B and E

[2007] FMCAfam 398

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & E [2007] FMCAfam 398

FAMILY LAW – Parenting Orders – primary and secondary considerations – best interests of the child – presumption of equal shared parental responsibility – equal time – substantial and significant time – meaningful relationship.

Family Law Act 1975 (Cth), ss.4(1), 60B, 60CC(2)(3)(4)(4A), 61DA(1), 65DAA(1)(2)
Family Law Amendment (Shared Parental Responsibility) Act, 2006 (Cth)
Federal Magistrates Court Rules, 2001 (Cth), r.23.01A5(a)

B & B [2007] FMCAfam 82
Goode & Goode [2006] FamCA 1346
Hungerford & Tank [2007] FamCA 637
M & K [2007] FMCAfam 25
PS & OS [2007] FMCAfam 285

Altobelli FM “The search for wisdom: relocation in the era of shared parental responsibility”, paper delivered at 10^th Australian Family Lawyers Conference, 8-13 June 2007, p.10

Applicant: G B

Respondent: R E

File Number: SYM 4950 of 2002

Judgment of: Lucev FM

Hearing date: 9 May 2007

Date of Last Submission: 9 May 2007

Delivered at: Brisbane (by Burnett FM)

Delivered on: 9 July 2007

REPRESENTATION

Applicant: Mr B in person

Counsel for the Respondent: Mr R. Slade-Jones

Solicitors for the Respondent: Schultz Toomey O'Brien

ORDERS

1. The Father and Mother have equal shared parental responsibility for the Child.

2. The Child live with the Father.

3. That the Child spend substantial and significant time and communicate with the Mother as follows:

   (a)for the first half of each March/April New South Wales gazetted school holidays;

   (b)for all of the June/July New South Wales gazetted school holidays;

   (c)for the second half of each September/October New South Wales gazetted school holidays ;

   (d)for the first half of the New South Wales gazetted school holiday (the Christmas holiday) commencing in December 2007, December 2009 and December 2011;

   (e)for the second half of the New South Wales gazetted school holiday (the Christmas holiday) commencing in December 2008, December 2010 and December 2012;

   (f)outside of the school holiday periods referred to above, and subject to giving the Father 28 days notice, for up to four weekends a year, from 9:00am Saturday to 5:00pm Sunday, on any weekend on which the Mother is staying in accommodation within 50 kilometres of the Father’s residence in Sydney but not on any weekend on which the birthday of the Father, the Father’s Partner, the Father’s Partner’s children, or the Father’s Parents, or Father’s Day fall;

   (g)by telephone at any reasonable time;

   (h)by telephone on the Mother’s birthday and Mother’s Day if these days fall on days on which the Child is not spending time with the Mother, in which case the Father is to ensure that the Child telephones the Mother on that day;

   (i)by email at any reasonable time;

   (j)by internet chat network at any reasonable time;

   (k)by letter at any time;

   (l)at any other time, and by any other means, that the Father and Mother agree upon.

4. That the Child communicate with the Father as follows when the Child is spending time with the Mother:

   (a)by telephone at any reasonable time;

   (b)by telephone on the Father’s birthday and Father’s Day if these days fall on days on which the Child is spending time with the Mother, in which case the Mother is to ensure that the Child telephones the Father on that day;

   (c)by email at any reasonable time;

   (d)by internet chat network at any reasonable time;

   (e)by letter at any time;

   (f)at any other time, and by any other means, that the Mother and Father agree upon.

5. That the means of, and cost of, transport for the Child to spend time with the Mother are to be agreed upon and shared by the Father and Mother.

6. That neither party shall denigrate the other to or in the presence of the Child.

7. That each parent keep the other informed of their present residential address and telephone numbers and keep each other informed of any change of address or telephone numbers within (2) days of any such change.

8. That each parent be able to contact the school attended by the Child to obtain reports, photographs, newsletters and other information from time to time, and that such authority is further extended to cover all medical practitioners and other health professionals.

9. That each parent shall inform the other of any medical condition or medication for the Child, or should the Child become seriously ill during the time is spending with that parent and should the Child become seriously ill requiring hospitalization, will forthwith inform the other parent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

SYM 4950 of 2002

G B

Applicant

And

R E

Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant Father, (“Father”), seeks parenting orders concerning the Child of his marriage with the Respondent Mother, (“Mother”).

2. The Child, born in 1995, is the child of the marriage (“Child”).

3. The real dispute between these parties is about with which of the Father or Mother the Child will live.  That entails a dispute about re-location, for presently the Child lives with the Mother in Queensland, while the Father resides in New South Wales.

Evidence

Documents relied on – Father

1. The Father read the following affidavits:

   a)the Father’s Affidavit sworn 20 September 2006 (“Father’s First Affidavit”);

   b)the Father’s Affidavit sworn 25 September 2006 (“Father’s Second Affidavit”);

   c)the Father’s Affidavit sworn 12 February 2007 (“Father’s Third Affidavit”);

   d)the affidavit of P S (formerly B) sworn 20 September 2006 (“Father’s Partner’s Affidavit”);

   e)the affidavit of S R sworn 20 September 2006 (“Father’s Friend’s Affidavit”); and

   f)the affidavit of J B sworn 12 February 2007 (“Father’s Mother’s Affidavit”)

Oral evidence – Father

1. The Father and Father’s Friend were cross-examined and re-examined, The Father’s Mother was cross-examined only, and the Father’s Partner was not cross-examined at all.

Documents relied on – Mother

1. The Mother read the following affidavits:

   a)the Mother’s Affidavit filed 27 April 2007 (“Mother’s Affidavit”);

   b)the affidavit of P E  filed 27 April 2007 (“Mother’s Daughter’s Affidavit”);

   c)the affidavit of L A filed 26 April 2007 (“Mother’s Sister’s Affidavit”); and

   d)the affidavit of B C filed on 1 May 2007 (“Mother’s Psychologist’s Affidavit”).

Oral evidence – Mother

1. The Mother, Mother’s Daughter and Mother’s Sister were cross-examined but not re-examined.  The Mother’s Psychologist was not cross-examined at all.

Family Report

1. A Family Report was prepared by Ms B (“Family Report Writer”), dated 12 March 2007 and released to the parties pursuant to r.23.01A5(a) of the Federal Magistrates Court Rules, 2001 (Cth) (“FMC Rules”) on 15 March 2007.  As the Father effectively relied upon the Family Report the Family Report Writer was treated as a witness for the Father, and was cross-examined by the Mother’s counsel, but not re-examined.

Background facts

1. Uncontroversial relevant background facts include the following:

   a)Father and Mother commenced a relationship in 1991 and married on 25 April 1992;

   b)the Child was born 1995, and is now 11 years of age;

   c)the parties separated during 2001;

   d)the Child has lived with the Mother since separation, and spent some time with the Father; and

   e)the parties decree nisi of dissolution of marriage became absolute on 3 November 2002.

Other relevant facts – residence and care of the child

Living arrangements

1. By agreement, post separation the Child lived with the Mother in Brisbane.

2. The Father says that he supported the move to Brisbane because the Mother had the support there of her extended family, and because the Father did not have the means to provide housing or accommodation elsewhere for the Child: Father’s First Affidavit, para 9; Father Transcript p.5; Rattray Transcript, p.28.

3. The Father suggests that the Mother and Child then lived for a period of some months in “gypsy like” conditions in a caravan on an unserviced block: Father’s First Affidavit, para 13; R Affidavit, paras 8 and 10.  The Mother says that the Father knew of her intention to move into caravan accommodation on the block, and it is apparent from the evidence that this is so, and that, at least until the Father had seen the conditions, there was no issue about the appropriateness of the caravan living conditions: Mother’s Affidavit, para 39 and Annexure RE15.  Whilst the Father says that he did not like the Child’s living conditions, he knew that she would be safe, and in any event subsequent relocation alleviated his concerns: Father Transcript, p.22.  The Mother relocated to Queensland’s Sunshine Coast during the first quarter of 2003: Father’s First Affidavit, para 9; Mother’s Affidavit para 39.  The Mother has lived in stable and appropriate accommodation on the Sunshine Coast since then with the Child, shifting once: Mother’s Affidavit, para 39.

