Wishes of children in relocation

Wishes of children in relocation

Macleod & Macleod [2016] FCCA 1446 (17 June 2016)

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

61. The views of both children are set out in the report of Mr P. According to the report, X made her position unequivocally clear. She would like to spend more time with her mother, but she does not want to move schools. As she had lived much of the time with her father, she now wanted an opportunity to live with the mother. There were two reasons advanced by X which were, firstly, she felt that at this stage in her life her mother was able to help more with “girl things”. Secondly, X feels the lack of her mother’s active involvement in her life and was of the view that her mother could also help to manage and organise her life and provide greater assistance with homework. This was of course, subject to her wish not to change schools yet again.^[4] Mr P quoted X’s own words:
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    “it’s not that I don’t want to live with my dad, it’s just that I want to have more time with my mum. If things stay the same it will be okay but I would like to see much more of mum than I do now…. If a decision is made that it doesn’t happen then I’ll be sad but it will be okay.

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“… I want them to know that I want more help with things like my homework in getting myself organised; my mum is really good at that. I also want to know that I want more time with Mum but mum also needs to know that what she thinks about dad and what she says about him is not how I see him. He is always trying to help me but he is busy.”

62. The mother was accepting of X’s view. The father under cross-examination was of the opinion that X’s view as stated to Mr P was not a genuine expression of her views. His evidence was that after they left Mr P’s rooms on the journey home X cried and expressed remorse about her comments to Mr P and said that she still wanted to live with her father. Her explanation was that the mother would be upset if she had told Mr P her true views, which were that she wished to see more of her mother but to continue living with her father. He did not accept that Mr P had the capacity to discern whether or not X’s views were genuine. He was also of the opinion that the mother had exerted pressure on the children to elicit their views. The mother was cross examined about the emotional pressure she placed on the children, including allegedly crying on the telephone to the children after attending for the s.11F assessment report, however her response was that she did not influence the children in that regard. I have no doubt that the mother was upset after receiving the s.11F assessment report and that she would not have been able to keep her distress from the children.
63. Mr P was asked whether, in his opinion, the sentiments X expressed to him were genuine. His evidence was:
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    “I am much more suspicious of people who give me unequivocally black and white views. I think that her position was riddled with uncertainty, anxiety and ambivalence, so I think she is more believable because she is struggling with it.”^[5]

64. In response to cross examination by counsel for the father, Mr P further said during his interview with X, the following occurred:
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    “Is there anything you would like the judge to know? “Tell the judge that my dad doesn’t really, really good job in looking after me and I really love him. I think that’s – I – it doesn’t fit with me that she has suddenly been transformed as a consequence of the influence that has been placed on – on her by her mum, because she saying all these things that are so positive about her dad.”^[6]

65. Mr P also stated:
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    “my recollection is she is actually a pretty sensible, balanced kid, who is, sort of, struggling.”^[7]

66. Y’s view^[8] was also expressed to Mr P. His view was that whilst it was hard to leave his old school, he had settled really well at his new school; however his preference was to live with his parents on an equal basis.
67. The father did not adduce any evidence that the view of Y as expressed to Mr P was anything other than a genuine view. In fact, during cross examination by counsel for the father, Mr P referred to his notes of his interview with Y, as follows:
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    “What would be the best outcome, do you reckon, Y? What would you like to see happen?” “If mum and dad could move back together, but I don’t think that will happen.” “What are you thinking about mum and dad and what they want?” “I really don’t know. I get really worried about it. I don’t want to upset them. I don’t know what I want to do. I have really mixed feelings. I want to be with mum, but I also want to be with dad. I love them both the same. I don’t know how such a hard decision can be made. I feel happy with both, but both of them. It will be sad to leave (omitted)’s, I think, because I’ve made some really good friends and I’ve got my basketball team there, but I do like living with them, and I’m half and half. I want to live half with mum and I want to live” – that’s his feelings, half. “Half of me wants to live with mum and half of me wants to live with dad. I think mum and dad shouldn’t worry so much about me and try and get on a bit better.”^[9]

68. Accordingly, I find that the views of both children are considered, genuine and mature and that significant weight should be given to those views and in particular the views of X.