Wylie and Wells
[2014] FCCA 2879
•23 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WYLIE & WELLS | [2014] FCCA 2879 |
| Catchwords: FAMILY LAW – Parenting – whether children should live with their father in Melbourne or mother in (omitted) Queensland – spends time with arrangements – order in best interests of children. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 MRR & GR (2010) 240 CLR 461 Paskandy & Paskandy (1999) FLC 92-878 Reiner & Bedford [2014] FCCA 170 (7 March 2014) |
| Applicant: | MR WYLIE |
| Respondent: | MS WELLS |
| File Number: | DGC 1386 of 2010 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 29-30 September 2014 |
| Date of Last Submission: | 30 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Spicer |
| Solicitors for the Applicant: | Nicholes Family Lawyers |
| Counsel for the Respondent: | Mr Indovino |
| Solicitors for the Respondent: | RB Family Law |
ORDERS
That the parties have equal shared parental responsibility for the children, X born (omitted) 2005, aged 9 years (“X”) and Y born (omitted) 2007, aged 7 years (“Y”) (“the children”).
That the Children live with the Father in Melbourne.
That the Children spend time with the Mother as follows:
(a)During school Terms 1, 2, 3 and 4 in Melbourne as follows:
(i)For 2 weekends during Melbourne school Terms 1, 2, 3 and 4 at times to be agreed and in default of agreement on the 3rd and 6th weekends of each school term, from after school on Friday until the commencement of school on Monday (with such period to extend to Tuesday in the event of a public holiday on Monday) in Melbourne;
(ii)That the Children spend the Mother’s Day weekend with the Respondent Mother each year as part of the Mother’s time with the children in accordance with paragraph (i) herein, and otherwise the children spend the Father’s Day weekend with the Father each year; and
(iii)On 14 days notice to the Father, for one period of 7 days each school term, commencing from after school on Friday and concluding before school the following Friday, provided that the Mother ensures the Children attend school and their regular extra-curricular activities during this period.
(b)For the first two-thirds of each Melbourne school Term 1, 2 and 3 holidays, with such period to commence at 12:00pm on the Saturday following the last day of school and to conclude at 12:00pm on the date that is established by calculating the number of days starting from the first day after the end of the school term to the last day before the commencement of the next school term, multiplied by 0.666 (and rounded up by one day if the resulting number is above 0.5), with such holiday time to take place in either Melbourne or (omitted), Queensland at the Mother’s election.
(c)That notwithstanding the previous Order, the parties alternate the Easter holiday period each year so that as part of the Mother’s time with the Children in accordance with paragraph (b) herein, the Children spend the 2015 Easter period with the Father and each alternate year thereafter and the 2016 Easter period with the Mother and each alternate year thereafter.
(d)For one half of the long summer school holidays as follows:
(i)In 2014/2015, for the first half of the long summer school holidays commencing on the first day after the end of the school year until the midpoint of the long summer school holidays (that is established by calculating the number of days starting from the first day after the end of school term to the last day before the commencement of the next school term, multiplied by 0.5) and each alternate year thereafter;
(ii)In 2015/2016, for the second half of the long summer school holidays commencing on the midpoint of the holidays (calculated in accordance with Order 3(d)(i)) until the last day prior to the commencement of the new school year and each alternate year thereafter;
with such holiday contact to take place in either Melbourne or (omitted), Queensland at the Mother’s election;
(e)That the Mother be at liberty to request to spend additional time with the Children on their respective birthdays and the Mother’s birthday as agreed between the parties.
(f)At such further times as agreed between the parties.
That the Children be at liberty to telephone and/or Skype the parties at all reasonable times as may be agreed between the parties, but failing agreement, on every fourth day during the school term for the Mother, and likewise for the Father during school holidays, and once during mid-term contact for the Father.
That the Mother be responsible for all travel costs associated with the children travelling to and from Melbourne and (omitted), Queensland in accordance with these Orders, and to provide to the Father the Children’s itinerary for travel 14 days in advance of such travel.
That the Mother take the Children to any extra-curricular activities in which they are enrolled whilst she is spending time with them in Melbourne.
That the parties each inform the other as soon as possible, of any illness or injury suffered by the Children, particulars of any treatment required or received by the Children together with the name and the address of the treatment provider and /or location at which the Children are a patient and any medical or other health practitioner involved with the Children and authorise such practitioner to discuss any treatment with the other party.
That each party be at liberty to attend any school functions or other events in relation to the Children’s education at which parents are ordinarily in attendance.
That each party authorise any school or other educational institution attended by the Children to discuss their progress with the other party and provide the other party with copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents.
That the Mother provide the Father with all details including passwords and usernames relating to X's Facebook account and any other mobile devices of the Children.
That the children attend upon a General Practitioner for the purposes of immunisations and that the Mother authorise same.
That the parties each be and are hereby restrained from denigrating the other in the presence or hearing of the Children or involving the Children in the dispute between them.
IT IS NOTED that publication of this judgment under the pseudonym Wylie & Wells is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1386 of 2010
| MR WYLIE |
Applicant
And
| MS WELLS |
Respondent
REASONS FOR JUDGMENT
Introduction
All relocation cases are difficult and sad, but each is difficult and sad in its own way.
In November 2013, the Mother in this case relocated from Melbourne in Victoria, to (omitted) in Queensland together with her de facto partner. She left her two children in the care of their father. The children have been in his care for over a year now. She would like the children to come and live with her in (omitted), but the Father would prefer that they remain living with him in Melbourne.
This case is about resolving the dilemma that is created in a way that is in the best interests of the children.
Background
This case is about two children, X, who is 9 years old, nearly 10, and Y, who is 7 years old. The Applicant is their father. The children live with him. He is 41 years old, describes himself as a (occupation omitted), and lives in (omitted) in Victoria. The children live with him and his partner, Ms L, who is 34 years old. The Paternal Grandmother, Ms T, 66 years old, plays an active role in the lives of the children.
The children’s mother is 45 years old. She is a (occupation omitted) living in (omitted) together with her partner, Mr C, who is a 44 year old (occupation omitted). The Maternal Grandmother, Ms R, lives in Melbourne, was very actively involved in the children’s lives before the Mother relocated to (omitted), and remains involved in their lives when the Mother travels to Melbourne in order to spend time with them.
The Final Orders sought by the Father are reproduced in the first schedule to these reasons. In short, he seeks Orders for equal shared parental responsibility, that the children live with him in Melbourne, and spend time with their mother during school terms in Melbourne, and during school holidays in either Melbourne, or (omitted) at the Mother’s election.
The Final Orders sought by the Mother are also reproduced in the first schedule. She too proposes equal shared parental responsibility, but that the children live with her in (omitted), and spend time with the Father both in (omitted) during school terms, and elsewhere during school holidays.
On any analysis, the parents have been, continue to be, and in all likelihood will in the future remain, very good parents. Despite the criticisms that they make of each other in their respective Affidavits, when pressed in cross‑examination neither was able to raise any serious issue about the other’s parenting capacity. Indeed, by any objective measure these children are very fortunate to have the parents and extended family that they have.
It is regrettable indeed that litigation focuses attention on matters of detail and past events which are not necessarily indicative of the future, in any conclusive sense. This is a finely balanced case where, ultimately, it is the Court’s finding as to what is best for the children that must prevail over each parent’s subjective assessment of the same.
The background history of this matter is relatively uncontentious. The parents commenced cohabitation in 2002, married in 2003 and separated on a final basis in September 2008. Between the date of separation and November 2013 when the mother relocated to (omitted), the parents tried a number of parenting arrangements. For most of the period they had in place what was, in effect, a shared care arrangement whereby the children spent three nights of the week with their father, and the rest with their mother.
More recently, and probably since January 2012, the children had been spending two nights of the week with their father, and the rest with their mother. Quite frankly, the past parenting arrangements for these children are neither influential, nor determinative of the outcome of this case.
In November 2013 the Mother relocated to (omitted). There is no question that she voluntarily left the children in the care of the Father, having absolute confidence in his ability to care for them. Both parents left open the question of what was to happen to the children after the middle of 2014. It is clear from the evidence they both gave that their agreement was to review the situation mid-2014. The Court finds that, to the extent that either parent suggested in their evidence that their agreement was anything more finite than that, is plainly incorrect.