4. The Father asserts that there was an agreement that the Child be given the opportunity to relocate and live with the Father, if the Father was able to provide suitable care and accommodation, and in the context of this agreement the Father attempted to discuss relocation with the Mother in June 2005 and January 2006: Father’s First Affidavit, paras 10 and 12.4.  The Father says that the relocation of the Child was further discussed in February 2006: Father’s First Affidavit, para 12.6.  The Father says that the Mother acknowledged that she would have to sell her house if the Child moved to live with the Father, but subsequently the Mother refused to allow the Child to relocate: Father’s First Affidavit paras 12.8 and 12.9.  The Mother says that she initially agreed to allow the Child to relocate and live with the Father, but did so when she was tired and unprepared for the relevant discussion with the Father, and that having thought about the matter thoroughly she subsequently changed her mind about the Child’s relocation: Mother’s Affidavit, paras 33 and 38 (d) and (e); Annexure RE 12 (in which the Mother indicates that she is not happy that the Father wants to take the Child from her).

5. The Father presently lives in Sydney.  The Father lives in a comfortable home, one bedroom of which is specifically allocated to the Child.  The Father lives with his new partner and her 16 year old son who is an apprentice butcher:  see Family Report, para 21.

Education

1. The Child is presently in year six and attends school on Queensland’s Sunshine Coast: Mother’s Affidavit, para 5.  The Child has attended that school since year 2: Mother’s Affidavit, para 5. The Child participates in calisthenics as an extra-curricular activity: Mother’s Affidavit, para 6.  The Mother is actively involved in activities associated with the Child’s school: Mother’s Affidavit, para 13.  The Child has a history of commencing, but not pursuing, various out of school activities: including keyboard lessons, ten pin bowling, swimming and golf: Mother’s Affidavit, para 12.  If the Mother is not able to pick the Child up from school then the Child attends the Outside School Hours programme at the school: Mother’s Affidavit, para 41(c).

2. In January 2006 the Father commenced investigations into where the Child might attend school if the Child lived with the Father, a process that involved the conducting of interviews and the short listing of six schools near where the Father lives: Father’s First Affidavit, para 12.5; Father Transcript, p.10.  Copies of the prospectuses were forwarded to the Mother in March 2006: Father’s First Affidavit, para 12.7.  The Father attended an interview in September 2006: Father’s Second Affidavit, para 5 and Annexure B, as a consequence of which the Child was accepted for enrolment: Father’s Second Affidavit, Annexure B; Father’s Third Affidavit, para 9; Father Transcript, pp 15-16.

3. The course of the interactions between the Father and Mother, and their effect on the Child, is perhaps most accurately summarised by the Family Report Writer who says:

   “the parents regularly corresponded … to the point where arrangements seemed to have been made, an appropriate school was close to being selected, and … [the Child] must have perceived that she would be soon part of her father’s family environment.”: Family Report, para 66.

Principles to be applied and procedure to be followed

1. The judgment of the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 (“Goode”) concerned interim parenting orders. Nevertheless, that judgment was until recently “the only authoritative guidance on the effect of the changes” in the law relating to relocation wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) effective 1 July 2006: Altobelli FM “The Search for Wisdom: Relocation in the Era of Shared Parental Responsibility”, paper delivered at 10th Australian Family Lawyers Conference, 8-13 June 2007, p.10.  Recently, (29 June 2007) the Full Court of the Family Court of Australia in Hungerford v Tank [2007] FamCA 637 at para 62 per Warnick, May and Boland JJ, said that the failure to follow the steps laid out in Goode was an error of law.

2. Therefore, and albeit that it was said in the context of an interim parenting order, the Court adopts what was said by this Court in B & B [2007] FMCAfam 82 (“B & B”) where Wilson FM said:

   The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration:  Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].

   The framework in which those best interests are to be determined are the factors adumbrated in s.60CC of the Act. The objects and principles contained in s. 60B of the Act provide the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case Goode & Goode [2006] FamCA 1346 at [10].

   In Goode & Goode [2006] FamCA 1346 the Full Court was particularly concerned with the effect the amendments introduced by the Family Law (Shared Parental Responsibility) Act 2006 had on the approach that a court should take on, relevantly, an interim application. At [72] their Honours concluded that the amending Act evinced a legislative intent in favour of the substantial involvement of both parent’s in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.

   In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:

   “In an interim case that would involve the following:

   (a)     identifying the competing proposals of the parties;

   (b)     identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h)if equal time is found not to be in the child’s best interests, considering  making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of  consideration of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”  [B & B at paras. 2-5 per Wilson  FM].

Issues and Orders Sought

1. The essential issues in dispute and to be determined are as follows:

   a)with whom the Child is to live, and where; and

   b)with whom the Child is to spend time, and whether that time ought be equal, substantial and significant, or otherwise.

2. The disputed issues are reflected in the nature of the orders sought:

   a)The Father seeks final orders that:

   i)That the Child lives with the Father.

   ii)That the Mother spend time with the Child as follows:

   1.   For half of each New South Wales gazetted school holiday period, being the first half in even numbered years and the second half in odd numbered years.

   2.   At all other times as agreed between the parties.

   iii)That the Mother’s time with the Child in Order (ii) be facilitated by the Mother arranging the Child’s travel at commencement to the Mother, and the Father arranging the Child’s travel at conclusion to the Father.

   iv)That the Mother communicate with the Child as follows:

   1.   The Mother to telephone the Child at any reasonable time.

   2.   The Child to telephone the Mother at any reasonable time.

   3.   The Father to ensure the Child telephones the Mother on her birthday.

   4.   The Father to ensure the Child telephones the Mother on Mother’s Day.

   v)That neither party shall denigrate the other to or in the presence of the Child.

   vi)That the parties keep each other informed of their present residential address and telephone numbers and keep each other informed of any change of address or telephone numbers within (2) days of any such change.

   vii)For either of the Father and Mother to be able to contact the school attended by the Child to obtain reports, photographs, newsletters and other information from time to time, and that such authority is further extended to cover all medical practitioners and other health professionals.

   viii)That each parent shall inform the other of any medical condition or medication for the Child, or should the Child become seriously ill during the time is spending with that parent and should the Child become seriously ill requiring hospitalization, will forthwith inform the other parent.

   ix)That should the Child, within a reasonable time, express a considered view wanting to return to the care of her Mother, that the Father undertakes to accommodate such request.

   b)The Mother seeks final orders that:

   i)The Child live with the Mother.

   ii)That the parents have equal shared responsibility for the Child.

   iii)That the Father spend time and communicate with the Child at such times as may be agreed between the parties and failing agreement in particular:

   1.   For half of each Queensland Gazetted school holiday period, for the first half of 2007 and each alternate year thereafter and the second half of 2008 and each alternate year thereafter, with the Father to arrange the Child’s travel at the commencement of the time the Father spends with the Child and the Mother to arrange the Child’s travel at the conclusion of the time the Child is to spend with the Father;

   2.   By telephone:

   a.The Father to telephone the Child at any reasonable time;

   b.The Child to telephone the Father at any reasonable time;

   c.The Mother to ensure the Child telephones the Father on his birthday;

   d.The Mother ensure the Child telephones the Father on Father’s Day.

   iv)That neither party shall discuss any matters in dispute between the parties with or in the presence of the Child nor denigrate the other to or in the presence of the Child.

   v)That the parties keep each other informed of their present residential address and telephone number and keep each other informed of any change of address and telephone number within two days of any such change.

   vi)For each of the Mother and Father to be able to contact the school attended by the Child to obtain reports, photographs, newsletters and other information from time to time, and that such authority is further extended to cover all medical practitioners and other health professionals.

   vii)Each parent shall inform the other of any medical condition or medication for the Child, or should the Child become seriously ill during the time the Child is spending with that parent and should the Child become seriously ill requiring hospitalization, will forthwith inform the other parent.

Presumption of equal shared parental responsibility – section 61DA(1)

1. When the Court makes a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA, Family Law Act, 1975 (Cth) (“FL Act”).  The presumption “is directed to the decision making responsibility of the parents”: B & B at para. 16 per Wilson FM.

