CROPPER & EYRE
[2015] FCCA 2959
•5 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROPPER & EYRE | [2015] FCCA 2959 |
| Catchwords: FAMILY LAW – Parenting – relocation – whether equal shared parental responsibility is in the best interests of the child – determination that equal shared parental responsibility is appropriate – whether equal time or substantial and significant time is practicable should mother relocate with or without the child – consideration of section 65DAA(5) including how far apart the parents might live if relocation occurs – determination whether equal time is appropriate and in the best interests of the child if the parties remain in the same locality – what orders should be made considering objects and principles as detailed in section 60B – consideration of primary and additional considerations as detailed in section 60CC. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA(3) & (5), 65DAC, 65DAE |
| Heath & Hemming (No 2) [2011] FamCA 749 Lansa & Clovelly [2010] FamCA 80 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MS CROPPER |
| Respondent: | MR EYRE |
| File Number: | TVC 23 of 2013 |
| Judgment of: | Judge Coker |
| Hearing date: | 3-5 August 2015 |
| Date of Last Submission: | 5 August 2015 |
| Delivered at: | Townsville |
| Delivered on: | 5 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fellows |
| Solicitors for the Applicant: | Wilson Ryan & Grose |
| Counsel for the Respondent: | Mr Betts |
| Solicitors for the Respondent: | McDonald Leong |
ORDERS
That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2010, 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;
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
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; and
(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 Father in (omitted).
That the child spend time with the Mother at all times as may be agreed and, failing agreement as follows:
(a)Should the Mother be living in the same location as the Father:
(i)Unless otherwise agreed in writing between the parties, then from after school Friday until before school on the following Friday and in each alternate week thereafter;
(ii)For the gazetted school holidays during the end of Terms 1, 2 and 3, the week-about arrangement shall continue;
(iii)For the gazetted school holidays at the end of Term 4, the child shall spend half of the holidays with each parent, being the first half with the Mother and the second half with the Father in even numbered years and the first half with the Father and the second half with the Mother in odd numbered years;
(iv)Unless otherwise agreed in writing between the parties, changeovers during the gazetted school term are to occur at the child’s school and should the Friday not be a school day or changeover is to occur during gazetted school holidays, then such changeover is to occur at the residence of the parent who has had the child in their care.
(b)Should the Mother not be living in the same location as the Father:
(i)Unless otherwise agreed in writing between the parties, during each gazetted school term on the third and seventh weekend from 6.00pm on Friday or Thursday, should the Friday be a public holiday or pupil free day, until 6.00pm on Sunday or Monday, should the Monday be a public holiday or pupil free day;
(ii)For the whole of the end of Term 1 and end of Term 3 gazetted school holidays;
(iii)For the gazetted school holidays at the end of Term 2 and the end of Term 4, the child shall spend half of the holidays with each parent, being the first half with the Mother and the second half with the Father in even numbered years and the first half with the Father and the second half with the Mother in odd numbered years;
(iv)Unless otherwise agreed in writing between the parties, changeover during the gazetted school term and during the gazetted holiday periods shall occur in (omitted), with each parent to be responsible for the costs associated with their attendance in (omitted) for the purposes of changeover.
That any toys, clothing and personal items sent with the child at the commencement of each period of time with either parent be returned with the child to the other parent at the conclusion of each period of time.
That for the purposes of defining the first and second half of gazetted school holiday periods or the whole of the gazetted school holiday periods, that the following apply:
(a)the whole of the end of Term 1 gazetted school holiday period from 5.00pm on the Thursday preceding Good Friday, should the end of Term 1 commence on the Easter long weekend and otherwise from 6.00pm on the Friday until 6.00pm on Sunday preceding the recommencement of school;
(b)the first half of the end of Term 2 gazetted school holidays shall be from 6.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(c)the second half of the end of Term 2 gazetted school holidays 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;
(d)the whole of the end of Term 3 gazetted school holiday period commences at 6.00pm on the Friday which follows or is the last day of school to 6.00pm on the Sunday preceding the recommencement of school;
(e)the first half of the end of Term 4 gazetted school holiday period commences at 6.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(f)the second half of the end of Term 4 gazetted school holiday period commences at 6.00pm on the Saturday in the middle weekend of the end of Term 4 gazetted school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
Special days
Providing the parents are in the same location, the parents will each spend time with the child on special days if the child is not already in their care, unless otherwise agreed between the parents, as follows:
(a)With the Mother on Mother’s Day and with the Father on Father’s Day from 9.00am until 5.00pm;
(b)With the Mother on the Mother’s birthday and with the Father on the Father’s birthday from 3.00pm until 7.00pm;
(c)With the parent who does not have the child in their care on the child’s birthday from 3.00pm until 7.00pm.
Christmas
Providing the parents are in the same location, during the Christmas period the child will spend time with the parent with whom she is not spending time as follows:
(a)In even numbered years with the Father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day, and
(b)In odd numbered years with the Mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day.
Communication
That unless otherwise agreed, the child have the opportunity to communicate with the parent with whom she is not spending time by telephone between 6.30pm and 7.00pm each Tuesday, Thursday and Saturday, with the parent not having the child in their care to be responsible for initiating the call.
When the child is communicating with the other parent each parent shall:
(a)Ensure that the child is available to receive the telephone call;
(b)If the parent receiving the call misses the call, he/she will ensure that the child telephones the other parent by return as quickly as possible;
(c)Both parties are to ensure that the child has privacy during her communication with the other parent.
That the child be at liberty to call either parent at all reasonable times and the parent whom she is with shall assist the child to make any call she requests.
Exchange of information
The parents shall:
(a)Communicate with each other about non-urgent issues relating to the child by mobile phone text message or email;
(b)Communicate with each other about any urgent issues relating to the child by telephone, or if the telephone is not answered, by mobile phone text message;
(c)Not require the child to pass on messages or information to the other parent;
(d)Keep each other informed at all times as to their residential addresses or mobile telephone numbers and email addresses;
(e)Keep each other informed as to the names and addresses of any treating medical practitioners, healthcare practitioners who come into any contact with the child and this Order shall be an authority to any such practitioners to provide to the other parent any information that such practitioners may lawfully provide about the child;
(f)Inform the other parent as soon as reasonably practicable of the welfare of the child and any injury or illness affecting the child that requires any medical or hospital attention;
(g)Keep the other parent informed of and supply the other parent with the dates and times of the child’s sporting and extracurricular activities.
Education
Any educational/child care institutions attended by the child are hereby authorised and empowered to provide to both parents any information about the child’s educational progress and school/child care related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the child. Any out of pocket expense connected to any such request shall be the responsibility of the parent who made such request.
Both parents are at liberty to attend the child’s sporting and extracurricular activities.
Privacy, Non-Denigration
That during the time the child is with either parent, the 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; and
(c)Not denigrate or insult the other parent or the other parent’s family in the presence or hearing of the child and use his or her best endeavours to ensure that others do not denigrate or insult the other parent or the other parent’s family in the hearing or presence of the child.
Travel
That if either parent wishes to travel with the child, any such travel only occur during the time with that parent pursuant to these Orders unless otherwise agreed between the parents in writing.
That if either parent intends to travel with the child for longer than a weekend, that parent will provide the other parent with the addresses of where the child will stay and contact telephone numbers of the child whilst away.
That if either parent intends to travel outside Australia with the child, the travelling parent will, at least two (2) months prior to the date of travel, inform the other parent in writing of the proposed trip and provide the parent with a flight itinerary, a list of the countries intended to be travelled to, a list of the places and any relevant addresses of where the child will visit and/or stay and contact numbers for the child whilst away.
That if either parent travels outside of Australia with the child, the travelling parent will arrange and facilitate telephone contact between the child and the non-travelling parent, at a time to be agreed between the parties in writing, no less frequently than on two occasions each week the child is outside Australia, with the travelling parent to initiate the telephone call.
That if the child does not hold a current passport, then the parent seeking to travel with the child shall seek the consent of the other parent, not unreasonably withheld, to the issue of a passport and shall be responsible for the payment of any cost associated with obtaining a passport for the child.
That should either party have any application for costs, then the party seeking costs shall within 28 days of the date of this Order file submissions in relation to costs and the other party shall respond within 21 days and determination, unless otherwise requested in writing, shall occur in Chambers.
IT IS NOTED that publication of this judgment under the pseudonym Cropper & Eyre is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 23 of 2013
| MS CROPPER |
Applicant
And
| MR EYRE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
On 7 April 2014, Ms Cropper, whom I shall refer to as the mother, filed an initiating application in this Court seeking orders with regard to the parenting of the child, X. X is the child of the mother and Mr Eyre, whom I shall refer to as the father. X was, at the time of the filing of that application in April of 2014, about three and a half years of age.
