Barton and Michaels

[2014] FCCA 2864

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTON & MICHAELS [2014] FCCA 2864

Catchwords:
FAMILY LAW – Children – equal shared parental responsibility – relocation – family violence – child to remain in mother’s primary care – impact on mother’s psychological health if required to remain in Adelaide – mother permitted to relocate to Sydney.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC

B & B (1997) FLC 92-755
AMS v AIF; AIF v AMS (1999) FLC 92-852
Goode & Goode [2006] FamCA 1346
Mazorski & Albright (2007) 37 FamLR 518
Morgan & Miles (2007) FLC 93-343
McCall & Clark (2009) FLC 93-405

Applicant: MS BARTON

Respondent: MR MICHAELS

File Number: ADC 2058 of 2013

Judgment of: Judge Kelly

Hearing dates: 1, 2, 3 & 15 October 2014

Date of Last Submission: 15 October 2014

Delivered at: Adelaide

Delivered on: 12 December 2014

REPRESENTATION

Counsel for the Applicant: Ms H Tinning

Solicitors for the Applicant: Peter Deegan

Counsel for the Respondent: Ms A Horvat

Solicitors for the Respondent: Christopher Ganzis & Co

ORDERS

1. The parties share equally in parental responsibility for the child [X] born [omitted] 2009.

2. The child [X] live with the mother.

3. The mother is permitted to relocate the child’s primary place of residence to Sydney, New South Wales on or after 14 January 2015.

4. Prior to [X] residing in New South Wales she shall spend time with the father as follows:

   (a)on Sunday 14 December and Sunday 21 December 2014 from 9.00am until 6.00pm;

   (b)thereafter each weekend from 10.00am Saturday until 3.00pm Sunday, commencing Saturday 27 December 2014.

5. Upon [X] moving to live in New South Wales she shall spend time with the father in accordance with the following orders.

6. During 2015, the child [X] spend time with the father as follows:

   (a)on one weekend each school term to take place in Adelaide from a time to be agreed on Saturday morning until a time to be agreed on late Sunday afternoon, dependent upon flight times between Sydney and Adelaide;

   (b)on one weekend each school term to take place in Sydney from approximately 10.00am Saturday until approximately 5.00pm Sunday;

   (c)for a period of three days and two nights during the April 2015 and July 2015 school holidays, to take place in Adelaide;

   (d)for a period of four days and three nights in the September/October 2015 school holidays, to take place in Adelaide with handovers to occur at a time to be agreed on the first morning and late on the last afternoon;

   (e)for two periods of five days and four nights during the Christmas 2015 school holiday period to take place in Adelaide with handovers to occur at a time to be agreed on the first morning and late on the last afternoon;

   (f)at such other times as may be agreed between the parties.

7. During 2016 the child [X] shall spend time with the father as follows:

   (a)on one weekend each school term to take place in Adelaide from a time to be agreed on Friday evening until a time to be agreed late Sunday afternoon (or Monday afternoon in the event of a long weekend), dependent upon flight times between Sydney and Adelaide;

   (b)on one weekend each school term to take place in Sydney from a time to be agreed on Friday afternoon/evening until a time to be agreed late Sunday afternoon (or Monday afternoon in the event of a long weekend);

   (c)for a period of eight days and seven nights during each short school holiday period with handovers to occur at a time to be agreed on the first morning and late on the last afternoon;

   (d)for two periods of eight days and seven nights during the Christmas 2016 school holiday period with handovers to occur at a time to be agreed on the first morning and late on the last afternoon;

   (e)at such other times as may be agreed between the parties.

8. During 2017 and ongoing, the child [X] shall spend time with her father as follows:

   (a)on one weekend each school term to take place in Adelaide from a time to be agreed on Friday afternoon/evening until a time to be agreed on late Sunday afternoon (or Monday afternoon in the event of a long weekend), dependent upon flight times between Sydney and Adelaide;

   (b)on one weekend each school term to take place in Sydney from a time to be agreed on Friday afternoon/evening until approximately 5.00pm on Sunday (or Monday afternoon in the event of a long weekend);

   (c)for a period of nine days and eight nights during each of the short school holiday periods with all such visits to take place in Adelaide and with handovers to occur at a time to be agreed on the first morning and the last afternoon ;

   (d)for one half of the Christmas school holiday period at times to be agreed between the parties with all such visits to take place in Adelaide and in default of agreement to take place as follows:

   (i)in 2017 and each alternate year thereafter for a period of three weeks from a time to be agreed on the first Saturday until a time to be agreed on the fourth Sunday of the school holiday; and

   (ii)in 2018 and each alternate year thereafter for a period of three weeks from a time to be agreed on the fourth Saturday until a time to be agreed on the last Sunday of the school holidays;

   (e)at such other times as may be agreed between the parties.

Travel arrangements

1. [X]’s time in the father’s care during school terms shall take place on dates to be nominated by the father, provided he gives the mother written notice of the proposed dates at least six weeks prior, to ensure flight availability.

2. The parties ensure that all flights are booked to depart at a reasonable hour, taking into account each party’s travel to and from the relevant airport.

3. Details of all flight bookings are to be provided to the other parent within 48 hours of the booking being made, such notice to occur by email or text message.

4. Handovers take place within the Sydney or Adelaide airports where appropriate and otherwise at a mutually convenient location to be agreed between the parties.

5. For the purposes of travel in the 2015 and 2016 calendar years, the following orders will apply:

   (a)the father will meet the costs of all travel and accommodation for his time spent with [X] in Sydney;

   (b)the mother will meet the costs associated with the travel for time spent between [X] and the father in Adelaide, including the cost of flights and accommodation for any accompanying person if required;

   (c)the mother shall book all airfares for [X] to travel between Sydney and Adelaide and return and the father shall make all bookings for his travel between Adelaide and Sydney and return.

6. For the purposes of travel in 2017 and ongoing, the following shall apply:

   (a)the mother shall make all bookings and meet the costs associated with [X]’s travel between Sydney and Adelaide during the school terms and during the June/July and Christmas school holidays each year;  and

   (b)the father shall make all bookings and meet the costs associated with his travel to spend time with [X] in Sydney and for [X]’s travel between Sydney and Adelaide during the April and September/October school holidays each year.

Electronic communication

1. [X] communicate with the father by telephone, Skype or Facetime as follows:

   (a)on at least one occasion each week at a time to be agreed between the parties and in default of agreement each Sunday evening at 6.00pm (New South Wales time);

   (b)on special occasions, including [X]’s birthday, at a time to be agreed between the parties and in default of agreement at 6.00pm (New South Wales time);

Other parenting orders

1. The father is restrained from consuming alcohol for a period of 24 hours prior to and during all periods of time that the child [X] is in his care.

2. For a period of six months the father undertake a breath analysis Alcotest at the commencement and conclusion of each period of time [X] spends in his care, to be administered by the wife or her nominee attending at the handover.

3. The father enrol in and complete the Kids-Are-First post separation parenting programme during 2015, in the event he has not already done so.

4. The mother ensure that she and members of her family speak politely and respectfully about the father and his extended family in the presence of [X].

5. The father ensure that he and members of his family speak politely and respectfully about the mother and her extended family in the presence of [X].

6. The mother keep the father informed in relation to [X]’s education and general welfare, including any significant health issues that may arise.

7. Each party notify the other immediately in the event [X] suffers a serious illness or accident, or is hospitalised for any reason.

8. All parenting applications are dismissed as finalised.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2058 of 2013

MS BARTON

Applicant

And

MR MICHAELS

Respondent

REASONS FOR JUDGMENT

Introduction

1. [X] is just five years old.  Her parents separated in March 2013 and [X] has lived in her mother’s primary care since that time.  While both parties agree that [X] should remain living in her mother’s primary care, the mother is opposed to [X] spending any extended overnight time in her father’s care.  In addition, she wants to relocate with [X] to live in Sydney, where her family now reside.  The father proposes that [X] continue living in Adelaide with the mother and commence spending regular overnight time in his care.