2. The application of the presumption invokes the time spent provisions of s.65DAA(1) of the FL Act.

Time Spent

1. Section 65DAA(1) of the FL Act provides that:

   “Equal time

   (1)  If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

   (a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

2. In order to determine whether equal time with each parent is in the best interests of the Child it is necessary to consider the primary and additional considerations in s.60CC(2)and(3) of the FL Act.

Primary Considerations – section 60CC(2)

Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)(a)

1. There is no dispute that both parents want a meaningful relationship with the Child, and that each parent wants the other parent to have a meaningful relationship with the Child.  The issue between them is how that is to be achieved in the best interests of the Child when the Father resides in New South Wales and the Mother resides in Queensland, and the effect their respective residential status will have on their ability to spend equal or substantial and significant time with the Child.

2. The emphasis here must be on the benefit to the child, and not the relatively recent, but ongoing, dispute between the parents:

   “a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents”: PS & OS [2007] FMCAfam 285 at para. 23, per Lucev FM.

3. There is no dispute that the Child will benefit from having a meaningful relationship with both parents.  The issue seems to be whether the Child can have a meaningful relationship with both parents, and, if so, how that is to be achieved to maximise benefit to the Child with Father and Mother living in different states.

4. For reasons discussed in greater detail below: see paras 61-68; it appears that the Child has:

   a)a healthy, well developed and enjoyable relationship with her Father; and

   b)a loving, but difficult and strained relationship, with her Mother.

5. The Child evinces a manifest desire to live with her Father, and not with her Mother: see paras 50-56 below.

6. The best interests of the Child, in the context of a meaningful relationship with both Father and Mother, are, in the Court’s view best determined by reliance principally upon the Family Report.  The Family Report makes it clear that the Child already has a meaningful relationship with her Father (albeit that she does not presently reside with the Father as she would wish).  The Family Report makes it clear that it is more likely that the Child will have a more meaningful relationship with the Mother if the Child moves to reside with the Father: Family Report, paras 65 and 69.

7. The Mother submitted that if the Child was to reside with the Father that the relationship with the Mother would be “irreparably damaged”.  Having regard to the Family Report, and the evidence of the Child’s wishes therein, the Court does not consider that residence with the Father would irreparably damage the Child’s relationship with the Mother.  The Court agrees with the Family Report Writer that the Child’s relationship with the Mother is more likely to become more meaningful if the Child resides with the Father.

8. The Court therefore considers that the benefit to the Child of a meaningful relationship with both parents would be best enhanced by the Child living with the Father.

The need to protect the Child – section 60CC(2)(b)

1. The Father asserts that the Mother has made accusations that the Father might physically harm the Child, and that the Father’s Partner’s son “might rape” the Child: Father’s First Affidavit, para 12.10.

2. The Mother’s response to this is to say that she spoke with the Father about the Father’s Partner’s son, and expressed concern that the Child “would be left alone with a teenage boy”, and that given the Mother’s Daughter’s history she told the Father that he would understand the concerns: Mother’s Affidavit, para 38(j).  The Mother’s Daughter’s history, as it is referred to by the Mother, seems to be what the Mother’s Daughter’s Affidavit refers to as her “experience of being placed with persons of trust only to be sexually abused”: Mother’s Daughter’s Affidavit, para 33.  No particulars are provided.  The Mother says that she in no way stated or implied any accusation “of harm or rape”: Mother’s Affidavit, para 38(j), but that she was “aware from previous communications with the Father that … [the Father’s Partner’s son’s brother] became a father at 18 years of age, and the mother of that child was 16 at the time of the child’s birth.  This was the cause of what I believe were reasonable concerns”: Mother’s Affidavit, para 38(j).

3. The Mother’s daughter says that she “understand[s]” that the Father’s Partner “has a teenage son who will reside with them”: Mother’s Daughter’s Affidavit, para 33.  The Mother’s Daughter then evinces a concern that the Father’s Partner’s son’s friends might not have the same “natural respect” that they would have towards the Father’s Partner’s son’s sister as if she were a blood relative, and that the Child may not be equipped to interact with the Father’s Partner’s son’s male friends and that the Mother’s Daughter’s “main agenda”, “is to look out for the well being” of the Child “by not putting her into potentially harmful situations”: Mother’s Daughter’s Affidavit, para 33.

4. The Family Report indicates that the Father’s Partner’s younger son (age 16) still lives at home with the Father’s Partner and the Father, and reports the Father’s Partner indicating that the Child and her son “get on very well”, “respect each other’s space” and that the son is “really too busy with work, friends and his own interests to spend much time with … [the Child].  They are never alone”: Family Report, para 56.  The Family Report says that the Father’s Mother “impressed as actively involved in extended family matters in a caring and generous way”: Family Report para 61.  The Father’s Mother lives in Wyong, only a few kilometres from where the Father lives.  The Father’s Mother’s observation of the Child in relation to the Father’s Partner’s son is as follows:

   “[the Child] always enjoys his company, and refers to him as a step-brother and quite simply gets along with him.”: Father’s Mother’s Affidavit, para 22.

5. There is no basis whatsoever in the evidence for any implication that the Child will come to any harm, and in particular physical harm, from her contact with her Father’s Partner’s son, or any of his friends.  The Mother’s and the Mother’s Daughters “evidence” in this regard is entirely speculative.  For the Mother to suggest that because the Mother’s older son became a father at 18 years of age, as a consequence of a relationship with a 16 year old female, is a basis for a reasonable apprehension of harm with respect to the Child, is, without more evidence, speculation without reasonable foundation.  There is nothing in that circumstance alone which suggest that the Child is at any risk.  For the Mother’s Daughter to suggest that there is some risk from the Father’s Partner’s 16 year old son, or his friends (none of whom she has met or knows) if the Child resides with the Father, and for her to suggest that is the case based on her own sexual abuse when left with persons of trust (and it is not clear whether at that time the Mother’s Daughter resided with the Mother alone, or the Mother and Father, or with neither of them) is no more than rank speculation.

6. There is no objective evidence which indicates, or from which it can be implied, that there is a reasonable apprehension of the Child being physically at risk if she resides with the Father.  See definition of “family violence”, FL Act, s.4(1).

7. A risk of physical abuse of the Child by the Father is also asserted by the Mother and the Mother’s Daughter, principally based on events which occurred during the time that the Mother’s Daughter lived with the Mother and Father prior to and shortly after the Child was born: Mother’s Affidavit, paras 15-20 and 25-26; Mother’s Daughter’s Affidavit, paras 18-19 and 22.

8. The alleged incidents between the Mother and Father are isolated, and there appears to be only one incident involving the Mother’s Daughter.  The latter appears to date to 1992 and the former do not post date 2001: Mother Transcript, p.39.  There is no on going nor recent history of physical violence between the Father and Mother, or between the Father and any other person.  Importantly, the Mother conceded in cross-examination that she had no concern of physical abuse of the Child arising from what she had seen of the interaction between Child and Father: Mother Transcript, p.37.

9. In circumstances where:

   a)there is no evidence of the Father physically harming the Child, ever;

   b)there is no evidence of the Father physically harming the Mother at any time after 1995/1999; and

   c)there is no evidence of the Father physically harming any member of the Mother’s family at any time after 1992,

   the Court is of the view that there is no basis for a reasonable apprehension that the Child will be harmed by the Father if the Child resides with, or spends time with, the Father.

10. Indeed, the only recent evidence of any relevant form of physical abuse of the Child is in the Family Report, where the Child reports that “when I am really naughty Mum smacks me everywhere”: Family Report, para 65.

