D and K

[2006] FMCAfam 309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & K [2006] FMCAfam 309

FAMILY LAW – Child – planned relocation of child aged 2 years and 9 months – parties separated when child aged 20 months – child has lived with mother since separation – mother wishes to relocate child’s place of residence from A S to C – father unable to leave A S – father seeks to restrain mother’s movement of child from A S – father seeks shared residence arrangement or in event mother leaves A S residency of the child – high level of conflict – allegations of family violence – assessment of parties’ competing proposals – assessment of adequacy of mother’s proposals for contact given child’s tender years – whether moratorium should be imposed on relocation to allow consolidation of relationship between father and child.

Family Law Act 1975 – ss.19, 60, 65, 68
Evidence Act 1995 – s.140

U & U [2002] FLC 93-112
Marriage of JG & BG (1994) 18 Fam LR 255
Briginshaw v Briginshaw (1938) 60 CLR 336
Dearman v Dearman (1908)7CLR 549
C v J (1996) FLC 92-697
JG & BG 18 Fam LR 255
Centacare Central Queensland v GK (1998) FLC 92-821
B and B: Family Law Reform Act (1997) FLC 92-755
T & N [2001] FMCAfam 222
Bartholomew & Kelly Appeal number NA25 of 2000 delivered 14 August 2001
AMS v AIF; AIF v AMS (1999) FLC 92-852
A v A: Relocation Approach (2000) FLC 93-035
Bolitho & Cohen (2005) FLC 92-224
D and S V (2003) FLC 93-137
Craven v Craven (1976) FLC 90-049
Fragomeli & Fragomeli (1993) FLC 92-393

Applicant: D D

Respondent: K E K

File number: DNM3040 of 2005

Judgment of: Brown FM

Hearing dates: 30, 31 May and 1, 19 and 22 June 2006

Delivered at: Adelaide

Delivered on: 30 June 2006

REPRESENTATION

Counsel for the Applicant: Mr R

Solicitors for the Applicant: P S

Counsel for the Respondent: Ms D

Solicitors for the Respondent: C & D

ORDERS

1. That the father and the mother be jointly responsible for the long term care, welfare and development of the child of the relationship A Y K born 3 September 2003 (hereinafter referred to as “the child”).

2. That each parent be responsible for making decisions concerning the child’s day to day care, welfare and development when the child is in his or her care respectively.

3. That the said child live with the mother.

4. That the mother be permitted to live with the child in C in the State of V from after the child’s fifth birthday provided she and the child move to C prior to the end of December 2008 and the mother advises the father in writing of the date of her departure from A S 28 days prior to it occurring.

5. That until the child attains the age of five years the mother is restrained and an injunction issue restraining her from moving the place of residence of the child from an area within the municipal boundaries of the Town of A S without the written consent of the father. 

6. That prior to the mother’s departure from A S, as envisaged by Order (4) hereof, the father have contact to the child as follows:

   (a)During the remainder of 2006 as follows:

   Between the hours of 10.00am and 4.00pm on each of the following dates:

   (i)1 July; 3 July; 12 July; 14 July; 16 July; 26 July; 28 July; and 30 July;

   (ii)10 August; 12 August; 14 August; 24 August; 26 August; and 28 August;

   (iii)7 September; 9 September; 11 September; 21 September; 23 September; and 25 September;

   (iv)5 October; 7 October; 9 October; 14 October; 16 October; 18 October; 20 October; 22 October; 27 October; 29 October;

   (v)1 November; 3 November; 5 November; 15 November; 17 November; 19 November; 29 November and 30 November;

   (vi)2 December; 4 December; 13 December; 15 December; 17 December; 27 December; 29 December and 31 December;

   and on any other days between the hours of 10.00am and 4.00pm when the father is in A S as agreed between the parties in consultation with the supervisor appointed pursuant to Order 10 hereof.

   (b)Between 1 January 2007 and 30 June 2007 as follows:

   (i)From 10.00am until 4.00pm on each Tuesday and Thursday in each alternate week;

   (ii)From 10.00am until 4.00pm on each Saturday and Sunday in the other week of each fortnight;

   (iii)At any other times as may be agreed between the parties.

   (c)Between 1 July 2007 and 31 December 2007 as follows:

   (i)From 3.00pm Friday until 5.00pm Saturday in each alternate week;

   (ii)From 3.00pm Tuesday until 3.00pm Wednesday in the other week of each fortnight;

   (iii)At any other times as may be agreed between the parties.

   (d)Between 1 January 2008 and the mother’s permanent departure from A S with the child:

   (i)From 3.00pm Friday until 6.00pm Sunday in each alternate weekend;

   (ii)From 3.00pm Tuesday until 3.00pm the following Wednesday in the other week of each fortnight.

   (iii)At any other times as may be agreed between the parties.

7. That the mother be at liberty to travel interstate with the child for periods up to 21 days each year and during such period the contact provided in Order 6 hereof be suspended provided that the mother provides to the father 28 days notice of her intention to travel pursuant to this order and provides him with the dates and times of her departure and return to A S.

8. That upon the child’s relocation to C the father have contact to the child as follows:

   (a)For the whole of end of first term V school holiday in 2009 and each odd ending year thereafter;

   (b)For the whole of the mid year V school holiday in 2009 and each year thereafter;

   (c)For the whole of the end of third term V school holiday in 2010 and each even ending year thereafter;

   (d)For half of each end of year V school holiday (the Christmas holiday) in each year being the first half of the holiday in 2009/2010 and each alternate year thereafter and the second half in 2010/2011 and each alternate year thereafter;

   (e)In the event the mother relocates the child to C prior to 24 December 2008 the father will be entitled to a period of 14 days contact in the Christmas school holiday period of 2008/2009 at times to be agreed between the parties and failing agreement to be between 26 December 2008 and 9 January 2009.

9. That in the event that the father lives within 50 kilometres of the child’s home upon her relocation to C the father have contact to the child in addition to the contact specified in Order 8 hereof as follows:

   (a)On alternate weekends from after school on Friday until the commencement of school the following Monday;

   (b)At any other times as may be agreed between the parties.

10. That pursuant to section 65L of the Family Law Act 1975 that until the mother and child relocate to V the parenting orders made herein be supervised by a family and child counsellor or welfare officer to be nominated by the Director of Court Mediation at D.

11. That pursuant to section 65LA of the Family Law Act 1975 the parties are directed to attend a course of mediation or a post-separation parenting program or other process of mediation or counselling as nominated by the Director of Court Mediation at D.

12. That the reasons for judgment herein be provided to the Director of Court Mediation at D.

13. That unless otherwise agreed between the parties in writing the child be exchanged at the beginning and end of each contact period specified by Order 6 at the A S Contact Centre.

14. That in the event the parties are in the same location on the child’s birthday (3 September); Christmas Day; the father’s birthday and Father’s Day and the child would not otherwise be with the father pursuant to these orders the father shall have contact to the child on those occasions for a period of at least 6 hours at times to be agreed between the parties and failing agreement to be between 1.00pm and 7.00pm.

15. That in the event the parties are in the same location on the child’s birthday (3 September); Christmas Day; the mother’s birthday and Mother’s Day and the child is with the father pursuant to these orders the mother shall have contact to the child on those occasions for a period of at least 6 hours at times to be agreed between the parties and failing agreement to be between 1.00pm and 7.00pm

16. That upon the child’s relocation to C the father have contact to the child via telephone and any other electronic medium which may be available to the parties at times to be agreed between the parties and failing agreement to be at 6.00pm V time each Sunday and Thursday.

17. That the father and mother share the costs equally of the necessary air travel for the child to undertake the contact as set out in Order 8 hereof with the father to book and pay for each flight in advance and provide the mother with 28 days written notice of the costs of the travel involved together with the details of the flight number and times of departure and arrival with the mother to reimburse the father one half of the costs of such travel 7 days prior to the time the child is scheduled to return to the mother’s care.

18. That if the mother deems it necessary for the child to be accompanied for any period of contact as set out in Order 8 hereof she shall be responsible for paying all the necessary costs for the child to be so accompanied.

19. That the father endeavour to obtain the cheapest available economy airfares for the purpose of these orders.

20. That the mother authorise the principal of each school attended by the child from time to time to send to the father:

    (a)A photocopy of each school report concerning the child;

    (b)An order form for each school photograph of the child.

21. That the father be at liberty to attend and visit the school or schools attended by the child from time to time for events, activities or functions routinely attended by parents including parent/teacher interviews.

22. That the parties provide to the other at all times their respective residential and postal addresses and their electronic contact details including contact telephone number, both mobile, home landline and work landline and email addresses and inform the other of any changes of these details within 7 days of such change.

23. That if either party intends to travel away with the child for more than 48 hours from their usual residential address they advise the other party of their date of departure and return and the address and telephone number of the place where the child will be staying during that period.

24. That the father and mother each keep the other informed of any major illness or accident suffered by the child when in his or her care and advise the other as soon as is practicable of each treating doctor or like professional attended by the child.

25. That prior to the mother and child’s departure from A S pursuant to Order 4 hereof the parties exchange all information between them in writing regarding the child’s day to day needs by means of a communication book to be exchanged at the beginning and end of each contact period.

26. That the mother keep the father informed of the names and addresses of all medical practitioners and other health professionals attended by the child from time to time and provide the father with details of all treatment and therapies received by the child from such person or persons and the father be at liberty to attend upon all such medical practitioners and therapists to enquire as to details of the treatment received by the child and as to the child’s progress and prognosis.

27. That neither party denigrate the other or members of the other’s family in the presence or hearing of the child.

28. That the application and response herein be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
A S

DNM3040 of 2005

D D

Applicant

And

K E K

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a relocation case.  As such, it presents no ready or easy solution.  D D “the mother” and K E K “the father” are the parents of A Y K born 3 September 2003. 

