Calvo and Calvo

[2013] FCCA 1707

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALVO & CALVO [2013] FCCA 1707

Catchwords:
FAMILY LAW – Father wishes to relocate with eleven year old daughter to Cairns area – following separation the child primarily lived with the mother for over six years – relationship between mother and child fractured – child went to live with father fifteen months ago – father remarries – child embedded in new blended family – child’s view clear – effect of mother’s mental health on the mother/ daughter relationship – the mother’s lack of insight.  

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Caravaggio & Caravaggio [2011] FamCA 254
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

Applicant: MS CALVO

Respondent: MR CALVO

File Number: DGC 1702 of 2013

Judgment of: Judge Curtain

Hearing date: 11 October 2013

Date of Last Submission: 11 October 2013

Orders Delivered at: Melbourne

Orders Delivered on: 21 October 2013

Reasons Delivered at: Melbourne (in Chambers)

Reasons Delivered on: 1 November 2013

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Arnold

Solicitors for the Respondent: Chris Woods And Associates

ORDERS

THE COURT ORDERS THAT:

1. All previous parenting orders be and are hereby discharged.

2. The Father and the Mother have equal shared parental responsibility for the child, [X] born [in] 2002 (“the child”).

3. The child live with the Father.

4. The Father be permitted to relocate the residence of the child to the Cairns area in Queensland on or after 21 December 2013, subject to Order 6(a)(i) *which, subject to the parents’ wishes, shall be a continuation of Order 5(b) in 2013/14 for the first half of the long summer vacation*.

5. Until Order 4 above comes into effect, the child spend time and communicate with the Mother as follows:

   (a)each alternate weekend from 9.00 am Saturday to 1.30 pm Sunday, continuing with the weekend of 2 November 2013;

   (b)for two (2) consecutive weekends out of three (3), commencing 16 November 2013 for the same days and times as above;

   (c)on special occasions for a reasonable time as agreed between the parents; and

   (d)at any time by agreement between the parents in writing.

6. Upon the operation of Order 4 above, the Mother spend time and communicate with the child as follows:

   (a)each Queensland school holiday period by agreement between the parents and in default of agreement:

   (i)the first half of the long summer vacation; and

   (ii)the first ten (10) days of each of the term holidays.

   (b)at any time the child visits Melbourne with days and times to be agreed between the parents in consultation with the child;

   (c)at any time the Mother visits Far North Queensland with days and times to be agreed between the parents; and

   (d)subject to Order 8 below by telephone, Skype and other electronic methods on a liberal basis, and with the Father to co-operate with any reasonable requests by the Mother to facilitate and assist with such communication.

7. The Father shall do all reasonable things necessary to facilitate and direct the child to have frequent and regular communication with her Mother, after they relocate to Queensland.

8. Both parents have liberal telephone, SMS text message and email communication with the child when she is living with or spending time with the other parent, and in default of agreement as follows:

   (a)by telephone three (3) times per week, and if not agreed, Monday, Wednesday and Friday between 5.00 pm to 5.30 pm and Saturday between 11.00 am to 11.30 am; and

   (b)both parents ensure that the child has access to her smart phone and ipod during non-school times and between 8.00 am to 8.30 am each day for the purposes of telephone  communication, SMS text message, email and the like.

9. The Father shall be responsible for booking and paying promptly the full ticket cost (whether discounted, on special or otherwise) of four (4) return flights per year to Melbourne to enable the child to spend time with the Mother, and he shall immediately advise the Mother in writing of the particulars of each and every booking.

10. The Mother and the Father do all acts and things necessary to deliver and/ or collect the child from the airport at the commencement and conclusion of time with the Mother on such terms and conditions as agreed between the parents in writing.

11. The parents, their servants and agents be and are hereby restrained by injunction from taking or sending or attempting to take or send the child from the Commonwealth of Australia, save and except for with the written consent of the other parent first obtained, which shall not be unreasonably refused. 

12. The Australian Federal Police remove the correct name of the child and the child’s name and date of birth which is also recorded as [X] born [in] 2002, from the Airport Watch List at all points of international arrivals and departures in Australia.

13. Should the parents agree to overseas travel for the child, they shall provide to the other no less than thirty (30) clear days before departure, a copy of the e-booking or tickets, the written itinerary of the intended travel including flight details, details of the proposed accommodation, details of any travelling companion, length of travel and expected date of return and contact telephone numbers whilst she is overseas.

14. Whilst overseas the parent with the child shall:

    (a)facilitate the child telephoning the other parent within twelve (12) hours of arrival;

    (b)facilitate and encourage the child to contact the other parent upon the other parent’s request to do so;

    (c)provide the other parent with details of any emergency contact and telephone contact to be utilised by the other if required (being the other’s mobile telephone number and/ or landline if practical), and ensure that the telephone is on international roaming; and

    (d)contact the other parent as soon as practicable in the event of any emergency regarding the child.

15. Whilst denying the need for this order by the Mother, for twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child lives with her), and during all such time spent, the Mother be and is hereby restrained by injunction from ingesting, consuming, using, or otherwise being under the influence of, alcohol (or having a blood alcohol content above 0.05).

