Jones v Dunkel Rule – what does it mean?
Jones v Dunkel Rule – what does it mean?
After the judge had finished summing up a juryman asked a direct question seeking further guidance upon the significance of the fact that the defendant Hegedus could have given evidence and did not. His question was: “Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?” The judge said: “Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you.” Counsel for the plaintiff then intervened and in the course of doing so referred to what Jordan C.J. had said in De Gioia v. Darling Island Stevedoring and Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 , and submitted “when the matter goes to the jury then I do submit that the jury are entitled to take into consideration that here was a case where on the merits there was one person who could have told them the facts and they have no answer from that person”. Counsel for the defendants then submitted that the plaintiff had the onus of proof “and the fact that the defendant does not call any evidence does not absolve the plaintiff from proving her case”. The trial judge then gave a further direction as follows: “This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff’s evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant.” (at p312)
8. I regard this direction as incomplete and because the trial judge gave it as part of his answer to the juryman’s question and after counsel for the plaintiff had objected to the earlier part of that answer, I think O. XXII, r. 15, does not prevent the misdirection being taken as a ground of appeal. (at p312)
9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (at p312)
10. Taking the summing-up as a whole I think the first and second matters to which I have referred were covered adequately but I do not think that the third was referred to at all and in giving the guidance that the juryman sought not only was no reference made to it but the distinction made in the course of the summing-up between “proved facts” and “inferences” was emphasised and the impression was conveyed that once the jury came to the point of drawing inferences the defendant’s absence from the witness-box could have no significance. To use the words of Smith J. in Black v. Tung [1953] VicLawRp 84; (1953) VLR 629 : “The charge therefore withdrew from their consideration a matter which, if there was evidence proper to be submitted to them, they were entitled to regard as rendering more probable the inferences as to negligence and causation contended for by the plaintiffs” (1953) VLR, at pp 634, 635 . In my opinion this entitled the plaintiff to a new trial. (at p313)
11. The Full Court was, it appears, inclined to think that there was no case to go to the jury and being of that view it rejected the argument that the failure of Hegedus to give evidence could be relied upon to supply the deficiency of evidence. I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or to convert suspicion into inference but I treat this as a case where the failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw. (at p313)
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Freedom Law The Family Law Specialist
1300 365 108
Overseas divorce – property settlement time limit does not apply
Overseas divorce – property settlement time limit does not apply
CONCLUSIONS
- In my view, the legislation is clear. “Divorce order” relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.
- No part of the legislation, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas by order or otherwise. The term “divorce order” is used consistently throughout the legislation – pertaining to Australian divorces exclusively.
- It may seem to be an anomaly, that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.
- For these reasons it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104, requires leave after the expiration of the time provided by s 44(3).
- The appeal should be dismissed.
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Was Leave Pursuant to s 44(3) Required?
- His Honour’s findings with respect to s 44(3) are premised on leave pursuant to that section being required where parties are divorced by the law of a country other than Australia (at [185]-[193]). No ground of appeal challenges, in terms, that premise, nor do any submissions made by the wife or on her behalf.
- His Honour’s premise was based on one view – possibly the then predominant view – of then existing authority. Subsequently, this Court has decided in Anderson & McIntosh (2013) FLC 93-568, after considering existing authority and careful arguments in respect of the provisions of the Act and their meaning, that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.
- On an appeal by way of rehearing, this Court is bound to apply the law as at the date of the hearing of the appeal (see, Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7). This appeal was heard on 2 December 2013 and the decision in Anderson was handed down on 13 December 2013. However, the effect of the decision in that case is to determine the meaning of the terms of the Act applicable on, relevantly, 2 December 2013 (when the appeal was heard), and on 27 July 2011 when his Honour heard the proceedings; 13 March 2012 when his Honour delivered judgment; and, indeed, on 26 May 2000 when the wife filed her application for settlement of property in the Family Court.
- As a result, his Honour was in error in determining that the wife required leave pursuant to s 44(3) of the Act to institute her proceedings for settlement of property.
