Dashwood & Mallinder (No 3)
[2022] FedCFamC2F 523
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dashwood & Mallinder (No 3) [2022] FedCFamC2F 523
File number(s): DNC 88 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 27 April 2022 Catchwords: FAMILY LAW - parenting - concerning one child who is 19 months old - where the child lives with the mother and spends time with the father - where the mother seeks to relocate interstate with the child - where the father seeks increasing time with the child- court satisfied the mothers desire to relocate is genuine - court satisfied the mother does not wish to deprive the child of a relationship with the father - court satisfied the child's relationship with the father would be significantly impacted if the mother is permitted to relocate - court satisfied the mother should be permitted to relocate but not before the child turns 5 years of age. Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act1975 (Cth) ss60B, 60CA, 60CC, 61DA, 65D, 65DAB, 65DAA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 7.11, 7.14
Cases cited: AMS v AIF (1999) 199 CLR 160
Champness & Hanson [2009] FLC 93-407
G & C [2006] FamCA 994
Godfrey & Sanders (2007) 208 FLR 287
Mazorski v Albright (2007) 37 Fam LR 518
Morgan & Miles (2007) 312 FLR 114
Palmer & Hammer (No.2) [2011] FamCAFC 196
Sayer & Radcliffe (2012) 48 Fam LR 298
Sigley & Evor (2011) 44 Fam LR 439
Starr & Duggan [2009] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 149 Date of hearing: 31 January – 2 February 2022 Place: Darwin Counsel for the Applicant: Ms Murray Solicitor for the Applicant: Mr Bocock of Northern Territory Legal Aid Commission Counsel for the Respondent: Ms Morgan Solicitor for the Respondent: Ms Powell of Powell & Co. Solicitors ORDERS
DNC 88 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DASHWOOD
Applicant
AND: MR MALLINDER
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
27 APRIL 2022
THE COURT ORDERS THAT:
1.All previous orders be discharged.
Parental Responsibility
2.The parents Ms Dashwood (“the mother”) and Mr Mallinder (“the father”) (collectively “the parents”) are to have equal shared parental responsibility for the child X born in 2020 (“the child”).
Living Arrangements
3.The child live with the mother in Darwin or City J until the child turns five years of age and thereafter the mother be permitted to relocate the residence of the child to Town D in Victoria.
4.The child is to spend time with the father as agreed with the mother, but failing agreement as follows:
(a)from the date of these orders until the child turns two years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and the first three weekends of each month from Saturday 9 AM to 2 PM and from Sunday 9 AM to 2 PM;
(b)from when the child turns two years of age until January 2023, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and alternate weekends of from Saturday 9 AM to 5 PM and from Sunday 9 AM to 5 PM;
(c)from January 2023 until the child turns three years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and alternate weekends of from Saturday 12 PM to Sunday 5 PM;
(d)from when the child turns three years of age, on Mondays and Wednesdays from 1:30 PM to 4:30 PM and alternate weekends of from Friday 5 PM to Sunday 5PM;
(e)from when the child turns four years of age, on Mondays from 1:30 PM to 4:30PM and Wednesday 1:30 PM to Thursday 8:30 a.m. and alternate weekends from Friday 5 PM to Sunday 5 PM.
5.Once the child begins to spend time overnight with the father the father is to ensure that there are appropriate sleeping arrangements for the child.
6.Unless otherwise agreed between the parties the child is to spend time with the father from 9AM to 5PM on the following occasions:
(a)The father’s birthday;
(b)Father’s day; and
(c)Easter Friday.
Travel
7.The mother is permitted to travel interstate to Victoria with the child as follows:
(a)At times as agreed between the parties in writing;
(b)On no more than four occasions per year;
(c)For a period of no more than 10 days; and
(d)At the sole expense of the mother.
Relocation
8.If the mother relocates to Town D and father relocates to:
(a)within 200km of Town D, including Melbourne, the child shall spend time with the father from after school Friday or 3:00 PM if not a school day to 9:00 AM Monday or 9:00 AM Tuesday if not a school day or a public holiday, on alternate weekends; or
(b)the Town D area, the child shall in addition to the time specified in (a), spend time with the father from after school Thursday to before school Friday in the alternate week.
9.If the mother relocates to Town D with the child after he turns five years of age and the father remains living in Darwin, the child shall spend time with the father for the first two weeks of the Christmas holiday beginning December 2025, including Christmas 2025, and thereafter half of the school holidays with the parents to share equally in the cost of travel for the child. The child is to spend time with the father in the second half of the next school holiday, the first half of the next school holiday and thereafter alternating.
Family Dispute Resolution
10.The parties are to participate in family dispute resolution conference with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended) when the child reaches the age of two years of age and five years with a view to identifying and agreeing on any matters in dispute about the child’s best interests.
11.That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act1975 (as amended) or by the Commonwealth Attorney- General; or
(b)participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975 (as amended).
Parenting Orders Programme
12.That within 14 days from the date of these Orders being sealed, the mother and father will each enrol in a Post Separation Parenting Course, such as offered by L Centre, E Families or N Families, and a Parenting Course such as Circles of Security, and will provide written confirmation to each other of their successful completion of the courses within 3 months of the date of these Orders.
Non-Denigration
13.Each party is restrained from denigrating the other party in the presence or hearing of the child or permitting any third person to do so in the presence or hearing of the child.
Other Orders
14.While the mother remains resident in Darwin, until the child turns five years of age or such time as the mother obtains full-time employment the father shall continue to pay the mother $250.00 per week on Wednesday to be paid into the mothers ANZ account (BSB … account number …24) for her rental expenses.
15.If the mother returns to full-time employment and the child is placed in regular childcare, the cost of such child care is to be borne equally by the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Dashwood & Mallinder has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG
This is a parenting case about a child, X, who is presently 19 months old. The child lives with the mother in Darwin. She seeks to relocate in June 2022 with the child from Darwin to Town D, a regional or rural town in Victoria, which about 2 ½ hours by road from Melbourne. She proposes that the child spend time with father, if the father remains living in Darwin, on 4 to 6 occasions a year, with the father travelling to Town D to spend time with the child. If the father is willing to relocate to Victoria, within 100km of Town D, she proposes, in substance, a continuation of the present time regime, increasing as the child develops.
The father proposes that the mother and child continue to reside in Darwin and that he spends increasing time with X as he grows older. In the alternative, the father proposes that the mother relocate to Town D with the child when the child turns five years old in approximately 3 ½ years.
Background
The applicant mother is 34 years old. X is her only child. She moved to Darwin from Town D with her then partner, Mr O, in 2017. The mother has an employment background in the health care sector and she moved to Darwin to advance her career. She worked in a managerial position with a health care service provider in Darwin. She said Mr O subjected her to family violence and, because of that, she attempted suicide in 2018 by taking an overdose of medication, resulting in a short admission to hospital. The relationship with Mr O ended soon after.
In 2019 the mother met the father, Mr Mallinder. They commenced a casual relationship during which she became pregnant with X. The mother said at this time neither she nor the father were in an exclusive relationship. They never lived together. X was born in 2020. The father’s paternity was established after DNA testing.
The mother took maternity leave from her employment and remained in Darwin. However, in 2020 the mother met a Mr P while visiting friends in Town D. She began a relationship with him that she termed "long-distance". For a short period, the mother shared a house in Town D with Mr P, his sister and the sister's partner, but she and Mr P have not otherwise lived together. Mr P is 26 years old. He is resident in Town D and has two children who live with their mother and spend time with him.
The mother grew up in Town D and lived there until 2017 but she no longer has any family resident there. Her father is deceased. She is estranged from her mother and sister who live in Tasmania. Her brother, with whom she maintains regular contact, lives with his wife and children in City AF.
The father is 28 years old. He grew up in Darwin and his mother and father continue to live here. The father works as a professional, having obtained a degree from Q University in 2018. He said he obtained his degree after part-time study for six years while working for a company in Darwin. He now works for a different company, a small Darwin company.
