Alden and Dodds

[2015] FCCA 185

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDEN & DODDS [2015] FCCA 185

Catchwords:
FAMILY LAW – Parenting – father’s time with child – mother’s anxiety – progression of time with the father.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC & 65DAA

Mallahan v Mallahan [2010] FamCA 631
McCall v Clark (2009) 41 Fam LR 483
Mazorski v Albright (2007) 37 Fam LR 518
Starr v Duggan [2009] FamCAFC 115

Applicant: MR ALDEN

Respondent: MS DODDS

File Number: ADC 4359 of 2011

Judgment of: Judge Cole

Hearing date: 18 November 2014

Date of Last Submission: 18 November 2014

Delivered at: Adelaide

Delivered on: 30 January 2015

REPRESENTATION

Counsel for the Applicant: Vanessa Lindsay

Solicitors for the Applicant: Mark Forth & Associates

Counsel for the Respondent: Meredith Dickson

Solicitors for the Respondent: All Family Law

Counsel for the Independent Children's Lawyer: Vanessa Lee

Solicitors for the Independent Children's Lawyer: Legal Services Commission Whyalla

ORDERS

1. That all previous orders be discharged.

2. That the parties have equal shared parental responsibility for the child [X] born on [omitted] 2009.

3. That the said child live with the mother.  

4. That the said child spend time with the father as follows:

   (a)from 10.00am to 4.00pm on Saturday and Sunday each alternate week, up to and including 1 March 2015;

   (b)upon the said child commencing primary school, in each week from the conclusion of school Wednesday (or 3.30pm if a non-school day) until 7.00pm, provided the father is living in [P];

   (c)from 10.00am on Saturday until 11.00am on Sunday each alternate weekend commencing on 9 March 2015 up to and including 9 April 2015;

   (d)from the conclusion of school on Friday (or 3.30pm if a non-school day) until 4.00pm on Sunday each alternate weekend commencing on 10 April 2015 up to and including 2 July 2015;

   (e)from the conclusion of school (or 3.30pm if a non-school day) on Friday until the commencement of school (or 9.00am) on Monday each alternate weekend commencing on 4 July 2015;

   (f)for the third term school holidays in 2015, for the first six days of the holiday period from the conclusion of school until 5.00pm on the following Thursday and thereafter for the first seven days of each term holiday commencing first term 2016;

   (g)for the Christmas school holidays on a week-about basis as follows:

   (i)     in 2015 and each alternate year thereafter, from the conclusion of school on the last day of term until 5.00pm on the Saturday falling one week later; and then each alternate Saturday from 5.00pm until 5.00pm on the following Saturday; and

   (ii)    in 2016 and each alternate year thereafter, from 5.00pm on the second Saturday of the holiday period until 5.00pm on the following Saturday, and each alternate week thereafter.

   (h)as and from the third term school holidays in 2015, the said child’s term time with the father pursuant to the above orders be suspended during any school holiday period and recommence on the first Wednesday of the school term;

   (i)on special occasions with the father as follows (NOTING orders have been made in respect of [X]’s birthday, Christmas and the twins’ birthday for 2014/15):

   (i)     For [X]’s birthday:

   a)from 4.00pm on [date omitted] 2015 until 4.00pm on [next day omitted] 2015 and during the same times in each alternate year thereafter PROVIDED however that the mother shall have [X] in her care from 4.00pm on [date omitted] 2015 to 4.00pm on [next day omitted] 2015 and during the same times in each alternate year thereafter; and

   b)from 4.00pm on [date omitted] 2016 until 4.00pm on [next day omitted] 2016 and during the same times in each alternate year thereafter PROVIDED however that the mother have [X] in her care from 4.00pm on [date omitted] 2016 to 4.00pm on [next day omitted] 2016 and during the same times in each alternate year thereafter.

   (ii)    For Christmas:

   a)from 4.00pm on 24 December 2015 until 4.00pm on 25 December 2015 and during the same times in each alternate year thereafter with the mother to have [X] from 4.00pm on 25 December 2015 until 4.00pm on 26 December 2015 and each alternate year thereafter; and

   b)from 4.00pm on 25 December 2016 to 4.00pm on 26 December 2016 and during the same times in each alternate year thereafter with the mother to have [X] from 4.00pm on 24 December 2016 until 4.00pm on 25 December 2016 and each alternate year thereafter;

   (iii)     for Father’s Day and Mother’s Day from 9.00am to 5.00pm on Father’s Day each year, with the mother to have [X] from 9.00am until 5.00pm on Mother’s Day each year;

   (iv)   for [X]’s twin sisters’ birthday from 9.00am until 4.00pm on [date omitted] each year; and

   (v)    from 9.00am to 6.00pm on the father’s wedding day (expected to be [date omitted] 2015).

   (j)the father communicate with the said child by telephone, Face Time or Skype as follows:

   (i)     between 4.30pm and 5.00pm on each Tuesday and Thursday with the father to originate the call and the mother to ensure she facilitates the child engaging in same whether by Skype, Face Time or telephone;

   (ii)    between 4.30pm and 5.00pm on 10 March for the father’s birthday each year, in the event that the child is not in his care; and

   (iii)     between 10.00am and 10.30am on Easter Sunday each year; and

   (k)at such other times as are agreed between the parties.

5. That handovers which do not occur at [X]’s school shall occur inside the [P] Police Station between the parties and/or their nominees.

6. That the parties forthwith exchange and keep each other advised within 24 hours of any change to their address, landline or mobile telephone numbers and email address or Face Time or Skype number on which [X] may be contacted.

7. That the child [X] be at liberty to telephone her mother at any reasonable time while she is in the care of the father and the father shall take all steps necessary to facilitate this communication.