2. The parties remain unable to resolve their parenting dispute and it now falls to the Court to determine the parenting orders that will be in [X]’s best interests.

Background

1. The mother was born in India in 1979 and the father was born in India in 1980.  The father immigrated to Australia in 1999 together with members of his extended family.  The parties’ marriage was arranged through their extended family and the wedding ceremony occurred on [omitted] 2005 in New Delhi.  The father returned to Australia one month later and the mother followed in August 2005.

2. The parties lived with the extended paternal family and shared a house with the paternal grandparents, together with the father’s brother and wife.  The mother also had family support in Adelaide, as her brother had already migrated to Australia.

3. The child [X] was born on [omitted] 2009.  The maternal grandparents migrated to Australia that same year and have lived with the mother’s brother and his wife since then.

4. The father was a successful [occupation omitted], and worked long hours managing and operating three [businesses omitted].  The mother was [X]’s primary caregiver during the parties’ relationship, particularly given the father’s working hours.  The parties were fortunate to have the on site support of the paternal grandparents who assisted with occasional care for [X] and provided other practical support, particularly once the mother commenced studying. 

5. The mother resumed full time employment in August 2011.  [X] attended childcare while the mother was at work, but the mother continued to be the parent responsible for [X]’s care and welfare, albeit with ongoing support from the paternal grandparents.

6. The parties give a very different account of their family life leading up to the separation.  The father says that he began to suffer from anxiety and depression and was becoming more dependent on alcohol, but does not identify any other difficulties in the parties’ relationship.  By contrast, the mother describes a relationship severely impacted by the father’s alcohol abuse across many years, together with ongoing and extensive domestic violence.  These matters will be discussed further in this judgment.

7. The parties finally separated in late March 2013 when the mother left the family home with [X] and moved in to live with her parents, brother and sister-in-law.  She and [X] have remained living with the maternal family until her brother and sister-in-law moved to Sydney in early 2014.  The maternal grandparents now have also moved to Sydney, where they provide childcare support to their son’s child.  The mother and [X] continue to live in the maternal uncle’s house in Adelaide, pending the outcome of these proceedings.

8. Following separation, the parties negotiated occasional visits for [X] to spend time with her father.  These visits were of short duration and the mother remained present, claiming [X] did not want to see her father alone. 

9. One such visit took place on 2 June 2013 at the [omitted] Restaurant.  In the course of this visit the parties argued, which led to an altercation on [location omitted] where the mother alleges the father verbally abused her and then assaulted her.  This was the first occasion that the mother made a police report in relation to the father’s behaviour. 

10. An Intervention Order was issued on 4 June 2013 and subsequently confirmed on 18 July 2013, without any admission by the father.  The father was also charged with assault arising from the incident on 2 June 2013.  Those charges have not yet been finalised.

11. The mother filed an Application for parenting and property settlement on 11 June 2013 and the father filed his Response on 1 August 2013.  The parties consented to interim orders during the period of the adjournment as follows:

    Children’s issues

    1.The parties do have equal shared parental responsibility for the child [X] born on [omitted] 2009.

    2.The said child do live with the applicant wife.

    3.The respondent husband do spend time with the said child each Sunday from 10.00am until 8.00pm on the following conditions:

    (a)the respondent husband do collect and return the said child from outside the applicant wife’s residence at the commencement and conclusion of each period of time;

    (b) the respondent husband only be present at the changeovers and any other person that accompanies the respondent husband is to remain in the vehicle;

    (c) the respondent husband do undertake an alco test at the commencement and conclusion of each period of time to be administered by the applicant wife;

    (d) in the event of a positive reading for alcohol, time to be spent is suspended;

    (e) the respondent husband do take the said child to her [activity omitted] at 11:30 am each Sunday at [location omitted];  and

    (f) in the event of the said child becoming upset and unable to be settled the respondent husband do return the said child to the applicant wife forthwith.

    AND THE COURT ORDERS THAT:

    Financial issues

    4.The parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 6 November 2013 at 11.00am.

    5.The parties pay one half of the Conciliation Conference fee ($350) in accordance with the Family Law (Fees) Regulation 2012 at least 28 days prior to the Conciliation Conference unless otherwise exempted from payment.

    6.Within 28 days the parties provide mutual informal discovery of all documents in their respective possession, custody or control.

    7.The parties prepare a Joint Statement of Assets and Liabilities on or before 14 September 2013.

    8.With respect to any asset the value of which is not agreed, the parties obtain a joint written valuation at their joint expense to be available at least 14 days prior to the Conciliation Conference.

    9.In the event either party seeks a superannuation splitting order, that a copy of the proposed splitting order be served upon the Trustee of the superannuation fund at least 14 days prior to the Conciliation Conference.

    10.The matter is adjourned to 18 November 2013 at 9.30am for further mention.”

12. The parties attended a Conciliation Conference on 6 November 2013 but all matters remained unresolved at the next hearing on 18 November 2013.

13. Interim parenting issues were adjourned to 4 February 2014 with each party to file an update Affidavit.  In the course of the hearing on 4 February 2014, it became clear that the mother was now proposing to relocate with [X] to live in Sydney.  The Court continued the previous interim parenting orders until further order and made further directions for the mother to file an Amended Application within 21 days and the parties then to obtain a family assessment to be undertaken by an independent psychologist or counsellor.

14. At a subsequent hearing on 11 June 2014 parenting issues were initially listed for trial to 11-13 March 2015.  However the Court endeavours to prioritise relocation matters where possible and those dates were subsequently brought forward for a three day hearing listed on 1‑3 October 2014.  The hearing proceeded across those dates, with final submissions presented on 15 October 2014.

The hearing

1. The applicant mother relied upon the following documents:

   a)Amended Initiating Application filed 24 March 2014;

   b)Her Trial Affidavit filed 18 September 2014;

   c)Trial Affidavit of mother’s brother Mr S filed 25 September 2014;

   d)Trial Affidavit of mother’s sister-in-law Ms K filed 18 September 2014;

   e)Trial Affidavit of mother’s psychologist Ms Z filed 18 September 2014; and

   f)GP Mental Health Care Plan prepared by Dr D on 6 June 2013 and updated on 21 January 2014.

2. The father relied upon the following documents:

   a)Response filed 1 August 2013;

   b)His Trial Affidavit filed 26 September 2014;

   c)Trial Affidavit of paternal grandfather Mr M filed 26 September 2014;

   d)Trial Affidavit of Dr S filed 26 September 2014; and

   e)Trial Affidavit of Mr C filed 26 September 2014.

3. The father’s Case Outline also refers to a number of other documents that were not ultimately presented to the Court.

4. Both parties also relied upon the family assessment report prepared by Ms L dated 30 May 2014.

5. The parties were available for cross examination, as were their supporting witnesses.  The mother also sought to rely upon the report from her general practitioner but Dr D was not available for cross examination.  In those circumstances her report was not received by the Court, but the Mental Health Plan prepared by Dr D was received into evidence, as a business record prepared in the usual course of her practice. 

6. Ms L was also cross examined by both parties.

Credibility of witnesses

1. Both parties endeavoured to give their evidence honestly and to the best of their recollection.  However, as is so often the case in family law disputes, the reliability of their evidence is tainted by the prism of hostility through which they now view the other parent and their prior relationship.  This was compounded by each party’s tendency to overstate their recollection of past events. 

2. For the reasons discussed further in this judgment, I accept the mother’s evidence that she was subjected to physical and emotional abuse by the father, but not to the extent claimed by her.  I conclude that the reliability of the father’s recollection of the interpersonal dynamic between the parties is undermined by his past alcohol abuse and his refusal to acknowledge any past aggressive behaviour.

