Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 32
F158/09	OPINION OF LORD WOOLMAN in the cause P.H. Pursuer; against J.K or H Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Scott QC; Maclay Murray & Spens

Defender: Dowdalls; Mowat Hall Dick

12 March 2010

Introduction
[1] The parties are both Australian citizens. They were married in Victoria on 3 April 1992. They separated on 19 October 2008. In this action of divorce, Mr H led evidence that the marriage has broken down irretrievably and that there is no prospect of reconciliation. Mrs H did not dispute these matters. Accordingly, I pronounced decree of divorce at the conclusion of the proof. The parties entered into a joint minute dealing with the financial consequences of divorce.

[2] The main issue for decision involves the future of the two children of the marriage: L.H, born on 11 November 1996 (now 13); and A.H, born on 1 February 1999 (now 11). Each party seeks a residence order for both children. The major complication in making an order is that while Mrs H intends to remain in Glasgow, Mr H plans to return to Australia. Standing their declared intentions, the family can no longer live in close proximity. Whatever order is made, it will result in one or both children being twelve thousand miles from one of their parents.

[3] Both parties struck me as being good and responsible parents. They each have a close and loving relationship with their children. However, they have been unable to come to an agreement on what should happen to the children. It is therefore necessary for the court to make a residence order: Children (Scotland) Act 1995 ("the 1995 Act") section 11 (7) (a).

[4] In making such an order, the welfare of the child is the paramount consideration (ibid). I was referred to various authorities: Payne v Payne [2001] 2 WLR 1826; McShane v Duryea 2006 FamLR 15; and M v M 2008 FamLR 90. Both counsel, however, agreed that each case turns on its own facts. They each pointed to a number of factors which they said I should take into account in making a decision in this case.

[5] In the course of the proof I heard evidence from both parties, from two psychologists, from the pursuer's mother and brother and from two friends of Mrs H regarding this matter. In addition there were a number of affidavits lodged by both parties. Both counsel indicated that they did not propose to call the children as witnesses and that it was appropriate for me to proceed without hearing from them.

[6] I decided that that was the proper course to take. The children had been asked to provide their views in accordance with section 11(7)(b) of the 1995 Act. In response, each wrote to the court. LH was clear that she wished to remain with her mother in Glasgow. AH was less certain, but indicated a preference to go with his father to Melbourne. They expressed similar views to the psychologists.

The History of the Marriage
[7] The parties are both qualified accountants. They met when at the offices of KPMG in Melbourne. Shortly after their marriage, the pursuer was offered a two year posting to the United Kingdom. After discussing it with the defender, he decided to accept. They moved to London in November 1992. When the secondment ended they decided to stay on. Mr H transferred from KPMG to a post with Citibank, while Mrs H worked with ICI.

[8] LH was born in London. In 1997 when she was about eight months old, the family returned to Australia. The reason for the move was to allow Mr H to take up a post with the National Australia Bank. The following year the parties bought a family house in Melbourne. In the year after Alex was born, the parties purchased a second home in the same area. They retained the first house. Both houses are currently let out to tenants.

[9] In November 2001, the National Australia Bank seconded Mr H to work in Scotland. The parties purchased a flat in joint names at Hyndland.

It has been the family home for the last eight years. Problems developed between the parties in about the middle of 2007. They

ceased to live together as husband and wife on 19 October 2008. In early November 2008, Mr H moved into another flat nearby.

[10] Until their separation, the parties had different roles. Mrs H was the principal carer for the children, while Mr H was the breadwinner for the family. Although he had a demanding job that sometimes involved long hours, he tried to be home in the evening to bathe the children and put them to bed. At weekends, he made the family his priority and tried to participate in all the normal aspects of family life. Typically, he had to go back to Australia twice a year. He also had to travel to London and Leeds, which could involve overnight stays. He produced a work diary showing the number of times he was away from home in the relevant period. Excluding trips to Melbourne, he was away from home on thirteen nights in 2005, eight nights in 2006, five nights in 2007, nine nights in 2008 and three nights in 2009.

Current Access Arrangements
[11] Presently, AH spends eight nights each fortnight with his mother and six nights with his father. The pattern varies on alternate weeks. One week AH resides with his father from Thursday to Sunday nights. The following week he resides with him on Thursday and Friday nights. LH spends four nights a fortnight with her father. She is there on the same nights as AH apart from Thursday nights. The children see their father on other occasions by arrangement.

