BEAUMONT & RAWLINGS
[2012] FMCAfam 48
•19 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEAUMONT & RAWLINGS | [2012] FMCAfam 48 |
| FAMILY LAW – Children – parenting orders – relocation – where mother seeks to relocate the child’s residence to the United Kingdom – boy aged 2 years and 6 months. FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – whether equal time with each is in the child’s best interests – whether equal time is reasonably practicable – substantial and significant time. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CB, 60CC, 61DA, 65DAA |
| M v S [2006] FamCA 1408; (2007) FLC 93-313; (2008) 37 Fam LR 32 Mallahan & Mallahan [2010] FamCA 631 McCall v Clark [2009] FamCAFC 92; (2009) 42 Fam LR 483; FLC 93-405 Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 |
| Applicant: | MS BEAUMONT |
| Respondent: | MR RAWLINGS |
| File Number: | SYC 2950 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15 and 16 September, 29 November 2011 |
| Date of Last Submission: | 29 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 19 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Auld |
| Solicitors for the Applicant: | Tiyce & Partners Lawyers |
| Counsel for the Respondent: | Mr Jackson |
| Solicitors for the Respondent: | Adams & Partners Lawyers |
ORDERS
All earlier previous parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child of the parties [X] born [in] 2009.
The child [X] is to live with the Applicant Mother.
The Mother is restrained from changing the residence of the child [X] from Australia to the United Kingdom until after [date omitted] 2012.
The child [X] is to spend time with the Father as follows:
(a)UNTIL [date omitted] 2012:
(i)each Saturday from 9:00am until 5:00pm;
(ii)from 10:00am until 2:00pm on Christmas Day 2011;
(iii)from 10:00am until 2:00pm on the child’s birthday; and
(iv)at such other times as the parties shall agree until the child leaves Australia.
(b)FROM [date omitted] 2012 IN THE UNITED KINGDOM:
(i)After six (6) months of the child’s taking up residence in the United Kingdom the Father may visit him and spend from 9:00am to 5:00pm with the child each day during his visit for a period of up to two (2) weeks and the Mother is to be present with the child during the first day of the Father’s visit;
(ii)For the purpose of Order 5(b)(i) above the Mother is to be responsible for payment of the Father’s economy class return airfare from Australia to the United Kingdom and return and for the costs of the Father’s basic accommodation in the United Kingdom for the initial period of two (2) weeks; and
(iii)The Father is to spend time with the child for subsequent periods of two (2) weeks from 9:00am until 5:00pm each day or such further times as the parties shall agree and for this purpose the Father is to be responsible for payment of his own airfares and the costs of his accommodation in the United Kingdom for all subsequent visits after the visit referred to in Order 5(b)(i) above.
(c)FROM 1 JANUARY 2013 IN AUSTRALIA:
(i)The Mother is to travel to Australia with the child for two (2) weeks during the year 2013 and each year thereafter for the purpose of the Father spending time with the child [X] in Australia from 9:00am to 5:00pm each day or for such further times as the parties shall agree and the Mother is to be present with the child for the first day of each period;
(ii)The Mother is to give the Father no less than six (6) weeks notice of the dates when she will arrive in Australia and return to the United Kingdom for the period of time provided by Order 5(c)(i) above.
For the purpose of changeover in Order 5(a) the Father is to collect the child from the Mother’s residence and return the child to the Mother’s residence.
The Father must undertake urinalysis according to the Australian/NZ standard for supervised collection of samples for the purpose of establishing his use of illicit drugs if any and must provide each result to the Mother by email prior to his leaving Australia for the United Kingdom or the Mother’s leaving the United Kingdom for Australia as provided by Order 5 above and in the event that the Father is unable to establish a negative result for his sample then the time that the Father spends with the child immediately following the result is to be supervised by the Mother.
The Father and the Mother must provide an itinerary of their travel between Australia and the United Kingdom no less than fourteen (14) days prior to the proposed date of travel.
The Father is permitted to communicate with the child by telephone:
(a)on three occasions in each week before the hour of 7:00pm;
(b)on the child’s birthday;
(c)on the Father’s birthday;
(d)on Father’s Day; and
(e)on Christmas Day in each year.
The Father is permitted to communicate with the child by email on a liberal basis once the child has learned to read.
The Father is permitted to communicate with the child by Skype cam on no less than three (3) occasions per week at all reasonable hours.
