Bainfield and Timbrell

FAMILY COURT OF AUSTRALIA

BAINFIELD & TIMBRELL

[2010] FamCA 70

FAMILY LAW – CHILDREN – whether in the best interests of the child to live with one parent or the other – issue of distance and travelling time between the residences of the parties – significance of proposed daily care of the child

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2) & (3)
Evidence Act 1995 (Cth) s 128

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANT:

Ms Bainfield

RESPONDENT:

Mr Timbrell

INDEPENDENT CHILDREN’S LAWYER:

Delaney Lawyers

FILE NUMBER:

SYC

3273

2008

DATE DELIVERED:

10 February 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

2-3 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	E Clifton
SOLICITOR FOR THE APPLICANT:	David H Cohen & Co
COUNSEL FOR THE RESPONDENT:	L Snelling
SOLICITOR FOR THE RESPONDENT:	Bell Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Delaney Lawyers

Orders

That all current parenting orders in relation to the child of the parties B (“the child”) born … February 2004 are discharged.
That the parties have equal shared parental responsibility for the child as defined in section 4(1) of the Family Law Act 1975 (“the Act”) as set out in Annexure A to these Orders AND that the parties shall note the obligations created by this Order and the parenting orders made this day and the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure B.
That the parties ensure that the child lives with the father subject to such periods of time that she live with the mother referred to Orders 4 (a), (b), (c), 5, 6, 7, 8 and 9.
That the child live with the mother as follows:

During school term

(a)on the first three weekends of each month from after school Friday at 4.00pm to 6.00pm Sunday, extending to 6.00pm Monday in the event that a weekend coincides with a long weekend unless otherwise agreed between the parties;
(b)on each of the weekends commencing Friday 12 and 19 February 2010 from after school at 4.00pm until 6.00pm on the following Sunday unless otherwise agreed between the parties;

During school holidays

(c)half of each school holidays during the first half in each even numbered years commencing in 2010 and the second half in each odd numbered years commencing in 2011 provided that the first day of each holiday period shall commence at 9.00am and conclude at 6.00pm on the last day.

That in the event the child is not with the mother on Mother’s Day then the child shall spend time with the mother from 9.00am to 6.00pm on Mother’s Day.
That in the event the child is not with the father on Father’s Day then the child shall spend time with the father from 9.00am to 6.00pm on Father’s Day.
That the parent with whom the child is not residing on the child’s birthday shall spend a minimum of two (2) hours with the child on such day at times and places to be agreed between the parties but that such time shall be spent within a close proximity to where the child is then living.
That the child spend Christmas with the mother from 3.00pm on Christmas Eve until 6.00pm on Boxing Day in each even-numbered year commencing in 2010 and from 3.00pm on Christmas Day until 6.00pm on Boxing Day in each odd‑numbered year commencing in 2011.
That for such alternative substituted or other periods as the parties may agree upon from time to time.

Place of changeover of care of the child between the parties

That for the purpose of the child spending time with the mother for all periods whether during school term, school holiday periods or other occasions pursuant to these Orders the father shall be responsible for taking the child to meet the mother at McDonald’s at A at the commencement of the relevant time and the mother shall be responsible for returning the child to the father at the same place at the completion of such time unless otherwise agreed between the parties.

Telephone communication

That the mother be at liberty to communicate with the child by telephone each Wednesday and Sunday between the hours of 5.30pm and 6.30pm on those occasions when the child is with the father and in the event there is to be any problem with either the mother contacting the child or the child being available for such communication then the mother or the father, as appropriate shall ensure the other is given as much prior notice as possible of such problem and nominate alternate arrangements to the other.
That the father be at liberty to communicate with the child each Wednesday and Sunday between the hours of 5.30pm and 6.30pm on those occasions when the child is with the mother and in the event there is to be any problem with either the mother contacting the child or the child being available for such communication then the mother or the father, as appropriate shall ensure the other is given as much prior notice as possible of such problem and nominate alternate arrangements to the other.
That both parties do all such things as may be necessary to ensure that the child may communicate with the other parent in private at all such reasonable times as the child may reasonably request when they are spending time with the other parent and in order to facilitate this as well as the telephone communication referred to elsewhere in these Orders, each parent shall ensure the child have available to her a working telephone service and/or internet service and is instructed in the use of such service(s) should the need arise.