8. That in the event the child [X] becomes inconsolably distressed and the father is unable to settle her, then the father will contact the mother and arrange the return of [X] to the mother.

9. That the parties be restrained and an injunction be granted restraining each of them from the following:

   (a)denigrating the other party, the other party’s family or partners in the presence of the child or allowing any other person to do so;

   (b)discussing these proceedings with or in the presence of the child or allowing any other person to do so;

   (c)providing any document from these proceedings to the child or allowing any other person to do so;

   (d)physically disciplining the child or allowing any other person to do so;

   (e)communicating with the other party in an abusive or derogatory manner;

   (f)attending at the other party’s residence or place of work;

   (g)posting on any Internet social network facility any reference to these court proceedings; and

   (h)changing the child’s principal place of residence from [P] without the written consent of the other party or an Order of this Court.

10. That the father be restrained from engaging in employment while the child is in his care.

11. That both parties be at liberty to obtain all information from the child’s school to which parents are usually entitled at their own expense.

12. That both parties be at liberty to attend at the child’s school for parent teacher interviews (even separately), school concerts, sports day and school awards ceremonies.

13. That both parties be at liberty to obtain any medical information about the child at their own expense and that the mother keep the father advised of the names and contact details of any treating medical practitioners or allied health professionals and any change thereto within seven (7) days via email.

14. That the parties as soon as reasonably practicable notify the other of them in the event that [X] requires urgent and/or serious medical treatment or hospital admission and each party is at liberty and authorised to liaise directly with [X]’s healthcare and medical providers.

15. That the mother do all such acts and sign any such documents to attend for therapy with Ms T as directed by Ms T or such other therapist as recommended by Ms T.

16. That the mother provide copies of the Family Assessment Reports of Ms C and the reports of Ms H to any therapist engaged pursuant to paragraph 14 hereof.

17. That the appointment of the Independent Children’s Lawyer be discharged.

18. That the proceedings be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Alden & Dodds is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4359 of 2011

MR ALDEN

Applicant

And

MS DODDS

Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. This is an application by the father for parenting orders in relation to the child of the relationship [X] born on [omitted] 2009.

2. The father is seeking orders to increase his time with his daughter [X].  As part of that package of orders, he is also seeking orders for equal shared parental responsibility, and an order that the mother be restrained from changing the child’s principal place of residence to a place outside of a 20km radius from [P], without the prior written consent of the father or order of this Court.

3. It is agreed that there be an order for equal shared parental responsibility and that [X] live with her mother.  The application for an increase in time however is opposed by the mother. The mother does not agree to [X] spending any overnight time with her father, and makes no proposals for any future increase in time.

4. In addition, the mother seeks to relocate with [X] from [P] to Adelaide, a distance of some 300km.

Background

1. The parties unfortunately have been in this Court for some time.  The proceedings were commenced by the father on 17 November 2011.

2. The father was born on [omitted] 1976 and is aged 38.  The mother was born on [omitted] 1976 and is also aged 38.

3. The parties commenced cohabiting on 1 March 2001.  Their daughter [X] was born [omitted] 2009.  The parties separated on 13 September 2011.

4. Since that time, they have been engaged in a protracted history of negotiations and arguments over the father’s efforts to spend time with his daughter.

5. The mother has been in employment with [omitted]. Following the parties’ separation, she resided with [X] at her parent’s home.  She now resides on her own with [X] and has just moved into a house she purchased for her and her daughter in [P].

6. The father is a [occupation omitted] employed on a shift roster generally working only three days between Monday and Friday each week.

7. The father is married to Ms W and they have twin girls namely [Y] and [Z] (born on [omitted] 2013) who would now be aged 2.  The father has taken some time off work (approximately 12 months) to support his wife who was required to move to Adelaide to complete her [omitted] training, leaving the father to care for the children in that period.

8. There is no dispute that the father and his wife will be returning to [P] in 2015 with the wife taking up an engagement at [omitted] before moving to work in [P] in about the middle of the year.

9. Both parties were born and raised in [P] and both parties have a significant amount of extended family residing in the area.  That is not to say that there are not members of the extended family in Adelaide and I will refer to that later when discussing the mother’s application.

10. Pursuant to orders of this Court, the father is currently spending time with [X]:

    a)each alternate Saturday from 10.00am to 3.00pm; and

    b)every other Thursday from 10.00am to 3.00pm.

11. The father has, for the last year, been travelling from Adelaide to [P] each week to spend that time with his daughter.

12. Regardless of the outcome of the mother’s application for relocation, the mother proposes ongoing daytime contact between [X] and her father by way of final order.

The Evidence

1. The father relies on:

   a)his Initiating Application filed on 17 November 2011;

   b)his Trial Affidavit filed on 10 September 2012;

   c)the Trial Affidavit of Ms W filed on 10 September 2012;

   d)the Affidavit of Ms D and annexing family assessment report dated 18 April 2013;

   e)his second Trial Affidavit filed on 16 July 2013;

   f)the Trial Affidavits of Ms W filed on 16 July 2013 and 5 August 2013;

   g)his Affidavits filed on 3 February, 24 March and 5 August 2014.

2. The father and Ms W gave evidence and were cross-examined.

3. In addition, Ms H, who it is agreed was called as a witness of the Court, gave evidence and was cross-examined.

4. The mother relies on the following documents:

   a)Amended Response filed on 29 May 2014;

   b)Trial Affidavit filed on 4 June 2012;

   c)Trial Affidavit filed on 16 July 2013; and

   d)Trial Affidavit filed on 8 August 2014.

5. The mother did not seek to call any evidence from her family despite the fact that her mother, for example, had filed an Affidavit previously in these proceedings.