Each party must provide to the other details of:
(a)their current residential address;
(b)their current landline and mobile telephone numbers; and
(c)any other emergency contact numbers.
Neither party is to denigrate or criticise the other party in the presence or hearing of the child [X] or permit any third person to do so.
In the event that the child suffers any medical emergency requiring medical or hospital treatment while spending time or living with the other parent:
(a)the parent in whose care the child happens to be at that time must notify the other parent as soon as practicable;
(b)the parent in whose care the child happens to be at that time must notify the other parent of details of any treating medical practitioner and any hospital where the child is being treated as soon as practicable and authorise the medical practitioner or hospital to provide to the other parent details of the child’s condition and treatment.
Once the child commences school the Mother must:
(a)notify the Father of the name and address of the school; and
(b)authorise the school to provide to the Father at his expense copies of all school reports, newsletters, advice about school photographs and other information normally provided to parents of children attending that school.
IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Rawlings is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2950 of 2010
| MS BEAUMONT |
Applicant
And
| MR RAWLINGS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a little boy named [X] who was born [in] 2009. The Applicant wants to return to the United Kingdom, the land of her birth, and take [X] with her.
The Father opposes the Mother’s application. He wants [X] to continue to live in Australia.
Areas of Agreement
The parties agree that [X] should continue to live with his mother and that his father should continue to spend time with him. They also agree that they should have equal shared parental responsibility for him.
Orders Sought
In summary, the Mother seeks orders that:
a)She be permitted to change the residence of the child [X] to the United Kingdom but not before June 2012;
b)The parties are to have equal shared parental responsibility for the child;
c)The Father is to spend time with the child in the United Kingdom as follows:
i)After 6 months, the Father is to visit the child in the UK and spend time with him on a daily basis;
ii)The Father is to visit the child in the UK on as many occasions in each year as he is able to do so, on giving six weeks’ notice; and
iii)The Mother is to be responsible for paying the Father’s first economy class air fare to and from the UK.
d)The Father is to spend time with the child in Australia for two weeks each year, when the Mother will travel to Australia with the child.
e)The Father is to undertake urinalysis to establish that he is not using illicit drugs.
f)The parties are to provide an itinerary of their proposed travel to each other.
g)The Father may communicate with the child by telephone, mail, email and Skype.
h)The parties are to advise each other of any change of address or telephone number.
The Father seeks orders as set out in a Minute of Orders filed in court on 15th September 2011. He seeks orders that:
a)The parties should have equal shared parental responsibility for the child;
b)The child should live with the Mother;
c)The child should spend time with the Father:
i)on Saturdays, for four block periods of no more than 4 nights in length from and after 1st January 2013;
ii)For half of each school holiday period once the child commences school;
iii)On Christmas Day and at Easter.
d)The Mother is to be restrained from relocating the child’s residence outside of the Sydney metropolitan area;
e)The mother is to be permitted to travel overseas with the child on two occasions not exceeding six weeks each year until the child commences school;
f)Once the child commences school[1] the Mother is to be permitted to travel overseas with the child on two occasions not exceeding three weeks each year during the school holidays; and
g)Usual orders about non-denigration of each party and notifying the Father of matters to do with the child’s school and medical emergencies.
[1] Presumably, as there appears to be a clerical error in the Minute of Orders
Issues
The only real issue is whether or not the Mother is to be permitted to relocate the child’s residence to the United Kingdom and, if so, when.
Background
Counsel for the Respondent Father, Mr Jackson, has provided a very useful short history, procedural history and chronology in the father’s Case Summary Document.
The Mother was born in the United Kingdom [in] 1984. She is therefore 27 years old. She arrived in Australia in 1996, when she was twelve years old.
The Father is 28 years old. He was born [in] 1983.
The Father has two children from an earlier relationship, [Y], born [in] 2003 and [Z], who was born [in] 2005. The two children live with their mother and are not currently seeing their father. The Father last saw the two children in February 2011.
The parties commenced living together in March 2008. They did not marry.
There is one child of the relationship, [X], who was born [in] 2009. [X] is two years and six months old.
The parties separated in January 2009, before [X] was born.
The Mother travelled to the United Kingdom with [X] on 15th September 2009 and returned to Australia on 26th October 2009.
The Mother commenced proceedings in this Court on 12th May 2010. She sought orders that:
a)[X] should live with her;
b)The parties should have equal shared parental responsibility for him;
c)The Father should spend time with the child as agreed;
d)The Mother should be permitted to take the child to the United Kingdom from 8th June to 9th September to spend time with his great grandmother, who was terminally ill.
