CALVERT & MERCER
[2016] FCCA 593
•18 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CALVERT & MERCER | [2016] FCCA 593 |
| Catchwords: FAMILY LAW – Parenting – 7 year old child – each party seeks residence – Child’s disrupted care history – Mother seeks to relocate to (omitted) with Child – relocation recommended by Court expert – acrimonious relationship - Mother’s need for support not being met on (omitted) – relocation permitted. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAC |
| MRR v GR [2010] HCA 4 |
| Applicant: | MR CALVERT |
| Respondent: | MS MERCER |
| File Number: | SYC 3908 of 2009 |
| Judgment of: | Judge Sexton |
| Hearing dates: | 27, 28, 29 January 2016 |
| Date of Last Submission: | 29 January 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ladopolous |
| Solicitors for the Applicant: | David H Cohen & Co |
| Counsel for the Respondent: | Ms Mathias |
| Solicitors for the Respondent: | Andrew R Corish |
| Counsel for the Independent Children’s Lawyer: | Mr David Murray |
| Solicitors for the Independent Children’s Lawyer: | Coast Law |
IT IS NOTED that the Court made a number of final orders by consent on 29 January 2016 which are consolidated with these Orders.
ORDERS MADE BY CONSENT ON 29 JANUARY 2016
Each party is restrained from communicating with the other in a negative, denigrating, abusive, disrespectful or offensive manner.
Each party ensure that the Child attends school on each day that she is required to do so, apart from when she is unable to do so due to ill-health.
In the event that the Child fails to attend school, the party with whom she is with on that day is to provide a medical certificate to the Child’s school and the other party within twenty four (24) hours of the non-attendance.
Each party is restrained from using physical discipline on the Child, or from allowing any other person to do so.
Each party is restrained from using any illicit drugs.
Each party is restrained from permitting the Child to have contact with any person affected by, or known to be using, illicit drugs, and will do all acts and things necessary to remove the child from the presence of that person.
Each party is restrained from consuming alcohol to excess for forty eight (48) hours prior to, and during, the time that the child is to spend with them.
The Mother is restrained from having any contact with Mr S.
Each party is restrained from permitting the Child to have contact with Mr S, and will do all acts and things necessary to remove the Child from his presence.
Each party is restrained from smoking in the Child’s presence, and will do all acts and things necessary to remove the Child from the presence of anyone else doing so.
Each party is restrained from allowing or facilitating the Child to view or have access to any pornographic, inappropriate or adult material that is drawn, published, broadcast in print, on film or by electronic means, including, but not limited to, via iPad, iPhone or computer.
Each party shall do all acts and things necessary to ensure that no other person allows or facilitates the Child access to any pornographic or inappropriate or adult material that is drawn, published, broadcast, in print, on film or by electronic means, including, but not limited to, via iPad, iPhone or computer.
Each party is restrained from making any negative, derogatory or denigrating comments about the other, or their partners or family members, to, or in the presence or hearing, of the Child, and will do all acts and things necessary to remove the Child from the presence of anyone else doing so.
Each party is restrained from posting any information or images on Facebook or social media in relation to these proceedings, these Orders, or the other party, and is to do all acts and things necessary to prevent any other person from doing so.
Each party advise the other in writing of their residential address, land line number, email address and mobile telephone number in the event that there is any change in any of them, within forty eight (48) hours of any such change.
Each party do all acts and things, and sign all such documents so as to authorise the Child’s school to forward to both parties, copies of the child’s school reports, newsletters, information relating to school functions and events, information relating to school attendance, and order forms for school photographs.
In the event that the Child requires urgent medical, dental or psychological treatment, the party that the Child is with is to notify the other as soon as practicable.
Each party is to notify the other, and keep the other notified, of any medical, dental or psychological treatment that the Child undergoes including providing them with the name, address and telephone number of the person or persons providing the treatment, and notification of appointments and any prescribed mediation, including details of the dosage.
THE COURT FURTHER ORDERS THAT:
All previous parenting Orders be discharged with the exception of the Orders made by consent on 29 January 2016.
The Mother have sole parental responsibility for all major decisions relating to the child X born (omitted) 2008.
Each party have sole responsibility for making decisions in relation to X’s day to day care during periods X is with that party.
X live with the Mother.
The Mother be permitted to relocate with X to (omitted), Queensland.
Immediately upon the Mother and X relocating to (omitted), Queensland, the Mother notify the Father in writing by email of X’s address in (omitted), together with all relevant contact details including telephone, skype, email and mobile phone.
While X remains living in New South Wales:
(a)X spend time with the Father on each alternate weekend from after school Friday until 5.00p.m. Sunday unless other times are agreed;
(b)In addition, X spend time with her Father for the first half of the April 2016 school holiday period from after school on the first Friday until 5 p.m. on the second Saturday; and
(c)Changeover occur at school when X is at school and otherwise at (omitted) Railway station.
Time with Father when X living in (omitted)
X spend time with the Father in Sydney as follows:
(a)During the first term school holidays commencing on the first Sunday of the school holiday period and ending on the last Saturday of the school holiday period.
(b)During the second term school holidays commencing on the first Sunday of the school term and ending on the last Saturday of the school holiday period.
(c)For a period of three weeks during the Christmas school holidays as follows:
(i)In 2016 and years ending in an even number, for the first 3 weeks, commencing on the first Saturday of the school holiday period and ending on the Saturday 3 weeks later.
(ii)In 2017 and years ending in an odd number, for the 3 weeks ending on the last Saturday of the school holiday period and commencing on the Saturday 3 weeks prior to the last Saturday.
To facilitate Order (26):
(a)All school holidays refer to Queensland school holidays.
(b)The Mother arrange and pay for X’s return airfares between (omitted) and Sydney.
(c)The Mother arrange flights for X to depart from the (omitted) airport no later than 1.00p.m. on the day X’s time with the Father is to commence and to depart from Sydney airport no later than 1.00p.m. on the day X’s time with the Father ends.
(d)The Mother provide the Father written details of the flight numbers, booking reference numbers and departure and arrival times no later than 14 days prior to each relevant school holiday period.
(e)The Father collect X at Sydney airport on her arrival and transport X to Sydney airport in time for her return flight to (omitted) at the end of X’s time with him.
In the event X misses her flight, the party responsible for her boarding the flight make the necessary arrangements to have X board the next available flight, meet the costs associated with the change, and notify the other party by SMS of the new flight details.
The party facilitating X boarding the flight notify the other party by SMS message when X has boarded the flight.
The Mother accommodate any reasonable request from the Father for X to spend additional time with him provided that the Father meets the following conditions:
(a)The additional time is spent in (omitted), unless another location is agreed;
(b)The Father gives the Mother at least 2 weeks’ notice by email of his intention to exercise the additional time.
(c)All travel costs be met by the Father, and the Father gives the Mother written details of the flight number, booking reference number, departure and arrival time no later than fourteen days prior to each flight.
(d)The Father provides the Mother with the address and contact number for X whilst in the Father’s care in (omitted).
(e)The Father facilitate X communicating with the Mother by phone at least every 48 hours.
Unless otherwise agreed, changeover in (omitted) occur at X’s school or if a non-school day, at McDonald’s Family Restaurant at (omitted).
Communication by skype and telephone
X be assisted to initiate telephone or skype communication with her Father at any reasonable time and in addition:
(a)X have skype contact with the Father at least once a week, such time to occur on a Wednesday between 6.30p.m. and 7.30 p.m. unless otherwise agreed, with the Father to initiate the skype call and the Mother ensure X is available to receive the call.
(b)X have telephone or skype communication with the Father on at least one other occasion each week, such time to occur on a Sunday evening between 6.30 p.m. and 7.30 p.m. unless otherwise agreed, with the Mother to facilitate X initiating the call and the Father ensure he is available to receive the call.
Injunctions
Each party be restrained from discussing these proceedings in the presence and or hearing of X or from allowing any other person to do so.
Information sharing
The parties communicate in the usual course by email in respect of issues relating to X and the other party to respond within no more than 24 hours, and all such communications be respectful, and by SMS or telephone in an emergency or when an immediate response is required.
The Independent Children’s Lawyer provide a sealed copy of these Orders to the Principal of X’s school as soon as practicable, and the Mother provide a sealed copy of these Orders to the Principal of X’s school in (omitted).
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Calvert & Mercer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3908 of 2009
| MR CALVERT |
Applicant
And
| MS MERCER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case concerns parenting arrangements for the parties’ only Child, X, aged 7 years. The parties were in a relationship from 1997 (when the Mother was 17 years of age) until May 2009 when X was 13 months old. The parties have been in and out of Court since then.
The parties are in dispute as to where and with whom X should live. The Mother seeks to relocate with X from the (omitted) of NSW to (omitted) in Queensland. The Father seeks an order that X live with him in Sydney.
Ms H, psychologist, prepared an expert report for the Court. Ms H has a Master’s Degree in child and adolescent psychology, and long experience in practice and in preparing expert reports. Ms H supports the Mother’s proposal to relocate with X.
The parties’ communication is highly acrimonious and X is aware of the discord between her parents. Each party accuses the other of being unreliable, failing to deliver and collect X on time, and failing to confirm collection arrangements. Both parties are concerned about the extent of travel currently involved for X moving between them. Neither party trusts the other with X’s care. In Ms H’s view, the parties are focused on past hurts and concerns and lack the ability to promote a positive and meaningful relationship between X and the other parent. In her view, their behaviour is immature.