6. The mother gave evidence and was cross-examined.

7. Mr W, a psychologist upon whom the mother attended, provided a report which was “Annexure L” to the Affidavit of the mother filed on 8 August 2014.  The report was admitted into evidence and he was not required for cross-examination.

8. The Independent Children’s Lawyer relies on:

   a)the Family Assessment Report of Ms C filed on 5 June 2012; and

   b)the Family Assessment Report of Ms C filed on 18 April 2013.

9. Ms C’s reports were admitted into evidence. Ms C gave evidence and was cross-examined.

10. On 28 August 2014 the father’s Contravention Application filed on 8 July 2013 was withdrawn with no order as to costs.

11. The proceedings had been listed for trial on two previous occasions, namely September 2012 and August 2013.

12. The trial of September 2012 was vacated on the application of the father as his partner was expecting twins in February 2013. The application was opposed by the mother.

13. The trial was listed on 7 August 2013 however the parties reached agreement in relation to property orders with final orders being made by consent on 6 September 2013. The parenting applications were adjourned to 6 February 2014 and the parties agreed to attend a series of co-parenting sessions with Ms H.

14. The trial commenced on 23 August 2014 and concluded on 23 September 2014.

15. Written submissions were required and those submissions were addressed by Counsel on 18 November 2014.

16. Counsel for the mother submits that the central theme of this trial as identified in Ms H’s report dated 22 February 2014 was the mother’s continued presentation as “highly anxious” about extending [X]’s time with Mr Alden.

17. In other words, the issue became whether the mother would cope as opposed to how the child would cope, and how this impacted on any decision in respect of the best interests of the child.  That is not agreed by opposing counsel who, whilst acknowledging the mother’s position, submitted that the best interests of the child remain paramount with the mother’s position forming only a part of that issue.

The father

1. Counsel for the mother submits that the father in his evidence made a number of critical concessions, thus enabling additional orders to be made at the trial namely:

   a)that he would not engage in employment while [X] was in his care;

   b)that he would be available to care for [X] during his periods of time;

   c)that he would return [X] to the mother if she became distressed;

   d)that the handovers could continue at a police station with the option of moving to another location if the parties agreed;

   e)that he would provide copies of his work roster to the mother; and

   f)that he would consent to an injunction not to consume alcohol or illicit substances before and during any periods of time with [X].

2. Counsel for the father in addressing the written submissions accepted that the father was not against an injunction being granted in respect of his employment.

3. The remaining matters were not opposed in any significant way although the need for such assurances was contested.

4. Counsel for the mother also made submissions in respect of the father’s alleged concessions about the mother’s anxiety and his acquiescence in allowing [X] to dictate when she would see her father.  I will refer to those later in these Reasons.

5. Finally, Counsel submitted that the father presented as belligerent and evasive at times during the course of his evidence.  I do not accept that submission. The father impressed as a witness and if at times he appeared frustrated, then that could be understood in the context of the mother’s proposal that not only should his time be less than what would be usual in these circumstances but it should also occur over a significant barrier of distance following her proposed move to Adelaide.

6. Counsel for the father would submit the father has taken a moderate, gentle and patient approach with respect to attempting to assist the mother to come to terms with his having a meaningful and positive relationship with their daughter.  I accept that the father has gone to extraordinary lengths to try and resolve this matter and he has, particularly in the latter part of this litigation, promoted a moderate approach to progressing his time.

7. Counsel for the mother submits that the father appeared to have a poor opinion of Ms Dodds as a person but conceded that she was a good mother to [X].  It is an unusual criticism in that the mother was not seen to make similar concessions in respect of the father.

The mother

1. The mother’s evidence and presentation regarding ongoing time arrangements, her Counsel submits, was consistent with the evidence given by the father and by Ms H and Ms C.

2. If this submission means that the mother remained either unwilling or unable to consider progressing this matter, then I accept that submission.

3. The mother has been very focussed on her daughter.  The mother candidly conceded that she had been co-sleeping with [X] until quite recently. Since moving into their present accommodation there had been a slight change in that while [X] may not sleep in her mother’s bed as was previously the case, the mother would sleep on a mattress in [X]’s room, should she be disturbed during the night.  The mother’s evidence was that this was a regular occurrence.

4. The mother further conceded that [X] had been breastfed until she was four.  She says she was of an anxious disposition before [X] was born and that impacted on her parenting of [X].

5. After three years of litigation, I was somewhat surprised by the mother’s concession that she needed to do something about her anxiety.  I accept that it is better to concede that something needed to be done but I am puzzled as to why that should occur to the mother now when on her evidence, this has clearly been an issue for her since [X] was born.

6. Her position is such that despite being asked on more than one occasion as to whether or not she could set a timeframe for the next step for [X] to spend time with her father, allowing for any therapy or other step she would take to address her own anxieties, neither she nor her Counsel could provide even a loose structure around which the father and the Court could work.

7. It was put to her and her Counsel that this approach left it completely open to the Court to impose a timeline, should it be found to be appropriate, regardless of the mother’s position. The mother acknowledged this.

8. The mother set out her proposals for relocating which included a continuation of the current arrangements for the father to spend time.  I will address these in these Reasons, however I will state here that I had difficulty in accepting that her plan to move had been properly thought through on a number of levels, including how she would cope with coming to terms with a new environment, the likelihood of her obtaining employment and most importantly the effect on [X].

1. I note at this point the evidence of Ms H, referred to by the father’s counsel that a move away from the supports that are in place for the mother in [P] would be, in the words of the father’s counsel, “a disaster”. 

