Barnham and Geyer
[2013] FCCA 1911
•21 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARNHAM & GEYER | [2013] FCCA 1911 |
| Catchwords: FAMILY LAW – Children – parental responsibility – unilateral relocation by father – father's failure to support child's relationship with mother – distance – meaningful relationship – reasonable practicability – child to return to live in Adelaide. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 65DAA, 65DAC. |
| B & B (1997) FLC 92-755 MRR & GRR [2010] HCA 4 |
| Applicant: | MS BARNHAM |
| Respondent: | MR GEYER |
| File Number: | ADC 595 of 2012 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 7 and 8 March, 15 April, 27 June and 23 September 2013 |
| Date of Last Submission: | 23 September 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 21 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms C O'Connor |
| Solicitors for the Applicant: | SE Lawyers |
| The Respondent: | In Person |
ORDERS
The parties share equally in parental responsibility for X born (omitted) 2009.
The father return X’s primary place of residence to the Adelaide metropolitan area on or before 27 February 2014.
Up to and including 27 February 2014, X live with each of his parents as follows:
(a)with the mother:
(i)from 12.00noon Saturday 14 December 2013 until 12.00 noon Saturday 4 January 2014;
(ii)from 12.00noon Saturday 1 February until 12.00noon Saturday 15 February 2014;
(b)with the father at all other times;
(c)handovers take place at the Police Station in (omitted) SAVE AND EXCEPT in circumstances where the father informs the mother that he is travelling to Adelaide in which case handover will take place at a neutral location in the Adelaide metropolitan area to be agreed between the parties.
Commencing 28 February 2014, the following parenting arrangements will apply.
X live with the mother from 12.00 noon on Friday 28 February 2014 until the conclusion of kindergarten on Friday 7 March 2014 and thereafter each alternate week from the conclusion of kindergarten or school on Friday until the conclusion of kindergarten or school on the following Friday commencing Friday 14 March 2014.
X live with the father each intervening week from the conclusion of kindergarten or school on Friday until the conclusion of kindergarten or school on the following Friday commencing Friday 7 March 2014.
X live with each parent for one half of each school holiday period at times to be agreed between the parties and in default of agreement the existing week about care arrangement will continue with handovers to take place at 3.30pm on Fridays.
X spend time with each parent on special occasions at times to be agreed between them including but not limited to family birthdays, Mother’s Day, Father’s Day, Christmas and Easter.
In the event no agreement is reached in relation to any specific occasion then X spend time with the parent with whom he is not already residing as follows:
(a)on X’s birthday from the conclusion of school until 6.00pm or from 2.00pm until 6.00pm if a non-school day;
(b)on any step-sibling’s birthday from the conclusion of school until 6.00pm or from 12.00noon until 6.00pm if a non-school day;
(c)on either parent’s birthday from the conclusion of school until 6.00pm or from 12.00noon until 6.00pm if a non-school day;
(d)With the father from 3.00pm on Christmas Eve until 11.00am on Christmas Day in 2014 and each alternate year thereafter and from 12.00noon Christmas Day until 3pm on Boxing Day in 2015 and each alternate year thereafter;
(e)With the mother from 12.00noon Christmas Day until 3.00pm on Boxing Day in 2014 and each alternate year thereafter and from 3.00pm on Christmas Eve until 12.00noon on Christmas Day in 2015 and each alternate year thereafter;
(f)With the mother from 3.30pm on the Thursday prior until 5.00pm on Easter Monday in 2014 and each alternate year thereafter and with the father from 3.30pm on the Thursday prior until 5.00pm on Easter Monday in 2015 and each alternate year thereafter, provided that if the Easter weekend falls within the April school holidays in any year then this time shall form part of the relevant parent’s half school holiday time;
(g)With the mother from 6.00pm on the Saturday prior until 2.00pm on Mother’s Day each year;
(h)With the father from 6.00pm on the Saturday prior until 2.00pm on Father’s Day each year;
NOTING THAT all of these special occasions shall override the usual parenting arrangements that would otherwise apply.
Handovers on school days shall take place by the relevant parent collecting X from kindergarten or school.
All other handovers shall take place at a neutral venue to be agreed between the parties.
X shall attend a kindergarten to be nominated by the mother for the first school term in 2014 and thereafter at such kindergarten or school as may be agreed between the parties.
The parties use a Communication Book to exchange information relevant to X’s welfare with the Communication Book to be exchanged each Friday.
Each party shall communicate with the other parent in a polite and respectful manner at all times.
Both parents shall:
(a)be listed as a contact person with any kindergarten or school at which X attends;
(b)notify the other parent in the event X suffers any significant accident or illness;
(c)notify the other in the event X is hospitalised for any reason noting that both parents are at liberty to attend at the hospital to provide X with comfort and support.
Each parent is at liberty to communicate with any medical practitioner providing treatment for X.
Each party is restrained from:
(a)abusing, criticising or denigrating the other parent, their partner or any member of their family in X’s presence and from allowing any other person to do so;
(b)from allowing any person to smoke inside their home while X is in their care;
(c)from consuming illegal substances while X is in their care;
(d)consuming alcohol to excess (defined as three standard alcoholic drinks in any 24 hour period) while X is in their care.
Each parent shall attend the Kids Are First Parenting programme, or a similar post separation parenting programme, within six months and provide written confirmation of their enrolment and subsequent completion of the programme to the other parent.
Within six months the parties shall attend family dispute resolution or family counselling through a Family Relationship Centre (or other appropriate community based organisation) to discuss their future co‑parenting responsibilities and work towards improving their co‑parenting communication.
In the event the father does not return to live in Adelaide then the week about care arrangements set out in paragraphs 5-10 are suspended and the following parenting arrangements will apply:
(a)X live with the mother in Adelaide;
(b)X spend time with the father as follows:
(i)for a period of ten (10) days during the school holidays at the end of Terms 1, 2 and 3 each year at times to be agreed between the parties and in default of agreement commencing at 12.00noon on the first Saturday and concluding at 2.00pm on the last Tuesday of the school holidays;
(ii)for a period of three weeks during the Christmas school holidays each year at times to be agreed between the parties and to include Christmas Day in each alternate year commencing 2014;
(iii)for the whole of any long weekend that falls during school term time from 12.00noon on the Saturday (or the first day of the long weekend) until 2.00pm on the Monday (or the last day of the long weekend);
(iv)in the event there are no long weekends in any school term then from 12.00noon on the Friday until 12.00noon on the Sunday of a weekend to be agreed between the parties or in default of agreement on the fifth weekend of the school term.
(c)All handovers take place at (omitted) SAVE AND EXCEPT on any occasion when the father may be present in Adelaide in which case the handover on that occasion will take place at a neutral venue to be agreed between the parties;
(d)In the event the father is travelling to Adelaide and upon the father providing at least seven (7) days’ notice to the mother, X shall spend further time with the father in Adelaide as may be agreed between the parties, with handovers to take place at a neutral location to be agreed between the parties;
(e)X spend time with the paternal grandmother on at least one occasion each month at times to be agreed between the mother and paternal grandmother;
(f)The parties facilitate telephone or Skype communication between X and his father on at least one occasion each week at times to be agreed between the parties or in default of agreement each Sunday evening at 6.00pm NOTING that X is also free to communicate with his step-mother and step-siblings during these calls.
All proceedings are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Barnham & Geyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 595 of 2012
| MS BARNHAM |
Applicant
And
| MR GEYER |
Respondent
REASONS FOR JUDGMENT
X is just four years old. He lives with his father in (omitted), having moved there from Adelaide in March 2012. X’s mother remained living in Adelaide. The distance between Adelaide and (omitted) has made it very difficult for X to spend meaningful time in his mother’s care. Both parents are seeking primary care of X. As his parents have been unable to reach any agreement in relation to X’s care arrangements, it now falls to the Court to determine this issue.
The Court has heard and considered all of the evidence presented during the hearing but I remind the parties that the Court is not required to rule on every issue or factual dispute. Rather, my findings will focus on those matters that are directly relevant to my decision regarding X’s long term best interests. In these Reasons, statements of fact should be considered as findings of fact.
Background
The mother was born on (omitted) 1990 and is 23 years of age. The father was born on (omitted) 1991 and is 22 years of age. The mother has an older child Y born on (omitted) 2008. Y is now five years old and continues to live with the mother.
The parties met in (omitted) 2008, while Ms Barnham was living at home with her mother and caring for her new baby Y. The parties began an “on and off” relationship over the next two years. They lived together for various periods but would routinely separate following an argument or disagreement.