THE APPLICATIONS:
The orders that were sought by the mother on a final basis were detailed initially in the application and were quite comprehensive. They could, however, be summarised as follows:
·that the parents have equal shared parental responsibility;
·that the mother be permitted to relocate the child’s residence from (omitted) to (omitted);
·that until the child commences prep school in 2016 that the child live with the mother in (omitted) and that the father spend time of a particularised nature with the child, including for one week out of every four consecutive weeks from noon on Sunday until noon the following Sunday;
·upon the commencement of prep school in 2016, that the child live with the mother in (omitted) and during the school term spend one weekend out of each four consecutive weekends with the father, the entirety of the end of term 1 and end of term 3 school holiday periods and one half of the end of term 2 and end of term 4 Christmas school holiday periods with the father;
·that, providing the parents are in the same location, each of the parents have the opportunity to spend time with the child on special days, including Mother’s Day, mother’s birthday, child’s birthday, Father’s Day and father’s birthday;
·in the event of the parents being in the same location, that each parent have the opportunity to spend time with the child at or around Christmas Day, notwithstanding that the child would be in the care of the other parent;
·that changeovers occur at the child’s child care or school and if not a school day, then, at the residence of the parent who has the child in their care provided, however, that if the parents are not in the same location, then, handovers would occur at (omitted), with each parent responsible for the costs of travel from their residence to that place;
·that the child have the opportunity to communicate with either parent at all reasonable times and, in particular, that each parent have the opportunity to communicate by telephone each Monday, Wednesday and Sunday between the hours of 6.30 and 7 pm;
·that the parents exchange information with each other in relation to the child so as to ensure that each parent is fully informed of all relevant information with regard to the other parent and to the child;
·that each parent is authorised and each institution providing education or care arrangements for the child is directed to provide the other parent with information, in relation to the child as well as to authorise each parent to be at liberty to attend the child’s sporting and extracurricular activities;
·that each parent be restrained in dealing with each other, so as not to breach the privacy of the other parent, to ensure that all communications are respectful and that neither parent denigrates the other parent or that parent’s family, or allows the child to remain in the presence of any other person doing so;
·that each parent have the opportunity for overseas travel upon the provision of proper information to the other parent and that travel for longer than a weekend would require the parent wishing to travel with the child to provide information to the other parent with regard to such travel;
The orders sought by the mother were comprehensive.
The father responded on 24 June 2014. The orders sought by him on a final basis were, to a significant degree, reflective of what was proposed by the mother. I say that upon the basis that he also suggested that there should be equal shared parental responsibility, that arrangements with regard to special days, school holidays, changeovers, communication, exchange of information, education, injunctions or restraints and travel reflected the proposals of the mother but that, significantly, his proposal was that the child should continue to live with the mother and the father in the (omitted) area, as per the parenting plan which had been entered into between the parties on 13 February 2014.
However, were the mother to relocate to (omitted), then, that X remain in (omitted) and that the mother spend time with the child, until the commencement of the prep school, for five days in each three consecutive weeks, from noon on Sunday until noon on the following Sunday, though it would clearly appear that that is a typographical error, as well as the sharing of school holidays. The father also proposed orders which were reflective of those suggested by the mother, upon X commencing prep school but that it be upon the basis that the child live with him and spend time with the mother.
It should also be noted, that at the time of addresses following the hearing of the trial, the legal representatives for the father indicated that the father had provided instructions that if the parties remained in the same locality, that he would be agreeable to an equal time arrangement and that, in addition to the times proposed, if the mother were to remain in the same locality, that he would still propose that the mother have the entirety of the end of term 1 and end of term 3 school holidays, so as to enable her, should she wish, to holiday with X away from (omitted) and, thus, to facilitate additional opportunities for her to spend time with members of her family.
COMMENTARY:
The outline of the orders proposed in relation to this matter is necessarily not as comprehensive as might otherwise be the case because, apart from the fundamental issue relating to with whom the child should live, each of the parents acknowledge the importance and significance of X maintaining a close and meaningful relationship with the other parent, as well as with others significant in her life and that there is a general acceptance, that it is to the child’s benefit for there to be that continued relationship.
I should indicate here that I found the determination required to be made, in relation to this matter enormously difficult. Both the mother and the father indicated that, in their assessment, the child would be significantly distressed as a result of any orders being made, with regard to with whom she should live. It was acknowledged that no matter what order were made in relation to the matter, at least at the present time, though, of course, each parent would need to consider how the operation of the orders would directly affect them, they would be living in different cities, albeit perhaps only three and a half or four hours travel time away from each other, and that the opportunities that X has had until this time, to spend time of a significant and substantial nature with each parent would be necessarily curtailed.
Both parents expressed and I accept it was a genuine expression of concern, about the effect upon the child. Both parents, however, at least on the face of it, were determined, that what they had decided to do, in relation to where they should live, with whom they should live and the employment circumstances that might flow from that, were intended to be put into effect. No matter what was to be determined, the child would, therefore, experience the distress that both acknowledged would be a direct consequence of any orders made.
As I say, I was dismayed at being required to make the decision in relation to this matter, but it was clear that both the mother and the father were equally as distressed at the possible consequences and outcome that might flow, in relation to the matter. It is no consolation, either to the Court or to the parties, that it is a decision that is required to be made almost on a daily basis within the Court’s exercising jurisdiction in relation to family law. Whilst it may be a common occurrence within the Courts, each case turns on the particular circumstances and family attachments of each individual family and the distress that is experienced by parties and, of course, with respect, more significantly, by children, is a matter that weighs heavy on the hearts of the parents and, of course, also upon the Court.
This child will be distressed and hurt by any orders that are made because, if nothing else can be agreed in relation to these proceedings and certainly there was much that was in dispute between the parties, both acknowledged that there is a close and abiding attachment that X has with both her mother and her father, as well as with extended family and that, as a result of the orders that will be made, one or other of those attachments will be, to a significant degree, changed. It will not be severed because it is clear that the attachments that X has with both of her parents and those others significant in her life are already strongly developed and will survive whatever changes might necessarily occur, but that will not, in any way, ameliorate the immediate hurt that this child will experience, as a result of the orders of the Court.
I emphasise that particular aspect of this matter, because the legal representatives for each of the parents, strongly emphasised the self‑centred nature of the stance taken by each parent. That what could be considered can perhaps most obviously be summarised by the fact, that the mother says that whilst it will break her heart and the child’s heart, even if X is not able to move with her, the mother intends to relocate to (omitted) for perfectly valid reasons.
Though, it is not, in any way, essential or required that the mother provide compelling reasons for a move, it emphasises the difficulties for all in any decisions. Suffice it to say, her position is a genuine one taken, no doubt, after serious consideration of the pros and cons that might arise with regard to moving or not moving.
Similarly, the father says that he will not be able to move from (omitted) to (omitted) if X were to reside in (omitted) with the mother. In that instance, again, he elaborates upon a multitude of quite sound and significant reasons why it would not be feasible for him. There are obviously work and financial considerations as well as the establishment by him of another relationship and the responsibilities that arise in relation to that.
Again, it is, of course, unnecessary nor would it be proper for there to be consideration as to whether those reasons expressed by the father were compelling, and it is not, in any way, my intention to suggest that one party or the other’s reasons are more persuasive or significant than the other. Rather I make reference to it to simply acknowledge that this particular matter, like so many, is reflective of the fact that after a relationship between parties breaks down their lives go on, but they go on in two different directions, where new relationships are formed, employment arrangements are put in place that might mean significant change and perhaps even financial detriment would flow, if they were not continued.
It is an unfortunate characteristic of life in the world and society in which we all now live. What that means is that the Court must, as best it can, weave a path through the competing perspectives of each of the parties to the proceedings and to, in the end, achieve an outcome which, as best it is able to do, meets the needs and welfare of the child. It is important, however, to recognise that there is no perfect solution and certainly no orders that can possibly be made by this Court, in relation to the parenting of this little girl, can leave everyone happy.
What is clear is that one or other of the parents will be enormously distressed by the determination, but far more significant than that, whatever might be the determination in relation to these proceedings, this child will experience hurt as a result of her parents being unable to reach a decision which, however it might be facilitated, continues X’s opportunity for significant, if not equal, time to be spent with each parent.
