Best interests and relocation
Summary – where the father seeks an order that three children who have lived primarily with the mother since separation four years ago live with him – where the mother wishes to relocate with the children to a location 700 kilometres from the place where the father prefers to live.
The children’s best interests
- The children’s best interests remain the paramount consideration and to determine their best interests I must have regard to the matters in s. 60CC (2) & (3) of the Family Law Act.
- The primary considerations in s.60CC(2) are:
(a) the benefit to the children of having a meaningful relationship with both of the children’s parents; and
(b) the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
- S.60CC(2A) provides that in applying the considerations set out in subsection (2) the court is to give greater weight to the consideration set out in paragraph (2)(b).
- X, Y and Z will undoubtedly benefit from having a meaningful relationship with both of their parents. The parents are both capable adults. They have their failings as all adults do but they each offer something different but important to their children. Their children value them and they value their children.
- A meaningful relationship has been defined as one which is significant, valuable and important to the children. If the children live with the mother in their current location they will continue to spend sufficient time with the father to ensure that they have a meaningful relationship with him but there is nothing to suggest that if they live with the mother at a distance from the father that will not also be the case. Their relationship with him will be different and his involvement in their lives will be different and that is a relevant matter which I will have to consider in more detail later in the judgment but in qualitative terms the children’s relationship with the father will continue to be significant important and valuable to them.
- There was no evidence that the mother was likely to seek to undermine the relationship and use distance and the reduction in time to her advantage. There was not a shred of evidence of her denigrating the father to the children and she has facilitated him having time with them since separation, indeed it is the father who has in the past chosen to spend less with the children than he could have. There was nothing to suggest that the mother had picked (omitted) as her preferred location in order to put a distance between the children and the father and weaken their relationship with him.
- It is true that the mother unilaterally relocated with the children in November 2014 but in the circumstances of this case I do not accept that this one off event justifies a conclusion that the mother might not comply with court orders or might seek to undermine the children’s relationship with the father if she relocated.
- Sometimes distance can create problems because people cannot afford travel and there is a risk in this case that time will be missed because of this but the father is earning a very good income and he is capable of ensuring if he chooses that no time with the children is missed for financial reasons.
- I have some concerns about what might happen to the children’s relationship with the mother if they live primarily with the father.
- The father was highly critical of the mother in his affidavit for a whole range of things, some quite trivial. It was clear from his affidavit that notwithstanding that he was content to leave the children with her for three years after separation he has a very poor opinion of her as a mother and housekeeper and he places weight on negative things the children say about her without pausing to reflect on whether those things might be capable of other interpretations or might be said to please him.
- On the father’s proposal if the children live with him the paternal grandmother will have a significant role in their care and the paternal grandmother is also very critical of the mother.
- It would be highly regrettable if an idea was inculcated into the children’s minds that the mother was an inferior mother with strange ideas who was a poor financial provider because she was not trying hard enough. This could undermine the children’s relationship with her and I do consider that there is a risk of this occurring if the children live primarily with the father.
- There was nothing to suggest that the children were likely to suffer physical or psychological harm as a result of being subjected to or exposed to abuse, neglect or family violence in the care of either parent.
- Some of the father’s complaints about the mother raise the spectre of neglect but in my view these complaints are better dealt with as parenting capacity issues.
- The father alleged that in 2013 the mother made two separate threats to harm the children. I will deal with this in the family violence section of the judgement but for reasons to be given I do not consider that these threats even taken at their highest establish that the children were then or are likely in the future to be at any risk of harm in the mother’s care.
- S.60CC(3) contains the additional considerations and the first of these is any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s view.
- I accept the father’s evidence that the children say that they miss him or do not want to leave him at changeovers but this is not evidence that they have a particular view about parenting arrangements or prefer him to the mother.
- The family report writer, who is a professional person who does not bring her own emotions to bear in the proceedings and can be relied on to provide objective evidence, said as follows in her report:
X indicated that she would like to live with the mother and have time with the father. Y and Z because of their age and developmental level were not asked.
- The father submitted that X’s views should not be given any significant weight because they might have been influenced by events which occurred immediately prior to and at the interviews and might be different now that the father had ended his relationship with Ms V to whom none of the children warmed.
- I do not accept this submission. X has lived all her life with her mother and the family report writer observed her to have a good relationship with her. This makes it probable that the views she expressed to the family report writer were genuinely held and not unduly influenced by extraneous events. However X is young and her views are only one thing I have to consider and they do not determine the matter.