11. The Mother also alleges that the Child needs to be protected from the manipulative and controlling behaviour of the Father.  The Mother alleges that the Child has been manipulated with respect to the Child’s views concerning these proceedings: Mother’s Affidavit paras 21 and 38(l).  The Mother (and the Mother’s Daughter), set out a variety of incidents, mainly pre-dating separation (and where not pre-dating separation not based on direct evidence), and particularly related to the Father’s alleged concern over finances, to justify the view that he is manipulative and controlling: see, especially, Mother’s Affidavit, paras 27-30 and 42(e).  There is no doubt that the Father had a poor relationship with the Mother’s Daughter during the time, up until 1996, when the Mother’s Daughter lived, intermittently, with the Mother and Father.  In some respects that poor relationship is not surprising: Mother’s Daughter was a pre-teen or teenage child, the Father was but ten years older than her in his early to mid 20’s at the relevant times, and the Mother was 7 years older than the Father.  In the Court’s view significant weight can not be placed on the Father’s behaviour as a newly married young man, married to an older woman with a daughter who was pre-teen, or teenage, at the relevant times.  The Mother’s Daughter conceded this in cross-examination: Mother’s Daughter Transcript, pp.51-53.  It is also clear from the Mother’s Sister’s evidence that the Father was having to deal with a family environment where the Mother’s family were not enamoured of him, to say the least: Mother’s Sister’s Affidavit, Annexure A, pp.1-2.  The evidence is not indicative of how the Father might treat his own daughter (the Child) many years after the events referred to by Mother and Mother’s Daughter.

12. In any event, there is in the Court’s view no objective evidence that the Child’s views have been manipulated or controlled by the Father.  There is no finding to that effect in the Family Report.  Moreover, there is evidence that the Child has held the view that she wishes to live with her Father for at least two years, and that the view was one expressed by her first.  See, for example:

    a)the evidence of the Mother that she first overheard the Child saying that the Child wished to live with the Father at some time prior to 4 April 2005: see Mother’s email to Father 4 April 2005 10:18:59am; and

    b)the Father’s Mother’s evidence that the Child has expressed the view, since the parents separated (i.e. 2001), that she wishes to live with the Father: Father’s Mother’s Affidavit, para 1.

13. Further, Annexure RE10 to the Mother’s Affidavit, is not indicative of the Father having a manipulative or controlling nature, particularly in a financial sense.  In the Father’s email to the Mother of 4 April 2005 10:02:01 am he asked the Mother “how would you like to manage the split of [the Child’s] fare?”, and then goes on to suggest two ways in which it might be done.  In a later email on the same day, at 10:45:53 am the Father, in response to the Mother’s indication that she does not have an account number for the Father to enable adjustment of monthly payments (of child support) to be made, says: “Your welcome to my account number if ya need it”.

14. The Court considers that the evidence relied on by the Mother for her assertion that the Father would psychologically abuse the Child so as to require the Child to need protection, by reason of the Father’s alleged manipulative and controlling behaviour, is evidence rooted well in the past and evidence relating to a much younger and more insecure person than the Father currently is.

15. Having regard to all the available evidence the Court does not consider that the Child needs protection from any form of psychological abuse by the Father, there being no indications that any such form of psychological abuse is current, or has occurred in the recent past.

16. Ultimately, the Court is of the view that the need to protect the Child from abuse of any kind does not arise on the facts, and is not a factor which weighs in favour of or against either parent.

Other considerations – section 60CC(3)

Views expressed by the Child – section 60CC(3)(a)

1. The Child has expressed clear views.  She wishes to live with her Father.  That much is not in issue: Counsel for Mother, Transcript, p.5.  What is in issue is:

   a)the extent to which the Child’s views have been “manipulated” by the Father; and

   b)the weight to be given, if any to the view of an 11 year old child.

2. The Father relies on the following evidence of the Child’s views:

   a)An email sent by the Mother to the Father on 4 April 2005 in which the Mother tells the Father “that she [the Mother] had over heard … [the Child] expressing a strong desire to move and live with me” [the Father]: Father’s First Affidavit, para. 12.1 (the email is not annexed to the affidavit).

   b)A “letter” written by the Child, apparently depicting a day in the life of an ANZAC, from which the Father says that is contextually evident that the Child “grieves and misses her interaction with me”: Father’s First Affidavit, para. 12.2 and Annexure D.

   The “letter” is in fact a made-up diary entry by the Child for an ANZAC for 29 June 1915, prepared it would seem at school, and bearing the Child’s teacher’s corrections.

   The relevant passages of the made-up letter are as follows:

   “Today is my daughter’s birthday and she is turning 9 and I wish that I was there and not here in the war fighting.

   I miss all my family and friends who are at home safe and sound.

   by G S.”

   c)That in June 2005 and December 2005 the Child told the Father “and re-confirmed” her wish to live with him: Father’s First Affidavit, para. 12.3; Father Transcript, pp. 5 and 8,

   d)That in June 2005 the Child wrote down a list of her reasons as to why she wished to live with the Father: Father’s First Affidavit, para. 12.3 and Annexure E; Father’s Third Affidavit, Annexure A, para 10.

   The reasons the Child lists for wanting to live with her Father (“Daddy” in the list) are as follows (so far as they are intelligible and/or legible):

   Swimming;

   Fishing;

   Motorbike;

   Boogie boarding;

   Bike riding;

   Gardening;

   Birthday party;

   Christmas;

   Dancing;

   Peta;

   Nanna, Gramps;

   Kids;

   Camping;

   Big house, big backyard;

   Hot tub;

   Takeaway food,

   Drinks fixing;

   Puppy pets;

   No arguing;

   Only change.

   There are no reasons in the list for wanting to live with the Mother (“Mummy” in the list).

   The list itself does not purport to be a list of reasons for wanting to live with either the Father or the Mother, but it is reasonable to infer that that is what it seeks to express.

   e)That during the June 2006 school vacation visit the Child told the Father that she “really wanted” to live with the Father, the Father’s Partner and the Father’s Partner’s son, that “she hates her mum … that she is always arguing with her mum and wishes that she could move down straight away”: Father’s First Affidavit, para.12.11.

   f)In August 2006 the Child wrote to the Father stating “I wish you can send me down there to live forever”, together with a “pictorial depiction of a sad face, tears”, and what the Father says is a “reference to wanting to be an integral part [of] our family through adopting … [Father’s Partner] previous married name in conjunction … with her own surname in her signature”: Father’s First Affidavit, para. 12.13 and Annexure F.

   Annexure F is a letter addressed to “Dear Daddy dog[g]y poo poo head”.  There is, in the bottom left hand corner of the first page of the letter a pictorial representation of a sad face with tears streaming from the eyes, and next to it a P.S. note expressing the wish to be sent “down there to live forever”.

   Over the page (it seemingly is a letter written on one folio of paper back and front) is a note “I miss you guys so much”.  Also the Child signs her name with her surname, and then following a back slash after her surname, the Father’s Partner’s former married surname.

   g)That the Child, having spent time with the Father, “refuses to pack her suitcase”, suggests missing the plane by not going to the airport, and leaves things at her Father’s home, seemingly, in the Father’s view, because moving back with her Mother is only a “temporary thing until she can come back”: Father’s Third Affidavit, para.5; and

   h)That the Child has “countless times stated that she does not want to go back to her mum”, and does not want to speak to the Mother: Father’s Third Affidavit, para.6.

3. In relation to the Child’s wishes the Mother says as follows:

   a)That she believes the Father to be manipulative, and that he has or is manipulating the Child’s views on living with the Father: Mother’s Affidavit, paras. 20-23,m 38(c) and (1), 43(rr) and 63;

   b)That the Child has given to the Mother, as reasons for wanting to live with the Father, the following:

   i)That she wants to go to live with Father and Father’s Partner because the latter is “younger and prettier than you mum”: Mother’s Affidavit, para. 20;

   ii)That the Child and the Father “do things together all the time”: Mother’s Affidavit, para. 23(a);

   iii)That the Father “swims and plays with me in the water at the beach”: Mother’s Affidavit, para. 23(b);

   iv)That the Father says he is thinking about a swimming pool which the Child has told him she wants: Mother’s Affidavit, para. 23(c);

   v)That the Child says she has the main bedroom at the Father’s residence: Mother’s Affidavit, para. 23(d);

   c)The Child wanted to buy an expensive “Bratz” doll for $60.00, rather than a less expensive $20.00 model, and in this context, the Child “threw a tantrum and it was then she said she wanted to live with her father”: Mother’s Affidavit, para. 38(a) and Annexure RE10.  Annexure RE10 relevantly says as follows:

   i)Email from the Father to the Mother, 4 April 2005, 10:02:01am:

   “ …

   Hope things are well on the home front.  Laura was [in] tears last week, but she didn’t or wouldn’t tell me why … any idea what the problem was …”

   ii)In the email response from Mother to the Father, 4 April 2005, 10:18:59am, the Mother refers in the first paragraph to the Bratz doll incident and says that she explained to the Child that it was not a good idea to spend all of her money on the expensive doll and that they were going to Sea World the following weekend, and she would have no money left for that if she had spent it all.  The Mother goes on in the second paragraph to say:

   “That resulted in a tantrum and then the tears which you experienced.  She was very upset but is over it now.”

