Meaningful relationship with both parents

Meaningful relationship with both parents

Bartram & Dawes

Proposals

7. Both parents propose they have equal shared parental responsibility for the children. They have agreement on orders for the various special occasions.
8. The mother proposes that the children live with her, she be permitted to relocate the children’s residence to (omitted) and enrol the children in (omitted) Secondary College. She proposes the children spend time with the father two weekends out of three from Friday evening to Sunday evening, but that X’s time be subject to her wishes. She proposes that the children spend half school holidays with the father. She proposed that should the decision be that the time should be every second weekend then the time in term holidays extend to include an additional weekend.
9. The father proposes that the children remain living in the (omitted) area. He proposes that if the mother moves to (omitted) the children live with him and spend alternate weekends Friday night to Sunday night and half school holidays with the mother. He proposes that if the mother remains living in the central (omitted) area the children live week about from Sunday night to Sunday night with each parent. He proposes an injunction restraining the mother from moving more than a certain distance from (omitted). He proposes that X remain enrolled at (omitted) School in 2017 and that Y attend the same school in year seven in 2017.

The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs

55. This is a consideration of particular significance in this case. Ms F’s recommendation is that the children should live with the father should the mother move to (omitted).
56. Ms F considered both parents under the heading of parenting effectiveness, psychological stability and ability to provide for the children’s welfare development and safety. She described the father as presenting as a confident and involved parent to the children. She said he presents as a thoughtful parent and she said he presents as having a mature appreciation of parenting and that he has a supportive extended family as resources to his parenting as well as the children’s positive development.
57. Ms F says the father’s relationship with Ms B appears sound and supportive of the parenting capacities. Ms F said that the father demonstrates an appreciation of the strength of the children’s relationship with their mother.
58. Ms F said that claims of the father’s volatility might require further testing. She said he acknowledges that communication with the mother has been “frustrating” particularly when he has perceived her to unilaterally change living arrangements.
59. Ms F described the father as communicating with energy and enthusiasm and his approach could be perceived as aggressive if communication is about differences, which could be the case with the mother.
60. Ms F describes the mother as presenting as a confident and appropriate parent to the children. Ms F said it is likely however, that her parenting capacity has been compromised when relationships with intimate partners have been conflictual or stressful. Ms F noted that the mother acknowledges that she has made “stupid decisions” concerning her relationships and that the children have been negatively impacted.
61. Ms F, in her report, expressed concern that the mother had not undertaken counselling given the concerns. Ms F referred to the mother’s explanation for withholding information about relocation from the father and the circumstances of involving the children in the plan. The father did not know and said that this indicates the level of reactivity she still has towards him. Ms F said that it would be crucial that the mother address this issue in counselling.
62. By the time of the hearing the mother had undertaken counselling, something Ms F acknowledged as a positive step.
63. Ms F expressed concern that the mother appeared to minimise the impact of Mr S’s late wife’s death on that families relationships and appeared to not appreciate that living full-time with Mr S will be a stressor that might negatively impact on her children’s emotional well-being. Ms F said that Mr S acknowledged that he is still grieving. Ms F said Mr S’s emotional availability for his own children may be stressed if the mother’s two children join the house on a relatively full-time basis.
64. Ms F says that while the mother has provided mostly facilitative parenting of the children, this has primary been in the context of the father’s availability in support. With relocation the mother’s full-time employment will compromise availability to provide transport to and from extracurricular activities, transport that currently the father and Ms B are able to provide.
65. Ms F raised some questions about the mother’s capacity to promote the children’s relationship with the father. Ms F was concerned about the capacity particularly given the mother’s reactivity towards the father and her view that his behaviour is controlling.
66. Ms F says that the father had demonstrated ongoing support to the children’s relationship with the mother since separation. The mother acknowledged that. The father explicitly acknowledges the mothers positive contribution to parenting of the children.
67. Ms F considered the ages of the children, their development, individual resources and temperament, including physical cognitive and emotional capacity and their stated wishes. She referred to the developmental tasks the children were facing. She said a positive experience of school, particularly secondary school for X, was critical in ensuring her sense of self-worth and confidence.
