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Conflict results in change of residence

Conflict results in change of residence

Veitch & Leslie

Introduction

      1. These proceedings concern final parenting arrangements for two children – X born (omitted) 2003 and Y born (omitted) 2004. The parties to the proceedings are the children’s parents – their father Mr Veitch and their mother Ms Leslie. The case is a difficult and challenging one for a number of reasons, not least the intractable conflict between the parties.
      2. The parties have been in dispute with one another, in respect of where X and Y should live, since mid-2008, which is shortly after they separated. Needless to say, after nearly a decade of legal proceedings, the parties neither like nor trust one another and are incapable of communicating effectively. It would be naïve for me to think anything other than that this regrettable state of affairs has had severely detrimental consequences for both children.
      3. Since the last final order was made on 21 August 2013, the children have lived predominantly with their mother and spent regular weekends and holidays with their father. Mr Veitch has lived at (omitted) for many years. Ms Leslie at (omitted), approximately 50km away. Both parties have significant and long-standing familial ties to the area of the (omitted). Ms Leslie’s mother lives at (omitted), which is about fifty kilometres north of (omitted). Several of her children, from earlier relationships, also live in the area.
      4. The final arrangement, envisaged in the orders of August 2013, broke down in mid-2015, when the mother unilaterally relocated the children’s place of residence away from (omitted) to (omitted), in the South East of South Australia. The mother’s ostensible reason for moving was so that she could pursue a relationship with Mr M, who had also previously lived in (omitted).
      5. This development led to Mr Veitch commencing the current round of proceedings in September of 2015. At this stage, he sought the immediate return of X and Y to the (omitted)/(omitted) area. In addition, he used his application to vent his long standing concerns that Ms Leslie was not attending to the children’s emotional needs, particularly X’s.
      6. At the interim stage, his application took a protracted course through the court, as service on Ms Leslie was problematic, due to the uncertainty of her whereabouts, from Mr Veitch’s perspective. Ms Leslie herself, when served, vehemently opposed the children returning to (omitted). In addition, she had difficulty in formally responding to the application concerned.
      7. It was Ms Leslie’s position that she, X and Y were happy and well settled in (omitted). She asserted that Mr Veitch was a violent and neglectful parent, who had been essentially disinterested in the children for some time. She asserted that she had attempted to inform Mr Veitch of her desire to move to (omitted) but he had ignored her, leaving her with no viable alternative but to move away.
      8. For his part, Mr Veitch refuted any suggestion that he was not interested in the welfare of X and Y. It was his position that Ms Leslie was well aware that he would not agree to the children moving to (omitted), in any circumstances, and she had planned her relocation in secret accordingly to frustrate both him and the earlier made court order.
      9. Ms Leslie was served with Mr Veitch’s application, on 24 November 2015, following the making of a Commonwealth Information Order. Thereafter, it was only on 1 February 2016 that Ms Leslie provided any answering material to Mr Veitch’s application, notwithstanding a number of orders that she do so earlier.
      10. Ultimately, I determined, pending final hearing, that X and Y should be returned to the (omitted)/(omitted) area and, if Ms Leslie elected herself to return, the children should live with her, with the previous contact arrangements being reinstated, but otherwise the children should live with their father.[1] Ms Leslie elected to return.
      11. It is Mr Veitch’s case that he finds Ms Leslie impossible to deal with in respect of any arrangement to do with the care or parenting of either X or Y. It is Ms Leslie’s case that she would like to be able to communicate directly with Mr Veitch but is frustrated that he never responds to her text messages to him.
      12. The parties separated in late 2007, after a five year relationship. The catalyst for their separation was the fact that Mr Veitch had commenced a relationship, with his current partner, Ms R. He and Ms R now have a daughter, A, who was born on (omitted) 2009.
      13. Mr Veitch asserts that Ms Leslie has never come to terms with the fact that he formed a relationship with Ms R and, as a consequence, is still struggling to make the necessary emotional adjustment. There was an unpleasant altercation between Ms R and Ms Leslie, which occurred in November of 2012, the emotional consequences of which continue to reverberate, for all concerned to this day.
      14. Mr Veitch characterises Ms Leslie as an emotionally reactive and histrionic person, who remains obsessed with him and the nature of his relationship with Ms R and is unable to let go of what happened in November of 2012. He also believes that she is mentally unwell, which renders her unable to parent the children adequately, particularly so far as the satisfaction of their psychological and emotional needs is concerned.
      15. The present situation presents Mr Veitch with a dilemma. He believes the mother’s voluble and labile personality disqualify her from being the children’s primary carer. However, he is also aware that, if there is a change in the children’s care arrangements, leading to X and Y moving to live with him, Ms R and A, Ms Leslie will not readily accept such an outcome, but will fight tooth and nail to reverse it, using whatever means are available to her to do so, including co-opting the children to assist her, which necessarily has the potential to be emotionally destabilising for them.