Other parenting orders

That in the event of the child suffering a serious illness or injury the party who has the care of the child shall immediately inform the other party of details in relation to such injury or illness as well as the name, address and telephone number of the relevant medical practitioner or hospital.
That the father shall forthwith provide written authorisation and request to the principal of the school attended by the child to furnish the mother with copies of all school reports, notices, correspondence and photographs relating to the child (at the mother’s expense if necessary) upon receiving her request and the father shall furnish the mother with a copy of such written authorisation on or before 5.00pm 17 February 2010.
That each of the parties is restrained from making any critical comment about the other party or his or her extended family members within the hearing of the child and the parties shall use their best endeavours to ensure that no other person conducts himself or herself in that fashion.
That each party shall notify the other in writing of any changes in address and/or mobile telephone number within three (3) days of any such change.
That the father not come within a radius of one (1) kilometre from the mother's place of residence from time to time except at the express invitation of the mother.
That either party be at liberty to attend all school and/or extracurricular activities in respect of which the child is involved.
That neither party enrol the child in any extracurricular activity other than those in which she is presently involved, namely swimming and Little Athletics, without the knowledge and consent of the other party.
That neither party accept any invitations for the child to attend any functions at a date or time when she is scheduled to live with or to spend time with the other party pursuant to these Orders without the knowledge and consent of that other party.
That in the event the child is involved in any school or extracurricular activities the party with whom she is then living or spending time with shall ensure her attendance at such activities.
That in the event the child is invited to attend any function and her attendance is agreed to in accordance with the terms of Order 22, then the party with whom she is living or spending time with at the time of such function shall be responsible for ensuring her said attendance.
That the parties attend Mr L, Senior Family Consultant with the Sydney Registry of this Court or his nominee, in relation to the implementation of these Orders for a period of 12 months from today at such times and places as nominated by him.
That within four (4) months of the date of these Orders, each party enrol in and attend a Parenting after Separation course with Unifam, Relationships Australia or some other appropriate service and provide to the other documentation from such organisation showing compliance with this Order.

Procedural orders

That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Bainfield and Timbrell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3273 of 2008

MS BAINFIELD

Applicant

And

MR TIMBRELL

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings parenting orders are sought by each of the parties in relation to their child B (“the child”) who is 5 years age having been born in February 2004.
At the conclusion of submissions I granted leave to the legal representatives for the parties and the independent children’s lawyer to furnish an amended minute of orders sought reflecting the submissions made. Subsequently, my associate received by email amended minutes of orders sought on behalf of the independent children’s lawyer, the mother and the father which I received into evidence and marked Exhibits 10, 11 and 12 respectively.
The applicant mother seeks orders which:
(a)provide for her and the father to have equal shared parental responsibility for the child;
(b)that the child live with the mother subject to the child spending time with the father for first three consecutive weekends in each Wednesday from after school until 6.00pm and later 7.30pm once the child attains the age of nine years;
(c)half of the school holiday period and for other special occasions.
The mother also sought an order that the father collect the child from school at the commencement of relevant periods in school term and the mother collect the child from the father’s residence at the conclusion. Other changeovers were sought to take place at McDonald’s at A. An injunction was also sought by the mother restraining the father from being within 200 metres of the mother’s residence without her express permission. Orders were consented to as sought by the independent children’s lawyer in relation to specific matters to which subsequent reference will be made.
The father also sought an order that:
(a)he and the mother have equal shared parental responsibility for the child.
(b)that the child live with him other than for certain specified periods with the mother which included:
(i)the first three weekends of each month;
(ii)half school holidays; and
(iii)certain other specific occasions.
Consequently, the substance of the principal parenting orders sought by each of the parties is the mirror image of the other.
The independent children’s lawyer, in effect, joined in the application of the mother and father that they have equal shared parental responsibility for the child. Further, the independent children’s lawyer sought orders that the child live with the father, other than specific periods when the child would be in the care of the mother which included each alternate weekend and one additional weekend in each school term; half school holidays and other specified occasions. An injunction was sought by the independent children’s lawyer restraining the father from not being with the radius of one kilometre from the mother’s place of residence except at her express invitation. Also, an order was sought requiring the parties to attend upon Mr L, Senior Family Consultant (“the Family Consultant”) “in relation to the implementation of these orders for a period of 12 months at such times and places nominated by Mr [L]”. A further order was sought requiring the parties to enrol and attend a parenting after separation course with nominated non-government agencies. The last two mentioned orders were not opposed in any submissions made on behalf of the mother or father.
Consequently, the principal parenting order that fell for consideration is whether it is in the best interests of the child to live with the mother, or alternatively with the father.
On 1 June 2009, following submissions made on behalf of the parties, the following issues were crystallised for determination on the continuation of the hearing:
(a)the nature of the relationship between the child and the parties as well as the paternal grandmother, the father’ extended family members, the maternal grandmother and the mother’s partner, as well as his mother;
(b)the capacity of each of the parties to provide for the physical, emotional and intellectual needs of the child;
(c)the likely effect upon the child of changes to the periods of time spent in the care of the mother and father;
(d)each party’s history of use of illicit drugs and whether such use continues;
(e)the proposals of each of the parties for the future care of the child and the role that the other party should play in that regard.
The parties cohabited for a period of approximately fours years which commenced during 2001 and continued until they finally separated in March 2005. They have lived separate and apart continuously since that time. The parties did not marry.
The mother is 25 years of age and employed four days per week as a customer service representative. The mother lives alone in rented premises at N.
The father is 43 years of age. The father is not engaged in employment and receives a disability support pension. The father resides in his family’s home at P owned by him and his siblings subject to a life estate in favour of the paternal grandmother who also lives in that home.