The parties had been living in a rental property in (omitted) for 8 years at the time of separation. The Father contends that he had “absolutely no notice of her leaving me, let alone that she was taking X with her.”[1] It is common ground that without notice to the Father, the Mother moved with X to her parents’ home in (omitted) Queensland on 1 May 2009. The Mother says she was exhausted by the baby and by the Father’s irresponsible behaviour. The Mother says that the Father’s mother suggested the Mother return to (omitted) Queensland for rest and support.
[1] At paragraph 10 of Father’s affidavit sworn on 13 January 2016
By order of the Family Court, the Mother returned with X to live in Sydney at the end of October 2009. She found accommodation in (omitted) and her mother came to Sydney to help her settle in. It was a condition of the Mother’s return from (omitted) that the Father pay her $150 a week towards her expenses and half of any bond, an order the Father breached shortly after the Mother returned, and never rectified. Nevertheless, the Mother remained in Sydney.
This matter has a long and complex litigation history. X has been in the middle of a highly conflictual relationship between her parents for most of her life. From a very young age, she has experienced repeated changes in her care arrangements including, a number of times, being withheld by one party from the other party for a block period without regard to the impact of these arrangements on X’s emotional or developmental needs. Having recently started Year 2, X has already attended three schools.
In early 2011, the Mother moved to (omitted) on the (omitted) with X because she could not afford to remain in Sydney. Until late 2013/early 2014, X was living primarily with her Mother. She had her first year of school at (omitted) Public School in 2013. From early 2014 until March 2015, she lived primarily with her Father and attended (omitted) School. She did not see her Mother for a month from February to March 2015. Since March 2015, X has been living primarily with her Mother (apart from a short period), attending (omitted) Public School and attending swimming and dancing classes. For over a month from late June 2015 until early August 2015, X did not spend time with the Father because the Father failed to comply with the orders providing for X to spend time with him.
Each party and the Independent Children’s Lawyer were represented by counsel.
The Father did not present well at the hearing. He had difficulty answering questions and his responses were often confused and unhelpful. He was quick to deny propositions put to him, but then to revert to “do not recall” when faced with evidence contradicting his denial. I accept the Independent Children’s Lawyer’s counsel’s submission that the Father’s evidence was unreliable.
Background
The parties commenced living together in (omitted) 1997 when the Mother was 17 years, and the Father 24 years of age. X was born on (omitted) 2008. The parties separated on 1 May 2009. The Father remained living in the (omitted) unit in which the parties had been living, from the time of separation until April 2015.
The Father is aged 43 years. He lives with his partner of 12 months, Ms J, in rental accommodation in (omitted). Ms J has a 21 year old son from a previous relationship. The Father has occasional casual employment with his brother, (employment omitted), but deposes to otherwise relying on a carer’s pension for income. He has caring responsibilities for his cousin Mr O, who suffers from a degenerative motor neurone condition and lives with the Father’s father in the (omitted). The Father says he either travels to the (omitted) or spends time with Mr O in Sydney approximately 4 times a week. Ms J is a (occupation omitted) working full time. Ms H observed their top floor unit to be comfortably furnished, with room for X’s toys and space for her to display her drawings.
The Mother is 36 years of age. She grew up in (omitted). She is a qualified (occupation omitted), trained in (omitted) and plans to complete a (qualifications omitted) in May 2016. She has had one relationship since separation with Mr S from mid-2013. She separated from Mr S because of domestic violence and obtained an Apprehended Violence Order against him in July 2015. She is currently not in a relationship. She is supported by Centrelink payments, and from income from her friend and landlady, Ms L, for babysitting Ms L’s two sons and for assisting with Ms L’s business. She receives child support from the Father of $34 a month. The Mother says she will lose her eligibility for the parenting pension in April 2016, so she must obtain employment from that time. The Mother has been prescribed and has taken 75mg Effexor a day for depression since mid-2014. Since 17 May 2015, the Mother has been leasing a freestanding one bedroom studio apartment from Ms L, located behind Ms L’s home in (omitted) on the (omitted). Ms H observed the home to be appropriately furnished and comfortable, with space for X to play.
Litigation history
The Father commenced proceedings two months after the parties separated in 2009. As already noted, the Mother moved to (omitted) with X to live with her parents, without notice to the Father. On 25 August 2009, on an interim basis, the Family Court ordered X’s return to Sydney within 2 months, but on condition that the Father pay the Mother $150 a week and half of any rental bond. The Court ordered the parties to share parental responsibility, for X to live with the Mother and to spend time with the Father one night a week. The Mother returned to Sydney and moved to (omitted) with X in late October 2009. On 8 October 2010, the parties agreed on a parenting plan providing for X to spend 3 nights a week with the Father. In March 2011, the Father retained X for 10 consecutive days without the Mother’s consent. For approximately two months, X then lived 4 nights with the Father and 3 nights with the Mother each week. The Mother says that X was not coping with that arrangement so withheld X from the Father for a number of weeks. In early 2011, the Mother moved with X to (omitted) on the (omitted). The Father then filed an Application in a Case for a recovery order which resulted in interim orders from the Principal Registrar of the Family Court on 2 August 2011, amended on 7 September 2011, providing for X to live with the Mother and to spend 4 consecutive nights each week with the Father. On 25 March 2012, the Mother again unilaterally withheld X, because she says X was exhibiting significant symptoms of stress. In April 2012, the Father filed an Application for Contravention. On 4 May 2012, on an interim basis, Justice Ryan of the Family Court reduced X’s time with the Father to 2 consecutive nights a week. On 23 July 2012, her Honour confirmed those arrangements and appointed an Independent Children’s Lawyer. In September 2012, Family Consultant Ms S, recommended X live with her Mother in (omitted) and spend alternate weekends with the Father. Although she raised concerns about each party’s parenting capacity, Ms S was largely complimentary of the Mother in her report and did not support the Father’s application for X to live primarily with him. On 7 November 2012, her Honour Justice Ryan made final orders by consent providing for X to live with the Mother, and to spend time with the Father (from the commencement of the school term in 2013) on each alternate weekend from after school Friday until before school Monday, for the majority of the short holidays and for 3 weeks in the Christmas school holidays. The Mother was still living on the (omitted), and X therefore started her schooling at (omitted) Public School at the beginning of 2013, when she was under 5 years of age.
In late 2013 or early 2014, despite the final orders then in force, and without recourse to the Court, the parties voluntarily arranged for X to live with the Father during the school week and with the Mother on weekends. The Father deposes to the Mother asking him to take over the full time care of X.[2] The Mother says the parties wanted to repeat X’s first year of school, and (omitted) Public School had a no repeat policy in Kindergarten. She was also trying to juggle working in (omitted) while living on the (omitted) and having to get X to and from school without family or other support. As a result, X moved to the Father so she could attend (omitted) School (from the commencement of 2014) from his home during school weeks.
[2] At paragraph 85 of Father’s affidavit sworn on 13 January 2016
As a result of an incident between the parties in front of X at the Father’s home on 11 February 2015, an Apprehended Violence Order was made against the Mother in February 2015 for the protection of the Father and X, and the Mother was convicted of driving with a mid-range PCA. The Mother did not then see X from 11 February to 11 March 2015.
X remained at the Father’s home until 11 March 2015, when the Mother removed her from his care without his consent, and enrolled her in (omitted) Public School, close to where the Mother was then living. The Mother gave up her employment so she could care for X. The Mother says she tried to re-implement the November 2012 orders with the Father without success. The Father concedes that the Mother offered to have X available for weekend time from April 2015, but the Father did not choose to spend time with her until May 2015.
On 29 April 2015 the Father initiated these proceedings for a recovery order, for X to live with him, to attend (omitted) School, for sole parental responsibility and for X to spend time with the Mother under supervision. He filed a Notice of Risk alleging the Mother abuses drugs and alcohol and had exposed X to risk of exposure to family violence by living in an abusive relationship with Mr S.
The matter came before me for the first time on 15 May 2015. The Father deposed to X being well settled in his care and at (omitted) public school, and being at risk in the Mother’s care. The Mother had not filed any responding material but the Court was advised the Mother had found evidence of amphetamine use in the Father’s home, and removed X because of her belief that X was at risk of harm in the Father’s care. Given the complex litigation history of the matter, and each party’s serious allegations about the other party, the Court sought further information before making a decision. The Court appointed an Independent Children’s Lawyer, ordered an urgent Child Inclusive Conference, ordered subpoenas to issue, made a number of restraints against each party, ordered drug testing for each party, and for X to spend time with the Father. On 27 May 2015, further interim orders were made for X to spend time with the Father, and further drug testing was ordered. Family Consultant, Mr H, gave short oral evidence. Mr H gave his preliminary assessment, recommending that X be returned to the Father’s care. In his opinion, the Father was able to focus on X’s needs during observations while the Mother seemed more focussed on her issues with the Father. The matter was listed for interim hearing on 11 June 2015, but was not ready to proceed on that day. A Family report was ordered, and further interim orders were made for X to remain at (omitted) Public School, but to spend 9/14 nights with the Father and 5/14 with the Mother. Further restraints were made against each party.
