Brasser and Flanagan
[2012] FMCAfam 31
•20 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRASSER & FLANAGAN | [2012] FMCAfam 31 |
| FAMILY LAW – Parenting orders – relocation – mother wishing to move to [Suburb D] from [Suburb C] with infant child – father seeking child to live with him if mother relocates – mother is child’s primary attachment figure and carer – child to have gradually increased time spent with father – mother allowed to relocate in 2013. |
| Family Law Act 1975, ss.60CA, 60CC(2)-(4), 65DAA |
| Applicant: | MR BRASSER |
| Respondent: | MS FLANAGAN |
| File Number: | MLC 6511 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 28, 29 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dickson |
| Solicitors for the Applicant: | Cynthia A Toose & Associates |
| Counsel for the Respondent: | Mr Melilli |
| Solicitors for the Respondent: | Martin Irwin & Richards |
| Counsel for the Independent Children’s Lawyer: | Mr Williams |
| Solicitors for the Independent Children’s Lawyer: | JR Watson Legal Services |
THE COURT ORDERS BY CONSENT THAT:
Both parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2010.
THE COURT ORDERS THAT:
[X] live with his mother in the [Suburb C] area until January 2013 and thereafter [X] is to live with his mother.
[X] spend time and communicate with his father as follows:
(a)in three consecutive weeks continuing in the same cycle as the orders of 29 November 2011 from 4pm to 7pm each Tuesday and Thursday and from 9am to 1pm each Saturday;
(b)in the fourth week on Sunday from 5pm to 7pm and the mother and [X] are permitted to stay in [Suburb D] in that week and from the preceding Saturday after 1pm;
(c)commencing July 2012:
(i) in three consecutive weeks from 4pm to 7pm each Tuesday and Thursday and from 4pm Friday overnight until 1pm Saturday; and
(ii) in the fourth week on Sunday from 6pm to 7.30pm and the mother and [X] are permitted to stay in [Suburb D] in that week and from the preceding Saturday after 1pm;
(d)commencing November 2012:
(i) each second weekend from Friday at 4pm until Sunday at 12 noon; and
(ii) in the other week each Thursday and Saturday from 9am to 7pm;
(e)on [X]’s birthday on [omitted] 2012 (which is a Monday) from 3pm until 7pm;
(f)on Christmas Day 2012 from 11am until 3pm;
(g)all such periods of time spent as provided from in (a) to (f) inclusive above are to occur in [Suburb C] and the mother or her agent are to deliver [X] to the father’s residence at commencement and the father is to return [X] to the mother’s residence at conclusion;
(h)commencing January 2013:
(i) each second weekend from Friday at 4pm until Monday 1pm and for this time spent with the following shall apply:
1. the first weekend of each month shall occur in [Suburb D] where the mother is permitted to relocate the residence of [X] to as and from 1 January 2013 and the father shall collect and return [X] from and to the mother’s residence in [Suburb D]; and
2. the third weekend of each month shall occur in [Suburb C] and the mother shall collect and return [X] from and to the father’s residence in [Suburb C]; and
(ii) for three additional periods of four days and three nights in the calendar year commencing September 2013 at the father’s election as to time and location upon his giving the mother 28 days’ written notice with the transportation to be provided by the father to and from the mother’s residence; and
(i)such further and other times as agreed in writing between the parties.
Neither party by themselves, their servants and/or agents are to denigrate the other in the presence and/or hearing of the child.
Pursuant to s.13C of the Family Law Act 1975, the parties (father and mother):
(a)attend a post separation parenting course/program to occur as nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry of the Family Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other parties or their solicitors.
Otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Brasser & Flanagan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MILDURA |
MLC 6511 of 2011
| MR BRASSER |
Applicant
And
| MS FLANAGAN |
Respondent
REASONS FOR JUDGMENT
The father filed an application for parenting orders in the Magistrates’ Court of Victoria sitting at Mildura on 1 July 2011. That application was subsequently transferred to this Court by order made 4 July 2011. On that same date Magistrate Gibb ordered amongst other orders that the parties’ child [X] born [in] 2010 continue to live with his mother and (order number 1)
“That the mother be restrained from changing the permanent address of the child of the relationship from the [Suburb C] district until this matter is dealt with by the Federal Magistrates Court on a final basis”
Those orders of 4 July 2011 also provided for [X] to spend time with his father in three weeks of each month each Tuesday and Thursday between the hours of 4.30-6.30pm and each Saturday between the hours of 10am and 12 noon with such time spent taking place at the paternal grandfather’s residence and in the presence of the father’s stepmother or his father.
Upon the first listing of the matter in this Court and on 29 July 2011, orders were made for the appointment of an Independent Children’s Lawyer. On 13 September 2011, a slight variation was made to the existing and operative orders of 4 July 2011. On 29 November 2011, this Court made interim orders at the conclusion of the hearing to progress the time spent between [X] and his father pending delivery of these reasons and in terms which promoted the best interests of the child for the interim period. Those orders which remain operative until delivery of these reasons are as follows:
“1. All previous time spent with orders are discharged.
2. The father spend time with and communicate with the child [X] born [in] 2010 as follows:
a. in three consecutive weeks commencing Monday 28 November 2011 from 4.00pm to 6.30pm each Tuesday and Thursday and from 1.00pm to 5.00pm each Saturday save for [X]’s birthday where time spent with shall occur on [omitted] from 1.00pm to 5.00pm;
b. in the fourth week on Sunday evening from 5.00pm to 7.00pm;
c. notwithstanding order 2(b) herein, on Christmas Day in [Suburb C] from 8.00am to 11.30am;
d. otherwise as agreed.
3. The mother or her agent deliver [X] to the father’s residence at commencement and the father return [X] to the mother’s residence at conclusion.”
At trial the mother sought orders as set out in her response filed 19 July 2011 and the father sought orders as set out in his amended application filed 18 November 2011 save that in the witness box he claimed he did not provide instructions seeking that [X] live with him, but rather qualified such application by seeking such an order if the mother were to reside outside the [Suburb C] area.
That is, the mother sought that [X] continue to live with her and that she be permitted to reside in [Suburb D] with [X]. She was flexible about time spent with between [X] and his father in that it could occur generally as often as the father would be able to exercise it given the limitation imposed by the geographical distance of some 5.5 hours’ driving time that her move back to [Suburb D] would impose. The father sought that [X] live with his mother for so long as she resided in [Suburb C] but that if she returned to reside in [Suburb D] then [X] reside with him and spend time with his mother on a fairly flexible basis again dependent on the mother’s ability to travel to exercise such time spent with. Both parties agreed to an order that they have equal shared parental responsibility for the child.
The father relied in the proceedings on the evidence as contained in his affidavit sworn on 24 November 2011. He was cross-examined as to that evidence. The mother relied in the proceedings on the evidence contained in affidavits sworn by her on 13 July 2011 and 22 November 2011. She also relied on affidavits sworn by her father, Mr K Flanagan (on 9 September 2011) and by her mother Ms J Flanagan (on 24 November 2011). Each of the mother and her parents were cross-examined as to their evidence. A number of exhibits were also tendered as evidence in the proceedings.
Statements of fact contained in these reasons are findings of fact on the balance of probabilities.
