BENELONG & ELIAS
[2009] FamCA 1312
•31 December 2009
FAMILY COURT OF AUSTRALIA
| BENELONG & ELIAS | [2009] FamCA 1312 |
| FAMILY LAW – CHILDREN – Parenting orders – Relocation – Parental Responsibility – Attachment of young child |
| Family Law Act 1975 (Cth) ss 60CC, 60CC(4)(b)(i), 65DAA, 29ZX(3) |
| Taylor & Barker (2007) FLC 93-345 McCall & Clark [2009] FamCAFC 93 Starr & Duggan [2009] FamCAFC 115 |
| APPLICANT: | Mr Benelong |
| RESPONDENT: | Ms Elias |
| FILE NUMBER: | CSC | 132 | of | 2009 |
| DATE ORDERS MADE: | 24 December 2009 |
| DATE REASONS FOR JUDGMENT DELIVERED: | 31 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 16, 17 & 18 November 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fellows |
| SOLICITOR FOR THE APPLICANT: | Williams Graham Carman |
| COUNSEL FOR THE RESPONDENT: | Ms Wilson |
| SOLICITOR FOR THE RESPONDENT: | AMR Legal |
Orders
The parents have equal shared parental responsibility for their child, E born … November 2008.
E live with the mother in Melbourne.
E spend time with the father as may be agreed between the parents in writing and failing agreement as follows:
3.1.Until E turns 2 years old:
3.1.1.during the long summer holiday period for a two week period as agreed between the parties in January 2010 and failing agreement between Monday 11 January 2010 and Sunday 24 January 2010 (that time to take place in Cairns) as follows:
3.1.1.1.For six week day afternoons, the days to be agreed upon between the parties and failing agreement, Tuesday, Wednesday and Thursday afternoons from 12pm until 5.30pm.
3.1.1.2.Each Saturday and Sunday from 9.30am to 4pm.
3.1.2.During the Victorian first, second and third term school holiday period (time to take place in Cairns) as follows:
3.1.2.1.From 9am until 4pm on the first Saturday of the Victorian term school holidays.
3.1.2.2.From 9.30am to 4pm on the first Sunday.
3.1.2.3.From 12pm to 5.30pm the following Tuesday.
3.1.2.4.From 12pm to 5.30pm the following Wednesday.
3.1.2.5.From 12pm to 5.30pm on the following Thursday.
3.1.2.6.From 9.30am to 4pm on the second Saturday.
3.1.2.7.From 9.30am to 4pm on the second Sunday.
3.1.3.On any period of time the father travels to Melbourne upon giving the mother two weeks written notice, E spend time with her father from 12pm to 5.30pm on days to be agreed upon between the parties and failing agreement on Tuesday, Wednesday and Thursday in each week and from 9.30am to 4pm on each Saturday; such periods to be for a maximum of two weeks with a minimum gap of two weeks between such two week periods.
3.2.From 24 months until E turns 3 years old:
3.2.1.During long summer holiday periods 2010/2011 for a two week period as agreed between the parties (time to take place in Cairns and time to include Christmas Day 2010; Saturday 25 December 2010 and Boxing Day 26 December 2010) as follows:
3.2.1.1.For eight weekday afternoons, the days to be agreed upon between the parties and failing agreement to be Monday, Tuesday, Wednesday and Thursday from 12pm to 5.30pm; each Saturday and Sunday from 9.30am Saturday to 4pm Sunday.
3.2.2.During the Victorian first, second and third term school holiday period (time to take place in Cairns) as follows:
3.2.2.1.from 9.30am until 4.00pm on the first Saturday of the Victorian term holiday period.
3.2.2.2.from 9.30am until 4.00pm on the first Sunday.
3.2.2.3.from 12.00pm the first Tuesday until 5.30pm the first Wednesday.
3.2.2.4.from 12.00pm until 5.30pm the first Thursday.
3.2.2.5.from 9am on the second Saturday until 4.00pm the second Sunday.
3.2.3.On any period of time the father travels to Melbourne upon giving the mother two weeks written notice, E spend time with her father from 9.30am to 4.00pm on days to be agreed upon between the parties and failing agreement on Tuesday, Wednesday and Thursday in each week and from 9.30am on each Saturday to 4.00pm Sunday; such periods to be for a maximum of two weeks with a minimum gap of two weeks between such two week periods.
3.3.From when E is three until E turns four years old:
3.3.1.During the long summer holiday period for a two week period as agreed between the parties during January 2012, (time to take place in Cairns) as follows:
3.3.1.1.overnight from 9.00am on one day until 5.30pm the following day, each period to be spaced by at least one night with the mother, failing agreement to be Monday/Tuesday, and Wednesday/Thursday in each week.
3.3.1.2.each Saturday and Sunday from 9.00am Saturday until 5.00pm the following Sunday.
3.3.2.During the Victorian first, second and third term school holiday period (time to take place in Cairns) as follows:
3.3.2.1.from 9.00am each Saturday of the Victorian school term holiday period until 5.00pm the following Sunday.
3.3.2.2.from 12.00pm until 5.30pm the first Monday.
3.3.2.3.from 9.00am the first Wednesday until 5.00pm the first Thursday morning.
3.3.2.4.from 12.00pm until 5.30pm the first Friday.
3.3.3.On any period of time the father travels to Melbourne upon giving the mother two weeks written notice, E spend time with her father from 9.00am on one day until 5.30pm on the following day, to be agreed between the parties and failing agreement to be Monday/Tuesday and Wednesday/Thursday and from 9.30am each Saturday to 4.00pm each Sunday; such periods to be for a maximum of two weeks with a minimum gap of two weeks between such two week periods.
3.4.From when E is four years until E turns five years old:
3.4.1.During the long summer holiday period 2012/2013 for a two week period as agreed between the parties, (time to take place in Cairns and to include Christmas Day) as follows:
3.4.1.1.Four days and nights with the father.
3.4.1.2.Two days and nights with the mother.
3.4.1.3.Four days and nights with the father.
3.4.1.4.Two days and nights with the mother.
3.4.1.5.Two days and nights with the father.
3.4.1.6.Failing agreement the first day in this two week cycle will commence 9.00am Saturday.