In that respect it is noteworthy, in particular, that at the conclusion of submissions in relation to this matter, I was asked to make orders which suspended the operation of the previous parenting plan entered into between the parties in February of 2014 and to order that as and from Friday, 14 August 2015 that the child live with each parent on a week-about basis from after school on Friday until before school on the following Friday, in each week.
The parents recognised that that would be the most appropriate arrangement for the child, and I agree that that would be the case, but it is, indeed, unfortunate that whilst that agreement has been put in place, it is only in the short term and that once a decision is made with regard to with whom the child should live radical change will occur.
THE EVDIENCE:
Obviously, the evidence of the parties is of great significance; however, each of the parents also called a number of other witnesses to provide evidence on their behalf. Those witnesses included for the mother, the maternal grandparents, Mr R and Ms C, as well as the mother’s partner, Mr S. For the father, evidence was also called from Ms S, his stepmother, though to all intents and purposes, she has been the mother figure in his life from when he was a child of only some six or seven years. Additionally, the father’s father, Mr W, was called, as well as Ms B, the father’s partner.
Both of the parties also sought to rely upon, though in different respects, the evidence of a jointly commissioned private report writer, Ms T. I shall come to the evidence of Ms T later in these reasons.
The evidence of the parties takes pre-eminence in relation to seeking to gather information which would assist in the determination of this matter, but it is important that there be consideration of the evidence of the other witnesses relied upon, particularly insofar as they are able to throw some light on their observations of the mother or the father. More significantly though of the relationship that each parent has with the child, as well as to perhaps provide some light, on how their relationship with X might be seen to assist with the fostering of the relationship with the other parent.
I turn then to the evidence of the grandparents and partners of each of the parties. Mr R is a (occupation omitted) based in (omitted). Mr R swore an affidavit on 13 July 2015, and that affidavit was filed on 14 July 2015. Mr R was glowing in his praise for his daughter and her capacity to meet and to provide for the needs of the child. Mr R indicated that he:
...firmly supports Ms Cropper’s proposal to relocate X’s residence from (omitted) to (omitted).
Noting that the mother has always been the child’s primary carer and that they are extremely close.
In particular, Mr R opines:
If Ms Cropper can live a happier and more stable life in (omitted) with Mr S and live near us, then, I consider that X will directly benefit from having a happier mother.
No doubt, from Mr R’s perspective and from what he has observed of the relationship between the mother and X, they are understandable statements, but just as clearly, with respect, they have little, if any, appreciation of the relationship that exists between X and her father.
Mr R also commented in his Affidavit upon the family report and the interview process. He was cross-examined in relation to his views with regard to that and his response can be summarised in Mr R’s own words, as being a report that he “discarded it”, because he did not consider the approach of the report writer as being professional enough. He rejected any suggestion that it was discarded because he disagreed with the recommendations.
Mr R was clearly supportive of his daughter and of her wish to relocate. I was, however, troubled by what I observed was the attitude that Mr R had to the father and, therefore, what would be, at least covertly, indicated to X. I do not suggest that Mr R would intentionally seek to deprecate or detract from the relationship that X had with her father, but the distinct impression that I gained, and also I think was gained by Ms T following interviews and the preparation of her report, was that Mr R put far less significance on and importance upon the effect upon the child of a reduction in time with her father.
If you like, Mr R’s view was that the primary attachment was with the mother and that there would be nothing else considered other than that the child would need to fall in line with the mother’s wishes. In particular, Mr R noted in his affidavit at paragraph 19:
X is an adaptable child and that she would be able to adjust to seeing Mr Eyre on a less frequent basis. In my view, Ms Cropper has made tremendous effort to ensure X has a good relationship with her father. I have full confidence that X will continue to have a good relationship with Mr Eyre in the event that X lives in (omitted).
That may be Mr R’s outward view in relation to the matter, and it is, hopefully, what would occur, but I was troubled with some of his attitudes to the father. He was deprecating, and whilst it may have been somewhat misunderstood, the reference in paragraph 94 to Mr R suggesting that the father had, “mummy issues”, showed a lack of empathy and understanding of the difficulties that the father experienced as a result of the breakdown in his own parents’ relationship and the consequences for him, in respect of that relationship.
It was troubling, particularly when a significant degree of comment and criticism was directed toward the father, because he allegedly lacked empathy for the mother and her views. I shall, of course, come to that a little later in these reasons. Additionally, there was a distinction drawn by Mr R between his family and the father’s family. There were suggestions that the father’s family were dysfunctional, and it was perhaps most clearly indicated when the report writer noted that Mr R indicated that Ms S was, “no relation to the child.”
Whether that might or might not be correct at law, it failed to appreciate in any way the significance of Ms S in the father’s life and, of course, flowing from that, the significance that Ms S had in the life of X. The indication by Mr R that Ms S was no relation reflected poorly upon him and gave rise to some concerns that I did have with regard to what might even unknowingly be communicated to X, through such actions. Mr R acknowledged that he had not seen the bond that was identified by Ms T as between X and her father but then, I thought rather offhandedly and without any real sincerity, suggested in words to the effect, “X never said anything bad about her father, so he must be pretty good.”
Ms C was also required for evidence in relation to this matter. Ms C’s affidavit, also filed 14 July 2015, was again very supportive of her daughter and, of course, of the mother’s wish to relocate to (omitted). Ms C was, I thought, a little more generous in her attitude to the father, though I must say that she seemed somewhat surprised and dismayed, that the mother’s wish was not literally determinative of what might be the position, in relation to this matter or, even more particularly, what might have been recommended by Ms T in the family report.
Ms C was also, at least to some degree, critical of the manner in which information was taken from she and her husband, the more significant concern that I had with regard to Ms C’s evidence was her rather dismissive attitude to the effects upon X of these proceedings and, in particular, separation from one or other of her parents, but particularly her father.
She was cross-examined about this and when asked about the fact that Ms T suggested that X would experience trauma as a result of whatever might be, decided answered that the report, “says that”. When asked whether she didn’t agree, she indicated that that was correct and further went on to acknowledge that she didn’t think that there would be much, if any, effect upon X.
She also acknowledged, properly, that she didn’t know what the relationship was between X and her father or, certainly, the strength of that relationship, but notwithstanding that, and acknowledging that she had no real appreciation of the quality or depth of the relationship that X had with her father, she reiterated the statement that was made in the family report, that there would not be any effect upon X if she relocated to (omitted) and acknowledged that that was still her position, because she and other family members would facilitate all that they could, to make X happy living in (omitted).
She seemed somewhat surprised, though she answered quite properly, that if the mother went to (omitted) and X remained in (omitted) with her father, that the father could facilitate the child’s happiness in the same way. Ms C, like her husband, seemed to draw some distinction between the quality of the families, between the Cropper family and the Eyre family. She described to Ms T an opinion that the Eyre family were, “dysfunctional” and when asked who constituted the dysfunctional family, she indicated that it was the family as a whole and noted that Mr Eyre’s father and stepmother were divorced.
I specifically put to her that if that was the definition of a dysfunctional family, then, did that make her daughter and Mr Eyre’s relationship dysfunctional because they were divorced also. Again, she seemed rather surprised and had not really given consideration to that issue, because she was taken aback and immediately indicated that she would not consider that they were a dysfunctional family.
The point here is that Ms C gave me the impression, like her husband, that they drew a seemingly superior distinction between their family and the Eyre family and that that again would be something, perhaps unconsciously, that would be transmitted to X.
I certainly have no doubt that both Mr R and Ms C would be there for their daughter. They would also be there and would be supportive, in all physical respects, for X, and I have no doubt that they would also facilitate and assist with the physical aspects of ensuring that X has the opportunity to continue to spend time with her father. What troubled me more, however, was whether they would actually appreciate the emotional facilitation of the relationship with X and her father.
Whilst I certainly do not suggest that there would be anything outwardly that would indicate that that would be the intention that they had in relation to this matter, I am concerned that there would be a feeling held by the mother and her family, or being the more appropriate family example for the child and that there would be certain issues that would, therefore, arise with regard to the facilitation of the child’s relationship with her father.
I turn then to the evidence of the mother’s partner, Mr S. Mr S prepared an affidavit which was filed on 9 July 2015. Mr S was not cross-examined at length about his affidavit or comments attributable to him, as referred to in the report. I must say, however, that the impression I gained of Mr S was of a level‑headed man, supportive of his partner and one who recognised, perhaps more so than Mr R and Ms C, the effects that there would be upon X, rather than the effects upon the mother, should orders of one nature or the other be made.
