FAMILY COURT OF AUSTRALIA
| SEALEY & ARCHER | [2007] FamCA 432 |
| FAMILY LAW - CHILDREN – Best interests of a child - With whom a child shall live - Relocation interstate |
| Family Law Act 1975 (Cth) |
A & A [2004] FamCA 456
A-v-A Relocation Approach (2000) FLC ¶93-035
H-v-L (2000) FLC ¶93-036
AMS v AIF; AIF v AMS (1999) ¶92-852
D and SV (2003) FLC ¶93-137
U and U (2002) FLC ¶93-112
M & K [2007] FMCA Fam 26
Bolitho v Cohen (2005) FLC ¶93-224
| APPLICANT: | Ms Sealey |
| RESPONDENT: | Mr Archer |
| FILE NUMBER: | SYF | 3395 | of | 2005 |
| DATE DELIVERED: | 15 May 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 30 April 2007 and 1, 2 and 3 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell |
| COUNSEL FOR THE RESPONDENT: | Mr Campton |
Orders
The parenting orders of 6 July 2005 be discharged.
Mr Archer (“the father”) and Mrs Archer (also known as Sealey) (“the mother”) have equal shared parental responsibility for their children:
(a)A son born in August 1995
(b)The elder daughter born in November 1997 and
(c)The younger daughter born in September 2001
(“the children”) and consequently the parties have joint responsibility in consultation with one another for making decisions for the long term care, welfare and development of the children.
The children live with the mother at the following times:
(a)during school terms if the Mother so elects as follows:
(i)from Monday at the commencement of the school day to the conclusion of school the following Friday in each alternate week; and
(ii)upon seven days’ written notice, the children can continue to live with the mother in accordance with Order 3(a)(i) above until the following Monday at the commencement of the school day, or if a long weekend until the following Tuesday at the commencement of the school day.
(b)during school holidays as follows:
(i)for the duration of the terms one (1) and three (3) school holidays, commencing on the day immediately following the last school day and concluding at 6.00 pm three nights prior to the commencement of the next school term
(ii)during the term (2) school holidays for all but eight nights of the school holiday period with the father to select his eight nights at least 28 days prior to the holidays.
(iii)during Easter if it falls outside of a school holiday period commencing on the Thursday prior to Good Friday and concluding at 6.00 pm Easter Monday
(iv)during the December/January school holiday period commencing in December 2007 and each alternate year thereafter, from the day after the last day of school until 3.00 pm on Christmas Eve and from 9.00 am on 16 January until 9.00 am three days prior to the children returning to school
(v)during the December/January school holiday period commencing in 2008 and each alternate year thereafter, from the day after school concludes until 9.00 am 24 days prior to the first of the children returning to school
(vi)in the event that the mother and father are each in Sydney on Christmas/Boxing Day, then notwithstanding the provisions in order 3(b)(iv) and 3(b)(v) above, the children shall spend one half of such Christmas/Boxing Day period with the mother, being either from 12 noon on 24 December until 3.00 pm on 25 December or from 3.00 pm on 25 December until 6.00 pm on 26 December as may be agreed between the parties in particular having regard to which parent had the children with them for Christmas Eve in the previous year. In the event of a dispute the father is to decide.
(c)on Mother’s Day weekend from the conclusion of school Friday to 6.00 pm on Sunday or Monday morning if the mother is able to stay in Sydney on Sunday evening.
(d)on the children’s and the mother’s birthday, upon the mother providing the father with two (2) weeks’ notice that she is travelling to Sydney, then she may spend time with the children on any of their birthdays or the mother’s birthday as follows:
(i)if on a school day from after school to the commencement of school the following day
(ii)if on a weekend for a 24 hour period as agreed
(iii)or as agreed between the parties.
(e) at such other time as agreed between the parties.
At all other times the children live with the father.
In the event of the children being required by these orders to be otherwise in the care of the mother on Father’s Day then she is to ensure the children are returned to the Father on Saturday evening the day before and remain with him until 6.00 p.m. on Fathers’ Day.
In the event of the children being in the care of the mother on any of their birthdays or the fathers’ birthday pursuant to other provisions of these orders then the mother is to ensure all the children spend two hours in their fathers care on those days at times nominated by him.
The children have liberal telephone, email and web cam (subject to availability) communication with the mother and father at all reasonable times.
In the event that any of the children are ill or injured, the parent with whom the child is residing on that day shall promptly notify the other parent.
That the parties cooperate and consult with each other concerning the medical and dental treatment for the children.
Each party shall do all things necessary to ensure that the other party is kept informed at all times of the residential telephone, email address and all other contact numbers and address of the other party.
Each party shall keep the other informed of and not do anything to impede the attendance of the other parent at all events and activities in relation to the children’s school and extra-curricular activities in which each child is involved and to which parents are invited or would usually be expected to attend. Each party is at liberty to attend all such events. Further, each parent shall ensure that the other parent is provided with copies of school photographs, reports and school notes and otherwise shall keep the other informed of all school matters, functions, parent/teacher meetings, speech days, sporting events, carnivals and the like.
During school term time each parent is to ensure that when the children are in their care the children attend upon the extra-curricular activities in which they are enrolled.
During school term time each parent is to ensure that the children attend upon school organised weekend sporting and other activities in which the school expects them to participate unless both parents and the children’s school authorities agree that for a special occasion they should be excused from such participation.
From the commencement of 2008 the children are not to engage in any extra-curricular activity which is not agreed to in writing (or email) by each of the parties. This is not to apply to activities sourced for the children by a parent during that parent’s time with the children in school holidays.
Neither parent is to remove any of the children from school so that they are absent for any part of a school day for the purpose of spending time with that parent without the written consent of the other parent and the children’s school.
The father is restrained from leaving any of the children unsupervised by an adult whilst the children are in his care until they attain the age of 13 years and thereafter he is to exercise his discretion and consult with the mother for her view in relation to whether any of the children require adult supervision at all times.
The time which the mother exercises with the children in Sydney under these orders during school term is not to be delegated to another person other than for a few hours such as occasions when the mother attends a social function whilst she is in Sydney and arranges for the children to be cared for by a babysitter. If the mother is unable to attend Sydney for the purpose of spending her time or part thereof with the children then she is to give the father as much notice as possible and the parties are, at the option of the mother, to thereafter negotiate some make up time during some other part of that school term time.
In the event of the father having to travel away from Sydney on any occasion during school term and thereby having to arrange for the children to be cared for in his absence then he is to offer the mother the opportunity to care for the children in Sydney during that time or any part thereof. The father is to give the mother as much notice as possible of any such occasion.
During school holidays the parent who has the care of the children pursuant to these orders may arrange for the children to be cared for by a relative or other trusted adult at that parent’s discretion or alternatively may offer additional school holiday time to the other parent.
Notations:
A.The Court recommends that the parents forthwith agree upon a Community Based Organisation or specialist family therapist to engage with for the purpose of assisting them to form a cooperative and respectful parenting relationship and that they thereafter attend upon that organisation or person for that purpose.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3395 of 2005
| Ms Sealey |
Applicant
And
| Mr Archer |
Respondent
REASONS FOR JUDGMENT
Introduction
This case illustrates to me the very worst of impacts on a family of the adversarial system. This case has been fought hard and focused very much on the emotional battle between the parents rather than dealing with the best interests of the children. This hearing may well have served the needs of the parents to attack each other over the breakdown of their marriage but it could not in any fashion be said to have been in the children’s best interests. The parents have determined the manner in which the case has been heard (as is their right under the adversarial system) notwithstanding my requests for a different approach. The best part of the first day of the hearing was spent dealing with the objections to the affidavit material of the parties. The affidavit material was voluminous. The mother’s principal affidavit is 60 pages with 304 paragraphs. There is a volume of exhibits to the affidavit. That volume is about 35mm thick. Her update affidavit is 10 pages with 46 pages of annexure. The father’s affidavit is 57 pages long with 124 paragraphs. There are 155 pages of annexures to that affidavit. His update affidavit is 13 pages with about 40 to 60 pages of exhibits. Many parts of the affidavit material were objected to and either not read or alternatively were struck out. The cost to the parties has been immense. Since the commencement of these proceedings in December 2005 the mother has incurred and partly paid costs of $123,000. The father has incurred and partly paid costs of $96,550.
My request for the Family Consultant to give her oral evidence as the first witness in the hearing was objected to and although I pressed for this procedure it was ultimately defeated because of a refusal by counsel to ask any questions at that time. I make it clear that my criticism here is not of the lawyers as they do nothing more than represent their clients, on instructions, in an adversarial system. My criticism is of the system which the court and the Act has now discarded as not serving the best interests of children.
Because the parties lawyers have a responsibility and obligation to explain to their respective clients that there is and was the opportunity to consent to the case being heard under Division 12A of the amended Act or, prior to 1 July 2006, in Sydney, the ability to consent to participate in the Children’s Cases Program, and to have advised their clients that such a process would be quicker and cheaper for their clients, I must assume that one or both of the parties rejected that option.
The parents were given a clear message by their children through the means of the Family Report. They have chosen to ignore that message. The message is found in paragraph 42 of the Family Report where the son says his mother and her partner need to “cool down” and that his father needs to learn to “make better compromises”. In paragraph 44 the elder daughter wishes for her parents to reconcile and if that is not possible then they should be “nice to one another”.
Each of the parents and the mother’s partner were able to identify the elder daughter as the most vulnerable of the children to the parental conflict. The son and the elder daughter each identify strongly with their physical environment in Sydney and do not wish to move.
Introduction to the Issues in this Case
The son (aged 11), the elder daughter (aged 9) and younger daughter (aged 5) are the children of the father and the mother. In July 2005 they settled their property and children’s matters by signing terms of settlement for final orders. The orders provided for a shared time parenting arrangement for the care of the children. The children were to spend marginally more time with the mother than the father. To me it looked like a good working arrangement for the children. It enabled the children to have each of their parents participating in almost every aspect of their lives. The property settlement saw the father retain the former matrimonial home and the mother paid a substantial sum of money.
Following the separation of the parties in October or November 2004 the mother entered into a relationship with her partner. He is a resident of Victoria and has three children of his own. By December 2005 the relationship between the mother and her partner had developed to a point where the mother decided she would like to move with the children to E in Victoria to live with her partner. It was consequent upon that decision that she in December 2005 commenced these proceedings. Since that time the mother and her partner have been married. Their plans to live in E have changed because the mother’s partner’s former wife decided to move from E to Melbourne. Following proceedings in the Melbourne Registry of this Court agreement was reached which saw the mother’s partner consent to the move and new orders were made that see him spending equal time with the children’s mother caring for his children.
Each of the parents in this case professes a desire to have the other significantly involved in the children’s lives. Each acknowledges that the other loves the children and that the children love each parent.
The parents have a poor capacity to communicate face to face and their communication has been principally confined to e-mail or text messages. Each counsel for the parties has acknowledged actions on behalf of their client in the lead up to the hearing which do not reflect well on that parent.
It is trite to say that this case poses a difficult decision for the Court. Whatever the result the children will have to live with at least one of their parents being very dissatisfied with the result for a considerable period of time. There is the spectre that the parent who regards him or herself as the looser in this case will never give up the fight and will continue to undermine the orders of the Court and the settled nature of the residence with the other parent. The only way this might be avoided is if each parent comes to understand the emotional damage and scarring which will be inflicted on the children by continued parental conflict. To that end I asked the Family Consultant to paint the future picture for the children’s emotional development to the parties while they were in Court. Whether that information might help these children will largely depend upon the parent’s individual resolve to save their children from the appalling circumstance they now find themselves in.
Each of the parents is a highly intelligent, articulate person who in my assessment has the capacity to make a change in their parenting relationship for the benefit of the children and spare them further anguish and misery which they have surely suffered as a result of their parents’ marriage breaking down. The question is whether they each have the resolve and courage to do so.
The Issues
There were very few factual issues between the parties. The principal issue is which parent has the best proposal for the children’s future care? Which parent is best able to ensure the children continue to have a good and close relationship with the other parent? Which parent is best in tune with the children’s emotional needs? Which parent is best able to prioritise the children’s and the parents’ needs so that the children’s needs are placed first? What orders should be made to serve the best interests of the children?
The decision will necessarily see the children living in either Sydney or Melbourne. For a variety of reason which will be dealt with in these reasons the children will during school term necessarily see less of one parent than the other. Additional holiday time will be provided for the children to spend with the non residence parent and to some extent the children will have an opportunity to catch up with that parent. It must be acknowledged that the children’s lives will change from the present and on any view for the children not to be able to have their care shared equally, or almost equally, between their parents will see them the losers in the long run.
In the hearing of the case I was not asked to determine the Rice and Asplund (see the decision in Rice and Asplund (1979) FLC 90-725) issue. That is, given the orders made on 6 July 2005 were final orders, is there a change of circumstance which would warrant the Court rehearing the question of the children’s residence. Where an application to radically change the circumstance of the children’s residence and care within six months of final orders being made is instituted in the Court it is a common feature to see a challenge to the application being heard at all.
The approach of the father in this case in not pursuing such an application I commend and for his comfort say that in my opinion there is sufficient change of circumstances in the mother’s case to warrant the Court further hearing and determining the residence of the children.
One of the issues raised by the mother is that she has been the primary care giver of the children to this point in time and consequently if that role were to become the father’s by dint of the orders of the Court would the children cope well with such a change? I will deal with this issue, as with the others identified, in these reasons.
Background Facts
The parties married in March 1994. They separated under the one roof in late October or November 2004. In November 2004 the mother left the former matrimonial home and took up residence in a rental property at G.
The parties have three children: a son born in August 1995; an elder daughter born in November 1997; and a younger daughter born in September 2001.
In August 1996 the parties moved from Sydney to Auckland pursuing work for the father. They returned to Australia in June 2001 and purchased a property at B.
In July 2001 the son commenced attending school at D Public School.
In September 2001 the mother was diagnosed with acute myeloid leukaemia. In that same month, as a result of that diagnosis, the younger daughter’s birth was induced and she was born two months’ premature by way of caesarean. The younger daughter remained in hospital until December 2001. The mother was in hospital for a considerable period of time undertaking chemotherapy and other treatment.
In April 2002 the parties moved with their children to the former matrimonial home at F.
In October 2002 the mother purchased with her sister, A, a business “[Q business]” and commenced to work part time in that business.
In early 2003 the parties employed an au pair, Ms D, for two days a week.
In March 2004 the father purchased his current business “[Z Company]”.
In October 2004 the parties separately attended a self-development course in Victoria. Whilst at that course the mother met her partner for the first time.
On 6 July 2005 the parties entered into consent orders regarding parenting, property and child support matters. A binding financial agreement in relation to spouse maintenance was also entered into.
On 16 January 2006 the father made an application to the court seeking orders regarding the children attending private schools. This application was opposed by the mother. On 31 January orders were made by Judicial Registrar Johnston for the son to attend S College from 1 February 2006 and the elder daughter to attend X School from 1 February 2006. The younger daughter was to attend X school from 1 February 2007.
In June 2006 the mother and her partner purchased a property at E in Victoria. In July of that year the mother and her partner became engaged and were married in September 2006 in Victoria.
In December 2006 the mother’s partner entered into final consent orders with his former spouse. Amongst the orders made, by consent, was a notation that the father (the mother’s partner) would not seek to relocate to New South Wales. The effect of the orders requires the mother’s partner to remain living in eastern and south-east suburbs of Melbourne. His children live with him on the basis of equal time.
In February 2007 the mother and the mother’s partner moved residence to T, a suburb of Melbourne.
In February 2007 the mother commenced attending on Ms R, a psychologist practicing in the eastern suburbs of Sydney.
In March 2007 the mother moved from her rented premises in Sydney into a unit at P owned by her mother. The mother is required to pay a rental to her mother but it is less than the rental which she paid on the premises occupied by her prior to the change.
Matters arising from the Mother’s affidavit evidence
Paragraphs 15 through to 63 deal with the heading, “Care of the children during my marriage to [the father]”. These paragraphs largely go to support the contention of the mother that she has been the primary caregiver for the children to the point of separation. This is a matter which is conceded in the affidavit of the father. One matter which is referred to in this section is the period of time that the mother spent in hospital following her diagnosis of acute myeloid leukaemia. During the period September 2001 until December 2001 the mother had three courses of chemotherapy. During each course she resided in hospital. The first course required her to remain in hospital for two weeks. It is not clear from the mother’s affidavit exactly how long she was in hospital during this period. It was during this time that the father says he became more involved in the care of the children. It is not entirely clear to me from the mother’s affidavit if the father’s contention is conceded.
The parties agreed in about November 2004 for the mother to leave the former matrimonial home, after being provided with $20,000 and relocate to rental premises. They further agreed that they would then share the care of the children with the children residing with the father six nights each fortnight. The mother thereafter moved to the premises at G.
Following the orders entered into between the parties in July of 2005 the parties shared the care of the children with the mother being responsible for seven out of every ten school day afternoons a fortnight to care for the children. The children lived with the mother eight out of every fourteen nights.
The mother concedes that the children have since the separation continued to have a strong relationship with the father and also herself. Following the separation the father spoke to the children by phone once or twice a day when they were in the mother’s care. The mother objected to this however permitted it. After about twelve months following the separation the father reduced the frequency with which he spoke to the children by telephone when they were in their mother’s care and now speaks to them approximately once a week when they are with their mother.
In March 2005 the mother emailed to the father her “house rules”. It seems that the father has adopted similar house rules while the children are in his care.
Following the separation the son exhibited some behavioural problems. He spoke to a counsellor at school. By March 2005 the report from the counsellor indicated the son’s behaviour as having settled down.
It is a complaint of the mother’s that the father is over involved in the son’s life to the exclusion of the other two children. In her affidavit the mother sets out complaints which she says were made to her by the elder daughter in this regard.
The mother complains in paragraph 142 of her affidavit that on Sunday,
23 October 2005 the father refused to drop the children at her G home in accordance with Order 3.2 of the July 2005 orders. The mother said that she had arranged for her sister A to spend the night at the G home and care for the children whilst the mother spent an additional night in Melbourne. The mother rang the father when she received a call from her sister A advising the children had not been returned. The mother recites a conversation with the father where he asserted that he had sent her a text message advising that he would be keeping the children as she was not available to care for them. The mother apparently was at the movies and did not receive the text message. The mother thereafter caused her solicitors to write a letter of protest to the father which was exhibited to her affidavit. The mother complained that the father uses au pairs/babysitters to care for the children when he is not available and accordingly it was unfair for him not to deliver the children to her sister at the conclusion of his time with the children on that particular occasion.
During the course of the hearing the orders made on 6 July 2005 were looked at in some detail. Those orders provide, inter alia, in paragraphs 4.4 and 7.2 for notice to be given in the event of either parent being unable to care for the children in certain specific circumstances. The intention appears to be clearly that if either parent has to rely on other people to supervise or care for the children for other than a short period of time then the other parent should be offered the opportunity to care for the children during that time.
The mother complains in her affidavit that the father entered her house uninvited by her on a number of occasions during 2005. She required that he not enter the home. This was the case even if the father was invited by one of the children. The mother sets out in paragraph 156 of her affidavit that her lawyers advised her to contact the police should the father continue to enter the house uninvited. Annexed to the mother’s affidavit and marked as Exhibit “DLS22” is a letter dated 9 February 2006 from the mother’s solicitor to the father’s solicitor. This letter dealt with a dispute between the parties about the son not being made available to play school sport whilst he was in his mother’s care. The father took the view that this was a breach of the court orders. The letter complains further that the mother accuses the father of making arrangements for the elder daughter whilst the elder daughter is in the mother’s care. Finally the letter complains of the father entering the mother’s house on 6 February 2006 and walking through to the bathroom. The letter then advises that if there is a reoccurrence of such an invasion of the mother’s privacy she will “contact the police for his trespass into her property.” It is clear from the letter that the mother had accepted the advice of the solicitors and proposed to make a complaint to the police should the father enter her premises in a manner which she regarded as uninvited. I am pleased to say that nothing was raised in evidence to suggest that any complaint was in fact ever made by the mother to the police.
Whereas it is clear that the mother’s privacy should not at any time be invaded by the father and that he should never enter her premises uninvited, the implications for the children of the mother instigating action with the police against their father is very significant. There is nothing in the mother’s affidavit or in her oral evidence to indicate that she had any understanding of the implication of making the threat which she did through her solicitor’s letter referred to in annexure “DLS22”. It seemed to be a threat made as a result of her being exasperated by the father’s alleged constant refusal to comply with her requests not to enter her premises. The mother says that even following the lawyer’s letter the father did continue to enter the property uninvited. The mother complained that the father continued to attend at her front door when he returned the children or on other occasions associated with the children. In an email dated 16 May 2006 the mother in very strong terms told the father that he was not to come to her front door. She complains that he continued to deliver the children to the front door until July 2006 when he ceased doing so.
In paragraph 163 of her affidavit the mother says she can no longer talk to the father. She says that over the two previous years she has heard the father constantly say to her words such as “you are selfish”, “You never put the children first.” There are other statements attributed to the father. By March 2006 the mother requested the father not to speak to her on the phone or in person and to keep all communication to a minimum and via email only. The mother says she continues to find the father’s emails offensive and harassing. She says that from August 2005 through to 26 July 2006 there have been numerous emails between the parties and she sets out in paragraph 165 the numbers of emails.
The mother and father have a fundamental difference on the approach to the son playing rugby union. The mother holds the view that the son plays too much rugby.
This difference came to a head in early 2006. On 14 February 2006 the father advised the mother by email that W team’s registration was opening. The mother did not agree to the son being involved in the W team and spoke to both the son and the father about her view that he played too much rugby. The son was caught between the parents in this dispute and complained to his mother that his father told him that she was the reason why he could not play. Finally the parties had a meeting on 29 March 2006 with the father’s parents in relation to the issue. The father said that if the mother won’t let the son play then he can’t play. The issue continued to boil on and eventually the mother agreed to the son playing additional football with the W team on conditions that she stipulated and set out in paragraph 173. The father supported those conditions and the son was able to play football.
On 13 April 2006 the mother confirmed by email that she would not share the expenses of the W rugby as it was not an agreed expense and she then set out in paragraph 176 the content of some of that email. The wording of the email is in my opinion very inflammatory and accusing. She said, inter alia, “I do not trust you to act in a mature and sensible manner. I also do not trust you to act in the best interest of the children.” Later in the email she says as follows:
“I have allowed [the son] to play [W] even though I have serious reservations about too much rugby et cetera. I offered this compromise in good faith, in a bid to improve our relationship. I am just waiting now to see if you truly have any intentions of trying to act in a co-operative manner or once again you just say the words but do nothing.”
In paragraph 178 of the mother’s affidavit she sets out an extract from the father’s reply which on my observation appears to be a conciliatory and appropriate response. The wording of the mother’s original email may well have in other circumstances provoked a more acrimonious response.
Notwithstanding the response from the father as above referred to the mother sets out in paragraph 181 of her affidavit a further reply to that email. In my view the reply is attacking, provoking and detrimental to any co-operative parenting between the parties. Included in this reply are the following words:
“[Father] please show me where you have in any way contributed to any form of compromise in this current situation. [The son] is well aware that at no stage have you offered me any form of compromise”
…
“He has a clear understanding that you have no intention of trying to sort out the situation unless you get it all your way.”
“This behaviour is commonly known as bullying.”
“Be under no misunderstanding [the son] is completely aware that you flatly refuse to co-operate on any level and that once again I have been severely disappointed because you have been unable to be man enough to actually negotiate a fair deal.”
…
“I know my compromise is fair, I am just wondering where your compromise is? Will this ever end or are you just determined to make me pay for leaving you for the rest of my life? We all wonder when you will grow up and take responsibility for your own actions? We guess not in the foreseeable future.”
When I read that email I see evidence of a very angry person. The reference towards the end of the email to “we” does not specify who constitutes the “we”. On one reading it includes the mother and the children but given the history of the case might well be reference to the mother and her partner, Mr M, or some other persons.
At paragraph 186 of the mother’s affidavit she commences to set out the events which occurred in June and July 2006. At that time the mother said that she found out from the younger daughter that she was not going skiing with her siblings but rather going to Y with her Granny and D. Having ascertained this the mother then drew on Order 7.2 of the July 2005 orders and requested that the younger daughter be made available to her during holiday period. The mother seeks to justify her action by saying in her affidavit:
“It would have been a very special time for [the younger daughter] and I to spend together as a mother and daughter as at no other time have we had such time together without [the two elder children].”
The mother caused her solicitors to write to the father’s solicitors on 5 July 2006. That letter is annexure “DLS29” to the mother’s affidavit. The opening paragraph is:
“It has come to the mother’s attention that the father is intending to not take [the younger daughter] with him skiing but have her minded by the paternal grandparents at [Y].”
The letter goes on to threaten the father that if he does go ahead and have the younger daughter cared for by her grandparents rather than himself during the holiday the mother proposes to take the matter further.
The father’s solicitors replied by letter dated 6 July 2006. In that letter they pointed out that this was not a circumstance where the younger daughter was being cared for by someone other than the father because he was not capable of caring for her at the time but rather that it was his intention to facilitate the younger daughter enjoying a holiday with her grandparents and cousins in Y. The letter advises the mother that if she indicates an objection to the holiday as planned then the father will change the holiday plans. The letter points out an accusation by the father that the mother has breached the orders on numerous occasions and in particular Order 4.4 without action being taken by the father. The letter required an answer by 12 noon on 7 July 2006.
A letter was sent by the mother’s solicitors to the father’s solicitors on 7 July 2006. In that letter the mother acknowledged that the two elder children were very much looking forward to a skiing holiday. She said that she had “no problem” with the paternal grandparents caring for any or all of the children at different times when appropriate.
The following paragraphs appear in the mother’s affidavit and also the letter:
“If the husband is prepared to communicate his wishes then the mother is more than willing to try and work in with the husband’s holiday arrangements however, the mother also feels that this would be a special opportunity for the mother and daughter [younger] (4) to spend some quality one on one time together, while the other children are enjoying time with their father.
She is also extremely upset that the husband is willing to cancel all the children’s plans just to ensure that he does not have to give the mother the option of caring for [the younger daughter]. Clearly these changes of arrangements that inevitably will cause enormous stress to all the children, are a direct result of the mother’s request that he merely comply with the orders that he clearly admits that he has chosen to ignore.”
Following that exchange the father sent an email to the mother outlining his travel proposals and offering for the younger daughter to stay with the mother until Monday when his parents will take her to Y. He also then offered that his parents on return from Y would provide the younger daughter to the mother for Friday and that upon the father’s return on Saturday afternoon he would collect the younger daughter from the mother.
In paragraph 191 of her affidavit the mother said she replied on that day “with a compromise” which was that she would take the younger daughter to Melbourne with her until Tuesday and then the younger daughter would spend from Tuesday to Friday with her grandparents in Y. The mother sent three text messages requesting a response and at 3.30 pm on that day telephoned the father and said, “Go and read your email now and ring me back”. The father replied with a message about having people for a barbeque. On 8 July the father emailed the mother advising as follows:
“Given the legal position that you have taken on this I am left with no choice but to cancel the ski holiday unless you agree to the plans I outlined.”
In paragraph 193 of her affidavit the mother sets out her reply which she sent on 8 July. Again that reply as recited in the mother’s affidavit contained what I would describe as inflammatory statements such as, “I find it incredible”, “I will not be bullied or blackmailed by you.”
The father replied. In that reply he changed the plans so that he was able to care for the younger daughter until Tuesday and then advised that the younger daughter would be with “[N] and [I]” for the period Tuesday through to Friday. There were exchanges of emails on 10 July 2006 the last of which being at 4.34 pm to the mother from the father as follows:
“Dear [Mother], for the sake of clarity I have asked if I can take [the two elder children] skiing and have [the younger daughter] stay with her cousins for Tuesday, Wednesday and Thursday and be returned to you on Friday afternoon at a time that suits you.
If you do not agree I will not go skiing and will stay with all three children. As such [the younger daughter] will be with me on Friday and I will return all the children at 6.00 pm next Monday.
I am truly sorry that this has reached this point. I only ever wanted to give the kids a fun holiday. Regards [the father].”