2. The parties have lived in A S, in the N T, where A was born, since 2001.  They separated, in difficult circumstances, in April of 2005.  Since that time, A has lived predominantly with the mother and has had regular contact with the father, although not as much as he would have wished. 

3. The mother wishes to move to live with A in C in V.  The father is opposed to this move.  He has work and personal commitments in A S, which he cannot easily leave.  He wishes to be involved as fully as possible in caring for A, particularly while she is young.  Ideally, he would like to share the parenting of A with Ms D, in a situation where A spends roughly equal periods of time with both her parents. 

4. The mother asserts that she has no option other than to leave A S with A.  She categorises the father as a “domineering and controlling” person, who has been consistently emotionally and verbally abusive of her, both before and after the parties separated. 

5. It is the mother’s position that A’ most significant relationship is with her.  As such, if she and A remain living in A S, the father’s abusive and threatening behaviour is likely to continue to undermine her own emotional wellbeing and will inevitably have seriously adverse consequences for A.  Essentially, the mother asserts that she has no alternative other than to flee an abusive relationship with Mr K, which has left her exhausted and which threatens A’ wellbeing. 

6. The father denies that he is the abusive person the mother describes.  It is his position that he is a loving parent, who only wishes to be closely involved in the care of his child.  He is fearful that, if A moves far away from him, she will be deprived of the opportunity to form a close and loving paternal relationship with him and other members of his family.

7. It is Mr K’s position that A’ entitlement to have a close and fulfilling paternal relationship with him will be seriously compromised, if A goes to live in C at such an early stage in the process of her emotional and cognitive maturation and this, in turn, is likely to have long term ramifications for A’ sense of identity and psychological wellbeing, when she is an adult.

8. In addition, he mistrusts the bona fides of Ms D’s wish to relocate.  In such circumstances, he has concerns that she will be either unwilling or incapable of providing the necessary encouragement and emotional support, which A will need in order to maintain some sense of connection with him, in the difficult circumstances of parent and child living far apart from one another.  In essence, he believes that the mother will not keep his paternal presence alive in A’ home environment, if she moves to C and he remains living in A S.

9. The determination of this matter takes place at a time of changing views about gender roles and family responsibilities.  It is also a time when relationship breakdown is prevalent and, as a result, many children now experience parental separation.  Australia also is becoming a more mobile society and it is now common for individuals to move to pursue economic and personal opportunities. 

10. Increasingly, fathers wish to play a more active role in the “nuts and bolts” of parenting.  At the same time, more and more mothers are becoming involved in the paid workforce.  It is a trite observation but the nature of the family is changing.  These are some of the factors, which underpin the concept of shared parenting, after relationship breakdown.

11. Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose.  At the same time, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term.  In a case such as this one, these principles are not easy to reconcile. 

12. Accordingly, the tension in this case is readily apparent.  It is a tension which is exacerbated by A’ infancy and her verbal and developmental immaturity.  At the heart of the case is the issue of the nature of the relationship between the parties.  Is it an abusive and corrosive relationship, as the mother asserts, or one which, though far from perfect, is likely to resolve in future, as the father asserts?  Accordingly, should the court regard the emotional wellbeing of the mother as being pivotal to the service of A’ best interest or rather consider the consequence of the severing of her actual and potential relationship with her father as being more central to her wellbeing? 

13. Bearing in mind Ms D’s entitlement to freedom of movement, Mr K concedes that a court, such as this one, may not indefinitely restrain her from changing A’ place of residence.  Although he does not believe that the proposed move is ever likely to be in A’ best interests, as a compromise between the competing claims of the mother’s and A’ rights, he proposes that A remain living in A S, until she is about 5 years of age, in September of 2008. 

14. This will be an age when A’ verbal and cognitive skills will be more developed and so her relationship with her father will be more resilient.  In addition, at this time, Mr K himself may be able to move to live in V, although he does not currently have a concluded view in this regard.  Over the period of the next two or so years, Mr K would wish to progressively increase the time he spends with A and play a larger role in providing for her day to day needs.  He hopes, perhaps optimistically, that the parties will be able to resolve some of their differences.

15. Because the primary emphasis in children’s cases is on the best interests of the child concerned, it is usual for an independent expert’s report to be commissioned by the court to investigate how the best outcome for the child may be achieved.  Such a report was compiled in this case.  The report was compiled by S O, a psychologist.  In her report dated 7 April 2006, Ms O wrote as follows:

    “…it appears that Mr K is, at present, unable to understand his contribution towards the demise of their [the parties] relationship, to reports of domestic violence or to the fact that he frequently misses contact with his daughter.  Whilst this situation stays static it would seem unlikely that the relationship between the parents will improve.  Further more, given the mother’s feelings about remaining in A S, without a close support network, it is my opinion that there is potential for greater deterioration in the relationship of the parents in this dispute if Ms D is forced by the decision of the court to remain in A S.  It is likely that the ongoing conflict within the parent’s relationship would become entrenched.  In this case, this dynamic would also have a damaging effect on the child’s psychosocial development.”[1]

    [1] See family report at paragraph 31

16. Ms O concedes the extreme difficulties presented in this case, particularly that, because of her age, if A does move to V, the current level of her relationship with her father can not be maintained and it is likely that he will become a “stranger” to her.  Nonetheless, in spite of these difficulties, Ms O recommended as follows:

    “In consideration of the numerous variables affecting this case, it is my recommendation that specific orders are made for the mother to relocate to V and that contact between father and daughter occur at least three times per year in V until A is school age.  Once at school, it is recommended that contact occur in Mr K’s place of residence, and that these block contacts occur at least 50% of school holiday times.”[2]

    [2] See family report at paragraph 34

17. Mr K does not accept this recommendation and the basis on which it was reached.  In particular, he believes that Ms O was malignly influenced by false allegations that he has been guilty of perpetrating domestic violence on the mother.  In addition, he does not accept that the mother is bereft of social and other support mechanisms in A S, a town in which she has lived since 2001 and where she has made friends.

18. Since Ms O completed the interviews for the family report, both parties have described A as exhibiting alarming behaviour.  She has apparently become increasingly withdrawn and has not been talking freely to her parents.  This behaviour has gravely concerned both Ms D and Mr K and they have made arrangements for A to take part in what is called “play therapy” with a child therapist, Ms K. 

1. As a result of this fresh evidence, Ms O was asked by the court, with the support of the parties, at short notice, to prepare an addendum to her report.  Ms O also turned her mind more fully to the issue of Ms D being restrained, for a definite period of time, from changing A’ place of residence from A S to C.  The addendum was produced on 15 June 2006. 

2. After having re-visited the parties and observed each of them with A again and after having spoken with Ms K, Ms O considered the behaviour A was exhibiting was as a result of complex and overlapping factors but her view was that “the high level of conflict between [the parties] has had a significant effect on the child’s emotional state and possibly on her psycho-social development over the past twelve months.”[3]  Essentially, Ms O described a child who had been emotionally traumatised by a “high level of inter-parental conflict both pre and post separation.”[4]

   [3] See family report addendum at paragraph 20

   [4] See family report addendum at paragraph 22

3. In Ms O’ view, the chief benefit of an immediate relocation would be that A herself would no longer be “caught in the middle of her parents’ conflicts” and would cease to experience vicariously “her mother’s trauma as her own”.  Ms O believed that the mother’s parenting capacity had the potential to be further compromised by depression and anxiety, if she continued to remain in A S. 

4. On the other hand, the benefit of a moratorium on relocation was that it would provide time for A to recover from her distress and continue her therapy with Ms K.  At the same time, her attachment to her father could be extended and developed.  For obvious reasons, Mr K favours this outcome.  After reviewing the fresh material and revisiting the family, it is also Ms O’ recommendation.

5. These proceedings are directed to resolving the complex dispute between the parties.  When parents who no longer live together ask the court to determine where their children should live, it is the best interests of the children concerned which are paramount.  The court must decide which of the parties’ competing proposals is more likely to advance the best interests of the children concerned.  It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves.  However, at the same time, the court cannot overlook the legitimate expectations of a parent as to where he or she wishes to live in future.

6. There is no satisfactory outcome in this case.  The various options available cannot be manipulated like the surface of a rubik’s cube to reach a perfect result.  The aspirations of the parties are in conflict.  Mr K wishes to play as large a role as possible in A’ life, as she grows to maturity.  At the same time, Ms D wishes to live in C, where she has friends and where she believes she will feel safe and secure.  She believes that her personal happiness will be best served in C, as opposed to A S, where she feels unhappy and trapped.  If Mr K moves to C at some stage in the future, she foreshadows that she would want to move again, to be away from him.

7. If I make the orders the father wishes, A will continue to see him regularly, but Ms D will be unhappy and frustrated at this outcome.  Undoubtedly she will feel bitterly disposed towards Mr K.  As Ms O fears, the conflict between the parties may become entrenched and this will have significant implications for both her and A’ psychological health and her capacity to parent A to the full extent of her potential.

8. If I make the orders the mother wishes, A will lose the potential to have regular interaction with her father, because he will be living far away from her; and the father will be sad and upset at the separation.  In addition, inevitably contact arrangements will be limited and difficult.  A is likely to feel that her father is not an integral part of her life and, as a result, the paternal relationship between A and her father may not be as warm and spontaneous as it might otherwise have been, regardless of what occurs when she is older.  If the worst happens, the current level of relationship between A and her father may totally “dissipate”.

9. Regardless of the outcome in this case, one or other of the parties will feel hard done by.  In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will almost certainly feel harshly treated.  I say this at the outset because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome.  I hope that the parents will each cope with the situation as well as possible, so that the difficulties for A will be minimised and her relationships with each of her parents maintained as well as the circumstances permit. 

10. Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right.  These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future.  On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned.  On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.

11. I am also well aware that there are other people, who are vitally interested in the outcome of this case.  A has grandparents and other relatives on both the paternal and maternal aspects of her family.  Sadly these persons have aligned themselves with their blood relatives in the case and currently A’ family is fractured.  However, all these persons devoutly wish to have a close and loving relationship with A as she grows up and, as a consequence, have an interest in the case.

12. In  U & U[5] Hayne J said:

    “What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”

    [5] U & U [2002] FLC 93-112 at 89,102

The material relied upon

1. The mother is the applicant in these proceedings, which she commenced on 22 July 2005.  She relies on the following documents:

   ·Her affidavit filed 2 May 2006;

   ·An affidavit of P G filed 2 May 2006;

   ·An affidavit of A B filed 2 May 2006;

   ·An affidavit of M J J filed 2 May 2006;

   ·An affidavit of N L C filed 2 May 2006.

   The mother also relied on evidence given by her mother, B S.  Ms S did not provide an affidavit in the proceedings but was called to rebut some evidence led by the father. 

2. The father is the respondent in the proceedings.  He relies on the following affidavits:

   ·His affidavit filed 8 May 2006;

   ·An affidavit of his mother, G K K filed 3 May 2006;

   ·An affidavit of M E filed 2 May 2006;

   ·An affidavit of his partner, N M S filed 27 April 2006;

   ·An affidavit of G M filed 3 May 2006;

   ·An affidavit of S M H filed 2 May 2006.

3. Each party was represented by skilled and well prepared counsel.  In the mother’s case by Mr R.  In the father’s case by Ms D.  As a result, both parties were extensively cross-examined and I was provided with ample opportunity to observe each of them and make some appraisal of their respective temperaments and credibility, particularly when placed under some pressure. 

4. Due to the contentiousness of many of the issues before the court, the adversarial nature of the proceedings was heightened.  In addition, the proceedings were punctuated by displays of extreme emotion, particularly from the father, who broke down on two occasions.  The proceedings were gruelling for all concerned, myself included. 

5. The affidavit material was copious rather than being compendiously presented.  Both parties’ trial affidavits contained many irrelevant matters, as well as opinions and comments that were neither helpful nor admissible.  In addition, both parties annexed lengthy documents to their affidavits, without apparently much thought or explanation.  Some of these documents related to the evidence of experts, who did not give evidence in the proceedings and so were not generally admissible.  There was however no doubt that the proceedings were hard fought and neither party wanted to give the other any quarter.

6. At times I was concerned that the focus of the proceedings turned away from A’ best interests and became a forum for the parties to criticise one another.  This was a tendency which Ms O observed.[6]  I emphasise that the complex task which I must perform is not one which I base on a preference for one party over another.  This is not a popularity contest in which the child is won or lost.  The focus must remain on A’ best interests, rather than rewarding or punishing one or other of the parents. 

   [6] See family report at paragraph 31

7. As I have already observed, one of the central issues in this case is the nature of the relationship between the parties, so far as it impacts upon the welfare of A.  Both direct and indirect violence, to which A has been exposed in the past and to which she may be exposed in future, are likely to be relevant to this issue.  In this context, it is hard to see the relevance of conduct of the parties, which occurred before A was born. 

8. For obvious reasons, the issue of family violence is likely to provoke strong feelings and reactions from the parties concerned and their respective families and supporters.  The father vigorously disputes what he believes are malicious slurs on his character.  In response, he has raised a number of issues, which he asserts relate to the mother’s troubled and difficult background. 

9. In cross-examination, he asserted that, with reluctance, he felt compelled to raise these matters to “defend himself”.  This was unfortunate, as in my view, many of the issues raised had no relevance to a consideration of A’ welfare, other than demonstrating that currently the father has an extremely jaundiced view of the mother and has little compunction in raising issues which he believes may wound her. 

10. In the Marriage of JG & BG[7] Chisholm J said as follows:

    “In the context of custody cases, the court has always been properly concerned to prevent parties from engaging in general attacks, or smear campaigns that are unrelated to the children’s welfare.  The court no doubt felt that it was important to emphasise this in the early years of the Act’s operation.  This is clearly correct: the principle that the children’s welfare is paramount has an exclusionary aspect, excluding material that has no relevance to the welfare of the children.  But it also has an inclusionary aspect, by which I mean that admissible evidence that is relevant to the children’s welfare should be taken into account.”

    [7] Marriage of JG & BG (1994) 18 Fam LR 255 at 259

11. Generally speaking, evidence of the nature of the parties’ relationship, so far as it relates to A and her welfare is relevant, but evidence relating to their conduct and behaviour before they met is not. 

The orders sought

1. The mother has not specifically delineated the orders she seeks in these proceedings, other than she has stated that she seeks the orders recommended by Ms O in the family report.[8]  In general terms, she seeks to be able to live immediately with A in C and that the father should have contact with A at least three times per year in V, until A is of school age.  Thereafter, she proposes Mr K should have contact for at least 50% of school holidays in his home location.  Ms O strongly recommends that the parties utilise a contact handover centre to exchange A between them.

   [8] See mother’s case outline document and paragraph 34 of the family report

2. The father has provided a specific minute of the orders he seeks in these proceedings.  It is annexed to these reasons for judgment at Schedule 1.  In general terms, he wishes the mother’s application to relocate A from A S to C to be dismissed and that, until A turns five years of age, she should live with him during alternate weeks from 5.00pm Wednesday until 8.30am the following Monday.  Once A is five years of age, he wishes her to live with both her mother and him on an alternating weekly basis, in a shared care arrangement.

3. Although it would not be his preference, Mr K has proposed as an alternative to the mother’s immediate relocation, that she be restrained from removing A from A S until she is approximately five years of age.  This would be in about two years time, towards the end of 2008.  At that point, Mr K believes that he might more easily be able to leave A S and disentangle himself from his business commitments in the town.  If such an injunction is made and, nonetheless the mother elects to live in C, Mr K seeks an order that A live with him.

4. Mr K has also set out his proposals for contact, in the event that A does immediately leave A S with the mother.  These are generally in line with Ms O’s recommendations, although he would also seek a specific order that his parents, who live in eastern suburban M, should also have an order in their favour for defined contact. 

Chronology

1. Before turning to the evidence in more detail, it is useful to set out a brief chronology of significant events, in to which findings about the evidence can be set.  Due to the somewhat diffuse mass of the evidence and some of the difficulties the parties have in recalling specific dates, I concede the chronology is not particularly accurate.

1 November 1967	Mother born
13 July 1975	Father born
Early 2001	Parties begin to live together in A S
January 2002	Mother purchases former family home at 11 R C, A S, in her own name.  Parties live in the property together, which they share with boarders, whose rent contributes to the mortgage.
August 2003	Mother ceases work and father becomes totally responsible for outgoings on R C property.
9 September 2003	A born
February 2004[9]	Incident in which the father allegedly pulls two kitchen cupboard doors off, whilst arguing with the mother and throws one of them at her.
October 2004	Parties establish C D T Pty Ltd and father begins to spend extended periods of time working “out bush”.
Easter 2005	Parties and various others visit P’s W for overnight camping trip.
22 April 2005	Parties separate but continue living in R C property.
1 May 2005	Mother enters A S W’s S overnight but returns to R C the next day.
18 May 2005	Mother vacates R C property and lives temporarily with Mr G and Ms C.  Father videos the mother leaving.
20 May 2005	Mother applies for Centrelink payments and child support.
20 May 2005 – 16 July 2005	Father has contact to A on 26 occasions for periods of time between 2 hours and overnight.
29 May 2005 – 30 May 2005	Mother admitted to A S H, due to staphylococcal infection.  A in care of the father.  Incident between parties at the hospital observed by Mr J and Ms B.
31 May 2005 – 3 June 2005	Mother re-admitted to hospital.  A again in care of the father.
16 June 2005	Parties attend mediation at Relationships Australia.
24 June 2005 – 26 June 2005	Mother withdraws $**,***.** from father’s account held with TIO.
27 June 2005	At father’s insistence, TIO reverse the transaction involved.
16 July 2005	Mother ceases contact between father and A.
22 July 2005	Mother commences proceedings in Federal Magistrates Court at A S proposing A live with her and have daytime contact with father on weekends and alternate Wednesdays, with handover to be at Centacare.
10 August 2005	Father responds to mother’s application proposing A live with him from 5.30pm Friday to 5.30pm Saturday in one week and from 9.00am Saturday to 5.30pm Sunday in the other week and from between 5.30pm Monday and 5.30pm Wednesday “when he is in A S”.
22 August 2005	Interim orders made providing for A to live with the father from 3.30pm each Wednesday until 9.00am the following Thursday and on alternate weekends from 9.00am on Saturday until 4.00pm the following Sunday and with the mother at all other times.  A to be exchanged between the parties at the premises of Centacare, A S.
August 2005	Mother begins to consult Ms R, counsellor at Centacare.
August 2005	Mother applies for Domestic Violence Order in Local Court at A S.[10]
14 October 2005	Mother is granted a domestic violence order in her favour against the father, without the father making any admission of liability and with his consent.
14 October 2005	The father begins to live with Ms S in the R C property.
31 October 2005	Mother files Amended Application seeking to relocate with A to V.
31 October 2005	The parties’ competing applications are fixed for hearing on 30 and 31 May 2006 and a family report is ordered.
12 January 2006 – 24 January 2006	Interviews with Ms O for preparation of family report occur.
January 2006	Mother first consults D K, child therapist
March 2006	A begins attending “play therapy”
30 May – 1 June 2006	Hearing commences in A S
15 June 2006	Ms O produces addendum to Family Report

[9] In her affidavit, Ms C attributes this date to March or April of 2003.  Ms B notes the doors were missing in August of 2003.  In her oral evidence, the mother attributes the date as February of 2004.  She does not allude to the incident specifically in her trial affidavit filed on 2 May 2006.  In her initial affidavit, the mother attributes the incident as having occurred in “the third month of her pregnancy”.  The event assumes importance because the mother relies upon it as evidence of the father’s abusive and violent behaviour, which is independently corroborated, regardless of the date on which it specifically occurred.