16. For twenty-four (24) hours immediately prior to the commencement of any time spent with the child (including any period during which the child lives with him), and during all such time spent, the Father be and is hereby restrained by injunction from possessing, ingesting, consuming, using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:

    (a)any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and

    (b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the Father strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

17. Neither parent denigrate the other parent or their partner in the presence or hearing of the child or allow the child to remain in the presence or hearing of any person who denigrates the other party or their partner.

18. Each parent shall promptly keep the other informed of:

    (a)any significant health issues concerning the child;

    (b)any proposed elective health treatment and its expense in relation to the child;

    (c)their current mobile telephone numbers, their current residential addresses and their current email addresses; and

    (d)the child’s mobile telephone number, Skype address and email address.

19. The Father promptly arrange for and the Mother shall do all things necessary to be permitted to receive all correspondence, notices, photographs or like information from the child’s school at the Mother’s expense and be permitted to attend all school matters and events normally attended by parents and communicate with the school regarding the child.

20. All extant applications be otherwise dismissed.

21. Either parent shall have liberty to apply pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 (“the Slip Rule”) should they deem it relevant.

22. *The Mother be at liberty to provide a copy of the Family Report by Family Consultant Ms S, dated 22 August 2013 (“the Report”), if accompanied by a copy of this Order to her counsellor AND that no person shall release the Report, or provide access to the Report, to any other person.*

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.

B.*The effect of s.121(1) of the Family Law Act 1975 and Order 22 above is not limited to the parties to the proceedings.

C.Section 121(1) of the Family Law Act 1975 provides:

(1)  A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a)  a party to the proceedings;
 (b)  a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)  a witness in the proceedings;

is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.*

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Curtain delivered this day will for all publication and reporting purposes be referred to as Calvo & Calvo.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 1702 of 2013

MS CALVO

Applicant

And

MR CALVO

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a rather sad case. The mother is very distressed about the father’s proposal to relocate with their only daughter, now 11 years, to live in the Cairns area of Queensland.  This distress is further fuelled by the mother-daughter relationship breaking down in July 2012 with the result that [X] went to live with her father after being in the primary care of the mother for more than six years. 

2. To complicate it further, there have been recent changes in the father’s household.  Last year he reconnected with a former lover with whom he had a relationship some 16 years ago.  They were recently married and his wife now forms part of his household along with some of her children from her former marriage.  [X] appears to be very happy living with her father and her new-found blended family, particularly as she has developed a close relationship with the wife’s daughter, [Z].

3. A Family Report was prepared by an expert, Ms S, who at page 19 , paragraph 74 says the following:

   “[X] is a ten year old child [sic] who has suddenly had a whole new world opened up to her that includes a step mother who seems to provide some appropriate attention as well as some step siblings and maybe a half-sister which for [X] is all very exciting and new. [X] is no longer an only child living with a parent who has not provided her with the attention that she craved but she has always received attention from Mr Calvo. Now [X] finds that living with Mr Calvo her life has more meaning…”

Background

1. The Applicant, Ms Calvo was born [in] 1970 and therefore is currently aged 42 years and soon to be aged 43 years.  The Respondent, Mr Calvo was born [in] 1969 and is currently aged 44 years.  They commenced cohabitation around 1999, were married [in] 2001 and separated under one roof in September 2005 and physically on 28 November 2005. 

2. As indicated above there is one child of the marriage, [X] born [in] 2002 who is now aged 11 years.  On separation [X] remained in the primary care of her mother and the parties entered into consent orders on 21 August 2006 which, I understand, effectively documented the then caring arrangements arrived at by the parents following separation.  Those orders were as follows:

   “1. THAT the children [sic] of the marriage [X] born [in] 2002 live with the wife.

   2. THAT the said child will spend time with the husband as follows;

   a) Every Tuesday night from 4.30pm until 7.30am on Wednesday;

   b) On alternate weekends from 4.30pm Friday until 4.30pm Sunday;

   c) Every other weekend from 4.30pm Friday until 9.30am Saturday;

   d) On four occasions during the year when the husband’s Rostered Days Off fall on a Monday following a weekend as set out in (b) that the child continue to spend time with the husband until 4.30pm on that Monday, on weekends not followed by a public holiday;

   e) On the husband’s other Rostered Days Off from 9.30am until 4.30pm;

   f) At other such times as are agreed between the parties.

   3. THAT otherwise the wife’s application and the husband’s response be dismissed.

   4. THAT the wife and husband have joint responsibility for the long term care, welfare and development of the said child.

   AND THE COURT NOTES:

   5. THAT the husband undertakes to waive any extra benefits which he would be able to claim from Centrelink.

   6. THAT pursuant to S65DA(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.”

3. It was the mother’s case that those very early orders should be wholly and totally reinstated save that time with should generally occur on holidays, so that [X] lives primarily with her again and the father spends time with the child, subject to his change of residence.

