Campion and Alburty
[2011] FMCAfam 232
•23 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAMPION & ALBURTY | [2011] FMCAfam 232 |
| FAMILY LAW – Parenting – child aged four years – best interests of the child – acrimonious relationship between parents – whether presumption of equal shared parental responsibility applies – allegations by mother of violence, harassment and abuse by the father towards her – mother opposed to child spending any time with father – issue of relocation – mother proposing to relocate with the child from Victoria to Queensland. |
| Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA |
| AMS & AIF (1999) 199 CLR 160; [1999] HCA 26 Chappell & Chappell (2008) 39 Fam LR 627; [2008] FamCAFC 143 H & R [2006] FamCA 878 Marvel & Marvel (No.2) [2010] FamCAFC 101 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92 MRR & GR (2010) 240 CLR 461; [2010] HCA 4 |
| Applicant: | MR CAMPION |
| Respondent: | MS ALBURTY |
| File Number: | MLC 3114 of 2010 |
| Judgment of: | Whelan FM |
| Hearing dates: | 27 & 28 January 2011 3 February 2011 |
| Date of Last Submission: | 3 February 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Ambrose |
| Solicitors for the Applicant: | Kennedy Partners |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Carew Counsel Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Ms McCarthy |
| Solicitors for the Independent Children’s Lawyer: | Marshalls & Dent |
ORDERS
That all previous parenting Orders be discharged.
That the mother have sole parental responsibility for the child [X] born [in] 2007 (“the child”).
That the child live with the mother.
That the father spend time with the child during the following periods:
(a)From the making of the final orders until 1 April 2011 on each Friday from 4.30pm until 6.30pm.
(b)From 9 April 2011 until 30 April 2011 on each Saturday from 9.30am until 12.30pm.
(c)From 7 May 2011 to 25 June 2011 on each alternate Saturday from 9.30am until 3.30pm.
(d)From 2 July 2011 to 20 August 2011 on each alternate Saturday from 9.30am until 5.30pm and on the Friday of the other week from 4.30pm until 6.30pm.
(e)From 27 August 2011 until 15 October 2011 on each alternative Saturday from 3.30pm until 10.30am on the Sunday and on the Friday of the other week from 4.30pm to 6.30pm.
(f)From 22 October 2011 to 10 December 2011 from 9.30am on each alternative Saturday until 4.30pm on the Sunday and on the Friday of the other week from 4.30pm until 6.30pm.
(g)From 17 December 2011 and until school commences from 4.30pm on Friday until 6.30pm on Sunday in each alternative week and from 4.30pm until 6.30pm on the Friday of the other week.
(h)Once school commences, from:
(i)after school on the Friday until the commencement of school on the Monday in each alternative week unless the weekend is a long weekend when the time will extend to the Tuesday morning; and
(ii)from after school until 6.30pm on the Friday of the other week.
School holiday periods:
(i)During the first school term holidays from after school on the last day of the school term until 6.30pm on the following Tuesday.
(j)During the second school term holidays from after school on the last day of term until 6.30pm on the following Wednesday.
(k)During the third school term holidays, and in each term holiday thereafter, from after school on the last day of term until 6.30pm on the following Thursday.
(l)For a period of one week during the 2011 – 2012 Christmas holiday period, being the first week in January from 10.30am on 1 January 2012 until 6.30pm on 7 January 2012.
(m)During the Christmas holiday period from 2013, for a period of one week from 10.30am on 1 January until 6.30pm on 7 January and from 10.30am on 15 January until 6.30pm on 21 January.
Special Days and Birthdays
(n)For Christmas as follows:
(i)from 4.30pm on Christmas day until 4.30pm on Boxing Day in 2011 and each alternative year thereafter;
(ii)from 4.30pm on Christmas Eve until 4.30pm on Christmas Day in 2012 and each alternative year thereafter.
(o)On the father’s birthday and the child’s birthday from:
(i)If the birthdays fall on a weekday where the child is not otherwise with the father, 4.30pm until 6.30pm, or from after school until 6.30pm if the child is at school; and/or
(ii)If the birthdays fall on a weekend where the child is not otherwise with the father, from 1.00pm until 5.00pm.
(p)On Father’s Day from 10.00am to 5.00pm if the child is not otherwise with the father.
The father’s time with the child be suspended during the following periods:
(a)On the mother’s birthday and the child’s birthday:
(i)If the birthdays fall on a weekday where the child is not otherwise with the mother, from 4.30pm until 6.30pm, or from after school until 6.30pm if the child is at school; and/or
(ii)If the birthdays fall on a weekend where the child is not otherwise with the mother, from 1.00pm until 5.00pm.
(b)On Mother’s Day from 10.00am to 5.00pm if the child would not otherwise be with the mother.
Changeover
That for the purpose of the child spending time with the father in accordance with these orders:
(a)Changeover take place at Gordon Care [suburb omitted] or such other contact centre as the parties may agree and as can accommodate the parties or, if a contact centre is not practicable having regard to the timing of the required changeover or otherwise, at the [suburb omitted] Police Station, unless otherwise agreed;
(b)Upon the child commencing school, changeover is to take place to and from school where practicable.