- Although no ground of appeal asserts, in terms, an error of law in this respect and although no submissions were made to that effect, “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
- As a result, the appeal, insofar as it challenges the alternative order made by his Honour in respect of leave pursuant to s 44(3), must succeed.
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Siblings reunited to live with their father
Siblings reunited – although siblings living separately to each other at time of final hearing, their best interests lay in living together with their father who was better able to regulate his own and the childrens’ emotions compared to the mother
Exton & Fahey
- The Family Consultant was strongly supportive of the children being reunited in their father’s care. She described the two boys as having been an absolute pleasure to meet and that it had been a mutually enjoyable interview. She explained that she had not seen the different side of either child described by the parents.
- The Family Consultant was very firm to say that the boys should be together, that they were physically affectionate with each other and showed a really good connection on each occasion she saw them. Significantly she said that in her view each child felt a burden of guilt about their separation and that there could be long lasting repercussions if they were separated.
- The Family Consultant stressed the significance of the sibling relationship, “They won’t have shared experience; they will grow apart. If one parent can meet their needs, then they should be together”.
- The mother cross-examined Ms R. The Family Consultant stood firm about the level of time with the mother she considered appropriate in the event that the younger child went to live with his father. She challenged the mother on her proposition that it would not be fair for the child if he spent as little as one weekend per term with her.
- The Family Consultant explained that none of what had happened to the children had been fair for them but they had a great need to lead a settled and predictable life. She also explained to the mother that in her professional opinion the mother’s behaviour provoked the older child to behave in a certain way; that his father’s behaviour did not provoke the same response.
- The Family Consultant also explained that she had heard of evidence given in the trial that concerned the mother, that the mother struggled physically with the older child. In the view of the Family Consultant there needs to be someone present during all periods of time for the time to be a benefit.
- Having read the report of the speech therapist for the younger child the Family Consultant agreed with the mother that the child was doing very well. She went on to say that if he was doing well then he would be likely to continue to do well in the care of his father.
- The Family Consultant also identified that the mother treated the two children very differently and that the boys were aware of the differential treatment and that posed difficulties for their relationship. That evidence resonated with the evidence of the mother and the maternal grandfather that the younger child was a good child with no behavioural problems and that the older child was a naughty and difficult child.
- Finally, the Family Consultant explained to the mother that it was her inability to regulate her own emotions that was the issue, “You are responsible for your behaviour and controlling your emotions. If you can’t control yourself and help them regulate their emotions then it’s a problem”. At that time the mother appeared to understand that the Family Consultant was not directing her recommendations to fairness between adults but the fundamental needs of the children and which of the parents could meet those needs.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
- For the past 15 months the children have been separated from each other. The orders providing for the children to spend time with each other and the parent with whom they were not living have required the children to do extensive travel, more importantly they have not been complied with by the mother in more than one respect. The mother failed to return the older child after the 2015/2016 school holiday period. The mother did not comply with the orders for her time with the older child to be supervised by her father. The mother has not ensured that the father spends time with the younger child.
- The change for the children which will most stabilise their situation is for them to be re-united with each other. The evidence strongly supports a finding that the father at this stage of their lives is better equipped to meet their needs and on that basis an order will be made that the younger child B moves to live in the father’s household.
- Although the younger child has made good progress especially with his speech and has enjoyed the greater calm of the mother’s household, he has asked his father about living with him and his brother. To maintain the status quo, of separation of the children, would inevitably lead to further applications, most particularly if the mother chose to move to a new location with her partner.
Family Report Process
What is a family report and how is it used?
The court or an independent children’s lawyer (if one has been appointed) may organise a family report during family law proceedings. A family report provides information about you, your children and your family to help the court identify what is in your children’s best interests. A family report is one of many documents that the court will consider when making decisions about your children.
A family report may include recommendations to the court about:
- parental roles and responsibilities
- how your children will spend time and communicate with their parents, family members and other significant people in their lives
- any safety issues
- support services or interventions that may help the children or adults, like attending a post-separation parenting program, for example.
Who writes the family report?