The father says it is impracticable for him to relocate to Victoria. He said there is no work available for him in Town D or surrounding towns such as City R, City S or City T. If he were to obtain employment in Melbourne, which the parties agreed was about 2 ½ hours by road from Town D, X would not have or be able to develop a meaningful relationship with him, particularly while X was so young. Further, the father said that his relocation to Victoria was also impracticable because he would need to undertake significant retraining, including working under supervision, before being able to obtain registration as a professional in Victoria. He said this is unlikely to be attractive to a potential employer. He did not say whether he had considered employment outside his profession but implicitly appeared to regard that as impractical.
Applications during the trial
The mother said she was unhappy in Darwin and residence here exacerbated her depression. She said that her mental health would improve if she were to live in Town D. She said the improvement in her mental health resulting from her relocation to Town D would have significant benefits for X. The mother also said that if her mental health improved she would be able to undertake work in Town D, whereas her depression prevented her from working in Darwin. She said she had the support of long-term friends in Town D and the support of Mr P.
To bolster her argument, the mother sought to rely on a psychologist’s report which expressed the opinion that her mental health would be assisted by permitting her to relocate to Town D. The report was filed late, shortly before the commencement of the trial, in breach of trial directions for the filing of material. The mother also failed to comply with Division 7.1.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) requiring, if a party seeks to adduce evidence from an expert witness, the filing of an Application in a Proceeding supported by affidavit addressing the matters in r 7.11(2). The mother made an oral application to adduce the evidence but I refused the application, having regard to the matters in r 7.11(3). In refusing the application I gave substantial weight to my view that the evidence should have been given by a single expert witness rather than an expert witness retained by one party. There was no satisfactory explanation for the failure to seek the appointment of a single expert. I was also satisfied that the father had no real opportunity to respond to the report, given the late filing and service, and that constituted unfairness to him. In part, this may have been addressed by the adjournment of the trial and an order for costs against the mother, assuming, which was doubtful, that she had the capacity to pay an order for costs. Further trial dates were unlikely to have been available for some months, at least, and I accepted that an adjournment, where the matter had been set down for trial many months before, would be highly stressful and expensive for the parties, particularly the father who was not legally aided.
On the second day of the trial the mother sought to rely on proposed evidence from the mother’s treating General Practitioner (“GP”) on the basis that the evidence was of the kind described in r 7.01 and limited to a description of any examination, investigation, observation or treatment of the mother. Such evidence is not subject to the rules regarding expert evidence in Part 7.1 of the Rules, other than r 7.14, which requires disclosure of any report obtained for a parenting proceeding. The mother did not have such a report from the GP. The mother sought the adjournment of the trial in order to obtain such a report. Counsel for the mother told me that, if permitted to give evidence, the GP would say that the mother suffered from anxiety and depression or post-natal depression and that she was prescribed 50 mg (later said to be 100 mg) of Sertraline daily. Counsel said that the GP would not express an opinion about whether the mother’s relocation to Town D would make any difference to her mental health.
There was some existing independent evidence on this issue. The Court Child Expert (“CCE”) summarised the risk factors associated with the mother’s mental health in the family report as follows:
Mental Health
31. Mental Health is considered a potential rather a substantive risk factor.
32. Ms Dashwood reported she was diagnosed with Post Natal Depression, anxiety and depression in January 2021 and is medicated with 50mg Sertraline daily.
33. Ms Dashwood reported symptomology consistent with anxiety largely related to this litigation.
The family report was published on 24 December 2021. The CCE recommended, among other things, that the mother not relocate to Town D. The trial commenced on 31 January 2022.
In the family report the CCE considered the mother’s mental health history and was not favourable to the mother’s application to relocate. Nevertheless, it was not in dispute that the mother has a history of mental ill health as summarised above. The foreshadowed evidence of the GP did not go beyond, in general terms, the history of the mother recorded by the CCE in the family report. As the mother’s counsel said the evidence of the GP would not include an opinion that the mother’s mental health would be likely to improve should she relocate to Town D, I saw little utility in adjourning the trial to permit the mother to obtain a report from the GP. I considered s 135 of the Evidence Act 1995 and determined the probative value was outweighed by the danger that the evidence would cause or result in undue waste of time.
The evidence in the trial
The parties agreed on a number of facts at the commencement of the trial as follows:
·the mother is the primary caregiver of the child;
·it is in the child’s best interests that the parties have equal shared parental responsibility;
·the parties met in 2019;
·the parties did not live together;
·the parties separated in March 2020 before the child was born;
·in November 2020 the mother advised the father of her intention to relocate to Town D with the child;
·the child has been spending time with the father for 13 hours a week and this has been going well;
·the child’s time with the father will gradually increase to overnight time as the child becomes older;
·it is in the child’s best interests to have a meaningful relationship with both parents;
·there are currently no significant risk factors concerning either parent’s capacity to care for the child;
·the child is well cared for and loved by both parents;
·the child knows and has spent time with the paternal family;
·the parents currently have a child focused and businesslike relationship and communicate using a parenting app and SMS text messages;
·there is a possibility of the relationship of the parents becoming hostile or high conflict, at least initially, after a decision is made.
The parties’ agreement about these facts obviates the need for factual findings about certain matters raised in the trial affidavits of the parties. The mother alleged in her trial affidavit that the father had been argumentative and insulting at various times at the end of the relationship. The relevance of these allegations was not entirely clear but I took them to carry an implication that the father subjected the mother to family violence. She also alleged that he was “forceful about having sex one night” (no further particulars were given). The affidavit implied, but did not expressly allege, that on this occasion the father had raped her. The father generally denied the mother’s allegations. The father was not cross-examined about this allegation and, in view of the agreed facts between the parties, it is unclear why the allegation was relevant. No submission was made that there ought to be a finding about this allegation. Accordingly, it is doubtful whether this passage in the affidavit ought to have been relied upon. In his trial affidavit the father also made various allegations about the mother’s behaviour, particularly when she had been drinking. Again, in view of the agreed facts the relevance of those claims is unclear and it is doubtful whether the subject passages in the affidavit ought to have been relied upon. The parties did not seek findings about these matters. In the circumstances I do not propose to make any findings about these allegations.
The mother gave evidence that the child was healthy and reaching his milestones.
The mother said that she had been employed as a manager in the health care sector for 13 or 14 years prior to the child’s birth. She said that she moved to Darwin from Town D in Victoria in 2017 with her then partner, Mr O, to advance her career. She said Mr O was abusive. She attempted suicide by an overdose of tablets in 2018 and was briefly hospitalised and her relationship with Mr O ended soon after. She then returned to her employment and worked as a manager in the health care sector until shortly before the child’s birth.
The mother said she formed a relationship with the father in 2019. She said that both she and the father had other sexual partners. They did not live together. She said she discovered she was pregnant in 2020 and the child was born in 2020. By that time the relationship between the parents had ceased, although the mother introduced the child to the father when he was six days old. Nevertheless, it appears that there was uncertainty about the paternity of the child which was resolved between the parties by a DNA test conducted in February 2021.
It appears there were initially disputes about time spending, which may have been related to doubts about the child’s paternity. The mother also said a dispute arose in January 2021 about her plan to relocate to Town D (notwithstanding the agreed fact that she told the father of her plan in November 2020). The disputes about time spending appear to have largely settled with the making of a declaration of paternity and the first court orders for time on 27 April 2021.
The mother said she regularly returned to Town D as she considered it, and still considers it, to be her home because she grew up there. She said she keeps possessions in storage in a shed in Town D. She said she travels back to Town D or Melbourne a few times a year as she misses her “family and friends”. The mother clarified in evidence that she has no family members in Town D or Victoria. Her father, who lived in Town D, died some years ago. Her mother and sister, from whom she is estranged, live in Tasmania. Her only sibling, a brother, lives in City AF. The mother explained that when she referred to “family” she meant her friends in Town D were like family and provided important support to her. The mother was asked about her friends in Town D. She referred to one of her best friends, Ms U, who provided an affidavit for the trial. Ms U lives in Town D. She referred to another best friend, Ms V, who lives in Suburb W, an outer Melbourne suburb about two hours by road from Town D. She did not give evidence of any other friendship network. I accept that Ms U is a close friend of the mother and would provide support and friendship to her. In the absence of specific evidence from the mother, I am not satisfied there is any other important friendship network or network of support available to the mother in Town D, subject to the matters addressed below.
