:

   “The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

   30.In the recent amendments, s 60B(1)(a) provides that the objects 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 child;”

   In the revised explanatory memorandum to the Bill, it was noted (at para 52) that the object was consistent with the introduction of a presumption in favour of equal shared parental responsibility.

   31.The principles underlying the objects are similar to the previous version, but s 60B(2)(b) is now more specific about the right of children not just to have contact with both their parents and other significant people, but to “spend time …” and to “communicate” on “a regular basis” with both parents and other significant people “such as grandparents and other relatives”.

   32.The matters for the court to consider in determining a child’s best interests, as now set out in s 60CC, are also different in part from those set out in the previous s 68F(2) of the Act. In particular, there are two considerations expressed as “primary considerations”, the relevant one being:

   “…the benefit to the child of having a meaningful relationship with both of the child’s parents…”. 

   There are then “additional considerations”, including a newly expressed consideration:

   “(c)   The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;”

   33.The revised explanatory memorandum noted (at para 49) that the intention of separating the primary considerations from the additional considerations was to:

   “…elevate the importance of the primary factors and to better direct the court’s attention to the revised objects of Part VII of the Act.”

   The memorandum went on to explain (at para 52) that they were elevated as they deal with “important rights of children and encourage a child-focused approach”, although it was acknowledged (at para 51) that there may be some instances where the secondary considerations outweigh the primary ones.

   34.In the second reading speech in the Senate on 11 May 2006 (at page 55), it was noted that the Report on the Bill referred to the primary considerations in s 60CC(2) as intended to “draw appropriate attention to the objects’ provisions in a positive way”, and likely to assist in directing the court’s attention to those objects, “particularly in relocation cases”. That point, however, was not expanded upon further.

   35.The Attorney General’s submission to the House of Representatives’ Standing Committee on Legal and Constitutional Affairs noted that the primary considerations were “almost certainly” likely to have an impact upon the way in which relocation cases were decided, in particular, the emphasis on maintaining a meaningful relationship with both of the parents (see page 51 of the Report).  Again, there was no further discussion or elaboration.

   36.Although not in relation to relocation, Goode’s Case is of assistance, in underlining the legislative intent in favour of substantial involvement of both parents. The Full Court made it clear that in interim hearings, instead of simply preserving a status quo, the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child. In paragraph 65 of Goode’s Case, the Full Court sets out the pathway for the court to follow. I am satisfied it is also the appropriate pathway in this case.

   37.As noted, Counsel for both parties in this case agree that whether O lives in Melbourne or the UK, neither the concept of equal time nor substantial and significant time is a reasonably practicable outcome, so that, as set out in paragraph 65.8 of Goode’s Case, the issue is then:

   “…at large and to be determined in accordance with the child’s best interests.”

   And

   “9.     The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.”

   38.Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.

   39.The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply “except when it is or would be contrary to a child’s best interests”, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.

   31.    I provided each of the parties with a copy of her Honour’s reasons for judgment and invited submissions from them as to whether they sought to address me on reaching a different conclusion to that reached by Dessau J.  Counsel for the mother and for the Independent Children’s Lawyer understandably did not submit that I should reach a different conclusion on the law to that expressed by Dessau J.  The respondent father as a self-represented litigant was unable to advance the discussion any further. 

   32.    Without the benefit of a reasoned contradictory argument, I see no reason to depart from the conclusions reached by Dessau J that whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.

   33.    The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.

2. In this case the wife proposes to relocate the residence of the children to Southeast Queensland.

DISCUSSION AND EVIDENCE

1. In his case, the husband relied upon his affidavit in interim proceedings filed

   
   1 December 2006

   , an application with annexures filed in court on 13 March 2007 and the material attached to his contravention application filed 7 August 2007.  The husband also relied upon two further hand written affidavits filed on the date of hearing, one of which included a DVD of time he spent with the children.  That DVD was played in court during the course of the proceedings and is an exhibit.

2. The husband filed two late affidavits on 7 August 2007 which were admitted into evidence without opposition.

3. The husband attached to his affidavit a statement from his parents, who live in Victoria.  His parents provided support for their son.  They were not required for cross-examination.  I give them some, but not significant, weight as they could not be seen as impartial witnesses.

4. The husband provided references from Mr N, Ms A and a person called Mr B. These references were admitted into evidence without cross-examination. They were in the nature of character references. 

5. In relation to the contravention application it asserted by the husband that there had been at least ten contraventions in recent months.  The application was filed on the first day of the hearing and had not been served on either the independent children’s lawyer or the wife at the commencement of hearing.  That contravention application was transferred to the Federal Magistrates Court for hearing some time in the future. The husband was given leave to rely on the factual matters set out in that application.

6. When the husband gave evidence he avoided directly answering many questions.  He prevaricated and sometimes his answers were not understandable.  He endeavoured to minimise any poor behaviour on his own part and maximise alleged poor behaviour on his wife’s part.

7. He was not an impressive witness and his evidence often had a sense of being structured to suit what he perceived as being the needs in his case.  He is not a reliable witness and I generally prefer the evidence of the wife to that of the husband where they are in conflict.