Historical background

The following are further brief relevant historical matters.
The mother’s Initiating Application was filed on 4 June 2008.
The father’s Response was filed 1 August 2008.
On 13 March 2007 in the Federal Magistrates Court orders were made by consent which provided for the parties to have equal shared parental responsibility for the child and for the child to live with the mother except for specified periods of time during the week and on other occasions.
On 6 August 2008 interim parenting orders were made by consent. Those orders provided for the appointment of the independent children’s lawyer; suspension of Orders 1, 3 and 6 made 13 March 2007; the child live with the father from 6.00pm Sunday to 7.00pm Friday; and otherwise live with the mother.
On 9 September 2008 further interim parenting orders were made by consent which provided for the child to continue to live with the father from 6.00pm Sunday to 3.30pm Friday in each week; that the child live with the mother for the period 3.30pm each Friday until 6.00pm on the following Sunday and that the parties be restrained from enrolling the child in a school without the other parties consent.
On 13 May 2009 directions were made by me including requiring the parties to take part in a further mediation session with the family consultant. The issues for determination were crystallized, to which earlier reference has been made. Directions were made in relation to the filing and service of affidavits and for the issue of a subpoena to produce documents. The continuation of the hearing was fixed for two days commencing 1 February 2010.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
A Court must regard the best interests of the child as the paramount consideration.
That provision is re-emphasised in s 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
…a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children. [emphasis added]
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” [emphasis added]. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Matters pursuant to section 60CC

I make the following findings in relation to relevant and factual matters that underpin the considerations referred to in s 60CC(3).

Views expressed by the child and other relevant factors

The evidence of each of the parties is that the child by her words and actions has directly or indirectly expressed the view to live with the party who gave that particular evidence.
Independent expert evidence was given by the family consultant in his Family Report dated 25 September 2009 which became Exhibit 3. The family consultant also gave oral evidence. I find that the content of the family consultant’s written and oral evidence and the manner in which it was given was professional, thoughtful and sensitive, with particular emphasis on the close attachment that the child has to each of the parties, which from his viewpoint is at the core of the child’s feelings. I accept the family consultant’s evidence in relation to all matters covered in it, unless otherwise stated in this Judgment.
I accept the evidence of the family consultant referred to in Exhibit 3 and emphasised during the course of his oral evidence that the child’s views are:
In interview [the child] said ‘when I am at Mum’s I miss Dad and when I am at Dad’s I miss Mum’. She also said that she would like to ‘always be together with Mum and Dad’ and for them never to be angry with each other.
The child is very young. Fortunately, there is no evidence to suggest that any of the child’s views have been affected or influenced by parental alienating behaviour.

Nature of the relationship with the child with each of the parties and other significant persons

Each of the parties freely acknowledged that the child has a loving relationship with the other.
I accept the evidence which suggests that the child has an affectionate relationship with the maternal grandmother and with members of the father’s extended family.

