D and D
[2002] FMCAfam 270
•6 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & D | [2002]FMCAfam 270 |
| CHILDREN – Residence – relocation – domestic violence – health of Mother – Father needing assistance of elderly parents. |
Family Law Act 1975
AIF v AMF 199 CLR 160 (1999) FLC 92-852
| Applicant: | P A D |
| Respondent: | T R J D |
| File No: | CAM 2435 of 2002 |
| Delivered on: | 6 September 2002 |
| Delivered at: | Melbourne, Canberra |
| Hearing Date: | 2 August 2002 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Levet |
| Solicitors for the Applicant: | J Nicholl & Co |
| Counsel for the Respondent: | Ms Hughes |
| Solicitors for the Respondent: | Farrar Gesini & Dunn |
ORDERS
THAT the children J T D (“J”) born 21 April 1999 and J F D (“J”) born 23 June 2002 live with the Mother.
THAT the Mother be at liberty to relocate J and J’s permanent residence from the A C T to the W area in the State of N S W.
THAT the Father have contact with J and J as follows:
a)Until J reaches school age:
i)Each alternate weekend from 5.00pm Thursday to 5.00pm Monday commencing on the first weekend after the Mother and the children relocate to W;
ii)By telephone each Tuesday and Thursday from 5.00pm to 5.30pm;
iii)For the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holiday periods commencing in the years ending in an even number.
b)When J commences school:
i)Each alternate weekend from 5.00pm Friday to 3.00pm Sunday;
ii)By telephone each Tuesday and Thursday from 5.00pm to 5.30pm;
iii)For the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holiday periods commencing in the years ending in an even number.
THAT for the purposes of Orders 3(a)(iii) and 3(b)(iii) above, in the absence of any written agreement between the parties to the contrary the following orders apply:
a)The school holidays refer to N S W school holidays;
b)The first half of school holidays is deemed to commence at 5.00pm on the last day of school;
c)The second half of school holidays is deemed to commence at 5.00pm on the last day of school.
THAT notwithstanding these orders the children live with the Mother from 9.00am until 5.00pm each Mother’s Day and with the Father from 9.00am until 5.00pm each Father’s Day. In the alternative, the children have telephone contact with the Mother or Father, whoever is applicable, on these days from 5.00pm to 5.30pm.
THAT notwithstanding these orders, if the Mother’s birthday or the Father’s birthday falls on a day when the children would otherwise be living with the other parent, the following orders apply:
a)That if the Mother’s birthday or Father’s birthday falls on a weekday, the children have contact with the parent having the birthday for a period of at least 3 hours at a time to be agreed between the parents, and failing such agreement from 4.00pm until 7.00pm;
b)That if the Mother’s birthday or Father’s birthday falls on a weekend the children will be having contact with the other parent then the children will have contact with the parent having the birthday from 9.00am until 5.00pm on the birthday;
c)In the event it is not practicable for the children to have face-to-face contact with the parent having the birthday then the children will have telephone contact with the parent having the birthday from 5.00pm until 5.30pm.
THAT on the children’s birthdays each year the parent with whom the children are living will make the child having the birthday available for contact with the other parent for a period of at least 2 hours at a time to be agreed between the parents, and failing such agreement, such contact will be from 5.00pm until 7.00pm. In the alternative, the parent with whom the children are living will make the child having the birthday available for telephone contact with the other parent from 5.00pm to 5.30pm.
THAT notwithstanding the above Orders the parent with whom the children are living with make the children available for contact with the other parent from 3.00pm Christmas Eve to 3.00pm Christmas Day.
THAT neither parent say unkind or uncomplimentary things about the other in the children’s presence, nor cause or allow anybody else to do so.
THAT to facilitate orders 3, 5, 6, 7 and 8 above, contact changeover occur at M.
THAT the father is to notify the Mother at least 14 days prior to the date of any proposed permanent change of residence, including in the notification the new telephone number and address of the new property where he will live.
THAT the Mother keep the father informed of her current landline telephone number and mobile number if applicable.