8. The husband’s relationship with the children has deteriorated between Easter 2006 and the date of the hearing.  The husband says that this arose as a consequence of the behaviour of the wife, I do not accept that evidence. The husband does not believe he has played a part in this deterioration of the relationship.  He does not accept the complaint of the children that he did not speak to them for some time, nor does he accept that his poor behaviour towards the wife as set out in her affidavits (which evidence of the wife I accept) impacted on the children’s relationship with him. I accept the wife’s evidence that the husband had attended at the former matrimonial home and stood in the driveway making gestures to her as if he were shooting at her with a rifle, I accept her evidence that the husband had persistently driven past the residence and that the matters set out in paragraph 15 of the wife’s affidavit sworn 31 July 2007 (‘the wife’s affidavit’) occurred. The husband denied mimicking shooting a gun and said he simply made expansive hand movements, I regard his evidence about this incident as unreliable.

9. The husband disagrees that he threatened the wife and her lawyer. He has admitted using inappropriate terms with regard to the wife and clearly has little regard for her.  On the evidence it is unlikely that he will be able to enter into any effective communication with the wife, until such time as his own issues of mental health are managed.

10. I find that the wife endeavours to accommodate the relationship between the husband and the children but that the husband’s behaviour is such as to frighten the wife and give rise to her concerns about the safety of the children when in the care of the husband.

11. The husband’s aggressive behaviour has impacted on M who acted out badly in a recent contact visit. The husband said that he lost his temper from time to time and described a yelling match with M which occurred on the said contact visit.  He did not seem to have any insight into how this would have impacted on M, but was more concerned about the impact on himself.

12. The husband tendered in evidence a DVD of some interaction between the parties and the children.  There was a recording in the DVD where the husband was interrogating the children in the kitchen asking leading questions and the husband said that this is indicative of the wife having some sort of mental illness.  The husband did not have any insight as to the impact of his interrogation on the children in terms of their relationship with him and the wife.

13. Another scene in the DVD is a recording of the parties involved in a verbal conflict at Melbourne airport in the presence of M and E. The husband was making this recording without the knowledge and consent of the wife.  The children are clearly upset by that confrontation and the husband does not walk away from it.  The husband has no insight into the impact of this conflict upon the children.  The husband visited the airport to see the children and make this secret recording without informing the wife in advance.  The wife and the children were in transit from Tasmania to Queensland.  The s concerned that the children would be taken from her care by the husband.

14. The husband has a view that the wife suffers from what he says is called “malicious mother syndrome”.    In his application for contravention the husband annexed some material from Irana Daniel Turkett PHD in respect of the submission of “Divorce-Related Malicious Mother Syndrome” which was said to have been “used with the permission of the Fathers’ Rights Newsline”.  The father also attached some internet material from Barry Bricklim PHD.  Neither of these experts were called to enable their qualifications to be verified or their expertise to be examined let alone applied against a particular set of facts.  I give that material no weight.  There was no evidence of any probative value as to the existence of such a syndrome.

15. The husband has convinced himself that there is such a syndrome and that the wife has developed it since separation.

16. In cross-examination the husband concedes that he said on loud speaker phone, in circumstances where the children could hear, that the wife was a “whore, Satan and she would burn in hell”.  He sees little adverse impact of the use of such language on the children and in respect of their relationship with him..

1. The children stayed with the husband in Melbourne in about 2006.  On the first day they were with him, he took them to a place called the A Bar, which is a licensed establishment.  The husband was working in or involved with a band of musicians and he played music and remained at the premises with the children until 1.00am in the following morning. The children were aged 10, 7 and 3 at that time. The husband was more concerned about his needs than the proper care for the children.

2. The husband took K busking with him during contact visit at a time when she was aged less than 5 and perhaps less than 4 years of age.  He did not inform the wife because he clearly knew she would not approve.  The husband showed little concern for her age and maturity for such an excursion.

3. On another occasion he took M to see a psychologist, he did not inform the wife in advance nor after the visit.  This was in circumstances where he was, at that time, seeing the children every three to four months.  It is not clear whether this was part of an exercise to collect evidence or for some other purpose.  The appointment seems to have been a spur of the moment decision made without reference to the primary carer nor to its impact upon M.

4. The affidavit material of the husband is at times rambling and at times lacks focus.  This is not unexpected from a person who is representing himself.  From annexure “B” to his document of 13 March 2007 the husband acknowledges the differences in approach, opinions and perspectives in terms of parenting.

5. The husband asserts that the wife has a mental illness including bi-polar disorder. I do not accept the husband’s diagnosis and there is no objective evidence to that effect. In cross-examination the husband acknowledged that he was not aware of any professional diagnosis of the wife to that effect. I reject his evidence as to the wife’s alleged mental illness..

6. Mr J in his report dated 4 June 2007 (“[J’s] report”) observes of the husband:-

   5.Mr [Worley] describes some grandiose and magical ideas that approach delusional intensity … while behaviour overall was appropriate some impulsiveness and dis-inhibition was apparent at times.

   6.He contrasted his own capacity for lateral thinking with a “boxed in mentality” of other people.

   9.Mr [Worley] said his former wife suffered from bi-polar disorder and he tolerated it until he could stand it no more.

7. Mr J opined:-

   37.Mr [Worley] does suffer from a psychological condition that significantly diminishes his capacity to relate to and care for children.  He is ego centric, more preoccupied with his own needs and insensitive to the needs and rights of others.  He is rather grandiose and has an inflated sense of his own abilities without insight or awareness of his actual impact on others.  He believes that he has a special intelligence and ability to understand matters that other people do not.  This enables him to give too much salience to self-serving ideas, and to discount the contrary ideas of other people.  The history suggests his organisational thinking and associated behaviour has impaired vocational, interpersonal and personal function”.