4. As commented on above the father rediscovered a former love of his life in 2012, a lady previously known as Ms M.  They have been cohabitating since September 2012 and were married [in] 2013.  This lady has four children from her prior relationship, [A] aged 8 years, [Z] aged 12 years, [B] aged 13 years and [Y] aged 16 years.  I note that the father says at paragraph 14 of his affidavit filed 26 September 2013 the following:

   “…Ms M, [Y] and I believe that I am actually the father of [Y] from the previous relationship in [G], but I have only discovered this recently in September 2012…”

The evidence

1. The Applicant mother relied on the following documents:

   a)Outline of Case filed 10 October 2013;

   b)Initiating Application by the mother filed 24 June 2013;

   c)Affidavit by the mother affirmed and filed 24 June 2013;

   d)Affidavit of the mother affirmed 26 August 2013 and filed 27 August 2013;

   e)Affidavit of the mother affirmed and filed 16 September 2013;

   f)“Final orders made 21 August 2006”; and

   g)Family Report of Ms S dated 22 August 2013.

2. The Respondent father relied on the following documents:

   a)Outline of Case filed 11 October 2013;

   b)Response to Initiating Application filed 1 August 2013;

   c)Affidavit by the father sworn or affirmed and filed 26 September 2013;

   d)Affidavit by Ms M sworn or affirmed 6 August 2013 filed 29 August 2013; and

   e)Family Report of Ms S dated 22 August 2013.

The Applicant’s evidence

1. The mother appeared in person.  She told the court that she was being assisted by the Family Law Assistance Program (“FLAP”) through the Monash-Oakleigh Legal Service Inc.  She also informed the court that although she wanted at one stage to apply for a grant of legal assistance from Victoria Legal Aid, she was advised not to do so as her application would be rejected. If this is accurate, then it is a sad day for Victoria Legal Aid if its funding situation is believed to be so poor in Federal matters that people, who on the face of it meet their means and merits test, are discouraged to even apply by those who are assisting the disadvantaged.   

2. Initially the mother did not want to cross-examine the Family Report Writer about the contents of her report, apparently concerned that she may be liable for the expert’s costs to give evidence.  I subsequently arranged for the court to pay those costs and warned the mother that if she did not test the contents of the Family Report through cross-examination, it will go into evidence unchallenged.  She then agreed that she wanted the expert available for cross-examination.

3. I then explained to her how a trial would unfold procedurally and her role in it.  She then corrected parts of her Outline of Case which contained many errors.  She then clarified her proposals about [X] remaining in her primary care and living with her in Melbourne whilst the father would relocate to Cairns and be able to see her on holidays. 

4. The mother said from the bar table that recently [X] changed her position and wanted to remain in Melbourne until she completed Grade 6 and at that time would then reassess her circumstances.  The difficulty with that allegation was that:

   a)it did not appear in the Family Report;

   b)it is not in any of the mother’s material filed with the court; and

   c)there is no corroboration of the  alleged statement.

5. The mother said that third parties had heard this comment and I explained to her that unless they are called, the court could put little weight on this allegation.  The mother did not seek to call any other evidence.

6. After her opening statement (with assistance from the court) she underwent evidence-in-chief and cross-examination.

7. In cross-examination she was reminded about paragraph 70 of the Family Report which said, “…It would also be of assistance if Ms Calvo was to obtain a brief report from her treating psychiatrist Dr G…”  She was asked why there was no affidavit from this Dr G and the mother conceded that she had not done this but she said she had some letters from different experts about her depression and anxiety.  I requested her to produce the letters. One in particular dated 5 August 2013 by an Mr L, psychologist was of some relevance.  It says as follows:

   “…I have seen Ms B (apparently the mother sometimes reverts to her maiden name) for 20 sessions to date; the first appointment was on August 2012 and the last one in July 2013.

   At the beginning of counselling, Ms B reported significant symptoms including lack of concentration, loss of confidence, loss of enjoyment of life, lowered energy, irritability, negative self-appraisal, anxiety, depressed mood, problems falling asleep and maintaining sleep; decreased social interaction; and significant uncertainty and preoccupation about the fate of her 10 year-old daughter who has gone to live with her father since July 2012.

   In my view Ms B, despite depression and anxiety, has been functioning very well over the years…Ms B has made some progress, however she is still affected by the symptoms described above as she continues confronting the fear of losing her daughter…”

8. She also produced an undated letter from a Dr C which says as follows:

   “…Ms Calvo is suffering from depression, it’s well treated and controlled with antidepressants and counselling with both a psychiatrist and psychologist.

   I do not consider Ms Calvo to be irrational or of unsound mind and is capable of shared care for her daughter.  Ms Calvo has been constantly employed.”

9. I note that the author talks about shared care and not sole primary care. 

10. However, as I explained to the mother the court could not attach too much weight to the contents of these letters given the authors were not made available for cross-examination and their views and statements were not tested. 

1. The mother agreed in cross-examination that although she is stable at the moment she continues to suffer from anxiety and depression and its impact on [X] and their relationship was uncertain.  The mother also said that at the time [X] moved to her father’s residence she had a discussion with her, when [X] agreed that she would spend time with her mother.  The mother also said that she did not want to upset [X] and so did not oppose her living with her father. 

2. It was put to her that in July 2012 when [X] went to live with her father the relationship between the mother and [X] had broken down.  The mother said in answer, “…to a degree, yes…”

3. It was also put to the mother that she needed to take responsibility for the breakdown for the relationship with [X] and needed to do some work with [X] to repair their relationship.  In answer the mother said she would agree, “…a little bit to that…”

4. In her affidavit affirmed 24 June 2013 the mother says at paragraph 28 the following:

   “Since 23 February 2013, I have visited [X] a couple of times and have had regular contact with her.”

