Carrington and Raso
[2012] FMCAfam 1047
•3 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARRINGTON & RASO | [2012] FMCAfam 1047 |
| FAMILY LAW – Children – parties not married – young child of the relationship – young child of previous relationship of the Mother – biological Father of previous child now invited into that Father’s life, not a party to these proceedings – best interests served by both children living with the Mother and the youngest child spending substantial and significant time with his Father. |
| Family Law Act 1975, s.60CC |
| A & ARelocation Approach [2001] FamCA 137 Heath & Hemming (2011) FamCA 749 MRR v GR [2010] HCA 4 Taylor & Barker [2007] FamCA 1246 |
| Applicant: | MR CARRINGTON |
| Respondent: | MS RASO |
| File Number: | BRC 1972 of 2011 |
| Judgment of: | Baumann FM |
| Hearing dates: | 14 & 15 December 2011; 2 February 2012; 16 February 2012; 16 August 2012; 24 September 2012 |
| Date of Last Submission: | 24 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 3 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Curran |
| Solicitors for the Applicant: | Rees Law |
| Counsel for the Respondent: | Mr Tolton |
| Solicitors for the Respondent: | Neway Lawyers |
ORDERS
This matter be adjourned for the hearing of further submissions in relation to the form of the orders to 1.00pm on 8 October 2012 at the Federal Magistrates Court of Australia at Brisbane, the Father and his legal representatives being granted leave to appear by telephone.
IT IS NOTED that publication of this judgment under the pseudonym Carrington & Raso is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1972 of 2011
| MR CARRINGTON |
Applicant
And
| MS RASO |
Respondent
REASONS FOR JUDGMENT
Introduction
In October 2009 after the parties had a brief internet relationship and some subsequent intimacy resulting in the Mother becoming pregnant, the Mother and a son (then aged 6) moved in with the Father in his family rural property in Central Queensland. Their hope for a long relationship did not eventuate – with the Mother and their child, then not quite 10 months, leaving the farm in January 2011. The Father wishes the Mother and their child to return closer to where he lives – whilst the Mother wishes to remain in South East Queensland – over 1,000 kilometres away. This is a simplified version of the dispute which exists.
Competing proposals
At the conclusion of the hearing on 15 December 2011, Counsel for the Father, Mr Curran, relied upon the orders set out in the Case Outline filed 8 December 2011. As was appropriate, the orders sought were comprehensive and set out alternatives:-
a)If the Mother was ordered to return to the (omitted) area, in which case X and Y’s would spend time increasing from five nights per fortnight (until he turns 2 years); then, curiously, 12.00 noon Friday to 5.00pm Monday each alternate week and from age three, week about. The Father sought an order (paragraph 13) that:-
“If the Mother fails to return to a location in Central Queensland, within 300 kilometres radius of (omitted):-
a.The children live with the Father at (omitted);
b.The Mother spend time with the children as agreed between the parties.”
b)If X and Y were ordered to live with the Father, then under paragraph 14, X would spend seven days each month with the Mother until January 2015 (when he is anticipated to commence school) and half of the school holidays with time, after X commences school, then being half of all school holidays.
c)If the Mother was permitted to relocate from the (omitted) area, the Father proposed he would spend time with the boys, until X commenced school for half of all school holidays, and for X (until he commenced school), seven days in each month. This is essentially the regime he proposed if the children lived with him under alternative (b) above.
To do justice to the effort the Father and his lawyers exerted in covering all scenarios, a full recitation of the Father’s orders sought are attached to these reasons and marked Appendix One. It can be seen that careful thought was also given to the area of parental responsibility (which the Father says should be shared), and special days and authorities.
Respondent Mother
Clearly, the Mother’s preference is to remain living in (omitted) in South East Queensland. The Mother only raises two alternatives, essentially because the Mother says that the children should live with her, such that the Mother proposed:-
a)If the children live with the Mother in (omitted), then the Father would spend time with X in South East Queensland (with changeovers at a local contact centre), every fourth week:-
-Friday 9.00am until 5.00pm;
-10.00am Saturday to 5.00pm Sunday; and
-Monday 9.00am until 5.00pm.
No time when X was school age was proposed specifically.
b)If the children live with the Mother in (omitted), then the same arrangements were proposed, save for changeovers to occur at the (omitted) Contact Centre. The Mother also proposed the parents have equal shared parental responsibility.
The Mother’s full proposals are marked Appendix Two.
As is apparent from the quite different proposals, the one obvious distinction is that the Mother did not agree to any orders being made in respect of the Father spending time with Y, who is not the Father’s biological child.
Principles
In making a parenting order, the best interests of the child are the paramount consideration [s.60CA]. Overarching that are several stated objects and underlying principles. In this case it may be useful to summarise them. The objects are about ensuring children’s best interests are met: by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development [s.60B(1)]. The principles underlying these objects, except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting [s.60B(2)].
Later in these reasons, the Court approaches the analysis by adopting the legislative pathway mandated by the Act. It is worth noting of course that whilst there is a large number of applicable Appellant decisions since A & ARelocation Approach [2001] FamCA 137, the Full Court has indicated that trial Courts should apply the principles enunciated in such decisions (post the 2006 amendments to the Act) such as Taylor & Barker [2007] FamCA 1246; Sealey & Archer [2008] FamCAFC 142; Starr & Duggan [2009] FamCAFC 115 and McCall & Clark (2009)FLC 93-405 (for example). I attempt to do so.