The children spent time with their mother in (omitted) for the long summer school holidays 2013-2014. The children spent the entire Melbourne term 2 school holidays with their mother in (omitted). The children spent time with their mother in (omitted) for the Melbourne June‑July school holidays, as the parents agreed. However, at the conclusion of the school holidays she declined to return the children.
As a consequence, on 18 July 2014 the Father commenced the present proceedings and sought an urgent recovery order for the children to return to Melbourne to live with him. The Mother opposed this. On 29 July 2014, Interim Orders were made for the children to be returned to Melbourne to live with the Father, and that the Mother spend time with the children each alternate weekend from the end of school Friday until the commencement of school Monday, in Melbourne.
The case was fast-tracked for a Final Hearing. A Family Report was ordered, and prepared. Further Interim Orders were made on 9 September 2014 for the children to spend time with their mother during the school term, and in school holidays.
The matter came before me for Hearing in Melbourne on 29 and 30 September 2014. Both parents were very capably represented by Counsel and solicitors. Mr Spicer of Counsel appeared for the Father, and Mr Indivino for the Mother. Evidence was given by both parents, the Family Consultant, the Maternal Grandmother, Ms A, a friend of the Mother, and Dr C, a doctor treating one of the children. Each of these witnesses was cross‑examined.
As is so often the case in litigation relating to children the issues that are explored in each parent’s Affidavits, and those of their supporting witnesses, are not necessarily the issues that are the focus of the hearing itself. The focus of these reasons, therefore, will be on the contentious issues rather than the other matters that each parent might have raised in their Affidavit but which clearly did not form the basis of their case at the hearing.
After identifying the Affidavit evidence on which each party relied, and stating the applicable law, these reasons for judgment will deal with the evidence of the Family Consultant first. This is not because the evidence of the Family Consultant has primacy, but only because it is the only independent and expert evidence in this case. Thereafter, the remaining evidence will be considered particularly by reference to the statutory considerations set out in the Family Law Act 1975.
The evidence relied on
The Applicant relied on the following documents:
·Amended Initiating Application, filed 26 September 2014;
·Affidavit of Mr Wylie, affirmed 26 September 2014; and
·Affidavit of Ms L, affirmed 26 September 2014.
The Respondent relied on the following documents:
·Response filed 25 July 2014;
·Affidavit of Ms Wells, sworn/affirmed 25 July 2014;
·Affidavit of Ms Wells, affirmed 26 September 2014;
·Affidavit Mr C, affirmed 11 August 2014;
·Affidavit of Ms R, affirmed 26 September 2014;
·Affidavit of Ms A, affirmed 26 September 2014; and
·Affidavit of Dr C, sworn/affirmed 26 September 2014.
The applicable law
Counsel referred me to a decision of my brother Judge, McGuire J in Reiner & Bedford [2014] FCCA 170. I respectfully adopt, and reproduce in these reasons, his Honour’s statement of the relevant law at paragraphs 27-41 of his reasons with minor editing and omissions to reflect irrelevant material.
The Relevant Law
27. The issues in this matter demonstrate the difficulties facing parents and Courts where a proposed relocation of a child is raised. These difficulties are compounded where the child is still very young.
28. The Court is mandated to make orders which are in children’s best interests but many of the usual relevant considerations in a parenting matter are amplified by reasons of distance and the obvious impact on relationships with the remaining parent and other important persons in a child’s life should a relocation take place together with questions of the primary parent’s capacity to parent successfully are also brought to the fore.
29. It is inevitable that whatever order a Court makes in allowing or refusing a relocation, one or other of the parents will be left understandably aggrieved. If the relocation is permitted then time and nature of contact between the child and the remaining parent will almost always become less regular or less frequent and/or take a different form and/or bring with it its own limitations and difficulties. If there is a relocation then the primary parent will often take on a greater role and presence in the child’s life than might otherwise be expected. There will be a sense of loss and often a feeling of bitterness in the remaining parent. These emotions may flow to members of the remaining parent’s extended family and create difficulties for communicative and cooperative parenting thereby testing the parents’ own relationships which may have been until then productive and respectful. Conversely, if the relocation is not allowed then the primary parent will usually be left unhappy and often bitter with thwarted ambitions. The blame will inevitably be placed on the other parent and again testing the preferred cooperative and respectful relationship between them. All of these emotions and reactions have the potential to impact on the child and his or her own relationships.
30. The jurisdiction of this Court in making parenting orders comes from Part VII of the Family Law Act 1975 (“The Act”). The task for the Court is to make orders which, on balance of the probative evidence and the proposals of the parties, is in the child’s best interests. The jurisdiction of the Court is effectively in respect of children and whilst the Court may permit or refuse the relocation of a child, it cannot usually per se make orders which prevent the freedom of movement of an adult.
31. The Act itself is silent as to the notion of relocation of children. In that sense, relocation is neither prohibited nor is there is a presumption against it. Rather, a proposal by one parent to relocate a child, be that intrastate, interstate or internationally, is just one of many considerations for the Court in arriving at orders which on balance are in the best interests of the child.
32. Importantly, whilst the prospect of relocation may be the major or even igniting issue in the proceedings, relocation is not to be treated separately to the overall determination of the child’s best interests. That is, there is no specific category of “relocation case” and a matter involving a proposed relocation fails to be determined like any other parenting case. The Full Court in Paskandy & Paskandy [1]noted:
[1] (1999) FLC 92-878
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be ‘permitted’.
33. Section 60B of the Act sets out the objects and principles underlying those objects in respect of children’s matters. This provides the framework for determining the best interests of children. That section states:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(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).
34. Section 60CC of the Act sets out the mandatory considerations that a Court is to reference in respect of the proposals of the parties and the evidence given and adduced. That section provides:
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c) the extent to which each of the child's parents 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;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
35. In determining parenting orders and responsibilities, the Court must follow a pathway of statutory and intellectual considerations confirmed by the Full Court in Goode & Goode[2]. The starting point is that there is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child[3]. Parental responsibility refers to all those duties, powers, responsibilities and authority which parents have in relation to children by way of law. Such responsibilities usually manifest in long term and important decisions for children in relation to issues such as education, religion, medical procedure and the like as opposed to day-to-day decisions.
[2] (2006) FLC 93-286
[3] S 61DA
36. The presumption of equal shared parental responsibility applies unless there are reasonable grounds for the Court to believe that a parent or a person who lives with a parent has engaged in the abuse of a child or in family violence within the broad definition in the Act[4]. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the court that it would not be in the child’s best interest for the parents to exercise that responsibility.[5]
[4] S61DA(2)
[5] S61 DA(3)
…
38. If the presumption of equal shared parental responsibility does apply and is not rebutted, then the Court is obliged to consider two discrete parenting options or regimes. Firstly, the Court is to consider whether the child spending equal time between the parents is both in the child’s best interests and reasonably practicable?[6] If the answer to either of these questions is in the negative, then the Court must move to consider whether the child spending “substantial and significant time” with each of the parents is both in the child’s best interests and reasonably practicable.
[6] MRR & GR (2010) 240 CLR 461
39. “Substantial and significant time”, is defined in the Act[7] as:
[7] S65DAA(3)
a) The time the child spends with the parent includes both:
i) Days that fall on weekends and holidays; and
ii) Days that do not fall on weekends and holidays; and
b)The time that the child spends with the parent that allows the parent to be involved in:
i)The child’s daily routine;
ii)Occasions and events that are of particular significance to the child;
iii)The time the child spends with the parents allows the parent be involved in occasions that are of special significance to the parent.
…
41. A long line of judicial authority has provided assistance for trial judges in extracting principles to be referenced in parenting matters involving a potential relocation. Significant amendments to the Act in 2006 enlivened judicial and academic debate in respect of matters involving a proposed relocation of a child. It seems, however, the authorities agree that the relevant principles remain valid (Taylor & Barker [2007] FamCA 1236; McCall & Clark [2009] FamCAFC 92; Sealer & Archer [2008] CAFC 142) and can be summarised as follows:
· Relocation matters are parenting cases to be determined in terms of Part VII of the Act and in the context of making necessary findings in respect of the relevant s.60CC factors but also within the context of the s.65DAA considerations of equal time or substantial and significant time and “reasonably practicable”;
· The best interests of the child remain the paramount but not the sole consideration;
· The child’s best interests must be weighed and balanced with the “right” of the parent to “freedom of movement” but such must ultimately defer to the child’s best interests; and
· Neither party carries an onus of proof in respect of the proposed relocation and the Court is to consider each party’s proposal generally including the advantages and disadvantages of a relocation or, may itself formulate proposals in the best interests of the child.