Mr S noted in paragraph 19 of his affidavit that he had read the report of Ms T and was:
...surprised by Ms T’s recommendation that X live with her father in (omitted).
He then went on to say:
While I have the utmost respect for Mr Eyre, I find it unusual that the report would recommend that a young girl such as X live with her father instead of her mother.
With respect, such a statement might be reflective of the views of society generally but is, of course, not necessarily reflective of what might be in the best interests of this particular child in this particular case. Certainly the mother is of great significance to the child, but it is somewhat dismissive of Mr S to suggest, that whilst he has respect for Mr Eyre, no matter what the relationship between the father and the child might be and he acknowledged that he had not seen the father child bond, it must be overridden by the mother child bond.
Mr S also commented upon the motivation for the mother’s move and that the mother had communicated to him, as noted in paragraph 33:
...that she started these Court proceedings because she could not simply leave X behind in (omitted).
Whilst I accept that the mother’s motivations in relation to such matters would have been a desire to make the move and to assure that X were to travel with her, it is troubling to again gain the impression that Mr S’s view was that the mother’s wishes must “trump” those of the father or, more particularly, the attachments of the child and, therefore, the hurt that would flow from the mother making the decision, that she has made.
It is also noteworthy that Mr S makes reference to concerns as to how the separation would affect X but then seems to be minimising of how the separation from her father would affect X. He notes in paragraph 24, that X is at a time of her life when there will be many new changes, particularly as she will be starting school, but that she is:
...a very outgoing and confident child who makes friends easily.
He goes on to note that he has no doubt that X will quickly and easily make new friends in (omitted) but, of course, makes no reference to the loss of friendships, attachments and relationships that already exist in (omitted).
If you like, the evidence of Mr S is a little like that of the mother and her parents, which seems to be far more reliant upon the benefits that will flow, it is said, to X from living with her mother in (omitted) than to appreciate or even try to balance the detriments and the hurt that might flow from being moved from the place that, to all intents and purposes, has been the child’s home for virtually the entirety of her life and, of course, the attachments and relationships that have developed there.
Notwithstanding those comments in relation to Mr S or in relation to Mr R and Ms C, I, as I have indicated, have no doubt that they are genuine in their support for the mother and for the need for there to be appropriate arrangements in place, whatever might be the determination, to ensure that X’s opportunity for a relationship with her father and others significant in her life is facilitated.
I turn then to the evidence of the father’s parents and his partner. Ms S swore an affidavit in these proceedings, which was filed on 31 July 2014. Ms S was, like the mother’s witnesses, supportive of her stepson, but I must say that I gained a more positive impression of Ms S’s appreciation of the need for her to remain as neutral and supportive of both parents as possible, because that would be in the best interests of X.
For example, at paragraph 15 of her affidavit she says:
Following Mr Eyre and Ms Cropper’s separation I informed Ms Cropper by phone and text messages that I was more than happy to help her with X at any time. Ms Cropper took me up on this offer a few times. I do recall that on one occasion I picked X up from the (hobby omitted) fields as Ms Cropper was acting as assistant coach to a team from (omitted) and she spent the whole weekend with the team. On another occasion a friend from (omitted) was down, and they dropped X off at my home as they were having a girls’ night out, and on another occasion Ms Cropper was to attend a barbecue function for (hobby omitted), and I babysat X.
Ms M gave me the distinct impression that she was willing to provide support, as she had done, for the mother and for the father, because of her love for this little girl. I have no doubt that she, like all of those who have filed material in relation to this matter, feel a deep and abiding attachment to the child, but the impression that I gained in relation to Ms M was that she was, perhaps because of the separation between she and Mr W, more able to be balanced in the support that was to be provided for each of the parents rather than to be seen on one side of the fence or the other.
She was also, for example, able to acknowledge some of the obvious concerns that will be touched upon more fully in relation to the father, noting that the father was a strict parent and would, no doubt, be seen as a more directive or dominant parent than might be the case with the mother. Ms S’s observations of the relationship between the father and X were noteworthy. She suggests that he is a good hands-on dad and that, while strict, this has benefits in relation to ensuring that she has proper boundaries and that she is properly trained and that she is properly able to appreciate the importance of respect and good manners.
Toward the end of her cross-examination, Ms S was asked whether the father had discussed with her a move back to (omitted), should X relocate with her mother back to (omitted). She indicated that he had not discussed it with her but then went on to note, I think quite sincerely, that she would support whatever decisions were made in relation to the best interests of X. I was impressed with Ms M.
Also giving evidence in relation to the matter was the paternal grandfather, Mr W. Mr W noted that he had read the affidavit of his former wife, Ms S, and he agreed with the contents of paragraphs 1 through 9 of that affidavit. He also noted that since the parents and X moved to (omitted), they have been involved, significantly, in spending time with them. Mr W noted that he provided both emotional and, by inference, financial support to the mother and father when they first came to (omitted).
He made his home available to them and noted and it was not challenged, that he moved out of his bedroom, with an ensuite, to make it suitable for the mother and the father to occupy that room and also ensured that there was a spare room available for X.
Mr W was a hands-on grandfather, particularly up until recently when the father continued to live with him prior to, in the last few weeks before trial, commencing residence with his partner, Ms B. He mentioned, for example, in paragraph 9 that on Saturday mornings, if the father was working, he prepared X’s breakfast, plaited her hair “just like (omitted)”, a character from the movie (omitted), assisted her to get dressed and took her to swimming lessons, as well as attending to shopping and other activities, that clearly were enjoyed by her.
Mr W impressed me as a sincere witness. He was supportive, and I thought, a little like his former wife, Ms S, would do, as he put it, “Whatever I could” for his son and for his granddaughter. He was asked whether he would provide unqualified support and noted that that would be what he would provide. I gained the distinct impression that whilst Mr W was, perhaps, a little uncomfortable in giving evidence, he was an honest and frank witness, and clearly had not only a view of supporting his son but also, I thought, a clear appreciation of the importance to X of relationships, not only with her mother and father, but with all others significant in her life.
Also providing evidence in relation to the matter was Ms B, the father’s partner. Ms B was a (occupation omitted) with, (employer omitted) . Ms B impressed me with her support for the father, and of the relationship between she and X – as well as between her children, A, aged seven years, and B, only a few days younger than X.
Ms B was uncomfortable when she gave her evidence. She was anxious in some of the answers that were given by her, and I gained the impression that she chose her words carefully before answering many of the questions. It was not, however, I thought a situation where Ms B made comments in relation to the questions that were asked of her so as to be evasive but, rather, I thought, to ensure that she expressed herself in a clear and precise manner.
She could, for example, have been far less frank than she was, with regard to what might be the situation that would arise if X were to live in (omitted) with her mother. She suggested that she did not believe that the father would move, but rather, would make appropriate arrangements to continue to remain in (omitted).
Interestingly, she also noted that if it were to be the case that the father decided to contemplate a move to (omitted), she would support him. When asked whether that was because she and her children could move, she rather surprisingly, I thought, responded that that was not what was meant. Rather, she would support the decision that was made by the father, but she was not at all sure that she or A and B would accompany the father.
Ms B noted in paragraph 9 of her affidavit that:
X is a very loving and affectionate child, and has welcomed me as part of her life. She often seeks cuddles and affection from me, both when she is happy and excited, as well as when she is upset and seeking comfort.
She also notes the good relationship that X has with her step‑siblings, A and B, and that the children get along very well and enjoy spending time together. This relationship between X and Ms B, as well as involving B and A, was not challenged and, of course, it is understandable that that should be the case, though the closer relationship that would come from the father and Ms B now residing together would be something that would need to be adjusted to, like any of the other changes that might ensue over time. I was generally impressed by Ms B and her evidence, in relation to this matter.
THE PARENTS’ EVIDENCE:
I turn now to the evidence of the mother and the father. Both filed significant affidavits in relation to the proceedings, and were also required for comprehensive cross-examination. Both in different ways impressed me, certainly with respect to their devotion to their little girl, and their absolute desire to ensure that the best, as they saw it for the child, was provided for her. Unfortunately, it was also the case, however, that both caused me some concern to varying and different degrees and in different ways, with regard to their evidence.
I turn firstly to the mother. She is a highly skilled professional person. She is currently employed as an (occupation omitted) with (employer omitted) in (omitted) and has been so employed for some time. She is clearly an intelligent women, though, as was identified in the family report personality assessments, which were conducted by Ms T, she was a person who may be, through her self‑esteem, reactive to changes in her current circumstances, and inwardly troubled by self-doubt and misgivings.