The mother said she began a relationship with Mr P during a visit to Town D in late 2020. Although the mother’s affidavit is vague about the circumstances in which she began a relationship with Mr P she presumably had known him for some time as she described Mr P’s mother is an “old friend” of hers.
Mr P did not give evidence, although he was interviewed by the Child Court Expert (“CCE”). The evidence about Mr P comes from the mother’s evidence about him and the family report. The mother said Mr P is 26 years old and employed as a tradesman. Mr P has two children from a previous relationship aged six and three years old, of whom he shares care with his former partner. The mother said that Mr P’s former partner had obtained a domestic violence order against Mr P “about five or six years ago”. She said that the domestic violence order was made following allegations that Mr P had assaulted his partner which, according to the mother, “Mr P refuted… and says he was acting in self-defence by holding [the former partner]”. She said that Mr P and his former partner now work “constructively together in a co-parenting relationship for their children”.
The mother said that she and Mr P are in a committed relationship and plan to live together in Town D. They have not lived together to this point, although she said she and the child have spent time with Mr P in his share house in Town D. She said she and Mr P have discussed having a baby together. She said that she would seek to relocate to Town D with the child regardless of her relationship with Mr P.
The mother referred to other reasons why she wished to relocate to Town D. She said Town D is a good place for a child to grow up, that she would be emotionally supported in Town D and she has many long-term friends there (none of whom were mentioned in her evidence apart from Ms U and Mr P’s mother), rent would be cheaper and more secure and her mental health would improve.
The mother was cross-examined about her claim that she had no friendship network or emotional support in Darwin. The mother was asked about her baby shower and agreed that some 40 guests had attended. When it was put to her that this indicated a friendship network she downplayed the significance of the number of guests by saying that some were friends of the father’s or were work colleagues. I was left with the impression from the mother’s answer that she downplayed the significance to her of any friendship networks Darwin and was unwilling to acknowledge that she may have friends in Darwin.
The mother was also asked about why she had not spent her maternity leave in Town D, which she commenced shortly before the child was born. The mother appeared to suggest that she was not free to travel to Town D at that time because of an employment commitment but the mother did not return to employment after the birth of the child. On further questioning the mother acknowledged that nothing had prevented her from travelling to Town D and spending her maternity leave there, although she did say she received a letter from the father’s solicitors in November 2020, implying that this required her presence in Darwin. I am not satisfied that is the case. A letter from the father’s solicitors to the mother dated 3 November 2020 sought orders for parentage testing but did not require her presence in or return to Darwin. The reply from the mother’s solicitors dated 16 November 2020 agreed to parentage testing and indicated the mother’s wish to relocate to Town D.
The mother said she was unable to work in Darwin because of mental ill health and because she was the primary caregiver of the child. There was no independent evidence that the mother was unable to work because of mental ill health. The mother said that she had good prospects of employment in Town D and, with the expected improvement in her mental health, she would be able to take up employment at some time in the future.
I accept that the mother has genuine reasons for wishing to relocate with the child to Town D, although I do not accept all of the mother’s claims which, in my view, are tendentious and contain elements of exaggeration. I accept that she has friends in Town D, although I am not satisfied that she has any particularly close or supportive friends in Town D apart from Ms U. I do not accept that her friends are, as she claimed, effectively the same as family. I accept that rental costs would be cheaper in Town D although I consider that the $250 a week the father currently pays to the mother for her rent in Darwin removes that disadvantage.
I accept that the mother has a history of mental ill health. I accept that she was diagnosed with Post Natal Depression, anxiety and depression in January 2021. I accept the opinion of the CCE that the mother’s mental health is a potential risk factor but not a substantive risk factor. I accept the opinion of the CCE that the mother’s symptomology was suggestive of anxiety about the litigation. In the absence of expert evidence, I do not accept that the mother’s mental health is likely to improve in Town D but I accept it is possible. In the absence of expert evidence I do not accept that the mother’s mental health, as distinct from any other factor, such as her care for an infant child, prevents her working in Darwin and that on relocation to Town D her mental health will improve so that she could obtain employment. I accept that the mother wishes, as is her right, to pursue a relationship with Mr P and she believes that relationship will bring her happiness.
Mr P, as noted, did not prepare an affidavit or give evidence in the trial and I was unable to make any direct assessment of him. He was, however, interviewed by the CCE for the preparation of the family report. Mr P told the CCE that he is 26 years old and resided with his parents in Town D. He said that his children live in a shared care week about arrangement between him and his children’s mother. He said he met the mother in December 2020 (which seems a little surprising given the mother described Mr P’s mother as an “old friend”). He said that he had a turbulent relationship with his former partner and that she obtained a domestic violence order against him, which was rescinded after they reconciled. He said he does not have a criminal record and his children have not been the subject of any historical or current child protection involvement. He said he does not consume alcohol to excess in the presence of his children and does not use illicit substances. He said he had some mental health problems when he was 18 or 19 years old and suffered depression resulting from his parent’s marital break-up. He said he would be supportive of the child’s relationship with his father.
I accept that the relationship between the mother and Mr P is a serious one and one they both genuinely wish to pursue. I accept that Mr P is supportive of the mother. The mother and Mr P, according to the mother, have not lived together apart from a relatively brief period in a shared house and I am unable to make any assessment of the stability or likely stability of the relationship in the long-term.
I am satisfied that the primary reason the mother wishes to relocate with the child to Town D is to pursue a relationship with Mr P. I am satisfied that the other factors referred to by the mother militating in favour of her relocation, to the extent that I accept them, are subordinate to that wish.
I accept that the mother’s motivation is genuine, in the sense that her motivation is not to deprive the child of a relationship with his father, and her desire to relocate is consistent with her fundamental right of freedom of movement.
I accept that the mother will be unhappy if she is unable to relocate to Town D with the child. I am not satisfied this will cause a deterioration in her mental health in the short-term or long-term. I am not satisfied any unhappiness of the mother will significantly adversely affect the child.
The mother said in her trial affidavit that in order to maintain the relationship between the child and the father she proposes to travel to Darwin three times a year and for the father to travel to Town D three times a year. She said she would assist with half of the father’s travel costs, although it was not apparent how she could do that without obtaining employment. She said she would regularly send photos and videos to the father. She told the CCE that she considered that X spending time with the father four times a year for periods of 7 to 10 days would be sufficient to support the child’s relationship with his father.
She asserted that, if the father chose to relocate to Victoria, there were jobs available for professionals in City R, which is about one hour by road from Town D, and City T, which is about two hours by road from Town D. She said she had seen positions referred to on the Seek employment website but that information was not annexed to her affidavit.
Ms U gave evidence on behalf of the mother. She said she and the mother had been close friends for many years. She said she considered the mother as part of her family and that her children, aged 13, 11 and eight years old, think of the mother as “their auntie” and X “as their cousin”. She said she owns a house which she would rent to the mother for $280 a week. I accept that Ms U and the mother are close friends and that Ms U would provide emotional and other support to the mother.
The father gave evidence that the child currently spends 13 hours a week with him from 2 PM to 4:30 PM on Monday and Wednesday, 9 AM to 12 PM on Saturday and 9 AM to 2 PM on Sunday.
The father said that communication between him and the mother has improved since the making of orders and they now communicate reasonably well. He said that, while changeovers mostly take place at E Families, the mother and he are somewhat flexible about arrangements. He said they communicate through phone calls, SMS and a parental app. He said that in recent times the mother had asked him or his mother to care for X when she was unavailable, for example when attending the appointment with the CCE.