· A parent wishing to relocate a child need not provide compelling reasons in support of the relocation.
The evidence of the Family Consultant: Ms B
Ms B's Affidavit sworn 24 September 2014 annexes her Family Report dated 8 September 2014. What is apparent is that Ms B interviewed the parents, the children, the parent’s partners, and the paternal grandmother, on 20 August 2014. She sets out matters of background and current arrangements as well as recording the parent’s contentions and competing proposals, all of which were almost invariably consistent with the evidence before the Court.
At paragraphs 34 and 35 of the Report, Ms B captures the essence of the Mother’s case:
While Ms Wells contends that the move to Queensland has strengthened her own emotional wellbeing and she and Mr C are building positive social networks already, she also considers that X and Y will benefit from the lifestyle as well as her improved functioning. Ms Wells said inter alia that ‘they will have a better life there’. In relation to her own wellbeing, Ms Wells was quite emotional in describing her response to the relocation, saying inter alia ‘that I feel I’ve come home … I’ve felt lonely growing up in Melbourne … I can breathe for the first time in my life’.
As the children’s primary parent since she and Mr Wylie separated in 2008, Ms Wells contends that she should resume this role and the arrangement whereby X and Y remained in Mr Wylie’s care when she relocated to Queensland in November 2013, was always only temporary.
By contrast, the essence of the Father’s case is captured at paragraphs 32-33:
Applicant Mr Wylie opposes the proposal on the basis of his concerns for the best interests of X and Y with regard to their development and welfare, as well as their ongoing relationships with himself, extended family and members of the community, including school and social network.
Mr Wylie contends that X and Y have a strong and facilitative relationship with him and the paternal extended family, and members of the maternal extended family also reside in Melbourne. He holds concerns about the limited family and social networks available to the children should they reside in Queensland with Ms Wells.
A deeper understanding of the parents’ concerns about each other’s proposal is set out at paragraphs 36-40 of the Report.
As part of her Report Ms B was able to observe the interaction between the parents and the children. For example, she observed at paragraph 112:
Ms Wells demonstrated warm and appropriate parenting of X and Y. She was responsive and playful, as well as warm but firm in guiding them. X and Y demonstrate a secure relationship with Ms Wells, but reports of their behaviour and emotional symptoms suggest that there is a level of anxiety about her emotional reliability. Mr C presents as an appropriate adult with whom the children might be significantly involved.
In relation to the Father she observed at 121-122:
In the observation, Mr Wylie demonstrated competent and warm parenting of X and Y. He was responsive and warmly engaged with them in activities, following their lead and guiding with distraction, humour and verbal instruction. Mr Wylie was also responsive to Y’s need for physical contact and engaged him with physical wrestling that he managed with appropriate boundaries and included Ms L in the playful atmosphere.
X and Y were focussed on Mr Wylie and responded positively to his verbal commentary, playful warmth and physical proximity. X and Y demonstrate a secure attachment to Mr Wylie and Ms L presents as an appropriate adult who might be significantly involved with the children.
Ms B’s evaluation is a detailed one, and commences from page 28 of her Report. Firstly, she looks at the parenting effectiveness of both parents. In relation to the Father she reports at paragraphs 123-127 inclusive as follows:
Mr Wylie presents as a competent and involved parent to X and Y. Despite the parents’ separation when the youngest child Y was under two years of age, Mr Wylie has demonstrated commitment to maintaining his relationships with the children and providing for their welfare.
Mr Wylie presents as attuned to X and Y’s needs and responsive to their emotional experiences. He presents as a thoughtful parent. Mr Wylie has also been supportive of Ms Wells’ parenting through an appreciation of the need for and implementation of civil and respectful communication and overt support for her conveyed to the children.
Notably, Mr Wylie presents as having a mature appreciation of parenting and he acknowledges his own psychological and emotional maturing. He has supportive extended family as quite significant resources for his own parenting, as well as for the children’s positive development.
Mr Wylie is in a stable and positive relationship with Ms L and she presents as a competent and responsive adult with whom the children are constructively involved. Mr Wylie also appears to have a sound friendship network, and in which X and Y are also positively engaged. He is also engaged in satisfying work.
Mr Wylie not only presents as willing to provide for X and Y’s welfare, safety and development, he also demonstrates the ability to do so. X and Y have, and will, benefit from the stimulating as well as nurturing family and social environment that Mr Wylie has established.
In relation to the Mother she reports at paragraphs 128-135 as follows:
Ms Wells is a competent and appropriate parent to X and Y as well. She has provided a nurturing and facilitative environment, and Mr Wylie too, acknowledges that the children have a close relationship with her.
Ms Wells has become an independent and relatively well functioning adult, and from the information available, she has overcome emotional challenges and crises with growing resilience.
Ms Wells has recognised that her emotional wellbeing was not facilitated by her living circumstances in Melbourne and she has taken what has appeared to be positive steps in relocating to the warmer, and what she considers to be the more emotionally and socially conducive environment of Queensland. It is possible however, that Ms Wells has overly focussed on the potential for geography to provide her with a sense of emotional wellbeing, thereby possibly neglecting the need for the psychological resolution of emotional issues to provide enduring emotional wellbeing.
Ms Wells is in a stable and supportive relationship with Mr C and they appear to be settling in well with their living arrangements in Queensland. She also has a satisfying, well-established profession that has apparently transferred successfully to Queensland.
It is likely that, given the apparent positive outcomes of relocation for Ms Wells’ emotional wellbeing, the relationship with Mr C and her lifestyle in Queensland, her parenting effectiveness will also be positively affected.
Claims of a level of impulsiveness in her approach to parenting, such as schooling for the children, are likely to settle for Ms Wells as she herself settles in Queensland.
However, Ms Wells over holding of the children was not appropriate and she acknowledges this, particularly in their enrolment at a school without Mr Wylie’s knowledge or agreement. The impact on the children of establishing expectations of living arrangements that were still in dispute between their parents, also indicates a level of limited insight by Ms Wells about the children’s needs for emotional and psychological certainty.
It is apparent that the children were unprepared for the impact of separation from Ms Wells, given reports of the emergence of regressed behaviour and symptoms of emotional distress. The ensuing ongoing dispute with Mr Wylie was not managed well by either parent, particularly Ms Wells who, it seems inappropriately involved the children.
Ms B then explores the issue of each parent’s capacity to support the children’s relationship with the other, obviously an important consideration given the geographical distance between the parents, and the consequent lack of frequency in contact that will result. In relation to the Mother she reports at paragraphs 136-141 inclusive as follows:
Ms Wells’ capacity to support the children’s relationship with Mr Wylie.
Mr Wylie and Ms Wells’ relatively low conflict relationship augurs well for the long term adjustment of the children, and should X and Y be permitted to relocate to Queensland, it is likely that Ms Wells will continue to support the children’s relationship with Mr Wylie.
Ms Wells has contributed positively to facilitating X and Y’s relationship with Mr Wylie and overall, despite her view about ‘conflict’ between them, she has presented a supportive attitude. X and Y indicated their ease about transitioning between Mr Wylie and Ms Wells during the observations for this report.
Should the children live with Ms Wells, her role in supporting Mr Wylie’s relationship with the children will be most significant. Promoting access and verbally supporting him will maximise the probability of an ongoing relationship for the children and Mr Wylie, and resource X and Y with ongoing emotional, psychological and social support.
Notwithstanding the above, Ms Wells’ actions in unilaterally deciding to keep the children in Queensland nevertheless suggest that she might at times, not actively support contact with Mr Wylie, should this not meet her evaluation of the children’s best interests.
One area of concern about Ms Wells’ attitude is her apparent consideration that X and Y’s emotional response to separation from her would be lessened by the arrangement of remaining in Melbourne with Mr Wylie while she and Mr C settled in Queensland, a consideration that was also based on her apparently firm - but as it transpired, incorrect - belief that Mr Wylie was in support of the relocation. The children have thus been exposed to multiple separations from their mother in the midst of a parental dispute that should more appropriately have been addressed without involving them.
