Colton and Woods
[2014] FCCA 2444
•24 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COLTON & WOODS | [2014] FCCA 2444 |
| Catchwords: FAMILY LAW – Parenting – with whom a child should live – significant geographic distance between the parties such that equal time or substantial and significant time are unworkable unless one parent were to relocate – consideration of each parent’s capacity to foster a relationship with the other parent – established meaningful relationship with each parent – significance of relationship with a younger half sibling as a “tipping point” in a finely balanced case. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CC(2),(2A) and (3), 61B, 61C, 61DA, 65DAA, 65DAE |
| Lansa & Clovelly [2010] FamCA of 80 AIF v AMS (1999) 199 CLR 160 |
| Applicant: | MR COLTON |
| Respondent: | MS WOODS |
| File Number: | TVC 1210 of 2012 |
| Judgment of: | Judge Coker |
| Hearing dates: | 26-27 May 2014 |
| Date of Last Submission: | 27 May 2014 |
| Delivered at: | Townsville |
| Delivered on: | 24 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Macrossan & Amiet |
| Counsel for the Respondent: | Mr Lynch |
| Solicitors for the Respondent: | Lewis & McNamara |
ORDERS
That the Father and the Mother have equal shared parental responsibility for the major long-term issues of the child [X] born [in] 2008 (“the child”).
That the Father and the Mother are to 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; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 1:
(a)The Mother shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with her.
(b)The Father shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with him.
That the Mother and the Father shall:
(a)Keep the other parent informed at all times of their residential address and landline (if they have one) and mobile contact telephone number.
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treat the child and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the child.
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
That the Mother and Father authorise, by this Order, the schools or day care centres attended by the child to give each parent information about the child’s educational progress and other school-related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child.
That during the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent.
(b)Speak of the other parent respectfully.
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That the child live in Mackay with the Father.
That the Mother spend time with the child at all reasonable times as may be agreed and in particular:
During School Holiday periods
(a)During School Holiday periods, the child live with each parent as follows:
(i)With the Mother during the whole of the Easter, June/July and September/October Queensland school holiday periods; and
(ii)With the Father during the first half of the 2014 Christmas school holiday period and with the Mother during the second half of the 2014 Christmas school holiday period and in each even numbered year thereafter;
(iii)With the Mother during the first half of the 2015 Christmas school holiday period and with the Father during the second half of the 2015 Christmas school holiday period and in each odd numbered year thereafter.
In respect of this Order, school holiday periods are deemed to have commenced after school on the final day of school prior to the commencement of each holiday period and shall be deemed to be finished on the day prior to the commencement of the next school term.
Telephone Communication
That the Father shall have telephone communication with the child between 6.30pm and 7.30pm on each Tuesday and Thursday when the child is living with the Mother with the Father to telephone the child on a telephone number to be provided by the Mother for such purpose and for the Mother to make the child available to speak to the Father during such times. The Mother shall ensure that the child has privacy to speak with the Father during such telephone communication.
That the Mother shall have telephone communication with the child between 6.30pm and 7.30pm on each Tuesday and Thursday when the child is living with the Father with the Mother to telephone the child on a telephone number to be provided by the Father for such purpose and for the Father to make the child available to speak to the Mother during such times. The Father shall ensure that the child has privacy to speak with the Mother during such telephone communication.
Changeovers
That all changeovers take place at [R] or in the event that the Mother ceases to reside in [H] then at that city/town which is the half-way point between the city/town at which the Father resides and the city/town at which the Mother resides.
That in the event that the Mother resides in the Mackay locality, then and in that event the following Orders will apply:
During School Term
(a)During school term the child shall live with the Mother and the Father in Mackay in each fortnight as follows:
(i)With the Mother from 3.00pm on Monday in the first week until 3.00pm on Monday in the second week; and
(ii)With the Father from 3.00pm on Monday in the second week until 3.00pm on Monday in the following week.
During School Holiday periods
(b)During all school holiday periods, the child shall live with each parent as follows:
(i)With the Father for the first half of such periods in 2014 and in each even numbered year thereafter and the second half of school holiday periods in 2015 and in each odd numbered year thereafter;
(ii)With the Mother for the second half of school holiday periods in 2014 and in each even numbered year thereafter and the first half of school holiday periods in 2015 and in each odd numbered year thereafter.
In respect of this Order, school holiday periods are deemed to have commenced after school on the final day of school prior to the commencement of each holiday period and shall be deemed to be finished on the day prior to the commencement of the next school term.
Special Occasions
That the child live with the Father from 9.00am to 5.00pm on Father’s Day in each year in the event that he is not already living with the Father on such date.
That the child live with the Mother from 9.00am to 5.00pm on Mother’s Day in each year in the event that the child is not already living with the Mother on such date.
That the child spend time with the parent that he is not otherwise living with:
(a)On the child’s birthday from 3.00pm to 6.00pm if such day is a school day or from 12.00pm to 5.00pm if such day is a non-school day; and
(b)On each parent’s birthday from 3.00pm to 6.00pm if such day is a school day or from 12.00pm to 5.00pm if such day is a non-school day.
Telephone Communication
That the Father shall have telephone communication with the child between 6.30pm and 7.30pm on each Tuesday and Thursday when the child is living with the Mother with the Father to telephone the child on a telephone number to be provided by the Mother for such purpose and for the Mother to make the child available to speak to the Father during such times. The Mother shall ensure that the child has privacy to speak with the Father during such telephone communication.
That the Mother shall have telephone communication with the child between 6.30pm and 7.30pm on each Tuesday and Thursday when the child is living with the Father with the Mother to telephone the child on a telephone number to be provided by the Father for such purpose and for the Father to make the child available to speak to the Mother during such times. The Father shall ensure that the child has privacy to speak with the Mother during such telephone communication.