3. Ms Z’s evidence was set out in her report dated 17 January 2014 and her further Letter of Report dated 19 March 2014.[1]  Ms Z’s opinion was not substantially undermined during cross examination.  She made appropriate concessions in the witness box and acknowledged that her opinion is largely based on the unchallenged information received from her client, the mother.  At the same time, Ms Z gave clear evidence that the mother’s presentation was congruent with the emotionally distressing events she was describing and that her account of these past events was consistent over numerous sessions.

   [1] Affidavit of Ms Z filed 18 September 2014, Annexures A and B

1. The mother’s brother and sister-in-law both gave their evidence in a calm and generally even-handed manner.  They both acknowledged that [X] appeared to enjoy spending time with the father, although

   
   

   Ms K did not see any real benefit for [X] in maintaining a relationship with her father.

2. The paternal grandfather endeavoured to give his evidence honestly and to the best of his recollection. I accept that Mr S loves his son, his daughter-in-law and his granddaughter, but his recall of past events was clouded by his sense of loyalty to his son.  He did not appear to be aware of his son’s past issues with alcohol use and gave further evidence that he did not witness any violence in his household.  He cannot contemplate the possibility that his daughter-in-law may have been abused within his household.  He did not see this happen and therefore believes it cannot have happened.

3. Dr S impressed as a very busy General Practitioner.  In the course of cross examination it appeared that his case notes were often extremely brief, nonetheless I accept his professional opinion that the father’s current liver function tests indicate no areas of clinical concern and that the father appears stable on his present medication. 

4. The father’s friend Mr C gave his evidence in a straightforward manner.  He conceded that the father was “slurring his words” during the incident at the mother’s home on 2 June 2013.  He also acknowledged that his description of the father as “silly and entertaining” when affected by alcohol was based on his observations of the father in social settings.  Mr C conceded he could not comment upon the father’s behaviour when alone with the mother.

5. Ms L was available for cross examination by both parties.  She gave her evidence in a straightforward, professional manner and her evidence greatly assisted the Court.

The mother’s case

1. The mother proposes that the parties share equally in parental responsibility for [X] but argues that [X]’s best interests would be promoted by the child continuing to live in her primary care and being permitted to relocate to Sydney.

2. It is the mother’s case that she had been considering moving away from Adelaide for some time following separation.  Her plans only crystallised when her brother obtained employment in Sydney which meant that he and his family would be moving, together with her parents.  The mother would then be without any family support here in Adelaide and she concluded that it would be in her and [X]’s best interests to move to Sydney with her extended family. 

3. The mother proposes final orders as follows:

   a)That the parties have equal shared parental responsibility for the child [X].

   b)That the said child do live with the mother.

   c)That the mother be permitted to forthwith relocate the child’s primary place of residence to Sydney, New South Wales.

   d)That upon the mother’s relocation to New South Wales the child spend time with the father:

   i)During school terms on two occasions being the third and sixth weekend of each school term on Saturdays from 9.00am to 5.00pm and Sundays from 9.00am to 5.00pm with no overnight time and with such time to occur in Sydney.

   ii)During the short term school holidays for two days and on each of those two days from 9.00am to 5.00pm with no overnight time, such time to be spent in Sydney.

   iii)During the Christmas period for a period of one week with no overnight time between 9.00am and 5.00pm each day in Sydney.

   e)As and from 2017:

   i)During school terms on two occasions each school term being on the third and sixth weekend in each school term overnight from Saturday 9.00am until Sunday 5.00pm with such time to be spent in Sydney.

   ii)During school term school holidays, for two days, with overnights from 9.00am on the first day until 5.00pm on the second day, such time to be spent in Sydney.

   iii)At such other times as may be agreed between the parties.

   f)That the respondent husband do meet all travel and accommodation expenses associated with his travel to Sydney for the purposes of the child spending time with him pursuant to the within Orders.

   g)That the applicant wife do meet all travel and accommodation expenses associated with her travel to Adelaide to facilitate the child spending time with the father pursuant to the within Orders.

   h)That the husband do meet all costs of travel associated with the child’s travel to Adelaide for the purposes of spending time with him on the first such occasion and each third, fifth, seventh and each alternate occasion thereof.

   i)That the wife do meet all costs of travel associated with the child’s travel to Adelaide for the purposes of spending time with the father on the second, fourth, sixth and each alternate occasion.

   j)That until such time as overnight visits commence, the father do submit to an alcohol breathalyser test at the commencement and conclusion of each period of time the child is in his care.

   k)That the father be restrained by injunction from consuming alcohol for 24 hours prior to or during any period the child is in his care.

4. The mother argues that her parenting capacity will be significantly undermined if she and [X] are required to remain in Adelaide without any family support.  She acknowledges that [X]’s relationship with the father will be affected if they move to Sydney, but considers her daughter will still be able to maintain a meaningful relationship with her father through regular visits back to Adelaide, to eventually include overnight time in the father’s care.  In addition, [X] will be able to communicate regularly with her father by Skype or other electronic means.

The father’s case

1. The father also supports an order for equal shared parental responsibility but is opposed to [X] living away from the Adelaide metropolitan area.  The father is concerned that [X]’s relationship with him will be undermined if she moved to live in Sydney and says this cannot be in the child’s best interests.  He rejects the mother’s claim that she will be unable to cope in Adelaide without family support. 

2. The father proposes the following orders:

   a)That the parties do have equal shared parental responsibility for the child [X].

   b)That the mother be restrained and an injunction be granted restraining the mother from removing the child’s principal place of residence from outside of 30kms of the Adelaide GPO.

   c)That the child live with the mother.

   d)That the child spend time with the father as follows:

   i)each week from 9.00am Sunday until the commencement of school Monday (or 9.00am if a non-school day) until [X] reaches 6 years of age;

   ii)from [X]’s 6^th birthday as follows:

   1.   in week 1 from 9.00am Saturday until the commencement of school on Monday (or 9.00am if a non-school day) and extending to 9.00am Tuesday in the event of a public holiday on Monday;  and

   2.   in week 2 from 9.00am Sunday until the commencement of school (or 9.00am if a non-school day) on Monday extending to 9.00am Tuesday in the event of a public holiday on Monday;

   iii)from [X]’s 7^th birthday as follows:

   1.   in week 1 from 9.00am Sunday until the commencement of school on Monday (or 9.00am if a non-school day) extending to 9.00am Tuesday in the event of a public holiday on Monday;  and

   2.   in week 2 from the conclusion of school Friday until the commencement of school on Monday (or 9.00am if a non-school day) extending to 9.00am Tuesday in the event of a Monday public holiday.

   iv)until [X]’s 6^th birthday, during all school holiday periods from 9.00am Sunday until 9.00am Tuesday in each week;

   v)from [X]’s 6^th birthday during all school holiday periods each week from 9.00am Sunday until 9.00am Wednesday;

   vi)from [X]’s 7^th birthday for one half of all school holiday periods, in a block.

3. In the event the Court allows [X] to relocate with her mother to Sydney, the father proposes that [X] spend time with him as follows:

   i)from between 11.00am to 12.00pm Saturday until between 4.00pm to 5.00pm Sunday on each alternate weekend until [X] reaches 6 years of age;

   ii)from [X]’s 6^th birthday the child’s time with the father as set out in paragraph i) herein be extended to between 4.00pm to 5.00pm on Monday in the event Monday is a public holiday;

   iii)until [X]’s 7^th birthday during all school holiday periods each week from 9.00am Sunday until 9.00am Wednesday;

   iv)from [X]’s 7^th birthday for one half of all school holiday periods, in a block;

   v)from [X]’s 8^th birthday for 10 nights during each short school holiday period and 4 weeks during the Christmas school holidays.

   b)That the mother pay for the costs of the child’s travel from New South Wales to Adelaide Airport and from Adelaide Airport to New South Wales.

   c)That the mother do book a flight for the child departing Sydney between 9.00am and 10.00am on the first day of the child’s time with the father and departing Adelaide on the last day between 4.00pm and 5.00pm and the mother shall notify the father of the arrival and departure times of the child’s flights.

   d)The mother shall book flights for the child to travel as an unaccompanied minor.

   e)That the father shall be the person responsible for the child upon arrival in Adelaide and as the person responsible for the child’s departure from Adelaide on the relevant airline’s unaccompanied minors forms.

   f)The child have telephone and/or Skype communication with the father at least two days each week.

