Barningham and Barningham
[2011] FMCAfam 1420
•19 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARNINGHAM & BARNINGHAM | [2011] FMCAfam 1420 |
| FAMILY LAW – Parenting – relocation – consideration of child’s views. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC |
| AMS and AIF (1999) 24 Fam LR 756 MRR v GR [2010] HCA 4 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Barker (2008) 37 Fam LR 461 Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MR BARNINGHAM |
| Respondent: | MS BARNINGHAM |
| File Number: | LEC 115 of 2009 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 7 & 8 November 2011 |
| Date of Last Submission: | 8 November 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 19 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | N/A |
| Counsel for the Respondent: | Mr Burridge |
| Solicitors for the Respondent: | Herbert Geer Lawyers |
ORDERS
That all previous Orders and Parenting Plans be discharged.
That except as otherwise stated, the father and the mother are to have equal shared parental responsibility for the child [X] born [in] 2001 (“the child”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as to the major long term issues for the child as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 3:
(a)The mother shall be responsible for the daily care, welfare and development of the child when she is in her care;
(b)The father shall be responsible for the daily care, welfare and development of the child when she is in his care.
That the mother and father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone numbers;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent.
That the parents authorise, by this Order, the schools attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the child is to live with, spend time with and/or communicate with her parents as agreed between the parents and if they fail to agree, as follows:
(a)The child shall live with the mother during school terms at all times, other than, in the event that the father provides no less than two weeks notice in writing, he may spend time with the child in the area in which she lives;
(b)The child shall live with her parents for school holiday periods, being New South Wales gazetted school holidays as follows:
(i)With the father for the whole of the Autumn (Term 1), Winter (Term 2) and Spring (Term 3) school holidays in each year;
(ii)With the mother for the first half of the Summer (Term 4) school holidays in odd numbered years and with the father in even numbered years;
(iii)With the father for the second half of the Summer (Term 4) school holidays in odd numbered years and with the mother in even numbered years;
(iv)For the purpose of these Orders:
1. school holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
2. when a parent’s time falls in the first half of the holidays the time shall commence from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays;
3. when a parent’s time falls in the second half of the holidays the time shall commence from 5:00pm on the day calculated to represent half of the holidays when time shall end at 9:00am on the day the school term commences;
That the child shall be at liberty to communicate with her parents by telephone and any other means, including but not limited to all forms of electronic communication, at all reasonable times.
That the mother and the father shall be at liberty to communicate with the child by telephone and any other means, including but not limited to all forms of electronic communication, at all reasonable times.
That the father shall purchase at his own expense a return airfare for the child to fly on the day the child is to commence living with him from either [1] airport or [2] airport, whichever has the flights on the particular day, to Melbourne airport and for the child to fly on the day the child is to conclude living with him from Melbourne airport to either [1] airport or [2] airport, whichever has a flight on that particular day, and provide the mother details of the airfare(s) purchased, the departure and arrival location and time of each no less than seven (7) days prior to the intended departure.
That the mother and father will ensure that the child is accompanied at all times prior to and after each flight and that the child will be delivered and picked up on time.
That if the father is unable to have the child in his care pursuant to these orders at any time, then the child shall spend such time with the mother.
That if the father’s family wish to spend time with the child then upon reasonable notice being given to the mother they be allowed to spend reasonable time with the child as agreed.
That the process to be used for resolving future disputes about the child or terms or operation of these Orders shall be as follows:
(a)The Family Relationship Centre shall be appointed as Family Dispute Resolution Practitioner;
(b)The parents shall consult with the Family Dispute Resolution Practitioner at the Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.
IT IS NOTED that publication of this judgment under the pseudonym Barningham & Barningham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
LEC 115 of 2009
| MR BARNINGHAM |
Applicant
And
| MS BARNINGHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of [X] who is almost 11 years of age care deeply for her but disagree about where she should live. They separated when their daughter was 3 years old. Between 2003 and 2009 she was cared for by both parents in an equal time shared care arrangement in accordance with orders that were made by consent in June 2003 in the Local Court at [L].