The quality of attachment relationships for children is affected by the quantity of time. X and Y’s positive response to the almost equal shared care regime since Mr Wylie and Ms Wells separated six years ago, indicates the benefit to their development. In the observation for this report, the security of the attachment relationship for X and Y with Mr Wylie was marked.
In relation to the Father, this is found at paragraphs 142-144 inclusive:
Mr Wylie’s capacity to support the children’s relationship with Ms Wells.
Should the children remain living with Mr Wylie, it will also be crucial that he actively supports the children’s relationship with Ms Wells, given their very close bonds with her.
Mr Wylie presents as a thoughtful parent, attuned to the needs of his children. He has supported X and Y’s time during school holidays with Ms Wells for 2014, even despite his possible misgivings about her intentions, and it is likely that he will be able to facilitate the relationship.
Like Ms Wells however, Mr Wylie also hold firm beliefs about some of the children’s issues and he will need to ensure that he remains child focussed in supporting X and Y’s relationship with their mother.
Ms B considered the age of the children, their developmental stage and capacity at paragraphs 145-151. At 145 for example, she noted that both boys, “are facing the developmental tasks of individuation and academic and social consolidation”, which meant that education, and presumably continuity of education, was very important in ensuring their sense of “self-worth and confidence”.
Referring to the evidence of what she described as, “emotional distress and regressed behaviour”, after the Mother relocated, she said at paragraph 146 that, “the separation and how it was managed, have negatively impacted on the children”. At 147 she reported that in her opinion the, “children’s presentation during the report appointment, raises concerns that their relationship with Ms Wells is ruptured, giving rise to feelings of abandonment and loss of trust.” She explained the basis of her belief at paragraph 148, 150 and 151.
She referred to the encopresis that Y suffers, and how it is variably experienced by him depending on the contact and communication he has with his parents.
In relation to the children’s relationships with both parents it was plainly obvious to her, and it is certainly not in contention in the evidence, that they are both securely attached to their father and their mother and have positive relationships with the parents’ respective partners. The children also experience good relationships with their grandmothers on both sides, with the Paternal Grandmother playing a more significant role since the Mother’s relocation.
An important issue in this case is the children’s likely adjustment to relocation. The Family Consultant deals with this at paragraphs 158-166 of her report where she states as follows:
The children’s likely adjustment to relocation.
While X and Y apparently responded positively to school in Queensland, their attendance was short lived and in the midst of the parental dispute. If they were to live in Queensland, their consistent attendance at one school, would be crucial, given the enormity of the change in relocating and the attendant stressors in a number of aspects of their lives.
Emotionally, X and Y will likely settle, especially with the ongoing relationship with Ms Wells and Mr C’s supportive presence.
As children with relatively happy temperaments, they would gradually build sound friendships both at school and in the community.
The most significant risk to a successful outcome for X and Y in relocation, would be the potential loss of the psychological and social involvement of Mr Wylie in their life, as well as the facilitative involvement of the paternal extended family and Ms L.
While the research indicates that in relocation cases, the loss of frequent time is not as significant as the loss of the quality of involvement with the non-relocating parent, the strong bond for X and Y with their father will undoubtedly lead to grief and other emotional responses such as those reported in their response to separation from Ms Wells. Ms Wells particularly will need to address any issues that emerge with sensitivity and leadership.
Conversely, if X and Y remain with Mr Wylie, the loss of the quality of their relationship with Ms Wells will also need to be addressed, and any further symptomatic behaviour will need both Mr Wylie and Ms Wells’ support, as well as ongoing psychological therapy.
It will be crucial that whatever arrangement is the outcome, both parents remain actively engaged with X and Y, particularly given the already strong relationships as noted in this report.
Should relocation proceed, it will be crucial that a workable parenting plan is in place that not only includes as frequent times as possible for Mr Wylie with X and Y, but also regular and frequent contact using telecommunications.
Conversely, regular and frequent communication that is preferably visual such as Skype with Ms Wells should also be in place, if relocation does not proceed.
Some of the practical difficulties of geographic distance and travel time are discussed at 167-169. She noted that both parents agreed that the preferred option for the children to spend time with the other parent would be in school holidays. However, Ms B was quite firmly of the view that there was a risk for the children spending all holiday time with either parent, save for the long summer holiday, because it would result in a loss of opportunity for “downtime” as well as opportunities for extracurricular activity.
Ms B concludes at paragraphs 170-176 by addressing what, in her opinion, is the living arrangement that might meet the children’s best interests:
Living arrangements that might meet the children’s best interests.
It is apparent in this matter, that this assessment is not primarily concerned with deficits, and particularly deficits that might be related to parenting capacity. Mr Wylie and Ms Wells both present as competent parents who genuinely love their children and if Ms Wells were to live in Melbourne, a regime of equal shared care would be facilitative and meaningful for X and Y.
In considering all of the factors related to relocation, the developmental and environmental factors have emerged as those to be afforded more weight in determining what might be the optimum living arrangements for X and Y. Arrangements for children of X and Y’s age should always be considered as evolutionary and when they reach mid-adolescence, the children’s wishes might mean that changes are instituted.
While the children’s relocation to Queensland would not be significantly detrimental to their development, given the strong relationship with Ms Wells and her improved functioning and hence, improved parenting availability, the need for continuity of environment and the presence of more psychological resources in Melbourne, is the consideration that in my professional opinion, should be given more weight.
X and Y need a stable environment in which they can develop and importantly, reclaim the aspects of their emotional world that in some ways both have lost. They need therapeutic support in a stable and thoughtful environment to achieve this.
With Mr Wylie’s competence and the supportive environment of family, friends and school, X and Y’s development would be best served by remaining in Melbourne so that they can re-establish their developmental progress, particularly in their emotional development. X and Y should attend therapy with a psychologist specialising in work with children.
Ms Wells’ role in the children’s development and repair is crucial and she will need to be actively engaged in this process.
With regard to the time that X and Y could spend with Ms Wells, I would suggest that a portion of each school holidays – such as two thirds – are spent in Queensland and that Ms Wells travels to Melbourne for a long weekend in the middle of some or all of the school terms. Half of the long summer holidays would be appropriate for X and Y to spend with each parent.
By way of summary in this regard she concluded, as indeed the Court concludes having regard to all the evidence, that this case is not primarily about deficits but about meeting developmental needs and continuity of environment.
Her recommendations are found at page 39 of her Report, paragraphs 177-181 inclusive:
RECOMMENDATIONS
X and Y live with Mr Wylie in Melbourne and continue attending (omitted) Primary School.
X and Y spend time with Ms Wells in Queensland during the Melbourne school term holidays for a portion – such as two thirds - of each period and half of the long summer holidays.
Ms Wells spends time with X and Y in Melbourne for a long weekend in the middle of at least one school term, and any other time arranged with Mr Wylie.
Ms Wells communicates with the children on a regular basis, preferably using visual communication such as Skype. When the children are in Ms Wells’ care, then Mr Wylie should communicate regularly using media such as Skype.
X and Y attend a child psychologist for assessment and treatment.
Before considering the cross-examination of Ms B, it is important to recognise that the Mother’s challenge to the Family Report, an unsurprising important element of her case, was primarily founded on what she had submitted was the Family Consultant’s misinterpretation of the evidence, and how that filtered through and ultimately distorted the recommendations that she made. For example, the Mother’s Counsel submitted that the Family Consultant had misinterpreted the following evidence:
a)At paragraph 22 of the Report, the Father’s contention about the Mother’s limited family contact in Queensland, and inability to maintain friendships;
b)At paragraph 36, the Father’s contention about the nature of the shared care arrangement that existed before relocation;
c)At paragraph 37, the Father’s contention, seemingly accepted by the Family Consultant, about the Mother’s impulsiveness in aspects of her parenting as evidenced by the multiple number of schools the children have attended since separation, including in the short period they were retained by their mother in (omitted);
d)At paragraph 73-76, reliance on what the Paternal Grandmother said in the Family Report interviews, in circumstances where she did not give evidence at the Hearing.
As it turns out, the Court does not accept any of these submissions. For example, the evidence confirmed the very limited nature of the family support that the Mother has available to her in Queensland. The contention that she is unable to maintain friendships is, however, not borne out by the evidence, but this is hardly a determinative issue in a case such as the present one.
In relation to the nature of the shared care arrangement after separation but before relocation, the evidence in fact supports the Father’s contention over that of the Mother’s.