Furthermore, I entirely agree, with respect, with the observation of Justice Murphy in Mallahan & Mallahan (2010) FamCA 631 at paragraph 27 that:-
“27.In my view, it remains the case that, as I said in the earlier decisions referred to:
·A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
·A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.”
As these reasons reveal, I make findings on all the factors identified by the authorities, in particular those matters set out in s.60CC(2) and (3).
More recently, Kent J in Heath & Hemming (2011) FamCA 749, made an extensive analysis of the approach to be adopted to parenting cases at [87] and thereafter at [104] identified what his Honour described as a number of “inter-related factors” which might assume particular prominence in the best interests determination involving a proposed relocation, which I summarise as being:-
a)Referring to s.60CC(2)(a) and s.60CC(3)(b) about the primary consideration of the benefit of the child of having a “meaningful relationship” with both of the parents the remarks of the Full Court in Sigley & Evor (2011) 44 FamLR 439 were relied upon, where the Full Court approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child. Furthermore, the Court approved of the need to consider and weigh up 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 (referred to as “the prospective approach” – see McCall v Clark (2009) FLC 93-405). The legislation aspires to promote a meaningful relationship not an optimal relationship.
b)His Honour further said, that if the relationship is already established “the consideration will be whether such a relationship can be promoted in the context of the proposed relocation”.
c)Careful analysis of the s.60CC(3) additional considerations is necessary for the reasons, and in some of the circumstances set out in his Honour’s very helpful judgment at paragraphs [104(b), (c), (d), (e) and (f), before saying at [105] that:-
“105.Thus, whilst it is not the law that a relocating parent has any onus of establishing a bona fide reason for the proposed relocation, plainly the economic prospects of better employment opportunities; better housing or other facilities; enhanced economic circumstances by reason of a provident re-partnership or remarriage are relevant matters and may, in a given case, assume decisive significance in the determination of best interests. Conversely, limited employment prospects or other financial circumstances of the parties in the place of origin may be relevant to the assessment of the prospect of the party opposing the relocation being able to move if the children move”.
I agree respectfully with the analysis undertaken by Kent J and the remarks I have set out from his judgment above.
Before I consider the competing proposals within the matrix of the relevant primary and additional considerations, I shall deal with some discrete issues which arise from the evidence in this case.
Contextual history
The history of the parties’ relationship, and their proceedings set the scene for the reasons which follow. Although some reasons for events occurring are disputed, the history is not of itself controversial.
Statements of fact which follow should be construed as findings of fact unless otherwise indicated.
The Father is now 34 years of age. He is a (occupation omitted) who manages family (omitted) properties in Central Queensland – in particular, a property of about 20,000 acres called “(omitted)”, which is about three hours drive from (omitted) and less than 70 kilometres from (omitted).
The Mother is now 33 years of age, and at the time the parties commenced communication via the internet in late 2008, the Mother was a single mother of one child, Y (born (omitted) 2003). It is not in dispute that the biological father of Y, Mr P, separated from the Mother shortly after the birth of Y, and he ceased spending time with his son when the child was five months of age. The reasons for that occurring are in dispute.
The Mother says, and I accept, that after first meeting the Father in December 2008, long distance dating took place, which ultimately resulted in the Mother (and Y) spending time with the Father in July 2009 when it seems X was conceived. After the Mother established she was pregnant in mid-August 2009, the parties decided to give the relationship a go, with the Mother moving onto the Father’s property “(omitted)” in October 2009.
It seems reasonable to assess the parties’ relationship at the time of X’s birth on (omitted) 2010, as ambivalent and far from a solid established commitment.
Nonetheless, to the parents’ credit (and I find with the support of the Father’s family), they tried to make the relationship work.
The pressures and challenges of rural life, including financial pressures; isolation and long working hours for the Father, all combined to cause the Mother to leave the property on 18 January 2011 – when X was not quite 10 months of age.
The Father says he did not believe the Mother was leaving permanently – he understood that the Mother was visiting her sick father in (omitted) (where her family was). He was, I am satisfied, quite distressed by his infant son being taken so far away from him. He also says, by the time of separation, he had spent over 12 months also acting as a father to Y, and felt he had developed a good relationship with him. This was therefore a double blow for the Father to endure.
The Father cannot be accused of remaining idle. Although he spent limited supervised time with X for three hours on 20 February 2011 and weekly during March, his concerns with the Mother’s actions to moving to (omitted) with their infant son resulted in him filing an application in this Court on 11 March 2011, seeking an interim order that the Mother “return the children to Central Queensland within a 300 kilometre radius of (omitted)”. The Mother in her Response filed 29 March 2011, opposed being required to return to Central Queensland.
It should also be noted that on 10 February 2011, the Mother’s application for a Temporary Protection Order against the Father was granted. Ultimately, that application was disposed of on 19 April 2011 by the Father signing an undertaking not to commit domestic violence. It appears the Father did so “without admissions”, and at the hearing before me continued to assert he had not committed any domestic or family violence. The Mother, of course, had filed a Notice of Risk, alleging that:-
a)The Father had punched Y and pulled his hair and had also called herself and Y “derogatory names”.
b)That the Father stated “he wants to kill himself”.
c)The Father was “continually requesting” her to “move in with him” and was “preventing her from leaving”.
The Court says more about this allegation below.
The first Court date in this Court was before Federal Magistrate Slack on 30 March 2011, and although no formal reasons were published (which would not have been expected), the orders made by his Honour were for the children to live with the Mother and for the Father to spend time with X “as agreed”. No orders for the Father to spend time with Y was formally made. A family report was ordered and the matter was adjourned to 20 June 2011.