Communication
That each of the parties encourage and facilitate the child’s communication with the other parent by way of telephone calls on a regular basis and upon his request, with each parent to provide the other with a telephone number to be used for this purpose.
That the parties communicate with one another by email relating to all issues concerning the child’s care, welfare and development other than when urgent communication is required, which shall be via text message.
That the mother and father inform each other as soon as possible in the event that the child is involved in any accident and/or sustains any serious injury while in their care.
That the mother authorise and direct any child care centre, kindergarten or school attended by the child to communicate directly with the father, in relation to his attendance and progress, and to provide directly to him and at his own cost, upon his request, all information and material that is normally provided to parents.
That the father be at liberty to attend any child care, kindergarten and school events, extra curricular events, sports and special events in which the child is involved.
Restraints
That the father and mother and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the said child, and from permitting any other person so to do.
That the father and the mother and their servants and agents be restrained from relocating with the child to another State in the Commonwealth of Australia or leaving the Commonwealth of Australia, without the consent in writing of the other party.
Travel and holidays
That in the event that the parties obtain a passport for the child, the passport shall be placed in the custody of the Marshall of the Federal Magistrates’ Court of Australia, Melbourne Registry, who will only release the same upon production of the consent in writing of both parties who are present at the Registry at the same time.
That the mother be permitted to take the child on one holiday per year to Queensland provided she notifies the father, at least 30 days before the planned trip, of the times she will be away and any time with the child lost by him is made-up.
That, otherwise, either parent may take the child on interstate holidays with the consent in writing of the other parent.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) & 62B 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 the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Campion & Alburty is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3114 of 2010
| MR CAMPION |
Applicant
And
| MS ALBURTY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father MR CAMPION born [in] 1962 (“the father”) concerning the sole child of the relationship [X] born [in] 2007 (“the child”). In his initial application, filed on 7 April 2010, the father sought that the child spend time with him on alternative weekends and for one evening per week as well as for half the school holidays and time on special occasions. Following an application filed on 12 October 2010 by the mother MS ALBURTY born [in] 1976 (“the mother”) to be allowed to relocate to Queensland, the father amended his application to include proposed orders restraining the mother from taking the child outside of the state of Victoria.
The respondent mother seeks sole parental responsibility for the child, that she be permitted to relocate to Queensland with him and a finding that it is not in the best interest of the child to spend time with the father.
Background
The father
The applicant father is 48 years of age and is currently employed as a [omitted]. He was married for over 20 years to MS B (formerly CAMPION), who gave evidence in the proceedings on his behalf, and has two adult children [Y], who is aged 22 years, and [Z], who is aged 19 years. He continues to have a relationship with his daughter but has not seen his son or spoken to him since he separated from his former wife in April 2007.
The father shares a two bedroom flat in [suburb omitted] with his brother. He also owns a property in [suburb omitted] which is currently tenanted. It was his evidence that he commenced a relationship with the mother in late 2005 while he was still living with his former wife. Following the birth of the child in 2007, he left his former wife and commenced living with the mother at her home in [H]. When she purchased a house in [M] in December 2008 he moved to that residence with her. The parties separated in March 2009, although they continued to see each other and went on a holiday to Queensland together in October 2009. The father continued to see the child until
16 December 2009. He did not see the child again until
September 2010 when Court ordered supervised access began.
The father denies that he pressured the mother to terminate the pregnancy, taking the view that it was a decision for her. He did not deny that he did not attend the birth. He denied that the relationship was brief and non-consensual and further denied that it was characterised by violence, harassment and stalking. He admitted to “pushing” the mother on one or two occasions and to “cornering her in the bathroom” in March 2009[1] and pushing her up against the bathroom sink causing her bruising.[2]
[1] Transcript (27 January 2011), page 10 at line 6.
[2] Transcript (27 January 2011), page 10 at lines 27-38.
The father described his activities with the child as playing with him, changing and feeding him and putting him to bed.[3] He stated that he would read to him one or two books before he went to sleep.[4] The father stated that, despite the intervention order taken out by the mother in June 2009, he continued to spend time with the mother and the child until December 2009. He stated that he cared for the child by himself for up to a few hours while the mother was out.
[3] Transcript (27 January 2011), page 17 at lines 2-5.
[4] Transcript (27 January 2011), page 17 at lines 4-5; 13-14.
The father’s evidence was supported by his former wife, Ms B, who stated that he was never abusive towards her or her children and was a supportive father. MR C, the mother’s landlord and neighbour in [H], gave evidence that the father had moved in with the mother shortly after the birth of the child and remained living there until they both moved out in December 2008. Mr C saw them socially and, in his view, it “seemed like any other relationship”.[5] He was not aware of any family violence.
[5] Transcript (28 January 2011), page 64 at lines 6-7.
The mother
The respondent mother is 34 years of age. She is currently engaged full time in caring for her son although she is a qualified [omitted]. She owns a home in [M] which is tenanted and has a lease on a property in Queensland. She is currently living with her mother in [M].
