ZN v YH
[2002] FamCA 453
•10 May 2002
[2002] FamCA 453
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT HOBART
File No. HB 1336 of 1997
IN THE MATTER OF:
ZN
Applicant
and
YH
Respondent
and
The Child Representative
_____________________________________________________________
REASONS FOR JUDGMENT
_____________________________________________________________
Coram: NICHOLSON CJ
Date of Hearing: 18, 19, 20, 21 and 24 December 2001
04 February 2002
Date of Judgment: 10 May 2002
Appearances:
Ms B Baker of Counsel instructed by Murdoch Clarke, 10 Victoria Street Hobart TAS 7001 for the applicant
Mr P Fitzgerald of Counsel instructed by Legal Aid, 123 Collins Street Hobart TAS 7001 appeared for the respondent
Mr G Hay of Counsel instructed by Glen Alan Hay Barrister at Law, P.O Box 20 Battery Point, 7004 appeared for the Child Representative.
Relocation – evaluation of proposals – best interests of child paramount – mother’s freedom of movement under international conventions – AMS v AIF; AIF v AMS (1999) FLC 92-852 – A v A: Relocation Approach (2000) FLC 93-035 – Family Law Act 1975 sections 68F(2), 60B
Children’s wishes – When judge should interview children - R and R: Children’s Wishes (2000) FLC 93-000 – H v W (1995) FLC 92-598 – Family Law Act s 68F(2)(a)
This case involves three children aged 14, 12 and 9. Their mother wants to relocate them to the United States to live with her and her new husband, who is a United States citizen now living in Tasmania. She was previously married to the children’s father who resides in Tasmania. The parties separated in 1994 and the children have lived with the mother since separation.
The mother proposes that the father have contact with the children in Tasmania during the whole of the American summer holidays, e-mail and telephone contact, and additional physical contact in the United States if the father chooses to visit. The father’s proposes that the children be prevented from relocating until the youngest child has completed primary school, which will be the end of 2004, and that they should continue to live with their mother in Hobart until then.
The father has considerable contact with the children since separation in 1994. Since late 2000 the eldest child sees him on an alternative weekend basis, and the two younger children see him three weekends out of four. In the months prior to the first hearing, there was a degree of ill feeling on the part of the two elder children towards their father. This appears to have been caused by the father’s opposition to the proposed move coupled with the mother’s tendency to involve the children in the dispute between their parents.
At the time of their first interview with the counsellor, all three children had expressed the wish to travel to the United States. The counsellor, in evidence, expressed some doubt as to the voluntary nature of these wishes. They were then seen by the trial judge, with their consent, in the presence of Counsel for the Child Representative. Following that meeting, the trial judge ordered that the counsellor interview the children again. After that interview the Counsellor gave evidence that the eldest and the youngest no longer wished to go to the United States and that the middle child, while still wishing to go, was content to wait for a period.
Held:
(Per Nicholson CJ)
The Court is required to approach the question of relocation by evaluating the parties’ proposals with neither party bearing an onus and the best interests of the children as the paramount consideration. In doing so the Court must have regard to the evidence and arguments relevant to the factors set out in section 68F(2) of the Family Law Act 1975.
AMS v AIF; AIF v AMS (1999) FLC 92-852; A v A: Relocation Approach (2000) FLC 93-035
The Court must also have regard to the matters set out in s 60B of the Act and while the best interests principle requires that the children’s best interests are paramount, the Court is not precluded from considering other rights and interests.
The mother’s rights of freedom of movement are relevant in this case. However, as this involves an international relocation, it does not come within the protection to freedom of movement provided by s 92 of the Constitution. Nonetheless, the law does recognise a principle of freedom of movement that is readily to be derived from international conventions such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of Discrimination Against Women, if not from the common law.
Having the children meet with the judge is not a practice routinely adopted and there are usually good reasons for caution. However there are circumstances, usually involving older children, where such a meeting is appropriate. There are also children who indicate that they would like to express their views directly to the judge. The Court should be mindful of the provisions of Article 12 of the Convention of the Rights of the Child in this regard, namely, that the children have both a right to be heard and to have their views taken into account.
The wishes of the children, which must be considered pursuant to s 68F(2)(a), are of particular significance in this case, having regard to the age and state of maturity of the children, the wishes of the eldest child, the neutral approach of the middle child and the strong bond between the youngest child and her father and her express wishes.
R and R: Children’s Wishes (2000) FLC 93-000; H v W (1995) FLC 92-598
The detrimental effect upon the children of permitting their relocation in 2002 outweighs other competing rights and interests.
An order should not be made permitting relocation at some date beyond the end of 2000. If an order for relocation was made, as was submitted it should be, that only operated if and when a further report was obtained as to the children’s wishes, this would place them under unfair pressure.
INTRODUCTION
This case involves three children, S, now 14 nearly 15; B, now 12 nearly 13; and T, now 9 nearly 10.
Their mother, ZN, wants to take them to the United States to live with her and her present husband, CN, in Sharon, Massachusetts.
She was previously married to the children’s father, YH. The couple married in 1986 and separated in 1994 and the children have lived with the mother since separation.
Her formal application is for a residence order and sole parental responsibility, but there has never been any real dispute between the parents that the children should reside with her.
She married her present husband, CN, in Hollywood, California in March 1999, and he has lived with her in Hobart since July 1999. They want to go to live in Sharon, which is CN’s hometown and live there with CN’s mother.
She lives in a large house situated on one and half acres that included five bedrooms and ample room. The property includes a large established garden with woods and a swimming pool.
Sharon is a town of approximately 17,000 residents, 40 kilometres south west of Boston and because of its size and relative affluence, it is known as a quiet, clean and safe community with well equipped schools, with many facilities for families with children. It is a 20 minutes train ride from Boston and is also a relatively short distance from Providence, Rhode Island.