As best I can see from the mother’s affidavit and from the annexures that email was never replied to. Paragraph 195 and 196 of the mother’s affidavit sets out what happened thereafter. It is as follows:
“On 11 July 2006 I received a telephone call from [the elder daughter] who was now in [Y] spending time with [the father] for the school holidays. She sounded very distressed and I could hear her sobbing in the telephone and saying words to the effect ‘Mum why can’t we go skiing?’ I replied words to the effect ‘I don’t know, it’s your Dad’s decision. When you are with Dad it’s his decision.’ I also spoke with [the son] during this phone call and he said words to the effect ‘Dad said that he would get in trouble from you if he takes us skiing’. I replied words to the effect ‘[Son] you know it is Dad’s decision. I can’t make Dad do anything when you are with him. It is his decision and when you are with me it is my decision.’ [The son] was also very upset about missing out on his skiing holiday.”
In my opinion this incident demonstrates the very worst of parenting by each of the mother and father. Ultimately it is my view that the request made by the father on 10 July 2006 by email to be able to take the children skiing and have the younger daughter stay with his relatives in Y was a reasonable request. That request was not replied to by the mother in the affirmative and consequently the children did not go skiing. I have no doubt that the younger daughter would have enjoyed her time with her cousins in Y as is effectively acknowledged by the mother in her affidavit material where she acknowledged that she had no objection to the children spending time with those relatives in Y. It also appears from the mother’s affidavit that her stated plan to “spend some quality one on one time together” with the younger daughter actually involved the younger daughter spending time with the mother in Melbourne with her husband. Thus the one on one time was to be two on one time with the mother and her partner.
The last part of the above mentioned references from the mother’s affidavit illustrate to me that each of the parents had endeavoured to convince the children that their lost skiing holiday was the other parent’s fault when clearly each of the parents had contributed to the circumstances which led to the children’s disappointment.
At paragraph 204 the mother complains that the father has breached court orders in that he has refused to return the children to “[A’s] care when I was not available on Sunday evenings to collect the children as I was in Melbourne and had arranged for my sister to be available for the children.” The mother acknowledged in paragraph 204 that the father had in November 2005 through an email stated a preference to look after the children on Sunday nights if the mother was not available.
The mother then sought to have an agreement reached where the father would change his Wednesday night to every second Sunday night. Her exact proposal was contained in an email dated 22 February 2006 which was for the father to swap his Wednesday afternoon and night for the mother’s Thursday afternoon and her Sunday night. She says that this was an exact exchange in terms of time. This dispute festered on for a considerable period of time. The father concluded by not agreeing to a change of time however he requested that he be able to care for the children in lieu of the mother’s sister on Sunday evenings when she was unable to return to Melbourne on time. No agreement was reached and as far as I can see on the evidence the children continued to be cared for from time to time on Sunday evenings by the mother’s sister, or friends which would appear to be directly contrary to the position being promoted by the mother in the argument about the children’s ski holiday with their father and the time that the younger daughter should spend with her mother. As I understand the position being put by the mother on that occasion it was that she was available to care for the younger daughter it would have been a good time for she and the younger daughter to have together.
As far as I can see from this issue there probably is no doubt that the children would enjoy occasionally the opportunity to spend some time with their Aunt A. However, given that the father was available to care for the children on Sunday nights when the mother was not, because she chose to remain in Melbourne an additional night, it is hard to fathom the logic of why it was in the children’s best interests that their aunt should be caring for them rather than their father.
In paragraphs 209 through to 215 the mother sets out matters relating to the relationship between her husband, Mr M, and the father, and between her husband and the children. On 29 May 2005 the father first met the mother’s partner. The mother in her affidavit does not refer to any action on her part to introduce the two men. She says that at a changeover on that day the father brought the children to her house at G. She says, “In doing so he met [her partner] as he was also at the [G] home.” What the mother does not say is that she played no active part in introducing the two. The father’s affidavit gives details of the meeting and he was not challenged about his evidence on this point. On the father’s evidence he was somewhat surprised by [the mother’s partner] approaching him and introducing himself. The father sets out the interaction between the two men on that occasion which was less than cordial. In my opinion a reasonable and objective view of the circumstances at that time would have led the mother to conclude that the meeting between the mother’s partner and the father in the circumstances in which it took place was likely to be less than cordial. The children were present on that occasion and indeed the mother’s affidavit recites the fact that the son reported to her that, “Dad and [the mother’s partner] talking outside”.
In an email to the mother on 30 May 2005 the father set out, in my opinion, a perfectly appropriate email about the meeting between the two men. In her response to his email which she sent on 31 May 2005 the mother has interlined her own comments and replies. In the second paragraph she says this:
“I felt that it was appropriate for [the mother’s husband] to introduce himself in an adult manner considering the circumstances.”
By including those words it is clear that the mother orchestrated the meeting between the father and [her partner]. In arranging that meeting in a way which did not see her introduce him to the father in the absence of the children she has, in my opinion, demonstrated very poor insight. It should have been reasonably anticipated by her, given the emotions which had been expressed to her by the father to that point of time, that he would be most unhappy about meeting the mother’s partner in those circumstances. She should reasonably have predicted that there may have been strong words pass between the two men and that to allow the children to be proximate to such an interchange would have been damaging to them.
The father had asked the mother to not have the mother’s partner turn up to watch the children’s games on the weekends when they were with the father and the mother was not accompanying her partner to watch those games. The mother’s reply to that request was, “that is your opinion not mine.”
In the last paragraph of the email from the father he said this:
“[Mother], my focus remains to do what I think is best for the kids. The less we have to do with each other the better but this is overridden by anything that involves the kids. In this regard it would be better if our joint interaction with the kids be it sport or school events be done without partners at this time. Again, in time I would expect that this will change.”
The mother’s response was:
“[Father], my focus has always been on the kids since they were born. I feel very strongly about this and I most certainly do not agree. It is very important that the kids feel comfortable around all people involved in their lives and there should not be any discrimination in this area. Kids do not need to know about conflict between their parents.”
Again this seems to me to be a resolve by the mother to have her partner involved in every aspect of the children’s lives including aspects that did not directly involve her, such as his attending sporting functions of the children which the mother herself did not attend. It seems to me that this was a determination that was driven by her own desires and her own needs rather than the needs of the children. It is hard to see how it benefits the children to have her partner attend at sporting functions where the mother was not attending and where the children were in the care of the father on that particular occasion knowing that at that time his attendance was likely to be disturbing to the father and consequently impact on the way in which he could at that time and would at that time be interacting with the children. In my view this demonstrated a lack of insight which the mother had as to the impact on her children of her insistence that her partner be involved in the children’s lives to that level.
In paragraphs 229 through to paragraph 296 the mother sets out in her affidavit details of her marriage to her partner and proposals to relocate to reside in E, Victoria. The mother’s affidavit was sworn on 5 October 2006 and by the end of 2006 her proposal to reside in E had changed because her partner’s circumstances had changed. The mother and her partner met in October 2004 at a self-development course in Victoria. This was the course that each of the mother and father attended individually on the recommendation of their therapist who they were working with in Sydney in respect of their marital relationship. At the time of the swearing of the affidavit the mother’s partner had three children who were J age 9, S age 7 and M age 5. Those children were living at E near Melbourne in Victoria where each of the mother’s partner and his former wife resided.
In paragraph 249 the mother recites a conversation between herself and her partner. The conversation is built on the presumption that the mother could relocate the children to E at her will. In June 2006 the mother and her partner found a house at E which they decided to purchase. They acquired the property. The property had a delayed settlement until December 2006.
During the school holidays in July and September 2006 the mother took the children to stay at E in the new home. She said she observed the children had a fantastic time at that home. She said that she had observed the children have adjusted to the routine in the home at E and that she and her partner had resolved to enforce the same house rules for their children. The mother said that when the children have been staying with her in her G house they have complained of being bored. She said that there was no complaint of being bored while the children stayed with her in E.
In July 2006 the mother’s partner proposed marriage to the mother. In paragraphs 264 through to 269 the mother sets out her conversations with the children in respect of her re-marriage. The elder daughter’s immediate response to the news was, “does this mean we will move to Melbourne?” The mother said she replied, “I’m not sure yet but things will change probably not until next year.” The elder daughter then asked, “What about Dad?” The mother says that the elder daughter responded to the initial announcement with excitement.
When the mother told the son of her news about marrying her partner he asked the same question as his sister, “Are we moving to Melbourne?” The mother told him, “I don’t know yet. Dad and I have to work that out.” The son replied, “I don’t want to go.” In that conversation the mother told the son, “Your opinion matters to me [son], and it is really important that you keep talking to me so that I know what is going on in your head.” The mother recites further conversations with the son about the possible move to Melbourne. The mother has discussed with the children schools which the children could possibly attend close to E.
The mother reports that the younger daughter was excited about the move to Victoria.
As part of her proposal to move the children to E the mother investigated schools. She said in paragraph 273 the children have secured places at four schools. When the father ascertained that the mother was speaking to the children about schooling and was enrolling them in schools he protested.
The mother complained that she and the father have not been able to agree to attend mediation to discuss options for the children’s time with each parent should the mother relocate to Victoria. In paragraph 276 of her affidavit she points out that her lawyer proposed mediation to explore these avenues. A copy of the letter sent by her lawyer to the father’s lawyer dated 15 August 2006 was annexed.
In paragraph 277 the mother says as follows:
“Under cover of letter dated the 4th September 2006 [the father’s] lawyer advised that a mediation based on my proposal was unacceptable to [the father]. Exhibited and marked DLS50 is a copy of the correspondence from [the father’s] lawyers dated 4 September 2006.”
An examination of Exhibit DLS49 to the mother’s affidavit shows the following paragraph as the second paragraph in the letter:
“Our client would like to attend mediation provided that the focus of the mediation is to address issues of the husband’s time with the children in the event that our client relocates to Melbourne with the children.”
In Exhibit DLS50 the second paragraph of the letter from the father’s solicitor to the mother’s solicitor is as follows:
“Your client’s proposal to limit the terms upon which a mediation should occur is not appropriate.”
In my opinion it was perfectly appropriate for the father to reject the mother’s conditional offer of mediation. There seems to have been no other attempt, which is referred to in the affidavit material, to mediate these issues.
The mother in her affidavit says that if she moves to Melbourne she will be able to be available full-time to care for the children.
In paragraph 295 the mother says that she has found the past two years of splitting her life between New South Wales and Victoria as difficult and stressful. She said, “I am happiest when I am with my children, [my partner] and his children at the [E] home.” In paragraph 296 she said, “When I am with [my partner] I feel emotionally secure and relaxed”.
In her second affidavit filed on 26 March 2007 the mother annexed a copy of orders entered into between her partner and his former wife in respect of their children on 21 December 2006. These orders provided for the mother’s partner’s three children to attend O Primary School from the commencement of the 2007 school year until such time as they complete their primary schooling. The orders envisaged that the mother’s partner would relocate his residence within reasonable proximity of O Primary School. The orders noted as follows, “The husband has no intention of seeking a relocation to Sydney with the children.” Also annexed to those orders were earlier orders made 14 February 2006. Those orders provided for the children to live with the mother’s partner from Tuesday after school until Wednesday after school in one week and from Friday after school until Monday after school in the following week. The children were to spend some school holiday periods with the mother’s partner as well.
The effect of the orders entered into by the mother’s partner on 21 December 2006 was to cause the mother in these proceedings to change her proposal from one where she was living at E to one where she will be living in T, a suburb of Melbourne. A consequence of this move is that the children have been told in considerable detail of the proposal to live at E, have been taken to see schools, have been informed of enrolments being sought for schools for them to attend and otherwise psychologically prepared by the mother for a life in E. The children now have been told by their mother that the E proposal is not to proceed and that they will now live with her in T and will attend O Primary School. The T property has been rented and the mother and her partner have rented out the E property. It appears from her oral evidence that it is anticipated the E property may be difficult to sell. It is reasonable to predict that the mother and her partner will probably sell the E property and look to buy a property in Melbourne in reasonably close proximity to where the mother’s partner’s children live with their mother.
In March of 2007 the mother left her property at G which had been rented and moved into her mother’s apartment at P. This is a three-bedroom accommodation and has been accommodating the children and the mother since that time. The rent on the P property from the mother’s mother is considerably less than that which the mother was paying for the G property. In lieu of rent for a period of eleven weeks the mother spent some $5,500 in renovations to the kitchen of the unit.
The mother in this affidavit also set out that she had been attending upon a clinical psychologist, Ms R. The mother said that following spending six weeks with her husband in Melbourne over the Christmas school holiday period and then returning to Sydney in January 2007 she became very distressed. She said that when in Melbourne she felt close and secure in her relationship with her husband and the children were happy. The mother says that she regards living in Sydney as living in a hostile environment. She said she felt uncomfortable in Sydney, uncomfortable in the schools that the children attend and at the local shops and even where she works in R. No explanation for the uncomfortable feeling in those environments was provided by the mother but I interpret, I think fairly, that it is reactive to the poor relationship she enjoys with the father in these proceedings.
In paragraph 37 the mother says that by the time her initial appointment with Ms R in February 2007 came about she felt overwhelmed by her current family situation. She felt at the brink of an emotional breakdown:
“The enormity of the long term implications of not being able to live with [my partner] has completely overwhelmed me as well as the day to day separation and isolation I am feeling in having to live away from my husband. I am now starting each day with a feeling of dread.”
The mother then describes how well she was whilst living in Melbourne with her husband and how unwell she feels living in Sydney. In paragraph 39 she said:
“I also feel that the children will not be allowed to move with me. It frightens me that the children may believe that my role as their mother is dismissed if they are not permitted to move with me or that a nanny can replace me.”
In paragraph 41 the mother says that the younger daughter said to her in November 2006 in the presence of the son and younger daughter:
‘“Are you definitely going to Melbourne?” I replied words to the effect, “Yes, but don’t worry your Dad and I are going to sort this out and you will still see both your parents a lot you’ll just see Dad in bigger chunks.” [The elder daughter] then said words to the effect, “Dad says that he’s not going to let us go to Melbourne and if we stay he’ll buy us a boat and a home entertainment centre but not if we go with you.”’
In paragraph 43 the mother says:
“It is of grave concern to me how our marriage can last a long distance over a long term period of time. I feel very alone and in not having [my partner], my chosen lifelong companion to enjoy our family life together whilst living in the same home.”
In her oral evidence the mother confirmed that she had told the children she was proposing to live in Melbourne full-time before the interviews took place for the Family Report.
The mother relied on an affidavit from her husband. Annexed to that affidavit were photographs of the house at E. In his evidence the mother’s partner identified a photograph of the son sitting at a computer. It is interesting to note that in paragraph 261 of the mother’s first affidavit she says:
“[The son] also spends a lot of time in front of the computer at the [G] house as there is no backyard for him to play.”
This paragraph formed part of a series of paragraphs designed to show that the E property was most desirable for the children because it had a great deal of outside space and activities for them to engage in as opposed to the G house which was occupied by the mother which did not have outside activities and therefore the son spent a lot of time in front of the computer. The affidavit of the mother’s husband is largely corroborative of the affidavit evidence of the mother. The thrust of the affidavit is to establish that the children from each of the parties’ family and the mother’s partner’s family have developed a good and close relationship. In paragraph 39 the mother’s partner says that he has tried to establish a civil relationship with the father in these proceedings. He then recites his version of the conversation that took place on or about 29 May 2005.
In paragraph 40 of his affidavit the mother’s partner refers to a further incident which he said occurred in June 2006. He explains that the son and elder daughter had a clash in their Saturday sporting schedules and the mother had suggested to the father that he could take one of the children to their games if the father called the mother by 8.00 pm on Friday night. The father had not called and on Saturday morning the mother said to me words to the effect, “I’ll take [the elder daughter] to soccer and you take [the son] and [younger daughter] to his rugby game I will then join you at rugby after [the elder daughter’s] soccer game.” The affidavit then recites that after the mother had left with the elder daughter, the father rang the mother’s phone number and said, “Can I take [the son] to rugby?” I said to the father words to the effect, “Arrangements have been organised as you did not get back to [the mother] last night.” In this trip apparently the mother’s partner had failed to ensure that the son had his rugby gear and approximately thirty minutes into the trip he ascertained that the son was not properly equipped. The mother’s partner stopped at a chemist to get a new mouthguard for the son and advised the son that he could borrow some shoes from one of the other boys who had just finished a game. On route to the field the mother’s partner said that the father had rung him three times to ask, “Where are you?”
In paragraph 41, although not confessing outright to this fact it is apparent that the mother’s partner arrived late with the son to start his match. The son’s father approached the mother’s partner and said, “How could you do this to my son?” The mother’s partner replied, “[…], it’s okay, [the son] hasn’t missed the game and he can still play. [The son] just made a mistake he forgot his bag.”
The material set out in paragraph 40 and 41 of the affidavit of the mother’s partner raised concerns for me. In the first place there does not appear to be any reason why the son could not have been taken to the rugby match by his father even though he had not returned the mother’s call by the 8.00 pm deadline which the mother had set. In my opinion it was highhanded and insensitive on the part of the mother’s partner to have taken the stand he did and it does not augur well for the children in the future if their care is to be shared by their mother with her partner and he continues to apply his supervision of them in the manner illustrated in the paragraphs in his affidavit above referred to.
In paragraph 42 the mother’s partner asserts that his relationship with the father is largely civil and courteous. He refers to a telephone conversation he had with the father in respect of dropping the children off early for a holiday. He then said that he and his mother had previously discussed and agreed that he should speak to the father and arrange the children’s plans if it is in the children’s interests to vary the orders that are in place for their time with each parent.
Towards the end of his affidavit which was sworn in October 2006 the mother’s partner describes the residence at E. As I have referred to earlier this proposal has now changed.
Ms R, Treating Clinical Psychologist, signed an affidavit which annexed a report in relation to the mother prepared by Ms R. The report was dated 27 March 2007. The report highlights that the mother has consulted with Ms R on 19 February 2007, 1 March 2007, 13 March 2007, 19 and 26 March 2007. Her oral evidence was that there has been a recent consultation with the mother. In her report Ms R says as follows:
“In every session [the mother] has presented as a warm, honest, open and flexible adult who thinks in a rational and logical way. She has shown a willingness to explore all options and has evidenced a capacity to validate everybody’s needs.”
She also said:
“At no time did I find [the mother] to be malicious or vengeful towards her ex-husband. On the contrary I found her to be exceptionally understanding of his rights and feelings as the father of her children. She is also cognisant of the relationship her children have with extended family in Sydney and finds herself in the untenable situation of trying to please everyone.”
Ms R said that of the symptoms seen in the mother as follows:
“[The mother] was extremely agitated when I first saw her. She cried easily and copiously and expressed feelings of disempowerment and of being trapped. I believe that she is suffering from a mild form of agitated depression. This depression could be attributed to the stressful situation [the mother] finds herself in.”
Towards the end of the report under Clinical Observations, Ms R reports:
“The mental state of a mother affects the mental state of her children. A distressed mum creates feelings of distress in her offspring. Right now [the mother] is struggling to maintain her sense of balance and to be the calm and happy mother she wants to be.”
In her oral evidence Ms R told the Court that she has practiced as a therapist and has not been involved in any diagnostic practice for about ten years. She does not have the capacity to prescribe medication. She said that in relation to the prescription of medication that she works closely with her client’s GP. She was unable to say who the mother’s GP was. Ms R said that although the mother was considerably agitated when first seen there has been a quick turnaround and she does not present as agitated in the later sessions. Ms R in her oral evidence differentiated between agitated depression and mild depression and said that the mother was still quite energised when she saw Ms R.
Ms R said that when the mother first saw her she was feeling trapped. In the last few sessions she had become empowered and will move to Melbourne with or without the children. She proposes to fight as hard as she can for the children.
At the conclusion of the cross-examination and re-examination of Ms R, I asked her about her statement that the mother had not been malicious or vengeful in her attitude towards her ex-husband. I asked her if the mother had told her she detested the father would she still have reached the conclusion that the mother had not been malicious or vengeful. Her answer confirmed that she would not have included those words in the report.
The Mother’s Cross-examination
The mother was required for cross-examination. Matters of particular note in her evidence include the following.
In cross-examination it was put to the mother that she did not tell the Family Consultant that she was “going to live in Melbourne come hell or high water.” Her reply was, “No, but I did say I was definitely moving.” She said that she had made the decision to move to Melbourne with or without the children in about October 2006 before the Family Report interviews. She claimed that she had told the children of this and she said to them:
“I am going to live in Melbourne and Dad and I will work something out to make sure I see a lot of you. I want you to live with me.”
She claimed that conversation took place before the children saw the Family Consultant.
The mother was questioned about her applications to the L School for the children’s enrolment. She was asked why she had left the father’s name off the application form and she replied, “I didn’t think he was part of it.” She was asked why she had not told the father about the enrolments until September 2006 and she replied, “I didn’t know whether he needed to know.” She said that if the children lived in Victoria with her she felt that the father should know about the children’s school enrolments.
The mother was asked about the move from E to Melbourne. She was asked whether the E property had been sold. She replied no, that it had been rented and it was not on the market. She said that she and her husband do not propose to move back to E. She conceded that her children and her husband’s children have never lived in the T house together. She conceded that the most time the children have spent living together has been for a period a little in excess of two weeks. She said that if the children remain in Sydney it is unlikely that she would live in Sydney on weekends. She has not spoken to her mother about a long term arrangement where she would spend four days a week once a fortnight in Sydney with the children and using her mother’s apartment. She said that she would try to make the arrangement work but she thought it would be very hard to do so. She said:
“I am so tired, the travelling, trying to juggle time and houses, just the whole situation, it is just unviable on the long term basis.”
In her cross-examination that continued on 1 May 2007 the mother was asked whether she prioritised her husband over her children in her life. She said no, she can’t do that, they get equal priority. She said that if the orders were made for the children to remain in Sydney in their father’s care she will come to Sydney as often as she can. She knows that her children need her.
The mother was shown copies of enrolment forms for schools in Victoria. She agreed that on the enrolment form her partner had been noted as the children’s guardian. She acknowledged that she had not put anything in the enrolment form about the father. She said that she had spoken to the school and advised them there was a father and that she would need a court order for the enrolments to go ahead.
The mother was asked whether she had asked her husband could he live in Sydney and she said yes. She recalled that she asked him in late 2005 when she concluded it was going to be too difficult to live in two different States. As best she could remember she said the last time they had discussed the possibility of her partner moving to Sydney was when the decision needed to be made for them to move to Melbourne from E. She agreed that this was before the Family Report interviews.
The mother was cross-examined about paragraph 17 of the Family Report. In that paragraph the following sentence appears in relation to the mother’s proposal to move to Melbourne:
“Both [the mother] and [her partner] believe that with continued reassurance of this kind the children could cope and “be fine” with not having their father involved in their daily lives.”
It was put to the mother that the reverse of that arrangement she would see as not being fine for either herself or the children. She replied:
“I would come to Sydney and maintain a residence if that is what is necessary. If [the father] had a residence in Melbourne he could do the same.”
In relation to her attendance upon Ms R and her health generally the mother was taken to paragraph 77 of her first affidavit. She was taken to a particular part of that paragraph which was in these terms, “In November 2004 I was struggling to get through days.” She was asked whether that is how she feels now. Her answer was, “I am better now but just going through a period.”
The mother was asked whether her husband has told her he would not move from where his children live. She replied, no, “It would be irresponsible for [my partner] to move from his work.”
The mother acknowledged that the longest period she and her husband have been in the same house together is eight weeks.
In relation to questions about the subject children and the mother’s partner’s children living together the mother conceded that her partners son, S, suffers from a mild form of ADHD.
The mother conceded that in June 2006 she did not think it was best for her children to live in T. It was put to her that if it was not for her partner’s children she would not have proposed a move to T for her children. She agreed with that proposition.
The mother agrees that she grew up in the eastern suburbs of Sydney; that she has one sister living in Canberra; her mother living in Z although having an apartment in Sydney; she has four sisters, a father and a step-mother all living in the eastern suburbs of Sydney. She also agreed that she had no family living in Melbourne apart from her husband.
The mother was asked what rugby union facilities would be available for the son to participate in if he lived in Melbourne. Her answers indicated that she had carried out very little investigation of that. She said that the elder daughter could play soccer and she nominated the R club however she did not know whether they allowed mixed competition. She conceded that she had made no enquiries about the possibility of the elder daughter playing soccer in Melbourne.
The mother was taken to paragraph 142 of her affidavit where she made a complaint that the father had not returned the children to her sister, A, on a Sunday evening when the mother had stayed in Melbourne. It as put to the mother that she did not tell the father she was proposing to stay in Melbourne on that occasion or that she was in Melbourne. She replied, “I had no intention of telling him where I was.” It was put to the mother that she detested the father and she replied, “No, I am not going to tell him.” It was put to her that she had said to him that, “The children will end up detesting you the way I do” and she replied that she had said that. It was put to her that is what she believes and she replied, “I do if he keeps treating me the way he is.” She agreed that the longest period of time the children have had away from their father was two weeks. The mother said that on the occasion that the son struck her in April 2006 it was the father who caused it. This was the occasion when there was an argument about whether the son should play rugby with the W team. She conceded that the son had hit her again in 2005. She agreed that she had taken the son to see Dr S before he was ten. She also agreed that she was concerned at that time that the son was angry and irrational.
The mother was asked, “Do you think it will be difficult for [the son] to be away from school, playing rugby and friends?” She replied, “I think he would be relieved.” The mother was asked by me if the son was to indicate and/or say after a period of six months of living in Melbourne with her that he was miserable and wanted to return to Sydney what would she do? She replied:
“I would talk to him but six months is not enough. If he was really wanting to return I would consider sending him back.”
There are two things about this paragraph which require comment from me. Firstly I do not accept that the son would be “relieved” to be away from Sydney. This statement is directly in conflict with the assessment of the Family Consultant in relation to the son’s views. It would also be contrary to an assessment by the Family Consultant of the son’s relationships with his parents. I interpret that report as support for the position that if the son was required to make a choice between his parents he would choose to live with his father.
For reasons which appear later in these reasons I do not accept that the mother would return the son to live with his father in Sydney if the son was unhappy in Melbourne and requesting to live with his father. When the mother gave that evidence I did not accept that she was genuine in her answer. Given everything else that she had said in her evidence, both in affidavit form and orally, I do not accept that the mother would bow to a request by the son to be returned to Sydney to live with his father. I conclude that the mother has so much emotional investment in the proposal for she and her children to live with her husband in Melbourne in a happy, harmonious family environment that she could not and would not accept anything less from them. I fear that she would convince herself that although the son might say he was miserable that really he was not.
The mother agreed that the elder daughter was well settled at the X school.
The mother asserted that the children receive mixed messages from their father. When asked what that meant she said that the son seems to be more important because of his sporting associations.
The mother agreed that her husband enrolled the children in Victorian Nippers and in so doing nominated himself as the guardian of the children. The mother was asked whether she had discussed this with the father to which she replied, “It was a holiday plan. I don’t have to discuss that with him.”
The mother was asked about telephone communication between the children and their father and her view that it was harassing. She said that the current rate of phone calls once every two days is not harassing for her.
The mother was asked about the children’s ability to cope with further changes as proposed by her. She said, “I think my children adapt well to change, that is what they have had deal with. They are what they are today because of the changes they have had to deal with.”
The Father’s Evidence
The father’s affidavit was filed on 6 October 2006. The matters of particular note in that affidavit are set out hereafter.
In January 2006 as a result of disputes between the parties as to whether the children should commence private schooling the father filed an application in the Court. On 31 January 2006 Judicial Registrar Johnston made orders that the son commence at S College on 1 February 2006, the elder daughter commence at X school on the same day and that the younger daughter commence at X school in February 2007. Little of this dispute is set out in the evidence and so the background appears to be only that the father wanted the children to commence their private schooling and the mother opposed that.
Having set out some background facts and great detail of the day to day care which the father exercises with the children the father in paragraph 41 set out details of occasions where the parties have been able to agree to some variations of the orders made in July 2005.
In paragraph 43 the father sets out eight occasions when he has returned the children to the mother on Sunday evening and she has not been at home. These would appear to be the occasions which the mother refers to in her affidavit when she remained in Melbourne and arranged for her sister to care for the children on Sunday night. The father says in paragraph 44 that he has made a number of requests of the mother to allow the children to stay with him on Sunday evening rather than being cared for by other people as the mother has not returned to Sydney. He says those requests have been denied.