An accredited professional, such as a social worker or psychologist, will write the family report. This report writer usually has a lot of experience working with children and families. The court considers report writers to be independent experts in child and family matters.
How is the information for a family report collected?
- The report writer will speak to the adults and children.
- The report writer will decide whether they need to see the children and adults together as well as individually.
- The report writer usually sees everyone at their offices and does not usually attend your home.
- The report writer will determine who they need to see and speak to during the course of your scheduled appointment/s.
- The adults and children involved in the court proceedings will also be involved in the family report assessment.
- The report writer may involve other household members and significant others (eg extended family and friends) if they think it is necessary.
The report writer may collect information about:
- your children and their individual needs
- your children’s relationships with family members and significant others
- your children’s views – if they want to tell the report writer
- your views about what is in your children’s best interests
- your family history, including the history of parenting roles and arrangements and the relationships between the adults (past and present)
- what is currently happening in your child’s life
- issues relevant to the children’s and adults’ safety.
- If you have any questions about your family report appointment you can ask the independent children’s lawyer (if there is one), your lawyer (if you have one) or the report writer.
How to prepare for your appointment with the report writer:
- think about what is best for your children and why you think it is best for them.
- Tell the children they are going to see someone that is helping you to work out the best way for the children to spend time with people who are important to them.
- The amount of time the appointment takes will vary (depending on the issues and the number of people involved) but you will probably be there for most of the day.
- Whoever is bringing the children needs to bring someone to look after them while the adults are being interviewed.
- Bring food, drinks and some things to keep the children entertained.
- The adults should bring along, or have in mind, a play activity they can do with the children as the report writer may want to observe the children spending time with the adults.
How will the report writer use the information they collect?
The report writer will use the information they collect during this process to write the family report. The information you provide to the report writer cannot be kept confidential. The court can access any information collected by the report writer, even if it is not used in the final family report. If the matter goes to a hearing, the report writer may be required to give evidence at your hearing.
Who will see the family report?
Once the report writer has finished writing the family report, a copy will be given to:
- the court
- the independent children’s lawyer (if one has been appointed)
- you or your lawyer (if you have one)
- the person you are in dispute with or their lawyer (if they have one).
No one else will be given or shown a copy of the report.
Who will tell my child about the court’s decision?
Usually the parents explain the court’s decision to the children. In some instances, the report writer and the independent children’s lawyer may explain the outcome to your children when the court has made its final decision.
What if I have concerns about the report or the report writer?
If you have concerns about the report, the process used, or the report writer you can talk to us about what options are available in these circumstances.
What if I have concerns about my safety?
Sometimes people have concerns about their safety, or their children’s safety, around other people who will be involved in the family report. It is important for the report writer to know if you are concerned about your safety or if there are protection orders in place, so steps can be taken to ensure the safety of everyone involved in the report process.
More information
If you would like more information about a family report, please contact us at Freedom Law for an in person or online consultation.
Making decisions for your children when you separate
Making decisions for your children when you separate
Sometimes parents feel that it is best for children to make up their own minds about where they want to live. Young children are not usually ready for this responsibility as they are not generally mature enough to make this important decision. Having to make such a decision places a heavy burden on them and having to choose between their parents can lead them to feel guilty about the parent they have not chosen. Usually the best decisions about where and how the children live are those made together by the parents. However, parents should consider the feelings of their children and be willing to listen to them. Children should not be required to express a view when to do so would mean reprisal from a disappointed parent. Parents normally know their children’s needs and are usually in a better position than anyone else to make decisions about their children’s future. If parents are unable to make these decisions themselves because of conflict, family and child mediators and counsellors can help them to negotiate with each other. Mediators and counsellors can be contacted through the Family Court of Australia Mediation Service and through groups such as Relationships Australia, Centacare and Anglicare. They may assist parents who wish their children to be involved in decisions and they can help parents assess the needs of their children. If an agreement is still not possible at the talks, it then becomes necessary for the Family Court judges to make a decision. The judges will make decisions which they believe are in your children’s best interests, whether you agree with those decision or not. The Family Law Act guides judges as to what facts they need to consider when determining what is in a child’s best interests.