The Mother’s Contact Proposals If The Children Live In Sharon
She proposes that the father should have contact with the 3 children in Tasmania during the whole of the American summer holidays each year (approximately 10 weeks) and that she should pay the airfares of the three children for that purpose. She also proposes that the father should have additional contact in the United States if he visits there.
She also said that she is happy for the children to communicate with him and other family members by e-mail and telephone and that they will be encouraged to maintain their friendships with friends in Tasmania.
10. She noted that the father had, to date, arranged for the children to have regular visits with their maternal grandmother (from whom she is estranged). She said that they would be able to see her on their return to Tasmania and that she could also telephone the children in the USA.
The Father’s Proposal
11. Although the father has altered his proposal on a number of occasions, he has been consistent in his desire that the children be not removed from Tasmania until they are older.
12. In his initial Response filed in December 2000, he sought an order that all three children live with him if the mother was to relocate. He later moved to the position of seeking an order that the two younger children live with him and that S choose whether she wished to accompany her mother and her husband. This was his formal position at the start of the trial.
13. Later during the trial he adopted the position that T should live with him and that the two older children be permitted to relocate with the mother and CN in August 2002.
14. The mother made it clear that if any of the children were not permitted to relocate with her then she would remain in Hobart with CN and the children.
15. His final position was that all of the children should be prevented from relocating until T has completed primary school, which will be the end of 2004, and that they should continue to live with their mother in Hobart until then.
16. If the father’s proposal is to be preferred, a secondary issue arises as to whether it is appropriate for me to make an order to that effect, or whether I should simply dismiss the mother’s application. This is because of the gap in time that would be involved if I were to permit relocation in say 2004 and the possible changes in family dynamics that might occur in the meantime.
The Position of the Child Representative
17. The Child Representative did not advance specific proposals. This was because the children had expressed conflicting wishes and he felt that to adopt a particular position would have been unfair to the child or children whose position he opposed. He raised this with me in his final address and I indicated to him that I did not think that it was necessary for him to adopt a final position given the finely balanced nature of the case and the potential conflict of interest that he felt might be present.
18. In the final analysis, the issue I am asked to decide which of the parties’ proposals will best promote the children’s best interests: the mother’s proposal that she be permitted to take the children with her to the United States in August 2002 and provide contact to the father in accordance with it; or the father’s proposal that they continue to reside with their mother in Hobart until the end of 2004 and continue to have contact with him in Hobart. I am not however confined to the proposals as put by the parties in determining what will be in the best interests of the children. (see AMS v AIF; AIF v AMS (1999) FLC 92-852 and A v A: Relocation approach (2000) FLC 93-035)
BACKGROUND
The Children
19. The mother described S, the eldest, as a happy girl who is well liked by teachers. She described B as very quiet, reserved and somewhat introverted, but intelligent and with a strong grasp of complex issues. T was described as very energetic, time consuming and demanding and constantly asking questions. She said that she was the most openly affectionate of the girls. These descriptions seem to be consistent with the views of other witnesses. They also accord with my own observations.
20. Professor Hogan, Professor of Education at the University of Tasmania was a witness called by the Child Representative who addressed educational issues. He was well suited to the present case having worked in the United States education system in Illinois, Pennsylvania and Maryland. He had made specific Internet inquiries in relation to schools in Sharon.
21. Professor Hogan described the three children as above average without being brilliant at school but thought that they would have no difficulty coping with the United States education system.
History of Contact
22. Following separation, the parties agreed that the father should have the children every weekend and one afternoon per week and that arrangement continued until late 2000. There was a considerable amount of flexibility in the arrangement and he says that the children spent more time than this with him in the first two years of separation. The children have also spent half of their school holidays with him since at least 1996.
23. Since late 2000, by agreement, S sees her father on an alternate weekend basis and B and T see him three weekends out of four. Apparently B would like to have the same arrangement as S.
24. Despite the relatively amicable contact arrangements, there has been a degree of ill feeling between the parties, some of which appears to have been caused by the mother’s resentment that the father has not paid child support. She said that she had provided for all of the children’s school needs such as fees, uniforms, shoes and excursion costs, although since her re-marriage, she and her husband have shared those costs.
25. Unfortunately, it appears that she has expressed her concern over this matter to the children, who expressed criticism of their father to the reporting counsellor. This is one example of her tendency to involve the children in the dispute between their parents that I will discuss subsequently.
26. In evidence, the father justified his position on this issue by pointing to the amount of time that the children had spent with him and his limited income during the period. I consider this to be not unreasonable and I do not draw any adverse inference against him over this issue.
27. Despite these concerns, the mother described her relationship with the father as relatively amicable and said that they had agreed that they should be agreeable as possible in front of the children and that this had generally happened. She also described a flexible arrangement as to contact with each fitting in with the other as appropriate. She has taken the children on extended overseas holidays, with the father’s consent, including a holiday to England in 1997 for eight weeks and a seven-week visit to the United States in 1999.
28. In February 1999, she left the children with him when she went to the United States to get married and she stayed away for a period of six weeks.
29. CN, who was previously employed as an editor of a large American newspaper, was granted a limited spouse visa to reside in Australia from July 1999 and is now employed as an editor with an Australian newspaper. He expects no difficulty about its renewal.
30. The father lives with his defacto spouse AO, who has a daughter, aged fourteen, who resides principally with her father but stays often, and AO’s younger daughter aged eight, who resides with her. He has been living with her since 1999. There appear to be quite good relationships between the children of the two families with the possible exception of B. She feels a little left out when visiting, possibly because of age differences. There is a good relationship between the children and AO.