[10] The order provides the date of the application as being 2 September 2005.  This appears to be an error.  The order is said to expire on 13 September 2006.

The evidence

1. The difficulty in this case can be easily stated.  The parties have diametrically opposed view as to the nature of the relationship between them and so its implications for A and her future care.  The mother views the father as emotionally labile, in the sense that he is liable to subject others to outbursts of verbal and emotional abuse, when he is frustrated.  In short, she sees him as a bully, with whom she is incapable of dealing because of his unending hostility towards her, as it was she who brought the parties’ relationship to an end.

2. In addition, prior to the parties’ separation, the mother disputes that the father was extensively involved in caring for A.  She asserts that these duties fell predominantly to her.  It is her position that the father now wishes to exert interest in A as a pretext to continue to control her (the mother’s) life for his own emotional ends.  The mother deposes as follows in her affidavit material:

   “Since A’ birth and until the time of separation, the respondent was indifferent to his daughter and was hardly ever there for her.  He always went to the pub after work.  I would often get very sad and upset at his lack of interest in her and would always question him on his ability to take on more and more work that took him out of the home and away from her.  He seemed very financially and career driven and A was definitely not one of his top priorities.  This coupled with the respondent’s abuse was a major factor in my decision to leave the relationship.

   Once we separated the respondent’s violent behaviour towards me and in front of our child escalated.”[11]

   [11] See mother’s affidavit of evidence at paragraphs 37-38

1. The father concedes that his behaviour has not always been beyond reproach and he has done and said things to the mother that he has later regretted.  He also acknowledges that the level of his work “out bush”, after the business was established, was also a matter of contention between the parties.  However, he categorically denies that he has ever perpetrated violence on the mother in any concerted way.  His position is that he was emotionally devastated at the end of the parties’ relationship and, as a result of his reaction to the extreme emotion of the situation, at times behaved poorly. 

2. He asserts that he has now come to terms with his feelings and has no emotional need to control the mother in any way.  Accordingly, he denies that he poses any threat to the mother and certainly not to A, whom he dearly loves.  Because of his devotion to A, he wishes now to be as closely involved in her life as possible.

3. For the purposes of these proceedings, family violence is defined as follows:

   “Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well being or safety;”[12]

   [12] See Family Law Act 1975 at section 60D

4. Given the nature of domestic relationships, violence as defined by section 60D often occurs in private behind the closed doors of the family home. Accordingly it is frequently the case that there are no witnesses to it, apart from the parties themselves and, on some occasions, their children. In addition, verbal threats and emotional abuse of the kind complained of by the mother leave no physical traces. As a result, claims of such abuse may not be capable of independent corroboration. However, issues to do with violence may often be central to the welfare of the children concerned in proceedings brought before the court.

5. It is often said that such allegations are easy to make but difficult to refute.  These are not criminal proceedings.  The standard of proof to be applied is the civil standard of proof, which is proof on the balance of probabilities.[13]  Although I am bound by the civil standard of proof, I must also have regard to the factors mentioned in Briginshaw v Briginshaw[14]where Dixon J said as follows:

   “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”[15]

   [13] See Evidence Act 1995 (Commonwealth) section 140(1)

   [14] Briginshaw v Briginshaw (1938) 60 CLR 336 at 362

   [15] See also Evidence Act 1995 (Commonwealth) section 140(2)

6. There is some evidence, which is capable of independently corroborating some of the assertions made by the mother about the father’s conduct but much of the behaviour of which she complains occurred in private.  Accordingly, in making findings of fact about these issues, the court must make some assessment of the credibility of each of the parties from their respective demeanours in the witness box and how they answered particular questions. 

7. In the now somewhat dated decision of Dearman[16] Isaac J said:

   “A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence will often lead a judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type.”

   [16] Dearman v Dearman (1908)7CLR 549 at 561

8. In more recent cases, the Full Court has stressed the caution which needs to be applied by judges in assessing “the character and veracity of a person whom he or she had not previously seen and whom he or she only sees in the somewhat artificial circumstances of the witness box…”[17]

   [17] See C v J (1996) FLC 92-697 at 83,338

9. In addition, as Chisholm J pointed out in JG & BG[18], family violence is not a homogeneous concept.  Violence can take many forms – it may be impulsive and out of character, occurring in response to a stressful situation or, at the other end of the scale, it may represent a systematic and deliberate course of conduct, designed to intimidate and humiliate another family member.  In that case Chisholm J said as follows:

   “Violence associated with a pattern of dominance, for example, may be particularly serious.  For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period.  It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence.  It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child’s welfare requires, and it will be more important in some cases than in others.”

   [18] JG & BG 18 Fam LR 255 at 261

10. Undoubtedly it is the mother’s position that the father’s behaviour, of which she complains, falls into the first category of dominating behaviour described by Chisholm J.  Whereas it is the father’s position that, if he has been guilty of any misbehaviour in the past, it was spontaneous and in response to the extreme emotion of his circumstances and, as such, unlikely to be repeated. 

11. The mother gave her evidence in a flat and placid manner.  She answered the questions put to her simply and without emotion, except, on occasion, when she was questioned about incidents to do with her past, which has not been without its difficulties.  From her demeanour, I had no reason to doubt her veracity.  She did not however strike me as a particularly assertive person or one who was emotionally resilient. 

12. The father seemed to me to have a more assertive personality.  He was not inclined to answer questions put to him in a straight forward way but was more inclined to debate issues with his questioner – anticipating the thrust of a question and wanting to put his own “spin” on the statement he put in answer, to use the modern jargon. 

13. In my experience, this is not an uncommon phenomenon in proceedings of this kind, which deal with such personal familial issues.  However, it confirmed my impression that the father has a somewhat determined and querulous aspect to his personality, particularly when he feels he has been unjustly wronged.  As such, I consider it likely that he would be somewhat aggressive or at the very least insistent in attempts to get what he thought were his entitlements. 

14. Two incidents will serve as examples of what I consider to be the father’s aggressive or insistent behaviour, when he feels wronged.  Firstly, his raising of issues to do with alleged moral failings of the mother from her past.  Secondly, his formal complaint to the management of Centacare about Ms R’s professional conduct.  Ms R is the counsellor, whom the mother has been consulting about issues she believes relate to the abusive relationship between her and the father.  In my assessment, Ms R’s professional conduct is no affair of the father’s and his complaint about her may be construed as an attempt at intimidation.  I believe the father may not always be aware that his behaviour is intimidating to others.

15. In addition, the father has an emotional and excitable personality, in the sense that he is not a person who seems to have any great facility to hide how he is feeling.  I am not critical of him in this regard.  On at least two occasions, during the proceedings before me, he broke down and wept to such an extent that the proceedings had to be adjourned so that he could regain his composure.  The emotional reactions arose in response to issues raised about A.  Mr K seemed to me to be a passionate person.

16. Accordingly, although I concede it is a gross generalisation, the father seemed to me to have a more active personality and the mother a more passive one.  I found this analysis to be helpful in considering the evidence of them both in respect of what happened during their relationship and after they separated. 

17. It is also the position that, currently, the parties have no facility to empathise with the position or perspective of the other in these proceedings.  The proceedings have come on comparatively quickly.  Both parties continue to struggle to come to terms with the emotional sequelae of their separation.  These emotions are not conducive to objective reflection.  It is also a common phenomenon for the parties to proceedings such as these to emphasise their own domestic and parental activities and downplay the role performed by the other party.  The extreme level of conflict between the parties causes them each now to view the other through a distorting prism of hostility. 

18. Necessarily these factors have some consequences for the objectivity of the evidence of both of them.  In addition, the adversarial nature of the proceedings has encouraged each of the parties to put their own degree of “spin” on to past events and to exaggerate the failings of the other and diminish the consequences of his or her own.  Both parties struck me as steadfast in their determination to achieve their own personal ends.  Sadly these are factors which encourage the throwing of mud.

19. I did not find the father to be an inherently untruthful or unreliable witness.  I do not believe that he ever set out consciously to deceive the court.  He frequently made concessions about what he acknowledged had been his past poor behaviour.  However, I considered he lacks a significant degree of insight into how his behaviour is perceived by others, particularly the mother and what its effects have been on those around him.

20. The mother has kept a diary of her impressions of her interactions with the father after separation.  Necessarily, it is a somewhat self-serving document but I did not consider it to be an artificial reconstruction of past events.  Certainly, I did not find the mother to be the manipulative and mendacious person, whom the father described.  In my assessment, the mother gave a truthful account of how she perceived her relationship with the father to be, both before and after the parties separated.  Necessarily it is a subjective account but I do not think it was a confabulation. 

21. Certainly, I do not believe that the mother’s case was a “character assassination” as the father would have it.  Although, for obvious reasons, neither party can be regarded as a completely objective or dispassionate witness, I consider the mother is likely to have a more reliable recall of what has occurred in the past. 

