Beachley and McMaster
[2013] FCCA 1014
•5 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEACHLEY & MCMASTER | [2013] FCCA 1014 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Cases cited: AMS & AIF (1999) 24 Fam LR 756 Taylor & Barker (2008) 37 Fam LR 461 U & U (2002) 211 CLR238, 191ALR 289; [2002] HAC 36; Fam LR 7; (2002) FLC93-112 Bolitho & Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458 A & A: Relocation Approach [2000] FLC 93-035 |
| Applicant: | MR BEACHLEY |
| Respondent: | MS MCMASTER |
| File Number: | NCC 318 of 2012 |
| Judgment of: | Judge Myers |
| Hearing date: | 5 July 2013 |
| Date of Last Submission: | 10 May 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 5 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gary Sundstrom |
Solicitors for the Applicant: | Cunningham & Adam |
| Solicitors for the Respondent: | Self Represented |
THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the child X born (omitted) 2009.
The child live with the father with the mother to deliver the said child to the father at the Brisbane Airport four (4) weeks from today on 2 August 2013 at a time nominated by the father.
The mother spend time with the child at all times as agreed in writing but failing agreement as follows:
a)For one week during each of the first and third end of term New South Wales gazetted school holiday periods and two weeks at the end of term 2 of the gazetted New South Wales school holiday periods and for four (4) weeks during each of the gazetted Christmas school holiday periods as agreed between the parties until such time as the child attends school on a week on week off basis. Upon the child attending school for half of the gazetted Christmas school holiday periods of approximately a three (3) week block.
b)On any weekend the mother travels from Queensland to (omitted) (excluding the Father’s Day weekend or X’s birthday if it falls on a weekend) for up to six (6) weekends in each calendar year as nominated by the mother in writing to the father at least twenty one (21) days prior to the first day of the weekend the mother nominates to spend with the child.
c)One weekend in every five (5) week period in Brisbane from 5.00 p.m. Friday to 5.00 p.m. Sunday (excluding the Father’s Day weekend or X’s birthday, if it falls on a weekend) as nominated by the mother in writing to the father at least twenty one (21) days prior to the weekend the mother nominates to spend with X.
In the event the mother nominates to spend time pursuant to 3(b) and 3(c) and that time occurs on a weekend where a New South Wales public holiday occurs on the day immediately before or after the nominated weekend then that nominated weekend will include that public holiday.
For the purposes of order 3 (a), 3 (b) and 3 (c) of this Order:
a)The Father at his cost will be responsible for the cost of X’s flight at the commencement of the mother’s time with X and be responsible for the costs of the accompanying person until such time that X may fly unaccompanied as determined by the carrier.
b)The Mother at her cost will be responsible for the cost of X’s flight at the conclusion of X’s time with the mother and be responsible for the costs of the accompanying person until such time that X may fly unaccompanied as determined by the carrier.
c)The Father will purchase tickets for a flight that leaves (omitted) Airport on the first day when the mother’s time begins;
d)The Mother will purchase airline tickets for the child to return to the father on a flight that leaves Brisbane Airport on the last day of the mother’s time with the child; and
e)Both the Mother and Father will provide in writing details of the purchased flights to the other at least seven (7) days before departure dates.
The parent with whom X is not living be at liberty to telephone X by telephone:
a)on Wednesday and Sunday in each week between 6:30pm and 7:00pm;
b)on X birthday;
c)on Father’s Day; and
d)on Christmas Day.
The parent who wishes to communicate with X in accordance with
paragraph 7 shall initiate the call and the receiving parent will facilitate and encourage X to answer and speak to the other parent.The Mother and Father will in writing:
a)keep the other informed at all times of their residential address, landline telephone number and mobile contact number and electronic mail address and any change to be provided to the other parent within forty-eight (48) hours of any change;
b)keep the other informed of the names and address of any treating medical or other health practitioners that treat X and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child; and
c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by X.
During the time X 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 X and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of X.
10.This Order shall operate as any authority necessary for any medical practitioner, specialist or hospital treating X and educational facility which X may attend upon form time to time to provide to the other parent such information as they may request regarding X’s health, welfare and development at the requesting parent’s own expense.
11.This Order operates as an authority for any professional care provider of X, whether a school, doctor, hospital, psychologist or otherwise to release upon request of either party any information or documents to either parent at the requesting parent’s own expense.
12.This Order operates as an authority for any schools attended by X to give either parent any information about X’s educational progress and other school related activities and supply copies of school reports, photographs, certificates and awards obtained by X at the requesting parent’s own expense.
13.This Order operates as an authority for any person, group or institution that convenes an extra-curricular activity attended by X to give either parent any information about the X’s progress, photographs, certificates, schedules or assessment dates.
14.Neither parent is to consume alcohol in excess of the legal driving limit during any period that X is living with or spending time with that parent.
15.However, should the mother relocate to within 45 minutes drive by car from or 70 kilometres from (omitted) whichever is the further, orders 16 – 22 below shall operate in substitution for orders 2, 3, 4 and 5 above.
16.The child live with the mother.
17.The child spend time with the father each alternate weekend from 5.00 pm on Friday with collection at the mother’s home until return to school or pre-school or the mother’s home at 9.00 am if the child is not attending pre-school or school.
18.Each Wednesday night with collection from school, pre-school or the mother’s home at 4.00 pm until return to pre-school, school or if the child is not attending pre-school or school to the mother’s home at 9.00 am on Thursday.
19.For half of all the gazetted school holiday periods as agreed between the parties and failing agreement for the first half in each even numbered year and second half in each odd numbered year.
20.Alternate Christmas days as follows:
a)With the mother from 12.00 pm Christmas Eve until 3.00 pm Christmas Day in each even numbered year.
b)With the father from 3.00 pm Christmas Day until 5.00 pm Boxing Day in each even numbered year.
c)With the father from 12.00 pm Christmas Eve until 3.00 pm Christmas Day in each odd numbered year.
d)With the mother from 3.00 pm Christmas Day until 5.00 pm Boxing Day in each odd numbered year.
21.The parties spend time with the child during Father’s Day and Mother’s Day as follows:
a)From 9.00 am to 5.00 pm Father’s Day; and
b)From 9.00 am to 5.00 pm Mother’ Day
The father to collect and return the said child to the mother’s residence at the commencement and conclusion of the mother’s or father’s time pursuant to this order.
22.At such other times as agreed in writing between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Beachley & McMaster is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 318 of 2012
| MR BEACHLEY |
Applicant
And
| MS MCMASTER |
Respondent
EX TEMORE REASONS FOR JUDGMENT
This is a matter that was commenced by way of initiating application filed by the father Mr Beachley, naming the respondent mother Ms McMaster, that was filed in the court on 13 February 2012. The father sought interim and final orders in the initiating application, on a final basis that the child X, a child of the relationship born (omitted) 2009, live with the father and spend time with the mother as agreed between the parties. The mother came before the court on 13 March 2012, and on that date orders were entered between the parties by consent, namely that the child, X, live with the mother, that the child spend time with the father as agreed, and filing agreement as follows:
i)from Friday 16 March 2012 until Thursday 22 March 2012,
ii)from Friday 6 April 2012 until Tuesday 10 April 2012,
iii)from Friday 4 May 2012 until Wednesday 9 May 2012,
iv)from Friday 8 June 2012 until Wednesday 13 June 2012,
v)from Friday 6 July 2012 until Wednesday 12 July 2012,
vi)that for the purpose of planning the times the child spends with the father, the mother and father shall deliver the child to the (omitted) airport.
vii)At the commencement of such time with the father and for the paternal grandmother shall deliver the child to the Brisbane airport at the conclusion of such time, that where applicable each party will give the other party seven days notice of flight times and arrival times with the orders to be implemented and complied with.
viii)In the event the child becomes distressed during the period of time the child spends with the father, the father shall make appropriate arrangements for the child to be returned to the mother.
ix)The parents shall have telephone contact as agreed between the parties, and that neither parent consume alcohol to excess beyond the legal driving limit during any period that the child is living or spending with that parent. Notations were made that the orders were subject to their being flight availability.
The matter came before the court again on 18 September 2012 and on that date further orders were entered into by consent between the parties, namely that:
a)the child live with the mother, that the child spend time with the father from:
i)Thursday 20 September 2012 until Wednesday 26 September 2012
ii)Thursday 18 October 2012 until Wednesday 24 October 2012
iii)Thursday 15 November 2012 until Wednesday 21 November 2012
iv)Thursday 13 December 2012 until Wednesday 19 December 2012
v)Thursday 20 December 2012 until Wednesday 2 January 2013
vi)Thursday 24 January 2013 until Wednesday 30 January 2013
vii)Thursday 21 February 2013 until Wednesday 27 February 2013
viii)Thursday 21 March 2013 until Wednesday 27 March 2013, and
ix)Thursday 18 April 2013 until Wednesday 24 April 2013
b)For the purposes of implementation the time the child spends with the father, the mother or the mother’s nominee shall deliver the child to the Brisbane airport at the commencement of such time and the father of the paternal grandparents shall deliver the child to the Brisbane airport at the conclusion of such times, that where applicable each party will give the other party seven days written notice of flight times and arrival times, that if their father becomes that the child becomes distressed during the periods that the child spends with the applicant, the applicant father should make appropriate arrangements for the child to be returned to the respondent mother at the Brisbane airport by the next reasonable and available flight.
c)The parties have telephone contact with the child as agreed when the child is living with or spending time with the other parent, neither party is to consume alcohol in excess of the legal driving limit during any period that the child is living with or spending time with the parent, the parents shall bear equally the costs of X’s travel but for all on which occasion the father will pay the costs. Notations were made that the orders were subject to flight availability. Note the father passes through Brisbane airport on his way to and from his employment that was then in Queensland.