31. The sort of contract arrangements described approach something close to the ideal for separating couples. They do however present a problem for the mother in the present situation because the father has played a much bigger part in the children’s lives than is usually the case and has done so over a period of eight years.
THE LAW
32. In keeping with AMS v AIF; AIF v AMS (supra) and A v A: Relocation approach (supra), I am required to approach the matter by evaluating the parties’ proposals with neither party bearing an onus and the best interests of the children as the paramount consideration. In doing so I must have regard to the evidence and arguments relevant to the factors set out in s68F(2) of the Family Law Act 1975. As will become apparent, the wishes of the children which I must consider pursuant to s68F(2)(a) are of particular significance in this case. In this regard, I have been mindful of the Full Court’s decisions in R and R: Children’s wishes (2000) FLC 93-000 and H v W (1995) FLC 92-598.
33. I must also have regard to the matters set out in s60B of the Act and while the best interests principle requires that the children’s best interest are paramount, I am not precluded from considering other rights and interests.
34. The mother’s rights of freedom of movement are relevant in this case. However, as this involves an international relocation, it does not come within the protection to freedom of movement provided by s92 of the Constitution. Nonetheless, the law does recognise a principle of freedom of movement that is readily to be derived from international conventions such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of Discrimination Against Women, if not from the common law.
FACTUAL ISSUES
35. I am required to determine the factual issues concerning:
§The Economic Capacity of the mother and CN to Successfully Implement the Proposed Move
§The Stability of the Mother and CN’s Relationship
§The Certainty of the Mother’s Proposal
§The Facilitation of Contact
§The Mother’s Reasons for Relocating
§The Mother’s Contact Proposal
§Deterioration in the relationship between the Father and S and B
§Health and Education Systems in the Two Locations
The Economic Capacity of the Mother and CN to Successfully Implement the Proposed Move
36. The father raised concerns that the mother and CN would not have the financial capacity to move to the United States without producing detrimental effects to the children. In particular, he questioned whether they would be financially able to comply with their stated objective of sending the children back to Tasmania every year.
37. He also questioned CN’s capacity to obtain employment quickly or at the same level as that that he enjoys in Hobart.
38. The mother and CN said that their economic position would be considerably improved by the move.
39. CN said that he had worked as an editor of a large US newspaper and had sufficient knowledge, skill and contacts that would help him to get similar employment at one of the top newspapers in Boston or Providence. He earns $AUD45,000 per annum in his job in Australia whereas he was earning $US62,000 per annum in his last job in the United States. He has a substantial mortgage debt that he is paying off in respect of a property owned by him in the United States that is difficult to discharge from his Australian salary, given the low exchange rates. He also has assets exceeding $US100,000.
40. The mother said that she believed that living in Sharon would alleviate a lot of the financial strain of raising children on one income in that they would have low cost housing, including low rental or mortgage costs. She also thought that the costs of utilities and food would be greatly reduced. She said that her mother in law had offered to support the family until CN can find employment. She believed that school costs would be lower, as would travel costs for getting the children to and from school.
41. She also considers that she has good employment prospects in the future. She said that she intended to obtain tertiary qualifications as a teacher and that there is a shortage of teachers in the Massachusetts area.
42. I have no difficulty in determining this issue in favour of the mother and CN. I accept, for the reasons given, that their economic position would be substantially improved by a move to the United States. However, I should add, as CN very fairly conceded, that it would be by no means disastrous in an economic sense for them to remain in Australia.
The Stability of the Mother and CN’s Relationship
43. The father also expressed concern as to the stability of the mother’s relationship with CN. He was concerned that should the relationship break up, the mother and the children would be left in economic difficulty in the United States.
44. It is always difficult to predict what will happen in a relationship. All that I can say about this one is that it is of three years duration and that on the evidence it appears to be a loving and stable relationship. CN’s attitude to the children appears to be very warm and supportive. The children confirmed this when speaking to the Counsellor, Ms Stierman.
45. On this matter I am inclined to discount the father’s concerns. Even if they were to be realised, there is no reason to believe that the mother and the children could not be adequately protected by the family law system in Massachusetts.
The Certainty of the Mother’s Proposal
46. The father argued that the mother’s plans to relocate were too uncertain and that there was a risk that the proposal would not work out. I indicated during the course of argument that I thought that there was nothing in this submission. I think that there is sufficient certainty about the proposal. The mother has made inquiries about schools in Sharon, the family have a more than adequate place to live and CN is relatively financially secure and as I have found, has good employment prospects. Without having any certainty as to when or whether they will move, it is difficult to see how they could have made more certain arrangements.
The Facilitation of Contact
47. The father’s counsel argued that there was an unacceptable risk that the mother and CN would not facilitate the proposed contact and that he would have no means of enforcing it. I think that there are two answers to that argument.
48. First, the history of the matter does not suggest that the mother will not facilitate contact and I accept that she is genuine in her contact proposal. I am also confident that CN would support it.
49. Secondly, if I were to accede to the mother’s proposal, I would express the period of contact in Australia in the form of a residence order, which would give the father the protection of the Hague Convention.
The Mother’s Reasons for Relocating
50. I am of course conscious that the authorities establish that the mother does not have to establish that she has a good reason to relocate: see AMS v AIF; AIF v AMS (supra) and A v A: Relocation approach (supra). However, I consider that in this case, her reasons for relocation are relevant from the point of view of the best interests of the children and in particular, the effect upon them if re-location is or is not permitted.
51. She wishes to leave because she is most unhappy in Hobart and lacks the support of an extended family. She has been estranged from her mother and brother since 1999. She feels that she will be even more isolated after the arrival of her new baby. She found returning to Tasmania very difficult following her marriage and subsequent visit to the United States with her children and considers that her life had not been the same since she left the United States. She said that she has been desperately unhappy in Tasmania for a long time.