      16. Essentially, it is Mr Veitch’s case that Ms Leslie is a person, who is incapable of maintaining proper boundaries or putting the requirements of the children before the satisfaction of her own emotional needs, particularly her apparent overwhelming need to be involved in some form of romantic relationship. It is his case that Ms Leslie’s evidence, regarding what he would characterise as her former relationship with Mr W and what she has said about her various medical conditions indicate that she is, to all intents and purposes, out of touch with reality.
      17. At the start of proceedings, Ms Horvat, counsel for Mr Veitch opened his case on the basis that he was seeking one of two final outcomes in the case, as follows:
        • firstly, essentially a maintenance of the status quo, that is Ms Leslie maintain the children’s principle place of residence in (omitted) and X and Y spend regular periods of time with their father, on both weekends and during school holidays;
        • secondly, only in the event that Ms Leslie indicates her unwillingness or inability to live in (omitted), the children’s principle place of residence be changed to his home in (omitted) and X and Y spend regular periods of time with their mother, during school holidays, depending on logistical issues depending on where Ms Leslie chooses to live.
      18. As the evidence in the case has unfolded, particularly from the court appointed expert, Ms P, Mr Veitch’s view of what is the appropriate outcome in the case has coalesced – he now seeks final orders that would see the children coming into his predominant care, regardless of where Ms Leslie ultimately chooses to live. It is his case that it is only through such an arrangement that X, in particular, will attend school regularly and receive the psychological counselling, which he urgently requires.
      19. Ms Leslie has acted on her own behalf throughout these proceedings, compiling lengthy affidavits to advance her case. However, during the proceedings, she presented as an isolated and needy person. She did not call any evidence from Mr W and acknowledged that she was no longer in a relationship with him and had gone to (omitted), in the first place, in the hope of rekindling her relationship with him.
      20. Nonetheless, it remains Ms Leslie’s position that the children’s interest will be best served if she is permitted to live with them in (omitted). It is her case that the nine months she was able to live, with X and Y, in (omitted), represented a brief and happy window in their lives, which were otherwise marred by Mr Veitch’s coercive and controlling behaviour towards her and the children.
      21. It is my impression that Ms Leslie has become fixated on (omitted), which she regards as some form of emotional (omitted), which will transform her life for the better, notwithstanding the obvious difficulties in her relationship with Mr W. The evidence indicates that he had moved away from (omitted), with his children, to (omitted), and had not been willing to reinstate the relationship, when Ms Leslie arrived.
      22. As a consequence of her attitude and notwithstanding the recommendations contained in the family report, Ms Leslie was not willing to compromise the case, at the outset of the final hearing, along the lines envisaged in Mr Veitch’s first proposal, which would see X and Y remaining in her predominant care provided that she remained living in the (omitted) area. Rather, Ms Leslie steadfastly maintained her position that there was nothing for her in (omitted) and she needed to move.
      23. It is Ms Leslie’s case that (omitted) offers the children more educational opportunities and she herself will have access to better medical facilities in the town. In addition, she asserts that the children will be able to maintain a satisfactory level of relationship with their father, if they interact with him during school holiday periods, after she, X and Y have moved to (omitted).
      24. Mr Veitch doubts that this will be the case. It is his position that the mother’s conduct, between July 2015 and March of 2016, amply demonstrates her lack of commitment to supporting the children’s relationship with him and over distance, particularly the 500 kilometres plus which lie between (omitted) and (omitted).
      25. It is his case that during the time the children were living in (omitted), the mother did nothing to ensure the children remained in contact with him and he only saw the children, over the Christmas holiday period of 2015/2016 because of the court’s involvement.
      26. Ms P approached the case on the basis that there were three possible outcomes in the case, namely the two initially proposed by Mr Veitch and the third proposed by Ms Leslie that the children relocate with her to (omitted). Ms P categorically rejected Ms Leslie’s preferred outcome. She recommended as follows:
        • the parties have equal shared parental responsibility for X and Y;
        • the mother be restrained from relocating, with the children, to (omitted);
        • X and Y spend alternate weekends, during school terms, with their father as well as half of each school holiday period;
        • Ms Leslie access some form of mental health support via her general medical practitioner;
        • Ms Leslie self-refer to Child Adolescent Mental Health Service (CAMHS) in order to seek parenting education and support and psychological intervention for X, particularly to address his behavioural issues and refusal to attend school;
        • Ms Leslie organise a referral for X to counselling at his school.
      27. In all the circumstances prevailing, Ms P did not give active consideration to the possibility of the children coming into the father’s care, whilst Ms Leslie continued to live in relative proximity at (omitted), as neither party had actively advocated for it. Obviously such an outcome would entail the parties having to interact with one another directly on a regular basis. This in turn is likely to have some emotional consequences for the children given the endemic conflict between the parties and Ms Leslie’s likely inability to accept such an outcome.
      28. Given the relatively mature ages of the children concerned, it is to be anticipated that they will be able to express a preference as to their final living arrangements, notwithstanding the intense conflict between their parents, to which they have been regularly exposed. In this context, in her family report, Ms P described the children and their views in the following terms:

            [X and Y]

        presented as acutely aware of the litigation process and conflict between the parties and hence understood the purpose of the interview. No obvious concerns regarding their development were noted.

 

X and Y advised of their wish to remain living in (omitted) with Ms Leslie and to spend time with Mr Veitch, each alternate weekend. They noted that they wished to remain in close proximity to their adult siblings, who also reside in (omitted). X and Y clearly stated that they do not wish to return to (omitted).”[2]

  1. Mr Veitch and Ms Leslie are not the only parties to the proceedings. Due to the intensity of the conflict between them and their mutual allegations of improper conduct, on 10 February 2016, it was ordered that both X and Y be independently represented in these proceedings.
  2. The independent children’s lawyer is Ms Catherine Nelson, an experienced Adelaide family lawyer. Ms Nelson was the independent children’s lawyer, in the second round of proceedings between the parties, which Mr Veitch commenced in February of 2013. Ms Nelson has briefed a barrister, Ms Cocks, to appear on her behalf in the current round of proceedings.
  3. Pursuant to section 68LA(2) of the Family Law Act 1975, Ms Nelson and Ms Cocks are required to form an independent view, based on the evidence available to them, of what is likely to be in X and Y’s best interests and then advocate that view to the court. In addition, it is part of Ms Nelson’s statutory responsibility to analyse any report or document relevant to the children and provide her opinion of such report or document to the court.
  4. In the earlier proceedings, Ms Nelson arranged for a family assessment report to be prepared by Mr A.[3] This report followed an earlier report, also completed by Mr A, 27 February 2009. In addition, in the current round of proceedings, Ms Nelson arranged for subpoenae to be addressed to a number of authorities, which have been involved in the care of X and Y. In particular, she has obtained documents relating to X’s attendances upon CAMHS and the children’s school records.
  5. In her report, Ms P expressed, on the basis of history provided to her, significant concerns about both parties. These concerns included that Mr W had previously been violent to the children; Ms Leslie’s mental health was not adequately managed; Ms R had continued to make derogatory comments about Ms Leslie to the children; and Mr Veitch continued to abuse alcohol and cannabis.
  6. In this context, Ms P recommended that Ms Leslie obtain a mental health plan from her treating general medical practitioner. Injunctions be made to restrain all the parties and their partners from denigrating one another in the presence or hearing of the children. The mother be ordered to withdraw the children from any of Mr W’s abusive behaviours.
  7. During the course of her evidence to the court, Ms P modified her various recommendations significantly. She described Mr Veitch as “the more competent parent, the more stable parent, the more responsive parent.” In particular, Ms P was concerned about what she viewed as Ms Leslie’s inconsistent parenting and, passive parenting style, which she did not believe were suitable to the children, who needed to have firm boundaries.
  8. Overall, Ms P believed that Mr Veitch was more capable of attending to the children’s basic care needs, particularly in terms of education, in a timely fashion than was Ms Leslie. It was in the light of this evidence that Mr Veitch changed his position in the case resulting in him seeking orders that the children come immediately into his predominant care, regardless of where Ms Leslie chooses to live and the probable difficulties which this may present of a poisoned chalice.
  9. Against this background, notwithstanding Ms Leslie’s likely resistance to it, and its incongruity with the views of the children, as presented to Ms P, it is Ms Cocks’ submission that X and Y’s best interests will be best served, if they come into their father’s predominant care as soon as is practicable. Ms Cocks concedes that such an outcome has the potential to be disruptive, for X and Y, in the short to medium term.
  10. Given what she submits are the severe and endemic problems in the parties capacity to communicate effectively with one another, Ms Cocks is not in favour of the parties sharing equal parental responsibility for the children. Ms Cocks submits that, if the children move to live with their father, Mr Veitch should be conferred with sole parental responsibility in respect of making major long term decisions for X and Y. If this occurred, Ms Cocks was in favour of the children starting at the (omitted) School, near Mr Veitch’s home, at the start of the 2017 academic year.
  11. Overall, it was Ms Cocks’ position that the evidence currently available to the court indicated that there were significant concerns arising from how Ms Leslie had parented X and Y up to this stage. In particular, Ms Cocks submitted that there was cogent evidence that Ms Leslie had engaged in emotional manipulation of the children, through her attempts to procure them to write letters directly to the court indicating their apparent preference to live with their mother in (omitted).
  12. In addition, Ms Cocks is critical of Ms Leslie for not attending to X’s educational needs and peremptorily removing him from counselling at CAMHS, when she wished to move to (omitted) in mid-2015. In this context, the records subpoenaed from CAMHS and the children’s schools are central to her submissions.
  13. Mr Veitch endorses the submissions of the independent children’s lawyer, which support his contention that Ms Leslie is a manipulative and un-insightful parent, who has consistently put her interests and desires before those of the children. His counsel, Ms Horvat characterises Ms Leslie as having a grandiose personality, which cause her to fabricate stories, particularly about her health and relationships.