X was born on (omitted) 2009, during one such separation. The mother and Y had returned to live with the maternal grandmother, but the parties resumed cohabitation shortly after X’s birth. They moved in to live with Mr Geyer’s brother Mr M and his partner Ms G (now Ms S) and remained there for a few months before renting their own premises at (omitted), (omitted).
Following X’s birth the mother was diagnosed with post natal depression and was prescribed antidepressant medication. The parties continued living together for the next few months but their relationship remained erratic and unstable. Both parties tend to blame the other for the difficulties they were experiencing, but on either parent’s version of events, neither party was sufficiently mature to maintain a stable relationship at this point in their lives.
Both parents were involved in X’s care while they were living together although the mother was the primary caregiver, as the father was generally working. In September 2010 X required surgery on a cyst in his bowel and was hospitalised for seven days. The surgery and X’s recovery was a particularly demanding time for the mother as she was caring for two very young children while still suffering from post natal depression.
The parties’ relationship continued to be volatile and they finally separated on 23 November 2010 when the mother moved back to the maternal grandmother’s home with both children. Mr Geyer says Ms Barnham would not allow him to spend regular time with X over the following months, whereas the mother perceived the father as disinterested and unwilling to assist with X’s care.
Clearly Ms Barnham continued to struggle with the demands of two young children in circumstances where she was depressed and felt Mr Geyer was providing little practical support for X. Both parties were distressed by the separation and it is clear that their personal distress and emotional immaturity impeded their capacity to focus on their responsibilities as parents.
In January 2011 the mother contacted the father and asked him to care for X. The circumstances in which X came into the father’s care are disputed, however I am satisfied the mother was indeed “at her wits end” (as she described it) at the time she approached the father. While Ms Barnham asked the father to take on X’s full time care, I accept this situation arose because of the psychological difficulties she was experiencing.
In any event, there is no dispute that on 27 January 2011 both parties signed a document confirming that the mother was handing over all responsibility for X to the father. They also agreed that X would continue to see his mother regularly, although the father says this was to take place each Sunday whereas the mother says that X would spend time in her care overnight on alternate weekends as well as time each Sunday.
The mother’s psychological health deteriorated over the subsequent weeks. Ms Barnham took an overdose of her medication on 23 March 2011 and was admitted to the (omitted) Hospital overnight. Following this medical intervention she was prescribed a different antidepressant medication, which eventually led to an improvement in her mental health. Y remained in the mother’s primary care across this period.
Whatever may have been the parties’ stated intention in January 2011, X spent very little time with his mother, once he was living with Mr Geyer. The father says the mother made no real effort to spend time with X, but I reject this. The mother’s capacity to deal with these issues may have been compromised by her psychological fragility in the early months, but I am satisfied that she attempted to maintain a relationship with X and was frustrated by the father’s lack of co‑operation.
The father met his current partner Ms H and they began living together in February 2011, only weeks after X came into the father’s care. Ms H was apparently working full time. The father was also employed and X was enrolled in full day childcare at that time[1]. The father and X remained living in Adelaide during 2011.
[1] (omitted) Childcare records, Annexure ‘B’, Affidavit of Ms L filed 27 June 2013
The mother spent a brief visit with X on 8 July 2011 but was subsequently unable to contact the father. Her attempts to communicate with him on Facebook and via extended family members were unsuccessful.
It is clear that Mr Geyer made no real effort to maintain contact with Ms Barnham or to support X’s relationship with his mother after this time. The father says that the mother was disinterested and that the only contact from her was in the form of threats and harassment.
The mother denies that she harassed or threatened the father, claiming rather that the father threatened her. No doubt there was an ongoing degree of volatility between the parties in the months after their separation. The mother was upset that she could not see X regularly and her depressive condition would have impacted upon her capacity to engage effectively with the father. I conclude that it is likely both parties behaved inappropriately at times. However, I am not satisfied that the father was subjected to the level of ongoing harassment that he claims, or that he feared for his safety.
On the contrary, the mother’s evidence was that she was unable to contact the father to arrange family dispute resolution in late 2011, as she did not know his address. In those circumstances it is difficult to see how she could have been orchestrating a campaign of threats and harassment against Mr Geyer.
The mother eventually sought further legal advice and an initial grant of legal aid was allocated for family law conferencing, but again, this could not proceed as the father’s whereabouts were unknown to the mother. The father argues that Ms Barnham could have contacted him through his own mother but the paternal grandmother was very hostile towards the mother and it is unlikely she would have assisted Ms Barnham. Eventually the mother’s legal representatives were able to obtain a grant of aid to file an Application in this Court.
In February/March 2012 the father, X and Ms H moved to (omitted) in Victoria and have lived there since that time. (omitted) is approximately a five hour drive from Adelaide. The father did not notify the mother of his plans to move with X. Ms H gave birth to their child Z in October 2012. She is currently pregnant with their second child.
The mother and Y remain living with the maternal grandmother. The mother’s younger twin sisters also live in the home, but the mother’s brother has recently moved out. X and Y have their own room in the home.
These proceedings
The mother’s Application was filed on 16 February 2012. Initially she sought orders to spend time with X on a regular basis twice each week, progressing eventually to week about shared care.
The mother’s Application first came before the Court on 22 March 2012 and a Commonwealth Location Order was issued. The father was served with the mother’s documents on 5 May 2012 and attended in person by telephone link at the next mention date on 26 June 2012.
The father was directed to file answering documents and the parties were ordered to attend a s.11F Child Dispute Conference on 18 July 2012. Orders were made for X to continue living with the father and to spend time with the mother from 11.00am until 4.00pm on Saturday 7 July and Saturday 28 July 2012, with the father to deliver X to the mother at the (omitted) Police Station. The mother was ordered to contribute the sum of $20.00 towards the father’s petrol costs in travelling between (omitted) and Adelaide.
The father travelled to Adelaide for X’s visit with the mother on 7 July 2012 but failed to attend on 28 July 2012.
When the matter next came before the Court on 3 August 2012 the father had not yet filed answering documents. The mother sought an order for X to return to live in Adelaide so that he could spend regular time in each parent’s care. The Court declined to order X’s immediate return, in part because of health issues arising for the father’s partner Ms H, who was pregnant. The Court ordered that X continue to live with the father and spend time with the mother on a day basis before progressing to overnight visits each fourth weekend, from 10.00am on Saturday until 4.00pm on the Sunday.
Handovers were ordered to take place at (omitted), as a midway location between Adelaide and (omitted). The matter was then listed for a two day trial on 28 February and 1 March 2013 and further directions were adjourned to 8 November 2012.
The Court emphasised to the father that he needed to comply with the orders for X to spend time with the mother. The Court also reminded the father that the issue of X returning to live in Adelaide was still very much in dispute.
The father filed answering documents on 22 August 2012 proposing that X continue to live with him and spend time with the mother on a day basis each month, alternating between Adelaide and (omitted).
The parties continued to experience difficulties in arranging X’s time with the mother. A visit took place on 18 August 2012, but the father declined the mother’s request to vary the next specified date (15 September 2012) and accordingly X did not spend any time in the mother’s care that month. The mother was unwell on the first weekend of overnight time due on 20 October 2012 and proposed that the visit take place on the next weekend, but the father refused to make X available, unless the mother travelled to (omitted).
A further interim hearing took place on 8 November 2012. The Court ordered that X spend an overnight period in the mother’s care in November 2012, increasing to two nights in December 2012. Handovers were continued at the Police Station in (omitted). As the matter had not resolved, trial directions were made and a s.62G family report was also ordered. The Court again emphasised to the father that he must comply with the orders for X to spend time with the mother and ensure that he has the funds necessary to undertake the trip to (omitted) once per month.
The father again failed to make X available to spend time with the mother in December 2012.
The family report was completed by Ms P on 5 February 2013. In February 2013 the father’s solicitors filed a Notice of Ceasing to Act. The father has represented himself since then, albeit with significant difficulty, as he has had to contend with the disadvantage of limited literacy.
The Court was unavailable to hear the matter on 28 February and 1 March 2013 and accordingly the matter was called on for further directions on 12 February 2013 when the trial was relisted to 7 and 8 March 2013. The Court again noted the father’s ongoing difficulties in complying with Court orders for X to spend time with his mother and further noted that X’s return to Adelaide remained a live issue before the Court.
The trial
The trial proceeded on 7 and 8 March 2013. The father had not filed a proper trial Affidavit and accordingly the Court gave Mr Geyer leave to rely upon his earlier Affidavit material. The hearing did not conclude on the two allocated days and was adjourned part heard to 15 April 2013.