The parents must have reached some agreements for X to spend time with the Father “unsupervised”, as Federal Magistrate Slack made consent orders in chambers on 18 April 2011, which provided as follows:-
“1.That the child X born (omitted) 2010 shall spend time with the Father in (omitted) between the hours of 10:00am and 3:00pm on the following dates:
1.1 10, 17 and 24 April 2011;
1.2 7, 8, 21 and 22 May 2011;
1.3 4, 5, 18 and 19 June 2011.
2.That the child shall spend time with the Father in (omitted) between the hours of 10:00am and 3:00pm on the following dates:
2.1 9, 16 and 23 April 2011.
3.That when the child spends time with the Father in (omitted), the Father or Father’s representative and Mother or Mother’s representative shall collect the child from and return him to the McDonald’s Family Restaurant, (omitted).
4.That when the child spends time with the Father in (omitted), the Father or Father’s representative and Mother or Mother’s representative shall collect the child from and return him to the (omitted) McDonald's Family Restaurant, (omitted).
5.That the child shall spend time with the Father in (omitted) between the hours of 10:00am and 3:00pm on the day before the family report interview on a date to be advised by the family report writer.
6. That the child shall spend time with the Father in (omitted) between the hours of 10:00am and 12:00 Noon on the day after the family report interview on a date to be advised by the family report writer.”
Although some issues arose around Easter 2011 which are referred to later in these reasons, the consent orders made 18 April 2011 were complied with. Those orders provided two visits in both (omitted) and (omitted). Although some of the arrangements altered, the Father’s evidence as to when he spent time with X (and from June 2011, Y as well) in his trial Affidavit, I regard as accurate. A summary of those dates to trial are conveniently set out at paragraph 5 of the Father’s Case Outline.
The change around June 2011 whereby Y was included seems to have coincided with the release of the Family Report by social worker Ms D on 12 May 2011. Ms D saw the family on 21 April 2011.
On 20 June 2011, Federal Magistrate Hughes dealt with the matter in the absence of Federal Magistrate Slack. Very extensive orders were made and, again in the absence of any published reasons, the orders reflect some significant changes in that:-
a)Y was included in the orders, although some visits only were to occur with X.
b)Whilst generally the visits alternated between (omitted) (where the Father has family) and Brisbane/(omitted), visits were ordered to take place in (omitted) between 19 to 24 September (during school holidays) and on the weekend of 22 and 23 October. These very carefully crafted orders did not prescribe who was to pay for the airfares. I infer that the Mother and Father shared the expenses in some manner.
c)Federal Magistrate Hughes properly ordered that the biological Father of the child Y be formally served and notified of the application.
The hearing took place before me on 14 and 15 December 2011 when judgment was reserved.
Regrettably, the parties could not agree on arrangements for the December to March period – the Court initially indicating an anticipated judgment delivery in March 2012. The Court was required to make further interim orders, which I did on 22 December 2011, in the following terms:-
“1.The child Y born (omitted) 2003 spend time with the Father MR CARRINGTON at all times as may be agreed between the parties in writing but at least:-
(a)from 5.30pm on 6 January 2012 until 8.00am on 9 January 2012 with changeovers to occur at (omitted);
(b)from after school Friday 27 January 2012 until 5.00pm Sunday, 29 January 2012, save for 1.00pm to 6.00pm on the child’s birthday, 28 January 2012, in (omitted);
(c)from after school on 10 February 2012 to 5.00pm on 12 February 2012 in (omitted);
(d)from after school on 2 March 2012 until 5.00pm on 4 March 2012 in (omitted);
(e)If Y expresses a wish to return to his Mother during the time he spends with the Father, the Father shall accommodate any such reasonable request by the child.
2.Changeovers that do not occur at school shall occur at (omitted) McDonalds (when time is being exercised in (omitted)) and at the motel the Mother is staying at in (omitted).
3.The child and X born (omitted) 2010 spend time with the father at all times as may be agreed between the parties and failing agreement, as follows:-
(a)from 5.30pm on 6 January 2012 until 4.00pm on 7 January 2012;
(b)from 10.00am on 8 January 2012 until 8.00am on 9 January 2012;
(c)from 9.00am on 27 January 2012 until 1.00pm on 28 January 2012;
(d)from 9.00am to 5.00pm on 29 January 2012;
(e)from 9.00am to 5.00pm on 30 January 2012;
(f)from 9.00am on 10 February 2012 to 1.00pm on Saturday, 11 February 2012;
(g)from 9.00am to 5.00pm on 12 February 2012;
(h)from 9.00am to 5.00pm on 13 February 2012;
(i)from 9.00am on 2 March 2012 to 1.00pm on 3 March 2012;
(j)from 9.00am to 5.00pm on 4 March 2012;
(k)from 9.00am to 5.00pm on 5 March 2012.
5.If the Father is unable to exercise the time in (omitted) as set out in this order he shall give the Mother as much notice as possible of his inability to do so.
6.The children spend time with the Father on the telephone (or if available, Skype) between 6.30pm and 7.00pm each Wednesday and non-contact Sundays with the Father to initiate the call to mobile telephone number (omitted) and:-
(a)the Mother shall ensure that both children are available to participate in the call from the Father;
(b)the Mother shall ensure the mobile phone is in a mobile phone reception area and properly charged;
(c)where possible the calls shall be in private, unrecorded and uninterrupted with the Court noting that it may not be possible for X to spend the same amount of time on the telephone as Y, and the Court further noting that to facilitate X’s interaction with the Father on the telephone, it may be necessary for the mobile phone to be place on loud speaker.