The hearing of the matter commenced on 17 September 2012 and concluded part heard at the end of 18 September 2012. The matter was then adjourned part heard for hearing allocating a further two days commencing on 30 April 2013. At the hearing the father relied on the following documents that I have read and considered, namely an Amended Initiating Application filed 3 September 2012 in which the father sought orders on a final basis as follows:
a)The applicant father and respondent mother have equal shared parental responsibility for the long term issues in relation to the child X born (omitted) 2009.
b)The parties be jointly responsible for making decisions about major long term issues in relation to the child including but not limited to education, healthcare, medical, and dental issues, religious observance, sporting, cultural and social activities, travel, change in living arrangements.
c)The parties shall consult with the other person in relation to the decisions to be made and make a genuine effort to come to a joint decision about the issue.
d)That the child X born (omitted) 2009 live with applicant father.
e)That the child spend time with the respondent mother as agreed and failing agreement:
i)during term 1 of the New South Wales school gazetted holidays for a period of 14 consecutive nights commencing the first Saturday after the conclusion of term 1 and concluding 14 days thereafter
ii)during term 2 of the New South Wales gazetted school holidays for a period of 14 consecutive nights commencing the first Saturday after the conclusion of time at the end of term 2 and concluding 14 days thereafter
iii)during term 3 of New South Wales gazetted school holidays for a period of 7 consecutive nights being the first half of such a school holiday period
iv)in an even-numbered year commencing on the first Saturday after the conclusion of school and concluding 7 days thereafter
v)in odd-numbered years for a period of 7 days commencing in the middle Saturday or such a holiday period and concluding 7 days thereafter
vi)during term 4 New South Wales school gazetted holidays for a period equivalent to 21 consecutive nights in a year where the school holidays start in an even-numbered year to be 21 consecutive nights commencing on the first Saturday after New Year’s Day commencing 21 days thereafter
vii)odd-numbered years to be 21 consecutive nights commencing on the first Saturday following the end of school and concluding 21 days thereafter.
f)In the event the respondent mother is returned to the (omitted) area, the child is to spend even-numbered years from 5 pm Christmas Eve through to 1 pm Christmas Day with respondent mother and from 1 pm Christmas Day to 5 pm Boxing Day with the respondent mother. In odd-numbered years the child is to spend time with the respondent mother from 5 pm Christmas Eve up until 1 pm Christmas Day and from 1 pm Christmas day through to 5 pm Boxing Day with the respondent mother.
g)At times agreed between the parties the child may spend additional time with respondent mother during periods the respondent mother has travelled to (omitted) or any other area that child may reside on a permanent basis.
h)Unless otherwise agreed that for the periods that the child is living with the applicant father, the respondent mother shall have free and flexible telephone contact with the child or not more than two times per week except for emergencies and on the child’s birthday.
i)Unless otherwise agreed, that for the period the child is spending time with the respondent mother the child shall have free and flexible contact with the applicant father not more than twice per week except in cases of an emergency or on a child’s birthday, that with the parties’ assistance the child may communicate with the parent with whom they are not living or spending time with by way of internet or similar communication means, and neither party is to use any such form of communication to communicate anything negatively about the other party.
j)The travel between the residences should be by air wherever practicable. The respondent mother shall arrange flights from the applicant father’s nearest airport to attend the nearest airport of the respondent mother for the purposes of facilitation of the time that the child spends with the respondent mother. The applicant father shall arrange flights from the nearest airport to the respondent mother’s home. The costs of the child’s airfares shall be equally shared between the parties. Neither party shall be responsible for the costs of any other person’s airfares other than those of the child.
k)Should one party opt to drive then there should be no cost burden on the other party for that travel. Whichever method of travel is to occur, the parties shall communicate in writing not less than 28 days prior to such air travel so appropriate arrangements may be made for the child to be made available to be spend time with the respondent mother or to be returned to living with the applicant father. If no arrangements can be reached in relation to the specific times of changeovers, such times shall be as close as may be arranged to 5 pm, that each parent will notify the other parent of any change in the address of the residence of landline telephone number within 40 hours of such a change being affected, that each parent give immediate notification of the other having any major health issues concerning the child concerning the child which come to the attention of that parent.
l)In the event that the child requires emergency treatment, the parent in whose care the child is at that time shall notify the other parent of the situation (and if not contactable then with that parent’s parents or partner) as soon as is possible.
m)Neither parent is to denigrate or cause any other person to denigrate the other party at all or in the presence or hearing of the child.
n)That the applicant father ensure that he gives written authority to any school attended by the child to provide to the respondent mother a copy of all notices issued by the school in relation to sporting events, parent-teacher nights, performances or other special ceremonies or social activities in respect of which the respondent mother has a right to attend and to supply a copy of all weekly notes to parents and a copy of school reports in relation to the attendances or academic progress of the child
o)That each of the parties is entitled to attend any school function or sporting function or cultural activity in which the child is involved not withstanding that the events occur during the period when the child is not living with the parent, and each of the parents is restrained from raising any objection to the other parent’s attendances at such functions
p)That the respondent mother be entitled to communicate freely with any other school or healthcare professional which the child attends
q)That the applicant father ensure that any school or healthcare professionals which the child attends receives a copy of these orders
r)That each party shall encourage, supervise, and facilitate homework, home study, and practice during periods which the child is with that parent
s)That if special occasions arise such as a wedding, family event, etcetera, that the other parent request the child to attend, appropriate arrangements can be made for such arrangements provided one party provides the other party not less than 28 day’s notice of any such function and the function does not affect the child’s schooling.
t)Any travel costs that may occur for all persons travelling will be funded by the parent making the request.
The father caused to be filed in support of the orders sought by him an affidavit filed on 29 August 2012. The father deposes in that affidavit he is the applicant father in the proceedings, he is the father of X, he met the respondent mother in 2007 at (omitted) when he was employed at the time on a two-year (omitted) project. At the time, the applicant father deposes the respondent mother was a single mother with two girls to two different fathers, and at that time the mother’s daughters were not living with her. The father deposes the mother was working on a short term two-month contract as a (omitted) at the (omitted) which is a rural, remote (omitted). The father deposes when the mother’s contract finished in about November 2007 the mother flew to (omitted) in (omitted) New South Wales and returned with her two daughters. The father deposes that the mother, following that, then returned to visit him and stayed with him for another month until they ultimately drove back to (omitted) during his Christmas break.
The father dropped the mother back at (omitted) on his way to (omitted) and the mother remained living with her two daughters in (omitted). The father deposes that within two days of returning to (omitted), the mother then visited upon him and the respondent mother’s children spent Christmas without their mother and to his knowledge this caused problems with the mother’s family, specifically with the mother’s mother and the mother’s sister. The father deposes that the mother lived with him up until she found a job at the (omitted) in (omitted) in 2008 and they drove together to (omitted). The father deposes that at that time the mother’s two daughters, remained living in (omitted). Five months after the parties commenced their relation, the father deposes that the mother advised him that she was pregnant. The father sets out at paragraph 11 of his affidavit that after having travelled around at work for a period of 8 years, he decided it was time to settle down, that his parents had moved into a new home in December 2008, and the father and mother then rented premises at (omitted) from the father’s parents.
X was born on (omitted) in 2009. The father deposes that he had spent one last month working away before returning home to find a job that involved no travel as in his words at paragraph 13, he “needed to be home with his family”. Paragraph 14 the father sets out that the mother’s eldest daughter stayed in (omitted), however her then 11 year-old daughter, Ms L, moved down to live with them. At that time, the father deposes he obtained employment with (omitted) at (omitted), and the mother returned to a (omitted) position then at (omitted) and at that time X was approximately four weeks old. The father deposes that Ms L commenced attending (omitted) Primary School and that at that time the father’s mother began to mind X, for what he describes as almost every day through the week as the parties were both working.
So far as is evident at paragraph 17, X’s birth was a traumatic one, ultimately resulting in an emergency caesarean section, and that as the mother returned to work soon after, it, in the father’s words, took a toll on the respondent mother. At that time, the father sets out at paragraph 17 that the mother’s moods started to change. He started to see a less nice side of her, and the mother developed what the father describes at paragraph 17 as “anger and animosity”. At Paragraph 18, the father deposes that things began to fall apart in their relationship, and he was often being asked if the respondent mother had post-natal depression or if it was bipolar, and these questions came from what the father describes as “friends and family members”.
The father deposes to an incident that took place on 29 May 2009, when his sister got married at (omitted), in which the father deposes the mother became intoxicated. Ultimately the police attended upon the hotel at which the partiers were staying. It was apparent that the mother had telephoned the police complaining that she had suffered a domestic violence incident. The father deposes that this type of behaviour from the respondent mother became more common during their relationship. The father deposes that the mother’s moods impacted upon her work, and she had a job she moved on from working at the (omitted) and obtained a job at (omitted). This job at (omitted) ended in 2010, when, in the father’s words:
The respondent mother verbally abused other (omitted) and an (omitted), and failed to help the (omitted).