The father filed a further Affidavit on 9 April 2013 together with an Affidavit he had prepared on behalf of his mother which was filed on 10 April 2013. The paternal grandmother’s Affidavit was received over the objection of counsel.
The hearing was further adjourned part heard to 27 and 28 June 2013. During the period of the adjournment the Court ordered that X spend three one week periods in the mother’s care. Notwithstanding those orders, the father subsequently contacted the mother and proposed that X remain in her care for a block period of one month from 15 April to 16 May 2013 rather than three one week periods, as he could not afford the petrol costs. The mother accepted this proposal.
It was anticipated that the hearing would conclude on 28 June 2013 but the mother’s final witness, Ms S, was unavailable. Counsel for the mother was concerned to ensure that the father had the opportunity to cross examine Ms S, as the mother would be relying upon Ms S’s evidence regarding allegations of the father’s past aggressive behaviour. In those circumstances, the hearing was further adjourned to a final hearing date on 23 September 2013.
In light of the previously negotiated care arrangements, the Court ordered that X spend a further period of one month in the mother’s care commencing at the conclusion of the Court hearing on 27 June 2013, together with a further period of time as may be agreed between the parties, or ordered by the Court. The parties were unable to agree upon this further period and the Court subsequently ordered that X spend time with the mother from 31 August until 21 September 2013.
For the purposes of the hearing, the mother relied upon the following documents:
a)Her Amended Initiating Application filed 11 April 2013;
b)Her trial Affidavit filed 11 April 2013;
c)Affidavit of the maternal grandmother Ms M filed 1 March 2013;
d)Affidavit of Ms S, the father’s former sister-in-law, filed 12 April 2013;
e)Affidavits of Ms L filed 12 April 2013 and 27 June 2013.
The father relied upon the following documents:
a)His Response filed 22 August 2012;
b)His Affidavit filed 22 August 2012;
c)His Affidavit filed 12 February 2013;
d)His Affidavit filed 9 April 2013;
e)Affidavit of the paternal grandmother Ms W filed 10 April 2013.
Both parties and their supporting witnesses were available for cross examination, as was the report writer, Ms P. While both parties endeavoured to give their evidence honestly, it was clear that they remained locked in their own narrative, which is highly critical of the other parent’s past behaviour. They tended to recall past events through that prism of accusation and blame, which inevitably coloured their evidence about past events.
It is fair to say that the mother was not subjected to extensive cross examination, given that the father was representing himself. By contrast, the father was cross examined rigorously by Counsel representing the mother. I take this into account when assessing each party’s evidence.
The father struggled during his time in the witness box. At times he was unable to respond to the question asked of him; at other times his evidence was vague and contradictory, particularly regarding his situation in (omitted) over the past 18 months, X’s past care arrangements and the father’s present circumstances. At the end of the father’s evidence, the Court has no clear picture of the father’s current situation, or of X’s current care arrangements in (omitted).
Turning to the supporting witnesses, the paternal grandmother’s Affidavit was highly critical of the mother. She conceded she has had no contact with Ms Barnham for over three years, but refused to accept that the mother could possibly have changed over that time. Her evidence was so coloured by vitriol that I can place little weight upon it.
The maternal grandmother’s Affidavit was likewise strongly partisan in her description of the parties’ past relationship, which undermines the reliability of this aspect of the maternal grandmother’s evidence. However, I accept her evidence regarding the mother’s current living arrangements and her observations of X during the four weeks he spent in his mother’s care in April 2013.
I accept Ms S was a reliable witness. She commented positively on X’s interaction with the mother, but readily acknowledged that she had spent limited time with the mother and X, which I take into account. I accept her evidence regarding the father’s past behaviour during the parties’ relationship and subsequently.
Ms P’s report was received by the Court and she was also available for cross examination by both parties. She gave her evidence in a neutral, professional manner and made appropriate concessions when challenged. Obviously Ms P’s recommendations are underpinned by her interviews with each party and by her observations of the parties and X.
The evidence from expert witnesses, such as Ms P, invariably carries a great deal of weight in the Court process. Her obligation is to provide an objective and unbiased assessment of the overall family dynamics in which the child lives and to assist the Court in determining what parenting arrangements will be in the child’s best interests.[2] However, the expert’s opinion forms only one part of the evidence that is ultimately received by the Court. It is for the Court to determine the weight to be attached to that evidence.[3]
[2] Family Law Rules, 2004 Part 15.5 and Federal Magistrates Court Rules 2001, Rule 15.09
[3] Bass & Bass (2008) FLC 93-366, para.50
The mother argues that Ms P failed to maintain an objective approach in the preparation of her report. In particular she argues that Ms P was unreasonably judgmental of Ms Barnham’s decision to hand X into the father’s care and that this prejudiced her assessment of the mother and her parenting capacity.
I agree that Ms P focussed on the mother’s past mental health issues, but do not consider that this necessarily undermined her assessment as a whole. However other factors have since intervened that limit the weight to be attached to Ms P’s report. The reality is that the Court has now had the opportunity to hear all of the evidence and to assess the parties during their time in the witness box. Significant information which Ms P relied upon in the course of her assessment has not been confirmed in the course of the hearing, or was not available to Ms P, which inevitably limits the weight to be attached to her recommendations.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in their child’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties and obligations.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode (2006) FamCA 1346 the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.[4] Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[4] Goode & Goode (2006) FamCA 1346 at para.10
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are 13 additional considerations in s.60CC(3) which must be taken into account. I must also consider the extent to which each party has fulfilled, or failed to fulfil, their parental responsibilities (s.60CC(4), (4A)).
Section 61DA requires the Court to presume that it is in the child’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted.
An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the child’s best interests to spend equal time, or substantial and significant time with each parent.
As discussed by the High Court in MRR v GR[5] [2010] HCA 4, s.65DAA involves a two step process. First, the Court must ask whether equal time (or substantial and significant time) is in the child’s best interests. If the answer to that question is “yes”, the Court must also ask whether such an outcome is “reasonably practicable”. It is only when both questions are answered in the affirmative that the Court must consider making an order for X to spend equal time or substantial and significant time with each of his parents.
[5] MRR v GR [2010] HCA 4 para.13
Relocation disputes are particularly difficult cases to determine; even more so when the Court is asked to order that a child should return to live in their prior place of residence. Whatever decision the Court makes about where the child should live, one parent will inevitably feel aggrieved and distressed by the outcome.
While the child’s best interests is the Court’s paramount consideration, it is not the only consideration that the Court must take into account. Weighing up a child’s right to a meaningful relationship with both parents against a parent’s right to freedom of movement is a process that requires careful analysis.[6] However, the Court’s responsibility in such cases is no different to any other parenting dispute, at the end of the day. If, after careful analysis, the Court concludes that the child’s best interests conflict with a parent’s right to live where they choose, the Family Law Act requires that the children’s interests should prevail.[7]
[6] B & B (1997) FLC 92-755
[7] AMS v AIF; AIF v AMS (1999) FLC 92-852, per Kirby J
The authorities have consistently stated that each party’s parenting proposal, including any proposed relocation, must be assessed against the relative legislative considerations.[8] In Morgan & Miles [2007] FamCA 1230, Boland J considered the principles applicable to determining relocation applications. Her Honour observed:
“That the child’s best interest remains the paramount, but not the sole consideration; that a parent wishing to move does not need to demonstrate compelling reasons; that a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests; that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement”.
What the legislation now requires is a consideration of the competing proposals against the criteria in section 60CC, informed by section 60B, and if a parenting order is made or proposed to be made and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility must be considered”.[9]
[8] Morgan & Miles [2007] FamCA 1230; McCall & Clark (2009) FLC 93-405
[9] Morgan & Miles supra at paras.80-81
Two years later the Full Court said in McCall & Clark (2009) FLC 93‑405:
“… it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:
(a)whether equal time (or substantial and significant time) with both parents would be in the child’s best interests;
(b) consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5); and then
(c) consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location, with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so;[10]
[10] McCall & Clark, supra at para.69
The 2006 amendments to the Family Law Act emphasise a child’s right to maintain a meaningful relationship with each parent.[11] The legislation does not define what is meant by a meaningful relationship but the concept has been discussed at length in various judgments since the amendments were introduced. In McCall & Clark, the Full Court also endorsed the comments of Brown J in Mazorski & Albright (2007) 37 FamLR 518 where Her Honour said:
“A meaningful relationship or meaningful involvement is one which is important, significant and valuable to a child.”
Her Honour went on to note that it is a qualitative adjective, not strictly a quantitative one. That is to say, a meaningful relationship should be measured by the quality of the parent/child relationship, not simply by the number of hours or nights spent together.