On 7th June 2010 the parties entered into consent orders, permitting the Mother to take the child to the United Kingdom, provided that she returned the child to Australia by 9th September 2010.
After her return, the Mother filed an amended Application on 29th October 2010, seeking to relocate the child’s residence to the United Kingdom.
The Father filed a Response on 22nd November 2010, opposing the orders sought by the Mother.
The parties were directed to attend a Child Dispute Conference with a Family Consultant, which they did on 30th November 2010. No agreement was reached.
The parties entered into consent orders in November and December 2010, providing that the Father could spend time with the child.
The Application was listed for final hearing on 15th and 16th September 2011. A Family Report was ordered.
Evidence
The Mother gave evidence, as did her mother, Ms B, who had travelled out from the United Kingdom for the purpose of the hearing.
The Father gave evidence, as did his father, Mr R.
The Family Consultant who prepared the Family Report, Dr G, gave evidence on a later date, 29th November 2011.
It is the Mother’s evidence that she wishes to return to live in the United Kingdom, because the members of her extended family live there, apart from her brother, who lives in Sydney. The brother lives with his girlfriend in a one bedroom flat and works [omitted].
The Mother proposes to live in Cornwall, where her mother lives. Her sister, with whom she has a close relationship, lives and works in London.
The Mother proposes to seek employment in the United Kingdom and has made inquiries about her employment prospects.
She proposes an arrangement whereby the Father could travel to the United Kingdom and spend time with the child. She would cover the cost of the Father travelling to the UK after six months. Her proposal is that the Father could spend time with the child during the day but she does not have confidence in the Father’s ability to look after the child overnight.
The Mother also proposes that she would travel to Australia with [X] every twelve months so that the child could spend time with his father.
The maternal grandmother, Ms B, gave evidence that she lives in Cornwall. She had lived in Australia but returned to the UK after the breakdown of her marriage. Her own mother had become very ill and she wished to spend time with her.
Ms B said that it would not be a struggle financially to fund the Father’s travel to the UK to spend time with [X].
The Father gave evidence that he was currently staying with his father. He was on a Centrelink benefit but was about to start work in a few days’ time.
The Father conceded that he had previously smoked marijuana but said that he had ceased doing so in January or February 2011. He was also asked about his drinking and said that he was seeing a counsellor at an alcohol rehabilitation centre at [omitted]. He had lost his licence for a drink driving offence and had not received his licence back. He still had fines to pay off. He said that he would probably get himself a car once he again had a driver’s licence.
The Father explained his lateness in attending to see his son on various occasions by saying that he had to travel by public transport and the buses did not start to run before 7:00am during the week or 8:00am on the weekend.
The Father expressed a fear that his bond with his son would cease to exist if the child were to move to the United Kingdom. He wanted [X] to spend unsupervised time with him in his own home and did not believe that he and his son could develop a strong bond until he could have unsupervised visits.
The Father explained that he was not seeing his children from his former marriage because the Mother would not allow him to see them.
The paternal grandfather, Mr R, gave evidence in support of his son’s case. He said that he had driven his son to spend time with [X] on about four or five occasions over the past twelve months.
Mr R senior said that he sees his granddaughters about every two months by arrangement with their mother. He said that the girls’ mother did not want the Father to see the girls because they became upset. He thought they got upset because they did not see their father.
Mr R senior said that he did not allow drugs or alcohol in his house. He does not drink or use drugs. He would support [X] staying at his home with the father. He has the use of a company car and owns a utility which he would let his son use. A child’s car seat can be attached to the utility.
The Family Report
The Court has the benefit of a Family Report prepared by Dr G.
For the purpose of preparing the Report, Dr G interviewed the Mother and the Father. She also observed the child with each of his parents and with some others, including a child of similar age.
Dr G also telephoned Ms K, the Father’s former partner, the mother of [Y] and [Z]. Ms K described the Father as a person whose “heart is in the right place” but lacks commitment.