- I must consider the nature of the relationship of the children with each of their parents and any other persons (including any grandparent or other relative of the children).
- The mother has always been the children’s primary carer and is their primary attachment figure but X and Y (and to an extent Z) also have an attachment to their father.
- The family report writer said that:
[X] appeared to have a strong attachment to the mother and an attachment to the father. X indicated she had a somewhat ambiguous relationship with the father’s partner although when she engaged with the father’s partner she appeared to be pleased to spend time with her. 
- The family consultant said as follows about Y:
Y 5 appeared to be meeting his physical developmental milestones but appeared to have a poor concentration and became easily irritated. He was demanding in the presence of the mother and more settled in the presence of the father. He did not encourage or engage well with his siblings and at times attempted to dominate them.
- The family consultant said as follows about Z:
Z 2 appeared to have a close attachment to the mother and a somewhat ambivalent relationship with the father and he did not engage with the father’s partner.
- In another section of the report she said as follows:
It was noted at the interview that Z did not engage well with the father. The father reported in a follow up email to the consultant that Z had engaged with the father and his partner well during the school holidays.
- The mother did not suggest that there were any major difficulties in Z’s relationship with the father and said that there was an occasion in January 2016 when Z asked to ring the father. However Z has never lived with the father as part of an intact family and there can be no doubt that his strongest bond is with his mother.
- It was apparent at the family report interviews that the children did not have a close or warm relationship with the father’s fiancée Ms V. However that relationship has now ended.
- I must consider the extent to which each of the children’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children.
- The father has not taken every opportunity to spend time with the children since separation. In November 2013 he told the mother that he could not continue to spend each weekend with the children because he wished to have some “personal time” and time to pursue his new relationship.
- During the hearing the father came up with the proposal that he would move to (omitted) once he obtained his (omitted) ticket and he proposed that an equal time arrangement then commence which would involve the children being in his care on all of his days off. However he previously withdrew from such an arrangement because he wanted some personal time and I have some concern about what might happen in the future if the father, who is currently single, again found himself in the position of wanting to pursue a new relationship on some of his days off unfettered by child care responsibilities.
- I must consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children.
- The father is assessed to pay child support on an income of $130,000.00 per annum. He in fact earns $160,000.00 per annum but he has not lodged his tax returns for the last two years and at present is assessed on the lower income.
- During cross-examination the father suggested that $160,000.00 was not an ongoing income but in his affidavit he simply said: “I earn approximately $160,000.00 per annum.”
- The current assessment requires the father to pay $475.00 per week and he also pays the children’s fees at (omitted) School in the amount of $278.00 per quarter.
- The evidence suggests that the father is somewhat bitter about being required to pay child support. On 20 October 2014 the mother reminded him by text message that his previous two payments had been $90.00 short and she ended by saying “I’ve had the kids two weeks in a row.” The following day the father sent the mother a text message saying:
Get a job and raise our own kids.
- The mother said that there had been other occasions when the father had not paid the correct amount of child support and when she followed it up the father called her names such as “fat cow” or “lazy” or told her to “get a job.”
- During an exchange about child support on 3 February 2015 the father said:
Get off your fat ugly arse and get a job and earn your own money.
I have no issues supporting my children but will not pay for you to sit around bludging off me!
They are just cash cows to you, get off your cellulite fat ugly arse and work for your money.
- My concern about these exchanges is not just the abusive language but that it suggests a fundamental inability by the father to appreciate the difficulties a single parent faces if required to work, care for their children and care for their home. The father has to this point in his life faced none of those difficulties. He has always been able to work when and where he chose without being required to make any child care arrangements; he has prioritised his work and his personal life and fitted the children in around these other aspects of his life.
- The father alleged that on one occasion the abuse did not emanate from him but from his partner who used his phone to send an offensive message to the mother after she complained about payment of child support. I have reservations about whether this is true but even if it is the views the partner expressed were clearly consistent with the father’s own views.
- I must consider the likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from:
- either of his or her parents; or
- any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
- There were a number of changes inherent in the parties’ proposals.
- The first is a change of the children’s primary residence from the mother to the father inherent in the father’s proposal that the children live with him.
- The father’s proposal for primary residence is curious because he does not intend to take a substantially greater role in the children’s care if this order is made than he does at present. He does not propose cutting back his working hours or changing his job so that he was more available to the children. What he proposes in effect is that rather than the mother caring for the children during the day including before and after school, members of his family or an au pair would do so. The father will of course be there for a few hours with them on weekday evenings which is not currently the case.