On 25 June 2015, the interim hearing proceeded and the final hearing was expedited. On 29 June 2015, interim orders were made and reasons given.
In October 2015, Ms H was appointed as the single expert.
Current arrangements
The current parenting arrangements are set out in the Interim orders of 29 June 2015 made after the defended interim hearing. The orders provide for X to live with the Mother and spend time with the Father on 2 out of 3 weekends during school terms, as well as for half school holidays and on special days. Each party is subject to a number of restraints.
X presently travels with the Mother one way by train to (omitted) to meet the Father, and is returned by car.
Consent orders
At the end of the final hearing, the parties agreed to a number of final orders concerning information sharing and restraints on each of them. Those orders were made by consent on a final basis on 29 January 2016, the final day of the hearing.
Orders sought by Mother
The Mother seeks Orders providing for X to live with her and to be permitted to relocate with X to (omitted). She seeks an order for sole parental responsibility. She proposes that X spend half the long school holidays with each parent, and almost the whole of 2 of the 3 short school holiday periods.
The Mother says she would remain living on the (omitted) with X if not permitted to relocate with her to (omitted).
Orders sought by Father
The Father seeks orders for equal shared parental responsibility and for X to live with him. He seeks an order that X attend (omitted) School or another school in the same locality. He seeks orders providing for X to spend time with the Mother from after school Friday until the commencement of school Monday morning each alternate week, for half of the short school holidays and for approximately half the Christmas school holidays. He proposes that X spend time with him on Father’s Day, with the Mother on Mother’s Day and on other special days agreed between the parties. The Father proposes the Mother be responsible for all the changeovers which occur at the school and that changeover otherwise occur at the (omitted) Railway station. He proposes telephone communication twice a week with the non-caring party.
In the event the Court determines that X will live primarily with the Mother, the Father proposes that X attend (omitted) Public School or another agreed school in that locality and that she spend time with him on alternate weekends and during school holidays as he proposes for the Mother if X lives primarily with him.
The Father had not considered what arrangements he would be seeking if X were living in (omitted). He told Ms H that if X were placed with the Mother, he and Ms J would relocate to the (omitted), acknowledging this would involve more travel for X. (In cross examination, the Father denied this exchange but Ms J was in no doubt as to what the Father had told her. Ms J says she has no intention of moving to the (omitted)). However, at the end of the hearing, the Father proposed that if X were living with the Mother in (omitted), the parties have equal shared parental responsibility, and X spend time with him for two weeks at the end of Terms 1 and 2, for four consecutive weeks during the Christmas school holidays and for the Mother to meet the costs of X’s airfares to and from Sydney. The Father also proposes that if able to do so, and on the giving of two weeks’ notice to the Mother, X spend time with him for a weekend each calendar month during school terms in Sydney or in (omitted) from after school Friday until the commencement of school Monday, or for a shorter period if nominated by the Father, with changeover at school or at McDonald’s in (omitted). The Father proposes to meet the cost of X’s airfares if he notifies the Mother of his intention to have additional time in Sydney.
Orders sought by Independent Children’s Lawyer
The Independent Children’s Lawyer proposes orders substantially in accordance with the Mother’s proposal: that the Mother have sole parental responsibility for X, that X live with the Mother and that she be permitted to relocate to (omitted). While in New South Wales, the Independent Children’s Lawyer proposes that X spend time with the Father on alternate weekends during school terms from after school Friday until before school on Monday, for half the short school holidays and for approximately half the Christmas school holidays. When in (omitted), the Independent Children’s Lawyer proposes that X spends time with the Father for 2 weeks in the Term 1 and Term 2 school holidays, and for 4 consecutive weeks in the Christmas school holidays, with the Mother to meet the costs of X’s air travel. She proposes that the Father be at liberty to spend additional time with X in (omitted) during school terms.
Expert recommendations
Ms H, clinical psychologist, prepared a report for the Court.[3] She conducted interviews in December 2015/January 2016. In cross examination at the trial, Ms H was unequivocal in her recommendation that X live with the Mother and that X be permitted to relocate with her Mother to (omitted). She recommended X spend more than half her school holidays with the Father. She recommended the Mother have sole parental responsibility for X.
[3] Exhibit 1
In cross examination by counsel for the Independent Children’s Lawyer, Ms H gave reasons for her recommendation. In her observations of X with her Mother, X’s behaviour was persistently confronting for a period of time. The Mother was able to manage X’s behaviour by redirecting her. She maintained an even tone. She maintained an even attitude and face. There was no suggestion that she was unable to cope with the situation or that she was finding it stressful or anxiety provoking or that she was blaming X in any way. This exposed her ability to parent in a stressful situation. She was very child focussed. She was loving and responsive. X sought close proximity to her, and was focussed on her interaction with her Mother.[4] Ms H’s observations of X with the Mother directly contradicted the Father’s stated concerns that X was not attached to the Mother, and that the Mother was not responsive to X’s needs.
[4] At page 12 of 27 January 2016 transcript of proceedings
In Ms H’s view, the Mother is disadvantaged living in New South Wales. She is quite lonely with no long term connections. She cannot maintain employment because of the lack of certainty in X’s care arrangements. She would have the chance to move on with her life if living in (omitted), supported by family. In 2015, when the Mother found work to fit around X’s time with the Father, the Mother could not fulfil her hours at work because the Father did not reliably collect X from school, in accordance with the Orders. The Mother had no choice but to leave work to collect her when the Father failed to do so. She could not therefore keep her job. Ms H says the Mother needs to gain and maintain employment so must have reliable child care and help getting X to and from school and her extra-curricular activities. The Mother wants income to provide better for X and herself. In (omitted) her parents will help her. X feels close to her maternal grandparents, and great grandmother. Ms H says they will provide solid meaningful support for the Mother in (omitted), support not available to the Mother on the (omitted). In Ms H’s view, given the long history in the Courts and X’s disrupted care history, there will be more of the same if the Mother stays on the (omitted). A move to (omitted) will give X a much greater chance of stability and thereby markedly improve her life opportunities. She will need face to face contact with the Father between school holidays, by visits from the Father and at least twice weekly skype and telephone contact. This will ensure her relationship with the Father is maintained.
Ms H highlighted the ongoing struggle for X, wherever she is living, if the animosity between her parents continues. Ms H said[5]:
X is seven years old and has been exposed to a number of adverse events related to her parents’ inability to compromise with each other and adhere to a plan that supports and meets X’s developing needs. X is aware that her parents do not get on…
The research suggests that children of separated parents need positive connections with adult carers, engagement with the broader community, and support to cope with their circumstances and safely manage their own emotions and impulses. X is attached to Ms Mercer and Mr Calvert… Ms Mercer’s plan to relocate to (omitted) with X is unlikely to compromise her relationship with Mr Calvert if she is not forced to choose between [her parents] and any decision is respected and accepted without resentment.
[5] At pages 17 and 18 of Exhibit 1
Ms H is not confident that the Court’s decision will be accepted, and respected, without resentment. In her view, “….[X’s] relationship with her parents will be compromised, no matter where they live, if they don’t find a way to.. stop the behaviours that X is aware of….”[6] Ms H urged the parties to support the final arrangement. She said both parents must let go the anger between them and focus on X’s needs. She said, “Now is the time to stop behaving like juvenile people and be the parents.”[7]
[6] At page 40 of 27 January 2016 transcript of proceedings
[7] Ibid at page 44
Legal principles
Relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII of the Family Law Act 1975 relating to the best interests of the child. As the Full Court said in Sayer & Radcliffe & Anor[8]:
It is now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders…the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
[8] Sayer & Radcliffe & Anor [2012] FamCAFC 209 at paragraphs 47 & 48
Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration. To determine the child’s best interests it must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3). Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court must give greater weight to the second primary consideration.[9] The primary considerations are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.
[9] Section 60CC (2A), Family Law Act 1975 (Cth)
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Father’s proposal
The Father opposes the expert recommendation. He believes that there is no guarantee of stability for X in (omitted), and no guarantee of stability for X living in the Mother’s family home. While he acknowledges the Mother working is positive role modelling for X, he does not believe there is any benefit for X relocating to (omitted).
On the Father’s proposal, X would live with him and Ms J, and spend time with the Mother on the (omitted). X would move to a school near to the Father. This may not be (omitted) School, given the Father is no longer living in (omitted) and may leave his (omitted) home at the end of his current lease. The Father has no work plans for the future.
If X were living in (omitted), the Father would see her in Sydney during school holidays and if he could afford to do so, he would travel to (omitted) occasionally. He would never live there. X would communicate with the Father by skype and phone. As noted, according to Ms H, if X were not living with the Father, he may move to the (omitted), a move his father says he is expecting, though from what she says, Ms J is not.
The Mother’s proposal
While the Mother did not seek an order to relocate in her original Response, and only formally advised of her wish to relocate to (omitted) in late 2015, she says she has been thinking about relocation since she was ordered to return to Sydney in 2009. However, she wanted X to bond with her Father, and thought it unlikely she would ever be permitted to relocate.