  14. In these circumstances, Ms Horvat submits that the court can have little confidence that Ms Leslie is a truthful person and therefore should significantly discount Ms Leslie’s allegations of violence and misconduct made against both Mr Veitch and Ms R. In particular, she submits that the court should reject any suggestion that it was Ms R who instigated the incident of November 2012 or who continues to expose the children to her pent up animosity regarding Ms Leslie.
  15. It is long been Ms Leslie’s position that she has been the subject of Mr Veitch’s coercive behaviour and this, in part, justified her move to (omitted) as well as supporting her assertion that she is likelier to be happier and so a more competent parent, if she is able to live there with X and Y.
  16. Australia is a free and democratic society whose citizens value their entitlement to live where and how they choose. I can appreciate why Ms Leslie would want to have a fresh start, in a new town, far away from (omitted), which she asserts now has only unhappy associations for her. Ms Leslie’s aspirations regarding her preferred place of abode are modest and understandable. Her furniture remains in storage in (omitted), which is a testament to the strength of her convictions in regards to the potential of the move to make her happier.
  17. I am not in a position to overlook Ms Leslie’s legitimate expectations that she is free to live where she chooses. However, this case is not primarily focussed on Ms Leslie’s entitlements and aspirations. Rather, I am directed to consider what is likely to be the best outcome for X and Y. Their best interests remain the paramount or most important consideration for the court.
  18. The proceedings before the court were difficult for all concerned, particularly Ms Leslie. Following the interim hearing, which directed the return of X and Y to the (omitted)/(omitted) area, the parties competing applications were fixed for final hearing on 1 & 2 August 2016. It being my view that, given issues of relocation were involved in the case, it was appropriate that the final hearing be expedited as much as possible in the circumstances, given that Ms Leslie’s entitlement to freedom of movement had been infringed.
  19. Ms Leslie experienced difficulty in obtaining legal advice, notwithstanding the fact that she is not a wealthy person and has been in receipt of social security for many years. She did not comply with orders regarding the filing of her affidavit material for trial, in a timely fashion. In these circumstances, she sought the adjournment of the final hearing, on the basis that she was unwell and unable to prepare her documents.
  20. I was not prepared to adjourn the proceedings in the absence of definitive evidence regarding Ms Leslie’s medical condition. Her then solicitor subsequently withdrew from the proceedings. Ms Leslie herself was able to submit a lengthy affidavit, which she had prepared herself, on the first day scheduled for the final hearing.
  21. Regrettably, the two days allocated for the final hearing proved inadequate to complete the case and the case was adjourned, part-heard, on two more occasions. In the adjournments more evidence came to light, which related to Ms Leslie’s attempts to involve the children in the proceedings in order to influence their outcome. On any view, the outcome of the proceedings is a matter of great moment for Ms Leslie and she attempted to do whatever she could to secure the outcome of her preference.
  22. Her attempts, in this regard, were not ultimately always to her advantage. They led me to the view that she was more focussed on what she thought was best for her, rather than what was best for X and Y. She presented, at times, as a desperate person, who would do anything she could think of to advance her case.
  23. Ms Leslie, like many self-represented litigants before her, found it extremely difficult to cross-examine witnesses, without making lengthy submissions to the court. She herself acknowledged that she found it extremely difficult to present her case effectively. She was anxious to leave no stone unturned in her case and effusively refuted every negative comment made about her. This led to prolongation of the case.
  24. Without doubt, the outcome of these proceedings has great emotional and personal significance for Ms Leslie. In such circumstances, it is only to be expected that Ms Leslie would do the utmost she could to obtain her preferred outcome. On one occasion, she brought the children to court in the vain hope that I would interview them privately in order to ascertain their views in respect of living permanently with Mr Veitch.
  25. Later, after I had declined to do so, she provided two letters, purportedly written by X and Y, to the independent children’s lawyer. The bulk of Ms Leslie’s case was an inchoate plea that I make orders, which would enable her to live with the children in (omitted), so that she could attempt to reconcile her relationship with Mr W.
  26. Ms Leslie greeted Ms Cock’s submission that the children should live with their father in (omitted) with hurt and incredulity. I accept that she finds it extremely difficult to accept that the possibility of the children living with their father rather than her remains a live one. I doubt that she will ever accept such an outcome and will therefore do whatever she can to reverse or undermine it.
  27. Accordingly, in my assessment, the case remains an extremely problematic one, which offers no perfect outcome. Whatever happens, it seems probable that the children will remain surrounded by the endemic conflict between their parents. In these circumstances, I must remain focussed on what I consider to be the best outcome for the children, in these imperfect circumstances.