Messy separations – how to avoid hurting the children
Messy separations – how to avoid hurting the children
Things to avoid
Children are usually very loyal and trusting so it is important to look at the ways in which you behave with them to make sure you are not abusing their loyalty and trust. Set out here are some of the subtle ways in which parents can take advantage of their children in the midst of a messy separation.
‘Messenger’
– using your children as messengers between the two of you teaches children that adults cannot talk honestly or directly to each other.
‘I Spy’
– asking a child to report on the other parent is destructive – it is using a child for your own ends.
‘Your father is a slob’ ‘Your mother is a fool’
– anger between parents has a destructive effect on children.
‘Disneyland daddy’ ‘Mummy Santa’
– when visits are used just to give the child a good time, or outings and gifts take the place of normal parenting.
‘I still love him but he doesn’t love me’ ‘I want to keep the house for the kids but she wants to sell it’
– this puts pressure on your children to take sides.
‘You can go if you like … but we are going on a picnic’
– don’t set up competing activities, it spoils children’s pleasure in being with either parent.
Books for children dealing with separation and divorce
Books for children dealing with separation and divorce
- ‘It’s Just Different Now’
Espie, Linda
Spectrum Publications, Richmond 1999
– For children aged 3-7 years - ‘Mom’s House, Dad’s House: A Complete Guide for Parents who are Separated, Divorced or Remarried’
Ricci, Isolina
Fireside Books/Simon & Schuster,
New York, 1997 - ‘Two of Everything’
Cole, Babette
Jonathan Cape, London, 1997
– For children aged 5-12 years - ‘Dad’s Place : A Guide for Fathers After Divorce’
Burrett, Jill
Angus & Robertson, Sydney NSW 1996 - ‘I have Two Dads’
Wilson, Lorraine
Illustrated by Chantal Stewart. CIS Cardigan
Street, Carlton, Victoria 1995
For children - ‘The Suitcase Kid’
Wilson, Jacqueline
Illustrated by Nick Sharatt. Yearling
Books/Doubleday, London, 1993
For children - ‘To and Fro Children – A Guide to Successful Parenting after Divorce’
Burrett, Jill
Allen and Unwin North Sydney 1991 - ‘At Daddy’s on Saturdays’
Girard, Linda Walvoorol
Albert Whitman 1987 - ‘Break-up’
Padoan, G. – Milan, Italy
Happy Books 1987 - ‘Dinosaurs Divorce’
Brown, L and Brown M
Little, Brown 1986
– For children up to 10 years - ‘Jason Goes to Stay with Dad’
Liddicut, J. – Richmond, Vic
Ossie Books, 1986 - ‘When Jason’s Dad Moved Away’
Liddicut, J. – Richmond, Vic
Ossie Books, 1986 - ‘Daddy Doesn’t Live Here Anymore’
Boesehold, B. – New York
Western Publishing Co. Inc., 1985 - ‘Megan’s Book of Divorce’
Jong, E – London
Granada, 1985 - ‘What Kind of Family is This?’
Sevling, B – New York
Western Publishing Co. Inc., 1985 - ‘High Pavement Blues’
Ashley, B. – Harmondsworth & Middlesex
Puffin Books, 1984 - ‘Mom and Dad Don’t Live Together Anymore’
Stinson, Kathy
Annick Press, 1984 - ‘Breaking Up’
Willkott, F. – London
William Collins Sons & Co. Ltd, 1983 - ‘What am I Doing in a Step-Family?’
