Calise and Harcourt
[2010] FMCAfam 703
•9 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALISE & HARCOURT | [2010] FMCAfam 703 |
| FAMILY LAW – Relocation – child’s best interests – parental responsibility – young parents – significant distance between parents homes – father relocates and requests mother to relocate – competing proposals. |
| Family Law Act 1975, ss.60 B, 60 CC, 61DA(1), 65DAA |
| MRR v GR [2010] HCA 4 Mazorski & Albright [2007] FamCA 502 |
| Applicant: | MS CALISE |
| Respondent: | MR HARCOURT |
| File Number: | CSC 191 of 2009 |
| Judgment of: | Willis FM |
| Hearing dates: | 16 & 17 February 2010 |
| Date of Last Submission: | 17 February 2010 |
| Delivered at: | Mackay |
| Delivered on: | 9 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wilson |
| Solicitors for the Applicant: | Baldwin Cartwright Lawyers |
| Counsel for the Respondent: | Mr Hamwood |
| Solicitors for the Respondent: | Suthers Lawyers |
ORDERS
The child [X] (“the child”) born [in] 2005 live with the Mother.
That the Mother and Father have equal shared parental responsibility for the decisions pertaining to the long term care, welfare and development of the child.
That the Mother and Father have sole responsibility for the day to day decisions concerning the child whilst the child is in their respective care.
That the Father spend time with the child at all times to be agreed between the parties but failing agreement:-
(a)For all of the Easter school holidays in even numbered years beginning the first Saturday of the holidays at 12:00 pm until the Saturday prior to school commencing; however, should the Easter school holidays commence on Good Friday then from 12:00 pm that Friday until the Saturday prior to commencing school;
(b)For all of the June/ July school holidays from the first Saturday of the holidays until the Saturday prior to commencing school;
(c)For all of the September school holidays from the first Saturday of the holidays until the Saturday prior to school commencing;
(d)The first half of the Christmas school holidays from the first Saturday of the holidays in odd numbered years up to and including Christmas Day and the second half of the Christmas school holidays in even numbered years from Boxing Day until that Saturday prior to school commencing to be effective from 2010.
The travelling to enable all changeovers referred to in these Orders are to be shared equally between the parties.
That the Mother and Father take all necessary steps to install either webcam or Skype on their computers so the child may communicate with either parent at all reasonable times as agreed between the parties whilst the child is in the other parents care.
That both parties provide each other with updated addresses, including email addresses and telephone numbers within seven (7) days of any change.
That the Mother provide the Father with any medication the child requires whilst spending time with the Father and all necessary information relating to the treatment and the Father will take all necessary steps to ensure the child is treated with such medication as recommended by the child’s regular general practitioner or specialist and as requested by the Mother. Should the Father fail to treat the child as prescribed for any reasons whatsoever, the Father is to forthwith notify the Mother that he has ceased administering the relevant medication.
The Father is to forthwith contact Dr M in relation to Dr M’s diagnosis and recommended treatment of the child’s asthma or coughing condition and inform himself of the treatment and medication and the appropriate response in the event that the child has a coughing fit or asthma attack whilst in the care of the Father.
The parties forthwith do all acts and things to attend a Post Orders Parenting Program through Relationships Australia and provide each other with evidence of their attendance and completion.
All outstanding applications be removed from the active pending cases list.
NOTATION:
A.The Court notes that at the time these Orders were made the Mother is living in [C] and the Father is living in [K].
IT IS NOTED that publication of this judgment under the pseudonym Calise & Harcourt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
CSC 191 of 2009
| MS CALISE |
Applicant
And
| MR HARCOURT |
Respondent
REASONS FOR JUDGMENT
1.This trial is a about the parenting arrangements for four year old [X]. The parents were aged 17 and 20 when they met working together on the father’s family property “[I]” near [N] in the Gulf area. The mother worked with the father who has always worked on his parents’ properties.
2.The parties have not been able to resolve the issue of where [X] is to live. They agree that it is not practicable for [X] to continue living one month with the mother and one month with the father as has been occurring since the interim Orders were made in February 2009. The vast distances required for changeover have taken their toll on [X] and the parties. Some two days of travelling are required for each party to at every handover.
3.At the time of trial, the mother lived in [C] in Central Queensland and the father had just moved from [N] near the gulf to [K] on the Atherton Tablelands in Far North Queensland.
4.The father’s primary proposal is that [X] live in a week on week off arrangement with him and the mother. This proposal requires the mother to move to or near [K], a small township in the Atherton Tablelands with a population of about 100. The father says that he and his partner intend to live at [K]. He will manage the [D] established on the property late last year. If the mother will not move to [K], the father seeks that [X] live with him at [K] and spends holidays with his mother.
5.There are no issues of child abuse or family violence in this matter. The parties have a mostly amicable relationship. The father contends that if [X] lives in a weekly shared arrangement, [X] can attend local schools, be close to a hospital and that given each party has such a good relationship with [X] an equal time shared living arrangement is in [X]’s best interests. On this basis the father contends that the mother ought to move close to where he has now chosen to live, despite the disruption this would cause her.
6.The mother’s primary proposal is that [X] live in [C] with her, her de facto partner and [X]’s half sister [Y]. The mother will not move to [K]. She says if the Court Orders [X] to live with his father, she will spend holidays with [X] as she strongly believes he should live in one place. She contends he has had too much movement and disruption in life and that he is suffering physically and emotionally from the constant moving between homes.
7.The mother accepts unconditionally that the Father loves [X] but contends that the father’s capacity to parent is, in some respects, flawed and that the father lives under the influence of his parents who have exhibited a poor attitude towards her in the past. She fears that her relationship with [X] will be damaged if he lives with the father. The mother also contends that, like the father, [X] would not be able to make his own life choices if he lived with the father who she says is in an enmeshed relationship with his parents.
The Law
8.This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
9.There are no issues of abuse or family violence in this matter therefore the presumption of equal shared parental responsibility applies pursuant to s.61DA (1). The parties agree that they should have Equal Shared Parental Responsibility. For reasons explained later I intend to make such an Order.
10.If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
11.This trial was heard prior to the decision in MRR v GRR[1] and accordingly each party was invited to make any further submissions in light of this decision. Neither party has chosen to do so.
[1] supra
12.In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’
13.When I determine the best interests of [X] I will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties proposals for care of [X] including the significance of the primary considerations in s.60CC (2) according to the legislative pathway. Reference will be made to parental responsibility and s.65DAA(5) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion.
14.I have had regard to the documents filed on behalf of each party, their respective case outlines, the exhibits and the closing submissions made on behalf of each party.
15.In these reasons, statements of fact constitute findings unless indicated otherwise.
Background
16.The father was born [in] 1987 and is aged 22. The mother was born [in] 1984 and is aged 25. Their short lived relationship lasted from 2004 until March 2007. [X] was born [in] 2005.
17.Once she took up her [occupation omitted] duties at [I] the mother lived in the main house with the father and his parents. The father gave evidence that his own mother was pleased to hire the mother to work on [I] station as she was closer in age at 20 to her son then aged 17, the other workers being around their mid thirties. Living and working together, the mother and father quickly formed an intimate relationship and after three months they had conceived a child. Though the pregnancy was not planned, they both wished to have this child. The father described his parents as being quite shocked when they learned of the pregnancy.
18.The father said in relation to the mother’s pregnancy I know that [Ms Calise] (the mother) says that my father threatened her that she either had to live on the property with me or get an abortion. I don’t know if this happened[2].
[2] Affidavit of Mr Harcourt filed 25 January 2010, paragraph 10.
19.After [X]’s birth in 2005 the parties were given accommodation of their own in a workers’ cottage on [I] and tried to establish themselves as a couple.
20.The father and mother continued to work on [I] whilst [X] was a baby. The mother, then 21, felt under pressure to return to work on the property. The father said that after [X]’s birth, the mother’s behaviour changed and that the mother probably had post natal depression, but neither he nor the mother understood that. The father described the mother expressing her milk to give to the paternal grandmother (Mrs H) who was caring for [X] while the mother herself physically worked on the property having returned to work when [X] was 6-8 weeks old.
21.The young parents had hopes and aspirations for an independent life together. Each of the parents was, however, under pressure in different ways, from the same source, the father’s parents.
22.The mother believed that the father’s life and future was controlled by his parents. She said that the father’s parents did not like her because of the entire situation. She was intimated a lot by them and made to feel unwelcome, worthless and useless working about the property.
23.The father describes his own parents as being “shocked” by the news of him being a father. The father at age 18 found himself in the middle of a difficult relationship between the mother and his parents.
24.Mrs H said the news of the pregnancy changed the whole situation with [Mr Harcourt] only being 17 years of age and A few arguments took place which we got through as a family.[3]
[3] Affidavit of Mrs H filed 25 January 2010, paragraph 6.
25.The mother was a young first time mother with a new born baby, living in remote and difficult circumstances. It is clear from the critical description of the mother and her shortcomings contained in Mrs H’s affidavit that the mother did not live up to Mrs H’s expectations of a mother and homemaker.[4] The father said Because [Ms Calise] was initially not diagnosed as having depression, this caused tension between her and my parents. I believe my parents saw her as being lazy and friction between them arose as a result[5].