8. Mr J went on to recommend that the husband undertake comprehensive psychiatric evaluation if he disputed the conclusions of the assessment.  I accept the evidence of Mr J in these proceedings.

9. After discussions with the Independent Children’s Lawyer in June 2007 the husband arranged to see a psychologist in northern Tasmania, Mr M.  He had one one hour appointment with the psychologist and has another one hour appointment later in August 2007.  He agreed that he attended reluctantly but says that irrespective of the outcome of the case he will continue to see Mr M.  I have some concerns as to the reliability of that evidence considering the husband’s history of delusional thinking and of dismissing the views of others when they are contrary to his own.

10. In J’s report he raises concerns about the husband’s capacity to meet the needs of the children.  I accept that evidence.  That is shown by the husband’s behaviour with regard to him impulsively taking M to see a psychologist, keeping the children out at a bar until 1.00am, his lack of insight into the effects on the children of his aggressive behaviour and his use of demeaning and offensive language against the wife.

11. The husband’s interview of the children and his confrontation with the wife at the airport which were on the DVD provided by the husband are supportive of that finding.

12. The husband complains that on one occasion the wife struck him.  It seems that the wife does not dispute this allegation but the husband’s version of events, as set out in paragraph 9 of J’s report, is that the wife struck him in circumstances where she was endeavouring to snap him out of a delusional state. 

13. There is an issue in relation to the wife’s request to relocate the residence of the children to Queensland.   The reasons and impact of the move are set out in paragraphs 19 to 53 of her affidavit and I accept the evidence of the wife as set out, with the exception of the inadmissible material contained in paragraph 33.

14. The husband’s objections to the wife going to Queensland fall into a number of areas. 

15. The first of these is that the husband does not like the wife’s mother, who lives in Queensland.  It is his evidence that he is concerned that the children would spend more time with their grandparents if they are in Queensland.  There was no evidence before me that there would be anything negative in terms of the children’s best interests if they were to spend more time with the grandparents.  The husband’s objection is self-focused.

16. The husband’s second objection is that he has already moved once when he moved to Victoria and he is therefore unwilling to move again.  This is difficult to understand where the husband felt it was appropriate to move the family from Tasmania to Victoria to meet his working needs but does not seem to understand the issues raised by the wife in wanting to move to Queensland.  The husband says his work is in Tasmania and he needs to get on with his life, but he is not in employment. He has applied for jobs, one at least at a serious level, but has not achieved any employment.  The husband does not own real property in Tasmania, he has no employment in Tasmania and has no family in Tasmania.  He has previously lived and worked in Queensland and he has previously lived and worked in Victoria.

17. The wife has had the sole physical, emotional and financial care of the children since at least separation.  She was the primary carer of them prior to separation.

18. The husband gave inconsistent evidence as to the consideration of him moving to Queensland.  Initially he said he did not consider moving and then said he considered the idea and then rejected it.  He said initially that he would not rest until he saw his children but then said if they went to Queensland he would not see them.  As I have said earlier, I have reservations as to the quality of his evidence.  I find that the wife has thought through the implications of the move to Queensland and that her reasons including work and to be closer to her family including her parents and her brothers are genuine.

19. The wife has not been receiving significant financial assistance from the husband by way of child support and is satisfied that she can obtain employment in Queensland in circumstances where she may not be able to obtain such employment in Tasmania.  She has considered education for the children and accommodation for the children.  She has considered the impact of the change on the children and proposes putting arrangements in place which will meet the children’s intellectual, social and emotional needs.

20. The husband gave evidence of his present accommodation where he has only been living for about six to eight weeks.  This accommodation seems somewhat remote and on the husband’s evidence seems not to be, at present, a facility at which the children could reasonably reside.  His previous accommodation, on his evidence, was such that it would not have provided appropriate accommodation for the children.

21. I have had regard to the material set out by the husband in his affidavit of

    
    1 December 2006

    .

22. At one point during the hearing the husband gave evidence in relation to a confrontation between he and the wife at an airport in Melbourne in about November 2005, this is the occasion when he secretly recorded his interaction with the wife. His evidence on day one of the hearing was that at the airport he had said to the children “we are going to the police station”.  In the hearing the following day the husband said in evidence in reply that they were not the words he used and he said instead that there was a police station there which was available.  This is an example of the husband fashioning his evidence to suit the particular view he had at a particular time.

23. The affidavit of Ms W was read into evidence without objection.  She is the supervisor of the R Contact Centre and agreed to assist with the contact that took place between the husband and the children on 28 July 2007.  Ms W described the reluctance of the boys, particularly M, to see the husband.   E seemed to be led by M in exhibiting reluctance to see the husband.  Ms W said M tried to hit the husband.  The husband’s evidence was that M did hit him.  It is clear that M is reluctant to spend time with the husband.

24. Ms W provided a log book of the husband’s visits with the children.  This log book reports that M said to his father “you threatened to kill mum and her lawyer …. I don’t want to be with you …. Go away”.  The husband is reported to have replied, “it is not true, it’s a lie, don’t listen to what you are being told.  I love you”.