If living in (omitted), the Mother would work full time as soon as possible to achieve a better quality of life for herself and X. She knows she will lose her parenting pension in April 2016 when X turns 8 years of age and receives almost no financial support from the Father, so she must work. Her parents would help her establish herself by providing a safe and loving home in which she and X would live, and initially she would work part time in her father’s (omitted) business. She would save to buy her own home. She told Ms H that X would have the opportunity to develop relationships with her maternal grandparents, great grandmother and uncles. She would attend the (omitted) school the Mother and her siblings attended and would be given the opportunity to pursue her love of music and dance. Her mother, father or grandmother would collect and deliver X from school and members of her family would facilitate X attending dance, music and swimming lessons during the week. Her grandmother is a (occupation omitted) and would love to teach X. The Mother cannot afford to provide these opportunities if living on the (omitted). In (omitted), the Mother would have no child care expenses and would have stability and predictability in loving care for X. X already has regular skype contact with the Mother’s family in (omitted) and together they recently enjoyed a holiday there.
The Mother told Ms H that if she must remain in her current situation, she would continue to be financially and socially disadvantaged. As already noted, she has been unable to maintain employment on the (omitted) because the Father has been unreliable. Though she has made a few friends, they work full time and have their own commitments. She says she cannot expect them to care regularly for X so has no reliable support to compare with what her parents and family can offer. She is isolated from family in NSW, and has been unable to establish lasting friendships here because of the Father’s controlling attitude. The Mother describes dysfunctional communication and ongoing conflict with the Father, which she doubts will ever improve. As earlier noted, she cannot rely on the Father for the support she needs to maintain employment.
Mr T, aged 64 years, is the Mother’s father. He has owned and managed his own (omitted) business in (omitted) for 30 years. Until recently, he and his wife were not aware it was possible for the Mother to relocate to (omitted) with X, given orders were made in 2009 for her to return from (omitted) to live in Sydney. While there have been difficulties in his relationship with the Mother in the past, they have enjoyed a close relationship in recent years. He confirms the Mother’s evidence that he can give her part time work in his business, at least while she is establishing herself, and that he and his wife would welcome her and X living with them. X could attend a State school or (omitted) Primary school for $500 a term, as the Mother proposes. Mr T says he would facilitate contact between X and the Father by organising flights, and ensuring X has access to skype and telephone.
Ms D, aged 61 years, is the Mother’s mother. She is employed in the family business, and has completely flexible working hours. She usually arrives at work at 10 or 11 a.m. and leaves when it suits her. She and her husband have often thought about the benefits of the Mother and X returning to (omitted), but until recently believed it was not possible, given the Family Court ordered the Mother back to Sydney in 2009 and given the difficulties the Mother has faced trying to maintain primary care of X. When the Mother and X were living with them for approximately 6 months in 2009, it worked well. The Mother found work, was arranging further study, and X was in day care. She and her husband helped with X. Ms D says she has long been aware of the problems in the parties’ relationship and she and her husband have given the proposal a lot of thought. She deposes to the extensive family support available to X and the Mother in (omitted). She has cousins, aunts, uncles, grandparents as well as long term friends from her schooling at (omitted) School. Ms D is prepared to support the Mother and X in any way, including assisting the Mother to attend Narcotics Anonymous if needed. Ms D acknowledges the importance to X of her relationship with her Father. She spoke of X’s creative talents and the opportunities available to her in (omitted), including her own mother’s excellent reputation in (employment omitted) the joy it would give her to teach X.
As already outlined, the Mother proposes that X spend time with the Father for the majority of two out of three of the short term school holidays as well as 3 weeks during the long school holidays. She would support frequent skype and telephone contact and facilitate additional time for X to spend with her Father in (omitted).
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the Child’s parents
Ms H assessed X as securely attached to both of her parents, and both being bonded to her. “X was easily engaged by her parents and … clearly preferred their attention to that of other adults present.”[10] Ms H states that X feels loved and accepted by the Mother and the Father who X believes will meet her needs.[11]
[10] Page 11 of Exhibit 1
[11] At page 13 of Exhibit 1
However, Ms H raises significant concerns about the impact of the parties’ chronic hostility towards each other on X’s well-being. She says, “they appear to be unable to focus on her needs from them as her primary care givers.”[12] They do not effectively communicate which is necessary to negotiate parenting arrangements taking into account X’s needs currently and in the future. Each party needs to make X feel supported in her relationship with the other party, which is not happening.
[12] At page 12 of Exhibit 1
Ms H referred to research which found that “the benefits of care arrangements for children were open to becoming less effective, when the level of parental conflict was considered.”[13] She assessed the parties as loving X, but, because of each party’s experience and view of the other parent, as failing to find a way to promote a positive and meaningful relationship between X and the other parent. Ms H states that there is a risk that X’s relationships with both parties may be compromised while the parties remain focussed on past difficulties between each other, rather than what is in the best interests of X. If the Mother moves, Ms H says the quality and the ability of both the Mother and the Father to express their cooperation, their agreement in relation to where she lives, will determine the quality of X’s relationships with her parents into the future. They should be not be talking to X about their happiness, but around what works for her and what is in her interests. While she says that the Father will be devastated if X relocates, and will worry about her care, Ms H points out that adults have better ability to manage that emotional dysregulation than a child of X’s age. If the focus is on the parent’s own happiness rather than on her best interests, X will blame herself to the extent she is made aware of that parent’s distress. So if X relocates, and she believes her Father is suffering because of her move, X will be concerned. She will need more face to face contact in school holidays to be certain her Father is all right. In Ms H’s opinion, the way the Father manages the relocation will be very important.[14]
[13] At page 13 of Exhibit 1
[14] At page 11 of 27 January 2016 transcript of proceedings
As earlier noted, Ms H supports X living with the Mother, because she assesses her as the better parent. She does not believe X’s relationship with the Father will be more meaningful if the Mother remains on the (omitted), because the damage caused to X by the ongoing parental acrimony will continue, and her relationships with both parents compromised. She believes that although, after the initial excitement of the move, X would miss the Father because she enjoys her time with him, X can maintain a good relationship with the Father while living in (omitted), as long as she maintains regular skype contact, sees him face to face at least in school holidays, and, most importantly, the conflict between the parties markedly diminishes. I accept Ms H’s opinion that the latter is more likely to be achieved if there is distance between the parties and both parties can move on with their lives, rather than remain enmeshed in their ongoing dispute.
I give these findings substantial weight.
The need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is defined in section 4 of the Family Law Act 1975 as:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
“Neglect” is not defined in the Family Law Act 1975 and therefore must be given its ordinary meaning. I find no evidence of X being neglected.
Section 4AB(3) provides that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”
Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”
Section 4AB(4) outlines examples of situations that may constitute a child being exposed to family violence which include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”
Section 4AB(2) provides a non-exhaustive list of examples of behaviour that may constitute family violence, which include:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.”
The Mother makes allegations about the Father’s aggressive and abusive behaviour during their relationship and after separation[15]:
a)On approximately 6 occasions during their relationship the Father smashed and destroyed artworks she had created and displayed in their home.
b)On one occasion, he punched a hole in the wall.
c)She saw him hit and kick their kelpie dog, (omitted) and then throw him.
d)He would weekly question her about speaking or looking at other men, objected to her spending time alone with girlfriends, calling her “a fucking slut.” He would say “if you were a guy, I would punch you out.”
[15] At paragraph 16 of Mother’s affidavit sworn on 3 January 2016
The Mother tells Ms H the Father was and remains emotionally abusive and controlling, regularly subjecting her to verbal abuse. She deposes to examples of the Father’s behaviour after X was born:
a)He used to scream abuse at her while she was breastfeeding.
b)He isolated her from family and friends, resisting her efforts to travel to (omitted) to see her parents.
c)He was often angry when X was a baby, exacerbating the Mother’s post-natal depression. In April 2009, when he saw the letter the Mother had written about needing rest and support and wishing to travel to her parents in (omitted) with X, the Father screwed up the letter, took stale Chinese food out of the bin and tipped it over the Mother’s head while she was holding X, thinking it was funny.[16]
d)The Father was frequently verbally abusive towards the Mother.
[16] At paragraph 23 of maternal grandmother’s affidavit sworn on 4 January 2016
I am satisfied the Father has behaved in the way described. The maternal grandmother observed that when the Mother was visiting (omitted), she was constantly stressed by the Father’s insistence she call him 3 times a day or he would react angrily.[17] She says, “She [the Mother] appeared scared and on edge when Mr Calvert called”[18]. After the Mother and X relocated to (omitted) in 2009, Ms D observed “every time the phone rang Ms Mercer froze and looked extremely stressed”[19] and he rang many times each day.
[17] At paragraph 14 of maternal grandmother’s affidavit sworn on 4 January 2016
[18] Ibid
[19] At paragraph 25 of maternal grandmother’s affidavit sworn on 4 January 2016
I have read the litany of messages from the Father to the Mother, which are frequently derogatory of her and abusive.[20] The Father acknowledged he used derogatory terms in relation to the Mother in text messages, including “selfish pig” “thieving, lying bitch” “wanker” “evil nasty woman” (he said this is not abusive), “crazy” “pathetic, fuck off arsehole” “fuckwit” “shit stirring evil lady” “bully” “fucking jerk” “nasty, ugly dumb lady” ‘grow up and lose weight you pig “fuck off” “loser” “dickhead”. I do not accept that this abuse only occurred in recent months as claimed by the Father. I find it likely these messages were not unusual. I find it noteworthy the Father used such derogatory language towards the Mother while these proceedings were on foot.