5. It appears from the evidence, that until I made the order on 6 August, 2013, [X] did not spend any overnight time with her mother from July, 2012.  The father says at paragraph 11 of his affidavit filed 26 September, 2013 the following:

   “…Overnight time had been non-existent for a year.  I made efforts to keep up communication between [X] and her Mother, and they did communicate and had some daytime time together.  [X] preferred to live with me and not stay overnight at her Mother’s.”

6. However it should be noted that he took [X] to [G] in December 2012 and did not return to Australia for around 10 weeks.  I questioned the father about this period when the mother and child were separated and he attempted to justify the lengthy separation period to him falling ill, but it appears to me he could have made greater effort to at least have some frequent and regular communication established between the mother and [X].

7. On her return from overseas [X] told the mother that she did not want to see her as she wanted to spend time with her step-mother, “…and her child…”, whom I assume to be [Z] given the mother described that child as being close in age to [X].

8. However since the order of 6 August 2013, the circumstances have changed.  I was told that it was common ground that [X] spent time with her mother each alternate weekend Saturday to Sunday overnight:  The father says this has occurred on four or five occasions.  The mother says it was more but the number in my view is less relevant to the fact that clearly the relationship between the child and her mother is on the mend and improving.  The mother conceded to me in her final address that the relationship is developing.

9. The mother was also cross-examined about her drinking.  She said in evidence on one night in question that, “…if I chose to drink that night, maybe I would have six cans of scotch and coke…”  She also conceded in cross-examination that notwithstanding that she was on medication for depression she did drink with that medication and her defence to doing so was that she was never told not to. 

10. She conceded in cross-examination that Mr Calvo was a good parent and she had no concerns in terms of his day to day care of [X], save for his use of marijuana. 

11. Whilst the mother complained about violence during cohabitation with the father, she did say the father was not violent towards [X]; he was violent towards the mother.  She said that that violence was mainly verbal with some pushing and conceded that both of them prior to separation shouted at each other, but generally she claimed she was the victim.

The Respondent’s evidence

1. The father gave evidence that whilst he did not have a contract of employment in the Cairns area, he did have a number of contacts that would lead to employment.  He explained that potential employers in Queensland are very sceptical of people who are seeking jobs while remaining interstate and, “…(y)ou have to be on the ground …” to get a serious employment offer. 

2. He said further that he has located two schools that are suitable for [X], being [omitted].  He said he was still investigating and looking at other schools so that, “…all the kids can be at the same school…” 

3. He gave evidence that he had recently sold his former home and that he has over $400,000 to help with the proposed relocation.  When asked about his intention to remain in the Cairns area or subsequently seek to reside in [G], he quickly said, “…(i)t’s our intent to remain in Cairns…” 

4. In his affidavit filed 26 September 2013 at paragraph 22, the father set out that his current wife’s parents, that is his parents-in-law, will be soon relocating to retire and live in Cairns, where they currently own a house.  He also said that his parents-in-law will continue to assist them both in [G] and Cairns.  I also note paragraph 24 of the same affidavit where he says that he has previously lived and worked in Cairns and the Cairns region.  This gives me some comfort that the transition should be smoother for [X].

5. The father, in answer to a question put by the mother, said, “…I want her to have a relationship with you, [Ms Calvo].  On the contrary to what you might believe, I want her to be in a relationship with you …”  I found this answer believable given the relationship between the mother and the child has been improving over the last few months, and also because of the following exchange:

   Ms Calvo: “…So you will make it possible for [X] to come down and see me on the school holidays?”

   Mr Calvo: “Correct.”

   Ms Calvo: “Okay.  And if [X] turns around and says, no, she doesn’t want to go, you’re going to make her come on a plane?”

   Mr Calvo: “That’s correct.  You have got to remember, in [X]’s eyes from up in Cairns, it’s not just you she’s coming to see, she’s also coming to see the rest of the family, her friends at school.  So it’s not just where it’s like there’s attractions here for her too, even if she is annoyed with you.  There’s still attractions here for her.”

6. The father in his affidavit filed 26 September 2013 at paragraph 31 set out the following:

   “…[X] and I have discussed this, [that is moving to Cairns and spending time with the mother] amoungst [sic] many other things about the move.  She wants to come to Melbourne during school holidays for many reasons, including seeing her mother, her extended family, her friends and Melbourne attractions.  She is willing to stay with her mother to achieve this.  Under my proposals [X] will spend much more time with her mother.  It is currently a real struggle to get [X] to visit her mother, but she says she will willingly stay with her mother during school holidays…”

7. The father also gave evidence about the mother’s anxiety and depression during cohabitation, including attending a doctor regularly for treatment, her abrupt change in mood from warm and friendly to being cranky and difficult to live with, her hostility and coldness.  He emphasised her coldness towards [X]. 

8. When the mother was asked by me whether it had ever occurred to her that her illness has impacted on her ability to parent and made [X] adopt a negative view of her, she agreed it could have been a possibility.

9. There were a number of discussions between the bench and the mother and in my view she tried to justify or forgive her past behaviour because of her illness.  However there is no doubt in my mind that her depression and anxiety has affected, in a very negative way, the relationship between the mother and the child and has contributed significantly to the breakdown of the relationship between the mother and [X], which was also the view of the Family Report Writer.