25. I accept the evidence of Ms W and the accuracy of the material contained in the log book of the contact centre.

26. The husband denied in these proceedings that he threatened to kill the wife or her lawyer.  The wife gave evidence that the husband had threatened her.  The husband’s evidence was that he did not threaten her but he understood that there was a perception that he was threatening her. The wife gave evidence of the husband’s behaviour in December 2006 when he was to collect some possessions. He would not leave when asked to and his behaviour was such that the wife was frightened.  She had vacated the home as she did not wish to see him, as she had been verbally abused by him on the phone.  The husband did not leave in the time allocated and did not leave when asked.  This was at a time leading up to when the husband was to see the children, the wife was concerned that the husband was behaving differently and may pose a risk to the children. The husband denied the threats.  I prefer the evidence of the wife.

27. Ms W said that an endeavour was made in the weekend before the hearing for the husband to spend time with the children.  She said the husband became upset when the boys would not come in to see him.  He was calmed down by Mr & Mrs S (workers at the contact centre) and now says he recognises that his action was inappropriate in the presence of K who was not in sight but could hear the husband.

28. The wife gave evidence in accordance with her affidavit of 7 August 2007 and her Form 13 filed 1 August 2007.

29. The wife said she proposed to go to Queensland at the end of the year to allow the children to finish this year of schooling and to enable five months for the children to try and build a relationship with the husband.  She said she encourages the children’s relationships with the husband, although I have some concerns about this bearing in mind the evidence from the officers of the Contact Centre.

30. There was also the issue that prior to the recent contact visit to which I have referred the boys were offered to go to a movie instead of the Contact Centre which would have impacted on their desire to visit their father.  Whilst I find that the wife does not discourage the boys from attending the visits there is greater scope for her to encourage them to attend.

31. Her evidence was that, for the time being, the time the children spend with the husband ought to be supervised at some level.

32. Mr J gave evidence in accordance with his affidavit.  His qualifications were not in issue.  In evidence in chief he said that the supervision was designed to protect the children from the husband as Mr J had concerns about the husband making responsible decisions about the children.  Mr J has concerns about remarks made by the husband as these have confused and embarrassed the children.  His concern relates to bed-time care and other such sensitive occasions.  The longer the time the children spend with the husband the greater the risk.

33. Mr J had concerns about the husband meeting the emotional needs of the children.  The thrust of Mr J’s evidence was that the husband needed to address his own mental health needs and would need to see a psychiatrist and take medication.

34. In terms of equal shared parental responsibility the independent children’s lawyer said the parties’ relationship and the fact that their communication has been at such a poor level for such a long time indicated against equal shared parental responsibility.   The orders should provide that the wife has information sent from the school and the husband be kept up to date with the children’s lives.  The Independent Children’s Lawyer stressed the need for the wife to be pro-active.

35. The submissions of the Independent Children’s Lawyer were that the children live with the wife and that the wife be entitled to relocate to Queensland at the end of the year.  The Independent Children’s Lawyer said the children should each be looked at separately in deciding whether they should spend time with the husband.  I accept this submission.  M is severely alienated from the husband, E’s relationship with the husband is ambivalent and K’s appears to be good

36. The Independent Children’s Lawyer submitted that with M no formal contact order or “spend time with” order should be put in place at the present time and that the husband needs to have some formal treatment before such an order could be made.  With E, it was submitted that if he was separated from M then time with the husband may occur.  The Independent Children’s Lawyer submitted that with K weekly time should incur over the ensuing weeks (I made an interim order in that regard).

37. The wife’s submissions adopted most of the recommendations of the Independent Children’s Lawyer except she said that time spent with K should be supervised.  The wife said that the children’s alienation from the husband was not through manipulation. I accept that the wife has a genuine concern about the husband’s behaviour and feels at risk as for herself and for the children.  It is how the husband addresses that issue that is the problem.  The wife’s submission is that if the wife is comfortable and secure so will the children feel comfortable and secure.

38. In terms of relocation the husband was content to relocate to Victoria as recently as November 2006.  He and the wife had proposed relocation from Tasmania to Victoria in November 2004 and had taken action in that regard.  There is little reason as to why the wife cannot relocate to Queensland, there is no reason why the husband cannot move to that State.

Section 60CC2

(a)the benefit to the child of having a meaningful relationship with both of the child's parents

1. The children have the benefit of a meaningful relationship with the wife.  The husband loves the children and cares deeply about them.  However, he does not have insight into the impact of his behaviour and his self-obsession upon the children.  Whether the children are in Tasmania, Victoria or Queensland the nature of the relationship between the children and the husband will need to be monitored.  Whether the husband can restore his relationship with M and/or E and develop his relationship with K will depend upon the husband’s ability to deal with his own psychological and/or psychiatric issues.  There is no reason why this cannot take place in Queensland.

2. Mr J observed the nature of the relationship between the children and each of their parents at paragraph 43 of his report and I accept that evidence.  Similarly I accept the evidence of this expert set out at paragraph 44 and 45 of his report.

3. The relationship between the husband and the children has diminished since the husband moved to Victoria in 2004.  This relationship was further damaged by the abuse which occurred in December 2006.

4. There is a benefit to the children having a relationship with the husband, provided it is safe and not used as a platform by the husband to demean, belittle or abuse the wife.  The relationship with K has survived the events over the last few years.  The husband’s relationship with E is damaged but it is on the evidence before me, it seems likely that it can improve into the future given some positive support by the wife and a sensible and sensitive approach by the husband.