7.If the children are unavailable for any reason to speak with the Father at the prescribed times, the Mother shall facilitate and initiate a return call to the Father within 24 hours of the missed call.
8.The Father shall meet the Mother’s costs of:-
(a)the bus fares for the Mother and the two children from (omitted) to (omitted) and return; and
(b)the costs of accommodation for the Mother and children in (omitted) to the extent that it exceeds $140 per night.
9.The Mother shall be responsible for the airfares for herself and her children from Brisbane to (omitted) and return. …”
On 24 January 2012, the Father filed an Application in a Case seeking to reopen the evidence as a result of what was alleged to be a major change in the attitude of Y to spending time with the Father. On 2 February 2012, the Court ordered a reopening and directed the further hearing of the Application to be adjourned to 16 February 2012 for the purpose of hearing submissions as to:-
a)Whether cross-examination of the witnesses and parties in respect of the new material relied upon is required and should be permitted.
b)Whether any further evidence from the Family Report writer should be procured; and
c)Such further directions as to filing further submissions and the like as may be deemed necessary.
The Mother was directed to file any affidavits in response to those filed by the Father on 1 February 2012. On 10 February 2012 the Mother did file further affidavits.
On 16 February 2012, I directed that further submissions in writing be filed – the Father doing so on 21 February 2012 and the Mother doing so on 24 February 2012. As no further cross-examination was sought, the matter then stood reserved for judgment. The Court ruled it would allow the further evidence of the parties to be relied upon.
On 16 August 2012, the Father brought a further application to reopen which was supported by his affidavit filed 16 August 2012. The Mother filed a Response and Affidavit in support by electronic means on 23 September 2012. The Court at that time indicated that reasons for judgment were almost completed, however if the anticipated date for delivery of Friday 28 September was to be met, then there was insufficient time to allow any testing of the more recent evidence. The parties took advice and both solicitors indicated their instructions for the judgment to be delivered on Friday as scheduled, and on that basis, the Court would consider, and take into account, the recent affidavits filed. The Court was then urged to make an interim order for X to spend time with the Father, as he was currently in South East Queensland. After hearing submissions, including those of the Mother opposing overnight time because of the many months that the child had not spent time with the Father, the Court ordered that X spend time from 9.00am on Tuesday, 25 September 2012 to 5.00pm on Wednesday, 26 September 2012 in (omitted), with changeovers to occur in (omitted).
Family Report
Experienced social worker Ms D interviewed the family on 21 April 2011 and produced a report dated 12 May 2011 (Exhibit 5). The report writer was the subject of cross-examination. It is not necessary for these reasons to incorporate large proportions of the report. The following aspects of the evidence (as tested or otherwise) are of some relevance to the determination of this matter:-
a)At the time of the interviews, and as the report observed, the Father was having limited supervised time with X and had spent no time with Y since January 2011. The observations, at that time as a result, need to be considered in that context. In her cross-examination, the time the Father had spent with the children as accurately portrayed in the Father’s Case Outline was put to Ms D, such that her evidence of future arrangements was at least shaped by that updated understanding.
b)The Father explained to the report writer how he had lived at (omitted) all his life and that his family own three (omitted) properties, As a result, he says that if it were possible for him to relocate he would but “given his life of work and commitments” it is not possible. This was consistent with his evidence to the Court and, I regard this dedicated Father, as truly stuck within this dilemma.
c)The Mother was observed, at that time, as finding it a struggle to consider Y spending time with Mr Carrington (see paragraph 14). It was not surprising that the report writer identified as an issue, at paragraph 16(d), “Ms Raso’s capacity to promote the children’s relationship with Mr Carrington”. This issue looms large in this case and is separately dealt with below in these reasons.
d)The assessment by the report writer of the Father as “being a man of the country” is entirely consistent with my assessment of his demeanour and evidence. In fact, I was impressed with the raw honesty and clear genuineness he displayed. I can accept, in the rough and tumble of daily rural life, he would present differently – however he is a caring man who is struggling to accept and come to terms with the upheaval in his life created by the short ambivalent relationship; the birth of X; the loss of relationship with Y and the difficulty in spending more time with X since separation.
e)The reasons which Ms Raso gives for not returning to (omitted) (see paragraph 33) are consistent with her other evidence. She clearly has supportive family in the (omitted) area. I accept that she would, as she says, feel isolated living even in (omitted) or (omitted). She also presented to Ms D as a woman with a past disposition to depression. Whether it was only “situational” as alleged by the Mother is not possible, on the evidence, to accept. Her anxieties about the time that the Father wished to spend with Y and the growing relationship with his son X, would not be easily masked by her. My sense is that to try and shield or explain her anxieties, she had at times the capacity to exaggerate or dramatise some of the Father’s past behaviour.
f)When interviewed by Ms D, Y explained his version of the “hair pulling” incident (paragraph 38) and the “bike” incident (paragraph 40). Y had witnessed lots of yelling between the Father and the Mother. There was a theme through some of his remarks to Ms D that his Mother and Mr Carrington should be “married”. This reflected, in my view, his immaturity.
g)The interaction observed by the report writer between Y and the Father was positive. The Mother could not, and would not, allow herself to see anything positive for Y out of the interaction (see paragraph 58). This view seemed to be shared by the maternal grandmother on the day (see paragraph 60).
h)The observations between the Father and X were positive and affectionate. It is also consistent with the observations of Ms D; the recorded remarks of Y and the evidence at trial overall, that the boys have a close and, I would find, extremely important sibship bond. Y was able to distinguish between the need for X to spend time with the Father, and what he knew to be his Mother’s reluctance for him to spend time with Mr Carrington. This revealed, in my view, some insight beyond his years.