In paragraph 47 the father says that in March 2005 the mother informed him that the son had been hitting her. He then spoke to the son at length.
The father says that in August 2005 the son attended at Dr S. A copy of the report from Dr S is annexure “B” to the father’s affidavit. The report detailed different reports from each of the mother and father. The mother raised concerns about the son’s behaviour including anger outbursts and irrationality. She told Dr S that the son had been hitting out against her. The father reported that he does not have the same behaviour from the son in his household. The mother said that the son was occasionally resistant to going to school. In summary the Doctor says as follows:
“[The son] is a boy of good intellectual ability with well developed basic skills. He does not have attention deficit / hyperactivity disorder. He does seem to have episodic angry outbursts when with his mother and [his mother] might benefit from advice about ways of managing this. I have recommended a psychologist who could provide this advice.”
In paragraph 49 of the father’s affidavit he refers to an incident which occurred in April 2006. It is not clear whether the son was present and observed or heard the altercation between the parents. It is consistent with my observation of each of the parents in the witness box that in such circumstances the father would have the capacity to remain composed and contained and that the mother could easily become angry and blaming in her criticism of the father.
The father and the son have a joint interest in rugby. The father has been involved in rugby with the son for some considerable time and in 2005 he was the coach for the son’s Under 10s W team. In that year they made the finals. In 2006 whilst not being the coach he was actively involved in the EW Junior Rugby Union Club and the son’s team. He has also been the Age Manager for the son’s Nippers for three years and in those years the son received championship awards for both beach and water disciplines. Similarly the father has attended the elder daughter’s soccer games throughout the season. He has been involved in coaching activities under the direction of the main coach. He took the elder daughter to and attended every coaching session. He is the Age Manager for the elder daughter’s Nippers age group in this 2006 / 2007 season. In paragraphs 56 through to 60 inclusive the father sets out conversations he has had with the elder daughter particularly in relation to the possible move to Melbourne. Likewise in paragraph 63 through to 69 the father has set out conversations with the children about moving to Melbourne. He says that the older two children have clearly said they do not want to move to Melbourne. In paragraph 66 the father sets out a conversation he had with the elder daughter where he said to her, “I promise you I’m doing everything I can to keep you in Sydney.”
The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
Each of the parties counsel addressed in submissions the advantages and disadvantages of the proposals of each party. The parties proposals are contained in their minutes of order which have been referred to earlier in these reasons.
The father’s counsel identified the advantages and disadvantages of the mother’s proposals as being:
Advantages of Mother’s Proposals
(a) The mother would be happy with the arrangement.
(b) The children will spend more time in their mother’s care.
Disadvantages of Mother’s Proposal
(a)The move to Melbourne would appear to be contrary to the children’s wishes to live in Sydney.
(b)The children would be unable to maintain the existing balance of time the children spend with each parent.
(c)The children will have to change schools in circumstances where they are currently well settled and achieving satisfactorily.
(d)The children will have to build a new network of friends.
(e)The children will need to join new sporting associations.
(f)The children will spend less time with their father than they do now and importantly less time across all the different aspects of their lives.
(g)The move may adversely impact upon the relationship between the children and their father, and the children and their extended family who live in Sydney.
(h)The children will have to adjust to living in a home which includes the mother’s partner and his children. The children have only had limited opportunity to trial those arrangement.
The father’s counsel identified the advantages of the father’s proposal:
Advantages of the Father’s Proposal
(a)All of the advantages of the current arrangement if the mother elects to continue to care for the children in Sydney during school term on the basis of every second week with her.
The father’s counsel did not identify the disadvantages of the proposal however they were really dependant upon the mother’s ability to care for the children in Sydney during school term. The disadvantages of the mother’s proposals were reasonably identified by the mother’s counsel in his submissions.
The mother’s counsel identified the advantages of the mother’s proposals as follows:
(a)The children will be cared for by the mother the person who until the separation (and the mother contends after separation as well) carried out the majority of the day to day care of the children.
(b)The mother will be available full time to care for the children.
The mother’s counsel identified the advantages of the children remaining in Sydney as:
(a)No change of schools, housing, friends or sporting activities.
(b)This needs to be considered in the light of the change which the son will make to high school next year albeit within the same school.
(c)The father will spend more time with their father.
The disadvantages identified by the mother’s counsel include:
(a)The father is untested in the extended role of caring for the children. This is a reference to the fact that there will be more days during school terms that the father will be required to care for the children.
(b)The father has inappropriately left the two girls alone in the house whilst not being physically supervised by the cleaners/babysitters.
(c)The children may not cope well with having their mother less actively involved in their daily care. In this regard the father was able to identify that the elder daughter is likely to be the most vulnerable.
Considering those submissions I find the advantages and disadvantages of the father’s proposal to be as follows:
Advantages of the Father’s Proposal
(a)The father will be pleased he has not lost the children from his daily life.
(b)The children will remain living in Sydney a matter about which the two older children have expressed a desire.
(c)At least half of the children’s care will be provided by the father.
(d)There is a strong prospect that the children will have the mother involved in their care on an almost equal shared time basis at least in the short term.
(e)There will be no requirement for the children to face changes of residence, school, sporting activities, friends and extra curricular activities which they currently enjoy.
(f)The children will be able to spend holiday time with their mother in Melbourne in her residence there.
(g)The children will not have to adjust to living in a household which includes the mother’s partner’s three children during their school terms. One of the implications for the children of living in the blended family, which is proposed by the mother, is that the subject children will have to share their mother’s time with their step siblings.
(h)They will live in a household which will be supportive of an ongoing positive relationship with their mother. To this end it is unlikely that the children will feel under any restraint to make contact with their mother by phone should they feel the need to do so. The emotional environment in the father’s house will be more conducive to the ongoing capacity of the children to develop their relationship with their mother, her husband and his family.
(i)I am confident that in such circumstances the children will be able to have a “meaningful relationship” with each parent
The Disadvantages of the Father’s Proposal
(a)The children will spend slightly less time being cared for by their mother in the short term and may spend considerably less time being cared for by the mother in the long term.
(b)The children’s mother will be very distressed by the loss of this case. She may well not support the children emotionally in accepting the orders and getting on with life.
(c)The mother’s emotional health may suffer.
(d)The mother will not be physically close by so that if the children need her at a particular moment she will not be there if she is living in Melbourne.
(e)In the long term the mother may not be as involved in the children’s schooling, sporting and extracurricular activities if she is unable to continue to spend each alternate week in Sydney during school term.
(f)The prospect of damage to the parental relationship between the younger daughter and her mother given the child’s age, stage of development and the possible spaces of time between visits with her mother.
I find the advantages and disadvantages of the mother’s proposals to be as follows:
Advantages of the Mother’s Proposal
(a)The children will have their mother involved in their daily care for at least half of the available time in which they need care.
(b)The mother will be available full time to care for the children as she will not be working.
(c)The mother will be happy and content with the arrangement. This is likely to have a positive impact on her emotional health and may make her attitude towards the father soften a little.
Disadvantages of the Mother’s Proposal
(a)The children will be moved from Sydney to Melbourne to the mother’s house where they will be based during their school term.
(b)The children have had very little practice of living in the same household as their mother, her partner and his children. They have had very little experience of living in the property currently being rented by the mother in T.
(c)At some time in the future there is a high prospect of further change for the children should the mother and her husband purchase a house in Melbourne. That prospect appears more probable than not.
(d)The children will need to change schools, friends, sporting associations, other extracurricular activities.
(e)The children will see much less of their father.
(f)Unlike the situation which will occur in Sydney in the short term at least the father will not be able to spend from Monday afternoon through to Friday morning in Melbourne caring for the children every second week during school term.
(g)They will live in a house with their mother which I have found to be emotionally antipathetic to the father. This could add an additional burden to the task of allowing the younger daughter to maintain her relationship with the father.
(h)The children may feel constrained in being able to exercise their relationship with their father in their mother’s household.
(i)Living in Melbourne is contrary to the children’s wishes and in relation to the son in particular may give rise to further conflict between he and his mother. To this end it is reasonably predictable that the son may be angry with a decision which sees him relocate to Melbourne.
(j)The children would probably miss the interaction which they are able to have in Sydney with their extended family.
(k)The children will not have their father involved to the same extent which he is now in their schooling, sporting and extracurricular activities. To that end it may well impact on the quality of the relationship they have with him now which in part must be based on his consistent interest and involvement in those activities.
(l)The possibility of damage to the relationship between the younger daughter and her father given her age, stage of development and the frequency with which face to face visits might reasonably be able to be facilitated.
(m)The father is likely to be very distressed by the decision for the children to live in Melbourne.
The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC ¶93-112 Bolitho v Cohen (2005) FLC ¶93-224.
I am cognisant of this requirement and I will consider what other orders could or should be made in the best interests of the children which may not have been sought by either parent.
Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence
In this case I have found that there should be an equal shared time parenting order subject to practicalities. In such circumstances it could not be said that there is an “undisputed residence parent”.
Until the date of separation in 2004 it is common ground between the parties that the mother was the parent most involved in and responsible for the daily care of the children. Following the separation that changed and the father has been involved in the care of the children on an almost equal time basis.
I find that as there is no uncontested residence parent this heading does not require further attention.
Any other reason the Court might have to restrain the resident parent re-locating the children’s physical residence
This heading does not apply as there is no uncontested residence parent at the time of the hearing before me.
Balancing of all considerations under Section 60CC
In my view the matters referred to by me as I dealt with the various sub sections of section 60CC lead to a conclusion that the children’s best interests are more likely to be promoted by the father than by the mother. I will discuss this further later in these reasons.
Conclusion
One of the issues raised by the mother is that she has been the primary care giver of the children to this point in time and consequently whether if that role were to become the father’s by dint of the orders of the Court would the children cope well with such a change? I will deal with this issue, as with the others identified, in these reasons.
Reviewing all of the available evidence I am left with the overall picture of the mother having a naïve attitude to and understanding of the impact on the children and the father of the circumstances surrounding the separation of the parties in October 2004 and the emergence of the mother’s relationship with her partner. I am left with the sense that the mother is emotionally immature in that she has tried her hardest to force the situation where she, her partner, his children and her children would all live in a harmonious and loving relationship in Melbourne and that the father and children would willingly and supportively facilitate her dream. The mother appears to have disregarded or seen as wrong the wishes and views of the children as set out in the Family Report. She has disregarded the recommendation of the Family Consultant. She appears to have now moved to a position where the involvement of the father in the children’s lives is only relevant to the mother where he complies with her plans for the children. The evidence satisfies me that she has reached a point where she will not speak to the father on the phone or face to face unless she instigates it. In her e-mail correspondence with the father she appears to me to adopt an aggressive approach which is evident in many of her e-mails. Whilst mouthing an absolute resolve to not exclude the father from the children’s lives she has been insensitive to his position particularly where she has sought to secure places for the children in Victorian private schools and in so doing made no mention of his existence and instead had her partner noted as a guardian/sponsor of the children.
It is clear to me that the son holds a clear preference to reside in Sydney and not change from his school. He wishes to continue his involvement with his sport in Sydney. He has significant friendships and associations in Sydney which would be substantially disrupted by a move to Melbourne. He also would appear to want to have his mother significantly involved in his care. The same position emerges for the elder daughter. She is happy and progressing well in her school. For her a move to Melbourne means a change of physical residence, school, friends and sporting associations. The younger daughter is really too young to have her wishes realistically assessed. She has however commenced her formal schooling in Sydney this year and a change for her at this time must be seen as having some disruptive impact upon her.
The mother’s reaction to the obvious disruption to the children of a move to Melbourne is that they will adapt. With the benefit of hindsight it is just as well the father did not agree to the mother’s proposals in early 2006. That would have lead to a relocation to E, the children being enrolled in schools in that area then having to be moved to Melbourne and to A Public school when the arrangements for the mother’s partner’s children changed so radically as a result of their mother’s move to Melbourne. I am however cognisant of the fact that had the parties’ children been well settled in schools at E, the mother’s partner may have taken a different position in the proceedings between he and his former wife in relation to her proposed move to Melbourne from E. Regrettably though I must conclude I could not be certain about this. I am left with a sense of concern that in the mother’s view of priorities her partner and his relationship with his children would be prioritised over any disruption to her children’s lives which a move from E to Melbourne could have.
The mother has indicated on occasions that she resents the intrusion of the father telephoning the children. She has described these phone calls in her emails as “harassment” by the father of her. I consider that there is a probability that the mother would restrict the children’s telephone communication with the father and would otherwise not encourage the children to speak to their father frequently, (daily if necessary) because she holds some view that this somehow interferes with the “family atmosphere” she wishes to achieve in Melbourne with her husband. If phone calls between the children and their father were perceived by the mother to somehow disrupt that atmosphere I think she would find it very difficult to give the children the clear message that she supported communication between the children and their father. In my view the mother would prioritise the children’s involvement with “the Melbourne family unit” to that of the promotion of their relationship with their father.
Of particular concern to the Family Consultant was the advancement and support of the younger daughter’s relationship with each of her parents. Given the younger daughter’s age and developmental stage it was clear that she will need help to make sure that her relationship with the absent parent is not damaged. The sensitivity of each parent to this matter will be of the upmost importance in ensuring the younger daughter can maintain and develop her relationship with the absent parent. Given all that has been outlined above and my assessment of the parties having seen them give their oral evidence and read their written evidence I have concerns that the mother could provide the means to adequately support the younger daughter through this difficult and crucial time of her development. I assess the father as being more in tune with this need and able to facilitate this very important relationship for the younger daughter than the mother. I assess him as having the steadiness of personality to be able to in most circumstance put aside the emotional issues between the parties and to put the best interests of the children ahead of his own interests where that is required. I have no confidence that the mother could do that with any regularity.
It is my assessment of the mother that she remains very angry and bitter about perceived actions of the father. I say perceived because she clearly sees herself as the victim in this relationship. That is she sees the father as harassing, manipulative, obstructive, bullying and uncompromising. I do not find that the evidence substantiates those conclusions in the main. There are certainly examples of behaviour of the father which could be described as uncompromising and disrespectful. I refer in particular to the invasion of the mother’s house by the father contrary to her wishes. I refer to the incident described as the lost ski holiday for the children in mid 2006, however, in the majority of examples of communication between the parties I find it is the mother who predominantly fills the tags of manipulative, obstructive, bullying and uncompromising rather than the father. Further I can clearly see the emergence of the father out of the upset and hurt that he obviously felt following the separation to a position where I am satisfied that he is able to see things through the children’s eyes and predominantly suggest courses of action which best suit their needs. There are exceptions to this and that is why I use the term predominantly. I do not find the mother has this ability. It seems to me that she has become more involved in the dispute between the parents since the separation and I find that predominantly she does not exhibit the ability to see how proposals of and actions by the parents impact on the children. I find she cannot identify with the children’s plight in the parental conflict and she is therefore unable to provide relief for them from the consequences of that conflict. I could not be confident that she has the ability to predominantly make decisions for the children which are based on their needs rather than her own.
I hold a concern that the mother will not allow the children to recover from this case. I think there is a significant prospect that she will through her actions and words seek to undermine the orders of the court and manipulate the children to ask their father to change their residence to the mother in Melbourne. It is my opinion that the mother will need a considerable amount of help from a therapeutic psychologist or therapeutic family psychiatrist to change from her current state. She is angry with the father for opposing her moving the children to Melbourne. She appears to have convinced herself that she is the victim in this family rather than the children and I think there is a significant prospect she will be vengeful against the father. If that be correct I conclude there must be a real chance she would blindly use the children as instruments in that vengeance all the time denying that she was.
This case to a significant extent turns on my assessment of the parent who is most likely to promote the relationship with the absent parent should it eventuate that the parents can’t each participate significantly in the children’s lives during school term. I have determined that the parent I would most trust with that task in this case is the father.
The Family Consultant pointed out in her report at paragraph 52 that the older two children have had to deal with a significant number of major changes in their lives over the last 5 years. The further changes which would be occasioned by the mother’s proposal are a change of residence to Melbourne, living with greater regularity with the mother’s partner’s children, a new school, seeing less of their father during school term, having to make new friends and joining new sporting associations and teams. In the father’s proposal the only significant change for the children will occur if and when the mother determines she can no longer attend to care for the children during school term as she does now.
The evidence of the father, particularly his oral evidence, impressed me as illustrating a greater insight to the needs of the children than the mother. He shows all the signs of having emotionally dealt with the breakdown of his marriage whilst acknowledging that it was difficult for him. He shows no sign of being vengeful or vindictive towards the mother or her partner. He does seem genuinely driven by a reasonably objective view of what is in the best interests of the children. He does appear to have the capacity to look at the children’s position in this dispute in an objective way and appreciate for them the nature and extent of their relationship with their mother and the likely impact on them of not having her to participate in their lives in the same way that she does now. He illustrates an understanding of the mother’s predicament and shows empathy for the mother. Although given a number of opportunities to be critical of the mother and show some antipathy towards her the father did not do so.
What flows from the above directly impacts of the children’s ability to maintain a meaningful relationship with the parent who will be less actively involved in the children’s daily care. In the younger daughter’s case, given her developmental stage, if she is to maintain her relationship with the less actively involved parent she will need frequent, positive reminders of that parent. Looking at each of the parents I conclude it is the father who will be best equipped to provide that positive image of the mother for the younger daughter. I am not confident that the mother would be able to convince the children that she does hold a positive view of the father. She clearly dislikes and probably detests the father. Given the close relationship the children have with her I think it probable they would know her views.
I find that the father’s proposals for the children’s future care are most likely of the parents competing proposals to best promote the children’s future emotional well being and their relationships with each of their parents. To that end it will ensure the children maintain a meaningful relationship with each parent.
At the conclusions of the submissions in this matter I said to the parties that the reasons for judgement which I will have to deliver in this case are likely to bring hurt and disappointment to at least one of the parties. I said that it is the nature of these types of cases that one of the parties will be bitterly disappointed.
I have been required to make a clear choice for the children because their parents were incapable of doing that for them. The reasons need to be clear and decisive. I have had to focus on differences in personalities and parenting styles of the parents. That has meant that I have had to draw contrasts between what each parent has to offer the children. I have had to make findings which I am sure will be hurtful to the mother and about which she will be resentful and no doubt, see most of the findings as unfair. These findings are necessary but also destructive in that they exacerbate parental conflict rather than resolve it. If parental conflict is exacerbated then that is very much contrary to the best interests of the children. The parents chose the adversarial path for the determination of this case. They could have chosen the less adversarial path. When the parents chose the adversarial path they unwittingly (I hope) condemned their children to the consequence of the negative impact of those proceedings on the parental relationship. I predict that the parental relationship in this case will take a long time to heal if it ever does. I suspect the mother will not easily accept the decision of the Court. I think it is possible that she will consciously or otherwise portray herself as the victim in this marital struggle to the children. If so the children will be likely to be hurt further. There must be a significant chance that they will come to blame themselves for their mother’s grief. The older two know that they made it clear to the Family Consultant they wanted to live in Sydney and they must have seen that as a vote for their father in this contest. The potential psychological scarring for these children of an ongoing dispute between their parents rather than an accepting of the situation and an attempt to move forward in a positive mood must be significant. I would recommend for the children’s sake that the mother seeks urgent supporting therapy to help her deal with this loss.
Before closing these reasons I wish to comment on the manner of the cross-examination by the mother’s counsel of the father and his witnesses in this case. Mr Schonell is a senior practitioner in the court and his cross-examination was one of the best I have seen for a long time for a variety of reasons. It was relevant, sensitive, productive and helpful. His professionalism was outstanding and deserves commending.
The Orders
The orders of the court cannot reflect an equal shared time parenting arrangement for the children which I determine to be in their best interests for practical reasons. The mother will be residing in Melbourne. She will provide her children with as much of her time as she can reasonably manage. In the short term she has committed to living in Sydney every second week for four nights in order to participate in their care during school term time. Realistically all I can do is order that the children live with her in Sydney during that time or for an extension to seven nights from Monday evening to the following Monday morning each alternate week if she is able to facilitate that.
As stated earlier there should be an order for equal shared parental responsibility for the children.
The children should spend additional time with their mother during school holidays. The proposal for the children to spend the bulk of the holidays at the end of terms 1 and 3 in each school year together with some of the Winter and summer holidays with their mother seems appropriate. This will enable them to catch up on lost time with their mother during school term.
The father should have eight days with the children during the mid year school holidays. This will enable a skiing holiday with him if that can be organised. It would permit the mother likewise to spend a skiing holiday with the children if she so chose.
There should be an equitable sharing of Christmas Day and birthdays.
There should be liberal telephone and e-mail communication between the children and the absent parent wherever the children are living at the time.
Orders should be made compelling the provision of information between the parents in relation to a number of aspects of the children’s lives.
Each parent should have free and unfettered right to attend any of the children’s activities and this should be encouraged and facilitate by each parent. Orders should be made to this effect.
There has been considerable conflict between the parents about the children’s extracurricular activities. The conflict has largely been about the son’s participation in Rugby. The mother holds the view that the son plays too much Rugby. In order to avoid further conflict the parties should agree in writing about the extra curricular activities the children should engage in during school term. I should say here that if the mother is not going to be able to spend a reasonable amount of time with the children on weekends during school term then she should not be unduly prescriptive as to the extracurricular activities the children engage in on weekends in Sydney and the father should have a reasonable say in those matters.
As referred to earlier I propose to make an order restraining the father from leaving the children unsupervised by an adult. Such supervision is to be physical to the extent that the supervisor must be in the same house as the children at the time of the supervision. This order should operate at least until each child has attained the age of 13 years. He should consult with the mother on this matter.
A matter which has caused conflict between the parties is the mother requiring her sister and others to supervise and care for the children during school term and on her Sunday evening when she remained in Melbourne. This should not occur in the future. If the mother is not available to be in Sydney with the children during school term then they should be in his care.
In the event of the mother not being available to exercise her time with the children during school term she should provide as much notice of same to the father as she reasonably can and then the children should be cared for by the father.
Each parent should be able to organise the children’s time during that parent’s time in school holidays. Consequently if a parent arranges for a child or the children to spend time with a relative or friend that should not be capable of being interfered with by the other parent. Accordingly there will be an order to this effect.
In the event of the father having to absent himself from Sydney during school term for any reason during the time he is to have the children in his care then he is to offer the mother the opportunity to care for the children in Sydney during that time before he makes other arrangements for their care.
There will be orders to facilitate a proper exchange of information about matters touching on the children’s health.
Orders need to be made to ensure each parent has the contact details for the children at all times.
The children should spend Mothers’ Day with the mother and Fathers’ Day with the father.
The parties should have the opportunity to share time with the children on Christmas Day and Boxing Day if the parents are both in Sydney for that time. They should negotiate this time having regard to where the children spent this time last year. In the event of a dispute I trust the father to determine it in the best interests of the children and with fairness between the parties. The children should not miss out because the parents cannot conclude an agreement about this time.
The parents should both be able to share time with the children on their birthdays.
I am required to consider what orders best meet the children’s best interests. In this regard I am required to not restrict myself to the orders sought by either of the parties. I have made some orders which were not particularly sought by either party. They do however, deal with issues which arose during the trial and are likely to be a problem for the children if no orders are made. One example of this relates to the children’s school weekend activities. There is evidence that while the mother has been living in Melbourne she took the girls out of their school early on Friday and kept them away from school until the following Tuesday. She did not have the father’s agreement to this course of action. The mother had obtained the school authorities consent to this action. This type of unilateral action potentially raises a problem for the children because their father was not consulted nor consented to that action. The children should not be dealt with in this way by either parent. The order I will make will cause the children not to be exposed to this type of situation in the future. It supports the children’s emotional well being because they will know such occasions have the support and consent of both parents.
I certify that the preceding three-hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
Associate:
Date: 15 May 2007
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SEALEY & ARCHER
- AGLC
- Sealey and Archer [2007] FamCA 432
- Case
- [2007] FamCA 432
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the children's primary residence, establishing a parenting schedule that facilitated meaningful relationships with both parents, and addressing the practicalities and emotional impacts of a potential relocation. The court was required to consider the children's views, their relationships with each parent and other significant individuals, and the capacity of each parent to foster the child's relationship with the other. Furthermore, the court had to assess the likely effect of any changes in the children's circumstances, including the practical difficulties and expenses associated with maintaining contact with a geographically distant parent.
Justice Le Poer Trench's reasoning was heavily influenced by the extensive evidence presented, including affidavits, oral testimony, and a Family Report. The court found that while both parents loved their children and had the capacity to meet their physical and intellectual needs, the father demonstrated a superior ability to provide for their emotional needs and shield them from parental conflict. The mother's emotional state, her perceived hostility towards the father, and her history of excluding him from important decisions were significant factors. The court noted the children's strong preference to remain in Sydney and their established routines and relationships there. Ultimately, the court concluded that the father's proposal was more likely to promote the children's best interests, particularly in ensuring their emotional well-being and maintaining their relationships with both parents.
Consequently, the court discharged the previous parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with the mother during specific periods of school terms and holidays, with the father having care at all other times. The orders also included provisions for liberal communication, parental involvement in school and extracurricular activities, and specific arrangements for holidays and birthdays, aiming to balance the parents' involvement while prioritising the children's stability and relationships.
Orders
Orders of the court
1.
The parenting orders of 6 July 2005 be discharged.
2.
Mr Archer (“the father”) and Mrs Archer (also known as Sealey) (“the mother”) have equal shared parental responsibility for their children:
(a) A son born in August 1995
(b) The elder daughter born in November 1997 and
(c) The younger daughter born in September 2001
(“the children”) and consequently the parties have joint responsibility in consultation with one another for making decisions for the long term care, welfare and development of the children.
3.
The children live with the mother at the following times:
(a) during school terms if the Mother so elects as follows:
(i) from Monday at the commencement of the school day to the conclusion of school the following Friday in each alternate week; and
(ii) upon seven days’ written notice, the children can continue to live with the mother in accordance with Order 3(a)(i) above until the following Monday at the commencement of the school day, or if a long weekend until the following Tuesday at the commencement of the school day.
(b) during school holidays as follows:
(i) for the duration of the terms one (1) and three (3) school holidays, commencing on the day immediately following the last school day and concluding at 6.00 pm three nights prior to the commencement of the next school term
(ii) during the term (2) school holidays for all but eight nights of the school holiday period with the father to select his eight nights at least 28 days prior to the holidays.
(iii) during Easter if it falls outside of a school holiday period commencing on the Thursday prior to Good Friday and concluding at 6.00 pm Easter Monday
(iv) during the December/January school holiday period commencing in December 2007 and each alternate year thereafter, from the day after the last day of school until 3.00 pm on Christmas Eve and from 9.00 am on 16 January until 9.00 am three days prior to the children returning to school
(v) during the December/January school holiday period commencing in 2008 and each alternate year thereafter, from the day after school concludes until 9.00 am 24 days prior to the first of the children returning to school
(vi) in the event that the mother and father are each in Sydney on Christmas/Boxing Day, then notwithstanding the provisions in order 3(b)(iv) and 3(b)(v) above, the children shall spend one half of such Christmas/Boxing Day period with the mother, being either from 12 noon on 24 December until 3.00 pm on 25 December or from 3.00 pm on 25 December until 6.00 pm on 26 December as may be agreed between the parties in particular having regard to which parent had the children with them for Christmas Eve in the previous year. In the event of a dispute the father is to decide.
(c) on Mother’s Day weekend from the conclusion of school Friday to 6.00 pm on Sunday or Monday morning if the mother is able to stay in Sydney on Sunday evening.
(d) on the children’s and the mother’s birthday, upon the mother providing the father with two (2) weeks’ notice that she is travelling to Sydney, then she may spend time with the children on any of their birthdays or the mother’s birthday as follows:
(i) if on a school day from after school to the commencement of school the following day
(ii) if on a weekend for a 24 hour period as agreed
(iii) or as agreed between the parties.
(e) at such other time as agreed between the parties.
4.
At all other times the children live with the father.
5.
In the event of the children being required by these orders to be otherwise in the care of the mother on Father’s Day then she is to ensure the children are returned to the Father on Saturday evening the day before and remain with him until 6.00 p.m. on Fathers’ Day.