History
The father is aged 22 years, the mother is aged 20 years and their son is now aged one year. The mother and father met in Year 7 at [omitted] Secondary College which the mother attended prior to her move to live with her mother and sister in [Suburb D]. The mother’s parents separated in 2000. At the time the family comprising Mr K Flanagan and Ms J Flanagan and their two daughters were living in [Suburb B]. Ms J Flanagan and the parties’ younger daughter moved to take up residence in [Suburb D] and Mr K Flanagan and the parties’ elder daughter – the mother in these proceedings – remained in [Suburb B] for a time before moving to the [Suburb C] area. The mother commenced secondary schooling there and completed two years before moving to [Suburb D] to live with her mother and younger sister. This move occurred at the end of 2005. She remained living in [Suburb D] until 2010 when, whilst in Year 12 at secondary school, she discovered she was pregnant. At 20 weeks pregnant and in late June 2010, the mother left [Suburb D] and took up residence in her father’s home in [Suburb A]. She intended to remain there until the birth of the child and for a period of time thereafter and then return to [Suburb D]. The father in these proceedings obtained orders in effect stopping the mother from following through with her earlier plans, and so she and the child have remained living in [Suburb A] against the mother’s wishes. By contrast, the father and his family have throughout the relevant period lived in the [Suburb C] area and although the father contemplated for himself a move to take up residence in Adelaide at one time, he no longer wishes to relocate to that city. His father has assisted him in the provision of a car, employment and flexible work hours and he has purchased, with the assistance of $37,000 in government grants, a home of his own in which he now resides. He is thus well settled in [Suburb C]. If the mother were permitted to remove [X]’s residence from the [Suburb C] environs to the [Suburb D] area, the father would not contemplate a move for himself to be closer to his son. In the giving of his evidence in the witness box he indicated that he would remain residing in [Suburb C].
It is important at this point to correct the statement of history as to the place of residence of the mother provided by the father in his affidavit evidence which gave a false impression of the time spent by the mother in [Suburb D]. He said relevantly at paragraph 7 of his affidavit sworn on 24 November 2011:
“7. The Respondent Mother subsequent to having [X] has had a very transient lifestyle. She completed her schooling here in [omitted] when she was living with her Father. After completing her secondary education she moved to [Suburb D] for a short period of time before moving back to [Suburb C] where she lived in this district during her pregnancy. [X] was born in [Suburb C] and initially lived here before the Respondent Mother travelled to Darwin where I believed that she stayed for approximately four weeks. The Respondent Mother returned to live in this area on the 24th of June 2011. I then made my Application at the end of July 2011 to stop her relocating to [Suburb D] as she was indicating at that time that she wished to move again to [Suburb D] to commence a relationship with a new partner.”
The above was not true in that the mother had lived for nearly five years in [Suburb D], a fact of which the father was aware. Further, the mother was not living a transient lifestyle following the birth of [X] but rather residing in her father’s house with a holiday taken in Darwin – again a matter of which the father was well aware. The father’s attempt to create an impression of the mother as irresponsible and having a residential base, historically, in [Suburb C] went to his credit. He gave false evidence as to these matters.
The father also deposed to having been in a relationship with the mother, with it commencing in 2007. This also was inaccurate. They were never at any stage in an ongoing committed relationship nor even did they ‘go out’ with each other for any continuous period. The mother and father saw each other occasionally over the years when the mother would visit her father in [Suburb A] and on two or three occasions including in March 2010 whilst the mother was in [Suburb C] to collect a car from her father, the mother and father had sex.
The father also sworn in his affidavit evidence that the mother had breached orders of the Court. Under cross-examination by Counsel he was compelled to retract such allegations. In fact, she had never denied him contact, nor breached orders of the Court nor lived a transient lifestyle. Her argument is not to ‘relocate’ as put by the father, but rather to ‘move back home’ to [Suburb D].
After the mother returned home to [Suburb D] in March 2010 she discovered that she was pregnant. She had been seeing another male ‘off and on’ and told both the other male and the father in these proceedings that she was pregnant. She did so very early in the pregnancy. The father was not happy with that news and I accept the mother’s evidence that she was persuaded by the father that given the expected birth date he could not be the father. The mother continued in the pregnancy with the support of her mother, father and sister Ms C who is 16 years of age. They had discussions and agreed as a family that the mother would stay in her father’s home in [Suburb A] for a few months before and after the birth of [X] and then move back to [Suburb D] and obtain rental accommodation. Discussion also occurred as to the mother resuming her studies with her mother and sister offering their support in assisting in the care of [X]. The mother’s move to [Suburb A] at this critical time in her life was because of her extremely good relationship with her father, who was at the time more physically available to her given her mother’s employment which involved overnight travel and time away including interstate trips and being on call. Her mother at that time could be away for up to four nights in a week and worked many weekends. That ceased in August 2011 when the maternal grandmother changed her employment to cease interstate work and do less hours and so make herself more available to her children and husband.