In her evaluation and during cross-examination, Ms D did not retreat from her observation that this case creates a “no win” situation for the children. I agree that the Mother “is restricted by her perceptions of Mr Carrington as an allegedly abusive former partner” and that irrespective of the veracity of her allegations, the Mother’s “perceptions are real to her and are likely to have an adverse impact upon her capacity to appropriately parent the children”. I agree with the further opinion of Ms D that the Mother:-
“…is currently highly emotionally dependent upon her parents who reside in (omitted) and would likely be emotionally destabilised without this avenue of support.”
In so finding, I do note that the Mother did, on her father’s evidence, cope well as a single mother living in (omitted) before the relationship with Mr Carrington.
I accept X and Y are primarily attached to the Mother, and as Ms D under cross-examination opines, and I accept, that the time X spends with the Father needs to build up over time and that ideally this young child should not “be separated from either of his parents for more than two or three days without it having some affect upon his attachment to them”.
Because of the distances involved (and noting that Ms D did not make any recommendation about whether the Mother should return or not), if the parents continue to live where they prefer, any arrangement for X, whilst possibly “acceptable” will not be “ideal”. In that regard, Ms D was of the view that the children (or X alone) should not live with the Father, for the reasons set out at paragraph 88. I agree.
Overall, I found Ms D’s evidence of great assistance. I attach some weight to her opinions. Regrettably, whilst I agree with her concluding paragraph that:-
“89.It is thus my assessment that the pathway forward that best serves the children’s interests is the one that will have the least harmful affects upon them.”
achieving an order with as little adverse affect as probable is the challenge.
Position in respect of Y
Had the Mother and Father’s relationship survived and prospered, I would confidently speculate that the child and Mr Carrington’s relationship would likely have cemented – and Y would have greatly benefited from such male role modelling. In that respect, I entirely agree with what Ms D says at paragraph 82 of her report that “the incidents of alleged abuse, on the spectrum of harm, were on the lower scale”, and whilst they should not be condoned, they are consistent with behaviour commonly seen in a rural context where conditions can be harsh and resilience required earlier in life.
Alas, for Y however:-
a)The Mother does not support his relationship with Mr Carrington;
b)The relationship was of short duration – and whilst exciting and different at the time – has now been consumed by later events; and
c)Most relevantly, the Mother has initiated and promotes and encourages Y having a relationship with his biological father, Mr P.
The evidence from Mr P was brief. He was not a party to the proceedings. However, he made himself available for cross-examination and whilst I think he did just walk out of Y’s life all those years ago, he is now delighted to have this opportunity to get to know his son and develop a relationship with him.
There is every reasonable prospect that the Mother did say to Mr Carrington, that Mr P was a violent and aggressive man and this caused their relationship to end – and was the reason (in the Mother’s view) why she did not pursue the child Y spending time with Mr P. On the limited evidence available, Mr P is a suitable and interested male role mode for Y. I do not say he is superior or inferior to Mr Carrington.
I agree with the suggestion of Mr Curran, Counsel for the Father, that the Mother initiated the contact with Mr P and that the mediated agreement (Exhibit 4), was used as a “shield” in these proceedings to some extent.
However, although I have come to the clear view it is not in Y’s best interests to make an order he spend time with Mr Carrington (noting of course that little time has occurred now during 2012), it would be my hope that through the increasing strong relationship the Father will develop with X, in time the happy memories generally which I believe Y retains about his time on (omitted) and of the Father and his family, will generate a desire to go back and visit.
In my view, this is only likely to occur when the child gets older and might occur when X is of school age and spending time on holidays with his father.
Will the Mother facilitate time, and encourage X’s relationship with the Father?
As set out in the earlier section of these reasons, with Y now being encouraged by the Mother to spend time with Mr P, and because the Mother has been for Y his almost sole carer since his birth, her “protection” of Y stems from a quite different time and place.
The difficulties that arise in making arrangements for X to spend time after the Mother separated and moved to (omitted) include:-
a)what arrangements for an interim order are appropriate – even if the distance were not an issue;
b)the fact that distance – and the Mother’s financial resources – is an issue;
c)the inability for a child of X’s age to travel unaccompanied. The Court understands some airlines will take the responsibility for unaccompanied children travelling from the age of five years. X is only aged 2½ years;
d)the poor and ineffective communication of the parents. The Mother, quite naively, thinks that the interests of X can be met into the future without her and the Father speaking – which is how she feels. This poor communication means that quite specific orders need to be prescribed.
The Father submitted finally, that if the children do not live in or close to (omitted), then there is less chance or opportunity for his relationship with the children (particularly X), to be interrupted and ultimately destroyed. A further aspect of that submission was that the Mother is so opposed to the Father having a relationship with the boys (particularly Y), that she “will only do so as the Court orders”.
To some degree, the history might also raise doubts about whether the Mother will comply with orders. Certainly, it is my view she did so to the time of the hearing last year. After orders were made to incorporate Christmas and January time, the Father brought his application to reopen. The very detailed, well structured and comprehensive written submissions of the Father filed 21 February 2012, in which the Father asserted the Mother had “alienated” Y from him and this leads him to the concern that “the Mother will alienate X in the same manner over time to the point that X also will not wish to spend time with the Father”, have been carefully considered.
I do not entirely accept this submission. I have already explained why Y and X, although having the same Mother, are in two quite different developmental stages and have a quite different relationship history with the Father.