Changeovers
The Father shall collect the child from the residence if the Mother at the commencement of each period of time that the child is to live/spend time with him and the Mother shall collect the child from the residence of the Father at the commencement of each period of time that the child is to live/spend time with her.
IT IS NOTED that publication of this judgment under the pseudonym Colton & Woods is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MACKAY |
TVC 1210 of 2012
| MR COLTON |
Applicant
And
| MS WOODS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION & ORDERS SOUGHT
These proceedings relate to orders sought with regard to the parenting of the child [X]. [X] was born on [omitted] 2008 and has recently turned six years of age. He is the child of Mr Colton, whom I shall refer to as “the father” and Ms Woods, whom I shall refer to as “the mother”.
The father commenced these proceedings in November of 2012. In his initiating application he sought comprehensive orders with regard to the parenting of the child which can perhaps be most accurately summarised as being in these terms:
·That the parents have equal shared parental responsibility for major long‑term decisions in relation to the life of the child.
·That should the mother return to Mackay, that the child live with and spend time with the mother and the father as agreed between the parents and, failing agreement, that the child live in Mackay and that it be upon a shared care basis.
·That there be the opportunity for holiday and special times to be spent by each parent with the child.
·That there be the opportunity for telephone communication by each parent with the child when the child is not in their care.
·That handovers occur either at each parent’s residence at the time that the child is to come into the other parent’s care, or in times to come to occur at school.
·In the alternative, the father proposed that if the mother did not return to the Mackay locality, she having previously moved to [H], then that the child should live with him in Mackay, and that the mother should have the opportunity to spend time with the child during school holiday periods, and at other times as may be able to be arranged, as well as for there to be generous opportunities for telephone communication.
·Changeovers, if they were required in that situation, were proposed to take place in [R], being the midpoint between [H] and Mackay. The father additionally proposed that in the event of the mother moving to some place other than [H], that there be a reconsideration of a midpoint, for the purposes of handover.
The father also proposed a third alternative in relation to the parenting of [X], to take into consideration the possibility of the child living with the mother and, in those circumstances, the father then proposed that there should be his opportunity for similar time to be spent with the child to coincide with school holiday periods, and for telephone communication and changeovers, as reflected in the earlier proposal.
When the matter came for trial the outline of case filed by the father indicated that the proposals by the father were unchanged, other than to note that as the child had spent Christmas Day in both 2012 and 2013 in the care of the mother there should be provision for the father to have the first half of the school holiday periods in 2014 and in even‑numbered years thereafter, and the second half of the school holiday periods in 2015 and in odd‑numbered years thereafter, so as to provide the father with the opportunity of spending time with [X] on Christmas Day in 2014.
The father similarly sought amendments to his proposed orders 16 and 20 relating to the alternatives that were proposed in respect of him still being able to have the first half of the Christmas school holiday period with [X] in 2014.
The mother’s response in relation to the application was filed electronically on 25 January 2013. The mother in her response indicated that she agreed with orders 1 through 7 as contained within the father’s initiating application, relating specifically to the issues of equal shared parental responsibility and exchange of information between the parties, as well as authorisations contained within the orders directed to schools, day cares and other care facilities, for the purposes of providing each parent with information as to the child’s progress, as well as to enable them to obtain copies of reports, photographs, certificates and awards, as might be obtained by the child.
The mother then went on to propose specifically that there be arrangements made with regard to the child living with her. Additionally, she set out proposals in relation to the father having the opportunity to spend time with [X] until he commenced grade 4 for a long weekend in each school term, and additionally for there to be the opportunity for the father to spend time with [X] for one half of the school holiday periods.
The mother also proposed that there should be orders similar to those suggested by the father, in relation to telephone communication, and arrangements with regard to ensuring that [X] were able to communicate with either parent at any time that he requested the opportunity to do so.
Changeovers were proposed to occur at the McDonald’s Family Restaurant at [omitted], being again the suggested midpoint between the two current residences of the parties, and the mother, perhaps for completeness, also sought that there should be orders specifically noting that each party would be responsible for their own costs associated with the travel required to attend for collection or return.
In her case outline filed on 21 May 2014 the mother detailed with considerable particularity the proposals again with regard to the parenting of [X], but they were to all intents and purposes a continuation of those proposals which had been put with regard to parenting as contained within her response of January 2013.
THE EVIDENCE
I had the opportunity of considering the evidence in relation to this matter, and should note that each parent filed a number of affidavits by themselves during the course of this matter being prepared or readied for trial, as well as there being further affidavits filed by various supporters of each party.
The father had affidavits filed by his mother, the paternal grandmother, Mrs S and also by his sister, the paternal aunt, Ms G. Both of those witnesses were required for cross‑examination in relation to these proceedings. Additionally, the mother had evidence called from her sister – the maternal aunt, Ms W. Ms W was also required for cross‑examination and I shall turn to her evidence a little later in these reasons.
It is noteworthy, however, that there were a number of what I might call skirmishes that occurred in relation to these proceedings, and, in particular, an issue that arose with regard to [X]’s commencing school in 2014. What flowed from that was a determination necessarily required in respect of with whom [X] would live, pending the final hearing of the proceedings.
On 30 January 2014 an order was made by me following an interim hearing, which provided for the child to live with the father and to spend time with the mother for the entirety of the end of term 1, 2 and 3 school holiday periods in 2014, and for the second half of the gazetted Christmas school holiday period in 2014. More particularly, the order went on to specifically provide that [X] was to commence his preparatory year of schooling at the [W] State Primary School, with attendance to commence as and from 3 February 2014.