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The husband, from time to time, puts the children at risk of emotional damage.  His verbal attacks on the wife in terms of her capacity to parent as shown in the DVD of him interviewing the children, his aggressive behaviour and inability to prioritise the needs of the children above his own, as well as his taking young children to licensed premises until 1.00am in the morning because it suited his needs. There needs to be protection offered to the children to ensure that the husband’s behaviour does not put the children at risk of emotional and physical harm.  M has concerns about the husband being “a bit scary”.  He was also concerned that the husband does not properly look after him. His concerns are set out at paragraph 25 of J’s report.  M has concerns about the husband which are set out in paragraphs 27 and 28 of the experts report.

2. M has suffered emotionally by virtue of the events that have occurred since separation.  There is a risk of emotional harm to M if he is forced to restore the relationship with the husband.

3. Initially at least, I find that time spent with the husband ought to be supervised in terms of E.  In terms of K she should spend time with the husband for a few hours including some time when the husband is able to take her away from the Contact Centre.  This will need to occur at the same time as the husband continues with the treatment recommended by Mr J in his report.  This will be subject to the husband changing his behaviour so that he is accessible to the children.  The observations in the J report cause concerns in that regard.

4. The children are at emotional and psychological risk in the care of the husband but this can be managed with the use of Contact Centres and the husband undergoing treatment.  Rather than put in place final orders about time, it seems that it may be in the children’s bests interests, bearing in mind this factor, for there to be put in place interim orders pending events over the next few months or so.

   Section 60CC(3)

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

5. K is of an age and maturity where weight ought not be given to her views.  As to M and E, they have expressed concerns about their father and have shown reluctance to see him.

6. At the time the boys interacted with the husband during the process of preparing the report they were said to look uncomfortable and the expert observed the boys had not relaxed nor were they interacting comfortably with the husband.  They were secure in the care of the wife.

7. As referred to earlier in these reasons, there has been a recent incident where M punched the husband in the stomach and made it clear he did not want to see him.

1. M does not wish to have a relationship with the husband at this time.  E is opposing spending time with his father but it is likely, if some time is given, that E’s views in this regard may modify.  Observing the modification of E’s views and E and K spending time with the husband may encourage M to feel comfortable with the husband.

(b)      the nature of the relationship of the child with:

(i)  each of the child’s parents; and

(ii)  other persons (including any grandparent or other relative of the child);

1. The children all have a good, close and strong relationship with the wife who has been their primary carer.  In so far as the husband is concerned K seems to have a good relationship with him.  She has not, as yet, been overtly affected by the approach of M and E.   E is ambivalent in his relationship with the husband and the events since separation have impacted upon him, but with some active participation by the wife, it is likely that that relationship can be restored.

2. M’s relationship with the husband is somewhat more problematic.  He (and all the children) had a good relationship with the husband for a period of time prior to separation and for a period of time after separation.  The husband’s behaviour since separation has had a negative impact on that relationship.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. In terms of the wife, she says she is willing and has encouraged the relationship between the children and the husband.  I have some concerns in that regard.  I am satisfied she does what is expected of her but I am not sure that she actually encourages that relationship.  The evidence from the R Contact Centre is that the wife’s is not positive encouragement but rather somewhat reluctant encouragement.  There is also the concern as to how the husband’s threat to the wife and her lawyer became known by Mi.  Whilst the wife denied giving this information, I infer that it is likely to have come through the wife or one of her family members.

2. However, on balance I am satisfied that the wife will use her endeavours to encourage the relationship between the children and the husband provided she feels she is safe and that she is satisfied that the children are safe.  Much of that will depend on the husband’s approach to his mental health difficulties raised by Mr J.

3. I find that the husband does not have insight into the impact of his behaviour and his verbal attacks on the wife.  The husband’s “interview” of the children on the DVD and his derogatory name-calling of the wife in the presence of the children reflect poorly on his willingness and ability to facilitate and encourage a relationship between the children and the wife.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)      any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. The parties had planned to move to Victoria.  This would have changed the children’s education and broader social contact.  The husband does not have significant community ties in Tasmania (apart from the wife and children).  He was content to move to Victoria and apart from his general unwillingness to move to Queensland there are no practical reasons why he cannot move to that area.  The wife has set out the valid reasons for her relocation to Queensland in paragraphs 19 of the wife’s affidavit.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. There will be practical difficulties in terms of time with the children if the husband chooses to remain in Tasmania and I permit the wife to relocate with the children to Queensland, but these difficulties are not such that they cannot be overcome. 

(f)         the capacity of:

(i)   each of the child’s parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. I have discussed the capacity of the parents at length in these reasons.  I have no concerns that the wife can adequately provide for the children’s needs.  I do have concerns, as I have outlined, about the husband’s capacity to do so.  No evidence was provided in relation to the grandparents in Queensland or any other person significant to the children’s care.

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. Not relevant.

(h)      if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. There is no issue as to the wife’s attitude to the children or to her responsibility to parenthood.  There are significant issues about the husband’s responsibility and his attitude to the children.  Of him Mr J says:

   “39.The clinical features described above diminish Mr [Worley’s] capacity to be sensitive to the needs of the children.  For example, he believes that he has a gifted ability to relate to all people and children and sees no reason to moderate any behaviour.  He will continue to make decisions that are essentially ego-centric without consideration of consultation with Ms [Worley] or awareness of how this may impact upon the children.  Evidence and sensitivity of the children was demonstrated in this brief assessment by his disinhibited and excessively energetic behaviour towards them.  Any estrangement shown by the children will be rationalised in a manner consistent with some already existing persecutory ideas that Ms [Worley] is alienating the children from him.