The father deposes at paragraph 22 that the mother displayed extremely unstable behaviour from after X’s birth in 2009 until separation, and that their relationship suffered as a result of the mother’s moods. The father deposes that he attended a function for the Melbourne Cup at the (omitted) on 3 November 2009, that after a day of drinking he and the mother returned home, that he went to a bedroom to go to sleep and was woken by police kicking the bedroom door down.
The father deposes that he was told the respondent mother had run out of cigarettes and become violent, that the police were telephoned by the mother’s daughter Ms L, who had also telephoned ambulance officers, as the mother had gone to the bathroom and threatened to slit her wrists. The father deposes that the mother was taken away by ambulance to a psychiatric ward at the (omitted) Hospital at (omitted). The father deposes that the mother was discharged from the hospital on 4 November and given medication; however, the mother stopped taking medication after a few weeks and began becoming what the father describes as angry, and the parties’ relationship began to deteriorate.
The father deposes that he was reluctant to leave the relationship, as he was concerned not only for X’s welfare but that of the respondent mother’s daughter Ms L. The father deposes that over the next 12 months, the police were called to their home on numerous occasions, and that despite the environment in which the children were living, the father deposes that Ms L and X continued to grow and blossom. Ms L finished the school year, winning dux at their school, and X was developing communicational skills that were years beyond her, and that at that time X was spending a lot of time with his parents, and that X was becoming attached to the paternal grandmother.
The father deposes that Ms L commenced high school at (omitted) High School; however, she was struggling to adapt to the transition from primary school to high school, and that at that time Ms L began to display what the father describes as “negative behaviours”. Her marks dropped, and she was becoming suspended regularly. Ms L’s attitude and behaviour at school began to be displayed at home, and the parties’ relationship deteriorated further. The father deposes that the relationship he had formed with Ms L began to diminish.
The father deposes that on or about 9 May, upon returning home he had words with Ms L, who was on Facebook and had not done her homework, and at that time Ms L threatened to slit the father’s throat when he slept. The father deposes that Ms L became difficult to deal with in circumstances where the mother did not do anything in an attempt to discipline Ms L, and that Ms L was permitted to do what the father describes as “whatever she liked”.
The father deposes to an incident that took place in mid-2010, when the respondent mother and he were at (omitted) hotel, at which time the respondent mother called one of his old friends a slut. The mother was asked to leave the hotel by security guards, and a short time later, the father deposes, the mother assaulted three females. The father deposes that the mother sought to blame the father as, in his words, “I knew two of the other women.”
The father deposes that the parent’s home in which the parties were living became damaged on numerous occasions by the respondent mother and Ms L, and that the respondent mother and Ms L had kicked and slammed several doors off their hinges and smashed windows. The father deposes that every time there was an argument, screaming or what he describes as “crazy behaviour”, X would come running to him. At that time, the mother commenced working in (omitted) for an (omitted), as well as work at the (omitted). At that time, the father deposes his focus was on X.
The father deposes to an incident on 28 November 2010, when he was punched in the face by the mother. The father deposes on 22 December 2010, the respondent mother’s sister Ms K from (omitted), who the father described as suffering from drug abuse and a violent relationship, arrived to support the respondent mother, and brought with her her four children, and during that time, the father deposes he was treated badly by everybody in the household except X. The parties’ relationship can be described as pretty much coming to an end around Christmas of 2010.
The father deposes that in February 2011, he and the mother recommenced their relationship and he moved in with the mother at (omitted). The father deposes that he recommenced his relationship because of what he describes as “concerns for X”. At that time, the father describes the mother as smoking in the house, and that the mother did not seem to assess any risk that smoking in the house might pass on to X. The father deposes that during the month of February 2011, Ms L became what the father describes as “totally out of control”.
The father deposes that he became aware that Ms L had been engaging in drugs. The father sets out that Ms L was also bringing kids off the street into the house and that Ms L would speak both to him and the respondent mother however she wanted to. The father deposes that the respondent mother became extremely distressed, as she could not do anything about Ms L’s attitude, and at that time the mother contacted DoCS being the Department of Community Services, now known as the Department of Family and Community Services, and also asked the police to threaten Ms L. Things became so bad, the father deposes, that the mother contacted her sister in Brisbane, and she moved Ms L to Brisbane.
In about April of 2011, the respondent mother placed an advertisement in a university website advertising a room to let to a student for free in lieu of babysitting for X, and at that time a person by the name of Ms T, who is a 40 year old from (omitted), moved in. The father described Ms T as “quiet and really good with X”. The father deposes that on most nights, he would read books to X while X was in bed, and occasionally would fall asleep in her room and that the mother would always complain when he fell asleep.
The father deposes that he would often sleep in X’s room out of fear of the respondent mother doing what the father describes as “burning the house down”, as she would stay up all hours of the night watching TV and smoking. The father deposes that the mother’s shiftwork meant she would be awake at odd hours, and he was concerned because X’s bedroom was at the back of the house and sometimes the respondent mother would shut the door between X’s bedroom and the rest of the house, blocking out any chance of the father hearing X.
The father deposes that X was at that time doing well at day care, communicating very well, and that she was enormously affectionate to the father. The father deposes that he had a strong bond with X. The father deposes that there was an incident when the police were called, whereby the mother threw the father’s fishing equipment out the front door onto the lawn. The father deposes that in about December 2011, Ms L returned to spend the school holidays with the respondent mother, and at that time Ms L was a changed girl, and that living with the respondent mother’s sister had made a huge improvement to Ms L’s life.
The father deposes that the respondent mother and he continued to work, and Ms L would at the time look after X, as Ms T had to move out. The respondent’s mother’s daughter Ms J and her partner Mr C arrived from Brisbane in the New Year long weekend in 2011/2012 to celebrate X’s birthday. The father describes the birthday as a great day, and they had 20 guests at the party, the party was held at the parties’ (omitted) residence.
At paragraph 69, of the father’s affidavit he deposes that the respondent mother had applied for a job in Brisbane but did not get it. The father deposes this made her angry, as the respondent mother had planned the whole time to get him to move to Brisbane. The father deposes that he had always told the mother he did not wish to bring the children up in a large city; he wanted X to grow up in the same coastal village that he had. The father deposes that on Wednesday, 18 January 2012, Ms L returned to Brisbane, and the respondent mother rang her landlord and told her that she was moving out. At about this time the parties separated.
The father picked up X after work and took her to his parents’ home, and he returned X to the respondent mother on Sunday, 22 January 2012. On 25 January 2012, the father collected X and spent the next five days with her at his parents’ home. On 27 January 2012, after the parties had separated, he arranged to collect his lounge and belongings from the respondent mother.
The father deposes that X, one of his friends Mr A and he drove to collect them. He received a telephone call from a friend who told them that he had heard the respondent mother was going to take X and move to Brisbane, and that he would never see X again. The father deposes that at that time, he then sought legal advice in an attempt to stop the mother from leaving New South Wales. Annexure marked with the letter A to the father’s affidavit is a copy of a letter forwarded from Mullane & Lindsay Solicitors to the respondent mother. I have read and considered the annexures to the father’s affidavit. Notably, annexure A, a letter of 27 January 2012, states:
Our client does not consent to you leaving the (omitted) region with X. We are instructed to demand:
(1) that you immediately notify our client of your forwarding address and that you keep him informed at all times of your residential address and telephone number;
(2) you inform us of your proposal for X spending time with our client on a regular basis.
The father deposes that despite the forwarding of the letter on 27 January 2012, on Tuesday 31 January 2012 the respondent mother and X left (omitted) to go to Queensland. The respondent mother did not tell anybody or allow X to say goodbye to the father or his parents.
The father gave evidence with respect to the time that he spent with X following orders being made by this Court. The father deposes that, in Anzac Day of 2012 he flew to (omitted) to start a new job. His position was one in the (omitted) in (omitted) that allowed him to spend more time with X, without it affecting his work commitments. He had a roster that would have him working three weeks on and one week off, and he made arrangements with his employer at (omitted) that if things did not work out, he could come back to (omitted) for his position, and that his employer was satisfied with that arrangement. Ultimately, it was the father’s evidence in the proceedings that he indeed returned to work at (omitted). He has a permanent position there and intends to keep working at (omitted).
The father, in his affidavit, ultimately sets out his concern that the mother has a history of mental illness and violence, and that these two factors caused him serious concern; that he is able to provide extremely well for X, and should she be returned to his care, she would live with him in the premises that he currently rents. The father deposes the home has all the normal facilities, and he would have the assistance of his parents, with whom X has a very close and loving relationship, to assist him when he may need assistance.
In further support of the orders sought by the father, he caused to be filed an affidavit sworn by Ms E, filed on 29 August. Ms E deposes she is a friend of the applicant father, she has known the father since 2000. Since she has known the father, he has always been what she describes as a kind and gentle person, and that during the father’s relationship with the mother, she spent a lot of time with them both before X was born and after X was born. Ms E describes the father as an amazing father, and that during the parties relationship, she would visit them once or twice a week to have a drink with them. Ms E deposes that during that period, the father would sit inside with X, looking after her. Ms E describes the father as a “hands-on dad”.
Ms E deposes that, on occasion, she would go out with the mother on a social basis and on most occasions set out at paragraph 7 of her affidavit, Ms E describes that she observed that the respondent mother would start abusing the girls at the venues because they would talk to the father. Ms E deposes that the girls were, what she described as, childhood friends that the father had grown up with. Ms E deposes that there was never an occasion where the respondent mother did not cause some problems.