Ms K told the Family Consultant that the Father had shown a commitment to the girls for the first 18 months after they separated but she had some concerns about their care. She said that:
Her anxieties were allayed when Ms Beaumont entered their lives. However, when Ms Beaumont’s and Mr R’s relationship began to deteriorate the father began seeing the girls less. The girls began to express their distress. He would promise to see them and would not show up. [Z] began telling people at pre-school that she did not have a father. The girls would continually ask their mother why Daddy wasn’t seeing them or why he didn’t love them. He would show up on their birthdays and then there would be a long hiatus in contact. Because of the father’s casual approach to seeing the girls, and in an attempt to shield the girls from further distress, she has stopped the father from seeing the girls.[2]
[2] Family Report page 12 paragraph [27]
Ms K spoke highly of the paternal grandfather, who was a welcome visitor to her home. The Mother also spoke of the paternal grandfather with approval.
Dr G assessed the Father as a pleasant man with an open manner. She referred to his “inconsistent pattern of fathering” his other two children.
Dr G said that:
[X] is developing an attachment to his father. He smiled when greeted by his father and was responsive in a play session with his father who played appropriately with the boy. [X] is still in a critical developmental period of attachment, and will remain in this stage for the next twelve months. Thus developmentally the next twelve months will be an important for consolidating the father and child bond.[3]
[3] Family Report page 16 at [43]
Dr G queried whether the Father would demonstrate his commitment to the child by reliable, consistent parenting, noting his previous his history of inconsistent parenting, not only of his son but also his two daughters.
Dr G also raised some concerns about the child’s safety in the care of his father, noting the father’s past issues with drug and alcohol abuse.
The Family Consultant noted that both the Mother and Ms K:
…paint a picture of the father as a nice fellow who is basically unreliable and who quite categorically lacks the capacity to put his children’s needs before his own.[4]
[4] Ibid page 18 at [50]
However, if the Mother were to travel to England with the child immediately, Dr G expressed the view that there would only be a slim chance” that [X] would be able to establish a satisfactory relationship with his father. She said:
In my view the father lacks the resources and organisational skills to travel to the UK. The mother, with the best will in the world now while arguing her relocation case, is unlikely to be able to travel back to Australia annually.[5]
[5] Family Report page 18 at [51]
The Family Consultant suggested that:
a)The Mother should remain in Australia for the next nine months, during which intensive work would be done on the bonding and attachment of [X] and his father.
b)The Father would complete a multi-week Parenting after Separation course.
c)The Father would get Skype installed on his computer and the parents should start using it for brief conversations between [X] and his father.
d)At the end of six months the parties would attend a mediator to work out a ‘distance parenting plan’.
e)The Father would have periodic drug testing.
f)Six months after relocating the Mother would return to Australia to spend four weeks in Sydney, within which time the Father would have visits with [X] during the day on three occasions each week.
The Family Consultant recommended that, subject to the above arrangements, the Mother be permitted to relocate the child’s residence to England in nine months time.
Dr G gave oral evidence and said that she was now suggesting that the time for [X] to go to the United Kingdom should be “pushed out” to his third birthday.
Submissions
Counsel for the Mother submitted that it was in [X]’s best interests to relocate to the UK with his mother, who will benefit from relocating back to be with her family. He said that she had facilitated a relationship between [X] and his father, even though the Father claims that she had not done enough. The Mother had modified her proposal in accordance with the Family Consultant’s recommendations.
Mr Jackson of counsel, who appeared for the Father, submitted that if the Mother were to go to the United Kingdom with [X] there was only a slim chance of the child developing a strong relationship with his father. Even if the Mother were to delay her relocation for nine months, there would still only be a slim chance of the child maintaining a relationship with his father.
Mr Jackson cast doubt on the Mother’s motivation to foster and encourage the child’s relationship with the Father, noting that when she was last in the UK with the child for a period of three months she did not take any steps to inform the Father about what was happening with [X]. He submitted that the Mother clearly lacked confidence in the Father’s capacity to care for the child.
Further, it was submitted that the Court should not put any weight on the comments attributed to Ms K in the Family Report. Ms K was not a witness in the case and had not been cross-examined. Her actions in not allowing the Father to see the two girls have been tacitly accepted as a “good thing” both by Dr G and the Mother.
Mr Jackson referred the Court to the decision of Dessau J in M v S[6], which was, coincidentally, a decision concerning a mother who wished to relocate with the parties’ child to the United Kingdom. In that case, her Honour noted at [35] the emphasis in the legislation of maintaining a meaningful relationship for the child with both parents.