I do not however say that I have no concerns in this regard. The evidence post the trial reveals a significant deterioration in the relationship with Y culminating in the child refusing to spend time with Mr Carrington from 29 January 2012. That situation has continued.
The Father alleged further adverse behaviour of the Mother around Skype calls and also changeovers. In the said further written submissions, the Father urged that the only alternative now was for X to live with the Father. The Father was alert to the issue of separation of siblings – having decided to no longer seek time with Y.
It is fair to note, that the Court also has considered the further two affidavits of the Mother filed 10 February 2012 and those of her parents. Submissions on her behalf filed 24 February 2012 set out details of the growing decay in the relationship between the Father and Y.
I find that certainly the Mother did not encourage the relationship between Y and the Father but, it seems likely that relationship was more tenuous once the involvement of his biological father Mr P was initiated.
The evidence supporting the application filed 16 August 2012 is the Father’s affidavit filed on that date. Noting that this evidence has not been tested, I do accept that the delay in judgment has (despite every reasonable endeavour by the Father’s solicitors in writing), made it difficult to reach any agreement with the Mother about arrangements to see X. The stream of correspondence is before the Court. Proposals and counter proposals were rejected. The Father says that the Mother began refusing overnight time. This became, it seems, the next level of conflict (see Mugford Lawyers letter of 8 June 2012).
The Mother, in my view, ought to have facilitated time, including overnight time in either (omitted)and/or (omitted) as the Father was broadly suggesting, but I would not regard it as unreasonable during this period for the child not to spend overnight time in (omitted) without clear agreement as to costs of travel etc (as this Court made on an earlier occasion). To complicate matters, the lawyers representing the Mother changed.
I regard the Mother’s failure to reach a reasonable arrangement in South East Queensland during this period, as doing her little credit. I have read the Mother’s explanation set out in her affidavit.
It was disingenuous of the Mother to have been the major contributor to less than satisfactory arrangements for X to spend time with the Father occurring since March 2012, and then to say that because of the lack of time, no overnight time should occur.
When I dealt with this matter on Monday, 24 September 2012, and after considering this material and the submissions, I ordered the Father to spend time with X from 9.00am Tuesday, 25 September 2012 to 5.00pm Wednesday, 26 September 2012. The Mother offered, properly in my view of the history, that the child should have a changeover at a Macdonalds Restaurant in (omitted) as the Father was staying with relatives there.
In my view, although the Mother could have been far more co-operative, I have formed the view the Mother will comply with specific orders made. The orders will ensure that a reasonable opportunity exists for X to continue to develop his relationship with the Father. As I allude to below however, I am prepared to consider whether the interests of X are served by making an interim order rather than a final order for the time X spends with the Father - in a context, as the following further analysis explains, where the Court intends to order the child X shall live with the Mother in (omitted).
Primary considerations
In circumstances where the only orders now sought by the Father are in respect of X, the findings which follow only relate to that child. I rely upon but do not repeat earlier findings made above.
It is in the best interests of X to have a meaningful relationship with both his Mother and his Father. The Father argues that this cannot be achieved unless the Mother returns to (omitted) or at least within 300 kilometres from that town. From his perspective, and understandably so, he cannot move from the area where he has always lived and continues to work the large family rural properties. Although he does not say as much, what his proposal requires is the Mother to move closer to where he chooses to live. As already assessed, the Father goes further with his February 2011 submissions to assert that the only way now that X can have a relationship of a meaningful nature with him, is for the Father to live with him.
In my view, although not optimal, the orders I propose to make will (if complied with), allow the Father to develop a closer relationship with his son, which will be of benefit to his son. I do not accept the Mother is dismissive of the importance to X of such a relationship.
The Mother has been the primary carer for X and her relationship is meaningful and also critical to preserve and nurture.
The Mother asserted the Father was a risk to Y and, as a result, could be a risk to X. The foundation for such a contention was the incidents referred to earlier by me as the “hair pulling” and “bike” events. I reject this submission. I find that the child X would not be of risk, either emotionally or physically, in the care of the Father or likely to be the subject of abuse.
The Mother’s past behaviour does raise some concerns about her capacity to separate her feelings and view of the Father from the needs and best interests of the Father so far as X is concerned. For reasons already given, I do not regard the Mother’s opposition to contact between the Father and Y as a reliable indication of the future for X. I take this into account.
The only other factor appropriate to mention at this juncture, is the difficulties the ineffective communication between these parties creates for X. To some degree his young age might have allowed him to be unaware of the conflict between his parents and the poor communication which has resulted. He will not be immune from those pressures and unpleasantness in the future unless both parents develop some insight into their contribution to that conflict. If the parents have not already done so, I intend to order they individually complete a post-separation parenting course. I also regard it as appropriate to note that I hold some concerns that the maternal grandmother has, in her support of her daughter, crossed the boundary on some occasions. There are a number of allegations about how the grandmother is alleged to have negatively interfered – including even at the report interviews. Whilst emotions can run high in cases in this jurisdiction, grandparents are often able to offer support but also some calming and reflective insights. I am satisfied that the Father’s family have generally done so, as has the maternal grandfather. The maternal grandmother, once these proceedings are over, should try to support the child X’s relationship with his Father, and if she cannot make a positive comment it would be better to say, and do, nothing.
Additional considerations
The child is too young for any wishes or feelings expressed to be determinative. However, the report of Ms D and the evidence I have heard, satisfy me that the child’s behaviour reflects a clear desire and wish to spend time with his Father.