I have read and considered the affidavit filed by the father in support of the orders deposed by Mr W, affirmed on the 22 August 2012, filed 29 August 2012. Mr W deposes that he is the father of the applicant father in the proceedings, and he is the grandfather of the child, X, born (omitted) 2009. That he has four children, four grandchildren and one great grandson; that X is, what he describes as, a “dear little girl” and his “wife and I are very fond of her and have”, what he describes as, “a good relationship”. That his wife has looked after X quite often since she was born, and when the paternal grandmother is working, he would do things like take X to the park, where she would ride her bikes. Mr W describes the various games and activities that X enjoys. It is apparent, having read Mr W’s affidavit, that X very much enjoys spending time with her paternal grandparents, and also cousins.
I have read and considered the affidavit filed on behalf of the father, sworn by Ms B, filed 29 August 2012. In that affidavit, Ms B deposes that she is the mother of the applicant father, and grandmother of the child, X, in the proceedings. That she has four children, four grandchildren and one great grandson. Again, Ms B describes X as a “dear little girl” and she is very fond of her; that prior to the respondent mother’s pregnancy, the mother and the father had lived in premises owned by them at (omitted). Ms B deposes that she has assisted the respondent mother throughout the early stages of the relationship and through her pregnancy, doing such things as going shopping with the respondent mother on many occasions. Ms B offers her observations of Ms L, with respect to her being engaged or attending the (omitted) School, enjoying the local (omitted) club.
Ms B deposes that when the respondent mother returned to work at the (omitted), she looked after X each day that the mother worked, until the father came home from work later in the day. Ms B further deposes that she also offered assistance with looking after Ms L, putting her on the school bus, and from time to time, she drove Ms L to the school that she was attending at (omitted); and that she took Ms L to a counsellor at (omitted) in late 2008, as the father and mother in the proceedings could not take time off work. Ms B describes the father as being, not only a good father to X, but also a good father to Ms L, or more precisely a good stepfather to Ms L.
Ms B deposes that when the respondent mother commenced work at (omitted), X often spent nights at her home, and X spent many days at her home as the respondent mother would sleep after working nightshift at the (omitted). Indeed, it is the view of the Court, having read and considered Ms B’s affidavit, that X had a very liberal exposure of time with the paternal grandmother and paternal grandparents. Ms B deposes in October 2009 the respondent mother was working at the (omitted), and both she and her husband, the paternal grandfather, had X in their care, what she describes as, “nearly every day”. The paternal grandmother describes that X very much enjoyed undertaking various activities with the paternal grandfather. At Paragraph 22, Ms B deposes that:
X is an absolute delight to have around, and I know she does not want to leave our care. When she has to return ..... and gets upset.
The father caused to be filed a further affidavit in support of the orders sought by him, sworn by Ms C, filed 29 August 2012. Ms C deposes that she is a friend of the applicant father in the proceeding. She first met the respondent mother at (omitted) in approximately July 2011, where she was working at the time and became friends with the respondent mother. Ms C deposes that, after X’s third birthday, she noticed the applicant father and respondent mother were not working well together, and the respondent mother had a conversation with her, using words to the effect, “I’m applying for a job up north”, to which Ms C deposes she replied, “You cannot take X away without Mr Beachley”. To which the respondent mother is alleged to have replied, “Mr Beachley and I have talked about it, and Mr Beachley is coming too.” Ms C deposes that, some four days later, she had a telephone discussion with the respondent mother, during which the respondent mother said, “I’m on my way up north with X and the dog. Mr Beachley doesn’t know I have left. Once I’m there in a new house and my new job, Mr Beachley can’t do anything because there are no parenting orders over X.” I am satisfied that the mother made a unilateral decision to relocate to Queensland in circumstances where she was on notice that the father would not consent to such relocation.
The father, caused to be filed an affidavit of Ms S, which was filed on 29 August 2012. Ms S deposes that she is a friend of the applicant father, and it seems she has known the father and respondent mother and the daughter, X, for over 12 months. Ms S deposes she first met the mother in (omitted) playing the poker machines in mid-2011, and that she would often bump into the respondent mother playing poker machines. Ms S deposes the respondent mother would often attend the meat raffles and sometimes X would come with her. Ms S deposes that most times when the respondent mother came to the club, Mr Beachley took X to her grandparents in (omitted) for the weekend.
Ms S deposes that, towards Christmas 2011, she noticed what she describes as the respondent mother displaying a lot more anger and unstableness, and the respondent mother was getting very jealous and nasty. Ms S deposes the respondent mother would try to block her friendship with the father. In mid-January 2012, Ms S deposes that her friendship with the mother fell apart after she witnessed the respondent mother abusing one of the girls that she had introduced her to at the club, after the respondent mother had had too many drinks, and the respondent mother and Ms S argued about the respondent mother’s behaviour, and that was the last time that she saw her.
I have read and considered the affidavit of Ms W, filed on 29 August 2012, in support of the orders sought by the father. Ms W deposes that she has known the father since 2006, and they were close friends; that the father is a kind, hardworking, and diligent person, and that she has spent a lot of time with the father and X; that she has found the applicant father to be nothing but a caring father. She deposes she has also spent a lot of time with the applicant father and respondent mother. Ms W further deposes that she recalled one occasion when the applicant father and respondent mother attended her engagement party, during which the respondent mother became abusive towards other guests, and also became what Ms W describes as “violent”.
Ms W deposes that she witnessed the respondent mother become abusive whenever the father spoke to other females who Ms W describes as, “childhood friends” of the applicant father. Ms W deposes that, on a few occasions, she left her children – one who has autism – with the applicant father, while the respondent mother and she attended social events, and that she would often come home with the respondent mother and stayed at their place at night. On most occasions Ms W deposes she observed the respondent mother would come home and, what Ms W describes as, “abuse the father”. Ms W describes that she has witnessed the respondent mother become violent on a number of occasions towards the applicant father, both in her presence, and in front of X. The applicant father filed an outline of case document in the proceedings that I have read and considered. The issues are listed in the case outline document as who X should live with, the time X should spend with the non-resident parent, issues of family violence perpetrated during the relationship by the respondent mother, the respondent mother’s unilateral relocation to Queensland, consequential geographical difficulties in the facilitation of the child’s time with the non-resident parent, the consequent cost to facilitate the child’s time with the non-resident parent, the mental health of the mother, allegations of alcohol abuse, level of communication between the parties, the capacity of the mother to adequately supervise the child.
In support of the orders sought by the mother she caused to be filed amended response on 4 June 2012. The mother seeks orders in the amended response:
a)that X born (omitted) 2009 live with the mother;
b)that the mother be at liberty to change her usual place of residence of the child from New South Wales to Queensland
c)the mother and father have equal shared parental responsibility for the child
d)that in the event that a decision affecting the child’s education, health, religion, practices and issues, name by which the child is known arise before the child is 18 years of age, the parties shall adopt the following practice:
i)The mother will forward in writing to the father details of the decisions to be made, all relevant information relating to the decision that is within the possession or knowledge of the mother, details of the decision preferred by the mother.
ii)If the father wishes to contribute to the subject decision then the father will, within seven days of receiving written information, referred to in paragraph 4.1 of this order, forward to the mother in writing details of his preferred decision and any reasons relied upon in support of that decision, express a wish to discuss the proposed decision with the mother.
iii)In the event the mother receives no reply from the father within seven days of the relevant information referred to in paragraph 4.1 of this order then the father is deemed to have agreed to the decision proposed by the mother.
iv)In the event the father responds to the mother in writing in accordance with paragraph 4.1 of this order and the parties cannot reach a decision to be made within seven days they are to attend mediation with Relationships Australia or such other agreed dispute resolution practitioner to endeavour to reach resolution of the matter before applying to the court for the court’s determination.
e)that the father spend time with the child at all times as agreed, but failing agreement for one week during each of the Queensland school holiday periods by the father providing the mother at least six weeks prior notice and in each school holiday period he intends to spend with the child. In each Christmas holiday period the father can elect a week which either includes Christmas Day or the child’s birthday in alternating years; on any weekend in (omitted) excluding the Mother’s Day weekend or the child’s birthday if it falls on a weekend; for up to four weekends in each calendar year as nominated by the father in writing to the mother at least 21 days prior to the first day of the week; and where the father nominates to spend time with the child on any weekend in Brisbane from 5 pm Friday to 5 pm Sunday excluding on the Mother’s Day weekend or the child’s birthday if it falls on a weekend as nominated by the father in writing to the mother at least 21 days prior to the weekend the father nominates to spend with the child.
f)The parent with whom the child is not living be at liberty to telephone the child by telephone on two occasions each week at any reasonable times; on the child’s birthday; by the father on Father’s Day; on Christmas Day by the parent with whom the child is not living initiating telephone calls to the other parent’s mobile or landline for purposes in paragraph 5.1 (being the numbering reflected in the response) of this order.
g)The father is responsible for the cost for the child’s flights at the commencement of the child’s time with the father until such time it is agreed in writing that the child may fly unaccompanied. The cost of the mother or the mother’s nominee accompanying the child is also his responsibility.
