BECKINGHAM & VALLENS
[2020] FCCA 3389
•23 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKINGHAM & VALLENS | [2020] FCCA 3389 |
| Catchwords: FAMILY LAW – Parenting – relocation. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC(2) and (3), 61DA, 65DAA |
| Cases cited: Taylor & Barker (2007) FLC 93-343 Paskandy & Paskandy (1999) FLC 92-878 MRR & GR (2010) 240 CLR 46 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MR BECKINGHAM |
| Respondent: | MS VALLENS |
| File Number: | LNC 699 of 2011 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 8, 9 & 10 December 2020 |
| Date of Last Submission: | 10 December 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 23 December 2020 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Ms R Brown |
| Solicitors for the Respondent: | Legal Solutions |
| Counsel for the Independent Children's Lawyer: | Mr P Fitzgerald |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
That the parents have equal shared parental responsibility for the child, X born in 2010 (‘X’).
That X live with the mother.
That X spend time and communicate with the father as follows:
(a)On the 3rd, 6th and 9th weekends of each school term in Hobart between Friday at 5.00 pm and Sunday at 5.00 pm but extending to Monday at 5.00 pm in the event the Monday being a public holiday or a student free day;
(b)For one half of each Tasmanian gazetted term school holiday as agreed between the parents but failing agreement then for the second half of the holidays being from the second Saturday at 12.00 noon until the third Sunday at 5.00 pm;
(c)On a week about basis during the Tasmanian gazetted summer school holidays in each year commencing the first week in 2020 in each alternate year thereafter and commencing the second week in 2021 (with the intention that X will spend Christmas alternating with each parent);
(d)At any reasonable time in Launceston as agreed between the parents;
(e)Any other times or variations of the above as agreed between the parents from time to time;
(f)That changeovers for the purposes of these orders take place at the appointed times at a location roughly halfway between Launceston and Hobart as agreed between the parents and failing agreement as determined by the Independent Children’s Lawyer.
(g)By telephone or other medium at any reasonable times such to be reciprocated at times X is in the care of the father.
That each parent keep the other fully advised of any medical issues for X including any assessments or treatments for X’s current diagnosis of ASD and these orders specifically authorise each parent to have access to any medical practitioners, consultant or therapeutic practitioner engaged in respect of X.
That the parties comply with supports and interventions recommended pertaining to the child’s ASD diagnosis, including but not limited to adjusting activities, environment and parenting style where necessary, and will allow the child access to relevant supports and professional services to assist in the management the child’s ASD diagnosis.
That the appointment of the Independent Children’s Lawyer be discharged as from one calendar month from the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Beckingham & Vallens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 699 of 2011
| MR BECKINGHAM |
Applicant
And
| MS VALLENS |
Respondent
REASONS FOR JUDGMENT
Applications
The applications are in respect of parenting orders for the parties’ one child, X born in 2010 (aged 10 years).
The applicant father asks for orders whereby he have sole parental responsibility for X and that X live primarily with him and that they be permitted to relocate from Launceston to the greater Hobart area. The father proposes time for X with the mother in Launceston on a three-weekly basis during school terms and for half of school holidays.
The father is clear in his evidence that he and his family unit intend to relocate from Launceston to Hobart in any event and whether or not the Court accedes to his application to be primary parent for X.
The mother asks for orders for equal shared parental responsibility with the father for X. She argues that X lives primarily with her and remains in the Launceston locality. She proposes that X spend time with the father each fourth weekend during school terms from Friday evening until Sunday afternoon together with one week in each term school holidays and for two weeks in the summer school holidays.
The Court has the benefit of an Independent Children's Lawyer in Mr Fitzgerald who generally supports the position argued by the mother.
Relevant Background Facts
The father is 38 years of age and the mother is 34 years. They commenced cohabitation in 2008 and ultimately separated in June 2011 at which time I calculate X to have been just 10 months old.
The parties have been in consistent dispute in respect of X's parenting and living arrangements virtually since their separation. The father initiated mediation in July 2011. The mother made applications to the state Court for family violence orders. There was a period when X spent approximately four months without contact with the father. The first application in this Court was filed on 11 November 2011. Final orders were made by consent in January 2012. Further proceedings were initiated in February 2017. Further final orders were made in October 2017. Contravention proceedings were brought by the father in April 2018. Further final orders were made in May 2018. The current proceedings were initiated by the father in February 2020.
The extant orders provide for X to live in an equal time arrangement between his parents on a 'two-two-five-five night' regime over a fortnight. Currently, both parents live in the Launceston area.
The father is now married to Ms B who is the mother of C, aged six years, and the father and Ms B are now the parents of D born in 2019. Ms B has been involved in her own family law parenting proceedings in respect of C. Those proceedings have resolved by consent inter alia providing for Ms B and C to relocate from the Launceston area to Hobart.