The father said that he has a new girlfriend, Ms Y, who has four children. He said that he spends regular time with her but as the relationship is new they have no definite plans. He said the mother was familiar with Ms Y and at one point had agreed or arranged for her to look after X while the parents attended a legal aid conference, although that did not go ahead because Ms Y was unwell with Covid-19. Ms Y provided an affidavit but was not required for cross-examination.
The father said that he moved out of his parent’s home in mid-2021 and has since shared a house with two friends. He said he has a large bedroom and ensuite bathroom. The father did not say what arrangements he intended if X were to spend overnight with him but presumably he intends that X would share the bedroom with father. He said his longer term ambition was to buy a home where X would have his own bedroom.
The father said he has a very close relationship with his parents and his sister, each of whom live in Darwin. He said X has a close relationship with each of his paternal grandparents and paternal aunt. The father said that the mother and the paternal grandmother have, at least, a cooperative relationship in relation to the child. The father said that on occasion the mother had asked him or the paternal grandmother to look after the child when she was unavailable.
The father said in evidence that he earned about $100,000 a year from two jobs. He said he earns about $87,000 a year as a professional and, in addition, works some nights in hospitality and earns about $13,000 a year. The father said that he took a second job because the court order that he contribute $250 a week towards the mother’s rent, along with a child support assessment of $794 a month, placed him under some financial pressure.
The father said it was not practicable for him to relocate to Town D or Victoria. He said that in mid-2021 he had discussed relocation with the mother and, as a result, he made enquiries about the availability of employment in his profession in Victoria. He gave detailed evidence about his attempts in 2021 to find employment in nearby regional towns as a professional. He said, and provided supporting correspondence, that he wrote to and spoke to seven professionals: four in City R, one in City S, one in Town Z and one in Melbourne enquiring about positions. He said he made personal contact but received no further response from three and received further responses from the remaining four to the effect that they had no positions available or there was insufficient work for them to be considering employing. He said he followed up with further approaches in January 2022 with three of them without any success. The father was not challenged about his evidence of these approaches or the outcomes.
It is to be noted that the mother asserted that the father agreed in mid-2021 to her relocation with the child but changed his mind. I am unable to make a finding about precisely what occurred but the father’s search for employment in Victoria is consistent with the mother’s evidence. In any event, I accept that the father’s search for employment in his profession was unsuccessful and this was likely to have influenced any change of mind by him.
In response to a question from the court, the father also asserted that it would be difficult for him to obtain registration as a professional in Victoria because he did not fulfil the requisite experience requirements for a professional in Victoria. He said that the experience requirements for registration were detailed and required evidence that he had experience of certification of particular kinds of industry. He gave as an example the requirement that he have experience in the industry that was common in Victoria. He said that in order to obtain the requisite experience in Victoria for registration he would need to work under supervision of an employer for an extended period. He said he doubted that this would be an attractive prospect for an employer.
Nevertheless, it is noteworthy that the father did not say in his evidence that the reason prospective employers he spoke to or contacted said he could not be employed was because he lacked the requisite registration or experience.
The matter was stood down for a short period while the parties made enquiries of the relevant authority about the requirements for registration as a professional. Counsel for the mother challenged the father’s claim that it would be difficult for him to obtain registration as a professional in Victoria. She relied on documents downloaded from the website of the relevant authority that appeared to indicate that in July 2022 a mutual recognition system permitting recognition of registration in other states or territories was to be introduced. The father claimed that he would still need to satisfy the relevant experience requirements, as described above, and he was presently unable to do that notwithstanding the existence of a proposed mutual recognition system.
The evidence about this last issue was unsatisfactory. Ideally, there would have been more detailed or expert evidence if it were to be asserted that the father could or could not obtain registration in Victoria. Generally, I found the father to be a plausible witness but he frankly conceded that he had not spoken to anyone from the relevant Victorian authorities about his prospects for registration and his evidence was based on his interpretation of the documents and information available from the relevant government website.
I accept that the father has made genuine enquiries about employment in Town D and the surrounding region as a professional. I accept that his enquiries showed there was, at the time of his enquiries, no employment within his profession available.
As to whether the father could obtain registration as a professional in Victoria, I consider that, while the evidence is not entirely satisfactory, it is likely he could obtain registration but it would be necessary for him to have a period of employment under supervision in order for him to obtain the requisite experience. I consider it likely that such employment is available in Melbourne but is unlikely to be readily available outside Melbourne. There was no evidence that the father had any relevant skills or employment experience other than in his profession and, given his employment prospects would thus be uncertain, I do not consider it practicable for the father to obtain employment outside his profession in Town D or the surrounding region. The mother did not suggest that the father should take up any other employment.
I am satisfied that it is practicable for the father to relocate to Melbourne but not for him to relocate to Town D or any nearby regional city.
The parties agreed that the road journey between Melbourne and Town D was of 2 ½ hours duration. I find that if the father were to relocate to Melbourne and reside there and drive to Town D in order for the child to spend time with him then the most frequent time that the child would be likely to spend with him is about once a fortnight for a night.
The father’s mother, Ms AB, also gave evidence and was briefly cross-examined. I accept that she has a close relationship with the child and she is strongly supportive of her son. The child spends regular time with her. Ms AB said that “friends” had provided information suggesting that the mother had been neglectful of the child as a very young infant when she visited Town D, leaving the child with Mr P or, for example, going to the pub without the child. She said that she and the family retained a private investigator to find information about Mr P and/or his family. The report was annexed to Ms AB’s affidavit. The report contained no relevant information about the mother and mostly irrelevant information about Mr P. There was mention of two civil matters concerning Mr P in the Town D Magistrates Court, possibly concerning his children according to the investigator’s report. The dates were illegible. There was also some information which was essentially scuttlebutt obtained from a relative of Mr P’s former partner. If objection had been taken to this material I would have disallowed it. I give it no weight.
Ms AB also said that she and her husband hold an interest in a trust which includes a property lease (whether as lessor or lessee was not stated) for a childcare centre at Suburb AC, a few kilometres from the mother’s residence in City J. She said she was involved in the “management of the trust” and would be happy to “request a place” at the childcare centre if the mother agreed. The evidence was unnecessarily vague but appears to suggest that Ms AB is in a position to obtain a place for the child in a family managed childcare centre. It appeared from the father’s oral evidence that a place had been offered to the mother for the child but she was not willing to accept the offer. It is of note because the mother seeks orders that the father pay for the child to be placed in a childcare centre for three days a week in City J, as distinct from Suburb AC.
Ms AD also gave evidence on behalf of the father. Ms AD was not required for cross-examination. She said she lived in Town D and had been formerly a friend of the mother’s. However, she had become a friend of the father and his family. She said she knew Mr P and Mr P’s mother. She had nothing of relevance to say about them and nothing adverse to say about them. She said she had a falling out with the mother in about January 2021 because she disapproved of the mother’s attitude to the father. She said the mother told her in December 2020 that she did not want the father to “have anything to do with X” and that the mother frequently referred to the father as “the sperm donor”. Ms AD said that she encouraged the mother to adopt a different attitude to the father but this led to a falling out. While I accept the evidence of Ms AD, these events occurred at a disturbed time in the relationship between the mother and the father, following the birth of a child conceived in a casual relationship, and I discount their significance because of that. These matters are of limited relevance but they are consistent with an impression I gained from the mother’s evidence that her commitment to encouraging the child’s relationship with his father has, at times, been ambivalent.
Ms AD also said that the mother had told her that she commenced “going out” with Mr P in January 2020. This appears to be inconsistent with the mother’s claim that she commenced a relationship with Mr P in 2020, after X’s birth in 2020. I accept Ms AD’s evidence.
The CCE gave evidence. A family report was tendered and the CCE was cross-examined by both parties. The report briefly described the living arrangements of the parties. The mother, at the time of the report, lived in a shared house with a couple who were absent from the house for their employment for two weeks out of four and the father shared a rental property with friends.