3.4.2.During the Victoria first, second and third term school holiday period (time to take place in Cairns) as follows:
3.4.2.1.Four days and nights with the father.
3.4.2.2.Two days and nights with the mother.
3.4.2.3.Four days and nights with the father.
3.4.2.4.Two days and nights with the mother.
3.4.2.5.Two days and nights with the father.
3.4.2.6.Failing agreement the first day in this two week cycle will commence 9.00am Saturday.
3.4.3.On any period of time the father travels to Melbourne upon giving the mother two weeks written notice, E spend time with her father for a period of four nights and failing agreement to be 9.00am Monday to 5.00pm Thursday in each week and from 9.30am each Saturday to 4pm each Sunday; such periods to be for a maximum of two weeks with a minimum gap of two weeks between such two week periods.
3.5.When E goes to school:
3.5.1.During the long summer holiday period preceding the commencement of school, for a two week period as agreed between the parties, in January 2014, (time to take place in Cairns) failing agreement to be the second and third week of January.
3.5.2.During the Victorian first, second and third term school holiday period (time to take place in Cairns) for one week with the father and failing agreement to be the first week of the holidays.
3.5.3.On any period of time the father travels to Melbourne upon giving the mother two weeks written notice, E spend time with her father for a week at a time to be agreed upon between the parties and failing agreement from 9.00am Sunday in one week to 9.00am Sunday in the next week.
3.6.In the event E is not with her father and her father is in Melbourne, E spend Father’s Day, the father’s birthday and/or three hours on her birthday with the father.
3.7.Notwithstanding anything in these orders, E is to spend Mother’s Day and the mother’s birthday with the mother.
The mother provide the father, via email in the December of each year, details of the upcoming Victorian school holiday term period for the following school year.
The mother to be responsible for return trip travel costs for E and an appropriate supervising adult between Melbourne/Cairns/Melbourne pursuant to the arrangements set out in paragraphs 3.
Both parties keep the other informed of their residential address, landline telephone numbers and mobile numbers at all times. Such communications are to be emailed between the parties.
In the event the father relocates to Melbourne at any time in the future, he be at liberty to make an application for review of the times E spends with him.
On occasions that E is to spend time with her father in Cairns, the mother shall initially pay the costs of transporting E to Cairns (including the cost of any accompanying person) and the father will reimburse the mother for one half of the costs of E’s airfares within 14 days of receiving notification and verification of that cost from the mother. Subject to any subsequent order and the mother’s right to enforce a money order, failure by the father to provide reimbursement of E’s airfares is not to be a reason for the mother not arranging for E to be in Cairns to spend time with the father.
The time for failing any appeal against these orders shall not commence until the Reasons for these orders are published.
NOTATION:
These orders have been made in chambers pursuant to s 69ZO Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Benelong and Elias is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC123 of 2009
| MR BENELONG |
Applicant
And
| MS ELIAS |
Respondent
REASONS FOR JUDGMENT (REVISED*)
INTRODUCTION
This case is about E who was born in November 2008 and turned 12 months old the day after submissions concluded in this case. The mother has always been E’s primary carer. The mother currently lives in Cairns but will be relocating to Melbourne. She seeks an order that the child return with her.
It is the father’s desire for E to remain in Cairns and for him to be the primary carer. The father has indicated that he will not relocate to Melbourne.
It is the father’s case that if E is allowed to relocate to Melbourne, then the child’s ability to form attachments with him will be significantly impaired. The father puts in issue the mother’s willingness and ability to foster a relationship between he and the child. There is therefore an issue in this case as to whether or not the child can have the benefit of a meaningful relationship with her father if the mother relocates with the child back to Melbourne.
In her affidavit evidence, the mother made allegations concerning the father’s behaviour which fall within the definition of family violence. Allegations of physical assault and serious controlling behaviour by the father were not explored in any detail in cross examination and were not the subject of submissions by counsel for the mother. Since separation, the mother does not allege any family violence but the mother does highlight some examples of the father’s controlling behaviour after separation. In addition, the mother alleges that her ability to function in an environment in Cairns would be without family support. It is the mother’s case that, irrespective of the reasonableness of her perceptions of the father’s controlling behaviour, she has genuine stress and anxiety in her current environment. Her case is that ordering her to remain in Cairns would have a serious negative impact on her ability to function as E’s primary carer.
There is also an issue as to whether or not an order should be made for equal shared parental responsibility (as sought by the father) or sole parental responsibility to the mother (as sought by the mother). The outcome of that consideration will depend largely upon what findings and conclusions are made about the ability of the parties to effectively communicate about long term decisions.
Orders were made in this matter by me on 24 December 2009 so that the parties knew what the result was. A corrected version of my Reasons was not available to be published contemporaneously with the orders. I now publish those Reasons.
SHORT HISTORY
The father was born in 1971 and is currently 38 years of age.
The mother was born in 1982 and is currently 27 years of age.
The parties commenced a casual relationship in late 2007/early 2008 and the mother discovered she was pregnant with E in February 2008. The parties started to live together on 12 July 2008.
E was born in November 2008. The parties separated on 12 December 2008. So, the parties were together about five months; about four months before E was born.
The mother moved unilaterally to Melbourne with the child on 16 January 2009 but returned voluntarily on 17 March 2009, the day before the matter came before the court on an interim basis. The father had made an interim application for an order that the mother return to Cairns. The mother’s parents (who are separated) and her other daughter, T, who is aged 8, have been in Cairns with the mother since that time.
Both parties and the child have remained in Cairns since March 2009. The father saw E from March 2009 on three occasions per week for short periods of time (2 ½ hours; 3 ½ hours; 3 hours). Currently the arrangement has been extended by consent to 3 hours; 5 hours and 6 hour periods.
Prior to the mother announcing, during the hearing, her intention to return to Melbourne regardless of the outcome of competing parenting orders about E, it was the mother’s intention that T would return to Melbourne to live with the maternal grandmother, no matter what the outcome of this case.