It is Mr Beckingham's proposal that he, his wife, C, D and X all relocate from Launceston to reside in the greater Hobart area as from the first week of January 2021.
The father is employed with Employer E as a professional. He intends to continue that employment upon the relocation of his family unit.
The mother currently lives in Launceston. She is employed as a professional. There is no evidence that the mother has re-partnered in any committed relationship. She has no children other than X.
The mother’s extended family live in the Launceston area. The paternal grandfather also lives in Launceston.
The mother says that X suffers a diagnosis of Autism Spectrum Disorder. The mother obtained that diagnosis in July 2018 after she sought an assessment. The father does not necessarily accept the diagnosis in respect of X arguing that he was not involved in the assessment process including providing a full and balanced history to the diagnostician. The father's evidence suggests that should he be successful in his application for primary care of X then he would obtain a further comprehensive assessment in respect of X or validation of the previous assessment.
The Father's Case
The father argues generally that he can provide better for X's best interests broadly. Specifically, he argues that the mother suffers the symptoms of mental illnesses and cannot provide adequately for X's education including consistent school attendance. Secondly, and specifically, he argues that he can better attend to X's medical needs. Mr Beckingham says that he can provide X with the benefit of a structured and loving family unit including full relationships with D and C together with a balanced household of male and female role models and a regime of inclusive and ordered participation for X.
The father says that X's relationship with his mother can be maintained by the time-with orders he proposes together with use of various media.
The father acknowledges that orders in the terms of his application would cause X to miss his mother and his school and peer relationships in Launceston but that X is an adaptable and robust child who will assimilate into the primary care of the father and his household with appropriate love and attention.
Mr Beckingham argues that he should have an order for sole parental responsibility for X given the mother's propensity to act unilaterally as for instance in the obtaining of the ASD assessment. He is concerned that the mother's own mental health issues compromise her capacity to make proper decisions in respect of X. His evidence is that the parties communicate only by technology and that any direct communication is difficult if not impossible. The father says that he can offer an established family unit for X where his evidence indicates that the mother has been involved in a number of short-term relationships since the parties’ separation therefore providing instability for X.
The father says that X already enjoys established and beneficial relationships with his step-mother, Ms B, together with C and D but that these relationships will be enhanced by the orders he seeks.
The Mother’s Case
The evidence makes it clear that should the father remain living in Launceston then the mother would have been content with a continuation of equal time orders. However, on the basis that the father has determined, in any event, to move his family unit to Hobart then the mother says that X's best interests remain living with her in Launceston. She says that she can offer stability of schooling, peer group relationships, extended family contact and routine all within the context of X's diagnosis of ASD. She says that she is accepting of and addressing X's needs for routine and order consistent with his diagnosis. She has a strong family support network and, contrary to the father's allegations, she has all of the skills and facilities to attend to X's needs.
The mother says that X's strong preference and articulated to both parents and the family reporter is to stay in Launceston and within his current school and friendship environment.
The Issues
There is a primary issue as to whether X's best interests are served by continuing to live in Launceston with his mother or moving with the father and his family unit to southern Tasmania.
The father raises issues as to the mother's skills in attending to X's needs with specific reference to his education and health needs.
There is an issue before the Court as to the reasonableness of the father's equivocy in relation to X's diagnosis of ASD.
There is a question for the Court as to the weight to be accorded X's views and preferences as to his living arrangements.
The Evidence – Family Report
The Court has the benefit of a Family Report prepared by family consultant, Ms F, dated 14 October 2020 and prepared after interviews with the parents, X, and observations of X and his parents including siblings C and D and the father's wife on 8, 9 and 16 September 2020.
The parents each conveyed histories to the family consultant roughly consistent with their affidavits.
Specifically in respect of issues raised by the father, Ms F states at [98]:
Ms Vallens described a different lifestyle than Mr Beckingham’s but it does not appear that X misses out on opportunities to interact and socialise. Close relationships and physical activity are both positive behaviours that are determinants of mental and physical health, and a sibling relationship can have positive benefits for a child’s mental health, however each individual child has different levels of need in these areas. Mr Beckingham’s assertion that Ms Vallens provides X with an isolated sedentary lifestyle appears overstated. X does not appear to be particularly distressed by the lack of a sibling relationship when he is at his mother’s and the strength of the maternal relationship appears to outweigh any feelings of loneliness or isolation he may have in his mother’s care. Given the closeness of this relationship, separation from his mother is likely to have a long term negative impact on X’s mental health.
And at [100] Ms F reports generally:
Ms Vallens is able to support X’s autism diagnosis and provide him with emotional and social support. X would be able to maintain his school, his existing social connections and a significant part of his routine if he stays with his mother. X would remain connected with his maternal grandparents who he has lived with at times throughout his childhood. X reported feeling less pressured in his mother’s care and his mother having more availability and emotional support him. Based on this information it appears more likely X would cope better with a separation from his father than his mother. X obviously strongly values his relationship with his father this will need to be maintained through regular phone contact and recreation time with his father. X appears to have a strong relationship on an intellectual level with his father and would be able to continue this by electronic means.