The family report and the evidence of Ms P

      1. Ms P is a social worker by occupation. She has been a family consultant since January 2011. Her family report, dated 3 June 2016, was thirty three pages in length and was, in my view, a comprehensive and considered document.
      2. Ms P has a significant advantage over me in these proceedings. She was able to observe and interview both children and so gain a sense of what were their views about their current situation through a process of direct interaction with them. Accordingly, her report and subsequent evidence are of great assistance to me. I accept Ms P’s evidence.
      3. Ms P assessed Mr Veitch and Ms R to be “child focussed with sound understanding of the children’s developmental needs”. Her impression of Ms Leslie was of a person who was “tangential and repetitive in her narrative” whose mood ranged from “anxious, agitated, angry, upset and frustrated”. These observations accorded with my own impressions of the parties.
      4. The father expressed to Ms P an inability to communicate with the mother in a constructive way. He provided a history of Ms Leslie invariably raising historical issues with him, particularly regarding the parties’ former relationship, whenever he wanted to discuss issues relating to the children. This has been a consistent theme of the father’s evidence, which I accept accurately represents the manner in which the parties have previously communicated.
      5. In interview, with Ms P, both the father and Ms R acknowledge that they had been guilty of denigrating the mother, whilst X and Y were present. This had last occurred in 2012 but had since ceased. That Mr Veitch made the disclosure in my view, adds to my overall assessment that he has been candid, both with the court and Ms P.
      6. Mr Veitch acknowledged the children’s attachment to their mother to Ms P. However, he also raised concerns that Ms Leslie, from time to time, neglected significant aspects of the children’s physical care, particularly in regards to hygiene and dental needs. Mr Veitch also raised complaints that Ms Leslie did not adhere to the court mandated arrangements for him to spend time with the children with any degree of regularity.
      7. In this context, it is my finding that Mr Veitch’s evidence is likely to be more reliable than that of Ms Leslie, who has asserted that it is the father who has been largely disinterested in spending time with the children. I reject this evidence. Rather, it seems to me, on balance, more likely that Ms Leslie has not been supportive of the children spending time regularly with their father.
      8. Ms P described X and Y as being “acutely aware of the litigation process and the conflict between [their parents] in interview with her. In this context, Ms P assessed that both children understood the purpose of their interview with her and accordingly Ms P assessed their preference to remain living in (omitted) and not to return to (omitted) to be genuine.
      9. Both children reported that Ms R continued to denigrate Ms Leslie, in their presence, referring to their mother as lazy and calling her derogatory names. X confirmed the episode in 2012, acknowledged by Ms R, involving the window.
      10. X and Y reported a fairly recent incident, when Ms Leslie had lost her temper with them, which Y described as their mother “flying off her rocker”. Ms P reported as follows:
        “Y shared that of her parents, she feels closest to Ms Leslie. X did not offer a response. In terms of the quality of their time with Ms Leslie, the children’s responses suggested that Ms Leslie made very little effort to spend quality time with the children. They noted that Ms Leslie spends most of her time on her mobile phone.”