- This would be a dramatic change for the children and it is deeply troubling that in cross-examination the father refused to concede that the children might have difficulty adapting to such a significant change in their circumstances or might struggle to make sense of why it had happened. The paternal grandmother similarly brushed this off as being of no moment.
- Children can adapt to change and sometimes change cannot be avoided but it would be a dramatic change for the children who have a close and loving relationship with their mother. The mother has been Z’s primary carer for his entire life and Z is only just three and the fact that the father demonstrated no empathy for the children suggests that he is not well placed to help them adapt to a change of residence. I do not share the family report writer’s view that the father shows empathy for the children; the evidence before me suggested the reverse.
- The alternative change the father proposed was to equal time in line with his new shift roster. This would mean that the children would still be in the mother’s care for four days out of eight. It would be a less dramatic change for the children and provided that the parents had the capacity to co-operatively parent the children and the mother was content to live in (omitted) or move to (omitted) it is a change the children might more easily adapt to.
- This change however could be extremely detrimental for the children if the mother was resentful about being forced to remain in or near (omitted) and did not cope and the mother has had some mental health issues in the past, or if the children had to move frequently between two parents with very different parenting styles and deal with the father’s constant disapproval of and criticism of the mother.
- The final change is that proposed by the mother that she and the children live in or near (omitted).
- In this scenario the children would still be cared for by the mother on most days as they are used to. However they would see their father much less frequently and they may not see him or see members of the paternal family at all on school term weekends.
- The children are not used to the father attending their extra-curricular activities during the week or going to school events during the week very often or to seeing him at any other time during the week but they might well miss seeing him regularly on weekends. The father gave details in paragraphs 210 and 211 of his affidavit of the activities he and the children did on weekends and during school holidays.
- However if the mother is happier in (omitted) this could have positive flow on effects for the children in terms of the mother’s parenting capacity of which the father is so highly critical.
- It was effectively the father’s case that the mother was doing a very poor job of parenting the children at the moment and that she would continue to do a poor job and might even do a poorer job if she moved to (omitted) where she had no connections with anyone.
- I will need to assess this further once I make findings about the mother’s parenting capacity.
- I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
- If the children live in (omitted) or in in any other location within 150 kilometres of (omitted) they can see their father each alternate weekend as well as during the school holidays without undue expense and with a manageable amount of travel.
- If the children move 700 kilometres away they will either have to fly from Brisbane to (omitted) or the parents will have to drive and meet halfway. If the parents drive it will require the children travelling for 8.5 hours which is not ideal but if done occasionally the children should cope even if they do not enjoy it.
- Each option is viable for changeover for school holidays but weekend time in (omitted) would not be viable except perhaps occasionally if the children travelled by air.
- Weekend time or time during the father’s four days off once his roster changes could occur if the father flew from (omitted) to Brisbane and then drove to (omitted). He would have to pay for flights and for accommodation but he is a relatively high income earner.
- There is always a risk if a party moves away that problems with finances will interfere with the children spending time with a parent and it has to be acknowledged that such problems could arise in this case.
- On several occasions after the father moved to (omitted) the mother asked him to collect the children from (omitted) because she had financial difficulties and could afford not get them to (omitted). Her financial circumstances may not greatly improve if they improve at all if she moves to (omitted) and there is always a risk that she might have difficulty meeting travel costs.
- The father earns $160,000.00 per annum and will soon to be earning $190,000.00 per annum so in theory he could help out if the mother ran into financial problems but there are many examples in the evidence of the father refusing to do extra driving or refusing to pay anything in excess of his child support assessment.
- There is therefore a risk in this case that even if the father had the capacity to help if the mother was unable to meet particular costs that he would not agree to do so and this could result in him missing time with the children if they lived a considerable distance away from him.
- I must consider the capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including their emotional and intellectual needs.
- The father does not have any criminal convictions and he does not have any mental health issues and he does not use illicit drugs and is not violent.
- The mother said that she was concerned about his alcohol consumption. The father was asked about this in cross-examination and said that he drank 8 to 10 beers on a weekend on occasions but denied that he drank at a level which comprised his capacity to care for the children and it is not open to me on the evidence to find that the father has a problem with alcohol.