THE APPLICATIONS
The father wants equal shared parental responsibility and wanted E to remain in Cairns living with the mother and seeing him on regular occasions, gradually increasing in their length and frequency over time as the child becomes older. The father however accepted during the trial that the mother’s stated intention that she will return to Melbourne regardless of the outcome, meant that he had to change his application. He now seeks an order that the child live with him in Cairns.
The mother desires to locate E’s residence to Melbourne and proposes a regime that would take place at times coincident of Victorian school holidays in circumstances where she would bring E to Cairns to see her father.
In the event that E is not permitted to relocate to Melbourne, it is the mother’s proposal to return to Melbourne.
Counsel for the father was critical of the mother not spelling out her real position prior to the commencement of the final hearing. It was clear during the hearing that counsel for the mother was reluctant to put to the court what I infer her client had told her. Instead the mother read to the court a statement on the second day of the hearing which she indicated was the hardest thing that she had ever had to do. The statement read out to the Court by the mother became Exhibit C. That statement was the first occasion when she had made clear her intention to return to Melbourne whatever the outcome of the case. Counsel for the father submitted that this type of behaviour is typical of other things that the mother has done over a long period of time and sighted as example the mother raising doubts over E’s parentage and the assertions as to violent or controlling behaviour by the father not being raised by the mother until after the separation.
I have concluded that the mother’s position in relation to returning to Melbourne is not some type of tactical position taken by her to achieve a desired outcome in these proceedings. Her evidence was heartfelt. Counsel for the father characterised the statement made by the mother in the witness box in relation to her deciding to go back to Melbourne as “very confronting language”. She has previously left T with her mother for a significant period and I have no doubt if I order that E stay in Cairns the mother will move back to Melbourne without E. This may be thought to be a large black mark against the mother. However, it might equally be said that the father’s absolute unwillingness to consider a move to Melbourne should be seen in exactly the same way. As it turns out, I do not consider that there is a black mark against either of the parties for the position that they have taken in relation to where they will be living in the future. Both parties have very solid and cogent reasons for desiring to live where they have indicated they wish to live.
I do not accept counsel for the father’s submission that the mother may stay in Cairns notwithstanding the evidence that she has given in this case.
The position taken by the mother during the final hearing was known to her own mother but was not known to her father or to her fiancé.
One effect of the late statement made by the mother was that it was not something the report writer was able to explore in her written report. In oral evidence the report writer declined to express a view or recommendation arising from the new position taken by the mother.
The original applications filed by the parties prior to the commencement of the final hearing were in the following terms:
Father
1. That the child of the relationship, namely [E], born […] November 2008 lives with the Mother, [Ms Elias] in Cairns.
2. That the parents have equal shared parental responsibility for the child.
3. That the child spend time with the father at all times as may be agreed between the parents in writing and failing agreement as follows:
Until [E] is 12 months on 19 November 2009
(a)Each Tuesday and Thursday from 12.00pm to 5.30pm
(b)Each Saturday from 9.30am to 4.00pm
(c)For a holiday, to consist of two consecutive days from 9.30am to 4.30pm
From 12 months to 24 months
(d)Each Tuesday and Thursday from 9.30am to 5.30pm
(e)Every weekend from 5.30pm Friday until 4.00pm Saturday
(f)For holidays on four occasions each year to consist of two consecutive nights spaced by at least one month apart
From 24 months to the commencement of prep
(g)The child is to live with each of the parents in an equal shared care arrangement whereby the child lives with each of the parents in an alternating fortnightly roster spending four (4) nights and three (3) days with the Mother in the first week and three (3) nights and four (4) days with the Father in the first week and alternating each week thereafter.
From the commencement of prep
(h)The child is to live with each of the parents in an equal shared care arrangement whereby the child lives with each of the parents “week about”, with changeover of residence to occur each Friday.
4. The child is to spend the following specified times with the Father:
(a)Unless the child is otherwise in the Father’s care pursuant to these Orders, the child is to spend time with the Father on the child’s birthday:
(i) if on school days – from after school until 6.00pm; and
(ii) if on weekends and holidays – from 9.00am to 2.00pm.
(b)Unless the child is otherwise in the Father’s care pursuant to these Orders, the child is to spend time with the Father on the Father’s birthday:
(i) if on school days – from after school until 6.00pm; and
(ii) if on weekends and holidays – from 9.00am to 2.00pm.
(c)On Father’s Day each year, if it does not fall on a day specified elsewhere, from 9 o’clock am to 5 o’clock pm.
(d)For one half of Easter Sunday, from 9 o’clock am to 12.00 midday in odd numbered years and from 12.00 midday to 5 o’clock pm in even numbered years.
(e)From 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in even numbered years.
5. The Child is to live with the Mother at all other times and notwithstanding Orders 3 and 4 herein, the Child is to live with the mother at the following times:
(a)Unless the child is otherwise in the Mother’s care pursuant to these Orders, the child is to spend time with the mother on the child’s birthday:
(i) if on school days – from after school until 6.00pm; and
(ii) if on weekends and holidays – from 9.00am to 2.00pm.
(b)Unless the child is otherwise in the Mother’s care pursuant to these orders, the child is to spend time with the mother on the mother’s birthday:
(i)if on school days – from after school until 6.00pm; and
(ii)if on weekends and holidays – from 9.00am to 2.00pm.
(c) On Mother’s Day each year, if it does not fall on a day specified elsewhere, from 9.00am to 5.00pm.
(d) For one half of Easter Sunday, from 9.00am to 12.00 midday in odd numbered years and from 12.00 midday to 5.00 pm in even numbered years.
(e) From 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in even numbered years. For one half of Easter Sunday, from 9 o’clock am to 12.00 midday in even numbered years and from 12.00 midday to 5 o’clock pm in odd numbered years.
(f) From 2.00pm Christmas Day until 2.00pm Boxing Day in even numbered years and from 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years.
6. If the Mother for any reason (including but not limited to illness of the Child) has to cancel any period of time spent by the child with the father pursuant to these Orders, the mother is to provide the father with alternatives for make up time within 48 hours of the cancellation and the father is to promptly advise the mother of the substitute time he will take.
7. If the father for any reason (including but not limited to illness of the child) has to cancel any period of time spent by the child with the mother pursuant to these orders, the father is to provide the mother with alternatives for make up time within 48 hours of the cancellation and the mother is to promptly advise the father of the substitute time she will take.