h)That the mother at her cost will be responsible for the cost of the child’s flights at the conclusion of the child’s time with the father until such time as is agreed in writing until the child may fly unaccompanied, the cost of the father or the father’s nominee accompanying the child will be at the mother’s responsibility. The father will purchase tickets for a flight that leaves Brisbane airport after 10 am Queensland time on the first day when the father’s time begins. The mother will purchase airline tickets for the child to return to the mother on a flight that leaves (omitted) airport after 3 pm New South Wales time on the last day of the father’s time with the child and both the mother and father provide in writing details of the purchase flights to the other at least seven days before departure dates.
i)For the purposes of paragraph 5.2 (being the numbering reflected in the response) of this order the father at his cost will be responsible for the costs of the child’s flights at the commencement and conclusion of time with the child until such time as it is agreed it writing, that the child may fly unaccompanied. The costs of the accompanying parent is also his responsibility. The father will purchase tickets that leave Brisbane airport after 10 am on Saturday of the nominated weekends, on a flight that leaves (omitted) airport before 4 pm New South Wales time on the Sunday of the nominated weekend, that the father will provide in writing details of his purchase flight for the mother at least seven days before departure.
j)For the purposes of paragraph 5.3 (being the numbering reflected in the response) of this order the father will collect the child from the mother’s residence at the commencement of each period of time and return the child to the mother’s residence at the conclusion of the period of time.
k)The mother and father will keep the other informed at all times of the residential address, landline telephone numbers and mobile contact numbers and electronic mail addresses and any change to be provided to the other parent within 48 hours of such change and keep the other informed of the names and addresses of any treating medical or other health professionals that treat the child authorises that practitioner to provide the other parent with the information that they are lawfully able to provide about the child, inform the other parent as soon as reasonable practical of all or any medical conditions, significant health issue or illnesses suffered by the child.
l)This order authorises any treating medical practitioner to release the child’s medical information to the other parent. That the parents authorise all day care centres and schools as attended by the child to give each parent information about the child’s educational progress and other related activities and to supply them with copies of reports, photographs, certificates and awards obtained by the child (at that parent’s cost),
m)that during the time the child is with the other parent that parent will respect the privacy of that other parent and not question the child about her personal life with the other parent, speak of the other parent respectfully and not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or presence of the child.
n)that neither parent is to consume alcohol in excess of the legal driving limit during any period that the child is living with or spending time with that parent.
Turning back to the father’s evidence, the court has heard and considered the evidence of the father and those of the witnesses during cross-examination. The father presented as a candid, open witness who was cooperative in answering questions in a forthright manner. The father candidly accepted that he had driven with X on a morning following drinking and that he was recorded as driving above the legal driving limit and, indeed, charged with a drink driving offence.
In support of the orders sought by the respondent mother, she has caused to be filed an affidavit sworn by her and filed on 3 September 2012. The respondent mother deposes she is the respondent mother, that she was born on (omitted) 1972 and she is 40 years of age as at the date of swearing the affidavit and in good health. The father is Mr Beachley and was born on (omitted) 1978. He is 33 years of age. The parties started living together in 2007. There were periods of separation between 8 November 2010 before they finally separated on 17 January 2012 and the longest period of initial separation was between 28 November 2010 and June 2011. The parties have one child, X, who is now, at the time of swearing the affidavit, three years of age.
The respondent mother deposes that the relationship was, what she describes at paragraph 6, as not perfect and that during the relationship there were a number of personal issues that they had and they did not act with each other well at times. The respondent mother deposes to a number of altercations between the applicant father and her, notably the incident referred to in the father’s affidavit that took place at (omitted) when the parties were staying across the road from a wedding reception venue.
The respondent mother deposes at subparagraph 7(a)(ii) that she woke up at approximately 1.30 am in the morning. When the applicant father stirred and got out of bed he was screaming at the mother with respect to X who had a wet nappy saying “Change her nappy, slut”. The respondent mother deposes the applicant father hit her across the back of the head and dragged her to the ground by the hair, hit her head against the ground several times and dragged her by the hair out of the room and locked the door.
The respondent mother deposes that she telephoned the police. The respondent mother deposes to another incident that took place during Melbourne Cup celebrations, where she and the father, were under the influence of alcohol, the respondent mother deposes she hid the keys so the father could not drive; a verbal argument erupted and the applicant father grabbed the respondent mother by the hair and pushed her head against a brick wall of the hallway. The respondent mother deposes she fell to the ground. The respondent mother deposes that after the physical assault she was deeply distressed and looking for help and she took a knife to the bathroom, and that he does not know why she took the knife.
After this incident the respondent mother deposes the father began calling insults at her, calling her a flat slut, overbearing, psycho and that she needed to take her pills. The respondent mother deposes to a further incident that took place after a fishing trip and that the father called Ms L a slut to which Ms L replied, “I’ll slit your throat while you sleep” and that the applicant father then grabbed Ms L by the throat and picked her up off the ground and threw her onto a lounge. The respondent mother deposes that the police attended and removed the father from the property. The respondent mother did go to the Raymond Terrace Magistrates Court and an interim apprehended violence order was put in place for the protection of Ms L.
The respondent mother deposes to the applicant father assaulting her on about 28 November 2010 pushing – slamming her head into a glass shower door. In August 2011 the respondent mother deposes to an incident where she threatened to throw the applicant father’s fishing gear on the front lawn and that the applicant father pushed her on to the floor and banged her head against the ground; and that she called the police to come and remove the applicant father from the properly.
The respondent mother deposes that she is currently renting a property on a 12 month lease being a brand new townhouse at (omitted) at (omitted), New South Wales. The court notes that the correspondence forwarded to the mother advising her of today’s delivery of judgment was forwarded to that address, being (omitted), (omitted), Queensland. The mother deposes she lives alone, that X and Ms L each have their own bedrooms. She has two older children from previous relationships, namely, Ms J who is 22 years of age and Ms L who is living with the mother aged 15 years of age.
The respondent mother gives evidence at paragraphs 10 through to 20 with respect to Ms J and Ms L having cared for X at various times. At paragraphs 21 onwards the respondent mother deposes evidence with respect to the relocation to Queensland. The respondent mother deposes that from the time Ms L moved to Queensland she spoke with the applicant father about wanting to move to Queensland to be nearer her family and daughters, that she began actively looking for work in Queensland in October 2011, and that the applicant father knew of this.
The respondent mother deposes that she received an email she might receive a position in Queensland in late 2011. The respondent mother deposes at paragraph 28 of her affidavit that following the separation between the parties the applicant father was relentless in his telephone calls to her, that he was leaving intimidating messages including that he was going to make her pay and that he would report Ms T and her family to the Immigration Department and have them deported. The respondent mother deposes she emailed the applicant father about a parenting plan twice in February 2012 and that she had relocated from (omitted) to Brisbane in January 2012. After moving to Queensland the respondent mother began living with Ms J. The respondent mother then began renting a three bedroom house in (omitted), (omitted). The respondent mother deposes she then lived in the home with X and Ms L came to live with her. The respondent mother then started working with (omitted) in February 2012. In April 2012 the respondent mother deposes she started working with the (omitted). The respondent mother deposes she worked shiftwork for a fortnightly period of six shifts which had been of eight or 12 hour periods and that the times varied but the night shifts finish at 7 am.
In cross-examination the respondent mother gave evidence that she has been unable to find a full-time position and that full-time positions are hard to find in Queensland and her positions are temporary ones, although her evidence was that due to her (omitted) qualifications, is able to obtain work. The respondent mother deposes that when she works the children are cared for either by Ms J or her sister Ms M both of whom only live a five minute drive from the house, and if need be Ms M takes Ms L to school or collects Ms L from school although Ms L generally takes the bus to and from school and the bus stops outside her home.
The respondent mother deposes that X is enrolled at the (omitted) Day Care Centre at (omitted). The day care centre is about two minutes drive from the house and X attends each Wednesday and Thursday and it is her intention to start kindergarten next year. The respondent mother deposes that the applicant father spent time with X in accordance with the orders made 13 March 2012. The respondent mother deposes having had telephone communication with X during those periods in which she has telephoned the father’s parents’ home.
The respondent mother deposes to the applicant father changing the time he was supposed to spend with X on 4 May to 9 May and that he told the respondent mother that he changed the dates due to some work he had at a (omitted) at (omitted), for (omitted). The respondent mother deposes she likes X’s routine to remain as undisrupted as possible. The respondent mother deposes that although X is in Queensland she is still able to spend time with her father as she has been flying down between (omitted) and Brisbane since March 2012 and that X has been coping with the travel fairly well.
I have read and considered the annexures to the respondent mother’s affidavit. I have considered the cross-examination of the respondent mother in these proceedings. The mother presented as an unresponsive, aggressive and what can only be described as extremely argumentative witness. She challenged both counsel and the Court on some occasions. During the course of cross-examination the respondent mother was asked various questions about her involving the father in decisions relating to X’s child care. At page 17 of the transcript of proceedings taking place on 9 May 2012 at line 25 counsel for the father asked:
Do you think he –being the father –is entitled to know what X is doing in terms of her education and care?
To which the mother responded:
Yes, I think that if Mr Beachley was interested he would pay the maintenance that he was in arrears of since July last year if he was really interested in what X was doing and that sort of stuff.
Counsel then asked on line 40:
So just getting back to the question I asked you, you took the decision, for whatever reason, that Mr Beachley didn’t need to know what X’s arrangements were?
To which the mother responded:
I don’t think that it was like that.
Counsel responded:
You don’t think so?