The report recorded that both parties proposed shared parental responsibility. The mother’s proposal was that she and the child relocate to Town D and for the child to spend time with the father four times a year, in March, June, September and December, for a period of 7 to 10 days, with the parties sharing costs. The father proposed that the child continue to reside in Darwin in the care of the mother and that the child’s time with him incrementally increase with the child’s age and stage of development.
The CCE did not consider family violence to be a “substantial risk” although she referred to “mutual verbal violence” between the parties, particularly at time of the cessation of their relationship. She noted that the mother characterised the father’s refusal to agree to her relocation with the child as “controlling”. She noted that neither party expressed concerns about the other’s drug or alcohol use.
The issues identified by the CCE were:
·The capacity of the parents to build a cooperative parenting relationship,
·the appropriate parenting arrangement given the age and stage of development of the child, and
·the emotional well-being of each party if their proposal was not successful.
The CCE described the mother as anxious and intermittently tearful during her interview. She said the mother said the father agreed to relocate in 2021 but then changed his mind. The mother said that she did not believe she can afford accommodation if her friends, with whom she presently shares a house, move interstate as they propose.
The mother said that her former friends from Town D, Ms AD and Mr AE, contacted the father and told him the child was at risk in Town D because of Mr P’s involvement with the police and alcohol abuse. She said the father and the father’s parents engaged a private investigator to monitor her and Mr P. She is now estranged from Ms AD and Mr AE. She believes that a report was made to Territory Families because her mental health nurse told her she had received an enquiry from Territory Families but no direct contact was made with her.
None of these matters otherwise figured significantly in the evidence at trial.
The mother said she had not used any illicit drugs since learning of her pregnancy but had used cocaine before that.
The mother told the CCE that she had been diagnosed with Post Natal Depression, anxiety and stress in January 2021 and she has engaged with psychological invention since 2001 and has been attending regular fortnightly appointments but they ceased because of mental health care plan expired. She said the litigation had exacerbated her stress and anxiety and she had recently commenced taking Sertraline for depression and anxiety. She said she had been “going downhill” in recent weeks and did not feel she was functioning at optimal level. She was tearful at the prospect of remaining Darwin and felt “in limbo” and the uncertainty was taking a toll on her mental health and emotional well-being. The CCE, as noted, regarded the mother’s mental health as a “potential” but not a “substantive” risk factor.
The mother said she said she felt isolated in Darwin and without a support network and her childhood friends and support network were in Town D where she feels “stable, calm and safe”. She said that if she were not permitted to relocate with the child she would visit Town D regularly, such as monthly.
The CCE said the father presented as calm and considered. He spoke respectfully of the mother and did not attribute any blame towards her for the relationship breakdown. He spoke positively of the mother’s parenting capacity and said she has “done a really good job” mothering X.
However, the father asserted that the mother had attempted to limit his contact with X. As an example, he said she would not allow him to communicate with the child by Face Time or Skype when she had previously holidayed in Victoria. He also expressed concern that the mother would not promote X’s relationship with him if she relocated and said she does not value his role or relationship with the child. He became distressed when he related that Mr P’s telephone number is saved in Ms Dashwood’s phone as “Dad”. These matters were not otherwise the subject of evidence.
The father acknowledged the mother’s history of mental ill health but said that he questioned the mother’s claim of a high level of emotional support in Town D because she had not relocated after her suicide attempt following the difficulties in her relationship with Mr O.
The father denied the mother’s claim that he agreed to relocate in 2021. He said he would consider relocating himself but there were presently no vacancies in his profession in the Town D region.
The CCE observed that the child presented as a well-cared for and energetic toddler who appeared to be meeting or surpassing developmental milestones.
The CCE conducted an observation of the child and the father, who was later joined by the paternal grandmother. The father maintained physical proximity to the child and supported and encouraged him by talking to him using praise and providing nurturance. The child responded to the father by smiling, babbling and reciprocating physical closeness. When the paternal grandmother joined the group the child was observed to seek her out for comfort which was provided with a hug, kiss and gentle communication.
In the observation of the child with the mother she was observed to maintain physical proximity to the child and engaged him in building a tower with plastic blocks. She spoke in a quiet and gentle manner. The child responded by maintaining proximity and sought affection and comfort from her when he appeared tired.
The CCE did not identify any concerns arising from the observations.
The CCE also interviewed Mr P who recounted something of his history including mention of his relationship with his former partner and the current arrangements for care of his children in Town D. He said he had no criminal record and was not subject to any historical current child protection involvement.
In her evaluation the CCE noted that the child was in the primary care of the mother and had been spending regular and frequent periods of time with the father, and the paternal family, since the making of interim orders in April 2021. The CCE observed that children are embedded in systems that include the nuclear and extended family members, friends and social groups and the relocation of a child is likely to result in significant changes to the child’s living arrangements and a decrease in the time the child spends with one parent and extended family. She noted that the mother accepted that her relocation would prevent frequent contact between the child and his father (assuming the father did not relocate too).
The CCE noted that the mother articulated significant stress and anxiety at the prospect of not being permitted to relocate to Town D. She observed that parental anxiety may result in anxiety being internalised by children, with emotional effects of anxious parenting impacting the parent-child relationship and possibly leading to anxiety and depression in children. The CCE recommended that should the mother not be permitted to relocate the mother continue to access psychological intervention with a focus on the development of resilience and coping strategies and supporting her to build, develop and increase her social supports and networks given her articulated feelings and experiences related to social isolation. Conversely, the CCE recommended that the father should engage in psychological intervention to support his emotional well-being and development if the mother was permitted to relocate. The CCE also expressed concern about each parent’s capacity to be emotionally available to the child given high levels of conflict and possible resentment toward each other related to the proposed relocation. She recommended that both parents attend a parenting class, such as “Circle of Security” to improve this aspect of their parenting.
Notwithstanding these concerns, the CCE expressed the view that the child’s best interests are best served by continuing with the current living arrangements, that is, living with the mother and spending regular and frequent time with the father.
The CCE observed that X’s relationship with each parent appeared to be positive and meaningful and provided different experiences for him in each household. She said it was important that he is supported to be aware of his place in his family, to enable the development and maintenance of familial relationships and to support his emerging identity. It was apparent to the CCE that X shared a relationship with his paternal grandmother and any relocation would likely result in a significant decrease in the time he spent with her.
The CCE expressed the opinion that continuation of the current arrangements is necessary for the child to develop a meaningful relationship with both parents. She expressed the opinion that the cessation of regular time spending with the father and the paternal family may have serious consequences for the X’s development and future well-being.
The CCE recommended frequent time spending, at short intervals, increasing over time, between X and his father. She noted that children between three and five years of age are generally more able to tolerate separation from their primary attachment figure for two or three days without adverse effects. She said a child’s ability to tolerate longer separations from the primary carer commonly increases by the age of five years.
The CCE recommended that the parents share parental responsibility, that X continue to live with mother in Darwin and the mother not relocate the child’s residence away from Darwin without the agreement of the father or order of the court. She recommended that the current time schedule remain in place but increase after the child turns two years old and that the arrangements be again reviewed when the child turns five years of age.
In the event that relocation is not permitted, she recommended that the mother be permitted to travel interstate up to 4 times a year for 7 to 10 days each.
She recommended that the mother continue to engage with her GP and engage with any psychological intervention related to her diagnosis.
The CCE was cross-examined by both parties but her opinions were not significantly challenged.
I accept the observations of the CCE and, subject to the matters discussed below, her opinions.
The legislative pathway
In a case involving an issue of relocation the court is bound to follow the same legislative pathway as in other parenting cases. Relocation is not to be treated as a discrete issue in the making of parenting orders: Morgan & Miles (2007) 312 FLR 114, [72], [73], Palmer & Hammer (No.2) [2011] FamCAFC 196, [28].
The core principle to be applied is the “paramountcy principle”. The court must have regard to the best interests of the child as the paramount, but not sole, consideration: Starr & Duggan [2009] FamCAFC 115.