[11] See ss.60B(1)(a), 60CC(2)(a)
I will address the relevant considerations set out in s.60CC in order to identify those factors that are most significant in determining the child’s best interests. I will then set out my conclusions regarding the living arrangements that I consider will be in X’s best interests.
The mother’s case
The mother argues that X should return to live in Adelaide. She would prefer that X live with her and spend regular time with the father in or near to Adelaide, although she previously indicated that she would consider shared care. She acknowledges that X has been living in (omitted) for over 18 months, but argues this situation arose without her permission or consent and has clearly proved to be unworkable, in terms of allowing X to maintain a meaningful relationship with both of his parents.
The mother argues the father has been unwilling and unable to comply with Court orders or to undertake the travel necessitated by his relocation to (omitted). She says there is no good reason why the father cannot return to live in Adelaide and that X would then be able to maintain a relationship with her as well as with his extended paternal and maternal family, all of whom live in Adelaide. However, should the father choose not to return to Adelaide, she argues that X’s best interests are served by returning to Adelaide and living in her primary care.
The father’s case
The father argues that X should remain living in his primary care in (omitted) and he relies upon the recommendations set out in Ms P’s report.
The father says that X has been living in his primary care for over two years. While he acknowledges that the distance between Adelaide and (omitted) has caused some difficulties, he and his family are settled there. They enjoy a supportive relationship with his partner’s family, which is even more important now that he and Ms H are expecting another child. He argues it would be highly disruptive to move back to Adelaide and he was clear that he will not return to live in Adelaide, under any circumstances.
Mr Geyer further argues that it would be highly disruptive for X to be removed from his primary care. He proposes that X spend regular time in his mother’s care during one weekend each month and for one half of all school holidays.
Ms P’s evidence
It is useful to consider Ms P’s evidence before turning to the s.60CC criteria. Ms P conducted interviews and observed interactions between the parties and X in December 2012/January 2013 and her report was released on 5 February 2013. She noted that “what emerged as a predominant theme throughout the parties’ respective narratives was the significant level of parental conflict and mutual mistrust between the parties, which prevented the parties from communicating effectively on matters relating to the child.”[13]
[13] Family Report dated 5 February 2013, para.89
Ms P also noted the difficulties that led to the mother placing X in the father’s full time care in January 2011, which raised concerns about the mother’s past mental health and overall psychological stability. She commented that the mother became highly emotive when discussing her past history of depression and was concerned that the mother was focussed more on re-instating her role as X’s mother than upon X’s need for emotional security and continuity of care.[14]
[14] Family Report, para.97
The mother challenges Ms P’s interpretation of their interview. The mother claims Ms P repeatedly referred to the mother having “given X away”, which conveyed an attitude which the mother felt was extremely judgmental. It is certainly true that Ms P focussed upon the mother’s past depression and mental health difficulties. This is hardly surprising, given the evidence about the events leading up to X being placed with the father and the mother’s subsequent episode of self-harm. Ms P was entitled to raise concerns about the impact upon X, should the mother’s mental health deteriorate in the future.
At the same time, there is evidence that the mother’s mental health has stabilised since her overnight hospitalisation in March 2011. The mother has filed two medical reports. The first report was dated 31 July 2012 and was available to Ms P. In that report Dr P commented as follows:
“Her current mental health state is good. She no longer displays symptoms of depression in that her general appearance, speech, effect and mood are all normal. She has no neurovegetative signs of depression; and her judgement and insight are normal.
…
I believe that she would be perfectly well able to care for her child given that she’s caring effectively for her other child. …”[15]
[15] Mother’s Affidavit (supra), Annexure C, Report of Dr P
The second report was prepared by Dr N, another practitioner in the same practice, on 27 February 2013. Dr N states:
“Her current mental health state is good and stable. She has improved markedly and shows none of the depressive symptoms she had when she first consulted me. …
My opinion is that Ms Barnham has the capacity to care for X full-time. Considering she is already looking after another child full-time, and her current mental state, I see no reason why she could not care for X on a full-time basis.”[16]
[16] Mother’s Affidavit filed 1 March 2013, Annexure D, Report of Dr N
These two medical reports provide a longitudinal assessment of the mother’s mental health across 2012 and early 2013. The reports suggest the mother is stable and coping well, notwithstanding the stress of these Court proceedings. Given that evidence, I consider Ms P has placed undue emphasis upon the mother’s past psychological difficulties.
Ms P observed X’s interaction with each parent. Ms P observed a comfortable and easy interaction between X and the father and commented that “X presented as securely attached to the father”.[17] Mr Geyer attended alone without his partner and accordingly there has been no observation of X’s relationship with Ms H.
[17] Family Report, para.66
The mother attended together with Y and her younger sister Ms J. X demonstrated some separation anxiety when leaving his father’s care but Ms P acknowledged that this was to be expected, as X had just spent his first block of multiple days in his mother’s care and had only recently returned to his father’s care. I agree with Ms P that in those circumstances, X’s separation anxiety in leaving Mr Geyer’s care should not be taken to indicate any long term difficulties within X’s relationship with the mother.
Ms P was particularly concerned that the mother referred to X as ‘brother’ during the observed interaction, which X may perceive as “objectifying”.[18] With respect, I consider this was nothing more than the mother’s somewhat naive attempt to reintegrate X’s sense of place within her family unit, rather than indicating any long term concerns.
[18] Ibid, para. 93
Ms P’s report clearly indicates that X has a strong and significant attachment to his father as a source of emotional security and this was a significant factor in her final recommendations. She commented:
“… Notwithstanding X’s early disrupted attachment history the child’s emotional development in the context of his current attachment relationships is of paramount importance. It would likely be emotionally destabilising and traumatic for X to be separated from Mr Geyer in order to live with Ms Barnham and is therefore not considered in X’s best interests.”[19]
[19] Family report, para.97
Ms P also acknowledged the importance of X’s relationship with his mother. She said:
“This is not to discount the importance of Ms Barnham’s role in X’s life and the premium placed on the re-establishment of her relationship with the child. It is recommended however that this is undertaken in accordance with the child’s developmental need for stability, routine and emotional security.”[20]
[20] Family Report, para.98
Ms P went on to comment that:
“… A meaningful relationship between the child and mother is considered in X’s best interests and this would be more easily fostered if relocation for one of the parties appeared a viable option therefore more frequent contact between the child and mother could be more easily facilitated.”[21]
However she also noted that neither party was able to consider relocation, for a range of legitimate reasons. In those circumstances, she recommended that X should continue living with his father in (omitted) and spend time with the mother each fourth weekend and on special occasions and holidays as determined by the Court.
[21] Family Report, para.101
Ms P noted that X was spending five full days each week in child care, a situation that arose because the father was working full time and his partner, Ms H, was apparently unable to manage the demands of breast feeding her new baby Z, while caring for X as well.
The mother was concerned that X was attending such long hours in childcare and Ms P agreed that X’s emotional needs may be compromised by such extensive child care, as it could give the child a sense of feeling excluded from his family unit.[22] She recommended that the father seriously consider the possibility of reducing X’s hours at child care but accepted his reassurance that the arrangement was temporary.[23] Despite these concerns, Ms P considered that the father and Ms H were generally attending to X’s developmental needs otherwise.
[22] Family Report, para.59
[23] Family Report, para.95
The Court accepts Ms H may well have needed some ‘time out’ from the demands of caring for two young children, but it is difficult to understand why that could not have been achieved by shorter or less frequent day care enrolments for X. The father’s evidence on this topic and on the question of his employment and X’s future care arrangements generally was vague and unsatisfactory.
I have little doubt the father would have continued X’s enrolment in full day childcare, were it not for Ms P’s report and the subsequent focus on this issue during the trial. Indeed in the course of cross examination on 27 June 2013, the father conceded that he had recently commenced a new full time job and that X would again attend day care full time. It is concerning that X’s secure place in his father’s family unit is apparently not given the same weight as the care needs of his stepsister and that he may again be placed into long day care (or a combination of long day care and kindergarten) while his sister remains cared for within the home.
Ms P interviewed Ms H by telephone. It seems that Ms P placed significant weight upon Ms H’s views, referring to her discussions with Ms H repeatedly in the Evaluation section of her report.[24] The difficulty here is that the father did not call Ms H as a witness, despite repeated opportunities to do so.
[24] Family Report, paras.91, 94, 95, 97, 98
Ms P’s recommendations were also influenced by the settled lifestyle apparently available to X in (omitted), yet the evidence has subsequently presented a different picture. The father’s employment and accommodation arrangements are demonstrably far less settled and secure than his initial evidence suggested.