22. With these general observations in mind, I now turn to consider the evidence with more particularity. 

a)     Care of A prior to separation and the relationship of the parties

1. The parties’ relationship was not without its stressors, particularly financial ones.  The mother purchased the R C property, by means of a low income earners’ loan.  I accept she regarded the purchase of the house as a two year “project”.  The father was not particularly interested in owning real property.  The parties took in boarders so the mortgage could be paid.  Shortly prior to A’ birth, the mother had to leave the paid workforce and the father had to assume sole responsibility for paying the mortgage and other outgoings on the property.  It was no longer practicable for the parties to share the property with others to save expenses. 

2. In those circumstances, during A’ first year, the father was employed at the I for A D, on a fulltime basis.  He was the family’s primary breadwinner.  A was breastfed.  In these circumstances, it seems to me more likely that the mother was more closely involved in A’ care than the father was.  It also seems likely that she assumed more responsibility for household duties.  That is not to say I consider that the father totally abrogated his responsibilities in this regard or was disinterested in A’ welfare.  He did attend antenatal classes with the mother and did assist her from time to time.  However, I am satisfied that the bulk of these responsibilities fell on to the mother.

3. The father left the I for A D in October of 2004.  In consultation with the mother, he decided to set up his own business, providing on-site training to I people, who wished to obtain employment in the mining industry.  As a result, it was necessary for him to travel to the G M in the T D, N W of A S. 

4. At times the father was away for extended periods and obviously, at these times, the mother was solely responsible for providing for A’ care.  I accept that increasingly the mother felt isolated and burdened with her responsibilities to care for A.  To his credit, the father acknowledges that his frequent trips away were a source of stress in the parties’ relationship.  It seems to me that the father worked very hard in the business and was determined to make a success of it.

5. At this point, the parties have very different views as to what the father’s involvement was with the care of A when he was home and what contributions he made towards the performance of household tasks.  The father asserts he was an active and attentive father, who was fastidious about cleaning and other household tasks.  The mother asserts that when he was home, the father played computer games or engaged in other leisure activities, leaving all the necessary work to her.  When she remonstrated with the father about this, he would abuse her. 

6. In support of her position, the mother relies on the evidence of Mr J, Ms B, Ms C and Mr G, who were frequent visitors to the parties’ home in the period.  Each of these witnesses are now strongly aligned with Ms D and each now has a fairly jaundiced view of Mr K.  In support of his position, the father relies on the evidence of his mother and Ms M.

7. Ms M’s evidence was not helpful.  Mrs K deposed as to observing A being in a shared care arrangement, during the time she and her husband visited A S, which was about one month each year.  She also deposed as to the father doing “much of the housework”.  She makes the important concession that the mother contributed more to A because the father was at work.  Mrs K has become enmeshed in the dispute between the parties.  I am concerned that she may not have a true appreciation of the emotional dynamics between the parties.

8. Mr J and Ms B are married.  Ms B has known Ms D since 1980.  Mr J met the parties first in 2002, through his wife.  In August of 2003, Mr J and Ms B moved to A S and stayed for a week in the parties’ home.  This was obviously prior to A’ birth.  During this time, they each note Ms D did all of the required household tasks.  I accept that both Mr J and Ms B are honest citizens.  Their evidence tends to support that of the mother.  However, in my view, it would be imprudent of me to extrapolate from their evidence that Mr K never did any household tasks.  I am sure he did some.

9. The mother does not assert that the father was ever actually physically violent towards her during this period.  Rather, in addition to feeling undermined and unsupported by the father, she alleges he was frequently verbally abusive towards her.  I accept that the mother was deeply unhappy in this period, particularly because she felt unsupported. 

10. It does not seem to me to be inherently unlikely that the father would respond to any complaints raised by the mother with some form of verbal remonstration.  The mother complains that at times the father referred to her as a “grumpy cow” to A.  For his part, the father complains that the mother referred to him as a “sack of potatoes”.  As abuse goes, this is on the mild side.  However, in her circumstances, the mother felt wounded by it, particularly as the father, in what appears to be mock jocularity, attempted to include A in his comments that “mummy was a cow”.  I also suspect that the father was oblivious as to how unhappy the mother was.

11. In all the circumstances, I accept that incidents such as these led to the father using more acrimonious abuse towards the mother such as “bitch”.  Again this is not abuse of the most extreme kind but in the mother’s perception what caused her to feel apprehensive was the fact that, during these incidents, the father would lose control of himself and would scream at her and slammed doors.  She describes this as the father flying “instantly into a rage”.  Essentially what the mother describes are tantrums.  As I have already said, I think it is unlikely the mother would fabricate these incidents.  It would seem likely to me, if she was intent on falsely blackening the father’s name, she would invent more extreme examples of actual physical violence inflicted upon her.  She has not done so.

12. I accept that these incidents of extreme loss of temper displayed by the father did occur as the mother described them.  I also accept that the mother found them frightening and out of proportion to what had precipitated the display of temper in the first place.  Although not as serious as protracted physical assault, the conduct complained of by the mother created apprehension in her and she regarded it as violent and unacceptable.  Certainly I accept that she felt disempowered by it.

13. The most serious example of actual violence, of which the mother complains, concerns an incident when the father pulled off two kitchen cupboard doors and threw one in the mother’s direction.  I am uncertain precisely when this incident occurred.  It did not result in any intervention by the police.  Mr K acknowledges the incident occurred, which he describes as the “slamming” off two cupboard doors, one of which ended up off its hinges and the other on the floor.  Mr K asserts that he was upset because he had been “put down” by the mother. 

14. For obvious reasons, the father understates the significance of this incident, which has assumed large significance in the mother’s mind.  From her point of view, it is emblematic of what she sees as the father’s explosive personality, which she finds threatening and bullying.  Certainly, the incident does the father no credit.  It demonstrates to me that the father is capable of violent outbursts, which the mother found highly alarming and which she could not just shrug off.

15. The impression I have of the parties’ relationship is that it was deeply unhappy and dysfunctional.  Over time, the mother became increasingly dissatisfied with it.  She confided her dissatisfaction in others, particularly her close friends and her mother.  I also consider that the father did not properly appreciate how much trouble the parties’ relationship was in.  When the mother announced she wished to separate from him, it came as a complete shock to Mr K. 

b)      The circumstances surrounding the parties’ separation

1. The parties agree that 22 April 2005 is the date on which they separated.  On this date, the mother informed the father that it was untenable for her to remain in the relationship.  However, at that stage, she had no obvious alternative accommodation to the R C property, which in any event was legally her property.  For obvious reasons, she was unwilling to leave.  I have little difficulty in reaching the conclusion that the mother believed that it was appropriate for Mr K to vacate the property and leave it to her and A. 

2. For his part, the father has deposed that he felt unable to leave the property because it provided the business premises for C D T Pty Ltd, which he believed could not be easily relocated at that time without severe financial disruption.  These factors, which when combined with the shock to Mr K of the parties’ separation and his emotional unpreparedness for it, go a long way to explain the difficulties which subsequently arose between the parties.  In addition, Mr K was anxious to remain a presence in A’ life, notwithstanding the parties’ separation.  This too proved to be a significant stressor in the parties’ relationship after separation. 

1. Ms D is critical of Mr K for not engaging with A more during the parties’ relationship.  As I have already indicated, I accept that she provided more of the direct care and emotional nurture, in this period, than the father.  That is not to say that I believe that Mr K was a disinterested father.  He clearly loves and loved A very much indeed.  However, due to his work commitments, which were onerous and because of the child’s maternal relationship, which was initially based on breastfeeding, it naturally evolved that Ms D would become A’ primary carer.  This is not an unusual situation, when young children are involved and it seems to me to be likely that Mr K was accepting of it, whilst the parties were living together.

2. However, on the parties’ separation, the father was anxious to redress what he perceived to be an inappropriate balance in A’ care arrangements.  In essence, he wished to make up for lost time in parenting, as quickly as possible.  I accept that the parties’ separation provided the jolt for him to become significantly more involved in parenting A.  He also wished to explore the possibility of some reconciliation with Ms D.

3. My impression of Mr K is that he regards himself as a socially progressive person.  Undoubtedly gender roles have changed much in the last twenty years or so.  More and more fathers wish to be closely involved in all aspects of their children’s care, from the earliest stages.  The stereotype of the distant and uninvolved father is generally discredited and disproved.  Whether these aspirations of paternal involvement have been widely reached is a contentious matter.  It is often said by women that the reality of parenting and housekeeping lags behind these aspirations.  In this case, I believe Mr K’s aspirations to become more closely involved in A’ care became markedly more pronounced, after the parties separated.  I can understand why this would be so, but it added another level of stress to the parties’ already difficult relationship.  

4. Mr K has a forceful personality.  On occasions, when subject to some emotional pressure, he has a propensity to lash out emotionally.  As I have already indicated, it is my view that Mr K has a potential to react in a volatile fashion, when he does not achieve his ends.  Ms D, although not without some level of determination to stand her ground, is less forceful and more likely to adopt a compliant stance, at least initially.  She feels disempowered by the father’s behaviour. 

5. At this point the parties each had very different emotional responses to the end of their relationship but each was significantly affected by it.  It was a difficult and unstable situation for all concerned.  It was also a situation which was liable to polarise the responses of the parties’ friends and supporters and render it difficult for them to act as honest brokers between the parties.

6. It also seems to me to be likely that the parties were jockeying to maintain control of as much as possible of their jointly acquired assets.  No doubt the mother felt that she had a superior claim on the R C property, which the father was not willing to relinquish.  At this point, the parties had little, if any, facility to compromise with one another.

7. It also seems to me to be likely that the mother felt vulnerable to pressure from the father and was also fearful of being exposed to some form of verbal outburst from him, something she had experienced in the past.  The father disputes that he ever subjected the mother to such verbal outbursts.  Given the findings I have already made, I disbelieve him in this regard.  It also seems to be the father’s position that he disputes that this kind of behaviour constitutes family violence in the accepted sense of the term. 