- The father’s availability to care for the children if they lived with him full time is an issue. He works 5 days a week from 6.00 or 6.30am to 4.30 or 5.00pm. With travelling time he needs to leave home prior to around 5.30am and he gets home no earlier than about 5.15pm.
- On his current roster the father would be unavailable to get the children up in the morning or collect X and Y from school in the afternoon during the week if the children lived with him.
- The father said that his mother and sister would help him as required in the mornings and afternoons.
- The paternal grandmother lives in (omitted) an hour from (omitted) and the maternal aunt has a very young child. The father did not flesh out exactly how each of them would be able to help him if he had to leave home before 6.00am and did not get home until after 5.00pm. He said that he intended to utilise day care for Z and after school hour’s care for X and Y if required.
- During cross-examination the father said that he had also considered getting an au pair.
- The father displayed an almost stunning lack of empathy for the children in that he was unable to reflect at all on how such a dramatic change to their lives would impact on them. He refused to concede that such a change might be difficult for Z who has always lived with his mother. The paternal grandmother similarly refused to concede that the children might have any difficulty with the transition. There was a strong flavour in the father’s evidence of him being unwilling to reflect on this because he was bent on obtaining the outcome he preferred regardless of the children’s best interests.
- With the help of his family the father could provide for the children’s day to day needs and their educational needs if they lived primarily with him but I have considerable concern about his capacity to provide for their emotional needs.
- The father made numerous complaints in his trial affidavit about the mother’s capacity to care for the children.
- The father was content to leave X and Y in the primary care of the mother during the week when he worked away in Hobart between 2008 and 2010 and he made no complaint about her care of the children then. He was content to leave them with her when he cut back his time with them from each weekend to each alternate weekend in November 2013. He was content to leave them in her primary care when he moved 138k’s away to (omitted) and he was content to leave them in her primary care when he filed his application in December 2014 provided that she lived within 150 kilometres of him, yet in July 2016 he attempted to convince the court that there were such serious issues with her parenting capacity that the only option the court should consider was changing the children’s residence.
- The father alleged that the children were dishelleved and dirty and dressed in inappropriate and soiled clothing at changeover, that the mother’s car was dirty and full of rubbish, that the mother did not cut the children’s fingernails, that her house was unacceptably messy and dirty and that there was not always food in the fridge and that X had a dreadlock in her hair in December 2015 which he had to cut out. He also alleged that X was becoming parentified by being required to look after her younger brothers.
- The father took a photograph of X’s fingernails on one occasion and annexed those to his affidavit but to substantiate most of his complaints he mainly relied on things X had said to him and he asked the court to accept that his interpretation of X’s comments was correct and the only one open.
- It is always difficult to be sure that comments by children have been correctly interpreted when they are just reported without context. During submissions I gave the example of a child saying there was nothing to eat when the cupboard and fridge were full of food but just not food the child preferred.
- In my view there is a very high risk that the father is misinterpreting and investing with too much significance things X has said about looking after her brothers.
- The father is also naïve if he believes (and he said during cross-examination that he did believe this) that his children are unaware of the tensions and conflict between their parents and there is always a risk in these situations that children will say things to a parent which they know will find favour with the parent and keep the parent happy with the child or keep the child out of trouble.
- As I mentioned during submissions, Y saying to the mother that he would rather stay with her but goes to Dad’s so that he can play the Ipad is more than likely a classic example of this.
- Some of the father’s complaints were petty. He complained for example that on one occasion he observed that the foam padding had been removed from Z’s car seat. He said that he asked X about it and she said that Z had been sick on it so his mother took it off (presumably to wash it). He did not suggest that it was missing other than at changeover on one particular weekend.
- The father’s complaints about the state of the mother’s home rely almost entirely on things X is reported to have said to him and I cannot place weight on this information.
- I do not accept that there are any serious issues with the mother’s day to day care of the children.
- The father was highly critical of the mother over a Facebook post in which she described healing her house. He said that she:
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…described seeing images of people being murdered in the children’s home and requiring angels and old ancestors and owners of the house to clear up the images and that such beliefs were being conveyed to the children increasing their anxiety.
- The mother did engage in a ritual to cleanse her house which she described on Facebook but while this is New Age thinking which many people would not relate to, I do not accept that it illustrates that the mother has mental health issues which affect her capacity to care for the children.
- The father was highly critical of the mother for her alleged lack of capacity to manage money indeed in the Notice of Risk he filed on 16 March 2016 he alleged that her inability to budget despite receiving full child support and Centrelink assistance was something which put the children at risk.