In April 2009 the father moved from Northern New South Wales to live in [K], Victoria. He would like [X] to live with him there. Her mother however would like [X] to remain living with her in [M].
Because of their disagreement about where [X] should live the father filed an Initiating Application on 5 March 2009 seeking the setting aside of the 2003 orders and providing for [X] to live with him in [K]. Orders were made on 17 December 2009 after a contested hearing before Demack FM providing for [X] to live primarily with her mother during school terms and half of the Winter and Summer school holidays. The child was to live with the father for the whole of the school holidays at the end of Terms 1 and 3 and half of the other holidays. There was also provision for the father to spend time with the child during school term if he gave notice to the mother. The parties were to equally share parental responsibility for the child.
The father appealed that decision and on 3 February 2011 the Full Court of the Family Court of Australia upheld his appeal and remitted the matter back to this court for rehearing. The orders of Demack FM have continued in place pending my determination.
Applications
The father in his application sought orders that were styled similar to those ordered by Demack FM but provided for the child to live primarily with him. During the hearing he tendered a document[1] outlining some amendments to his proposal. In effect they provided for [X] to live primarily with him in [K] for the 2012 school year with the reversal of the orders of Demack FM other than the payment of airfares which he proposed that he would continue to pay. He sought in his amended position to build in a mechanism whereby the parties would review arrangements annually so that they could discuss [X]’s wishes. He suggested that on an Anniversary to be determined by the Court [X]’s living arrangements could be reviewed by discussion between the parents in a mediation setting if necessary. He suggested that this review could be initiated by either of the parents or if the child indicated that she might like to change her living arrangements.
[1] Exhibit F1
The mother sought a continuation of the 2009 orders although she was open to the child spending an extra week with the father during the winter school holidays.
Evidence
The father relied upon his:
a)Initiating Application filed 5 March 2009;
b)His affidavits filed:
i)5 March 2009;
ii)2 October 2009;
iii)16 October 2009;
iv)31 March 2011; and
v)1 November 2011.
The mother relied upon her:
a)Amended response filed 1 October 2009;
b)Her affidavits filed:
i)25 March 2009;
ii)1 October 2009;
iii)16 October 2009; and
iv)6 May 2011.
Transcripts of the evidence of the parties during the 2009 hearing were tendered[2] which shortened the length of the hearing.
[2] Exhibits C1 for the father’s evidence and C2 for the mother’s evidence
Both parties were cross-examined.
Ms B a Regulation 7 Family Consultant and Psychologist prepared 2 family reports in this matter. They were released on 18 May 2009 and 16 May 2011. Ms B gave evidence and was cross-examined.
No other witnesses were called.
As well as the transcripts I have referred to the other exhibits included copies of email correspondence between the parties[3] and a copy of an Incident Report signed by a police officer.[4]
[3] Exhibit M1
[4] Exhibit C3
I have had regard to all of this evidence and the Reasons for Judgment of the Full Court. I have not had regard to the decision of Demack FM.
Both parties presented as honest and forthright witnesses. Where their evidence differed I am of the view that their recollections are honestly held and have been influenced by the passing of time, the dispute and their perceptions of each other.
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is 49 years of age. He lives with his partner Ms M in [K], Victoria and works as an [omitted]. Ms M has 3 children: [A]; [B]; and [C]. [A] is now an adult and lives in [omitted] with her partner. [B] and [C] who are of a similar age to [X] live with the father and their mother.
The mother is 49 years of age. She lives in [M] and is [occupation omitted] there. She has 2 children from another relationship: [Y] and [Z] who are twins and now 20 years of age. Although Mr Barningham was not the biological father of [Y] and [Z] he has been the father figure in their lives since they were born. [Z] lives at the [business] and helps her mother run it. [Y] lives with Mr Barningham. The mother recently separated from her partner Mr S with whom she had been in a relationship since 2005.
The parties commenced their relationship in around 1985 and had a period of separation around 1990. It was during this period of separation that the mother became pregnant with [Y] and [Z]. The parties however reconciled and were married in 1993. They separated in 2003 and were divorced on 6 July 2004.