8. In raising these issues, the father points to the fact that it was not until the mother resumed her relationship with her mother, Ms S that the issue of such “violence” became of concern to the mother.  The implication being that the mother’s concerns are in some way a “put up” job. 

9. Ms S has spent much of her working life associated with the management of women’s refuges in two states and the management of a women’s health centre.  Most probably, she would accept that she is an advocate for women’s issues.  Undoubtedly, she is likely to be more sensitive to the nuances of all kinds of violence and abuse in inter-personal relationships than many others would be.  It may be the case that the mother did not consider the incidents, which upset her or frightened her to be “violent” in the ordinary sense of the word but Ms S took a different view.  But it is a long way from that to suggest that the mother’s concerns have been in some way fabricated after the event for some ulterior motive of her own.  I do not believe that this is the case.

10. The father was distraught at the end of the parties’ relationship.  Unfortunately, in all the circumstances of the case, he was not particularly sensitive to the mother’s emotional needs and had no ability to back away from her.  Undoubtedly these difficulties were compounded by the fact that neither party initially was willing to vacate the former family home.  In the power struggle to maintain control of the former family home, the father ultimately prevailed.  A matter which rankled with the mother.  In such circumstances, I think it highly likely that the father thought he could prevail over the mother in terms of arrangements for A.

11. The father makes much of the fact that, when the mother did leave the former family home on 1 May 2005 and spent an evening in the A S Women’s Shelter, she did not disclose to the intake worker involved, any concerns she had about violence in her relationship with the father.  This is so.  The father argues that this lack of disclosure serves to undercut the weight which can be given to the mother’s concerns and allegations in the period preceding.  I do not agree. 

12. The mother deposed that she was embarrassed to disclose the nature of her relationship with the father to the worker concerned.  She was also concerned that her privacy might be breached.  In this regard she pointed to the fact that she was acquainted with a number of people who were associated with the management of the shelter and that A S itself is a small town.  I accept the mother’s evidence in this regard.  I am not surprised that the mother provided as the reason for entering the shelter that she wanted “time out”.

13. In addition, I do not think it necessarily follows that, because the mother chose to return to the R C property after 1 May 2005, her concerns about the father were either unwarranted or were concocted later.  I accept that a more robust person than the mother is likely to be more resilient and less cowed by the father’s behaviour.  But the mother is not that person.  In assessing the nature of such “inter-personal violence” it is necessary to assess the dispositions and temperaments of the persons involved.  In this regard, the father is likely to be more the voluble of the two.  In any event, the mother did not have any ready accommodation options open to her.  I accept that in a financial sense, she was at a considerable disadvantage to the father.

14. On or about 19 May 2005, the mother decided finally to leave the former family home.  She took A with her.  This precipitated a deepening of the crisis between the parties.  I am satisfied that the father reacted extremely badly to this development.  He himself concedes that his behaviour was at times poor.  I consider it more likely than not that the mother would have been frightened and intimidated by the more extreme aspects of the father’s behaviour in this period.  In defence of the father, these were events that would have tested the composure of many people in similar circumstances.

15. The father concedes that he displayed anger towards the mother in the aftermath of this final separation.  He accepts that he accused the mother of “fucking up his life” and categorising Ms D to her face as a “nasty piece of work”.  He also acknowledges that he made some comment along the lines that “in some countries” the mother would be “liable to be stoned” for her behaviour.  Given these concessions and my assessment of the father’s temperament, particularly at the time, I have no doubt that the father was very angry indeed with the mother and made no attempt to disguise his anger.  This behaviour may be explicable but it is not excusable.  At least in part, I am satisfied that this behaviour was intended to coerce the mother.  The father was particularly aggrieved when the mother applied for child support from him.  In this regard, I accept the mother had no alternative, given the father declined to assist the mother in regards to accommodation.

16. In particular, the father appears to have been insensitive in respect of the mother’s emotional and physical needs, as A’ primary carer.  As has already been indicated, he was obstructive so far as her accommodation was concerned.  At best he was begrudging in the regards to the financial support to which Ms D was entitled.  His actions alienated Ms C and Mr G, who had provided support and shelter to the mother and who had at least initially been well disposed towards him.  Of most importance, the father badgered and hectored the mother in regards to him having contact with A, whilst at the same time subjecting the mother to abuse and belittlement.  The father deposed as to his view that it was A’ right to have contact with him, during this period.  However, at a deep visceral level, I consider that the father believed that it was his right to have contact with A, on the terms and conditions of his choosing. 

17. Ms C and Mr G gave evidence in regards to the father’s behaviour over this period.  Clearly, they are now closely aligned with the mother.  I accept their evidence that it was not always so and, at least initially, they were prepared to try and intercede, as honest brokers, between the parties, until what they perceived to be the father’s aggressive and somewhat irrational attitude towards the mother caused them to reconsider. 

18. The father acknowledges that he videotaped the mother and Ms C, at the latter’s home and concedes that this was ill-advised.  Although not overtly violent behaviour, I accept it was calculated to intimidate.  Similarly, the father did nothing to disguise his extremely negative view of the mother to Ms C and Mr G and indeed to the mother herself.  I accept that the father referred to the mother as a “bitch”, “slut” and “a nasty piece of work”.  I also accept that he was emotionally distraught at the time. 

19. Whilst the father was in this emotionally overwrought state, it was necessary for the parties to make some arrangements for the care of A, particularly when the father would see her.  Inevitably, this was fraught with all sorts of difficulties.  It seems likely that the father wished to see A whenever he could, whilst it was the mother’s preference for her to avoid being exposed to the more extreme aspects of the father’s behaviour.  Given the circumstances and A’ age, the mother was not in favour of overnight contact.  The fluid nature of the father’s work roster and his inability to change his type of work were added complicating factors.

20. On occasions A was exchanged between the parties at Mr G and Ms C’s home, where the mother was living.  Ms C deposes as to her impression of the debilitating emotional consequences for the mother of having to deal with the father at this stage.  I accept her evidence.  For his part, in his affidavit material, the father has launched an attack on Mr G and Ms C, claiming they lived in unsanitary circumstances and engaged in drug trafficking.  Apart from the father’s assertion of these matters, there is no evidence to support them.

21. The parties have very different views as to the circumstances surrounding the mother’s hospital admissions in the May/June period.  The mother’s version of events is supported by Ms B and Mr J, whom I found to be credible witnesses.  Like Ms C and Mr G, they have become strongly aligned with the mother.  In particular, it seems clear that they both thought that Mr K should to the “decent thing” and vacate the R C property. 

22. However, I do not think these matters effect the objectivity of their evidence.  Mr J, who is a s s t, gave evidence of the father’s display of extreme hostility towards the mother at the hospital, which occurred in A’ presence.  He deposed as to his view that the father “seemed to have totally lost any self control”[19].  Overall, from all the evidence in this case, it is my impression that this was not the first time that the father had so lost control.  It is a matter of some significance that Mr J, a person whom I regard to have some emotional fortitude and not to be easily upset, was shocked by the extreme nature of the father’s behaviour at the time.

    [19] See Mr J’s affidavit at paragraph 12

23. As I have already indicated, financial issues also exacerbated the tensions between the parties.  They only had access to one car, which the father retained.  There were disputes about items of property, which the mother had left behind at the R C property.  There were issues about how much income the business actually produced.  The mother was not without fault in some of her behaviour at the time. 

24. At best the mother was naïve and at worst disingenuous when she withdrew a considerable amount of money from the father’s bank account.  I accept that she believed that the monies were in a joint account and she was entitled to do what she did, particularly as she had no cash herself.  However, she removed all the money from the account, a sum of approximately $*****.**  Clearly this was beyond her immediate financial needs and I consider that she must have realised that her action could only escalate the father’s hostility towards her. 

25. The parties also attended some mediation around this time.  From the father’s perspective, some resolution of the contact arrangements was achieved.  From the mother’s perspective, she felt badgered into submission and later resiled from whatever purported agreement had been reached.  From the father’s perspective, this is evidence of the mother’s unreasonable and obstructive stance towards him. 

26. It is not the role of these proceedings to determine whether or not some agreement was reached between the parties in mediation and what was the nature of that agreement.[20]  Rather the issue is emblematic of the parties’ different reactions to the circumstances of their separation.  The father wanting to engage actively with the mother and pursue every opportunity for contact with A, regardless of the mother’s view. 

    [20] See Family Law Act (1975) at section 19N and Centacare Central Queensland v GK (1998) FLC 92-821 at 85,341

27. Whilst on the other hand, the mother feeling pressured and wanting to withdraw from what she perceived as the excessive demands of the father and his inability to focus on what she believed A’ best interests to be at the time.  Things came to a head when the mother withdrew A from contact in mid July and commenced these proceedings shortly afterwards.  It is important to note that the parties have not had any direct contact with one another in the period since. 

c)     The interim orders

1. From the father’s point of view, the mother’s decision to withdraw A from contact with him was a provocative and unnecessary act, particularly as his mother, Mrs G K, had come to A S at the time and for obvious reasons wanted to see A.  From the mother’s point of view, she felt increasingly unable to deal with the father and wished there to be concrete arrangements for A’ care, particularly as she was apprehensive that the father might attempt to remove A from her care.  As is often the case in such matters, there is validity to both parties’ view points.  Unfortunately by this stage the parties had lost all facility to communicate effectively with one another.

2. The mother’s position was that the father’s contact to A should be restricted to daytime contact only on alternate Saturdays, Sundays and Wednesdays.  She wished A to be exchanged between the parties at the premises of Centacare.  The father sought an arrangement whereby A should live with him on weekends and for about half of weekdays, provided he was in A S at the time. 