   40.Mr [Worley] behaviour and some of his delusional ideas would make him an uncomfortable and confusing parent to spend time with.  Younger children could tolerate his ideas and behaviour more easily, but older children could be expected to become increasingly embarrassed by such behaviour.

   41.There is some risk of harm associated with Mr [Worley’s] disorganised thinking and behaviour.  Beyond psychological stress already shown by the children, some concern is felt for Mr [Worley’s] potential to act inappropriately.  His more intimidating and threatening behaviour in December 2006 provides some indication of this potential.  Mr [Worley] has already disclosed some thoughts of not returning [K] based on his erroneous conviction that she does not want to be with her mother.  He has already indicated a de-personalised disregard for Mrs [Worley] and he is unlikely to seriously co-operate and consult with her and share in the children.  Mr [Worley] spoke with some force and intensity at times during the assessment and a potential of quite intense anger was noted.  While Mr [Worley] sees himself as deferential and accommodating, he has little awareness of his actual demandingness and forcefulness.

2. I accept this evidence of the family consultant and it is supported by other evidence given during the course of the hearing particularly that by the wife and, from time to time, by the husband himself.  The DVD is an example of this.

(j)      any family violence involving the child or a member of the child’s family;

1. The husband’s behaviour in late 2006 and his use of language with regard to the wife falls within the definition of family violence.  His endeavours to explain this behaviour were unconvincing.  The husband continues to blame the wife for the difficulties he is encountering with regard to his time with the children and uses offensive and inappropriate language to her.  I find he has been threatening to her particularly in the events in December 2006 where he used his hands and arms to simulate shooting her.

(k)  any family violence order that applies to the child or a member of the child’s family, if:

(i)       the order is a final order; or

(ii)      the making of the order was contested by a person;

1. There is a family violence order, namely the order taken out on 14 December 2006.

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

2. The view of Mr J is that:-

   42.There is a demonstrated need for Mr [Worley] to seek specialist psychiatric assessment and treatment before any extended unsupervised care should take place.  Pharmacological treatment may well provide some reduction of symptoms. Supervision will reduce the risk of harm”.

3. The husband has taken some steps in this regard but has seen a psychologist rather than a psychiatrist.  During the course of hearing I gave leave for the husband to provide copies of Mr J’s report and copies of any judgment arising from these proceedings to his psychologist.

(m)any other fact or circumstance that the court thinks is relevant.

1. The Independent Children’s Lawyer says he should remain in his position for a period of twelve months after delivery of judgment so that he can oversee any treatment that the husband may seek and, from that, assess whether the time the husband spends with the children can be improved before the children move to Queensland.  That is a sensible suggestion by the Independent Children’s Lawyer and one which I will adopt, albeit for a period longer than first envisaged.

Section 60CC(4) of the Act

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)    has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)    to spend time with the child; and

(iii)   to communicate with the child; and

1. In terms of the provision of support for the children, the husband has arrears of child support which he asserts as $1,800.00 and the wife asserts as $3,000.00.  On balance I prefer the evidence of the wife.

2. The husband says that he wants to object to part of this sum bearing in mind the cost of travel for him to see the children between July 2005 and November 2006.  He says that each of the three or so trips cost about $1,000.00.  He said in evidence that he paid for the travel of the children and the wife to Victoria in Easter 2005.

3. Whilst the husband has the form for the objection he has failed to lodge it.  The husband has not paid the arrears of child support despite having the funds to do so.  The husband has not been in paid employment for some time and is pursuing his career as a musician/busker.  He has applied for a job at a very high level in the computer industry and has not as yet received a response. I am satisfied that the husband has a capacity to earn income but does not exercise that capacity and as such has not seriously addressed the financial needs of his children since at least November 2006.

4. The husband has an earning capacity but choses not to exercise it.

   (b)    has facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long‑term issues in relation to the child; and

   (ii)    spending time with the child; and

   (iii)   communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

5. I have reflected on all of the evidence to consider the extent to which the children’s’ parents have fulfilled or failed to fulfil their responsibilities as parents as set out in s60CC(4).

6. Much of the parenting has been left to the wife and the husband can be criticised for the time he spent with the children, particularly between October 2004 and July 2005.  Similarly the time the husband spent with the children between July 2005 and November 2006 reflects on the concerns which were raised by the independent expert and the husband’s failure to participate in the long term and short term care of the children over that period of time.

7. I have had regard to all of the facts and circumstances of this case and to the factors raised in regard to s60CC(4) and also s60CC(4)(a).

8. Having regard to all of the evidence and factors, and without reciting all of the evidence, I am satisfied that this is a case where the presumption under s 61DA of the Act ought not to apply. With all of the considerations set out above it would not be in the best interests of the children for there to be equal shared parental responsibility and I will make an order that parental responsibility will rest with the wife.

9. As to the care of the children I determine that there ought to be a final order that the children live with the wife and that at the end of 2007 she should be able to relocate with the children to South East Queensland.  I have considered the options of preventing the children from relocating to Queensland and remaining in Tasmania, I have considered the husband remaining in Tasmania or he himself moving to Queensland.  (The husband says that he will not do this although I am not entirely satisfied as to the veracity of this evidence.)