[4][4] Affidavit of Mrs H filed 25 January 2010, paragraphs 12 to 18.
[5] Paragraph 14, Affidavit of 25 January 2010.
26.The mother asked the father repeatedly if they could leave [I] and start a life of their own. Although agreeing in principle, the father would inevitably stall their departure from [I] until after the next [omitted] or some other event. The mother said the stress on her relationship with the father was also having an effect on her. She felt that the father’s loyalty was divided between her and his family[6].
[6] Transcript p 34 16/2/10 line 30 to 45.
27.An opportunity to leave [I] for a period arose at Christmas 2006. The father’s parents had bought a property at [K] and asked the couple to occupy one of the homes on the property to ensure the previous owners did not stay on and become squatters. The property, formerly the [F], is now known as the [D]. Mrs H refers to the property as her retirement property.
28.The mother said the move was to give them some time and space to grow as individuals, as a couple and as a family unit. The father said Our intention was to move away from [I] and to try and find our feet as a young family. There was undoubted tension between [Ms Calise] and my parents and then there was tension between me and my parents about that[7].
[7] Father’s affidavit 25 January 2010, paragraph 16.
29.The mother gave evidence that she had been hurt and distressed by the parents’ comments. This had damaged her relationship with the father. By the time the parties moved to [K] the pressure she had endured at [I] had taken its toll. The mother says she was so unhappy that she sought assistance from a general practitioner to try and strengthen herself and keep going. She was prescribed a course of anti-depressants though she did not persevere with the course.
30.Having moved to [K] the father obtained work at [omitted] in (a small adjoining town). The parties agree that they had money problems and that the father had to use much of his income to set himself up with equipment necessary for his work, as he had none, and this added to their financial pressures.
31.Their time at [K] came to an abrupt end around February 2007[8] after a phone call from Mrs H to the mother.
[8][8] Transcript page 149, line 27
32.Mrs H says when she made the telephone call the she was very, very annoyed[9] at the mother and in a temper because she considered she had unnecessarily spent around $7,000.00 on furniture for the young couple only to find out from the mother that she was planning on leaving her son.
[9] Transcript page 136 line 20-25
33.Each of the mother and Mrs H has given her version of that telephone conversation.
34.The mother said she was most distressed after the phone call as Mrs H told her she was taking her son away from her, that she was no longer to set foot on any property owned by [I], or any vehicles, that she had to leave within a set time, take only her clothes and nothing else and everything else was to stay in the house.
35.Mrs H denies that she would ever have said that the mother was not welcome on their property and that she would not say that to any of her children.
36.The mother immediately told the father of the phone call and, at the time, he supported her. The father accepts that the mother told him of the phone call and what Mrs H had said.[10] The father felt torn about the conflict between the mother and his parents. He packed all of their gear in the car and trailer and together they left the [K] property.
[10] Transcript 16/2/10 page 71, line 30.
37.The father says in relation to this period:
After a few months of that my parents (particularly my father) were of the view that I should move back to [I]. I think he felt that I was turning my back on what he and Mum had worked so hard for…he does not fully appreciate the fact that his children may have different ideas to him about what they would like to do in their life…
38.My father is a very straight forward hard working man and those are the values that he carries forward in his life.[11]
[11] Father’s affidavit 25/1/10 paragraph 18 and 19.
39.Because my parents wanted us to move back to [I] they started saying that they would not allow us to remain living on the [F]. [Ms Calise] and I did not want to return to [I] and as a result we made the decision that we would look for work elsewhere. We… found work near [L] at “[B]” in November 2006… for about three months. [Ms Calise] was doing some minor gardening…and looking after [X] and I was working on the property…
… I had to buy things I needed to work. The work involved riding a motorcycle around the property for up to twelve (12) hours a day … I didn’t even have so much as a suitable hat or water bag. I had to purchase those …the fact that the money was being spent on those sorts of things rather than the family was an issue for [Ms Calise] which caused disagreements between us.[12]
[12] Father’s affidavit 25 January 2010, paragraph 20, 21.
40.Their relationship lasted only around a month after they left [K] and the parties separated in or around March 2007.
41.After separation the father drove the mother and [X] to [O] where they lived with the maternal grandmother. The mother obtained work in [omitted]. The father’s evidence is that the mother suggested that it would be best for [X] to live with her most of the time and spend time with the father. The father agreed[13].
[13] Father’s affidavit 25 January 2010, paragraph 22.
42.Following separation the father returned to his parents and continued to live and work at [I]. For the first month the father travelled each alternate week-end to see [X]. After that he would spend one week per month with [X] usually taking him back to [I].
43.The mother wished to purchase a home for her and [X]. She took on extra shift work for several months to quickly earn money for a deposit. Because this would mean working long shifts for continuous days with [X] constantly left in day care, the mother arranged for the father to have [X] live with him for just over three months.
44.In November 2007 whilst she worked at [omitted] the mother met Mr W who worked in [omitted]. He is now her de facto husband. At about this time the father met Ms R, his current partner.
45.After completing an intensive period of shift work at [omitted], the mother left [O] and moved to the Cairns beachside suburb of [T] where Mr W was living. In or around April 2008 in line with their agreement, the father returned [X] to the mother.
46.The mother and father resumed their previous routine of [X] living with the mother and spending one week in every four or five weeks with the father.
47.Sometime after returning to Cairns, Mr W changed employers. He started with [omitted]. Mr W and the mother lived like this from around April 2008 until November 2008.
48.By November 2008 the mother and Mr W had conceived their own child, due to be born in June 2009. For greater stability in their family life and for financial advantage they decided to move to [C]. Living close to [occupation omitted], Mr W could be home every night instead of being away each alternate week.
49.On 26 November 2008 the mother told the father she was expecting a child and moving to [C] to live.
50.There is conflicting evidence about what else was said on this occasion, however, following that exchange [X] was handed to his father and it was agreed that [X] would be returned to the mother on 4 December 2008 at 12.00 noon.
51.The mother and Mr W moved to [C] whilst [X] was away spending time with the father, as agreed with the mother.
52.On 4 December 2008 however, the father told the mother he would be delaying [X]’s return for a further week. The parties had a heated argument as this represented a change to the prior agreement. Following a text exchange the following week, the father again delayed returning [X] telling the mother he would be bringing [X] back on 19 January 2009. The father later told the mother he was in South Australia and he would not be returning [X] any time soon.
53.
The father continued to retain [X] until the matter was set down for an interim hearing in the [G] State Magistrates Court on
19 February 2009. During this three and a half month period the mother had sporadic and troubling telephone contact with the [X] then aged three.
54.Interim Consent Orders were entered into on 19 February 2009 wherein [X] lived alternate months with each party. The parties changed the initial handover arrangements due to the high cost and difficulty of travelling by plane every four weeks. Whilst the father resided in [N] the agreed halfway point was [omitted]. This involved a 14 hour round trip for [X] each month. The mother’s travelling difficulties were exacerbated when her second baby, a daughter [Y], was born [in] June 2009 and needed to accompany her everywhere as the Mother was breastfeeding.
55.In November 2009, the father decided to leave [I] and move to [K] with his current partner to live at the [D] property. The father’s family established a [omitted] on the property and the father says he will live and work there.
56.When the father moved from [N] to [K] in November 2009, the half way point for handover was adjusted to [R], a slightly shorter trip.
57.The father has spent most of his life since he was two years of age living at [I]. He was educated for the first seven years at home through School of the Air. For years eight, nine and ten of high school, the father left home to attend boarding school in [omitted] before returning to work for his parents at [I].
58.The father has a brother two years older than himself and says that he and his brother are part of his mother’s second family and very close, his mother’s first three daughters from a previous relationship being much older. The father says of his involvement and life at [I]:
… I do not know exactly what my parent’s plans are but I do know … they would not want it broken up and sold. I have always made plans in my life which tried to allow for that fact and tried to accommodate my parent’s strong desire to see the property maintained.
…my own personal ambition is not necessarily to run [I]. I would not ever want to see it sold and I would always play my part in running the property as required to avoid that. … I consider it to be more in the nature of an heirloom than anything else[14].
[14] Father’s affidavit filed 25 January 2010, paragraph 6.
59.He has received the same financial distribution since he was 16. He has worked as and where directed by his parents on the family properties. The father said he earns around $20,000. Mrs H said he earned $1,400 per month plus he had a credit card which was about $20,000.00[15]. I note that $1,400.00 per month is $16,800 per annum. He said he does not require much else in terms of income as he gets food, fuel, power, electricity and rent all thrown in.
[15] Transcript 17/2/10 page 146, line 15.
60.Although unaware of the precise details of the ownership structure of [I], the father says he is a director of the “Harcourt blood line trust”[16] which owns [I] and in which he holds a one third interest[17].
[16] Transcript 16/2/10 page 65, line 10.
[17] Transcript 16/2/10, page 66, line 4.
61.The father described his childhood years and attachment to [I] station in reverent terms saying [I] is part of his heritage and it’s who I am.[18]
[18] Transcript 17/2/10, page 92, line 30-35.
Evidence – Witnesses
62.The mother is aged 25. She is a mature young mother, articulate sensible, pragmatic and fiercely independent. The mother appeared to me to genuinely hold the father in high regard and with some affection. She was acutely aware of the pressure he was under to please his parents whilst trying to find his own way in life.