The Family Report

1. As commented on earlier, there was a Family Report in this matter dated 22 August 2013 that was prepared by Ms S.  She was cross-examined by the mother but the father did not take issue with the report.  The cross-examination by the mother was not very effective and did not do anything to erode or undermine any of the comments and recommendations in the report.  I will comment further on the contents of this report in the conclusion to this judgment.

Relevant statutory legal principles

1. Section 60B(1) of the Family Law Act 1975 (“the Act”) sets out the objects of Part VII of the Act, to ensure the best interests of the child is met by:

   a)ensuring that child has the benefit of both their parents having a meaningful involvement in their life, to the maximum extent consistent with the best interests of the child; and

   b)protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   c)ensuring that the child receives adequate and proper parenting to help them achieve their full potential; and

   d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their child.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):

   a)the child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;

   b)the child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);

   c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child;

   d)parents should agree about the future parenting of their child; and

   e)the child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA of the Act directs that when deciding to make a particular parenting order the best interests of the child are the paramount consideration. Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the court in determining what is in the child’s best interests.

4. In making any parenting order, the court must to the extent it is possible and consistent with the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.

5. If the court is satisfied that the parents are to have, pursuant to s.61DA of the Act, equal shared parental responsibility, then subject to s.65DAA(6) of the Act, it must turn to ss.65DAA(1) and (5) of the Act to consider equal time, and if that is not appropriate in all the circumstances then ss.65DAA(2), (3), (4) and (5) of the Act requires the consideration of substantial and significant time.

6. In this case both parties agreed there should be an order for equal shared parental responsibility. Given that agreed position I will now turn to section 65DAA(1) of the Act and consider whether it will be in the child’s best interests and reasonably practicable for them to spend equal time with their parents.

7. The father’s case is one of relocation to live in the Cairns area with [X] and the new blended family.  On any view, it is not reasonably practicable for them to spend equal time given that the mother is to remain in Melbourne and has no plans to live in the Cairns area.  Moreover, given the damage done to the mother-daughter relationship recently and the comments in the Family Report about that, it is clearly inappropriate that there should be week about care.  The mother and the child’s relationship has been seriously damaged and could not successfully function in week about care; it would ultimately breakdown.  Clearly this is not in [X]’s best interests.

8. At page 17, paragraph 69 of the Family Report the author says as follows:

   “…[X] has a troubled relationship with Ms Calvo and from [X]’s account she and Ms Calvo fought a lot with Ms Calvo becoming physically aggressive toward her. [X] has no trust of Ms Calvo and did not feel that Ms Calvo was emotionally there for her…”

Section 60CC factors

1. The two primary considerations are set out in s.60CC(2) of the Act. The first primary consideration is:

(a) the benefit to the child of having a meaningful relationship with both of   the child's parents; and

1. In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:

   “The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life.  It does not give guidance to the interpretation of the phrase “meaningful relationship”.”

2. It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following:

   “…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.  It is a qualitative adjective, not a strictly quantitive [sic] one.”

3. At paragraph 170, the Full Court said as follows:

   “Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].”

4. It then went on to say that there are three possible interpretations of section 60CC(2)(a) of the Act and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.

5. The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:

   “(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).”

6. The ‘prospective approach’, which I will apply in this case, was set out at paragraph 118 as follows:

   “(c) the third interpretation is that the court should consider and weight the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).”

7. In my view, there is no doubt that [X] has a meaningful relationship with her father and this will be maintained by the proposed orders.  The difficulty with the mother is that the relationship between [X] and her is very strained but clearly is in the process of being repaired.  The proposed orders will support them developing a meaningful relationship in the future, if the current status continues and develops over time. 

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The mother was cross-examined on the topic of family violence and gave convincing evidence that it existed in this relationship when the parties cohabitated.  She said that there was often shouting and that they would shout at each other.  It was also the mother’s view that while she did not initiate it, she did certainly shout back at the father.  There are allegations by the mother of some pushing and shoving between them from time to time.  The father alleges that the mother would become angry to the point of kicking and punching, however that was not put to her in cross-examination.

2. The parties have been separated over seven years and there is no evidence that either of them has been involved in family violence towards the other since that separation. 

Additional considerations are:

1. To the extent that they are relevant, the additional considerations in sub-section 60CC(3) of the Act are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are      relevant to the weight it should give to the child's views;

1. The author of the Family Report sets out the following comments:

   “51. [X] drew a picture of her family which included Mr Calvo, Ms M, [Y], [B], [Z], herself, [A] and the dog [omitted].

   52. When [X] was asked what three wishes she would like she said, “I wish for my mum and dad to just work themselves out and not get me in the middle 'cos it’s making me stressed at school. I’d like to be in two places around Australia and visit [G]. No one says my mum can’t share me when she’s here so why can’t dad share me when he’s in Cairns and [G]?  I wish that I don’t have to be separated from any brothers and sisters in [G] while I’m over here and that mum would stop making a big fuss about this.””

   …

   “61. [X] was asked how she would feel if it was decided that she can live in Cairns and she said, “I’d kind of miss my friends at school but I’d feel happy. I’d get to go school in Cairns and make new friends and live with my brothers and sisters and get a new house. I’ve always wanted a new house.””