The capacity of each of the parties to provide for the needs of the child including emotional and intellectual needs

The mother lives in a rented apartment in an apartment block. I accept the mother’s evidence regarding the features and facilities of her premises which are suitable for the child. Whilst the mother may not have her own private garden as exists in the father’s premises, nonetheless that does not detract from her capacity to provide for the physical needs the child.
An issue was raised regarding the mother at times having shown a lack of focus in the care of the child such as when she appeared to have become sunburnt to an alarming degree on Australia Day 2008. The father took a photograph of the child on 29 January 2008, which became Exhibit 6, which depicts the child’s physical condition on that day according to the father. I accept the father’s evidence, there not being any evidence to the contrary. The father did agree that Australia Day 2008 was an exceptionally hot day. However, not only does this not detract from the circumstances in which the child became sunburnt, but highlights even further the need to have taken care of the child to avoid the sunburn occurring as depicted in the Exhibit 6. The mother seemed to me to be distressed in relation to being questioned about the sunburn suffered by the child. I find on the balance of probabilities that the child was indeed sunburnt whilst in the care of the mother as depicted in Exhibit 6. There is no other evidence to suggest that the mother has been careless or neglectful in her care of the child on other occasions. I find that the mother had been careless in her care of the child on the day in question, but otherwise has shown herself to have the capacity to meet all of the physical needs of the child. Indeed, the father for his part stated in his oral evidence that so far as he was concerned, the mother and he should have equal shared care of the child on a week about basis, provided that the mother lived in or about the P area and that he did not have any criticism of her parenting skills in that regard. I accept the father’s evidence.
In the circumstances set out in the previous paragraph, it would have been illogical for the father to express those views and attitudes should he still have concerns regarding the mother’s capacity to provide for the physical needs of the child.
The father did state that he had concerns which he was unable to articulate should the child be in the care of the mother in terms of her primarily living with the mother. However, I do not attach any weight to those concerns as the father himself was unable to describe the concerns he claims to have in that regard.
A matter which potentially could affect the mother’s capacity to provide for any of the child’s physical, emotional or intellectual needs arises out of one of the issues for determination at the continuation of the hearing referred to in paragraph 7 of this Judgment namely “each party’s history of use of illicit drugs and whether such use continues”.
The mother has an admitted history of using illicit drugs. I accept the mother’s evidence that she has not taken any such drugs for the past three and a half years. Indeed, there was no allegation, let alone evidence, to suggest the contrary.
I consider it unfortunate to say the least, that in view of the lack of controversy in relation to many of the relevant factual matters that fell for determination, evidence was introduced of the mother having unlawfully removed funds of her former employer for her use, albeit subsequently repaid. Similarly, evidence was adduced under cross-examination of the father having pleaded guilty to a charge of “break, enter and steal” which occurred about three years ago. These matters were introduced in cross-examination by counsel for each of the parties without objection on the basis that they were relevant to the credibility of the witness. There was an exception to this lack of objection, in that after a particular objection was taken by counsel for the father, legal advice was then sought and apparently given. I granted the father an appropriate certificate under s 128 of the Commonwealth Evidence Act 1995. Given what amounts to be a lack of controversy of most of the relevant and significant factual matters, together with the commendable frankness with which each of the parties gave evidence in acknowledging, without hesitation, the love that the child has for the other party and seeking to accommodate the child spending significant periods of time with the other party, I am of the opinion that it was regrettable that those criminal offences were introduced into counsel’s cross-examination.
There is evidence that the mother in the past has been unreliable in keeping arrangements for the child to spend time with her. The mother at the times was going through difficult stages in her life. I accept the mother’s evidence that for the past few years she has led a stable settled life in terms of her employment, premises and lifestyle enhanced at one point by her relationship with Mr V with whom she remains friends, although they no longer live together or have an intimate relationship.
There is no evidence to suggest that the mother does not have the capacity to provide for the child’s emotional needs. The mother is employed from Monday to Thursday for an 11 hour day commencing at 7.00am having to leave home at about 6.30am. The mother proposes that the child be in before and after school care from 6.30am to be collected at 6.00pm for that purpose, the child made ready to leave by rising at 6.00am. There is no evidence before me that the child would be neglected emotionally or indeed physically in those circumstances as the family consultant emphasised the child will feel security knowing routine and time at which she will be collected by the mother and that will be her primary concern. I accept the mother’s evidence as to her proposals in that regard. The weight to be give to those proposals together with other relevant factors will need to be measured against proposals, and other relevant factors, in the father’s case for the purpose of arriving at a conclusion as to parenting orders that are in the best interests of the child. Nonetheless, the mother’s proposals do not reflect adversely on her capacity [emphasis added] to provide for the child’s emotional needs.