3. The issues in dispute between the parties, at the time of the interim hearing, were similar to the matters currently raised.  From the mother’s position, she argued that she was A’ primary carer and, given A’ age and the level of dispute between the parties, overnight contact was not appropriate at that stage.  The father pointed to the fact that he had enjoyed substantial contact, including overnight contact, to A, in the period since the parties separated.

4. The father represented himself at the interim proceedings.  The issue as to how often he would be required to work outside of A S was a contentious one and, at that stage, he was not able to provide a detailed roster in regards to it.  He could only provide details for the next few days.  I did not think it was tenable, given the obvious communication difficulties between the parties, for contact arrangements to be made dependent upon when the father would actually be in A S.  At that stage, I felt it was more appropriate to fix specific times for the father to have contact with A. 

5. For those reasons, on 22 August 2005, I made the following interim orders:

   “1.That the child of the relationship A Y K born 3 September 2003 live with each of her parents as follows:

   i)with the father from Wednesday 9.00am until 4.45pm on 24 August 2005;

   ii)from 9.00am until 4.45pm on Thursday 1 September 2005;

   iii)from 12 Noon on 3 September until 4.00pm on 4 September 2005;

   iv)thereafter on each alternate weekend commencing 17 September from 9.00am on Saturday until 4.00pm the following Sunday;

   v)overnight on each Wednesday from 3.30pm until 9.00am on the following Thursday;

   vi)with the mother at all other times.

   2.That the mother deliver the child to Centacare at the commencement of all contact periods and the father return the child to Centacare at the conclusion of all contact periods.

   3.That if the father is unable to take up any residence periods as specified in Order 1 i) to v) above he is to advise the mother’s solicitors in writing as soon as is practicable.”

6. Regrettably, these orders have not provided the consistent framework for parenting arrangements for A, which I had hoped.  From the father’s perspective the orders were inadequate and lacked a level of flexibility he required because of the changing patterns of his work.  The Wednesday overnight period has been a particular bone of contention between the parties because the father has not always been available to take it.

7. From the mother’s point of view, the father has failed to adhere to the arrangements and has attempted to dictate changes to her, with which she has not always been minded to agree.  She continues to be unhappy at the prospect of overnight contact.  The parties have exchanged letters between their solicitors and have utilised the co-ordinator of Centacare in an attempt to reach a compromise with one another.  However, my impression is that the advent of legal proceedings has deepened rather than lessened the degree of animosity between the parties. 

8. Matters were not assisted by the mother’s application for a domestic violence order against the father.  From the father’s point of view, there was no necessity for such an order, as he had not directly contacted the mother since early July and communications regarding A were taking place via third parties, particularly the co-ordinator at Centacare.  He clearly regards the domestic violence order as a strategic intervention on the mother’s part.  He views the Women’s Legal Service, which acted on the mother’s behalf in the application as being complicit in the mother’s designs. 

1. At present, there is no principle of law that former partners should be compelled to live in proximity to one another indefinitely so that an ideal level of parenting may be achieved.  Indeed, one of the purposes of the Family Law Act 1975 is to provide legal mechanisms to enable former partners to disengage from one another and lead independent lives thereafter.  However, by its nature, a moratorium would not be an indefinite restriction on Ms D’s freedom of movement.  Such a moratorium would not forever shackle Ms D to A S, a place which she currently finds unpalatable.

2. However, as the child’s best interests remain the paramount consideration, the application of the relevant legal principles may make a moratorium on relocation easier to achieve in cases involving very young children.  Their attachments are more vulnerable to the pressures of distance and separation.  The delay sought in relocation, thrown up by such a case, may not be directed at achieving some unrealistic or idealised parenting arrangement but rather ensuring there is some form of parental bond between the child who is moving and the parent who is remaining behind. 

3. Such cases may involve the balancing of short and long term considerations.  At this stage, should the court consider A’ interests will be best served if her mother is contented and secure or should the court consider the consequences of A losing both her actual and potential relationship with her father as being more important.  Considerations turning on the former matter are likely to be short term ones, particularly if A’ attachment to her mother may be resecured easily.  Considerations of the latter may possibly have implications, which will remain with A for the remainder of her lifetime. 

4. There is not perfect solution in this case and “no single factor is dispositive” of it.  Rather, I must attempt to balance the pros and cons of both the relocation and the moratorium from the point the view of A’ best interests.  In pursuing this exercise, I cannot ignore Ms D’s legitimate expectations that she is entitled to pursue the life of her choice, where she chooses. 

5. After 90 odd pages of consideration, the pros and cons of the relocation can be summarised, broad brush as follows:

Pros:

·Ms D will be happier.  There will be no infringement on her right of freedom of movement.

·A will be removed from the centre of the conflict between the parties and this is likely to ameliorate the emotional distress she has been displaying.

·Ms D will function better as a parent, if she is living the life of her own choosing.

·A will be able to resecure her attachment to the mother because her mother will be less anxious.

Cons:

·A’ relationship with her father will lose its potential to reach its maximum level of intimacy.  At worst she may not have a fully formed paternal relationship, which may have long term emotional and developmental consequences for A.

·At the age of three, given A’ likely level of linguistic and intellectual development, arrangements for contact via the telephone will be extremely problematic.

·Given the father cannot easily leave A S; the expense of travel between A S and C; and the high level of conflict between the parties; the father having contact to A in C will also be very problematic and will be limited to, at best, two or three periods a year.  At the age of three years, A will not be able to easily tolerate extended block periods of contact, without returning to the mother.  In these circumstances, the father having contact to A in C will also be very problematic.

·A is likely to forget her father between periods of block contact and this may make contact stressful for A herself and the others, who are likely to be involved in the process. 

1. At the heart of the difficulty of the relocation is that, at the age of not three years of age, A is not likely to be able to maintain her relationship with the father, through the telephone or block periods of contact.

2. The pros and cons of a moratorium can be broadly summarised as follows:

Pros:

·A will have a further period of time in which she will be able to extend her relationship with her father.

·If she is relocated at a more mature age, A will have extended linguistic and cognitive abilities, which will enable her to remember her father between longer periods of time and she will be more likely to be able to maintain her relationship through telephone and block periods of contact.  Accordingly she will not necessarily loose her relationship with her father when she moves with her mother.

·A and her parents will be able to continue with the therapy on which they have embarked with Ms K.  This may provide an opportunity for A to “settle” in her attachment to her mother, without losing her relationship with the father.

·The parties will be able to complete a process of mediation or counselling with one another and so more readily adjust to the emotional consequences of their separation.  This may assist them to parent A more co-operatively.

Cons:

·Although not absolute, such a moratorium would still be a significant infringement on the mother’s entitlement to freedom of movement.

·In spite of whatever provisos are placed on the father’s contact with A during the period of such a moratorium, it cannot be guaranteed that A’ distress will alleviate.  Her attachment to the mother may continue to be insecure. 

·The high level of conflict between the parties may continue unabated.  This will cause distress to the mother, upon which A will pick up and her attachment to the mother will continue to be insecure.  This may have long term implications for A’ emotional wellbeing.

·The mother may continue to be anxious and depressed, which will impinge on her capacity to properly parent A. 

·The situation is highly artificial and essentially the mother would be compelled to put her life “on hold”.

·Contact arrangements, due to the father’s work schedule, will be difficult to manage, leading to frustration for the father and distress to the mother and ultimately a situation where the moratorium is not used in constructive way for A, leading to her emotional discomfort remaining the same.

·If overnight contact is removed, as Ms O recommends, the father will be disappointed and this may increase the level of conflict between the parties.

1. Practical considerations loom large in this case.  I am concerned that the mother’s proposals for the father to have contact to A in C are unworkable to a significant degree, given A’ tender years, and so will not achieve the desired outcome that A maintains a strong relationship with her father.  In future, the block periods of contact, as recommended by Ms O, will be very difficult to manage and organise.

2. On the other hand, there are also considerable logistical problems involved in the moratorium.  Ideally, in the event of a moratorium, the father should have frequent periods of contact, not involving overnight periods, at consistent times.  I apprehend this will be difficult to achieve with Mr K’s work schedule.  He does not agree to such an outcome and I fear that he will be resistant to it.  Currently, he will not consider any changes to his work schedule.  This situation does not bode well for a reduction of conflict between the parties. 

3. In reaching her view in favour of the moratorium, Ms O was optimistic that the parties could utilise it productively.  She thought Ms D could cope with it and that Mr K was now genuine in his professed desire to mediate with the mother and was so presumably was more open to compromise.  I do not know if I am as sanguine as Ms O in this regard.  As has been noted, the view the father has presented of the mother in these proceedings is essentially negative.  He assumed a combatitive stance in the proceedings.  The potential for conflict between the parties still seems to me to loom unacceptably large.

4. The greatest appeal of a relocation is that it would remove A from the serious level of conflict, which has had such deleterious emotional conflict consequences for her up to this stage.  But the price of this is the high probability that she will lose the potential to have a close relationship with her father because the years when paternal bonds are best established will be lost to her and the father.

5. The great danger of the moratorium is that it represents something of an experiment, which may or may not be successful for A.  The stringent prerequisites suggested by Ms O may not have the desired effect of reducing A’ emotional distress and at the same time allowing her attachments to her parents to be consolidated.  Her attachment to her mother may remain insecure and her relationship with her father may not advance greatly.  The hostility between the parties may deepen with disastrous consequences for A. 