THAT each parent notify the other forthwith of any serious illness or injury affecting the children when they are in that parent’s care, and the other parent be at liberty to contact any doctor or hospital treating the children to obtain information.
THAT each parent notify the other of the name of any general practitioner or paediatrician or other specialist who treats the children whilst the children are in that parent’s care.
THAT in the event of a medical or other emergency concerning the children the parent with whom the children are living at that time contact the other parent as soon as practicable.
FEDERAL MAGISTRATES |
CAM 2435 of 2002
| P A D |
Applicant
And
| T R J D |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application concerning residence of two children and their relocation from C to W if they are to reside with the Respondent Mother.
Background
The Applicant Father and Respondent Mother commenced a relationship in approximately 1995 and commenced cohabitation sometime in 1998. They were married on 29 January 2000.
There are two children of the marriage, J T D born 21 April 1999 aged 3 years, and J F D born 23 June 2000 aged 2 years. The parties separated on 8 April 2002.
When the parties separated the Mother moved with the two children to W. On 9 May 2002 orders were made in the Federal Magistrates' Court that the Father vacate the matrimonial home situated at 10 D Street, M, ("the home") by 12 May 2002, that the Mother return to the home with the children by 13 May 2002 and for the Father to have contact with the children. In addition, procedural orders were made, including an order for the preparation of a family report.
The Mother has another child from a previous relationship, L J M ("L") born 15 January 1999 aged 12 years. Until separation he resided with the Mother, Father and the other two children at the matrimonial home. He now resides with his biological Father and Step-Mother in C H.
Throughout the marriage the Father worked as a G at a bowling club. For a period in 1998 the Mother had some part-time work at a bowling club, working at night. She then worked, again part-time, for a short period prior to the birth of the second child.
Proposals
The Mother proposes that the children live with her. She proposes that she relocate to W and live in rented accommodation close to her parents. She proposes that the Father have alternate weekend contact from approximately 5.00pm Thursday to approximately 5.00pm Monday and for half of each school holiday period until J commences school and thereafter he have contact each alternate weekend from 5.00pm Friday to 3.00pm Sunday and half of all school holiday periods. She proposes that contact changeover be at M, about half way between C and W.
The Father proposes that the children reside with him in C. His stated wish is that that be at the former matrimonial home at 55 W Circuit, K. He proposes that his parents will reside with him and assist in looking after the children. He proposes that the Mother have contact.
Domestic violence
The Mother alleged that the Father had been both verbally and physically abusive towards her during the marriage.
The Father denied any physical violence, except for one occasion in October of 1998. He alleged that the Mother was argumentative. The Mother in her evidence detailed a number of occasions of violence. She said that often they were associated with excessive consumption of alcohol by the Father. The Father, while conceding that he did drink alcohol, denied excessive consumption and in particular denied that this led to violence.
There are three occasions where there is substantial corroboration for the Mother's evidence. The first of these is an occasion in which she says, to the best of her recollection, was the first occasion when the Father physically abused her. She said it was when she was approximately one month pregnant with J. Other evidence shows that it was on 25 October 1998.
The Mother says that there was an argument in the bedroom. She left the bedroom and walked into the lounge room and the Father followed her. She sat on the lounge. They were still arguing. The Father leant over and grabbed her left ankle, was twisting her leg and trying to pull her off the lounge. He grabbed her left wrist and squeezed his fingers together and twisted her wrist behind her body. He hit the left-hand side of her face and her head was pushed sideways. She said she felt very frightened. She called the police who attended the home.
The Father was charged by the police with assault. He pleaded guilty and was placed on a good behaviour bond. The Father's evidence was that he slapped the Mother on the face, but otherwise did not touch her. He said he was very remorseful.
During the Father's initial cross-examination the summary of evidence put to the Magistrates' Court was put to him. He said he could not recall what was said in the Court the day he appeared. He was not represented on that day.