8. Each parent is to notify the other at least thirty (30) days in advance of any intention to take the child on a holiday and provide to the other parent dates and contact details.
9. That the mother pay the costs of and incidental to the Application.
During final submissions I pointed out to counsel for the father that I had not received any indication from the father as to what arrangements he wished to make in relation to spending time with the child in circumstances where E was allowed to go and live in Melbourne. Counsel for the father indicated that he would “convert the father’s proposals about his contact with [the child] in Melbourne into a convenient form of words”.
So far as I am aware no written document has been received by the court from the father’s legal representatives and I intend to proceed to make orders based on the evidence that I have.
In oral evidence the father indicated that he would try to get to Melbourne once a month if he could afford it. He thought that was possible.
Mother
1) That the child of the relationship namely [E] live with the Mother in Melbourne, Victoria.
2) That the mother have sole parental responsibility for the child.
3) That the mother consult the father regarding significant parenting matters concerning the child specifically;
(a)the child’s education
(b)the child’s religious and cultural upbringing
(c)the child’s health
(d)the child’s name
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent
4) That [the child] spend time with the Applicant Father as follows:
5) Until [the child] is 12 months
(a)During the Victorian third term school holiday period (but spending time to take place in Cairns) as follows:
(i)from 9.30am until 3.30pm on the first Saturday of the Victorian school holiday period
(ii)from 9.30am until 3.30pm on the first Sunday
(iii)from 12.00pm until 5.30pm the following Tuesday
(iv)from 12.00pm until 5.30pm the following Thursday
(v)from 9.30am until 3.30pm on the second Saturday
(vi)from 9.30am until 3.30pm on the second Sunday
6) Until [the child] turns two years old
(a)During the long summer holiday period for a two week period as agreed between the parties in January 2010, (time to take place in Cairns) as follows:
(i)for six weekday afternoons, the days to be agreed between the parties, from 12.00pm until 5.30pm
(ii)each Saturday and Sunday from 9.30am until 4.00pm
(b)During the Victorian first, second and third term school holiday period (time to take place in Cairns) as follows:
(i)from 9.30am until 4.00pm on the first Saturday of the Victorian term holiday period.
(ii)From 9.30am until 4.00pm on the first Sunday
(iii)From 12.00pm until 5.30pm the following Tuesday
(iv)From 12.00pm until 5.30pm the following Wednesday
(v)From 12.00pm until 5.30pm the following Thursday
(vi)From 9.30am until 4.00pm on the second Saturday
(vii)From 9.30am until 4.00pm on the second Sunday
7)Until [the child] turns three years old
8)During the long summer holiday period 2010/2011 for a two week period as agreed between the parties, (time to take place in Cairns and time to include Christmas Day 2010) as follows:
9)For eight weekday afternoons, the days to be agreed between the parties, from 12.00pm until 5.30pm
10)Each Saturday and Sunday from 3.00pm Saturday until 12.00pm the following Sunday
11)During the Victorian first, second and third term school holiday period (time to take place in Cairns) as follows:
(i)from 9.30am until 4.00pm on the first Saturday of the Victorian term holiday period
(ii)from 9.30am until 4.00pm on the first Sunday
(iii)from 12.00pm until 5.30pm the following Tuesday
(iv)from 12.00pm until 5.30pm the following Wednesday
(v)from 12.00pm until 5.30pm the following Thursday
(vi)from 3.00pm on the second Saturday until 12.00pm the following Sunday
12)Until [the child] turns four years old
13)During the long summer holiday period for a two week period as agreed between the parties during January 2012, (time to take place in Cairns) as follows:
(i)for ten weekday afternoons, the days to be agreed between the parties, from 12.00pm until 5.30pm
(ii)each Saturday and Sunday from 10.00am Saturday until 2.00pm the following Sunday
14)During the Victorian first, second and third term school holiday period (time to take place in Cairns) as follows:
(i)from 10.00am each Saturday of the Victorian school term holiday period until 2.00pm the following Sunday
(ii)from 12.00pm until 5.30pm the following Monday
(iii)from 2.00pm the following Wednesday until 1-.00am the following Thursday morning
(iv)from 12.000pm until 5.30pm the following Friday
15)Until [the child] turns five years old
16)During the long summer holiday period 2012/2013 for a two week period as agreed between the parties, (time to take place in Cairns and to include Christmas Day) as follows:
17)Each Tuesday from 12.00pm until 12.00pm the following Wednesday
18)Each Thursday from 9.00am to 5.00pm
19)Each Friday from 4.00pm until 4.00pm the following Sunday
20)During the Victoria first, second and third term school holiday period (time to take place in Cairns) as follows:
21)From 10.00am the first Saturday of the Victorian term holiday period until 2.00pm on the following Monday
22)From 10.00am until 6.00pm the first Wednesday
23)From 10.00am until 6.00pm on the first Thursday
24)From 10.00am the second Friday until 4.00pm the following Sunday
25)During [the child’s] first year at school
26)During the long summer holiday period preceding the commencement of school, for a two week period as agreed between the parties, in January 2014, (time to take place in Cairns) as follows:
(i)for two lots of three night blocks, days to be agreed between the parties, from 10.00am on the first morning until 10.00am on the fourth morning, each three night block to be spaced by at least two nights.
(ii)Three days from 9.00am to 6.00pm
(iii)During the Victorian first, second and third term school holiday period (time to take place in Cairns) from 10.00am the first Saturday until 10.00am the first Thursday
27)Thereafter:
(a)each long summer holiday period for a two week period, as agreed between the parties, (time to take place in Cairns and to include Christmas Day each alternate year commencing 2014).
(b)During the Victorian first, second and third term school holiday period (time to take place in Cairns) from 10.00am the first Saturday until 10.00am the second Saturday
(c)As otherwise agreed between the parties (additional time to be spent in Melbourne Victoria)
28)that the mother provide the father, via email in the December of each year, details of the upcoming Victorian school holiday term period for the following school year
29)That the mother to be responsible for return trip travel costs for [the child] and an appropriate supervising adult between Cairns and Melbourne pursuant to the arrangements set out in paragraphs 4(a) to (m) inclusive.