Many of the factors relied upon by Ms P in her report have not been confirmed, particularly in relation to X’s current circumstances in (omitted). Ms H’s views regarding her relationship with the father, her commitment to X’s care and her criticisms of the mother have never been put on oath, nor tested through cross examination.
In addition, there is the acknowledged past history of the father’s inability or unwillingness to comply with orders for X to spend time with the mother. Some of this history was known to Ms P, but she was not aware that there have been other, more recent occasions when the father actually travelled to Adelaide with X and did not notify the mother or make any arrangements for X to spend time with his mother.
Finally, the Court has had the advantage of hearing evidence from both parents particularly regarding X’s care arrangements across 2013, when he has had the opportunity to spend significant time in the mother’s care. To that extent the Court is now better placed to consider the extent of X’s relationship with each parent.
Ms P’s evidence remains significant but the weight to be attached to her final Recommendations is reduced, given the extent to which the Court’s findings differ from the information available to Ms P.
Section 60CC Considerations
I will consider those aspects of the evidence that are most significant in my assessment of X’s future best interests within my discussion of the relevant s.60CC considerations.
Primary Considerations
Section 60CC(2)(a) The benefit to X of having a meaningful relationship with both parents
There is no doubt that X enjoys a strong and meaningful relationship with his father, who has been his primary caregiver for more than two years.
At the time of the family assessment, Ms P commented that X did not presently have a meaningful relationship with the mother, due to the lack of opportunity for such a relationship to develop. However, she went on to emphasise that it would be in X’s best interests to have a meaningful relationship with both of his parents and that this could be more easily fostered if relocation for one parent or the other was viable.[25]
[25] Family Report, paras.97 and 101
X has spent considerably more time in the mother’s care across 2013 and as discussed further in these Reasons, I am confident that he has established a more secure and significant relationship with his mother now than would have been evident when Ms P met with the family.
To that extent, Ms P’s recommendation that X’s best interests would be promoted by having a meaningful relationship with both of his parents remains significant.
Section 60CC(2)(b) the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties are critical of the other parent’s capacity to provide appropriate care for X. I will discuss these concerns in more detail elsewhere, but generally I do not consider that either party’s evidence is sufficient to justify a finding that X is at risk of abuse or neglect in either parent’s care.
The parties’ allegations regarding violence and aggressive behaviour
The Court must also consider whether X is at risk of harm from being exposed to family violence. Many of the allegations of past violence and aggression relate to events that occurred two or three years ago, in the context of an immature couple going through a difficult separation. I do not intend addressing every allegation raised by each party, but there is no doubt the parties’ relationship was dysfunctional and conflicted, a situation that continued after their separation.
The parties’ hostility towards each other in late 2010/early 2011 made it difficult for them to negotiate their ongoing parenting responsibilities for X. The mother was experiencing significant psychological difficulties at the time which led to her feeling overwhelmed and unsupported. I accept she would not otherwise have handed X into the father’s care.
The mother acknowledged attending the father’s house with a male friend late one evening in an attempt to try and see X. Ms Barnham conceded she was upset at the time, but denies her behaviour could have been seen as threatening or intimidating. I accept that an unannounced late night visit was unwise, and unlikely to be well received by Mr Geyer (even had he been home), but I do not consider this behaviour would have left the father in fear for his safety.
Given the volatile nature of the parties’ separation, I accept it is possible that extended family members and friends ‘entered the fray’ so to speak. However I reject Mr Geyer’s contention that this led him to fear for his safety into late 2011 and early 2012. As mentioned, Ms Barnham did not know the father’s address in late 2011. I am not satisfied that the father genuinely fears he is at risk of ongoing harassment, should he return to live in Adelaide.
Equally however, I am not satisfied that the father moved to (omitted) simply to frustrate X’s relationship with his mother. The most obvious explanation is that the father and his partner moved to (omitted) because that is where Ms H’s parents live and were offering very practical support, including assistance with accommodation.
Turning to the father’s behaviour, I accept the evidence from the mother and Ms S that Mr Geyer was inclined to react aggressively if he felt aggrieved or provoked. He would lash out physically on occasion and had also been involved in aggressive exchanges with others. I accept that the mother found the father’s level of reactivity threatening at times.
While such behaviour is unacceptable, these events occurred nearly three years ago and I am hopeful that both parties have matured over the intervening period. There is no recent evidence to suggest that X is at risk of exposure to ongoing violent behaviour from either parent into the future.
Section 60CC(3) – additional considerations
(a) X’s views
X was too young to be interviewed by Ms P.
(b) the nature of X’s relationship with his parents and other relevant persons
X’s current relationship with the father
X has a secure relationship with the father, as observed by Ms P during the family assessment.[26] Mr Geyer has been X’s primary caregiver for the past two years. While the father has been unduly reliant on full day childcare at times, he nonetheless was appropriately engaged in X’s care at other times.
[26] Family Report, para.66
X’s current relationship with his mother
Ms P’s description of X’s interaction with the mother was less favourable but Ms P noted that X’s reluctance to separate from his father was understandable, given X had only recently returned to his father’s care after his first week-long stay with Ms Barnham.
X has spent considerably more time in his mother’s care across 2013, which has given him the opportunity to re-establish a meaningful relationship with his mother. I am satisfied that X’s relationship with his mother would be much more settled and secure now than when observed by Ms P in January 2013.
The father argues that X has been distressed by spending multiple weeks in the mother’s care and that his behaviour has deteriorated after each such visit this year. With due respect to the father, I consider his concerns are overstated. Mr Geyer conceded that X has presented with challenging behaviour in the past, as discussed with his GP as early as April 2012. On that occasion the medical records note that X was described by his father as follows: “has been very violent for more than a year: biting parents or scratching himself if not happy”.[27] This behaviour was occurring at a time when X was not seeing his mother at all.
[27] Affidavit of Ms L filed 27 June 2013, Annexure E, p.85, GP Record 5 April 2012
This history has only come to light through the subpoenaed material from the father’s general practitioner and places the father’s allegations about X’s poor behaviour in an entirely different context. X may well demonstrate some transitional behaviour when moving between his parents’ care, but many children need time to make this adjustment. It does not mean that there is some intrinsic problem within X’s relationship with his mother, especially as we now know that X was presenting with these behavioural difficulties in 2012.
The father’s allegations in this regard are further contradicted by the recent notes from (omitted) Childcare which read as follows:
“Monthly evaluation – month of July [2013]
X has been absent for most of the month but upon returning we have noticed a great deal of progression in X’s social/emotional development. X is content to sit and listen while participating in group time, engage in play for longer periods and asks more questions to obtain information.”[28]
[28] Exhibit M2 (omitted) Childcare Centre records
This independent feedback suggests that X has been coping well with his care arrangements across 2013 and that his time spent in Ms Barnham’s care was nurturing and supportive of his development, contrary to the father’s concerns.
Other significant relationships
X has two stepsiblings, Y and Z. During X’s observed interaction with Ms Barnham, Ms P commented that X focussed his attention on Y, which suggests that their sibling relationship was quickly re-established, even at that early stage. This is to be expected, given that Y is only 16 months older than X and they are both now at an age where they can be playmates. I am satisfied this relationship would have been further strengthened across this year. X lives with his stepsister Z and their sibling relationship is equally significant, albeit she is not yet of an age where she is a play companion for him. The father and Ms H are also expecting another child.
Clearly X has an established relationship with his stepmother, Ms H. However the extent and quality of this relationship is unknown. Mr Geyer is promoting Ms H as an equal, if not primary, care giver to X within their family unit, given that the father intends pursuing full time employment in the future. Ms H did not attend for the assessment with Ms P, nor did she file an Affidavit or attend to give evidence during the trial.
Given the potentially significant role Ms H will play in X’s life, it is concerning that Ms H did not participate in the trial, to enable the Court to assess her role in X’s life and commitment to his care. Counsel raised this with Mr Geyer during the trial, as did the Court. Nonetheless the father was adamant that he did not want to expose Ms H to any stress by involving her in these Court proceedings.
The extent of Ms H’s actual role in X’s care is unclear, but the evidence, including the father’s own testimony, indicates that the father has generally placed X into childcare when he was working, rather than leaving X in Ms H’s care. This history raises a considerable concern about Ms H’s commitment to X’s care – a concern that remains unanswered.
No doubt X also has significant relationships with his extended maternal and paternal families, most of whom live in Adelaide. I am confident that both parents support X’s relationship with their extended family, but inevitably these relationships are limited while he lives in (omitted).