The mother says that she met the father in late 2005 when they were both working at [omitted] in the same office. She says that, from this time, the father commenced following her home from work[6] and harassing her in the workplace.[7] She described their first sexual encounter in February 2006 as rape. She stated that she continued to see him because he threatened to have her sacked if she did not and also threatened to kill himself. As his brother, an uncle and a cousin had committed suicide, she believed these threats to be real.
[6] Transcript (27 January 2011), page 57 at lines 4-7 & 19-20.
[7] Transcript (27 January 2011), page 52 at lines 39–45.
The mother also stated that the father would visit her house at all hours, bang on her door and demand to be let in. In September 2006, she resigned from her job at [omitted] as a result of his harassment. When she informed him of her pregnancy, he told her that he did not want the child. The father refused to attend any pre-natal checkups and did not attend the birth.
According to the mother, in April 2007 the father turned up at her house at around midnight and told her that his wife had thrown him out. The mother claims that she did, on occasions, let him into the house but that he also slept outside her home in his car. Between
June and November 2007, he frequently demanded entry to the house and physically assaulted her. She described an occasion in June 2007 where he injured the child and another occasion where he pushed the child in his pram onto the road.[8] She also described a further incident in mid-2008 when she says the father kicked her causing bruising.
[8] Transcript (27 January 2011) page 42 at lines 20–34.
In March 2009, an incident occurred following a party for the child’s second birthday. The mother states that the father was yelling, he cornered her in the bathroom and pushed her against the sink. He further attacked her in the lounge room where the child was a witness.
In June 2009, the mother obtained an intervention order by consent and without admissions at [omitted] Magistrates Court. She says that the father constantly breached the intervention order. She described her own behaviour in speaking to him, emailing him and allowing him to spend time with the child as attempts to appease the father.[9] She stated that:
I couldn’t get rid of him. If I was nice and if I was helpful then he was okay. He was okay to be around. If I ignored him, if I didn’t reply to, say, three or four text messages, he would race over and he would nearly smash my door in, he’s ripped it off before. He was frightening. I did this just so that he would be calm. I did whatever I could.[10]
She also gave this as a reason for going on a holiday with the father and child to Queensland in October 2009.
[9] Transcript (28 January 2011) page 84 at lines 27-28.
[10] Ibid at lines 28-32.
After December 2009, the mother refused to allow the father to see the child. His initial application was lodged on 7 April 2010. The mother, in her response, opposed the father spending any time with the child.
In August 2010, the mother travelled to Queensland with the child and entered into a lease on a property there. She let her home in [M] and has since moved her belongings to Queensland.
The mother says that she is terrified of the father and claims that the child has a genuine fear of him. She proposes that allowing her to relocate to Queensland with the child will allow them to escape from the psychological stress and also from the father’s harassment, threats and violence.
The mother’s evidence was supported by MS S, who is the partner of the mother’s brother and who lived with the mother from February 2006 until January 2007. Ms S described being woken up by the father banging on the front door and demanding to talk to the mother. She stated that the mother told her, at the time, that she did not want to be involved with him and that he was stalking and harassing her. She was not aware, at that time, of the parties having an intimate relationship.
Ms S stated that she moved out of the [H] property as the father’s behaviour scared her. She saw him on two or three occasions at the house in [H] after that but thought he was visiting. She only saw him once at [M] on the occasion of the child’s second birthday.
MS H is the mother’s aunt. She assisted the mother in caring for the child during the first 18 months of his life. She gave evidence of one occasion prior to the child’s birth when the father was banging on the front door and demanding that the mother open it. From April 2007 to November 2008, Ms H looked after the child one day per week and stated that sometimes the father would “bash on the front door”.[11] If she told him that the mother was not at home, he would sit in his car until she returned. It was her evidence that the father showed no interest in the child at this time.
[11] Transcript (28 January 2011) page 128 at line 29.
In her evidence, Ms H stated that the mother’s situation had changed for the better with the father out of her life. She was surprised to see the mother in Queensland in October 2009 with the father.
The child
The evidence concerning the child and his relationship with both his parents came primarily from the two family reports of Mr H, a Regulation 7 Family Consultant for the Federal Magistrates Court, dated 11 July 2010 and 17 January 2011 and the report from Gordon Care, dated January 2011, where the father has been spending time with the child since September 2010.
The picture that emerges is of a friendly little boy who is confident and relaxed in himself. The observations of both Mr H and the Gordon Care staff were that he showed no anxiety or stress with his father and was openly affectionate with him. He appears to enjoy the time he spends with his father.
Mr H found that the child’s primary attachment was to his mother. He supported a gradual increase in the unsupervised time that the child spends with his father with changeover occurring at Gordon Care or some other supervised centre. In his view, the child seemed to be “thriving”.[12]
[12] Transcript (3 February 2011), page 146 at line 3.
The mother alleges that the child suffers from asthma and hay fever.[13]
[13] Affidavit of Ms Alburty, sworn 13 January 2011, at paragraph 30.
The evidence
The Court is faced with considerable difficulties in this matter, primarily because of the serious allegations made against the father by the mother and the diametrically different descriptions of the relationship that have been given by the two parties. There was little evidence to corroborate either version.
