Carson and Carson
[2013] FMCAfam 39
•24 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CARSON & CARSON | [2013] FMCAfam 39 |
| FAMILY LAW – Parenting – live with and spend time with – relocation application – competing applications – best interests of the child – consideration of parental responsibility – consideration of equal shared parental responsibility not rebutted – application of objects and principles in conjunction with consideration of factors determining the best interests of the child – evidence as to issues of mother’s mental and physical health – risks arising from same – capacity of each parent to provide for the child’s physical and emotional needs – consideration of evidence of family reporter – consideration as to whether basis for recommendations of family reporter established – consideration of effects upon child of change in location and time to be spent with significant persons in the child’s life – consideration of each parent’s capacity to foster a meaningful relationship with the other parent and others significant in the child’s life – determination of with whom child should live and parent to spend time with child. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 61DAC, 61DAE, 65DAA |
| Lansa & Clovelly [2010] FamCA of 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell and Chappell (2008) FLC 93-382 |
| Applicant: | MR CARSON |
| Respondent: | MS CARSON |
| File Number: | TVC 834 of 2012 |
| Judgment of: | Coker FM |
| Hearing dates: | 6 & 7 December 2012 |
| Date of Last Submission: | 7 December 2012 |
| Delivered at: | Townsville |
| Delivered on: | 24 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Boulton Cleary & Kern |
| Counsel for the Respondent: | Ms Mayes |
| Solicitors for the Respondent: | O’Shea & Dyer |
ORDERS
That the Father and the Mother have equal shared parental responsibility in relation to the major long term issues of the child, [X] born [in] 2007, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health; and
(d)the child’s name.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
That the child live with the Mother in Townsville.
That the Father spend time with the child at all reasonable times as may be agreed and in particular:
(a)For one weekend in each month in Brisbane from after school Friday until Sunday evening or Monday evening, should the Monday be a public holiday or pupil free day, such weekend to be at the election of the Father, with the Father to provide to the Mother at least 21 days notice in writing as to the weekend that will be spent with the child;
(b)For the whole of the Queensland end of Terms 1, 2 and 3 school holiday period;
(c)For one half of the Christmas school holiday period in each year and unless otherwise agreed in writing between the parties, for the first half in each odd numbered year and for the second half in each even numbered year;
(d)Should the Father be visiting the Townsville area for a period of more than four (4) days, the Father spend additional time with the child in or about the Townsville area at all times agreed between the parties including a period of at least three (3) consecutive evenings. The Father to provide the Mother with at least twenty-one (21) days advance notice of his intention to travel to the Townsville area and the dates he wishes to spend time with the child. Should the Father’s three (3) consecutive evenings with the child occur during the school week, the Father is to ensure that the child is taken to and from school. This arrangement may occur on up to six (6) occasions each year but not coincide with the Christmas school holiday period;
(e)Should the Father be visiting the Townsville area for a lesser period than four (4) days, the Father is to spend additional time with the child in or about the Townsville area at all times agreed between the parties and for not less than two (2) afternoons from 4.00pm to 7.30pm. The Father to provide the Mother with at least twenty-one (21) days advance notice of his intention to travel to the Townsville area and the days he wishes to spend time with the child.
That notwithstanding the provisions of Orders 4 and 5 herein, should the Father commence to reside in the same locality as the Mother, on or before 31 December 2015, then and in that event the child is to live with each parent on a week about basis, with handover to occur at a time agreed between the parents in writing and failing agreement, after school Friday during the gazetted school terms.
That should the child be living with each parent pursuant to the terms of Order 6 herein, then the child is to spend one half of all gazetted school holiday periods with each parent and unless otherwise agreed, the first half with the Mother and the second half with the Father in each even numbered year and the first half with the Father and the second half with the Mother in each odd numbered year.
That provided both parents are in the same locality, and the child is living with the parents pursuant to the terms of Order 6 herein, then the child is to spend time with the parent they are not otherwise living with on special days at times to be agreed between the parents, but failing agreement, as follows:
(a)For a period of not less than four (4) hours on Christmas Day at times agreed between the parties but failing agreement from 4:00pm to 8:00pm;
(b)With the Father from 9.00am to 6.30pm on Father’s Day;
(c)With the Mother from 9.00am to 6.30pm on Mother’s Day;
(d)On the child’s birthday at times agreed between the parents and failing agreement for three (3) hours from 4:00pm to 7:00pm if a school day and if a non-school day for five (5) hours at times agreed between the parents but failing agreement from 2.00pm until 7.00pm;
(e)On the Father’s birthday, at times agreed between the parents and failing agreement from 3.00pm and 6.00pm; and
(f)On the Mother’s birthday, at times agreed between the parents and failing agreement from 3.00pm and 6.00pm.
That for the purposes of defining the same locality, unless otherwise agreed in writing between the parents, it shall be defined as a distance of no more than 20 kilometres from the residence of the Mother, so as to ensure that both parents are able to facilitate the child’s continued attendance at the school at which she is enrolled as well as her continued participation in extra-curricular and social activities as arranged.
That for the purposes of defining the whole of and half of gazetted school holiday periods which may arise pursuant to Orders 5 and 7 herein, unless otherwise agreed in writing between the parties, the following shall apply:
(a)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(b)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(c)The whole of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Sunday preceding the recommencement of school;
(d)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(e)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That the time that the Father spends with the child pursuant to Order 5 herein shall be subject to the following travel costing arrangements and obligations:
(a)That the Father be responsible for paying two-thirds of the travel costs for the child and the Mother be responsible for paying one-third of the travel costs for the child upon a basis agreed in writing between the parties, and failing agreement, as follows:
(i)The Father pay for the child’s return flights on the first two occasions that the Father spends time with the child and the Father be responsible for making those flight arrangements;
(ii)The Mother pay for the child’s return flight on the third occasion that the Father spends time with the child and the Father be responsible for making those flight arrangements;
(iii)The Father pay for the child’s return flight on the fourth and fifth occasions that the Father spends time with the child and the Father be responsible for making those flight arrangements.
(iv)The Mother pay for the child’s return flight on the sixth occasion that the Father spends time with the child and the Father be responsible for making those flight arrangements;
(v)Such arrangements to continue on this basis with the Father paying for two out of every three flights;
(vi)The Father is to notify the Mother of such arrangements no less than 14 days prior to the date of travel, with the Father to be responsible for the payment of such flights and on the occasions that the Mother is to be responsible for the payment of the flights that she reimburse such costs to the Father within 7 days of receiving notification.
That in the event of the Father and the Mother not living in the same locality, then the parent not having the child in their care be able to communicate with the child by telephone, skype or other electronic means at all reasonable times and in particular each Wednesday and Sunday between the hours of 6.00pm and 7.00pm, with the parent not having the child in their care being responsible for facilitating the telephone, skype or other electronic communication, and the parent with the child in their care to ensure that the child is available to take the call in a quiet and private environment.
That in the event of the child living with the Mother and the Father pursuant to the provisions of Order 6, then the parent not having the child in their care be able to communicate with the child by telephone at all reasonable times and in particular, each Wednesday between the hours of 6.00pm and 7.00pm, with the parent not having the child in their care being responsible for facilitating telephone communication and the parent with the child in their care to ensure that the child is available to take the call in a quiet and private environment.
That the Mother and the Father, within 7 days of the date of this order if they have not already done so, purchase a webcam so as to ensure that communication can occur as often as possible by use of skype technology.
That should the child express the wish to do so, the child be permitted to contact the other parent with the parent whom the child is living with to facilitate the call.
That both parents advise the other of each parent’s address and telephone number, including any change of address and/or telephone number, within 48 hours of such change occurring.
That unless otherwise agreed in writing between the parties, each party is restrained from relocating the residence of the child from Townsville other than for the purposes of holidays or other agreed travel.
IT IS NOTED that publication of this judgment under the pseudonym Carson & Carson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 834 of 2012
| MR CARSON |
Applicant
And
| MS CARSON |
Respondent
REASONS FOR JUDGMENT
This matter has come before the court with considerable haste. The application initiating the proceedings was only filed on 8 August 2012 and the matter itself proceeded to hearing on 6 December 2012. The haste was brought about, in part, by the parties’ willingness to make themselves available urgently and the need to determine the matter as quickly as possible, in light of the fact that no matter what might be the outcome in relation to parenting arrangements with regard to the child, [X], that one parent or the other would have the child primarily in their care, because of the father’s intention to relocate to Brisbane for perfectly legitimate purposes of furthering his career and the mother’s intention to remain in Townsville, where she has established a new relationship, friends and other support.
The proceedings were commenced by Mr Carson, whom I shall refer to as “the father”. In his application he sought orders with regard to parenting of the child of he and Ms Carson, whom I shall refer to as “the mother”. That child, [X], to whom I have already referred, is five years of age, having been born [in] 2007. The orders that the father proposed in relation to the parenting of the child were generally suggested to provide for the child to live with him but for there to be equal shared parental responsibility in relation to decisions to be made with regard to the parenting of the child. The live-with arrangements would then allow him to relocate the permanent residence of the child from Townsville to Brisbane.