(c) the willingness and ability of each of the child’s parents to facilitate and encourage X’s close relationship with the other parent
There is no question that Mr Geyer has failed to support and promote X’s ongoing relationship with his mother. While both parties must take responsibility for their failure to negotiate proper parenting arrangements during early 2011, there is little evidence to suggest that the father placed any importance on X’s ongoing relationship with Ms Barnham, until forced to do so by the Court process.
These difficulties commenced very early after X came into Mr Geyer’s care in 2011 when the father was unco‑operative and hostile. In turn, the mother was unable to engage more effectively with the father, a situation that would have been exacerbated by the psychological difficulties she was experiencing at the time.
The father argues that the mother could have made contact with him via his extended family, but as X’s primary caregiver at the time, he had a responsibility to actively facilitate X’s relationship with his other parent.
Mr Geyer’s disregard for X’s right to a relationship with his mother is clearly displayed in his decision to relocate to (omitted). I reject the father’s evidence that he moved out of fear for his safety, or because of ongoing harassment from the mother. The father gave no thought to the impact upon X, given that the relocation directly deprived X of any capacity to spend time with his mother into the future. This disregard continued across 2012, as demonstrated by the father’s failure to comply with orders for X to spend time with the mother.
It is particularly concerning that the father failed to comply with orders for X to spend time with his mother in December 2012. I accept the father has a medical certificate in relation to the weekend of 14-16 December 2012.[29] However Ms S gave evidence that the father and X were present in Adelaide at some point during December 2012 for a family Christmas celebration. I accept Ms S’s evidence on this topic and find that the father did not notify the mother or arrange for X to spend any time with his mother in December 2012, despite X being present in Adelaide at some point.
[29] Father’s affidavit filed 12 February 2013, annexure “A”
More recently in March 2013 Mr Geyer insisted on the mother travelling to collect X in (omitted), even though he was travelling onto Adelaide himself. He then collected X from the mother in (omitted) and returned with X to Adelaide. This unco‑operative behaviour reflects very poorly on the father.
While Mr Geyer has been generally more compliant with handover arrangements during 2013, he has done so only when under the direct scrutiny of the Court through the trial process. I have no confidence that the father will comply with future orders to facilitate time for X with his mother, if he again finds those arrangements inconvenient or too expensive.
I do not have the same concerns about the mother’s ability to support X’s relationship with the father. Even if the Court accepts that Ms Barnham could have better supported X’s relationship with his father after the separation in late 2010, it must be remembered that she was also struggling with depression at this point in time.
A better assessment of Ms Barnham’s capacity to support X’s ongoing relationship with the father can be found in the parenting arrangements for her older child Y. Notwithstanding some early difficulties between the mother and Y’s father, Mr J, the mother has demonstrated her willingness to support Y’s relationship with Mr J and Y continues to spend regular time in his father’s care. There is no reason to assume she would not also support X’s right to a meaningful relationship with his father in the future.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect of any separation from either parent or any other significant person
Clearly it would be in X’s best interests if his parents lived closer together so he could spend regular time in each parent’s care. From X’s perspective, whether he resides in (omitted) or Adelaide is unlikely to have any major emotional implications for him, provided both parents are readily available to him.
Both parents argue they are unable to relocate. Ms Barnham says it is unrealistic for her to move to (omitted) as she has no family or social support there nor any ties to the community. In addition, her older child Y spends regular time with his father, which can only occur if they live relatively nearby.
The father, in turn, says he cannot return to live in Adelaide. He argues it would be unsafe for him to do so, given the mother’s past harassment. In addition, he says he and his family are settled in (omitted) and have strong ties there now. They have lived there for over 18 months, but he has been on notice since the Court hearing on 26 June 2012 that X’s return to live in Adelaide was a live issue before the Court.
I accept that the father feels settled in (omitted). However, the extent of his connection to (omitted) is overstated, in my view. Mr Geyer initially described a significant level of support being offered by Ms H’s family in relation to employment and accommodation, but none of that support has materialised in the way initially described by him. The father has commenced numerous different jobs since moving to (omitted), the most recent in September 2013. Given his past history, the Court can have little confidence that this job is likely to be any longer lasting than his previous positions.
The father initially gave evidence that Ms H’s parents were assisting them with secure long term accommodation, but that has also changed. He and Ms H have recently moved into other accommodation which they obtained through the open rental market.
If X returns to live in Adelaide, he would be able to spend more regular time with his extended maternal and paternal families, which would obviously be enjoyable for X and give him a stronger sense of familial relationships with grandparents, cousins and so on.
Assuming the father and Ms H also return to Adelaide then there would be real advantages to X in having both his mother and father living in the same region. If the father refuses to return to Adelaide with X, this would result in X being separated from his father who has been X’s primary caregiver for over two years. Clearly this would be a considerable disruption for X, as noted by Ms P.
(e) practical difficulty and expense
The transport difficulties for the parents between Adelaide and (omitted) are significant and have caused great difficulty across the life of these proceedings. Whether or not the father is working, neither parent seems to have the financial capacity to manage frequent handovers, leaving aside the impact of the five hour drive upon X himself.
There is no doubt that the father’s move to (omitted) has substantially undermined X’s capacity to maintain a relationship with each of his parents and to spend meaningful time with each of his parents on a regular basis. These difficulties will continue long term in the event X remains living in (omitted).
(f) each parent’s capacity to provide for X’s needs, including emotional and intellectual needs;
each parent’s attitude to the responsibilities of parenthood;
Section 60CC(4) the extent to which each parent has taken, or failed to take, the opportunity to participate in their parental responsibilities
I will discuss these factors together as they are to some extent interrelated. In the months following their separation, both parents failed to properly exercise their parental responsibility by supporting X’s relationship with his other parent. However, the father’s subsequent move to (omitted) made it impossible for X to enjoy the benefit of both parents’ involvement in his life. X’s relationship with his mother has only been reinstated through this Court process, over the father’s considerable resistance. This history reflects poorly upon the father’s attitude to his parental responsibilities and is a significant issue in my determinations.
Moving to the future, I am satisfied both parents are able to meet X’s day to day care needs, save as discussed in the following paragraphs. There is no suggestion that the mother is not providing appropriate care for her older child Y and would provide the same level of care to X. Nor is there any suggestion that the father is not providing adequate care for X, aside from his over reliance on full day childcare.
X is due to start kindergarten soon. There may be some discrepancies between the parties’ respective capacity to support his educational development given the challenges that the father struggles with arising from his limited literacy.
X’s care arrangements since moving to (omitted)
X has been enrolled in long day care at times when the father has been working full time, even though Ms H was not working and was presumably available to care for X. The father conceded that Ms H rarely cared for X while he was working and that she rarely cared for X by herself, except for short periods, for example, if Mr Geyer went to the shops, or was working on a Saturday. As discussed, Ms P was concerned that these care arrangements may give X a sense of being excluded from his father’s family unit, given that his younger sister continued to be cared for by Ms H.
Obviously many children attend childcare across Australia. It is often a positive experience, as noted by Ms P. The issue is not whether X should attend childcare at all, but the extent to which the father relied upon long day care for X, particularly when Ms H was otherwise available. It may have been perfectly reasonable for Ms H to need some ‘time out’, given the demands of caring for an infant and an active toddler. But it appears Ms H was not providing any primary care for X at this time. He was attending long day care whenever Mr Geyer was working, an arrangement that apparently continues. This history is troubling.
I note that Mr Geyer and Ms H are expecting another child in the new year. In the event the father is working fulltime, as he hopes, this raises further concerns about Ms H’s capacity and willingness to care for three children under four years of age. As noted, the Court has been unable to investigate these concerns further, given Ms H has not given evidence.
The mother argues that this history demonstrates that the father lacks any real insight into X’s emotional needs. She further says that, unlike the father and Ms H, she is available to provide full time care for X, outside his kindergarten or future school commitments. Clearly the availability of a parent to provide primary care for a young child is a relevant factor to be taken into account and weighed against other considerations relating to X’s best interests.
The parties’ further criticisms and allegations
Both parents continue to raise concerns about X’s safety and welfare in the other parent’s care as set out in their Affidavit material, most recently the father’s Affidavit filed 12 September 2013 and the mother’s Affidavit filed 13 September 2013.
The father alleges that the mother and her family continue to drink to excess and abuse drugs (both illicit and prescription medication), but he presented no reliable evidence to support these concerns. The father further alleges that the mother goes out ‘partying’ and leaves X and Y with her mother, but again, he did not present any evidence to justify this allegation.