30)That both parties keep the other informed of their residential address, landline telephone numbers and mobile numbers at all times. Such communications are to be emailed between the parties.
31)Such other orders as deemed appropriate by this honourable court
DOCUMENTS RELIED UPON
The following documents were relied upon by the father:
26.1.Affidavit of the father filed 5 March 2009
26.2.Affidavit of the father filed 6 August 2009
26.3.Affidavit of the father filed 10 November 2009
26.4.Affidavit of Mr D Benelong filed 5 March 2009
26.5.Affidavit of Ms A Benelong filed 5 March 2009
26.6.Affidavit of Ms P filed 5 March 2009
26.7.Affidavit of Ms M filed 5 March 2009
26.8.Affidavit of Ms L Benelong filed 5 March 2009
26.9.Affidavit of Ms L Benelong filed 6 August 2009
26.10.Affidavit of Ms H filed 9 March 2009
26.11.Affidavit of Ms H filed 9 March 2009
26.12.Affidavit of Mr T filed 10 November 2009 (leave sought)
The following documents were relied upon by the mother:
27.1.Affidavit of the mother filed 7 August 2009
27.2.Affidavit of the mother filed 11 November 2009
27.3.Affidavit of AC filed 10 November 2009 (leave sought)
27.4.Affidavit of SP filed 10 July 2009
27.5.Affidavit of Ms R filed 3 August 2009
27.6.Affidavit of Mr D filed 5 August 2009
27.7.Affidavit of Mr S filed 5 August 2009
27.8.Affidavit of Ms U filed 5 August 2009
27.9.Affidavit of Mr K Elias filed 6 August 2009
27.10.Affidavit of Ms C filed 6 August 2009
27.11.Affidavit of Ms J Elias filed 6 August 2009
27.12.Affidavit of Mr V Elias filed 6 August 2009
CREDIT
Much of the factual matters that form the basis of my ultimate findings are not in dispute between the parties. One primary area of dispute between the parties relates to the alleged history of family violence during the relationship. The factual basis of that history was not a focus of attention at the hearing. I have concluded that although the mother’s fears may not be based upon a factual history about which I could make findings, they are nonetheless fears genuinely held by her.
There is one matter which affects the mother’s credibility. The mother did not offer any plausible explanation as to why it was she requested a paternity test to establish whether or not E was the father’s child. I conclude that the mother should never have had any genuine doubt about who was E’s father. Counsel for the father submits that this must have been a tactical mechanism to delay the interim hearing on 18 March 2009. Given that the wife consented to interim orders on 18 March, it is difficult to see how she was using it as a tactical issue. I do not accept that the mother was motivated into making false allegations by the fact that she formed a relationship with another man. Counsel for the mother said that the mother’s evidence is that she did not know what overcame her. She saw a photograph of E and said that she could not see any resemblance of the father in that photograph. She said she worked it out on a calendar a million times and could not figure it out. But her evidence is she had not slept with Dr W since December 2007 and clearly she conceived in February. I do not accept that her involvement with the doctor was sufficiently close in time for her to be confused and bewildered. A better interpretation is the mother at that time in March 2009 was trying to seek ways of being able to eliminate the possibility that she might have to remain in Cairns.
I also had some difficulty in accepting some of the things that the father said. I do not accept that the father’s statement that police turned up at changeovers in the normal course of their duties without the father relying upon his connection with a family member who is a police liaison officer. I do not accept the father’s version that he did not ask for the mother to be evicted from her premises in January 2009.
Overall however, as I have said, no significant issue in this case turns on matters of credit.
CHRONOLOGY
The father was born in 1971 and is currently 38 years of age.
The mother was born in 1982 and is currently 27 years of age.
T was born in November 2001. T is the mother’s daughter from a previous relationship. She primarily resided with the maternal grandmother in Melbourne between May 2006 and March 2009.
The mother moved to Cairns in May 2006. The mother was motivated in leaving for Cairns by wanting to get away from the environment which saw her taking speed on a weekly basis but also because she said she wanted to get into air hostessing (ground staff) and she had been informed that she needed more customer service experience in tourism.
In late 2007/early 2008 the parties commenced a casual relationship in Cairns.
The mother discovered she was pregnant with E in February 2008.
The mother informed him she was pregnant in March 2008. At this time the father was in a city north of Cairns. Between February and July 2008 the father visited the mother at least four times by travelling from there to Cairns.
The father had moved his career from Cairns to far northern Queensland and then to a city north of Cairns to advance his career. The father works for the state government.
In May 2008 the father applied for compassionate transfer back to Cairns.
On 20 June 2008 the father’s employer granted a transfer effective 14 July 2008.
On 12 July 2008 the parties commenced to live together.
E was born in November 2008. The mother alleges that the father refused to contact the maternal grandmother to inform her the mother was in labour.
The parties separated on 12 December 2008. The father alleges that mother thereafter began restricting the time he might spend with E. The father attempted to invoke the assistance of Legal Aid and a Family Dispute Resolution Practitioner. The mother alleged that she requested the father to leave her house after the father locked her in the house and removed house keys. The mother said that maternal grandmother and stepfather moved into the mother’s home to provide her support.
On 25 December 2008 and 1 January 2009 the mother alleges she facilitated the father spending time with E in the company of her stepfather and also alleges the father threatened the mother and the mother left with E.
On 10 January 2009 the father learned from a third party that the mother may be relocating with child to Melbourne due to new relationship.
On 15 January 2009 his solicitors forward the mother a letter advising of his objections to the relocation.
On 16 January 2009 the mother moved to Melbourne with the child and it is unlikely that the letter of 15 January 2009 had reached the mother’s attention by that time.
On 19 February 2009 the mother says she attended a mediation centre in Melbourne.
On 5 March 2009 the father commenced current proceedings in the Federal Magistrates Court Cairns.
On 11 March 2009 the mother attended upon a counsellor by the name of Ms R to deal with stress and anxiety.
On 17 March 2009 the mother’s response raised issues concerning the paternity of E.