52. She said that the rest of her family lives in England, where she was born and lived for part of her childhood; she had only seen some of them on a couple of occasions since moving to Tasmania in 1975.
53. She felt that the removal of the constant exposure to the negatives in her life in Tasmania would help her to find a peace of mind that could only provide happiness in the long run.
54. She thought that the children would be more settled if this was to happen and that they would have a much happier and more relaxed mother. She says that if she is forced to remain in Tasmania she will be devastated.
55. In Massachusetts, by contrast to her life in Tasmania, she has developed a warm relationship with CN’s mother and his four brothers and sister and their families, all of whom live in the Sharon area. She has maintained her relationship with her mother in law by e-mail and telephone, as have the children.
56. She said that she personally felt a very strong need to be with her mother in law and to have her support and love. She described a deeply loving friendship with her mother in law and she said that the children similarly adore her. She said that this was the most happy and accepted that she had ever felt and she said that she would like to be allowed to return there to be part of this family group again.
57. I have no hesitation in accepting the mother’s evidence in this regard. It was not really contested. It is important in the context of this case because it suggests:
That the mother’s parenting capacity may be diminished if she remains in Hobart;
That it may be enhanced if she lives in Sharon with the support of her husband’s family;
That in a material sense, the children will be at least as well off in Sharon as they are in Hobart:
58. These are obviously factors that I must take into account in her favour.
59. They must however be tempered by the real possibility that she is looking at her future life in Sharon through rose coloured glasses. She has only lived there for a short time, in holiday mode, not long after her marriage. It is to be hoped that the reality will accord with her expectations but there is no guarantee that it will do so.
The Mother’s Contact Proposal
60. A serious problem arises in relation to the length and timing of the proposed Australian visit by the children. It would occupy the whole of their summer holiday and effectively preclude them from participating in any activity with their family and friends in the United States over the summer period. I would think that it would not be long before one or more of the children would refuse to abide by the arrangement. It would also mean that the children would be living in an extended winter. I do not regard this proposal as satisfactory.
61. A solution may be to shorten the period to say six weeks. The difficulty about this is that it further shortens the period of contact with the father and further excludes him from their lives. This is a serious obstacle to the mother’s proposal, especially when coupled with the financial position of the father.
62. The father said that he would have difficulty in paying the cost of a visit to the United States and that he certainly could not do so on a regular basis. He said that he currently worked twenty five hours per week and earned approximately $15,000 last year but that when the proceedings are concluded he intends to seek extra work. It is apparent that even if he is successful, his financial position will be modest.
63. This is a valid point. This is not a case where he can readily have additional contact in the United States given his financial circumstances. It looms as a major problem in this case, because I think it unrealistic to require the children to spend the whole of their annual summer vacation in Australia. The consequent reduction in contact could be avoided if the father was in a position to supplement this by visiting the children in the United States, but this is not the case.
64. The father also said that should the children relocate, he would have difficulty in earning sufficient extra money to assist in the cost of their travel. As to this, the mother has not suggested that he should do so and I am satisfied that she and her husband have sufficient funds for this purpose.
Deterioration in the relationship between the father and S and B
65. In her affidavit the mother discussed some problems that have recently arisen in relation to the children’s contact with their father. These problems relate to the two older girls. This arises as an issue because, as I understand it, it is suggested that the two older girls have grown away from their father to such an extent that they will not be disturbed if the contact is reduced in the way proposed by the mother.
66. The mother asserted that these difficulties were not associated with the relocation.
67. It was common ground that contact arrangements had worked well over many years.
68. The father’s partner, AO, who swore an affidavit and was cross- examined before me, confirmed that she has a good relationship with the girls. She has experienced some of the same difficulties with S recently as the father, which seem to her to relate to the relocation proposal. She has also noticed B to be more distant in recent times. She has observed that this behaviour seems to be more marked when she is with S.
69. She said that B told her that S was desperate to go to the United States and that she had to support her. B also said that S needed to go for health reasons.
70. I disagree with the mother’s view that the relocation proposal has had nothing to do with the recent change in attitude by the older girls to their father. I think that the relocation proposal has obviously had a negative and unsettling effect upon the girls. There is nothing in the evidence to suggest that it preceded the proposal. I think also that B is to an extent mirroring S in this behaviour.
71. The mother conceded that S in particular had perceived her father as stopping her from going to the United States and had resented this. This was confirmed by Ms Stierman’s interview in April 2001 and B said something similar at the most recent interview with her.
72. I have noted the opinion of the reporting counsellor, Ms Stierman that the mother has no real appreciation of the weight that her opinions carry with the girls. I also think that she has allowed them to become too involved in the dispute. I was unimpressed with the fact that the girls parroted their mother’s views as to the advantages of the United States in their first interview with Ms Stierman. I think that the father has been cast as something of a villain in this scenario and I think that the mother has consciously or unconsciously brought this about.
73. I think that when the pressures associated with this proposed move are removed, it is highly likely that the relations between the two older girls and their father will return to a more even keel. According to the evidence, there are already signs of this happening. I do not think that any cooling in the relationship that has been described should lead to a conclusion that the children’s relationship with their father will suffer any permanent damage. Of course children do grow away from their parents, but the fact is that the girls, albeit with their mother’s encouragement, do participate in a significant degree with their father and his family. I have no doubt that if encouraged, they will continue to do so.