Ms F suggests caution in respect of the continuing dispute as to X's diagnosis where she says at [95]:
At this stage the diagnosis has been confirmed for X by G School, it is supported by the school, and most importantly it helps X make meaning of himself and his identity. Mr Beckingham’s continued denial of this diagnosis to X is likely to result in significant long term issues with X’s identity and may possibly have implications for his relationships and mental health. It is unclear why Mr Beckingham does not accept this diagnosis but continuing to do so could significantly affect his relationship with X now and into the future.
Nevertheless, the family consultant does note and share Mr Beckingham's concerns in respect of X's diagnosis when she says at [94]:
Ms Vallens withholding the information in relation to X’s diagnosis of ASD appears to have placed Mr Beckingham at a disadvantage in understanding X and engaging with his schooling.
Ms F herself notes and reports the different parenting styles of Mr Beckingham and Ms Vallens and that X himself recognises and is impacted by those different styles.
At [83] X is observed to ‘physically relax’ in the company of the mother and the maternal grandparents. Similar observations were made of X in the company of the father, his wife, C and D. At [82] the father is observed in this interaction as:
Mr Beckingham appeared to be happy and attentive to the children in his parenting and while firm in tone when addressing behaviour his interactions were natural and he appeared to be genuinely enjoying engagement with the children.
The different parenting styles and personalities of the parents is perhaps evident in Ms F's observations at [86] where she says:
X appeared younger and more vulnerable during his interactions with his mother and grandparents. The relationship between X and Ms Vallens appeared close and affectionate. X appeared happier in the context of the one on one attention and a focused guided activity. X did appear to be very rule orientated but his mother and grandparents managed this very well, asking him about the rules, letting him led (sic) the games but still playing competitively with him.
Ms F interviewed X and at [64] describes him as 'a mature 10 year old and was also quite witty. X was able to describe his thoughts and feelings clearly and they impressed as being informed by his own ideas and experiences. X provided detailed information about his experiences of life.’
X reported that there are ‘lot more rules’ and it is ‘much stricter’ in his father's household.
Ms F reports at [77]:
Without being asked X then stated that he does not want to move to Hobart. X indicated that he has lived here his whole life. X indicated that if he does not go everything will stay the same except that he will hardly ever see his father and he is not really sure what that would be like.
Further, at [101] Ms F notes:
X’s uncertainty about the proposed relocation, his regular change overs and the differences between households are impacting on X’s feelings of comfort and security. Given X’s age and intelligence it is considered that his views should be given weight into relation to the future parenting arrangements (sic). X does not wish to relocate and the benefits of (sic) to him appear minimal.
At [105) and following Ms F gives her recommendations thus:
105. It is recommended that the parents share parental responsibility.
106.It is recommended that the parties both acknowledge the diagnosis of Autism Spectrum Disorder and act in accordance with any advice given to them from professionals in relation to managing X’s needs in the context of this diagnosis. It is recommended that Mr Beckingham be provided with all relevant professional information and contacts.
107.It is recommended, should there be no other new information to the contrary, that X reside with Ms Vallens and have contact with Mr Beckingham in Hobart from Friday Afternoon through until Sunday Evening, every three weeks
...
109.It is recommended school holiday time and special occasion time be shared.
Ms F gave evidence and was cross-examined albeit briefly. The significant revelation from her cross-examination was the statement:
‘Mr Beckingham does not see any great value in the relationship between X and the mother.'
The Father - Evidence
Mr Beckingham provided well-prepared and considered affidavit material. He was cross-examined by Counsel for the mother and the Independent Children's Lawyer. Mr Beckingham presented as assertive, clinical, uncompromising and devoid of emotion in the witness box. He is articulate and intelligent and clearly firmly believes that his own parenting style is superior and preferable to that of the mother where his style appears rule orientated with emphasis on routine and position within the family unit and structure. Mr Beckingham's own personality was demonstratively consistent with his views as to the best interests of X where those views are firmly held and including negative and critical opinions of the mother’s parenting style. In this sense I adopt the observation of the family reporter in that Mr Beckingham did not apparently see any great value in the relationship between X and the mother.
The Mother – Evidence
The mother gave evidence and was cross-examined. She too had provided comprehensive affidavit material. The stark difference in personality between the mother and the father was immediately obvious. Whereas the father was confident and assertive, the mother was timid and at times prevaricating in her responses. It is noted that she has previously (and may still) suffer diagnoses of depression and anxiety.
It is also easy to conclude that the mother offers a starkly different role model and home environment for X than does the father. Some of the father's criticisms of the mother were evident from her demeanour and her responses in the witness box such as an apparent lack of emphasis on routine and difficulties in consistently getting X to school on time. The mother's personality and demeanour perhaps give some explanation as to the failure of these parties to communicate in respect of X's diagnosis of ASD.