4. The father does not consider he has an ongoing problem with alcohol use but is prepared to consent to an order that he not consume alcohol for 24 hours prior to and during the time that [X] is in his care.

Legal principles

1. 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.

2. 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”.[2]  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.

   [2] Goode & Goode [2006] FamCA 1346 @ para.10

3. 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 the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  

   In the event these considerations are in conflict, issues regarding safety in s.60CC(2)(b) should prevail. Section 60CC(3) then sets out a range of additional considerations which must also be taken into account.

4. 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.

5. As discussed by the High Court in MRR v GR[3], 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 equal time or substantial and significant time.

   [3] MRR v GR [2010] HCA 4 @ para.13

6. Relocation disputes are particularly difficult cases to determine.  Whatever decision the Court makes about the child’s best interests, one parent will inevitably feel aggrieved and distressed by the outcome. 

7. While the child’s best interests is the Court’s primary consideration, it is not the only consideration.  Weighing up the child’s right to a meaningful relationship with both parents against other relevant factors, including a parent’s right to freedom of movement, is a process that requires careful analysis.[4] 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 child’s best interests conflict with a parent’s right to live where they choose, the Family Law Act requires that the child’s best interests should prevail.[5] 

   [4] B & B (1997) FLC 92-755

   [5] AMS v AIF; AIF v AMS (1999) FLC 92-852, per Kirby J

8. The authorities have consistently stated that each party’s parenting proposal, including any proposed relocation, must be assessed against the relative legislative considerations.[6]  In Morgan & Miles [2007] FamCA 1230, Boland J considered the principles applicable to determining relocation applications.

   [6] Morgan & Miles [2007] FamCA 1230; McCall & Clark (2009) FLC 93-405;

9. 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”.[7]

   [7] Morgan & Miles supra @ paras.80-81

10. 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;[8]

    [8] McCall & Clark, supra @ para.69

11. The Family Law Act emphasises the children’s right to maintain a meaningful relationship with each parent.[9]  In Godfrey and Saunders ,[10]  Kay J commented that: “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. 

    [9] See ss.60B(1)(a), 60CC(2)(a)

    [10] Godfrey v Saunders 2008 FLR 287 at 298

12. The legislation does not define what is meant by a meaningful relationship but the concept has been discussed at length in various judgments.  In McCall & Clark, the Full Court endorsed the comments of Brown J in Mazorski & Albright 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.  

13. Both parties support [X]’s right to maintain a meaningful relationship with the other parent, but they disagree about whether it will be possible for [X] to maintain a meaningful relationship with her father if she moves to Sydney.

14. I will address the relevant considerations set out in s.60CC in order to identify those factors that are most significant in determining [X]’s best interests. The Court is not limited to either party’s proposal when determining [X]’s future best interests. Rather, the Court’s obligation is to make parenting orders that will be in the child’s best interests. To that end I will discuss the evidence and my findings in relation to the evidence within the context of the relevant section 60CC considerations.

15. Much of the evidence in the trial focussed on two significant issues – the mother’s allegations of physical, verbal and emotional violence and her allegations of excessive and ongoing alcohol abuse by the father. 

16. It is useful to set out my summary of the evidence and findings on these two issues before then addressing the remaining relevant s.60CC considerations.

Family violence and alcohol abuse

1. The father’s evidence about his alcohol consumption was inconsistent.  The father conceded in his trial Affidavit that he drank alcohol to excess at times, but his oral evidence indicated a more serious problem.  Indeed, the father himself seems to have acknowledged a significant problem, given that he sought medical treatment from Dr S in 2012, prior to separation. Dr S gave evidence that the father was alcohol dependent and that his treatment progressed through a range of medications such as Naltrexone and Antabuse to assist the father in reducing his dependence on alcohol.  Dr S gave evidence that the paternal grandfather attended for some appointments with his son, which further undermines the paternal grandfather’s evidence that he was unaware of his son’s alcohol abuse. 

2. Taking into account all of the evidence, I am satisfied that the father developed a serious problem with alcohol use, which affected both his behaviour during the marriage and his subsequent ability to accurately recall events that occurred.  Fortunately Dr S gave evidence that the father’s recent liver function test results were within normal limits, which would seem to confirm the father’s evidence that he has drastically reduced his alcohol intake and suggests he is better able to control his alcohol use. 

3. The mother alleges that the father was physically violent to her on a regular basis during the marriage.  In her trial Affidavit she alleges that:

   “He was physically abusive to me and he assaulted me on numerous occasions.  On at least 3 occasions per week he slapped me on my face and on at least 3 occasions per week he would drag me by my hair from our bedroom making such statements as ‘get out of my room’, ‘get out of my house’ and ‘I will kill you if you don’t leave my house’.”[12]

   [12] Mother’s trial Affidavit filed 18 September 2014, paragraph 12(a)

4. The mother acknowledges that she did not report or disclose the father’s violence to the police or to anyone else until after the parties separated.  Indeed, no police report was made until after the incident that occurred on 2 June 2013. 

1. The father denies that he ever physically assaulted the mother during their marriage.  He acknowledged that they argued with each other, particularly in the 12 months leading up to separation and that his alcohol consumption was a major source of conflict between them.  He concedes that the mother suffered an injury to her face during one such argument in 2012 but says it was accidental. The father points out that the only other incident where the mother provides any detail of an actual assault is the incident on 2 June 2013. 

2. He further argues that the mother’s sworn evidence and other statements about his alleged violence during the relationship are inconsistent.  In her trial Affidavit she describes him assaulting her on three occasions every week.  In her originating Affidavit she describes him as “having assaulted me on several occasions previously”.[13]

   [13] Mother’s Affidavit filed 11 June 2013, paragraph 12

3. In her Statement to the police in support of her Intervention Order the mother said “… [Mr Michaels] has hit me in the past during our eight year marriage.  He would slap me in the same way as he did yesterday often and he once punched me in the face causing two black eyes. … ”[14]

   [14] Mother’s Affidavit filed 11 June 2013, Annexure B, Police Statement, paragraph 15

4. In Ms Z’ report, she reports the mother as saying:

   “Ms Barton has described to me physical beatings and intimidation from her husband that allegedly occurred every night.”[15]

   [15] Report of Ms Z, 17 Jan 2014, page 1

5. The Court was asked to find that the mother was lying about the allegations of violence or at the very least that she has exaggerated the extent of the father’s violence, to promote her case in this Court. I do not consider the mother’s failure to make any contemporaneous disclosure undermines the reliability of her evidence.   

6. The mother conceded she did not disclose the father’s abuse to anyone during their marriage, but there are many reasons why a victim of abuse may not disclose their experiences.  It may be because the victim feels ashamed, or they feel they have somehow “failed” in their relationship.  The mother gave evidence that she hoped to make their marriage work and, as she described to Ms Z, “she believed she was required to make her husband happy, and hoped the relationship would get better.”[16] The mother repeated this comment during cross examination.  There may also have been strong cultural factors that made it difficult for the mother to discuss the difficulties in her relationship with the father and which added to her sense of shame.  

   [16] ibid

7. Both parties gave detailed evidence about two specific incidents, one that occurred in approximately April 2012 and the further incident that occurred after separation on 2 June 2013.

Incident in April 2012

1. Both parties agree that the mother had collected the father from work and that they began arguing at the [business].  Their argument continued during the drive home and upon arriving home.  The father gave evidence that he cannot remember what the parties were arguing about whereas the mother was very clear that they were arguing because the father had again been drinking and she was unhappy with his behaviour.