6.
In the event of the children being in the care of the mother on any of their birthdays or the fathers’ birthday pursuant to other provisions of these orders then the mother is to ensure all the children spend two hours in their fathers care on those days at times nominated by him.
7.
The children have liberal telephone, email and web cam (subject to availability) communication with the mother and father at all reasonable times.
8.
In the event that any of the children are ill or injured, the parent with whom the child is residing on that day shall promptly notify the other parent.
9.
That the parties cooperate and consult with each other concerning the medical and dental treatment for the children.
10.
Each party shall do all things necessary to ensure that the other party is kept informed at all times of the residential telephone, email address and all other contact numbers and address of the other party.
11.
Each party shall keep the other informed of and not do anything to impede the attendance of the other parent at all events and activities in relation to the children’s school and extra-curricular activities in which each child is involved and to which parents are invited or would usually be expected to attend. Each party is at liberty to attend all such events. Further, each parent shall ensure that the other parent is provided with copies of school photographs, reports and school notes and otherwise shall keep the other informed of all school matters, functions, parent/teacher meetings, speech days, sporting events, carnivals and the like.
12.
During school term time each parent is to ensure that when the children are in their care the children attend upon the extra-curricular activities in which they are enrolled.
13.
During school term time each parent is to ensure that the children attend upon school organised weekend sporting and other activities in which the school expects them to participate unless both parents and the children’s school authorities agree that for a special occasion they should be excused from such participation.
14.
From the commencement of 2008 the children are not to engage in any extra-curricular activity which is not agreed to in writing (or email) by each of the parties. This is not to apply to activities sourced for the children by a parent during that parent’s time with the children in school holidays.
15.
Neither parent is to remove any of the children from school so that they are absent for any part of a school day for the purpose of spending time with that parent without the written consent of the other parent and the children’s school.
16.
The father is restrained from leaving any of the children unsupervised by an adult whilst the children are in his care until they attain the age of 13 years and thereafter he is to exercise his discretion and consult with the mother for her view in relation to whether any of the children require adult supervision at all times.
17.
The time which the mother exercises with the children in Sydney under these orders during school term is not to be delegated to another person other than for a few hours such as occasions when the mother attends a social function whilst she is in Sydney and arranges for the children to be cared for by a babysitter. If the mother is unable to attend Sydney for the purpose of spending her time or part thereof with the children then she is to give the father as much notice as possible and the parties are, at the option of the mother, to thereafter negotiate some make up time during some other part of that school term time.
18.
In the event of the father having to travel away from Sydney on any occasion during school term and thereby having to arrange for the children to be cared for in his absence then he is to offer the mother the opportunity to care for the children in Sydney during that time or any part thereof. The father is to give the mother as much notice as possible of any such occasion.
19.
During school holidays the parent who has the care of the children pursuant to these orders may arrange for the children to be cared for by a relative or other trusted adult at that parent’s discretion or alternatively may offer additional school holiday time to the other parent.
Notations:
A. The Court recommends that the parents forthwith agree upon a Community Based Organisation or specialist family therapist to engage with for the purpose of assisting them to form a cooperative and respectful parenting relationship and that they thereafter attend upon that organisation or person for that purpose.
FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: SYF 3395 of 2005
Ms Sealey
Applicant
And
Mr Archer
Respondent
REASONS FOR JUDGMENT
Introduction
1.
This case illustrates to me the very worst of impacts on a family of the adversarial system. This case has been fought hard and focused very much on the emotional battle between the parents rather than dealing with the best interests of the children. This hearing may well have served the needs of the parents to attack each other over the breakdown of their marriage but it could not in any fashion be said to have been in the children’s best interests. The parents have determined the manner in which the case has been heard (as is their right under the adversarial system) notwithstanding my requests for a different approach. The best part of the first day of the hearing was spent dealing with the objections to the affidavit material of the parties. The affidavit material was voluminous. The mother’s principal affidavit is 60 pages with 304 paragraphs. There is a volume of exhibits to the affidavit. That volume is about 35mm thick. Her update affidavit is 10 pages with 46 pages of annexure. The father’s affidavit is 57 pages long with 124 paragraphs. There are 155 pages of annexures to that affidavit. His update affidavit is 13 pages with about 40 to 60 pages of exhibits. Many parts of the affidavit material were objected to and either not read or alternatively were struck out. The cost to the parties has been immense. Since the commencement of these proceedings in December 2005 the mother has incurred and partly paid costs of $123,000. The father has incurred and partly paid costs of $96,550.
2.
My request for the Family Consultant to give her oral evidence as the first witness in the hearing was objected to and although I pressed for this procedure it was ultimately defeated because of a refusal by counsel to ask any questions at that time. I make it clear that my criticism here is not of the lawyers as they do nothing more than represent their clients, on instructions, in an adversarial system. My criticism is of the system which the court and the Act has now discarded as not serving the best interests of children.
3.
Because the parties lawyers have a responsibility and obligation to explain to their respective clients that there is and was the opportunity to consent to the case being heard under Division 12A of the amended Act or, prior to 1 July 2006, in Sydney, the ability to consent to participate in the Children’s Cases Program, and to have advised their clients that such a process would be quicker and cheaper for their clients, I must assume that one or both of the parties rejected that option.
4.
The parents were given a clear message by their children through the means of the Family Report. They have chosen to ignore that message. The message is found in paragraph 42 of the Family Report where the son says his mother and her partner need to “cool down” and that his father needs to learn to “make better compromises”. In paragraph 44 the elder daughter wishes for her parents to reconcile and if that is not possible then they should be “nice to one another”.
5.
Each of the parents and the mother’s partner were able to identify the elder daughter as the most vulnerable of the children to the parental conflict. The son and the elder daughter each identify strongly with their physical environment in Sydney and do not wish to move.
Introduction to the Issues in this Case
6.
The son (aged 11), the elder daughter (aged 9) and younger daughter (aged 5) are the children of the father and the mother. In July 2005 they settled their property and children’s matters by signing terms of settlement for final orders. The orders provided for a shared time parenting arrangement for the care of the children. The children were to spend marginally more time with the mother than the father. To me it looked like a good working arrangement for the children. It enabled the children to have each of their parents participating in almost every aspect of their lives. The property settlement saw the father retain the former matrimonial home and the mother paid a substantial sum of money.
7.
Following the separation of the parties in October or November 2004 the mother entered into a relationship with her partner. He is a resident of Victoria and has three children of his own. By December 2005 the relationship between the mother and her partner had developed to a point where the mother decided she would like to move with the children to E in Victoria to live with her partner. It was consequent upon that decision that she in December 2005 commenced these proceedings. Since that time the mother and her partner have been married. Their plans to live in E have changed because the mother’s partner’s former wife decided to move from E to Melbourne. Following proceedings in the Melbourne Registry of this Court agreement was reached which saw the mother’s partner consent to the move and new orders were made that see him spending equal time with the children’s mother caring for his children.
8.
Each of the parents in this case professes a desire to have the other significantly involved in the children’s lives. Each acknowledges that the other loves the children and that the children love each parent.
9.
The parents have a poor capacity to communicate face to face and their communication has been principally confined to e-mail or text messages. Each counsel for the parties has acknowledged actions on behalf of their client in the lead up to the hearing which do not reflect well on that parent.
10.
It is trite to say that this case poses a difficult decision for the Court. Whatever the result the children will have to live with at least one of their parents being very dissatisfied with the result for a considerable period of time. There is the spectre that the parent who regards him or herself as the looser in this case will never give up the fight and will continue to undermine the orders of the Court and the settled nature of the residence with the other parent. The only way this might be avoided is if each parent comes to understand the emotional damage and scarring which will be inflicted on the children by continued parental conflict. To that end I asked the Family Consultant to paint the future picture for the children’s emotional development to the parties while they were in Court. Whether that information might help these children will largely depend upon the parent’s individual resolve to save their children from the appalling circumstance they now find themselves in.
11.
Each of the parents is a highly intelligent, articulate person who in my assessment has the capacity to make a change in their parenting relationship for the benefit of the children and spare them further anguish and misery which they have surely suffered as a result of their parents’ marriage breaking down. The question is whether they each have the resolve and courage to do so.
The Issues
12.
There were very few factual issues between the parties. The principal issue is which parent has the best proposal for the children’s future care? Which parent is best able to ensure the children continue to have a good and close relationship with the other parent? Which parent is best in tune with the children’s emotional needs? Which parent is best able to prioritise the children’s and the parents’ needs so that the children’s needs are placed first? What orders should be made to serve the best interests of the children?
13.
The decision will necessarily see the children living in either Sydney or Melbourne. For a variety of reason which will be dealt with in these reasons the children will during school term necessarily see less of one parent than the other. Additional holiday time will be provided for the children to spend with the non residence parent and to some extent the children will have an opportunity to catch up with that parent. It must be acknowledged that the children’s lives will change from the present and on any view for the children not to be able to have their care shared equally, or almost equally, between their parents will see them the losers in the long run.
14.
In the hearing of the case I was not asked to determine the Rice and Asplund (see the decision in Rice and Asplund (1979) FLC 90-725) issue. That is, given the orders made on 6 July 2005 were final orders, is there a change of circumstance which would warrant the Court rehearing the question of the children’s residence. Where an application to radically change the circumstance of the children’s residence and care within six months of final orders being made is instituted in the Court it is a common feature to see a challenge to the application being heard at all.
15.
The approach of the father in this case in not pursuing such an application I commend and for his comfort say that in my opinion there is sufficient change of circumstances in the mother’s case to warrant the Court further hearing and determining the residence of the children.
16.
One of the issues raised by the mother is that she has been the primary care giver of the children to this point in time and consequently if that role were to become the father’s by dint of the orders of the Court would the children cope well with such a change? I will deal with this issue, as with the others identified, in these reasons.
Background Facts
17.
The parties married in March 1994. They separated under the one roof in late October or November 2004. In November 2004 the mother left the former matrimonial home and took up residence in a rental property at G.
18.
The parties have three children: a son born in August 1995; an elder daughter born in November 1997; and a younger daughter born in September 2001.
19.
In August 1996 the parties moved from Sydney to Auckland pursuing work for the father. They returned to Australia in June 2001 and purchased a property at B.
20.
In July 2001 the son commenced attending school at D Public School.
21.
In September 2001 the mother was diagnosed with acute myeloid leukaemia. In that same month, as a result of that diagnosis, the younger daughter’s birth was induced and she was born two months’ premature by way of caesarean. The younger daughter remained in hospital until December 2001. The mother was in hospital for a considerable period of time undertaking chemotherapy and other treatment.
22.
In April 2002 the parties moved with their children to the former matrimonial home at F.
23.
In October 2002 the mother purchased with her sister, A, a business “[Q business]” and commenced to work part time in that business.
24.
In early 2003 the parties employed an au pair, Ms D, for two days a week.
25.
In March 2004 the father purchased his current business “[Z Company]”.
26.
In October 2004 the parties separately attended a self-development course in Victoria. Whilst at that course the mother met her partner for the first time.
27.
On 6 July 2005 the parties entered into consent orders regarding parenting, property and child support matters. A binding financial agreement in relation to spouse maintenance was also entered into.
28.
On 16 January 2006 the father made an application to the court seeking orders regarding the children attending private schools. This application was opposed by the mother. On 31 January orders were made by Judicial Registrar Johnston for the son to attend S College from 1 February 2006 and the elder daughter to attend X School from 1 February 2006. The younger daughter was to attend X school from 1 February 2007.
29.
In June 2006 the mother and her partner purchased a property at E in Victoria. In July of that year the mother and her partner became engaged and were married in September 2006 in Victoria.
30.
In December 2006 the mother’s partner entered into final consent orders with his former spouse. Amongst the orders made, by consent, was a notation that the father (the mother’s partner) would not seek to relocate to New South Wales. The effect of the orders requires the mother’s partner to remain living in eastern and south-east suburbs of Melbourne. His children live with him on the basis of equal time.
31.
In February 2007 the mother and the mother’s partner moved residence to T, a suburb of Melbourne.
32.
In February 2007 the mother commenced attending on Ms R, a psychologist practicing in the eastern suburbs of Sydney.
33.
In March 2007 the mother moved from her rented premises in Sydney into a unit at P owned by her mother. The mother is required to pay a rental to her mother but it is less than the rental which she paid on the premises occupied by her prior to the change.
Matters arising from the Mother’s affidavit evidence
34.
Paragraphs 15 through to 63 deal with the heading, “Care of the children during my marriage to [the father]”. These paragraphs largely go to support the contention of the mother that she has been the primary caregiver for the children to the point of separation. This is a matter which is conceded in the affidavit of the father. One matter which is referred to in this section is the period of time that the mother spent in hospital following her diagnosis of acute myeloid leukaemia. During the period September 2001 until December 2001 the mother had three courses of chemotherapy. During each course she resided in hospital. The first course required her to remain in hospital for two weeks. It is not clear from the mother’s affidavit exactly how long she was in hospital during this period. It was during this time that the father says he became more involved in the care of the children. It is not entirely clear to me from the mother’s affidavit if the father’s contention is conceded.
35.
The parties agreed in about November 2004 for the mother to leave the former matrimonial home, after being provided with $20,000 and relocate to rental premises. They further agreed that they would then share the care of the children with the children residing with the father six nights each fortnight. The mother thereafter moved to the premises at G.
36.
Following the orders entered into between the parties in July of 2005 the parties shared the care of the children with the mother being responsible for seven out of every ten school day afternoons a fortnight to care for the children. The children lived with the mother eight out of every fourteen nights.
37.
The mother concedes that the children have since the separation continued to have a strong relationship with the father and also herself. Following the separation the father spoke to the children by phone once or twice a day when they were in the mother’s care. The mother objected to this however permitted it. After about twelve months following the separation the father reduced the frequency with which he spoke to the children by telephone when they were in their mother’s care and now speaks to them approximately once a week when they are with their mother.
38.
In March 2005 the mother emailed to the father her “house rules”. It seems that the father has adopted similar house rules while the children are in his care.
39.
Following the separation the son exhibited some behavioural problems. He spoke to a counsellor at school. By March 2005 the report from the counsellor indicated the son’s behaviour as having settled down.
40.
It is a complaint of the mother’s that the father is over involved in the son’s life to the exclusion of the other two children. In her affidavit the mother sets out complaints which she says were made to her by the elder daughter in this regard.
41.
The mother complains in paragraph 142 of her affidavit that on Sunday,
23 October 2005 the father refused to drop the children at her G home in accordance with Order 3.2 of the July 2005 orders. The mother said that she had arranged for her sister A to spend the night at the G home and care for the children whilst the mother spent an additional night in Melbourne. The mother rang the father when she received a call from her sister A advising the children had not been returned. The mother recites a conversation with the father where he asserted that he had sent her a text message advising that he would be keeping the children as she was not available to care for them. The mother apparently was at the movies and did not receive the text message. The mother thereafter caused her solicitors to write a letter of protest to the father which was exhibited to her affidavit. The mother complained that the father uses au pairs/babysitters to care for the children when he is not available and accordingly it was unfair for him not to deliver the children to her sister at the conclusion of his time with the children on that particular occasion.
42.
During the course of the hearing the orders made on 6 July 2005 were looked at in some detail. Those orders provide, inter alia, in paragraphs 4.4 and 7.2 for notice to be given in the event of either parent being unable to care for the children in certain specific circumstances. The intention appears to be clearly that if either parent has to rely on other people to supervise or care for the children for other than a short period of time then the other parent should be offered the opportunity to care for the children during that time.
43.
The mother complains in her affidavit that the father entered her house uninvited by her on a number of occasions during 2005. She required that he not enter the home. This was the case even if the father was invited by one of the children. The mother sets out in paragraph 156 of her affidavit that her lawyers advised her to contact the police should the father continue to enter the house uninvited. Annexed to the mother’s affidavit and marked as Exhibit “DLS22” is a letter dated 9 February 2006 from the mother’s solicitor to the father’s solicitor. This letter dealt with a dispute between the parties about the son not being made available to play school sport whilst he was in his mother’s care. The father took the view that this was a breach of the court orders. The letter complains further that the mother accuses the father of making arrangements for the elder daughter whilst the elder daughter is in the mother’s care. Finally the letter complains of the father entering the mother’s house on 6 February 2006 and walking through to the bathroom. The letter then advises that if there is a reoccurrence of such an invasion of the mother’s privacy she will “contact the police for his trespass into her property.” It is clear from the letter that the mother had accepted the advice of the solicitors and proposed to make a complaint to the police should the father enter her premises in a manner which she regarded as uninvited. I am pleased to say that nothing was raised in evidence to suggest that any complaint was in fact ever made by the mother to the police.
44.
Whereas it is clear that the mother’s privacy should not at any time be invaded by the father and that he should never enter her premises uninvited, the implications for the children of the mother instigating action with the police against their father is very significant. There is nothing in the mother’s affidavit or in her oral evidence to indicate that she had any understanding of the implication of making the threat which she did through her solicitor’s letter referred to in annexure “DLS22”. It seemed to be a threat made as a result of her being exasperated by the father’s alleged constant refusal to comply with her requests not to enter her premises. The mother says that even following the lawyer’s letter the father did continue to enter the property uninvited. The mother complained that the father continued to attend at her front door when he returned the children or on other occasions associated with the children. In an email dated 16 May 2006 the mother in very strong terms told the father that he was not to come to her front door. She complains that he continued to deliver the children to the front door until July 2006 when he ceased doing so.
45.
In paragraph 163 of her affidavit the mother says she can no longer talk to the father. She says that over the two previous years she has heard the father constantly say to her words such as “you are selfish”, “You never put the children first.” There are other statements attributed to the father. By March 2006 the mother requested the father not to speak to her on the phone or in person and to keep all communication to a minimum and via email only. The mother says she continues to find the father’s emails offensive and harassing. She says that from August 2005 through to 26 July 2006 there have been numerous emails between the parties and she sets out in paragraph 165 the numbers of emails.
46.
The mother and father have a fundamental difference on the approach to the son playing rugby union. The mother holds the view that the son plays too much rugby.
47.
This difference came to a head in early 2006. On 14 February 2006 the father advised the mother by email that W team’s registration was opening. The mother did not agree to the son being involved in the W team and spoke to both the son and the father about her view that he played too much rugby. The son was caught between the parents in this dispute and complained to his mother that his father told him that she was the reason why he could not play. Finally the parties had a meeting on 29 March 2006 with the father’s parents in relation to the issue. The father said that if the mother won’t let the son play then he can’t play. The issue continued to boil on and eventually the mother agreed to the son playing additional football with the W team on conditions that she stipulated and set out in paragraph 173. The father supported those conditions and the son was able to play football.
48.
On 13 April 2006 the mother confirmed by email that she would not share the expenses of the W rugby as it was not an agreed expense and she then set out in paragraph 176 the content of some of that email. The wording of the email is in my opinion very inflammatory and accusing. She said, inter alia, “I do not trust you to act in a mature and sensible manner. I also do not trust you to act in the best interest of the children.” Later in the email she says as follows:
“I have allowed [the son] to play [W] even though I have serious reservations about too much rugby et cetera. I offered this compromise in good faith, in a bid to improve our relationship. I am just waiting now to see if you truly have any intentions of trying to act in a co-operative manner or once again you just say the words but do nothing.”
In paragraph 178 of the mother’s affidavit she sets out an extract from the father’s reply which on my observation appears to be a conciliatory and appropriate response. The wording of the mother’s original email may well have in other circumstances provoked a more acrimonious response.
49.
Notwithstanding the response from the father as above referred to the mother sets out in paragraph 181 of her affidavit a further reply to that email. In my view the reply is attacking, provoking and detrimental to any co-operative parenting between the parties. Included in this reply are the following words:
“[Father] please show me where you have in any way contributed to any form of compromise in this current situation. [The son] is well aware that at no stage have you offered me any form of compromise”
…
“He has a clear understanding that you have no intention of trying to sort out the situation unless you get it all your way.”
“This behaviour is commonly known as bullying.”
“Be under no misunderstanding [the son] is completely aware that you flatly refuse to co-operate on any level and that once again I have been severely disappointed because you have been unable to be man enough to actually negotiate a fair deal.”
…
“I know my compromise is fair, I am just wondering where your compromise is? Will this ever end or are you just determined to make me pay for leaving you for the rest of my life? We all wonder when you will grow up and take responsibility for your own actions? We guess not in the foreseeable future.”
50.
When I read that email I see evidence of a very angry person. The reference towards the end of the email to “we” does not specify who constitutes the “we”. On one reading it includes the mother and the children but given the history of the case might well be reference to the mother and her partner, Mr M, or some other persons.
51.
At paragraph 186 of the mother’s affidavit she commences to set out the events which occurred in June and July 2006. At that time the mother said that she found out from the younger daughter that she was not going skiing with her siblings but rather going to Y with her Granny and D. Having ascertained this the mother then drew on Order 7.2 of the July 2005 orders and requested that the younger daughter be made available to her during holiday period. The mother seeks to justify her action by saying in her affidavit:
“It would have been a very special time for [the younger daughter] and I to spend together as a mother and daughter as at no other time have we had such time together without [the two elder children].”
52.
The mother caused her solicitors to write to the father’s solicitors on 5 July 2006. That letter is annexure “DLS29” to the mother’s affidavit. The opening paragraph is:
“It has come to the mother’s attention that the father is intending to not take [the younger daughter] with him skiing but have her minded by the paternal grandparents at [Y].”
The letter goes on to threaten the father that if he does go ahead and have the younger daughter cared for by her grandparents rather than himself during the holiday the mother proposes to take the matter further.
53.
The father’s solicitors replied by letter dated 6 July 2006. In that letter they pointed out that this was not a circumstance where the younger daughter was being cared for by someone other than the father because he was not capable of caring for her at the time but rather that it was his intention to facilitate the younger daughter enjoying a holiday with her grandparents and cousins in Y. The letter advises the mother that if she indicates an objection to the holiday as planned then the father will change the holiday plans. The letter points out an accusation by the father that the mother has breached the orders on numerous occasions and in particular Order 4.4 without action being taken by the father. The letter required an answer by 12 noon on 7 July 2006.
54.
A letter was sent by the mother’s solicitors to the father’s solicitors on 7 July 2006. In that letter the mother acknowledged that the two elder children were very much looking forward to a skiing holiday. She said that she had “no problem” with the paternal grandparents caring for any or all of the children at different times when appropriate.
55.
The following paragraphs appear in the mother’s affidavit and also the letter:
“If the husband is prepared to communicate his wishes then the mother is more than willing to try and work in with the husband’s holiday arrangements however, the mother also feels that this would be a special opportunity for the mother and daughter [younger] (4) to spend some quality one on one time together, while the other children are enjoying time with their father.
She is also extremely upset that the husband is willing to cancel all the children’s plans just to ensure that he does not have to give the mother the option of caring for [the younger daughter]. Clearly these changes of arrangements that inevitably will cause enormous stress to all the children, are a direct result of the mother’s request that he merely comply with the orders that he clearly admits that he has chosen to ignore.”
56.
Following that exchange the father sent an email to the mother outlining his travel proposals and offering for the younger daughter to stay with the mother until Monday when his parents will take her to Y. He also then offered that his parents on return from Y would provide the younger daughter to the mother for Friday and that upon the father’s return on Saturday afternoon he would collect the younger daughter from the mother.
57.
In paragraph 191 of her affidavit the mother said she replied on that day “with a compromise” which was that she would take the younger daughter to Melbourne with her until Tuesday and then the younger daughter would spend from Tuesday to Friday with her grandparents in Y. The mother sent three text messages requesting a response and at 3.30 pm on that day telephoned the father and said, “Go and read your email now and ring me back”. The father replied with a message about having people for a barbeque. On 8 July the father emailed the mother advising as follows:
“Given the legal position that you have taken on this I am left with no choice but to cancel the ski holiday unless you agree to the plans I outlined.”
58.
In paragraph 193 of her affidavit the mother sets out her reply which she sent on 8 July. Again that reply as recited in the mother’s affidavit contained what I would describe as inflammatory statements such as, “I find it incredible”, “I will not be bullied or blackmailed by you.”
59.
The father replied. In that reply he changed the plans so that he was able to care for the younger daughter until Tuesday and then advised that the younger daughter would be with “[N] and [I]” for the period Tuesday through to Friday. There were exchanges of emails on 10 July 2006 the last of which being at 4.34 pm to the mother from the father as follows:
“Dear [Mother], for the sake of clarity I have asked if I can take [the two elder children] skiing and have [the younger daughter] stay with her cousins for Tuesday, Wednesday and Thursday and be returned to you on Friday afternoon at a time that suits you.
If you do not agree I will not go skiing and will stay with all three children. As such [the younger daughter] will be with me on Friday and I will return all the children at 6.00 pm next Monday.
I am truly sorry that this has reached this point. I only ever wanted to give the kids a fun holiday. Regards [the father].”
60.
As best I can see from the mother’s affidavit and from the annexures that email was never replied to. Paragraph 195 and 196 of the mother’s affidavit sets out what happened thereafter. It is as follows:
“On 11 July 2006 I received a telephone call from [the elder daughter] who was now in [Y] spending time with [the father] for the school holidays. She sounded very distressed and I could hear her sobbing in the telephone and saying words to the effect ‘Mum why can’t we go skiing?’ I replied words to the effect ‘I don’t know, it’s your Dad’s decision. When you are with Dad it’s his decision.’ I also spoke with [the son] during this phone call and he said words to the effect ‘Dad said that he would get in trouble from you if he takes us skiing’. I replied words to the effect ‘[Son] you know it is Dad’s decision. I can’t make Dad do anything when you are with him. It is his decision and when you are with me it is my decision.’ [The son] was also very upset about missing out on his skiing holiday.”
61.
In my opinion this incident demonstrates the very worst of parenting by each of the mother and father. Ultimately it is my view that the request made by the father on 10 July 2006 by email to be able to take the children skiing and have the younger daughter stay with his relatives in Y was a reasonable request. That request was not replied to by the mother in the affirmative and consequently the children did not go skiing. I have no doubt that the younger daughter would have enjoyed her time with her cousins in Y as is effectively acknowledged by the mother in her affidavit material where she acknowledged that she had no objection to the children spending time with those relatives in Y. It also appears from the mother’s affidavit that her stated plan to “spend some quality one on one time together” with the younger daughter actually involved the younger daughter spending time with the mother in Melbourne with her husband. Thus the one on one time was to be two on one time with the mother and her partner.
62.
The last part of the above mentioned references from the mother’s affidavit illustrate to me that each of the parents had endeavoured to convince the children that their lost skiing holiday was the other parent’s fault when clearly each of the parents had contributed to the circumstances which led to the children’s disappointment.
63.
At paragraph 204 the mother complains that the father has breached court orders in that he has refused to return the children to “[A’s] care when I was not available on Sunday evenings to collect the children as I was in Melbourne and had arranged for my sister to be available for the children.” The mother acknowledged in paragraph 204 that the father had in November 2005 through an email stated a preference to look after the children on Sunday nights if the mother was not available.
64.
The mother then sought to have an agreement reached where the father would change his Wednesday night to every second Sunday night. Her exact proposal was contained in an email dated 22 February 2006 which was for the father to swap his Wednesday afternoon and night for the mother’s Thursday afternoon and her Sunday night. She says that this was an exact exchange in terms of time. This dispute festered on for a considerable period of time. The father concluded by not agreeing to a change of time however he requested that he be able to care for the children in lieu of the mother’s sister on Sunday evenings when she was unable to return to Melbourne on time. No agreement was reached and as far as I can see on the evidence the children continued to be cared for from time to time on Sunday evenings by the mother’s sister, or friends which would appear to be directly contrary to the position being promoted by the mother in the argument about the children’s ski holiday with their father and the time that the younger daughter should spend with her mother. As I understand the position being put by the mother on that occasion it was that she was available to care for the younger daughter it would have been a good time for she and the younger daughter to have together.
65.
As far as I can see from this issue there probably is no doubt that the children would enjoy occasionally the opportunity to spend some time with their Aunt A. However, given that the father was available to care for the children on Sunday nights when the mother was not, because she chose to remain in Melbourne an additional night, it is hard to fathom the logic of why it was in the children’s best interests that their aunt should be caring for them rather than their father.
66.