On 17 March 2009 the mother moved in with her aunt in Cairns. I accept the father’s submission that the mother only returned to Cairns when faced with an application to return to Cairns which she believed she could not successfully oppose.
On 18 March 2009 consent orders were made in the Federal Magistrates Court as follows:
54.1.E live with the mother in Cairns.
54.2.The father spend time with the child three times a week (2 ½ hours; 3 ½ hours and 3 hours), to be supervised by father’s family members.
54.3.A family report be ordered.
The father agreed to parentage testing.
On 19 April 2009 the mother moved out of her aunt’s unit following an argument.
On 15 May 2009 the mother is approached by Ms L, an employee of the ANZ Bank in Cairns, about the fact the father is inquiring about details of the mother.
On 20 May 2009 the mother alleges the parties attended a Joint Child Dispute Resolution Conference and agreement is reached between parties that the father’s time with E be increased.
On 26 May 2009 DNA testing confirmed E was the father’s child.
Interviews for the family report were held in June 2009.
In late June/early July 2009 the mother’s brother, K Elias, left Cairns.
The family report was released on 28 July 2009. The report recommends inter alia:
61.1.That E remain living with the mother in Cairns.
61.2.There be increased time spent by the father with a view to a further review after E is 1 years of age.
61.3.The parties seek the assistance of an independent mediator to assist them in relation to any relocation issues.
On 3 October 2009 the mother alleges E was upset at handover and clung to her mother. The mother says the father blamed her for the child being upset.
On 6 October 2009 and 10 October 2009 the mother alleges the father had two police officers present for three handovers. The mother alleges she recognised one of the police officers as somebody the father told her he was related to.
THE EVIDENCE OF THE FAMILY CONSULTANT
Initial report dated 20 July 2009
Ms W has prepared a report dated 20 July 2009.
She states that the mother and father interacted respectfully at the interview. E appeared a bit unfamiliar with the father and reluctance in going to him, but did not show distress when the mother left. (paragraph 99).
The report writer makes the following observations and expresses the following opinions:
66.1.The mother clearly has a strong bond with E. Also, T is affectionate with E and all three interact well.
66.2.Due to the parties’ short relationship, they did not have the opportunity to develop the foundations for a stable and mutually satisfying relationship prior to becoming parents.
66.3.Each parent views the other parent’s family as controlling.
66.4.The mother’s decision to relocate to Melbourne without informing the father was neglectful and contributed to the current situation between them regarding rights to contact and co-parent. The communication breakdown suggests that the mother was reluctant to communicate with and negotiate a parenting agreement with the father.
66.5.There is a need as far as is possible to insulate the child from the psychological warfare of the parents.
66.6.Both parents want E to have a relationship with the other parent.
The report writer gives her recommendations at 116. She recommends that E remain living with the mother in Cairns and that contact with the father be increased, with a review of the situation once E attains the age of one. Counsel for the father submitted that the first report by the report writer recommended a review on the child’s first birthday to increase contact to overnight. This is not strictly accurate. She recommended a review at twelve months to assess whether overnight time was in E’s best interests. Ms V did not address the possibility that the mother would decide to return to Melbourne irrespective of the outcome of this case.
Supplementary Family Report dated 10 November 2009
The report writer reviewed the mother’s affidavit material and notes:
68.1.the mother’s fears of E being relocated unilaterally to far northern Queensland by the father are denied by the father’s affidavit material. I formed the view there is no immediate prospect of that happening if E is ordered to reside with her father.
68.2.the mother alleges violent and controlling behaviour by the father during the relationship, some of which is corroborated by the mother’s affidavit material. As I have commented already, these allegations were not the subject of any focus at the final hearing.
The report writer has given evidence about attachment theory in the supplementary Family Report. “Theorists” are referred to but not cited. Ms V was tested about her source of knowledge and her evidence was less than satisfactory about her knowledge of writings on the topic.
However I accept the report writer’s evidence that:
70.1.an infant benefits from a secure attachment to a primary caregiver;
70.2.an important attachment includes father-infant attachment
70.3.insecure attachments have adverse affects on the social and emotional development of a child leading to a range of problems including inability to connect and bond with others; mental health and capacity as an adult to provide adequate caregiving
70.4.due to the devastating effects of post-separation disruptions, efforts need to be made to secure core attachments to maintain parent-child bonds
70.5.the ideal is :
70.5.1.to maintain attachment with both parents
70.5.2.that the parents communicate respectfully
70.5.3.for a child’s visit with the secondary attachment figure to be gradual and considerate of the child
70.5.4.to allow the secondary attachment figure opportunities to care for the child in a variety of contexts (feeding, soothing, bathing, changing, playing, putting to sleep, etc)
70.5.5.to not have prolonged separations from either parent
70.5.6.to minimise conflict during transitions.
The report writer concluded that the mother has been the primary caregiver since E’s birth. The father had an opportunity to commence the development of a parental relationship when the mother returned to Cairns. The mother suggested that the father visit E quarterly in Melbourne. The report writer comments, “the attachment research suggests that more frequent interactions contribute to the maintenance of an attachment relationship for infants”.
In the context of believing the mother may stay in Cairns, the report writer notes the importance of the father having an opportunity to develop and maintain a meaningful relationship, which will be disrupted by prolonged separations. Greater parent-child attachment will result from regular interactions. Increasing the number of transitions the child has between parents will help in the continuity of the child’s relationship with both parents. However, given the developments at the hearing, I find this preferred position is not achievable. E is going to be without frequent contact with one of her parents.
The report writer acknowledges the mother’s right to feel safe and recommends that the mother continue to attend changeovers with a support person. She recommends changeovers should occur on neutral grounds such as community/child support / day care centres. Whilst there is tension at the current handovers, the parties have found a neutral public place for handovers in Cairns and neither seek an order about handover venues.
APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD
Reference was made in submissions to Taylor & Barker (2007) FLC 93-345 and McCall & Clark [2009] FamCAFC 93. These two Full Court relocation decisions were further referred to in Starr & Duggan (2009) FamCAFC 115. In the latter case, the Full Court at paragraphs 33 - 39 said the following:-
33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Section 60CC Family Law Act (“FLA”) factors in this case cannot be considered in a vacuum and will need to be assessed in the context of the parties’ competing proposals.