[20] Annexure G to Mother’s affidavit sworn on 3 January 2016
The Father alleges that the Mother exposed X to family violence during her relationship with Mr S. He also alleges that shortly after their relationship began, Mr S touched X inappropriately. On 5 May 2013, a police report states that on 4 May 2013[21], X said to the Father, having come out of the bath, “I’ve got a brush in my bum bum”. X then said to the Father that she had been touched on her vagina and that ‘Mr S’ did it. The Father reported X’s disclosure to the police and the Department conducted a home visit. Mr S denied the allegations. A JIRT investigation followed. Most of the interview with X was apparently difficult to understand, the only clear statement being the disclosure. On 17 May 2013, the Department was satisfied X was not at risk in the Mother’s care[22]. They found no evidence of drug use by the Mother as alleged by Father.
[21] Exhibit 6
[22] Exhibit 6
However, it is common ground that Mr S has a criminal record and a history of drug addiction. The Mother told Ms H that her relationship with Mr S became threatening, violent and controlling. She accepts the Father’s concerns about Mr S were reasonable. While the Mother says Mr S never exposed X to his violent behaviours, a question arises as to what X might have seen and heard while that relationship continued.
In early June 2015, Mr S sent an SMS to Ms J stating:
[The Mother] is a bad alcoholic and may not be fit to look after X. I would never hurt that little girl. The lady is an alcoholic and violence could even be prostituting herself out. The right thing to do is look after X and I don’t feel in my heart that Ms Mercer is best parent to look after her. ..
…I was being vindictive wrong thing to do. Ms Mercer hasn’t broken the orders. She is doing right thing when X is in her care.
After Ms J had received the text from Mr S, the Father did not return X to the Mother. The Father deposes to the Mother and her female friend forcing their way into his house on 9 June 2015 and both assaulting him. Police were called and decided X should go home with her Mother. I find neither party behaved protectively towards X on that day.
The Mother denies Mr S’s allegations about her. She says that Mr S did not accept the end of their relationship and was trying to punish her. In July 2015, the Mother sought and obtained an Apprehended Violence Order against Mr S for a period of two years and has not seen him since. She says “he will not come back.”
While the Mother describes herself as a “quiet mouse” while the Father was frequently angry, it is common ground that the parties were engaged in an altercation on 11 February 2015 in front of X at the Father's (omitted) home which resulted in the Mother being charged with assault of the Father and drink driving (mid-range). The parties had agreed the Mother would take X to afternoon tea and stay to cook dinner. The Mother told Ms H she had consumed two and half cans of pre-mixed bourbon and coke. The Father deposes to the Mother attending his home without prior notice, “highly intoxicated” and saying to him “I am going to rearrange your face with a baseball bat.”[23] The Mother says the altercation erupted after she told the Father that his home was unsafe for X because of his drug use and his warning to the Mother to avoid the Father’s ex-girlfriend, Ms K, who might “stab you”.[24] She says she felt helpless to control the Father’s drug use around X. The Father reported the Mother’s conduct to police.[25] The Mother admitted slapping the Father about 8 times and she was charged. On 4 March 2015, an Apprehended Violence Order was made against the Mother for 12 months for the protection of the Father and X. The complaint for the AVO discloses[26] that the Mother asked to take X for afternoon tea, which was agreed. At 4.30 pm the Mother and X returned to the Father’s residence and the Mother was to prepare dinner. She started to consume alcohol. Later, the Mother started to yell and when the Father called police the Mother struck him to the face. She threatened to assault him with a baseball bat. The Mother describes the day as “the worst of my life” and says she regrets her behaviour. She did not see X for a month. I find the Mother’s evidence about this incident consistent with the police complaint for the AVO against her, and the Father’s evidence inconsistent with the police version of the incident.
[23] At paragraph 96 of Father’s affidavit sworn on 13 January 2016
[24] At paragraph 50 of Mother’s affidavit sworn on 3 January 2016
[25] Exhibit 6
[26] Annexure L to Father’s affidavit sworn on 13 January 2016
While I find both parties were at fault on 11 February 2015, I am highly critical of the Mother’s behaviour on that day which I find would have been psychologically damaging to X. However, I am satisfied the Mother is genuinely remorseful and understands the importance of protecting X from exposure to such behaviour in the future.
Ms H assesses both parties to be meeting X’s safety needs. I agree with her that Mr S no longer represents a threat to X’s safety while with the Mother. I agree with her that the Mother has demonstrated her capacity to act proactively to protect herself and X from Mr S’s abusive behaviour and indicated her intention to have no further contact with Mr S. She has attended counselling and now understands the issues inherent in partner violence. I am satisfied X is not at risk of exposure to family violence in the Mother’s care.
In relation to X’s risk of psychological harm in the care of the Father, I find a basis for caution. X has repeated to her Mother some of the Father’s negative remarks about the Mother and there is evidence to suggest she has seen abusive messages from the Father. I am not persuaded the Father fully appreciates the importance of protecting X’s psychological safety by ensuring X is not exposed to any form of conflict, in particular exposure to his negative feelings about the Mother.
I find the evidence outlined here highlights the ongoing high level tension between the parties. I agree with Ms H’s opinion that the parties must cease their endless struggle with each other and focus on X’s needs. I accept her opinion that this is more likely if the Mother is permitted to relocate. This in turn is likely to strengthen the quality of X’s relationships with each party.
RELEVANT ADDITIONAL CONSIDERATIONS
Any views expressed by the Child and any factors (such as the Child’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the Child’s views
X told Ms H she wanted to live with “both mummy and daddy”[27] and identified the positive aspects of her relationships with each of them. When, after some discussion, she asked again, X chose her Mother. I accept Ms H’s opinion that the Court should give X’s response some weight because she had just been in her Father’s care for two weeks, and enjoyed her time with him.
[27] At page 14 of Exhibit 1
X was quite excited about the prospect of moving to (omitted) to live with her maternal grandparents and uncle, and did not exhibit any distress at the prospect of less time with the Father in front of Ms H. However, Ms H believes X was in part influenced by having recently had fun with her grandparents on a holiday to (omitted). I am not satisfied that X, at her young age and level of maturity, understands the implications of a permanent move to (omitted), which would mean less frequent time with her Father. I therefore give her expressed views about the relocation minimal weight.
The nature of the relationship of the Child with each of the Child’s parents and other persons (including any grandparent or other relative of the Child)
As already noted, X has a secure loving relationship with both her parents.
Ms H reports X as identifying her maternal grandparents, her maternal aunt and uncles, her paternal aunt, grandmother and grandfather and cousins as those who love her. She spoke at length about her maternal grandparents, their cats and things she enjoys doing with them. She was very engaged in describing a photograph album her maternal grandmother had sent her with photographs of X, together with photographs of the Mother as a child. She was looking forward to her maternal aunt staying with them to take her to and from school when the Mother attended this hearing. Ms H observed that X did not mention Ms J. I accept that all those X mentioned to Ms H are important to her.
While the Father does not believe X is particularly close to the maternal grandparents, I am not satisfied the evidence supports his opinion. X speaks on the phone to them regularly, she has enjoyed 5 family holidays with them and the Mother’s three siblings in the last 6 or 7 years, and though she had not seen them for 2 years until late in 2015, that was the longest period she had not seen them face to face. They send cards, gifts and letters regularly. Given the holidays they have spent together, I accept the Mother’s evidence that X is also close to the Mother’s 3 siblings who do not yet have children of their own.
On the Father’s side, I accept the paternal grandfather’s evidence that he has always enjoyed a good relationship with the Mother and with X, and sees X reasonably regularly. However, it does not appear that X has the relationship with them that she enjoys with her maternal grandparents. She has not seen as much of them. I find it noteworthy that they did not respond to the Mother’s invitation for them to attend X's Grandparents’ day in (omitted) 2015, and the Father was angry with the Mother for raising it.
The Father tells Ms H that X and Ms J have a strong and loving relationship. As a family they enjoy going to be beach, when Ms J and X enjoy paddle boarding together. Ms J’s son, aged 21 years, acts as X’s older brother and they enjoy time together. While X was more at ease at play with her Father during observations, Ms H observed no issues of concern in her interactions with Ms J,[28] and when seen at the Father’s home, spoke about paddle boarding with Ms J in the holidays. Ms J says “I think of X as my step-daughter and love her very much.”[29] While X has only known Ms J over the last 12 months or so, I am satisfied they enjoy a comfortable relationship.
[28] At page 14 of Exhibit 1
[29] At paragraph 39 of Ms J’s affidavit sworn on 13 January 2016
I accept Ms N’s (the Father’s sister’s) evidence that she is close to X, and that X and her son A, aged 3, spend regular time together on weekends and during school holidays and are “great mates”. X has also spent Christmas days with them. I have regard to her concern that the Mother will not support the cousins’ close relationship if the Mother relocates.
I am satisfied X is well loved by members of her paternal and maternal extended families. I take these findings into account.
The extent to which each of the Child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the Child; and to spend time with the Child; and to communicate with the Child
As already noted, the parties have shared X’s care since separation, with the Mother playing a greater role as her primary carer until late 2013, and from March 2015, and the Father playing the primary care role from late 2013/early 2014 until March 2015. For most of that period, X has been spending regular time with her Father on weekends and for block periods of nights during holidays. She lived in the Father’s primary care for over 12 months until March 2015.