68. Ms F considered that the children had developed to standard in the separated family structure. The events in 2013 involving separation and then resumption of shared living generated uncertainty and anxiety about the emotional reliability of parents, particularly the mother. Ms F considered both children are secure in their attachment with both parents.
69. In relation to X’s wishes Ms F noted that X indicated that overall she would accept either relocation to Melbourne with her mother or remaining in (omitted) in the father’s care. Ms F says X presented as appreciative of the extent of the loss of family, friends and social/emotional network should she live in Melbourne. She presented as realistic about the benefits of living in Melbourne, but equally realistic about the benefits of completing secondary schooling in (omitted).
70. Ms F says that nearly 12-year-old Y presented as invested in the benefits of relocation but less appreciative of the emotional cost involved. Ms F considered that Y experiences a strong attachment relationship with the mother and possibly a sense of conflict loyalty in relation to the father and Ms B, with whom she also has a nurturing and facilitative relationship.
71. Ms F discussed in detail the children’s likely adjustment to relocation. She noted that they had responded positively to the weekend visits to Melbourne with the mother. Relocating full time would be different. She says that relocating to a metropolitan area, adjusting to change in the environment, including new schools, with the primary emotional figure their mother likely preoccupied at first with the stress of work, accommodation relationship adjustment with Mr S would be significant stressors for the children.
72. She considered that if the mother can maintain a focus on the children’s needs and the father can maintain ongoing contact the children are likely to settle after the initial adjustment period. Ms F said the children would gradually build friendships both at school and in the community and strengthen the relationships with the extended family and Mr S.
73. Ms F, both in her report and in her oral evidence at the hearing considered the question of where the children should live as a risk assessment process. She considered that there was a risk if the children move to Melbourne the emotional relationships in Mr S’s household might be compromised by the full residence of the mother and children. She considered the most significant risk to a successful outcome of the children would be the potential loss of the psychological, emotional and social involvement of the father in their life as well as the involvement of Ms B and the children.
74. Ms F says the children are positively involved in the social and school networks in (omitted) and as adolescents, friendships that are long-lasting and stable are crucial psychological supports for maturation. For X in particular establishing herself in a new school and with new school friends will be particularly challenging as she does year 12.
75. The risk if the children remain with the father is the loss in the quality of the relationship with their mother.
76. In making her recommendation Ms F says that the exercise is not primarily concerned with the deficits and particularly deficits that might be related to parenting capacity. Both parents are competent parents. Ms F considers that if the mother remained living in (omitted), a regime of equal shared care would be facilitative and meaningful for the children.
77. In reaching her recommendation that the children remain in (omitted) Ms F says this in her report:
    In considering all the factors related to relocation, the developmental and environmental factors have emerged as those to be afforded more weight in determining what might be the optimum living arrangements for X and Y. Arrangements for children of X and Y’s age should always be considered as evolutionary, particularly given X and Y’s maturity and the likely changes when X complete secondary school and Y commences secondary school.

While the children’s relocation to Melbourne would not be significantly detrimental to the development, given the strong relationship with Ms Dawes and her overall sound functioning, the need for continuity of environment and the presence of more psychological and social resources in (omitted), the children remaining in (omitted), either in Mr Bartram’s full-time care or in an equal shared care arrangement if Ms Dawes remained living in the region, is the consideration, in my professional opinion, should be given more weight.

X and Y need a stable environment in which they can develop and importantly, complete secondary education, with all its attendant aspects. They need continuity and stability so that their emotional and psychological resources can be appropriately focused on their intellectual and social development.

78. Ms F’s assessment is that the children’s best interests would be served if both parents remain in (omitted). If that happens both parents have the ability to provide for the children’s needs including their emotional and intellectual needs. If the mother moves to Melbourne Ms F considers that the father, remaining in (omitted), is better able to provide for the children’s emotional and intellectual needs.