Health and Education Systems in the Two Locations
74. A further issue arose as to the relative desirability of the respective health and education systems of Sharon and Hobart. The mother is convinced that they are markedly superior. On the evidence, including that of Professor Hogan, I am satisfied that there is no significant distinction between the two from the point of view of the best interests of the children. No doubt there are some strengths and some weaknesses in both systems but there is nothing about either that I consider has any significant advantage or disadvantage to the children.
75. However there are two matters arising out of this that should be mentioned. One is that the older children and the mother, expressed a view to Ms Stierman, the reporting counsellor, at the time of her first interview with them, that there was better health care, better educational opportunities and a lower crime rate in Sharon than there was in Hobart.
76. While I can understand that the mother may have thought this, I find it somewhat surprising that the children would have advanced these reasons as being relevant to their moving to Sharon. These views can only have come from either the mother or CN and I think it more likely that they came from the mother. My concern is that this may indicate a degree of coaching on her part. I can understand that neither she nor her husband would have wished to paint the proposed move in a negative light and may well have advanced these views. I am nevertheless surprised that they eventually emerged to Ms Stierman as the children’s own views. If there was not coaching, it is clear that the children were merely reciting the mother’s views, which suggests that her influence over their thinking is considerable. It is also another example of her involving them in the dispute.
77. Secondly and somewhat surprisingly in a case of this nature, no-one prior to the hearing had taken any expert advice or made any inquiries as to the effect upon the children of the change in education systems. Similarly there has been no assessment from the point of view of each of the children as to the optimum time for such a change to take place.
78. I think that this is a matter of criticism of the approach of the mother to relocation and highlights an unconscious attitude that I believe that she has of considering her own needs as more important than those of the children. One would think that a parent planning such a major move would take some steps to obtain this sort of information. It is true that she obtained information about the schools available in Sharon but this did not go far enough.
79. At my request that such evidence be obtained, the Child Representative called evidence from Professor Hogan.
80. He said that there was little to choose between the Australia and U.S. education systems. He thought that the best U.S. schools may be better but that Australian schools offered a more reliable overall standard.
81. He said that all other things being equal, it is better for children to enter a different education system earlier rather than later in their school career.
82. He said that relevant factors included the fact that a child may not wish to move school, which could have a substantial impact upon their educational progress and might mean that the child would have to repeat a year. This is relevant in relation to two of these children. He also thought that their educational progress is likely to be influenced by a range of other issues, including their relationships with their father and their peers. This last factor is certainly relevant to T, who is deeply attached to her father. For reasons that I have discussed, I think that it is also relevant to S and B. S may also be affected by the loss of her peer relationships in Hobart.
83. Specifically in relation to S and the suggestion that her relocation should be delayed until the end of 2004, he thought that this would be a bad time for her to move (Year 11) and that it would be better for her to go earlier or later. He also thought that it would be a bad time for B. He thought that if they were to go in 2004, it was probable that both S and B would have to repeat a year. He thought that T would have the least difficulty, but that it would be better for her to complete primary school before moving.
84. If the children were to move in August 2002, S would either enter Grade 10 or repeat Grade 9, B would enter Grade 8 or repeat Grade 7 and T would enter Grade 4 or repeat Grade 3. Professor Hogan commented: “The educational stakes then are significantly higher for S than for B, and for B compared to T. This suggests that the educational interests of the children, narrowly conceived, differ.”
85. He thought that it would be better for the children if the children were to relocate, to go in time for the start of the Massachusetts school year in September of whichever year was thought appropriate.
86. Overall, he agreed with a suggestion from counsel for the father that a delayed rather than a sudden transition to the United States would be in the best interests of the children.
87. Again this evidence tends to weaken the force of the mother’s proposal.
SECTION 68F(2) FACTORS
88. I now turn to consider the relevant s 68F(2) factors. In doing so I will refer but not repeat the findings I have made above on contested factual issues.
Children’s Wishes
89. This is an area of great difficulty in this case. Ms Stierman conducted her first interviews with the children and with their parents and CN over two days in March 2001. The children were seen separately and with each of their parents. They impressed Ms Stierman as articulate youngsters and they appeared close as a sibling unit and well behaved and quiet.
90. S impressed as articulate and knowledgeable about adult issues in her family and referred to the relationship between her parents not being good due to her father not paying child support or school fees. She was extremely favourably disposed towards CN but also liked her father’s partner, AO.
91. She told Ms Stierman that they were all happy in America and that her asthma would be better treated in Boston and that America had “a lower criminal rate, the educational system is better, they teach you better, here we have assembly rather than maths, we are not getting homework after school”.
92. She told Ms Stierman that she would miss her friends, but said she didn’t really like her dad “since we wanted to go to America and he wouldn’t let us”. She believed she would have a better life in America.
93. B was positive about her parents and their respective partners and especially CN and his mother. She said that her mother wanted to take the children to America as it was a better place where they would have a better education and would be happier. She also said that in America things were cheaper with prices lower “like for stereos”. She said that she felt awkward going to her father’s house now since she had met different people like her family in America.
94. She thought her father was pressuring them and said she wanted to go to America as she really missed her family in America. She said that she like the experience and she wouldn’t see her father much but she wouldn’t mind that, although she said that her maternal grandmother would miss them a lot. She told Ms Stierman that S wanted to go because she didn’t like their father and that T would miss her father but wanted to go.
95. T said to Ms Stierman that she enjoyed being part of two households and said that she liked America and that it was “a better place and offered better education and was cheaper there”. T said that S and the mother and CN most wanted to go to America and then B and then herself. She said “I would rather stay here, but I would like to go to America”. She thought that she would miss her father a lot and all the people that she knew.
96. T ended by saying that she did want to go to America as “I liked it the first time – it’s a good place, there is Disneyland and fun stuff to do” and that “this is a small place”. She said that in Tasmania “people are crazy here”.