The issue there was one that was significant in relation to the final determination of this matter. It related to the need for there to be some settled and stable arrangements in relation to the child’s residence, in light of the fact that the parties live more than 700 kilometres apart. It was impossible for there to be a continued arrangement for shared parenting as had been the case agreed between the parties, both in a parenting agreement which was noted in August of 2009, a few months after separation had occurred, as well as being reflected in arrangements that the parties themselves made, with regard to [X] spending time with each parent prior to commencing school.
Quite simply, [X] was spending equal amounts of time with each parent, with significant travel being required by both but particularly the mother up until the commencement of school. That was, of course, unable to continue once formal educational requirements were in place, and that occurred at the commencement of the academic year 2014.
Of some significance in relation to the determination, at least on an interim basis, was the fact that in 2009 the parenting agreement which had been entered into by the parties and, in fact, a consent order which was signed by the parties but never filed, reflected an agreement, that [X] was to commence his formal education in Mackay if the father were still to be residing in the Mackay area when formal education commenced.
Additionally, and again of some significance, was the fact that a family report had previously been ordered and the family consultant, Ms B, had prepared the report, including recommendations which were in these terms:
I recommend that as of January 2014 [X] reside with Mr Colton and spend time with Ms Woods as follows:
The proposal then went on to detail holiday periods which were, in fact, reflected in the orders of 30 January 2014, to which I have already referred. Ms B was required for cross‑examination in relation to this matter, and I shall turn to her evidence a little later in these reasons.
Before commencing to comment upon the evidence of each of the parties it is important that I make some preliminary comments in relation to both of the parents and to their various witnesses. It is rare that the Court finds that there is little criticism that can be made of the parties to proceedings. However, in this instance and without hesitation I would note that both the mother and the father are capable, caring and loving parents, both are fully apprised of the need for this child to have stability in his life, and for there to be every opportunity made available for [X] to have interaction with the other parent and with extended family members.
The difficulty, and it is an obvious one, is that one parent or the other will be required to take on the primary obligation and responsibility in respect of parenting because the geographic constraints arising from where each parent lives and the impossibility for there to be equal time or even substantial and significant time, as defined pursuant to the provisions of the Act. Obviously, therefore, the need arises to consider closely the circumstances of each parent and their capacity, not only to provide for the basic needs of the child but also to foster and facilitate the relationship with the other parent, noting, of course, that it would be the fostering of a relationship over a significant distance.
That particular aspect of the matter looms large in relation to the determination of these proceedings, as does the need to consider what might otherwise be a less significant issue, the relationship currently established between [X] and his younger brother, [Y], the child of the father and his new partner, Ms J.
As it was described by Ms B, that relationship and its significance now and into the future was “a tipping point”, in respect of her recommendation that [X] live with his father from the commencement of the school year 2014. Such a recommendation, and, in fact, the methodology adopted by Ms B, was the subject of significant cross‑examination by counsel for the mother, and such an approach was understandable, in light of the recommendation which, from the mother’s perspective, she would have seen as unfavourable.
I shall come a little later to that aspect of the matter, but I thought it important that preliminary comments be made in relation to this matter because, if anything, it is an indication of the very great difficulties that arise in respect of a determination with regard to with whom a child should live, when it is clear that both parents are more than able to provide for the needs of the child, and to ensure that in all respects, the child’s best interests are to the fore, and the child is given every opportunity to achieve all that could be required.
I turn firstly, therefore, to the evidence of the supporters called on behalf of the father and the mother. The paternal grandmother, Mrs S, filed an affidavit in these proceedings on 24 April 2014, and also was cross‑examined, though not at any great length. I gained the distinct impression that Mrs S would be without doubt a caring, nurturing and fun grandmother. She made reference to the fact that she has a considerable number of grandchildren, and that at least three or four each Friday have a sleepover at her place, referred to as, , “Nanna’s night”. It is, no doubt, a fun opportunity for the grandchildren including, of course, [X], though not yet [Y], but it is also an opportunity for the children’s parents to perhaps have a little relief from the obligations associated with parenting.
Mrs S impressed me enormously as a genuinely caring and supportive grandmother, and mother to the father, though it is clear that there was at least on one occasion in the latter part of 2008, just after [X] was born, a significant family upheaval, which resulted in the father being dismissed from a position held in a family business operated by Mrs S and her husband. Interestingly, and perhaps as a reflection on the quality both of the mother and the paternal grandmother, when the father was, as the grandmother put it, “angry, cranky or upset” particularly at this time, the mother and paternal grandmother continued to meet together, have lunch and, of course, from the perspective of Mrs S, share time with [X] as a baby.
I would assess Mrs S as an honest and forthright witness but, much more particularly, as a caring and supportive grandmother, recognising the distinction to be drawn between the role of parent and grandparent. Mrs S commented upon her observations of [X]’s interaction and relationship with his father, and, of course, it is noteworthy that she was not challenged in relation to those observations. At paragraph 20 of her affidavit, for example, she says:
[X] has a good father/son relationship with Mr Colton. At times he will tell me that he would like to go home to his dad. I have observed that [X] and Mr Colton interact well with each other. [X] enjoys the rough-and-tumble play between Mr Colton and himself. [X] is proud of Mr Colton and when we are driving around will tell us what [father’s occupation omitted]. He also talks about what Mr Colton and him do together. [X] has a strong attachment to Mr Colton and I consider that they have a close and loving relationship.
It is significant, and again a positive reflection upon Mrs S, that she went on specifically to note that in her observation [X] also has a very good mother‑son relationship with Ms Woods, and she would note it as a loving relationship.
Mrs S impressed me as an honest and forthright witness, and one who could be relied upon to provide the assistance that she already does in relation to [X], if necessary into the future, as and when it might be called for by the father.