2. From this point, the parties’ accounts differ substantially.  The mother says that she was so angry with the father in relation to his alcohol use that she threatened to leave and to take [X] with her.  She says the father then became angrier and hit her in the face.  The mother gave evidence that [X] was present on the couch when the assault happened and that the father’s parents were present in the room as well.

3. The father denies that [X] or his parents were present during the altercation.  He says that he had moved away from the mother into the lounge room because she was continuing the argument.  He says the mother followed him in and started grabbing the collar around his shirt and pushing his face.  In trying to escape the mother’s grip, the father gave evidence that he slipped and accidentally struck her in the face.  He clarified in oral evidence that in fact his head hit the mother’s face.  He had not previously mentioned this detail in his earlier Affidavit material.

4. He acknowledges that the mother was injured and had a black eye, but denies it was a deliberate assault by him and repeatedly claimed that the mother had instigated the physical altercation.  He gave evidence that his parents heard the fighting and came into the room where they saw that the mother’s face was injured.  He says that his father then picked up the telephone and was going to call the police but that the mother stopped him from doing so.  The mother denies this.

5. The father conceded that the mother “received black eyes”[17] although subsequently he gave oral evidence that she only had one black eye.  The paternal grandfather gave evidence that he never saw a black eye on the mother, before qualifying his evidence and saying “maybe a little bit” on one eye.  The paternal grandfather was adamant that he was in his bedroom and only entered the living room after hearing the argument, to find his wife nursing an injury to the mother’s face. He also denied trying to call the police on the night in question, as claimed by the father.

   [17] Father’s trial Affidavit filed 26 September 2014, paragraph 71.6

6. The father gave evidence that his parents were in the other part of the room which is a large open room and that they came through when the physical altercation occurred.  This further conflicts with the paternal grandfather’s evidence. 

7. The father also told Ms L that following this incident he then hit himself in the eye four or five times, a detail not previously mentioned in any of his Affidavit material.  The father confirmed this during cross examination, saying it was “a crazy thing to do”.  Crazy or not, it seems an unlikely response to an accidental injury, but more likely represents a distressed response to having deliberately injured the mother, causing her significant injury.

8. The extent of the mother’s injury was clarified when she eventually attended a doctor and was diagnosed as suffering a broken nose, in addition to the bruising to her eyes. The mother concedes that she did not tell the doctor that she had been assaulted but I accept she did not do so out of a sense of shame and embarrassment. 

9. On balance, I conclude that the mother’s account of this incident is closer to the truth.  There are significant inconsistencies between the father’s evidence and the paternal grandfather’s evidence about this incident. Whether or not both of the paternal grandparents were present throughout the whole incident is unclear.  It may be that the paternal grandmother was present, rather than both grandparents, which explains how she came to be nursing the mother’s injury.  The lack of clarity about these background details does not undermine the mother’s evidence on this topic. I am satisfied that the parties were arguing about the husband’s drinking and in the course of this argument, the father deliberately hit the mother in the face, causing her significant injury.

Incident on 2 June 2013

1. Again, both parties gave extensive evidence in relation to the events of this afternoon.  They agree that they met at [omitted] Cafe on [location omitted], so that [X] could spend time with the father.

2. The mother says the father became argumentative and aggressive towards her.  The father says that [X] was sleeping in his lap when the mother became angry with him, slapped [X] in the face to wake her up and then left with the child. 

3. Both parties agree that the father followed the mother down [location omitted] where the mother alleges that the father abused her, threatened to kill her if she took [X] from him and then slapped her on the left side of her face.  The assault was viewed by people in a café nearby who came to the mother’s assistance.

4. By contrast, the father says he followed the mother and [X] to say goodbye to the child, that [X] came up to him and he picked her up to say goodbye.  He says the mother then roughly grabbed the child’s arm, yanking it towards her. His immediate reaction was to fend off the mother and he slapped her face. Bystanders had called the police who attended and spoke with the mother and the father, but no charges were laid at that point.

5. The father concedes that he overreacted by slapping the mother, but says this was in the context of an incident some years earlier in Melbourne when the mother had roughly grabbed [X], to the point of possibly dislocating the child’s arm. The mother denied any such assault upon [X].  She says there was a time in Melbourne when [X] suffered a minor accidental injury, but it was not caused by her in any way. She says the father is deliberately misinterpreting this earlier incident. 

6. Returning to the events of 2 June 2013, later that day the father attended at the mother’s home with Mr C.  The mother called the police who asked the father to leave the premises and subsequently assisted the mother to obtain an interim Intervention Order on 4 June 2013.  The father was then charged with the earlier alleged assault arising from the incident on [location omitted].

7. Having heard both parties’ evidence I prefer the mother’s account of the events of 2 June 2013 and of the earlier injury suffered by [X] in Melbourne.  The mother’s evidence is detailed and consistent. It may be that the mother was behaving unreasonably in not allowing the father to hold [X] and say goodbye to the child, but that does not justify the father assaulting the mother.  I specifically reject the father’s allegation that the mother grabbed roughly at [X]’s arm or that the mother had previously injured [X]’s arm.

8. The father argues that the alleged assaults in 2012 and on 2 June 2013 are the only incidents about which the mother has provided any detail or corroboration and that her claims of other assaults should be dismissed, but I reject that submission.  It is more likely that these events stand out in the mother’s memory because of the significant repercussions that followed.  On the first occasion the mother suffered serious, visible injuries that required medical treatment.  The second assault in 2013 occurred in a very public venue, with immediate police attendance.  It is hardly surprising that these two incidents remain vivid in the mother’s memory.

9. I cannot conclude that the father assaulted the mother as frequently as she alleges in her trial Affidavit, but I am satisfied that he was regularly abusive and aggressive towards her, including physically assaulting her. I am satisfied that the father frequently drank to excess during the parties’ marriage and when under the influence of alcohol, would become easily angered to the point of physically assaulting the mother on numerous occasions during their relationship.  I am satisfied that these assaults generally occurred away from other members of the household, who may not have been aware of the extent of the father’s abuse.

10. The father argues that the mother has never demonstrated any fearful behaviour and that she was able to maintain her working life during the marriage and since separation.  He points out that she was prepared to meet with him in the months immediately following separation so that he could spend time with [X] and that she interacts with him personally at each handover, to administer the alcotest that he is required to undertake. 

11. I do not consider these matters undermine the mother’s evidence.  The parties generally met in a public venue to enable [X] to spend time with the father, which would have provided a sense of security for the mother.  Administering the alcotest takes place at the mother’s home where she had the support of her family until recently.  The mother’s capacity to continue working does not detract from her allegation that she has been the victim of family violence.

Section 60CC(2) primary considerations

(a)   the benefit to the child of having a meaningful relationship with both parents

1. Both parties agree that [X] will benefit from maintaining a meaningful relationship with each of them.  While [X] is only spending day time visits with her father at present, Ms L concluded that [X] would be able to maintain a meaningful relationship with her father even if [X] herself was living in Sydney.

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

1. I am satisfied that [X] has been exposed to family violence during her parents’ relationship although it seems likely that many of the violent exchanges from the father towards the mother would have occurred when [X] was asleep, as they occurred after the father came home from working at his [businesses] in the evening.  Nonetheless [X] would have been aware of the tensions between her parents and, of course, was present during the very unfortunate incident at [omitted] Café.  The father’s violent behaviour on this occasion was unacceptable but fortunately it has not since been repeated.

2. I accept that the father is no longer drinking alcohol to excess and is therefore much less likely to lose control and react violently in any situation.  This is not to say that alcohol use excuses a person’s past violence, but it is certainly a factor that can undermine a person’s capacity to properly control their behaviour.