The Father participated in X’s school life when she attended (omitted) School, and the Mother when she attended (omitted) Public School and (omitted) Public School where she attends currently. The Father has not engaged with X’s current school.
When interim orders were made in June 2015, the Father did not spend any time with X on weekends in accordance with those Orders for several weeks, and thereafter has been unreliable about collecting her on his allocated weekends. At the end of June 2015, the Mother had found employment on Friday and Saturday afternoons to evening, but had to give up the job because the Father failed to pick up X on 4 weekends of the first three cycles of the time she was to spend with him.
I find the Father has resisted the Mother’s efforts to establish a consistent, predictable routine for X. He was obstructive in relation to her efforts to engage him in X’s end of year dance recital and has chosen at times not to exercise his time with X with little or no notice to the Mother. As already noted, the Father has not communicated constructively with the Mother, but has instead often used text messaging to undermine and denigrate the Mother. I find it would not be possible for the Mother to rely on the Father for support for X’s care. As addressed later in these Reasons, I am not satisfied the Father supports the Mother in her parenting role. I find that the Father has largely disregarded the impact on the Mother and therefore on X, both emotionally and practically, when he has either ignored or refused the Mother’s requests to make arrangements for X.
I give moderate weight to these findings.
The extent to which each of the Child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the Child
I am not satisfied the Father has fulfilled his obligation to maintain X. He pays almost no child support ($34 a month) and has chosen to engage minimally in employment. In March 2015 when X returned to her Mother’s primary care, the Father retained the Centrelink parenting payment despite not being entitled to it, and despite the Mother telling him she had no money for food. The Father responded that X would have food at his place. I agree with the Independent Children’s Lawyer’s counsel’s submission that the Father was “blinded by acrimony.”
The Father told Ms H he had found it difficult to maintain full time employment because of his need to be available to care for X. He says he stopped full time work in 2009 and has only worked intermittently since. Since 2012/3 he says he has been claiming a carer’s pension of $400 a week for his role as carer for his cousin, though his father says the Father has been in a caring role for 1-2 years. When X was in his care he received the Supporting Parent Benefit. He says he has been working about 6 weeks a year helping his brother with a (omitted) business, but has not yet worked this year. He and Ms J pay $1200 a fortnight in rent at (omitted) with Ms J earning $2,500 a fortnight. He says he was paying $300 a week rent at (omitted). I agree with the Independent Children’s Lawyer’s counsel that the Father’s financial circumstances are not adequately or credibly explained.
The Mother deposes to the parties being constantly behind with the rent when they were living together, and to the Father asking her to get her parents to pay the rent. The maternal grandmother deposes to the Mother telephoning 4 times a year during her relationship with the Father asking for money for rent or electricity, which the Mother’s parents paid. The maternal grandmother said that in 2002, she and her husband invited the Father to come to (omitted) to train as a manager in their business. The Father did not even reply. On occasions the Mother says the Father would ask his father for money. The Mother describes the Father as financially irresponsible, spending money on poker machines and alcohol rather than on necessary expenses.
I accept the Mother’s evidence as to the Father’s financial irresponsibility, and do not accept the Father’s denial that he ever sought money for rent and essential bills from the maternal grandparents. I am satisfied the rent was in arrears many times from 2001 to 2009 when the parties finally separated. I find it likely the Father did use the baby bonus, at least in part, on a flat screen television set, to meet rental arrears and to pay for his own entertainment. In cross examination, the Father expressed no interest in working, said he has not been trying to get work, and appeared to be unconcerned about his failure to provide financial support for X. The Father could not tell the Court whether or not he paid his child support liability of $34 a month, and expressed no concern as to whether he paid it or not.
I find the Mother bears the majority financial responsibility for X’s needs including costs related to schooling, dancing and swimming lessons, phone calls to the Father, medical care if a gap and child care when the Mother attends College for her (qualifications omitted).
I give substantial weight to these findings.
The likely effect of any changes in the Child’s circumstances, including the likely effect on the Child of any separation from either of his parents, or any other Child, or other person (including any grandparent or other relative of the Child), with whom he has been living
If X is living in (omitted) with the Mother, it will not be practicable for her to spend regular weekend time with the Father during school terms, as she is used to, but she will have the opportunity to spend more time than she is used to with the Father during school holidays. She will then have the chance to spend time with her cousin and her paternal extended family. While the Father would probably not have the opportunity as he does now to attend X’s special events at school, or her extracurricular activities, he says he would travel to (omitted) as often as he could afford to do so, if she were living there. I accept Ms H’s evidence that X is likely to miss her Father if she moves to (omitted) and agree with her that the parties would have to commit to ensuring X has regular telephone and skype time with the Father at least twice a week.
The evidence discloses that the Father has not taken advantage of the relatively short distance between his home and X’s school since she has been attending (omitted). He has not participated in her school life, attended school events, attended her dance concert, or arranged to have his parents participate in grandparents’ day. So while this opportunity may not exist for him or for X if the Mother relocates, it is unlikely to result in X missing out.
The Mother’s quality of life or standard of living is unlikely to improve if she remains living on the (omitted). If she does obtain work, she will face the increased costs of child care and it would be difficult for her to arrange for X to attend her ex-curricular activities. Also, while she presently has the opportunity to rent a large one bedroom flat behind the house rented by her friend Ms L, she does not have the security of long term affordable accommodation.
As earlier noted, the Mother has no family in New South Wales and no long term friends. While three of her small friendship network gave evidence on her behalf, and impressed as warm and supportive friends to the Mother and to X, friends who would certainly help in any emergency, I accept the Mother’s evidence that it would not be feasible for her to rely on them regularly to care for X.
If in (omitted) the Mother has a large extended family to call on for assistance as well as long term friends. She will have free accommodation, the opportunity to work without meeting the costs of child care, and the chance to save to purchase a home for herself and X. I find it highly likely the Mother’s extended family would attend concerts and special events for X and that X’s network of support would markedly increase.
Importantly, if the Mother remains living on the (omitted), I agree with Ms H that the ongoing acrimony between the parties is likely to continue and X is likely to continue to suffer. X will be required to manage the conflict between her parents every time she moves between their two homes, something I agree with Ms H should be avoided if at all possible. I have regard to Ms H’s opinion that more distance between them might allow each party to get on with their own life, both could become individual adults, rather than remaining enmeshed as their relationship is currently. She says that distance might help each of them focus on X, rather than on each other.
I give these findings significant weight.
The practical difficulty and expense of a Child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the Child's right to maintain personal relations and direct contact with both parents on a regular basis
The direct flight from (omitted) to Sydney is 2 hours 35 minutes. I agree with Ms H that to travel so far for a weekend during the school term would be onerous for a child of only 7 years. Ms H was hopeful the Father might travel to (omitted) during the school term to spend time with X there, especially in the first 6 months after relocation when it would be important for X to see him. While I agree it would be ideal if the Father could afford to travel regularly, he has not demonstrated any interest in improving his financial position by joining the workforce. I therefore find it unlikely the Father would travel during school terms on a regular basis.
There are already practical difficulties for X moving between the two households. If the Mother remains living on the (omitted), X will continue to travel on a minimum of alternate weekends to spend time with her Father if living with the Mother, and the Mother if living with the Father. This currently involves a train trip of over an hour to (omitted) and another hour from (omitted) to (omitted) by car. Neither the Mother nor the Father have a car, though the Father has the use of Ms J to help with X’s transport. The Father has said to the Mother that the two out of three weekends the Court ordered for X to spend with her Father during the interim period is too much, and they should reduce the number of weekends to every alternate weekend. I am satisfied X’s travel schedule between the (omitted) and (omitted) is already onerous for her and for the parties and that is unlikely to change if X is living in Sydney or the (omitted).
There will be no impediment to X having regular contact with the Father by skype and telephone if she is living in (omitted).
There would be considerable expense for the Mother if X relocated. The Mother proposes meeting the costs of flights to and from Sydney during three of the four school holidays. The Father would be required to meet the costs of travel to (omitted) as well as the cost of overnight accommodation in (omitted) on those occasions, if he chose to travel.
I have regard to these findings.
The capacity of each of the Child’s parents and any other person (including any grandparent or other relative of the Child) to provide for the needs of the Child, including emotional and intellectual needs
Both parties exhibit vulnerabilities in their parenting capacity. Both have used illicit drugs in the past. The Mother formed a relationship with a violent partner. Both have exposed X to family violence. The Mother has used alcohol to excess in X’s presence. The Father has repeatedly exposed X to his negative view of her Mother. Both have made unilateral decisions about X without adequate focus on her best interests. I agree with Ms H that both parties show immaturity.
The Father deposes to being a hands-on parent from the time of X’s birth, holding and comforting, feeding and bathing the baby and putting X to sleep. The parties separated when X was 13 months of age. The Father deposes to sharing her care with the Mother since then, with the exception of a 6 month period in 2009 when X was living with her Mother in (omitted). While I accept the Father has had a close involvement in X’s care, I find, as already noted, that X has experienced disruption and inconsistency in her care arrangements throughout her life, for which the parties are responsible.
Ms H describes the Father as “articulate, he listened to questions and answered spontaneously although focused on his concerns with regard to the current court matter.”[30] He became teary when discussing his concerns for X. The Father reported growing up in a loving and supportive family, and to being close to his siblings.