The benefit to the child of having a meaningful relationship with both of the child’s parents

85. This is the first of the primary considerations. The evidence already referred to shows that the children have a meaningful relationship with both parents. Ms F’s report sets out the risks to the relationship with each parent should the mother move and the children live with her or the mother move and the children stay with the father.
86. X is nearly 17 and I accept what Ms F says that she will maintain her relationship with her mother whatever the living arrangements are. I consider there is a risk to Y’s relationship with her mother if the mother moves to (omitted) and Y remains with her father.
87. I have referred already to the two episodes concerning the State Schools Spectacular. The first, on 18 July 2016, was outside Y’s school. Y was in her mother’s care on that day. According to the father Y said that her mother would not let her attend the Spectacular. Even if this was true the father should not have said to Y let’s ask the mother and then gone to where the mother was waiting. He did not say to Y that he would talk to the mother and sort it out. He went straight to the mother and asked why she would not let Y go and did it in Y’s presence. The mother found his behaviour threatening. It was controlling behaviour by the father.
88. In the next episode on the day of the Spectacular, (omitted) 2016 the father involved himself in X’s relationship with the mother. The father’s initial enquiry by text to X, “Are you coming in today?” is unexceptional. His next text was not. The children were in the mother’s care on that day. The father did not know what arrangements the mother had made and what discussions had taken place between the mother and the children. In his next text that her sister would have loved to have her there and then the subsequent text where he accuses her of lying and then says all you had to say was “I’m going along with mum today” shows a disregard for the fact that the children were in the mother’s care. It again shows controlling behaviour.
89. The father’s analysis of X’s phone records to show when she was at (omitted) on days when she had been at school or was attending school the next day does have an evidentiary justification. On the other hand it does show the father keeping check on the mother when the children are in the mother’s care which is an indicator of controlling behaviour.
90. The father and Ms B were concerned about Y when the dispute about the move to (omitted) commenced. They said she was having difficulty sleeping and was anxious. This is reflected in the family report where they told Ms F of this in the context of the stress on the children of keeping the secret about moving to (omitted). They arranged for Y to attend a general practitioner to obtain a referral to a psychologist. Ms B was the one who attended with Y and sat in the doctor’s room while he spoke to Y.
91. In the family report Ms F records Y as saying “I have a psychologist who I talk to at school and she said I need my Mum more when I’m a teenager, I know I’ve got Ms B, but it won’t be the same”.
92. The evidence does not make it clear whether the father consulted the mother about taking Y to a general practitioner for a mental health plan. It seems likely that he did not. Whether he did or not it was Ms B who went with Y not the father. It may have been Y’s wish to have Ms B rather than the father accompany her, Ms B was acting in good faith and in Y’s interest but in taking Y to a general practitioner she was taking on the role of a parent.
93. This evidence shows there is a real risk that if Y is living with the father and Ms B, they would come to fill the role of parents rather than the father and the mother. The father and Ms B may not be conscious of it happening. While Y might initially consider that having Ms B is not the same as having her mother there is a real risk that will change. If the father and Ms B come to fulfil the role of the parents this would damage Y’s relationship with the mother. A meaningful relationship is one which is important, significant and valuable to the child, Sigley & Evor [2011] FamCAFC 22 citing Mazorski v Albright [2007] FamCA 520, McCall v Clark [2009] FamCA 520. Y’s relationship with the mother is one which at present is important, significant and valuable to the child. There is a real risk that this might change if she was to live with the father.
94. The second of the primary best interest considerations is the need to protect the children from harm. No evidence is relevant to this consideration.