Also called on behalf of the father was his sister, Ms G. Ms G was, if anything, an even more impressive witness than her mother, the paternal grandmother. Ms G notes that she has a good relationship with Ms Woods and that, as she put it in paragraph 7 of her affidavit:
I believe that I had a good relationship with Ms Woods prior to her leaving Mackay and moving to [H]. I had regular contact with Ms Woods prior to her moving to [H]. I still receive text messages from Ms Woods on occasions such as Easter and respond to them when received.
Ms G went on to note that she still maintains contact with Ms Woods, and that they remain on good terms. More particularly, Ms G went on to note her involvement on occasions with the care of [X], and, of course, the fostering of the relationship between [X] and her children, [names omitted], and the significance of that relationship for [X]. Ms G also noted the relationship between [X] and his younger brother, [Y], at paragraph 16. She says, and it was not challenged, the following:
Mr Colton and his partner Ms J had a child [Y] who was born on [omitted] 2013. I have observed [X] and [Y] together. I would say that [X] is very proud of his little brother [Y]. He is always telling my children and myself as to what [Y] can do or what he has taught [Y] to do. [X] dotes on [Y]. [X] loves [Y] very much. He is always wanting to help with anything that is being done for [Y].
Ms G also was able to comment upon [X]’s general presentation, and the fact that he is a polite and well‑mannered child, as well as one who has told her that he loves school and appears to enjoy indicating what he has learnt at school. More particularly, Ms G, in similar fashion to the paternal grandmother, also commented upon the close relationship between the father and [X], and the fact that [X] is very proud of his father. Ms G also noted the close relationship that exists between [X] and his mother, and of the fact that she has heard [X] speak fondly of both his maternal grandmother and maternal aunt, Ms W.
Most significantly, Ms G was unchallenged in her suggestion that [X] was settled and comfortable living with the father and Ms J and [Y] in Mackay. I was most impressed with Ms G. I gained the distinct impression that she also was more than willing and able to provide assistance to the father as and when required, but noted in cross‑examination, that she has provided, on occasions, care for [X] every few weeks if the father needed it, but that it was much more a situation of there being the father and Ms J primarily involved in the care obligations that arise, in relation to the child.
I also had the opportunity of reading the affidavit of the mother’s sister, Ms W, and of hearing her in cross‑examination. Whilst I would find without hesitation that Ms W was a more than competent and caring person, and one who was certainly able to assist her sister in any way with regard to the care and supervision of [X], I was troubled in a number of respects by her evidence, and more significantly, by the possible influences that Ms W would have upon [X] and, of course, upon his relationship with his father.
Quite simply, as was noted by counsel for the father, there was nothing positive about the father or his household contained within her affidavit. She acknowledged that that was accurate, and when asked in cross‑examination why, she indicated that it was perhaps more specifically a reflection of the fact that she had not spent much time with the father, and was therefore not able to make any real comment.
But perhaps viewing the world through rose‑coloured glasses, at least insofar as her sister was concerned, it was the case that she indicated she could not think of any criticism of the mother’s capacity to parent or to provide for the child, and when asked if there was perhaps, in the alternative, any positives that she could then think of in relation to the father, she indicated that there was nothing she could say, as she had not seen the father in his parenting.
I gained the distinct impression that Ms W was black and white in her consideration of what was appropriate in respect of the parenting of [X]. By that I mean specifically, that there was, as she would indicate, no positives that she could identify in relation to the father, and whilst she was, as she put it in some statements in her affidavit, “neutral” with respect to any comments with regard to the father, there was nothing but positives in relation to the mother, and certainly nothing that could be seen by her as being able to be improved, in respect of the mother’s parenting. I unfortunately gained the impression that Ms W would not be willing or able to foster the relationship with the father.
More particularly, Ms W seemed to disregard the importance of the relationship between [X] and his younger brother, [Y]. Ms W seemed almost offhanded in her impressions in relation to that, and when asked if the relationship with [Y] would be meaningful to [X] she refused even to speculate that there might be positives or benefits to the child in that relationship, indicating that she had, “never seen them interact” and therefore was unable to speculate as to whether there might have been anything positive.
Unfortunately, as I say, my impression of Ms W was one of pure negativity when it came to the father and to his extended family, notwithstanding the fact that her sister, the mother in these proceedings, seemed far more inclined to generosity of spirit, particularly when it came to reflecting upon the importance to [X] of the relationship with [Y], as well as specifically with his paternal grandmother and aunt, with whom there are clearly close associations and ties.
Ms W’s evidence therefore was not of great assistance insofar as providing me with any comfort as to the capacity of the mother’s household, it being noteworthy that the mother currently resides with her sister, to foster a relationship with the father, particularly if it were to be a relationship over a distance, and one within which there were only limited opportunities for interaction between the father and [X], if it were to be the case that [X] were to live with his mother.
Before turning to the expert evidence provided by Ms B, and of course to the evidence of the mother and the father, it is important that there should be comment upon the fact that two persons who would no doubt have had particular significance in relation to this matter were not called to give evidence.
The father’s partner, Ms J, resides with him. They, in fact, have a child of their relationship, [Y], to whom I have already made reference. At no time has Ms J filed an affidavit in relation to this matter, and understandably, it was emphasised by counsel for the mother that one possible inference that could be drawn in that regard was that Ms J would not be a witness able to support or assist the father’s case. This was particularly so in relation to the concerns expressed by the mother, with regard to racist behaviours or statements made by the father, as well as in relation to issues regarding domestic violence and anger management, both of which were again concerns raised by the mother, particularly in her more recent affidavits, and also in her exchanges with Ms B.