3. Looking to the future, the father consents to an order that he not consume alcohol while [X] is in his care, which provides an immediate safeguard.  The tensions within the parties’ interpersonal relationship are no longer present.  On balance, I conclude that [X] is not at risk of physical or psychological harm from spending time in the father’s care, including overnight time.  In addition, I am satisfied that the paternal grandparents will be far more vigilant about the father’s behaviour, in order to ensure their granddaughter’s physical and emotional welfare.  The father continues to live at home with his extended family and this provides an important emotional safety net for [X].

Section 60CC(3) additional considerations

(a)   any views expressed by [X]

1. [X] is only five years old and Ms L described her as a cautious and shy little girl.[18]  While [X] was able to talk about her parents and extended family, she did not express any views in relation to her living arrangements.  This is hardly surprising given the child’s young age.

(b)   the nature of the child’s relationship with each of the child’s parents and any other relevant persons, including grandparents and extended family

[18] Family Assessment Report, 30 May 2014, Annexure A to Affidavit of Ms L filed 18 September 2014, page 5

1. During observed interaction Ms L noticed that [X] was comfortable and relaxed in the care of her mother and maternal grandparents and gave the impression that she enjoyed a warm and loving relationship with all of them.[19]  This is not surprising, given that [X] has been living with her maternal grandparents for the last eighteen months.

   [19] Ibid, page 6

2. Ms L also noted that the father and paternal grandparents were also very warm and affectionate to [X], although it took the father a little while to become more relaxed in his interaction with [X]. Ms L went on to describe that the father engaged with [X] appropriately and that [X] seemed quite connected and comfortable with her whole paternal family.  Again, this is to be expected, given that [X] had lived with her extended paternal family for over three years prior to separation and sees them each Sunday when spending time with her father.

3. The mother has been [X]’s primary caregiver and it is hardly surprising that [X]’s primary emotional attachment is with her mother.  The father acknowledges this, insofar as he agrees that [X] should remain living in the mother’s primary care.  This is not to understate the importance of [X]’s relationship with her father and the emotional significance for [X] in being able to maintain that meaningful relationship with her father and with her extended paternal family.  The child’s primary attachment to her mother remains a significant factor, however.

(c)   the extent to which each of the child’s parents has taken, or failed to take, the opportunity to make parenting decisions and to spend time with the child

1. Neither party really addressed the manner in which they exercised parental responsibility during their marriage.  Given the nature of the father’s working life, it appears likely that they lived a fairly traditional married life where decision making responsibilities regarding their child rested with the mother and the father trusted her to make appropriate decisions for their daughter.

2. I accept that the mother was unduly restrictive regarding [X]’s time in her father’s care in the weeks immediately following their separation.  Subsequently the Court limited [X] to day time visits in her father’s care, in light of the outstanding criminal charges he is facing, not anticipating the charges would not yet be finalised, eighteen months later.  The present care arrangements do not reflect any lack of interest on the part of the father; on the contrary, he is anxious to play a more significant role in [X]’s life and to commence spending regular overnight time with her as soon as the Court will allow it.

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

1. The father is not presently in paid employment although there was the possibility that he may be commencing employment shortly after the conclusion of the trial.  He was previously paying child support at a rate of approximately $15 per fortnight.  No doubt his child support obligation will increase in the event he commences paid employment.

2. At the present time the mother is working and is responsible for meeting [X]’s needs.  She has received assistance from her family who were supporting her general expenses within their household, which allowed the mother to pay private school fees for [X].

3. I am satisfied the mother will continue to meet her responsibilities to maintain [X] and meet the costs associated with [X]’s care.  Hopefully the father will demonstrate an appropriate level of responsibility to contribute child support for [X] once he resumes employment.

(d)   the likely effect of any changes in the child’s circumstances, including any separation from either parent or any other family member with whom she has been living

1. This is a significant factor.  [X] presently spends time with her father and paternal grandparents each week and enjoys a significant and loving relationship with them.  She will not be able to spend time with her father or his family as frequently if she is living interstate.  As she gets older, her capacity to enjoy longer stays in her father’s care will increase, but there will inevitably be an impact on [X]’s relationship with her father if she and her mother move to Sydney. 

2. The extended maternal family have now relocated to Sydney, where the mother’s brother has obtained employment, as mentioned above.  The maternal grandparents have also moved to Sydney, as they provide childcare to the mother’s infant nephew.  In the event [X] remains living in Adelaide, she will obviously spend far less time with her extended maternal family, with whom she has now been living for the past eighteen months.

3. More significantly, the mother no longer enjoys the emotional and financial support that was previously available to her from her extended family, as discussed below.

(e)   the practical difficulty and expense of the child spending time with and maintaining direct contact with both parents

1. There are no practical difficulties with [X] spending regular time in each parent’s care while both parents live in Adelaide.  While the travel involved does not cause any difficulty for the parties, it is important to note that handovers have been taking place at the mother’s home, where she had the immediate support of her extended family.  Given the background of family violence, it may be more difficult for the mother to conduct face-to-face handovers with the father now that her family support is no longer available. 

1. The fact that the mother was prepared to interact with the father to the extent necessary to administer the “alcotest”, should not be seen as somehow undermining the mother’s claim to be fearful of the father.  It simply indicates that she is more concerned to safeguard [X]’s welfare (by ensuring that the father does not consume alcohol while [X] is in his care) than she is to protect herself (by not interacting with the father at all).

2. In the event [X] and the mother move to live in Sydney then there will be obvious practical difficulties and costs associated with [X] spending time in her father’s care, assuming he remains in Adelaide.  In addition to the cost of airfares, there is also the physical toll on [X] in travelling between Adelaide and Sydney, particularly on school term weekends.

3. Turning to the cost of airfares, the mother is confident she will be able to transfer her employment to Sydney.  The father indicated that he was shortly recommencing paid employment.  The parties’ income, together with occasional support from their family, would suggest that the parties will be able to afford the cost of regular air travel for [X] between Adelaide and Sydney. 

4. The mother indicated that she intends enrolling [X] at a State primary school near to where she will be residing with her brother and extended family.  Therefore the mother’s income previously directed towards [X]’s private school fees will be able to be redirected to the cost of airfares in the future.

5. While I am confident the parties will be able to meet the cost associated with travel between Sydney and Adelaide, there is a limit to their capacity in that regard.  In addition, frequent interstate travel places a considerable demand on young children.  The travel to and from the airport also extends the overall journey, particularly in a city such as Sydney, which may leave a child tired and unsettled during the following school week.

6. The reality is that [X]’s capacity to spend time in her father’s care will be dramatically reduced if she relocates to live in Sydney and he remains living in Adelaide.  

(f)    the capacity of each of the child’s parents to provide for the child’s needs, including her emotional and intellectual needs

1. [X] clearly enjoys a positive relationship with the father which suggests that he is able to meet her emotional needs, at least in the time they are spending together at present.  The father remains somewhat “untested” in terms of his capacity to meet [X]’s care needs during overnight stays, but I see no reason to assume he would be unable to provide an appropriate standard of care for [X] during overnight visits. 

2. In writing her report, Ms L was cautious about [X] progressing to overnight time with her father and noted that both parents did not consider [X] was ready for overnight time when interviewed in March 2014.  However, [X] is now eight months older.  She is very familiar with the father’s home, given that she lived there until the parties separated.  She is returning, not just to the care of her father, but to the care of extended family including the paternal grandparents who would have been a significant part of her emotional landscape, prior to her parents’ separation.

3. I conclude that the father, together with the support of his extended family, is able to provide appropriately for [X]’s needs, including her emotional welfare, during any overnight time that [X] may spend in his care. While the mother is hesitant about [X] progressing to overnight time in her father’s care, I conclude that this represents the mother’s own assessment of [X]’s readiness in this regard rather than an attempt by the mother to prevent [X] developing a more meaningful relationship with the father.

4. I am satisfied the mother has the capacity to provide for [X]’s needs, including her emotional and intellectual needs.  The mother has maintained [X]’s enrolment at her current private school which demonstrates her commitment to [X]’s education.