   Two paragraphs further on in the email, and without reference to the Bratz doll or tantrum incidents, the Mother then says:

   “I did overhear her [the Child] say she wanted to live with you [the Father] which was quite heartbreaking for me … I hope it hasn’t worried you too much over the weekend.”

   iii)In an email from the Father to the Mother on 4 April 2005 at 10:44:53 am the Father said:

   “Re Overhearing her say she wanted to live with me which was quite heartbreaking for you, I don’t feel that it is a judgement against you but rather the fact that she does want to come and live with her dad.  I explained that this is not a problem but it can not happen over night, it is something that we all need to plan.  I have previously asked about this, but as time goes by I know Laura and I are missing out.  Let it go for now and I’ll talk to her in June about it.”

   d)the Mother objects to the use of the ANZAC Letter as evidence of the Child’s “personal emotions”, and says that the ANZAC Letter is nothing more than a school project: Mother’s Affidavit, para 38(b);

   e)the Mother believes that the Child’s views ought to be taken into account, but qualifies that by saying that “it is also a significant factor that the Father has been involving the child in the dispute between … [Father and Mother], and has coached her and supported her in alienating me”: Mother’s Affidavit, para 38(1);

   f)the Mother says that nothing can be drawn from the Child’s note expressing the wish to be sent “down there to live forever”: Father’s First Affidavit, Annexure F, and that the reasons for the Child making the statement need to be ascertained before any weight can be placed on it: Mother’s Affidavit, para 38(n)(ii);

   g)the Mother says that the Child has lately been affecting that the Mother is “cold and distant”, and that she “withdraws from me”, but again qualifies this by alleging that the Father manipulates the Child to “behave that way”: Mother’s Affidavit, para 43(rr);

   h)the Mother says that the Child does not express herself in the manner alleged by the Family Report Writer, who says that the Child had said “I would like holidays with Mum twice per year and I would call her now and again”, the Mother that the Child does not use the phrase “now and again”: Mother’s Affidavit, para 43(tt);

   i)the Mother says that the Child frequently expresses a wish to live with her Father after having been disciplined by the Mother, and that the Child sees the Mother in the role of disciplinarian, and the Child has not spent sufficient time with the Father to see him as a disciplinarian: Mother’s Affidavit, para 57;

   j)that the Child’s behaviour toward the Mother “changes significantly” after visits or conversations with her Father, the Child pulling away from shows of affection with her Mother: Mother’s Affidavit, para 64; and

   k)that when the Child is not getting her own way she contacts, and suggests living with, her Father: Mother’s Affidavit, para 69.

1. The Father’s Partner gave evidence that the Child said in June 2006 that:

   “I want to live with Daddy.”

   “I don’t want to go back.”

   See Father’s Partner’s Affidavit para 1(k).  The Father’s partner was not cross-examined in relation to her affidavit.

2. Further, the Father’s Mother stated that the Child had been stating ever since separation that she wished to live with her Father: Father’s Mother’s Affidavit, para 1; and reiterated this view in her evidence: Father’s Mother Transcript, p.34.

3. The Family Report Writer found the Child to be “confident, intelligent and resourceful”: Family Report, para 64.

4. The Child told the Family Report Writer that her Father was her “favourite grown up in the whole world”, and that given three wishes those three wishes would be to live with her Father, which she had wanted to do since she was 9 years of age:  Family Report, paras 63 and 64.  The Child went so far as to say that if she went to live with her Father, and it did not work out, she would make it work out, because she did not want to live with her Mother: Family Report, para 65.

5. By contrast, the Child says that the Mother is “very difficult to deal with”, and that the Child is not happy with the Mother, who is “mean” to her, and that she does not want to live with the Mother: Family Report, paras 63-65.

6. The Family Report Writer takes the view that the Child has made up her mind to live with the Father, and that she would suffer “considerable” disillusionment if “denied that opportunity”: Family Report, para 71.  The Family Report Writer goes on to suggest that the Court give consideration to the Child residing with the Father, and that the Child “spends as much time with her Mother as time, distance and resources permit”: Family Report, para 75-76.  Cross-examined, the Family Report Writer said that the Child would suffer “more harm” if she did not go to live with her Father, and that the Child’s view of what would happen at her Father’s was “not … unrealistic”: Family Report Writer Transcript, pp.61 and 70.

7. The Court is of the view that the Child is of an age, and has sufficient intelligence, cognition of her circumstances, and confidence to properly articulate her concluded view in a manner appropriate to her age.  The Court therefore considers it appropriate to attach a reasonable and significant degree of weight to the Child’s views.  In so doing, the Court specifically rejects any suggestion that the Child’s actual views have been manipulated or controlled by the Father.

8. The Court’s views in relation to the Child’s wishes, and the Court’s view of those wishes, also takes account of the nature of the relationship of the Child with each of the parents as set out immediately below.

The nature of the relationship of the Child with each of the parents – section 60CC(3)(b)(i)

1. There is no doubt that for some considerable period of the Child’s early life, at least up until 2001, and possibly until 2003, the Father was often an absent parent, and that had an effect on his relationship with the Child: Family Report, para 46.

2. However, it is evident that the Father now sees himself (and his new partner) as role models for the Child: Father’s Third Affidavit, para 4.

3. There is no doubt that the Father is the person with whom the Child has the most fun in the Child’s parental relationships: Father Transcript, p.13.

4. The Father did however give a clear indication that he had the ability to foster a proper and appropriate relationship with the Child.  In particular, he gave evidence, which impressed the Court, that he would discuss issues with the Child, relate to the Child, and work together with the Child in relation to any problems: Father Transcript, p. 23.  The Father was “able to put himself in a child’s position” and “explain why”: Family Report Writer Transcript, p.62.  The Father said that the Child’s approach with him was “unequivocally different” and “stands on its own”, when compared to the Child’s relationship with the Mother: Father Transcript, p.24.  That that is the nature of the Child’s relationship with the Father is, in the Court’s view, confirmed by the views expressed by the Child about her Father, and where she wishes to live: see paras 50-56 above.

5. The Mother’s relationship with the Child has been that of the parent who has worked hard, and devoted energy towards the Child’s upbringing, education and extra-curricula activities, thereby contributing to whom the Child is today: Family Report, para 38.  The Mother has been the parent responsible for food, shelter, discipline and daily activities (including school and extra curricula activities) for the bulk of the Child’s life: Family Report, paras 48-49.  Nevertheless, the Mother and Child clearly have difficulty living together, with the Child challenging the Mother, and answering back at every opportunity, resulting in the Mother and Child being at loggerheads, such that the Child does not want to live with the Mother any more: see Family Report, paras 47 and 53; Mother’s Affidavit, paras 55 and 65.  The difficulties have been such that the Mother has taken the Child to see a psychologist: Mother’s Affidavit, para 56; Father’s First Affidavit, para 15.  The Child’s views about the relationship with the Mother have also been expressed to the Father’s Partner in a series of statements (which went into evidence unchallenged and without being cross-examined upon) which indicate a difficult relationship between the Mother and Child: Father’s Partner’s Affidavit, para 1(a)-(j); Transcript, p.25.

6. The Family Report Writer’s view is that the relationship between the Mother and Child is likely to be better, more harmonious and affectionate, and more likely to contribute to the proper development of the Child and the Child’s identity, if the Child spends less rather than more time with the Mother, in which case the Family Report Writer considers that the Child will enjoy that time with the Mother: Family Report, paras 65 and 69.