Subsequently, the tape of the police interview with the Father was subpoenaed and was played to him. He acknowledged that it was the tape. In the interview he gives a version of the events which is substantially the same as the Mother's. His explanation following his listening to the tape was that he was very upset and remorseful. He wanted to get the whole process over and done with. He just wanted to get back to his family. He was prepared to concede what he had done simply for this purpose.
The interview commences with the usual cautions. It is apparent from the introductory statements by the questioning police officer that the Mother's allegations about what occurred have already been put to the Father prior to the interview commencing. The interview was not in cross-examination form in that the police officer did not put the Mother's allegations to the Father and then ask him if he admitted them or ask him what he had to say about it. The police officer, in a non-aggressive fashion, asked the Father to state what happened. The Father's statement of what happened is therefore his own version, not one constituting an admission of statements made by the questioning police officer. The interview took place on the same evening as the incident; it would seem within about an hour or so. The Father's explanation that he was remorseful and prepared to concede what he did concede solely for the purpose of getting it over and done with and getting back to his family, and not because it was true, is implausible. The plausible explanation is that the Father said what he did because it was correct, and I so find.
The next occasion where there are substantial corroborations is September 2001. The Mother said that the Father came home with a friend badly affected by alcohol. The Father called out for money for the taxi. He had left his wallet with money in it in his jacket at work. She said that she was upstairs feeding J. She went downstairs and let them in and told the Father she had no money and to use the MasterCard.
She said that she went upstairs and recommenced feeding J. The Father came upstairs and grabbed at her left thigh and abused her. She pushed him in the chest with the sole of her left foot and he fell backwards on the floor. L then entered the bedroom and the Father abused L. The Mother says she told L to go back to bed and he left, followed by the Father. She followed holding J. She then gave detailed evidence of abuse by the Father of L including the Father pulling the sheets on L’s bed while L was on them.
The Father denied that any of this occurred. The Mother said that the next morning the Father told her he didn't remember anything about the previous night except that L was screaming and that he said he will give up alcohol. She said that approximately three days later he apologised.
Again, there is corroboration for the Mother's version. Ms Wendy Styles, a child and family counsellor prepared a report. She interviewed each of the parties, the children and L. She had two telephone conversations with L, once while he was in C H and once while he was at the Mother's. She also interviewed him at her office.
In her report dated 27 July 2002, Ms Styles gives considerable detail of her conversations with L and his statements about the relationship between the Father and Mother, and in particular the Father's behaviour. He told Ms Styles of an incident, which is plainly the incident in September 2001, described by the Mother.
The detail given by L in his account substantially corroborates the Mother's evidence.
The statements by L are admissible under section 100A of the Family Law Act 1975. Nevertheless, they are hearsay. The Court has not seen him give evidence and he has not been cross-examined. On the other hand, the statement was taken by an experienced counsellor. She gave evidence and was cross-examined. Her evidence was that he said things in such a way that seemed authentic and not repeating something from someone else. He gave details which Ms Styles considered would have come from him and not from sources of outside information.
He told Ms Styles that he had read some of the Court documents and Ms Styles said it was clear that the Mother had told him quite a lot about the dispute. The Mother's evidence was that she kept Court documents in a folder in the kitchen. Consequently, when L had stayed with her he would easily have had access to them. She said she had shown him an affidavit of the Father. Notwithstanding this, and for the reasons I have already described, Ms Styles considered that L was giving his own description and was telling the truth. L’s description of the Father’s behaviour and his detail of events as reported by Ms Styles does not give the impression of having come from his reading of affidavits or discussion with the Mother. It, as Ms Styles considers, appears to be his own description of events.
The third occasion of substantial corroboration is one where L described to Ms Styles an episode when the Father was hitting the Mother and a neighbour came to the door. The Mother gave similar evidence.
The neighbour gave evidence by way of affidavit. She was not cross-examined. Her evidence was that she saw a young girl walk up the front steps of the house next door and assisted her by knocking on the front door. She said a woman opened the door and the girl gave the woman a message. She observed the woman appeared to have been crying and she heard a male voice from inside the house say words to the effect: "Next the police will be here".