The father’s proposed orders in relation to the matter were extensive. They detailed arrangements in relation to the child spending time with the mother and then went on to specifically particularise proposals with regard to the payment of flights, general arrangements in relation to notifications to be provided to each other and for arrangements in relation to electronic communication between the mother and the child.
The terms of the orders are detailed in the father’s outline of case 1 through 16.3 and are in these terms:
Equal Shared Parental Responsibility:
1.That the Father and Mother have equal shared parental responsibility in relation to the major long term issues of the child, [X] (born [in] 2007) including but not limited to:
1.1 The child’s education (both current and future);
1.2 The child’s religious and culture upbringings;
1.3 The child’s health; and
1.4 The child’s name.
2.That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
2.1 They shall inform the other parent about the decision to be made;
2.2 They shall consult with each other on the terms that they agree;
2.3 They shall make a genuine effort to come to a joint decision.
3.That notwithstanding the previous Order 1:
3.1 The Mother shall be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with her; and
3.2 The Father shall be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with him.
Who the children ‘lives with’ and ‘spend time with’:
4. That the Father be allowed to relocate the permanent residence of the child from Townsville to Brisbane.
5. That the child live with the Father in Brisbane.
6. That the child spend time with the Mother as follows:
6.1 For one week-end in each month, in Townsville, during the school terms, from Friday until Sunday, at the Mother’s election with the Father to provide the Mother with 21 days advance notice as to the time the Mother will spend with the child.
6.2 For the whole of the Queensland end of Term I (Easter) school holiday period each year.
6.3 For the whole of the Queensland end of Term II (June / July) school holiday period each year.
6.4For the whole of the Queensland end of Term III (September) school holiday period each year.
6.5For the first half of the Queensland Christmas school holiday period in every even numbered year and the second half of the Queensland Christmas school holiday period in every odd numbered year.
7. That should the Mother be visiting in the Brisbane area for a period of more than four (4) days, the Mother spend additional time with the child in or about the Brisbane area at all times agreed between the parties including a period of at least 3 consecutive evenings. The Mother provide the mother with at least 21 days advance notice of her intention to travel to the Brisbane area and the dates she wishes to spend time with the child. Should the Mothers (3) consecutive evenings with the child occur during the schooling week, the Mother ensure that the child is taken to and from school. This arrangement may occur on up to 6 occasions each year but not coincide with the Christmas school holiday period.
8. That should the Mother be visiting in the Brisbane area for a lesser period than four (4) days, the Mother spend additional time with the child in or about the Brisbane area at all times agreed between the parties and for not less than 2 afternoons from 4:00pm – 7:30pm. The Mother provide the Father with at least 21 days advance notice of her intention to travel to the Brisbane area and the days she wishes to spend time with the child.
9. That provided both parents are in the same locality (within 60km) or region of each other and the child at the one time, the child spend time with the parent they are not otherwise with pursuant to the above paragraphs as follows:
9.1 For a period of not less than four hours on Christmas Day at times agreed between the parties but failing agreement from 4:00 pm to 8:00 pm.
9.2 From 9:00 am to 6:30 pm on Mother’s Day.
9.3 On the child’s birthday at times agreed between the parents and failing agreement for three (3) hours from 4:00 pm to 7:00 pm if a school day and if a non-school day for five (5) hours at times agreed between the parents but failing agreement from 2:00pm until 7:00pm;
9.4 On the Mother’s birthday, at times agreed between the parents and failing agreement from 3:00pm and 6:00pm; and
9.5 On the Father’s birthday, at times agreed between the parents and failing agreement from 3:00pm and 6:00pm.
Payment of Flights:
10. That the time the Mother spends with the child pursuant to paragraph 6 above be subject to the Mother and Father complying with the travel costing arrangements set out in paragraph 11 below.
11. That when the Mother spends time with the child pursuant to paragraph 6 above, the Father be responsible for paying two thirds of the travel costs for the child, and the Mother be responsible for paying one third of the travel costs of the child, and this occur as follows: -
11.1 Following the making of the Orders, the Father pay for the child’s return flight on the first two occasions that the Mother spends time with the child pursuant to paragraph 6 above, and the Father be responsible for making those flight arrangements.
11.2 Following the making of the Orders, the Mother pay for the child’s return flight on the third occasion that the Mother spends time with the child pursuant to paragraph 6 above, and the Mother be responsible for making those flight arrangements.
11.3 Following the making of the Orders, the Father pay for the child’s return flight on the fourth and fifth occasions that the Mother spends time with the child pursuant to paragraph 6 above, and the Father be responsible for making those flight arrangements.
11.4 Following the making of the Orders, the Mother pay for the child’s return flight on the sixth occasion that the Mother spends time with the child pursuant to paragraph 6 above, and the Mother be responsible for making those flight arrangements;
and this arrangement continue.
Telephone Communication:
12. That both the mother and the father purchase a webcam in order to ensure that telephone communication can occur by way of skype.
13. That the parent not having the care of the child be able to communicate by telephone or skype with the child each Sunday and Wednesday between 6:00 pm – 8:00 pm with the parent not having the care of the child to facilitate the telephone call to the child and if possible these calls occur by way of skype.
14. That should the child express the wish to do so the child be permitted to contact the other parent with the parent whom the child is living with to facilitate the call.
General:
15. That both parents advise the other of each parents address and telephone number, including any change of address and/or telephone number, within 48 hours of such change occurring.
16. That for the purposes of defining the school holiday periods the following apply:-
16.1 The whole of the end of Term I, end of Term II and end of Term II Queensland school holiday period shall be from the Saturday which follows the last day of school until no later than 6:00 pm on the Saturday preceding the recommencement of school, or Sunday should Monday be a public holiday.
16.2 The whole of the Christmas school holiday period commences on the Saturday following the last day of school and concludes no later than 6:00 pm on the Saturday preceding the recommencement of school. Therefore the first half of the school holiday period will commence from the Saturday following the last day of school and conclude no later than 6:00pm on the day closest to the midpoint of the school holiday period.
16.3 The second half of the Christmas school holiday period commences at 6:00 pm on the day closed to the midpoint of the school holiday period until no later than 6:00 pm on the Saturday preceding the recommencement of school.
The mother’s response was filed some three or four weeks after the father’s application initiating proceedings was filed. She also sought orders with regard to equal shared parental responsibility in relation to the parenting of the child, but perhaps understandably proposed that upon the father’s relocation to Brisbane the child live with her and spend time with the father on a number of occasions, including arrangements during the gazetted school terms to provide for an opportunity for one weekend in each month in Brisbane as well as for significant parts of the school holiday periods.
The mother’s proposals went on also to detail, in the alternative, suggestions in relation to week-about arrangements in relation to parenting, should the parents live within 60 kilometres of one another. The mother agreed with the proposals generally put by the father with regard to electronic communication as well as the definitions of “school holiday periods” and the like. The terms of the orders proposed by the mother and detailed in the outline of a case provided by her were as follows:
1.That the Applicant’s application for an Order allowing him to relocate the permanent residence of the child to Brisbane be dismissed.
2.That the child, [X], born [in] 2007, live with the Mother in Townsville.
3.That the Father and the Mother have equal shared parental responsibility in relation to the major long term issues of the child including but not limited to:
a. the child’s education (both current and future);
b. the child’s religious and culture upbringings;
c. the child’s health; and
d. the child’s name.
4.That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
a they shall inform the other parent about the decision to be made;
b. they shall consult with each other on the terms that they agree;
c. they shall make a genuine effort to come to a joint decision.
5.That notwithstanding the previous Order 3:-
a. the Respondent/Mother shall be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with her; and
b. the Applicant/Father shall be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with him.
6.That upon the father’s relocation to Brisbane, the child spend time with the Applicant/Father as follows:-
a. For one weekend in each month in Brisbane during the school terms from Friday until Sunday, at the Applicant/Father’s election with the Respondent/Mother to provide the Applicant/Father with 21 days advance notice as to the time the Applicant/Father will spend with the child;
b. For the whole of the Queensland end of Term 1 (Easter) school holiday period each year;
c. For the whole of the June/July school holiday period each year;
d. For the whole of the Queensland end of Term III (September) school holiday period each year;
e. For half of the Queensland Christmas school holiday period each year to be spent between both parents;
f. Should the Father be visiting the Townsville area for a period of more than four (4) days, the Father spend additional time with the child in or about the Townsville area at all times agreed between the parties including a period of at least three (3) consecutive evenings. The Father to provide the Mother with at least twenty-one 21 days advance notice of his intention to travel to the Townsville area and the dates he wishes to spend time with the child. Should the fathers three (3) consecutive evenings with the child occur during the school week, the Father is to ensure that the child is taken to and from school. This arrangement may occur on up to six (6) occasions each year but not coincide with the Christmas school holiday period;
g. Should the Father be visiting the Townsville area for a lesser period than four (4) days, the Father is to spend additional time with the child in or about the Townsville area at all times agreed between the parties and for not less than two (2) afternoons from 4.00pm – 7.30pm. The Father to provide the Mother with at least twenty-one (21) days advance notice of his intention to travel to the Townsville area and the days he wishes to spend time with the child.