Nevertheless, the mother in her own way presented as very child focused with a familiarity and understanding of X's particular needs and where she seems willing and able to accept and address those needs.
Ms H
Ms H is the maternal grandmother. Her evidence was effectively unremarkable but notable in its support of the mother personally and in her parenting role.
Ms J
Ms J provided an affidavit sworn 10 November 2020. She was not required for cross-examination. She is a Pastor at the church attended by the mother and X. She is positive and complimentary of the mother's parenting and notes X's participation and enjoyment in the church. The evidence of Ms J suggests personal and church support for the mother and X.
Ms K and Ms L
The Independent Children's Lawyer addressed evidence in affidavits from Ms K and Ms L. The former is a teacher and the latter a Principal at X’s M School. Neither was required for cross-examination.
They confirm that X is an A student and also progressing very well socially. X's attendance is noted at approximately 87% and that the school is not 'troubled' by such an attendance record. Ms K at [8]-[9] deposes:
X's emotional regulation has improved during the year. I see this as coinciding with him cementing his friendship networks which appear to have grown.
His general presentation and demeanour have been settled.
Ms K's affidavit annexes a letter penned by X addressed to his father and authored during a class exercise. The contents of that letter are worthy of inclusion in these reasons and as follows:
Dear Daddy,
I want the Court things to stop, and I have three reasons that I know you will agree with.
You definantly (sic) know this already, but I'll still say it – when you and Mummy are in Court, it is extremely stressful for everyone that knows about it. This always creates negative conversations, negative interactions and constant negativity.
On some nights you and Mummy have to go to Court, wasting the time you have with me. Don't you feel like you're wasting our time together when you go to Court? This shows you that stopping Court stuff won't just be to my benefit, but to yours as well.
X was noted to be very emotional about his letter and caused the teacher to contact Mr Beckingham by email also annexed to her affidavit which includes the following inter-alia:
I just wanted to let you know about X today.
He became very upset whilst doing his persuasive letter during English. When I went over he had begun to write a letter to you that stated, Dear Daddy I want the Court things to stop.
He began to cry and I bought (sic) him over to talk. He told me how hard he is finding it and that he had told you that he wanted to stay with Mummy, but that he was worried that if he said anything else that you would think he didn't love you. …
At [22]-[24] Ms K deposes:
I have been asked my thoughts as to how X would adjust if he was to relocate from the school.
Academically there is no doubt X would do very well. However I am concerned that socially he would find it hard.
As noted herein he has established some very strong social networks. Being a child that likes predictability and familiarity I would be concerned for him if he left.
Ms L deposes to being the Principal of M School and a teacher of 44 years experience. She describes X as a delightful student and academically bright.
Ms L says that X appears to be well aware of the conflict between his parents. She confirms his academic capabilities and also a very strong and emotional network within the school setting.
At [24] Ms L says:
Reflecting on X's personality, his social skills and the like I do have concerns that he would be challenged if he was to leave M School.
Further, Ms L notes that from her own ‘observations and experience X displays some characteristics, mannerisms and behaviour of a child with ASD’.
X's diagnostic assessment from G School was tendered into evidence.
Relevant Law
The orders that I am to make are parenting orders and, as such, I am to have the X's best interests as my paramount consideration pursuant to s.60CA of the Family Law Act 1975 (‘the Act’). In determining those best interests I am mandated to reference the parties’ proposals and the probative evidence to the numerous factors set out in s.60CC (2) and (3) of the Act against a background of the objects and principles of the legislation provided at s.60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
It is proper to emphasise that whilst the term 'relocation matter' is freely bandied about by the lawyers in matters such as that now before me, the Act itself is silent as to the notion of relocation. It follows, therefore, that the relocation of a child is expressly neither prohibited by law nor is there a presumption against it. That is, a proposal by a parent to relocate a child is simply one factor to be considered amongst the plethora of considerations in arriving at orders which are on, balance, in the best interests of the child.
Whilst significant amendments to the Act in 2006 raised some academic and judicial debate as to the relevance of historical authorities in respect of relocation of children, subsequent Full Court decisions and notably that of Taylor & Barker[1] have confirmed earlier authority of Paskandy & Paskandy[2] that there can be no dissection of a parenting application into discrete issues of, firstly, with whom the child shall live and then, secondly, a further or separate issue as to whether a relocation should be 'permitted'. As the Court in Taylor & Barker observed:
In our view, his Honour dealt with the relocation proposed in the context of his consideration of s60CC and s65DAA, at least insofar as it was possible to do so. It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, so far as is possible, in the context of the making of the necessary findings in relation to the s60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s65DAA.
Despite the general nature of the Courts focus being on the best interests of the child as the paramount consideration, peculiarities of matters involving a proposed relocation of a child have seen the High Court in MRR & GR[3] emphasise the dual requirements of parenting orders to be both ‘in the child's best interests’ and ‘reasonably practicable’.