Ms W - the Father’s partner

1. Counsel for the mother submits that the evidence of Ms W was uncontroversial.   I accept that submission.

2. Ms W gave her evidence in a forthright and appropriate manner, and her evidence is accepted.

Ms C

1. Counsel for the mother submits that Ms C’s evidence, amongst other things, noted that:

   a)[X]’s emotional state is likely to be closely aligned to that of the mother;

   b)the mother’s heightened concerns may be linked to [X]’s history of co-sleeping with the mother;

   c)the mother presented at interview as a very child-focused parent;

   d)if the mother’s anxiety was personality based it may be difficult for her to adopt a different approach to the father’s time with [X]; and

   e)criticism by the father’s Counsel of the mother not implementing some of these strategies recommended by Ms H such as the father’s family book could be seen as an indicator of “anxiety avoidance strategy”.

2. She also submitted that Ms C did not accept the description of the mother put by the father’s Counsel as “recalcitrant”.  Her evidence was that this could be an aspect of fixed thinking and an inability to fix and shift in her thinking.  I note that having noted the unwillingness, Ms C went on to respond to Ms Lindsay’s question “that if we accept the mother is unwilling to recognise the special relationship between [X] and her father and his extended family, would you say overnight can start now, she is old enough?”. Ms C’s response was “I can see the benefit to that … there is less opportunity for things to fall over again” (being a reference to waiting for the mother to complete therapy and her inability or failure to make appointments as noted by Mr W & Ms H).[1] 

   [1] Transcript dated 28 August 2014, page 20, paragraph 30.

3. Ms C’s evidence was that the mother’s proposals for day time only with the father severely minimised [X]’s relationship with her father and sisters.  She supported the progression of time put by the father.  I do not accept this interpretation noting that Ms C’s evidence was that the father could help by presenting as reasonable and reliable and provide feedback on the activities that he and his daughter engaged in.  I will refer to this later in these Reasons.

4. I also note that Ms C was of the view:

   a)that any work or therapy for the mother could happen alongside a gradual increase in the father’s time (rather than wait for the mother to be ready);

   b)as was Ms H, that there was nothing to mitigate against overnight time; and

   c)that [X] would benefit from enough time with her father and siblings to enhance those relationships.

Ms H

1. Counsel for the mother submits that:

   a)Ms H confirmed that the mother presented as anxious and controlling in those sessions;

   b)This was consistent with anxious people who need to control the world;

   c)She confirmed that the father initially indicated to the mother he agreed with her request to relocate to Adelaide with [X].  I do not accept this submission.  Ms H was questioned about the May 2014 meeting.  Her recollection was that the relocation proposal came as a big surprise to the father.  My note of the evidence is that she recalled “He was so shocked.  I think he said nothing and she took that as agreement.”;

   d)There is some suggestion that the father was prepared to agree to the relocation if overnight time could proceed.  That did not accord with the father’s evidence and, in any event, did not assist with the outcome of this case; and

   e)Ms H supported the mother seeking assistance from Ms T.  The Court was advised that the mother has made an appointment to see Ms T on 7 November 2014.  I refer to my previous comments on this topic.

2. Ms H in her evidence noted that people who are highly anxious need to control their world.  A move to Adelaide would, in her view, be very challenging to the mother and I note the submission of the father’s counsel regarding Ms H’s evidence on this point.

3. When asked how can the mother be compelled to take the steps in a safe way so that [X] can enjoy her relationship with her father and his family Ms H replied “It is not possible to negotiate with the mother about options unless it’s according to her terms so I don’t see any other way forward except a transition to making this happen with extending time”.

Agreement

1. The parties agree that they have equal shared parental responsibility for [X], that [X] live with the mother and that the father spend time with her.  In addition, there is agreement on a number of minor issues regarding exchange of information, medical issues and schooling.

2. They do not agree on what the father’s time should be and whether the mother should be allowed to move to live with [X] in Adelaide.

The Law

1. The relevant legislation is contained in Part VII of the Family Law Act1975 (“the Act”).

2. Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.

3. Section 60B(2) of the Act provides that:

   The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):

   (a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents’ jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)the parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. Section 60CA of the Act states that:

   a)In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

5. Section 60CC sets out how a Court determines what is in the child’s best interests and points to a consideration of the matters set out in sub- ss.(2) and (3) (per s.60CC(1)).

6. Significant amendments were made to the provisions of s.60CC in 2012 and came into effect for proceedings commenced after 7 June 2012. These proceedings were commenced in 2011 and I shall therefore refer to the section as it was prior to the amendments, as it is applicable to this case.

7. An order for equal shared parental responsibility can be made by consent. As a consequence, the provisions of s.65DAA(6) of the Act apply and I am not obliged to apply s.65DAA(1) and (2).

8. The authorities are clear that a relocation case is not a specified sub-category of parenting cases and no principles specific to such cases apply.  Such cases are simply cases in which parenting orders are sought in particular factual circumstances.[2]

Section 60CC primary considerations

[2] Mallahan v Mallahan [2010] FamCA 631, 27.

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

1. It is not apparent in the case of either party or the Independent Children’s Lawyer that there is no benefit to the children having a meaningful relationship with both of the child’s parents set out above. 

2. The Full Court in McCall v Clark (2009) 41 Fam LR 483[3] noted with approval the decision of Brown J in Mazorski v Albright (2007) 37 Fam LR 518[4] her Honour concluded that:

   A meaningful relationship is one which is important, significant and valuable to the child.  It is a qualitative adjective not a strictly quantitive one.

   [3] McCall v Clark (2009) 41 Fam LR 483, 122.

   [4] Mazorski v Albright (2007) 37 Fam LR 518, 26.

3. The Full Court went on to conclude that:

   The Court should consider and weigh the evidence at the date of hearing and determine, how, if it is in the child’s best interests, orders can be framed to ensure the child has a meaningful relationship with both parents.[5]

   [5] Ibid, 119-120.