The neighbour in her affidavit described an occasion when she was sweeping her back yard and heard a male voice from next door shouting words to the effect: "He's my son, I will do what I like", and the same male voice swearing loudly.
This evidence corroborates that of the Mother in a general way. The Father in general denied his abusive behaviour. The neighbour's evidence corroborates, to some extent, abusive behaviour on two occasions.
The parties separated on 8 April 2002. The Mother said that this was an occasion when the Father came home affected by alcohol and was abusive and violent.
A submission was put on behalf of the Father that an analysis of the Mother's evidence about this occasion showed that she was lying. There are three written accounts by the Mother of this occasion before the Court. Two affidavits, one sworn on 26 April 2002 and the other on 19 June 2002 and a statement made by the Mother to the police on 9 April 2002. It was submitted that the three versions are inconsistent and so the Mother should not be believed. It was submitted, too, that the Mother's evidence of what occurred as stated in cross-examination was not believable.
I do not consider that there are inconsistencies in the Mother's statements and evidence. The events of 8 February which she describes commenced at about 4.30pm in the afternoon and went until about the middle of the evening. Her statement to the police describes only the latter part of the evening where she says that the Father grabbed her by the wrist, twisted her arm and this caused L to strike his head against a door.
Her affidavit of 26 April goes into considerable detail about events earlier in the evening when the Mother says that the Father came home at about 4.30pm affected by alcohol. The affidavit of 19 July 2002 contains less detail than the earlier affidavit, but is not inconsistent with it.
It is understandable that the police statement deals only with those events which might constitute a criminal offence. The events earlier in the evening were concerned with normal domestic activities in preparing an evening meal, watching television and putting children to bed. Events and arguments revolving around these activities are of relevance to these proceedings. They are most unlikely to have been matters police would consider should be included in a statement being obtained by them for the purpose of investigating an assault alleged to have taken place some time later.
The unbelievability of the Mother's evidence was said to be this. The Mother's evidence was that the Father came home affected by alcohol. She told L to be careful. She said the Father said that he was tired and was going to go to bed. She expressed disappointment because she had prepared a special meal for that evening. The Father did not go to bed and the evening's events then unfolded.
It was said that this was unbelievable because if the Mother was scared of the Father's condition and possible behaviour such that she warned L, she would have encouraged him to go to bed rather than the opposite.
I do not think that the Mother's behaviour as described by her was unbelievable. It is an unfortunate bi-product of adversarial litigation that the evidence which puts the other party in the worst light is that which is concentrated upon. However, the Mother, in her evidence, did have positive things to say about the Father. She acknowledged that the Father loved the children and was capable of caring for them. It was the violence and his attitude to L that, she said, brought her to separate. In her report, Ms Styles says this when detailing the background to her report:
“According to Ms D, ‘the combination of drinking and marijuana’, had in the long term done damage to her Husband. ‘He distorts things I've said or done’, she said. Her marriage had been characterised by both physical and verbal violence. ‘Then there's times he's so beautiful and wonderful’, Ms D admitted. ‘Part of me thinks I'm still in love’. It was the fact that Mr D had turned on her son L that made Ms D decide she could not stay with her Husband.”
Ms D's love for her Husband still existed on 8 April. She had prepared a special meal and her reaction and disappointment to the Husband saying he was going to bed was a natural and understandable one. It is understandable that her disappointment was a stronger feeling than any fear she might have for the Husband’s behaviour. I do not consider this evidence unbelievable, but to the contrary.
Other criticism was made of parts of the Mother's evidence because there were matters which were not in her affidavits or had not been put to the Father in cross-examination. I do not see this as damaging the evidence which supports the Mother's claim of violence. The evidence covered a period of several years. Matters referred to by the Mother in her evidence which might be described as new were not of significance in the context of the whole case.