The supporting evidence was somewhat limited and possibly partisan. Little effort was made to explore the apparent contradictions in the father’s evidence. There was minimal evidence about the father’s living circumstances or how he proposed to care for the child. The mother’s evidence concentrated on the circumstances in which she and the child would live should they relocate to Queensland with no proposal given for what would happen if her application was not granted.
Credence is given to the mother’s version that the relationship was instigated and pursued by the father in the evidence of Ms S and Ms H. There is no evidence however, save for the admission made by the father concerning the events of March 2009, to support the allegations of violence and sexual assault.
Findings
Apart from the matters that follow, I have not found it necessary to make findings on each and every allegation made by the mother and denied by the father. I accept that the mother was at the very least ambivalent about the father and that he pursued a relationship with her. Save for the admission by the father that the child probably heard the altercation between them in March 2009 and the reality that he may also have witnessed heated exchanges between his parents,[14] I am not satisfied that the child himself was subject to violence by either parent.
[14] Transcript (27 January 2011), page 20 at lines 4-13.
Further, while I accept that the mother, whether justifiably or not, has a genuine fear of the father, I do not accept that the child is terrified of him. Any distress being suffered by the child currently is more likely a product of the stress being suffered by his mother and the unsettled nature of his home life pending a decision by this Court as to where he might live.
The role of the Court in these proceedings is to determine what parenting arrangements will be in the best interests of the child who is now four years old. He has lived with his mother since he was born and has had no significant periods of time away from her. The father’s involvement in the child’s life has varied since his birth and included a period of some nine months when he spent no time with the child. Since September 2010, the father has been having supervised access for two hours per week.
Much of this case, in the way it was conducted, revolved around the issue of the extent to which the parents cohabited during the first few years of the child’s life and the level of violence and harassment in their relationship. The parents presented vastly different pictures of what occurred between them.
The mother’s version was that she was pressured by the father and coerced into having a sexual relationship with him. She characterised at least two of their sexual encounters as rape. She denied that they had ever lived together although admitted that the father frequently visited her home both before and after the child’s birth. She described a significant level of violence and harassment as well as alcohol abuse. She described herself as being terrified of the father.
The father denied the allegations of violence with the exception of one incident on the child’s second birthday,[15] which he says precipitated the breakdown of the relationship.[16] On his version, the relationship was mutual, although he was married, when they commenced seeing each other. He claimed a period of cohabitation of about two years.
[15] Transcript (27 January 2011), page 10 at lines 24-25.
[16] Transcript (27 January 2011), page 20 at lines 21-22.
It is likely that both parties have rewritten the history of their relationship to suit their own case. The mother clearly wishes to exclude the father from her life. It would appear that prior to the child’s birth she was, at the least, ambivalent about any relationship with him.
At the same time, it would appear that the father was not enthusiastic about the prospect of new parenthood. He did not contradict the evidence that he took no part in any of the pre-natal activities and did not attend the birth, only seeing the child for the first time some time after he was born.
I accept that, whether he was formally living with the mother or ‘just visiting’, he did spend a significant amount of time with the child between April 2007 and March 2009 although almost always when the mother was also present.
Between March and June 2009, when the mother obtained an intervention order against the father, he spent no time with the child. He did see him from time to time, with his mother also being present, between June and December 2009 including some time in October when the three of them spent time in Queensland. After
December 2009, the mother’s position was and remains that she opposes the child spending any time with the father.
The conduct of both parties in these proceedings is difficult to understand. They are both intelligent people. The only clues appear to come from the assessments of them made by Dr K who described the mother as a “rather dependent personality type … overwhelmed emotionally by someone of a more forceful temperament”.[17] Dr K described the father as someone who has “introverted, rather rigid personality features”[18] and who “has difficulties in adult relationships and has problems with communication”.[19]
[17] Affidavit of Dr K, sworn 23 September 2010, at pages 5-6 of attachment “PK2”.
[18] Affidavit of Dr K, sworn 15 July 2010, at page 6 of attachment “PK2”.
[19] Ibid.
The mother, perhaps rightly, believes that any contact with the father is not in her best interests and sees that relocating to Queensland would not only put a considerable distance between the two of them but would also enable her to start a new life. While she has raised allegations of the father being violent towards the child and her fear that he will do something to him, she allowed contact after the incidents complained of by her. I am satisfied that her main motivation for wishing to deny contact now is her belief that the father is not primarily interested in a relationship with the child but in controlling her.
The observations of Mr H and Gordon Care suggest that the father is genuinely fond of the child. It would seem that he does not understand the mother’s rejection of himself and certainly appears to have wanted to pursue the relationship after she had determined that she wanted nothing to do with him. Despite his apparent lack of insight regarding the dynamics of his relationship with the mother, it appears that he is able to react positively and appropriately with the child.
The child, by all accounts, is a happy and confident little boy who enjoys the games and activities appropriate for his age and stage of development. The fact that he showed no anxiety in his father’s presence indicates both that he feels quite relaxed with him and also that, despite her own views, the mother has not alienated the child from him.