4. There is no significant dispute about the benefit to the child of having a meaningful relationship with each parent.  It is the terms and conditions under which that relationship is conducted together with the parent’s willingness to facilitate that relationship that are issues before the Court.

5. The mother submits that [X] would continue to enjoy a meaningful relationship with her father through the facilitation of regular daytime contact.  She proposes that daytime contact continue regardless of whether or not [X] is residing in Adelaide or [P].  Neither the father nor the Independent Children’s Lawyer accept this submission.

6. Furthermore, the evidence would suggest that there is a very real risk, should the mother move to Adelaide, that the relationship would suffer if the mother’s proposal for the father spending time with [X] is accepted.

7. In addition, they argue that for the relationship to prosper and strengthen, it is important that the father’s time be increased and they would submit that the evidence supports this.  There is some weight to that submission and it appears to be supported by Ms C and Ms H.

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. Each party is focused on the need to protect the child from psychological harm.

2. Each makes allegations against the other, with the mother having alleged that the father had behaved inappropriately in the past and that he continues to behave in an aggressive manner.

3. It is submitted that the father’s presentation in the witness box was consistent with someone who struggled at times to contain his emotions.  The impression given was that the father was trying very hard to maintain his composure while giving evidence.  The impression (it is submitted) was given that away from the scrutiny of the Court, the father could have a propensity to losing his temper as alleged by the mother.

4. I do not accept that submission.  I acknowledge that the father broke down in the witness box.  I also acknowledge that the father may have displayed some frustration with the progress that he has made in spending time with his daughter.

5. Taking into account the history of this matter, and the obvious reluctance of the mother to address the issues that she faced in having her daughter spend time with her father combined with her complete refusal to work on any programme or schedule to expand that time (having acknowledged her issues with anxiety) then his reaction such as it was, is understandable.

6. Ms C commented on the child-focused approach displayed by the mother and conveyed her concern at the mother’s failure to facilitate the child’s relationship with her father.  Her evidence was that this appeared to be in marked contrast with her approach to all other aspects of [X]’s life and that she had difficulty in understanding or providing a cause for the mother’s actions or lack thereof.

7. If there was any cause for the mother to be concerned at the commencement of these proceedings three years ago, and I do not find that to be the case, then I would find that the father has come a long way from that position in his attempts to foster a relationship with his daughter whilst acknowledging the importance of his daughter’s relationship with her mother.

8. I note Ms C’s evidence where in answer to Ms Dickson’s questions she reported that the father in the interview for the second report was much more reflective and child focused in his discussions.  He reported that he had reflected on his behaviour from the feedback he had received from Ms C and the report.  That accords with my view of him in the witness box.

9. Unfortunately, I have difficulty finding that the mother has made any progress from her original position and have expressed my concern that it is only now that she has started to seek help for the issues that she faces by attending upon Ms T with the first appointment having been made on 7 November 2014.

10. I will address the mother’s capacity later in these Reasons however would note that Mr W, the psychologist who saw her for six sessions in 2011, 2012 and 2013 and then a further three sessions in 2014 states in his report that:

    … in the more recent psychological sessions although Ms Dodds was stressed regarding her current situation she was not currently suffering from an Axis 1 disorder as diagnosed by the DSM/V.[6]

    [6] Report of Mr W dated 5 August 2014, page 2.

11. The mother is not, it appears, suffering from a psychological disorder.

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

1. [X] is relatively young, being born on [omitted] 2009.  

2. At the time of the preparation of the reports in this matter she was aged two years and five months (for the report of 7 June 2012), and three years and four months (for the report of 18 April 2013).

3. I do not consider it appropriate, nor is it suggested otherwise, that the views of a child of this age should be brought to account.

3(b) the nature of the relationship of the child with:

(i)      each of the child's parents; and

(ii)    other persons (including any grandparent or other relative of the child)

1. It is not disputed that [X] has a close relationship with the mother.

2. When the father’s time with [X] does proceed, the evidence would support a conclusion that she has a good relationship with him.

3. It does not appear to be controversial that [X] appears to have a good relationship with the father’s partner, Ms W and the twins, [Y] and [Z] (who are noted to be infants at the time of the interview).

4. The Independent Children’s Lawyer submits that it is not disputed by either party that [X] has a positive developing relationship with her father and her father’s new family.   I accept that submission.

5. It is accepted that [X] has a good relationship with her extended family.  She lived with the maternal grandparents for three years and there is no controversy about that relationship.

3(c)  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. The mother submits that she has supported [X]’s relationship with her father to the best of her ability, notwithstanding her own anxiety. She cites in favour of that submission her actions in facilitating time at her home when [X] refused to leave the mother’s residence at handovers.  When considering this however, one must also consider the actions undertaken by the mother to facilitate the transition of [X] into her father’s care.

2. The Independent Children’s Lawyer notes that it was not initially apparent as to whether [X]’s reluctance to spend time with her father was directly or indirectly related to the mother’s reluctance for [X] to have a relationship with her father.

3. Both parents in their evidence were able to make honest concessions about their own poor behaviour including that which had occurred in front of [X]. There was however a marked difference in each parent’s abilities to address their own shortcomings for the benefit of [X].

4. The father acknowledged that on occasion he had been verbally abusive to the mother at handover due to his frustration with the mother’s behaviour and he further conceded that his behaviour was unacceptable. He stated he had tried to refrain from that behaviour once he was aware of the detriment it would cause to [X].

5. The mother in her evidence agreed that a significant factor in [X]’s behaviour was because she had a problem. The mother also conceded many aspects of that behaviour could potentially cause [X] emotional or psychological harm.