97. At that time Ms Stierman thought that there was no doubt that the two older children would be greatly disappointed if they were not allowed to relocate. She said that if the decision to prevent this were solely due to T’s uncertainty, it would be a huge load for her to have to carry and would be likely to have negative repercussions for her.
98. She was also concerned about the father’s continuing relationship with S and B if they were not permitted to go to the United States.
99. She thought that the mother was quite unrealistic about the influence of her opinions on her children and believed that the children had made up their own minds, but did not appear to recognise how forcefully her own opinions had been presented to them.
She thought that ideally the relationship between T and her father should continue until T finished primary school. This would be around the time when S would be ready to enter university and B ready to enter senior high school.
She raised the possibility of the two older girls relocating and T remaining with her father, but noted that this appeared to be rejected by all family members.
Ms Stierman gave oral evidence before me on two occasions, the first being on 20 December 2001. At that time she had not seen the children again following the March interviews. Subject to the reservations that she had expressed in her report, she favoured the father’s alternative proposal for a delay until T had finished primary school.
She also referred to the fact that B, although she was positive about going to the United States, did say that moving schools was quite scary for her.
After this evidence was given, and following submissions from the parties, I conveyed an invitation to the children through the child representative, to meet with me if any of them wished to speak directly to me. They accepted the invitation and I met with each child individually in the presence of the child representative. I made it clear to the children that I would not necessarily act upon their views, but that I would take them into account.
In this case I thought that because of the age of the older children and because of the time that had passed since the counsellor’s report, it might be helpful for them to have an opportunity to express their views to me. I also had some concerns about whether the views of the children recorded by the counsellor represented their real views and whether they might in any event have changed with the passage of time.
Having such meetings with children is not a practice that I routinely adopt and indeed there are usually good reasons for caution, see generally: J. Cashmore "Children’s Participation in Family Law Matters" in C Hallett and A Prout Hearing the voices of children: Social Policy for a New Century, Falmer Press, forthcoming; J. Doogue and S. Blackwell “How do we best serve children in proceedings in the Family Court?” Volume 3 Part 8 Butterworths Family Law Journal (New Zealand), December 2000; B v B (Minors) (Interviews and Listing Arrangements) (1994) 2 FLR 489 per Nourse LJ and Wall J.
Writing extra-curially, Chisholm J draws attention to the fact that Order 23 rule 4 of the Family Law Rules provides that the information given in what are termed “interviews” is confidential and thus the Judge may act on information that is unknown and untestable by the parties: see (1998) "Children's Participation in Litigation", paper presented at the Third National Family Law Conference, Melbourne Australia October 1998,
Where the children are content for the information to be made known to the parties, such natural justice concerns can be addressed by seeking a subsequent report that would be put into evidence, as happened in this case (see below). It may in any event be desirable that this Rule be revisited as part of the Court’s current Rules Revision project.
There is also a legitimate concern that judges may not have the training and skills to elicit and interpret the views of children. This, however, is capable of being addressed by offering such training. This Court already offers regular judicial training to Judges and there is no reason why such training should not be offered as part of that programme. It is also said that children may feel intimidated by the process of judicial interview. This is undoubtedly possible. However, difficulties associated with this can usually be averted by obtaining the views of the counsellor and taking submissions from the child representative, as I did in this case. Further, it is I think important that the children not be required to attend such an interview.
While there is a need for caution, there are also children who indicate that they would like to express their views directly to the judge: see J. Cashmore "Children's participation in family law matters", paper presented at the 2001 World Congress on Family Law and the Rights of Children and Youth, Bath England, September 2001;
In this case, the counsellor’s report indicates that the children were comfortable in telling me their views, and records in respect of B: “She indicated that when she was asked to speak with Justice Nicholson “I kind of didn’t want to do it at first”. Then she thought it would be “exciting” because “I got to say what I felt”.
Doogue and Blackwell also argue that much greater emphasis should be given to obtaining the views of the child and they discuss means as to how this can be achieved. In particular, they emphasise the dual requirements of Article 12 of the United Nations Convention on the Rights of the Child, namely that children have a right to be heard and also to have their views taken into account in the decision-making process. As they point out, there is nothing inconsistent between this Article and the law in both Australia and New Zealand.
They also stress that the views of quite young children should not be ignored and, cite the following conclusion from “Access and Other Post-Separation Issues – a Qualitative Study Research Report” Children’s Issues Centre, University of Otago, July 1997:
“One of the most important conclusions to be drawn from our study is that children do have views about their lives after parental separation and that they are highly capable of expressing their views. Even children as young as five years’ of age can talk about their feelings and what situations mean to them despite the complexity of the experiences . . . the view that children’s capacities to understand and participate have been underestimated (Mayall, 1994; Simpson, 1989) is reinforced for us by this study.” ” (footnotes omitted)
This observation is apposite to T who was certainly more than capable of expressing her views.
In the context of this case, it is fortunate that I did meet with the three children. It became quite clear to me that T did not want to go to the United States at all and that JS also did not want to go. B maintained her position that she wished to go with her mother.
Since none of this material was before me by way of evidence, I ordered that the counsellor have another interview the children and submit a further report, which she did on 17 January 2002.
When interviewed by Ms Stierman for the purposes of that report, the father indicated that his proposal was that the children remain in Tasmania until July 2004 after which they would relocate and return for 8 weeks a year contact in Australia. His alternative proposal was that T should reside with him and the other girls relocate from July 2002.
The mother told Ms Stierman that she was anxious to relocate with the three children in August 2002.
S told Ms Stierman: “a year ago I really wanted to go, I don’t really now … I can see myself as growing up here”. S said, “if we did have to go, it would be because of family and friends we have got there”. She said that since she had last seen Ms Stierman, she had made many friends and friends were a big issue for her and that she was not sure if she wanted to go any more and would like to wait until she had finished high school.