- The mother explained during cross-examination that she had been under great financial stress when she first returned to (omitted) as she had taken out a 12 month lease on a home in (omitted) and had to continue to pay rent on the house until a new tenant was found as well as servicing the mortgage on the (omitted) property.
- The father complained that the children were missing too much school and were missing out on learning opportunities and he expressed concern in his affidavit about comments in Y’s 2015 report about his behaviour.
- The school reports which were produced did not substantiate an unacceptable problem with attendance and it is clear from the reports that X is doing very well at school. Y has had some issues with his behaviour but the evidence was that the mother (and only the mother) dealt appropriately with these issues in consultation with the school.
- I do not accept that the fact that the mother has not taken the children to the pool recently or continued X’s (hobby omitted) lessons since returning from (omitted) is evidence of neglect or slipshod parenting by the mother and the pettiness of the father’s complaints is illustrated by the fact that he devoted a paragraph of his affidavit to criticising the mother for saying in the presence of the children that she could not care less about Star Wars.
- The father’s complaints about the mother do not give rise in my mind to a concern about the mother’s capacity to care for the children on a day to day basis but they do give rise in my mind to a concern about the father’s capacity to provide for the emotional needs of the children.
- The family report writer said as follows:
The father and his partner would provide the children with structure and boundaries which they are appear to be lacking at this time but it is important to consider if they could provide them with the unconditional affection provided by the mother, despite her difficulties.
- This observation strikes a chord with me. The father showed a striking lack of empathy for the children in his evidence at the hearing and I have considerable reservations about whether he could provide them with the unconditional affection provided by the mother.
- The mother has had some mental health issues in the past in the form it would appear of feeling stressed and suffering from depression and the family report writer said as follows in her report:
The mother who has been the significant primary carer is overwhelmed by a situation where she is caring for three small children, has significant financial constraints, is unsettled with residency and lacks unconditional family and community support. Despite this the mother has cared for the children under isolated and somewhat difficult circumstances since the birth of X.
The mother reported a history of sexual abuse when she was a child and was further betrayed by the maternal grandmother who did not accept that this had happened. This has further contributed to the mother’s feeling of isolation. The literature relating to this form of abuse consistently reports that this can create long term mental health issues and a reluctance to engage with services that could assist the victim. Whilst the mother has engaged with practical services there is no evidence that she has engaged with a counsellor who could assist her not only with her emotional issues but provide practical support to assist her to move forward. The mother needs to engage with a support service such as Centacare in (omitted) who could assist her with her emotional issues and with budgeting. Medicare Local in (omitted) would be another option although its availability is currently subject to government funding.
- Unfortunately the family report writer was not provided at the time of writing her report with subpoena material which confirmed that the mother had engaged in counselling in the past. The mother gave evidence in her affidavit of having accessed counselling support in Tasmania in 2004 to talk about the sexual assault allegations and she had further counselling in Tasmania between 2006 and 2008. She was assisted by her counsellor to make a report to the police.
- The mother had 6 sessions of counselling when she was pregnant with Z and just after his birth.
- Between March 2014 and September 2014 the mother saw Ms N, a counsellor at (omitted) Psychology in (omitted). She sought this counselling because of workplace issues but during this counselling she discussed her plans to relocate from (omitted) and the counselling records were tendered during the hearing.
- The mother was prescribed anti-depressants in mid-2014 and ceased taking them in August 2015. It is not open to me on the evidence to find that the mother was reckless with her mental health in deciding to cease taking the anti-depressants.
- The mother does not have mental health issues of such magnitude that they impact on her capacity to care for the children but the fact that she has sought counselling assistance regularly over the years and that she is manifestly unhappy living in (omitted) suggests that there might be some impact on her parenting capacity if she is forced to remain there against her wishes or alternatively told that her only options were to move to (omitted) or some location within 150 kilometres of (omitted) with which she feels no connection.
- The mother is in my view managing the parenting of the children appropriately. She would like more assistance from the father and she expresses resentment at times about his failure to provide it but it does not follow from this that the mother would be unable to cope with parenting the children in (omitted). She is parenting them satisfactorily enough now and the fact that she would have them on additional weekends if she moved to (omitted) does not in my mind raise a concern that she would fall into crisis in terms of caring for them.