Although the parties formed their relationship whilst living in [omitted] they travelled around Australia for about 5 years prior to their initial separation. They eventually moved to [T] in Northern New South Wales. When they separated in 2003 the father remained on the couple’s property at [T] and the mother moved to [M] which is a small town near by.
The father moved to Victoria in 2009. Although the father’s reason for moving to Victoria was an issue between the parties in my view it is no longer relevant as he has been living there for more than 2½ years. He has no intention of returning to live close by to where the mother lives.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining their outcome the court must consider the best interests of the child as the paramount consideration.[5] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [6]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[5] Section 60CA
[6] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[7] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[7] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[9]
[8] Section 61DA
[9] Section 61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[10] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[11] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[12] A major long-term issue in relation to a child means an issue:
[10] Section 61B
[11] Section 61C
[12] Section 65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[13]
[13] Section 4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[14] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[15]
[14] Section 65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[15] Section 65DAA(2)(c) & (d)
This legislative approach must be followed in all parenting cases.[16] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[17] In Taylor v Barker[18] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[16] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[17] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[18] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[19]
[19] ibid at page 480
Presumption of Equal Shared Parental Responsibility
The evidence clearly shows that the parties have had difficulty communicating and there are some significant issues as to trust between them. However I was impressed by the mother’s presentation as a person who notwithstanding her frustration in the father’s criticisms appeared to recognise his personality and was amenable to working with him to make decisions for [X]. Likewise although the father does not appear to appreciate the extent of his criticism of the mother and its impact upon her, I am persuaded that he is also committed to working with the mother to co-parent [X]. I am confident that although there have been significant communication difficulties in the past they will be able to work together to make decisions for [X]’s long term welfare. Given Mr S is no longer in a relationship with the mother there is some potential for the animosity or difficulties the parents have experienced in communicating abating.
When I take these matters into account I am satisfied that it would be in this child’s best interests for the parents to continue to share their parental responsibility for [X]. I am not satisfied there is any evidence that warrants the displacement of the presumption. Accordingly I will make an order that the parties share jointly their parental responsibility for [X].
Consideration of Equal Time or Substantial and Significant Time
In determining what is in a child’s best interests I will consider the factors set out in s.60CC. Having applied the presumption of equal shared parental responsibility and indicating that I was of the view that it would be in the child’s best interest to make an order accordingly I am required to give consideration to the child spending equal time or substantial and significant time with each of the parents. I am of the view that because of the significant geographical distance between the parties it would not be reasonably practicable for this child to live in an equal time arrangement with both parents and a substantial and significant time arrangement would also be impracticable for the same reason.
Having said that, if the parties had lived closer together this may well have been a case where I would find that it is in the child’s best interest to resume the shared care arrangement that existed for some 6 years. Notwithstanding the significant dispute between the parties currently I am satisfied that during that period they were able to effectively co-parent and that this child would benefit by such an arrangement were it not for the parties living in different States.
Determining the best interests of the child – the s.60CC considerations
The court is required to determine a child’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors.
The child’s relationships
S.60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents;
S.60CC(3)(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
S.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
S.60CC(3)(d) The likely effect of any changes in the child’s circumstance, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I am satisfied this child has a close and loving relationship with both parents. In her first report Ms B observed the child to have significant attachments to both her parents and did not observe any signs of an insecure attachment to either of them. This positive observation at that time is not surprising as for many years leading up to just prior to the preparation of that report the child had been living in an equal shared care arrangement with each parent.
When the second report was prepared in May 2011 [X] was observed to have equally strong attachments to both parents but Ms B opined that [X]’s bond with her mother had become stronger since the earlier report. Again this is not surprising given [X] had been living primarily with the mother during the period between the two reports. The mother also indicated that she was now spending more time with the child as she only worked during school hours, Wednesday nights and some time on Friday nights. Although [X] gave the report writer different days on which the mother worked she confirmed that she spends more time with her mother.
The father’s move to Victoria has made it difficult for this child to continue her relationship with her parents in the same way that she experienced it prior to 2009. The move however does not appear to have detrimentally affected her relationships. She was 8 years of age by the time the father moved and by then her attachments would have been secure and her child/parent relationships would have been strongly developed.