S believed that B still wanted to go but that T had not really changed her mind about not wanting to leave her father.
S had not told her mother about her change of mind because she might be upset. She did not favour the proposal that T would stay while she and B relocated and said that she would miss T and said that “we are sisters and we shouldn’t be split up”.
When asked about the proposal that they might relocate at some time in the future, B said that she would like to go now.
Interestingly enough, at the time of this interview, B was still convinced that S wanted to go. On being told that S now wanted to finish her high school, B said that she did not mind if they did not go for a few years. She said that she would rather be in America than at her current high school, but would feel better about it if she got into an alternative high school. (In fact she is now attending the latter school.)
She said that she might have some bad feelings towards her father “knowing that something I really wanted to do, my Dad sort of held me back from doing it”.
T told Ms Stierman that she had told me that her feelings about going to America were that “I wouldn’t really like to stay for a long time, I have a Dad down here and I’ll be missing him a lot”. She said that when she had been with her mother for the past few weeks during the holidays, she missed her father.
Ms Stierman commented that S’s change of approach might have been influenced by the events of September 11 to which she had referred at the second interview. She thought that it was also likely that she is going through a normal adolescent development stage where peer groups are all important and parental views are more likely to be challenged.
She said that S seemed to be very content with her peer connections and her explorations of an independent social life and would like to continue this until at least the end of high school.
She said that S was still enthusiastic about maintaining a connection with her family in America and America generally, but felt that this could be achieved by holidaying in America rather than going to live there.
So far as B was concerned, Ms Stierman noted that she focussed less on the school and health benefits available in America at this interview, but was still enthusiastic about the whole prospect of a new life. She said that she appeared to be so open to the challenge of migrating that it seemed highly likely that she will retain this enthusiasm even if the relocation is delayed until S finishes high school.
She commented that T had become more articulate in her desire to stay close to her father and appeared confused about her mother’s intentions to reside permanently in America.
Ms Stierman recommended that the mother reconsider her proposal to relocate during 2002 in deference to S’s successful development of strong peer connections and in deference to T’s strongly expressed desire to stay close to her father.
She thought it would be helpful if a further family visit could be arranged to the U.S. for the children to clearly connect with the prospect of presiding there on a permanent basis. She also recommended that S remain at her current high school until the end of her high schooling.
She said that the wishes of the children with respect to relocation should be updated within a suitable time to allow the mother to relocate in mid-2004. She concluded: “As the views of the children have developed in maturity and clarity over the last ten months, they may need the opportunity to speak independently again at a later date. This is particularly so as they have indicated that it is difficult to share their views with their mother when they feel she may feel hurt about what they have to say”.
I summarise my findings on this issue as follows:
First, I am satisfied that T relates closely to her father and does not wish to leave Hobart and live in the United States. No doubt because of her age and maturity, she has some difficulty with the concept of a permanent move to the United States, but she has no difficulty in expressing the wish that she not be separated from her father. I consider that this wish should be given appropriate weight.
S now expresses a clear wish to remain in Hobart until she finishes High School. In Tasmanian terminology, finishing High School means finishing Year 10. However, I also get the impression that she now sees her future more in Hobart than in the United States. Given her age, her views in this regard are entitled to considerable weight.
B is of the view that she does want to go to the United States and still bears some resentment towards her father for having prohibited the move. However. she has obviously been partially influenced by her belief that S also wants to move. It will be interesting to see if her enthusiasm for the move is maintained if S continues to take her present approach to the move. I am satisfied that she would not be unduly disturbed if the move was delayed for a couple of years. Naturally, I must take her wishes into account, but because of the alteration in S’s position and her own softening of her position, I do not give her desire to move the same weight as I might have given it previously.
Overall, I consider that the children's wishes weigh against permitting their relocation within the timeframe proposed by the mother, or in the case of two of them, at all.
The Children’s Maturity, Sex and Background.
In considering the children’s wishes and in deciding this matter, I have of necessity, had regard to these characteristics of the children as required by both s68F(2)(a) and (f) of the Act. In this regard, I have taken into account the observations of Ms Stierman about the children, which accords with my own observation of them.
I think that there are dangers to each of the children in different ways, in permitting a move at this stage given their age and maturity. This consideration is stronger in the case of T than the other two children. I am not at all sure that B really appreciates some of the difficulties associated with the move. So far as S is concerned I think that she has come to do so and has altered her position accordingly.
The Children’s Relationships with Both Parents and Other Significant Persons
In general I am satisfied that the children have a good relationship with their mother and CN.
CN described his relationship as close with each of the children and described various activities in which he has participated with them and which they have enjoyed.
Similarly, despite some cooling in the relationship between the two older girls and their father over the relocation issue, I think that there is a good relationship between the girls and their father and AO. There is also a good relationship between all of the girls and their maternal grandmother.
While relocation would provide opportunities for the children to develop the attachments they have made in the United States, I am satisfied that all of their current relationships in Tasmania, other than that between the children and their mother, would be seriously disrupted if the children were now to be taken to the United States.
The Likely Effect of Separation on the Children from their Parents or Other Significant Persons
I think it obvious that there will be detrimental effects upon the children of separation from their father, maternal grandmother and particularly for S and B, their peers.
In the present case, I think that the effects upon S and B will be greater than they or their mother think. I am here dealing with a father who has had a very significant role in their lives. For the reasons I have given, I regard any current estrangement as likely to be temporary. I think that the transition to a strange country and different schools will be difficult enough for them without the constant support and presence that their father and AO have provided. They will also undoubtedly miss their maternal grandmother. I do not think that the proposed contact arrangements will do much to assuage this problem.