Berman, C. – Melbourne, Vic
Angus & Robertson, 1983 - ‘Bring to a Boil and Separate’
Hadley Irwin – New York
Atheneum, 1981 - ‘I Have Two Homes’
Althea – Cambridge
Dinosaur Publications, Ltd, 1980 - ‘My Mom and Dad are Getting a Divorce’
Bienenfeld, F. – St Paul, MN
E.M.C. Corp., 1980 - ‘So Mum and Dad have Separated’
Messenger, D.R. – Melbourne, Vic
Listen and Learn Productions, 1980 - ‘Divorce Can Happen to the Nicest People’
Mayle, P. – Melbourne, Vic
Sun Books, 1979 - ‘Divorce is a Grown Up Problem’
Sinberg, J. – New York
Avon, 1978 - ‘It’s not the End of the World’
Blune, J – London
(Piccolo) Pan Books, 1972
Look for these and others in your local library or book store
Family report recommendations weighed heavily by Court
Pierce & Percival
Family Report Recommendations
Family Report Writer
- The family report was Exhibit A. The family consultant who prepared the family report was Ms K. She interviewed the parties, the children, and the mother’s new partner on 3 August 2016.
- The father told the family report writer that his new residence at (omitted) comprised a two-bedroom apartment. (omitted) is located about 130 km distance from (omitted) Public School and it takes about 1hr 45m to 2 hours to drive, one-way. The father commutes from (omitted) to work in Sydney each day.
- The father stated he is a frequent visitor to his brother’s home, located in (omitted) Sydney close to (omitted), where he is always welcome to stay overnight with the children.
- The father did not complete a university degree course, but entered the workforce instead. He trained on the job to become a (occupation omitted). He worked in this specialty in his fly in fly out job in Western Australia. He also works in this position with (employer omitted), including as a (occupation omitted).
- Both parties informed the family report writer that the father had not spent time with the children since the weekend commencing 21 May 2016, a period of almost 3 months.
- The family report writer noted that an issue in dispute, at the time of her interviews with the parties, was whether or not the time that the children spend with the father should be reduced or remain as current, noting the interim parenting orders of November 2015.
- The mother presented to the family report writer, inter alia, as being conscientious with a strong preference for order, finding reassurance in routine, consistency and structure. She also impressed as carrying a high level of underlying anxiety, being disposed to a constant state of nervous vigilance.
- The mother told the family report writer that the children had been expressing that they were not enjoying the time that they were spending with the father from around Easter 2016.
- The family report writer observed that the mother appeared to place a high priority on the importance of the children maintaining their involvement in multiple sporting activities.
- The father impressed the family report writer, inter alia, as being emotionally defended and the bearing of a man who believed the world seemed in a conspiracy to slight or injure him. He impressed as carrying an underlying level of sadness and unresolved grief. He demonstrated that that although prone to introspection, he was also an intelligent, thoughtful man who was articulate and capable of insight, and seemed to care deeply about maintaining a relationship with the children.
- The father told the family report writer that he wanted to see the children and spend fatherly time with them without the interruption and interference of other people.
- The father told the family report writer that his ex-girlfriend was “a psycho” so he could not stay with her and he did not have enough money to pay the mortgage and live in Sydney. He earns $69,000 a year and he pays $687 per month in child support.
- In discussing his current alcohol use the father told the family report writer that he has not been using alcohol when the children are with him, not since the court order. He said he is happy to keep the court order in this context (the court notes that interim order 11 of the court’s orders of 24 November 2015 provides that the father is restrained from consuming alcohol whilst the children are in his care and shall not consume alcohol for at least 12 hours prior to the children coming into his care). He stated that he does not have a dependence on alcohol, it is not a need or requirement, and he is not an alcoholic.
- The children told the family report writer that the reason the children have refused to go with the father to spend time with him, as provided under the court orders, is, inter alia, because he does not listen; spending time with the father makes them feel anxious and afraid; they are afraid to tell the father what they feel for fear of him becoming angry with them; they never know where they are going to sleep; (omitted) is too far away and they may not make it back to play sport on weekends or get to school in time on Mondays.
- The family report writer noted that these concerns of the children echo the same concerns reported by the mother. Further, the child Y, when asked by the family report writer what was the main problem, stated, “there were always changes. When dad went to Western Australia, the entire thing had to change. We didn’t know when we were seeing dad. Then he was living with his girlfriend at (omitted). But now he has moved to the (omitted).”