The Children's Upbringing
[12] Glasgow has been the children's home since they were five and two respectively. They have both attended school from Primary 1 onwards. They each have a good group of friends within Glasgow and participate in a number of activities. AH is described as a naturally talented sportsman who is particularly good at tennis and cricket. They have been to Australia four times. Each trip lasted about two weeks. They last went there with Mr H in December 2009. The trip was a happy and successful one for both children. Members of Mr H's family have also visited Glasgow. No family members reside in Glasgow.

Future Arrangements in Melbourne
[13] Mr H should have returned to Australia in September 2009. His employers have extended his secondment until 31 March 2010. They did so on compassionate grounds to allow him to resolve matters in relation to his children. He has booked a flight to Australia on 7 April 2010 to take up his new role with the bank.

[14] Mr H stated that he would return, even if a residence order for both children was granted in favour of his wife. In his view, that was the only viable financial option for the family. If he does not return, there is a real risk that he will be unemployed. Mr H said that he had "zero" prospects of getting a job in the United Kingdom. A letter to that effect dated 13 January 2010 was lodged from Barclay Simpson Associates. They are specialist recruitment consultants in the area in which Mr H works.

[15] Mr H has had a very successful career with the National Australia Bank. He has occupied a number of senior roles within its operation in the United Kingdom. In return, he receives a substantial salary together with a number of ancillary benefits, including the payment of school fees and the provision of a luxury car. Mr H had intended to return to Australia in 2007. However, in April of that year he agreed to stay on until September 2009 to take on a significant project. He said that he did so with mixed feelings. He was keen to return to Melbourne, but saw the project as a good stepping stone in his career.

[16] The post to which Mr H was returning, would give him a salary of AU $220,000 per annum. In addition he would be eligible for a bonus if he met certain targets, together with a cheap mortgage at favourable rates and a good pension. He believed taking the role was the "right thing to do for the financial security of the family".

[17] In terms of his contract of employment, Mr H would require to work a 35 hour week. That is the standard working week in Australia. However, he recognises that because of the senior position he would occupy, from time to time he would exceed that number of hours. He has discussed matters with his manager in Australia. The bank is prepared to offer a degree of flexibility in how he chose to work those hours, including working from home on a regular basis. He would not be required to work at weekends, nor would he be required to travel.

[18] The families of both parties live in Australia. Mr H's parents and both of his brothers and their families live in Melbourne. They live close to the two houses which he owns and where he proposes to live. Mrs H's widowed mother, her sister and her sister's two children live in G, which is just over an hour's drive away. Mr H's mother and his younger brother gave evidence that they would take an active part in the support of the children should they go to Melbourne.

[19] If both children went to live in Australia, LH has been offered a deferred place at a school, beginning in January 2011. It is proposed that AH would go to a local primary school before transferring to the school in January 2012.

Future Arrangements in Glasgow

[20] Mrs H stated that the reason why she does not want to go back to live in Australia is that she has been here for eight years, that she thinks of Glasgow as home and that she enjoys living there. She also took into account LH's express wish to stay here, so feels it's in her best interests to stay. Mrs H described having a large and supportive group of friends in Glasgow.

[21] In Melbourne, Mrs H feels she would have to start again. As to the suggestion that she should go and stay there for the sake of the family, Mrs H was firm in her views-"that sounds like a prison sentence to me". She queried why for the sake of Mr H's career, she should be required (a) to put aside what she believed to be the best interests of the children, (b) to go to a city with which she has no connection and the children have no recollection; and (c) to look after the children's day to day care.

[22] After the marriage, Mrs H worked on a full time basis. Following the birth of the children, the parties agreed that she would work on a part time basis. Until the separation, she worked between two and four days a week. Since April 2009, she has provided full time consultancy services to Aegon UK Corporate Services Limited, based in Edinburgh. The contract is with Hay Consulting Limited, but that is the vehicle through which she offers her services.

[23] The Aegon contract pays the sum of £285 per day for her services. She can work from home two days a week and on the days that she is in Edinburgh, she can work slightly shorter hours so that she is back in time to pick up the children. She envisages working a 35 hour week; with a gross income of £62,700 per annum. She hopes to earn between £4,000 and £5,000 per annum from other contracts. Mrs H has engaged a childminder to assist her in picking up the children from school as and when that is required.