The mother responded:
No. Because Mr Beachley never speaks to me unless it is to be abusive towards me about X. I’m not talking to him on the phone.
The mother became unresponsive and counsel for the father asked the question:
Well, that’s not what I asked you about?
The mother responded:
So I didn’t tell him.
To which counsel responded:
Can you listen to the question? Think about what I’m asking you.
To which the mother responded:
Yes. I heard the question.
To which counsel responded:
All right.
The mother responded:
You said I didn’t.
Counsel responded:
All right.
The mother responded:
You said, ‘Did I think that he needed to be aware?’ That was an oversight on my part of telling him.
Counsel responded:
So it was ---
The mother responded:
But I thought X had told him herself, anyway.
To which counsel responded:
So it was an oversight and it wasn’t because he’s behind with ---
To which the mother responded:
Well, he talks to X on the phone. She’s four years old and she tells him everything that’s going on.
Counsel responded:
Did you discuss with the father the best move for X at this stage of her developmental education? Have you invited him to talk about that?
To which the mother responded:
No. I haven’t.
Counsel responded:
See, you would agree with this proposition that at the age of four and going to school next year X really should be going to a preschool and mixing with children of her own age and getting the benefits of preschool including the educational benefits and socialisation benefits.
With respect to the issue, Counsel at line 4, page 19 of the transcript states:
All right. And you don’t think Mr Beachley’s input into that issue was worth inquiring about?
To which the mother responded:
Well, I just assumed that he knew, so if he had a problem with it that he would let me know as he has never had a problem letting me know what’s on his mind at any other time.
In questions about the school which the mother proposed that X would start when she attended school, questions were asked of the mother.
Counsel asked the question:
If it was the case that X was due to start school this year what would have happened then? What would you have done?
To which the mother responded:
I would have just let him know where she was going to be attending.
Counsel stated:
Yes.
The mother replied:
Which I will now – she will be going to –
Counsel asked:
You wouldn’t have asked for his input into that, would you?
To which the mother stated:
No.
Counsel then asked the question:
No. So you’re the one that’s making the decisions.
To which the respondent mother stated:
As I have done since the day she was born.
Counsel asked the question:
And you don’t think that Mr Beachley has got any worthwhile input into those decisions?
To which the mother responded:
Well, why hasn’t he tried to put input in before?
Further questions were asked of the mother by counsel as follows following line 25:
As far as day-to-day arrangements for X are concerned the only way that Mr Beachley would know anything or much about those arrangements was if you told him.
The mother answered:
Or through X.
Questioned by counsel:
And do you? Well that’s right, isn’t it? If you didn’t tell him there’s no – you can’t rely on him knowing things.
To which the mother responded:
One incident that he hasn’t been told about: one.
In question by counsel:
Just getting back to the question: Do you think that Mr Beachley would have anything to contribute in terms of what X could be doing for her education and her care?
Answered by the mother:
No. I don’t think he does.
At line 5 of page 21 of the transcript, counsel for the father asks the mother:
No. You don’t think, so it’s not worth asking him in your view; is that right?
Answer by the mother:
I would let him know what my plans are.
At line 39, I asked questions of the mother:
You said that you’d made a decision about the school. You have made a decision about the school X’s going to?—
The mother responded:
Well, if I’m still in (omitted) – well, she will be going to (omitted) Primary School which is just around the corner from our house.
The mother then gave some evidence with respect to moving back to the (omitted) area if the Court made orders for X to live with her father in the (omitted) area. At page 25, lines 20 and onwards, counsel asked further questions of the mother:
With you at (omitted), that’s where she will be going?
Response by the mother:
Yes.
Question by Counsel:
And my question of you, it’s true, isn’t it, that you didn’t consult Mr Beachley about your choice of schools?
To which the mother replied:
Why would I, at this stage?
When asked questions about the applicant father’s interaction with X with respect to the reading of bedtime stories, the respondent mother gave evidence that it was her view that the applicant father only read bedtime stories to X in circumstances where the respondent mother forced him to do it and would not concede in cross examination found at page 38 of the transcript that the father and child might enjoy doing the same. At page 39, line 25 of the transcript the mother is asked whether she remembers an incident that took place on November 2009 Melbourne Cup Day to which she answered:
Yes I do.
It was suggested that that was a time when she was attended upon by the ambulance service, by counsel for the father, to which the mother answered:
Yes.
Counsel’s question:
They found you locked in a bathroom.
The mother replied:
Yes.
Counsel then stated:
Holding a six inch knife to your own throat and threatening to push it in. Is that right?
The mother replied:
I don’t recall that. I do remember I was very, very low.
Counsel for the father:
Yes. You told the officer?
The mother’s reply:
And I needed – I rang the ambulance myself to get help for myself.
Counsel for the father:
Can I just suggest this to you; that you told the ambulance officers you weren’t wanting to live?
The mother’s answer:
No. I didn’t.
Line 35 of page 40, counsel for the father puts a proposition to the mother as follows:
Well, you were spoken to by somebody who you probably identified the signature just on 4 November who reported this – being some notes from the (omitted) Hospital – and if you’ve got any disputes about this I can certainly show it.
Counsel reads out:
39 year old female presented in context of altercation with her partner last night on presentation. Reported deppressive symptoms over the past two months, and described lack of motivation, low mood, irritability, guilt associated with her parenting, low self esteem, inactivity, occasional suicidal thoughts, poor impulse control, poor sleep. In the background she reported that she had a traumatic delivery of a daughter 11 months ago. Multiple post-natal implications. However she was coping with that, but her 12 year old daughter is distressing her by being naughty and argumentative, which has added up and also the pressures of the workplace, resulting in irritability and poor impulse control leading to frequent altercations with her partner.
Counsel for the father:
Now, is that’s correct, and I - do want you to read it?
The mother replied:
No.
Counsel for the father:
That seems to indicate that you were the one who was precipitating the arguments that you were having with your partner at that stage was?
The mother answered:
Abusive.
At line 15 of page 41, counsel for the father put to the mother:
Well, what this is describing is, and I will read it again to you, these things you described resulting in irritability, poor impulse control, leading to frequent altercations with her partner.
Counsel for the father asks:
Now, it’s stating I’m starting arguments with my partner, isn’t it?
The mother replied:
No, it’s not.
The Court is of the view that the notes indicate the mother has failed to indicate upon her presentation at the (omitted) Hospital that she was being abused by the father. Having read the notes, having heard the cross-examination, the Court forms the view that it was the mother’s irritability and poor impulse control that led to frequent altercations with the father in these proceedings.
The mother was later interviewed by a person by the name of (omitted) at the (omitted) Community Health. The notes taken by the (omitted) Community Health states:
“The mother was scheduled after deliberately self-poisoning and threatening herself with a knife. She was admitted to a psychiatric hospital for a follow up with Community Health and (omitted).”
The court accepts the respondent mother did see (omitted) from the (omitted) Community Health. It is apparent the mother did not advise (omitted) from the (omitted) Community Health that she was suffering abuse or family violence by the applicant father in the proceedings.
The respondent mother offers by way of explanation during the course of cross-examination that she was embarrassed to do so. Noting the respondent mother’s presentation and the manner in which she gave her evidence during the course of cross-examination, the Court does not accept that explanation. It is the view of the Court that the respondent mother failed to disclose any abuse or family violence in circumstances where the Court forms a view that none was taking place, and it was the mother’s moods and mother’s issues with her mental health that were causing difficulties during the course of the relationship.
The respondent mother was asked questions about an incident that took place when the applicant father returned from fishing and his fishing gear was thrown out. The mother was asked questions about the police report at page 52 of the transcript. At line 10 it was put to the mother:
…had confronted the victim about her smoking inside the premises in the company of your child. Victim had retaliated about his drinking and having his spear fishing gear in the lounge room. The argument culminated in the victim throwing the person of interest’s spear fishing gear out on the front lawn. The victim claims the person of interest grabbed her by the hair and hit her head on the ground a number of times. The person of interest denies this and states that he grabbed her and pushed her into a bedroom to stop her throwing his belongings in the yard. He denies any assault. The victim originally stated she was punched by the person of interest. She is no longer claiming this which places some doubt on her version. The victim had no visible injuries.
There is insufficient evidence to proceed with any charges. The victim also signed an official police notebook indicating she didn’t want to provide a statement. As such, no further action is to be taken. The person of interest voluntarily left the premises. (omitted) Police Station made arrangements for his brother to collect him. The spear gun was seized as a precautionary measure. There was no indication at all the spear gun was used or threatened to be used in any way. It may be returned at a later date.
The Court is highly sceptical of the evidence given by the mother in these proceedings with respect to family violence, in circumstances where the respondent mother has clearly changed her story to the police in circumstances where they presented following an argument that has taken place between the parties. During the course of the cross-examination the mother conceded that she had received a section 10 bond for a period of six months following an assault in which she was charged at a licensed premises, such charges consistent with the evidence given by the father and the witnesses who have filed affidavits in support of his application relating to the mother entering into fights or become abusive whilst at licensed premises, including registered clubs.
The respondent mother was cautioned on various occasions during the course of the cross-examination in circumstances where she had become argumentative with counsel for the applicant father. During the course of cross-examination the respondent mother conceded, although after much cross-examination, that she had not paid the costs of some airfares that were required pursuant to orders made by this court. The mother conceded during cross-examination that since she was 16 years of age she had what the Court can describe as a mental health history, and at 16 attempted an overdose of medication whilst intoxicated and was admitted to hospital.