I am satisfied that the mother has exaggerated the negative aspects of the father’s behaviour. I do not see this as simply being a tactic on her part to seek to persuade the Court in this case that he should have no contact with the child, as her complaints predate the initiating by the father of these proceedings. Rather, in seeing herself as having been suborned by the father, she is able to view her rejection of him as ‘freeing’ herself.
The father, on the other hand, is unable to see how his pursuit of the mother could be characterised as harassment or why she would now wish to portray him as such a bad person.
In Mr H’s Family Report of 14 January 2011, Mr H described the attitude of the parties as follows:
It presents as a circular dynamic that becomes self reinforcing and entrenched. This type of dynamic provides both with material that convinces them of the validity of their individual realities and both share responsibility for the way it has evolved.[20]
[20] Family Report dated 14 January 2011, page 12.
Both parents may indeed be better off by severing their relationship, but what of the child? The mother seems unable to separate what might be his needs from her own and it is not clear whether the father is able to pursue a relationship with the child that is strictly separate from any relationship with the mother.
The applicable legal considerations
The starting point in considering any parenting applications lies in the provisions of s.60CA of the Family Law Act 1975 (Cth) (“the Act”), that is, the best interests of the child must be the paramount consideration. The Court is guided in determining those interests by the objects and principles set out in s.60B and by the requirement that it consider the matters set out in s.60CC.
Further, s.61DA of the Act sets out that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. That presumption may also be rebutted by evidence that convinces the Court that equal shared parental responsibility is not in the child’s best interests.[21]
[21] Family Law Act 1975 s.61DA(4).
In this case, there is an admission of family violence on the father’s part. Therefore, the presumption in s.61DA does not prima facie apply. The Independent Children’s Lawyer nevertheless submitted that an order for shared parental responsibility was appropriate, save as to health. The father was prepared to adopt that proposal. The mother sought sole parental responsibility.
In my view, it is appropriate to first consider the s.60CC matters before determining the issue of parental responsibility, particularly in circumstances where the presumption in s.61DA does not apply.
Primary considerations
Section 60CC factors
Section 60CC(2) sets out the primary considerations which the Court must consider in determining the best interests of the child. Section 60CC(2) is based on the objectives of ss.60B(1)(a) and (b) which is to ensure that the best interests of the child are met by ensuring that the child has the benefit of both of their parents having a meaningful involvement in their lives while also knowing that they are protected from physical and psychological harm or being exposed to neglect, abuse or family violence.
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents
The Independent Children’s Lawyer submitted that the evidence showed a level of comfort and intimacy between the child and his father which supports there being a high level of contact between the father and child over the first two years of his life. This is also supported by the evidence of the father and by what the mother told the Family Consultant during her first interview with him. Despite having not seen his father for some six months, the child recognised his father’s photograph and showed no nervousness about him. The father did not challenge the benefits of the child having a meaningful relationship with the mother.
The father submits that the mother’s attitude toward the issue shows that she is not prepared to allow the child to have a meaningful relationship with the father and that if she were to relocate to Queensland, this would further compromise the ability of the child to maintain a meaningful relationship with him.
The mother could see no benefits for the child in having a relationship with the father.
While the father may not have been all that keen on the prospect of having a child with the mother, the evidence would suggest that the father did play a role in the child’s life from shortly after he was born until his second birthday and that he has actively pursued his involvement since making this application in April 2010. He appears to have had a good relationship with his older son until the breakdown of his marriage and there is no reason to believe that the child would not benefit from engaging in the type of father/son activities which, as he gets older, the father may offer him.
The Act does not define what constitutes a ‘meaningful relationship’ or set any particular measurement of what may or may not be ‘meaningful’. In Mazorski & Albright,[22] Brown J suggested that it is a qualitative adjective, not a strictly quantitative one.
[22] Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520.
In McCall & Clark,[23] the Full Court of the Family Court of Australia held that, once the Court has determined on the evidence that it is in the child’s best interest to have such a relationship with both their parents, the task of the Court is to frame orders to ensure that the child is able to have a meaningful relationship with both parents.
[23] McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92.
I am satisfied that it is in the child’s best interests to have a meaningful relationship with both his parents.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The evidence fell far short of that which would be required to make findings of continuous violence or threats towards the mother and the child.
The father submits that the allegations made by the mother are serious ones and are unsupported by the evidence. The evidence does not support the mother’s picture of the father as a psychopathic stalker. Her complaints to his employer and others have not been substantiated. No charges have been laid by the police. There is no record of the father having been convicted of any offences.
The mother submits that there was more extensive domestic violence than that admitted to by the father. Intervention orders have been made. Whatever the findings are on these allegations, the mother is clearly anxious about the father spending time with the child and is concerned about the child’s exposure to potential harm. It was submitted that the Court needed to take into account the impact on the mother of any order providing for the child to spend time with the father and whether it might impair her care-giving abilities.
The mother portrayed the child as being terrified of the father and related this to his experience of the father’s drunken and abusive behaviour. The extent to which such behaviour occurred is debatable but, assuming that it did, it appears to have had little impact on the child.