[24] It is Mrs H's intention to continue to live in the family home. She believes that she will have sufficient finance to purchase Mr H's half share in the property from him, using in part the capital sum that he has agreed to pay to her. She has received an offer of a loan of £220,000 from Northern Rock building society dated 17 February 2010, which will require her to find a sum of £505.35 per month as her mortgage repayment. Mrs H was cross examined in detail about her finances, but at this stage it is difficult to predict exactly what her position will be.

The Decision
[25] Given that the parties have divorced, it is clear that the best solution would be for the parties to live in close proximity to one another. That would allow each child to have at least weekly contact with each parent. However, it is equally clear that that is not going to happen. Both parties have taken an informed decision as to where they are going to make their lives.

[26] Mr H suggested that I should make a residence order for both children to live with him in Australia in the expectation that Mrs H would follow them there. I discount that suggestion. My task is to make an order in the light of the parties' future arrangements. I am satisfied that Mrs H intends to reside in Glasgow and I proceed on that basis.

[27] The two psychologists who gave evidence were Mr Barry Fry and Dr Valerie Cairns. Each had prepared a report and gave comprehensive testimony about the welfare of the children. I found their respective views helpful in forming my opinion. In particular, because each had conducted more than one interview with LH and AH, I was able to form a clear impression of the children's respective views on their future.

[28] There are two general factors which I took into account in arriving at my decision. First, I regarded the preservation of the sibling relationship as a central consideration. Dr Cairns stated that all the research and writing in this area tends to support the view that they should stay together. I accepted that it is important for siblings to stay together to give mutual support after their parents' separation. I recognised that if the residence of the children was split there was a real risk that they would grow apart. However, as Mr Fry noted, while such relationships are important, children's relationships with their parents are the primary ones. Accordingly, that is an important counter-weight.

[29] Secondly, I took into account that modern technology made it easier for communications to take place between Scotland and Australia. The individual members of the family could contact one another by means of telephone, email, text and internet video calls. However, I also noted Mr Fry's view that often this can be an unsatisfactory form of contact. It can make the sense of missing someone more intense.

[30] There are two other factors which I regard as neutral in arriving at my decision. First, it appears that both parents will be working full time for 35 hours each week. It cannot therefore be said that one parent has a significantly different amount of time to spend with the children. Secondly, with regard to schooling, it appears to me that both schools offer excellent opportunities for both children. I therefore place these two factors to one side in arriving at my decision.

LH
[31] Lauren was described as a mature and confident young woman, who knew her own mind. She is doing well at school and appears to have a wide and supportive group of friends in Glasgow. Her consistent view is that she wishes to stay there with her mother. It is articulated clearly in her letter to the court, where she states:

"If I was asked what country I wanted to stay in I would say Scotland. If I was asked what parent I wanted to stay with I would say my mum. I would choose my Mum because I am closer to her and have spent more time with her. I would choose Scotland because it is where my home and school are, what I am familiar with and all my friends are here."

[32] She told Mr Fry that she was aware that AH was minded to return to Australia and that she accepted separation from him as well as her father (Report paras. 165 - 166). Both psychologists thought that she displayed emotional resilience and that she would cope with whatever decision was taken. Mr Fry's view was that LH's primary emotional bond is with her mother. LH has a deep commitment to remaining in Glasgow, because it is where her friends and school are, and where she has spent very happy times. If she was separated from that, he had no doubt that LH would not prove to be as resilient. His suspicion was that going to live in Australia would be long and hard and that she would need a lot of support in making the adjustment.

[33] LH told Dr Cairns that she would find it "almost unbearable" to go to live in Australia. While Dr Cairns thought that statement was an exaggeration, she recognised that it did give the flavour of LH's mind.

[34] I am satisfied that I have a proper appreciation of LH's views and that her welfare is best secured by remaining in Glasgow with her mother. I shall therefore make an appropriate residence order.

AH
[35] The position in respect of AH is much more difficult. Both psychologists were very concerned about him. Both noted that he appeared to have put on significant weight since the separation. Although it was not within their expertise to make a diagnosis, they were inclined to attribute the weight gain to the distress and anxiety he has suffered as a result of his parents' separation. They noted that although he has won awards and prizes in various sports in the past, he has not been so keen on those activities recently.