The objects of Part VII of the Family Law Act 1975 (“the Act”) are set out in section 60B(1). Subsection (1)(a) provides that it is an object of the Act to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;…
Section 60B(2) provides that the principles underlying the objects of the Act (except when it is or would be contrary to the child’s best interests) include:
(a)children have the right to know and be cared for by both of their parents …; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development …; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children …
Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations to be taken into account in determining what is in the child’s best interests are listed in section 60CC. Section 61DA requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child unless there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
Section 65D(1) provides that the court may make such a parenting order as it thinks proper, subject to the provisions of sections 61DA and 65DAB (concerning parenting plans).
Section 65 DAA(1), which is headed “Equal time”, provides:
… if a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, the court must:
a) consider whether the child spending equal time with each of the parents would be in the best interest of the child; and
b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide (including a provision in the order) the child spend equal time with each of the parents.
Section 65 DAA(2), which is headed “Substantial and significant time”, provides:
… if
a) a parenting order provides (or is to provide) the child’s parents are to have equal shared parental responsibility for the child, and
b) the court does not make an order (included provision in the order) for the child spend equal time with each of the parents;
the court must:
a) consider whether the child spending substantial and significant time with each of the parents would be in the best interest of the child; and
b) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
c) if it is, consider making an order to provide (including a provision in the order) the child spend substantial and significant time with each of the parents.
Section 65DAA(5) provides that in determining what is reasonably practical for the purposes of subsections (1) and (2) the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child: and
(e)such other matters as the court considers relevant.
Consideration
The competing proposals of the parties are, in summary, as follows. The mother proposes to relocate the child’s residence to Town D in Victoria in June 2022. Her proposal at trial was that the child spend time with the father on six occasions each year, with the mother visiting Darwin on three occasions and the father visiting Town D or Melbourne on the other three occasions. The mother says she would assist the father with half the travel costs for the first 12 months and thereafter agree to a variation in his child support assessment to assist with travel costs.
The father proposed that the mother and child continue to reside in Darwin and for the child to spend regular and frequent time with him, increasing to overnight time in accordance with the child’s age and stage of development. In the alternative, the father proposed that the relocation of the mother and child take place in 3½ years when the child turns five years of age.
Section 60CA of the Family Law Act (“the Act”) states:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interest of the child is the paramount consideration.
The best interests of the child are the paramount but not the only consideration. The right of an adult to freedom of movement, as the mother seeks to exercise in this case, is an important consideration and ought not be curtailed unless the best interests of the child compel it: AMS v AIF (1999) 199 CLR 160.
Section 60CC(1) of the Act provides that in determining what is in the child’s best interests the court must consider the matters in subsections (2) and (3). Subsection (2) provides that the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b). There is no risk to the child from abuse, neglect or family violence in this case.
In Sigley & Evor (2011) 44 Fam LR 439, [131] – [136], the Full Court approved of the statement of Brown J in Mazorski v Albright (2007) 37 Fam LR 518 that the phrase “meaningful relationship” means “significant”, “important” or “of consequence”.
The Full Court also approved of the statement of Kay J in Godfrey & Sanders (2007) 208 FLR 287, [33], [36] that:
a) … the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case…
b) Even if the move results in diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The Full Court also referred to observations in Champness & Hanson [2009] FLC 93-407, [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure that the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original).
The Full Court observed at [136]:
The first and very important observation we would make … is that the expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.
The competing proposals of the parties must be separately evaluated: Sayer & Ratcliffe (2012) 48 Fam LR 298, [80].
I am satisfied that mother is the child’s primary carer and he is primarily attached to her. The child is currently spending regular and frequent time with his father and the extended paternal family, particularly the paternal grandmother. Having regard to the child’s age, 19 months, and developmental stage his attachment to his father is still developing. In the context of this case the benefit to the child of a meaningful relationship with his father means the benefit of an opportunity for the child’s attachment to his father to develop. If the child is to have the benefit of a meaningful relationship with his father it is necessary that it be able to survive a protracted period of separation if it is not practicable for the mother and father to live in reasonable proximity.
I am satisfied that the optimal outcome for the child, having regard to his age and developmental stage, is one where he lives with his mother and spends time regularly and frequently with his father, and extended paternal family if that is practicable. I accept the opinion of the CCE that the cessation of the child’s relationships with his father and the paternal family may have serious adverse consequences for X’s development and future well-being.
However, to state these matters is merely the beginning of evaluating which of the proposals of the parties is in the child’s best interests and which can provide the child with the benefit of a meaningful relationship with both parents. Even if the benefit to the child of such a relationship with his father is established it must be weighed with all the other factors. The most significant of those factors is the effect on the mother if she is unable to relocate now with the child to Town D as she ardently wishes and is her right, subject to the best interests of the child.
It is not necessary that the mother demonstrate compelling reasons for her wish to relocate with the child: AMS v AIF. Nevertheless, in this case an examination of the mother’s reasons for seeking to relocate is necessary given her claims about the impracticability of her remaining in Darwin.
The mother offered a number of reasons for wishing to relocate. She said she suffers from poor mental health and consequent incapacity for employment in Darwin. She asserted that her mental health will improve in Town D, allowing her to obtain employment. She said she has a sense of calm, stability and well-being in Town D because she grew up there, along with the presence of many supportive friends. She referred to the availability of cheaper housing. She wishes to pursue a relationship with Mr P. In relation to the last, the mother says that she would seek to relocate regardless of her wish to pursue a relationship with Mr P.
The evidence of the mother’s poor mental health was limited and largely historic. It was not in question that during her relationship with Mr O she took an overdose of prescription medication and was hospitalised for a short time, apparently a day or so, in 2018. After that there is no evidence of the mother experiencing poor mental health until, as she told the CCE, she was diagnosed with Post Natal Depression, anxiety and depression in January 2021. The mother said she obtained a Mental Health Care Plan from her GP in 2021 and attended a number of sessions with a psychologist until the limit of the number of sessions permitted under the plan was reached. She did not say that she had sought a further or extended mental health care plan. She also said she was prescribed Sertraline, which the court understands is a medication used in the treatment of depression and/or anxiety. There was no medical evidence about the current state of the mother’s mental health. There was no evidence about whether her depression and anxiety is in remission or is adequately treated by her medication or otherwise. There is no evidence, apart from her own assertion, that her mental health will improve if she relocates to Town D.
Counsel for the mother, while making an adjournment application with a view to calling evidence from the mother’s GP, was asked if the GP would give evidence that the mother’s mental health would be likely to improve if she relocated to Town D. She said the GP would not give that evidence.
The mother said in her oral evidence that she was suffering from “severe depression”. There is no independent evidence that is the case. The mother did not make that claim in her affidavit or in her interview with the CCE. In my view, that claim is indicative of the mother’s sometimes tendentious and exaggerated evidence.
I am unable to easily assess, in the absence of independent evidence, the mother’s current mental health. I accept that she was diagnosed in 2021 with Post Natal Depression, depression and anxiety. I accept that she has been referred to and attended on a psychologist but is not presently receiving treatment. I accept that she has been prescribed and uses medication for treatment of depression and anxiety but there is no independent evidence of her current state of her mental health and whether, for example, her depression and anxiety is in remission or adequately managed by medication. She did not say that she had sought further treatment from a psychologist from which I infer that her condition is currently adequately managed.
The mother asserted that she was presently incapacitated for work because of her poor mental health. She said that if she returned to Town D she would look for work in the health care sector. She said she previously had a definite offer or expression of interest from a former employer or contact in the sector. She said she could also work as a tradesperson or in the hospitality sector. She gave the impression that she contemplated a return to work in the near future. When she was asked what arrangements she would make for the child’s care once she returned to work she indicated that she intended to place the child in day care for two or three days a week but she did not intend to return to work immediately, although she intended to work sometime in the future. I found the mother’s answers vague on this point and I am not satisfied the mother is incapable of work due to poor mental health or that she would return to work in Town D in the near future if she were to relocate there.