   …

   “64. [X] was asked if there was anything she would like tell the Judge and she said, “That I want full school year with my dad and to have school holidays with my mum….””

   …

   “69. [X] very much wants to relocate with Mr Calvo but [X] would want to live with Mr Calvo wherever he was living. It is my view that [X] feels secure with Mr Calvo and has depended on him to be there for her over the years. [X] has a troubled relationship with Ms Calvo and from [X]’s account she and Ms Calvo fought a lot with Ms Calvo becoming physically aggressive toward her. [X] has no trust of Ms Calvo and did not feel that Ms Calvo was emotionally there for her but [X] believed that Ms Calvo cares about her. [X] is quite mature for her age and being an only child she more than likely had to depend on herself when with Ms Calvo as she did not feel she could depend on Ms Calvo. [X] had no siblings for support at the times when she felt let down by Ms Calvo. [X] did feel supported by Mr Calvo and she also felt that he has been there for her. [X] was also aware of Ms Calvo drink driving which is totally unacceptable. It is my view that [X]’s view should have much weight placed on it.”

2. I accept the expert’s opinion on this topic.  [X] clearly wants to live with her father and his family in the Cairns area.

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents;

1. The Report Writer on this topic made the following comments:

   “53. When [X] [sic] was asked what the positive attributes about Mr Calvo were she said, “I like dad 'cos he’s like always caring about me and he tries to do his best about things I need, and dad wants to share me with my mum.”  When [X] was asked if there were any not so good aspects about Mr Calvo she said, “Well we all have our fights. I have my mum. I have my fights with dad 'cos I’m leaving my stuff around the house everywhere.”

   54. When [X] was asked what the positive attributes about Ms Calvo were she said, “Well mum’s also caring but when I used to live with her we’d always get in fights, but I can’t see myself in a relationship with my mum.”  When [X] was asked if there were any not so good aspects about Ms Calvo she said, “When I used to live with her she used to drink drive and she wasn’t taking her medicine and she got really mad and she was physical with me like she used to grab my wrist and make it go purple.”  [X] was asked if that happened much and she said, “Every night. I felt not loved by her and she would also talk on the phone with [names omitted] and I would always want to play with her and she wouldn’t give me that time.””

   …

   “65. When [X] came into the room where Ms Calvo was sitting, she just casually said, “Hello” to Ms Calvo. I explained this was about seeing how they get along. [X] said, “I don’t really get on with her.”…Initially [X] was a little withdrawn from Ms Calvo but she gradually relaxed and smiled at Ms Calvo as they played the game. [X] also made eye contact with Ms Calvo as they were playing…By this stage [X] seemed comfortable. They were interacting positively. Interactions were initiated by each of them at times. [X] responded positively when Ms Calvo initiated it and [X] initiated positive interaction with Ms Calvo…”

(ii)  other persons (including any grandparent or other relative of the child);

1. In relation to Ms M, the step-mother, the author of the report commented as follows:

   “55. When [X] was asked what the positive attributes about Ms M were she said, “I know she really cares about me and counts me as one of her daughters and she tries her best to help us…She really cares about us. I can see my dad and [Ms M] really bond. They really love one another. I think it’s good for dad to have someone in his life again.”…When [X] was asked if there were any not so good aspects about Ms M she said, “No, there’s actually nothing not good.””

2. During the preparation of the report, the writer undertook an observation session with [X], the father, Ms M and [Z] and made the following comments:

   “66. At the start they played Hangman on the whiteboard. [X] and [Z] were together doing the Hangman on the whiteboard. They all worked well as a team. [Z] and [X] seemed to enjoy being together. All of their interactions were of a positive nature. [X] was relaxed and comfortable and smiled easily. [X] was making eye contact with Mr Calvo, Ms M as well as with [Z]. Mr Calvo and Ms M were appropriate, caring and attentive. After Hangman they played Uno and [X] and [Z] enjoyed this game…”

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

1. Up until July 2012, this was not a major issue in this dispute.  Both of the parents did take, if not all opportunities to be involved and play a significant role in the child’s life, certainly did the best they could in the circumstances.  However, post July 2012 it is clear that the mother’s relationship with [X] had been strained and damaged with the result that they saw little of each other for around 12 months.  It is in the process of being redeveloped and the mother can now take an opportunity to participate in these matters in the future, notwithstanding that [X] will be primarily living in Cairns.

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

1. There is little evidence of this but it appears to me that both parents maintain the child to the extent of their capacity.

(d)  the likely effect of any changes in the child's circumstances,  including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

1. At page 15, paragraph 62 of the Family Report the author says:

   “62. [X] was asked how she would feel about living in Cairns and spending school holidays with Ms Calvo and she said, “I’d feel happy I could live in two places and see mum. I’d feel a little bit nervous 'cos I haven’t seen mum for a long time and I’d be happy to have some time away from my dad, just a break.”

   63. [X] was asked how she would feel if it was decided that she lives with Ms Calvo and then spends school holidays with Mr Calvo in Cairns and she said, “I’d feel very separated from my dad. I don’t like to be away from my dad. He’s always been there for me. I’d feel very unhappy and depressed.””