Both parties agreed that, in the circumstances of this case, the provisions of s 65DAA FLA had no particular significance. This was because of the stark nature of the alternatives presented to the court. E will either live with her mother in Melbourne or live with her father in Cairns. Either way, the distance that the parties live apart means that it is not reasonably practicable for E to spend either equal time or substantial and significant time with the parent with whom she does not primarily reside. Neither party suggested I should consider the exceptional step of ordering the mother to remain in Cairns or ordering the father to relocate to Melbourne. On the facts of this case, even if I had considered it appropriate to suggest the consideration of either injunction myself, it would have been highly unlikely either order would have been made. The mother had compelling reasons for wanting to return to Melbourne. The father had compelling reasons for wanting to remain in Cairns.
SECTION 60CC FAMILY LAW ACT FACTORS
Primary considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The first primary consideration talks about meaningful relationship with both parents. Given the parties’ respective proposals, that is not something that would be easily achieved in this case, although I am mindful of the fact that the words meaningful relationship is not only tested by the amount of time that a child spends with a parent but also by the quality of that time.
The difficulty in this situation is the damage that will be done to the attachment between E and one of her parents as a result of not being able to frequently see the absent parent at her age.
Counsel for the father submitted that E had already achieved a level of attachment with the mother and it therefore was not as critical for E to spend regular time with the mother. The submission was that the critical thing was for E to spend regular time with her father given that it was submitted that it was likely that the attachment between E and her mother has already been established.
The report writer gave evidence that E was going to be distressed no matter what order was made in this case and that the length of that distress was unpredictable.
Whilst I accept the proposition that E can still have a meaningful relationship with a parent notwithstanding the fact that she is living away from that parent, there is no escaping the fact that the quality of that meaningful relationship will be compromised.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
The parties have not had any significant period where they have not been in conflict. The mother asserts the father has been abusive and is controlling. All allegations about violence and abuse were denied by the father. The father denies he is controlling.
At paragraphs 10 – 35 of her affidavit filed 7 August 2009 the mother discusses abuse during the relationship.
She makes general assertions of patterns of behaviour on the part of the husband as opposed to specific instances.
Instances of actual violence include “[the father] would hit me often across the back of my head with his hand or with a newspaper if I did something to upset him” (paragraph 24); the mother states the father would make her wear long sleeve shirts to hide the bruises he had given her (paragraph 27) and the mother refers to having bruises on the back of her legs, and also the father slapping her in the face one time (paragraph 28).
The mother states the father humiliated, embarrassed and threatened the mother throughout the relationship and locked her in her own house with E; monitored her at work (when they were both employed at the same location) and demanded to know where she was at all times; alienated the mother from the maternal grandmother; dictated what clothing she was to wear during relationship and made the threat “You don’t mess with the [Benelongs]”.
The mother says the father has threatened to take E away from the mother and return to far north Queensland, where E will be adopted to his sister, who cannot have her own children. The father told the mother that this is “custom”. The father and his sister both deny this.
Counsel for the father submitted that the mother was late in reporting assertions of controlling behaviour by the father but I find that is not the case. The mother made assertions very shortly after the separation in relation to the father’s controlling and domineering behaviour.
I do not find it relevant that the mother made no complaint about this type of behaviour whilst she was in what was a short relationship with the father.
The mother’s brother states, at paragraph 10 of his affidavit, that he has seen bruises on the mother’s arms and legs which she told him were from the father. Ms U, the mother’s aunty, and the mother’s brother, gave evidence by way of affidavit, that she observed bruises upon the mother. The mother’s father gave evidence that he had observed his daughter very upset in circumstances where the inference could be drawn that the cause of that upset was the father. This evidence was not tested. Counsel for the father submitted that these matters could be seen as corroborative of the mother’s allegation in relation to family violence or controlling behaviour. In my view, evidence of bruising on the mother is relevant in support of the sworn evidence that they were caused by the father. But there was little, if any, testing of either of the parties in relation to these allegations.
Ms R’s evidence
The mother has seen a counsellor, Ms R, who has provided an affidavit filed 3 August 2009. In her report she states that the mother appeared to be distressed and fearful of her safety and also that of her daughter. She states that the mother said she experienced violent and controlling behaviour from the father. She alleged the father corked her leg on one occasion when she was 7 months pregnant walking up the stairs to her apartment, she fell and put her arms out to save the baby from being hurt.
Ms R was not called for cross examination. Counsel for the father made the submission that the counsellor’s evidence is only as good as the allegations made by the mother to the counsellor. Whilst that might be true in relation to making some positive determination about whether or not incidents asserted by the mother happened in exactly the way she alleges, Ms R’s evidence can be relied upon to support the proposition that at the time Ms R was seeing the mother, the mother appeared to be distressed and appeared to be fearful for her own and E’s safety. That position is also corroborated by Ms C’s evidence and my observations of the mother in the witness box.
Ms C’s evidence
The mother has seen a psychologist Ms C who has filed an affidavit on 6 August 2009. Ms C was also not called for cross examination. In her report she states that the mother’s tests indicated severe psychological distress, and alarming anxiety. She indicates that it is her opinion that the mother remain with her family (i.e. return to Melbourne).
Real estate agent
The mother criticised the father’s conduct in relation to his involvement with the real estate agent Mr S. Mr S has filed an affidavit in the mother’s case and was not cross examined. At paragraph 4 of Mr S’s affidavit he says:-
“[the father] requested we take a look at the unit as he believed that the tenant ([the mother]) needed to be evicted. He believed there was an excessive number of people residing on the property.”
That evidence is unchallenged and has to be given a reasonable amount of weight. I find that the father did in fact request the mother be evicted. That would have necessarily meant that his daughter would also have been removed from the property. I accept the father may have been feeling very emotional at the time but it was inappropriate behaviour and behaviour indicative of a fairly aggressive approach to the mother. It also clearly took place at a time when the father believed the mother was still living in Cairns.
Counsel for the father submitted that what the father did with the real estate agent was understandable in the context of him being denied a new regular relationship with his newly born child. It may be understandable but nonetheless behaviour which the mother found confronting.