6. The Independent Children’s Lawyer says that while the mother should be commended on her honesty about these matters, it was highly concerning that the mother was unable to address those issues or rationally concede that there needed to be reasonable change in the proposals she made for [X] to spend time with the father. I accept that submission.

7. The mother’s evidence that she believed it was up to [X] to determine her time with the father, raises concerns that the mother is abdicating her parental responsibility and placing it on the shoulders of a five year old child.

8. I accept the Independent Children’s Lawyer’s submission that there were certain aspects of the mother’s evidence which tended to suggest that the mother had difficulties prioritising her emotional needs over those of her daughter (although to her credit the mother did concede this).

9. There remains a significant question mark over the willingness and ability of the mother to facilitate and encourage a close and continuing relationship between the child and the father, should the mother remain residing with [X] in [P].  I note Ms C’s evidence that whilst not malicious, the mother had certainly not been willing to progress.

10. Into this discussion must also be factored the mother’s proposal to relocate to Adelaide. Ms H considered such a move would be very challenging to the mother.

11. Counsel for the father submits that it would be disastrous.  Ms C noted her surprise in view of the family web that existed for the mother in [P]. She went on to say that she would not have confidence that [X] will have an ongoing relationship with her father should that change occur.[7]

    [7] Transcript dated 28 August 2014, page 10, paragraph 25.

12. The Independent Children’s Lawyer submits that the mother’s evidence in respect to the relocation appeared to be a superficial attempt to use geographical distance to limit [X]’s time with her father once he and his father’s family returned to [P].  She notes that the mother had lived in [P] for all of her life bar five months and had been in receipt of significant support from her parents.

13. She further noted that the parents did not give evidence at the trial however in view of the fact that the mother and [X] had lived with them following her separation until approximately a month before the trial, her submission was it was reasonable to assume that they had a significant relationship with [X] who had lived in their house from 2011 until 2014.  I accept that submission.

14. The comments of Ms H and Ms C, combined with the concerns that I have referred to above, lead me to the conclusion that whilst I have strong concerns about the mother’s willingness to facilitate the relationship while she is in [P], those concerns are much stronger should she move to Adelaide.  I have grave concerns that [X]’s relationship with her father, taking into account the mother’s demonstrated inability to foster the child’s relationship with him to date, would suffer irreparable damage.

3(ca)   the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child

1. This was not subject of submissions or appeared to be an issue in dispute at this stage.

3(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)     either of his or her parents; or

(ii)   any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. There are two changes proposed for [X], being an increase in her time with the father, and the mother’s proposal for herself and [X] to relocate to Adelaide.

1. Dealing with the last proposal first, I have grave concerns for [X]’s relationship with her father, should the mother and [X] be permitted to move to Adelaide.

2. The mother candidly expresses the view that she has a problem with [X] spending time with her father and yet save for the appointment with Ms T made just prior to the conclusion of the trial, there is very little that inspires confidence in the mother’s attempts or willingness to rectify that situation.

3. Ms H expresses concerns regarding the maintenance of that relationship. Ms C expresses surprise that relocation is contemplated particularly in view of the supportive family network the mother has in [P].

4. The Independent Children’s Lawyer also notes that she will be separated from her grandparents with whom she has been living for some three years.

5. This is in addition to the barrier of distance the mother is placing between [X] and her father, should the proposal be accepted.

6. I am therefore of the view that the likely effect of such change would not be in the child’s best interest.

7. I note the evidence of both parties’ extended family network in [P], the close family support received from the maternal grandparents, and the current working arrangements for the mother which, on her evidence, provide her with an extremely flexible work environment. The evidence of what may be available in Adelaide gives me no confidence the same supports would be available and therefore concern that [X] will have less support from her mother due to changed work commitments and her extended maternal and paternal families, in addition to being separated from her father.

8. I note for the purposes of this discussion that there is no question that should I decide that the child remain in [P], that the mother would remain with her.

9. With respect to the increase in time, the father promotes an approach that is more cautious than that of the Independent Children’s Lawyer.

10. The mother submits that the impact on [X], if the father’s application for overnight and extended time is granted, will be significant.  She submits that the limited contact the child has had with the father to date would mean that the proposal put forward by the father would be detrimental and traumatic not only for the child but also for the mother. “Too much too soon” may damage an already fragile arrangement.

11. The submission then goes on to get to the heart of the matter when it says “any proposed orders of the Court need to bring to account the mother’s capacity to support them.  If orders are made to move forward too quickly then it is submitted that the situation could deteriorate very quickly”.

12. I have difficulty with this submission.  I will refer to my view of the mother’s response to this matter when considering the capacity of the parents to provide for the needs of the child including her emotional and intellectual needs.

13. I am conscious of the progress made to date however I have concerns that this progress has been made at great cost to the father who has shown a demonstrated willingness to listen, consider his position and change in the course of these proceedings.  I am not seeing the same willingness or progress exhibited by the mother.

14. I am also not provided with any assistance by the mother in respect of the pace of change.  I am warned that if the orders I make proceed too quickly then it may fracture an arrangement that is fragile.  I am not however provided with any guidance other than a “wait and see” proposal that would enable me to judge whether or not the mother could cope with the change.

15. I note the evidence of Ms C and Ms H that a decision will have to be imposed on the parties for progress to be made and that any therapy in view of the concerns about the mother’s willingness can occur at the same time.

16. The evidence would suggest that [X] has a close relationship with her mother and should the mother be anxious, then this is likely to affect the child.  At the same time the evidence would support a conclusion that [X] has a good relationship with her father and would benefit from spending further time with him and her siblings.

17. I therefore consider that change should occur but would structure that change so that it occurred slightly slower than the pace recommended by the Independent Children’s Lawyer and be a variation on that proposal by counsel for the father noted further time has elapsed since the conclusion of the trial. The likely effect of that change would, I consider, be in the best interests of the child.