In paragraphs 209 through to 215 the mother sets out matters relating to the relationship between her husband, Mr M, and the father, and between her husband and the children. On 29 May 2005 the father first met the mother’s partner. The mother in her affidavit does not refer to any action on her part to introduce the two men. She says that at a changeover on that day the father brought the children to her house at G. She says, “In doing so he met [her partner] as he was also at the [G] home.” What the mother does not say is that she played no active part in introducing the two. The father’s affidavit gives details of the meeting and he was not challenged about his evidence on this point. On the father’s evidence he was somewhat surprised by [the mother’s partner] approaching him and introducing himself. The father sets out the interaction between the two men on that occasion which was less than cordial. In my opinion a reasonable and objective view of the circumstances at that time would have led the mother to conclude that the meeting between the mother’s partner and the father in the circumstances in which it took place was likely to be less than cordial. The children were present on that occasion and indeed the mother’s affidavit recites the fact that the son reported to her that, “Dad and [the mother’s partner] talking outside”.
67.
In an email to the mother on 30 May 2005 the father set out, in my opinion, a perfectly appropriate email about the meeting between the two men. In her response to his email which she sent on 31 May 2005 the mother has interlined her own comments and replies. In the second paragraph she says this:
“I felt that it was appropriate for [the mother’s husband] to introduce himself in an adult manner considering the circumstances.”
By including those words it is clear that the mother orchestrated the meeting between the father and [her partner]. In arranging that meeting in a way which did not see her introduce him to the father in the absence of the children she has, in my opinion, demonstrated very poor insight. It should have been reasonably anticipated by her, given the emotions which had been expressed to her by the father to that point of time, that he would be most unhappy about meeting the mother’s partner in those circumstances. She should reasonably have predicted that there may have been strong words pass between the two men and that to allow the children to be proximate to such an interchange would have been damaging to them.
68.
The father had asked the mother to not have the mother’s partner turn up to watch the children’s games on the weekends when they were with the father and the mother was not accompanying her partner to watch those games. The mother’s reply to that request was, “that is your opinion not mine.”
69.
In the last paragraph of the email from the father he said this:
“[Mother], my focus remains to do what I think is best for the kids. The less we have to do with each other the better but this is overridden by anything that involves the kids. In this regard it would be better if our joint interaction with the kids be it sport or school events be done without partners at this time. Again, in time I would expect that this will change.”
The mother’s response was:
“[Father], my focus has always been on the kids since they were born. I feel very strongly about this and I most certainly do not agree. It is very important that the kids feel comfortable around all people involved in their lives and there should not be any discrimination in this area. Kids do not need to know about conflict between their parents.”
70.
Again this seems to me to be a resolve by the mother to have her partner involved in every aspect of the children’s lives including aspects that did not directly involve her, such as his attending sporting functions of the children which the mother herself did not attend. It seems to me that this was a determination that was driven by her own desires and her own needs rather than the needs of the children. It is hard to see how it benefits the children to have her partner attend at sporting functions where the mother was not attending and where the children were in the care of the father on that particular occasion knowing that at that time his attendance was likely to be disturbing to the father and consequently impact on the way in which he could at that time and would at that time be interacting with the children. In my view this demonstrated a lack of insight which the mother had as to the impact on her children of her insistence that her partner be involved in the children’s lives to that level.
71.
In paragraphs 229 through to paragraph 296 the mother sets out in her affidavit details of her marriage to her partner and proposals to relocate to reside in E, Victoria. The mother’s affidavit was sworn on 5 October 2006 and by the end of 2006 her proposal to reside in E had changed because her partner’s circumstances had changed. The mother and her partner met in October 2004 at a self-development course in Victoria. This was the course that each of the mother and father attended individually on the recommendation of their therapist who they were working with in Sydney in respect of their marital relationship. At the time of the swearing of the affidavit the mother’s partner had three children who were J age 9, S age 7 and M age 5. Those children were living at E near Melbourne in Victoria where each of the mother’s partner and his former wife resided.
72.
In paragraph 249 the mother recites a conversation between herself and her partner. The conversation is built on the presumption that the mother could relocate the children to E at her will. In June 2006 the mother and her partner found a house at E which they decided to purchase. They acquired the property. The property had a delayed settlement until December 2006.
73.
During the school holidays in July and September 2006 the mother took the children to stay at E in the new home. She said she observed the children had a fantastic time at that home. She said that she had observed the children have adjusted to the routine in the home at E and that she and her partner had resolved to enforce the same house rules for their children. The mother said that when the children have been staying with her in her G house they have complained of being bored. She said that there was no complaint of being bored while the children stayed with her in E.
74.
In July 2006 the mother’s partner proposed marriage to the mother. In paragraphs 264 through to 269 the mother sets out her conversations with the children in respect of her re-marriage. The elder daughter’s immediate response to the news was, “does this mean we will move to Melbourne?” The mother said she replied, “I’m not sure yet but things will change probably not until next year.” The elder daughter then asked, “What about Dad?” The mother says that the elder daughter responded to the initial announcement with excitement.
75.
When the mother told the son of her news about marrying her partner he asked the same question as his sister, “Are we moving to Melbourne?” The mother told him, “I don’t know yet. Dad and I have to work that out.” The son replied, “I don’t want to go.” In that conversation the mother told the son, “Your opinion matters to me [son], and it is really important that you keep talking to me so that I know what is going on in your head.” The mother recites further conversations with the son about the possible move to Melbourne. The mother has discussed with the children schools which the children could possibly attend close to E.
76.
The mother reports that the younger daughter was excited about the move to Victoria.
77.
As part of her proposal to move the children to E the mother investigated schools. She said in paragraph 273 the children have secured places at four schools. When the father ascertained that the mother was speaking to the children about schooling and was enrolling them in schools he protested.
78.
The mother complained that she and the father have not been able to agree to attend mediation to discuss options for the children’s time with each parent should the mother relocate to Victoria. In paragraph 276 of her affidavit she points out that her lawyer proposed mediation to explore these avenues. A copy of the letter sent by her lawyer to the father’s lawyer dated 15 August 2006 was annexed.
79.
In paragraph 277 the mother says as follows:
“Under cover of letter dated the 4th September 2006 [the father’s] lawyer advised that a mediation based on my proposal was unacceptable to [the father]. Exhibited and marked DLS50 is a copy of the correspondence from [the father’s] lawyers dated 4 September 2006.”
80.
An examination of Exhibit DLS49 to the mother’s affidavit shows the following paragraph as the second paragraph in the letter:
“Our client would like to attend mediation provided that the focus of the mediation is to address issues of the husband’s time with the children in the event that our client relocates to Melbourne with the children.”
81.
In Exhibit DLS50 the second paragraph of the letter from the father’s solicitor to the mother’s solicitor is as follows:
“Your client’s proposal to limit the terms upon which a mediation should occur is not appropriate.”
82.
In my opinion it was perfectly appropriate for the father to reject the mother’s conditional offer of mediation. There seems to have been no other attempt, which is referred to in the affidavit material, to mediate these issues.
83.
The mother in her affidavit says that if she moves to Melbourne she will be able to be available full-time to care for the children.
84.
In paragraph 295 the mother says that she has found the past two years of splitting her life between New South Wales and Victoria as difficult and stressful. She said, “I am happiest when I am with my children, [my partner] and his children at the [E] home.” In paragraph 296 she said, “When I am with [my partner] I feel emotionally secure and relaxed”.
85.
In her second affidavit filed on 26 March 2007 the mother annexed a copy of orders entered into between her partner and his former wife in respect of their children on 21 December 2006. These orders provided for the mother’s partner’s three children to attend O Primary School from the commencement of the 2007 school year until such time as they complete their primary schooling. The orders envisaged that the mother’s partner would relocate his residence within reasonable proximity of O Primary School. The orders noted as follows, “The husband has no intention of seeking a relocation to Sydney with the children.” Also annexed to those orders were earlier orders made 14 February 2006. Those orders provided for the children to live with the mother’s partner from Tuesday after school until Wednesday after school in one week and from Friday after school until Monday after school in the following week. The children were to spend some school holiday periods with the mother’s partner as well.
86.
The effect of the orders entered into by the mother’s partner on 21 December 2006 was to cause the mother in these proceedings to change her proposal from one where she was living at E to one where she will be living in T, a suburb of Melbourne. A consequence of this move is that the children have been told in considerable detail of the proposal to live at E, have been taken to see schools, have been informed of enrolments being sought for schools for them to attend and otherwise psychologically prepared by the mother for a life in E. The children now have been told by their mother that the E proposal is not to proceed and that they will now live with her in T and will attend O Primary School. The T property has been rented and the mother and her partner have rented out the E property. It appears from her oral evidence that it is anticipated the E property may be difficult to sell. It is reasonable to predict that the mother and her partner will probably sell the E property and look to buy a property in Melbourne in reasonably close proximity to where the mother’s partner’s children live with their mother.
87.
In March of 2007 the mother left her property at G which had been rented and moved into her mother’s apartment at P. This is a three-bedroom accommodation and has been accommodating the children and the mother since that time. The rent on the P property from the mother’s mother is considerably less than that which the mother was paying for the G property. In lieu of rent for a period of eleven weeks the mother spent some $5,500 in renovations to the kitchen of the unit.
88.
The mother in this affidavit also set out that she had been attending upon a clinical psychologist, Ms R. The mother said that following spending six weeks with her husband in Melbourne over the Christmas school holiday period and then returning to Sydney in January 2007 she became very distressed. She said that when in Melbourne she felt close and secure in her relationship with her husband and the children were happy. The mother says that she regards living in Sydney as living in a hostile environment. She said she felt uncomfortable in Sydney, uncomfortable in the schools that the children attend and at the local shops and even where she works in R. No explanation for the uncomfortable feeling in those environments was provided by the mother but I interpret, I think fairly, that it is reactive to the poor relationship she enjoys with the father in these proceedings.
89.
In paragraph 37 the mother says that by the time her initial appointment with Ms R in February 2007 came about she felt overwhelmed by her current family situation. She felt at the brink of an emotional breakdown:
“The enormity of the long term implications of not being able to live with [my partner] has completely overwhelmed me as well as the day to day separation and isolation I am feeling in having to live away from my husband. I am now starting each day with a feeling of dread.”
The mother then describes how well she was whilst living in Melbourne with her husband and how unwell she feels living in Sydney. In paragraph 39 she said:
“I also feel that the children will not be allowed to move with me. It frightens me that the children may believe that my role as their mother is dismissed if they are not permitted to move with me or that a nanny can replace me.”
90.
In paragraph 41 the mother says that the younger daughter said to her in November 2006 in the presence of the son and younger daughter:
‘“Are you definitely going to Melbourne?” I replied words to the effect, “Yes, but don’t worry your Dad and I are going to sort this out and you will still see both your parents a lot you’ll just see Dad in bigger chunks.” [The elder daughter] then said words to the effect, “Dad says that he’s not going to let us go to Melbourne and if we stay he’ll buy us a boat and a home entertainment centre but not if we go with you.”’
91.
In paragraph 43 the mother says:
“It is of grave concern to me how our marriage can last a long distance over a long term period of time. I feel very alone and in not having [my partner], my chosen lifelong companion to enjoy our family life together whilst living in the same home.”
92.
In her oral evidence the mother confirmed that she had told the children she was proposing to live in Melbourne full-time before the interviews took place for the Family Report.
93.
The mother relied on an affidavit from her husband. Annexed to that affidavit were photographs of the house at E. In his evidence the mother’s partner identified a photograph of the son sitting at a computer. It is interesting to note that in paragraph 261 of the mother’s first affidavit she says:
“[The son] also spends a lot of time in front of the computer at the [G] house as there is no backyard for him to play.”
This paragraph formed part of a series of paragraphs designed to show that the E property was most desirable for the children because it had a great deal of outside space and activities for them to engage in as opposed to the G house which was occupied by the mother which did not have outside activities and therefore the son spent a lot of time in front of the computer. The affidavit of the mother’s husband is largely corroborative of the affidavit evidence of the mother. The thrust of the affidavit is to establish that the children from each of the parties’ family and the mother’s partner’s family have developed a good and close relationship. In paragraph 39 the mother’s partner says that he has tried to establish a civil relationship with the father in these proceedings. He then recites his version of the conversation that took place on or about 29 May 2005.
94.
In paragraph 40 of his affidavit the mother’s partner refers to a further incident which he said occurred in June 2006. He explains that the son and elder daughter had a clash in their Saturday sporting schedules and the mother had suggested to the father that he could take one of the children to their games if the father called the mother by 8.00 pm on Friday night. The father had not called and on Saturday morning the mother said to me words to the effect, “I’ll take [the elder daughter] to soccer and you take [the son] and [younger daughter] to his rugby game I will then join you at rugby after [the elder daughter’s] soccer game.” The affidavit then recites that after the mother had left with the elder daughter, the father rang the mother’s phone number and said, “Can I take [the son] to rugby?” I said to the father words to the effect, “Arrangements have been organised as you did not get back to [the mother] last night.” In this trip apparently the mother’s partner had failed to ensure that the son had his rugby gear and approximately thirty minutes into the trip he ascertained that the son was not properly equipped. The mother’s partner stopped at a chemist to get a new mouthguard for the son and advised the son that he could borrow some shoes from one of the other boys who had just finished a game. On route to the field the mother’s partner said that the father had rung him three times to ask, “Where are you?”
95.
In paragraph 41, although not confessing outright to this fact it is apparent that the mother’s partner arrived late with the son to start his match. The son’s father approached the mother’s partner and said, “How could you do this to my son?” The mother’s partner replied, “[…], it’s okay, [the son] hasn’t missed the game and he can still play. [The son] just made a mistake he forgot his bag.”
96.
The material set out in paragraph 40 and 41 of the affidavit of the mother’s partner raised concerns for me. In the first place there does not appear to be any reason why the son could not have been taken to the rugby match by his father even though he had not returned the mother’s call by the 8.00 pm deadline which the mother had set. In my opinion it was highhanded and insensitive on the part of the mother’s partner to have taken the stand he did and it does not augur well for the children in the future if their care is to be shared by their mother with her partner and he continues to apply his supervision of them in the manner illustrated in the paragraphs in his affidavit above referred to.
97.
In paragraph 42 the mother’s partner asserts that his relationship with the father is largely civil and courteous. He refers to a telephone conversation he had with the father in respect of dropping the children off early for a holiday. He then said that he and his mother had previously discussed and agreed that he should speak to the father and arrange the children’s plans if it is in the children’s interests to vary the orders that are in place for their time with each parent.
98.
Towards the end of his affidavit which was sworn in October 2006 the mother’s partner describes the residence at E. As I have referred to earlier this proposal has now changed.
99.
Ms R, Treating Clinical Psychologist, signed an affidavit which annexed a report in relation to the mother prepared by Ms R. The report was dated 27 March 2007. The report highlights that the mother has consulted with Ms R on 19 February 2007, 1 March 2007, 13 March 2007, 19 and 26 March 2007. Her oral evidence was that there has been a recent consultation with the mother. In her report Ms R says as follows:
“In every session [the mother] has presented as a warm, honest, open and flexible adult who thinks in a rational and logical way. She has shown a willingness to explore all options and has evidenced a capacity to validate everybody’s needs.”
100.
She also said:
“At no time did I find [the mother] to be malicious or vengeful towards her ex-husband. On the contrary I found her to be exceptionally understanding of his rights and feelings as the father of her children. She is also cognisant of the relationship her children have with extended family in Sydney and finds herself in the untenable situation of trying to please everyone.”
Ms R said that of the symptoms seen in the mother as follows:
“[The mother] was extremely agitated when I first saw her. She cried easily and copiously and expressed feelings of disempowerment and of being trapped. I believe that she is suffering from a mild form of agitated depression. This depression could be attributed to the stressful situation [the mother] finds herself in.”
Towards the end of the report under Clinical Observations, Ms R reports:
“The mental state of a mother affects the mental state of her children. A distressed mum creates feelings of distress in her offspring. Right now [the mother] is struggling to maintain her sense of balance and to be the calm and happy mother she wants to be.”
101.
In her oral evidence Ms R told the Court that she has practiced as a therapist and has not been involved in any diagnostic practice for about ten years. She does not have the capacity to prescribe medication. She said that in relation to the prescription of medication that she works closely with her client’s GP. She was unable to say who the mother’s GP was. Ms R said that although the mother was considerably agitated when first seen there has been a quick turnaround and she does not present as agitated in the later sessions. Ms R in her oral evidence differentiated between agitated depression and mild depression and said that the mother was still quite energised when she saw Ms R.
102.
Ms R said that when the mother first saw her she was feeling trapped. In the last few sessions she had become empowered and will move to Melbourne with or without the children. She proposes to fight as hard as she can for the children.
103.
At the conclusion of the cross-examination and re-examination of Ms R, I asked her about her statement that the mother had not been malicious or vengeful in her attitude towards her ex-husband. I asked her if the mother had told her she detested the father would she still have reached the conclusion that the mother had not been malicious or vengeful. Her answer confirmed that she would not have included those words in the report.
The Mother’s Cross-examination
104.
The mother was required for cross-examination. Matters of particular note in her evidence include the following.
105.
In cross-examination it was put to the mother that she did not tell the Family Consultant that she was “going to live in Melbourne come hell or high water.” Her reply was, “No, but I did say I was definitely moving.” She said that she had made the decision to move to Melbourne with or without the children in about October 2006 before the Family Report interviews. She claimed that she had told the children of this and she said to them:
“I am going to live in Melbourne and Dad and I will work something out to make sure I see a lot of you. I want you to live with me.”
She claimed that conversation took place before the children saw the Family Consultant.
106.
The mother was questioned about her applications to the L School for the children’s enrolment. She was asked why she had left the father’s name off the application form and she replied, “I didn’t think he was part of it.” She was asked why she had not told the father about the enrolments until September 2006 and she replied, “I didn’t know whether he needed to know.” She said that if the children lived in Victoria with her she felt that the father should know about the children’s school enrolments.
107.
The mother was asked about the move from E to Melbourne. She was asked whether the E property had been sold. She replied no, that it had been rented and it was not on the market. She said that she and her husband do not propose to move back to E. She conceded that her children and her husband’s children have never lived in the T house together. She conceded that the most time the children have spent living together has been for a period a little in excess of two weeks. She said that if the children remain in Sydney it is unlikely that she would live in Sydney on weekends. She has not spoken to her mother about a long term arrangement where she would spend four days a week once a fortnight in Sydney with the children and using her mother’s apartment. She said that she would try to make the arrangement work but she thought it would be very hard to do so. She said:
“I am so tired, the travelling, trying to juggle time and houses, just the whole situation, it is just unviable on the long term basis.”
108.
In her cross-examination that continued on 1 May 2007 the mother was asked whether she prioritised her husband over her children in her life. She said no, she can’t do that, they get equal priority. She said that if the orders were made for the children to remain in Sydney in their father’s care she will come to Sydney as often as she can. She knows that her children need her.
109.
The mother was shown copies of enrolment forms for schools in Victoria. She agreed that on the enrolment form her partner had been noted as the children’s guardian. She acknowledged that she had not put anything in the enrolment form about the father. She said that she had spoken to the school and advised them there was a father and that she would need a court order for the enrolments to go ahead.
110.
The mother was asked whether she had asked her husband could he live in Sydney and she said yes. She recalled that she asked him in late 2005 when she concluded it was going to be too difficult to live in two different States. As best she could remember she said the last time they had discussed the possibility of her partner moving to Sydney was when the decision needed to be made for them to move to Melbourne from E. She agreed that this was before the Family Report interviews.
111.
The mother was cross-examined about paragraph 17 of the Family Report. In that paragraph the following sentence appears in relation to the mother’s proposal to move to Melbourne:
“Both [the mother] and [her partner] believe that with continued reassurance of this kind the children could cope and “be fine” with not having their father involved in their daily lives.”
It was put to the mother that the reverse of that arrangement she would see as not being fine for either herself or the children. She replied:
“I would come to Sydney and maintain a residence if that is what is necessary. If [the father] had a residence in Melbourne he could do the same.”
112.
In relation to her attendance upon Ms R and her health generally the mother was taken to paragraph 77 of her first affidavit. She was taken to a particular part of that paragraph which was in these terms, “In November 2004 I was struggling to get through days.” She was asked whether that is how she feels now. Her answer was, “I am better now but just going through a period.”
113.
The mother was asked whether her husband has told her he would not move from where his children live. She replied, no, “It would be irresponsible for [my partner] to move from his work.”
114.
The mother acknowledged that the longest period she and her husband have been in the same house together is eight weeks.
115.
In relation to questions about the subject children and the mother’s partner’s children living together the mother conceded that her partners son, S, suffers from a mild form of ADHD.
116.
The mother conceded that in June 2006 she did not think it was best for her children to live in T. It was put to her that if it was not for her partner’s children she would not have proposed a move to T for her children. She agreed with that proposition.
117.
The mother agrees that she grew up in the eastern suburbs of Sydney; that she has one sister living in Canberra; her mother living in Z although having an apartment in Sydney; she has four sisters, a father and a step-mother all living in the eastern suburbs of Sydney. She also agreed that she had no family living in Melbourne apart from her husband.
118.
The mother was asked what rugby union facilities would be available for the son to participate in if he lived in Melbourne. Her answers indicated that she had carried out very little investigation of that. She said that the elder daughter could play soccer and she nominated the R club however she did not know whether they allowed mixed competition. She conceded that she had made no enquiries about the possibility of the elder daughter playing soccer in Melbourne.
119.
The mother was taken to paragraph 142 of her affidavit where she made a complaint that the father had not returned the children to her sister, A, on a Sunday evening when the mother had stayed in Melbourne. It as put to the mother that she did not tell the father she was proposing to stay in Melbourne on that occasion or that she was in Melbourne. She replied, “I had no intention of telling him where I was.” It was put to the mother that she detested the father and she replied, “No, I am not going to tell him.” It was put to her that she had said to him that, “The children will end up detesting you the way I do” and she replied that she had said that. It was put to her that is what she believes and she replied, “I do if he keeps treating me the way he is.” She agreed that the longest period of time the children have had away from their father was two weeks. The mother said that on the occasion that the son struck her in April 2006 it was the father who caused it. This was the occasion when there was an argument about whether the son should play rugby with the W team. She conceded that the son had hit her again in 2005. She agreed that she had taken the son to see Dr S before he was ten. She also agreed that she was concerned at that time that the son was angry and irrational.
120.
The mother was asked, “Do you think it will be difficult for [the son] to be away from school, playing rugby and friends?” She replied, “I think he would be relieved.” The mother was asked by me if the son was to indicate and/or say after a period of six months of living in Melbourne with her that he was miserable and wanted to return to Sydney what would she do? She replied:
“I would talk to him but six months is not enough. If he was really wanting to return I would consider sending him back.”
There are two things about this paragraph which require comment from me. Firstly I do not accept that the son would be “relieved” to be away from Sydney. This statement is directly in conflict with the assessment of the Family Consultant in relation to the son’s views. It would also be contrary to an assessment by the Family Consultant of the son’s relationships with his parents. I interpret that report as support for the position that if the son was required to make a choice between his parents he would choose to live with his father.
For reasons which appear later in these reasons I do not accept that the mother would return the son to live with his father in Sydney if the son was unhappy in Melbourne and requesting to live with his father. When the mother gave that evidence I did not accept that she was genuine in her answer. Given everything else that she had said in her evidence, both in affidavit form and orally, I do not accept that the mother would bow to a request by the son to be returned to Sydney to live with his father. I conclude that the mother has so much emotional investment in the proposal for she and her children to live with her husband in Melbourne in a happy, harmonious family environment that she could not and would not accept anything less from them. I fear that she would convince herself that although the son might say he was miserable that really he was not.
121.
The mother agreed that the elder daughter was well settled at the X school.
122.
The mother asserted that the children receive mixed messages from their father. When asked what that meant she said that the son seems to be more important because of his sporting associations.
123.
The mother agreed that her husband enrolled the children in Victorian Nippers and in so doing nominated himself as the guardian of the children. The mother was asked whether she had discussed this with the father to which she replied, “It was a holiday plan. I don’t have to discuss that with him.”
124.
The mother was asked about telephone communication between the children and their father and her view that it was harassing. She said that the current rate of phone calls once every two days is not harassing for her.
125.
The mother was asked about the children’s ability to cope with further changes as proposed by her. She said, “I think my children adapt well to change, that is what they have had deal with. They are what they are today because of the changes they have had to deal with.”
The Father’s Evidence
126.
The father’s affidavit was filed on 6 October 2006. The matters of particular note in that affidavit are set out hereafter.
127.
In January 2006 as a result of disputes between the parties as to whether the children should commence private schooling the father filed an application in the Court. On 31 January 2006 Judicial Registrar Johnston made orders that the son commence at S College on 1 February 2006, the elder daughter commence at X school on the same day and that the younger daughter commence at X school in February 2007. Little of this dispute is set out in the evidence and so the background appears to be only that the father wanted the children to commence their private schooling and the mother opposed that.
128.
Having set out some background facts and great detail of the day to day care which the father exercises with the children the father in paragraph 41 set out details of occasions where the parties have been able to agree to some variations of the orders made in July 2005.
129.
In paragraph 43 the father sets out eight occasions when he has returned the children to the mother on Sunday evening and she has not been at home. These would appear to be the occasions which the mother refers to in her affidavit when she remained in Melbourne and arranged for her sister to care for the children on Sunday night. The father says in paragraph 44 that he has made a number of requests of the mother to allow the children to stay with him on Sunday evening rather than being cared for by other people as the mother has not returned to Sydney. He says those requests have been denied.
130.
In paragraph 47 the father says that in March 2005 the mother informed him that the son had been hitting her. He then spoke to the son at length.
131.
The father says that in August 2005 the son attended at Dr S. A copy of the report from Dr S is annexure “B” to the father’s affidavit. The report detailed different reports from each of the mother and father. The mother raised concerns about the son’s behaviour including anger outbursts and irrationality. She told Dr S that the son had been hitting out against her. The father reported that he does not have the same behaviour from the son in his household. The mother said that the son was occasionally resistant to going to school. In summary the Doctor says as follows:
“[The son] is a boy of good intellectual ability with well developed basic skills. He does not have attention deficit / hyperactivity disorder. He does seem to have episodic angry outbursts when with his mother and [his mother] might benefit from advice about ways of managing this. I have recommended a psychologist who could provide this advice.”
132.
In paragraph 49 of the father’s affidavit he refers to an incident which occurred in April 2006. It is not clear whether the son was present and observed or heard the altercation between the parents. It is consistent with my observation of each of the parents in the witness box that in such circumstances the father would have the capacity to remain composed and contained and that the mother could easily become angry and blaming in her criticism of the father.
133.
The father and the son have a joint interest in rugby. The father has been involved in rugby with the son for some considerable time and in 2005 he was the coach for the son’s Under 10s W team. In that year they made the finals. In 2006 whilst not being the coach he was actively involved in the EW Junior Rugby Union Club and the son’s team. He has also been the Age Manager for the son’s Nippers for three years and in those years the son received championship awards for both beach and water disciplines. Similarly the father has attended the elder daughter’s soccer games throughout the season. He has been involved in coaching activities under the direction of the main coach. He took the elder daughter to and attended every coaching session. He is the Age Manager for the elder daughter’s Nippers age group in this 2006 / 2007 season. In paragraphs 56 through to 60 inclusive the father sets out conversations he has had with the elder daughter particularly in relation to the possible move to Melbourne. Likewise in paragraph 63 through to 69 the father has set out conversations with the children about moving to Melbourne. He says that the older two children have clearly said they do not want to move to Melbourne. In paragraph 66 the father sets out a conversation he had with the elder daughter where he said to her, “I promise you I’m doing everything I can to keep you in Sydney.”
134.
In July 2004 the elder daughter attended upon Dr S. Dr S assessed the elder daughter as being:
“A girl of excellent intellectual ability who has academic underachievement associated with the inattentive form of attention-deficit / hyperactivity disorder.”
135.
In August 2006 the elder daughter had an appointment to see Dr S. The father expressed a desire to attend the appointment with the mother. The mother stated that she would not attend the appointment if the father was going to attend. Eventually the mother did not attend the appointment and the elder daughter was taken by her father.
136.