Evidence
The mother’s relationship with her own mother was canvassed and examined as a consequence of its earlier history. Following the mother’s return to [Suburb D] in 2005 to live in the household of her mother and stepfather, serious difficulties developed within that household which included domestic violence. The mother and maternal grandmother had a difficult relationship as a result mainly – as conceded by the mother – of the mother’s aggression and immaturity. The mother commenced to take drugs but subsequently sought the assistance of supported youth accommodation at [organisation omitted] where she remained for several months in 2009. She also spent a week in a detox facility in Melbourne. She was supported throughout by both her mother and father, repeated Year 11 and was looking forward to completing Year 12 at the time of her pregnancy. She no longer takes drugs and is to be praised for her actions and resilience in getting the help she needed, and addressing her issues at the time she did so, being 2009. Her relationship with her mother is now good and she misses her and the support she provided.
It was not until [X] was three months of age that the mother again approached the father about paternity and suggested – based on [X]’s strong physical resemblance to the father – that he was the father. The father arranged a DNA test and accepted he was indeed the father. Both parties agree that at that time the father was excited about having a child. Up until then, the mother had been entirely supported by her own family without any assistance from the father. He commenced to pay child support as assessed and to spend time with [X]. The parties thereafter disagree as to the reason for a lessening of that time spent with between the father and [X], the father’s evidence being the mother failed to co-operate and the mother’s being the father lost interest. The period of time over which this occurred was some three months. For one of those months the mother and [X] were in Darwin and Adelaide on a trip visiting a girlfriend of the mother’s which had been planned for many months and prior to parentage being determined. On her return the mother immediately notified the father and he visited [X] that evening. Otherwise the mother had indicated to the father her intention to return to [Suburb D] at the end of 2011 and thus she continued to travel regularly with [X] to [Suburb D] for the support of her mother and sister. I accept however during this time that although she very much wanted [X] to have a relationship with his father, and was happy for the father’s involvement, the mother did not necessarily see the need to make [X] available for time spent with his father on frequent occasions each week without arbitrary restriction. But of course she was a very young, new mother and save for the presence of her father and grandmother, otherwise isolated.
The father’s assertion sworn on 1 July 2011 that the mother may never have informed him of the paternity of [X] had she not returned to [Suburb C] was unfair and again went to his credit. The mother informed the father of her belief that he could be the father early in her pregnancy and the father dismissed that suggestion and himself did nothing further. As soon as the mother observed such a possibility in the child’s features she again spoke with the father. I accept that she wanted [X] to have his father acknowledged despite her tardiness in completing the Birth Certificate details and that she wants for [X] a father/son relationship.
Otherwise, the father describes the mother as a great mother who devotes her life to looking after [X]. Ms J Flanagan and Mr K Flanagan also observed their daughter to be a good mother. There is no issue as to the care she provides for [X]. He is happy, active, well nourished, clean and thriving. The father agrees that [X] should continue to reside with the mother – who continues to breast feed him – but only for so long as she is compelled to reside in [Suburb C]. His reasoning is “that he feels [X] has more support in [Suburb C] than in [Suburb D].” He noted that not only the mother’s father but her paternal grandmother reside in the [Suburb C] area. He thus sought a qualified residence order as described and agreed when asked by Counsel in cross-examination that he had no regard to how the mother felt about such application made shortly before the matter proceeded to a hearing.