Consequently, I find that the mother has the requisite capacity to provide for the child’s emotional and intellectual needs.
No factual issue arises in relation to the father’s capacity to provide for the child’s physical needs, with the exception of that part of the paternal grandparent’s home where the father and the child occupy a bedroom.
I accept the evidence of the father and the paternal grandmother that the bedroom occupied by the father and the child is an annexe to the house suitably furnished and divided with separate beds. Whilst that room does not include a bathroom or toilet area, the child has easy and undercover access to the house with freedom to use all of its facilities and with which she is familiar.
I also accept the evidence that the house has a spare bedroom which is available for use by the child which in the near future is likely to be her bedroom given her age and development.
In those circumstances, I find that the father has the capacity to provide for the child’s physical needs.
An issue was raised in relation to the father’s capacity to provide for the emotional needs of the child. The context in which that issue was raised was that the father was over protective and as a consequence the child lacked confidence in trying new activities and had an unreasonable fear of sound and sight of waves at the beach, notwithstanding being in the care of the mother. The child had also shown fear or apprehension in other circumstances with the mother which suggested that the mother may not take good care of the child. The mother’s evidence in relation to those matters included her view that these inhibitions and feelings of lack of security in her care were brought about by the father being over protective and/or implicitly instilling a lack of confidence in the child because of his own anxiety in relation to care of the child.
The father denied that the child exhibited behaviour of the type referred in the previous paragraph when the child is in his care. Indeed, the father stated that the child has been learning to swim and has enjoyed herself at the beach.
The evidence of the family consultant, based on his observations of and discussions with the child, led him to the conclusion that the child did not show a lack of confidence in being active to an extent as may have been expected of a normal five year old. The family consultant found the child to be an outgoing person who was engaged in new activities such as swimming lessons, when otherwise apprehension and resistance might have been displayed. The family consultant did consider that the father was a dedicated and protective parent.
I do accept the evidence of the mother, which appeared to me to have been given in a sincere and child focussed way.
I also accept the evidence of the family consultant and the father in relation to the child’s demeanour and activities which do not suggest that the child is a timid person lacking in confidence.
I infer that the child may well be showing signs of anxiety from time to time due to the father being on occasions overly protective and who has stated that he keeps an eye on the child whilst in his presence for the most of the time. On the evidence given, I am not in a position to take this matter any further.
Nothing adverse was raised in evidence regarding the father’s capacity to provide for the intellectual needs of the child.
Overall, I am satisfied that on the balance of probabilities the father does have the capacity to provide for the emotional and physical needs of the child. The father is currently unemployed. The father receives a disability pension. However, the father’s proposals are that he undertake and complete an appropriate computer course so that he will be qualified for data entry work which he understands offers employment in the local area. The father proposes to gain part-time employment in that field during school hours. He further proposes to rely on assistance in the care of the child in the home from both the paternal grandmother and his sister. I accept the father’s evidence. The father’s proposals do not reflect critically upon his capacity to provide for the emotional needs of the child or indeed indirectly her physical needs.
The father admits that for many years he regularly used marijuana. The father’s evidence is that he has not done so for the past three and a half years and implicitly has no intention of returning to the use of marijuana or any other illicit drug.
The family consultant, whilst not an expert in drug or alcohol abuse, but having had extensive experience in dealing with parents and others who have had a problem of substance abuse, considered that the father no longer had a marijuana habit.
Neither of the parties through their legal representatives made any application at any stage, whether before or after the commencement of the continuous hearing on different days, for the appointment of an expert in drug and alcohol abuse. Consequently, the only evidence before me in relation to that matter is the evidence of the parties and of the family consultant.
The mother’s case does not suggest that the father should have supervised periods of time with the child due to any ongoing concern of his alleged marijuana use or habit. The mother has been legally represented throughout and I take that into account, together with the evidence of the father and family consultant which I accept, that together leads me to conclude that on the balance of probabilities that the father no longer takes illicit drugs, whether it be marijuana or otherwise.
A further factual issue was raised in relation to whether the father spends an inordinate amount of time at local hotels which includes gambling activities. I accept the evidence of the father and the paternal grandmother that such a situation does not occur and that the father only visits a hotel perhaps three times a year.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