The mother grew up in Town D. Her father, with whom she lived, died some years ago. She is estranged from her mother and sister who live in Tasmania. Her brother and his family live in City AF. I accept the mother has friends that resident in Town D. She mentioned Ms U, who also provided an affidavit. I accept that the mother and Ms U are close friends and that Ms U is supportive of her. Ms U is willing to rent a house to the mother for $280 a week. There was nothing to indicate this was anything other than a market rent. Ms U also said her children and X are like “cousins” and call the mother “auntie”. The mother said she considers her friends in Town D “as my family”. While I accept that the mother and Ms U, in particular, are close and have a supportive relationship I do not accept the mother’s assertion that her friends in Town D are equivalent to an extended family. I do not accept that relationships between the child and the children of the mother’s friends are relationships of cousins. The significance of a relationship between a child and his or her extended paternal or maternal family is manifold but an important characteristic is that a child may derive a sense of strengthened identity and emotional support from a relationship with his or her extended family. This is recognised in the Act which expressly requires consideration of the nature of the relationship of the child with persons other than parents, including grandparents or other relatives.
The mother described Mr P’s mother, Ms AG, as an “old friend” who gave her “support” but did not elaborate. Apart from Mr P, the only friend in Victoria specifically mentioned by the mother was Ms V, who lives in Suburb W, which is about 2 hours by road from Town D. The mother described her as her second “best friend” but there was no elaboration.
The mother said that she would be financially better off in Town D. I have made some observations about the mother’s evidence about employment in Town D. I am satisfied that she would at some stage in the future obtain employment in Town D. On the other hand, she was in secure employment in Darwin for some years and there is no reason to doubt that such employment would be available to her again. I am not satisfied that Town D provides any advantage for the mother as far as employment is concerned. The mother also asserted that rents were considerably cheaper in Town D than Darwin. The mother mentioned that she and Mr P plan to rent a house, possibly from Ms U, and the rent would be in the region of $280 a week. While I accept that rent is cheaper than for an equivalent property in Darwin the father is presently subject to an order that he pay the mother $250 a week to assist with her rent and while that order continues I am satisfied that the financial aspects are about evenly balanced.
The mother wishes to pursue a relationship with Mr P. Mr P did not give evidence but he did attend an interview with the CCE. Mr P is 26 years old. He is employed as a tradesman in Town D. Mr P told the CCE that he lived with his parents. He has a shared care arrangement with the mother of his two children, aged six and three years, from a previous relationship. The mother said that she and Mr P began a relationship in 2020. The relationship has been, as the mother described it, “long-distance” but the mother has visited Town D on a number of occasions and, apparently, Mr P has visited Darwin. Mr P and the mother have not lived together apart from residing in a share house with friends for a short period. The mother said she and Mr P have discussed having a baby. I am not able to make any assessment of the prospects or the stability of the relationship between the mother and Mr P or its likely effect on the child. There was minimal evidence about the relationship between X and Mr P. I am unable to make any assessment of the nature of the child’s relationship with Mr P or, should Mr P stand in the position of a step-parent to X, of Mr P’s capacity to provide for the needs of the child, including his emotional and intellectual needs.
I accept that the mother strongly wishes to relocate to Town D. Apart from her relationship with Mr P it appears to me that there is no concrete advantage to the mother in residing in Town D rather than Darwin, although I accept that it is not necessary that she demonstrate such an advantage. I accept that the mother has friends in Town D but I reject her claim that they are in the same category as extended family or that the child’s relationship with those friends is or is likely to be of the same quality as a relationship or relationships with his extended family.
I am not satisfied that relocation is necessary to improve or prevent a deterioration in her mental health. I am not satisfied there is any financial benefit to the mother from either improved prospects of employment or cheaper rents in relocating to Town D.
I accept that the mother would be happier in Town D because she would be free to pursue a relationship with Mr P. Unless she is free to relocate to Town D, I consider it likely that the mother will feel resentful and unhappy because of what she is likely to consider a thwarted relationship with Mr P. The mother expressed to the CCE feelings of isolation and said she had difficulty coping in Darwin. Although I had the impression that the mother downplayed the extent or significance of her social or friendship networks in Darwin there is a risk that if the mother is unable to relocate her unhappiness will have a deleterious effect on the child’s welfare. I consider this is a real but moderate risk.
In the family report the CCE recorded the mother as proposing that the child spend time with the father four times a year for up to 10 days on each occasion and that would be sufficient to support the child’s relationship with his father. The CCE in her report expressed doubt about the practicability of the mother’s proposal having regard to the costs and time involved.
In her trial affidavit the mother proposed that the child spend time with the father on six occasions during the year, constituted by her travelling to Darwin on three occasions and the father travelling to spend time with the child in Town D and/or Melbourne on another three occasions. The mother said she would assist with half of the travel costs for the first 12 months and then agree to an unspecified variation of child support payments to lessen the burden on the father of the expense of travel.
In her oral evidence the CCE elaborated on her concerns about the mother’s proposal. She recommended that there should be frequent, short periods of time spending between the child and the father to preserve the child’s relationship with his father. She said the child’s time with the father should be frequent - she gave the example of “daily” - rather than with gaps of several months. She said that given the time the child currently spends with the father and his relationship with the father, the mother’s proposal may result in the disturbance of the relationship between the child and his father. She said that at the child’s current age long absences may be confusing and cause distress to the child. She said his ability to remember his father may be affected by long periods of absence. She believed the child’s relocation, given he was 16 months old (now 19 months), may threaten his relationship with his father and, therefore, his well-being both now and in the long-term. She thought it would be likely to be detrimental to the child.
The CCE was asked by counsel for the mother at what age the child would be better able to withstand longer periods of time away from the father without threatening the child’s attachment or, as she put it, at what age would be “optimal” for the child to relocate to Town D. The CCE said that she believed the child’s relocation would be more appropriate at an age when he has the cognitive and language skills to understand and maintain a long-distance relationship via Skype or telephone and to be able to support school holiday contacts and overnight periods. She said that from the age of two or 2 ½ years children are more independent and better able to tolerate longer separations from their primary carer, for periods of two or three days. She said that children between the ages of five and eight years would be more likely to tolerate longer separations. She said, however, this depends on:
(a)the attachment between the child and the non-residence parent;
(b)that parent’s competence;
(c)the child’s development in terms of their ability to self-soothe and to maintain a representation of the other parent;
(d)a secure attachment with the non-residence parent, which is likely to have formed if there is frequent and consistent contact leading up to that point in time.
Asked to elaborate on what she meant by “maintain a representation of the other parent” the CCE said it means the child being able to understand where his mother is and how long he may be with the non-residence parent.
I accept the CCE’s opinions. I am satisfied that the mother’s relocation to Town D with the child at the current time is likely to undermine or interfere with the child’s development of a secure and beneficial relationship with the father unless it were reasonably practicable for the father to relocate to within a reasonable distance of Town D at the same time.
Having regard to the foregoing matters, in applying s 60CC (2) I am satisfied that it is of benefit to the child to have a meaningful relationship with both parents. However, the mother’s relocation is likely to deprive the child of the benefit of such a relationship with his father unless it is practicable for the father to relocate. The issue of practicability is considered further below.
Turning to the matters in s 60CC (3):
(a)In relation to any views expressed by the child, the child is too young to express a view.
(b)In relation to the nature of the relationship of the child with each of the child’s parents and any other persons, including a grandparent or other relative of the child, the child is in the primary care of the mother and spends time, but not including overnight time, with the father. The child has a close and developing relationship with the father and with the paternal grandparents, particularly the paternal grandmother.
(c)In relation to the extent to which each of the child’s parents has taken, or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child is, to spend time and to communicate with the child, both parents seek to participate in making decisions about the child and the father has been conscientious in his approach to spending time with and communicating with the child.