Mr Geyer says that the mother ignores X’s asthma and continues to smoke cigarettes around the child. To support his concerns, the father asked the Court to observe one of X's T-shirts, which he presented on the last day of the trial. He argued the T-shirt smelt strongly of cigarette smoke, thus proving the mother or her family smoke cigarettes in X’s presence.
I agree that the T‑shirt smelt of cigarette smoke, but that does not prove that Ms Barnham is smoking inside when X is in her care. It simply indicates that the T‑shirt has been exposed to an environment where cigarettes have been smoked.
There is some uncertainty about whether X has been formally diagnosed with asthma but it is inappropriate for any child to be exposed to passive cigarette smoke, whether or not they have been diagnosed with asthma. Ms Barnham acknowledges this and gave evidence that she does not smoke inside the house. Obviously this should extend to all members of her household, including the maternal grandmother.
Ms Barnham’s recent allegations that Mr Geyer and Ms H were slashing a sofa with a knife and that the father was fighting with another man are apparently based on comments made by X. The allegations are concerning, but the father was cross examined about these issues and I accept his evidence on these specific topics, particularly as these events occurred very recently.
Both parents accuse the other of allowing X to eat too much ‘junk food’ and generally providing inadequate care. While both parties continue to find fault with the other party’s parenting, I do not consider the evidence is sufficient to find that X is unsafe in either parent’s care, nor that either parent is failing to provide for X’s day to day needs. Many of the complaints reflect the level of distrust and poor communication between the parties at present, rather than raising any real concerns about X’s care.
The father is critical of the mother’s decision to remain living with the maternal grandmother, but I see no basis for such criticism. Ms Barnham gave evidence that she has remained living with her mother while the proceedings are ongoing and until this Court process is finalised. This seems perfectly reasonable.
Co-parenting communication
Both parties are failing to meet their parental responsibilities insofar as they remain unable to communicate effectively or respectfully with each other. For example, they each blame the other when X misbehaves or uses bad language, without considering whether they could work together to address these problems.
The reality is that the parties have never had any real opportunity to develop an effective co-parenting relationship. Both Mr Geyer and Ms Barnham were too angry and immature when they first separated (and in the mother’s case, too psychologically frail) to work towards a more successful co-parenting relationship. Then followed a total breakdown in communication, culminating in the father’s move to (omitted). This history has left them locked into their original hostility and mistrust. To date, they have been unable to move beyond those hostilities in the way that most separated parents manage to achieve.
There is little evidence to suggest the father has shared information about X’s welfare with the mother, even though X is now seeing his mother regularly. The parties have both failed to support any regular phone communication between X and his other parent.
This is not to say that the situation cannot improve, however. I am confident both parents can learn to behave more respectfully towards each other and that they recognise it will be in X’s best interests for them to do so. Ms Barnham has demonstrated her capacity to co‑parent effectively with Y’s father. Mr Geyer says that he wants to establish a better co-parenting dynamic with Ms Barnham. Both parents need to work towards this outcome, for the sake of their young son.
(g) X’s maturity, sex, lifestyle, background and other characteristics
X is just 4 years old. He is about to start kindergarten. The father has raised concerns regarding a possible diagnosis of Asthma and Attention Deficit Disorder (“ADD”) otherwise known as Attention Deficit Hyperactivity Disorder. The father concedes that X has presented with challenging behaviour in the past, well prior to X spending long periods of time in the mother’s care. As discussed these concerns pre-date X’s time in the mother’s care.
As discussed previously, while I have no doubt X does demonstrate some transitional behaviour when moving between his parents’ care, it is clear that X was demonstrating behavioural difficulties well prior to his longer stays with Ms Barnham across 2013. The father’s concerns and allegations in this regard are alleviated somewhat by the records presented from the (omitted) Childcare as discussed earlier at paragraph 110. This independent feedback suggests X has been coping well with his care arrangements across 2013 and that his behaviour has settled since spending regular time with his mother, contrary to the father’s concerns.
(j) family violence
I have considered the impact of family violence in my discussion of the s.60CC(2) primary considerations.
(l) what orders are least likely to lead to further proceedings
Whether there are likely to be further Court proceedings remains in the hands of the parties, who are responsible to ensure X’s future best interests are protected and the orders are complied with. However, the father’s past failure to comply with Court orders remains a considerable concern to the Court.
The remaining s.60CC considerations are not relevant to my assessment of X’s best interests and do not require specific discussion.
Conclusion
Parental responsibility
Having set out my findings in relation to the s.60CC criteria, I now turn to the issue of parental responsibility. Section 61DA directs the Court to apply a presumption that parents should share equally in parental responsibility unless the presumption does not apply or is rebutted.
I do not consider the allegations of family violence are at such a level as to indicate that the presumption does not apply. Equally, I am not satisfied that the presumption in favour of equal shared parental responsibility has been rebutted and I would be very reluctant to exclude one parent so fully at this early stage, particularly when the father has failed to support X’s relationship with his mother in the past.
In her report Ms P recommended that an order for sole parental responsibility be made in the father’s favour, given the poor level of communication between the parties. However in the course of cross examination Ms P agreed that equal shared parental responsibility would be in X’s best interests, in the event both parents were living in Adelaide. This suggests that her concerns were as much about the practicalities of sharing parental responsibility across geographic distance, as about communication issues.
Both parents have a great deal to offer X as he grows up. The parties have many parenting years ahead of them and it will be very much in X’s best interests if both parents are actively involved in decisions regarding his long term care and welfare. Despite their past difficulties, I am optimistic that both parties can now bring a more mature perspective to their co-parenting relationship than they were able to demonstrate at the time of their separation.
While the co-parenting relationship has continued to be difficult in recent times, the Court process itself also operates to focus everyone’s attention on their criticisms and complaints about the other parent, rather than actively co-operating or communicating with each other. I consider the parties have the potential to create a more effective co‑parenting relationship in the future and should have that opportunity, particularly as it will be in X’s best interests if they do so.
The parties may need some guidance in this regard and I will direct that both parents attend at the Kids-Are-First programme or a similar post separation parenting programme. I will also set out precise orders to facilitate the exchange of communication between the parties so that they have a clear structure within which to operate.
I conclude that it is in X’s best interests for his parents to participate equally in decisions regarding his long term care, welfare and development and I will make an order for equal shared parental responsibility accordingly.
Equal time or substantial and significant time?
Having concluded that an order for equal shared parental responsibility is appropriate, the Court must consider whether it is in X’s best interests to order that he spend equal time or substantial and significant time in the care of each parent. Section 65DAA specifies that such an order can only be made if it is also reasonably practicable.
I am satisfied that X has now established a strong and meaningful relationship with both his father and his mother. It is in X’s best interests that his long term parenting arrangements enable him to maintain this meaningful relationship with both parents in the future. Ms P was certainly of the view that X should have the opportunity to maintain a significant relationship with each parent if possible.
Taking into account all of the evidence I have heard, I conclude that it is in X’s best interests that he live equally with each of his parents on a week about basis. He has adjusted well to the care arrangements across 2013, as indicated by the July 2013 notes from (omitted) Childcare. In addition to his relationship with each parent, X has siblings in both households and a week about care regime will enable him to maintain those relationships as well.
Importantly, an order for equal time will ensure that X’s relationship with either parent will not be captive to the co-operation of the other parent, as occurred during 2011 and 2012. X should not again be confronted with a situation where he is denied a relationship with either parent in the future.
Ms Barnham is available to care for X outside of his kindergarten and school commitments. By contrast, the father anticipates working full time and the evidence indicates that X is likely to continue to be enrolled in childcare or Out of Hours School Care whenever his father is working. The emotional implications of this for X may be even more significant, if he has two younger stepsiblings being cared for at home by Ms H.
A shared care arrangement would limit the need for X to spend time in childcare, which is a positive outcome. Indeed, it may be that Ms H will feel better able to take on a more substantial parenting role for X if that responsibility falls in alternate weeks only.
Is equal time reasonably practicable?
Clearly it is only practical for X to live week about with each parent if the parents are living in the same region. The mother does not want to move to (omitted). She has no family support or social network in (omitted) and significantly, she would be unable to facilitate Y’s alternate weekend time with Mr J. I accept it is not reasonably practicable for Ms Barnham to relocate to (omitted).
Equally, the father does not want to return to Adelaide as he believes that (omitted) offers a better lifestyle for X and their family. However, that is not the question. Given that I am satisfied it is in X’s best interests that he live equally with both parents, the question now is whether it is reasonably practicable for the father to return to Adelaide.
I conclude that it is reasonably practicable for Mr Geyer and his family to return to live in Adelaide, for the following reasons.