[6] [2006] FamCA 1408; (2007) FLC 93-313; (2008) 37 Fam LR 32
Also, the Court should consider the decision of the Full Court of the Family Court in McCall v Clark[7], also a case involving an international relocation. Their Honours held at [127]:
Perhaps because of the absence of such evidence the Federal Magistrate in our view fell into error in his failure to adequately consider one of the primary considerations in a finding of what is in the best interests of the child, namely a consideration of the benefit of the child having a meaningful relationship with both parents and how that meaningful relationship could be achieved.[8]
[7] [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405
[8] (2009) FLC 93-405 at [127]
The Relevant Law
In the relatively recent decision of Murphy J in Mallahan & Mallahan[9], his Honour considered at [14]-[39] the principles to be followed in parenting cases involving relocation issues, in the light of the decision of the High Court in MRR v GR[10]. Murphy J stated at [14]:
Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision is signposted by a number of mandatory considerations.[11]
[9] [2010] FamCA 631
[10] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
[11] [2010] FamCA 631 at [14]
Of relocation cases in particular, his Honour said:
· A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.[12]
[12] [2010] FamCA 631 at [27]
In Morgan & Miles[13], an appeal from a decision of the Federal Magistrates Court, Boland J said at [80]-[81]:
[13] [2007] FamCA 1230; (2007) 93-343
80.It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s.60CC or s.65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.[14]
[14] [2007] Fam CA 1230; (2007) FLC 93-343
Conclusions
The parties have conflicting proposals.
The Mother proposes that, after a period of nine months, she be permitted to relocate to the United Kingdom with the child, so that she will be near her mother and have the support of other members of her extended family, including her older sister, with whom she has a close relationship.
Arrangements for the child to develop and maintain his relationship with his father would be for the Father to spend regular time with him during the day and communicate by telephone, Skype and other means.
Once the Mother relocates, she would initially pay for the Father to travel to the United Kingdom to spend regular time with [X]. She would also return to Australia with the child, at her own expense, so that [X] can spend time with his father in Australia.
The Father’s proposal is that the Mother and child should remain living in Australia and that he should have increasing time with the child, including unsupervised overnight time. He proposes that this would be spent at his father’s residence.
It is noteworthy that the Father is not proposing that, if the Mother insists on moving back to the United Kingdom, he would be willing to have the child live with him in Australia. Similarly, the Mother has not made such a proposal.
Whilst it is the case that the Court may formulate a proposal not suggested by either party in the child’s best interests, I am not satisfied that it would be at all in the child’s best interests for him to live with his father if his mother were to relocate to England. The evidence, including the Family Report, shows that the Mother is the child’s primary caregiver.
The best interests of the child are the paramount consideration.
The evidence supports the view that there is a benefit to the child in having a meaningful relationship with each of his parents. The Mother has been the primary caregiver and will remain so, but the Father clearly has a wish to be a part of the child’s life. The family consultant observed the child to respond positively with his father and expressed the opinion that he was developing an attachment to his father.
There appear to be no risks of physical or psychological harm to the child whilst he is in the care of his mother. However, the Mother has expressed doubt as to the Father’s capacity to look after the child and has raised concerns about the Father’s prior use of illicit drugs and his abuse of alcohol. Clearly, there is some risk of neglect to a child in the care of a parent affected by alcohol or illicit drugs.
[X] is a little boy who is not yet three years old. He is too young for his views to be sought. He appears to be at a normal stage of development for his age, with no disabilities or health problems.
[X] appears to have a positive relationship with both of his parents. The relationship with his mother is the stronger of the two, as she is, and has been, the child’s primary caregiver. However, the child is developing an attachment to his father and there is a clear need for this attachment to be fostered in the coming months.
[X] has a paternal grandfather, Mr R, and maternal grandparents who live in England. The Mother speaks approvingly of Mr R senior and he would appear to be a person with whom [X] should continue to have a relationship.
The child has two half sisters, [Y] and [Z]. The Father does not see them although the paternal grandfather does. It is unlikely that [X] would have a close relationship with the two girls. The situation may change if the Father does spend time with the girls, but that is unlikely to occur in the near future.
The Father has a willingness to facilitate and encourage a close and continuing relationship between [X] and his mother. He proposes that [X] will continue to live with his mother.
However, the Father does not consider that the Mother has done enough to facilitate and encourage a relationship between [X] and himself. He is concerned that if the Mother takes the child out of Australia the relationship will not survive. The Mother denies this, and proposes arrangements where she will bring back to Australia annually and where the Father will travel to the United Kingdom to spend time with the child. She has offered to pay the Father’s return air fare for the first of such visits.