It was also indicated in the report of Ms T, that the mother valued or was likely to value harmonious relationships, and derives much of her satisfaction from these relationships. And, she is likely, because of the premium she places upon harmony in relationships, to be:
Uncomfortable with interpersonal confrontation or conflict, and would tend to shun controversy.
I gained that impression, at least to some degree, in relation to the mother and to her evidence.
It, of course, fires sparks when the indications of the father’s psychological assessment is of such a different personality type. Mr Eyre was noted as a confident and optimistic person who approaches life with a clear sense of purpose and distinct convictions. And that he had a:
Well‑articulated sense of who he is and what his goals are.
More particularly, it was noted, however, that his interpersonal style seemed characterised as:
Self-assured, confident, and dominant. Although not unfriendly, he is likely to be described by others as ambitious and having a leader-like demeanour.
Additionally, it was noted that he would prefer to interact with others in situations over which he, “can exercise some measure of control”. The obvious difference in personality styles between a person who seeks harmonious relationships and shuns controversy, and a person who is dominant in their behaviours, has a leader-like demeanour and seeks to involve interaction with others in situations in which he can exercise a measure of control, was a recurring theme in these proceedings.
The mother’s affidavit was, if you like, to some extent reflective of her professional and, no doubt, well-structured professional life. Her affidavit filed in relation to the proceedings was 62 pages in length, comprising 352 paragraphs, and had as annexures to that trial affidavit, 110 pages. It was an enormous document and, whilst to some extent I accept that it was brought about as a need to address many of the issues that have arisen, particularly as a result of the relationship as it currently exists between she and the father, there was also, a significant amount of surplusage, in relation to what she put before the Court.
To that extent it was clear, for example, that whilst the mother sought to present a comprehensive picture of circumstances with regard to her proposals and why she considered them to be in the best interests of the child, she did on occasions intersperse that significant information with matters which were I thought, of little real assistance in relation to the proceedings. I gained, I thought, the best impression of the mother from her time in the witness box.
She was generally composed, though it was clear that on a couple of occasions during cross-examination, in particular, the full import and impact of the proceedings and the possible outcome, were a little difficult for her to bear. She was not, however, as restrained or restricted in her capacity to assert herself as I had initially anticipated would be the case. That impression was gained early, when in cross-examination at the very beginning of the hearing, counsel for the father asked her about the consequences for X if, as the mother said would be the case, she would leave, whether the child accompanied her or not.
She was asked whether she believed that X would cope with seeing her less often and she responded, I think quite understandably, that she did not believe that to be so. But was then immediately asked, “How could you leave her then?” The mother’s response indicated that there was an inner strength in the mother, and I accept that whilst others, including, perhaps, her partner and her parents are not so certain that she would be able to leave, the mother, as was emphasised by her counsel in submissions, perhaps was the person who had the clearest understanding of the effects upon her of the difficulties, as she saw them, in the relationship between her and the father.
In response to the question relating to whether she could leave she said, “I only have one life.” She then went on to say, “I will leave. It will break my heart but I will go.” I accept that the mother is sincere in that view, and whilst there may be others, including the father perhaps, who do not think that she will depart from the life of the child if X is to remain in (omitted), I accept that the mother’s position, however it may have come about, is that she is unhappy, and that unhappiness in no small part stems from her being separated from her family, with whom she is very close. They are primarily in the (omitted) or Far North Queensland area, and as well she views there being difficulties in the intimidating and harassing communications that she continues to have with the father.
The mother, surprisingly, however, had not really put much information forward with regard to what a life in (omitted) would hold for her and X. For example, whilst she had employment with (employer omitted) in (omitted), and indicated that there was an office of that company in (omitted), she had not yet raised the issue of the options or availability of a transfer to that office. It may be, as she indicated, that she was unsure when she might be able to leave, obviously awaiting the outcome of these proceedings. But it did surprise me, that being as organised as she clearly was, that there was not at least some indication that such employment might be available to her.
It did become, to some extent, relevant in relation to the proceedings, in that if employment were not available, it appears clear that the mother’s intention to move would mean that if X were to remain in (omitted), the mother would be in (omitted). Her parents would continue to live on the (omitted). Her partner, Mr S, would be at work, and that she would be, at least to some extent, left at home to ponder the circumstances that she found herself in. No doubt this would an extremely distressing situation to be in.
Additionally, there was little information with regard to arrangements in relation to X if there was a move made. Certainly, the mother indicated that in early 2014 she had put X on the waiting list for the (omitted) State School, but there was little other information about what the changes in circumstances would involve if the move was to occur to (omitted).
Certainly, I accept that the mother would take up occupation of the residence of Mr S at (omitted) in (omitted), and that the child knew the house and had her own room there from occasions when she visited. But there was not a great deal of further information available, in relation to what might be in place, for example, with regard to care, provision, and options of that nature.
Additionally, there were some issues in relation to the mother which troubled me. I gained the distinct impression that she was, a little like her parents, dismissive of the father’s family circumstances and the hurt that was clearly occasioned by him, as a result of the breakup of his parents’ relationship and the circumstances that existed with regard to his mother.
Also, and perhaps flowing from that perspective, however, I gained the impression that the mother placed little weight or any value on the importance to X of relationships that have subsequently developed, as a result of the father’s relationship with Ms B. I accept, that their relationship, at least until only a few weeks prior to the hearing, was one more of a relationship without cohabitation, though there clearly were circumstances that X referred to of sleepovers with Ms B and her children.
The mother places little or any significance on the relationships that have developed. She was asked whether X spoke of Ms B’s children, A and B. Her response, I thought, was rather offhand and simply indicated that occasionally she speaks about activities that she might be involved in with them, but there was little context in what was said. That appeared somewhat surprising, in light of the mother’s own evidence to the effect that X had become quite distressed on one occasion when it became clear that the father was at a (omitted) football match in (omitted) with A and B, and X clearly was unhappy that her father was seeing A and B when she was not present.
It would appear, and it was identified also by Ms T, that there was a close relationship between X and Ms B, as well as with A and B, and that the mother was somewhat dismissive of that and, if anything, critical of the father in making comment about being with A and B when X was not present.
Certainly that may have been ill-considered on the part of the father and it may have caused some small degree of distress to the child, but the greater concern, at least in my assessment, was the failure by the mother to in any real or proper way appreciate that A and B have over time and will over further time become more significant, in the life of this little girl.
Such an attitude of dismissiveness also, I thought, came through in the mother’s response to questions with regard to the importance of the relationship that X might have with Ms B. Though she acknowledged that it would become significant as time passes, she did not see any difficulty in the suggestion by her father that Ms B was, “the girlfriend of 10 minutes of the father”, when interviews were conducted in August of 2014 for the purposes of the preparation of the family report.
It is clear that the mother thought that her father’s comment of that nature was appropriate because, as she indicated they, as in she and her family, were only aware of Ms B in June of 2014. The controversy, if you like, arose from the fact that the mother was unable to suggest when the relationship with Mr S had become more serious and yet there seemed to be no suggestion of him being a, “boyfriend of only ten minutes duration”, at the time of interviews.
Further, the mother’s reliance upon her family and perhaps her over-emphasis of the importance of her family came through from questions directed to the mother, in relation to the amount of travel that will be required by this child, as a result of any orders that might be made by the Court. The mother indicated that she makes the trip north at least each third weekend, for the purposes of spending time with Mr S, and there is no criticism or concern held by her in relation to that.
What was of concern, however, was that counsel for the father suggested that all of that travel makes it harder for there to be integration into the community and, of course, that would be a factor for X, whether she was to live with the mother in (omitted) or continue to live with the father in (omitted). The mother’s response was to simply disregard the possibility of getting a balance in relation to such matters because she responded that it was, “important to foster the relationship with my parents.”
When it was stressed to her that there was already a positive relationship, and that therefore there was not necessarily a need for it to be further fostered, though, of course, to be continued, she acknowledged that that was the case.
The mother was asked many questions about the issues in dispute. I will obviously come to concerns that arose with regard to the communications between the parties and the justifiable and understandable criticisms that will be made of the father with regard to his manner of communication with the mother, but I was concerned with the choice of school issue, more from the perspective of the mother’s attitude than I was from the father’s.
Both were determined in what they proposed with regard to parenting. But it was clear that the father’s position was to suggest that he had looked at other schools, though the mother may not have thought that he had done so with any determination, to consider a balance between various schools, but however it had come about, had determined that (omitted) School would be a school that he thought was best for X. He emphasised, I think quite understandably, that if, as the mother had said, it was her definite intention to leave for (omitted), then to insist on the child attending a school which was not thought by the father to meet the child’s need, and, perhaps more particularly, to cause a greater degree of difficulty within the father’s household, was unreasonable.