[1] (2007) FLC 93-343
[2] (1999) FLC 92-878
[3] (2010) 240 CLR 46
There is an issue between these parents as to whether the Court should confirm the presumption at s.61DA of the Act that it be in a child's best interests for the parents to exercise and discharge equal shared parental responsibility for their child. 'Parental responsibility' is often colloquially defined as the obligations in parents to make long-term and important decisions for children in matters such as their education, religion, and medical procedures and the like and as distinct from the more mundane day-to-day decisions that parents habitually make in respect of their children. The presumption of equal shared parental responsibility does not apply if the Court is satisfied that there has been family violence or child abuse or, alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child's best interests for the parents to exercise equal shared parental responsibility. Significantly, however, either the presumption applying or such an order being made by the Court for exercise of parental responsibility sets a course of statutory and intellectual consideration at s.65DAA where the Court must firstly consider whether it be in a child's best interests and reasonably practicable for the child to live in an equal shared care arrangement between the parents. If the answer to either of those questions is in the negative then the Court is to consider whether the child living in a regime of ‘substantial and significant time’ between the parents is both in the child's best interests and reasonably practicable. By reason of the father's determination to relocate himself and his family unit from Launceston to Hobart, neither of the options of equal time or substantial and significant time are available to this Court. In reality, therefore, by reason of residential location and geographical logistics, the only options for the Court here are that X live primarily with his father in southern Tasmania and spend weekend and school holiday time with the mother or, alternatively, X remain living with the mother in northern Tasmania and spend weekend and school holiday time with the father.
Whilst the determination for the Court as to X's best interests is an exercise of discretion, various Full Courts have helpfully provided ‘principles’ which can be extracted to assist trial judges in the consideration of parenting matters involving a proposed relocation. Those principles can be summarised as follows:
·Relocation matters are to be determined generally with reference to Part VII of the Act;
·The child's best interests remain the paramount but not the sole consideration;
·A relocation proposal is to be evaluated within the context of the necessary findings in relation to the child's best interests (s.60CC matters) and where appropriate (s.65DAA) (reasonable practicability);
·The Court must consider the parties’ proposals including the advantages and disadvantages of the proposed relocation but may itself be required to formulate proposals which it considers to be in the best interests of the child;
·Neither party bears an onus to establish that a relocation or a continuation of an existing regime will best promote the interests of the child;
·An applicant for relocation need not show ‘compelling reasons’ in support of the relocation but, in my view, must produce probative evidence which permits the Court, on balance, to find that a parenting order involving a relocation is in the best interests of the child; and
·The child's best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement but that such an adult ‘right’ must ultimately defer to the child's best interests.
S.60CC Factors
s.60CC(2)(a) - the benefits to the child of having a meaningful relationship with both parents
The evidence before me satisfies me, on the balance of probabilities, that X has developed a strong, attached and meaningful relationship with both of his parents but that this is perhaps ‘despite’ rather than ‘because’ of the parents themselves where these parents present with very different parenting styles and as role models.
At 10 years of age and, after negotiating the obvious differences between his parents, it might reasonably be expected that X is such a robust and adaptable child that he will endure the inevitable changes in his relationship with each of his parents to be activated by his father's moved to Hobart. In this sense, various Full Courts[4] have endorsed the adjective ‘meaningful’ in qualitative rather than quantitative terms and where the enquiry for the Court is to be a 'prospective' one but also one obviously considering the current nature of the relationship between the child and parents.
s.60CC(2)(b) - the need to protect X from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
[4] McCall & Clark [2009] FamCAFC 92
Fortunately, and perhaps due to the ongoing shared care arrangement for X and the passing of time since their separation, matters of family violence did not feature highly in the matter now before me. My own observations of the parent’s personalities, however, suggest that power imbalances may have been evident in their relationship and their subsequent decision-making in respect of X.
s.60CC(3)(a) - any views expressed by X and any factors (such as his maturity or level of understanding) that the Court thinks are relevant to the weight it should give to his views
X is just 10 years of age. However, the family reporter and both teachers recognise a maturity in X suggesting that he has been able to independently and in an informed way determine and articulate his preferences. It seems that he has made these preferences known to both of his parents. The evidence is clear that X prefers to remain living in Launceston, attending his school, remaining with access to his peer group relationships, and to be parented by his mother. Any hesitancy in him discussing these preferences with his father is perhaps explained by the strong love and attachment that he has with his father and a wish not to offend his father.
s.60CC(3)(b) - the nature of the relationship of X with each of his parents and any other persons including grandparents or other relative
X is attached to and relatively comfortable in the care of either of his parents and despite their significantly different role models and parenting styles. The nature of those relationships for X have also been established and endured despite the different models of each parent's home where the mother provides a ‘sole parent and only child’ environment but where the father's family unit offers both his step-mother and siblings in C and D. The evidence supports Mr Beckingham's contention that X has assimilated and found his position within the father's home unit with the implication that X will thrive socially by being a member of that vibrant home community.