63.The mother gave her evidence earnestly, openly and I accept her as a most impressive and truthful witness. There were times during her evidence that her re-telling of events caused her distress as she relived some obviously painful memories. Her recollection of events surrounding the parties’ relationship breakdown was vivid and my impression was that she had been deeply affected by comments and conduct directed to her by each of the paternal grandparents.
64.The mother was in my view committed to raising [X] in a manner to provide him with genuine choices and opportunities in life.
Ms C
65.Ms C impressed me as a caring mother and grandmother. I consider Ms C an honest witness. Much of her evidence regarding the role of the paternal grandparents in the breakdown of her daughter’s relationship with the father and the father’s divided loyalty during the relationship was corroborated by either the mother or the father.
66.My impression was that despite criticisms of the father’s relaxed parenting style which caused her some concern, Ms C seemed most sympathetic for the father’s struggle for independence. When asked about the father she said I actually was impressed with [Mr Harcourt] anyway. I thought he was a lovely bloke and still do[19].
[19] Transcript 16/2/10 page 58, line 25-30.
67.Ms C was in my view very accepting of the important role that the father has to play in [X]’s life.
Mr W
68.Mr W impressed me as a young hardworking man who harboured no resentment or ill feeling towards the father or the father’s partner and appeared to have an amicable relationship with both.
69.Mr W seemed to embrace his new responsibilities as a father of [Y] and de facto partner of the mother. I consider that when making decisions for his own family he was mindful of the importance of [X] having the opportunity to develop a relationship with his own father.
70.I consider that Mr W uses his best endeavours to provide financially and emotionally for the mother and his family unit including [X].
The father
71.The father is a young hardworking man now aged 22 years. He appeared to hold no ill will personally towards the mother or her de facto husband Mr W. Save for the asthma issue, he made no complaint of the mother’s parenting.
72.His presentation in the witness box was in my view very much in line with the description of the Family Report writer who described him a quiet and polite young man, a person who was unsure of himself and full of self doubt in relation to his own abilities, protective and loyal towards his parents.
73.The father at times had difficulty trying to put into words what he wanted to say and his speech seemed choked and strained.
74.I accept without reservation that the father is a most loving father, that he has shared many enjoyable activities with [X] and that he is attuned to [X]’s loves such as music, singing and drawing.
75.He gave me the impression he is very close to his parents. Despite limited understanding of the legal structures and ownership surrounding [I] he was strongly committed to the family ideals and goals for the [I] Company. When asked who owned the land content of the property at [K] the father replied I’m not sure. I just do what I got to do to keep everything rolling – working
76.The father said that since November 2009 he had become a director of [D] on the former [F] at [K]. When asked how he previously earned his income the father said I just done what needed to be done.
77.In his affidavit the father speaks candidly of his and the mother’s efforts to start their own life contrary to the wishes or expectations of his parents. When asked why they moved away from [I] in 2006 he said Because we were trying to find out feet as a young couple. We were trying to get away and see if we could manage on our own. I was a kid at the time and I did struggle. When asked what the father was struggling with the father responded Well, trying to be a teenaged man, not a boy.[20]
[20] Transcript 16/2/10 page 70, lines 10, and 20-25.
78.Although he is only 22 and somewhat naive and immature, the father’s language is that of a much older person. Perhaps this betrays his lack of social interaction with others of his own age through his home schooling and living and working most of life on a remote property with his parents and older workers[21]. Much of the language used in the father’s affidavit bore no resemblance to his actual speech I observed whilst he was in the witness box and cross examined extensively
[21] Father’s affidavit 25/1/10 paragraph 9.
79.Speaking of his move in November 2009, when asked how he thought moving away from [I] would help him the father replied You can’t stay at home your whole life. If everyone did, rent would be cheap. There wouldn’t be many new houses around”.[22]
[22] Transcript page 70, line 25.
80.In relation to buying his own land the father said the price of land these days is extremely high and I can’t imagine it getting much lower, but the market can’t keep going up.
81.He appeared distressed at times during his evidence particularly when he said that [X] needed his own mother, not just any mother. The father said that he had wished they could have worked out this matter and he did not want to go to Court.
82.The Family Report writer stated the father was not comfortable with the fact that he and his former partner Ms. Calise were actually in conflict with each other over their son. He told the writer that he is a person who avoids conflict at all cost and would prefer to settle this matter out of court. However he did acknowledge that he has been strongly influenced by legal and other advice received in relation to this matter rather than following his own better judgment. He indicated that he was far from comfortable with the fact that events had gone as far as they had, and felt badly about the fact that [X] had not seen his mother for so long. This description of the father accords entirely with my own observations.
83.I was troubled by some aspects of the father’s evidence as it was, at times, internally inconsistent on various topics.
84.An example of his contradictory evidence relates to the November 2008 handover and what was said between the mother and father. The father said in his affidavit of 23 October 2009 that when he collected [X] on 26 November 2008 he did not agree to the mother moving to [G] (and then [C]) and he raised the difficulty of being able to exercise time with [X].
85.At paragraph 39 of his affidavit of 25 January 2010, however, the father deposed There was no discussion on that day about me continuing to spend time with [X] or any arrangements because I left shortly after [Ms Calise] told me that’s what she was going to be doing.
86.In his affidavit in relation to the November collection of [X] when the mother said she was moving to [C] the father said: At that time I did not tell [Ms Calise] I was travelling around Australia[23].
[23] Affidavit 25 January 2010, paragraph 40.
87.Under cross examination the following exchanges occurred:
Miss Wilson of Counsel: At a time in November when you came to pick him up for your regular week, [Ms Calise] told you that Mr W had got a job in [C]. Do you recall that?
The father: Yes
Miss Wilson: At that time you told her that in fact you’d still make arrangements to see [X] as things were, because you intended to travel around Australia. Do you recall that?
Father: Yes. I was under – I was rather shocked at the fact that she was going to be living in Cairns.
…
Miss Wilson: And you thought that things would change permanently for you and for [X] ?
Father: Yes
Miss Wilson: But in fact, your response instead of saying that to her, was that - that’s all right, “I’m going around Australia. I’ll go to the next major town, whenever I get there, and I’ll fly back and see him. That’s what – that’s what you told her?
Father: If you were there I’d probably would have told you I was going to go to Mars. I didn’t want to be in that house.
…
Miss Wilson of Counsel: But you accept that you told her that you would take a trip around Australia and you’d continue to see [X] as often as you could and up to a week every month if that were possible.....
The father: Yes.
88.The father’s oral evidence, whilst inconsistent with his own affidavit evidence is entirely consistent with the mother’s evidence of what occurred at this handover.
89.I considered that on several topics there was a disconnect between what the father said to the report writer, what he deposed to in his affidavit and his oral evidence. I consequently consider him to be an unreliable witness. I consider him to be an unreliable witness.
90.Wherever the father’s evidence is contradicted by the mother’s evidence, in the absence of any independent evidence, I prefer the mother’s evidence.
Mrs H – the father’s mother
91.Mrs H gave me the impression that she had worked hard all of her life and despite the property being worth around $40,000,000.00, much of her life had involved financial struggle and hard work. She was deeply committed to the support and success of [I] and its business.
92.Mrs H acquired her interest in [I] from her own father after a long and bitter Court case. She described [I] as a property of about 350,000 acres. Mrs H said that [I] Company works with [I] Hybrid Unit Trust and that she and her husband control the distributions from the Harcourt Highbred Unit trust. Mrs H said that she and her husband set up the bloodline trust known as the “Harcourt Bloodline Trust” and that [X] will be part of any business that the father [Mr Harcourt] is a part of as he is [Mr Harcourt]’s son and the trust goes from [Mr Harcourt] to [Mr Harcourt]’s children, to her other son and his children whenever they come.
93.Mrs H agreed that the father [Mr Harcourt] knew a little about [I] and the legal structure but not a lot. Mrs H said He does the work. I had the impression she relied heavily her son’s physical work for [I].
94.Mrs H said that the [D] at [K] where the father now works was set up in December 2009. When asked whose idea it was for the father to leave [I] and establish himself at [K] in November 2009, Mrs H replied Just a bit of advice he had I’m not real sure where he got it from.
95.I doubted the veracity of that answer given her interest and involvement in this litigation and the outcome. Mr and Mrs H are paying the legal fees for their son. Mrs H made an offer to the Mother of $50,000.00 (on trust for [X]) if she moves to [K] or Cairns. Mrs H has been closely involved in the dynamics of the relationship between the father and mother and she helped care for [X] for the first year of his life. She agreed that her relationship with the father was enmeshed.
96.Mrs H spoke about her phone call to the mother at [K] (earlier mentioned at paragraph 32) towards the end of the parties’ relationship. She had been very, very annoyed having spent $7,000.00 on furniture for the mother and father to use at the [K] house, only to find the mother was leaving her son.
97.Mrs H said I definitely did not tell her to leave the property but I cannot honestly say what – we probably yelled at each other a bit but I cannot exactly say, other than the fact that we were arguing over – well, I was upset about the money but yes, I do know I would never hunt any of my children or their respective spouses or my grandchildren off the place in any way.[24]
[24] Transcript page 17/2/10, page 136, line 25-30.