7. The evidence before the Court makes it apparent that the nature of the relationship with the Child with each of the parents is a loving and affectionate one.  However, the Child’s relationship with the Mother is, in a word, difficult.  The Child’s relationship with the Father is better.  On the basis of the evidence before the Court, and having had the opportunity to hear both the Father and the Mother in the witness box, together with the views of the Family Report Writer, the Court considers that the Child’s relationship with the Father is better than that with the Mother.  This is not to be attributed to the fact that the Child simply has more fun and less discipline (as is asserted by the Mother) when with the Father.  Nor is it diminished by the fact that the Father has only spent 13 weeks in the past 2 years with the Child: Father Transcript, pp6-7.  Overall, the evidence indicates that the Father has adopted parenting strategies during his time spent with the Child which have enhanced rather than diminished his relationship with the Child.  The same can not be said for the Mother and whilst the Mother can not be said to have done anything specifically “wrong” in terms of her parenting, it is clear that her firm views and what might be characterised as a certain heavy handedness (one example of which is the taking of the Child to the police station in relation to the “stealing” of a mobile phone at school when the school and the Father were otherwise dealing with the issue: Mother Transcript, p.42), has diminished her relationship with the Child.

8. The Court agrees with the view of the Family Report Writer that the Child’s relationship with both parents is likely to be enhanced by the Child living with the Father and spending time with the Mother.

The nature of the relationship of the Child with other persons – section 60CC(3)(b)(ii)

1. If the Father’s application for the Child to live with him were to be successful the most significant relationship with another person would be with the Father’s Partner.  It appears that the Child has a close bond with the Father’s Partner and that the Child seeks attention from what she perceives to be a family unit (Father, Father’s Partner and Father’s Partner’s son: Family Report, paras 57-58).  The Father’s Partner is not seen as a replacement of the Mother, but rather a figurehead and role model: Father’s Third Affidavit, para 3; Father Transcript, p.19.  There is nothing in the evidence that indicates other than that the Child gets on well with the Father’s Partner.  Similarly, the evidence does not indicate other than that the Child gets on well with the Father’s Partner’s son: see for example Family Report, para 56; and the Court repeats paras 34-39 above as to there being no evidence of any reasonable apprehension of any risk of any kind of harm from the Father’s Partner’s son.  On the evidence, the relationship between the Child and Father’s Partner’s 16 year old son appears to be a normal step-sibling relationship.

2. As indicated above the Father’s Mother is “actively involved in extended family matters in a caring and generous way”: Family Report, para 61.  The Father’s Mother lives in Wyong, relatively close to the Father.

3. The Mother does not have family, other than a supportive cousin (“the Cousin”) in Brisbane, living in close proximity to her on the Sunshine Coast.  The Mother’s Daughter lives in Canberra, whilst her remaining extended family still seem to live in Gladstone, more than 400 kilometres from the Sunshine Coast.  The Mother asserts that her mother is more able to visit since the death of her father in September 2006: Mother’s Affidavit, para 41(a).

4. The Mother’s cousin, to whom she seems so closely allied, gave no evidence to the Court.  She did however speak to the Family Report Writer, and her comments are set out at paras 53-54 of the Family Report.  Those comments give no sense of any bond of love, protection or involvement with the Child.  Rather they are directed to supporting the Mother, criticising the Father, and significantly, pointing to what the Cousin obviously perceives to be not insignificant social and behavioural difficulties with the Child, and in particular, the Child’s interaction with the Mother.  Given the degree of reliance that the Mother seems to place upon the Cousin, those criticisms, but particularly the lack of any empathy with the Child, do not indicate that there is a positive relationship between the Child and the Cousin.

5. The Mother also alleges that she has a close and supportive group of friends, with children of the Child’s age: Mother’s Affidavit, para 41(a).  None of this group of friends gave evidence, and there are no details of who they are, or the particular nature of their relationship with the Child.

6. The Court is of the view that the nature of the relationship that the Child has with other persons will be stronger and more supportive if the Child lives with the Father.  There is no particular evidence that the Child has a strong on-going relationship with other persons (including school friends, see below para 81) associated with her Mother, her Mother’s friends or the Mother’s and Child’s general social circle.

The willingness and ability of each of the Parents to facilitate and encourage a close and continuing relationship between the Child and other Parent – section 60CC(3)(c)

1. It is apparent that the relationship between the parents has deteriorated since at least March 2006: Family Report Writer Transcript, pp.63 and 69, and that the Family Report Writer’s summary that there is presently “a high level of conflict, mistrust and lack of  mutual respect in their relationship” is generally accurate: Family Report, para 20; Father Transcript, p.16-17. That said, the Father at least evinces a preparedness to facilitate and encourage a close and continuing relationship between the Child and the Mother: Family Report, para 32.  The Father’s evidence gave indications that he was prepared to facilitate and encourage the Child-Mother relationship.  This is indicated by:

   a)his very sensible approach to parting with the Child, and sending the Child back to the Mother, in circumstances where the Child is saying that she does not wish to return to the Mother: Father Transcript, p.13; and

   b)his response to the Child’s expressions of “hate” of the Mother, where the Father tells the Child that the Mother loves her, but just has a different parenting style, and to stop using the word “hate” about the Mother: Father Transcript, p.18.

2. It is also significant that the Father has told the Court that he will not restrict the Child calling the Mother: Father Transcript, p.19.

3. The Father’s Mother was cross examined about the Father’s statements about the Mother.  She indicated that she could not recall anything positive about what the Father said about the Mother in recent times, but also could not remember anything “terribly bad” that the Father had said about the Mother: Father’s Mother Transcript, p.34.

4. The Mother, principally on the basis of her and the Mother’s Daughter’s experiences in the 1990’s, continues to be very worried about the Father controlling the Child, and breaking the Child’s spirit: Family Report, paras 42 and 47.  The latter is not however a concern shared by the Family Report Writer who said that she cannot see the Child’s spirit being crushed if she goes to live with her Father: Family Report Writer Transcript, p.71. 

Likely effect of changes in Child’s circumstances, including separation from parents and others – section 60CC(3)(d)

1. The respective proposals of Father and Mother are in stark contrast.  The Father’s proposal will see the Child at least:

   a)relocated from Queensland to New South Wales;

   b)change home and lifestyle;

   c)change family unit; and

   d)change friends and schools.

   These are significant changes for the Child.

2. If the Child remains with the Mother there will be no change.  The Child has always lived with the Mother.

3. If the Child were to live with the Father there is no doubt she would be removed from her present school friends.  The Child appears to acknowledge this, and is prepared to meet that change, telling the Family Report Writer that she would not miss her school friends as she will make new friends at a new school: Family Report, para 73; see also Father Transcript at pp. 11 and 16; Family Report Writer Transcript, p.64.

4. It also appears likely that, relatively speaking, the Child would lead a more active and outdoor lifestyle if she lived with the Father: Father’s Mother Transcript, p.34.  The Child will also have a closer and more supportive group of “other persons” around her if she lives with the Father.

5. The Mother says that it would not be beneficial for the Child to change school and move interstate: Mother’s Affidavit, para 33.

6. The Family Report Writer makes it clear that the Child perceives that she can cope with any change, and looks forward to such a change: Family Report, para 73, and there seems no reason to doubt that if the Child is to live with the Father, that change whilst major of itself, will have minimal effect on the Child.  Indeed, effecting no change is likely to have a greater adverse impact on the Child: Father Transcript, p.12; Family Report, paras 65 and 69; Family Report Writer Transcript, p.61.

7. The Court is of the view that the Child is more likely to benefit than not from going to live with the Father.

Practical difficulty and expense of Child spending time and communicating with parents and whether that will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis – section 60CC(e)

1. This is a case where:

   a)the parents do not live in reasonable proximity; and

   b)both public and private transport is not readily available or financially viable for the purposes of spending equal time with each parent.

2. There is no evidence which indicates that the Father or Mother intend relocating in closer proximity to each other.  So long as that remains the case there will be practical difficulty and expense involved if the Child is to spend time and communicate with the parent with whom the Child does not live.