In relation to the Mother’s impulsiveness, again the evidence supports the veracity of this not just, for example, as manifested in the circumstances of her unilaterally retaining the children during the June-July mid‑2014 school holidays, but also in the frequent changing of the schools, including the two schools that they attended during the short period that they were in (omitted).
As for the Paternal Grandmother’s statement to the Family Consultant, quite apart from the fact that most of it is consistent with the other evidence in this case, and the impressions formed about the Mother, there is nothing of a determinative nature in what she told Ms B. Moreover, Ms B’s conclusions can hardly be said to be dependent in any way on what the Paternal Grandmother told her.
The remaining evidence about the Paternal Grandmother’s role in the children’s lives is quite uncontroversial. She gets the children to school and collects them after school. This was openly part of the Father’s case. There is no contention about it. There can be no basis for any complaint about the Paternal Grandmother having been seen by the Family Consultant and/or by her not giving evidence at the Final Hearing, even thought it might have been preferable to do so.
The Family Consultant was cross-examined on day 2 of the Hearing, after the parents had given their evidence. The following matters emerge from her cross-examination.
In the event that relocation was not allowed, the Mother proposed that she spend up to seven days during the school term with the children in Melbourne, on the basis that she would take the children to and from school, whilst they were all staying at the Maternal Grandmother’s home. The Family Consultant was clearly quite attracted to this idea and did not believe it to be unnecessarily disruptive to the children.
She did appear, however, somewhat sceptical about the sustainability of this proposal from a practical sense, and suggested having a back-up arrangement for mid-term time with the Mother if she could not sustain weeklong visits each school term.
In relation to school holidays, the Family Consultant remained committed to the concept of two-thirds of the school holidays because of the need for the children to have some “downtime” at home during the school holidays.
The Family Consultant was critical of both parents in terms of how they handled the Mother’s relocation to Queensland. She pointed out, for example, that before the relocation the children seemed to be doing very well in the care of both parents in Melbourne. Their mother’s relocation was a major change in their lives, and took away their primary carer. The children were distressed.
It would be unfair, however, to characterise Ms B’s evidence as, in effect, blaming the Mother for the situation. The reality is the Mother relocated. It was her decision, which precipitated certain impacts on the children. The inability of the parents to properly prepare the children was a matter in respect of which they both needed to take responsibility.
She was critical, however, of the Mother’s lack of insight in failing to properly consider the disadvantages to the children of her relocation, compared to the advantages to her of relocation. She clearly believed that the Mother was unable either to understand how the children would experience her relocation or, to prioritise their needs over hers.
She described the decision as one made by the Mother more based on her own sense of emotional recovery, rather than on the children’s needs. Allowing a situation to arise whereby the issue was left open as to whether, and if so when, the children would move with her merely exacerbated the situation.
The Family Consultant was again critical of the Mother’s lack of insight in retaining the children in (omitted) during the mid-year school holidays this year, again failing to understand how they might experience this.
The Family Consultant may well have underestimated the nature and extent of the communication, and lack of trust issues, that both parents have. She seemed optimistic that the eventual resolution of the issue before the Court would lead to an improvement in communication and trust.
The lack of communication and trust between the parents is not an issue, the Court finds having regard to all the evidence, that goes to the question of whether they are capable of supporting the children’s relationship with the other, absent, parent.
The Family Consultant conceded that if relocation were allowed, the children would probably manage well, but that did not detract from her belief that the children were still better off in Melbourne, particularly having regard to the extent of resources and family support available to them.
There is nothing that was put to the Family Consultant in cross‑examination, and there is nothing in any of the other evidence before the Court, that would detract from her recommendations. If anything, a close examination of the evidence of the parents in cross‑examination, particularly that of the Mother, merely confirms the Family Consultant’s observations, evaluation, and assessment.
Meaningful relationship
There is no question that these children enjoy a meaningful relationship with both their mother and father. That this has continued since the Mother relocated to (omitted) is plainly apparent on the evidence. This reflects well on both parents. The first of the primary considerations set out in s.60CC of the Act is not determinative in this case.
Whether the children live with their father in Melbourne, or their mother in (omitted), they will enjoy a meaningful relationship with their other parent.
To the extent that the Mother sought to argue that the relatively minor difficulties that she had experienced in communicating with the children were, somehow, indicative of an obstacle to her having a meaningful relationship with the children, this is plainly incorrect. The facts indicate that these children have such a good relationship with both their parents, created before the Mother relocated, that the tyranny of distance has not affected this in the past year.
Protecting the children From harm
There is no evidence before this Court to suggest that there is any need to protect the children from physical or psychological harm of any sort. To the extent that either parent sought to raise concerns about issues of harm in the other’s care, this is probably more reflective of the litigation process, particularly in a finely balanced case, than it is of any reality for these children.
For example, the Mother raised issues about the nature of her relationship with the Father before separation in her Affidavit but abandoned that as an issue at the Hearing itself by failing to cross-examine the Father about these issues.
To the extent that the Father raised issues about the Mother’s alternative treatments for the children’s physical condition as matters going to harm, this is not borne out by the facts. The dispute about how the children’s ailments are treated reflects ideological and parenting style differences, not matters of harm.
The Children’s Views
Having regard to the children’s age, the Court places no weight on what each parent believes to be the views expressed by the children.
The Nature of the Children’s Relationships
As indicated above, the children have a very good relationship with both of their parents. Indeed the relationships are so good that this would continue irrespective of whether the Court accepts one proposal or the other.
The evidence suggests the children have a good relationship with each of their parent’s partners but, unsurprisingly, have a stronger relationship with Ms L, the Father’s partner, simply because they spend far more time with her, as well as the fact that the Mother’s partner did not commence living with her until after they relocated to (omitted). It is clear from the evidence, nonetheless, that Ms L plays an important role in their lives, particularly in supporting the Father’s parenting.
The children enjoy a good relationship with both grandmothers. Up until the time of relocation, the impression formed from the totality of the evidence is that the children probably spent as much time with the Maternal Grandmother, as the Paternal Grandmother. Since the Mother’s relocation, the dynamic in the children’s relationship with the Maternal Grandmother has changed in that she sees them only when they spend time with their mother in Melbourne.
The Court finds that this is a choice that, for whatever reason, the Maternal Grandmother has made. She does not get on with the Father. The Court does not accept that as an acceptable explanation as to why she does not spend more time with the grandchildren. There are more alternatives than just spending time with them at the Father’s home, or in the Father’s presence.
By contrast, the relationship of the children with the Paternal Grandmother has deepened. The Court does not need the Paternal Grandmother’s evidence to make this finding, as it is apparent not just from the Family Report, but from the Father’s evidence as well. These children spend a considerable period of time in their Paternal Grandmother’s care.
On the Mother’s proposal, these children’s relationship with the Father’s partner, and the Paternal Grandmother, and indeed even conceivably the Maternal Grandmother, will change. In the case of the Maternal Grandmother, if the children were allowed to relocate to (omitted), until such time as she chooses to move herself (a matter that is far from certain on the evidence before the Court), there is a chance that she will still only see the children a few times a year at most.
Participating in decision-making, spending time and communicating
Section 60CC(c)(2) invites the Court to consider a range of matters under the broad heading of making decisions and participation in aspects of the children’s life. This is not a determinative consideration on the facts of this case. The Mother might be criticised, under this heading, for failing to consult with the Father about the children’s schooling, but the broader context of this decision, that is, as part of her unilateral retention of the children in (omitted), suggests it ought more properly be considered elsewhere.
Fulfilling parents’ obligations to maintain
Again, this is not a determinative consideration on the facts of this case. Whatever has happened in the past, the fact is that for the last 12 months the Father has borne, almost exclusively, the costs of providing for these children in circumstances where the Mother’s income has been minimal. The child support issues raised by the Mother in her Affidavits were not pursued at the Final Hearing, quite properly so. These issues are, at best, only marginally relevant.
The likely effect of change in the children’s circumstances
The Mother’s case in this regard seemed to minimise the impact of change for the children, whilst emphasising a return to the previously existing situation of being in her primary care. There is no question that she was the primary carer of the children before she left for (omitted).
There is equally no question that the children were distressed by her departure in circumstances where she made the decision, but both parents failed to adequately prepare the children, but also in circumstances where, the Court finds, the move by the Mother was based on prioritising her needs, over that of the children.