98.While denying that she told the mother she was no longer welcome at [I] or to leave the [K] property, she has no memory of what she did actually say.
99.The mother on the other hand gave a very candid and comprehensive account of what Mrs H said in the phone call. The father agrees that the mother told him afterwards, that she was not allowed to stay on the property[25].
[25] Transcript 16/2/10 page 71, line 20.
100.The father said in his affidavit material Because my parents wanted us to move back to [I] they started saying that they would not allow us to remain living on [F][26].
[26] Affidavit 25 January 2010, paragraph 20.
101.Mrs H appeared to me to have a harsh attitude in her conduct toward the mother. I found Mrs H a fairly unimpressive witness who appeared at times to be evasive and to avoid or not recall evidence when it was against her own interests.
102.Where ever Mrs H’s evidence contradicts that of the mother, in the absence of any independent evidence, I prefer the evidence of the mother.
Ms R
103.The father’s girlfriend impressed me as being very young and loyal to the father. Ms R was present with the father throughout the three months that [X] was retained by the father from November 2008 to February 2009. She said she was aware of the father’s discussions with his lawyer in this time, she knew what was going on, that she and the father spoke about it because I am also a part of this as well, because where [Mr Harcourt] goes, I go.[27]
[27] Transcript page 17/2/10, page 106, line 15.
104.Ms R said in cross examination that the idea for her and the father to move from [I] to [K] was [Mr Harcourt]’s and mine, to be closer – in a better place for [X] to be at the time – sorry. We felt it was better to be over there to do with the dealings of the Court. Sorry, it’s hard.
105.When asked why [K] was better than [I], for her and the father to live Ms R replied: Closer to better facilities for now but we thought that it may, without putting home-schooling towards the case, it may look better for [X] to go to a normal school and, you know, be able to go to a kindy on a regular basis and play with children that he will be going to school with.
106.The following exchange then occurred:
Miss Wilson: So you’ve moved there to try and establish yourself in the best possible light for the Court –
Ms R: Yes. No, for [X].
107.Ms R said that whilst there was a possibility that at some unknown stage in the future, she may be back at [I] Everything’s focussed on [X] and what’s happening and what is best for [X] is where we will be and when we will be and I will stand by [Mr Harcourt] to whatever decision is made.
108.Mr Harcourt senior attended at the Court hearing in Cairns but did not provide an affidavit. This is despite various references to his conduct by each of the mother and the father in their material and through the family report. His failure to file an affidavit was explained by Mrs H on the basis that Mr Harcourt must have thought it would be good enough to have her evidence.
Family Report writer
109.A Family Report was prepared in this matter by Ms M who appeared by way of video link to Cairns Federal Magistrates Court from the State Court complex in Ipswich.
110.Generally I found Ms M’s report very insightful and in accord with my own observations. I considered Ms M’s oral evidence to be thoughtful and balanced and that she was very mindful of the difficulties that [X] in particular was suffering through this dispute.
Section 60CC considerations
111.I now turn to discuss the evidence and considerations of the additional considerations which are relevant to the competing applications set out in s.60CC. I will discuss the primary considerations at a later stage.
The views of the child
112.Whilst [X] is only aged four and clearly too young for a formal interview Ms M did engage with [X]. The report of her interaction and observations is in my view insightful.
113.The report writer observed that [X] was a bright and creative child who enjoys the company of others. [X] is described by the mother as a very gifted child and she and the father each expressed a wish for him to have opportunities to be the best that he can.
114.[X] told the report writer that the father told him to tell the report writer “that Daddy and [Ms R] are the best”.
115.[X] in a long story telling session told the report writer how he would be rescued by good Dinosaurs and taken to his “Magic Home” which he said was where he was now (living with his mother). [X] returned to this story about being rescued by good Dinosaurs when he was sad or frightened and he saw them in the sky when he was being driven back to his “Magic Home”. [X] said But my Mum looks after me the most.
116.A little later when alone with the report writer [X] said that he missed people when he did not see them and worried that he would never see people again. He told me “Like when I did not see Mum and [Mr W] for a very long, long time, but the good Dinosaurs rescued me and took me back to my Magic Home”.
117.[X] was held over in for several months by the father between November 2008 and February 2009 and Ms M suggests that the child is possibly expressing a view that he is wanting to spend time with his mother and not again be removed from her care for months as he was in late 2008 and early 2009. I accept that this is a possibility.
118.The report writer said that [X] became distressed when he spoke about missing people important to him and that this included both parents and their partners. [X] told the report writer that We have to kill cattle in [N] and that he likes the cattle and the other animals where he stays with his Dad.
(b) Nature of Relationship with significant persons – parents, grandparents and others
119.The father and mother both love [X] and I have no doubt that their love is reciprocated
120.
When [X] lived with his father during either of the two extended block periods Mrs H, or on the second occasion, Ms R were instrumental in offering significant support in the care of [X].
Mrs H appears to have played an important role in [X]’s care when he was born and in his first year. I have no doubt that Mrs H loves her grandson and that her love is reciprocated.
121.The report writer noted there seemed some debate between Ms R and the father, as to who has cared most for [X] for the three months between November 2008 and February 2009. The report writer observed that [X] kept talking about “My [Ms R]” all the time during her interviews rather than significantly talking about the father. She also observed [X] running to Ms R first, when meeting the father and Ms R for the first time for the Family Report interviews
122.I accept that Ms R has a good and close relationship with [X]. She has been significantly involved in his care whilst [X] has been with his father. Ms R said that she especially looks after [X] when the father is out doing jobs such as [omitted] and in the yards where it is not safe for a child to be, and where there is lots of dust around because of [X]’s asthma. The report writer noted that during the joint interview of the father, Ms R and [X], Ms R primarily looked after [X].
123.The father says in relation to [X]’s wishes, that if asked with whom he wished to live [X] would say Mrs H, such is the strength of their bond. The evidence does not support this view. I consider that, in offering such a view, the father is seriously underestimating the bond between not only himself and [X], but more particularly [X] and the mother. The father’s view accords with the description of the father as observed by the report writer who said: He presented as a person who was unsure of himself and was full of self doubt in relation to his own abilities. He was however, very protective and loyal towards his parents and avoided discussing their involvement in the breakdown of his relationship with Ms. Calise, or any possible involvement they may have had in relation to the current matter before the Court[28].
[28] Paragraph 41 Family Report.
124.Since moving to [C] the mother has been a stay at home parent devoting her time to raising two children. The observations of the Family Report writer whilst noting [X]’s own comments about being away from his mother for a long, long time and that [X] had a good attachment to both parents is that [X]’s interaction with his father and partner were not at the same level of intimacy and trust as existed between [X], his mother and Mr W. I accept that evidence.
125.Up until November 2008 [X] lived primarily with his mother by agreement. Whilst Mrs H assisted with [X] as a new born and during his first year, the evidence leaves no doubt that [X] has formed a loving and strong bond with the mother, a loving and good attachment to the father, and that he also has a good and close relationships with Mr W and Ms R.
126.The mother’s de facto partner Mr W was observed with [X] and the Family Report notes that he had a caring and loving relationship not only with his baby daughter, but also towards [X] and that their relationship was based on trust and they enjoyed each other’s company. That observation accords with my own impression of Mr W’s evidence relating to [X].
127.[X] now has a baby sister with whom the mother says he is enjoying his new sibling relationship. An advantage of [X] living with his mother is that [X] has the opportunity to develop a strong and close sibling relationship with [Y]. Living separately from his sister and seeing her during only holiday periods will likely result in a less close and intimate relationship between [X] and [Y].
(c) Willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and other parent – circumstances since separation
128.The mother holds a genuine belief based on her own experiences that whilst the father loves [X] dearly and should play a significant role in the [X]’s life, there is likely to be interference in the father’s parenting role of [X] from his parents.
129.The father told the report writer that he did not have any issues with the mother or her de facto partner Mr W and they were good people. The father believed both himself and the mother had a lot to offer their son. Whilst the father said in his oral evidence that [X] needed his mother, not just any mother but his own mother, those sentiments do not reflect the father’s conduct after November 2008.
130.I find it troubling that the father withheld [X] from his mother against her wishes and contrary to their agreement. The father said under cross examination I was under solicitoral (sic) advice not to return him at that point in time otherwise I would not be able to – I wouldn’t have much of a case[29].
[29][29] Transcript 16/2/10 page 72, line 40.
131.This seems to be the period about which [X] spoke of worrying that he would never see his mother again and speaking of magic dinosaurs coming to his rescue. It is no consolation for the father to now say that he withheld [X] on solicitor’s advice. He acknowledged and knew that it was not the right thing to do for [X].
132.This conduct was in my view, entirely at odds with the best interest of young [X]. It showed scant regard for the role of the mother in [X]’s life and importantly no regard for the emotional wellbeing of [X]. It was a strategic move by the father to give leverage in his negotiations with the mother for a shared parenting agreement.
133.As to encouraging a relationship during this period, the mother was offered no physical contact by the father and found herself trying to maintain contact with [X], then just over 3 years of age, by telephone. There were occasions where [X] himself phoned the mother repeatedly or conversely when he was distracted by others around him. Of concern is the mother’s evidence of [X] saying to the mother Mummy’s silly with others laughing in the background[30], the grandparents telling the mother that [X] did not want to talk to her as he had friends over and a new toy, and [X] saying to the mother that he has to go Because I don’t need you anymore.