3. Whichever parent the Child lives with the Child’s right to maintain personal relations and direct contact (in at least a physical sense) will be substantially effected.  However, given the Child’s age the effect is unlikely to be as substantial as it would be if the Child were younger: cf M & K [2007] FMCAfam 25 at para 48 per Altobelli FM.

4. The effect will also be lessened by telephone and other forms of contact.  The Child is of an age where she can maintain telephone and other forms of contact with the distant parent (and has been doing so with the Father to date).  There does not appear to be an issue that the Child ought to maintain contact with the distant parent.

5. The Child’s right to maintain personal relations and direct contact with both parents on a regular basis will be affected in relation to one parent, no matter where the Child lives. 

Capacity to provide for the needs of the Child, including emotional and intellectual needs – section 60CC(3)(f)

1. The evidence indicates that both Father and Mother are able to provide for the needs of the Child at a reasonable level in areas such as shelter, food, clothing and education and intellectual needs.  There is some doubt as to whether the Mother can provide appropriately for the Child’s emotional needs, and, to a significantly lesser extent, the Child’s physical needs (in the sense of outdoor activities, etc).

2. The Father is employed in the electronics/telecommunications industry with flexible hours to allow him to cater, at least to some degree, to the Child’s needs and requirements on a day to day basis: Father’s First Affidavit, para 6.  It appears from the evidence that the Father’s employment situation is now more flexible than it has been in the past, that he is more established than he has been in the past, and as a consequence there is a greater ability, and preparedness, to balance the requirements of employment and the Child’s needs.

3. There is no direct evidence of the Father’s income, but there does not appear to be an issue that he earns sufficient income to enable him to adequately meet the needs of the Child and his other commitments. 

4. The Father’s capacity to provide for the needs of the Child is assisted by a stable and loving relationship, and his location in close proximity to his parents and his partner’s extended family: Father’s First Affidavit, para 7; and see above paras 14, 69 and 70.

5. The Child will have a room of its own in a house which the Father and Father’s Partner commenced to purchase in 2006.

6. The Father has demonstrated the ability to meet the Child’s physical needs (in the sense of outdoor activities) and fun activities: Father Transcript, p.13.  The Father also has demonstrated an understanding of the need, and the ability to deal with the needs of, the Child’s future educational needs: see paras 15-17 above; and Mother’s Affidavit, Annexure RE12.

7. The Mother worked until October 2006, but has not worked since: Family Report, para 22.  The Mother has since her move to the Sunshine Coast in the first quarter of 2003 provided suitable shelter and accommodation for the Child: Family Report, para 22.

8. The Mother has also endeavoured to provide for the Child’s physical activity needs, and the Child regularly attends calisthenics classes.  The Child has also undertaken a range of other sporting and recreational pursuits from which she has withdrawn.  There is nothing to indicate the withdrawal was a consequence of the Mother’s incapacity to provide for the needs of the Child, and it may be that the withdrawals were the result of nothing more than normal childhood experimentation with various sporting and recreational pursuits.

9. There is some suggestion from the Father that the Mother has not properly provided for the Child’s educational needs as evidenced by a recent downward trend in the Child’s school reports.  The Mother acknowledges that trend but says that is a consequence of the pressure the Father is putting on the Child in relation to these proceedings: Mother’s Affidavit, para 41(d).  As indicated above the Court has not been persuaded that the Father has manipulated or controlled the Child’s views in any way.  There are some minor indications that the proceedings may have been discussed between the Father and Child, but there is insufficient evidence in the Court’s view to sustain a finding that the Father has pressured the Child with respect to these proceedings, and in that regard, the Court takes note of the fact that the Family Report makes no findings at all about this issue and contains no criticism of either party on this issue.  With respect to the downward trend in education, the Court does not consider that this is a reflection on the Mother’s ability to provide for the Child’s educational needs.  There is insufficient evidence to reach any concluded view about why the Child’s results have trended down, but it may be no more than part of a normal developmental process at this stage for this particular child.

1. The Mother questions the Father’s capacity to properly care for the Child’s emotional needs, and particularly asserts that his manipulation and controlling tendencies will break the Child’s spirit: Mother’s Affidavit, para 41(c).  The Court has already found that there is no, or no sufficient, evidence to sustain the Mother’s view or criticism of the Father in that regard: see paras  44-49, 59 and 78 above.  Rather, it appears on the basis of:

   a)the Mother’s on going struggle with anxiety and depressive illness: Mother’s Affidavit, paras 44-47; and

   b)the fact that the Mother finds it hard to deal with significant stressors, and that the Child is a significant stressor in the Mother’s life: Mother’s Affidavit, para 51,

   that the Mother’s capacity to provide for the emotional needs of the Child might be called into question.  The evidence does indicate that the Child may not be having her emotional needs fully catered for by the Mother, and that the Mother’s approach may be placing significant stress upon the Child’s emotions.  Thus, the Family Report Writer has suggested that the Child’s emotional development would be aided by spending less rather than more time with the Mother: see, especially, Family Report at paras 65 and 69.

2. The Court is therefore of the view that both parents can provide for the Child’s needs, but that in the area of the Child’s emotional needs the Father is better able to deal with those particular needs on a daily basis.

Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)

1. Most of the issues relevant to these topics are otherwise covered above and below in the Court’s discussion of other relevant considerations.

2. It is perhaps only necessary for the Court to comment upon the maturity and background of the Parents.  The Father is now a seemingly more mature person than he was at the time of his marriage to the Mother and his consequent relationship with the Mother’s Daughter.  The Father also appears to have moved on in his life from the events, particularly the events in the early to mid 1990’s involved in his marriage and relationship with the Mother and Mother’s Daughter.  In that respect, it appears that he has matured, and made a move to get on with his life, particularly since obtaining employment in the private sector following his earlier employment in the RAAF .

3. The Mother by contrast, whilst a mature woman, with strong views, and perhaps fixed views: Family Report at para 37, does not appear to have moved on in the same way as the Father, and continues to look back (as do her witnesses) to the events of the early to mid 1990’s, which are no longer indicative of the Father’s approach to parenting:  see para 44 above.

4. In relation to lifestyle, it might be said in a very general sense that the Child’s lifestyle if she lives with the Father might be better, in the sense of it being more physical and more outdoor activity oriented, than if the Child lives with the Mother.  That is a judgment which might vary from case to case depending on the predilections of the child concerned, but it does appear that the Child does prefer the lifestyle offered by the Father.

Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)

1. Not applicable in this case.

Attitude to the Child and the responsibilities of parenthood demonstrated by each parent – section 60CC(3)(i)

1. Both Father and Mother have a loving and caring attitude toward the Child, within the boundaries of the relevant family, social, medical and employment restraints otherwise referred to in these reasons.

2. The attitude of both parents toward the Child is relevantly covered in the Reasons for Judgment above.

3. As to the responsibilities of parenthood demonstrated by each parent, again in relation to many issues, that is covered in the Reasons for Judgment above.

4. The Father was criticised in some respects for failing to exercise the responsibilities of parenthood by reason of a failure to spend significant amounts of time with the Child.  That time has amounted to about 13 weeks in the last two years: Father Transcript, p.7.  The Court finds nothing unusual about that amount of time spent with the Child by a parent located some distance from the Child.  It is not to the point that the Father has relocated to Sydney: the Mother also relocated immediately after separation to  Brisbane.  Both did so for similar reasons: proximity to family.  Furthermore, the Mother has since relocated again, this time without proximity to the majority of her extended family.  If one of the responsibilities of parenthood is to be sure that the Child mixes with its extended family then the Father is probably in a better, or at least, an equal, position to do so as the Mother.

5. The Father acknowledges that he has only had the child during holiday times, and therefore often for what might be perceived as the “fun times”.  Nevertheless, the Father indicated to the Court that the time spent with the Child was utilised to the maximum of his ability: Father Transcript, p.13.  The Father also demonstrated in ways outlined above with respect to discipline, dealing with the Mother, and working with the Child, that he had a reasonable, mature, empathetic and sensible approach to these responsibilities of parenthood: see para 64 above.