- The child Y also reported to the family report writer that the father and his former girlfriend used to fight with each other with swearing. The children were mostly watching movies or sleeping during this time.
- The child X reported to the family report writer, inter alia, that she feels that she cannot say anything around the father. She reported that when the father asked the children whether their weekend was fun, if she said it was not fun, the father “lost it at us, he gets really mad, he started swearing at us… So if I had a bad day, now I just say “yes” and agree with him because I don’t want to get yelled at again.” She further stated that they cannot speak up when they are with the father. They do not say anything or do anything. They just try to stay happy. The child X stated that, “but I feel really down inside.”
- The child Y reported to the family report writer that “I start to feel worried and thinking about my worries…like what if I do a bad job and thinking about it… It feels like you are panicking if I think about going to see dad.” He stated that if he went to see the father by himself he would be very worried if no one was with him. The child X stated that if she had to see the father by herself, she would feel awkward and would not know what to do.
- The child Y reported to the family report writer that if he calls the father Mr Percival at his house he gets mad. This child reported that on one occasion the father, when he got mad, punched a wall, when they were at the father’s residence in bed.
- The child X stated that she had not seen the father drinking alcohol or seeming under the influence of alcohol when the children were spending time with him for a long time. She stated that she was not worried about this issue any more.
- The family report writer referred to the children’s strong feelings of emotional ambivalence, disappointment and anger toward the father.
- The family report writer observed the children in the presence of the father. Once in the children’s presence, the family report writer observed that the father showed himself capable of warming, becoming animated, maintaining age-appropriate conversation and even being playful, funny and demonstrative toward them. The family report writer observed that towards the end of the children’s time with the father in the observation session, the children showed genuine expressions of happiness and joy. She stated that the children said goodbye to the father having broken through some of the strained distance that had initially kept them apart. They exchanged spontaneous and reciprocal hugs with the father.
- Under the heading “Evaluation”, the family report writer stated that the children were assessed as having a warm and positive relationship with the mother, who was their primary attachment figure and carer.
- The family report writer assessed that although the children have been refusing contact with the father, their anxiety and ambivalence concerning the father closely mirrors the same anxieties and fears about the father expressed by the mother, in particular that the father can erupt with explosive outburst of anger which causes the children distress.
- The family report writer stated that the father appears to have some difficulties with poor emotional regulation and his capacity for effective parenting reflective functioning is changeable. She observed that although the father demonstrated he is capable of being child focused and having insight into the children’s emotional-social needs, his capacity for making himself both physically and emotionally available has been inconsistent and intermittent. She stated that the children seem to genuinely experience a high level of anxiety when they are with the father because they have learnt over time that spending time with him is not always emotionally safe or predictable. She observed that the children are strongly aligned with the mother.
- The family report writer assessed that the child X has a closer and stronger attachment with the father than does Y.
- The family report writer stated that the father, by self-report in his affidavit material, admitted that at the time of the separation he had great difficulties adjusting to the loss of the marriage. The father appears to have had a strong post separation grief reaction which led to a period of depression and difficulties with using alcohol as a coping strategy (the court notes the father’s admission in paragraph 60 of his trial affidavit that at the time of separation, his consumption of alcohol had increased and he used alcohol as a means to cope). The father’s capacity for effective parental reflective functional and emotional availability immediately post separation was assessed by the family report writer to have been low. She observed that the mother appeared to demonstrate an extremely high level of hypervigilant concern for the children’s safety and showed a level of unwillingness to allow the father to have any opportunity to begin to repair or even develop his own relationship with the children without it being mediated through the mother.
- The family report writer observed that there appeared to have been a significant rupture in the bond of trust between the child Y and the father which had created what was assessed to be an ambivalent attachment relationship between Y and the father. She assessed that the father’s intermittent emotional and physical availability across Y’s early years appeared to have also been a contributing factor to the growing ambivalence and developing hostility that this child felt towards the father.