Questions were asked during cross-examination of the mother with respect to her siblings. Those questions are found at page 23 of the transcript of the proceedings of 10 May 2013.
At line 5 onwards counsel asked the mother:
Now, just in regard to under the heading of your family medical and mental health history, you describe some issues that your siblings – that occurred with your siblings, yes?
The mother answered:
With my family siblings, yes.
Counsel for the father asked:
Yes, are they all of your siblings, do you have four siblings or more
The mother answered:
Yes, I have four siblings.
Question by counsel:
You have four, same mother and father?
The mother answered:
Yes.
Counsel asked:
And you’ve described Ms K as being diagnosed with bipolar,
The mother answered:
That’s right. She also has an autoimmune disease.
Counsel asked:
And a history of using speed and THC, is that right?
Answer by the mother:
About 10 years ago.
Counsel stated:
Well, you’ve recorded that here.
The mother answered:
15 years ago.
Counsel questioned:
I’m just asking, I’m just confirming what you’ve recorded, that Ms M, your sister, was, according to you, an abuser of THC? We’re talking about cannabis, aren’t we?
The mother replied:
Yes. I can’t recall that.
Counsel questioned:
Mr N, 36 years old?
The mother answered:
Yes.
Counsel questioned:
Speed abuser?
The mother answered:
Yes, over 20 years ago.
Counsel questioned:
And Mr R, alcohol abuse?
The mother replied:
I don’t know, I don’t see them.
As previous set out, the Court has serious concerns about the manner in which the mother gave her evidence during the course of the proceedings. The Court found the respondent mother to be argumentative, unresponsive and aggressive during the course of her cross-examination.
In further support of the orders sought by the respondent mother, the respondent mother caused to be filed an affidavit sworn on 3 September 2012 by her mother Ms P. Ms P deposes she is the mother of the respondent mother in the proceedings, being the maternal grandmother of X. Ms P deposes she has observed the applicant father to make repeatedly cruel comments in relation to the way in which the respondent mother had handled herself during child birth, telling her that she made a fool of herself. Ms P deposes that Ms L has told her that the father had hit her and called her names.
Ms P deposes that she was contacted by (omitted) from the Department of Child Services New South Wales, and that she was told that Ms L had stated that she could not be near the father any longer, as he had assaulted her physically and verbally.
The Court notes that Ms P, the maternal grandmother lives in (omitted) and is employed as a (omitted). She has looked after X and Ms L and tries to visit them frequently during her time off, and usually takes time off a few days every fortnight, using the time to see her daughters and granddaughters.
In support of the orders sought by the mother, and in addition to her affidavit, filed on 3 September 2012, and that of the affidavit of Ms P from 3 September 2012, she caused to be filed an affidavit affirmed by Ms T on 6 March 2012, filed on the same date. In that affidavit, Ms T deposes that she is a student at the (omitted), she is on a scholarship through (omitted) studying (omitted). Ms T deposes she met the respondent mother March 2011 and knows her as Ms McMaster, by responding to an advertisement placed on the (omitted) website for a childcare position, and that she was able to provide childcare for X and receive board as payments, moving into a property at (omitted), on or about 29 March 2011.
Ms T deposes that when she began caring for X, she saw very little of the applicant father and he would only stay occasionally when he did not want to travel back to (omitted) after working. Ms T deposes that she can remember X visiting her grandparents twice at (omitted), that, that Court takes to mean the paternal grandparents. And when she first moved in with the respondent mother, there was a good routine in place for X, which made caring for her as, what Ms T describes as, “very easy”. Ms T deposes that she would read to X before bed, before she would go to sleep, and that the respondent mother would arrange for her shifts around Ms T’s university schedule and X’s childcare.
Ms T deposes to occasions on which the applicant father did attend the premises, and that at times he would be in the kitchen on the computer, usually drinking beer; he would go to sleep in X’s room and that the respondent mother would ask him not to do that, as she was concerned he might roll onto her by rolling and turning in sleep. Ms T deposes she found a placement at a childcare centre at the (omitted) for X, and she would take X to and from childcare when the mother was at work, and she would travel to and from childcare by bus, and that X loved going on the bus.
Ms T deposes that she moved with the mother and X into premises at (omitted). Ms T deposes she left and went back to (omitted) for a period, then returning to live with the mother. And on this occasion Ms T states that she witnessed the father assault the mother in front of X, and the police took the father away. I have otherwise read and considered the balance of Ms T’s affidavit with respect to her observations of the parties during the time which she looked after X.
I have read and considered the affidavit of Ms K, sworn on 4 March 2012, filed 3 September 2012. In that affidavit, Ms K deposes that she is the maternal aunt of X, she is the sister of the respondent mother, and she agreed to care for Ms L when the mother was offered a position in (omitted) in Queensland. Ms K deposes that she met the applicant father in about January 2008, when he and the respondent mother called in to see Ms L on their way to (omitted). Ms K deposes that she again saw the applicant father at a time when the mother was pregnant and the parties were living again in (omitted).
Subparagraph (2) provides that:
If:
a)a parenting order provides that a child’s parents are to have equal shared parental responsibility; and
b)the Court does not make an order for the child to spend equal time with each of the parents
theCourt must:
c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
e)if it is, consider making an order to provide for the child to spend substantial and significant time with each of the child’s parents.
Subparagraph (5) provides that:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
a)how far apart the parents live from each other; and
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 parents; and
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; and
d)the impact that an arrangement of that kind would have on the child; and
e)such other matters as the Court considers relevant.
I now turn to section 65DAA, subparagraph (1), being whether it would be reasonably practicable, firstly, for the child to spend equal time with both parents having regards to the practicality issues raised at subparagraph (5). Should the mother remain in Queensland and the child live with her or should the child live with the father in New South Wales, it would be not reasonably practicable for the child to spend equal time given the parties live some approximately 9 to 10 hours drive between the parties.
If the parties live close to one another because the mother moved back from Queensland and it is the view of the parties that they may live close enough to one another for it to be reasonably practicable, then the Court must then consider whether the parties have the current and future capacity to implement an arrangement for equal time. If the courts was of the view that the parties could have the future capacity to implement an arrangement of that time, the Court must also consider the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing that type of arrangement.
The Court is not satisfied that the parents have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of equal time, and in that regard it is the view of the Court that equal time would not be reasonably practicable if the respondent mother lives in Queensland and the applicant father in New South Wales and the child lives in either New South Wales or Queensland or even if the parties were living close to one another in circumstances where the parties’ communication is lacking.
The Court is required to then consider whether or not it would be in the best interests and reasonably practicable for the child to spend substantial and significant time. Substantial and significant time is defined at section 65DAA(3) and provides that:
a child will be taken to spend substantial and significant time with a parent only if:
a)the time the child spends with the parent includes both
i)days that fall on weekends and holidays; and
ii)days that do not fall on weekends and holidays; and
b)the time the child spends with the parents allows the parent to be involved in:
i)the child’s daily routine; and
ii)occasions and events that are of particular significance to the child; and
c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Turning to the issues of practicality. If the child lives in either Queensland or New South Wales, it would not be reasonably practicable as the parties simply live too far from one another. If the parties lived close to one another, it is the view of the Court the parties would have the current and future capacity to implement an arrangement for the child spending substantial and significant time with each of the child’s parents.
It is the view of the Court that although the parties’ communication is somewhat wanting and would not be sufficient to allow the parties to undertake equal time, the Court is of the view that the parties’ communication would be sufficient to allow the parties to communicate with each other and resolve difficulties that might arise in the implementation of a significant and substantial time arrangement. It is the view of the Court that an arrangement of that kind, that is, an arrangement for substantial and significant time, would not have an adverse impact on the child, but it would be not reasonably practicable if the parties continued living where they are. In that regard, the Court could not make an order for substantial and significant time.
The Court is then required to consider those matters set out at 60CC to determine what is in the best interests of the child in the proceedings. And I now turn to section 60CC as it existed prior to the amendments to the Family Law Act1975 that took place on 7 June 2012. Section 60CC is broken up into three sections being subparagraphs (2), subparagraphs (3) and subparagraph (4). Subparagraph (2) contains the primary considerations being:
a)the benefit of the child having a meaningful relationship with both the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are set out at (3)(a) through to (m), and without limiting paragraphs (3)(c) and (i), the Court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent as set out at section 60CC(4). I firstly turn to those matters set out or additional considerations set out at section 60CC(3)(a). (3)(a) requires me to consider:
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.
This is a matter in which the views of the child were not sought by the Independent Children’s Lawyer noting the child’s early age. And had the child expressed any views, it is the view of the Court that such views would have been expressed in circumstances where the child would have suffered limited maturity and a level of understanding such that the Court would give those views no weight.
I am asked to consider the nature of the relationship of the child with each of the child’s parents and any other person, including any grandparent or other relative of the child. Having regards to the affidavits filed by the parties and on behalf of the parties; their cross examination and having regards to the observations of the family report writer, the Court is of the view that X has an extremely good relationship with both of her parents and with the grandparents, most notably with the paternal grandmother with whom it would appear X had spent a significant amount of time in circumstances where when the parties were living together and while the mother was working X was largely in the care of the paternal grandmother.
I am required to consider 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. This is a matter in which the Court considers the father has demonstrated a willingness and has an ability to facilitate and encourage a close and continuing relationship between the child and the other parent.