The effect of [X]’s separation from his father is the principal issue in this case. [X] is in a critical stage of development. He is at an age where his attachment to his father will develop if there is constant and regular time with his father between now and his third birthday. If [X] were to leave Australia now, the evidence of Dr G is that there would only be a slim chance that he would be able to establish a satisfactory relationship with his father.[15] It would, therefore, not be in the child’s best interests for him to leave Australia at the present time.
[15] Family Report page 18 paragraph [51]
This is a case where there are practical difficulties and expense involved in the child spending time with his father. The Father has at times not seen the child when arrangements have been made, or has arrived late, due to the fact that he has to travel by public transport. This has been brought about by the fact that the Father has lost his driver’s licence due to a drink-driving conviction, a situation which is entirely of the Father’s own making.
However, the practical difficulty and expense in the Father spending time with [X] will multiply if [X] leaves Australia and lives in the United Kingdom. The Mother is attempting to deal with this problem by:
a)offering to pay the Father’s travel expenses for him to visit the UK, at least on the first occasion; and
b)proposing to visit Australia with the child annually so that he can spend time with his father.
The Family Consultant believes that the Father “lacks the resources and organisational skills to travel to the UK”[16], a view the Mother shares, hence her offer to travel to Australia and to pay the Father’s airfare to and from the UK.
[16] Family Report page 18 at [51]
The Mother has a proven capacity to provide for the child’s needs, as she has been his primary caregiver. The Mother doubts the Father’s capacity to do so, although she has confidence in the paternal grandfather.
The Mother casts doubt on the Father’s attitude to the responsibilities of parenthood, noting his prior drug use, abuse of alcohol and unreliable behaviour in the past. The Mother is aware that the Father does not spend time with his two children from his relationship with Ms K.
Counsel for the Father submitted that Ms K’s views about the Father’s failure to spend time with his children on a regular basis and their distress and disappointment with him cannot be regarded as evidence. Ms K was not a witness and her views cannot be tested. Her opinions come from the Family Report, by way of an unsolicited telephone call from the Family Consultant.
However, there is clear evidence from the Father himself and from
Mr R that, for whatever reason:
a)The Father is not currently spending time with those two children; and
b)The paternal grandfather spends time with them about every two months.
The Father said in cross-examination that he was applying for legal aid to commence parenting proceedings so that he could spend time with his daughters on a regular basis.
The Mother originally sought orders that she would be permitted to take the child [X] to live in the United Kingdom. As a result of the findings in the Family Report that such a move at this stage would not assist the development’s relationship with his father, she has modified her proposal to accord with Dr G’s recommendations. This change means that she has to put her own clear desire to return to live in the United Kingdom “on hold” for a number of months, which would not be to her liking. The Mother’s wish to live in the UK so that she may have the emotional support of her own mother and her elder sister is understandable and reasonable, in my view.
It may be argued that the Mother’s actions in modifying her proposal in line with Dr G’s recommendations may be seen as a pragmatic approach, motivated by her desire to increase her chances of success in this litigation.
However, it appears to me that the Mother has modified her proposal to allow [X] the opportunity to develop an attachment to his father, taking note of the expert opinion of the Family Consultant. This appears to show that the Mother is taking her responsibilities as a parent seriously. Her evidence in the witness box supports the view that she is a caring and responsible who wants to do the right thing by her child, even if this means postponing her understandable wish to relocate back to the United Kingdom.
There are no family violence issues and no family violence orders in force.
The best interests of this child, in my view, lead the Court to the conclusion that the Mother should be permitted to relocate with him to the United Kingdom once he attains the age of three years, as suggested in the Family Report.
The parties should have equal shared parental responsibility, but it is not reasonably practicable for them to have equal time with the child, even whilst he remains in Australia. Once he is living in the United Kingdom, substantial and significant time with the Father will not be reasonably practicable.
The Mother has proposed that she will return to Australia with the child each year so that the Father can spend time with him. She has travelled overseas with the child on two prior occasions, in 2009 and 2010, and has returned. There is no reason to believe that she will not return for a visit as she indicates she will. Her proposal to meet the Father’s airfare to and from the United Kingdom is a step towards ensuring that he will actually make the journey, but she should not need to do this on more than one occasion.
In the meantime, however, the Father will be given the opportunity to spend time on a regular basis with his son so that the attachment can develop. It will be up to the Father to show that he can keep his commitment to his child.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 January 2012
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