I would be extremely troubled about the effects upon T, who even missed her father during the recent school holidays. No doubt this relationship will change over the years, but I think that at her present stage of development and in light of the warm bond between them, this must be a significant factor affecting my decision.
For these reasons, in respect of this factor, I do not consider that the mother's proposal for relocation is preferable to that of the father.
The Ability of Each Parent to Cater for the Children’s Needs
In a financial sense, it is clear that the mother, with the aid of CN, is in a better position than the father to cater for the children’s financial and day to day needs.
If this was a contested residence application, that fact might have some weight, but in the context of this case, I believe that it has less importance. The father is able to discharge his more limited obligation as a contact parent and I am satisfied that the children have not and will not suffer as a result.
I am also satisfied that in their respective roles, both parents have the ability to cater for the children’s other needs, including emotional and intellectual needs. I make this finding fully aware of the mother’s more significant role in this regard as their primary care giver.
I am concerned that if the children move to the United States at this stage, it will have a detrimental effect upon them. It would be contrary to the wishes of two of them and would, in my opinion effectively deprive them of the love and support of their father.
Attitudes to Parenthood
I have already expressed some reservations about the mother’s attitude to parenthood. These should not be taken to be a finding that she is a bad parent. However it is the nature of cases such as this to closely examine parental attitudes and it is in this context that I have concluded, as did the Counsellor, that she has been too self-focussed over this issue. I have already given some examples of why I take this view.
I have no criticism of the father’s attitude to parenthood and I am satisfied that he has done his best to discharge his obligations as a father and has done so with love and care.
Beyond stating the obvious fact that the move will deprive the children of the support of a good parent, I do not regard this factor as otherwise determinative of the issues in this case.
Practical Difficulties Relating to Contact
I have already discussed this issue and it is apparent that there are practical difficulties relating both to the contact proposed by the mother and to the father’s ability to have contact with the children in the United States.
I consider that palliatives such as telephone calls, letters and e-mails, while useful, are no substitute for face to face personal contact.
This again is a factor that militates against the mother’s proposal.
CONCLUSIONS
In arriving at these conclusions, I have been conscious of the provisions of s60B(2) of the Act that, except where it is contrary to their best interests, children have the right to know and be cared for by both parents and a right of regular contact with them and other significant persons.
The mother would no doubt say that these objects could be achieved by her contact proposals. In many cases this is so, but I do not think that it is achievable in the present case.
I am conscious of her right to freedom of movement and I am also conscious of the considerable interference that these orders will constitute with that right. I have also made findings largely accepting her contentions that she will be most distressed at being prevented from moving to the United States. I have given careful consideration to this factor. I understand that to some extent, her parenting capacity will be affected, but not I believe, to the extent that it will have a detrimental effect upon the children.
While it would appear that the principle that best interests of children are paramount is now interpreted as not excluding other rights and interests, in the present case I am satisfied that the detrimental effect upon the children of permitting their relocation in 2002 outweighs other competing rights and interests. I have carefully weighed the competing considerations in relation to relevant s68F(2) factors and it is unnecessary to repeat them again. It is obvious that the preponderance of these factors favour the decision that it is not in the best interests of the children for them to relocate to the United States at this stage.
I have also considered whether I should accede to the father’s application, to permit relocation, but to delay it to some particular date beyond 2002. I do not believe that I should do so. I am not bound to accede to either parent's proposal if I do not agree with them.
If I were to make an order that only operated if and when a further report was obtained as to their wishes, I do not believe that this would be fair to the children. I believe that it would place them under enormous and unfair pressure and I think that there has been some evidence of them having been under this sort of pressure in the past.
Further, it should be apparent from these reasons that while I have given weight to the wishes of the children, that they have been only one factor amongst others that has caused me to reach the conclusion that I have.
I think that the move to the United States, if it is to occur, should be delayed for some years. If by then, the parties and the children are still unable to agree as to when it should take place, then there is unfortunately no alternative but for the matter to come back to Court. It was put to me in the course of the argument that to make no order would invite further litigation in the future. While this may be so, it does not necessarily follow that it will occur. I consider both parents to be basically reasonable people who would be unlikely to want to put themselves or the children through this process again. The father clearly recognises that at some stage the mother will move to the United States and take one or more of the children with her. By the time that the move takes place, both S and B will be old enough to make up their own mind about it. T will also be older and more mature.
If I was to make an order that permits a move at some fixed time in the future, this would, in my opinion, effectively deprive the children of expressing their own wishes at that time. It would also assume no change in the family dynamics in the interim and such an assumption would be unjustified.
There remains one minor contact issue. B has expressed the wish that the contact arrangements in relation to her should be the same as S, i.e. each alternate weekend rather than three weekends out of four. I consider this to be reasonable and propose to make orders accordingly.
I also propose to make an order restraining the mother from moving the children’s place of residence form Hobart without the prior written consent of the father or an order of the Court. This does not mean that she is not entitled to take them out of Tasmania for holidays, however I also propose to order that she not take them out of Australia without the prior written consent of the father or an order of the Court.
In making this order I would make it clear that the children should have the opportunity to make further visits to the United States. If the father was to unreasonably withhold consent then I have no doubt that the Court will make appropriate orders, including orders for costs.
I will express my orders in the form of a residence/residence order for two reasons. First, I think that such an order truly reflects the relationship between the father and the girls. Secondly, I wish to put it beyond doubt that the father has rights of custody pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.
I certify that the previous 171 numbered paragraphs are a true copy of
the reasons for judgment delivered by his Honour Nicholson CJ.
Danny Sandor
Senior Legal Associate to the Chief Justice
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