Video taping
Counsel for the father submitted that any reasonable observer would conclude that the mother’s mother was video taping using her mobile phone simply from the strange way that she held the phone and held her body. As invited by both counsel, I have had a look at the very brief footage taken on the mobile phone and draw the conclusion that on balance, it is not consistent with Ms Elias’s evidence that she was trying to get mobile coverage in order to respond to an email. Having said that, what should not be lost in this discussion is the fact that someone on behalf of the father was videoing changeover.
Approach to bank officer
In relation to the father’s approach to Ms L, that woman has signed a statutory declaration which is attached to the mother’s affidavit and no application was made for the woman to be asked any questions. I find nothing untoward in the fact that the father approached this woman who is of the same ethnic background as the mother, in February 2009, in an attempt to obtain information about the mother’s whereabouts.
Police at handover
The police have attended handover two or three times.
The father admitted that on one occasion at a handover, a family member, a community police liaison officer by the name of Ms O, was present.
The only explanation he seems to have offered as to involving the police at handover was he was upset by an incident which involved a bag snatching or some type of grappling over a baby bag.
The father in oral evidence attempted to downplay his involvement in having the police at handover. His oral evidence did not sit neatly with the entry on 6 October 2009 in the communication book (Exhibit H) where he tells the mother “today I have utilised the services of the Queensland Police and will endeavour to do so if you continue to display any form of erratic impulsive and aggressive behaviour at the designated exchange times”. I find the father’s behaviour, in involving the police in the way that he did, was very assertive and seemed to be a disproportionate reaction to anything that had happened.
Another indication of the father’s assertive behaviour was the way he accessed the mother’s electronic records.
The father showed a lack of sensitivity in requiring the mother to produce a medical certificate to prove that she had an allergy to coconut oil after the mother had asked the father not to use coconut oil on E for that reason. It also demonstrates a level of mistrust between the two parents. Clearly, the father reached the conclusion the mother was not being truthful with him or at least was not prepared to accept her word as to her allergy.
Conclusions in relation to the controlling behaviour and its effect upon the mother
The mother says that E continuing to witness the father’s behaviour is failing to protect her from psychological harm.
The mother states the father’s conduct will expose E to psychological harm; e.g. she says he videotapes changeovers, he brings police to changeovers, he fails to acknowledge E’s distress at some changeovers and he blames the mother for the child’s distress.
I am unable on the evidence to make any findings one way or the other about family violence during the relationship. I do however accept that the mother genuinely believes the father is controlling and abusive.
Counsel for the father submitted that even though there may be some acceptance of the evidence by the mother of behaviour by the father in the past, there does not seem to be any suggestion of actual future risk which would give rise to a need to protect E from harm. The mother conceded in cross examination that E would be appropriately cared for by her father. Counsel for the mother accepted that, given that the only outcome of this case is the parties are going to be living 4,000 kilometres apart, then there is no particular ongoing concern about physical violence arising out of daily interaction or other conduct of the parties.
I accept the submission by counsel for the father that there has really been no incidents since separation that would be categorised as the father acting in an abusive, dangerous or violent manner. On the other hand I accept that some of what he has done, the mother may have found confronting.
In light of her perception of the father’s past behaviour, the mother finds it quite distressing to be in the husband’s presence and is unable to attend changeover without being accompanied by at least one family member. I accept counsel for the mother’s submission that the father has to take some responsibility for how the mother feels in relation to the ongoing requirement for her to interact with the father in relation to E, both at changeovers and otherwise.
Substance abuse
At paragraphs 11 – 14 of his affidavit filed 5 March 2009 the father alleges that the mother previously used speed (in Melbourne) and continued to use drugs in Cairns. The mother’s evidence, which I accept, was that during 2005 she took speed on a Friday night, to assist her through her second job on a Friday night. She got counselling for that in 2006.
At paragraph 27 the father alleges that the mother drank alcohol around the time she was breastfeeding E, but that was not the subject of any testing or comment at the hearing.
The paternal grandmother asserts in her affidavit that she witnessed the mother discussing the drug ice with another person, but again that was not the subject of any testing or focus at the hearing.
It is not suggested that the mother was taking drugs during the time the parties were together and the mother’s previous use of illicit drugs is not a matter of any great weight in determining the outcome of these proceedings.
Additional considerations
Any views expressed by the child
In this case, due to the young age of the child, this is not a relevant consideration.
Relationships
The parties were involved in a very short relationship and are unable to verbally communicate with one another.
E has good relationships with all relevant persons associated with this case.
Since E’s birth, she has only ever lived with the mother who is acknowledged to be E’s primary care giver and the adult with whom the child has her primary attachment.
In oral evidence the father said that the time that he had spent with E in 2009 had meant that he has built up a good attachment with E. He conceded however that he has not actually ever spent any time with E alone having always had a family member assisting during periods when E was with him.
Other persons who have been constant members of E’s household since her birth are J Elias and V Elias, the maternal grandparents. They are a separated couple but have in fact lived together in Cairns under the same roof with the mother whilst awaiting the scheduling of this hearing. During 2009, T has been home schooled by the mother and has been a member of the household. I accept that the support that the mother has been given by her parents during 2009 in Cairns can no longer continued. I accept evidence from both the mother’s parents that they would imminently be leaving to return to Melbourne. The mother’s father particularly has special accommodation in Melbourne that suits certain incapacities which he has. I also accept that T also has expressed a wish to the family report writer that she return to Melbourne and that the decision has been taken that she do so notwithstanding what the result of this case might be.
As earlier indicated, I do not have any specific proposals from the father about his time with E in Melbourne.
The mother in her application has set out a set of arrangements about E spending time with her father in Cairns and I adopt them in the main. The advantage of doing that is that it is at least implicit that the mother accepts that she is in a position to make those arrangements. Consistent with my earlier discussion, I have introduced E’s overnight time with her father at an earlier stage than that sought by the mother.
I certify that the preceding one hundred and seventy nine (179) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Acting Associate:
Date: 31 December 2009
*Paragraph 159 has been amended by the deletion of two sentences originally included in error.
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Appeal
-
Costs
0