- The family report writer stated that the children both reported feeling a level of anxiety and fear when spending time with the father. She referred to the children describing times when they had seen the father erupt with explosive anger and disapproval which they felt was directed toward them. She noted that the father denied that he got angry with the children. The family report writer stated that based on the father’s presentation and interaction with her, it was assessed that the father does struggle with poor emotional regulation and is likely to struggle with sudden flashes and outbursts of anger.
- The family report writer stated that the father did not appear to have the same difficulties with alcohol use as he did during the marriage and after separation.
- The family report writer stated that the father was assessed as lacking insight into the extent to which his own past conduct had contributed to the rupture in the children’s relationship with him, however he was not wilfully or consciously neglectful or seeking to harm the children.
- The family report writer stated that the children could benefit from the mother working on learning how to allow the children to become more emotionally independent and individuated from her and how she might learn to establish and maintain better boundaries with the children.
- The family report writer observed that the parties’ post separation relationship was characterised by extremely low levels of trust and very high levels of conflict. She stated that this case had a marker of being one of entrenched and enduring conflict. She stated that the conflict appeared to be getting worse and more entrenched. It was also now threatening to undermine the children’s ability to enjoy a close and significant relationship with the father and there were signs that the risk of the children becoming permanently estranged from the father over time was high.
- The family report writer stated that the father may still benefit from seeking professional help in better addressing and overcoming his poor emotional regulation and anger issues and examining how this may be impacting his parenting and the children’s relationship with him.
- The family report writer stated that the father has not helped himself. His reputation for intermittent availability to the children emotionally and geographically in the past, has been reinforced by his choice to relocate away from (omitted) to the (omitted). She stated that the children and the mother have expressed valid concerns about the impracticality of maintaining the current time spent with father arrangements when the father lives two hours away from where the children have long established sporting commitments and activities.
- The family report writer referred to the child X’s extra-curricular activities including representative (hobbies omitted) at a national level. She stated that asking this child to sacrifice participation in activities which showcase her gifts and talents will not assist her to want to spend time with the father. She stated that both children’s longer term emotional and psychological health and well-being and their capacity to form successful intimate adult relationships will be at risk of being undermined if they are allowed to continue to reject the father and are not assisted to try to repair the rupture between them. She stated that it was the child Y who was assessed as being at greater risk to develop a longer term anxiety disorder and become entrenched in his refusal to see the father and estranged from him. She referred to the child’s vulnerability to anxiety and his preference for routine and structure.
- Under the heading “Recommendations”, the family report writer stated, inter alia, that unless the father relocates back to the (omitted) area, whilst the father resides at (omitted), the time the children spend with him should be reduced to include from Friday after school until Sunday evening and half of the school holidays. Further, that the father should facilitate and support the children attending their sporting activities. It was inappropriate in the circumstances of this family for the mother to be in attendance at every sporting event when the children are scheduled to spend time with the father; the children need to be assisted to learn to rely on the father independent of the mother. That the number of sporting activities and commitments arranged by the mother for the children needs to be seriously rationalised to make room for the father to be able to spend time with the children.
- The family report writer recommended that the children’s wish to spend less time with the father during the weekend, so that they can continue to participate in their sporting commitments and not be required to undertake a two hour drive from (omitted) to (omitted) before school on Monday mornings, needs to be given serious consideration. She recommended that if the father was unable to make suitable structured arrangements to facilitate getting the children to their sporting engagements on Saturdays and Sundays when they are spending time with him, then the court should consider reducing the time that the children spend with the father to include each alternate weekend after sport on Saturday until Sunday evening. Finally, the family report writer recommended that the children and the parents should be referred for assistance by a family therapist/social worker or psychologist who specialises in post separation conflict and anxiety in children and/or the Anchor (Supporting Kids Through Separation) Program run by Unifam at (omitted).
Oral evidence of family report writer
- The court refers to the family report writer’s oral evidence, aspects of which are set out below.
- The family report writer stated that she did not think that the mother was deliberately trying to undermine the children’s relationship with the father.