[36] Dr Cairns's view as expressed in her report was as follows:

"I have concerns about this child's psychological wellbeing whatever the outcome of the court proceedings. I consider him to be at risk whether he stays with his mother or goes with his father. However, given that in such a state of vulnerability it is generally preferable to minimise change, then it is my opinion that he should remain in Scotland with his mother and sister, despite his expressed wish to live in Australia." (paras 6.22 - 6.23)

[37] Dr Cairns amplified these views in her evidence. She said that she was not sure how AH would cope in Australia. She feared that there might be a honeymoon period and that once it was over he might find it difficult to cope. However, she also acknowledged that when the decision is made AH should improve. She thought that he was carrying a huge burden of responsibility in respect of the decision. Dr Cairns observed that children often worry about their parents and this observation applied with particular force in this case.

[38] The following factors are in favour of AH going to reside with his father in Australia:

a. AH's Own Wishes. In his response to the court, AH wrote "I feel sad and unhappy about my parents splitting up...its hard to choose where to live...its confusing." He also stated "I think it would be better for my future if I lived in Australia." He told both psychologists that he wished to live with his father in Australia.

b. Mr Fry's View. He took the view that the least detriment would be caused if AH went to live with his father in Australia. Mr Fry thought that AH was an introspective boy who would be distressed and anxious about his father if they were separated. In Mr Fry's report, he stated "I feel reasonably confident that AH has made his choice to preserve his emotional integrity and to preserve the integrity of the family." Although the loss of contact with his mother would have a "sizeable impact" upon him, AH does need to know that his Dad is ok. He would see it as being "fair" that each parent has the consolation of one child.

c. The Extended Family. Both sides of the family will be close to him. AH appears to have had a very positive response to the December 2009 trip. He actively enjoyed being around the family and initiating sporting activities with his cousins and uncles. He told Mr Fry that he scored it as 91/2 out of 10. Both Mr Hs brothers and their families live close by, as do his parents. I was satisfied from the evidence of the pursuer's mother and his brother S that they are able and willing to provide a support network for Mr H and AH if they go to live there.

d. Sporting Activities. While this is of less significance, I note that Mr H is very keen on sport and there are going to be many opportunities for AH to participate in cricket, tennis, and golf in Melbourne as part of the outdoor lifestyle there.

[39] Looking at all the factors relating to AH and being conscious that it is a very difficult decision, I am satisfied that his welfare is best secured by making a residence order in favour of his father. While the preservation of his relationship with this mother and LH is very important, it appears to me that the factors set out above outweigh that consideration.

[40] I wish to add two comments. The first is that I have no doubt that both parents will act responsibly in trying to facilitate contact arrangements, which will include the two children seeing one another on a regular basis. Secondly, the view of both psychologists was that AH should be carefully monitored to check his psychological condition as he enters his new life.

Value of the Matrimonial Home
[41] There was one further discrete matter upon which I was asked to make a decision. Mrs H wishes to purchase her husband's half share interest in the flat at Hyndland. They disagree, however, about the proper value to be placed upon it as at the date of the proof. I heard evidence from two surveyors: Mr Andrew Scrimgeour, a director of Harvie Donaldson & Gibson; and Mr Gary Haggarty of Barr Brady. Both of them appeared to be careful and experienced witnesses.

[42] It is a prestigious address which was described as "'prime West End". Mr Scrimgeour valued the property at £525,000, while Mr Haggarty's valuation was £475,000. Each of them had arrived at their figures by using their experience, their own firm's knowledge, and on-line databases for similar properties. They supported their respective valuations by a detailed comparison of properties in Westbourne Gardens, Lancaster Crescent, Hughenden Road, and Cleveden Road. Mr Scrimgeour's view was supported by a report from Rettie Estate Agents. It recommended that the property should be put on the market at a figure of between £520,000 to £530,000.

[43] While adhering to their own valuations, however, both men accepted that the property could properly be valued at a figure of £500,000. That figure was within the acceptable range. It was also the figure at which the property was valued for mortgage purposes by Northern Rock in making its offer of loan to Mrs H on 17 February 2010. In my view, that is the correct figure at which to value the property.

By Order Hearing
[44] I shall pronounce decree of divorce and make the residence orders indicated above. It was agreed that other consequential matters should be left over to a By Order Hearing.