7.Notwithstanding paragraphs two (2) and six (6) of this Order, if at any time either party relocates to live within 60 km of the other party, the child is to spend time with each parent as follows:
a. Week about with each parent with handover to be Wednesday each week;
b Half the school holidays with the child to spend the first half with the mother in each even numbered year and the second with the father in each even numbered year and the first half with the father in each odd numbered year and the second half with the mother in each odd numbered year.
8That provided both parents are in the same locality (within 60km) or region of each other and the child at the one time, the child spend time with the parent they are not otherwise with pursuant to the above paragraphs on special days as follows:
a. For a period of not less than four (4) hours on Christmas Day at times agreed between the parties but failing agreement from 4:00pm to 8:00pm;
b. With the father from 9:00am to 6:30pm on Father’s Day.
c. With the mother from 9:00am to 6:30pm on Mother’s Day;
d. On the child’s birthday at times agreed between the parents and failing agreement for three (3) hours from 4:00pm to 7:00pm if a school day and if a non-school day for five (5) hours at times agreed between the parents but failing agreement from 2:00pm until 7:00pm;
e. On the Father’s birthday, at times agreed between the parents and failing agreement from 3:00pm and 6:00pm; and
f. On the Mother’s birthday, at times agreed between the parents and failing agreement from 3:00pm and 6:00pm.
9.That the time the Applicant/Father spends with the child pursuant to Paragraph 7 above be subject to the Respondent/Mother and the Applicant/Father complying with the travel costing arrangements set out below:
a. The Applicant/Father be responsible for paying two thirds of the travel costs for the child, and the Respondent/Mother be responsible for paying one third of the travel costs of the child, and this occur as follows:-
i. The Applicant/Father pay for the child’s return flights on the first two occasions that the Applicant/Father spends time with the child pursuant to Paragraph 7 above, and the Applicant/Father be responsible for making those flight arrangements;
ii. The Respondent/Mother pay for the child’s return flight on the third occasion that the Applicant/Father spends time with the child pursuant to Paragraph (f) above, and the Applicant/Father be responsible for making those flight arrangements;
iii. The Applicant/Father pay for the child’s return flight on the fourth and fifth occasions that the Applicant/Father spends time with the child pursuant to Paragraph (f) above, and the Applicant/Father be responsible for making those flight arrangements.
iv. The Respondent/Mother pay for the child’s return flight on the sixth occasion that the Applicant/Father spends time with the child pursuant to Paragraph 6 above, and the Respondent/Mother be responsible for making those flight arrangements;
v. Such arrangements to continue on this basis with the father paying for two out of every three flights.
10.That both the Respondent/Mother and the Applicant/Father purchase a webcam in order to ensure that telephone communication can occur by way of skype.
11.That the parent not having the care of the child be able to communicate by telephone or skype with the child each Sunday and Wednesday between 6pm – 7pm with the parent not having the care of the child to facilitate the telephone call to the child and if possible these calls occur by way of skype.
12.That should the child express the wish to do so the child be permitted to contact the other parent with the parent whom the child is living with to facilitate the call.
13.That both parents advise the other of each parents address and telephone number, including any change of address and/or telephone number, within 48 hours of such change occurring.
14.That for the purposes of defining the school holiday periods the following apply:-
a. The whole of the end of Terms 1, II and III Queensland school holiday period shall be from the Saturday which follows the last day of school until no later than 6pm on the Saturday preceding the recommencement of school, or Sunday should Monday be a public holiday;
b. The whole of the Christmas school holiday period commences on the Saturday following the last day of school and concludes no later than 6pm on the Saturday preceding the recommencement of school. Therefore the first half of the school holiday period will commence from the Saturday following the last day of school and conclude no later than 6pm on the day closest to the midpoint of the school holiday period;
c. The second half of the Christmas school holiday period commences at 6pm on the day closed to the midpoint of the school holiday period until no later than 6pm on the Saturday preceding the recommencement of school.
The application is a difficult one. The difficulty arises from the obvious love and affection that each parent has for their little girl as well as from the overriding impression that was given in relation to the matter, that both of the parents firmly and genuinely believe that what they propose in relation to the parenting of [X], is in the child’s best interests. The difficulty was further enhanced by the fact that what each parent proposed in relation to [X]’s parenting was perfectly reasonable and ensured that whilst there was a recognition of the child living with one parent or the other, because of the difficulties that arose as a result of distance, that there would still be as great an opportunity as could be afforded for each parent to be significantly and substantially involved in the child’s life.
It is not at all trite to say that the parents’ proposals in relation to the parenting of this little girl were perfectly appropriate. It is simply that what each parent proposed was fundamentally opposed by the other parent, because of their very real belief of what was in the best interests of the child.
In relation to the matter it was clear that the evidence of the parties and their supporters would be of great significance, in relation to the determination of the matter, but looming large and, in fact, taking some real significance in relation to much of the evidence and the recommendations of the report writer, Ms W, was also the issue of the mother’s mental health. It appears clear on the evidence that is available that she has experienced real difficulties with anorexia nervosa and that as a result of that and the fact that there are concerns that it is not a “curable disease”, that there continues to be a risk in relation to the child.
I shall, of course, address that issue a little later in these reasons but should note also that before turning to those matters it is appropriate that I should comment in relation to the other evidence that was called in relation to the proceedings.
On the part of the father, two witnesses were called on his behalf. The first the paternal grandmother, Mrs C, swore an affidavit on 3 December 2012 and it was filed on that day. Mrs C was not required for cross-examination in relation to the matter and accordingly, though I did not have the opportunity to see her in the witness box, I should note my specific findings in relation to her evidence.
She noted that she was a [occupation omitted] and that she and her husband, the paternal grandfather, have three children, the oldest of whom is the father in this matter. More significantly, however, she spoke of the close family that existed within their family unit and the fact that she and her two younger children, as well as their partners, remain closely in contact with each other and that there are generally family dinners held on a Sunday evening. She spoke of her close and loving relationship with [X] and of the family’s love and affection for the child. She confirmed her availability to assist in the care and supervision of the child, particularly during occasions when the father, because of his commitments as an [omitted], would be required to be absent from responsibilities in relation to care and confirmed that she and her husband were, as she put it, “more than happy for Mr Carson and [X] to temporarily reside with us”.
She spoke of their residence being large and available to provide for them and notes at the conclusion of her affidavit that she is willing and able but most importantly, “eager,” to assist Mr Carson to care for [X].
I was impressed with the evidence of Mrs C in relation to this matter. She was not challenged in relation to that evidence and I must say that I generally accept what she has outlined there and, in particular, the genuineness of the statements that were made by her and contained within paragraph 25 of her affidavit. There she says:
Ms Carson is [X]’s mother. [X] loves Ms Carson, and often speaks about her with us. I am aware that Ms Carson’s relationship with [X] should not be adversely impacted by any move (should [X] be able to relocate). I know that a move will affect Ms Carson’s time with [X]. However, I will assist in any way possible to ensure that [X]’s relationship with her mother is not adversely affected.
Also called on behalf of the father was Mr N, a friend of the father and, as best I understand it, a fellow [omitted] student at [omitted] University. Mr N spoke of becoming close friends with Ms Carson and Mr Carson and considered himself a mutual friend of both of them. He was specifically called to give evidence in relation to this matter as a result of certain comments that were made by the mother in her affidavit of 3 September 2012.
Mr N spoke of the circumstances of October 2010 and the fact that the mother had been admitted to hospital, at the request of her employers. Mr N indicated that he would go to visit with the mother and thereafter detailed in his affidavit the various discussions that he says occurred between the mother and himself over the period that she was admitted to hospital.
Mr N was cross-examined about the evidence that he gave and whilst I do not think at any time he was actually challenged in relation to what was the contents of his affidavit, it was more a case of further information being drawn, in relation to the attendances that Mr N had made at the hospital. I should specifically note that I thought that Mr N was an honest and truthful witness. More particularly, however, I would note that in my assessment he was a compassionate and caring man and have no doubt that he will, in time to come, be an outstanding [occupation omitted], as a result of that compassion. I say that particularly because of the answers that he gave in relation to the further inquiry that was directed to him through cross-examination. The series of questions and answers that he gave to the questions, clearly showed that he had thought about the circumstances which had led to the mother’s hospitalisation and the state that she was in at the time of her hospitalisation.
He acknowledged that when he visited the mother in hospital she was in a distressed state. He acknowledged that the mother wanted to move to Brisbane to attend a specialist centre dealing with anorexia nervosa and that her focus at that time was to get well. He acknowledged that the clinic that she wanted to attend was her best option and, more specifically, noted that he was aware why the mother had not attended the clinic at that time in 2010 when she had wanted to attend.