There is therefore a substantial body of evidence which supports the Mother's allegations of violence often accompanied by alcohol. In addition to this, the Father's blanket denial, except for the one occasion when he pleaded guilty, was unconvincing. Particularly unconvincing was his evidence about drinking and driving. He has five convictions for drink driving, 1980, 1984, 1989, 1990 and 1997. He said in his evidence that these five occasions were the only occasions on which he had driven with a blood alcohol content over the legal limit. The Mother's evidence was that the Father would often come home affected by alcohol. The Father's evidence was that he would have something to drink after work most nights. On bowls days at the club where he worked he would have more, and there were other occasions where he would have more.
In this context, the Father's evidence that the five occasions on which he was convicted were the only five occasions when he had driven with a blood alcohol content over the legal limit. It is improbable in itself. Combined with the evidence that he is a regular drinker of alcohol makes it even more improbable. There might have been some glimmer of veracity in the Father's denial if he had even admitted to a possibility that there were other occasions. But, he did not admit to that possibility. He denied it outright.
There was nothing in the manner in which the Mother gave her evidence which suggested she was not being truthful. There is, as I have described, substantial corroboration for what she says. Consequently I find that the Mother was subjected to violence during the marriage, often accompanied by excessive consumption of alcohol by the Father.
Wife’s health
When the Mother was approximately 20 weeks pregnant with J she suffered a subarachnoid haemorrhage, a bleeding in the head which required surgery. Following this, she developed epilepsy.
The epilepsy causes occasional major seizures and more frequent lesser seizures described as complex partial seizures. The Mother's consultant neurologist, Dr Andrews gave evidence. He said that during major seizures the person loses consciousness, they twitch, they vomit and it is a fairly frightening thing. Complex partial seizures may produce hallucinations and the level of awareness is effected. The person may need to sit down or lie down. Once they come out of that seizure they continue on from where they left off. They are not disoriented.
There was a difference in the evidence between Father and Mother with the number of seizures the Mother had had. She said four major seizures and had reported that many to Dr Andrews. The Husband said seven. The doctor's evidence was that sometimes a minor seizure might be seen as a major one and vice versa. The Father also gave evidence of observing numerous occasions of complex partial seizures which the Mother did not accept had occurred.
Dr Andrews' evidence was that the Mother's condition is controlled by medication and her prognosis for continuing control of migraine and seizures is good. He expressed the opinion that she was capable of looking after two small children. The Mother's evidence was consistent with the doctor's evidence, that the seizures were now under control. The last occasion when she had had the warning symptoms of headaches and flashing lights, it had not developed into a seizure as in the past. The Mother does not drive and gave evidence of steps she would take for care of the children if she did receive the warning signs. She would first contact her Mother, then family members, then her doctor and then if necessary, an ambulance.
In the end, it was not submitted on behalf of the Father that the Mother's medical condition was such that she was not capable of looking after the children. It is an element to be taken into account. Also, something to be taken into account is that when the Mother first suffered the subarachnoid haemorrhage and while she was recovering, the Father was very supportive. Its relevance now is that it shows that he did care for her and the children and that his work arrangements are flexible such that on occasions, if necessary, he can come home at short notice. The Father's evidence is that he does have flexibility. He is the greenkeeper and has an apprentice assisting him. He is the one who decides on the order of work. Therefore, he can arrange things to have a fair degree of flexibility. What he was able to do in assisting the Mother after the initial illness shows that this is correct. When she felt she needed it she could call upon him and he could return home from work.
Paternal grandfather
Evidence was given of a complaint by an eight year old niece of the Mother about the paternal grandfather. She had been staying in the party’s home and so had the paternal grandparents. The niece had complained that the paternal grandfather had stood watching her while she was showering, had then dried her down and touched her inappropriately. The paternal grandfather gave evidence and denied the allegations emphatically. I was urged by counsel for the Father to make a positive finding that there had not been any sexual abuse of the eight year old. It is not necessary that I do that nor is it appropriate. No submission was made that there was any evidence of risk to the two children the subject matter of this application. That is the only relevant consideration and my finding is that there is no evidence of risk to the children from being cared for or contact with the paternal grandfather.