The evidence before me shows no fear of the father on the child’s part and, to the contrary, the child appeared to welcome his father’s attention and be relaxed in his company. It is possible that the child did witness arguments between his parents and some level of aggression on the father’s part. I am satisfied that such aggression was not directed towards him and that there is nothing on the evidence which causes me to believe the father would seek to harm the child. I do not accept that he “drugged” the child on the occasion of the first Gordon Care visit, as alleged by the mother,[24] and, if he gave him fish, knowing of the mother’s allergy to it, that act was directed at the mother and not the child.
[24] Transcript (27 January 2011) page 42 at lines 4-16; page 43 at lines 13-20.
There is no material which would cause me to believe that the child is likely to be exposed to domestic violence in his father’s company. While the evidence of the father’s capacity to care for him was limited, there was no evidence of wilful neglect. I do not accept that the father harmed the child by hitting his head against a wall when he was four months old or that he deliberately pushed his pram onto the road.
The father suggests that the child is at risk of psychological harm from the mother because of her deliberate attempts to alienate the child from him. The mother has made it clear that she wants the father to play no role in the child’s life until he is 14 or 15 years old. She finds it hard to accept that the child might want to spend time with his father. There is nothing in the child’s behaviour to suggest that she has deliberately sought to instil a fear of the father in him or cause him to refuse to see the father.
I am not of the view that the child is likely to be exposed to physical or psychological harm or abuse, neglect or family violence in the care of either of his parents.
Additional considerations
Section 60CC(3)
Section 60CC(3) deals with the additional considerations to which the Court must turn its mind in dealing with parenting matters.
Section 60CC(3)(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
Section 60CC(3)(a) deals with the views of the child. The child has just turned four years of age. The mother has given certain evidence to the Court about the child’s views. Given his age and the level to which he is likely to be influenced by the views of the parent with whom he predominantly spends his time, I give little weight to what the mother says in that regard. His expressed desire to go to Queensland is no doubt influenced by his mother’s enthusiasm for such a move.
Section 60CC(3)(b): The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
Section 60CC(3)(b) deals with the child’s relationships with his parents and other persons. The child’s primary relationship is clearly with his mother. He has barely been separated from her since his birth. He also appears to have established relationships with her mother and stepfather and with other relatives, in particular, her aunt Ms H who looked after him as a baby and a toddler.
The child appears to be comfortable with his father although he has only spent relatively short periods of time alone with him. He seems to have only have met his father’s brother (with whom his father currently shares a flat) on a few occasions and his paternal grandmother twice. The child has two half-siblings whom he has never met. It is unclear how enthusiastic either of them are to have a relationship with him.
The mother seeks to emphasise the relationships the child has made with her relatives, including her aunt Ms H, who live in Queensland.
Section 60CC(3)(c): The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
Section 60CC(3)(c) deals with the willingness and ability of each of the parents to facilitate and encourage a close relationship with the other parent.
The mother seeks a declaration that it is not in the child’s best interest to spend time with the father. She has shown no willingness to facilitate any relationship between the child and the father. She wishes to sever the relationship. The mother’s counsel goes so far as to say that she is unable to facilitate such a relationship because of his violence towards her and her fear of him.
Both the Independent Children’s Lawyer and the father submit that, should the mother relocate to Queensland, the mother will alienate the child from the father.
As I am satisfied that it is in the interest of the child to have a relationship with both of his parents, I reject the mother’s application for a declaration that it is not in his interests to spend time with his father. While there are other family members on both sides who may have or may form relationships with him, those are not of great significance at this stage in his life.
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Section 60CC(3)(d) deals with the likely effect of any changes in the child’s circumstances, including any likely effect of separation from either of his parents or any other child or person with whom he has been living.
Currently, the child and the mother are living in Victoria although the mother has moved her belongings to Queensland and has no permanent place of residence here. She has informed the Court that she does not wish to return to her home in [M], which is currently let.
Should the mother be allowed to relocate to Queensland the child’s relationship with his father would be compromised. While the immediate effects of this may not be great, given that there have previously been long periods where the child and the father have not seen each other, in the longer term it is probable that a meaningful relationship between them would be unlikely to develop.
The mother has argued that moving to Queensland would have a positive effect on the child’s health and wellbeing. It is likely that she would be happier there, she has employment prospects and she has a positive view about how they would live. This may well be of benefit to the child. The weather conditions may also be more benign. Further the mother sees this application by the father as a means of controlling her and, should she be prevented from relocating, it is unclear where she would live or what the child’s circumstances are likely to be.
These are matters which the Court must balance.
Section 60CC(3)(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
Section 60CC(3)(e) deals with the practical difficulty and expense of a child spending time with and communicating with a parent and whether such difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Both the Independent Children’s Lawyer and the father have submitted that, should the mother relocate to Queensland with the child, it would be difficult for either party to facilitate either the child or the father travelling between Victoria and Queensland in order for them to spend time together. Given the mother’s position that there be no time spent, she has no proposal to the Court as to how this might occur.
I am satisfied that relocating to Queensland would substantially affect the capacity of the child to maintain any regular contact with his father.
Section 60CC(3)(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
Section 60CC(3)(f) deals with the capacity of each of the child’s parents, and any other person, to provide for the child’s needs, including their emotional and intellectual needs.