The mother suggested that she wanted the (omitted) School, and no doubt suggested it for reasons that she thought were genuine. Though when tested by counsel, I gained the distinct impression that, as suggested, it was more a case of throwing impediments on the child’s attendance at the (omitted) School than to genuinely have believed that the (omitted) School offered more. But, more particularly, it was clearly a case that it would be the father, if X were to remain in (omitted), who would be responsible for the obligations and requirements associated with her attendance at school that he would be required to meet them.
The father, indicated that he would defer to the mother’s proposals, though he might have some views with regard to a school in (omitted), if X was to live there. I accept that that was the case, and that the mother’s position in relation to this matter was not one simply more so of feeling that she was being bullied or harassed by the father, or not being listened to, but rather one of a determination on her part to achieve something without there being any real benefit for X.
I say that particularly in light of the fact that, if it were to be the case that the child attended (omitted) School, but that then it was ordered that the child live with the father if the mother were to be moving to (omitted), then one could not have imagined any real or sustained argument to suggest that, in the circumstances of the father being responsible for all arrangements with regard to the child’s attendance at school, that it would not have been appropriate for there to have been a change.
The mother, in my view, acted unreasonably in that particular instance, and it was perhaps simply another example of the different styles of parenting of each of the parties, but also of the different approaches that they took.
Whilst, as I indicated, Ms T identified characteristics in relation to the mother, which noted that she would be uncomfortable with interpersonal confrontation or conflict, I did gain at least some impression, that the mother was not uncomfortable in taking a stance that I might, as a layperson, consider to be passive aggressive, rather than simply to accede to what might be suggested by the father. That is not to say that the father’s stance, in many instances, was not far more aggressive, domineering and overbearing, but it is not, as Ms T noted, an entirely one-way street.
It was also noteworthy during the evidence of the mother that comment was made specifically relating to issues with regard to changes of school and to the fact that it would be X who would be required to adapt to and to deal with issues, particularly if there was to be a change in the school. The mother was asked whether adaptation would be a problem in (omitted). The mother’s response was telling in that she simply said that it would be able to be dealt with because X would be, “better with me.” When asked whether that was because she was the mother, the mother’s real position in relation to this matter became clear. Her answer was simple “yes.”
When challenged along the lines of, “Is that because your role is more important?” she backtracked, but I think a little too late to retract the actual position that she had shown. She answered, “I didn’t say that, but I have genuine concerns.”
The mother’s position in relation to these proceedings was, I thought, in very many ways, based upon a proposition that she was the mother, and perhaps as identified by both of her parents and Mr S, that was the critical factor, at least from the Cropper and (omitted) family perspectives, of the determination of this matter.
The mother was dismissive of the importance to the father of as much time as possible with X, but far more significantly was, I thought, entirely unconcerned with the effects upon X of significant changes with regard to her opportunity to spend time with her father. Ms T similarly identified concerns of that nature in her report. In particular when asked about her familial relationships, and in particular the strong desire that she had to be with her family, she was asked whether it was central to her happiness.
She indicated that that was not necessarily the case but it was certainly important to her happiness. She was then asked to consider whether it would be the case that, if she moved, there would be upheaval in her life but much more, of course, in the life of X, if she were to move and therefore, of course, by extrapolation, to the life of the father. Her response was, again, indicative of her view in relation to what was the central theme in these proceedings. She said words to the effect, “It’s not that different. It’s just a change to the balance of time.”
When asked to acknowledge that it would, of course, be a fairly important consideration, she said that it was, and, only when pressed, acknowledged that it would be a really more important consideration for X than for her. She was then taken to a comment by Ms T in paragraph 190 of her report that she had a strong belief that X needed to live with her for the majority of the time. The mother’s response was not to challenge that, and perhaps that was an honest and truthful stance to take, but it was telling in that she said words to the effect, “She’d be better off if I moved, to then come with me.”
It conflicted, as was identified by counsel for the father, with the comments that were made by her in paragraph 38 of the report, where she acknowledged that X could have a happy and fulfilling life with either parent, and her response in relation to that apparent contradiction was to simply note that there would have to be change, and it would be, as she put it, “less damaging for X”, if she were to be with her.
When challenged about that and, in particular, the fact that as a result of the proceedings, and whilst, they were brought upon a genuine basis, that X would be damaged for your happiness, she acknowledged that in one respect that would be the case, and whilst it would be a big price to pay, “it was worth it”. It was troubling that the mother intellectually understood that there would be hurt for this child as a result of the proceedings that were before the Court, but was still of the view that the hurt should occur, because it would make her a better and happier parent.
The mother understandably took offence at suggestions made by the father that her behaviour or application was comparable to that of his mother, Ms G, at the time of her separation from the paternal grandfather. The father had been terribly hurt by the circumstances that existed there. His mother had had issues with drugs, she had been jailed as a result of criminal behaviours, and her relationship with each of her children, but, of course, primarily here, with her son, had been damaged to the extent that the father still clearly experienced difficulties in dealing with the effects upon him of his mother’s failure to be involved in his life.
The mother was offended at the suggestion that what she proposed was similar, but she failed to have any appreciation of the hurt that the father clearly experienced, as a result of seeing another possibility of a child losing one or other of their parents. It may have been an unfair comparison to have been made by the father but, it was not one that was completely out of context, when the father’s circumstances were taken into full consideration.
It was interesting also that the mother was, again, somewhat dismissive of the father, when he made some positive comments in relation to her. Certainly, on occasion, those positives were followed very quickly by other criticism, such as her having a significant sense of entitlement, but, by the same token, the mother’s view was that the father had not been as substantial as she would have wanted in comments made with regard to her. For example, when asked whether she acknowledged that the father, perhaps not as glowingly as the mother would have wanted, did acknowledge that she was a good mother, she did not accept that that was the case, but rather responded, I thought rather oddly, “He’s not said much.”
The mother was hurt by much of what had occurred between she and the father, particularly in the year since the family report had issued. The father had forwarded her a number of ill-considered emails and it was suggested in submissions that the hurt that he caused to her was a clear indicator of his lack of understanding. I was reminded of the old adage that the pen is mightier than the sword and similarly am mindful of the words of the song, “Words are like weapons, they wound some times.” But it is clear that it is, as Ms T repeatedly identified, and counsel for the mother sought to challenge, ‘a two-way street’.
The father used his words in an ill-advised way, and certainly his manner of communication needs to be significantly and seriously reconsidered, but the mother also has been able to hurt the father, and that was exampled on a number of occasions in emails that passed between the parents, where, whilst the mother was distressed at certain statements that were made, she also was not adverse to making comments in reply to the father that were designed to, perhaps without thought or intent, to cause him certain hurt.
For example, in her email to the father of 22 January 2015, the mother responded to certain comments made by the father, but in the centre of that email, standing alone from any other comment, were the words, “How do you think it will affect X if I move without her?” It was clearly designed to elicit some response from the father, and whilst it may not have been as directly hurtful as what the mother suggested were the effects of a number of emails from the father, it was clear that the mother could and would, on occasion, fire as stinging a response to emails received as she felt had been the effect of the emails that had come to her.
It is noteworthy, of course, that Ms T properly acknowledged that the mother generally refrained from engaging in the exchange between she and the father but, by the same token, it is clear that the mother was willing to engage in the exchange between she and the father where it suited her to do so. The mother was in an untenable position, from her own perspective, as was the father. Both had, in different ways and to different degrees, acted in a manner which was disturbing in respect of the ultimate determination of these proceedings.
Insofar as the evidence of the father was concerned, there was much that gave rise to positive commentary in relation to the father, but, just as clearly, there were also instances where the father’s behaviours were inappropriate in the extreme, and his lack of any real appreciation, at all, of how his behaviours affected the mother were troubling. The best that the father could say, when challenged in relation to some of the most inappropriate communications directed by him to the mother, was that he regretted that they had been sent, and he was regretful that the mother had interpreted some of them, in the manner that she had.
However, I also gained the impression that the father was, as identified by Ms T, of a personality type which meant that he approached life with a clear sense of purpose and distinct conviction, and that he had a leader-like demeanour. It was also, I thought, clearly evident that he interacted with others generally in a situation where he would be able to exercise some measure of control. He had a (omitted) background and, in fact, noted that, to some extent, the qualities referred to by Ms T, if they can be described as qualities, were features of a personality that the (omitted), saw as beneficial, in relation to a (omitted) career.