 

The children indicated that they enjoy their time with Mr Veitch and Ms R as it had often included outings and positive experiences. It was confirmed that J is present to supervise them when Mr Veitch and Ms R are at work.

 

At the conclusion of the interview, X and Y expressed their concerns that Ms Leslie would become angry (‘yell’), at them for disclosing their wish to remain in (omitted).”[23]

  1. X and Y’s emotional bond, with their father, was readily apparent to Ms P in the formal observation process. The children were more off-hand with their mother, but securely attached to her. At the end of the observation session, Y was overheard to whisper to her mother “no yelling in the car”. This suggested to Ms P that, to a certain extent, the children were habituated to their mother flying off her rocker and had assumed a position of authority, in respect of this type of behaviour, over their mother.
  2. In her evaluation of the family, Ms P opined as follows:
    “… moreover, when taking into consideration Mr Veitch’s and the children’s disclosures alerting concern for Ms Leslie’s propensity for uncontrollable angry responses, and the mother’s mental health and medical history, it is the report writer’s opinion, that having Mr Veitch at reasonable driving distance from the children, in case of the children requiring assistance, is a necessary safeguard.”[24]
  3. As previously indicated, when she was writing her report, Ms P was of the view that Mr Veitch was not seeking orders that would see X and Y living with him if Ms Leslie continued to live in the (omitted)/(omitted) area. In these circumstances, he was not in favour of Ms Leslie being allowed to move away, from the area, with X and Y. Her rationale for this position being that, given Ms Leslie’s multiple frailties, as a parent, it was imperative that a viable parenting option be close by, given the likelihood Ms Leslie herself would fail, as a parent.
  4. It is now Mr Veitch’s position that he wishes the children to live predominantly with him, in the (omitted) area. In this context, Ms P’s recommendations, in the case, have also shifted to a significant degree. In particular, Ms P was alarmed by what was revealed by X’s attendance notes at CAMHS.
  5. These concerns, expressed in Ms P’s oral evidence, can be summarised as follows:
    • X’s attendance and presentation at school noticeably improved, whilst Ms Leslie was away on holiday and declined upon her return;
    • There were issues in X’s relationship with his mother, which related to behavioural issues of defiance and school refusal;
    • There were serious implications for X’s medical health if it remained untreated;
    • In this context, the mother’s refusal of assistance, from CAMHS, in June 2015, was very concerning;
    • Overall, the mother had a very good understanding of her own emotional needs but not of those of the children.
  6. In her family report, Ms P cautioned against the court putting in place any shared parenting regime, given the chronic conflict between the parties and their communication deficits. In this context, she wrote as follows in respect of X’s concerning presentation, both to her and the CAMHS workers.
    “X’s needs in relation to his learning difficulties, behavioural issues and school refusal, require consistent parental responses. Upon noting X’s care history of instability and change of primary givers, it is possible that living in a shared care arrangement, in the context high parental conflict, would further exacerbate X’s difficulties. It would be all the more difficult for X to make any positive behaviour change if he had to contend with the difference in parenting styles, and poor communication between the parties. The parties did not demonstrate sufficient ability to co-parent with one another, in the context of a shared care arrangement.”[25]
  7. Ms P also wrote that she was “concerned about Ms Leslie’s ability to consistently attend to the children’s needs in a manner that is supportive of their development.”[26] Again, she wrote this in the context of the mother’s proposed relocation, which she opposed. In these circumstances, she believed that it was important that the children spend as much time as possible, with their father, in order to compensate for their mother’s parenting deficits.
  8. In her oral evidence, Ms P indicated that she had been unaware that there was a third option in the case of the children living predominantly with their father, at his home in (omitted), as this had not been articulated in Mr Veitch’s formal documents. When advised that the option was in fact open, Ms P indicated that she was in favour of it. Her evidence can be summarised as follows:
    • Mr Veitch was the more competent, stable and responsive parent;
    • Mr Veitch was able to demonstrate insight into the reasons why X was behaving as he was, particularly with school;
    • X did not exhibit any behavioural issues, when he was living with his father;
    • The mother’s parenting style was inconsistent and passive, which was not helpful to either child at this stage of their development;
    • The children needed firm boundaries, which Ms Leslie was not able to provide;
    • The father was more able to attend to the children’s basic needs, in a timely fashion;
    • The concerns relating to Ms R were historical and there were no pressing concerns in respect of her raised in the formal assessment process;
    • The father’s living arrangements were stable.
  9. Ms P does not have psychological or psychiatric qualifications. In addition, as previously pointed out, there is a dearth of expert evidence regarding the mother’s mental health. Nonetheless, Ms P expressed herself concern about the mother’s mental state, given her self-focussed presentation during the report process.
  10. In this context, Ms P noted that a parent’s poor mental health could undermine his/her attunement to child’s needs and impact upon the ability to attend those needs consistently and adequately. This was the background to Ms P recommending that Ms Leslie seek some form of referral to a mental health practitioner.
  11. Finally, Ms P accepted the proposition that Ms Leslie, given her temperament, was unlikely to accept meekly any change in the children’s living arrangements. Such a situation has the capacity to exacerbate the parties’ already highly acrimonious parenting relationship. However, this circumstance, of itself, did not dissuade Ms P from her recommendation, provided at final hearing that X and Y come into their father’s predominant care.