There are certainly some concerns in that regard because it is clear that Ms J has a significant future role in [X]’s life, and that is an issue which is simply unexplained by the father in statements that he only called a few witnesses rather than many, because of concerns with regard to his financial circumstances. The fact is that Ms J and her extended family, noting that there was reference to [X] spending time with “Nanna J”, Ms J’s mother, holds a particularly significant place in the child’s life.
It is a matter of some interest and concern in relation to this matter, but just as significant, and perhaps just as troubling, is the fact that the mother is in a relationship with her partner, Mr N. It is noteworthy that they have been in a relationship, it would appear, for about three years and, as noted in the family report which is now nearly a year old, the relationship had become serious about 18 months before.
The mother noted that her relationship with Mr N was a positive one, and that they spent a lot of time together when [X] was in Mackay, and that the mother noted that [X] and Mr N related to each other “pretty well”, and that they have fun. It is clear that there is significance in that relationship and, of course, Mr N also is a person who quite properly could have and should have provided some evidence, in relation to this matter.
It is, with respect, a little surprising that persons of that nature were not called to give evidence in relation to the matter when both would be of particular significance in the future life of [X], no matter with whom the child were finally to live.
Turning then to the parties. I had the opportunity of reading the affidavits of both the father and the mother, and of seeing both parents in the witness box. As I commented earlier, both generally impressed me. I gained the distinct impression, that whilst the relationship between the parents had broken down, they continued both to recognise the importance of each parent in the life of [X], and the need for there to be as frequent and as meaningful as possible interaction with the other parent, so as to ensure that the child’s right and opportunities to a meaningful relationship with the other parent was fostered and developed.
That is not to say that both parents could not have done better in some respects but, as I have already commented, my assessment in relation to both is that they are more than capable, each in their own way, of ensuring that the child’s needs, both emotional, intellectual and physical, would be met, should the child be in their care.
The father has been determined however, to ensure that what was agreed, he says, between he and the mother in 2009 should operate, such that, as I had previously indicated, there was a need for a hearing, in relation to arrangements for residence and schooling prior to the commencement of the school year in 2014. The father, perhaps understandably, required the return of the child, but he also sought, prior to that issue being needed to be determined that the mother be responsible for the vast bulk of the travel.
The father indicated that there were a number of reasons for this, the most specific of which was the mother’s previous agreement to do so, being a pre‑condition to allowing her without court proceedings, to move to [H], but there was also his own work requirements and therefore financial circumstances. The father indicated that he worked for a company which required him to be at work Monday to Friday, and also on Saturday mornings. Travel, therefore, was a difficulty for him, at least from the perspective of being able to attend in [R], some hundreds of kilometres from Mackay, for the purposes of handovers being effected, especially, when the parents were doing fortnightly or three‑weekly turnarounds, in relation to time spent with each household.
It was suggested on the part of the mother, that this was indicative of controlling behaviours on the part of the father, and it is perhaps understandable that the mother had such a view, in relation to the matter, but it may also, just as clearly be a reflection of the fact that the father had agreed to a radical change, the mother’s opportunity to move to [H], more than 700 kilometres away from Mackay and that agreement was reached following there being other terms also agreed, including, as noted, the mother being responsible for transportation.
It may therefore not be so much an indicator of the father being controlling in his behaviours, but rather perhaps somewhat structured in his views as to the obligations of each of the parents, and noting a requirement for each parent to be able to meet their obligations, in relation to the parenting of children.
Quite simply, I found the father to be a genuinely caring father doing the best that he could in all the circumstances to balance the needs with regard to meeting the child’s physical needs and emotional needs, along with meeting the obligations and responsibilities that also arise with regard to ensuring that he was able to meet the financial obligations that arose in relation to his household.
It is a fine line that many parents have to walk, and I would not be overly critical of the father insofar as his requirement or insistence that the mother continue to meet her obligations, pursuant to the agreement previously reached.
The father gave me the impression that he respected the mother, and that her involvement in the child’s life were not simply words, but rather an indication of a real intent and recognition on his part of the importance of [X] having a meaningful relationship with the mother, and the need for that relationship to be fostered in a proper and genuine way.
That is not to say that the father had not on occasions acted inappropriately, and certainly it is clear that the father has made some ill‑considered statements, particularly of a racially charged nature.
He acknowledged that he had referred to [X] as “creamy”, a reference, it would appear, to the fact that the mother is of Papua New Guinean extraction and the father of Caucasian extraction, such that the child was of mixed blood. The father says that it was a term of endearment, and though perhaps an ill‑considered one, I accept that there was certainly no malice intended in relation to the use of the term “creamy”, and again should note that there was no evidence whatsoever of the father actually using such a term directly to or in the presence of [X].
By the same token, it is a concern that the father would think that a racially charged term such as that, could be used in a public arena such as Facebook, even if meant in the best of ways. It was troubling that that should occur, and it was also of concern that the father denied that he had used other terms of a racial nature, such as “coon” or “boong”, but that his sister noted that she had perhaps been able to recall the father using the term “coon”.
I would think that the father needs to consider his language and terms of that nature, particularly in light of his own son’s heritage, but I am certainly not of the view that the father’s disposition is one of a racially biased person.
Similarly, there are some concerns that arise with regard to the father’s issues with regard to domestic violence and anger management. The father failed to make reference to the four charges which had been laid against him between 1998 and 2006, three of which, at least, appear directly related to excessive alcohol consumption, and then disorderly behaviour, leading to, in one instance, wilful damage of property. The father did not disclose this to the report writer and it gave rise to some suggestion that the father may have been less than open and frank in disclosures made to the report writer.
Again, however, I am inclined more to the view that it was an honest mistake on the part of the father rather than any intent on his part to obfuscate or to directly mislead the report writer. I say that particularly because, whilst the father has been charged on four occasions, on each of the occasions that he has come before the Courts, no conviction has been recorded in relation to any charges brought, and therefore it quite conceivably may have been the case that the father simply did not understand that when asked about charges or convictions he was required to be disclosing charges that had been laid, rather than convictions that have been recorded.