I have already indicated that clearly the child’s primary bond is with his Mother. Although the Father says, when they lived as a couple, the Mother did not allow him to be as involved as he wished, it needs to be remembered X was only 9 months of age when the parties separated. The role a birth mother plays during that period is inevitably greater than that of the most committed Father. The fact that the child was so young when separation occurred, yet demonstrated such a warm relationship with the Father just 4 months later with Ms D (see paragraph 61), spoke volumes of the way he must have spent time with the Father since birth. By the time of trial (when X was 21 months of age), the further visits had further developed that closeness.
I am satisfied that X is in no sense “underloved”. The Father’s family, who gave evidence but were not required for cross-examination, clearly enjoyed every opportunity they have had (more limited than they had hoped) to build their relationship with X. Because of farm commitments that must be attended to when the Father is in South East Queensland seeking X, the chances for the paternal grandparents to spend time with their grandson is less than ideal as well. The Father has family in the (omitted) area and many visits since separation have occurred there. Not only because it is enriching and important for X to gain an understanding of his Father’s rural/farm lifestyle but also to provide better opportunities for paternal grandparent interaction, the orders must provide opportunities, for X to travel to or around (omitted) on a regular basis (I would opine, about four times per year), to gain that understanding.
The paternal grandparents offer support to their daughter and also clearly love X – who they spend time with regularly. That is of benefit to him and, on their evidence, would be more difficult for them to achieve if the Mother was required to live in Central Queensland.
As was alluded to earlier, the relationship X has with his big brother Y is extremely important. Y is settled in school and appears to enjoy where he currently lives. The Father’s proposal that the siblings be split so that X may live with him, shows a lack of understanding of the importance of this sibship bond by the Father (at best) or a desire to elevate his relationship with his son over every other relationship the child has now (at worst). I prefer, on balance, to see the proposal as a reflection of his level of frustration. Nothing in the evidence could at this stage persuade the Court it was in the best interests of X to separate him so significantly from his Mother or his sibling. Clearly, as the authorities make clear, I should not make an order like that as a way of having a coercive effect on the Mother – for example forcing her to relocate.
I see no need to say anything further about s.60CC(c) of the Family Law Act 1975, other than to observe that because physical interaction achievable in this matter cannot be as frequent as might be ideal, electronic interaction by phone or Skype become even more important. When it does not occur, it not only adds to frustration and anger in the parents, it disrupts the orderly routine of this young child. He is entitled to look forward to “seeing” his father or speaking to him. He should wherever possible, not be disappointed.
In the evaluation below I deal with my findings about the likely effect on the child of the various proposals contended for by the parents.
As both parties acknowledge, the remoteness of the Father’s home and distance between the current residences do provide significant practical challenges. In some ways, even though the distance between Brisbane and Melbourne is greater (for example), with cheap airflights and plenty of them the effect on travel and costs of travel can be managed. When the Mother decided, after her internet courtship with the Father, that she wished to pursue a relationship and have a child with a farmer, she ought to have envisaged that if it did not work out, these dilemmas would arise. In some ways, this is what the Father says. The Mother, with the support of her parents, said she could meet the costs of four trips to (omitted) per year. I intend to shape orders which take up every one of those opportunities. However, those four “blocks” (however configured) are insufficient for X and his relationship with his Father and, one of the submissions I will seek in terms of the orders to be made, is a better understanding of the Father’s willingness and capacity to travel to South East Queensland. I regard the term “practical difficulty” as raised in s.60CC(3)(c) to be wide enough to extend to the “difficulty” the child will experience for long travel burdens for short periods of time. In short, it is hard for the Court to see any net benefit to the child of travelling to (omitted) for a weekend, for example, save for some special family events.
Although the Mother has demonstrated (including with her care of Y) the capacity to parent and an appropriate attitude to parenting (save for matters already raised), the Father has had much less of an opportunity to do so. His commitment (both physically and financially) to travel so often to South East Queensland does reveal a genuine effort to maintain his relationship with X – even after the acute disappointment of his time with Y ending. Although the Mother might say that when, in more recent months, the Father did not avail himself of the day time contact she offered – her proposals were neither generous or well considered. The Father rejected many of them because, in his view, and in mine, his time was going “backwards”. The costs of travelling so far for so little also had an impact.
However, one of the major impediments to the Father being a strong candidate for X to residing with him (if he had been able to get over the hurdle of separation from his Mother and sibling), is his work hours (40-50 hours per week) and farm commitments. This is not meant to be a criticism per se, but an observation that for a great deal of the time X would be preschool (and after then home schooled), the Father would need to rely on his mother or a nanny to assist. I know many children in rural locations develop great relationships with their fathers – even when those father’s work long hours under difficult conditions. However, X would be expected to do so without the support of his mother or brother.
That is simply, at his age and state of development, contrary to his best interests.
Although some tensions and verbal disputes clearly existed between the Mother and Father (confirmed by what Y said to Ms D), issues of family violence do not arise in this matter. I have already made a finding about the allegations of abuse directed to Y.
The Act requires, under s.60CC(3)(f), to consider “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”. In this respect, and another reason why I wish to take some further brief submissions from the parties, is that it might be open in this case to make an order on an interim basis (as to the time X spends with his Father) because of his age and because of the Father’s lack of confidence that the Mother will comply. Another option would be to incorporate into the orders, a provision that any application to vary or enforce the final orders which is made before, say, 31 December 2015, be listed before Federal Magistrate Baumann initially. In this way the history of contact and the underlying suspicions and denials (which a judgment need only deal with as a topic briefly) would be known at the time of such application. I will hear the parties further on that suggestion.