Conclusions on section 60CC factors

  1. As a consequence of weighing up and considering the various section 60CC factors, I have come to the conclusion that, overall, they favour the children coming into to the predominant care of their father, despite the fact that they have lived mainly with their mother for many years. I reach this conclusion primarily because I consider that Mr Veitch is better placed to provide for the children’s educational and emotional needs and is likely to be the more stable parent.
  2. X and Y’s lives have not been stable for the last few years. During this period X, in particular, has been at risk of educational failure and psychological harm. He needs urgent assistance in this regard and a calm and stable household. I am not persuaded that Ms Leslie is able to provide such things, particularly whilst she remains fixated on an alternative life in (omitted).
  3. In these circumstances, Ms Leslie retains her prerogative to live wherever she wishes. In the event she chooses to remain living in the (omitted)/(omitted) area, I propose that the children spend time with her on alternate weekends and for other of school holidays. If she chooses to live elsewhere, I am satisfied that X and Y will be able to maintain a meaningful level of relationship with their mother if they spend half of each school holiday in her care.
  4. I appreciate that this change will be a significant one for all concerned, including Ms Leslie, who will be shocked and hurt by it. However, all things considered, I believe it is likely to provide the best outcome for the children, particularly because it will provide their lives with structure and predictability. I am also satisfied that the children will be able to accommodate the change envisaged.
  5. In these circumstances, I propose making an order that will authorise Mr Veitch to enrol the children at the (omitted) School for the start of the 2017 academic year. I have endeavoured to complete these reasons for judgment so this objective can be achieved. I will also make an order mandating the father to obtain the necessary referral, for X, to CAMHS and for him to obtain appropriate counselling at school.
  6. There remains the question of how parental responsibility is to be otherwise divided between the parties, in the absence of the presumption of equal shared parental responsibility. As a consequence of these proceedings, Mr Veitch has been authorised to make a significant and major long term decision in respect of the children – he has been able to enrol them at the school of his preference, which is near to his home. In addition, he has been authorised to make significant counselling decisions, in respect of X.
  7. I accept that Ms Leslie will always remain deeply interested in every facet of the children’s lives. However, the evidence available to me indicates that she and Mr Veitch struggle about everything to do with the children, particularly about such things as school, education and counselling.
  8. In these circumstances, I consider that one parent has to be conferred with sole responsibility for making decisions about such things as educational matters, school and counselling and any psychological treatment the children may require in order to ensure that important decisions about these matters are made in a timely fashion. It makes obvious sense that that parent should be Mr Veitch.
  9. Otherwise, I propose that he and Ms Leslie share responsibility for making other long term decisions in respect of the children, particularly in regards to any major long term health issue arising for either X or Y. As such, it will be necessary for Mr Veitch to provide the necessary information about such issues to Ms Leslie so that she can be consulted about them.
  10. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

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