[30] Mother’s affidavit 14/1/10 paragraph 42.
134.In one phone call Mrs H intervened when [X] threw the phone away and said he didn’t want to talk to his mother. Mrs H told [X] Don’t be naughty or mummy will come and get you if you don’t talk to her. When the mother took this up with the Mrs H, she replied by laughing and saying “Sorry, it just slipped out”. Mrs H admits she said this but denies laughing.
135.It seems to me that whilst [X] was living with his father and paternal grandparents during that extended period, the mother’s role in the life of [X] was being undermined. This is seen in the overarching position taken by the father in refusing to return [X] to his mother for months after the agreed time together with the belittling of her role in [X]’s life as demonstrated in Mrs H’s comments that “just slipped out”.
136.Looking at the mother’s willingness to promote the relationship between [X] and the father, the report writer noted the mother’s attitude to the father was that she was very understanding and supportive of his situation, and that she did not engage in ridiculing the father. The mother described the father as a gentle, decent person who hates conflict.
137.The mother opted to have [X] live with the father for about three months in 2008 as she worked extra shifts to save a deposit for a house for her and [X]. She wanted to provide [X] a home and not be on Centrelink benefits. She knew that the Harcourt family had the financial means to provide [X] with most things.
138.Rather than have [X] in day care the mother said she preferred that [X] live with his father so that he was in the one place with people that love him and I felt that that was suitable for that amount of time to offer him stability where I couldn’t, at that time.[31]
[31] Transcript 16/2/10 page 16, line 40.
139.I am satisfied that the mother has always encouraged and fostered a relationship between the father and [X] and [X]’s extended family.
140.The father, however, has made parenting decisions against his better judgment, influenced by others, and against the best interests of his young son. Thus, the father capacity to provide for [X]’s emotional needs is shown to be seriously flawed. He has not facilitated an ongoing physical relationship with the mother when he had the primary role in parenting.
141.It is not clear to me what the father’s role was in the telephone calls with the mother when [X] was living him. It seems though that the father failed to assume proper responsibility to ensure that the telephone contact between [X] and his mother occurred without interruption and without insults being made about the mother.
142.I am concerned by the potential of Mrs H’s closeness and influence with the father given her harsh behaviour and poor attitude towards the mother in the past. Apart from discussing that [X] needed his mother in his life, Mrs H took a passive role when [X] was not returned to the mother and lived with the father at [I]. Mrs H, who had [X] staying in her house, said she left it to her son and his solicitor to work it out.
143.Given the father’s loyalty to his parents, his view that [X] would chose to live with Mrs H as his relationship with her is so strong, and his difficulty confronting any kind of conflict, I have no confidence that the father would be prepared to challenge his own mother in relation to her attitude towards the mother. This is an aspect of the father’s parenting that troubles me greatly.
144.The father is, as far as I am concerned, a relatively untested solo resident parent. He has always had significant assistance and support from either his mother or partner when [X] has spent longer periods with him.
145.My impression of the father was that, although he loved his son deeply, his availability to care for him has been impeded by the father’s work commitments. The father’s partner Ms R is now to work at least 35 hours a week in a local [omitted]. The father has some flexibility about his work when [X] is present, but there is uncertainty about the father’s future availability to parent [X] at [K] without assistance.
146.I have no doubt as to the mother’s capacity to provide for [X]’s emotional and intellectual wellbeing and that she has shown a responsible attitude in her parenting. Her parenting decisions in the past reflect this capacity. She is also available to parent [X] full time.
(f) Parenting Capacity including providing for emotional and intellectual needs/ (i) attitude towards the child and responsibility toward parenting
147.The father says he wants to encourage [X] to achieve what he can in life and not be limited by his environment[32]. The father has always worked and lived in his close family circle. His future is set out in the trusts established by his parents and it is inextricably involved with [I] and the family business.
[32][32] Family Report paragraph 50.
148.The father said he felt torn about the conflict between the mother and his parents, and that I feel torn about any conflict. Surprisingly the father said under cross examination that he has never discussed with his parents the phone call Mrs H made to the mother telling her to leave [K] and not come back to any properties owned by [I]. The father justified this by saying: By the time I’d got back, [Ms Calise] and I were no longer together and it wasn’t an issue. The father clearly chose to avoid a conflict. Similarly it appears that the father has side stepped the issue of Mr Harcourt’s alleged threats to the mother to live on the property or get an abortion. The father said of this allegation I don’t know if this happened.[33]
[33] Affidavit of the Father filed 25 January 2010, paragraph 10.
149.I have no confidence that the father has yet developed the capacity, skills and maturity to challenge his parents when their views conflict with his or that he is any more mature or independent to assert his own beliefs now than when he was 18 or 19. I consider that this ability may well be necessary if he is to ensure that [X] navigates his own way through life making choices based on [X]’s talents or wishes as opposed to any plans made by the paternal grandparents such as his future in the bloodline trust.
150.When the father and mother were young and trying to become independent as a couple and take their own journey in life they received negative interference that ultimately resulted in the demise of their relationship and the return of the father to his family commitments.
151.
I am concerned that in an arrangement that saw [X] living primarily or significantly with his father, the strong influence that the Harcourts have over their son would extend to [X]. Mrs H gave evidence that through the bloodline trust young [X] will be involved in the business of [I] Company[34]. There was no suggestion or acknowledgment in Mrs H’s evidence that [X] or [X]’s mother or father might have different life plans for [X].
Mrs H’s has an unwavering belief that both the father and [X]’s life plans include the future custodianship and responsibility for the family business. Mrs H explained that [X] would be a part of the business as would the children of her other son because Well, it’ll flow on to him. As he’s [Mr Harcourt]’s son, it’s a bloodline trust that we have set up.
[34] Transcript p 144, line 20.
152.I also note the evidence of the father’s discussions as to his own hopes and plans for the future as expressed to the report writer, which he has not achieved and which I doubt he will whilst he lacks financial independence and has such a strong loyalty to [I] Company and the work that this commitment involves.
153.The father is young; he has recently lived independently for only the second time in his life, the first time lasting only three months. His evidence that he is stationed in [K] whatever the outcome of these proceedings was, in my view, unconvincing.
154.Whatever the short term plans are for the father and the [D], I have a strong impression that his future is very much linked to [I] and the family business.
155.As to the father’s relationship with Ms R, I am not sure that she would be classified as a de facto partner, as her evidence is that there is no mingling of monies or financial affairs with the father. The mother has her own financial commitments with her home in Adelaide and its mortgage. Whilst Ms R has supported the father with his care of [X], my impression was that they are both very young in age and attitude and their relationship is centred around these proceedings more than a commitment to each other.
156.
The father said in his oral evidence of his relationship with Ms R: We’re not getting married anytime soon. We don’t want to rush into things. We’re not separating anytime soon. We love each other very much and we’re committed and I do intend on marrying her, just not right now. This evidence contradicts what the father told the Family Report. He and Ms R said very little about their relationship and were non-committal about their long term plans.
I am uncertain as to the future of this relationship and left with a lingering doubt as to the truthfulness of the father’s oral evidence. The father said he had not told his mother of his long term intention to marry Miss R.
157.In relation to the mother, I am confident that she has the desire and strength of character to ensure that [X] receives parenting to achieve his potential in life and to make his own choices about his life goals whatever they are and whether or not they involve working in the Harcourt family business.
158.I consider that the mother is observant and in touch with [X]’s developmental and emotional needs. I am satisfied that the mother is able to offer [X] more stability in the foreseeable future than the father is able to offer.
(e) Practical Difficulty and Expense of Contact
159.Neither parent seeks a continuation of the current arrangement. Each has conducted their case on the basis that the current travelling arrangement is unworkable and that a change is required.
160.Organising [X] to travel from one parent to another presents substantial difficulties. The distances are long: around 1300 kilometres one way from [C] to [N], involving 13-14 hours of travel for a changeover. The journey from [C] to [K] is less at about 900 kilometres. The report writer says it is not safe to travel in a remote area without an accompanying adult. It takes two days and involves four adults travelling: The mother and her partner and their young baby [Y] and the father and his partner.
161.The journey is an unsustainable burden for any permanent regular weekly, fortnightly or monthly proposal. It is unavoidable to facilitate contact during the school holidays as proposed by each of the parties. Each party has the demonstrated their willingness to undertake this lengthy journey.
162.Both parents agree that [X] is being affected by the length of the car journey and the frequency of travel. Each suggested that he was affected by the environmental situation and possibly by not knowing where he is residing; that he was young and confused about what accommodation he was living in and where his base was. The sheer duration of the journey is exhausting and tiresome for [X] and all concerned.
(m) Any other fact or circumstance that the Court thinks is relevant
[X] alleged Asthma -
163.The mother has raised [X]’s asthma as an issue about which she had concerns regarding the father’s parenting. The father’s evidence on this issue in his affidavit is inconsistent with what he told the Family Report writer and inconsistent with his own conduct at the Family Report interview.