6. The factors which concerned Ms O in January of 2006 remain.  It seems likely that the father continues to lack insight into his level of responsibility for the parties’ disastrous parenting relationship and continues to hold the mother wholly responsible for it.  The mother continues to see relocation as her best option and to believe that she lacks an effective support network in A S.  I am gravely concerned at the possibility of the conflict between the parties becoming entrenched, with disastrous consequences for A’ “psychosocial development”.  These were the factors which led Ms O to recommend an immediate relocation, after her initial assessment. 

7. Essentially, at that stage, it seems Ms O believed that A’ interests would be best served if she lived in a “stress-free environment”, away from the conflict between her parents. 

8. Ms O has now changed her mind.  She now believes that, if stringent conditions are imposed, a moratorium will better serve A’ interests.  Her assessment is that the mother is now coping better with living in A S and the father is more insightful of his past behaviour.  If the contact is restructured and significant support is given to the parties, it seems apparent that Ms O believes a significant level of stress can be removed from A’ life and she can have a proper relationship with both her parents, albeit that her family remains fractured. 

9. From Ms O’ perspective, the benefits of such a moratorium would be that A would have “time to recover from her distress” and also be able to develop her attachment to her father.  In Ms O’ mind, the pendulum has swung more in favour of A maintaining her paternal attachment. 

10. Ms O concedes that the moratorium may not work.  The question is whether it is an experiment worth taking.  If successful, the benefit of the moratorium would be that A will have a relationship with both her mother and her father.  Certainly, it is more likely, if the moratorium occurs, that she will have such a sufficient level of relationship with her father that, in future, her relationship with him will be able to withstand the pressures of a relocation, when it occurs.  That is not the position now. 

11. Accordingly, such a moratorium would achieve one of the seminal principles of the Family Law Act 1975, namely that A would know both her parents.  This is likely to be highly significant for the remainder of A’ life.  A relocation under the age of three years may result in A not knowing her father in any meaningful and significant way.  At a basic level, her relationship with him may not achieve its maximum level of intimacy.  This would be a very significant detriment, so far as A is concerned.

12. Accordingly, I have come to the conclusion that, problematic as it is, the moratorium in relocation of approximately two years, is likely to be the best outcome for A.  As such, it justifies the restriction on Ms D’s entitlement to move freely, which is a necessary corollary of it.  It is however a temporary restriction.  I am not totally negating her right to freedom of movement.  Rather the fetter on Ms D’s entitlements is one calculated by reference to A’ best interests, which are paramount to Ms D’s wishes, no matter how legitimate.

13. I accept that, if Ms O’ recommendations are followed, a significant level of stress can be removed from A’ life.  It is I think important that A continues to undergo the course of therapy, involving both her parents, with Ms K.  This will assist her to resecure her attachment to her mother and extend her relationship with her father, in a manner which the mother is likely to be accepting of.  The parties have both demonstrated a commitment to the process with Ms K.  This is significant.

14. In terms of the mother adjusting to the consequences of the parties’ separation and her feelings of anxiety about the father, it is significant that there has not been any direct conflict between the parties since July of last year.  The parties have not spoken.  The father has respected the domestic violence order.  As I have already noted, the mother is not totally bereft of social support in A S. 

15. Bearing in mind these factors, I consider it likely that, if contact is restructured, as Ms O recommends, the mother is capable of providing a stress-free environment for A, in which she can develop her relationship with her father, to such an extent that, after September of 2008, A will have a sense of who her father is and be able to maintain a relationship with him, via the telephone and block periods of contact, when the mother pursues her legitimate ambition to move away from A S to C.

16. I propose to follow Ms O’ recommendations in regards to the father’s future contact with A, whilst both parties are in A S.  The mother has long been resistant to overnight contact.  Too a large extent, after the parties separated, the father pursued his desire for overnight contact to an extreme level, placing the mother under a great deal of pressure.  Such overnight contact cannot be presently justified, given its emotional consequences for A.

17. Presently, I accept A cannot sustain being away from her mother, her primary attachment, for extended periods of time, particularly when the mother is anxious about such periods of contact.  Accordingly, I do not propose to make orders for overnight contact or to extend the father’s periods of contact at this stage.  It will be necessary to proceed at a more cautious pace than that desired by the father.  But I will provide incremental increases in contact, working towards overnight contact.  There must be some progress in respect of contact, before the relocation.

18. Ms O recommends that contact arrangements remain consistent and reflect a routine, which A will find predictable.  The difficulty with this is that the father’s work schedule, as so far provided, does not lend itself to making such orders.  Accordingly, it will be necessary for me to make orders in respect of specific dates until the end of the year.  Thereafter, I propose to make orders in the hope that the father will be able to structure his work commitments around his responsibilities towards A.  It does not seem unreasonable that, after 1 January 2007, the father should tailor his work commitments to fit in with A’ needs, rather than vice versa.

19. I am aware that this may be problematic and result in more rather than less conflict between the parties.  However, I propose to order that the contact be supervised by a family and child counsellor, as Ms O recommends.  This may result in some of these difficulties being ironed out.  I also propose to make an order that the parties attend a process of counselling or mediation designed to assist them to have a more workable parenting relationship with one another in future.  I make these orders conscious that both parties are still working through the emotional consequences of their separation.

20. It is difficult to know what the future holds for A and the parties, after September of 2008.  A will still be a young child at that stage.  It will be difficult for her to travel between A S and V.  The costs of travel for contact are likely to be high.  There will be issues about whether she will need to be accompanied.  I do not think the parties have closely turned their minds to these issues.  Rather, for obvious reasons, they have concentrated on the contentious issues of the immediate relocation, which issue has now been resolved. 

21. Necessarily, given A’ tender years, it is easier for the court to make arrangements for her parenting in the short rather than the long term.  Parenting issues, after the relocation remain fraught with difficulties and uncertainty.  The outcome of the mechanisms recommended by Ms O to ameliorate A’ relationships with both her parents are not known at this stage.  The father will have to make important decisions about where he wishes to live after September 2008 and these decisions will have ramifications for the mother.  It cannot be gauged at this stage whether the parties’ relationship with each other will have improved, although this is my hope and expectation.

22. More importantly, in September of 2008 it may be open to the father to move in tandem with the mother and A to V.  He has strong familial connections in V.  By that time, the issues to do with his relationship with Ms S and her entitlement to remain in Australia are likely to be resolved.  Mr K may more easily be able to wind up his business interests in A S.  In my view, after A has reached the age of five years, it would not be reasonable to release Mr K from the obligation to make some personal sacrifices, so far his work and personal commitments are concerned, if he wishes to pursue his relationship with A.  After all, his actions have resulted in Ms D having to make such sacrifices, essentially against her will.  I do not discount the mother’s assertion that she would move from C, if the father followed her there. 

23. In many ways, it is both fatuous and impossible for the court to make parenting orders, which will deal with every conceivable outcome after September of 2008.  However, I have endeavoured to make some orders, which will deal with this period, in the hope that these will provide some form of template for the parties’ future involvement with one another and so avoid the need for them to return to court in future.

24. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding three hundred and forty-three (343) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate:  C W

Date:  30 June 2006

Schedule 1

1. That the parties have joint responsibility for the long-term care, welfare and development of the child A Y K born 3^rd September 2003 (“the child”).

1. That the Mother’s application to relocate from A S with the child is denied, and in that event, until the child turns 5 years of age, the child reside with the Respondent Father each alternate week from 5.00 pm Wednesday to 8.30 am Monday and with the Mother at all other times.

1. That if the Father is not available for the specific dates and times noted in Order 2 that the Mother be flexible as to alternate dates and times for contact.

1. That once the child reaches the age of 5 years, the child reside each alternate week with the Father and the other week with the Mother.

2. That both the Father and the Mother be permitted to take the child interstate for a period of two weeks annually provided that:

a)An itinerary and as much notice as possible, but not less than 30 days notice is supplied to the other parent; and

b)Contact that would ordinarily be had by the other parent accrue during such periods to be taken when the child returns from holidays.

1. That the parent who has the care of the child be responsible for the child’s day-to-day care, welfare and development.

1. That the child have contact with the parent with whom the child is not residing as agreed between the parties but failing agreement for a minimum of 4 hours on the child’s birthday and Christmas day; with the Father on the father’s birthday and Father’s Day and with the Mother on the mother’s birthday and Mother’s Day.

1. That neither party be permitted to relocate from A S without the written consent of the other party.

1. That the child have telephone contact each second night with the parent with whom the child is not residing.

1. That should the Mother’s application to relocate from A S with the child be denied but the mother still choose to relocate from A S, the child will reside with the Father and have contact with the mother as follows;

a)A minimum of three times per year at such times as agreed between the parties, but failing agreement;

i)    One week during the April or September N T school holidays;

ii)    Half the mid-year school holiday period;

iii)   Half of the Christmas school holiday period to be taken such that the child spends Christmas with each parent in alternate years;

iv)   Additional contact should the Mother visit A S at other times.

b)Telephone contact three times per week.

1. That should the Applicant Mother be permitted to relocate from A S, the child have contact with;

a)The Father for a minimum of three times per year at such times as agreed between the parties, but failing agreement;

i)    One week during the April or September N T school holidays;

ii)    Half the mid-year school holiday period;

iii)   Half of the Christmas school holiday period to be taken such that the child spends Christmas with each parent in alternate years;

iv)   Additional contact should the Father visit the child’s place of residence at other times;

v)    Telephone contact three times per week.

b)With the maternal grandparents at times as can be agreed between the mother and the maternal grandparents but failing agreement for a minimum of two weeks twice per year.

1. a)     That the costs associated with the Applicant Mother having contact with the child as set out in Order 10 herein be borne by the Applicant Mother.

   a)That the costs associated with the Father having contact with the child as set out in Order 11 herein be shared.

   b)That the costs associated with the maternal grandparents having contact with the child shall be borne by the maternal grandparents.