The law
Section 65E of the Family Law Act 1975 sets out that in children's matters, the paramount consideration is the best interests of the children. This must be considered in the context of section 60B(2) which sets out the objects of Part 7 of the Family Law Act. These objects include that, unless it is contrary to a child's best interests, a child is entitled to have contact with the child's parents and other significant people in the child's life. Section 68F(2) sets out matters to be taken into consideration in determining the best interests of the child.
The competing proposals are that the children reside in C with the Father and that they reside with the Mother and relocate with the Mother to W. These are the proposals which I am required to evaluate.
The residence issue cannot be looked at in isolation from the relocation issue. Part of the process I must undertake is to identify those paragraphs of section 68F(2) which are relevant. The paragraphs of section 68F(2) which are relevant are these:
(b)The nature of the relationship of the child with each of the child's parents and with other persons;
(c)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, with whom he or she has been living.
(d)The practical difficulty and expense of a child having contact with the parent and whether that difficulty or expense will substantially effect the child's right to maintain personal relationships and direct contact with both parents on a regular basis;
(e)The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(h)The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child's parents;
(i)Any family violence involving the child or a member of the child's family;
(j)Any family violence order that applies to the child or a member of the child's family.
(l)Any other matter or thing that the court thinks is relevant.
I turn to a consideration of these matters.
The nature of the relationship
The children have a close and affectionate relationship with each parent. Each parent acknowledges that and that was the observation and finding of Ms Styles. Both have the ability to care for the children.
There was a dispute as to where the children's primary attachment lay. The Mother said that she was the person primarily responsible for caring for the children. This was disputed by the Father.
When young each child was breastfed by the Mother. Since the Father has been working full-time she has been the person principally responsible for their care, and since April of this year, except during periods of contact, solely responsible for day to day care. The Father has had a significant involvement, particularly when the Mother was ill. It is noteworthy that L commented to Ms Styles that the Father had exaggerated how much he had done around the house and in caring for the boys. Ms Styles recorded as follows:
“According to L, Ms D had done all the housework and most of the cooking. She got up to the children in the night. Bathing the children seemed to be what Mr D mainly did. He played with them in the mornings before going to work. In L’s view (‘not just because I'm her son’) J and J would do better living with their Mother. ‘If I was a third party, I'd go for mum’, he said.”
It was put on behalf of the Father that there was one significant piece of evidence which pointed to a primary attachment to the Father. The Father said in his affidavit that the children would go to him first if wanting comfort. It was put that this was not challenged in cross-examination.
It is true that this evidence was not specifically challenged. However, the whole tenure of the case on behalf of the Mother was that the primary attachment was to her and the Father's position was challenged in cross-examination.
Ms Styles took the view that the children's primary attachment was with the Mother. Overall, I prefer the Mother's evidence to the Father's. The Father's credibility is severely damaged by his denial of the violence which I have found occurred.
I find that the children's primary attachment is to the Mother.
The likely effect of changes in the child's circumstances, including separation
The children's current circumstances are that they are living in C with their Mother and having contact with their Father. If they are to reside with their Father they will be well cared for but there would be a significant effect on them through having to adjust to moving away from their primary carer at their young ages. If they reside with the Mother, they will move to W, and the frequency of contact with the Father will be reduced. In practical terms, it will be fortnightly contact. The Mother is proposing four days, Friday morning to Monday afternoon. There will not be the possibility for occasional contact for such things as the Father attending kindergarten or school functions, except at rare intervals.
Once the children start school contact would be a fortnightly weekend contact in any event.
Difficulty and expense in contact
The Mother is proposing that contact changeover be at M, halfway between W and C. That will mean that each parent will have about an hour and a half's drive each way. The Mother will be driven by a member of her family. While there is difficulty and expense involved in this beyond what there is while the children are residing in C at the moment, it is not significant. The Husband has flexible working arrangements and considerable accrued leave and will be able to carry out the driving.