Although I have referred to the effect of time spent between child and parent in developing and maintaining the relationships it should always be remembered that it is the quality of the relationships that is important to both child and parent. With respect I adopt the view of Brown J in Mazorski v Albright[20] where her Honour said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[20] (2008) 37 Fam LR 518 at 526 [26]
I remain confident that this child will continue to have a meaningful relationship with both of her parents regardless of with whom she is to primarily live as the grounding of those relationships was well and truly secured before the father moved interstate. Although the child would miss the mother if she went to live primarily with her father, just as she missed her father when he moved away, I am satisfied both parents would continue to provide positive and supportive care to the child such that she would maintain her strong relationships with them.
The report writer formed the view that [X] had a good relationship with Ms M which has been sustained between the two reports. [X]’s relationship with her sisters was a little strained at the time of the first report but this appeared to have changed at least in relation to [Z]. From her interviews with the mother and [X] for the second report, she concluded the child did not have a strong relationship with Mr S as he did not involve himself in parenting of her. She also came to the conclusion that [X] gets on well and enjoys her time with Ms M’s children. There being no evidence to the contrary I accept the conclusions drawn by the report writer.
[X] told the family report writer that she had made new friends at school. The father has been, and remains, concerned that [X] is isolated living with her mother. Childhood socialisation through friendships and sports are important to him. He appeared to place more emphasis on the benefits to the child by taking part in extra-curricular activities and developing friendships than the mother. I was not persuaded however that the child is missing out by living in a small town. She presented to the report writer as a happy child enjoying her new friendships and she continued to be friends with [name omitted] from the same town. They sometimes had sleepovers. Whilst I am satisfied the father would be more diligent in promoting the child’s involvement in sport and friendships than the mother I am not persuaded the child is isolated to the extent the father fears whilst with the mother.
It was urged upon me that the father may not be open to promoting the child’s relationship with the mother because he remains critical of her parenting. There is no doubt he has been critical of her and to her. I also have no doubt the child is aware of this criticism. This has been long standing. Notwithstanding this the child continues to have a positive relationship with both parents. Either the child is resilient to the criticism or the father has not overly involved the child in his critical assessment of the mother.
With her father now living in Victoria for over 2 years [X] has had an opportunity to get used to the current arrangement. She will find a change now to be difficult as she is used to living with her mother on her own – especially since [Z] has moved out. She would experience a sense of loss in being away from her mother if she lived primarily with her father although I am confident she would over time get used to the arrangement just as she had to when her father moved to Victoria.
Risk of harm
S.60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if:
(i) The order is a final order;
(ii) The making of the order was contested by a person
In 2008 there was an altercation between the father, Ms M and Mr S. The evidence suggests that the child did not witness this incident. Whilst this incident was serious and inappropriate it is now historic. There are no recent confrontations of this nature. I also note that Mr S and the mother have recently separated.
There are no family violence orders extant.
The father raises an issue as to the mother’s supervision of the child which I will consider when I address parental capacity as I do not consider the concern raised by him to amount to neglect.
The child’s views
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child’s views have shifted over time. In the first family report she was recorded as wanting to live with her father in Victoria but by the second report she had got used to the current arrangement and wanted to remain living primarily with her mother. She thought she might like to re-consider her living arrangements after she completed year 7. The father maintained that the child wanted to live with him.
The report writer concluded that [X] is emotionally mature for her age.
In the first report [X] is recorded as having told the report writer that she wished the father was not moving away as she would like to live with both her parents. She wanted to go with him to have “a better life”. The father denied telling the child that she would have a better life if she lived with him. Whilst I accept his evidence I find that he probably conveyed that message to her by showing her the property he eventually bought before he discussed the potential move with her mother. He had explained to her that she would be able to take part in sports and have an extended family and friends. In hindsight it is easy to say that the father should have handled this better. I do not find that he attempted to manipulate the child’s feelings or influence her to the point of enticing her to choose living with him over her mother. On the other hand by painting the positive picture of life in [K] he achieved just that. It is no wonder she expressed a wish to live with her father when she was presented with the possibility of a “better life” with him.