The Independent Children’s Lawyer and the father have expressed some concerns about the mother’s capacity to provide for the child’s long term psychological needs based on her conduct in these proceedings and her desire to sever any contact between the father and the child.
If it is accepted that the mother’s concerns about the father are genuinely held by her, there is some concern that she may influence the child by her own anxiety and inability to cope with having any contact with the father.
On the other hand, the father’s capacity to care for the child alone for anything other than short periods of time is yet to be tested.
As Dr K has noted, both parents are intelligent people. The mother has sought assistance from a psychologist and further support for her in this regard may be needed. The father’s capacity to recognise problems in his own behaviour, in particular with respect to the incident in March 2009, gives cause for some optimism that he may recognise if he needs assistance in the future in coping with the child’s needs.
Section 60CC(3)(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
It does not appear that s.60CC(3)(g) is applicable in these proceedings.
Section 60CC(3)(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
It does not appear that s.60CC(3)(h) is applicable in these proceedings.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Section 60CC(3)(i) deals with the attitude of each of the parents to the child and the responsibilities of parenthood.
There is no real criticism of the mother’s care for the child or her ability to provide for him. Both the Independent Children’s Lawyer and the father submit that the Court should be concerned by her failure to recognise the importance of the child’s relationship with his father or to acknowledge the father’s role in his life.
The father submits that his payment of child support, his willingness to participate in courses recommended by the Independent Children’s Lawyer and his initiation of these proceedings provide evidence of a positive attitude to the child and his responsibilities as a parent.
The evidence would suggest that despite his initial reluctance to participate in the pre-natal activities and birth, the father has attempted to maintain contact with the child since shortly after his birth and, at the present time, genuinely wishes to be involved in his life and spend time with him. He is no stranger to parenthood and clearly has continued to provide financial support to his daughter despite her entering adulthood.
I am sure that the mother would see her own actions as motivated by a concern for the wellbeing of the child as well as her own welfare. She appears to genuinely consider that the father has nothing to offer the child. This shows a failure on her part to see that the child may have the right to have a relationship with his father, whatever she may feel about him.
Section 60CC3(j): Any family violence involving the child or a member of the child’s family
Section 60CC3(k): Any family violence order that applies to the child or a member of the child’s family, if (i) the order is a final order; or (ii) the making of the order was contested by a person
Sections 60CC(3)(j) and (k) deal with the issue of family violence. I have already dealt with this issue in considering s.60CC(2)(b). I am not satisfied that there was any violence involving the child himself, although he may have heard or seen arguments between his parents when he was quite young. One aspect of the evidence in this matter which is relevant is that despite the mother’s allegations, and even her initiation of proceedings in the Magistrates Court for intervention orders, she continued to facilitate the father spending time with the child until December 2009.
An Intervention Order was made in Victoria in May 2009, which the mother initially sought to extend but later withdrew her application. She did take out a protection order in Queensland in August 2010 which remains in force. The father did not contest either of those orders.
The mother’s behaviour following the making of the May 2009 order seems to be inconsistent with her current position that the father should have no contact with the child.
Section 60CC(3)(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
Section 60CC(3)(l) deals with whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child.
To some extent, the mother’s proposed orders would provide finality but, as is already clear, would not meet the best interests of the child. The Independent Children’s Lawyer submits that any order which allowed the mother to relocate may lead to further contravention/enforcement proceedings and that the mother would be likely to continue to attempt to frustrate the relationship between the child and his father.
I will return to this in considering the nature of the orders in this matter. However, it appears to me that the level of conflict between these parents and their inability to communicate in the interests of effectively parenting the child must be a factor in framing orders which are least likely to embroil the Court in constantly monitoring this child’s life.
Section 60CC(3)(m): Any other fact or circumstance that the court thinks is relevant.
Section 60CC(3)(m) refers to any other fact or circumstance which the Court thinks is relevant.
It is clearly relevant to these proceedings that the mother wishes to relocate herself and the child to Queensland. The mother seeks to relocate both in order to put geographical distance between herself and the father and also because of the benefits she sees for both herself and the child in living there. Further, the mother states that her desire to live in Queensland pre-dates the birth of the child in these proceedings and she has job opportunities, accommodation and support there.
The decisions in AMS & AIF[25] and MMR & GR[26] have established that the fact that, while ‘the best interests of the child’ is the paramount consideration in determining parenting orders, it does not mean that the interests of the parents are of no consideration. Included in those interests are the right of adults to decide where they will live. Further, the decision in MRR & GR[27] makes clear that the circumstances of the parents are relevant in considering if particular proposals are reasonably practicable.
[25] AMS & AIF (1999) 199 CLR 160; [1999] HCA 26.
[26] MRR & GR (2010) 240 CLR 461; [2010] HCA 4.
[27] Ibid.
The mother submits that a refusal to allow her to relocate would have a deleterious effect on her because she would simply feel unsafe and terrorised if she was forced to remain in Melbourne. Such an effect on her would also impact on her capacity to create a caring and safe environment for the child.
The cases referred to by the mother in support of that submission seem to me to involve extreme violence either during the relationship or post-separation.[28] Further, in the case of H & R,[29] the issue of whether contact with the other parent would expose the child to an unacceptable risk of harm was a real factor.