The Family Consultant in the Report, points out the vulnerability of these children because of the Mother’s actions in removing herself from the children’s lives a year ago, as context for wanting to minimise further disruption in the children’s lives if they were to move from a stable and consistent regime of time, place and relationships that is in place for them now, and has been for the last 12 months. The Mother minimises the nature of the change that the children would experience in (omitted), let alone the potential impact on them.
Yes, true it is that in (omitted) the Mother would be more available to personally care for these children and that she would be more fulfilled, but the evidence does not suggest that the value of that would exceed the potential adverse impacts of another dramatic change in their lives. The Mother’s proposal, of course, presents the likelihood of significant change in these children’s lives, in circumstances where, in this Court’s estimation, there is no net benefit to them.
Issues of practical difficulty and expense
Despite the geographical distance that has existed between the Mother and the children for the last 12 months, no issue of practical difficulty and expense has arisen. She has borne all, or almost all of the cost associated with spending time with the children. In circumstances where the Father bears almost all of the costs of raising these children, that seems appropriate.
On the evidence the Mother gives about her income, it is hard to understand how she affords this. It is possible that the Maternal Grandmother in cross‑examination actually provided the most plausible explanation for this, that is, the Mother is currently living off capital. In any event, neither party through their evidence made this consideration a significant one in their respective cases.
The Mother has the advantage of the resource available to her in Melbourne of the Maternal Grandmother’s home, let alone the Maternal Grandmother’s generosity. In these circumstances, should the Court decline to allow relocation to (omitted), no issues of practical difficulty and expense would arise. In these circumstances, however, the Court would expect the Mother to continue to bear the cost associated with travel.
Should the Court decide that the children be able to relocate to (omitted), again no issues of practical difficulty and expense arise. The cost of travel would need to be considered having regard to considerations including child support paid.
Issues of parental capacity
Unlike many cases that come before this Court there is little, if any, concern about the capacity of each parent to provide for their children’s needs, in diverse ways. It is an idle, futile argument to suggest that one has a greater degree of capacity than the other. In reality, their capacity to meet the children’s needs might be different only in terms of their respective strengths and weaknesses, rather than as to any conclusion about overall difference in capacity.
There is no doubt, for example, that the team constituting the Father, his partner and the Paternal Grandmother is more than able to meet all of the children’s needs, as diverse as they are. A differently constituted team, lead up by the Mother, would achieve exactly the same result. The Mother’s greater capacity to be there, in person, probably compensates for the fact that her household, as presently constituted, probably does not have the same financial resources available to it than the Father’s.
The ideological differences that exist between the parents between mainstream and alternative medicine does not detract from the conclusion set out above.
The Court heard evidence about needs of the children and about encopresis and rashes which variously appeared, and disappeared, depending on whose care the children were in. The Mother clearly preferred various forms of alternative medicine to deal with this issue, whilst the Father was critical of the Mother for doing so in preference to mainstream medicine. Of far more significance to this Court is the concession that both parents made, as indeed did Dr C, that physical symptoms can have a psychological basis.
The most obvious explanation for any psychological stress that the children are experiencing is the present conflict between the parents, and their inability to communicate and to trust one another’s judgment. This cuts both ways. This consideration is plainly not determinative on the facts of this case.
In the Wife’s case she led evidence from Dr C, a (omitted) doctor working at the (omitted) Clinic. The Court places minimal weight on Dr C’s evidence. He did not demonstrate to the Court that his medical opinion could be sustained on the basis of the information that he had been given by the Mother alone, or on the basis of his interpretation of blood tests.
Dr C’s evidence is, quite frankly, a non-issue and merely reflects the ideological differences between the parents about mainstream and alternative medicine.
Maturity, sex and lifestyle considerations
This additional consideration set out in s.60CC(2) did not figure prominently in the submissions made by either parent, quite rightly so. To the extent that the mother’s case inferred that the children would have a better lifestyle in (omitted), just because that was her experience of the same, there is no evidence to sustain the same.
Parental attitudes
The very nature of litigation about children, particularly in the context of finely balanced relocation cases, invites close scrutiny, and often criticism, about one parent’s behaviour, and the attitude that can be extrapolated from it. Such is the case before the Court. Even though both parents are good parents by any objective measure, the Court must nonetheless look at the evidence to see whether there is a pattern of behaviour of one or other parent that raises issues of concern.
The Mother’s criticism of the Father in terms of facilitating her contact and communication with the children since relocation has no substance. Just as one swallow does not a summer make, forgetting to have the children ring the Mother on her birthday is not indicative of a broader malaise. Rigidly adhering to Court Orders about communication is hardly demonstrative of a poor attitude when the circumstances suggest that it was the Mother’s work commitments that contributed to the situation.
By contrast, the Mother’s actions firstly in relocating to (omitted) without the children, and then subsequently unilaterally retaining the children, reveal concerns about her attitude towards the children and to her responsibilities as a parent. The concerns expressed by the Family Consultant in her Report were borne out in the Mother’s cross‑examination and are shared by this Court.
A review of the history of this matter does suggest that the Mother, at critical times, put her own emotional and psychological needs ahead of that of the children. She did not adequately consider the impact on her children of her lifestyle move. She did not adequately consider the impact on the children of retaining them, thus precipitating recovery proceedings. There is evidence to suggest she actively misled the Father about the June-July school holidays in 2014 in (omitted).
She was either naïve, or disingenuous, in suggesting in cross‑examination that it was acceptable for her to have retained the children because, “they were expecting at some stage to move up”, and that, “what was confusing to them was being returned to the father”.
In a finely balanced case, the Mother’s attitude raises questions about her future ability to prioritise the children’s needs, even if they did come into her care in (omitted), as well as raise some underlying concerns about her commitment to fostering the relationship.
Family violence
To the extent that this case involves allegations of family violence, it has been discussed in the context of protecting the child from harm. Family violence is not a determinative consideration in this case.
Equal shared parental responsibility
Both parents sought Orders for equal shared parental responsibility. There is, in any event, no evidence that would suggest the inappropriateness of such an order.
Equal time, or substantial and significant Time
The Act requires the Court to consider equal time, or substantial and significant time, provided the same is in the best interest, and reasonably practicable.
In the circumstances of this case, however, geographical considerations make it impossible to consider either equal time, or substantial and significant time, as neither would be reasonably practicable. The one exception, of course, is if one of the parents were prepared to move and thus live within geographical proximity to each other. In the Orders sought by the Mother she considers the possibility that the Father relocate to the (omitted) region in which case the children would spend substantial and significant time with him.
That was not the Father’s proposal. Indeed, all of the evidence suggests that the Father has no intention of relocating, and has no reasonable opportunity or possibility to do so. Quite apart from personal considerations pertaining to him, his work, his partner, and his mother, the fact is that this would be a further significant change for the children in circumstances where, based on the reasons set out above, it is plainly unnecessary, and not in their best interests. It was not seriously contented in the Mother’s case (for example, in cross-examination) that the Father could or should relocate to (omitted), other than the bare assertion in her Orders. It was also evident that the Mother would not return to Melbourne other than for short periods.
The Orders in the best interests of the children
The Court’s task is to consider, weigh and balance the evidence and the proposals by reference to the various statutory considerations that have been referenced, and to somehow make a decision on the balance of probabilities that is in the best interests of the children and reasonably practicable. In a finely balanced case, the totality of the considerations that have been discussed above point, in this Court’s opinion, to the children remaining with their father in Melbourne, and spending time with their mother whilst she is in (omitted). The focus thus turns on the arrangement for the children to spend time and communicate with their mother, which is in their best interests.
The Mother did not advance an alternative proposal, should her application to relocate the children be unsuccessful. In cross‑examination, however, both of herself and of the Family Consultant, a number of things became apparent. Firstly, she is keen to try to spend at least one week during each month in the school term with the children, in Melbourne, based at the home of the Maternal Grandmother. This is a proposal that the Family Consultant supported.
As an alternative, she seemed open to having at least the same frequency of contact with the children in school terms, as she proposed for the Father should relocation be allowed.