10. The arrangements with respect to the time the children spend with the husband are difficult.  The children had limited time with the husband between December 2006 and July 2007.  M is clearly determined not to see his father, E may be persuaded to form a new relationship with the husband or re-form the relationship and K is quite happy to spend time with the husband.  I have determined the question, at present, as to the need for supervision but circumstances may change in the next six to twelve months which bring about a change to all of the arrangements for the children to spend time with and communicate with the husband. 

11. Accordingly I propose to make an interim order in that regard and leave the appointment of the Independent Children’s Lawyer in place.  Hopefully the parties may be able to resolve those issues themselves once those proceedings are, in many substantial ways, finalised.

    PROPERTY

12. I have had regard to all of the background facts with regard to property and all of the facts and circumstances set out in the affidavits.

Property Proceedings – Relevant Principles

1. The approach in this case to property involves a number of steps:-

   a.The identification of the property and its value;

   b.

   An evaluation of the parties’ contributions having regards to

   
   

   ss 79(4)(a)(b) & (c);

   c.Consideration of any adjustment to that assessment having regard to the relevant matters in ss. 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and

   d.A review of the outcome against a just and equitable requirement.

Identification of property and its value

1. The property is as follows;

Balance of proceeds of sale of former matrimonial home	$32,493.56
Amount of sale proceeds distributed to the husband	$24,273.45
Amount of sale proceeds distributed to the wife	$24,273.45
Furniture and furnishing held by wife	$5,000.00
Furniture and furnishing held by husband	$5,000.00
Agreed add back to wife being trade in on Camry motor vehicle	$1,000.00
Wife’s shareholding in GC	$800.00
Wife’s superannuation	Nil
Husband’s superannuation with Hesta & RBF – agreed	$18,000.00
Assets	$110,840.46
Liabilities
ANZ credit card	$4,000.00
GE credit debt (bed)	$1,650.00
GE credit debt (printer and scanner)	$380.00
Wife’s legal fees	$3,100.00
Liabilities	$9,130.00
TOTAL PROPERTY	$101,710.46

1. In terms of the proceeds of sale of the parties’ former home they received about $79,000.00 net after the sale of that property.  The sum of approximately $24,273.45 was paid to each of the husband and wife and the balance of $32,493.56 held in a trust account.  I intend to include the amount distributed to the parties as a result of the sale of the house in the previous 12 months. These sums are significant in terms of the property of these parties and to not add them back could create a serious distortion of the pool when considering the other steps the court needs to adjust property in a just and equitable way.

2. The husband initially asserted that the wife had shares in two public companies.  After some discussion between the parties, it was agreed by them that the only shares the wife has are the shares in GC Ltd which, at hearing, had a value of $800.00.

3. In terms of the furniture and furnishings at the former matrimonial home, there is an issue about some paintings from China.  It was agreed that the wife would provide to the husband the larger tiger print. 

4. The husband says that he took very little from the former matrimonial home and gave a list of what he took.  Initially he did not recall that he took a digital camera and a video camera.  The wife’s evidence is that the parties divided their furniture approximately equally at the time of separation.  The total furniture has a value of $7,000.00 on the evidence of the wife and about $10,000.00 on the evidence of the husband.  The husband says the value which he took was about ten per cent ($700.00 - $1,000.00) and the wife’s evidence was that the furniture was divided about equally.

5. Whilst I have concerns about the husband’s evidence, his evidence in respect of the additional items of personal property in his possession is such that, on balance, I accept his estimate as to the value of the furniture and furnishings. Bearing in mind the comments I have made as to the quality of the evidence of the husband, I am satisfied that the furniture and furnishings, as between the parties, has been divided equally.

6. The wife has a motor vehicle which is subject to a loan and the husband also has a motor vehicle which is subject to a loan.  In respect of each vehicle the value of same is less than the cost of the loan.  It was agreed between the parties, and I accept, that these motor vehicles ought to be ignored in terms of the adjustment of property between the parties.  Whilst having regard to that and the various debts in the broader sense, I have not included that property and liabilities in the pool except to the extent of an add back of $1,000.00 to the wife which was an agreed sum being the trade in of a Camry motor vehicle on her new car.

7. Each of the parties had superannuation entitlements.  The husband has two funds totalling about $18,000.00 which are accumulation funds with RBF and Hesta.  The wife has superannuation of about $5,000.00.  Neither party sought a splitting order nor did either party give notice to the Trustees of the superannuation funds.  Bearing in mind the amount of the superannuation, the use to which the wife applied her superannuation and the small pool of assets in this matter I intend to deal with superannuation as part of a single list of property. 

8. Since separation the wife has obtained access to her superannuation which was applied in reduction of the house mortgage and payment for a trip to Melbourne for M to attend ballet school in June 2006.  This was an appropriate application of those funds for the benefit of the family and I do not intend to add back that sum in the pool of assets bearing in mind the nature of the expenditure.

1. The husband had legal fees outstanding to a solicitor of about $6,100.00.  In addition, the husband asserted that he paid $2,000.00 in legal fees.  The wife asserted she had incurred legal fees of about $11,100.00.  It was agreed between the parties that the legal fees each ought to be credited as an asset of the parties.  On the husband’s evidence he has incurred $8,100.00 in legal fees and the wife $11,100.00.  Therefore there is a $3,100.00 difference.  In accordance with the agreements between the parties I will accept that the wife has a liability for legal fees of $3,100.00 which ought to be set off against the pool.

2. The husband at one stage claimed that the child support which he owed the wife, which he claimed was about $1,800.00, should be set off against the pool of assets.  I reject that liability as it would involve the wife, in effect, meeting her own child support expenses.