The father was forceful. The father would not let any situation go and, for example, on a number of occasions in that vein, sent emails to the mother indicating that she had not answered his queries and that he wanted an answer. The father was like a dog with a bone, in some respects, and until he felt satisfied that the matter that he was seeking to clarify had been dealt with, he would not let it go. It is an unfortunate characteristic within his personality, but I would also have thought that it was clearly a characteristic that existed, from the beginning of the relationship.
The father was, indeed, genuine and, as he reiterated, an honest witness. He regularly gave answers, which could only have been considered honest, because they were contrary to his interests in these proceedings. It would have been, with respect, easy for him to have delivered an abject apology in relation to any hurt that he might have caused the mother as a result of the emails that he had sent and the possible misinterpretation, at least from his perspective, of what those words meant.
He did not, at any time, offer an apology, and whilst that may have been something that would have been the subject of criticism on the part of the mother as being too little too late, and perhaps, understandably, insincere, he did not use those words. He regretted that some of things had been said, or that they had been interpreted in the way that they had been interpreted by the mother, but he did not retract them. On a number of occasions, he said he referred to the facts, and, of course, at least from his perspective, that might have been the case, but balanced against that was the obvious need to appreciate that his version or interpretation of the facts was very different to that of the mother.
The father was dogmatic. He would not let an issue lie if he required an answer in relation to it, and he was also very quick to fall back to the parenting plan if he did not get his way. It was clear, for example, that when discussions were held with regard to X’s baptism, there was an initial agreement by the father to a change of time to be spent between X and each of her parents, but then he sought to tack on another issue, the change of time with X, because of a prospective change in his roster. When the mother, quite reasonably said that it was appropriate that that not be dealt with until it was at least assured that the change would occur, he retracted what he suggested would be the case with regard to the time to be spent by the child with the mother leading up to the child’s baptism, and rather said that he would holiday with the child and make her available at the church at 3.00pm, on the day of the baptism.
Quite clearly the father sought to gain advantage where he could and, with respect, sought to use a concession on his part as a direct means to obtain an immediate concession on the part of the mother. It was hurtful, and it was ill considered on his part, and was, as I say, a recurring theme, in relation to some of the dealings between the parents. But it was also a clear indication of the father’s structured view of how things should work.
He, for example, indicated that whilst he thought that a seven on seven off arrangement with regard to X spending time with each parent might be appropriate, though it would not necessarily suit his rostering arrangements, he was not wanting to adopt it until such time as the proceedings before this Court had been dealt with, because there was an established routine or status quo. The father was routine driven, he was a person who I thought would struggle with change, and whilst he was keen to effect change when it suited him, was also subject to experiencing difficulties, if he was unable to control the direction of such change.
The father acknowledged that he was black and white in his views, as to how things were done. He acknowledged, as his stepmother identified, that he was strict. The father was also not necessarily, as indicated by Ms T, narcissistic in his personality, but there were certainly, at least again from a layperson’s perspective, qualities of narcissism.
The father saw great pride being able to be taken in his work ethic. It was clear that when the parties were in some financial difficulties when living in (omitted), he took fly-in/fly-out work that required 87 or more hours work in a seven-day week, which came out to perhaps twelve and a half hour days each day that he was on a (employment omitted), and, then, in the week off, in the seven-on/seven-off arrangement, worked otherwise for five or six days, simply to generate significant greater income.
The father put great significance on that, but also was then somewhat demeaning of the mother’s work ethic, though it could not, in any real or proper way, be suggested that she did not hold an appropriate and proper work ethic. There was evidence to suggest that, other than for a period of some four or five months at and around the time of X’s birth, the mother had always been in employment and had sought to contribute to the finances of the household.
That fact is that the father placed great worth on his contribution, be it financial or otherwise, and was demeaning or belittling of the contribution of the mother. He felt that he had made sacrifices, though, as was emphasised repeatedly, suggestions by the father that the mother had some moral or ethical obligation to pay more in relation to a property settlement fell flat when the unchallenged evidence of the mother was that calculations were made in relation to the property settlement effected between the two, and the outcome of that was an overwhelmingly favourable property settlement, in favour of the father.
The final figures that were suggested were basically 82.5 per cent property settlement in favour of the father and 17.5 per cent in favour of the mother. To suggest that the mother had been unethical or immoral was beyond the pale, and the mother was understandably offended when the father repeatedly brought it up. The best he could say in relation to those issues was that he felt aggrieved when he had to continue to make the payments, but, of course, he failed in any way to appreciate that the mother left the relationship with little, if anything, other than the superannuation which she had at the time of the property settlement being effected.
The mother did not walk away from her responsibilities. The father had an over-sensitive view of what he had done, and it was again, perhaps, reflective of his desire for control and to clearly dominate the circumstances of any exchange with the mother or, I would assume, with others in social or professional circumstances, where there was conflict.
The father communicated poorly. The father, on occasions, had an overwhelming sense of his own superiority, at least from a moral or ethical perspective, he thought, in respect of the relationship. All of those factors related to his difficult personality and circumstances but, by the same token, I found him an overwhelmingly honest witness. He was one of the few witnesses I have ever seen, in more than 16 years on the bench, who said, with absolute conviction, “I don’t lie,” and I believed him.
As I indicated earlier in these reasons, it would have been easy for him to make some concessions with regard to an apology, in relation to certain of the stance taken by him, in relation to the proceedings, but he did not do so. He said he regretted certain communications or how they were interpreted. At one stage, he indicated that he regretted “putting so much pressure on Ms Cropper,” and that it was a reflection of the pressure he put on himself.
DISCUSSION:
If one is to then follow the “logical and practical approach” that Justice Kent outlined in Heath & Hemming No 2 (supra), then the first step, identifying the respective proposals of each of the parties, and the proposals of the court, if substantially different to those of the parties, is straightforward. At the very commencement of these reasons, I identified the proposals of the mother and the counter-proposals of the father. As the matter progressed during hearing, there were also modifications, primarily to what the father put forward, should both parents be in the same locality, but otherwise it was clear that the major distinction arose from each parent’s desire for the child to live primarily with them, and in the mother’s case, for her to have the opportunity to have X live with her in (omitted).
The second step then, “informed by the objects in section 60B(1) and the principles underlying those objects in section 60B(2)” is to undertake consideration and make findings about each of the best interests considerations. Section 60B(1) and (2) is 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).
The objects and the principles are then reflected in the considerations that are detailed primarily in section 60CC(2), (2A), and (3) which 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.
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.
A number of the considerations, reflective of the objects and principles, loom large in respect of the determination of this matter. They include obviously the benefit to X of having a meaningful relationship with both of her parents, and little more needs to be said than that every indicator is that this child has an extremely positive and significant relationship with each of her parents. It is also clear that, at least from the perspective of the mother and her proposals in relation to this matter, there are real concerns about the continued nature or at least the fostering and development of that meaningful relationship with both parents.
It is clearly a factor of concern and one which troubled the parents but also Ms T at the time of her interviews, preparation of her report, and giving of oral evidence. Ms T spoke of a child’s confusion with “transition” and noted that in her assessment, X would experience real disruption and grief if the mother were to move to (omitted) and X was either to accompany her or to remain in (omitted) with her father.
Clearly, this child would benefit from the further fostering and development of a meaningful relationship with both of her parents, with whom she is already closely attached, and just as obviously, will suffer distress at the time of any change which would diminish the opportunity for time with each parent. It is a factor of some particular weight in relation to the determination of this matter, though it must of course be looked at in connection with the various other relevant considerations.
The second of the primary considerations set out in section 60CC(2) is not as significant here as might have at first appeared to be the case. The mother expressed concern with the father’s attitude and beliefs and he, similarly, expressed concerns about her attitude of “entitlement”. But in the end, both recognised the importance of the other parent in X’s life, the benefits that would flow from the parent’s having equal shared parental responsibility, and recognised that whilst they may have concerns arising from their dealings with each other, ultimately those concerns are not reflected in respect of issues with regard to the child. Each parent needs to be mindful of the affects upon X of their behaviour and attitude to the other parent, but there is not such a concern that this child is in need of protection.
The additional considerations set out in section 60CC(3) are in many respects an extension of those two primary considerations in that they simply identify further matters which, if relevant, need to be considered in the ultimate determination of what might be in the best interests of the child or children. A number of those considerations exist but are not overly helpful in determining what might be in this child’s best interests. I say that in the sense that they are positive in respect of both parents and therefore, do not give rise to distinctions between each parent which can be used to assist in the ultimate determination.