- It was a plank of the father’s case that the numerous problems with the mother’s parenting capacity meant that it was preferable that the children remained living near him so that he could keep a close eye on them or as his counsel put it check up on what was happening for them.
- I do not accept this because I do not accept that the father’s complaints about the mother’s parenting have merit.
- I do accept that the mother feels considerable resentment about the father being able to control where she lives while at the same time taking a strictly limited role in parenting the children but keeping her close to the father is not going to ameliorate that, it will only exacerbate it and that will not improve the children’s situation.
- I must consider the maturity sex lifestyle and background of the children and any other characteristics of the children that the court considers are relevant.
- X is 8 and is doing well at school. Nothing stands out about X which requires comment under this heading.
- Y is 6 and is Year 1. He had some problems in Kindergarten with paying attention and interacting with others and he was referred for an assessment by an Occupational Therapist in August 2015 to assess his fine motor/gross skills and hyperactive behaviours. The Occupational Therapist made some suggestions which Y’s teacher adopted.
- The father was highly critical of the mother over the fact that Y had issues at school but it is noteworthy that the parent who received information from the school about Y’s difficulties, who followed up the school’s recommendation about Y having an assessment with an occupational therapist and who attached a copy of the report to her affidavit was the mother.
- Z is 3 approaching 4 years old. He is not attending any day care in (omitted) but the mother takes him to a (omitted) group one day a week.
- The father complained that Z was not counting or saying his ABC’s and not recognising colours which X and Y could do at a similar age. He opined that this was due to Z not receiving the same nurturing and attention to assist with his learning and development as the older children had.
- The purpose of this evidence was to disparage the mother as a parent and the father clearly did not think it through before he gave it.
- The parents separated in February 2012 when X was almost 4 and Y just over 2. The father had worked away during the week for most of the children’s lives and was only home on weekends and he did not give any evidence of engaging in educational activities with them weekends. The same was the case after separation; the children lived with the mother during the week and spent time with the father on weekends and the father gave no evidence about doing educational activities with them on these weekends. The mother was the parent who had the major input into X and Y gaining skills. There was no evidence that she had parented Z differently and if Z is learning at a different rate it might well be because he is a different child.
- It is also noteworthy that while the father was quick to criticise the mother for Z’s non-acquisition of certain skills he did not suggest that he spent any time on his weekends or during the school holidays endeavouring to rectify this.
- The mother said that Z had “clicky” hips and knees and that it had been recommended that he have specialist orthotics. The mother said that she could not afford the $1,100.00 cost of this. When she approached the father for help he declined to contribute saying that he paid child support. The father did not challenge this evidence. For Z’s sake I hope that the parents sort this out.
- I must consider the attitude of the parents to the children and the responsibilities of parenthood.
- The mother can be roundly criticised for her decision to unilaterally relocate. Perhaps she hoped that given the father’s own actions and the fact that he did not blanket oppose relocation he would do nothing but she was wrong and her decision caused disruption for the children and a break in their time with their father and has done nothing for her relationship with the father. However she does not demonstrate a poor attitude to the duties and responsibilities of parenthood in wishing to relocate.
- It suits the father to stay where he is. He has secure highly paid employment nearby and his family live in the (omitted)/ (omitted)/(omitted) area. The father did not enjoy living in (omitted) and he exercised his right of freedom of movement to move to (omitted) but he is content to live in (omitted).
- The mother in contrast has no family in the area and does not feel at home there and now that the relationship has ended she does not wish to remain there. She wishes to move to a place which is a considerable distance from the father but this does not of itself display a poor attitude to the children or the responsibilities of parenthood.
- I must consider any family violence involving the children or a member of the children’s family.
- There were no allegations that there had been family violence between the mother and father but the father made some allegations about the mother’s behaviour to the children.
- The father said that in mid-2013 X told him that the mother had threatened to bash the children’s heads up against the wall if they did not go to sleep. He reported this to the Department of Family & Community Services (DoFACS). Nothing came of it and the father did nothing about parenting arrangements and indeed some months later he chose to leave (omitted) and move 138kms away. I do not accept, whatever the truth might be about what was said, that on the totality of the evidence this raises a concern that the mother might harm the children.
- The ease with which words can be twisted to cause alarm is illustrated by the evidence the father gave concerning the mother’s alleged threat to shoot the children.
- In his affidavit the father said that as follows about an incident in October 2013:
I received a text on my phone from Ms Malone which was deeply concerning where Ms Malone said that she would shoot the children.