The case for each of the parties ultimately was conducted on the basis that this was no longer an issue.
Whilst each of the parties is seeking an order that the child primarily live with her or him as the case may be, by Exhibits 11 and 12 that the parties seek orders that the child spend significant periods of time in the care of the other party. Indeed, that was the tenor of their evidence in the context of freely acknowledging that the child has a loving relationship with each of the parties and should be able to continue to have the benefit of that relationship with party of the other.
A significant factor of course is the distance and travel time required between the locations where the mother and father respectively reside.
This is an important physical feature to take into account with its implications for travel, especially for a small child, as opposed to each party’s willingness for the child to spend significant periods of time in the care of the other.
Reinforcing the parties’ positive attitude in relation to this matter is that each of them now seek an order for equal shared parental responsibility for the child. Whilst that is a different issue from the amount of time that the child should spend with one parent or the other, nonetheless it is indicative of their willingness to ensure that the child has the benefit of a continuing close relationship with each party.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from party with whom she has been living

The child primarily lives in the care of the father assisted by the paternal grandmother and his sister in their family home at P. The child has lived in such primary care during the past few years. During that time the child has spent usually regular periods in the care of the mother.
The mother proposes to continue to live in the N area. The mother rejects the suggestion that she should or could move to the P area. So as to be able to live in close proximity to the father’s home. I accept the reasons given by the mother for her refusal to move to the P area. Those reasons include her continued anxiety as to whether the father may repeat his post-separation behaviour of in effect stalking her, the substance of which was acknowledged by him to the family consultant as outlined by the family consultant in his oral evidence. The family consultant also gave evidence that the father appeared to be genuine in his statements that he has come to terms with his separation from the mother. The family consultant was of the view, which I accept, that the father was unlikely to repeat that behaviour. Nonetheless, it appeared to me by the manner in which she gave her evidence that the mother has a sincere and genuine anxiety of the father repeating the behaviour to which I have referred.
In addition, the mother states that she is settled and enjoys the area in which she lives. The mother has concerns that were she to move to the P area, she would have to seek new employment and on the evidence before me there is no reasonable prospect that such employment could be gained by her in the foreseeable future. Indeed, no such suggestion was made to the mother in the course of cross-examination in terms of specific opportunities for employment for which she is qualified and the range of income which she could earn in such employment in the P area. I accept the mother’s evidence in relation to all of those matters, including her need to remain in virtually full-time employment in order to support herself.
The father gave evidence that he was not in a position to offer the mother financial assistance were she to move to the P area for any particular period of time to enable her to continue to meet living expenses while she sought other employment. I accept the father’s evidence.
The father for his part refuses to move to the N area. The father’s reasons are that he is settled in his family’s home in which he has lived for many years. In addition, he provides support for the elderly paternal grandmother who has indifferent health and who lives in that home. Members of his extended family also live in the general area and they are regularly in each others company.
It is against that background that the likely effect of changes in the child’s circumstances will include the following.
In the event of the child relocating to live in the primary care of the mother, the child will have to adjust to the changes represented by no longer living in the primary care of the father; adjusting to the primary care of the mother; a change in the child’s routine four days a week given the hours of pre and after school care to which earlier reference has been made, as well as no longer having the family assistance provided in her care from the paternal grandmother and the father’s sister with whom the child has been accustomed for a considerable period of time. Those changes are likely to have the effect of being beneficial for the child in terms of providing further nurturing in the daily care of the mother, although at the same time the child being affected by no longer having the daily care of the father and having to adjust to all the other changes. The child has given her clear views on the emotional impact upon her of missing one or other of the parties earlier referred to in this judgment.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There is obvious practical difficulty and expense in each of the parties maintaining a regular relationship with the child given that the father resides in P and the mother in N.
Each of the parties emphasised the practical consequences of the distance between those residences so far as their proposals for future parenting of the child are concerned, including the periods of time that might be spent in the care of each, as well as the practicality that in the current situation a change of school will be necessary should the child move into the primary care of the mother.
It was agreed during the hearing that regardless of with whom the child primarily lives, a convenient halfway point for changeover of care of the child is at “McDonald’s” at A. Each of the parties will drive to that location.
During the course of submissions it was agreed by counsel and the independent children’s lawyer that the following approximate driving time applies to the areas described:
(a)       P – N: approximately 1 hour 10 minutes
(b)       P – A: approximately 40 – 45 minutes
(c)       N – A: approximately 40 minutes
Those times may be increased depending on whether travel takes places during peak traffic hours.
I accept the wife’s evidence that given the early hour at which she must commence work four days per week, it is a hardship to expect her to travel, particularly with the child, to a school in P or the father’s home on her working days, quite apart from the early start that she would have to make on her non-working day and the effect that all of those matters would have upon a very young child.