3(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. The practical difficulty and expense of the child spending time became more problematic when the father moved to reside with his partner and children in Adelaide.  

2. Despite that, he managed to travel to [P] and spend regular time with his daughter.

3. The father is now returning to reside in [P] and his partner will shortly be taking up work in the region.  The practical difficulty of him spending time with his daughter has now been significantly reduced.

4. The mother’s proposal that his time continue with the mother residing in Adelaide is, I consider, unacceptable.  The father’s evidence was that his time in Adelaide with his partner and children was always on a temporary basis. Neither he nor his partner had any intention of permanently moving from [P].  The arrangements for him to continue spending time with [X] whilst he was in Adelaide while not perfect, was the best that were available at the time pending the parties giving evidence at trial.

5. I have now formed the conclusion that [X]’s time with the father should increase.  I consider that the progress of his time is at a critical stage and I do not accept that it is acceptable to place a barrier of distance between the child and her father at this point in their relationship.

6. The practical difficulty and expense of the child spending time with and communicating with her father should the mother move to Adelaide is, I consider, not in the best interests of the child.

3(f)  the capacity of:

(i)     each of the child's parents; and

(ii)   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

1. Ms H rightly raises concerns in respect of both parents.

2. The father’s frustration at the pace with which he has been able to progress his time with [X] is understandable however, as a parent, he does not have the luxury of being able to express that frustration in front of the mother and, in particular, in front of his daughter. The evidence would support a conclusion that he has, after reflection, taken this on board.

3. She was invited by Ms H to increase the father’s time in December.  Ms H reports that she would not agree saying “she won’t go if I make her go for more time” and “I am not ready”.

4. In addition, she was given specific advice about how to address matters with [X] including “talking up” [X]’s visits with the father informing her that “her father wants to see and have fun with her and that both Mum and Dad want you to go on visits”.  Discontinue telling [X] she doesn’t have a choice as it sounds negative”.

5. She was also told “to manage [X]’s reluctance to get dressed and have breakfast in a matter-of-fact manner to ensure she is not provided attention for inappropriate behaviour.  This may mean that she attends handover without having eaten breakfast and/or in her pyjamas.  Give her the choice that she can get dressed now or go in her pyjamas. Acknowledge and praise appropriate behavioural choices”.

6. It is unfortunate that in spite of this advice, in her Affidavit sworn on 4 February 2014, she refers to an incident on 26 January 2014 where “[X] asked if she was going to Dad’s tomorrow”.  [X] said “I hate going to Dad’s.  I said you have to go”. She then goes on to say that “[X] has in the past refused to eat breakfast, have her hair done or get dressed”.

7. The mother has appeared to be slow in accepting and acting upon advice on how to respond to [X]’s reported reluctance to spend time with her father.

8. It is not clear as to what consequences, if any, flowed from [X]’s failure to comply with her mother’s direction for [X] to spend time with her father were, for example, privileges withdrawn?  Furthermore, what support, if any, did [X] receive to spend time with her father? 

9. The mother has not in my view shown the same willingness as the father to step up and accept the parental responsibility to act in the best interests of her daughter. She would say that she has engaged with

   
   

   Ms H however, there is a series of difficulties outlined in Ms H’s evidence such as getting the mother (who works part-time) to attend interviews.

10. She submits that she has taken on the advice that she should attend upon Ms T to discuss her anxieties in respect of her daughter and yet the first event scheduled by her was an appointment on 7 November 2014.

11. Mr W in his report of 3 August 2014 noted that Ms Dodds “was not suffering from an Axis1 disorder as diagnosed by the DSMIV”.  He went on to say as a “treating psychologist ethically in my opinion further sessions were not warranted under Medicare given that in my opinion Ms Dodds was not currently suffering from an Axis 1 disorder”.

12. As he previously stated, although she was stressed, she was not suffering from a psychological condition.  This would therefore suggest that her reaction to her daughter spending more time with her father is a matter that is within her control.  She has the capacity to provide for the needs of the child including the need to enjoy a relationship with her father should she choose to do so.

13. Some concern was raised about the capacity of each parent in the initial report of Ms C. Mr Alden, for example, acknowledged not speaking to or looking at Ms Dodds at handovers.[8]  Ms C noted that:

    Mr Alden’s frustration at the moment, while perhaps understandable, is likely to be impacting on his capacity to work with Ms Dodds in any regard.  He swore and called her names during his interviews.  He admitted ignoring her at handover.  He referred to becoming angry with Ms Dodds senior.  Not only is his reactivity in this regard a poor indication for being able to build a healthy relationship, it is likely to impact on his relationship with [X].[9]

    [8] Family Report of Ms C dated 5 June 2012, page 14.

    [9] Ibid, 14.

14. Ms C went on to note that “other complicating factors for [X] are that she has a history of being difficult to settle…”.

15. In her second report Ms C noted that:

    a)Mr Alden’s changed proposal from shared care was child focussed;

    b)he had accessed parenting information as recommended in the previous report; and

    c)his comments at paragraph 11 where he spoke of the importance of working with Ms Dodds saying that “if [Ms Dodds] does not handle things, neither will [X]”.

16. From the evidence of Ms C, including her reports, I was left with the impression that the father had taken the concerns on board and had moved to address them.  This was supported by the father’s evidence.

17. The mother however did not appear to be moving at the same pace and while it is good that she has commenced attending on Ms T, there would be a significant amount of work that is still to be done.

18. I note the mother’s counsel’s submissions that:

    a)both parties have undertaken the “Kids R First” course;

    b)the mother has completed a “Child Focussed Information Session” and a “Building Connections” seminar in 2012; and

    c)both parties have participated in co-parenting counselling with Ms H.