The orders that I am to make will inevitably change the nature of X's relationship with each of his parents. He currently lives between his parents with frequent changeovers during a fortnightly period. This offers frequent contact with X with both his mother and his father but perhaps without the advantage of settling into either household. By reason of the father's determination to relocate to Hobart, X will either live primarily with the father or primarily with the mother. He would then come to know the parent with whom he resides as more of a primary parent and become more of a ‘visitor’ to the other household. The diverse models of each household will then be likely to become more apparent for X. Obviously, the frequency of his exposure to one or other of the parents will also be emphasised by the orders that I make and may change the nature of that relationship.
X currently has the benefit of proximity to each of his parents which allows them to have direct involvement in his schooling and extracurricular activities. The vagaries of distance might then limit that involvement and certainly in a more flexible/spontaneous sense.
s.60CC(3)(c) - the extent to which each of X's parents has taken, or failed to take, the opportunity: (i) to participate and make decisions about long-term term issues in relation to X; (ii) to spend time with and communicate with X and (iii) the extent to which each of the parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain him
The issue here is directly in respect of X's diagnosis of ASD. The evidence suggests that the father was not fully informed as to the process although the mother gives evidence that she delegated communication to other persons in circumstances where both parties agree, if the only on this, that they do not communicate freely, easily or confidently. The diagnosis, as emphasised by the father, is an important one which will impact X throughout his life. Where the father lacks confidence in the diagnosis if only by reason of his lack of participation then there are concerns as to the impact on X in respect of the acknowledgement of and the consistency of addressing his condition. In respect of this important issue, I am of the view that each of the parents is variously culpable. Certainly, the mother should have taken more direct action in notifying and involving the father in the process. However, the father's dogmatic attitude in respect of that diagnosis is also of concern in its impact on X where the extraneous evidence suggests that the very fact of the diagnosis has been positive for this child in gaining confidence and ability in his social interactions.
s.60CC(3)(d) - the likely effect of any changes in X circumstances, and the likely effect on X of any separation from either of his parents, or any other child, or other person (including grandparent or other relative), with whom the child has been living
As mentioned above, X's recent familiarities are with a high frequency of contact with each of his parents albeit necessitating a high number of changeovers. I expect that his experience has been one of not being able to settle into either of his parents’ households. That situation will change if only by reason of the limited options now being left to the Court for X's living arrangements.
Should X live with the father in Hobart then he will have the benefit of fully establishing and maintaining relationships with his siblings, C and D. This will give X the benefit of being a member of a multi-child household where the attention of the adults will be divided but where X will have the opportunity to obtain the skills of sharing and community.
Nevertheless, if X is to live with his father then his relationship with, not only his mother but also his maternal grandparents and extended family, will be changed if only in its frequency. X apparently also has a paternal grandfather living in northern Tasmania. Further, if X is to live with the mother then he will do so as an only child in a sole parent home and a completely different environment, therefore, than offered by his father.
The limited options left for the Court’s determination as to X's living and parenting arrangements will inevitably bring change for him. Whereas he currently has a high frequency relationship between his parents with numerous changeovers on a weekly or fortnightly basis, he will become more settled into one household where he will recognise that parent as his primary carer and become more of a 'visitor' to the other household.
Alternative means of contact such as telephone, Skype and the like will become a more important feature of his relationship with the non-primary parent.
The vagaries of distance will impact on the flexibility and spontaneity for X in his relationship with the non-primary parent where participation in school or extracurricular activities might be made more difficult.
Should X live primarily with the father in Hobart, then he will be a more permanent member of a household with two adults and two other children. Should, however, he live with the mother in Launceston then he will become a permanent member of a household of just one adult and where he is the only child.
The potential of all of these vagaries are important considerations for the Court ultimately towards X's best interests.
s.60CC(3)(e) - the practical difficulty and expense of X spending time and communicating with each of his parents and whether that difficulty or expense will substantially affect his right to maintain personal relationships and direct contact with both parents on a regular basis
The mother proposes that X spend each third weekend with the father in Hobart, one week during each mid-term holidays, and two weeks during the summer holidays. She proposes to contribute to the travel between Launceston and Hobart. The father's proposal is similar being contact for X in Launceston with the mother each third week during school terms, for one week in term holidays, but he proposes to share the six weeks of summer school holidays.
The logistics of travel between Hobart and Launceston will present some inconveniences to each of the parties and perhaps particularly the father where he has considerations of other members of his household. Nevertheless, such travel is not uncommon in Tasmania for children of separated parents and, in my view, not overly onerous for the child.