He was asked in words to the effect, “Do you know why the mother didn’t attend at the clinic?” and he responded with words to the effect, “I believe it was to allow the father to finish his course”. He also acknowledged that he was aware of the mother having discussed the issue of the father deferring for a time, to allow her to attend at the clinic and indicated that he was aware that that did not occur because, as he understood it, the father was close to completing his studies. He truthfully indicated that that, to his knowledge, was the father’s explanation of the reason that it had not occurred but it was a little unclear as to whether it was a joint agreement reached between the parties or, rather, a determination on the part of the father that that was what was to happen and that the mother’s issues with her health could be dealt with, after he completed his studies.
More importantly, however, Mr N was asked about his assessment of the mother. I thought his assessment was an accurate and, as I indicated, compassionate one. He was asked whether the mother was feeling vulnerable and he indicated that in his assessment she was. He was asked whether the mother was needy and he indicated that in his assessment, she needed more attention.
He was then asked a series of questions about the criticisms that she made to the father and to him and others, about members of her family and whether, in those circumstances of vulnerability and need, her criticisms of her family and, in particular, them not being there were understandable. He answered instantly that it was certainly understandable and he acknowledged, when asked, that it was quite possibly not her position generally in relation to her family or to be critical of them. His answer was telling. He said, “Of course it was just relevant to that time”.
I was most impressed by Mr N. I thought that he was, as he said in his affidavit, a mutual friend of both the mother and the father and was there to be an accurate and honest recounter of the circumstances that he observed. More particularly, however, I thought that he showed an insight to the mother’s health and, in particular, an acknowledgment of her vulnerability and of the difficulties that therefore confronted her when she was hospitalised and in need of attention. I was assisted particularly by the evidence of Mr N.
Called on the part of the mother were a number of witnesses significant in relation to these proceedings. They included the mother’s psychologist, Ms J, as well as her partner, Mr D, her mother, Mrs B, and her doctor, Dr S, though Dr S was not required for cross-examination. Dr S’s affidavit was short and to the point. It was sworn on 5 December 2012 and noted that the mother had been receiving treatment from him for a number of years and that at the date of the affidavit he continued to be her treating general practitioner. He went on to note:
During her time under my treatment, Ms Carson’s weight and her general health has vastly improved and she is not showing any signs of ill health or malnourishment.
Anorexia nervosa seems to be in control.
As I say, Dr S was not required for cross-examination and I accept his evidence in relation to this matter.
The mother’s psychologist was also called in relation to this matter and attached to her affidavit of 30 November 2012 was a copy of her report to Dr S confirming her opinions in relation to the mother and the difficulties that she has been experiencing. In that report, which is dated 19 November 2012, Ms J says the following:
Assessment of Ms Carson’s anorexia nervosa symptoms indicated Ms Carson had restored and maintained normal eating patterns and there was no self-report of any binging and purging behaviours.
A little later on Ms J notes:
Of note, Ms Carson has been dealing with a significant stressor since her marital separation concerning the permanent care arrangement for her daughter [X]. A Family Court hearing is scheduled in late November 2012 for this matter. Ms Carson has maintained healthy eating patterns and reported no weight loss during this time. During her sessions, Ms Carson has also addressed and improved her confidence and assertiveness levels in her ability to manage the stressor.
Ms J was cross-examined in relation to her report and also in relation to additional information that had arisen from inspection of documents produced by subpoena. She was asked about the family history that was provided by the mother by way of self-reporting and it was noted that that family history indicated that the mother did not use alcohol as a crutch in any way to deal with issues in relation to her mental health or with respect to her anorexia nervosa. The evidence, however, was contrary to that and the mother’s own indications were that she had, on occasion, used alcohol to excess and had caused herself to be ill as a result of alcohol consumption.
When tested in relation to that evidence it was a little concerning that Ms J became, I thought, over-protective of her patient and when pressed as to whether the diagnoses that had earlier been provided of anorexia nervosa of the purging type were troubling to her, in relation to her treatment of the mother at the present time, she rather unusually responded that, she would need to know the mother’s weight. Ms J gave me the distinct impression that she was a caring and concerned health professional but that her concern for her client’s well-being was leading her to be less than direct in relation to any responses that she might give, for example, with regard to concerns as to whether her assessment of the mother might change if the information self-reported by the mother was shown not to be accurate.
By the same token, I must say that I thought Ms J’s analysis of the mother and the factors that contributed to many of her difficulties was a most astute assessment. When asked whether she could address or indicate the contributing factors in relation to what were influences upon the mother, she noted the following:
· a low self-esteem in relationships;
· her unrelenting standards;
· a situation of subjugation when she is oppressed; and
· an overemphasis on diet as losing weight gives her a feeling of being in control;
· a passive compliance in relationships; and, finally
· a concern that there was a lack of support and criticism by her former partner.
Ms J had identified many of the factors which, it appears generally to be acknowledged, were influential upon the mother in behaviours that led to the serious concerns with regard to her health, both physical and emotional, in 2010. When questioned in re-examination by counsel for the mother, however, about the mother and those various contributing factors, it was noteworthy that Ms J became, I thought, more animated, and was genuinely pleased to be able to report that, as the mother was in a loving, accepting, and nurturing relationship at the present time, that there were real improvements in her health and that her self-esteem had improved, as well as there being apparent improvements reported by the mother to Ms J, in relation to her exchanges with the father.
I was assisted by Ms J’s evidence generally in relation to this matter. As I say, whilst I was a little troubled by the fact that she seemed somewhat defensive in giving any ground with regard to the self-reporting of the mother, I generally was impressed with her assessment of the mother and, in particular, the mother’s improvement since her serious issues of concern and hospitalisation.
Also called on the part of the mother was her partner, Mr D. Mr D was currently not in employment, having suffered a serious work injury some time ago. He indicated that he and the mother had been in a relationship initially since about February of 2012, and that that relationship became an intimate relationship in April of 2012, and that there were then occasions of he or the mother staying over at each other’s residences from about May of 2012. He notes in his affidavit that they have lived together since about July of 2012, and that he and the mother share a three-bedroom rental home at [address omitted].
Mr D reports in his affidavit that he and the mother are very close and very much in love, and that he sees the relationship as a permanent relationship.
My assessment would be similar in that that is Mr D’s hope and expectation in relation to the matter, and I must say that he generally impressed me as a supportive, caring, and nurturing partner. He spoke of his observations of the mother and her relationship with he and his daughters, [Y] and [Z], as well as his interaction with [X]. It was clear that they were positive relationships and, in fact, it was noted by
Ms W, the report writer, that the relationship between [X] and Mr D was particularly close and one in which [X] was quite comfortable.
Mr D gave evidence as to the mother’s health and his observations in that regard, and I thought that they were generally an accurate reflection of what he had seen in relation to the mother, her health, and diet. It was clear, however, that there was still in existence what might be called the “honeymoon phase of the relationship”.
I say that because in cross-examination Mr D was asked how he would describe the mother as a partner, and he answered, “Fantastic.” He was asked what her good points might be and he noted her as a loving and caring partner and a person who was good to be in a relationship with. When asked, however, what her bad points were, he responded that there were none, which bought a smile to all in the court but was perhaps not necessarily as helpful an answer as would had been expected.
I do not say that to be in any way critical of the mother, but rather to recognise that all of us, as human beings, as parents, and as partners do have failings and faults, and it is naïve to suggest that the mother had no faults whatsoever.
By the same token, I must say that I was, as indicated, impressed by
Mr D. I thought his recognition of his role as the mother’s new partner and a stepfather to [X] was an appropriate one, and, in particular, thought that his assessment of the effects upon [X], no matter what might be the outcome of these proceedings, was insightful, and one that recognised that [X] will be distressed, whether she is to live with her father or her mother as a result of the fact that both had previously had significant involvement in her life and that that had now significantly changed.
Before turning to the evidence of the parties themselves and the report writer, Ms W, it is necessary for me also to comment upon the evidence of the maternal grandmother, Mrs B. Ms Carson provided an affidavit in relation to these proceedings, in which she made a number of comments which were the subject of further inquiry and examination in cross-examination.
In particular, she noted at paragraph 3:
We are a loving, caring family, although we do not live in each other’s pockets.
and at paragraph 4:
Ms Carson and I have had our highs and lows, however, we have worked through our differences and are now closer than we have ever been before.
Mrs B comments upon a number of the statements in the father’s affidavit, and suggests that there are a number of inaccuracies in those statements. In particular, she denies a number of statements which the father attributes to her as relating to concerns with regard to the mother’s anorexia nervosa and the circumstances that led to her not coming to Townsville, when the mother was hospitalised on the second occasion. Mrs B was cross-examined about many of those issues as well as cross-examined about her observations of the care that was provided to [X] by each of the parents.