Capacity of each parent or of any other person to provide for the needs of the children
For the day to day care of the children the Father will be relying on his parents. They propose to move to C to live with him. Both are in their 70s, and the paternal grandfather has some health problems. There can be no doubt about their willingness and ability to care for the children because they moved to C whilst the Mother was ill and carried out that task more than satisfactorily. However, there must be some doubt about their ability to do it long term, or even until both children have started school. They have other children and grandchildren in the S area that no doubt they will desire to visit. The grandfather’s health may deteriorate and prevent them assisting.
The Mother proposes to care for the children full-time. She may seek some part-time work. She gave evidence of the availability of housing in the W area, as did her Mother. She has thought and planned for her epileptic fits. While her health is a factor, as I have already discussed, it does not prevent her from looking after the children.
While the Father has flexible working arrangements, which I have already discussed, it is the fact that he is employed full-time. At times he must work weekends, that being the nature of a G’s job. He, as I have said, will require the assistance of his parents and there are the doubts I have expressed about whether that can continue long term.
The attitude to the child and responsibilities of parenthood demonstrated by each of the child's parents
Relevant to this is the finding in relation to violence that I have made. The children have been exposed to that violence. The Father denies it. It is axiomatic that a responsible parent should not expose children to violence.
Family violence and Family Violence Orders
I have already discussed this. Subsequent to events on 8 April the police applied for a family violence order against the Father and an order was made.
Other matters
If the children were to reside with the Father, a substantial amount of their care would be carried out by his Mother. She, in her evidence, would not accept that the Father even hit the Mother. That is understandable, but in her evidence, and the manner in which she gave it, she showed some hostility towards the Mother. I consider that if she was responsible for a significant amount of the primary care, there is a risk that her attitude to the Mother might affect the relationship between the Mother and the children.
As I have already said, the Mother retains an affection for the Father. She acknowledges the importance of the children’s relationship with the Father. I consider that she will be careful to promote the relationship between the children and the Father.
Relocation
In conjunction with all these considerations I am required to consider the relocation issue.
The Mother desires to move to W not just because she has supportive family there. Ms Styles reports that the Mother was nervous about being on her own in C because she was afraid of the Father. Ms Styles said that the Mother pointed out she was becoming more confident and was coping much better since separation from Mr D. She was looking into doing some courses and seeking part-time employment when she was back in W.
The Mother's evidence is that she was intending to do confidence courses and to look for some training.
In circumstances where there has been domestic violence as described, the Mother's desire to move away is understandable. Her ability to cope and her own sense of wellbeing is important to the welfare of the children. She will be happier in W close to her Mother.
Taking into account all of the matters discussed, I find that it is in the best interests of the children that they do reside with the Mother. An element in that finding is that the sense of independence and wellbeing of the Mother will be enhanced by moving to W and that serves the best interests of the children.
Freedom of movement is a relevant factor in relocation cases. In this case, freedom of movement is guaranteed by section 69 of the Australian Capital Territory Self Government Act which mirrors Section 92 of the Constitution. It provides that trade and commerce between the Territory and a State shall be absolutely free. The equivalent provision in the Northern Territory Self Government Act was discussed by the High Court in AIF v AMF 199 CLR 160 (1999) FLC 92-852. Freedom of movement may be restricted if the restrictions are in the nature of a non discriminatory and incidental burden imposed in the course of regulating a subject matter other than State/Territory movement. Here the subject matter is the interests of the children.
Since my finding is that the best interests of the children will be served by residing with the Mother in W, the question of freedom of movement is not an issue.
In making this finding I am mindful of the objects of the Act set out in section 60B(2) and in particular that children are entitled to contact. The contact with the Father will be reduced, but overall, my finding is that the children's best interests are served by residing with their Mother in Wand having fortnightly contact with the Father.
I propose making contact orders largely in terms of those proposed by the Mother, but will hear submissions in relation to them if necessary.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: Kwong S
Date: 28 October 2003
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