- The family report writer was cross-examined in relation to whether family therapy should occur before the children began spending time with the father. The family report writer stated that an order providing, for example, daytime time to be spent by the children with the father every second weekend in conjunction with family therapy could be considered initially. She had stated that something positive between the children and the father should occur sooner rather than later.
- The family report writer referred to the children’s anxiety in possibly not getting to their sporting activities on the Saturday morning if they were spending the fortnightly Friday night with the father at (omitted).
- The family report writer stated that from the material that she had read, the children were not yet ready to go with the father on the fortnightly Friday night.
- The family report writer expressed concern as to how one addressed the children’s anxiety (in not getting to their sporting activity on the Saturday morning) which was real. She stated that if the children have to go with the father to (omitted) on the Friday night then their anxiety was a real problem.
- In this context, the family report writer was cross-examined in relation to whether the children’s anxiety could be addressed by staying in Sydney with the father on the fortnightly Friday night. She stated that if the father had a “predictable” place for the children to stay on the Friday night that might help.
- Cross-examined by the father in relation to the children spending holiday time with him, the family report writer stated that the children would need to know who would be present with the father, and that the father would provide his full attention. The father would need to take care at the beginning, to assist the children have confidence with him.
- The family report writer stated that a graduated program of the children spending time with the father would provide more flexibility, starting where the children “are” presently.
- In relation to Saturday sporting activities, the family report writer stated, inter alia, that she would be reluctant to see the children’s sporting activities “bleed” into Saturday afternoons, with the Saturday morning sports being acceptable.
- The family report writer stated that if the children were presently reluctant to spend time with the father, then a graduated regime of the children spending time with the father may work and family therapy might have to start before such time commences.
- The court accepts the evidence of the family report writer subject to the court’s comments under the meaningful relationship primary consideration discussion later in these Reasons.
Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales
Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales
Relocation
- On any view of the evidence the fact is that the father has had virtually no relationship with Y and his relationship with X has been significantly strained due to the distance between he and the child post separation.
- The father himself created some distance by moving to the (omitted) in February 2016, shortly after separation.
- The mother has added to that distance by relocation to Queensland.
- In assessing the evidence at this interim stage, I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since relocation in June 2016.
- These are interim proceedings. It is clearly the mother’s intention that she continue to reside in Queensland since her relocation. That will no doubt be her application on a final basis.
- If I caused the children to be returned to New South Wales this will cause a disruption to their life. A life that on my findings has been settled for approximately 12 months in Queensland following relocation. This has the potential to be disadvantageous to the children.
- Of course a move to New South Wales might place them closer to their father. The disadvantage of the move must be weighed against any advantage to be gained in having a meaningful relationship with the father.
- It is not the father’s application that the children should reside with him in the (omitted) area. It is his application that the children reside with the mother in the (omitted) area.
- I would therefore need to make a coercive order as to where the mother was to live.
- In Oswald & Karrington[5] the Full Court said that the court’s power to make a coercive order should be exercised only in rare and extreme circumstances.
- The Full Court in Sampson & Hartnett [6] said that there is an imperative for the court to explore and consider alternative to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parents choosing.
- There is no evidence before me to suggest that the father does not have freedom of movement. That is, the father does not say he cannot afford to travel to Queensland nor does he say that work commitments prevent him from travelling to Queensland.
- He will need to establish a relationship with Y and reconnect with X. This will require shorter visits and perhaps more frequent visits however I am not persuaded that based on the evidence currently before me that the father cannot or would not travel to Queensland for the benefit of his children.
- Furthermore, I am not persuaded that there are rare or extreme factors that warrant me exercising my discretion to make a coercive order. There has been too much water under the bridge. These children and their mother have resided in Queensland for approximately 12 months.
- In those circumstances, weighing the two competing proposals with regards to the disadvantages to the children, I am satisfied that it would be more disadvantageous to remove them from Queensland at this time.
Relocation cases are determined according to children’s best interests
Relocation cases are determined according to children’s best interests
Relocation cases:
- Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children.
- In Zahawi & Rayne,[3] the Full Court noted:
47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:
…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.
48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.
- In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[4]
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