At this point in time the mother was working more hours at the [business] than she is currently. Consequently she was less available for [X] and by what she told the report writer in 2009 [X] was feeling this loss. She compared her father’s availability to her in helping her with her homework and by playing games with her. It is not surprising she would have felt closer to her father at that point in time even though she still loved both her parents equally.
Time and lived experience can be great levellers. By the second report [X] had become used to and enjoyed the travel to visit her father, Ms M and the other children in their household. Her relationship with [Z] had improved and the mother was more available to her. New friendships at school had formed. She said she did not want to go down and live with her father any more and she was happy as things are.
[X] told the report writer that she had had a discussion with her mother about staying another year in New South Wales before spending a year in Victoria and then maybe alternating each year. She thought that would make her parents happy. The report writer formed the view that the child was an articulate and emotionally mature child who appeared to take on the concerns of others particularly her parents who she worried about offending or upsetting. Although the report writer could not be certain if the child raising the alternate year scenario with her was an attempt at being fair or to avoid upsetting her parents or an expression of a desire to spend more time with her father she was of the view that at the time the report was prepared the child did not want to leave [M] to live with her father.
Although the report writer formed the view that neither parent was deliberately manipulating the child emotionally in an attempt to influence her to live with them she came to the view that each of the parents may be responsible for the child taking on their concerns and feeling responsible for her parents’ emotional distress. She recommended that the parents respect the child’s wishes to remain living in [M] at this stage. In the event that the child wanted to live with her father in the future any decision should be made without placing pressure on her.
Although the father asserted the child wanted to live with him, and I accept she has told him that, I am satisfied that it is appropriate to give significant weight to her views as expressed to the report writer. In doing so I take into account that those views have changed over time and may change again. At this stage in her life the child wishes to live primarily with her mother although if the parties were living in close proximity to each other she would prefer to live with both parents equally.
Although the father’s proposal included a mechanism to reconsider the child’s living arrangements and take into account her views in the future, I am concerned that putting into place a formal mechanism for review on a regular date may perpetuate the child’s sense of responsibility towards her parents and lead her to feel that she should make a decision that her parents should make co-operatively. The issue would be constantly on everyone’s mind particularly the child’s. This in my view is not in her best interests.
Practical difficulties
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no doubt the father’s move to Victoria has created difficulties in terms of organising travel between the two homes and the corresponding expense of flights. Fortunately the child enjoys the travel. The father has agreed to continue to bear the costs of the flights.
There is no evidence of problems arising in relation to the implementation of the 2009 orders and I am confident the child will be able to move between the two homes without any major difficulties in the future regardless of with whom she is to live.
A significant issue however is any move to live with the father would involve the child changing schools. It appears that over the last couple of years the child has developed more friendships at school. The evidence suggests that this may not have been easy for her initially. A change in school will disrupt her current friendships and may take some time for her to adjust.
[X] is also about to embark on her last year of primary school. The father felt that this would be a good time for her to move to [K] and experience life there and get to know her local school before deciding if she wanted to return to [M] to start high school or remain in Victoria and commence high school there. Whilst I understand the logic of the father’s argument I have not come to the same conclusion. I am of the view that she would benefit by having a sense of stability in completing her primary school years in her current location.
Parental capacity and responsibility
S.60CC(3)(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
S.60CC(4) The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
The father has been very critical of the mother’s parenting. He has criticised her for not providing clean uniforms for the child, not ensuring the child washes her teeth or showers, not ensuring the child saw a doctor when necessary and not being available for the child. He was particularly critical of a lack of supervision and a disinterest in promoting the child’s involvement in extra-curricular activities and friendships. The mother has driven with the child whilst she has been unlicensed and allowed the older children to drive the child. The mother is yet to obtain her driver’s licence. This has been particularly concerning for the father.
The father presented as someone who did not hide his feelings. To use an oft quoted phrase he called “a spade a spade”. The parenting styles of each parent differ significantly such that the father would view the mother as being too laid back in her care of [X]. Her parenting would not fit comfortably with his style of organised and structured parenting.