5. Ms L noted that [X] is “a well adjusted and happy child”,[20] indicating that the mother has been meeting [X]’s emotional needs in her role as the child’s primary caregiver.  Ms L also noted that [X] “has a warm and loving relationship with both parents”[21] which suggests that the mother has supported [X]’s relationship with the father notwithstanding his past behaviour towards the mother herself. 

   [20] Family Assessment Report, page 11

   [21] Family Assessment Report, page 11

6. The mother’s own emotional circumstances have changed substantially since her family all moved to live in Sydney.  The evidence from Ms Z and Ms L raises a real concern about the mother’s capacity to provide the same high level of care for [X] if the mother is required to remain living in Adelaide, in the absence of any family support.

7. In June 2013 the mother was placed on a Mental Health Plan by her general practitioner Dr D.  Dr D assessed the mother as suffering from severe stress and depression.  She was placed on anti-depressant medication and referred for counselling with a psychologist, Ms Z.

   
   

   Ms Z has prepared two reports in these proceedings and her evidence can be summarised as follows:

   ·The mother described a history of significant physical, verbal and emotional abuse from the father, to the point where in the last two years of their relationship she had thought about leaving, or committing suicide to escape her situation.

   ·The mother described ongoing intimidation and harassment from the father and his family after separation.

   ·The mother described symptoms indicating severe or extremely severe levels of depression and anxiety over the intervening 12 months.

   ·The mother described her family as her main source of support and she does not know how she will cope in Adelaide without their ongoing support.

   ·The mother has few other significant supports available to her in Adelaide.

8. Ms Z was cross examined at some length regarding her sessions with the mother.  She conceded that it is not her role as therapist to challenge the mother’s account of past events.  While acknowledging that she was operating only on the mother’s self-reports, Ms Z noted that the mother’s descriptions of the father’s behaviour were consistent across time.  She also noted that the mother’s physical and emotional presentation was congruent with the events she was describing.

9. Ms Z gave evidence that the mother’s emotions were very close to the surface when talking about past experiences with the father.  She described how the mother would become tearful and her body would become tense or physically shaking. Ms Z noted that these were involuntary physical reactions that were difficult for a client to manipulate.

10. Ms Z concluded that the mother’s parenting capacity could be undermined if she was required to remain in Adelaide in the absence of significant family support.  She concluded that it was likely to be in the mother’s and [X]’s best interests if they were allowed to relocate to Sydney, in terms of their emotional, social and financial wellbeing.

11. Ms Z’s evidence was not greatly challenged during cross examination.  She presented her evidence in a professional manner and was able to make appropriate concessions regarding the limits of her therapeutic relationship with the mother.  Nonetheless she confirmed her opinion that the mother’s emotional and physical presentation was consistent with the level of distress she articulated.  Nothing in the mother’s behaviour in their appointments led Ms Z to consider it likely that the mother was deliberately overstating her story, to support her Court case.

12. While some criticisms may be made of the drafting style within Ms Z’s reports, I accept her evidence overall.  I accept that the mother has experienced extreme levels of depression, anxiety and stress as a result of the father’s behaviour towards her during the marriage. I further accept that her capacity to cope with her distress after the separation was greatly enhanced by the support of her immediate family.  I am satisfied that the mother may be emotionally vulnerable without that support immediately available, which may affect her capacity to provide the same high level of care for [X].

13. Ms L considered Ms Z’s reports in the preparation of her family assessment report.  She noted the mother’s own concerns that she may not cope without the support of her family and went on to say:

    “Her [the mother’s] own perception is that she is very fragile without them [her family] and that she will not cope;  this perception and expectation itself may be a predictor of low psychological resilience, and therefore possible on-going psychological problems of depression and anxiety in Ms Barton should she not be able to relocate to Sydney.”[22]

    [22] Family Assessment Report, page 12

14. Based on the evidence of Ms Z and Ms L, I conclude there is a real risk that the mother’s parenting capacity will be significantly compromised in the event she is required to remain in Adelaide.  This would have a detrimental outcome on [X]’s overall welfare.

(g)   the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and the child’s parents

1. As mentioned, [X] is only five years old and is a young child. Both of her parents are Indian and enjoy the strong support of their extended family and their religion, culture and traditions.   [X] still co-sleeps with her mother, which I gather is not unusual within their child rearing practices.

2. [X]’s grandparents have been active in the Sikh community in Adelaide and both the maternal and paternal grandparents were involved in forming the [omitted] Association.  I am confident [X] will continue to maintain a strong sense of her cultural and religious traditions, with the support of her parents and extended family.

(h)   not relevant

1. the attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents

1. I am satisfied that the mother has demonstrated an appropriate attitude towards her daughter and towards her responsibilities as [X]’s primary parent. 

2. The father has had fewer opportunities to demonstrate his attitude to the responsibilities of parenthood.  There is no doubt that he loves [X] and cares deeply for his daughter’s welfare, but at times his attitudes and actions towards [X]’s mother has clearly compromised [X]’s wellbeing.  The events on 2 June 2013 are the most obvious example in this regard.

(j)       family violence;  (k)  family violence orders

1. A family violence order was confirmed by the Magistrates Court on 18 July 2013.  The father consented to the Intervention Order as a final order without making any admissions and without there being any formal findings against him by the Magistrates Court.

2. The father is still facing charges in relation to the alleged assault upon the mother on 2 June 2013.  While this Court has made certain findings in that regard, the parties must remember that the standard of proof in this Court is the civil standard of proof, based on the balance of probabilities, rather than the criminal law standard of proof beyond reasonable doubt.

3. I have set out my findings in relation to the father’s past violent behaviour elsewhere in these Reasons, based on the evidence presented in this Court. Those findings remain, whether or not the father is ultimately convicted of any criminal offence.

Conclusion

1. The parties agree that an order for equal shared parental responsibility is appropriate and I accept their submissions in that regard. Accordingly, s.65DAA requires the Court to consider whether [X] should live equally in each parent’s care or should spend substantial and significant time in each parent’s care, provided that either outcome is also reasonably practicable.

2. Section 65DAA(5) sets out the factors that the Court must have regard to in determining whether a parenting arrangement is reasonably practicable. Those factors include:

   a)how far apart the parents live from each other;

   b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time with each of the parties; 

   c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;

   d)the impact that an arrangement of that kind would have on the child; and

   e)such other matters as the Court considers relevant.

3. Both parents agree that it is in [X]’s best interests that she remain living in her mother’s primary care and that accords with my own assessment of the evidence. I take into account the past history between the parties and their present lack of trust and communication, along with the father’s limited parenting role for [X] since separation. At the time of the family assessment the father himself considered [X] was not ready for overnight time in his care.  In all of the circumstances I agree that it will not be in [X]’s best interests to spend equal time with each of her parents. 

4. The Court must then consider whether [X] should spend substantial and significant time with her father.  As discussed below, I consider it is in [X]’s best interests to begin spending overnight time in her father’s care as soon as possible.  It appears that he has made significant progress in controlling his alcohol consumption.  The father’s criminal charges are not yet finalised, but the Court expects that he will reflect upon the concerns raised within this judgment and ensure his daughter is not exposed to violent behaviour in the future. 

5. It may be that once [X] commences spending overnight time with her father, this could progress to her spending substantial and significant time in his care, but she is not emotionally ready for that change just yet. 

6. The High Court in MRR & GR[23] made it clear a Court may consider that it is in a child’s best interests to spend substantial and significant time with each parent, but still conclude it is not reasonably practical.  While it may be in [X]’s best interests to spend substantial and significant time in her father’s care at some point in the future, such an order can only be made if it is also reasonably practicable. Obviously it would only be reasonably practicable if both of her parents are living in the same city.  Accordingly the Court must now consider whether it will be in [X]’s best interests to remain living in Adelaide. 