The father in his material asserts that the children have settled well into their schools and in particular the son and elder daughter appear happy and contended with their schooling and are progressing satisfactorily. The younger daughter only commenced her schooling at X School this year. During 2006 the father has spoken to each of the two elder children’s teachers during the year on a regular basis. He says that the two elder children in his opinion have settled well into their schools. Between paragraphs 97 and paragraph 100 the father sets out his interaction with the mother’s partner. He says that he first became aware of the relationship between the mother and her partner in late 2004. Through various statements made by the children he became aware of the involvement of the mother’s partner with the mother continuing from that time. He was not introduced to the mother’s partner until May of 2005. On 29 May 2005 there was a meeting between the mother’s partner and the father which had not been planned and which was instigated by the mother’s partner (and on the mother’s evidence herself) at the time of the children being delivered to their mother by the father. The father clearly was not expecting to meet the mother’s partner under such circumstances and did not have time to consider such a meeting. There was a terse exchange between the two men part of which it appears was overheard by the son. During 2006 the relationship between the mother’s partner and the father appears to have improved considerably and in paragraph 100 the father sets out evidence of a co-operative and appropriate step being taken by the mother’s partner for the benefit of the children.
137.
From paragraph 101 through to 108 the father sets out both his connections and the mother’s connections with Sydney. There appears to be little issue about the mother’s connection with Sydney.
138.
In paragraph 110 the father sets out details of difficulties he has experienced in telephoning the children whilst they are in the mother’s care. On a large number of occasions as recited by him he has been unable to speak to the children at times when it appears he reasonably have been able to speak to them. It is consistent with the mother’s evidence that she holds the view that the father’s communication with the children is excessive. She also holds the view that the father calling the children too frequently is harassment. Her view of the frequency with which the children should be able to take telephone calls from their father appears to be once a week or once every two to three days. For my part I do not see anything inappropriate about the calls listed in paragraph 110 where the father endeavoured to speak to the children. The fact that the children did not return his calls in my view reflects poorly on the mother and to the extent that the mother’s partner was involved on him also.
139.
In paragraph 111 the father sets out details of unilateral action taken by the mother in respect of the children which he says should have involved himself. It seems to me that the involvement of the father as requested by him in the activities referred to in paragraph 111 was reasonable and appropriate.
140.
In paragraph 120.4 of the father’s affidavit he details a conversation between he and the mother on 9 February 2006. There was no issue in the proceedings about the content of this paragraph. In my opinion the content of this paragraph demonstrates and attitude by the mother towards the children and the father which if continued will damage the children and continue to evade the prospect of co-operation between the parents.
141.
Throughout the mother’s affidavit material it has been the thrust of her case that the father is unreasonable and demanding and controlling. This was not the subject of submission at the conclusion of the hearing and in my opinion that omission was appropriate. In my opinion the contents of paragraph 120.4 can fairly be seen to put those tags on the mother and not the father. In paragraph 120.6 of the father’s affidavit he sets out a number of emails passing between the parties in relation to an endeavour to change arrangements revolving around the children’s mid-week sporting commitments. The process commenced with the father requesting a straight swap of every Thursday for Wednesday. He proposed that the mother be responsible for the children from after school / day care on Wednesday until drop off with the father at 6.00 pm on Wednesday evenings and that the father would then have that time with the children on Thursdays. The father supported this request with a number of dot points which demonstrated, in his view, the appropriateness of the change and the reasons for it. Those reasons included allowing the father to take the son to W team practice on Thursday night. In response the mother agreed with the Wednesday Thursday change but added a further condition which was that every second Wednesday night the exchange for every second Sunday night. This was because the mother spent every second weekend in Melbourne and did not return to Sydney until Monday. It had been the subject of some discussions between the parties particularly when it became obvious that the children were being cared for by the mother’s sister, A, and others every second Sunday night. On one occasion the father refused to return the children having ascertained that the mother would not be in Sydney.
142.
In his response the father explained precisely why it was important for him to spend time with the children during school weeks as well as on weekends. He set out that this was one of the bases of the agreement the parties had reached in July 2005.
143.
Ultimately the change for Wednesday and Thursday did not take place because the mother would not accept that change without a swap of every second Wednesday and Sunday evenings.
144.
In my view the father’s position was well-reasoned and appropriate. Again the mother, in my view, used the situation in order to manipulate an agreement to serve her own ends and needs. In my view there should never have been an argument about Sunday nights when the mother was not available to care for the children. The children should have remained in the care of their father on such occasions and not been cared for by relatives and friends of the mother simply to maintain a position where the mother could argue at the hearing before me that the children spend eight nights per fortnight with her and six nights per fortnight with the father. Again, in my view, the mother’s controlling and manipulating behaviour as demonstrated in these emails ignored the good sense of a change of Wednesday and Thursday nights which she agreed was in the best interests of the children. It does raise concerns for me about the mother’s ability to put the best interests of the children ahead of her own and to be able to negotiate sensibly and appropriately with the father in the future.
145.
The father swore an updating affidavit on 11 April 2007. Paragraphs 1 through to 10 of this affidavit consist of a number of complaints by the father of actions by the mother which he says demonstrates an unco-operative and controlling attitude. Reference is made to a medical condition in respect of the younger daughter and the father ascertaining at a later date that the younger daughter was seen by Dr T on 17 October 2006 with no information being provided to the father about that interview or the results of a CT scan.
146.
The father also complains about arrangements which were put in place for the younger daughter to attend orientation days at her new school in late 2006. The father was keen to ensure that the younger daughter took up the opportunity to attend on those orientation days. One of the days was the day that the parties were required to attend at the Court for interviews with the Family Consultant. The father made a suggestion that his mother could take the younger daughter to the orientation day and then deliver her to the Court however that was rejected by the mother.
147.
The third area of the complaint relates to the elder daughter’s birthday which fell in November 2006. The father annexes the emails that flow between the parties in relation to that birthday. In my opinion the position evidenced in the emails from the father was reasonable and appropriate. In his final email to the mother he drew her attention to her own words from an earlier email. These appeared to be entirely inconsistent with the position being taken by the mother in respect of the elder daughter’s birthday in 2006. Nonetheless the father accepted the mother’s decision on the matter notwithstanding it contained the following inflammatory sentence, “Please do not presume arrangements based on previous events but – ask and confirm with me first.”
148.
In paragraph 10.11 the father sets out an exchange between himself and the mother’s partner on 2 March 2007. He says that on that occasion the mother’s partner approached him and said, “I’d like to take [the son] to the [H’s] game tonight. Can I borrow your Member’s Guest Ticket to take him?” The father agreed to this and made the ticket available so that the mother’s partner could take the son. Unfortunately the son ultimately chose not to go. No further explanation is provided in the evidence of the father about that incident. It does however demonstrate a level of improvement in the relationship between the father and the mother’s partner. In paragraph 16 the father sets out the dates, being Sundays when he says the mother was not at home when he returned the children. There are four Sundays referred to there.
149.
In paragraph 18 of his affidavit the father sets out details of the weekend of 9 to 11 March 2007. The father heard from the children that they would be leaving school early on Friday. He then attached a series of emails which commenced on 8 March 2007 with an email by the mother to him at 4.48 pm. The email makes no mention of the fact that the mother would not be available on Sunday night in Sydney to collect the son nor does it mention that she would not be returning to Sydney until sometime on the Monday. It makes no mention of the fact that she was proposing not to send the two girls to school on Monday.
150.
Not unnaturally the father replied to the email in the following terms:
“Based on what I read in your last email I was planning on returning [the son] to you on Sunday at 6.00 pm per usual. Apparently this is not the case. The school does not provide transport to this event. I will have [the son] Sunday night and ensure that he gets to [M] Monday, unless you advise otherwise. Likewise with getting him home.”
151.
The mother’s reply to that email dated 8 March 2007 at 10.22 pm. The first sentence in my opinion is inflammatory, rude and inappropriate. It is in the following terms:
“You never cease to amaze me. If we were going to be back on Sunday night then [the son] would be coming with us to Melbourne and I would be taking him to the carnival.”
Nowhere in the series of emails did the mother make any mention of the fact that the girls would not be attending school on Monday.
152.
The fact that the mother took the girls out of school early on Friday and returned them to school late on Monday without advising the father at all demonstrates to me a high-handed attitude which she has to the care of the children and to any obligation to be accountable to the father or to advise him as a matter of courtesy of her proposed actions with the children outside of their normal routine.
153.
In paragraph 21 of the affidavit the father sets out the negotiations of the parties to try and make arrangements for the children at Christmas time. It is fair to say that the emails are lengthy and objective criticism can be made of each party in failing to be able to make arrangements which worked best for the children rather than themselves. In paragraph 22 the father sets out two text messages which he received from the mother. This started with a text message from the father to the mother on Christmas Day which said, “No worries. Happy Christmas. [Father].” In response, on that same day, he received a text from the mother that said, “You ruined it for me and the kids. I do not want your false wishes. [Mother]”. A little later on the same day he received a further text message from the mother to the following effect, “PS Please tell your mother not to send false wishes either.”
154.
The text messages from the mother indicate to me that she takes no responsibility for the failure of the parties to negotiate acceptable arrangements for Christmas 2006 for the children. Indeed it is a theme of the mother’s evidence that the father refuses to compromise in any circumstances. There is a further innuendo that the father is responsible for the parties’ inability to agree on many aspects of the arrangements for the children. There was nothing in the oral evidence of the mother which demonstrated to me that she was prepared to take any responsibility for the appalling relationship between the parties and their inability to properly communicate for the benefit of their children. The father, on the other hand, demonstrated to me a real regret at the failure of the parties to be able to work together for the benefit of their children and he made significant concession during the course of his oral evidence which demonstrated to me that he had a real understanding of the importance to the children of their mother’s role in their life. On the other hand I accept that the mother has said on many occasions that she does not wish to exclude the children’s father from their lives and that she supports the relationship between the father and the children. She acknowledges that the children have a good and close relationship with their father. However, in practice the mother appears to me to regard her role in the children’s life as more important than that of the father and that she has a right to deal with the children as she wishes without the necessity for consultation or provision of information to the father about action she has taken in respect of the children which should properly be consulted upon. Examples of this are failure to keep the father properly informed in respect of the younger daughter’s health when she undertook a CT scan and failure to inform the father that she was proposing to take the children out of school for a Monday during March of 2007.
155.
On 26 December 2006 the mother sent an email to the father which included the following information:
“I am just letting you know that after much consideration about our current situation [my partner] and I have decided to move to the [T] area in Melbourne’s eastern suburbs.”
The father says in his affidavit that the next information he received in respect of that proposal was on 16 March 2007 when his solicitors received a letter from the mother’s solicitors.
156.
In paragraph 26 of his affidavit the father says that on 16 November 2006 the elder daughter said to family members at the dinner table the following:
“Mum says that if she cannot get the judge to say that us kids are moving to Melbourne, then we might have to live with Dad because Mum has to go to Melbourne.”
This statement indicates that the elder daughter had a clear picture from her mother that the mother was proposing to move to Melbourne with or without the children. The mother’s evidence is that she told the children that prior to the interviews which took place between the children and the Family Consultant on 14 November 2006. Given the proximity of the statement recorded in the father’s affidavit to the interviews with the Family Consultant (two days before) it adds weight in my view to the views and wishes expressed by the children as recorded in the Family Report.
157.
Annexed to the father’s affidavit and marked as annexure “J” is a copy of a series of emails between the father and mother relating to the children attending the father’s sister’s wedding on 17 March 2007. In her email sent at 10.02 pm on 14 February 2007 the mother includes the following paragraph:
“Also, be under no illusions my opinion of you has been very consistent for a very long time and definitely has not been influenced by your opposition to me moving to Melbourne. This is just a continuation of your controlling behaviour and your absolute myopic view that you and you alone know what is best for our children regardless of what I have to offer them. All you are going to do is box them into a nice neat corner so that you can control them like you try to control me. I can assure you that the children will eventually end up detesting you just like I do.”
The emails included in annexure “J” indicate to me an appalling attitude by the mother. Notwithstanding that she accuses the father of controlling her, quite the contrary appears to me from the emails. Rather than consultation the mother has dictated to the father what extracurricular activities the children will be engaged in whilst they are in her care. She fails to see the implications for the father of the activities she involves the children in particularly the son and the activity of additional tutoring.
158.
The father filed affidavits by Ms D and Mr B and neither of those witnesses were required for cross-examination. He also filed an affidavit by his sister and his mother. Both those witnesses gave short oral evidence. The affidavits by Ms D and Mr B are in the nature of testimonials to the father’s parenting capacity. There is no issue and as far as I can see has never been an issue as to the father’s parenting capacity and the nature of a good and strong relationship between the father and the children. The affidavits of the father sister and mother are largely supportive of the relationship between the children and their father and identify family activities involving each of them. In the affidavit of the father’s mother, at paragraph 33, she says as follows:
‘On 6 July 2006, [the mother] arrived at my home unannounced at approximately 6.15 pm. She said to me: “I’ve come to talk to you about [the younger daughter] staying with you when [the father] and the children go skiing.” [The mother] had letters in her hand which she wanted to show to me. They were copies of letters sent by her lawyers to [the father’s] solicitor. [The mother] said to me words to the effect “[The younger daughter] can’t spend the holidays in your care. If that means that [the two elder children] can’t go skiing, that’s what will happen. I don’t want you to think this is because I don’t trust you with [the younger daughter], but I can’t let [the father] do this.” During our conversation, [the mother] became quite agitated and angry. She was standing up, shouting, and waving her arms up and down. She said to me: “My actions (meaning her solicitor’s letter) are not because you’re bad grandparents. I think you’re good grandparents, but I want the option to care for [the younger daughter].” She also said things such as: “If you care for [the younger daughter], I’m letting [the younger daughter’s] grandparents take over my role as a mother. I only see the children fifty percent of the time anyway. This is about respect.” [The mother] repeated “It is about respect” quite loudly several times. [The mother] also said “Well I’ll be working next week so I’ll be in Sydney” to which I replied “[…] if you’re working, why can’t [the younger daughter] have a holiday with her cousins and with us?” [The mother] also made a number of comments relating to [the father] saying things such as: “Your son is a control freak.” “After talking to you I know where he gets it from.” “What [the father] does is intentional. Not giving me the option to have [the younger daughter was intentional.” I said to [the mother] “[…] you’ve always said that you want your time to be your time and you can do with the children what you want during your time. Doesn’t this also apply to [the father’s] time?” She said “[The father] has to show respect for me. [The father] has to give me the options.” At some stage during the conversation I said to [the mother] “Can we telephone the children in your home?” to which [the mother] replied “Yes you can telephone the children any time you like. It’s only [the father] who can’t telephone them.”
The Father’s Oral Evidence
159.
The father was asked if the mother moves to Melbourne will he also move? He replied, no. He said no as he has a business to operate and he can’t spend substantial times away from it. The father said that he did not feel he would be able to provide for his children financially, emotionally or a home for them if he was to move to Melbourne. The father was taken to Exhibit “F5” which is his final proposal for orders to be made in relation to the children. In that proposal he seeks orders that the mother spend time with the children during school terms on the second, fifth and eighth weeks of each school term from Monday at the commencement of school until the commencement of school on the following Monday. He was asked why he wanted to reduce the time which the mother could spend with the children. He explained that his preference was for a week about arrangement however given the mother’s evidence that she did not know for how long she could sustain living in Melbourne and coming to Sydney every second week during school term to spend time with the children he was proposing something which would be consistent and reliable. He said that he would be more than willing to negotiate further time with the mother over and above those nominated weeks if she was able to facilitate greater time in Sydney.
160.
If the orders in Exhibit “F5” were put into place the father agreed that he would be more involved in the care of the children. He was asked who would he rely on to assist him in that and he replied that the need to ask for assistance from relatives or friends would be the exception rather than the rule. He said it would be predominantly himself who did the drop-offs and pick-ups for the children’s school and activities. It may be that the father would call on his parents to help with after school care for the younger child. In relation to the balance of the care he said the cleaners live at the back of the home and do cleaning and cooking. They also do babysitting. One of the two who live at the back of the home has a driver licence. On weekends where there was a clash in sporting events he would ask his parents to assist him. The babysitters/cleaners are P who is aged 23 and Q who is 21. The father said that P and Q sit for the girls on Friday morning when he takes the son to swimming. On the evidence of the father it seems that the arrangement for P and Q or either of them to physically supervise the elder and younger daughters at a time when the father takes the son to swimming on Friday mornings is a loose one. The father’s evidence was that he would tell one or both of P and Q when he was leaving to take the son to swimming. It was unclear whether either of the cleaners/babysitters then immediately went into the house to physically supervise the two girls.
161.
Given the age of the children it was submitted on behalf of the mother that this is an unacceptable degree of supervision and that the father should ensure that one or both of the babysitters are physically present in the house when he leaves on Friday morning to take the son swimming. In the circumstances of this case I agree with that submission and in the event of my reaching a conclusion that the children should reside with the father or indeed if I reach the conclusion that they would be spending holiday time only with their father it seems to me that an order should be made for the benefit of the children which prevents the father from leaving any of the children unsupervised physically by an adult in the house or at any other time.
162.
These matters to a certain extent are matters of parenting styles and each parent will have a different view as to whether the circumstances outlined by the father are appropriate or not. Given that this submission is made at the direction of the mother I think it is in the best interests of the children that an injunctive order be made preventing the father from having the children unsupervised by an adult at any time at least until they are thirteen years of age. Thereafter there needs to be discussion between the parties and the father should exercise his discretion in relation to determining what circumstances he will permit in relation to unsupervised time for the children. The mother should do the same when the children are in her care.
163.
The father proposes that the younger daughter would go to after-school care on Wednesday afternoons for the remainder of this term. The son usually catches a bus home and socialises with his friends at the bus stop on the way home. The son will arrive home between 3.45 pm and 4.00 pm and the father will arrive home shortly thereafter. If the babysitters/cleaners are not at the house this would mean that the son would be in the house unsupervised for a short period of time.
164.
The father was asked about his girlfriend, Ms G. He was asked whether she is involved in the care of the children and he said, no. He acknowledged that last year his sister had assisted him in some aspect of the care of the children. In 2004 and 2005 she looked after the younger daughter.
165.
During the school holidays the father is predominantly available. He has the ability to access his work computer from home and therefore is able to oversee the business predominantly from home. On Wednesdays he needs to go to the office because of his wage day.
166.
The father was asked what the mother had to offer the children. He replied:
“Role model, comfort, love, security, a person they can trust, a person they can confide in, talk to.”
The father did say he could keep listing what she had to offer. He agreed that the same qualities would apply to himself.
167.
The father was asked whether there was anything the mother could offer that he could not as far as the children were concerned. He replied:
“We are different personalities. I don’t have teenage girls yet. I think it is important for the girls to have a female to talk to.”
He said:
“I don’t doubt we both love our children tremendously. We will do anything for them.”
The father was asked what he thought the children would lose if the mother was seeing significantly less of them during the school term. He replied:
“One on one physical contact. What goes with that, for example, hugs, being able to look at each other. Just having their mother present.”
He said that he thought the impact on the children would be significant and they will certainly not be happy about it. He thought that the elder daughter will be the most impacted. He was asked what he would say to the children if the result was that they lived with him and spent predominantly holiday periods with their mother. He said that he would tell them what the court had ordered and he would try and focus on the positives such as, they will be living in R with him and spending most of their holidays with their Mum. Mum will have open time with them anytime.
168.
The father was asked to agree that he and the mother were not good at resolving matters. He did agree with that. He said he was desperately hoping that the proceedings will draw a line in the sand. He was asked whether he anticipated bitterness by the losing parent and he replied:
“Yes, I believe I will be bitter about the children being so far away. I would get counselling and I am confident I would be able to work it through.”
He was asked whether he thought the mother would get over her bitterness and he said he did not know. The father said that the children had told him that they would be seeing less of their mother. He said the catalyst for this statement was when the mother told the children that she would be marrying her partner. In relation to the son and his relationship with each parent the father said that he thought the son was angry with both parents but he directed his anger in a different way with each parent. The father was asked about statements the children had made to him in respect of moving to Melbourne. He said that the son had said to him on numerous occasions between November and the current time words to the effect “Mum is going to live in Melbourne regardless.” He was asked what his response to the children were and particularly the son and he said, “I said to them ‘Mum has not told me that. If that is the case then we will work something out.’”
169.
The father conceded that he has said to the children three or four times that he is going to fight to keep them with him. He said that the comments were principally made to the elder daughter at a time when she was upset.
170.
The father said that he would be happy to accept counselling in relation to the relationship between he and the mother and being able to process decisions for the children in the future.
171.
It was put to the father that the children adapt well to change. He conceded that as far as the elder daughter was concerned, yes, but he thought that the son was less adaptable to change. The father was asked about the children’s current schooling and then asked, “If one of the schools no longer served a child’s needs would you change it?” to which he replied, “Yes.”
172.
The father was asked further details in relation to his girlfriend, Ms G. He said she had two children. She is with him most weekends. She is involved in the care of the children in a minor way. He was asked about the future of his relationship with her. He has known her for nine months. He proposed that there would be a future “if it worked out.” He acknowledged that he had two earlier girlfriends, one named T and one named U. The father was asked why he did not have his girlfriend Ms G see the Family Consultant and he replied that the relationship was in its infancy in November 2006 when the interviews for the Family Report took place.
173.
The father felt that he could discuss matters relating to the children with the mother’s partner if it was necessary.
The Family Report
174.
A Family Report was provided to the Court by Ms B, Family Consultant. The report was concluded in November 2006. It was released by a Registrar on 30 November 2006. Ms B also gave oral evidence in the case.
175.
I have particularly noted the following matters from the report.
176.
Ms B notes paragraph 6 of the mother’s application. She says the mother’s application seeks to be permitted to relocate to Victoria with the children to live with her husband. Criticism has been made of the report by the mother’s counsel in that it is asserted by the mother that she made it clear to Ms B that she was proposing to live in Victoria whether the children be permitted to live with her or not. I will return to this matter later in these Reasons.
177.
It is clear that since the parties saw Ms B they have changed the orders which they seek however the main thrust of their applications have not changed. The mother seeks that the children reside predominantly with her in Melbourne and the father seeks that the children predominantly reside with him in Sydney in the event of the mother being determined to live in Melbourne with her husband. The father accepts that the mother has now said that she proposes to live in Melbourne whether the children reside with her or not. The father has made it clear that his preference is for the parties to have an equal shared time parenting arrangement in Sydney in the event of the mother being able to make herself available to participate in such a programme.
178.
In paragraph 11 Ms B notes the statement from the mother that the longest she has spent under the same roof with her husband is approximately eight weeks and the longest they have spent as a family with all six children at the one time is approximately two weeks during school holidays. Ms B notes the mother’s assertion that the father has always been a good father. She acknowledged that he has always had a consistent relationship with all three children. She confirmed that the longest the children have been separated from their father is two weeks and that they enjoyed the time that they spend with him. The mother raised concerns about the father’s ability to divide his attention equally amongst all three children. The father disagreed with this concern. The mother said that she found it difficult to verbally communicate with the father but she did feel that jointly they were able to communicate about the big issues such as education by text message and email. The father agreed with those comments.
179.
Ms B noted however that there did appear to be some discrepancies in the parents’ ability to communicate about issues that relate to the children, for example, the father stated that he was not consulted about enrolling the children in schools in Victoria for 2007.
180.
Both the mother and her partner told the Family Consultant that they felt that the children would cope and be fine with not having their father involved in their daily lives although the mother’s partner accepted that his young children would find it difficult if he were significantly less involved in their daily lives.
181.
The Family Consultant reported that while the mother was adamant that she could not leave the children she appeared just as adamant that she was unable to continue to live in Sydney. The mother believed that the current orders would have to be changed to make it work. She indicated that she would accept professional advice with regard to this matter.
182.
In paragraph 20, Ms B reports as follows:
“While she was able to talk of supporting telephone and email contact between the children and their father she appeared to find it difficult to explain other ways that she could assist the children, particularly [the younger daughter], the youngest child, to maintain close relationships with [the father].”
This related to circumstances where the mother was proposing that the children would live with her in Melbourne whilst the father remained living in Sydney.
183.
In paragraph 27 the Family Consultant reports as follows:
“The father expressed some concern that the mother would make it hard for him to spend time in [E], meaning she might consider his visits to be intrusive. He also did not believe that she would encourage regular phone contact or make efforts to consult him in decisions about big issues, such as education and health.”
184.
Continuing on (paragraph 28):
“[The father] expressed a desire to have a more amicable relationship with [the mother] and her husband. He admitted that her relationship with [her partner] so soon after their separation was “a hard pill to swallow”. Nevertheless he said that he no longer felt any animosity towards [the mother’s partner]. Of late he felt that communication was often easier between himself and [the mother’s partner] than with the mother.”
185.
In paragraph 29 of the report the Family Consultant noted that the father’s position was in the event of the mother choosing to live physically in E (or Melbourne) he was more than prepared for the children to live with him.
186.
Ms B, in paragraph 31, noted in relation to the mother’s partner that he acknowledged that the children have a terrific relationship with their father whom they love dearly. She noted that the mother’s partner:
“was also concerned about the father’s perceived lack of respect for [the mother’s] role as the children’s mother and her contribution to their upbringing. He questioned [the father’s] ability to support the mother’s role if the children live with him for the majority of the time.”
187.
I should note here that the majority of the information the mother’s partner has in respect of the father’s attitude to the mother and his view of her role in the children’s lives must, based on the evidence before me, come from the mother’s statements to the mother’s partner.
188.
Under the heading “Children and their relationships”, Ms B sets out the following in her report:
“[The son] (11 years 3 months) and [the elder daughter] (9 years) each expressed a clear, age appropriate understanding as to the reasons for being interviewed and the decision that their parents had asked the court for assistance with. [The younger daughter] (5 years 2 months) presented with a basic understanding that the focus for being interviewed related to family and whether she live in Sydney or [E]. However it appeared unlikely that she had an understanding of how long she would be separated from her father if she moved to Victoria or of the potential emotional impact on herself of such separation from either parent.”
189.
In relation to the son, Ms B says:
“At times during his interview he looked angry and upset at the prospect of moving to [E], not because of the house or the area but because such a move would distance him from his father, his school, his friends and competitive rugby. [The son] considered all of these things important. He clearly said that he would “rather live where I am now (Sydney)” but showed some ambivalence as to whether he wanted the current parenting arrangements to stay the same. [The son] was unable to elaborate on how he thought future parenting arrangements might change.”
The Family Consultant states that the father, mother and her husband all described the son as intelligent, of strong character and similar to his father in looks and mannerisms.
190.
In paragraph 41 of her report the Family Consultant says as follows:
“[The son] has positive attachments to both his parents but appeared to identify more strongly with his father. He appeared relaxed in his father’s company. There was some evidence to support the mother’s view that [the son] has felt some anger towards her since the separation. [The son] was of the opinion that he doesn’t have as many clashes with his father as he does with his mother and believes his mother is disapproving of his heavy involvement in rugby union”.
191.
In relation to the younger daughter the Family Consultant says:
“Like her brother, [the younger daughter] expressed a clear opinion of preferring Sydney to [E] because of her school and her soccer team and her familiarity with the Sydney area. She clearly wanted things to stay the same, including spending regular, frequent time with her father and her mother and the mother’s partner. … [The elder daughter] continues to hold a desire for her parents to reconcile but accepts her mother’s relationship with [her partner] and instead expressed a wish that her parents would be ‘nice to one another.’”
The Family Consultant further said in relation to the elder daughter:
“Of the three children, [the elder daughter] was the one that [the father], [the mother] and [her partner] all expressed some concern over with regards to her self-esteem, sensitive nature and the internalisation of her thoughts and feelings. [The son] also expressed some worry and concern about his sister.”
192.
In relation to the younger daughter, Ms B said:
“She was observed to be affectionate to all three adults and to happily accompany her siblings to lunch with their father and to leave at the end of the day with their mother and [her partner].”
193.
Under the heading “Evaluation”, Ms B said:
“Despite the mother’s concerns about the father’s ability to manage without major supports, it would appear that both parents are quite capable of caring for their children. … There is evidence that [the children] are securely attached to both of their parents.”
Ms B said that if both parents were to remain in Sydney them an equal time arrangements for the children in many respects would be a constructive option for them.