The mother gave evidence that there was a financial motive in her move to [Suburb A] and that her mother caused her to pay some form of rent which her father did not. I accept her mother’s contradictory evidence. There was no request for funds by either her mother or her father for her support and I find that the mother could equally have saved monies and received a government pension no matter in which country town she resided. The reality is that she is very close to her father and needed his physical and emotional support. He continues to provide that support though his daughter is not now in need of it to the same extent. Her emotional needs now are more for her friends, her sister and her mother in [Suburb D]. Her father wishes to place his house on the market for sale but will not do so if it forces his daughter into rental accommodation in [Suburb C].
During the proceedings the mother started a relationship with a Mr S in [Suburb D]. She did not live with him and that relationship has ended. Likewise, the father started a relationship with his current girlfriend. That relationship continues. Neither his girlfriend nor his parents gave evidence in the proceedings.
The mother’s feeling of isolation in the [Suburb C] area is described by both of the parents and I accept their evidence. Mr K Flanagan’s evidence as contained in paragraph 15 of his affidavit sworn 9 September 2011 is as follows:-
“That I am aware that Ms Flanagan is lonely living in [Suburb A]. I would like nothing better for Ms Flanagan and my grandson [X] who I love dearly to live close to me but I accept that it is better for Ms Flanagan that she be back in [Suburb D] with her various girlfriends and near her mother and sister. I will always remain close to Ms Flanagan. I believe she will visit me on a regular basis and I will certainly visit her in [Suburb D]. I have no doubt that Ms Flanagan will continue to want [X] to know his father and will continue to make sure [X] sees his father.”
Ms J Flanagan’s evidence which I accept, in paragraph 3 of her affidavit sworn 24 November 2011, is as follows:-
“That Ms Flanagan went to high school in [Suburb D]. She is popular and she still has lots of friends in [Suburb D]. She is very happy when she gets back to [Suburb D] and I believe she is lonely and finding it difficult to live in [Suburb A] by herself. She often telephones me for advice and I can tell from her voice that she is unhappy and unsettled and at times quite anxious.”
The mother’s own evidence is that she feels isolated and anxious in [Suburb A] by herself and caring for [X]. Although she loves her father dearly and is very close to him, she does not see him as a “substitute in the long term for broader family support and the support of (her) friends and social network in [Suburb D]” (paragraph 7 of the mother’s affidavit sworn 22 November 2011).
The mother is currently on anti-depressant medication and her taking of such medication relates to post-natal depression as described by her. She also gave evidence that “being here (in [Suburb C]) makes me very unhappy.” No medical evidence was before the Court as to the mother’s current mental functioning or the history as provided by her to her doctor as the cause for her unhappiness (if any is known to her). Without such expert evidence the Court can make no finding as to the mother’s mental health beyond statements made by her.
The mother’s further evidence is that she has much less trouble discussing [X] with the father than his parents, and that she has been upset and intimidated by them. This has made her feel more isolated living in [Suburb A]. The father’s stepmother and father have spoken to her of ‘their rights’ with respect to time spent with [X]. They have made her feel uncomfortable and lonely.
The father also has intimidated the mother. One example of the intimidation she feels from the father’s behaviour which I accept, preferring her evidence to that of the father in this regard, is the incidence as described by the mother which occurred on 22 October 2011. It is set out in paragraph 18 of her affidavit sworn 22 November 2011 and is as follows:-
“On or around 22nd October 2011 the Applicant Father was on my street in [Suburb A]. I drove out of my driveway at 7:11am with [X] in the backseat and saw the Applicant Father’s car at the end of my street. The Applicant Father appeared startled and reversed quickly back up the street and then proceeded to do a burnout next to my car, flicking loose stones up from the asphalt onto my car. He then gestured at me rudely with his middle finger and laughed. I was scared by this incident and very upset because [X] had been in the backseat of my car. I contacted the Victoria Police and they have since informed me that they have verbally warned the Father about this behaviour.”
The father’s relationship with his son is accepted by all to be close, developing and appropriate in that the father tends to all of [X]’s needs. There is no doubt he loves his son and cares for him well. The regular time spent with between father and son promote [X]’s best interests.