In any event, I am particularly of the view that some eight years or more has passed since the last occasion that the father was before the courts, and whilst it is unfortunate that there should ever have been occasions that the father would have been brought before the Court, if it were to be seen as some sort of preclusion from parenting and a recognition of inability to meet the obligations in relation to parenting of children, then one would expect that the vast majority of members of our society would be automatically excluded from such an important role, in relation to the parenting of their children.
More particularly, it would also be naïve in the extreme to think that because one parent or the other does not have any criminal convictions, that they have not on occasions, acted in a manner which was inappropriate. To her credit, in fact, the mother acknowledged that the relationship between she and the father had been volatile, that they had both engaged in binge drinking, and that there was certainly at least one occasion when she was highly intoxicated and a threat was made that she would jump from a balcony, with the obvious consequence of her possibly causing herself serious harm.
She acknowledged that that would be, to all intents and purposes, disorderly conduct, and to suggest that because she was not charged with such behaviours, she was automatically a better or more appropriate parent than the father, flies in the face of common and good sense.
I was therefore, as I say, genuinely and generally impressed with the father. In particular, I gained the distinct impression that his statements within his material, but also given directly to Ms B, were sincere when he spoke of the recognition of the need for an ongoing relationship with the mother, and of the need to respect and consider the views of the mother, in relation to decisions to be made, in respect of [X]’s future parenting.
At paragraph 55, Ms B in her report perhaps summed up that the father said that it would be, “good for [X] to see his mum and dad act normally”. It reflects a proper consideration of the child’s needs and a proper recognition of the importance of the parents being able to work together and to put the child’s interests to the fore.
I turn now to the evidence of the mother. Like the father, I was generally impressed with the mother. I gained the distinct impression that her very genuine belief was that she was the parent best able and available to provide for and to meet [X]’s needs. I have no doubt, that the mother, as was the case with the father, that the mother would be in every respect able to meet and ensure that [X]’s needs, physical, emotional and intellectual, were able to be met.
However, I was troubled in respect of the mother’s evidence in a few aspects. The first related to the allegations with respect to the father acting in a racially motivated way, and also with regard to domestic violence. The distinct impression that I gained in relation to these proceedings was that the relationship, particularly prior to [X]’s birth, was one in which there were instances of significant drug and alcohol use and abuse by both parents, and also instances where each acted in a manner which could clearly be considered domestically violent or a reflection of family violence, as defined in the Family Law Act.
It was troubling, however, that the mother did not make reference to such circumstances in relation to earlier affidavits but only in later proceedings. The mother’s statement in the witness box, that this was because she had hoped that the arrangements with regard to parenting could be agreed between she and the father in a civilised manner are no doubt genuine, but, with respect, I thought they did not ring completely true when, as the mother later went on to suggest in material and in statements to Ms B, the father was a person with severe anger management issues and a person who acted in a racially motivated way. If that were actually the situation, then they would have been factors that she would have referred to, at least as an explanation for why she considered that it was appropriate for [X], in the first instance to live primarily with her.
More particularly, I was troubled by the suggestions made on the part of the mother that the father was controlling or manipulative in the relationship. With respect, the most obvious example of controlling or manipulative behaviour came, in my assessment, from the mother who was willing, without doubt, to make any concession and to say anything to be able to make the move that she wished to make in the latter part of 2009, to [H]. And then, when the father had omitted to make arrangements for the filing of consent orders within the time required pursuant to the rules, was confronted with the mother refusing to re‑sign documents, so as to enable the orders to be made in exactly the terms that she had previously agreed to.
The mother was not intimidated by the father certainly at that time, and I gained the distinct impression that the mother was not in any way pressured to enter into the agreement, which originally led to her being given the opportunity to travel to [H], but rather was willing to make any concession to be able to make the move, and then fortuitously found herself in a situation where her agreed terms were not able to be enforced, because of the omission by the father in filing the consent orders within the timeframe required.
Further, I found the father’s version of events with regard to the cigarette burn incident, more believable than those of the mother. The impression I gained was that the mother sought to exaggerate what might have occurred on that evening at the Treasury Casino when the father’s cigarette burnt the mother’s hand. If it were the case, as she indicated, that there were two male friends of hers present and that they were infuriated by the callous attack by the father, it is surprising that they were not called in relation to this matter.
More particularly, if they were, for example, unable to be located it would have been expected that the mother would have at least made some reference to that or to attempts to locate them. No such evidence was forthcoming and, as I say, whilst both no doubt were severely intoxicated, as they admit, on the evening, I am more inclined to the view that the burn that occurred on the mother’s hand, was one that occurred as a result of an accident rather than any direct intent or determination on the part of the father to harm the mother.
In general, both parents impressed me in relation to their capacity to provide for and to meet the needs of this little boy. But I must say that overall my impression in relation to this matter was that the father was more open to recognising the importance of the mother in [X]’s life and the need to foster the relationship with the mother, than was that reflected by the mother toward the father and his relationship with [X].
The impression I gained was that with the mother and unfortunately perhaps with encouragement from her sister, Ms W, there was a lack of real appreciation of the importance of the father and extended family on the paternal side, in the life of [X].
I turn to the evidence of Ms B and, in particular, to her report of 27 June 2013 which was released on 2 July 2013. Ms B was given the opportunity prior to giving evidence, to read over the parties’ trial affidavits, it being clear that her interviews with the parties had occurred perhaps a year before the actual trial, and it was necessary for her to have the opportunity to be cognisant of what further developments there might have been, in relation to the parenting arrangements with regard to [X].