It would be proper from X's perspective for the parents to be seen to be equally contributing to the effort and costs of transiting him between his parents’ households.
s.60CC(3)(f) - the capacity of each of the parents to provide for X's needs, including physical, emotional and intellectual needs
The father emphasises this consideration in his argument for X to reside primarily with him. Mr Beckingham is critical of the mother's capacity and, in particular, her ability to consistently get X to school and to school on time together with attending to his medical needs. In this sense the father relates the mother’s alleged failings to a mental illness where she concedes having previously suffered depression. There is no medical evidence in proper form before the Court. My observations of the mother in the witness box were of an insightful and child-focused parent albeit one with a significantly different parenting style than that of the father. The mother's laissez-faire and more relaxed parenting style should not be confused with a lack of capacity. The schoolteachers are satisfied with X's attendance record. They are not critical of either parent's capacity in respect of attending to X schooling and education. Both parents hold down employment and provide financially for X. I am able to find that each of the mother and the father have the capacity to attend to X's physical, intellectual and emotional needs albeit in different styles and parenting philosophies. It is, however, to their credit and a sign of X's adaptability and resilience that he has developed so successfully socially and academically whilst living in a complicated shared care arrangement between these two radically different parents.
The father's capacity is not seriously challenged by the mother save and except again that she impliedly the questions his more rule-based and authoritarian style. However, I am easily able to find that Mr Beckingham is a skilful and child-focused parent for X and one whose style perhaps compliments the more relaxed practices of the mother all of which have been successfully assimilated by X. Perhaps of greater interest, however, is how X will adapt in the future from living primarily in a household of one of these parents and then spending time as a visitor to the household of the other parent?
s.60CC(3)(g) - the maturity, sex, lifestyle and background including lifestyle, culture and traditions of X and either of X's parents and any other characteristic of X that the Court thinks relevant
Where the best evidence available to the Court at this stage is that X suffers a diagnosis of ASD, the acknowledgement and reactions of the parents are relevant considerations. Whilst the family reporter may have seen Mr Beckingham as 'denying' of X's ASD diagnosis, my observations of him in the witness box were perhaps more of a father who is understandably aggrieved at not being involved in the assessment process towards such diagnosis.
X is now 10 years of age. He has successfully negotiated the separation of his parents, their very different parenting styles, and a complicated regime of moving between their homes. All the indications are of a robust, intelligent and adaptable child who is likely to further adapt to what will be a significant change in his life by either living primarily with his father or primarily with his mother.
s.60CC(3)(h) - if the child is an Aboriginal or Torres Strait Islander
Not relevant.
s.60CC(3)(i) - the attitude to the child, and responsibilities of parenthood demonstrated by each of the child's parents
Whilst the skills and devotion of each of these parents to their son X cannot be impeached, they are each in their own way culpable in respect of their attitudes towards the responsibilities of parenting and to each other. I am not entirely satisfied as to the explanations given by the mother for failing to ensure that Mr Beckingham was involved in the important and life-changing process of the assessment towards a diagnosis of ASD for X. Similarly, and after listening carefully to Mr Beckingham's evidence in Court, I generally accept the observation of the family reporter that Mr Beckingham might not properly understand and value the relationship for X with his mother. Again, however, I think that these criticisms may be explained by the particular personalities of each of these parents.
s.60CC(3)(j) and (k) - family violence and family violence orders
These matters have been dealt with above.
s.60CC(3)(l) - the orders that will be least likely to lead to the institution of further proceedings in relation to X
The Orders that Courts make are prospective in their operation and therefore rely to a large degree on the parents moving forward armed with the orders and reasons of these Courts and to then parent their child co-operatively. However, factors and changes inevitably arise for children and for parents as they move forward. Children will develop relationships, interests and commitments in their home location and this will then test the commitment of the primary parent to the obligations of ensuring that the child continues a relationship with the other parent. Parents themselves will develop and move forward in their own relationships and life ambitions. The inconveniences of travel, logistics and household commitments will test the endurance of any Court orders. Indeed, the changes anticipated for a child’s relationship with each of his parents following a relocation will be many and unknown in their effect. Nevertheless, it is generally accepted that ongoing or repetitive litigation for children is contrary to their best interests and, as such, parents, in my view, have a duty to move forward in a co-operative parenting model without using these Courts as a default forum for their inevitable issues and disputes.