When Mrs B was in the witness box, I was troubled by her evidence. She seemed, to me, to be unnecessarily and overly aggressive toward the questioner and the court, but most particularly toward the father. She gave the distinct impression that she would broach no question as to her reasons for involving or not involving herself in caring for her daughter or providing any support for her, and when specifically asked whether, in October of 2010, she had told the father she had not come to Townsville to be with her daughter because, “Ms Carson hadn’t done enough to help herself,” she replied, “No,” but, rather troublingly, glared at the father in relation to answering that question.
I gained the distinct impression that it was not a glare that arose from a concern as to a misstatement having been made, but rather a glare that indicated that something that had been said by her had become more public knowledge and, in particular, had become known to the mother. I unfortunately formed the view that Mrs B was a hard woman, that she was opinionated, and would no doubt have held views in relation to the mother’s illness and who might or might not have been responsible for that illness. I am far more inclined to the view that the father’s statements as to the comments that might or might not have been made by the maternal grandmother, are an accurate reflection of what transpired in discussions between he and the maternal grandmother.
More troubling still, were the answers that were given by Mrs B in relation to inquiries that were made by the mother’s treating medical practitioners, in relation to ascertaining a history that would be able to be used to provide more complete or comprehensive treatment for the mother. Mrs B was asked whether it was the case that in October of 2010 she had refused to tell the doctors of the mother, information about the mother, and she had indicated that that was correct and that she had acted in that manner because she could “not breach the mother’s trust”.
When asked whether that was more important than her being there or providing accurate information to assist in the treatment of the mother, she simply responded that she could not breach her trust, she then went on, very troublingly, to indicate that, if [X] had been, or were to be, in need of assistance, for example, arising from a situation of the mother relapsing in respect of her mental health, whether she would tell the father, she responded that she would not do so. Mrs B, rather flippantly went on to answer, when asked whether that would be appropriate in the circumstances where the mother’s illness could impact directly upon [X], she indicated that she would not be able to comment upon that, because she would not know whether the mother was or was not ill. Mrs B was a hard and opinionated woman. She had no appreciation of, nor could she or would she recognise that the father had provided some help to assist the mother with her anorexia. She was adamant that there had not been a falling out between she and the mother at times other than, perhaps, in October of 2010, when she had not attended in Townsville and the mother, in a distressed state, had been critical of her. I find that that was untrue and was knowingly an untrue statement made by Mrs B.
I was troubled by her evidence in relation to this matter, but not overly influenced by it, in light of the fact that my impression would far more be that, it would be the parents who would be making decisions in relation to the care and wellbeing of the child, and that there was little prospect of Mrs B having significant involvement in [X]’s life.
I turn now to the evidence of the parents themselves in relation to this matter, and consider that it is appropriate that I should deal with their evidence before turning then to the evidence of the report writer,
Ms W. As I indicated at the commencement of these reasons, the fact is that the parents both impressed me. Both were intelligent and articulate adults. The father had just qualified as a [occupation omitted], and it was, in fact, one of the factors that gave rise to the need for an urgent determination in relation to this matter in that he had obtained a rural scholarship and, as a result of that rural scholarship, was to commence work on 14 January 2013 at [R], on what was referred to, as the [omitted] pathway.
The father is an intelligent man but also is one who has no doubt whatsoever as to his capacity to provide for and to meet the interests and the needs of his daughter. Similarly, the mother is a [occupation omitted]. She holds qualifications in that regard and has, notwithstanding issues in respect of her health on different occasions, maintained that employment for significant periods of time.
There is no doubt as to each parent’s capacity, therefore, to provide for the child’s physical needs, including, of course, the appropriate provision of accommodation, clothing, food, and support. Greater issues, however, arise in relation to each parent’s capacity to provide for the child’s emotional needs, and they were factors that were also considered specifically by the report writer, Ms W.
Having made those positive comments in relation to each of the parties, it is important, however, that I should also comment upon a number of issues of concern that arose in relation to each of the parents. Insofar as the father was concerned, I gained the distinct impression that whilst he genuinely attempted to be full and frank in relation to his answers, there was a rather guarded nature to much of his evidence. I noted that particularly because of the initial evidence-in-chief that was given by him in relation to his commencement of employment at [R] along the “[omitted] pathway”.
The father had obtained a rural [omitted] scholarship. He acknowledged that he had, when applying for that scholarship, indicated that he had a “deep desire to [occupation omitted]”, and acknowledging that he had said that, had gone on to indicate that he wanted a country lifestyle for his daughter. There was no indication of his intention now to live in Brisbane. The distinct impression that I gained in relation to the father was that he, along with the mother, needed the financial assistance that came from the rural scholarship and that the father was therefore comfortable and quite willing to make statements with regard to an intention to [occupation omitted].
That is not to say that I don’t believe that he would, in certain circumstances, have done so, including in circumstances where he and the mother had remained together, but I was troubled not so much by the change of position now taken by him, in relation to the matter, but rather the fact that there seemed to be almost a deceitful nature to the indications of what his intentions were, rather than a simple acknowledgement that with the breakdown in the relationship between he and the mother, that the circumstances that existed had changed.
I was also troubled by the fact that the father’s entire case in relation to this matter related to the need, he said, to travel to Brisbane for the purposes of taking up his internship at [R]. Notwithstanding the absolute significance of that particular aspect of the matter, there was little if any evidence that was provided by the father in that regard, and certainly there appeared to be almost no attempt on his part to provide real evidence as to what the expectations might be in relation to hours that he would be working, weekend or overtime obligations that would arise or, more specifically, opportunities to change what had previously been arranged.
The father indicated in his early evidence that the relevant date for his taking up the rural [omitted] and obtaining a position at [R] had been 27 April 2012. However, he was asked by his own counsel whether, in relation to his [position], there was a possibility of him swapping his position at [R] with someone who had a position in Townsville, and he replied, “No.” When asked why that would be, he indicated that arrangements needed to be completed by 1 November 2012, and required someone in Townsville to wish to change.
The father was clearly aware of the mother’s position in relation to this matter and to her objection to any suggestion that [X] should relocate with him to Brisbane. Notwithstanding that knowledge, the father had not taken any real or positive steps in relation to ascertaining whether other opportunities or alternatives were available in relation to his continued studies.
The distinct impression that I gained, was that the father was insistent on getting his own way in relation to this matter. That he had determined that for his career and for his progress, the further course of studies in the [R] area were most appropriate and, therefore, whilst he indicated that he had made some inquiry, there were no opportunities otherwise in relation to continuing the internship in Townsville or, certainly, in a place closer to Townsville.
I was troubled by that attitude of the father in relation to the matter, because it seemed to be a recurring theme in respect of the father’s position, in relation to many of the issues of dispute. The father indicated, for example, that the mother had, on many occasions prior to May of 2012, when written notification was given of an objection to his relocation with the child, indicated that she was not agreeable to such a move. The father’s response was that she had raised the issue on a number of occasions but she would change her mind the next day and consequently there was never any certainty.
Alternatively, the father was unable to recognise that the mother may have been, as was suggested to Mr N, somewhat vulnerable following separation and perhaps for months thereafter and that there were difficulties but that she was genuinely expressing a concern as to what the father proposed in relation to the child, and, perhaps even more specifically, withdrawing any prior consent in relation to relocation.
The father, unfortunately I think, heard only what he wanted to hear and that included any situations where the mother indicated that she would not agree to his relocating. They were statements the father thought were made in anger or during the course of the dispute and were not statements that could or should be relied upon. The father's determination in that regard troubled me as did some of the evidence that fell in relation to what the father wished others to believe to be the case.
In that regard, for example, it was recorded in a conversation between him and the [omitted] Group that he had custody of [X]. The father said that he had not said that and that he had indicated that he had equal custody of the child and was unable to explain why that may have been noted in some other way. Whilst of course, to make any particular assessment in relation to why someone else may have written that particular point down in that form is impossible, I am generally of the view that the father would have emphasised his significant involvement in the child's life at the least, and would have minimised to some extent the importance of the mother in the child's decision making.
The father was clearly an intelligent man and one who was somewhat driven. Again, I gained the impression that there was, perhaps even unknown to the father, a view held by him that his career and his future were more important than the mother's. That was evidenced, for example, in the request by the mother for the father to defer his studies for a year to enable her to receive specialist treatment and the apparent decision on the part of the father, though he says it was a joint decision, to not proceed on that basis.
I do not accept that that was the case, or even if it were, that the mother had indicated that she would not press the matter. It was a situation where the father should properly have realised and recognised that the mother was in need of particular assistance and that there was a real obligation on his part to consider her views as well as his.
The father also, for example, indicated that he saw no reason why he could not rely upon the mother's indication that she was agreeable to him travelling to Brisbane with [X], when that assent was provided only a matter of one or two months post separation. He did not consider that two months after separation was still a time of high emotion or anxiety, and only when questioned about the fact that they were still in the same home and that there might be an additional layer of difficulty or angst did he acknowledge that that might be the case.