[28] H & R [2006] FamCA 878, Chappell & Chappell [2008] 39 Fam LR 627; FamCAFC 143, Marvel & Marvel (No. 2) [2010] FamCAFC 101.
[29] H & R [2006] FamCA 878.
Absent of such a risk in this case, it appears to me that the issue becomes one of the interest that the child has in maintaining and developing a relationship with his father, the reasonable practicability of this occurring if the mother relocates and the reasonable practicability of her remaining in Melbourne.
I have already concluded that relocation is likely to diminish the prospect of maintaining a meaningful relationship between the child and his father. On the other hand, the mother has property in Melbourne. She has qualifications that make her as employable here as in Queensland and she has family and friends in Melbourne. It is not impracticable for her to remain in Melbourne, although I acknowledge that it is not her preference to do so.
Section 60CC(4) Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
Section 60CC(4) deals with the extent to which each parent has fulfilled or failed to fulfil their obligations as a parent by taking the opportunity to participate in making decisions about major long-term issues in relation to the child, spend time with and communicate with the child and the extent to which the other parent has facilitated these things.
Until December 2009, the mother did seek to facilitate the father spending time with the child, although there was a period between March and June 2009 where she did not do so. Since December 2009, she has actively sought to exclude the father from the child’s life and has made major decisions, such as to relocate to Queensland, without consulting him.
The father has generally sought to spend time with the child and communicate with him. Apart from his desire that the child remain in Melbourne, there is no evidence of him seeking to be involved in any major decisions about long term issues.
Parental Responsibility and time spent
Despite the fact that s.61DA does not apply in this case, the Independent Children’s Lawyer nevertheless supported joint parental responsibility for the child in relation to major long-term decisions, save as to health. The Independent Children’s Lawyer expressed the view that given the child’s health issues and the evidence of conflict between the parties, the child would benefit from one person making decisions about his health.
The mother strongly argued in favour of sole parental responsibility.
An order for joint parental responsibility, which involves the parents making decisions about major long-term issues in relation to the child, requires that the parents consult in relation to the decision and make a genuine effort to come to a joint decision about the issue. The Independent Children’s Lawyer proposes in this case that if they are unable to reach a joint decision then the parties should attend Family Dispute Resolution/Mediation.
While the mother in this case may be prone to exaggeration, she has been quite clear about her unwillingness and ability to have any dealings with the father and I have concerns about her ability to cope if she is forced to do so.
In Marvel & Marvel (No.2),[30] the Full Court of the Family Court considered circumstances where an order for joint parental responsibility might not be appropriate:
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.[31]
[30] Marvel & Marvel (No. 2) [2010] FamCAFC 101.
[31] Marvel & Marvel (No. 2) [2010] FamCAFC 101 at paragraph 103.
Similarly in Chappell & Chappell,[32] the Full Court of the Family Court observed:
In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.[33]
[32] Chappell & Chappell (2008) 39 Fam LR 627; [2008] FamCAFC 143.
[33] Ibid at paragraph 75.
In that case, the presumption in s.61DA did apply. Nevertheless, the Court considered that the circumstances may warrant some other order being made.
The child is now four years old. He may well start school in 2012 and a decision will need to be made some time before that about what school he should attend. While, in time, these parents may learn how to communicate with each other in order to be able to make decisions which are in the child’s interest, I am not optimistic that this can occur within the time frame necessary for a mutual decision about his schooling to be made. It would not be in his interests for further litigation to be required before such a decision can be made.
The Court must make orders which are both in the interest of the child and reasonably practicable. I do not consider that an order for joint parental responsibility is in the child’s best interest. However, there are certain decisions, such as in relation to travel, where I am satisfied that the father should be involved and I will deal with those in the orders.
Conclusions
The father has not sought equal time with the child but does seek that the child spend significant and substantial time with him. This can only occur if the mother remains in Melbourne. I am satisfied that it is in the best interest of the child that he is able to develop a significant relationship with his father. I accept that this will realistically require the mother to remain living in the Melbourne area.
For the mother to remain in Melbourne will require her to make some decisions about where she will live and work. It may take some time for the child to have the stability of a permanent residence in Melbourne and to become settled into whatever childcare arrangements the mother makes. It seems appropriate to me that the time spent with his father should therefore be gradually increased, in accordance with the recommendations of Mr H, and the hand over between parents should occur at a place with which he has become familiar.
The objective of the orders I will make is to provide that, over time, the time the child spends with his father becomes substantial and significant. In my view that is consistent with his best interests and, under the current circumstances, is reasonably practicable. It will enable the child to become used to being in his father’s care and will allow the father time to organise his life in order to meet the child’s needs. I am also conscious of the fact that he is still a little boy who has not spent any significant time away from his mother.
While the orders are intended to minimise the potential for conflict between the parents, there will be times when communication between them will be necessary. It is preferable that this be by email except in the case of emergency where text messaging may be necessary.
Both parents, in particular the mother, may need support and assistance in complying with these orders. It is recommended that the mother continue to see Dr H.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Whelan FM
Date: 23 March 2011
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