The Law
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interest of the child as the paramount consideration.
In that determination the Court is required to consider the primary and additional considerations set out in ss.60CC(2) and (3) of the Act. In this matter, it is clear that there is a benefit to [X] in having a meaningful relationship with both of his parents. There is before the Court no allegation of physical or psychological harm caused to [X] by either of his parents. He is well cared for and greatly loved by his parents and their extended families. When turning to a consideration of those matters set out in s.60CC(3) the Court finds the following:-
“(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is too young to express any views.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The child has a good relationship with his parents, maternal and paternal grandparents. His primary attachment figure is his mother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Absent the litigation and interference from the paternal extended family these young parents can improve their communication and act jointly for the benefit of their son.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The child’s removal from the [Suburb C] area will impact upon his relationship with his father as a result of his very young age and should be delayed for a further 12 months to strengthen the bond between the father and child.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is a significant consideration in the proceedings not so much as to the expense of travel but rather the practicality of sustaining a relationship with a parent who resides some distance away but the mother’s past pattern of travel to [Suburb C] will in all likelihood continue and the father has the means and ability, even if it is inconvenient to him, to travel to [Suburb D].
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother’s capacity to provide for the child’s emotional needs exceeds that of the father at the present time by virtue of the child’s young age and attachment to, and familiarity with her.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Both parents are young and have acted at times immaturely in their dealings with each other.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents are endeavouring to be good parents who act in their child’s best interests. Both provide well for their son’s physical and emotional needs.
(j) any family violence involving the child or a member of the child’s family;
Not applicable.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Not applicable.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The mother wishes to return home to [Suburb D] and is very unhappy. She needs the supports she has there. The child’s best interests given his young age determine that the mother’s needs absent any medical evidence are secondary to the promotion of the father/child relationship for a further period of time to enable a secure attachment to be established between [X] and his father.
(m)any other fact or circumstance that the court thinks is relevant.”
As contained in these reasons.
In looking to s.60CC(4) the Court finds the parents to have both fulfilled their responsibilities as parents generally admirably despite the intemperate use of Facebook from time to time by each – they are young – and despite their reduced communication, a function more of this ongoing litigation than a lack of desire to jointly promote their son’s best interests.
[X]’s best interests are served by his parents having equal shared parental responsibility and the presumption is not rebutted. This is acknowledged by his parents. That requires a consideration of the matters set out in s.65DAA of the Act. On both parties’ applications equal time spent with each parent is not sought. That is appropriate and in [X]’s best interests. His primary attachment figure and carer is and has been his mother. Given his young age and the history of his care, his mother’s care is central to his wellbeing. Whether [X] can spend substantial and significant time with his father turns on whether that is reasonably practicable. It is in his best interests but it must also be reasonably practicable. In making that determination the Court must have regard to the matters set out in s.65DAA(5) of the Act which are as follows:-
“Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.”
The Independent Children’s Lawyer submitted to the Court that the mother not be permitted to relocate the residence of [X] away from the [Suburb C] area until the child is approaching school age and a bond more fully developed with his father. The Independent Children’s Lawyer also submitted that regular and frequent time spent with the maternal grandfather would also be denied to [X]. The Independent Children’s Lawyer accepted however, that the father could reasonably and practicably travel to [Suburb D], in that the father had flexible employment, sufficient funds and a reliable motor vehicle and that the mother would also travel to [Suburb C] to visit her father as before and being on a regular basis.
The mother is seeking a return to her home town with [X]. She has continued to spend considerable time there (to the extent the orders permit) and remains very unhappy in [Suburb C]. She does however have her father’s support and [X]’s father resides in [Suburb C]. Whilst the mother’s state of health and ability to function is an important consideration, there is no evidence to suggest she will be unable to function if her return is further delayed by a 12 month period with some opportunity to spend time in [Suburb D] in the interim. [X]’s relationship with his father needs to be further advanced with frequent time spent with before the mother’s move can occur. That promotes the child’s best interests.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 20 January 2012
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