194.
Ms B noted “The mother’s obvious discomfort in the presence of the father”. She said, “The parents might benefit from professional assistance to develop effective strategies for communicating.” In paragraph 52 she says as follows:
“Over the past five years both children have been required to deal with many significant changes and events: moving countries; the arrival of another sibling in [the younger daughter]; their mother’s life-threatening illness; their parents separation; their mother’s new marriage; and the introduction of three step-siblings. This is a lot for any child or young person to deal with and it is perhaps not surprising that [the son] has experienced some strong emotions at finding himself in this situation and that he has developed a strong connection with his father whom he perceives as having been through similar experiences. [The elder daughter’s] slightly younger age and her different nature have seen her react with greater sensitivity to the situation.”
“[The son] and [elder daughter] each expressed strong views about wanting to remain in Sydney so that they are able to spend regular, frequent time with each parent. This need, by both children, to have each of their parents involved on a daily basis is a genuine need.”
…
“Despite the father’s heavy involvement in [the son’s] sports, this is the first time that [the elder daughter] has had the opportunity to have her father actively involved in her activities. If this opportunity was taken away from her it may impact on her self-esteem and feelings of self-worth which are currently benefiting from the extra individual time she is spending with him.”
195.
I have highlighted the above section of Ms B’s report because of its importance. I should add that I think it reasonable to conclude that if the mother’s time with elder daughter was significantly reduced or changed to predominantly holiday time only then I would anticipate the elder daughter would be adversely affected.
196.
Ms B concludes by saying:
“It is unlikely that any change that promotes the absence of a parent is in the children’s best interests. This would be particularly relevant for [the younger daughter], given her young age.”
Ms B concludes her report with recommendations that are set out in paragraphs 57 through to 61 and includes a recommendation that the parents and their partners or potential partners attend mediation or counselling to encourage effective communication and resolve any future disputes about major parental decisions.
197.
Ms B was required for oral evidence. She was asked whether the mother told her that she had made a decision to live in Victoria and that decision included whether the children resided with her or not. Ms B was unable to recollect any such statement. Nor was she able to recollect that the mother had told her that she had in fact informed the children of her decision. She was of the view that the children did not display any knowledge or view that their mother and her partner were going to live in Melbourne without them.
198.
Ms B was asked whether she was aware that the mother detests the father. She said that she was aware the mother has strong feelings towards the father but she did not use the word detests.
199.
She said that the children had told her - that is the two elder children – that they had come to talk to her about the family and living in Sydney or living in Melbourne.
200.
Ms B was asked by the mother’s counsel whether she agreed with the concept that the children appeared to understand as to the proposals for their future care was that they either live with their mother and father in Sydney on much the same basis as they currently do or they move to Melbourne with their mother. She agreed that appeared to be their understanding. She was asked whether there was anything said by the children to indicate that they contemplated seeing less of their mother. She responded that there was nothing that she focussed on and as this was not an option that she was aware of she did not particularly explore it.
201.
I should add at this stage that the Family Report in this matter was released for the parties’ consideration in about November 2006. It is conceded by the mother that at no time following the delivery of the Family Report until the questioning of the Family Consultant during the course of this hearing did she raise a concern that the children’s views could not be given any weight in the trial because the Family Consultant had misunderstood the mother’s clearly stated position that she proposed to move to Melbourne and live with her husband whether the children live with her or not. It was certainly the thrust of submissions made on behalf of the mother that the children’s stated preference to remain living in Sydney could be given no weight because the Family Consultant did not explore with the children their understanding of how their life would be living in Sydney with their mother predominantly living in Melbourne.
202.
Ms B was asked whether during the course of her interview with the children she reality-tested their statements, views and/or preferences or whether she simply recorded these. She replied that she did both. She said that she had suggested to the older children that they could do swimming in Melbourne and as far as the son was concerned that he could participate in rugby in Victoria. In response to that suggestion the son appeared to have a good working knowledge of football in Victoria and said that predominantly the football played is AFL and the rugby is not at the same competition level as New South Wales. He expressed an opinion that there was more opportunity for him in New South Wales and he appeared to have a good understanding of the levels of football.
203.
Ms B was asked whether she had the feeling that the son was supporting his father’s case. She replied she thought he was supporting his own case and not supporting one parent over the other. She said that she saw no qualitative difference in the relationship between the children and each of their parents. She said she had talked to the son about seeing his father in blocks but the son remained adamant that he had a preference to living in Sydney and it follows with his father.
204.
It was put to Ms B by the mother’s counsel that it is important for girls to spend time with their mother as they approach their teenage years. Ms B responded it is important for children to have time with each parent. Sometimes there is a gender preference in adolescence. She was asked about the changes in the children’s lives since 2001 and asked whether it was her opinion that the children have been able to deal with those changes. She said that the quality of the relationships and the resilience has allowed the children to come through those times but the impact should not be underestimated. At the commencement of her evidence-in-chief the mother confirmed that she was moving on the proposal set out in Exhibit M1. That proposal was in two parts. The first part sought the children reside with her in Melbourne. The second part is contained under the heading, “In the event that the Court declines to Order that the mother be permitted to relocate to Melbourne with the children then the following Orders be made;” Those orders seek that the children live with the mother from Monday to Friday each alternate week during school terms. It further provides that upon notice being given the mother be permitted to extend that time during her week from Monday through to the following Monday. It also provides for the children to spend the majority of their school holiday time with their mother. She proposes that she would accommodate the children in Sydney at her mother’s unit where she is currently living. She is not certain how long that apartment will be available for her use. She said that she will try to take advantage of the proposed orders and thereby be available each alternate week to spend time with the children in Sydney. She claimed that during the interviews with the Family Consultant she said she was adamantly going to move to Melbourne. She told the Family Consultant, “I can’t keep going on like this.” “I said it when it was just me but also said it when [my partner] was there.”
Credit
The Mother
205.
The mother gave her evidence in a manner which indicated to me that she was under stress and that she was angry. She was on a number of occasions tearful and on other occasions forthright. Not withstanding a fairly sensitive cross-examination from the father’s counsel the mother continued to show distress and anger. Towards the end of her oral evidence she said of the father “I severely dislike the man”. Elsewhere in her evidence the mother conceded she had said she detested the father.
206.
Overall I formed the impression of the mother that she was angry with the father. It was difficult to determine why that was. In one of her e-mails which is reproduced in her affidavit she said “are you just determined to make me pay for leaving you for the rest of my life?” It may be that formed part of her anger. I was also left with the impression that the mother thought it was unreasonable for the father to oppose her re-locating the children to Melbourne. Part of her case appears to have been that as she had been the primary care giver for the children to the point of separation it naturally flowed that where she chose to reside that was the place the children should principally be. I should hasten to say that was not a submission made by her counsel but rather an overall impression I was left with after having read her affidavit material and listened to her evidence.
207.
I should also say at this time the circumstances in which the mother met her partner and then commenced a relationship with him must be seen to have set a very bad emotional environment in which to separate from the father and then endeavour to attempt cooperative parenting between the parents. Added to this was a most unfortunate first meeting between the father and the mother’s partner which made it clear that the father was at that stage still very emotionally unseparated from the mother. I think it was reasonable for the mother to have anticipate such a circumstance and that the father would be hostile and angry about the separation and the union between the mother and her partner however, there is no evidence that the mother has considered this.
208.
The mother gave her evidence in an apparently honest manner and I have no reason to conclude she has been untruthful. I do however make mention of one matter here and that relates to statements which the mother says she made to Ms B. In her oral evidence the mother said she made it clear to Ms B that she was proposing to live in Melbourne with or without the children. In her oral evidence Ms B said she had no recollection of such a statement. She also said that she did not think the children had the view that their mother was moving to Melbourne with or without them. In relation to this difference I do accept Ms B as a witness of truth. There was no suggestion in the content of her evidence or the manner of delivery that suggested to me she was not being truthful. There was no submission by the mother that Ms B was being untruthful in her evidence. I do not think the mother has been deliberately untruthful but I conclude that the mother was not as clear in her statements to Ms B as she now recalls. It is a decision which I can well imagine the mother would have difficulty articulating.
The Father
209.
The contrast in the manner in which each party gave their evidence was for me very marked. The father gave his evidence in a calm, sensitive and thoughtful manner. He did appear to me to now accept the breakdown of his marriage and the inevitability of the union between the mother and her partner. I could detect no residual bitterness in him and he appeared to be genuinely wanting to form a new and more cooperative relationship between he and the mother. He acknowledged the importance of the relationship between the children and the mother. His preferred outcome was the children to live in an equal shared parenting arrangement with the parents. He clearly concluded that his relationship with his children would change in a negative way if the children were to live in Melbourne with the mother. He had personally investigated a number of schools in the Melbourne area which the mother had indicated to him might be appropriate for the children to attend. He had considered the prospect of spending time with the children in Melbourne. He asserted that it would not be feasible to run his business from Melbourne. To this end he seems to be in a similar position to the mother’s partner who told me he could not relocate his business to Sydney.
210.
The father gave his evidence in an apparently honest manner and I have no reason to conclude he has been untruthful.
211.
Neither counsel made submissions against the credit of the parties or their witnesses.
212.
I should note for the record I found Ms B to be a witness of truth. No submission was made to the contrary.
Relevant Law
Legal principles
213.
The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
214.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
215.
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
216.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
217.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
218.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Section 60CC Considerations
Primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
219.
In an earlier decision of mine Blair & Blair published on 23rd February 2007 I said the following:
“Considering Primary Consideration (a) of section 60CC(2) above set out, the first thing to note is the somewhat unusual wording. In context it must mean that the trial judge is required to consider for each of the children the subject of the litigation, whether it is in that child’s best interest to have a meaningful relationship with each parent.
What is meant by the words “meaningful relationship”? There is no definition in the Act to assist Judges understand this term. Applying an ordinary English meaning to the words it must mean more than a “relationship”. The word “relationship” in the “Oxford Dictionary” (Concise) has a number of definitions, the most apposite being “connection or association” or “an emotional association between two people.” What then makes a relationship meaningful? Again the Concise Oxford Dictionary defines meaningful as “full of meaning; significant.” One could chase down the meaning of words indefinitely for example the word “significant” is defined by the shorter Oxford Dictionary to mean: "1. having a meaning; indicative. 2 having an unstated or secret meaning; suggestive. 3 noteworthy; important; consequential.”
The term “meaningful relationship” may potentially refer to the time the parents can spend exercising their relationship with their children. It could refer to the quality of the parental relationship or to both those aspects. It could be considered from the child’s point of view or alternately from the parents point of view. In the absence of any limiting suggestion in the section I think the best approach is to give the term all its possible relevant meanings and interpret it broadly rather than narrowly.
One sensible approach, in relocation cases, might be to treat the words as meaning the children should be able to spend sufficient time (if equal shared time is not appropriate or feasible in the circumstance) so as to ensure the parental relationship is not damaged.
220.
I will refer to the concept of “meaningful relationship” later in these reasons.
221.
In this case there is no prospect of the children not having a meaningful relationship with each of their parents. On each of the parties proposals the children will be spending significant amounts of time being cared for by each parent. The children have a good and close relationship with each of their parents. If the children do not have each of their parents participating in their lives as they do now then the nature of their relationship with each parent is likely to change. For the younger daughter there is the prospect that her relationship with the parent who becomes less involved in her life may be damaged. This is connected to her age and the developmental stage she has reached (see the oral evidence of Ms B). The extent of the damage will depend upon the ability of the other parent to keep the image of the less actively involved parent alive in the younger daughter’s mind and that the message being received about that parent is positive.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
222.
In this case there is no evidence of the children being exposed to physical harm, abuse, neglect or family violence. There is a potential for the children to suffer psychological harm consequent upon their parents conflict. I assess the father to be a more emotionally stable and controlled personality than the mother. I need to consider if either parent is likely to be able to shield the children form ongoing conflict between the parents to a greater extent than the other. In this case I conclude the answer is yes. I conclude that the father will be able to best shield the children from ongoing parental conflict. He convinced me that he wanted to change the relationship he has had with the mother post separation and that he was prepared to seek assistance to do so. The mother also told me that she wanted to change the parental relationship however I did not discern in her any real desire to do so. I was left with the overwhelming feeling that she would avoid whatever contact she could with the father and that she would find engaging in a process of counselling with him for the purpose of changing their relationship and ability to communicate about the children too difficult.
Additional considerations
(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
223.
The views of the children are set out in the evidence of Ms B and the parties. In my opinion the most reliable expression of the children’s views are to be found in the evidence of Ms B. The children’s views as expressed to their parents and recorded in the parents evidence are likely to be influenced by concerns the children have for their parents and therefore may not represent genuinely held views. I should say by way of exception to that proposition in this case the mother in her evidence has set out the statements of both the son and elder daughter when she told them she was to be married and live in Melbourne. Those statements are against the mother’s interests and should be given weight.
224.
In submissions by the mother she says that the views of the children are not to be given any weight because the Family Consultant misunderstood the mother’s position in relation to the move to Melbourne. It is put that the Family Consultant did not understand that the mother’s proposal was to move to Melbourne with or without the children. Further the evidence of the Family Consultant was that she did not think the children understood that to be their mother’s position. In deed the evidence of the mother and her partner in relation to the mother’s ability to spend time with the children in Sydney is not that the mother would not come to Sydney each alternate week during school term and care for the children from Monday night to Friday night it is that the mother could not do that on a long term basis. The mother’s partner said that he thought it would be sustainable for six months however he said he would support the mother if she wanted to continue that pattern for a longer period.
225.
The mother in her evidence said she had told the children clearly before they saw the Family Consultant that she would not be living in Sydney after the Court case. She said she told them she would be living in Melbourne. I accept that the mother believes she did tell the children this however it seems that she told them with the same degree of clarity with which she told the Family Consultant. Given Ms B’s evidence either the children did not understand what the mother told them and the implications of same or alternatively they did not accept that she was being truthful. I think the first explanation is the most probable.
226.
Clearly the children did understand that on their mother’s evidence that if they lived with her in Melbourne they would spend “big chunks” of time with their father in Sydney and conversely if they lived with their father in Sydney they would see big chunks of time with their mother who would be living in Melbourne. The son and elder daughter are intelligent children. There is no suggestion from either parent or the Family Consultant that either child does not have the capacity to understand the broad parameters of their parents proposals or what those proposals might mean for them. On that basis I conclude I can give significant weight to the wishes of the children the son and elder daughter. The younger daughter is much younger and I do not conclude I can give any significant weight to any stated views of hers.
(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)
227.
The children in this case have a good and close relationship with each of their parents. No submission is made to the contrary. Additionally the children have a good relationship with members of their parents extended family. The children have also been assessed by the Family Consultant to have a good relationship with the mother’s partner.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
228.
Whether it be appropriate to deal with under this heading or another I need to refer to the evidence of the mother’s excluding the father from decisions and information which he should have been involved in. The first matter was the mother taking the elder daughter to see Dr S on 14 February 2006. She did so without advising the father of her intention to do so. It was only after she had seen the Dr that she reported this to the father. The mother has also restricted the telephone contact between the children and the father. The mother displays an attitude that it is only appropriate for the father to telephone the children every 2 or 3 days whilst they are in her care. She has accused the father of harassing her when he has called more frequently. In paragraph 110 of his primary affidavit the father set out difficulties he had in telephoning the children whilst they were in their mother’s care. The instances on which the father called the children seem to me to be very reasonable and the fact that the father did not speak to the children on those occasions reflects badly on the mother and gives me great concern for her attitude to the father and her willingness to facilitate frequent telephone time for the children with their father should they be living with the mother and her husband in Victoria.
229.
As stated elsewhere in these reasons I find the father to have a good ability to convince the children he thinks positively of their mother and her husband. I accept that he genuinely does recognise the very important part they play in the children’s lives. He has demonstrated the ability to accommodate the shared role of caring for the children whilst the mother has lived in Sydney. The mother has criticised his flexibility and has pointed to his refusal to swap a week night for a weekend night (Sunday) when she asked him to. The father provided a logical explanation in Court for that refusal. He acknowledged that he had legal advice not to change however, that was not his primary reason for resisting. He said it was important for him to have a spread of week time and weekend time with the children. The ability of the father referred to in this paragraph is important because it demonstrates to me the likelihood of his being able to facilitate and encourage a close and continuing relationship between the children and their mother.
230.
When I consider the mother’s ability to facilitate and encourage a close and continuing relationship between the children and their father if they were living in Melbourne with her I do not have the same feeling of confidence which I have in the father. There are a number of instances highlighted by me in the evidence in this case which demonstrate that the mother has excluded the father from important events for the children or disregarded his importance in that activity. I call to mind the mother taking the elder daughter to see Dr S in February 2006 without involving the father. At a later time when there was to be a second appointment and the father requested he attend with the mother she said she would not attend if the father insisted attending as well and in fact she did not attend on that appointment. The enrolment of the children in schools in Victoria with no notation of the father’s details but rather the mother’s partner noted as the children’s guardian. Similarly enrolling children in Nippers in Victoria with no notation of their father’s identity but rather the mother’s partner as their guardian. There was another example of the mother arranging and attending on a specialist appointment for one of the children without advising the father. The mother took both the girls out of school for a Friday and a Monday in school term without telling the father. The approach of the mother has been at times, “what I do with the children in my time is my business and none of the father’s.”
231.
The examples of the actions attributed to the mother in the above paragraph lead me to the conclusion that the mother is less likely to be able to facilitate, and encourage, a close and continuing relationship between the children and the father than the father can for the children and their mother.
(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
232.
Whatever result is arrived at in this case, that is whether the children live in Melbourne with their mother or live in Sydney with their father, the changes for them will be considerable. When considering that statement it is not realistic in my view to simply add up all of the time in each year that the children will spend with a parent and say there is little change overall to the current arrangement. The evidence of the Family Consultant (and it is a matter of common sense) that seeing a parent for the bulk of the available school holidays and hardly any time during school term is a very different experience for the children than that which they have now with both parents involved in term time, week days, weekends and school holidays. Ultimately how much time the mother may spend with the children in Sydney if they live with their father will be largely governed by her ability to tolerate living in two cities as she has been for some time now and to be away from her husband as often as she is now. If the children live in Melbourne they will see significantly less of their father and the time they will see him will be largely on weekends. He will not be able to participate in every aspect of their life as he does now.
233.
It can fairly be said in this case that the children will very much miss the involvement of either parent in their lives if that involvement is reduced by the effect of the orders of the Court. Given that they may not have the same balance in their parenting as they now receive it must be predicted that they will be affected.
234.
The largest part of the children’s extended family, on each side of their family, reside in Sydney in the Eastern Suburbs. The children spend quite some time with those members of their family. If the children move to Melbourne they will probably see less of those family members. No member of the children’s extended family lives in Melbourne.
(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
235.
With the mother living in Melbourne and the father in Sydney there are a number of practical difficulties with the children spending time with the parent who will not be responsible for the larger share of their care. The parties are reasonably affluent and so they will be able to afford a number of airfares each year. The children should be able to spend some weekends in the city where the parent who is involved in the smaller portion of their care lives. There is however a problem with school sport. The parties are committed to the children attending private schools. That will probably mean compulsory sport involvement for the children on weekends. Unless the parties can negotiate with the schools for some exemptions then this will pose an obstacle for the children in spending time with a parent.
236.
There is no reason why the children should not be able to make frequent telephone contact with each parent. The mother has shown resistance to the father speaking to the children by telephone while they are in her care if she believes the calls are too frequent. She has said that two times per week would not be too frequent. The mother says that she has felt harassed by the father in the past when he was telephoning the children more frequently.
237.
There was an incident which involved the father providing the son with a mobile phone. This phone was used for communication between the son and his father and probably for other calls as well. The mother took the view that the gift was excessive and required the son to keep the phone in a draw whilst at her home. This effectively forbad the son use of the phone. Some time later the son asked his mother for a Christmas present in the nature of “a privilege”. The privilege he asked for was to be able to use his mobile phone while he was in her care. The mother gave the son that privilege for Christmas and he has been able to use it ever since. I see a degree of control in the actions of the mother which could have given both the son and the father the impression that it was aimed at the father. I also think that there was a degree of unfairness in her actions towards the son and the excitement which I can imagine he had with the gift of the phone from his father. The effect of the requirement of the mother that the son not use the mobile phone in her house was also to control the number of telephone calls between the son and his father. Whether that was a deliberate consequence the mother had in mind or not the effect was to reduce the capacity of the son to speak to his father privately and at a time of his choosing at the height of the conflict between the parents. At a time when the son may well have had a need to speak to each of his parents frequently to reassure himself of his relationship with them.
238.
I conclude that I can have confidence that when the children are in their father’s care they will not encounter any obstacles to frequent telephone conversations with their mother at a time of the mother’s choosing or their own. I do not have the same confidence that the mother would facilitate a similar arrangement for the children conversing with their father if they live with her in Melbourne.
(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
239.
There is no dispute on the evidence that each of the parties has the capacity to provide for the children’s physical needs and intellectual needs. It is the provision of the emotional needs of the children which in my view discloses a difference between the parties. It must be said that each of the parties does contribute to and provide for many aspects of the children’s emotional needs. Each party clearly loves the children very much and the Family Report satisfies me that the children know that. Further there does not appear to be any differences of substance between the relationships of each child with each parent. It is in subtle but important area’s that I discern a difference.
240.
I find that the father has superior ability to provide for the children’s emotional needs in the following ways. I conclude that the children would understand from their father that they are allowed to have an unrestrained relationship with their mother and her new family. That they have permission to contact and speak with their mother at any time whilst they are in their father’s care. That their mother has free and unfettered telephone access to the children at all times. I find that would not be the case for the children in the reverse. That is I find that the mother has not created that emotional environment for the children in her house so far as their father is concerned.
241.
I conclude that the children would not observe in the father hostility directed towards the mother and her husband. I conclude that has not always been the case and the father concedes that the formation of the relationship between the mother and her husband at a time when the mother was on a course associated with attempts to salvage the parties marriage was emotionally difficult for him. However I accept the father’s evidence that he has overcome that now and has been able to put it all behind him. I did not detect any remnant of emotional un-separation from the mother in the father’s evidence nor any residual ill feeling directed towards the mother or her husband. I conclude that in the father’s house the children would receive positive information and attitudes directed towards their mother and her partner
242.
I find that the mother would not be able to hide from her children the feelings of hostility which she feels for the father. Those feelings were seen by me in the oral evidence and also the written evidence of the mother. She used words such as “detest” and “severely dislike” to describe her feelings for the father. Further although she displayed an acknowledgement of the importance of the father in the children’s lives she did not display that she had any regard for him as a person. Quite the contrary. She described him as a “bully” and a “controller” in circumstances where I thought the tags were not appropriate. I am of the opinion that the mother has displayed controlling behaviour which she did not recognise as such. Examples I am able to readily recall include negotiations between the parties about the lost ski weekend. Negotiations about the “Sunday nights” when the mother stays in Melbourne and has a relative or friend care for the children in Sydney. Negotiations about swapping other week nights to suit the children’s changed routines. Restricting the father’s telephone contact with the children whilst they are in her care. I have been critical of the father’s role in some of those events also as detailed elsewhere in these reasons. I conclude that on the balance of probabilities the mother could not create for the children in her house a positive image of their father. In such circumstances it could be confusing and damaging to their development. It would not fulfil their emotional 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
243.
Submissions were made by the mother addressing this consideration specifically directed at the two girls and to the effect that as the girls reach puberty they will need the counsel of their mother to assist them deal with the changes in their bodies. This submission is meant to imply that if the girls are not living with their mother they will receive no counsel from her. This plainly can’t be the case. Equally it might be said that the son will seek the counsel of his father as he experiences changes in his own body. Likewise it would not follow that he would have to live with his father to receive this counsel.
244.
Whatever the result in this case in terms of whether the children predominantly live in Melbourne or in Sydney they will all be spending considerable time with each parent. They will have the opportunity to communicate with their parents both on a face to face basis and by telephone and e-mail. The counsel which they will need from each of their parents ought be readily available to them at any time they need it.
(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
245.
This consideration does not apply to this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
246.
There are many examples in the evidence in this case of the parents not putting the interests of the children ahead of their own. To this extent they have each failed their children and they have each failed to fulfil their responsibility as a parent to the children. One example which I have already highlighted is the snow holiday for the two older children with their father. That holiday was lost to the children because of the appalling conflict between the parents. There were a number of available solutions which would have seen the children able to enjoy that holiday however neither party had the capacity to put such plan and compromise into effect.
(j) any family violence involving the child or a member of the child’s family
247.
There is no evidence of family violence.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
248.
There is no Family Violence Order.
(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
249.
This is not a case which suggests interim orders should be made in lieu of final orders.
(m) any other fact or circumstance that the court thinks is relevant
250.
It was part of the mother’s case that until the date of separation it was the mother who cared for the majority of the children’s daily needs. The father acknowledges that fact whilst emphasising that outside of work hours he spent a considerable amount of his time with the children. The father in particular involved himself in the sporting aspects of the children’s lives. He was however also involved in more mundane aspects of their care. I accept all of those facts.
251.
Following the separation the mother acknowledges that there has been a far greater involvement of the father in the care of the children. She has however, sought to draw a distinction between the parties quantity of care by reminding me on a number of occasions that the children during school term spend eight out of fourteen nights in their mother’s care and that she also is involved in supervising the children on 10 out of 14 days per fortnight. This involvement includes the children spending time with their mother after school on some days and the mother doing more of the school and activity pick ups and deliveries. This arrangement has worked well for the children. The mother has had the time (with the exception of each second Sunday night or thereabouts during school term, when she chose to stay in Melbourne with her husband rather than taking up the opportunity to spend that time with her children) to be involved in these activities due to her restricted work hours and availability. The father has continued to work as much as he can during this period. If the mother had been unavailable to do more of the pick ups and drop offs then the father would have had to do those himself or arrange for a trusted adult to help him with those tasks.
252.
In the scheme of this case I do not see that the disparity in the time each of the parents has been involved in the care of the children post separation gives the mother the ability to argue that there is a difference of substance which must impact upon the emotional well being of the children.
253.
There is no other fact or circumstance which requires consideration here.
Section 60CC(4), (4A)
254.
I have said a number of things in these reasons which touch on the matters to be considered here and I adopt those findings, determinations and comments in relation to this heading. I have been critical of some of the parties participation in decision making about the children however, largely I find the parties have been able to make decisions in relation to the major long term issues for their children.
255.
To the extent that it is necessary to refer to conduct which has been restrictive of a parent spending time with or communicating with one or more of the children I have referred to it in my reasons.
Section 61DA
256.
In this case there is no submission suggesting the presumption should not apply. There are indicators which would suggest that an equal shared parental responsibility order would be problematic such as the limited ability of the parties to conduct face to face discussions and or telephone discussions. This seems to be largely because the mother will not engage in those processes. She has however told me in her evidence that she does understand the impact on children’s development where the parental conflict remains unresolved and she has said she would like things to change.
257.
At the conclusion of the hearing the Family Consultant gave evidence as to the likely outcome for the children’s development if the parties did not resolve their conflict relating to the children. The father said that he hoped that after this hearing the parties may be able to change. He indicated a desire to change.
258.
When I spoke to the parties after the case had concluded by way of concern I had for the future development of their children and the dread I had that these children were heading down a pathway which could easily see them change from the lovely children they appear to be at the moment to troubled and unhappy children who would struggle in life to be successful adults I saw the horror in their faces. It seems to me that each parent at least said they would like things to change between them. The parents are both intelligent articulate adults who have the capacity to see the damage that they do to their children and make a change for the children’s benefit.
259.
I propose to make an order for equal shared parental responsibility.
260.
Poor communication capacity is a matter which the Court would take into account when considering whether to make an order for equal shared parental responsibility however, in my view it would need to be considerably worse than that exhibited in this case. The parties do manage to communicate by e-mail and text message as the evidence discloses. They have endeavoured to negotiate by e-mail although this is often unsuccessful. There is also the line of communication available through the means of the mother’s partner and the father if all else fails.
261.
All other indicators in this case would in my view point to the presumption having operation.
Section 65DAA
262.
Having determined that there should be an order for equal shared parental responsibility I now need to consider whether the children spending equal time with each of the parents would be in the best interests of the children.