(ca) In relation to the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation is to maintain the child, the father is subject to a child support assessment and there is no evidence that he has not complied with that assessment. Further, the father is subject to an order of the court to pay the mother $250 a week to assist her with payment of rent so that she may practicably remain in Darwin in order to foster the child’s relationship with the father. He has complied with that order.
(d)In relation to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents, the mother proposes a significant change in the child circumstances, the effect of which has been discussed above.
(e)In relation to the practical difficulty and expensive the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis, as discussed above, the mother’s proposal will substantially affect the child’s right to maintain personal relations and direct contact with his father on a regular basis unless the father is able to relocate as well.
(f)In relation to the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs, the agreed facts between the parties include that there are currently no significant risk factors concerning either parent’s capacity to care for the child and the child is well cared for and loved by both parents. This is consistent with my assessment of the parties. I am satisfied the mother is a good and conscientious mother and the father is a devoted and conscientious father.
(g)In relation to the maturity, sex, lifestyle and background of the child and of either of the child’s parents, there are no relevant matters.
(h)In relation to if the child is an Aboriginal or Torres Strait Islander child, the child is not an Aboriginal or Torres Strait Islander child.
(i)In relation to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, see (f) above.
(j)In relation to any family violence involving the child or a member of the child’s family, the parties made no relevant allegations.
(k)Family violence orders are not applicable in this case.
(l)In relation to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, the court will attempt to make such an order.
(m)In relation to any other relevant factors circumstance, there are no other relevant factual circumstances.
The parties have agreed that it is in the child’s best interests that there be an order for equal shared parental responsibility and, accordingly, such an order will be made. It is thus necessary to consider the application of s 65DAA and the question or equal or substantial and significant time. Neither party sought an order for equal time at this stage but the father sought an order for substantial and significant time and equal time when the child turns five years of age. The mother proposed not very different orders but with the difference that the father relocate and the child spend such time with him in Victoria. The mother asserted, in substance, that such time was reasonably practicable only if she were permitted to relocate the child’s residence to Town D. I have referred to the relevant factors above.
I accept the father’s evidence that he has genuinely sought employment in his profession but no such employment is available in Town D or the surrounding region. I accept that employment is likely to be available in Melbourne for the father but this is about 200 km and 2 ½ hours by road from Town D. I accept that it would be possible for the father to travel from Melbourne to Town D every weekend to spend some time with the child but I am satisfied this would not be sustainable in the long-term. Under such an arrangement I find the most frequent time it would be reasonably practicable for the child to spend with the father would be some hours or perhaps an overnight once every two weeks. Further, and for the reasons given by the CCE I am satisfied that such an arrangement, at the child’s current age and until the age of five years, would not be in the child’s best interests because it would be detrimental to the child’s prospect of developing a secure attachment and a meaningful relationship with his father.
I am satisfied that it is reasonably practicable for the mother to continue to reside in Darwin until the child turns five years of age. The factors I take into account are discussed above. In summary, I do not accept that the mother’s mental health is such that she cannot reasonably live in Darwin until the child turns five years old or that she is currently suffers from mental ill health, or is incapacitated for employment by reason of mental ill health, which can only be addressed by her relocation to Town D.
I do not accept her claim that she cannot afford housing in Darwin. The mother attached to her trial affidavit some evidence of the type of housing available in Darwin for a rent of $300 a week with a yard for her dog. The mother did not say what rent she can afford but implies that she can afford $300 a week but that is not sufficient to rent appropriate housing including a yard for her dog. The mother’s evidence assumed that the father is unable to continue to pay the $250 a week he currently pays towards her rent in addition to his child support assessment of $794 a month. If the father continues to pay $250 a week towards the mother’s rent, as I am satisfied he can, the mother did not suggest she could not afford appropriate housing. On that basis, I am satisfied that appropriate housing is available to the mother.
The father’s proposal is for a continuation of current arrangements, with time increasing, including overnight time, in accordance with the child’s age and developmental stage and, according to his alternative proposal, that the mother be permitted to relocate with the child to Town D when the child turns five years of age.
I am satisfied that the father’s alternative proposal is in the best interests of the child and is reasonably practicable. I accept the mother will be unhappy and there is a risk that her unhappiness will affect the child detrimentally. However, I am satisfied it is a moderate risk and less serious than the risk to the child’s relationship with the father and the child’s long-term development than from the mother’s proposal to relocate immediately.
Although it is a secondary factor, I consider that the child’s relationship with the paternal grandparents is also important to the child’s long-term development and to the child’s best interests. I accept that this relationship is most likely to be fostered if the child remains in Darwin until he is at least five years of age.
For the purposes of s 65DAA (2) I am satisfied that it is in the best interests of the child to spend substantial and significant time with the father and that doing so is reasonably practicable only if the mother and child remain in Darwin until the child turns five years of age.
For the purposes of s 65DAA (5)(a), under the mother’s proposal the parents would live about 3,000 km from each other. For the purposes of s 65DAA (5)(b) and (c), having regard in particular to the agreed facts, I am satisfied that the parents have the capacity to implement an arrangement for substantial and significant time and the capacity to communicate with each other to resolve any difficulties that might arise in implementing such an arrangement. For the purposes of s 65DAA (5)(d) I am satisfied that such an arrangement, until the child is at least 5 years of age, is the only one likely to permit the child to develop a secure attachment, through regular and frequent time spending, with his father.
The specific time spending proposals of the parties are as follows. The mother said, if she were obliged to remain in Darwin, that the child is presently too young to spend overnight time with the father and his accommodation arrangements, sharing a house with two other men, are not appropriate for overnight time. She proposed, until the child turns two years of age, that the child spend time with the father each Monday and Wednesday from 1:30 PM to 4:30 PM and each alternate weekend on both Saturday and Sunday from 9 AM to 2 PM each day. She proposed that, from when the child turns two years of age in September 2022, the alternate weekend time extended from 9 AM to 5 PM each day. She proposed that, from April 2023, when the child will be 2 ½ years of age, the time on the alternate weekend include an overnight running from 2 PM Saturday to 5 PM Sunday.
She also proposed time on the child on the father’s birthdays, Father’s Day and Easter Friday. She made no proposal about Christmas.
She proposed that the father continue to pay $250 a week towards her rent until such time as she obtains full employment. She also proposed that she be permitted to travel to Victoria for up to 10 days on four occasions each year with the father to pay for the mother’s travel with the child to Town D on two occasions each year. I am not satisfied there is a proper basis to order that the father pay for the mother’s travel to Town D.
She proposed that the father pay for the child to attend child-care for three days a week, with the specific institution to be agreed between the parties but failing agreement at “Family Day Care in City J”. The father has proposed and offered to secure a child-place at the child-care centre associated with his family, presumably at a reduced rate, at Suburb AC, a suburb not far from City J. In his proposed final orders, nevertheless, he offers to pay for day-care or kindergarten three days a week without any geographic limitation. There was little or no evidence about the practicalities of the parties’ respective proposals and I do not consider I have enough information to make an appropriate order. If the father and the mother are committed to having the child attend childcare or kindergarten then I think they are in the best position to reach an agreement about appropriate arrangements. If the mother returns to full-time employment the father will be required to pay for half of the associated child care fees but will not be required to pay $250 towards her rent.
The father proposes that the child spend time with him on special days and as follows:
(a)from now until he is two years old each Monday and Wednesday from 2:30 PM to 5:30 PM and on three weekends out of four from 12 PM Saturday to 1 PM Sunday;
(b)thereafter when the child turns three years old, the time be extended from Saturday 12 PM until Monday 8:30 AM;
(c)thereafter when the child turns four years old, that time be extended from Friday 5 PM to Monday 8:30 AM on three weekends out of four and from 5 PM Thursday to 8:30 AM Friday;
(d)and when the child turns five years old, week about and half the school holidays.
The mother proposes a “review” when the child reaches two years of age. The orders I propose to make will be final orders but I consider it appropriate for the parties to discuss any necessary changes once the child begins overnight time.
I propose to make time spending orders somewhere between the proposals of each of the parties.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 27 April 2022
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