Unfortunately, the overall impression that I gained of the father in relation to the matter, was that he was determined to achieve his own goals, to further his studies and to do so upon his terms and they included having the child in his care.
More particularly, I was troubled, as I indicated earlier, by the father's lack of information provided with regard to his scholarship and the other possibilities that might be available, but was also enormously troubled by the lack of any real or proper inquiry made by him in relation to the expectations that would be placed upon him as an [position omitted]. He seemed to repeatedly indicate that anecdotal evidence, provided by interns previously working in Townsville could be relied upon, without at all recognising that there may have been very different requirements or conditions applicable to him.
Additionally, he had little insight into the effects upon the child of his working obligations and consequential care arrangements for [X] to be cared for by neither her mother nor her father but by no doubt a loving and doting grandmother.
I was generally concerned as to the father's evidence in relation to this matter. He was determined to achieve his own goals and was not to any real extent, minded to consider either the effects upon the mother or the consequential effects upon the child, particularly if the mother were drawn into a situation of real difficulty.
I was also troubled by what appeared to be a pedantic and self-serving stance taken by the father in relation to his contribution to the household. The father acknowledged that he was studying hard. That was understandable of course when seeking qualification as a [omitted]. He suggested, however, that he had contributed 39.3 per cent of the family income but only when questioned more specifically in relation to that was it acknowledged that at least some proportion of that family income came from the rural scholarship that was available to him. The actual financial contribution made as a result of his few hours work on a Saturday and holiday work during university vacations was significantly less than that proportion of the total income.
It seemed, however, that there was little, if any, recognition of the fact that the mother was providing the bulk of that financial support for the family, as well as attending to significant parts of the child care and household care that was necessary, as a result of the heavy demands with regard to his study. The father left me with, unfortunately, no other alternative than to consider that his view in relation to the matter was that his needs were to the fore and his contribution should be valued far more heavily and significantly than that of the mother.
The stance taken by the father was very self-centred and focussed on a person driven by their own goals. The impression that that gave overall, however, was that there would be little likelihood that the father would be inclined to change those goals and, that when the mother were not available to provide that counter balance or assistance that would be so essential in relation to the care and supervision of [X], that as a single parent household it would be [X]'s needs which were subjugated to those of the father.
I do not mean to suggest by the concerns that I have expressed herein that the father is wholly uncaring or lacking in compassion. The father acknowledged that the mother's life and her circumstances seemed to have greatly improved since October of 2010 and that her relationship with Mr D had been beneficial to her. In that respect, however, the father took, I thought, a rather unusual position in respect of the relationship with Mr D. Again, the impression from all of the evidence given by both Mr D and the father that there was something of a "Mexican standoff", in relation to each approaching the other in order to introduce themselves and to lay to rest any fears that either might have as to the behaviours or attitudes of either the father or step-father.
Rather for months on end the father did not communicate with Mr D, though the mother says information was provided to him to do so, nor did Mr D communicate with the father in order to introduce himself. The fact was that it was the child who suffered as a result of that because the father had insisted, rather than negotiated with the mother that the child not travel with a stranger. Whilst Mr D was in no way a stranger to [X], he was still a stranger to the father and there seemed to be some insistence that assistance that might have been able to be made available by Mr D with regard to transportation etcetera, was not able to occur, because of that lack of introduction.
There was, again, that concern that arose as to self-centred behaviours and concerns about the father's real desire or wish to put the child's best interests to the fore. The father gave me the impression of being a very precise man and one who would not be inclined to make mistakes. I commented previously about the information given to the [omitted] about him being the sole custodian of the child and, unfortunately, am inclined to think that there may have been some element of misleading or imprecise information provided.
Similarly, I gained the impression that the father would know precisely the weight of the child at the time of birth and to give an indication to the reporter of a weight only a matter of a few hundred grams less than what was accurate, was something that would be done knowingly rather than unknowingly, because that few hundred grams meant the difference between a child being considered to be within the range of normal weight or underweight.
Another example was the father's concerns in relation to breakfast and the child's eating habits. The concerns seemed far more designed to give rise to criticisms as to the mother's household than any real appreciation of the fact that this little girl was moving between two households and that, notwithstanding the best endeavours of both parents, there was still real prospects of there being upheaval for the child and, therefore, other explanations for her refusal to eat sometimes at breakfast or otherwise, than a reflection of some negative influences of the mother.
The impression I gained in respect of this matter was that the father's statements were always well-considered and were designed to exact the best result that the father could hope, in relation to any and all evidence.
The father did make some real concessions, in respect of the proposed moves that he had suggested with regard to a move to Brisbane. He acknowledged that in some ways moving town would be traumatic for the child. He tried to minimise that, however, by suggesting that, whilst the child had lived in Townsville, she had also spent time in Brisbane and had been comfortable there, but when pushed acknowledged that that was holiday time.
Only when questioned in relation to it, did he acknowledge that the child had established activities and routines in Townsville, that she was involved in dancing and enjoyed such activities. He agreed when specifically pressed on the point, that [X] was "familiar with Townsville”, and would not be as familiar with the circumstances in Brisbane. The father gave me the impression that he had not really considered the long-term effects upon [X] of the move as proposed by him when it was now clear that the mother would not accompany her.
He acknowledged in cross-examination that the major negative for [X] would be the loss of the opportunity for week-about arrangements with the child, but it was only when asked to consider other issues that he acknowledged there would be other real consequences for the child.
To his credit, he acknowledged, when asked about it, that [X] had a good relationship with Mr D, that she had a good relationship with
Mr D's children and that she had referred to them as her step-sisters. He acknowledged that [X] would miss all of them, her mother, Mr D, and the children and in final questions he acknowledged that it was beneficial to the child to be in that positive relationship with all of those persons.
The father was not by any means an uncaring parent. He loves his daughter very much and gave evidence specifically to the effect that, in his opinion, the proposed move was one which could only be beneficial to [X]. I accept that that is his genuine view in relation to the matter but unfortunately do not necessarily accept that it is a view, which has been formed as a result of consideration of the best interests of the child.
What hung over all of the comments and stance taken by the father, in relation to this matter, was that what would be good for him and for his career would be good for the child and whilst there were elements of protectionism and a need to ensure that the child's best interests were met, there were also very real self‑centred concerns in relation to the future proposals with regard to the parenting of the child.
Insofar as the mother was concerned, there were real concerns in relation to her health and in many respects, her behaviours. At the commencement of cross-examination the mother had produced to her a number of photographs from about 2006 until October of 2010. If they were produced to draw a reaction from the mother, they do not seem to have had that desired effect because the mother's comments in relation to them were generally an acceptance that she looked “skinny” and “unwell”.
The effect upon others in the court including myself, however, were significantly greater in that they were photographs that would not appear out of place in a documentary relating to one of the prisoner of war camps that were operated during the Second World War. The mother was emaciated and clearly unwell.
There were obviously concerns held in relation to her health and in October of 2010 there were genuine concerns as to whether in fact the mother would live. They were obviously issues which needed to be addressed and whilst I was critical of the father in relation to many of the positions taken by him in relation to such matters, I would acknowledge the enormous pressures and difficulties that must have been placed upon him as a result of being in a relationship with a person who was so unwell both physically and emotionally that they could not realise the hurt that they were doing to themselves or to others who should have been near and dear to them.
I do not profess of course to have a full understanding of the psychological and physical stressors that lead to a person behaving in a manner in which they seek to take control of their life by controlling or limiting their diet to the extent that they become, as the mother in fact described herself in October of 2010, as "skeletal", but it is clear that there must be corresponding difficulties and concerns for the father.
The mother was not thinking appropriately for years during the relationship and that no doubt led to many of the difficulties in the relationship. It was no doubt exacerbated also by the fact that when the father pushed the mother to eat or suggested that she eats more, she considered this to be bullying and behaviour which was not indicative of a caring and supportive partner.
The father was therefore in a situation where he was damned if he did and damned if he didn't, insofar as encouraging the mother to eat or insist that she work on her diet. It was an intolerable situation and one that was no doubt exacerbated by the distinct characteristics of both the mother's personality and the father's.
I have commented that the father seemed to be somewhat self-absorbed, that he was determined to achieve his goals and aspirations and that the mother was not necessarily considered by the father. Unfortunately, corresponding along with that was the fact that the mother seemed willing to subjugate here wishes to act in what might be called a passive/aggressive manner, where she agreed to what the father proposed, simply to avoid argument but then subsequently recanted her position in relation to such matters. It was, unfortunately, a relationship which, if they were real indicators of the personalities of the parties, was destined to finish up with the difficulties that are now being experienced.
However, the fact is that the mother was ill. The best evidence that is available in relation to this matter is the evidence of the mother's treating medical practitioner, Dr S, who indicates that her anorexia nervosa now appears to be under control and that she is healthy. There is also the evidence of the psychologist, Ms J, indicating that the mother is more settled in her new relationship, that she is progressing well and has greater self-esteem and a capacity to recognise her own difficulties.