In particular, when Ms B was called I specifically inquired whether she had had that opportunity to read over the trial affidavits and whether, having done so, it had in any way altered her views, and particularly the recommendations that she had made, with regard to the parenting of [X]. She indicated that she had not changed her view. She confirmed, in fact, that both of the parents were “good parents” and that both impressed as doing a good job providing for the child.
Ms B emphasised the fact that the relationship with [Y], even though at the time that she prepared the report [Y] had not yet been born, was the “tipping point”, in relation to her recommendations. She went on specifically to note, that a relationship with a toddler, and in this instance, [Y] was just approaching that stage of his life, was best developed face to face and with regular contact, and that in her assessment it was a significant relationship for [X], and one that could only properly be developed, particularly being mindful of [Y]’s age at the present time, if there were regular interaction which would need to be far more significant than simply what might be reflected in school holiday times and perhaps one weekend during each school term.
Ms B was understandably challenged by the barrister for the mother, about the depth of inquiry that she had made in relation to the concerns expressed by the mother in relation to racial slurs and the issue of domestic violence. In particular, she was challenged as to whether it was “prudent” to suggest that the child should live with the father and his partner, Ms J, when there was no material by Ms J. Whilst Ms B understandably acknowledged that it might have been of benefit for her to do so, she did not consider that overall the lack of evidence from
Ms J or, in fact, specific inquiry of Ms J with regard to the allegations raised by the mother, would have altered her view in relation to the matter.
She certainly noted that there were some concerns about the father referring in a Facebook entry to [X] as “creamy”, but she, quite properly I thought, noted that it would depend to a significant degree on how the father made the statement, and, in particular, as she put it, “it would depend on the intent behind it”. I gained the distinct impression, that whilst Ms B, perhaps in a similar vein to me, was concerned at the use of the term generally, she was not able to make any suggestion that such a statement made by the father would be an indicator of racial prejudice or a state of mind on the part of the father, which would be transmitted to the child.
Generally I was impressed by Ms B. She gave me the impression that whilst she may have been able to make further inquiry in relation to this matter, she had generally assessed these parents as two loving, caring and nurturing parents, both able to meet the needs of the child in all respects. And needing to explain her recommendations in relation to this matter, had focused, perhaps understandably, on the significance of the relationship that will develop over time between [Y] and [X], as being a factor which tipped her view toward there being a need for a stable household established within the father’s residence, rather than within the mother’s residence.
It was noteworthy also that Ms B commented in oral evidence, but also noted in the report, that the mother had indicated that it was not hers and Mr N’s intention to consider any further children, and that therefore it would not be a case of the child [Y] being given precedence over other children, because there was no intent on the part of the mother to have other children.
I would indicate that I was impressed with the evidence of Ms B and whilst it is no doubt almost invariably the case that other questions could be asked or other inquiry made, I am satisfied that Ms B’s report is comprehensive enough in relation to this matter to obviously address the issues of concern.
THE LAW
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which does not loom large because of the agreed position of the parties. 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 is not the situation that arises here.
The parties propose that there should be equal shared parental responsibility. Section 61DA is in these terms:
SECTION 61DA PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY WHEN MAKING PARENTING ORDERS
61DA(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.
61DA(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.
61DA(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.
61DA(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.
It clearly envisages that the starting point in relation to determination as to decisions to be made with regard to the parenting of a child should be decisions made on an equal basis. Such a presumption can, however, be rebutted in circumstances of there being domestic or family violence or other factors which would satisfy the Court that it was not appropriate for such an order to be made.
Notwithstanding the fact that the parents are agreed that there should be equal shared parental responsibility, the Court is not bound to follow such an agreed position. However I note that in this instance, whilst there are some allegations of domestic violence and other behaviours which would constitute family violence under the definition contained within the Family Law Act, I am not satisfied that there are circumstances which would give rise to a need to rebut the presumption of equal shared parental responsibility.
In fact, in this matter I am satisfied that the parties have in the past and will continue into the future to be able to work together, to ensure that decisions made with regard to the parenting of [X] can be made in a proper and appropriate manner. I intend to make orders with regard to equal shared parental responsibility.
Noting that that is the case, it is necessary for the Court to consider, pursuant to the provisions of section 65DAA, whether equal time or substantial and significant time is appropriate and in the best interests of the child. Section 65DAA is 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.
Consent orders
65DAA(6) If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
65DAA(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Obviously, if the parties were in the same locality it would be appropriate for there to be orders made with regard to each parent having either equal time or, at the very least, significant and substantial involvement in all aspects of the child’s life. But, of course, I am mindful of the various factors that need to be considered when one looks at the practicability of such an arrangement, and when that consideration is required to be made, there are the obvious geographic constraints which lead to it clearly being the case that it is impossible for there to be equal time or substantial and significant time as defined within section 65DAA, unless one party or the other were to move closer to the other parent.
I am satisfied, however, and note, that it is proposed on the part of the father and I would think not opposed or derided by the mother, that if the parties were to be in the same locality then there should be something approaching equal time or substantial and significant time. Whilst the mother’s material is generally silent on her alternative proposals in relation to parenting, it is clear from the mother’s barrister’s line of questioning with regard to the father’s ability to move to [H], that there would be consideration obviously given to the parents sharing responsibility in relation to not only decisions but day to day care, if there was an arrangement for the parties to be in the same locality.
However, at the present time that is not the case. The parties live a considerable distance apart. Both indicate that for valid reasons they do not wish to consider a move. The father has good and stable employment in Mackay. He has family and support in the area and, as he indicated in his material and in his oral evidence, he has an employer who, whilst having a business that involves movements around the country, providing services in Western Australia and in other states, the father is not required to make such lengthy moves and therefore, to be away from his family for more significant periods.