[30] At page 8 of Exhibit 1
The Father says he actively participated in X’s school life when she attended (omitted) School in 2014 and early 2015. He describes a range of activities he and X enjoy together, and with Ms J, including paddle boarding. X enjoys time with her extended paternal family when in the care of her Father, particularly her time with the Father’s sister and her son A. The Father described himself to Ms H as an active responsive parent who has cared for X’s day to day needs, including her emotional and social needs. He regularly worked in the school canteen at (omitted) which X enjoyed. He states he is devoted to ensuring she reaches her potential.
However, I share Ms H’s concerns about the Father’s parenting capacity. She observed X enjoying her interactions with her Father and Ms J in their (omitted) home and spoke of their fun activities over the school holidays. X showed Ms H her colourful bedroom including her pictures pinned to the wall. She described her favourite toys and books before engaging in a game of “rough and tumble” with the Father. Ms H said “my view is that [the Father]’s behaviour is more about [the Father] than it is about X… [the Father] is very focused on his presentation, his point of view, his comments. And when I asked him about X.. and I saw him interacting with X, aside from the play, the conversation was directed and led by Ms H rather than [the Father].”[31] The Father showed limited capacity to focus on Ms H’s questions about his family, his childhood, his schooling, his employment history, about X, about her needs, her development. He needed to control the assessment. His focus was on himself, and how the Court process was affecting him. The Father was not child focussed. Both Ms H and the Independent Children’s Lawyer’s counsel raise concerns about the Father’s lack of life plan for himself and that he was primarily focussed on his own position in the dispute.
[31] At page 19 of 27 January 2016 transcript of proceedings
The Father did not give Ms H an accurate account of his involvement in illicit drugs. The Father deposes to being subject to a charge of Drive Vehicle under the influence of amphetamines. On 6 March 2011, the Father was roadside tested and returned a positive result for Methamphetamine use. He cannot explain how that substance was found in his system as he claims never to have taken amphetamines. He was prohibited from driving for 24 hours. He told police however, not that he had never taken amphetamines, but that he could not recall the last time he took them. He sought to excuse himself by saying he was on anti-depressant medication[32]. Despite his contention that he was innocent, the Father nevertheless pleaded guilty to the charge and was placed on a bond. In May 2011, the Father says he had borrowed a utility to drive to Queensland. On a random police check, they found an ice pipe in the vehicle which he claims to have had no knowledge of. He was issued with a Minor Drugs Offence Diversion and agreed to attend and complete a drug diversion assessment programme. The Father told Ms H in 2016 that he had no prior criminal history and stopped using marijuana in 2002. Further, the Father told Ms H he had completed 8 urinalyses which had all been negative, but was unable to do two others because on one occasion he was interstate, and on another, it was his birthday and he and Ms J were going away. This was not accurate. In accordance with orders for the Independent Children’s Lawyer to request each party to undertake urinalysis, the Father undertook drug tests on 18 May 2015, 25 May 2015, 9 June 2015 and 18 June 2015. He tested positive for benzodiazepines on 18 May 2015. The Father failed to comply with requests made on 27 May 2015, 29 June 2015, 18 November 2015 and 30 December 2015. In cross examination, the Father gave different reasons again for his failure to comply including: being unaware of the requests, being with X and being interstate. I find his evidence unsatisfactory. I agree with Ms H when she says that if you are claiming not to be using any kind of alcohol or substance, then it is important to comply with drug testing as Court ordered.
[32] Exhibit 6
The Father has not shown a responsible attitude to X’s schooling when in his care.
a)He did not include the Mother’s name on (omitted) School records when X was enrolled. He gave his sister’s name and the name, Ms K. The Mother’s details were left blank.[45]
b)At mid-year 2014, the school records an 84% attendance rate, and at the end of 2014, an 85.3% attendance rate for X. The notes from the school state “high level of late arrivals and absences hinders her learning”.[46] In cross examination, the Father could not adequately explain all these absences and why X so often arrived late. He suggested that “marginally late” and three days away for “a family emergency” was acceptable, and blamed the Mother for some of the days absent.
c)The Father did not return X to school at (omitted) after his weekend on 28/29 March 2015. He advised the Mother by text message (when she had travelled to (omitted)) that he was keeping X with him, having earlier confirmed he would deliver X to (omitted) Station on Sunday evening. She therefore missed school on 30 March 2015. The Mother then attended the Father’s home that evening, when, as earlier noted, police were called.[47]
[45] Exhibit 3
[46] Annexure I to Father’s affidavit sworn on 13 January 2016
[47] Exhibit 2
I find the Father’s claims to regret certain of his actions, including emailing the (omitted) school Principal and the Mother’s father in such damaging terms, disingenuous. I am satisfied the Father chooses to avoid constructive communication with the Mother and chooses to ignore her texts, emails and phone calls when it suits him. I find the Father’s failure to respond to the Mother’s efforts to make clear arrangements for X, inexplicable and unacceptable. I find the Father has scant regard for the Mother’s views. I find the Father has shown an irresponsible attitude to his parenting responsibilities in this and the many other respects outlined. I find that the Father’s attitude to the Mother, damaging to X’s relationship with her Mother. I have regard to Ms H’s observation that when X arrived at the assessment at her home, interrupting her time with her Father, she took a long time to be able to relax with her Mother. I have regard to her opinion that X’s persistent ‘teasing’ of her Mother which put her Mother down, is harmful to her relationship with the Mother.
I am satisfied the Mother does recognise the importance to X of the relationship with her Father and has tried to promote that relationship, though at times has been overwhelmed by the Father. I accept that the Mother believes “she needs us both”. I am satisfied the Mother has avoided denigrating the Father to X and has done her best to encourage and support that relationship. I find it noteworthy that her friends have observed the Mother’s warm encouragement when X has been reluctant to go to changeover.
However, I also find that the Mother has demonstrated a poor attitude to her parental responsibilities at times. Her decision to move X to the Father’s care in late 2013/early 2014, so X could repeat Kindergarten at (omitted) School, was taken without proper regard to the likely impact on X of such a significant change, involving a change of residence and change of school when she was under 6 years of age. While I find the Mother may have been well motivated, and was trying to maintain a full time job, I find she was also naïve to assume she could come and go at the Father’s home and see as much of X as she wanted. Her difficulties negotiating with the Father were not new, and she might have anticipated that problems would ensue, which would then impact adversely on X. As it transpired, the Mother’s decision ultimately led to this litigation.
I agree with Ms H that neither party accepted appropriate responsibility for X’s absences from school and each had a propensity to blame the other for the unexplained absences. I do not find all the Mother’s reasons for X’s absences adequate. I am, however, satisfied that since the interim orders were made in June 2015, the Mother has been vigilant in ensuring X is at school on time, dressed in school uniform, with appropriate lunch and school items. X’s report reflects her academic progress in 2015. In 2015, the Mother also arranged for X to attend a Unifam course for children of separated families for 5 weeks, and attend 3 counselling appointments with Ms R to help X. The Mother has also completed parenting courses for herself.
I have earlier addressed my findings about the Mother’s poor judgment in pursuing a relationship with Mr S.
The Mother has also broken the law. She stole 2 bread rolls in January 2012 when she says she was ‘desperate’. While the value of the theft was minimal, it shows poor judgment and a vulnerability in the Mother when under stress.
I give these findings substantial weight.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the Child
I agree with Ms H that change is necessary for X. More of the same will not benefit X: whether she lives primarily with her Father in Sydney or with her Mother on the (omitted). If the parties remain enmeshed in their acrimonious relationship, X will remain exposed to the ongoing high conflict between them. I find she is likely to face further sudden changes to her care arrangements, because each party has no confidence in the other’s capacity to look after her. I find it highly likely that more of the same, whether X lives with her Mother or her Father, will mean further litigation. I agree with Ms H that the best hope for the parties is to change their focus from themselves to X, and the distance created between them by the Mother’s proposal to relocate, is more likely to achieve that outcome.
I have regard to these findings.
Parental Responsibility
The Father seeks an order for equal shared parental responsibility. Nevertheless, he says the parties have great difficulty communicating, remain highly conflictual, and cannot make joint decisions. I have already addressed the impact of this on X. The Mother agrees with the Father’s assessment of their ability/willingness to communicate.
While the Mother says she has tried to be calm and polite in text messages to the Father, I find numerous examples of the Father’s abusive and destructive responses, even during the course of this litigation. The Mother says there has been no change in that pattern in the 7 years since they separated. The Mother says the parties’ inability to make joint decisions makes it hard for X and also affects her own wellbeing. As earlier noted, each of the three friends of the Mother who gave evidence on her behalf, has observed the distress caused to the Mother by the Father’s abusive text messages. I highlight here as an example directly affecting X, the failure of the Father to support X’s attendance at her end of year dance concert, an event so important to X.
I am satisfied, on the examples in the parties’ correspondence, that the Mother has kept the Father informed about health and other issues relating to X and that she has facilitated phone communication between X and her Father. The Mother says she is happy to continue to keep the Father fully informed of X’s progress and any issues which arise for her, but asks to be able to make the decisions. I accept the Mother will do so. She therefore seeks sole parental responsibility.