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. Like (i) this is an important issue in this case.  In the report [X] was asked how she got along with [Z] and she said, “(r)eally good we’re like two peas in a pod.”  In relation to [Y], [B] and [A], she said, “(w)e were over there the Christmas holidays. I feel like I’ve known them for five years. That’s how close we are.”

2. It appears to me that for whatever reason, [X] is very much embedded in her new “family” and she is very close to not only, her step-mother but her child of a similar age called [Z].  In my view, any change of her current living arrangements with the father, step-mother and her children would have a serious and deleterious effect on [X]’s well-being.  She has experienced living in this new, reconstructed family for some time and clearly is happy there.  In all the circumstances, this should be maintained. 

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

1. In this case I am pleased that it is common ground that the father will pay for four round trip airline tickets each year for the mother and [X] to spend time together during the holidays.  This is very significant as the mother is financially challenged and in making this offer the father has ensured that [X] has the opportunity of spending time with her mother regularly and frequently.  There will be an order for communication which if followed, will enhance the relationship between [X] and her mother.

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

1. At page 19, paragraph 73 of the report the Report Writer addressed this issue and this went unchallenged in cross-examination. 

   “73. It is my view that if [X] lives with Mr Calvo he will continue to be responsible for her intellectual needs and her emotional needs. It is my view that Ms Calvo would not deliberately harm [X] but as a result of drinking she would have some difficulty in meeting her own emotional needs let alone [X]’s emotional needs.”

2. She also said at paragraph 79 the following:

   “…Ms Calvo needs to take responsibility for the breakdown of her relationship with [X] and needs to be prepared to do some work with [X] to repair their relationship.”

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The Report Writer said that [X] is quite mature for her age.  Otherwise, there was no fact in issue in this dispute that touched in a significant way on any of these other matters.

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

1. Not relevant.

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. Generally the father cannot be criticised under this heading, whereas it appears that the mother with her depression and anxiety has in recent times had a poor relationship with [X].  The attitude of the mother to the child and her responsibilities of parenting were distorted by this sad and unfortunate illness that clearly impacted in a negative way on her role as a mother.

(j)  any family violence involving the child or a member of the child's family;

1. I have commented on this earlier.  There was pushing, shoving and yelling by the parents during the cohabitation.  The father suggests that sometimes the mother acted in a physical way in extreme circumstances.  This all occurred during cohabitation and there is no suggestion that it has continued since separation more than 7 years ago.  It appears that [X] was largely protected from this, but nonetheless there was family violence and this was grossly inappropriate with at least one negative effect that each party is suspicious of the other even today, and their communication is somewhat strained.

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family -- any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

1. There is no family violence order.

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. In my view, overall the order that I am going to make is least likely to lead to further proceedings and should enhance the welfare of the child as well as her relationship with both of her parents.

(m) any other fact or circumstance that the court thinks is relevant.

1. Not relevant.

The authorities

1. In Caravaggio & Caravaggio [2011] FamCA 254 the learned Judge said as follows:

   “36. Since the 2006 amendments to Part VII there have been a number of cases in which the Full Court of the Family Court has discussed the approach to relocation cases.  In particular, Taylor & Barker (2007) FLC 93-345, Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, McCall & Clark (2009) FLC 93-405 and Hepburn & Noble (2010) FLC 93-438.

   37. In Taylor & Barker their Honours in the majority (Bryant CJ and Finn J) referred to Goode & Goode where the Full Court set out the pathway to be followed in parenting cases.  The majority specifically adopted the now oft quoted par 65.    In the context of the appellant’s assertion that the trial Judge had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue instead of following the course referred to in Goode & Goode, the majority in Taylor & Barker held there was no substance to this ground of appeal.  They held at par 60:

   In our view, his Honour dealt with the relocation proposed in the context of his consideration of s 60CC and s 65DAA, at least in so far as it was possible to do so.  It should be implicit in our conclusion in relation to this ground, that a relocation proposal should continue to be considered and evaluated, as far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, as we will shortly explain, such a proposal now also needs to be considered in the context of s 65DAA.

   38. In McCall & Clark the Full Court discussed and incorporated the matters of principle from Sealey & Archer.  Relevantly their Honours said:

   60.    In Sealey & Archer [2008] FamCAFC 142 the Full Court (Bryant CJ, Finn and Thackray JJ) said at paragraph 63:

   While it has been recognised that the Act does not provide any express direction or guidance as to the overall order in which the provisions of Part VII must be applied (Taylor & Barker (2007) FLC 93-345 at [62]), the legislation does require in s 61DA that when a court makes a parenting order, it must apply the presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility for the child (unless there are circumstances in which the presumption does not apply, or in which it would be inappropriate to apply it, or it is rebutted), and it further requires in s 65DAA that if there is to be equal shared parental responsibility for the child, consideration must be given to the child spending equal time (or if not, substantial and significant time) with each parent.

   39. And at pars 66 and 67:

   Again as was recognised in Taylor & Barker (supra, see in particular paragraphs 58 and 77-83), in a case which involves a proposal that there be a significant change in the place where a child lives, it is appropriate for a court in its application of s 65DAA, and particularly s 65DAA(5), to canvass the advantages and disadvantages of a proposal “to re-locate” the child.  We would also expect that the court would have addressed the matters arising under s 65DAA(5) in the context of its consideration of relevant s 60CC matters.