The Court recognises that there is some ambiguity, and imprecision in the Mother’s proposal. The Court would have been assisted by a more thoroughly considered alternate proposal by the Mother as to what time she would like to spend with the children, should relocation not be allowed. An example of the lack of precision is found in the Mother’s case outline document at page 5:
In the event that the court is not minded to make orders in line with that set out in the response, the mother seeks that the children be afforded the opportunity to spend time with the non‑resident parent once per month for a block period of up to seven nights, on the giving of 14 days’ notice to the resident parent.
This is slightly inconsistent with Order 5(a)(i) of the Final Orders sought in the Mother’s Response where what she proposes be the Father’s time with the children, should they be allowed to relocate, is, “Not more than four occasions each school term, for up to seven days on each occasion”, the difficulty being that that does not necessarily correspond to once a month.
Adding to the ambiguity, however, is the Mother’s Counsel’s cross-examination of the Family Consultant in which he described the Mother’s proposal as being, inter alia, one week in the school term in Melbourne. The difficulty with the Mother’s proposal is that the Court understands the Family Consultant to have been enthusiastic about the Mother’s proposal to spend up to seven days in Melbourne, at the Maternal Grandmother’s home, each term, not each month.
The Father’s proposal was that the children spend time with their Mother in Melbourne for two weekends during the school term.
The Mother’s proposal for school holiday time was all of terms 1, 2 and 3 school holidays and half the long summer holiday. The Father’s was similar. The Family Consultant recommended two-thirds of each of the mid-year school holidays, and half of the long summer holidays, for reasons that have already been explained in this judgment.
The Court does not accept the Mother’s proposal, insofar as it raised the possibility of her spending time for a one week block with the children, in Melbourne, once a month. As recommended by the Family Consultant, however, the Court is prepared to give her the opportunity to spend one seven day period in Melbourne with the children, each school term, provided she gets the children to school and their existing extracurricular activities, on sufficient notice to the Father.
Quite apart from the fact that the Family Consultant supported the proposal, the Mother’s proposal invokes a scenario of a long‑distance shared care arrangement in the course of which, each month, the children would be living in their father’s home for at least three weeks, but in the Maternal Grandmother’s home, for one week.
It is not just the transition in physical spaces that the Court is concerned about, but also the transition in psychological spaces, and in circumstances where there a poor communication and lack of trust between these parents. Whilst the Court recognises there is some prospect, as the Family Consultant certainly hopes, for the situation to improve as a result of the finalisation of this litigation, there can be no guarantee.
Nonetheless, the children should also have the opportunity to spend, in addition, two weekends during the school terms with their mother, in Melbourne. The Court considered the possibility of not restricting the children’s time to Melbourne, but allowing them to fly to (omitted) for the weekend. The Court does not rule out the possibility that, particularly as the children get older, the parents might agree to this. However, for the time being, this Court considers that a return trip from (omitted) to Melbourne on a weekend is an unacceptably high level of travel for young children.
It should be noted that, for as long as the Maternal Grandmother continues to reside in Melbourne, the Mother and children will always have a place to stay. Indeed, the Maternal Grandmother’s evidence was that she was really only contemplating a move to (omitted), provided her grandchildren were up there with the Mother.
The school holiday periods will be as recommended by the Family Consultant, that is, two-thirds of the mid-year school holidays, and half of the longer summer holidays. In order to avoid misunderstanding about this, the school holidays will be defined for this purpose only, of consisting of the number of days starting from the first day after the end of school term to the last day before the commencement of a school term multiplied by 0.666 (and rounded up by one day if the resulting number is above 0.5) for the mid-year school holidays and by 0.5 for the longer summer holidays.
The Court notes that the Family Consultant’s recommendation at paragraph 179 was for only one weekend in the school term in Melbourne, but, for the reasons articulated above, the Court prefers to at least give the Mother the option of having two weekends plus one block period.
There are a number of other minor differences in the proposals as to aspects of implementation of these Orders. These differences were not the focus of evidence, and/or submissions. The Court will make Orders, drawn from the proposals of both the Mother and Father, which in the Court’s opinion are least likely to create uncertainty and room for misunderstanding, and which is more likely to facilitate compliance.
During closing submissions the Mother’s Counsel made an oral application to amend the Orders sought so that an order be made that the child, Y, be provided with a gluten and dairy free diet. The Court declines to make the order. The only evidence that would go anywhere near justifying the making of that order was Dr C’s evidence which, for reasons articulated, the Court places little weight on.
It is hard to understand why, if this was such an important issue for the Mother, she would not have raised it before she did. Indeed, there is merit in the submission made by Counsel for the Father that if Y’s medical condition was so serious such as to warrant the making of the order she proposed, she would have taken him to a specialist instead of to a general practitioner who appeared to have a particular interest in holistic and alternative remedies.
Any Orders for the children to spend time and communicate with their Mother need to be as prescriptive as possible so that the parental lack of communication and trust does not get in the way with such communication.
Having regard to the above, the Court considers the Orders that it has made to be in the best interests of the children.
A number of ancillary matters were raised in the Orders sought but in respect of which there was limited evidence and submissions. The Mother sought Orders that travel costs be shared but in circumstances where she makes no, or little, contribution to the costs of caring for the children, this is not an appropriate order to make. The Father sought Orders in relation to X's Facebook account, and in relation to communication. The former is appropriate having regard to X’s age, and the latter is necessitated as a result of a seeming clash of values between the parents. As the children will spend most of their time with the Father, his preference for mainstream medicine as opposed to alternative or natural therapies, should be upheld. The evidence does not support the Father’s proposal to restrain the Mother administering natural therapies on the children when they are in her care.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 23 December 2014
Schedule One
Father’s Minute of Order
That the parties have equal shared parental responsibility for the children, X born (omitted) 2005, aged 9 years (“X”) and Y born (omitted) 2007, aged 7 years (“Y”) (“the children”).
That the children live with the Applicant Father in Melbourne.
That the children spend time with the Respondent Mother as follows:
a) During school Terms 1, 2, 3 and 4 in Melbourne as follows:
ii) For 2 weekends during Melbourne school Terms 1, 2, 3 and 4 at times to be agreed and in default of agreement on the 3rd and 6th weekends of each school term, from after school on Friday until the commencement of school on Monday (with such period to extend to Tuesday in the event of a public holiday on Monday) in Melbourne;
iii) That the children spend the Mother’s Day weekend with the Respondent Mother each year as part of the Respondent Mother’s time with the children in accordance with paragraph (i) herein, and otherwise the children spend the Father’s Day weekend with the Applicant Father each year;
b)For the first half of each school Melbourne school Term 1, 2 and 3 holidays with such period to commence at 12 noon on the Saturday following the last day of school and to conclude at 12 noon on the date that is the mid-point of the school term holidays with such holiday contact to take place in either Melbourne or (omitted), Queensland at the Respondent Mother’s election;
c)That the parties alternate the Easter holiday period each year so that as part of the Respondent Mother’s time with the children in accordance with paragraph (b) herein, the children spend the 2015 Easter period with the Applicant Father and each alternate year thereafter and the 2016 Easter period with the Respondent Mother and each alternate year thereafter.
d)For one half of the long summer school holidays as follows:
i) In 2014/2015 for the first half of the long summer school holidays commencing on the last day of the school year until the midpoint of the long summer school holidays and each alternate year thereafter;
ii) In 2015/2016 for the second half of the long summer school holidays commencing on the mid point of the holidays until the last day prior the commencement of the new school year and each alternate year thereafter;
iii) With such holiday contact to take place in either Melbourne or (omitted), Queensland at the Respondent Mother’s election.
e)That the Respondent Mother be at liberty to request to spend additional time with the children on their respective birthdays and the Respondent Mother’s birthday as agreed between the parties.
f)At such further times as agreed between the parties.
That the children be at liberty to telephone and/or Skype the parties at all reasonable times as may be agreed between the parties
That the Respondent Mother be responsible for all travel costs associated with the children travelling to and from Melbourne and (omitted), Queensland in accordance with Order 5 herein.
That the Respondent Mother take the children to any extra-curricular activities in which they are enrolled whilst she is spending time with them in Melbourne.
That the parties each inform the other as soon as possible, of any illness or injury suffered by the children, particulars of any treatment required or received by the children together with the name and the address of the treatment provider and /or location at which the children are a patient and any medical or other health practitioner involved with the children and authorise such practitioner to discuss any treatment with the other party.
That each party be at liberty to attend any school functions or other events in relation to the children’s education at which parents are ordinarily in attendance.