The father’s circumstances in (omitted) are clearly neither settled, nor particularly stable. He initially gave evidence that he was renting accommodation owned by Ms H’s parents and may eventually be able to purchase the property, but this was subsequently shown to be incorrect. While the father and Ms H have accommodation in (omitted), they are renting through the open rental market, just as they would be in Adelaide. I consider that Mr Geyer could obtain rental accommodation in Adelaide as readily as he has been able to obtain accommodation in (omitted).
Similarly, the father’s employment situation has been far less secure than he had initially indicated. While he has recently commenced a new job, this is his third position within the year. It is not a situation where the father would be giving up steady employment in order to return to Adelaide.
To Mr Geyer’s credit, he intends working full time and has proven himself able to obtain employment, even if he has struggled to retain those positions across this year. I consider he would be equally able to obtain equivalent semi-skilled employment in Adelaide as in (omitted).
The father prefers the lifestyle and activities in (omitted). He says that he feels safer there but I have already rejected the suggestion that it is not safe for Mr Geyer to return to Adelaide. While the suburban experience is different to the lifestyle available in a regional centre such as (omitted), I do not consider this is a relevant consideration, given X’s young age.
Importantly, the father enjoys a strong ongoing relationship with his extended family in Adelaide, including his mother, brother and sisters. He has maintained some level of social network in Adelaide, as indicated by his recent participation in a (omitted) Childcare event. These relationships would no doubt provide a level of emotional support for the father and his family as they make the transition back to Adelaide.
Taking all of those factors into account, I conclude that it is reasonably practicable for the father to return with X to Adelaide, to ensure X can live equally with both of his parents.
Having reached this conclusion, I acknowledge that Mr Geyer will require some time to make the necessary arrangements. The timeframe needs to be realistic, particularly bearing in mind that he and Ms H are expecting another child in March 2014. At the same time, X’s care arrangements and best interests remain my primary consideration.
I conclude that a period of some three months would see X returning to Adelaide by February 2014. I consider this is a reasonable and realistic timeframe. Obviously, it would be preferable for X to be living in Adelaide by the start of the new school year, but given he is only attending kindergarten, there is no great concern if he misses a week or two of the school term.
Until such time as the father and X return to live in Adelaide, the current care arrangements will continue. X is due to spend three weeks in the mother’s care in December 2013/January 2014. Given X is moving towards a long term shared care arrangement, I will order that X spend a further two weeks with his mother in early February 2014.
I appreciate that the father will be disappointed with the Court’s decision but I am satisfied this outcome represents X’s best interests in the long term. Ultimately Mr Geyer is entitled to live where he chooses, but he is not entitled to impose that outcome upon X when the Court has determined that it is not in X’s best interests.
In the event the father does not return to Adelaide, then the Court orders for equal time cannot be implemented. X’s future best interests and long term emotional welfare will be compromised if this were to occur. I take this possibility into account and must consider which parent should have primary care of X in the event Mr Geyer remains in (omitted).
In the event Mr Geyer chooses not to return to Adelaide, I conclude that X should return to reside in Adelaide with his mother, nonetheless. I come to this conclusion taking into account the following considerations:
·Mr Geyer has a demonstrated history of failing to facilitate X’s relationship with his mother, except when under the full scrutiny of the Court, through this trial process;
·By contrast, Ms Barnham has demonstrated her capacity to support Y’s relationship with his father Mr J. I am confident she will likewise value X’s right to an ongoing relationship with his father;
·There would still be extensive travel for X when he spends time with his father in (omitted). However Mr Geyer also has the option of spending time with X in Adelaide. The father has family and friends in Adelaide with whom he could stay for an occasional weekend. The mother has no equivalent social network in (omitted);
·While Ms P was concerned X would suffer considerable emotional upheaval if removed from his primary caregiver, X will be 12 months older in February 2014, compared with when Ms P conducted the family assessment. X has established a meaningful and secure relationship with his mother across the intervening year and would therefore be better able to cope with this disruption, should his father choose to stay in (omitted);
·A decision to remain in (omitted) again calls into question the father’s capacity to make decisions that are in X’s best interests, in the same manner that his original move to (omitted) was not in X’s best interests;
·If X lives in Adelaide he will be able to maintain a relationship with his extended paternal family, who would provide a supportive environment in which X’s bond with his father will be valued and encouraged. No similar environment is available to support X’s relationship with his mother, should X remain living in (omitted).
The Court hopes and assumes that both parents will be living in Adelaide by February 2014 and that X will be living week about with his father and mother. I will make parenting orders to deal with parental communication, handover arrangements and other general issues. However, it is also appropriate to clarify X’s care arrangements in the event the father remains in (omitted).
X will be commencing kindergarten in 2014 and clearly he cannot continue to spend multiple weeks away from the town where he is living. Taking into account the distance between Adelaide and (omitted), regular midterm weekend visits are not practicable, unless on a long weekend. Even a regime of monthly visits is unrealistic, given X would spend approximately 10 hours in transit across the weekend before resuming the school week on Monday morning.
I will order that X spend time with the father on any long weekends that fall during school term time together with extended time during school holiday periods. It may be that some school terms do not include a long weekend in which case I will order that X miss one day of school to enable him to spend a three day weekend with his father in (omitted). I do not consider this arrangement will unduly compromise X’s educational progress. Handovers should continue to take place at a midway point such as (omitted) and the mother will need to ensure that she is able to arrange transport on each occasion.
As discussed, X should also spend additional time with his father in the event Mr Geyer travels to Adelaide. However, as it may be difficult for the father to travel to Adelaide regularly, I conclude that it will be in X’s interests to also spend time with his extended paternal family in Adelaide. While there is a considerable degree of hostility between the mother and the paternal grandmother, the Court expects that Ms Barnham will be able to focus on X’s best interests and put those concerns to one side.
I will order that X spend time with his paternal grandmother and extended family at least once a month at times to be agreed. It would seem sensible for such visits to coincide with Y’s weekend time with Mr J, to maximise X and Y’s weekend time together within the mother’s household.
While the parties have struggled with telephone communication, X should be able to speak to his father (and his stepmother and siblings) regularly by telephone or Skype, if available. Ms Barnham will need to ensure that she has a reliable telephone to receive the father’s calls.
Other parenting orders
Neither party addressed the issue of school holiday time or special occasions. While the Court hopes the parties will be able to negotiate these matters, it is in X’s best interests to provide some structure, to avoid the possibility of further conflict. I will also set out orders in relation to communication between the parents. Obviously both parents should be notified in the event X suffers a medical emergency, or is hospitalised. Both parents should be properly listed as a point of contact at X’s kindergarten, school and with his relevant GP, whether or not X is living in week about care.
X is due to commence kindergarten. Given that the father is not required to return to Adelaide before the commencement of the school year, he may not know precisely where he will be living and it may be difficult for the parties to agree upon X’s kindergarten. I will put in place orders to deal with this situation.
The parties need to remember that X loves both of his parents and it is distressing for him to hear his parents and extended family criticise or abuse each other. Mr Geyer and Ms Barnham need to develop more respectful communication with each other and the Court orders will clarify their responsibilities in that regard.
I do not consider it is necessary to make orders about how X refers to Ms H. It is hardly surprising that X came to call Ms H ‘mum’ across the time that his mother was absent from his life. I have no doubt that X now has a very clear sense that Ms Barnham is his mother, but it is unrealistic to expect that he will not also call Ms H ‘mum’ at times, given that his stepsiblings will be calling her ‘mum’.
Rather than put in place injunctive orders that are virtually impossible to enforce and which may be an emotional burden for X, Ms Barnham should feel confident that her parenting role in her son’s life is now properly acknowledged in these orders.
I am satisfied that it is appropriate to restrain both parties from allowing anyone to smoke inside their home while X is in their care. I will also restrain both parents from consuming illegal substances or excessive alcohol while X is in their care, to ensure they are able to properly focus on their parental responsibilities.
Both parents will benefit from attending the Kids Are First parenting programme, or a similar post separation parenting programme. In the event the parties are unable to resolve any specific issues in relation to X’s long term care then it is appropriate that they attend family dispute resolution through a community based organisation such as a Family Relationships Centre, to assist them in reaching an appropriate, child focussed solution.
As these orders provide for X to live equally with each parent this should be reflected in the parties’ Centrelink entitlements and accordingly I have not ordered any further financial adjustment between the parties.
I now make orders as published at the commencement of these Reasons.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 21 November 2013
[12] Mazorski & Albright (2007) 37 FamLR 518 at para.26
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Family Law
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