164.When interviewed by the report writer each parent expressed concern that [X] was suffering from the recent dust storms and generally the journey of around 14 hours per month and that he was affected by asthma attacks. [X] and the father were observed to be coughing during the interviews. Prior to the interview, however, the father disagreed with the mother’s medical advice as set out in his Affidavit.
165.The matter arose after the mother obtained a medical opinion in March 2009 from Dr. M as to [X]’s persistent cough. The mother asked the father if he was willing to trial a preventative medication prescribed and the father agreed.
166.Sometime later in June, when the mother had a phone call with [X] then living with the Father, she noted that [X] was ill and coughing. [X] told her he was not taking his medication and that “[Ms R] doesn’t believe in it”. On speaking to the father he told the mother that he wanted the doctor’s details so he could hear it for himself before he gave [X] the medicine. He said that the cough the mother could hear on the phone only just started.
167.On 2 July 2009 and 5 November 2009 the mother sent solicitor’s letters to the father raising this issue again.
168.The father set out his position in relation to [X]’s alleged asthma in his affidavit. He said I have also taken [X] to a doctor who has told me that he has no signs of having asthma. The father then says that he has the preventer with him at all times, if [X] has any concerns with coughing or wheezing, I make sure it is used. Given however, my medical advice that [X] does not need it on a full-time basis, I have been reluctant to use that when there has been no apparent need[35].
[35] Paras.76 and 77.
169.The father’s apparent confidence in monitoring [X]’s condition as sworn to in his affidavit was put to the test during the Family Report interviews. Ms M the report writer observed that [X] started having a coughing fit whilst in the care of the father. The report writer stated that when [X] started to have coughing fits, Mr Harcourt was concerned for the child’s well being and he rang Ms. Calise to come and collect [X][36].
[36] Para.49.
170.Clearly, the father did not have the confidence or capacity to deal with the coughing fit on his own despite his sworn evidence. His alleged approach of giving [X] the medication if he needed it suggests the father has not grasped the concept of preventative medication.
171.During the trial the father had his Counsel cross examine the mother on this issue, challenging the doctor’s findings as to the child possibly being asthmatic, challenging the necessity for the prescribed medication and suggesting that one would not use the prescribed medication if there are other ways of dealing with conditions that children have. There is no evidence of any other method being used by the father in his material.
172.Ms R seems to admit that [X] has asthma as she told the report writer that she especially looks after [X] when the father is out doing jobs such as [omitted] and in the yards where is it not safe for a child to be, and where there is lots of dust around because of [X]’s asthma. This position seems inconsistent with the father’s position as recorded in his affidavit.
173.The father did not properly or honestly engage with the mother on this important issue. It seems that when [X] is with his father at [I] or other places where [omitted] it is vital that the father accept and understand how to deal with [X]’s asthmatic symptoms. I consider the father showed a lack of understanding as to the potential health risks of asthma and that his conduct is illuminating in terms of his failure to show responsibility towards parenting and his incapacity to parent.
The competing proposals for [X]’s living arrangements
The Father’s proposal for the mother to move to [K] or close by
174.The father proposed in an amended response filed on 26 November 2009 a shared weekly arrangement requiring the mother to move from [C] to [K], or other nearby area on the Atherton Tablelands. The father’s primary proposal involves both parties relocating back to the area where they lived briefly as a couple just as their relationship ended about three years ago.
175.The father had not told the mother of his proposal to move to [K] prior to the Family Report interviews being conducted. It seems to be a move made in contemplation of the final trial.
The geographical range
176.The father’s amended proposal suggested in his affidavit and at trial was that the mother could move to various areas including Cairns, Southern Cairns, Gordonvale and even Innisfail[37] in order to facilitate a weekly shared arrangement with [X].
[37] Paragraph 81 Father’s affidavit 25 January 2010.
177.The father’s proposal labours under a serious misapprehension as to the local geography in Far North Queensland and also as to where the mother and her de facto partner have lived in the past.
178.The father says in his affidavit: What I proposed then and have now put into place was that I moved to the [F] at [K]. Given that [Ms Calise] lived near here with Mr W for an extended period, and he commuted to [work] at [C], I thought we could try and compromise on the basis that she moved back to that area[38]. Similarly mistaken, the father says at paragraph 54: On balance I feel that it would be just as appropriate for him (Mr W) to do what he had done in the past which is to work week on, week off from the Atherton area. (emphasis added)
[38] Paragraph 48, Father’s affidavit of 25 January 2010.
179.The mother and Mr W have never lived together on the Atherton Tablelands or anywhere near [K]. Mr W has never in the past worked from the Atherton area as the father suggests. He and the mother lived at [T] a beach suburb about 20 minutes north of Cairns, which is some hour and half from [K], down either the Kuranda Range or the Gillies Range and about 15 minutes from the Cairns airport.
180.The mother has not lived near where the father has now moved to on the Atherton Tablelands, nor is [K] very close to an area where [Ms Calise] used to live. The father says [K] is 65 kilometres away from Cairns and concedes it can take up to 2 hours travel one way. I do not consider that is near or very close to [K].
181.The father said In accordance with my proposal however, there are any number of areas where [Ms Calise] could live within a reasonable distance for us to conduct equal shared care with [X] on a week about basis. This would include most of the Cairns, Atherton and Innisfail areas in addition to these areas which are specifically close to anywhere I am actually living at this time.
182.On the second day of trial the father’s Counsel acknowledged quite properly that the father’s proposals for the mother to live near him in [K], could not on a practical level include the areas that the father referred to in his affidavit and in Mrs H’s offer, such as Southern Cairns.[39]
[39] Para.81 Father’s Affidavit filed 25/1/2010.
183.Innisfail which is about 90 minutes south of Cairns is much further from [K] and could not be contemplated as anything like a practical suggestion.
184.Mr Hamwood of Counsel for the father appropriately conceded that the father was really seeking an order that the mother live somewhere around [K] within a travelling time of around about 20 or 30 minutes. That would preclude any suggestion of living in Cairns, [T], Southern Cairns, Gordonvale or Innisfail.
The effect of the father’s proposal
185.Purely in terms of travel difficulties and times, the proposal certainly would reduce the travelling for [X].
186.A close examination of the father’s proposal however reveals the significant disruption which would be required to the lives of the mother, her de facto Mr W, their daughter [Y] and [X] to enable his proposal to eventuate.
187.For the mother in particular, the change has a profound effect on the time she has to spend with her family unit including de facto husband and daughter [Y]. The father’s proposal has significant impact including:
a)Requiring the mother and Mr W to cease living in [C] with his family and relocate some thousand kilometres and take up living in Far North Queensland either in Cairns or the Atherton Tablelands, to places they have never lived to be close to a place that the father has himself only moved to in November 2009;
b)Requiring Mr W to give up living and working in [C] and instead to change the nature of his employment each week.
c)Requiring Mr W to spend each alternate week living near [occupation omitted], in an airconditioned donga with the restrictions involved in that life style, and away from the mother, [X] and [Y].
e)Requiring the mother and two children to live as a single parent family each alternate week, foregoing the lifestyle, contacts and friendships they have established in [C] and starting afresh in a small rural area remote from her own friends and family.
f)Requiring Mr W and the Mother to accept a drop of financial benefits received from living in [C]: a reduction in salary from $137,000.00 per annum to $116,000.00 per annum, some $21,000.00 per annum (provided such an arrangement could be made with his employer).
g)Incurring of an extra cost of $7,000.00 per annum in commuting to and from Cairns to Brisbane being where his employer would require him to start and end a shift.
h)Imposing the additional cost and time in travelling the hour and half or so from the Cairns airport to the [K] area for Mr W and the mother. The expense of travelling, petrol maintenance and the burden of driving will all fall on the mother and Mr W and [X] and [Y].
i)Mr W’s first day off would be spent travelling from [C] to Brisbane and then Brisbane to Cairns and his last day off spent on the return journey.
188.In relation to [X]’s schooling the father’s position was that [X] should attend a school near [K] and a school that was easy for both parents. Under cross examination it seemed that the father had not turned his mind to which school [X] would attend if in fact he went to school in Cairns. The father stated honestly I have no idea and I haven’t looked into it no. The father then stated that it would be easy for him to have [X] enrolled in school in [omitted] or anywhere on the Atherton Tablelands, but hard for [Ms Calise] if she was living in Cairns[40].
[40] Transcript 17/2/10 page 86- line 5-20.
189.The father conceded that travelling from [K] to Cairns was at least an hour and a half one way or 3 hours a day to and from Cairns. Travelling, some three hours a day, would make serious inroads into any other plans or parenting responsibilities that the mother would have each day of that week and is entirely at odds with the parents’ agreed position that [X] is being affected by all his current travelling.
190.If the mother and Mr W moved to [K], it is a township of 100 people on the father’s estimate. This is a significant change of lifestyle. Atherton was also suggested as being nearby, which the father estimates as having 5,000 people.
191.Counsel for the mother put to the father that he was suggesting that the mother, her partner and their baby live in a town in which they have never lived and have no connection, and which is still a minimum of a one hour trip to the Cairns Airport to the father. The father replied: I was just putting an idea out there.
192.The father’s proposal for the mother to move entails personal, family, financial and emotional sacrifice and disruption to her chosen way of life and also that of her family. These effects will likely have a significant impact upon the mother’s own capacity to parent and thus flow on to [X].