Consideration and Findings
In my experience, applications involving the proposed relocation of a child are among the more difficult matters coming before judges of these Courts. The majority of parenting cases will involve issues which are relatively of discrete dispute such as the allocation of time for a child over a fortnight. An anticipated relocation of a child geographically, however, will inevitably result in significant changes in the relationships for that child with each of the parents. One parent will assume a more primary role in the other a less frequent or 'visitor' status and such changes are accentuated in this matter for X where he has enjoyed and had the benefit of close proximity of his parents allowing a high frequency of direct contact with each. That situation will inevitably change by reason of the father's determination to relocate from Launceston to Hobart which, of course, is his right and prerogative. The relationship with the non-primary parent will lose the benefit of flexibility and spontaneity. Logistical, convenience and financial issues are often added to the stressors for the parents and the child. Consequently, if a child is permitted to relocate with a parent then there will inevitably be a sense of loss and bitterness felt by the remaining parent with probable long-term impact on the future of co-operation and communication between those parents. Opportunities for involvement by one or other of the parents in the child's milestone moments, schooling and extracurricular activities will be lost or, at best, made onerous. As mentioned above, as they grow older, children will develop personal relationships, interests and commitments which will often test the durability of any Court ordered time-with arrangements for the child with the non-primary parent. Consequently, and perhaps unlike the majority of parenting matters, those involving the relocation of a child or non-relocation of a child with a parent determined to move, will inevitably bring a strong sense of 'win' or 'loss' where the Courts are left with little or no room for subtle construction within the orders.
As is the case with the matter now before me, determinations involving the proposed relocation of a child are often finely balanced in the weighing of the various considerations, positives and negatives of each parent’s argument. It is proper that I say that the determination in this case is one that is very finely balanced where each parents’ proposal offers positives for X.
The father emphasises that he can provide X with a traditional and perhaps 'nuclear' family unit including male and female adult role models together with two other children in the household. With some merit, the father argues that X would then develop skills of socialisation, sharing and community which will bode him well through his transition into adulthood. Mr Beckingham does indeed present as a skilful and a loving parent with a philosophy that is well considered and one that is generally seen as being valid in a sense of providing rules, order and responsibilities for the child as a member of a household community.
Nevertheless, there are advantages of the mother's proposal which equally sit as disadvantages in that of the father. Firstly, of course, the father's proposal would bring a significant change in the nature of X's relationship with his mother where the family reporter emphasises the importance of that relationship for X. Equally, the mother can provide the consistency of school and peer group relationships for X in circumstances where there is a current diagnosis of ASD and where it is generally accepted that children with such a diagnosis do not benefit from change but rather from continuity, predictability and familiarity. Whilst the mother offers a significantly different household model than does the father where she is effectively a sole parent, she does offer proximity and frequency of relationships for X with his extended family where such relationships, on the evidence, appear to be important for this child.
I am able to find that X has established, meaningful and beneficial relationships with each of his parents although he obviously views those parents as being different role models and presenting with different parenting philosophies.
Mr Beckingham and Ms Vallens are significantly different of personality and parenting philosophy. Mr Beckingham is conservative, authoritarian and rule-orientated in his parenting. Ms Vallens is more flexible, inclusive and laisse-faire in her parenting. Neither style is necessarily preferable to the other and indeed X appears to have achieved academic and social success together with establishing and maintaining close relationships with his parents despite rather than because of these differences in personality and style.
I am satisfied that each of the parents have the skills, insight and facilities to adequately and successfully parent X.
I am satisfied on the evidence that X has a strong preference to remain living in Launceston and most likely to remain living in the care of his mother. He has been able to articulate these preferences to his teachers, the family reporter and, importantly, to both of his parents. This ability to disclose his preferences is but one piece of evidence of the maturity, rationality and informed nature of those preferences.
I am not persuaded on the balance of probabilities that the father has made out his case that the mother suffers a mental illness such that her ability to properly care for X is compromised. Noting, of course, that X has, until now, been living in a shared care arrangement between his parents.
I am able to find, on the balance of probabilities, that the mother is more attuned to the needs for X to maintain a relationship with both of his parents than the father who, by reason of his personality, places a lesser value on the importance for X in his relationship with his mother and in this sense I adopt the observations of the family reporter.
After a period of some reflection in a finely balanced argument where there are both positives and negatives to each parent’s proposal, I am of the view that X's best interests are served by remaining living with his mother and living in Launceston. In making this determination I place considerable weight on what I find to be the informed and mature views and preferences of X himself and where to make orders contrary to those views might serve to challenge and compromise his future relationships with each of his mother and his father. I also place some weight on the personality of X himself and where the evidence suggests a diagnosis of ASD and a preference for stability and familiarity for X and in this sense I place some weight on the observations and opinions of the principal and teacher from X's school.
Again, after some lengthy reflection, I prefer an order that the parents equally share parental responsibility for X. I am mindful that each is reluctant in their communication with the other and where I have made findings of significant differences in parenting style and philosophies together with distinct personalities in the parents themselves. However, X himself has a deep understanding of his parents’ personalities and styles and has benefited thus far from the contributions of each of them. Both Mr Beckingham and Ms Vallens have much to offer their son and it is important for X that he continues into his teenage years understanding that it is his parents who will each contribute to the important decisions in his life. Despite their differences, each presents as a skilful, intuitive and insightful parent. Whilst the obligations of parental responsibility are not exercised daily, they are important and life forming decisions when undertaken. I am confident, therefore, that these parents can make such decisions when necessary and hopefully with some improvement in their own respect, trust, confidence and communication.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 23 December 2020
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Family Law
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