- This is not an accurate account of what happened. The full text message appears at Annexure F to the father’s affidavit and in it the mother complains about the father and goes on to say:
So when I go mad and shoot everyone I will blame you cause you never took care of your own children when they were babies. You always leave that to me arsehole.
- I do not accept that this indicates some homicidal intent by the mother; it is if anything a cry for help or a colourful expression of resentment.
- The father notified DoFACS and the Police about the message but nothing came of it and the father did not seek to change arrangements for the children’s parenting after the message was sent and he relocated 138 kilometres a month later.
- I do not accept that the mother has committed acts of family violence against the children.
- The have never been any family violence orders.
- I must consider whether it is preferable to make the order least likely to lead to further proceedings.
- It is possible to speculate that any orders I make in this matter could lead to further proceedings whether for contravention or further parenting orders.
- I must consider any other relevant matter.
- First, the parties entered into consent orders in May 2014 settling property matters. It was agreed that the house in (omitted) would be transferred to the mother provided that she refinanced the mortgage. She was unable to do so and the property is now for sale. On the father’s estimate it is worth $300,000.00 and there is $282,000.00 owing on the mortgage. With selling costs it seems unlikely that the mother will get anything from the sale.
- Second, I have concerns about the father’s attitude to the mother and his lack of empathy for her.
- During the parties relationship the father worked very hard and provided well financially for his family but it is also clear on the evidence that the father valued his work highly and this continues to be the case.
- The father loves his children and he wants to spend time with them but he wants to spend time with them on terms which do not interfere with his work. He has never been willing to make sacrifices for them. Until March 2016, three years after separation, it was his case that the mother should remain near to him no matter how unpalatable that might be for her and no matter how little connection she had with the area in which he wished to live so that he could continue to see his children without making any changes in his own life, having made the changes he wanted in 2013 so he could pursue his relationship.
- It was part of the father’s case that the mother should not be permitted to move to (omitted) because she had no support there but the mother does not have any support she can rely on in (omitted) and there was nothing to suggest that if she moved to a place within 150 kilometres of the father that he or his family would be any more willing to provide her with unconditional support.
- The mother gave evidence about an occasion in early 2014 when she accidently trod on a sewing needle which dug deep into her heel and became lodged. She was looking after the children and also working part time and she initially avoided going to the doctor but when she eventually went to the doctor he informed her that she needed surgery.
- The surgery was booked for 14 March 2014 and the mother asked the father if the children could stay the night with him because she would be required to have a general anaesthetic. The father responded that the children could not come to his house as he was working. The mother rang the maternal grandmother in (omitted) who agreed to come up and mind the children while the anaesthetic wore off.
- When asked during cross-examination why he had not helped the mother when she asked him for help when she needed surgery on her foot he said:
I did feel I was getting taken advantage of both financially and with other things I needed to do for her.
- The father has rigidly insisted that the children come to him on Friday each weekend. The mother gave evidence of making a number of requests to him to pick one of the children up at a different time (so that Y could attend a birthday party or X do extra (hobby omitted) classes in preparation for an examination) but the father was never willing to do extra driving.
- The father’s has an extremely poor attitude to the mother which is not justified by anything the mother has done.
- He is highly critical of her for giving up her job with (employer omitted) and has been highly critical of her in the past for not earning sufficient income. He is highly critical of her housekeeping and about the children allegedly being dirty and dishevelled yet he left the mother in (omitted) to care for the children 12 days out of 14 so that he could live in the place of his choosing and pursue a relationship. He is apparently incapable of reflecting on how difficult it must have been for the mother to care for the children full time and also pursue employment.
- The parents are not the best communicators but they have been able to reach agreement in the past about numerous matters to do with the children and they will both continue to be a significant part of the children’s lives. The presumption in s.61DA of the Family Law Act is not rebutted and this case has none of the hallmarks of high level parental conflict or fundamental disagreement about religion or medical treatment or a strong power imbalance which suggests that one parent should have sole parental responsibility for the children.
- I am bemused by the fact that the father even sought an order for sole parental responsibility and he failed to/was unable to articulate in his material why he had done so.
- It is also noteworthy that when it was pointed out to the father in cross-examination that if an order was made for the children to live with the mother an order that he have sole parental responsibility would be problematic and he was asked what he proposed in that case he said that he proposed an order for equal shared parental responsibility and that he was sure that he could make it work.
- I intend to make an order that the parents have equal shared parental responsibility for the children.