The concerns that are expressed by the father are understandable but they are not issues that must automatically mean that the mother is excluded from a role of a significant nature, in the parenting of [X]. The mother was asked in cross-examination whether she could definitely say that there would not be stresses in the future with regard to the care of [X], which might lead to a relapse into the health difficulties that had previously arisen.
The mother, I thought, quite properly indicated that she could not say that that would definitely not occur, but she did indicate that she had a stronger support group now and that her relationship with Mr D was one which provided greater assistance and support. The mother, I thought, showed an insight into her illness and a capacity to recognise that what had occurred in the past was a reflection of the difficulties in the relationship that she was then in and the stressors that that brought to bear.
More particularly, she recognised the fact that such a situation must not be allowed to recur. The mother had improved. She had put on weight since her release from hospital and whilst there were certainly some concerns, no doubt genuinely expressed on the part of the father that the mother had not put on as much weight as would have been hoped by him there was, at least, positives in that regard and there appeared to be no indicators, I thought, that the mother was not making positive progress in relation to issues with regard to her emotional and physical health.
The mother has, as does the father, a strong relationship with [X]. It was troubling, however, that the mother in February of 2012, no doubt in response to the father’s insistence on his right to move with [X] at the end of 2012 or early in 2013, sought DNA testing to confirm whether the father was the biological parent of the child.
The father was the only male parent figure that [X] had known, up until the time of separation and the establishment of a new relationship with Mr D. The mother seemed to have little concern for the effect upon the child of finding that the father was not the biological parent.
She was asked whether her actions, in requiring a parentage test was simply a malicious act on her part and was designed to try and exclude the father from involvement in [X]’s life. The mother denied that this was the case but I thought when answering the question directed to her about what she would do if it turned out that the father had not been the biological parent of the child, she indicated that he would still have to be a part of [X]’s life, because of his previous involvement, was a rather contrived and untrue statement.
The mother was looking for opportunities to prevent the father from removing the child. It may have been a hurtful act and certainly one that had not been clearly thought through with regard to the long-term effects upon the child but it was understandable, though misguided, in that the mother was grasping at every opportunity to ensure the child was not removed from her care.
The mother acknowledged that if the father was not the biological father of the child then, at least in her mind, and, perhaps, she had been advised to that effect, then it would not be the case that the child would be able to be removed from her by the father. However, it was also a self-centred act and one specifically designed to achieve the goals of the mother. The fact that she said it was an issue in her head and something that had to be dealt with may have been an influencing factor in relation to the mother but, by the same token, it was clear that it was a hurtful act and one that had not been well‑considered .when issues were to be looked at, in relation to the effect upon the child.
The mother and the father have both been significantly involved in this little girl’s life. The real tragedy here is that the circumstances that have now arisen are such that one parent or the other will be taking a far more significant role in the child’s life. The issues are complex and difficult. The parties and the Court recognised that in making an order for the preparation of a family report, addressing issues in respect of the wants, needs and attachments of the child.
There was a report prepared by Ms W whose report dated 21 October 2012 was noted as an exhibit in these proceedings. Ms W was required for cross-examination in relation to this matter. Ms W, at the end of her comprehensive examination of the various factors in relation to the matter, made the following recommendations, as follows:
116. The best situation for the Child is to have a week about arrangement with each parent. In this case it would require either the Father to remain in Townsville or for the Mother to re-locate to Brisbane. However, apparently the Father cannot alter his commitment to [R], and the Mother chooses to remain in Townsville.
117. As neither of the above scenarios are possible, the next best situation for the Child is for the Child to reside with her Father and spend school holiday times with the Mother.
118. The entire school holiday time is recommended to be spent with the Mother apart from the Child alternating Easter and Christmas with each of her parents, and half of the summer school break with the Father.
119. Furthermore, the bond between the Mother and the Child will be made more secure by weekly or bi-weekly telephone or Skype conversations, with Skype being the preferred option, and the Child to spend a weekend with the Mother on the months when there is no school holiday, i.e. February, May, August, November.
120. While at the Mother’s home, it is recommended that the Child have telephone or Skype contact with the Father at least once a week.
121. It is recommended that the Father be primarily responsible (two-thirds) for the costs of the airfares and any additional air line service expenses for unaccompanied minors, if any applies, as well as ensuring that the Child have a computer that can accommodate Skype transmission.
122. It is recommended that the parents share the major decision-making. To that end, it is recommended that the parents both complete the Focus on Kids shared parenting training, which is available throughout Queensland and either in person or on-line.
123. It will be essential for Ms Carson to continue to see her specialists: psychologist, dietician and endocrinology team, and to have a plan in the event of Ms Carson having a relapse of anorexia.
Ms W made those recommendations in light of the evidence of both of the parties given in relation to this matter, as well as the numerous opportunities that were taken by Ms W to meet with and discuss the issues with the parents under the heading Family Consultant’s Opinions. She noted at paragraphs 112 through 115 the following:
112. The parents have been sharing the care of the Child quite successfully by all accounts. The best possible outcome for the Child would be for her to continue to have access to both parents on a frequent time frame. The week about arrangement would be best for the Child.
113. However, due to the parents’ previous decisions, i.e. the Father to attend his [occupation omitted] in Brisbane which he states he cannot now change; and the Mother’s choice to align herself with a man who is tied to Townsville because of his children, it has become a no-win scenario for the Child, [X]. Whether the Child resides in Townsville with her Mother or in Brisbane with her Father, she will be deprived of consistent interaction with one of her parents, and one parent will be the ‘holiday’ parent and the other the ‘every-day’ parent.
114. In this Family Consultant’s opinion, both parents love the Child. The Child does appear to be securely attached to the Father, and appears to have a mildly insecure attachment to the Mother.
115. However, given the available research in regard to the mental health disorder, Anorexia Nervosa, with which Ms Carson has been previously diagnosed, and which may now be in remission; without the mediating factor of [X] spending week about with her Father and thus being exposed to an alternative lifestyle to the Mother’s lifestyle, there seems to be a possible risk of [X] developing a mental health difficulty should [X] reside primarily with her Mother.
Obviously the issue of parental responsibility is one of great significance. Here it is not a matter which looms so large because the parties themselves both propose that orders should be made with regard to the parents having equal shared parental responsibility. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
That situation does not arise here. The parties are intelligent and realise that the best interests of this little girl are to the fore. They both are therefore willing and able to accommodate both parents being involved in the decision-making process. The similarity between Lansa & Clovelly and this case, is that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child. That included in this case them recognising that equal shared parental responsibility best reflected each parent ensuring that [X]’s best interests were to the fore.
The area where they were not able to agree relates more to the situation of with whom the child should live because of the circumstances that the parents now find themselves in, as a result of the father’s completion of his initial studies.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, 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 for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
There is no issue which gives rise to a concern in relation to equal shared parental responsibility being the most appropriate arrangement for decisions to be made in relation to the parenting of the child. I am satisfied that that is the appropriate order to make in this case.
Having reached that decision, it is statutorily required, pursuant to the provisions of section 65DAA to consider arrangements with regard to [X] spending equal time or substantial and significant time with each parent. Section 65DAA(1)-(5) are in these terms:
SECTION 65DAA COURT TO CONSIDER CHILD SPENDING EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH PARENT IN CERTAIN CIRCUMSTANCES
Equal time
65DAA(1) Subject to subsection (6), if a parenting order provides (or is to provide that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
65DAA(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
65DAA(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are or particular significant to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
65DAA(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
65DAA(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The real difficulty then arises in this matter because the court must consider those two possibilities if it would be in the best interests of the child, but also whether such an arrangement is reasonably practicable. There is no question that such an arrangement of equal time would be in [X]’s best interests. It is what the parties agreed was appropriate and was what they facilitated post physical separation. It is recommended by the report writer and Ms W specifically described it in paragraph 116 of her report as “the best situation for the child”.
The considerations of practicability then arise for consideration pursuant to the provisions of section 65DAA(5). The overriding determinant as to practicability at least is subsection (a), the distance that the parents live apart. [R] to Townsville is approximately 1350 kilometres, and any shared arrangements, be they equal time or substantial and significant time, fall down as a result of that distance. The parents’ current and future capacity to communicate with each other and financial capacity to facilitate time remain as they were prior to these proceedings and, if anything, the financial circumstances of the parties will improve with the father now in full-time employment, but the distance between the households means that such arrangements simply cannot be facilitated.
Accordingly, the process to be followed is the application of the evidence to the considerations set out in the provisions of section 60CC, which are a reflection of the objects and principles detailed in section 60B(1) and (2). Those sections are in these terms:
SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS
Determining child's best interests
60CC(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(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);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Consent orders
60CC(5) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Right to enjoy Aboriginal or Torres Strait Islander culture
60CC(6) For the purposes of paragraph (3)(h), an Aboriginal child's or a Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture
SECTION 60B OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Accordingly, consideration must be given to those matters set out in section 60CC in order to determine what arrangements will be in [X]’s best interests. Here it is almost a reverse consideration however in that much of the evidence is of such a positive nature, particularly with regard to [X]’s relationship with each of her parents that it is difficult to assess factors which may be determinative one way or the other. Insofar as the primary considerations are concerned, it is noteworthy simply that both parents recognise absolutely the benefits to this little girl of having a meaningful relationship with both her mother and her father, and have acted to facilitate that. The child has and will no doubt continue to have a meaningful relationship with both parents.