263.
The Family Consultant in her report recommended that there be an equal shared time living arrangement for the children with their parents in Sydney. The practicality and possibility of that occurring has been effected by the mother’s decision to live permanently in Victoria with her husband. Her ability to spend time with the children in Sydney is limited by a number of factors. They include the availability of reasonably priced accommodation, her ability to withstand emotionally separation from her husband and the ability to live in Sydney a place where she says she now feels uncomfortable in many aspects of ordinary life such as attending the children’s schools and the local shops in the Eastern Suburbs of Sydney.
264.
The mother has said that if the children are to stay in Sydney she will come to Sydney every second week during school term as often as she can. She says that in the long term she will be unable to sustain that however she will endeavour to be there for her children as often as possible. She said that if her children need her then she will be there for them.
265.
I conclude that if it is at all feasible the children should be able to live in a shared equal time parenting arrangement.
266.
I will return to consider this matter at the conclusion of these reasons.
Relevant Law in relation to relocation
267.
The principles to be applied in relocation cases are enunciated in A-v-A Relocation Approach (2000) FLC ¶93-035 and H-v-L (2000) FLC ¶93-036. In A-v-A (supra) the Full Court noted the leading authority for the determination of a parenting case where the proposals of one of the parties seeks to relocate the residence of a child is AMS -v-AIF; AIF-v-AMS (1999) FLC ¶92-852. The Full Court noted that the High Court's finding, in that case, that "relocation cases are but a particular example of proceedings under Part VII".
268.
The Full Court held the following binding principles of law flowed from the decision in AIF-v-AMS; AMS-v-AIF (supra) when a parenting case involved a proposal to relocate the residence of a child:
· the welfare or best interests of the child under the relevant legislation, remains the paramount consideration but not the sole consideration
· a court cannot require an applicant for the child's relocation to demonstrate compelling reasons for the relocation of a child's residence "contrary to the proposition that the welfare of the child would be better promoted by" maintenance of the existing circumstances.
269.
At the conclusion of its decision in A-v-A (supra) the Full Court set out, in addition to the two above binding principles, the following guidelines to be applied in relocation cases:
· “A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. 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.
· The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
· It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (1) of that subsection.
· The object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular case.”
270.
The Full Court in the case of D and SV (2003) FLC ¶93-137 revisited the question of relocation and looked at what changes might be expected to the “parental relationship” with the non resident parent if the relocation was not prevented.
271.
In D and SV the Full Court set out how the principles to be applied in
re-location cases have emerged. It seems to me that the distillation of those principles gives rise to the following:
(a) The guidelines set out in A v A; Relocation approach (2000) FLC ¶93-035 should be followed;
(b) The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC 93-112.
(c) Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence.
(d) In most relocation cases it is inevitable that the quantity and nature of contact with the non residence parent will change. As a result the “parental role” changes. The very important matter for the Court to consider is whether the nature, frequency and duration of contact which could be expected to occur following the proposed re-location is adequate to ensure the “core values” or “fundamentals” of the “parental relationship” are maintained. With some children the quantity and frequency (more particularly the reduction in quantity and frequency) of contact with the non residential parent will, as a result of the relocation, be such that because of the developmental stage of the child or the particular make up of the child, the parental relationship will be damaged, perhaps irreparably.
(e) There may be other reasons why the Court would grant or refuse the injunction against the resident parent.
272.
As referred to earlier the “parental role” is best described as, “the means by which core values and behaviours are exchanged, and influence applied”. The “Parental relationship” is “the closeness or attachment between the children and the parent”.(see A and A unreported decision Le Poer Trench J. 22/4/2004)
273.
In a decision handed down on 14 February 2007 Federal Magistrate Altobelli (formerly Professor of Law) considered in depth the impact of the Family Law Amendment (Shared Parenting Responsibility) Act 2006 on relocation cases. I here incorporate part of his judgement M & K [2007] FMCA Fam 26:
“Brown FM considered the meaning of “meaningful” in the context of s 60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of “meaningful” to s 65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
Relocation cases raise all of these issues.
...
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.[1]
...
In U & U,[2] the majority judgment again addresses the freedom of movement issue, at pp 89 090-1. In the majority judgment their Honours observed as follows:
Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent… ‘Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.… The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[3]
It may be unfortunate, perhaps, that the majority described freedom of mobility as a right, thus creating the expectation in some litigants that it is a right that can be enforced by the courts exercising jurisdiction under the Family Law Act. It clearly is not an enforceable right in this context. But, as the High Court again clearly articulates, whatever the status to be given to freedom of movement – “it must defer to the expressed paramount consideration.”
It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance.” It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s 60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s 60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one.[4] Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s 65DAC. The definition of major long-term issues in s 4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The High Court identified in AMS v AIF and AIF v AMS[5] that parenthood has always had an impact on the wishes and mobility of parents. It is not just freedom of mobility that is affected by parenthood – many other personal freedoms are likewise affected. Family law in its broad sense already recognises that parenthood carries with it responsibilities irrespective of the nature of the relationship between the parents of the child. For example there are obligations to financially provide for the children. Howsoever one might have perceived a person’s freedom to deal with their finances as they wish before parenthood, once they become a parent it is an unquestionable incident of parenthood that that very same freedom is not just curtailed, but converted into a legal obligation. Can’t the same be said for freedom of mobility? In any event, to describe it as a “freedom” is, in my opinion, highly problematic. The emotive use of the word itself tends to assert a certain superiority and precedence over other obligations in a context where there is no objective basis for it. It would be equally emotive and problematic to reconceptualise the notion of freedom of movement into the freedom to disrupt the relationship between child and parent. And that is one reason why contemporary Australian family law asserts the primacy of the best interests of the child, even in parenting cases where the proposal of one of the parties involved relocation.”
274.
It seems to me that FM Altobelli clearly outlines the complexities now being faced by trial Judges. It is necessary to integrate into a reasonably well understood line of authority, flowing from the Full Court of the Family Court of Australia relating to re-location cases, the amendments to the Act which became effective in July 2006.
275.
I have highlighted in the above set out quotation FM Altobelli’s attempt at defining “meaningful relationship” as used in section 60CC(2)(a). It seems to me that the discussion surrounding the meaning of the words is a good one and I agree with his interpretation.
276.
Ultimately I need in the conclusion to look at whether the proposed orders of the Court will enable a meaningful relationship between the children and each of their parents.
Considering the Guidelines developed by the Full Court
The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
277.
Each of the parties counsel addressed in submissions the advantages and disadvantages of the proposals of each party. The parties proposals are contained in their minutes of order which have been referred to earlier in these reasons.
278.
The father’s counsel identified the advantages and disadvantages of the mother’s proposals as being:
Advantages of Mother’s Proposals
(a) The mother would be happy with the arrangement.
(b) The children will spend more time in their mother’s care.
Disadvantages of Mother’s Proposal
(a) The move to Melbourne would appear to be contrary to the children’s wishes to live in Sydney.
(b) The children would be unable to maintain the existing balance of time the children spend with each parent.
(c) The children will have to change schools in circumstances where they are currently well settled and achieving satisfactorily.
(d) The children will have to build a new network of friends.
(e) The children will need to join new sporting associations.
(f) The children will spend less time with their father than they do now and importantly less time across all the different aspects of their lives.
(g) The move may adversely impact upon the relationship between the children and their father, and the children and their extended family who live in Sydney.
(h) The children will have to adjust to living in a home which includes the mother’s partner and his children. The children have only had limited opportunity to trial those arrangement.
279.
The father’s counsel identified the advantages of the father’s proposal:
Advantages of the Father’s Proposal
(a) All of the advantages of the current arrangement if the mother elects to continue to care for the children in Sydney during school term on the basis of every second week with her.
280.
The father’s counsel did not identify the disadvantages of the proposal however they were really dependant upon the mother’s ability to care for the children in Sydney during school term. The disadvantages of the mother’s proposals were reasonably identified by the mother’s counsel in his submissions.
281.
The mother’s counsel identified the advantages of the mother’s proposals as follows:
(a) The children will be cared for by the mother the person who until the separation (and the mother contends after separation as well) carried out the majority of the day to day care of the children.
(b) The mother will be available full time to care for the children.
282.
The mother’s counsel identified the advantages of the children remaining in Sydney as:
(a) No change of schools, housing, friends or sporting activities.
(b) This needs to be considered in the light of the change which the son will make to high school next year albeit within the same school.
(c) The father will spend more time with their father.
283.
The disadvantages identified by the mother’s counsel include:
(a) The father is untested in the extended role of caring for the children. This is a reference to the fact that there will be more days during school terms that the father will be required to care for the children.
(b) The father has inappropriately left the two girls alone in the house whilst not being physically supervised by the cleaners/babysitters.
(c) The children may not cope well with having their mother less actively involved in their daily care. In this regard the father was able to identify that the elder daughter is likely to be the most vulnerable.
284.
Considering those submissions I find the advantages and disadvantages of the father’s proposal to be as follows:
Advantages of the Father’s Proposal
(a) The father will be pleased he has not lost the children from his daily life.
(b) The children will remain living in Sydney a matter about which the two older children have expressed a desire.
(c) At least half of the children’s care will be provided by the father.
(d) There is a strong prospect that the children will have the mother involved in their care on an almost equal shared time basis at least in the short term.
(e) There will be no requirement for the children to face changes of residence, school, sporting activities, friends and extra curricular activities which they currently enjoy.
(f) The children will be able to spend holiday time with their mother in Melbourne in her residence there.
(g) The children will not have to adjust to living in a household which includes the mother’s partner’s three children during their school terms. One of the implications for the children of living in the blended family, which is proposed by the mother, is that the subject children will have to share their mother’s time with their step siblings.
(h) They will live in a household which will be supportive of an ongoing positive relationship with their mother. To this end it is unlikely that the children will feel under any restraint to make contact with their mother by phone should they feel the need to do so. The emotional environment in the father’s house will be more conducive to the ongoing capacity of the children to develop their relationship with their mother, her husband and his family.
(i) I am confident that in such circumstances the children will be able to have a “meaningful relationship” with each parent
The Disadvantages of the Father’s Proposal
(a) The children will spend slightly less time being cared for by their mother in the short term and may spend considerably less time being cared for by the mother in the long term.
(b) The children’s mother will be very distressed by the loss of this case. She may well not support the children emotionally in accepting the orders and getting on with life.
(c) The mother’s emotional health may suffer.
(d) The mother will not be physically close by so that if the children need her at a particular moment she will not be there if she is living in Melbourne.
(e) In the long term the mother may not be as involved in the children’s schooling, sporting and extracurricular activities if she is unable to continue to spend each alternate week in Sydney during school term.
(f) The prospect of damage to the parental relationship between the younger daughter and her mother given the child’s age, stage of development and the possible spaces of time between visits with her mother.
285.
I find the advantages and disadvantages of the mother’s proposals to be as follows:
Advantages of the Mother’s Proposal
(a) The children will have their mother involved in their daily care for at least half of the available time in which they need care.
(b) The mother will be available full time to care for the children as she will not be working.
(c) The mother will be happy and content with the arrangement. This is likely to have a positive impact on her emotional health and may make her attitude towards the father soften a little.
Disadvantages of the Mother’s Proposal
(a) The children will be moved from Sydney to Melbourne to the mother’s house where they will be based during their school term.
(b) The children have had very little practice of living in the same household as their mother, her partner and his children. They have had very little experience of living in the property currently being rented by the mother in T.
(c) At some time in the future there is a high prospect of further change for the children should the mother and her husband purchase a house in Melbourne. That prospect appears more probable than not.
(d) The children will need to change schools, friends, sporting associations, other extracurricular activities.
(e) The children will see much less of their father.
(f) Unlike the situation which will occur in Sydney in the short term at least the father will not be able to spend from Monday afternoon through to Friday morning in Melbourne caring for the children every second week during school term.
(g) They will live in a house with their mother which I have found to be emotionally antipathetic to the father. This could add an additional burden to the task of allowing the younger daughter to maintain her relationship with the father.
(h) The children may feel constrained in being able to exercise their relationship with their father in their mother’s household.
(i) Living in Melbourne is contrary to the children’s wishes and in relation to the son in particular may give rise to further conflict between he and his mother. To this end it is reasonably predictable that the son may be angry with a decision which sees him relocate to Melbourne.
(j) The children would probably miss the interaction which they are able to have in Sydney with their extended family.
(k) The children will not have their father involved to the same extent which he is now in their schooling, sporting and extracurricular activities. To that end it may well impact on the quality of the relationship they have with him now which in part must be based on his consistent interest and involvement in those activities.
(l) The possibility of damage to the relationship between the younger daughter and her father given her age, stage of development and the frequency with which face to face visits might reasonably be able to be facilitated.
(m) The father is likely to be very distressed by the decision for the children to live in Melbourne.
The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC ¶93-112 Bolitho v Cohen (2005) FLC ¶93-224.
286.
I am cognisant of this requirement and I will consider what other orders could or should be made in the best interests of the children which may not have been sought by either parent.
Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence
287.
In this case I have found that there should be an equal shared time parenting order subject to practicalities. In such circumstances it could not be said that there is an “undisputed residence parent”.
288.
Until the date of separation in 2004 it is common ground between the parties that the mother was the parent most involved in and responsible for the daily care of the children. Following the separation that changed and the father has been involved in the care of the children on an almost equal time basis.
289.
I find that as there is no uncontested residence parent this heading does not require further attention.
Any other reason the Court might have to restrain the resident parent re-locating the children’s physical residence
290.
This heading does not apply as there is no uncontested residence parent at the time of the hearing before me.
Balancing of all considerations under Section 60CC
291.
In my view the matters referred to by me as I dealt with the various sub sections of section 60CC lead to a conclusion that the children’s best interests are more likely to be promoted by the father than by the mother. I will discuss this further later in these reasons.
Conclusion
292.
One of the issues raised by the mother is that she has been the primary care giver of the children to this point in time and consequently whether if that role were to become the father’s by dint of the orders of the Court would the children cope well with such a change? I will deal with this issue, as with the others identified, in these reasons.
293.
Reviewing all of the available evidence I am left with the overall picture of the mother having a naïve attitude to and understanding of the impact on the children and the father of the circumstances surrounding the separation of the parties in October 2004 and the emergence of the mother’s relationship with her partner. I am left with the sense that the mother is emotionally immature in that she has tried her hardest to force the situation where she, her partner, his children and her children would all live in a harmonious and loving relationship in Melbourne and that the father and children would willingly and supportively facilitate her dream. The mother appears to have disregarded or seen as wrong the wishes and views of the children as set out in the Family Report. She has disregarded the recommendation of the Family Consultant. She appears to have now moved to a position where the involvement of the father in the children’s lives is only relevant to the mother where he complies with her plans for the children. The evidence satisfies me that she has reached a point where she will not speak to the father on the phone or face to face unless she instigates it. In her e-mail correspondence with the father she appears to me to adopt an aggressive approach which is evident in many of her e-mails. Whilst mouthing an absolute resolve to not exclude the father from the children’s lives she has been insensitive to his position particularly where she has sought to secure places for the children in Victorian private schools and in so doing made no mention of his existence and instead had her partner noted as a guardian/sponsor of the children.
294.
It is clear to me that the son holds a clear preference to reside in Sydney and not change from his school. He wishes to continue his involvement with his sport in Sydney. He has significant friendships and associations in Sydney which would be substantially disrupted by a move to Melbourne. He also would appear to want to have his mother significantly involved in his care. The same position emerges for the elder daughter. She is happy and progressing well in her school. For her a move to Melbourne means a change of physical residence, school, friends and sporting associations. The younger daughter is really too young to have her wishes realistically assessed. She has however commenced her formal schooling in Sydney this year and a change for her at this time must be seen as having some disruptive impact upon her.
295.
The mother’s reaction to the obvious disruption to the children of a move to Melbourne is that they will adapt. With the benefit of hindsight it is just as well the father did not agree to the mother’s proposals in early 2006. That would have lead to a relocation to E, the children being enrolled in schools in that area then having to be moved to Melbourne and to A Public school when the arrangements for the mother’s partner’s children changed so radically as a result of their mother’s move to Melbourne. I am however cognisant of the fact that had the parties’ children been well settled in schools at E, the mother’s partner may have taken a different position in the proceedings between he and his former wife in relation to her proposed move to Melbourne from E. Regrettably though I must conclude I could not be certain about this. I am left with a sense of concern that in the mother’s view of priorities her partner and his relationship with his children would be prioritised over any disruption to her children’s lives which a move from E to Melbourne could have.
296.
The mother has indicated on occasions that she resents the intrusion of the father telephoning the children. She has described these phone calls in her emails as “harassment” by the father of her. I consider that there is a probability that the mother would restrict the children’s telephone communication with the father and would otherwise not encourage the children to speak to their father frequently, (daily if necessary) because she holds some view that this somehow interferes with the “family atmosphere” she wishes to achieve in Melbourne with her husband. If phone calls between the children and their father were perceived by the mother to somehow disrupt that atmosphere I think she would find it very difficult to give the children the clear message that she supported communication between the children and their father. In my view the mother would prioritise the children’s involvement with “the Melbourne family unit” to that of the promotion of their relationship with their father.
297.
Of particular concern to the Family Consultant was the advancement and support of the younger daughter’s relationship with each of her parents. Given the younger daughter’s age and developmental stage it was clear that she will need help to make sure that her relationship with the absent parent is not damaged. The sensitivity of each parent to this matter will be of the upmost importance in ensuring the younger daughter can maintain and develop her relationship with the absent parent. Given all that has been outlined above and my assessment of the parties having seen them give their oral evidence and read their written evidence I have concerns that the mother could provide the means to adequately support the younger daughter through this difficult and crucial time of her development. I assess the father as being more in tune with this need and able to facilitate this very important relationship for the younger daughter than the mother. I assess him as having the steadiness of personality to be able to in most circumstance put aside the emotional issues between the parties and to put the best interests of the children ahead of his own interests where that is required. I have no confidence that the mother could do that with any regularity.
298.
It is my assessment of the mother that she remains very angry and bitter about perceived actions of the father. I say perceived because she clearly sees herself as the victim in this relationship. That is she sees the father as harassing, manipulative, obstructive, bullying and uncompromising. I do not find that the evidence substantiates those conclusions in the main. There are certainly examples of behaviour of the father which could be described as uncompromising and disrespectful. I refer in particular to the invasion of the mother’s house by the father contrary to her wishes. I refer to the incident described as the lost ski holiday for the children in mid 2006, however, in the majority of examples of communication between the parties I find it is the mother who predominantly fills the tags of manipulative, obstructive, bullying and uncompromising rather than the father. Further I can clearly see the emergence of the father out of the upset and hurt that he obviously felt following the separation to a position where I am satisfied that he is able to see things through the children’s eyes and predominantly suggest courses of action which best suit their needs. There are exceptions to this and that is why I use the term predominantly. I do not find the mother has this ability. It seems to me that she has become more involved in the dispute between the parents since the separation and I find that predominantly she does not exhibit the ability to see how proposals of and actions by the parents impact on the children. I find she cannot identify with the children’s plight in the parental conflict and she is therefore unable to provide relief for them from the consequences of that conflict. I could not be confident that she has the ability to predominantly make decisions for the children which are based on their needs rather than her own.
299.
I hold a concern that the mother will not allow the children to recover from this case. I think there is a significant prospect that she will through her actions and words seek to undermine the orders of the court and manipulate the children to ask their father to change their residence to the mother in Melbourne. It is my opinion that the mother will need a considerable amount of help from a therapeutic psychologist or therapeutic family psychiatrist to change from her current state. She is angry with the father for opposing her moving the children to Melbourne. She appears to have convinced herself that she is the victim in this family rather than the children and I think there is a significant prospect she will be vengeful against the father. If that be correct I conclude there must be a real chance she would blindly use the children as instruments in that vengeance all the time denying that she was.
300.
This case to a significant extent turns on my assessment of the parent who is most likely to promote the relationship with the absent parent should it eventuate that the parents can’t each participate significantly in the children’s lives during school term. I have determined that the parent I would most trust with that task in this case is the father.
301.
The Family Consultant pointed out in her report at paragraph 52 that the older two children have had to deal with a significant number of major changes in their lives over the last 5 years. The further changes which would be occasioned by the mother’s proposal are a change of residence to Melbourne, living with greater regularity with the mother’s partner’s children, a new school, seeing less of their father during school term, having to make new friends and joining new sporting associations and teams. In the father’s proposal the only significant change for the children will occur if and when the mother determines she can no longer attend to care for the children during school term as she does now.
302.
The evidence of the father, particularly his oral evidence, impressed me as illustrating a greater insight to the needs of the children than the mother. He shows all the signs of having emotionally dealt with the breakdown of his marriage whilst acknowledging that it was difficult for him. He shows no sign of being vengeful or vindictive towards the mother or her partner. He does seem genuinely driven by a reasonably objective view of what is in the best interests of the children. He does appear to have the capacity to look at the children’s position in this dispute in an objective way and appreciate for them the nature and extent of their relationship with their mother and the likely impact on them of not having her to participate in their lives in the same way that she does now. He illustrates an understanding of the mother’s predicament and shows empathy for the mother. Although given a number of opportunities to be critical of the mother and show some antipathy towards her the father did not do so.
303.
What flows from the above directly impacts of the children’s ability to maintain a meaningful relationship with the parent who will be less actively involved in the children’s daily care. In the younger daughter’s case, given her developmental stage, if she is to maintain her relationship with the less actively involved parent she will need frequent, positive reminders of that parent. Looking at each of the parents I conclude it is the father who will be best equipped to provide that positive image of the mother for the younger daughter. I am not confident that the mother would be able to convince the children that she does hold a positive view of the father. She clearly dislikes and probably detests the father. Given the close relationship the children have with her I think it probable they would know her views.
304.
I find that the father’s proposals for the children’s future care are most likely of the parents competing proposals to best promote the children’s future emotional well being and their relationships with each of their parents. To that end it will ensure the children maintain a meaningful relationship with each parent.
305.
At the conclusions of the submissions in this matter I said to the parties that the reasons for judgement which I will have to deliver in this case are likely to bring hurt and disappointment to at least one of the parties. I said that it is the nature of these types of cases that one of the parties will be bitterly disappointed.
306.
I have been required to make a clear choice for the children because their parents were incapable of doing that for them. The reasons need to be clear and decisive. I have had to focus on differences in personalities and parenting styles of the parents. That has meant that I have had to draw contrasts between what each parent has to offer the children. I have had to make findings which I am sure will be hurtful to the mother and about which she will be resentful and no doubt, see most of the findings as unfair. These findings are necessary but also destructive in that they exacerbate parental conflict rather than resolve it. If parental conflict is exacerbated then that is very much contrary to the best interests of the children. The parents chose the adversarial path for the determination of this case. They could have chosen the less adversarial path. When the parents chose the adversarial path they unwittingly (I hope) condemned their children to the consequence of the negative impact of those proceedings on the parental relationship. I predict that the parental relationship in this case will take a long time to heal if it ever does. I suspect the mother will not easily accept the decision of the Court. I think it is possible that she will consciously or otherwise portray herself as the victim in this marital struggle to the children. If so the children will be likely to be hurt further. There must be a significant chance that they will come to blame themselves for their mother’s grief. The older two know that they made it clear to the Family Consultant they wanted to live in Sydney and they must have seen that as a vote for their father in this contest. The potential psychological scarring for these children of an ongoing dispute between their parents rather than an accepting of the situation and an attempt to move forward in a positive mood must be significant. I would recommend for the children’s sake that the mother seeks urgent supporting therapy to help her deal with this loss.
307.
Before closing these reasons I wish to comment on the manner of the cross-examination by the mother’s counsel of the father and his witnesses in this case. Mr Schonell is a senior practitioner in the court and his cross-examination was one of the best I have seen for a long time for a variety of reasons. It was relevant, sensitive, productive and helpful. His professionalism was outstanding and deserves commending.
The Orders
308.
The orders of the court cannot reflect an equal shared time parenting arrangement for the children which I determine to be in their best interests for practical reasons. The mother will be residing in Melbourne. She will provide her children with as much of her time as she can reasonably manage. In the short term she has committed to living in Sydney every second week for four nights in order to participate in their care during school term time. Realistically all I can do is order that the children live with her in Sydney during that time or for an extension to seven nights from Monday evening to the following Monday morning each alternate week if she is able to facilitate that.
309.
As stated earlier there should be an order for equal shared parental responsibility for the children.
310.
The children should spend additional time with their mother during school holidays. The proposal for the children to spend the bulk of the holidays at the end of terms 1 and 3 in each school year together with some of the Winter and summer holidays with their mother seems appropriate. This will enable them to catch up on lost time with their mother during school term.
311.
The father should have eight days with the children during the mid year school holidays. This will enable a skiing holiday with him if that can be organised. It would permit the mother likewise to spend a skiing holiday with the children if she so chose.
312.
There should be an equitable sharing of Christmas Day and birthdays.
313.
There should be liberal telephone and e-mail communication between the children and the absent parent wherever the children are living at the time.
314.
Orders should be made compelling the provision of information between the parents in relation to a number of aspects of the children’s lives.
315.
Each parent should have free and unfettered right to attend any of the children’s activities and this should be encouraged and facilitate by each parent. Orders should be made to this effect.
316.
There has been considerable conflict between the parents about the children’s extracurricular activities. The conflict has largely been about the son’s participation in Rugby. The mother holds the view that the son plays too much Rugby. In order to avoid further conflict the parties should agree in writing about the extra curricular activities the children should engage in during school term. I should say here that if the mother is not going to be able to spend a reasonable amount of time with the children on weekends during school term then she should not be unduly prescriptive as to the extracurricular activities the children engage in on weekends in Sydney and the father should have a reasonable say in those matters.
317.
As referred to earlier I propose to make an order restraining the father from leaving the children unsupervised by an adult. Such supervision is to be physical to the extent that the supervisor must be in the same house as the children at the time of the supervision. This order should operate at least until each child has attained the age of 13 years. He should consult with the mother on this matter.
318.
A matter which has caused conflict between the parties is the mother requiring her sister and others to supervise and care for the children during school term and on her Sunday evening when she remained in Melbourne. This should not occur in the future. If the mother is not available to be in Sydney with the children during school term then they should be in his care.
319.
In the event of the mother not being available to exercise her time with the children during school term she should provide as much notice of same to the father as she reasonably can and then the children should be cared for by the father.
320.
Each parent should be able to organise the children’s time during that parent’s time in school holidays. Consequently if a parent arranges for a child or the children to spend time with a relative or friend that should not be capable of being interfered with by the other parent. Accordingly there will be an order to this effect.
321.
In the event of the father having to absent himself from Sydney during school term for any reason during the time he is to have the children in his care then he is to offer the mother the opportunity to care for the children in Sydney during that time before he makes other arrangements for their care.
322.
There will be orders to facilitate a proper exchange of information about matters touching on the children’s health.
323.
Orders need to be made to ensure each parent has the contact details for the children at all times.
324.
The children should spend Mothers’ Day with the mother and Fathers’ Day with the father.
325.
The parties should have the opportunity to share time with the children on Christmas Day and Boxing Day if the parents are both in Sydney for that time. They should negotiate this time having regard to where the children spent this time last year. In the event of a dispute I trust the father to determine it in the best interests of the children and with fairness between the parties. The children should not miss out because the parents cannot conclude an agreement about this time.
326.
The parents should both be able to share time with the children on their birthdays.
327.
I am required to consider what orders best meet the children’s best interests. In this regard I am required to not restrict myself to the orders sought by either of the parties. I have made some orders which were not particularly sought by either party. They do however, deal with issues which arose during the trial and are likely to be a problem for the children if no orders are made. One example of this relates to the children’s school weekend activities. There is evidence that while the mother has been living in Melbourne she took the girls out of their school early on Friday and kept them away from school until the following Tuesday. She did not have the father’s agreement to this course of action. The mother had obtained the school authorities consent to this action. This type of unilateral action potentially raises a problem for the children because their father was not consulted nor consented to that action. The children should not be dealt with in this way by either parent. The order I will make will cause the children not to be exposed to this type of situation in the future. It supports the children’s emotional well being because they will know such occasions have the support and consent of both parents.
I certify that the preceding three-hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench
Associate:
Date: 15 May 2007
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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