It is unfortunately a matter in which the Court considers if the child remains living in Queensland with the mother, it is the view of the Court the mother has shown an unwillingness and an inability to facilitate and encourage a close and continuing relationship by virtue of her views about the father and by virtue of her failure to include the father in some of the decision making she has made with respect to the child’s education. It is the view of the Court that the mother has an unwillingness and an inability at this time to facilitate and encourage that close and continuing relationship when the promotion of that close and continuing relationship is exacerbated by the great distance that exists between the parties.
I am required to consider the likely effect of any change in the child’s circumstances including the likely effect on the child of any separation from either his or her parents, any other child or any other person with whom she or he has been living, including a parent or other relative of the child. This is a matter in which the father seeks orders that the child now live with him. I note the child is of a young age, and having regard to the observations of the family report writer, the child has developed a close bond with the mother but also a close bond with the father and with the father’s side of the family.
The orders as sought by the father would see the child relocate from Queensland living with the mother to live with the father. In those circumstances, there would be an effect on the child, but it is the view of the Court that such effect would be ameliorated by the fact that the father and his parents, particularly the paternal grandmother, have a strong and continuing relationship with the child. There would be an effect on the child in any separation from the child’s siblings, particularly Ms L, but noting the great distance in age between the two children, it is the view of the Court that this effect would be minimal.
I am asked to consider the effect of the separation of the child from the father in the proceedings. The Court notes that the father spent considerable periods of time with the child since the day the mother unilaterally relocated to Queensland. It is the view of the Court, though, if the child continues living with the mother in Queensland, there is likely to be a greater effect of separation in circumstances where, as the Court has stated, the Court is of the view the mother has an unwillingness and inability to facilitate a close and continuing relationship between the child and the child’s father.
I am asked to consider the practical difficulty and expense of a child spending time with and communicating with a parent, and whether that difficulty or expense will substantively affect the child’s rights to maintain personal relationships and direct contact with both parties. This is a matter in which the tyranny of distance works against the parties. They live, near as makes no difference, some 10 hours drive between one another, the father residing on the New South Wales coast and the mother residing a little bit north of Brisbane, some half an hour drive away at (omitted). The parties live a good day’s drive apart and at least one hour’s air travel apart.
The Court notes that the father has approximately one hour’s drive to the airport and the mother half an hour drive to the airport. With flight waiting time, the parties live a considerable distance apart. There is a practical difficulty of the father spending time with the child or the mother spending time with the child caused by that separation. The Court is of the view, however, that the parties are able to bear the expense of air travel and as such this somewhat ameliorates the ability of the child to maintain personal relationships and direct contact with both parents. Indeed, it is the mother’s view that the child has enjoyed air travel.
I am asked to consider the capacity of each of the child’s parents and 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. This is a matter in which the mother has a history of mental illness. There have been occasions on which the mother has attempted suicide. The Court happily notes this is some time ago.
The Court is of the view that currently both parents have a sufficient capacity to provide for the needs of X, including her intellectual and emotional needs. I am satisfied that the paternal grandmother is able to provide for the needs of X, including her intellectual and emotional needs, and that she has a sufficiently strong bond and has cared for X on sufficiently long enough occasions that if the father requires her to assist him in the care of X, she is able to do so.
I am asked to consider the maturity, sex, lifestyle and background of the child and either of her parents and any other characteristic of the child the Court thinks relevant. There is nothing in the maturity, sex, lifestyle and background of the parents the Court considers are relevant or of the child. The Court is not aware the child is of Aboriginal or Torres Strait Islander background. I am asked to consider the attitudes to the child and of the responsibility as a parent here demonstrated by each of the child’s parents. This is a matter in which the parties have, in my view, demonstrated a responsibility towards parenthood that is responsible and reasonable and good.
I am asked to consider any family violence involving the child or a member of the child’s family. This is a matter in which the Court is unable to make any findings about family violence and the Court has grave questions over the evidence given by the mother with respect to her allegations of family violence when she failed to disclose any family violence perpetrated upon her by the father in circumstances where she had spoken to a person at the hospital upon being admitted to hospital following an attempted suicide and then further speaking with a health worker after her discharge from hospital. The Court notes the explanation given by the mother. However noting the mother’s demeanour during the course of the cross-examination, that the Court does not accept this explanation.
The Court is aware that there was a family violence order applying to the father and the mother’s child, Ms L. There is no family violence order in place applying to the child. I am asked to consider making an order that would be least likely to lead to the further institution of proceedings in relation to the child, and I consider that fact when making final orders in these proceedings. I am asked to consider any other fact of circumstance the Court thinks is relevant.
I am conscious of the respondent mother’s desire to move to Queensland. I am conscious and have considered the mother’s position with respect to her desire. It is the mother’s position she seeks to move to Queensland for family support. She seeks to move to Queensland to be closer to her daughters, and she appears that on some basis she seeks to move to Queensland in circumstances relating to her employment. If I cover those three factors, the Court notes that with respect her daughters, the mother has historically on a number of occasions left both children, Ms L and her elder adult daughter, in the care of other adults in circumstances where she has pursued her relationship with the father, leaving them at one stage in Queensland whilst moving to live with the applicant father in New South Wales.
And indeed, Ms L did move to live with the respondent mother in New South Wales. However the mother found it so difficult that she sent Ms L to live with her sister, and the Court notes the notes subpoenaed from (omitted) Health Service with respect to the difficulties the respondent mother was facing dealing with Ms L. In those circumstances, whilst the Court notes the desire of the respondent mother to be in Queensland close to her daughters, the Court also notes the mother’s previous history of leaving the child, Ms L, not of the parties’ relationship in Queensland.
The Court notes the mother’s desire to move to Queensland with respect to work. The Court notes that the mother’s evidence during cross-examination was that because of working conditions in Queensland she has been unable to find a permanent position, but the mother is able to find employment in Queensland in the (omitted) profession. It is the view of the Court that the mother was able to work in New South Wales, and that the mother did not make a decision to move to Queensland out of desire to obtain employment in circumstances where she could not do so in New South Wales.
In respect of issues relating to family support, the Court notes that the mother’s family is in Queensland, but the mother had made a decision long ago during the course of her relationship to move to New South Wales and prior had worked outside of New South Wales, working in towns and places far away from her family support. Whilst the Court notes the mother’s desire and the mother’s interest to move to Queensland, the Court must view the needs of the child as paramount in this matter, and the best interests of child must override that of the mother’s desire to move and remain living in Queensland.
I am asked to consider subparagraph 4 of section 60CC that provides that without limiting paragraph (3)(c) and (i), the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, in particular the extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child.
This is a matter in which both parties have participated in making decisions about major long-term issues in relation to the child. The parties are locked in these proceedings fighting about major long-term issues. This is not a matter where either party has failed to spend time with the child to such a degree that the Court should give that any great weight, or for that matter any weight, nor have they failed to communicate with the child.
The Court must consider the extent to which each of the child’s parents has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation the child. This is not a matter where the father has failed to allow the mother to participate in making decisions about major long-term issues in relation the child.
This is a matter in which the mother has failed to facilitate the father participating in making decisions about major long-term issues in relation the child, particularly in respect of the child’s education and schooling. During cross-examination the mother was challenged about her failure and the mother made no concession as to why she thought the father should be included and saw no value in the father being included in making those decisions. This is a matter in which the mother has failed to facilitate the child spending time with the father in circumstances where the mother made a unilateral decision to relocate with the child near some 10 hours drive away from the father’s current location and in doing so was limiting the amount of time the father could spend with the child and communicate with the child.
The Court now turns to those matters set out at section 60CC(2)(a) and (b), being the benefit to a child of having a meaningful relationship with both parents. This is a matter in which the Court view there is a benefit to the child having a meaningful relationship with both of the child’s parents. This is a matter in which the Court forms the view that the mother will not facilitate the child having a meaningful relationship with the father in circumstances where the parties live some 10 hours drive away.
The distance between the parties is so great and in the view of the Court the mother’s attitude is such that if the child remains living with the mother in Queensland, the child will not have a meaningful relationship with the father. It is the view of the Court the child will benefit from a meaningful relationship with both parents. It is the view of the Court that if the child lives with the father, the child will have a meaningful relationship with the mother.
I am asked to consider making an order to ensure the need to protect the child from physical and psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
The Court is required to protect the child from physical and psychological harm from being subject to, or exposed to, abuse, neglect or family violence. The Court is of the view that if the child lives with the mother or lives with the father, the child will not be exposed to physical and psychological harm, abuse, neglect or family violence.
The Court flagged the issue as to whether the Court should make different orders to that provided for by either party, and the Court did flag between the parties and provided the parties with procedural fairness. The Court considered making an order that if the mother were to relocate from Queensland to New South Wales, the Court would make an order that the child live with the mother and spend time with the father.
It is the view of the Court that if the child were to live in close proximity to the father while living with the mother in New South Wales, that the mother would be able to facilitate and encourage a close and continuing relationship by virtue of the fact the parties would not be too far away and that the child would benefit from having a meaningful relationship with both parents. It is the view that the tyranny of distance between the parties and the mother’s attitude is such, however, that if the child continues to live with the mother some 10 hours away from the father, the child’s relationship will be compromised to a point where the child will not have a meaningful relationship with both of the child’s parents.
ORDERS DELIVERED
I certify that the preceding one-hundred-and-seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 2 August 2013
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