3. The husband claimed that an ANZ credit card liability of $8,000.00 should be treated as an add-back.  I invited him to bring in the statements in relation to that sum. The evidence of the wife, which I accept, was that the parties sold an asset at the time that the husband first went to Victoria in October 2004 and reduced the credit card debt to nil.  I accept that evidence and I accept that the credit card was about $4,000.00 at the date of separation and that this was totally incurred by the husband.  Since that time the husband has had exclusive use of the credit card and has increased its liability to $8,000.00.  No adequate explanation has been given for the expenditure of these funds and as such I do not intend to set them off against the asset pool. Accordingly, I will include the $4,000.00 liability as at the date of separation. 

4. The husband borrowed $2,000.00 from a solicitor, Mr Ruddle, after separation and claims that against the pool of assets.  No explanation was given as to the use of these funds.  There is no doubt that the debt was incurred, however I do not accept that it ought to be allowed against the pool of assets.

5. The husband also claims a debt of $400.00 to his parents.  No adequate explanation was given in relation to that liability.  No documentation was produced nor evidence given by his parents.  I do not accept that liability. 

6. The husband also claims an electricity bill of $400.00 and a bill with a communication company of $350.00.  These were all incurred after separation and in circumstances where he has or had the funds to pay these debts (as in fact he did with the debt to Mr Ruddle and his parents, if it existed) but chose not to do so.  I will not allow those debts.  I have allowed the amounts in respect of the GE credit loan with regard to the single bed of $1,680.00 and the GE credit loan in relation to the printer and scanner of $380.00.

   Contributions

7. Both parties have set out issues of contribution in their respective affidavits.  The parties agreed, and I accept their agreement, that I should treat contributions including post separation contributions as equal subject to the determination of the question of the liabilities of the husband.  This agreement was put in place notwithstanding that I was yet to determine the liabilities of the husband.

8. On balance I prefer the evidence of the wife with regard to contribution and I determine, on that evidence, that the contributions up to the date of hearing are equal.

   Consideration of adjustment in respect of the other factors

9. There is no submission that there was to be an adjustment in favour of the husband in regard to the other factors in respect of property.  In terms of the wife the submissions of her counsel were that she had the emotional, financial and physical responsibility for the three children of the marriage with limited assistance from the husband.  I accept that submission bearing in mind the approach of the husband between November 2004 and October 2006.

10. The husband has a capacity for employment which has been demonstrated over a number of years.  At the present time he is not in paid employment and is focusing his attention on developing his career in entertainment and is applying for jobs which may be beyond his capacity.  He has a significant earning capacity but has not chosen to exercise that capacity.  That has left the wife in the circumstances where she needs to meet essentially the whole of the costs in maintaining the financial support of the children.  This is likely to continue into the foreseeable future.

Review of outcome against just and equitable requirement

1. The effect of the orders would be that the wife receive or retain;

Balance of proceeds of sale of former matrimonial home	$32,493.56
Amount of sale proceeds distributed to the wife.	$24,273.45
Agreed add back to wife being trade in on Camry motor vehicle	$  1,000.00
Furniture and furnishing held by wife.	$  5,000.00
Wife’s shareholding in GC	$     800.00
Total	$63,567.01
Less
Wife’s legal fees	$  3,100.00
Balance to wife	$60,467.01

1. The husband would receive or retain the following;

   Proceeds of sale of home   $24,273.45

   Hesta Superannuation  $18,000.00

   Furniture   $  5,000.00

   Total  $47,273.45

   Liabilities

   ANZ Credit Card  $  4,000.00

   GE Credit (bed)  $   1,650.00

   GE Credit (printer and scanner)  $     380.00

   Total  $ 6,030.00

   Balance to husband  $41,243.45

2. Having regard to justice and equity and to the size of the pool and the circumstance that the significant part of the husband’s property is contained within superannuation, I determine there should be an adjustment in favour of the wife of about ten per cent in terms of the other factors.

3. Having regard to the pool of assets, a just and equitable division would be for the balance of proceeds from the sale of the home held by Mr Ruddle to be directed to the wife.  From that sum the wife would need to pay the balance of her legal fees and this will end up at an approximately 60/40 division of the property between the parties.

4. One of the issues which was partly resolved by the parties was with regard to family photographs both processed and unprocessed.  The parties agreed to orders that the wife provide all of the negatives of those photographs (both processed and unprocessed) to a photo shop in B, Tasmania, and that the husband could arrange for copies to be taken.  The husband’s evidence was that those copies could be electronically taken.  There is no evidence before me as to the cost of that activity although I take judicial notice that it is likely to cost $1,000.00 or less.  I have had regard to that cost in adjusting property as between the parties.

5. There was some discussion about whether the early distribution of part of the proceeds of the sale of the former matrimonial home ought to be added back or not.  In this determination I have added those sums back.  However, if I had not done so and the pool was reduced by about $50,000.00 the result would not have altered.  With a pool of about $50,000.00, as it would be if the sums in question were excluded, and having regard to the other factors (which I have discussed above, including the need for the wife to be the primary carer of the three young children and her use of her own superannuation in managing the home mortgage) and considering what is just and equitable, my approach would not have altered. In those circumstances, the balance of the proceeds of sale of the home should be assigned to the wife. 

I certify that the preceding 157 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin.

Associate    :     

Date            :      10 September 2007