   In making the latter observation, we should say that we do not see anything said in Taylor & Barker as suggesting that a trial judge would ignore the relocation proposal when making the necessary s 60CC findings…

   No doubt frequently, as in the instant case, the non relocating parent’s proposal will be for an equal shared care arrangement, facilitating the consideration of matters under s 65DAA as one of the proposals, and not as an abstract exercise.

   In our view, it is inevitable, given the provisions of the legislation, that the exercise to be undertaken will, on its face, involve dual consideration of some matters.  For example, consideration of matters under s 60CC(3)(d) (the likely effect of any change in the child’s circumstances) and matters in s 65DAA(5)(a) and (b) and s 60CC(3)(e) (practical difficulty and expense of a child spending time with a parent) and s 65DAA(5)(a), (b) and (c) involve examination of similar criteria.

   40. Thus relocation cases are to be approached as follows:

   they are parenting cases to be determined in accordance with Part VII;

   the child’s best interests is the paramount but not the only consideration;

   a relocation proposal should be considered and evaluated in the context of making necessary findings in relation to the relevant s 60CC matters and, where relevant, s 65DAA;

   in its application of s 65DAA, and particularly s 65DAA(5), it is appropriate to canvass the advantages and disadvantages of a proposal to re-locate the child.

   41. It is still the case that neither party bears an onus to establish that a proposed change or the continuation of an existing arrangement will best promote the best interests of a child.  AMS v AIF (1999) 199 CLR 160.  Notwithstanding a parent’s right of freedom of movement, this must defer to the child’s best interests. (U & U (2002) FLC 93-112).  As with any parenting case subject to affording the parties procedural fairness, the Court is not restricted to their proposals. 

   42. More recently, the High Court published MRR v GR (2010) 240 CLR 461.  This relocation case related to a parent’s proposal to leave Mt Isa with the parties’ child and live permanently in Sydney.  The child’s other parent proposed to remain in Mt Isa and applied for equal time orders.  At par 9 of their reasons the High Court said:

   Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.

   43. At par 13 the High Court said:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist[12]. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   44. And at par 15 the High Court explained:

   Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).  Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”

Conclusion

1. Overall, it is my view that the appropriate outcome of this case is contained in the comments of the Family Report Writer at page 20 of her report where she says as follows:

   “76. It is my view that [X] should continue to live with Mr Calvo. If [X] was to return to the care of Ms Calvo it is my view that [X] would not emotionally manage this and as a result she may suffer serious emotional damage. It is my view that under these circumstances [X] would also feel angry toward Ms Calvo which would only harm their relationship further. [X] may also start to feel angry toward Mr Calvo which would leave her very vulnerable feeling she had no support or no-one to depend on to meet her emotional needs. [X] is moving into a critical age and stage of development for young girls and any issues they experience may result in long-term emotional effects that may require treatment. It is my view that if [X] had to return to the care of Ms Calvo she would feel devastated.

   77. It is my view that [X] should live with Mr Calvo as otherwise she would suffer emotionally which makes relocation a vexing issue. For the past twelve months, Ms Calvo has had a very limited role in [X]’s life and has not contributed to [X]’s emotional or intellectual requirements. In addition, [X] has spent very little time with Ms Calvo and no overnight time [this has recently changed]. This is not the choice of Ms Calvo or Mr Calvo but has come about as a result of [X] withdrawing from Ms Calvo as she felt hurt by Ms Calvo. In my view the relationship between [X] and Ms Calvo needs assistance through counselling. If [X] starts spending time with Ms Calvo without some assistance then nothing would have changed or been resolved so there is a risk that it will not work for [X].”

2. The mother gave evidence that she had arranged for and attended some counselling for herself and [X].  The father also said he had arranged this with another counsellor, but it appears the mother could not afford to use this service.  I expect the mother to continue to attend her expert in the future and the father to encourage [X]’s attendance.  The mother should also use this expert to assist her in developing some insight into [X]’s needs and views.  To that extent, she is at liberty to produce a copy of the Family Report at this counselling to better inform the expert of the issues. 

3. The writer went on to comment further:

   “78. It is my view that it would be in [X]’s best interest to relocate with Mr Calvo from the point of view that [X] needs to continue living with Mr Calvo and it would not work for [X] if she had to return to the care of Ms Calvo at least without appropriate, professional intervention. It is my view that Mr Calvo will ensure that [X] spends time and communicates with Ms Calvo. Mr Calvo has encouraged [X] to maintain a relationship with Ms Calvo but the relationship became troubled as a result of Ms Calvo’s behaviour toward [X] rather than Mr Calvo interfering.”

4. In all the circumstances of this case and upon hearing and reading the evidence, it is the court’s view that it is in the best interests of [X] to reside with her father and that the relocation, also on balance, is in her best interests.  It is my observation of the parents in this case that basically they are both good people that to some degree have different interpretations of events, but ultimately have [X] as their focus.  In a real sense it is a tragedy that the mother suffers from depression and anxiety and sometimes has abused alcohol, with a net result that the relationship between [X] and her mother has been seriously damaged.  We are now in a transition where that relationship is growing over time but sadly in real terms the mother is not currently a realistic option to have primary care of [X].  I adopt the assessment by the expert in the Family Report and her many comments and recommendations.  

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Curtain

Date: 1 November 2013