Issues of physical or psychological harm do not arise to any real extent in this matter. Domestic violence or family violence of a physical nature do not exist, though there are some issues with regard to the child’s psychological well-being arising from the concerns with regard to the mother’s health, as well as the concern that the mother raised of the father’s bullying or unsupportive behaviours toward her, and by extrapolation perhaps, to the child. Such issues however are not matters which give rise to such a significant concern one way or the other that they would be a determining factor in relation to this matter.
Similarly, there is little of distinction that can be drawn from the additional considerations set out in section 60CC(3). A few matters however are more significant and in such a finely balanced case, take on a real importance. Firstly, it should be noted that the child’s views were made clear. Ms W reports, at paragraph 78(c ) as follows:
[X] made another spontaneous statement: “I want to stay in Townsville and live with mummy cause daddy doesn’t feed me unhealthy foods [like] the ice cream and licorice that mum give me”
Being mindful of the age of this child, little more than a child-like appreciation of what the child wants, can be given to such a statement but as the report noted, this little girl had a keen appreciation of the situation that she found herself in. At paragraph 70 of the report, for example, Ms W noted that “[X] was able to state that it was “OK” to say that she loved each of the parents, regardless of which home she was in at the time, however, [X] spontaneous stated, “It’s sad that mummy and daddy don’t love each other.””
Likewise, [X] is reported by Ms W as making spontaneous statements about what each of her parent’s wants in relation to her school attendance and, by extension, their wish for the child to live with them. Statements such as “mummy wants me to go to school in Townsville” or “daddy wants me to go to school in Brisbane” reflect an appreciation of the parents’ wishes, and more significantly, an immature appreciation of the consequences for the child than would normally be expected.
This little girl knows that a decision of very great significance is about to be made in respect of her life and recognising that, makes the initial statement about her wishing to live with her mother. I would not of course suggest that the determinant for [X] was whether one parent or the other allowed her to eat unhealthy foods, but what can be drawn from this statement is that the child has given some thought to her view in relation to the matter. It is not a matter of great weight but in a situation of a finely balanced case, it is one more matter to be considered.
Nothing of a negative nature arises from those matters required for consideration pursuant to the provisions of section 60CC(3)(b), (c), and (ca). The child’s relationship with both parents and with others significant in her life has been fostered by both the mother and the father. Each parent has properly taken the opportunity to be involved in all facets of the child’s life and to meet their obligations in relation to the major long-term decisions to be made in respect of the child, as well as the maintenance of the child.
To the fore in any decisions here however is a consideration of the effect of any changes on the child as a result of separation from the parents or other persons with whom she has been living. As I noted in these reasons, I gained the impression that the father only recently showed an appreciation of the consequences for [X] of separation from Mr D and his daughters. The bond with her step-father and step-siblings is strong and is a factor to be considered in relation to the ultimate decision as to with whom [X] should live.
This takes even greater significance when each parent quite properly acknowledged that one of the major consequences, if not the major consequence, of the determination of this matter will be that [X]’s interaction with one parent or the other will be severely curtailed. If, as was conceded by the father, there are some real prospects of [X] on occasion being primarily in the care of the paternal grandparents, then she will forego the opportunity to be with either her mother or father, or of course, her step-father and step-siblings with whom she is closely attached.
I do not of course suggest that she would be other than appropriately cared for and provided for by the paternal grandparents who love her dearly, but there can be no escaping the fact that there is a real prospect of the child being separated from all of those with whom she has her most significant attachments and with whom she has been living for 12 or more months since physical separation occurred.
Again, in a finely balanced case, there is a real concern of a negative effect upon [X] of significant separation from the mother, Mr D and his daughters, without any confidence of the compensatory arrangements which would be necessarily required to be put in place by the father. This matter is one of considerable significance therefore and favours the proposals put by the mother.
Usually in a case such as this where there would be considerable distance between both of the parents, concerns arise as to the practical difficulties and financial consequences of the child having the opportunity to spend time with the other parent. However, both parents appear to clearly have the financial wherewithal and determination to make such arrangements occur and I do not doubt that the parents would facilitate all necessary steps to ensure that [X] spends significant and substantial time with the parent with whom she does not live.
Section 60CC(3)(f), like 60CC(3)(i), requires the court to make some assessment of the parties’ capacity to meet a child’s needs, as well as an assessment of each parent’s attitude to the child and the responsibilities of parenthood. Generally, both parents in this case show that proper appreciation of their obligation to meet the needs of the child and to act responsibly with regard to the parenting of the child. Both can clearly meet her intellectual needs, both being intelligent and thoughtful parents. Both appreciate the responsibilities of parenthood and that is amply demonstrated by the arrangements that they have put in place to date to ensure that [X]’s needs are to the fore.
However, I do have, at least to some extent, a concern as to the father’s capacity to provide for the child’s emotional needs, coupled with concerns in relation to his attitude to the child. Those particular issues can be summarised simply by saying that my assessment of the father was that his determination to achieve his professional goals cloud his decisions in relation to the child, leading to a general perception that what is good for the father must be good for the child. It reflects, I thought, a self-centred approach and one that at least in part showed a lack of insight into the effects upon the child.
I do not find that the father acts in such a way intentionally, but that rather it is a reflection simply of his personality and determination to achieve his goals. It is however one more factor which, in my assessment, weighs in favour of the mother as my impression of her is that despite the difficulties that she has experienced, her overriding intent is to provide for the best interests of the child, and to ensure that [X]’s relationship with both of her parents is a sound and stable one. It reflects well on the mother’s attitude to the child and to the responsibilities of parenthood.
Considerations relating to maturity, sex, lifestyle and background of the child or the parents are not of any real significance in relation to this matter, though I do note the concerns expressed by the father and to some extent supported by the report writer about the mother’s decisions in relation to diet and the possible flow-on effects of that upon the child. As indicated earlier in these reasons, I am not of the view that that is a concern in respect of any determination and to that extent, adopt the confidence that Dr M showed in March of 2011 which seems to be reflected in the evidence before the court in December of 2012.
Similarly, those matters required to be considered pursuant to the provisions of section 60CC(3)(h), (j) and (k) are not significant in relation to determination.
It is impossible in any case to determine what the future might hold but there is obviously a need to consider each case on its own facts and to assess, as best one can do, what might be possibilities for the future, and how those possibilities might affect the workability of any orders made. Here, there are possibilities of the mother and Mr D making a move, perhaps most likely if Mr D’s former wife were to determine that she intended to move with the children of their relationship, but there is no evidence one way or the other in that regard. However, the father’s career is in its early infancy. He has two years in [R] and then other possibilities of a move, if he were not to go through with paying out the scholarship, as was suggested in evidence. The place where the father [occupation omitted] therefore is fluid, and it seems to me that when the stable or settled proposal of each parent is considered, the more definite arrangements are those put by the mother.
Finally, section 60CC(3)(m) is a general catch-all and one matter that remains to be considered is the current relationship between the mother and Mr D, as well as the still-developing relationship between [X] and the [D] sisters. [X] reported her attachments to [Y] and [Z] as close, and Ms W noted at paragraph 72 that [X] “pretend[s] that [Z] is [her] sister”. This relationship is significant and of course, whilst one does not know what the future of the mother and Mr D’s relationship might be, all relationships of any nature must have a start and therefore be in the “honeymoon phase” but if, as the mother and Mr D suggest, it is a relationship for the long-term then the child’s attachments to Mr D and to [Y] and [Z] is one more factor weighing in favour of [X] remaining in her mother’s care, if the parties are to live a significant distance apart.
As is I hope clear, therefore, from these reasons the decision is a difficult one but in the end, if the father is to remain in the south-east corner of the state and the mother is to remain in Townsville, then the more appropriate arrangements would be for [X] to remain in the mother’s care, though having the opportunity to spend significant and substantial time with the father.
The orders proposed by the mother most appropriately facilitate such an arrangement and in fact go on to specifically recognise that if the parents are residing in the same locality, then that a week-about arrangement, reflecting what is currently in place, is child-focused and appropriate. I would not however make such an order of a self-executing nature of an indefinite term, because whilst that would be appropriate now, with [X] 5 years of age and being settled in such an arrangement, she may not at all be settled with such a significant change at 10 years of age and having lived primarily for five years with the mother.
I would think in that case that a time limit of say three years should exist and thereafter there should be unfortunately unless agreed, a reconsideration of arrangements in relation to the parenting of the child. In the circumstances therefore, the orders of the court will be as outlined at the commencement of these reasons.
I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 24 January 2013
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