6. The Mother also criticised the Father on the basis that he was unable to exercise the responsibilities of parenthood by reason of his work commitments.  The evidence, for reasons outlined above, does not indicate that the Father’s work commitments are such as to diminish his capacity to exercise the responsibilities of parenthood.

7. The Mother has clearly demonstrated that she is capable of exercising the responsibilities of parenthood.  She has done so with respect to all aspects of the Child’s life during the time that the Child has lived with her.  She has generally done so responsibly: Family Report, paras 48-49.

8. As indicated above the Mother probably exhibits a more heavy handed approach to the Child but in many respects, as her evidence indicates, that is a consequence of having the Child live with her until now.  It is probably a reflection of the fact that she may have fixed and somewhat inflexible views about certain issues (such as the alleged “stealing” of the ceramic bowl from the Airport and a mobile phone from school: Mother’s Affidavit, paras 58-59).

9. Overall, the Court considers that the Mother has to date exercised the responsibilities of parenthood to a degree greater than that of the Father, but that the Father is capable of properly carrying out those responsibilities during any time that the Child might live with him. 

Family Violence – section 60CC(3)(j) and (k)

1. There is, for reasons outlined above, no relevant history of family violence to be considered.

Order less likely to lead to further proceedings – section 60CC(1)

1. On the evidence, and in particular given the views of the Family Report Writer, it seems that an order that the Child live with the Father is the order less likely to lead to further proceedings in this matter.

2. The Father has suggested an order that if the Child so wishes that the Child might transfer back to the Mother after a period of 12 months with the Father.

3. The Court does not favour such an order.  If the Court orders that the Child live with the Father, it will have done so after a reasonably exhaustive review of the available evidence.  Furthermore, it will do so on the basis of what it considers to be an eleven year old child’s reasonably articulated views.  The Child needs stability, as do the parents, and if the Child gets her wish to live with the Father the Court would need to be persuaded to vary any such order.  The Court does not propose to put the future orders of the Court in the hands of a 12 or 13 year old Child, nor to allow the Child to be in a position to use the threat of a future order of the Court as a means to influence the parents.

Extent of fulfilment of parenting responsibilities – section 60CC(4) and (4A)

1. In the context of parents who have separated the Court is required to consider the extent to which the parents have fulfilled their various responsibilities as parents since separation.

2. In this case many of the relevant issues are discussed above, but in short, it is the Court’s view that:

   a)that so far as is possible within the context of their geographic dislocation, both parents have taken the opportunity to participate in making decisions about major long term issues in relation to the Child, and facilitated the decision making process in relation to those issues with the other parent.  Indeed, much of the communication between the parents, prior to March 2006, was evidence of a co-operative and communicative approach between these two parents in relation to such issues: see for example Mother’s Affidavit, Annexures RE10, 12, 14 and 16.  The Mother has, perforce, spent time with the Child.  The Father has not spent as much time, particularly in the early years following separation, but, as indicated above, this was largely a consequence of:

   i)the Mother initially moving to Brisbane and then to the Sunshine Coast followed by the Father’s relocation to the Central Coast of New South Wales;

   ii)the Father seeking to establish himself in a private sector career following his departure from the RAAF.  The amount of time that the Child has spent with the Father over the last two years is entirely appropriate for a Child who is not living with the Father; and

   b)Both parents have communicated with the Child, again, the Mother by reason of the Child living with her, and the Father, particularly in recent years, principally by letter, email, telephone (both land line and mobile) and sms text messages.  There is a minor criticism of the Father by the Mother in relation to the posting of letters to the Father via the school rather than via the Mother, but that is not a failure to take the opportunity to communicate under s.60CC(4)(a), or a failure to facilitate the Mother communicating with the Child under s.60CC(4)(b)(iii).

3. There is no suggestion in the evidence that there has been a failure to maintain the Child by either parent.

4. In the Court’s view both parents have appropriately fulfilled their parental responsibilities post-separation, but if there has been any failure it is not such as to warrant adverse findings.

Consideration

1. As indicated above the presumption of equal shared parental responsibility applies in this case.  Nothing was put to the contrary, and an order concerning equal shared parental responsibility is included in the Mother’s proposed orders (but not curiously the Father’s).

2. The Court will order equal shared parental shared responsibility in this case.

3. Where a parenting order provides for equal shared parenting responsibility the Court must consider whether the Child spends equal time with each of the parents as that is presumed to be in the best interests of the Child: s.65DAA(1)(a), FL Act.  That is qualified by a requirement that the Court consider whether the Child spending equal time with each of the parents is reasonably practicable: s.65DAA(1)(b).

4. It is apparent that it is not reasonably practical for the Child to spend equal time with each of the parents as the Child will be required to live with one parent or the other, and the parents live more than 1,000 kilometres apart.

5. The Court must therefore decide with whom the Child is going to live.

6. The Court has determined, having regard to all of the primary and other considerations under s.60CC(2),(3),(4)(4A) of the FL Act (and the underlying objects in s.60B) that it is in the best interest of the Child that the Child live with the Father. The Court has so found having particular regard to:

   a)the benefit to the Child of having a meaningful relationship with both parents which is likely to be enhanced by the Child living with the Father;

   b)there being no objective evidence that there is a need to protect  the Child from any form of harm, neglect or abuse;

   c)the views expressed by the Child that she wishes to live with the Father (and in the context of the circumstances of this case that has been a factor which has been given a reasonably significant degree of weight);

   d)the nature of the relationship of the Child with each of the parents, and in particular the fact that the Child’s relationship with both parents is likely to be enhanced by the Child living with the Father and spending time with the Mother is a factor which significant weight has been placed upon;

   e)the Child’s relationship with other persons will be stronger and more supportive if the Child lives with the Father;

   f)that the Child is prepared to meet, and will not suffer from, but is likely to benefit from, a change in her circumstances, by going to live with the Father;

   g)whilst the Child will not be able to physically maintain personal relations and direct contact with the Mother if she lives with the Father, the other available means of communication, and the allocation of time spent, will be sufficient for the Child to maintain a proper personal relationship with the Mother and in view of the views of the Family Report Writer, it may be that the relationship with the Mother will in this way actually be enhanced;

   h)that both parents have the capacity to provide for the needs of the Child, but the Father probably has a better ability to provide for the Child’s current emotional needs; and

   i)that an order that the Child live with the Father is the order less likely to lead to further proceedings.

7. As indicated above the Court has considered all of the relevant considerations, but the above considerations were the main considerations in making the determination that the Child ought live with the Father.

8. The question then arises as to whether the Child spending substantial and significant time with each of the parents is in the best interest of the Child: s.65DAA(2)(c); and the making of such an order is reasonably practicable: s.65DAA(2)(d), FL Act.  It is so, in the Court’s view.

9. Having regard to the views of the Family Report Writer concerning the nature of the relationship between the Child and the Mother, and in order to allow, in the best interest of the Child, that relationship to be a meaningful and harmonious relationship, the Court has considered whether it is appropriate that the Child spend more than the usual “half and half” arrangements with respect to time spent with the parents on school holidays and what other time might be spent by the Child with the Mother.  Having regard to where the Child will live with the Father and the nature of the lifestyle with the Father, the Court has come to the view that it is appropriate for the usual “half and half” school holiday orders to be varied to provide that the June/July school holidays be spent by the Child with the Mother in their entirety.  Further, the Court considers that it is appropriate to enable the Mother to have the opportunity to travel to the area where the Child will be living with the Father (if she so wishes) on up to four occasions a year, and for the Child to spend the weekend (9:00 am Saturday to 5:00 pm Sunday) with the Mother if that occurs.  Those “additional” time spent arrangements do not of course preclude the parties from agreeing other arrangements between themselves.

10. In relation to the means of transport and cost associated with the Child’s travel the Court considers it appropriate that the means of transport and cost thereof be agreed and shared between the parents.

Orders

1. The Court makes orders as set out in the Orders immediately prior to these Reasons for Judgment, and considers that those orders are in the best interests of the Child.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate:  M Hewitt

Date:  9 July 2007