The father’s position in relation to moving closer to [C] –
193.The father says he has considered moving to [C] but for various reasons does not consider it is possible. [41]
[41] Paragraphs 44,45 and 46 of his affidavit filed 25 January 2010.
194.However he told the Family Report writer that if it were decided that [X] would live with the mother, he would move closer to live near his son and that if he did “it would make life easier for everyone”.[42]
[42] Para.52.
195.
Ms R told the report writer that if [X] was to live with his mother, she had been told by the paternal grandparents that they are looking at buying a place near [C]. The paternal grandmother
Mrs H however denied that there is a plan to buy the father a property in the [C] area. Mrs H deposed in her affidavit[43] that: I am aware that it has been suggested that if [X] remains in [C] we will buy [Mr Harcourt] a property in that area. This is simply not the case and we have no association with the [C] area nor would it be practical or effective for us to try and work or own a property in that area[44].
[43][43] Affidavit filed 25/1/10 paragraph 39.
[44] Transcript 17/2/10 page 143, line 36.
196.Nevertheless, Mrs H’s oral evidence at the trial was that if the mother is permitted by the Court to remain at [C], she would acquire a property for her son near [C]. Mrs H said: If that child moves to [C] we’re going to have to sell our retirement property and put a business down there so our boy can go down there.
197.On being further questioned Mrs H said that it is the best thing for [X] to be able to have access to each of his parents and that she would sell her retirement home, which is the [K] property if it was necessary so as she could assist the father to relocate near [C][45]. Mrs H also said If [Mr Harcourt] moved to [C], and that’s the issue, we would have to buy a block down there to run our [business] down there so he would be involved in the business[46].
[45] Transcript 17/2/10 page 143, lines 35-45
[46] Transcript 17/2/10 page 144, line 15.
198.When asked if Mrs H would actually do more for her son that was in the scope of the offer, as in setting up a business as well, Mrs H replied Well, I wouldn’t be doing more for [Mr Harcourt], I’d be doing it for the business, which [X] will be a part of that business.
199.In re-examination when asked by Mr Hamwood of Counsel for the father, what was the practicality of possibly purchasing a property in [C], bearing in mind their other property was in [I] in the Gulf, and was it feasible to do so, Mrs H replied No, not at – no, no.
200.Mr Hamwood submitted that the father realistically could not go to [C], that there is no evidence that there is any work as a [omitted] in [C] and that [C] is a hole in the ground. People who live there work in [omitted][47].
[47] Transcript 17/2/10 page 163, lines 25-30.
201.As to the evidence of Mrs H regarding buying a property for the father to work on close to [C], Mr Hamwood submitted His mother, bless her heart, said “Well I suppose I could sell my retirement property and buy something in [C] that would be part of a business, and then [Mr Harcourt] could work there”, but it is quite clear that that was more a cry from the heart of a grandmother than any clearly thought out articulated costed proposition[48].
[48] Transcript 17/2/10 page 163, lines 30-45.
202.I found the father’s and Mrs H’s position in relation to this matter confusing and inconsistent.
203.The father has referred in his material and at trial to moving closer to [C] by living in Mackay or Rockhampton. Each of those places is closer to [C] but given that they are still hundreds of kilometres away, I do not consider that more regular contact other than holiday contact could be facilitated other than special occasions or long week-ends.
The father’s secondary or alternate proposal – [X] lives primarily with him in [K] - the likely affect of change in the child’s circumstance including the likely affect on the child of separation from his or her parents or any other child
204.If the mother does not move to live in the areas nominated by the father, the alternate proposal of the father is for [X] to live with him and spend holiday time with his mother as set out in the father’s proposal.
205.On the father’s alternate proposal [X] would spend all of the Easter holidays, all of the June/July and September school holidays and half of the Christmas school holidays with the mother. In addition if the mother travels to the Atherton area, she has the additional option to spend an additional week each two months with [X] as long as the mother ensures [X] goes to school during that time.
206.Webcam and Skype communication is also proposed.
207.This proposal involves significant change for [X] as he would have very limited time with the mother with whom he is so closely attached. Given the evidence regarding [X]’s closeness and intimate relationship with his mother, and that he missed his mother when he lived with his father from November 2009 to February 2010, I consider that an order requiring [X] to live primarily with his father and see so little of his mother would likely cause [X] to suffer emotionally. It seems that [X] has a strong memory of the last time he was removed from his mother’s care for a long period.
208.Similarly [X] would spend limited time with his half sibling [Y] with whom he would otherwise develop a close and loving sibling relationship if they grew up in the same house. I have no doubt that seeing each other only on holidays would result in much more distant relationship for these two young children.
209.I have misgivings about the father’s personal capacity to parent [X] at both a physical level and in regard to accommodating [X]’s emotional and intellectual needs. I am also troubled by the influence of the paternal grandmother in relation to preserving [X]’s ongoing relationship with his mother if he to live full time with the father as has occurred in the past.
210.On either of the father’s proposal’s [X] would be living on a small property in a tiny town on the Atherton Tablelands where neither the father, Ms R or [X] have lived permanently before. Having lived there since November 2009 their plans are only in their infancy. They have not lived separately from the father’s parents before. The father and Ms R also appear to differ on some issues in relation to [X]’s parenting.
211.I have referred in paragraph 145 above to my concern that the father’s work commitments would interfere with his ability to care for [X]. Given his new duties as a [occupation omitted] at [D] I repeat those concerns. Ms R has employment [in the hospitality industry] and intends to work some 30 hours or more, including night work. I note that the father’s material says that he will parent full time if [X] lives with him. On the evidence before me, this would be a significant change of lifestyle for the father and is not in accordance with the work obligations the father has had in the past. I am doubtful of the father’s evidence in this regard and his capacity to do so.
212.If the father returned to [I] to live I would expect Mrs H would be a significant carer for [X], as in the past. I have reservations about such any arrangement where Mrs H is to be a significant carer, for the reasons already stated.
Mother’s proposal – [X] lives in [C] - and the likely affect of change in the child’s circumstance including the likely affect on the child of separation from his or her parents or any other child
213.The mother wishes to remain living in [C] and have [X] live with her primarily and spend holiday time with the father. She does not intend to relocate her family to live on the Atherton Tablelands.
214.I accept the evidence of Mr W and the mother that they moved from [T] to benefit their family financially and emotionally and to stop a lifestyle where Mr W travelling away eight out of 14 days. I accept that they want to live a lifestyle where Mr W was home every night and could offer his emotional and physical support for the mother, his baby [Y] and [X].
215.On the mother’s proposal [X] would be living in [C] with her, the parent with whom he has the closest and most trusting and intimate relationship[49]. [X] would be part of a family circle with mother, his baby sister and Mr W with whom he also enjoys a close and trusting relationship. Each week [X] would be cared for full time by his mother.
[49] Family Report paragraph 61.
216.I consider that the relationship between the mother and Mr W has a commitment and solidarity about it which the relationship of the father and Ms R has not yet reached. The mother and Mr W intend to formalise this relationship through marriage later this year.
217.The mother wishes to have the emotional support of her de facto husband at a personal level and in her role as a mother. This is not possible if the father’s proposal is accepted. I note the evidence that the mother suffered symptoms of depression following the birth of [X] and I accept that she wants the emotional support of her de facto husband in her role as a wife and mother.
218.The mother says that even if the father rearranged his affairs and lived close enough to [C] to enable a week-on week-off arrangement, she does not believe that a week on week off arrangement is suitable for young [X] as it would be too confusing and involve too much upheaval in his day to day life to move each week. The mother considers that [X] needs stability and the father has agreed with this in his discussion with the Family Report writer. I accept this.
219.I accept that [X] has had a most interrupted and unstable existence since the father removed him from the full time care of his mother in November 2008. There is evidence of him suffering from that experience as shown in the Family Report. The Family Report refers to the parents each considering that [X] is confused about where he is living and affected by the constant change. Living for a month about has clearly taken its toll.
220.Moving to a week on week off arrangement in my view represents further instability. Moving from house to house weekly lacks the stability that living in one place would provide for young [X].
221.The father has managed to retain a good relationship with [X] in the past in seeing him once every four weeks after separation and prior to being held over in November 2008.
222.The current proposal of the mother provides for the father to spend time with [X] for all of the Easter School holidays, all of the June July school holidays and September school holidays and one half of Christmas school holidays. This time amounts to more than two months each year. Webcam and Skype are both suggested as other forms of regular communication. These methods are an option in the face of such vast distances between the parents.
223.On the mother’s proposal [X] could spend this time with the father without the need for the father to rearrange his current and future affairs and commitments.
Mrs H’s offer - $50,000.00 trust fund for [X]
224.On the first day of the trial the Mrs H filed an affidavit by leave, which incorporated an offer by her to the mother to pay $50,000.00 on trust for [X] to be used by the mother as a deposit for a house in the Atherton/Southern Cairns area to enable a week on week off parenting arrangement for [X].
225.She strongly rejected the offer on the basis that she and her future husband Mr W want to make their own way in life, and want to work hard and be proud of their own achievements. The mother did not want to beholden to the paternal grandparents in any way.