Both the Independent Children’s Lawyer and Ms H support the Mother’s proposal for sole parental responsibility. The Independent Children’s Lawyer’s counsel says it is clear on the evidence that it is unlikely these parties will cooperate on anything at all.
Section 61DA of the Family Law Act 1975 requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the child.
Section 65DAC applies whenever a parenting order provides for shared parental responsibility, and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.
Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility[48].
[48] Section 61DA(4) Family Law Act 1975
In this case the presumption is rebutted by my findings on family violence, but in any event, I am not persuaded that it is in X’s best interests for the parties to have equal shared parental responsibility. I agree with Ms H and counsel for the Independent Children’s Lawyer, that the parties have proved over many years that they cannot consult in a cooperative manner and have not been willing/able to make a genuine effort to come to a joint decision. While the Father says he is now willing to resolve the conflict between the parties, I find no evidence to suggest he is genuine.
I have decided the Mother will have sole parental responsibility. Given my decision, I am not required to consider the matters under s.65DAA.
Discussion and Determination
The Court is required to determine whether it is in X’s best interests to live with her Father in Sydney, or with her Mother on the (omitted) or with her Mother in (omitted).
In considering whether X should live primarily with her Father or with her Mother, I have given significant weight to my findings that the Mother has the greater capacity to parent, and has demonstrated a greater commitment to her parental responsibilities. While I find that the Mother has made some serious errors of judgment, she has been candid about those mistakes and sought to address them. Importantly, I am satisfied the Mother will support X’s relationship with the Father if X is living with her, because she recognises and acknowledges the benefit to X of a meaningful relationship with him. I find it noteworthy that when the Mother moved back to Sydney from (omitted) in October 2009, and the Father failed to comply with the conditions attached to the order for her to return, the Mother did not return to (omitted). She said it was important to her that X established a strong bond with her Father, which has been achieved.
I find the Father has not been prepared to take responsibility for his errors of judgment, and has therefore taken no steps to address them. I find that if X were living with him, the Father would continue to undermine the Mother’s role in X’s life, which may result in X losing the benefit of her meaningful relationship with her Mother.
I also have regard to X’s expressed wish to live with her Mother and to the Mother’s life plan which I am satisfied is well thought out and achievable. I find the Father has no life plan for the future and his proposal for X to live with him, unsatisfactorily vague. I find the Father’s future living arrangements and financial circumstances uncertain. He says he may not stay in (omitted) and his father believes he has plans to move to the (omitted). X’s relationship in a live in setting with Ms J is also untested and that relationship is relatively new. I also have regard to the expert’s assessment that the Father is more committed to competing with the Mother than to X’s welfare.
On a weighing of these findings, I agree with Ms H and the Independent Children’s Lawyer that X’s welfare is best served if she is living primarily with her Mother.
The matter has a long litigation history and X has experienced many changes in her living arrangements and her schooling. I agree with Ms H that X has suffered because of the parties’ inability to adhere to a plan that supports and meets X’s developing needs. She has never enjoyed a settled routine. X is well aware her parents do not get on, and has witnessed frightening physical altercations and abusive verbal exchanges between them. She has heard each of her parents denigrate the other and has seen abusive text messages passing between them. The situation has not improved in the 7 years since separation. I agree with Ms H that ‘more of the same’ is not in X’s best interests. I find that ‘more of the same’ is X living with the Mother on the (omitted) [or X living with the Father in (omitted)]. ‘More of the same’ would mean X would have no relief from the parental acrimony which she is currently finding so difficult to manage. Ms H reports[49]:
There is overwhelming evidence in the research that growth and development of social emotional ability and regulation affects health, wellbeing, competence of children throughout their life.
And repeats in cross examination[50]:
[this].. can have long-term effects on emotional development and the sense of self and the ability to interact positively with other people in the family and the community.
[49] At page 13 of Exhibit 1
[50] At page 17 of 27 January 2016 transcript of proceedings
Ms H strongly supports the Mother’s proposal to relocate with X to (omitted). In her view, it will benefit X to reduce the times she must manage the parental conflict. She says the Mother will feel she has more control over her life, and make her feel safer. She does not feel safe now with only a small support group she has not known long, without family, without secure accommodation and without stable employment.
The Mother has a life plan if she is permitted to relocate. She will complete her (qualifications omitted) and save for a deposit on her own home. She will enrol X in a private school with a solid family connection. X will have the chance to pursue her talent and interest in the creative arts, particularly dance and music. She will have secure and loving child care support from her grandparents, her great grandmother, and her siblings. She will have secure accommodation in her parents’ home and immediate part time work in her parents’ business while she finds stable employment. She will ensure X maintains close contact with her Father by skype/telephone and will facilitate significant face to face time between them in Sydney and in (omitted) if the Father is able to travel.
The Mother’s parents were impressive witnesses and strongly support the Mother’s life plan. They enjoy a long stable marriage, have raised 4 children, and X is their only grandchild. They own their own large, comfortable home with a “beautiful garden”[51] in which they live with their adult son Mr A, who is a (occupation omitted). They have a lot to offer X, including education at a private school, access to dance, music and outdoor activities. They will support the Mother emotionally, physically and financially to settle into life there with her large extended family and her support network of old friends. They will accommodate her and X and help her find work through their wide business network. The maternal grandfather describes his daughter as “smart and a hard worker” and believes she will have no trouble obtaining work. It is clear the Mother and X are much loved, and that Mr T and Ms D have long hoped for the Mother to relocate to (omitted) so she can rebuild her confidence and get her life back on track. It is clear that they want to give X the opportunities she has missed out on, and help her nurture her artistic talents and reach her potential. It is also clear the maternal grandparents support X’s relationship with the Father, despite their concerns about his conduct and his character.
[51] At paragraph 8 of maternal grandfather’s affidavit sworn on 4 January 2016
I agree with Ms H that the relocation will help the Mother remain focussed on X’s needs, reduce the influence of the Father on her day to day life and reduce X’s exposure to the parental conflict. I find the Mother is vulnerable when under stress and will benefit from the strong support of her family. I find considerable uncertainty in the Mother’s circumstances into the future were she and X to remain on the (omitted). I have determined that the Mother will be permitted to relocate with X to (omitted).
I accept Ms H’s and the Independent Children’s Lawyer’s proposal that X needs as much interactive time with the Father as is practicable. She will not have the chance to spend time with her Father regularly during school terms. I agree with Ms H a trip in excess of 2.5 hours + travelling time to and from the airport at each end is too onerous for a young child for a weekend, so X will not travel to Sydney during term times as a regular event. However, the Father will have the opportunity to travel to (omitted) at any time on the giving of notice to the Mother.
X will spend time with her Father during the Queensland school holidays. I agree with the Mother and Ms H that X should spend the majority of two of the short school term holidays with the Father and a block of time in the Christmas holidays. Should the Father choose to spend time with X in the third school holiday period, he will be at liberty to give the Mother notice that he intends to travel to (omitted). I have given consideration as to whether X should spend 3 or 4 weeks in the long school holidays with the Father. The Independent Children’s Lawyer and Ms H support a period of 4 weeks. The Mother seeks 3 weeks. I have decided to adopt the Mother’s proposal. X will need time to relax with family and establish relationships with new friends. Holidays are an opportune time for this to occur. Three consecutive weeks is a solid block period for a young child to be away from her residential base. On a balancing of her needs, I am not persuaded three rather than four weeks with the Father during that holiday period will prejudice X’s relationship with the Father and I am persuaded she will benefit from a solid block of Christmas holiday time with her Mother and maternal family. I have decided to split the Christmas holidays approximately equally between the parties. As proposed by the Mother, she will meet X’s costs of travel to and from Sydney for all school holidays she will spend with the Father.
X will need frequent opportunities to communicate with the Father by telephone and skype, and the orders provide for those opportunities. X will not be restricted in any way from contacting her Father at any time. The Father will be at liberty to speak to X twice weekly when the Mother will initiate one call and the Father the other.
Once X relocates, changeovers will occur at Sydney airport or at McDonalds in (omitted), unless the parties otherwise agree.
While X remains living in New South Wales, she will spend time with the Father on alternate weekends and for the first half of the April school holidays. Changeovers will occur at the school or at (omitted) Railway Station. I make this change from the interim orders because it was the Father’s proposal to the Mother to make this variation.
I agree with Ms H that the Father will be upset by this decision, and may find it difficult to hide his disappointment from X. However, if that is so, I urge him to seek professional assistance to help him support X with the decision. In her report, Ms H states that X will find the change much easier to accept if her parents take the responsibility as adults to provide her with only age appropriate information and indicate their support for the decision. I also agree with Ms H that the strength and quality of X’s relationship with her Father into the future will be determined to an extent by how he manages his reaction to the decision.
The parties will be restricted in the manner in which they communicate with each other to avoid X being exposed to the parental conflict. I agree with Ms H’s recommendation that the parties’ telephone contact be restricted to emergencies only and that opportunities for hurtful text messages should be minimised. She recommended the parties use a communication book which would travel with X. In her view, this would cut out a lot of negativity, because X would have the book in her care, she could read it and talk about it which each parent. I have decided not to make an order about a communication book because I am not satisfied the Father will confine his entries to issues concerning X’s welfare. The parties will communicate by email unless an emergency when they will use text message or telephone.
A sealed copy of these orders will be provided to X’s school.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of X.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge Sexton
Date: 18 March 2016
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