There are no specific wishes expressed by this little girl. As I noted, Ms T, having heard statements such as, “I want to live full-time or more with Mummy and Daddy” are genuine emotions, but are made more in a situation of a child living in two households and trying to express in very simple terms which might be her wishes. In the most simple of terms, she wishes to have both of her parents in her life to the fullest extent possible.
I have already commented upon the nature of the relationship that X has with her parents, other family members, and those significant in her life because of their relationship with one or other of the parents. Suffice it to say, all of those relationships at least from the perspective of this little girl, are positive. Similarly, if one were to seek some distinction between each parent arising from the extent to which each has sought to participate in all aspects of the child’s life, there would be no assistance available. Quite simply, both parents have taken the proper opportunities to participate in decision-making and to spend time and communicate with the child, as well as to meet their obligations to maintain the child.
Of some significance here however, are the considerations that arise pursuant to the provisions of section 60CC(3)(d). It is clear that this is no easy case, or that there is one proposal which far more beneficially reflects the best interests of the child. It is finely balanced and in such cases, matters which may not normally hold great sway, are relevant. There is an effect upon this child of the changes that will arise, particularly if the mother were to relocate with X or without her. The dynamic that currently exists will be significantly changed. She will be separated from one parent or the other when previously she has had the opportunity to interact with them closely.
More particularly, however, simply as a result of where this child has lived for the majority of her life, a move to (omitted) will significantly change the opportunities available for regular interaction with those presently having close association with X. In that regard, I note particularly the identified close relationship that exists between X and her paternal grandparents, as well as with the father’s partner and her children. Those relationships are well-established and are significant to X. The father’s partner, Ms B, spoke of the nature of her relationship with X in paragraph 9 of her affidavit and was unchallenged in relation to that evidence, as was also the case arising from the suggested close relationship between X and Ms B’s children, B and A.
A move to (omitted) would be a significant change for this little girl and would no doubt be traumatic for her. Ms T, but in fact I think all involved in this case, identified the fact that there would be trauma for the child no matter what, but I am mindful of the fact that the relationships in (omitted) are relationships which constitute regular interaction between X and those persons, whilst the interaction between X and her maternal grandparents and Mr S, whilst significant and meaningful for the child, have become so with far less interaction than is the case in (omitted).
As I indicated a little earlier, in a finely balanced case, small matters such as an established routine, school and peer group, as well as existing opportunities for regular interaction with persons significant in a child’s life, are matters of some weight.
Whether the mother were to move or not, though she was adamant in her evidence that she would effect a move to (omitted), there will still be significant travel, as has already been the case, for this child. The parties have made that work and whilst there will no doubt be some continuing difficulty and expense, I have no doubt that what has previously worked will, if required, continue to operate so that X will maintain personal relationships and contact with her parents and others significant in her life.
I am satisfied beyond any doubt that both of this child’s parents have the capacity to provide for her needs, most specifically on an intellectual level, though in my assessment there is some small distinction to be drawn between the parents and their extended family in relation to dealing with X’s emotional needs. Ms T identified concerns about the mother’s attitude to the child and her needs, and the fact that the mother seems to be more attuned to having her wishes and hopes met, and to be of the view that her role in the parenting of the child is more important than that of the father, and that therefore her wishes should supersede the wishes of the father, or the best interests of the child. More particularly, it was concerning that her parents, X’s maternal grandparents, had a similar view which could perhaps be reflected as “if there is a happy mother, there will be a happy child”. As noted by Ms T, the mother seemed almost oblivious to the impact of her wishes upon the child.
Matters that might need to be considered arising with regard to the maturity, sex, lifestyle and background of the child or the child’s parents, as well as issues in relation to aboriginal or Torres Strait Islander culture, do not arise.
Section 60CC(3)(i) relates to the attitude to the child and to the responsibilities of parenthood demonstrated by the parents. In a physical sense, there is little if anything of concern with regard to either parent and I have no doubt that each can fully meet the child’s physical needs. Like those matters referred to previously however, with regard to meeting the child’s emotional needs, I am concerned that the mother is less able to meet the full responsibilities of parenthood associated with the parenting of this little girl, particularly in circumstances where it may be that the child’s needs or best interests are not reflected in the mother’s wishes. It is a small consideration of concern for me, but as I have already indicated this is a finely-balanced case and such matters gain greater significance when few other distinctions are available.
I have commented previously about the concerns to differing degrees that each parent has raised with regard to issues of family violence and have already indicated that those concerns do not, to any real degree or at all, influence me in the determination of what is in the best interests of this child.
There are no perfect answers in relation to orders that might be made and it is impossible to predict whether the orders proposed by the mother or the father might be less likely to lead to the institution of further proceedings. It is noteworthy however that the orders proposed by the father, whilst no doubt leading to significant change for this little girl, do not give rise to so significant a change as would be the case with the proposals put by the mother. They would involve a change of residence and locality, a change of school and peer group, a change of care arrangements particularly involving the father, and a change in the opportunities for interaction with those whom the child currently has close contact and communication. To that end, the father’s proposals are at least marginally less likely to lead to further proceedings because they give rise to less change in the child’s circumstances.
Having given consideration to those matters, including the objects and principles, and the considerations reflective of them, it is necessary to indicate which of the matters has taken some predominance in relation to the determination. I have already noted the difficult nature of the proceedings and of the finely-balanced case for each of the parties. Of greatest significance in respect of this matter are those that I have commented upon at length in these discussions. The effect of changes in the child’s circumstances, particularly if the mother’s proposals were to be instituted, as well as the concerns that arise with regard to the mother’s apparent lack of insight into the effects of her decisions upon X, and the corresponding lack of appreciation by the maternal grandparents of any affects upon the child.
Similarly, the attitude to the responsibilities of parenthood reflected in the concerns expressed by Ms T relating to the mother’s and maternal grandparents wish for the mother to move, and the lack of appreciation of the effect of that upon the father and, more specifically, X, is a matter of real concern.
Having then commented upon the various considerations and the weight to be given to those various considerations, it is necessary to address specifically the presumption of equal shared parental responsibility arising pursuant to section 61DA. I have already indicated that I am of the view that equal shared parental responsibility is in the best interests of this child and in all the circumstances is not rebutted. It is then necessary in that case to specifically consider the possibility of the child spending equal time or substantial and significant time with each parent. Section 65DAA is in these terms:
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.
If the parties were in the same locality, there is little that would suggest other than that equal time with each of the parents would be in the best interests of the child. Both the father and the mother appear to have conceded that during the hearing, or at least during final addresses and it is clear that no matter where X might live, if both of her parents were in close proximity to each other, then equal time would be appropriate.
However, that is not what either parent envisages if it were to be the case that the mother lived in (omitted) and the father continued to live in (omitted). If that were what existed then equal time, or even substantial and significant time, as defined pursuant to section 65DAA(3) would not be possible. The issue of reasonable practicality would loom large and the consideration reflected in section 65DAA(5)(a) would be insurmountable. These parents would live hundreds of kilometres apart and equal time or substantial and significant time would not be practicable. Even if, as is the case here, the parents had the capacity to implement appropriate care arrangements, and the capacity to communicate with each other, the geographic considerations would override all.
What then remains is the need to determine when it is clear that equal time or substantial and significant time are not appropriate, what arrangements should be put in place with regard to the parenting of the child. I have already commented at length about the primary and additional considerations detailed in section 60CC(2) and (3) and the weight to be given to those considerations, especially with how they support or detract from the proposals of each parent.
In the end, I have come to the view that if the parties were in the same locality, then that equal time would be the arrangement which would best reflect the best interests and welfare of the child. But if it is the case that the parties are to live in different cities, then in those circumstances that the best interests of the child are reflected in her remaining in (omitted) with her father. It will provide, at least as best it can be facilitated, continuity and stability which are not at all indicated if the child were to move to (omitted).
Whilst X will not have the opportunity for such close interaction with both of her parents, she will at least have less change in her life, because she will continue living in one of the houses that she has shared primarily with her parents, will continue to attend the school that she has previously attended, and will continue to have the close interaction with those with whom she has come in contact on a regular basis in (omitted) to this time.
For the reasons given therefore, I intend to make orders in terms of those which are outlined at the commencement of these reasons.
I certify that the preceding two hundred and thirty-one (231) paragraphs are a true copy of the reasons for judgment of Judge Coker.
Associate:
Date: 5 November 2015
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