That each party authorise any school or other educational institution attended by the children to discuss their progress with the other party and provide the other party with copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents.
That the Respondent Mother provide the Applicant Father with all details including passwords and usernames relating to X's Facebook account and any other mobile devices of the children.
That the Respondent Mother be restrained from administering natural therapies on the children without the prior written consent of the Applicant Father.
That the children attend upon a General Practitioner for the purposes of immunisations and that the Respondent Mother authorise same.
That the children attend upon Dr F, from (omitted) Children's Psychology for assessment and treatment.
That the parties each be and are hereby restrained from denigrating the other in the presence or hearing of the children or involving the children in the dispute between them.
Such further or other orders as this Honourable Court deems appropriate.
Mother’s Minute of Order
Parenting Responsibility
Pursuant to Section 61D of the Family Law Act 1975 as amended (the “Act”), the Respondent Mother, Ms Wells (hereinafter referred to as the “Mother”) and the Applicant Father, Mr Wylie (hereinafter referred to as the “Father”) (collectively the “parents”) will have equal shared parental responsibility for the children of the relationship, namely X born on (omitted) 2005 and Y born on (omitted) 2007 (hereinafter referred to as the “children”) in respect to all “major long term issues” as defined in Section 4 of the Act, being issues about the care, welfare and development of the children of a long term nature.
The parents will each have, during all such times that the children are in their respective care, parental responsibility in respect to issues that are not “major long term issues” as referred to in paragraph 1 herein.
Parenting Arrangements as to time
The children will live with, spend time with and/or communicate with each of the parents for such periods of time, and in such manner, as might be agreed between the parents in writing and, failing such agreement, in accordance with the succeeding paragraphs of this Order.
The children will live with the Mother at all times other than when spending time with the Father as provided for in this Order.
The children will spend face to face time with the Father as follows:-
(a) whilst the Father resides in Melbourne:
(i)during the Queensland gazetted school term: when the Father is in the (omitted) region, on not more than four (4) occasions each school term, for up to seven (7) days on each such occasion, PROVIDED THAT the Father advise the Mother in writing of his intention to spend time with the children at least fourteen (14) days beforehand and the Father facilitate the children’s attendance at school and scheduled extra-curricular activities on each such occasion;
(ii)during Queensland gazetted school holidays: all school holidays except the December/January school holiday period when the children will spend time with the Father for one half of that school holiday period by agreement of the parents, as evidenced in writing, and failing agreement, the first half in even years and the second half in odd years; and
(b) should the Father relocate to the (omitted) region:
(i)during the Queensland gazetted school term: each alternate week from after school Friday until the commencement of school the following Monday, or Tuesday if Monday is a public holiday or pupil free day;
6.
(ii)during Queensland gazetted school holidays: One half of each school holiday period by agreement of the parents, as evidenced in writing, and failing agreement, the first half in even years and the second half in odd years;
(iii)definition of school holiday periods: for the purpose of giving effect to paragraph 5(b) of this Order, the first half of each school holiday period will commence at 3:00 pm on the last day of the school term; the second half of each school holiday period will commence at 3:00 pm on the middle day of the school holiday period and the second half of each school holiday period will conclude at the commencement of school on the first day of the new school term; and
(iv)suspension of school term time: school term time provided for in paragraph 5(b)(i) of this Order will be suspended during school holiday time provided for in paragraph 5(b)(ii) of this Order;
(v)suspension of school holiday time: school holiday time provided for in paragraph 5(b)(ii) of this Order will be suspended during Easter Christmas time periods provided for in paragraphs 5(b)(viii) and 5(b)(ix) of this Order;
(vi)birthdays: On the Father’s birthday and the children’s birthdays, should the children not be spending time with the Father, from the conclusion of school the day preceding each such birthday, or 4:00 pm the day preceding such birthday if it is a non-school day, until the commencement of school the next day, or at 10:00 am the next day if it is a non-school day PROVIDED THAT the children spend the same period of time with the Mother on the Mother’s birthday and the children’s birthdays, if the children are spending time with the Father on such birthdays;
(vii)Fathers’ Day & Mothers’ Day: On Fathers’ Day, should the children not be spending time with the Father, from 5:00 pm the day preceding Fathers’ Day until the commencement of school the following Monday, PROVIDED THAT the children spend the same period of time with the Mother on Mothers’ Day if the children spending time with the Father on Mothers’ Day;
(viii)Easter time: From 9:00 am Good Friday until 5:00 pm Easter Saturday each odd numbered year and from 5:00 pm Easter Saturday until 5:00 pm Easter Tuesday each even numbered year, PROVIDED THAT the children live with the Mother from 9:00 am Good Friday until 5:00 pm Easter Saturday each even numbered year and from 5:00 pm Easter Saturday until 5:00 pm Easter Tuesday each odd numbered year; and
(ix)Christmas time: From 9:00 am 23 December until 9:00 am 25 December each even numbered year and from 9:00 am 25 December until 9:00 am 27 December each odd numbered year PROVIDED THAT the children live with the Mother from 9:00 am 23 December until 9:00 am 25 December each odd numbered year and from 9:00 am 25 December until 9:00 am 27 December each even numbered year.
Changeover
For the purpose of the children living with and spending time with the parents in accordance with this Order, changeover will take place as agreed by the parents in writing, and failing agreement:
(a) whilst the Father resides in Melbourne:
(i)at the children’s school on a school day and the closest park to the Mother’s residence on a non-school day if the Father is in the (omitted) region;
7.
(ii)at the Melbourne airport at the commencement of the children’s time with the Father and at the (omitted) airport at the end of the children’s time with the Father if time is to take place between the Father and the children in Melbourne, with both parents to facilitate the children’s attendance at the airport and share half the travel costs;
(b) should the Father relocate to the (omitted) region: at the children’s school on a school day and the closest park to the Mother’s residence on a non-school day.
Communication
The children will be at liberty to have telephone, Skype or Face time with the parent they are not in the care of and for that purpose:
(a) the parent whom the children are living or spending time with will make a telephone and/or computer available to the children for the purpose of the children contacting the other parent;
(b) each parent will facilitate the other parent’s call, Skype or Face time, with the other parent to make such contact no more than every second night that the children are not in her/his care, the first such night to commence the night following changeover, with such contact to be made between 6:00 pm and 7:00 pm; and
(c) the parents will encourage the children’s telephone, Skype or Face time with the other parent.
Provision of information and arrangements about the children
Each parent will do all such acts and things and sign all such documents as may be necessary or required from time to time to: -
(a) authorise each parent to communicate with and receive communications from any doctor or healthcare professional of any type, whom the children consult, failing which this Order will, of itself, constitute such authority;
(b) advise the other parent of the medication being taken by the children and provide that medication to the other parent at changeovers;
(c) speak to and receive oral or written communication from any school or other educational institution attended by the children at the requesting parent’s expense, including but not limited to copies of all school reports, school photographs, and any other documents regarding the academic progress or achievements of the children, and notification of important events such as parent/teacher events, sports days and concerts, failing which this Order will, of itself, constitute such authority;
(d) list the Mother and the Father as the people that are to be contacted in the event of an emergency at any school or other educational institution attended by the children, failing which this Order will, of itself, constitute such authority;
(e) keep the other parent appraised of their residential address and telephone contact number from time to time and advise of any such change within seven (7) days of same; and
(f) notify the other parent should the children suffer any medical emergency, serious illness or other significant issue affecting the children’s health or welfare, whilst in her/his care as soon as reasonably practicable and in any event, within four (4) hours of the occurrence of same.
Restraints and obligations
Each parent will refrain from denigrating the other parent and/or their respective partners in the presence and/or hearing of the children and will not expose the children to any other person doing so.
Each parent will not be under the influence of illicit drugs whilst the children are in her/his care or operate a motor vehicle whilst she/he has a blood alcohol reading higher than the legal limit to allow them to drive.
During the time the children are with either parent, that parent will:-
(a) respect the other parent’s privacy and not question the children about the personal life of the other parent; and
(b) speak of the other parent respectfully and refer to the other parent as “Mum”, “Dad”, “Mummy” or “Daddy” as the case may be.
Other Order
Such other Order as deemed appropriate by this Honourable Court.
Costs
The Applicant Father pay the Respondent Mother’s costs of and incidental to these proceedings.
0
1
2