The father gave evidence of receiving a phone call from [X] late one night in April 2010. She phoned from a public phone box across the road from the [business]. The father was concerned that she was out at night unsupervised. He was not happy with the response he received from Mr S when he phoned to see what was happening. The father phoned the police. The mother considered this to be an unnecessary over reaction by the father. Her evidence differed as to the time the child phoned the father but there is no doubt the child had left her home of a night to play in the park opposite the [business] and was not being effectively supervised. I preferred the father’s evidence as to the time of night but no matter what time it was the issue of supervision is still important.
Given the lack of trust between the father and the mother and the father’s less laid back style of parenting it is no wonder he was concerned for the child’s welfare. Whilst risks to children in small country towns may not be as high as in cities there was potential for this child’s safety to be compromised. The father was right to be concerned. His handling of that concern was consistent with his views on parenting and fuelled by his lack of trust in the mother. In hindsight it may have been an overreaction to call the police but his concern in my view was warranted.
Although the child was potentially at risk on that occasion there is no evidence that this sort of event was a regular occurrence. Overall I am not persuaded the mother generally leaves the child to her own devices.
The mother admitted to driving whilst disqualified but gave evidence of not intending to do so again. I accept her assurances in that regard. She intends to obtain her driver’s licence.
I am not persuaded the mother fails to regularly wash the child’s clothes or fails to ensure the child maintains her hygiene. The mother has been more available to the child since she has reduced her hours in the [business].
I accept the submission on behalf of the mother that the father may lack insight into the emotional needs of the child in his inability to refrain from criticising the mother. There is no doubt the father remains critical of the mother and I doubt he will ever be able to view her parenting in any other light. Whilst I do not consider his criticism of her has adversely affected the child’s relationship with the mother or him there is potential for the child to be adversely affected if she takes on board that criticism either expressly made or by implication.
Notwithstanding there has been some validity to the father’s criticism of the mother’s supervision of the child and her driving without a licence he has not always been objective about the mother’s parenting. Overall I am satisfied that both parents have the capacity and have been exercising their responsibility to provide for the child’s needs. Neither parent should be preferred over the other in this regard.
Background issues
S.60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
S.60CC(3)(h) if the child is an Aboriginal child or Torres Strait Islander child
The child has been described by the report writer as a mature child for her age. Her close relationship with her mother means she is able to discuss issues with her as she approaches puberty. I am also confident that if she was in her father’s house she would be able to talk to Ms M about such issues.
Both parents have much to offer [X]. Clearly they have done so as [X] told the family report writer that her mum and her dad are the two most special people to her in the whole world. She continues to experience and enjoy the lifestyle of living in a small country town whilst with her mother as well as the rural lifestyle when with her father.
The father argued that his lifestyle had many positives for the child. I agree. The other children in the household would be great company for the child. She would engage more in sport and extra-curricular activities in the father’s household. Her involvement with the animals at his place would also afford her an opportunity to develop an understanding of being responsible for the care of animals. Notwithstanding all these positives in the father’s household when I consider lifestyles offered in the mother’s home and in the small country town and the father’s home and rural locale I do not consider one outweighs the other for this child at this point in her life.
Limiting further proceedings
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties have experienced this litigation for nearly 3 years. They presented as worn out by it. The child clearly presented to the family report writer as affected by the ongoing dispute. I am concerned that if I were to accede to the father’s request for an annual review mechanism there is potential for further proceedings to be instituted if either parent became unhappy with the outcome of that review. It would also continue in my view a sense of uncertainty for the future which would not be beneficial for all concerned.
Conclusion
Whilst this case has been finely balanced given both parents have much to offer this child when I weigh all of the factors considered above I am persuaded the child should remain living primarily with the mother in [M]. The mother was open for the child spending the whole of the school holidays during the year with the father which would be an increase in time as the current orders provide for the child to spend half of the winter holidays with each parent. I am persuaded that the child would benefit in spending that extra time with the father. It is important however for a child to spend some holiday time with the primary carer and for that reason I would maintain the half school holidays during the summer break.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Date: 19 December 2011
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