As I understand the evidence, whilst the father’s employer has business in the [H] area, the father’s information is that there is a far greater requirement for significant travel in [H], and that that would not be seen by the father as a consideration which he would think would be family‑focused or appropriate.
Similarly, the mother has family support and nurture in the [H] area, and noted particularly that her financial circumstances were improved in [H] over and above what they would have been in Mackay. She indicated, for example, that her rent was at least $100 a week less in [H] than would be the case in Mackay. The mother also has employment there, and though it is only part‑time employment, it does enable her to continue her studies, and she hopes that when she completes her [omitted] qualifications, that work in the locality will be available, though as was emphasised by counsel for the father there is no guarantee that that is the case.
The fact is, however, that both parents clearly indicated that it was not their intent to relocate no matter what might be the decision in relation to the future parenting arrangements for [X], and one can only take them at their word in that regard. What is required, therefore, is to consider what arrangements are in the best interests of this child and how they can best be facilitated. In that respect it is necessary to consider the objects and principles as defined in section 60B subsection (1) and (2), and the reflection of those objects and principles as detailed in the considerations set out in section 60CC(2), (2A) and (3).
The objects and the principles as set out in section 60B(1) and (2) are in these terms:
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).
Section 60CC(2), (2A) and (3) are in these terms:
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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
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) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;;
(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.
Obviously there is much to consider in relation to a determination to be made with regard to with whom a child should live but in this matter the difficulty becomes even more significant when it needs to be recognised that so many of the objects and principles reflected in the considerations are equal in relation to both of the parents.
Quite simply, the child has a meaningful relationship with both of his parents. There is no evidence which would give rise, in my assessment, to a concern as to the child’s physical or psychological wellbeing in the household of either of the parents. There are no issues with regard to either parent’s capacity to provide for the emotional, intellectual and physical needs of the child. In all of those respects there is no doubt that both parents can and would, along with the support of their respective families, be able to provide for and to meet the needs of the child.
It means, of course, that there must be consideration of what might sometimes be considered less significant factors, in order to finally reach a determination in respect of with whom a child should live. This case was described in some respects as a “relocation case”, but it is not one in which the place where the child lives, either with the mother or the father, is an issue of the location. It is far more clearly a situation where all of the factors to be looked at in relation to parenting need to be considered in relation to the child and the capacity of each parent to provide for and to meet the needs of the child is far more significant than where one parent or the other might live.
Such considerations, therefore, as the reasons for a move by one parent or the other are not necessarily or properly required to be looked at in relation to the future parenting. The issue is the child’s future living arrangements and the best arrangements that the Court can consider in that regard.
In this matter, as I say, with there being such obvious abilities on the part of both parents to provide for the needs of the child, two factors do loom large. They are matters that I have already alluded to in these reasons. The first is the relationship between [X] and his younger brother, [Y].
It is clearly a significant relationship. Ms G and Mrs S both commented upon the closeness of the relationship between [Y] and [X], and that was not challenged, though unfortunately, it was not genuinely regarded as significant by the mother or certainly by her sister, Ms W.
But it is a significant relationship, and it is one that needs to be considered, particularly when, as noted by Ms B, it was one that could only properly be established and fostered, particularly with a young child such as [Y], with there being regular interaction. School holiday time and the occasional other weekend that might be able to be facilitated either in Mackay or in [H] do not meet the exacting requirements that would arise, in relation to facilitating that relationship.
And whilst, of course, a meaningful relationship with both parents is a primary consideration, the need to consider when there is already a meaningful relationship with both parents, other relationships and their significance now and into the future, takes some real prominence in relation to a determination.
As Ms B described it in her report and in her oral evidence, it was, in her view, “a tipping point” in relation to this matter, and I must also indicate that in my assessment it is an important consideration.
Additionally, however, I have some concern arising with regard to the genuineness of the intent to foster a relationship with the other parent. The impression I gained, as I indicated earlier, was that the father had a genuine appreciation of the importance to [X] of the mother in his life. And, more particularly, that there was a similar appreciation throughout those members of his family who were called to give evidence, that the mother’s relationship with the child was important and one that should be fostered and developed.
I did not gain that impression as strongly from the mother, and, in fact, would assess in relation to Ms W, that there was, in fact, almost a negative assessment of the importance of the relationship between the father and his extended family and [X], such that there would be little, if any, expectation that Ms W would assist in any way in fostering the relationship with the father. Unfortunately the impression, if anything, would be that Ms W would seek to perhaps even unknowingly, undermine the importance of the relationship with the father, and particularly, of course, more significantly the relationship which needed to be fostered and developed with the child [Y].
There is much obviously of a positive nature in relation to each of the households but when those two particular factors are considered in relation to the determination of this matter I am, unfortunately from the mother’s perspective, drawn to the view that the father’s proposals in relation to the child living with him, though of course spending as much time as possible with the mother, are the proper orders that should be made.
I would note, however, that as both parents appear to have indicated in their material, and which appears to have been emphasised by the legal representatives for each of the parties, if in fact it were the case that the mother were to be living in the same locality as the father, and it is not out of the question, particularly when it might be seen as a real possibility that the mother might obtain work as an [omitted] in time to come in the same locality of the father, then that there should be the opportunity for the child to spend equal time in both households, thus having the opportunity to further his relationship with all those significant in both parents’ families, and also to enable each parent to be more fully and completely involved in all aspects of the child’s life.
The orders that I intend to make therefore are reflective of generally the proposals by the father with regard to the child living with him but that in the event of the mother being in the same locality as the father, say within a radius of 50 kilometres, then that the parents should share equally in the care of the child.
The orders of the Court therefore will be as detailed at the commencement of these reasons.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 24 October 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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