   [23] Supra, note 3

Should [X] relocate with her mother to live in Sydney?

1. There is a real risk that the mother’s psychological and emotional welfare would be substantially compromised if she was required to remain living in Adelaide, without the support of her immediate family.  I accept that the mother has stable employment in Adelaide and may well be able to provide adequately for [X] in a financial sense, but she will continue to feel isolated and vulnerable without the support of her family. 

2. The mother would be able to continue consulting with Ms Z, but her day to day parenting capacity would still be compromised, to [X]’s ultimate detriment.  Ms Z’s support may enable the mother to cope with remaining in Adelaide, but a parent who is just “coping”, is a long way short of an optimal primary parenting experience for a young child.  

3. Not only may [X]’s experience of her mother’s parenting be undermined, but the mother will inevitably feel resentful towards the father if she feels forced to remain living in Adelaide.  This is likely to deepen her hostility towards the father and place a further emotional strain upon the co-parenting dynamic, and upon [X] as she moves between her parents’ care.

4. By contrast, the relocation to Sydney will positively enhance the mother’s role as [X]’s primary caregiver through the emotional support available from her extended family.   In addition, the mother’s direct exposure to the father would be limited, which may also benefit her overall emotional and psychological wellbeing. 

5. Taking into account all of the evidence, I conclude that it is in [X]’s best interests if she and her mother are permitted to relocate to Sydney.

6. It is obviously open to the father to also relocate to Sydney.  The father says his family support and employment opportunities are in Adelaide and he does not wish to move.  I appreciate it may be very difficult for the father to contemplate relocating to Sydney and understand his decision in that regard.  However, it will be even more difficult for the mother to remain living in Adelaide.

7. Clearly if the mother and [X] live in Sydney and the father remains in Adelaide it will not be reasonably practicable for [X] to spend substantial and significant time with her father.  However [X] and her father will still be able to spend regular time together, including occasional weekends during school terms.  I am satisfied their relationship is sufficiently well established to cope with less frequent time together, particularly when the relationship can also be supported by regular telephone and Skype or Facetime contact.

[X]’s time in the father’s care

1. The mother’s preferred outcome is that [X] continue to spend only day time visits with the father and that all such visits take place in Sydney.  She proposes no overnight visits take place until 2017.  With respect, I consider this proposal is far too limited and would severely compromise [X]’s capacity to maintain a meaningful relationship with her father.  Equally, the father’s proposal that [X] spend alternate weekends in his care in Adelaide is also unrealistic, as it would impose an onerous amount of travel upon [X].   

2. In the course of giving evidence Ms L agreed that it may assist [X] to commence spending overnight time in her father’s care prior to relocating to Sydney.  Equally, she conceded that there may be some benefit if the mother and [X] were given time to prepare for this transition, particularly as [X] is still co-sleeping with her mother.   On balance, I conclude the advantages to [X] in commencing overnight time in her father’s care immediately are significant and outweigh any adjustment issues. 

3. [X] is now 8 months older than she was at the time of Ms L’s report.  She will be staying in a familiar environment where her paternal grandparents will be present, as well as her father.  I am confident the mother will comply with orders of this Court and will take all steps necessary to prepare [X] for overnight time in her father’s care.  I conclude that [X] will make this transition reasonably easily, with her mother’s support. From [X]’s point of view, the introduction of overnight time with her father will simply be part of the preparation for her move to Sydney. 

4. While Ms L’s report recommended that the initial overnight visits should take place in Sydney, she conceded during cross examination that there may be no great difference were overnight visits to also take place in Adelaide. She agreed there were benefits to overnight visits occurring in Adelaide, as it would allow [X] to spend time with her extended paternal family, as well as with her father. 

5. I conclude that [X] should commence overnight time in her father’s care in December 2014, so that she has spent two or three periods of overnight time in his care before moving to Sydney in mid January 2015.  This timeframe will allow [X] to settle into her new home in Sydney prior to the school year commencing.  Thereafter all school holiday visits should take place in Adelaide, so that [X] can spend regular time with her extended paternal family.  If two visits take place between [X] and her father each school term then it would be appropriate for one visit to take place in Adelaide and the other in Sydney, as proposed by Ms L, to reduce the amount of interstate travel for [X].  Visits for [X] with her father in Sydney will also allow him to participate in [X]’s new life there.

6. There are significant costs associated with [X]’s travel to and from Adelaide.  Neither parent is in a strong financial position, but they both have the capacity for ongoing employment.  On balance, I conclude that both parents should contribute towards [X]’s travel costs, as they should both take responsibility to support [X]’s relationship with each of her parents.  [X] may be too young to fly unaccompanied at present, but this option will eventually become available.  

1. While both parents should be contributing to the costs of maintaining [X]’s relationship with the father, the cost of interstate travel has arisen because of the mother’s desire to live in Sydney.  In the circumstances I consider it is reasonable that the mother meet the greater proportion of the travel costs that flow from this choice, at least in the early stages.  I will order that the mother meet the costs associated with [X]’s travel to Adelaide, including the cost of any accompanying adult.  The father will meet the costs of his travel and accommodation to Sydney, which I consider is an appropriate division of the financial burden for the first two years. 

2. By 2017, [X] should be sufficiently comfortable with air travel to be able to fly as an unaccompanied minor with the relevant airline, given that she would have completed the trip numerous times over the intervening period.  At that point in time I will order that the mother meet [X]’s travel costs to Adelaide during school terms and two school holiday periods.  The father will meet his costs in travelling to Sydney each term and [X]’s costs in travelling to Adelaide during the remaining two school holiday periods, which is a roughly equal division of the expenses going forward.

3. Where possible, [X]’s time in her father’s care during school terms should be booked on long weekends, to maximise their time together. The school holiday visits should all take place in Adelaide and [X]’s time in the father’s care will gradually increase as she becomes more comfortable spending time away from her mother.  In that regard the orders will be similar to the regime proposed by Ms L in her family assessment report, moving to half school holidays once [X] turns seven years old, in [omitted] 2016. 

4. [X]’s time in her father’s care during the short school holidays will slightly exceed one half of the school holidays, taking into account the travel involved, but I do not consider a similar adjustment is necessary during [X]’s Christmas school holiday time, which will progress to a three week block of time in December 2017.  [X] also needs the opportunity to spend school holiday time at home, to enjoy activities with her extended family and friends in Sydney.  

5. I am satisfied that there should be an ongoing order restraining the father from consuming alcohol prior to and during [X]’s time in his care, given the evidence on this issue.  The mother seeks to continue the existing order for the father to undertake the breath analysis Alcotest, at least for a period of time. In a practical sense, the test may need to be undertaken in a public venue such as the Adelaide Airport, which is not an appropriate long term option.  I note the father has been compliant with this regime for over eighteen months and that his recent liver function test is within the normal range. In the circumstances I will continue the Alcotest regime, but for a further six months only.

6. Given the order for equal shared parental responsibility, the mother will need to keep the father informed in relation to [X]’s health, schooling and general welfare. The parties will need to establish some method of communication in relation to [X]’s travel arrangements and her general welfare.  Whether this communication occurs by email, or text message, or by seeking assistance from a family member is a matter for the parties to resolve.  Communication regarding [X]’s travel arrangements will also need to be confirmed in writing. 

7. The orders now pronounced will be deeply disappointing for the father, who would prefer that [X] remain living in Adelaide.  The mother may be equally disappointed, as she may be concerned that the orders for overnight time between [X] and the father are progressing too quickly.

8. Notwithstanding the concerns either party may feel, I am confident these orders are appropriate and in the best interests of [X].  These orders provide for her long term emotional security in the primary care of her mother but also provide a sound basis for [X] to maintain an ongoing and meaningful relationship with her father.

9. I now make orders as published at the commencement of these Reasons.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Kelly

Associate: 

Date:                  12 December 2014

[11] Mazorski & Albright (2007) 37 FamLR 518 @ para.26