Evaluation
It is in the best interests of X that his Mother and Father have the benefit of an order that they have equal shared parental responsibility. Although the communication between them has been damaged by the way separation occurred and the frustrations the Father has experienced in exercising time with both boys, it is my view that each of them has both a legitimate and important role to play in the future decisions of their son. They are simply two quite different people from different backgrounds and life experience – but I would predict that their individual focus on the best interests of X would not impede an effective decision making and consultative process being implemented.
The order for equal parental responsibility, triggers the obligation to consider whether rit is in the best interests for X to spend equal time or substantial and significant time with each parent. Developmentally, and consistent with the evidence of Ms D, equal time is not appropriate. Some regime of substantial and significant time would be in the child’s best interests – reflecting the view of Ms D that X’s separation from either parent for more than a week (she actually opined 3-4 days), is not ideal.
However, the Act requires that not only must the Court consider the best interests of the child, but is also required as a distinct and separate factor, whether such orders are “reasonably practicable”. The High Court in MRR v GR [2010] HCA 4 made it clear that the Court must consider the reality of the situation.
In this regard, for the reasons given above, it is not realistic to require the Mother to return to the isolation and distance herself from her family support, expected to occur should the Court order her to live within 300 kilometres of (omitted). Furthermore, it would add additional pressures on the Mother as the parent of Y to do so – and this would have, in my assessment, an adverse effect on her parenting of X. I do not ignore the fact that if the Mother moved further north, that it would be easier for Y to spend time with his biological father, Mr P.
It is not in the best interests for the child X to live with the Father and, as a consequence, be separated from his Mother and sibling.
As a result, the Court has formed the view that within the scenarios presented to it, the regime which does meet the best interests of X, is for him to continue into the future, to reside with his Mother and sibling Y in South East Queensland.
The challenge is then to make orders, bearing in mind the distance and costs and time of travel, that gives X the best opportunity to continue to develop a strong and loving relationship with his Father.
It seems to me, considering the terms of the Application in a Case filed 16 August 2012, that the Father had identified a number of occasions in the immediate future, when the Father was available to spend time with X and where the changeover would be at (omitted). I am also now aware of the desire for X to participate in the wedding ceremony for the Father’s sister – to occur in (omitted) – later this month. That is an important family occasion, and X should attend.
I will take further submissions from the parties, and would invite the solicitors for the Applicant Father to prepare a draft minute of order which incorporates the following broad parameters:-
a)The Mother, at her expense, shall travel to (omitted) on four occasions each year for one week. It is likely this will occur during school holidays, because of the Mother’s parenting responsibilities to Y. The Mother will meet the costs of travel to (omitted) for herself and X, including accommodation.
b)Over that week, during 2013 and 2014, the child X will spend time with the Father, for the first three occasions in say December 2012, April 2013 and June 2013, a period of two nights duration on three occasions. I would then propose from mid-2013, X would spend two blocks of three nights with his Father until the end of 2013. From the beginning of 2014, I would order that X spend for the first two blocks – a three night and a four night block (the Mother will need to extend her time in (omitted) to eight nights to do so), and then commencing September 2014, the child would spend seven nights in one block with the Father. By this stage, the Mother would, if she chooses, be able to merely travel with X to (omitted) and return – rather than being required to remain in Central Queensland.
c)The Father will be responsible for undertaking the travel from (omitted) to the property and return.
d)From March 2015, X should be able to travel unaccompanied. I would still regard it as proper for the Mother to meet the costs of travel to (omitted), because of the costs the Father will incur in coming regularly to (omitted) to see X.
e)It may not be possible for the Father to prescribe actual dates he can come to South East Queensland – however at least two times between the almost three monthly visits to (omitted) would be the minimum. It may be that the Father should be permitted to give notice to the Mother of not less than say one month of his planned trips down. Although I accept that the travel between (omitted) and (omitted) involves about two hours travel, it seems to me that as the Father travels a much greater distance, unless otherwise agreed, the changeovers should take place for these visits in (omitted).
f)For the period to the end of November 2012, the visits should be of one nights duration, however, they could then extend to two nights duration. From mid-2013, considering that X will not be at school, and provided the Father was prepared to return the child to the Mother on the Monday at (omitted), the Court would order that X spend from Friday afternoon (changeover at (omitted)) to Monday morning (changeover at (omitted)) with the Father.
g)The child spending time with the Father over Christmas in (omitted) is problematic. I will hear submissions as to what is practicably possible, considering that X is also entitled to spend Christmas (ideally) with his brother and maternal family. Unless it were possible for some Christmas event to take place in (omitted) it would appear that a Christmas in (omitted) is not achievable until X probably commences school.
h)Paragraphs 2 and 3 of the Application in a Case filed 16 August 2012 set out the Father’s proposal for Skype (or if unavailable, telephone), and subject to any practical difficulties of which the Court is currently unaware, the Court would adopt that proposal.
i)Both parents should complete a post orders parenting program to encourage and facilitate a better understanding of how they may contribute to more effective and respectful communication.
The usual orders for sharing of information, and authorities to health professionals and educational institutions attended by X should be incorporated in the orders.
It is not appropriate to make any prescribed enforceable orders about Y spending time with Mr Carrington. It would be a possibility in the future, that Y may express an interest in visiting the farm during one of X’s trips there and I would hope the Mother would facilitate such attendance by Y.
I will take further submissions on the form of the orders at 1.00pm on Wednesday 8 October 2012.
I certify that the preceding ninety- five (95) paragraphs are a true copy of the reasons for judgment of Baumann FM.
Date: 3 October 2012
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