226.The mother said The problem with that [the offer] is that [Mr Harcourt]’s parents would be the giver of the money. It’s part of a controlling aspect of the entire family that I’d like to distance myself from. And when - if and when – we do buy our house it will be with our own money and it will be our pride in our hard work that gives us the house. Not somebody else’s money with – over a child[50].
[50] Transcript 16 /2/10 - page 25 line 10.
227.Given the history of the involvement of the paternal grandparents, and the mother’s fears about their influence over the father, and likely [X] in the future, I can well understand her outright rejection of this offer. The offer seemed to me to embody the very issue that the mother is most concerned about in terms of the influence and control that might be exerted by the father’s parents
Equal Shared Parental Responsibility
228.Having considered and evaluated each of the s.60CC factors that are relevant and noting that there are no factors of abuse or family violence and that each of the party’s seeks an Order for equal shared parental responsibility, I intend to make an Order for Equal Shared Parental Responsibility.
229.Having made that decision, I am required to consider by reference to s.65DAA (1) and (2) whether it is [X]’s best interests and reasonably practicable for orders to be made for equal time and if not equal time then significant and substantial time with each parent. It is only when both questions are answered in the affirmative, that consideration could be given to making such an order. I will also have regard to the issues referred to in s.65DAA (5) in deciding what is reasonably practicable.
230.I have outlined elsewhere in these reasons my considerations of [X]’s best interests having regard to the s.60CC factors. I repeat and rely on those considerations. I consider that in the circumstances of this case it would not be in [X]’s best interests to spend equal time with each parent. I have next considered whether it would be reasonably practicable for [X] to spend equal time with each parent.
231.Looking at whether such an arrangement is reasonably practical, I note that unless either party moves they live around 1000 kilometres from each other. If the father moved to Rockhampton to be closer to [C], the mileage is 378 kilometres. Those distances preclude in my view a shared weekly arrangement.
232.The mother does not intend to move to [K]. If she did the distance would be minimal. The mother has however, given valid reasons why she could not move to [K] and I accept that evidence. The parties’ ability to communicate up until November 2008 was effective and co-operative. However, since that time their communication has been via lawyers, the father has not been responsive to the mother’s concerns regarding [X]’s asthma, he unilaterally took the residence of [X] into his own hands for three and a half months and he failed to organise any physical contact between [X] and his mother The mother now appears to be lacking any confidence that the father will administer the asthma medication and was shocked by the father’s conduct in keeping [X] in his care against their mutual agreement.
233.The extent of their future ability to communicate may depend on whether it occurs directly between the mother and father in which case it has more hope of being effective. If the father engages his lawyer to communicate on his behalf as occurred in the pervious occasion [X] was retained by the Father or is influenced by the paternal grandmother’s negative attitude towards the mother, the communication may well be diminished accordingly, as occurred in the past.
234.As to the parents current and future capacity to implement an arrangement for equal time or substantial and significant, up to November 2008 the parties agreed as to [X]’s living arrangements, the issues already canvassed in these reasons as to the father’s lack of capacity to parent and lack of responsible parenting I am not satisfied that he has the requisite capacity to parent on a shared weekly basis.
235.As to the father’s proposal that the mother leave [C] and move to the Atherton Tablelands to enable a shared weekly parenting arrangement, the hurdles and detriment involved in such a plan have already been canvassed by me and rely on these reasons.
236.As to the impact that an equal time arrangement or significant and substantial time arrangement would have on [X], I have considered this issue and I conclude that it would be detrimental to [X] to be living in such a fluctuating state. [X] has been driven thousands of kilometres to implement a month on month off arrangement. He is suffering physically in the travel and emotionally through the upheaval. I rely on the issues already canvassed in these reasons.
237.I consider that any positive benefits that might otherwise be obtained from living week on week off, are, in this case, not applicable and are outweighed by the disadvantages to [X] and his mother. I consider that there are benefits to [X]’s emotional and physical wellbeing by living in one home with one parent and spending time with the other parent.
238.Having made these determinations I am not able to make an order for equal time or significant and substantial time.
The ultimate conclusions including the significance of the primary considerations set out s.60 CC (1)
239.The choices in this matter are to make an Order for [X] to live with his mother in [C] or live with the father in [K].
240.Whilst I accept that the father has [X]’s welfare uppermost in his mind and that he genuinely wishes that he and the mother could live near each other to make [X]’s life easier, I do not consider that the father’s proposal for the mother and her de facto husband to relocate to [K] is reasonably practicable given the upheaval and the consequences that follow. It requires major adjustments and results in detriments noted earlier at paragraph 191. The mother said in her evidence that the contribution of her de facto husband on a day today basis is very necessary to her wellbeing. I accept this.
241.Any possible advantage to [X] living week on week off is to my mind, overwhelmed by the upheaval to the mother’s life in complying with the father’s proposal. I also have concerns regarding the father’s capacity to parent and responsibility towards parenting as referred to elsewhere in these reasons.
242.The father is only 22 and has moved away from [I] for the second time in his life to be stationed in [K]. His previous departure from [I] lasted three months. Financially he is reliant on his parents with whom he has worked all his life. Not unexpectedly at his age he is still thinking out possibilities for his life plans and he has conceded that he is not yet sure know what he wants to do[51]. I question the father’s current intention to remain at [K] for the years ahead. His relationship with his current partner is in its early stages and they seem to be at odds about some parenting issues. They are living together, alone, for the first time since leaving [I] in November 2009. The father is not yet at the settled stage that the mother has reached in life, nor does he show the maturity of the mother in relation to parenting capacity and responsibility.
[51] Transcript page 90, line 40.
243.The father has shown an inability to tackle head on issues that involve conflict. He is also a most dutiful and loyal son aware of his parents’ expectations of his future involvement at [I].
244.If [X] lives with his mother I am confident [X]’s relationship with his father will continue to be encouraged and nurtured and that [X] will benefit from a meaningful relationship in the years ahead with his own father. I do not consider that the mother’s relationship with [X] would be facilitated or encouraged if [X] lived with the father primarily. This is partly because the father is so enmeshed with his family and his own mother in my view is not supportive of the mother in her role. The father himself has failed to acknowledge and act on [X]’s right to have a close relationship with his mother, instead seeking to obtain leverage in his parenting position. He did that at emotional cost for [X]. I consider the father lacks the confidence required to ensure that his own mother’s expectations of [X]’s involvement in the family business do not become a fait accompli.
245.I accept that the father will do all he can himself to spend as much time as he can with [X] and that on a practical level that he is able to do so. I consider that the mother will continue to prioritize [X] having contact with his father as she has always done in the past.
246.When issues arise relating to parental decisions about [X]’s health, education and other long terms matters I am confident that the mother will contact the father and be inclusive of the father in any such decisions. She has a history of doing this. If [X] lived with the father, I do not accept that the father would actively involve the mother.
247.Having read the Family Report and observed the cross examination of Ms M, I consider her recommendation that [X] live primarily with the Mother is well founded.
248.In weighing up all of the s.60CC and other considerations referred to in these reasons and [X]’s right to have a meaningful relationship with each of his parents, I consider that [X]’s best interests are served living primarily with one parent and that [X] should live with his mother in [C].
249.I consider that the time proposed by the mother for [X] to spend time with the father will provide [X] with the opportunity to spend over two months each year with his father and that this provides the opportunity for [X] to have a meaningful relationship with his father. The proposal provides opportunities to throughout the year with his father and to share experiences during his childhood that will ensure the father has a significant role in [X]’s life. I am confident that the father will spend this time with [X].
250.I therefore intend to make Orders largely in line with the mother’s proposed Orders.
251.I note the reference in the Family Report to grief and loss issues needing to be acknowledged by the parties but in particular by the father and [X]. A strong recommendation is made for all the adults to look at receiving professional help in dealing with their unresolved personal issues which are directly affecting the lives of others as well as some education to pass on to their children and help them cope with life’s changes. During the course of this trial I observed each of the parties coping with grief about their failed relationship. At times it was palpable. I intend to make an Order that the parties engage in a post orders parenting program conducted by Relationships Australia. This course can be done by correspondence.
252.The mother seeks an Order to have [X] live with her for all of the forthcoming Christmas holidays including the three weeks which [X] would otherwise have been spent with the father. The father took [X] from the mother in November 2008 and did not return him until mid February 2010. The father did not facilitate [X] spending any time with his mother at all over the Christmas holidays. Even though [X] is only four, he was able to articulate to the Family Report writer that he missed his mother during this time.
253.I have already made it clear in these reasons that I deplore the father’s conduct in this regard. I consider that [X] suffered as a result of the father’s actions. I note however that the Family Report writer considers that [X] misses those he loves when he does not see them for a period. [X] is to live with the mother pursuant to the Orders I intend to make. I think it is important for [X] to spend three weeks at Christmas each year with his father and that if this did not occur, [X] would likely suffer. I therefore do not intend to make an Order depriving [X] of the opportunity to spend this significant time with his father. If [X] does not spend time with his Father at all during the Christmas period there will be a too long a period in which his father will be absent from his life. [X] should however spend the first half of the Christmas School holidays with the Mother to include Christmas Eve, Christmas Day and Boxing Day.
254.[X] has had difficulties with phone contact in the past and I consider it should occur by agreement between the parties. I intend to make the Orders in relation to Skype contact.
I certify that the preceding two hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of Willis FM
Date: 9 July 2010
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