19. While I have observed what appears to be positive change with respect to the father acknowledging the mother’s role, I do not get the same impression from the mother’s evidence.

20. The mother would, despite her exemplary efforts in all other fields, appear to still have difficulty in accepting the benefit to [X] of having a positive and strong relationship with her father and supporting her in enjoying that relationship.

3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

1. [X] was five years of age in December 2014. Time has been proceeding, albeit at a slower pace than the father would want, over the last six months.

2. Both Ms C and Ms H consider it appropriate that time be progressed.  I accept their recommendations.

3. This child has a good relationship with her father and his family.  It is time steps were taken to enhance and strengthen that.

3(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The mother’s case is that she has an anxious disposition.  It does not meet the criteria however for a psychological illness.  I note the comments of Ms H that anxious people need to control their environment.

2. There is however some concern as to whether she has always been able to put [X]’s needs above her perceived anxieties. Whilst not the subject of direct criticism, the question remains as to whether matters such as:

   a)the breast feeding of [X] until she was four years of age; and

   b)the mother continuing to sleep on a mattress on the floor of [X]’s bedroom;

   are about the mother or the child.  The comments of Ms C that “the mother’s … level of protectiveness around [X] is of concern and doesn’t necessarily allow [X] to have the sort of small stresses and small failures that children can benefit from in developing resilience”.

3. The Independent Children’s Lawyer submits there were certain aspects of the mother’s evidence which tended to suggest the mother had difficulty prioritising her emotional needs over those of [X], although to her credit the mother did conceded this.  I accept this submission.

4. The mother’s counsel submits both parties level criticism at the other and are unable to concede anything good about the other parent.  I do not accept this.  The father, to his credit, was able to concede that the mother, putting aside her attitude to his role in [X]’s life, did a good job (as is noted by the mother’s counsel in her submissions).  The mother however, was unable to make any similar concession.

3(j)      any family violence involving the child or a member of the child's family

1. In the course of submissions neither party raised the issue of family violence. It is noted that there are allegations on the file which are denied and the matter was not pressed at trial.  I was not referred to any family violence order in the course of the trial.

3(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. Counsel for the mother concedes that if her position, namely day time contract only is supported, there would likely be a need for further time for the father as [X] gets older.  I accept that submission.

2. The mother’s counsel then submits that if there is to be an extension to overnight time, a slow and cautious approach should be taken.  I am not however, provided with any guidance as to what that means.

3. While I accept that the change should be gradual, I consider that reasonable progress needs to be made to establish a framework for [X] to enjoy her relationship with her paternal family.

4. Some further time has elapsed since the trial.  I therefore consider it appropriate to move to an overnight regime reasonably quickly such that by the end of 2015 [X] is spending some significant time with her father.

5. All parties seek finality.  The mother concedes that her proposal does not give that result.  After three years of litigation it is appropriate to consider a more lasting solution.

The extent to which each of the parents has fulfilled their responsibilities as a parent

1. This section has been substantially addressed elsewhere in these proceedings.  The parties are the parents of a child who was born some four weeks premature.  This may or may not have fed into the mother’s anxious disposition.

2. They each struggled to come to terms with their separation and the arrangements they should make for their daughter to spend time with each of them.

3. The father concedes that some of his previous conduct was unacceptable.  He appears to have listened and moved to change.  That change may have been assisted by the fact that he took responsibility for his twin daughters while his partner, Ms W, completed her [employment] requirements.

4. The mother has now conceded that she needs to change and has commenced consulting Ms T.  There remains a concern as to her ability to put [X]’s need for a healthy relationship with both of her parents ahead of her own anxieties and her ability to manage her need to control all aspects of her daughter’s life.

Equal Shared Parental Responsibility

1. The parties agree to an order in these terms and there is nothing in the evidence that would rebut this.

Section 65DAA Court to consider equal or substantial and significant time

1. Neither party submits that [X] should spend equal time with each parent and I accept that for the reasons set out above.

2. I do however accept that [X] should spend more time with her father with such time to progress to substantial and significant time.  For the reasons set out above, I consider it to be in the best interests of the child and reasonably practicable.

Relocation

1. I am referred to by the mother’s counsel to inter alia the authority of Starr & Duggan [2009] FamCAFC 115 where the Full Court stated that:

   … it is important to emphasize … that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   ·    first make findings concerning the relevant section 60CC factors

   ·    then consider (based on the section 60CC findings) whether equal time or substantial and significant time is in the child’s best interests and

   ·    then consider whether such arrangements are reasonably practicable by addressing the matters referred to in section 65DAA(5) – which may be done by referring back to the earlier section 60CC findings.

2. I have formed the view that [X]’s time with her father should increase such that it is substantial and significant.

3. The mother’s proposed move to Adelaide would put the relationship between [X] and her father at risk.

4. The mother’s proposal for the father’s time with [X], should she be able to move is impractical and would place a significant burden on the child.

5. I do not, for the reasons set out above in this judgment, consider it appropriate that the mother be allowed to change [X]’s primary place of residence to Adelaide. The mother concedes she will, if the relocation is not permitted, remain in [P] with [X].

6. I therefore make the orders set out at the commencement of these Reasons.

I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of Judge Cole

Associate: 

Date:  6 February 2015

CORRECTIONS

1. Page 3, Orders, paragraph 4(b) line 2 – insert “Wednesday”

2. Page 3, Orders, paragraph 4(f) line 3 – “and thereafter for the first seven days of each term holiday commencing first term 2016”

3. Page 6, Orders, paragraph 10 – “That the father be restrained from engaging in employment while the child is in his care”