Conclusion

95. On balance the evidence shows that the children’s views are that they wish to remain living with their mother. The statements that they can discuss things with the mother suggest, at least in this respect, a closer relationship with the mother than the father.
96. Both children are doing well and this reflects strong parenting skills in both parents and the strong and loving relationship between the children and each parent.
97. I consider that I must determine what is in the children’s best interests on the basis that the mother will move to (omitted) to live with Mr S even if the children remain living in (omitted). The evidence from both the mother and Mr S shows a strong relationship between them and a strong commitment. Mr S impressed as understanding the challenges which might arise if the mother and the children come to live in (omitted) in his house and with his two children.
98. Ms F described Mr S as a pleasant and an appropriate adult with whom the children might be significantly involved. He impressed as having a very even temperament and able to cope with the difficulties that would inevitably arise. The mother is clearly committed to him. Mr S’s evidence shows that he understands his role as a step father that is he will not be acting as a parent.
99. The mother gives her reasons for wanting to move to (omitted) is to live with Mr S. She has a job offer from her current employer which is better financially. She says she will have the opportunity to be happy. Her life with the father was difficult. He was for a time bankrupt and I am satisfied that he could at times be aggressive and controlling.
100. The mother is selling her home in (omitted) and so she is to remain in (omitted) she will have to rent. Once she sells the house in (omitted) she will move to (omitted).
101. If the children remain in (omitted) to live with the father they will have the benefit of continuity in the community in which they are living. X in particular would remain in her current school where she has strong connections. Y will change schools to commence secondary education but if she remains with the father she will still be living in the same area. This continuity is the basis for Ms F’s recommendation.
102. X will maintain her relationship with her mother wherever she lives and the benefit of remaining in her current school for year 12 is obvious.
103. The risk to Y’s relationship with her mother if she was to remain in (omitted) with the father’s is real. Y is nearly 12 and has her teenage years ahead of her. A deterioration in the relationship with her mother would not be in the best interests.
104. The balance of the best interest considerations may favour X staying in (omitted) and so living with her mother and Y living with the mother and so in (omitted). One thing is clear and that is that the children should not be separated. Neither party suggested that as a possibility nor has it been raised with the children. The clear and obvious inference is that if they were asked they would emphatically reject such a proposal.
105. At the end of 2017 X will be looking at tertiary study and life after school. Y will commence the six years of secondary school and at least that much time dependent upon and living with parents. I accept what Ms F says that X will adjust to a move to (omitted) and to a new school. On the other hand, Y’s relationship with her mother will remain if she moves to (omitted). I am satisfied that the children’s best interests are met by the children living with the mother and that necessarily involves a move to (omitted).
106. Given there will be an order for equal shared parental responsibility, I must consider whether equal time or if not equal time substantial and significant time is reasonably practicable.
107. Equal time is not practicable given the distance between the parties’ homes. The only practical substantial and significant time is that proposed by the mother.
108. The mother proposes alternatives for the children’s time with the father, both subject to X’s wishes. They are two weekends out of three and half school holidays; or, alternate weekends and an extended week in term holidays so that it includes two weekends. Two weekends out of three would mean that in every three week period the children would spend four nights with the father. To compare that with the current situation in every six week period they would spend eight nights with the father whereas presently in every six week period they spend 15 nights and so a reduction of a little under a half. Every alternate weekend would mean six nights in a six-week period instead of 15. In addition to the contact with their father they currently have any contact in between would reduce substantially.
109. The advantage of two weekends out of three is the additional time they would spend with their father and his family. The advantage of alternate weekends is that the children would have more weekend time in (omitted) to meet and connect with new friends. Another possible advantage is that X might be more likely to go every second weekend if that was Y’s routine. If X went on an irregular basis for some of the two weekends out of three Y was attending X might get out of the habit of going. I put it as a possible advantage because it depends on X’s circumstances once she has moved.
110. On balance I consider that alternate weekends with extended time during school term holidays is the preferable choice. The balancing factor is that should either child wants to spend additional weekends with the father I consider that the mother will agree. Should Y wish to spend less time, or not go to her father for any particular weekend, then without the father’s agreement the mother is potentially contravening the order. This might lead to further proceedings, the avoidance of which is a best interest consideration.