Consequently, the agreed halfway point at A is a sensible solution where each of the parties will have to undertake driving with the child for the purpose of changeover of the care of the child from one party to the other.
No evidence was given by either of the parties that the expense involved in the travel to which I have referred represents any significant economic difficulty for either of them.

Any other relevant fact or circumstance

The quality of communication between the parties has been a long standing difficulty so far as matters affecting the child are concerned. That difficulty has been marked by acrimonious conversation or remarks made by one to the other. Each party casts blame upon the other for that situation.
Historically the causes of such communication difficulties appear to have been based upon a number of factors. Those factors have included the father’s unacceptable behaviour to the mother which he acknowledged during the course of his interview with the family consultant due to the father’s non-acceptance of the break-down of the relationship between the parties; the mother’s instability caused by her reliance upon or consumption of illicit substances causing her to be hospitalised; the father’s rigidity in making arrangements with the mother for the purpose of her having care of the child for various periods and his failure to consult her before her important events in the child’s life took place. Fortunately for the child and the parties, communication in recent times appears to have significantly improved. They appear to be more comfortable now in using SMS messages to each other with a willingness to communicate by mobile telephone in the event of urgency. They both displayed a more positive and encouraging attitude in relation to those matters in the course of giving their evidence. On that basis communication between them on matters affecting the child should continue to improve in the immediate future.

Conclusion

During the continuation of the hearing of the proceedings it became clear that the distinctive features of the evidence are the matters upon which the parties agree rather than those with which they have disagreement.
Consequently, a number of significant issues identified for determination as referred to paragraph 9 dissolved into lack of controversy fortunately for the child and the parties.
As is apparent from the findings of fact that I have made there is a lack of any controversy regarding the positive nature of the relationship between the child and the parties as well as extended family members.
I have made unexceptional findings in relation to the demonstrated capacity of each of the parties to provide for the physical, emotional and intellectual needs of the child.
With regard to “each party’s history of use of illicit drugs” it has now remained “history” and nothing more.
The most significant matters revolved around the likely effect upon the child of changes to the periods of time spent in the care of each of the parties. Obviously their respective proposals for the future care of child are at the forefront of relevant matters for determination for the purpose of making parenting orders that are in the child’s best interests.
The parties agreed that there should be an order for equal shared parental responsibility. The independent children’s lawyer supported that approach. An appropriate order will be made.
I consider that the case is a finely balanced one in terms of whether it is in the best interests of the child to continue to live primarily with the father or for her primary care to be with the mother. I have concluded that it is in the child’s best interests to continue to live in the primary care of the father for the following reasons.
The child has now spent a substantial part of her young life in the daily care of the father assisted by the paternal grandmother and the father’s sister in their family home in P. There is no question that the child has progressed very satisfactorily in that environment. In that regard, I have not lost sight of the fact that the child has also spent significant periods of time albeit occasionally irregularly in the care of the mother. To that extent the mother has also made a significant parental input and nurturing for the child. Fortunately, the child maintains a loving relationship and close attachment with each of the parties. The child has a fond relationship with members of their respective extended families. It is much to the credit of the father and the mother that those attachments and relationships have been maintained without any adverse influence by either of them. Indeed, each acknowledged in one way or another that such attachment and relationship must be preserved for the benefit of the child and that the child should spend significant periods of time in the care of the parent with whom the child does not primarily live subject to the practicalities involved given the considerable distance between the residential areas in which each of the parties live and the fact that flexibility in arrangements has been curtailed as the child has now commenced school in the P area. The same considerations would apply if the child attended school in the N area should she be in the primary care of the mother whose settled residence is in N.
I have made findings that each of the parties will continue to live in their respective residential areas for the reasons that they have given which I accept as being reasonable in all the circumstances.
I accept that the child will have the benefit of a meaningful relationship with each of the parties regardless of whether she primarily lives with one or the other. Fortunately, the other primary consideration of the child not being exposed to family violence is irrelevant in these proceedings.
Communication between the parties has improved in recent times. I have made findings that on the evidence before me such communication is likely to be maintained in a constructive way so far as matters affecting the child are concerned although such communication will continue principally by SMS messaging.
The determinative factors are that the child has progressed well in the current status quo and is likely to continue to do so in the foreseeable future so far as all aspects of her parenting and relationships including that with the mother are concerned. In addition, should the child live with the mother she faces four long and tiring days during the week due to the mother’s hours of employment. I must emphasise at this point that this is not a criticism of the mother. The mother must earn income at a sufficient level to support herself. The mother does not have any other sources of income. Whilst the father suggests that the mother should move to the P area he is unable to provide any financial assistance to the mother to enable her to achieve that object even if the mother was prepared to do so. It is easy to make that type of proposal, it is another thing to have it implemented in a reasonable and practical way. The father is in a more fortunate position in that he is not compelled to seek employment due to financial pressures. The same cannot be said of the mother.
The practicalities of the mother’s situation are that the child will have to be awake at around 6.00am, have breakfast and be prepared for pre-school care commencing at 6.30am. That will continue after school until the mother is able to collect her at about 6.00pm. It is obvious that is a very long day for such a young child who must also accustom herself to commencing school recently for the first time.
Whilst I have accepted the evidence of the family consultant that the principal issue for the child will be the security of knowing that the mother will be there for her and collect her at the end of the day, nonetheless as the family consultant subsequently acknowledged in his evidence the practical effects of four days in the week of a long period commencing at about 6.00am and concluding at 6.00pm with a combination of pre-school care, school and after school care is bound to be tiring for the child.
By contrast, the child will be able to lead a more relaxing routine in the continued care of the father with opportunity for after school extra-curricular activities beyond the confines of after school care. The local P school is but a few minutes away from the father’s home. He will be able to both take her to and collect her from school. In the event that he gains part-time employment, as well as generally, he will have the continued assistance of his sister and the paternal grandmother in the care of the child. Consequently, there will be a continuation of the family environment with which the child is accustomed and in which she has made pleasing progress. The stability of that routine and close family members who are involved have obviously been beneficial for the child and are likely to continue to be for the foreseeable future.
I will make orders providing three weekends a month for the child to be in the care of the mother as well as for half of the school holiday periods.
I will also make an order giving the parties maximum flexibility to make different arrangements for the care of the child by either of them, without being under pressure that they must only abide by the specific periods of time that are the subject of the orders.
The child will have changing reasonable needs and preferences which must be accommodated by the parties being able to make different arrangements from time to time.
In order to meet the practicalities of the travel that is involved from N to P, I will make an order that changeover of care of the child between the parties whether after school, conclusion of weekends and on other occasions take place at the agreed halfway point namely, at McDonald’s at A unless the parties otherwise agree both in relation to relevant times and place. Should they wish to vary those arrangements from time to time the parties are perfectly free to do so.
The other occasions in which the child will be in the care of one party or the other are in substance those proposed by the independent children’s lawyer unopposed by the parties themselves. Telephone communication falls into the same category.
I will make appropriate orders to ensure that each of the parties is kept suitably informed in relation to any serious illness or injury that the child may suffer as well as for the mother to be able to have all the necessary school reports and other documents and photographs from the school.
Due to the history of antagonism between the parties the appropriate injunction will also be made.
An order restricting the father’s presence within a radius of one kilometre from the mother’s place of residence except at her invitation was not opposed.
Each of the parties should feel free at attend all school and other extra curricular activities in which the child is involved as their presence at such activities will not only bring happiness for them but particularly for the child in seeing her parents on such occasions.
It is important that each party remain involved in significant matters affecting the child. That is a necessary consequence of an order for equal shared parental responsibility. An extension of that approach will also apply to particular activities of the child and orders sought by the independent children’s lawyer will be made in that regard.
There was no opposition to the proposition that each of the parties be able to have the benefit of supervision of parenting orders by the family consultant and also continue to improve their attitude to communication between them in relation to matters affecting the child by enrolment in an appropriate course with a non-government organisation. The orders sought by the independent children’s lawyer in that respect will also be made.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 10 February 2010

[2010] FamCA 70

10 February 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Procedural Fairness