Dewey & Metcalf
[2009] FMCAfam 670
•8 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEWEY & METCALF | [2009] FMCAfam 670 |
| FAMILY LAW – Parenting – child aged 9 – mother proposing that the child continue to live with her in Darwin – mother and child resident in Brisbane prior to June 2008 – father proposing that the child live with him in Brisbane – father proposing that if the mother also returns to Brisbane that the child live in a week about arrangement. |
| Family Law Act 1975, ss.60CC, 61DA, 63C, 65DAA, 65DAB |
| JG & BG (1994) FLC 92-515 McCall & Clark (2009) FamCAFC 92 |
| Applicant: | MS DEWEY |
| Respondent: | MR METCALF |
| File Number: | DNC 497 of 2008 |
| Judgment of: | Terry FM |
| Hearing dates: | 16 & 17 April 2009 |
| Date of Last Submission: | 17 April 2009 |
| Delivered at: | Darwin |
| Delivered on: | 8 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Truman |
| Solicitors for the Applicant: | Marris & Co |
| Counsel for the Respondent: | Mr Page SC |
| Solicitors for the Respondent: | Beven Bowe & Associates |
ORDERS
That the mother and father have equal shared parental responsibility for the child of the marriage [X] born in 1999.
That the child live with the mother.
That the child spend time with the father as agreed between the parties and failing agreement:-
(a)for the second half of the Northern Territory mid-year school holidays in 2009 and each alternate year thereafter and the first half of the Northern Territory June/July school holidays in 2010 and each alternate year thereafter;
(b)for the whole of the Northern Territory school holidays at the conclusion of terms 1 and 3 each year;
(c)for the second half of the Northern Territory Christmas school holidays which commence in 2009 and each alternate year thereafter and the first half of the Northern Territory Christmas school holidays which commence in 2010 and each alternate year thereafter;
(d)at such alternate or additional times as may be agreed between the parties.
That for the purposes of Order (3) the father book and pay the child’s air travel from Darwin to Brisbane and the mother book and pay for the child’s air travel from Brisbane to Darwin.
That when the child is with the mother the child have telephone communication (or webcam communication if the equipment is available) with the father as agreed between the parties and failing agreement at 6.30pm (Northern Territory time) each Wednesday and Sunday and on Father’s Day, the father’s birthday and the child’s birthday with the father to place the call and the mother to make the child available to receive the call.
That when the child is with the father the child have telephone communication (or webcam communication if the equipment is available) with the mother as agreed between the parties and failing agreement at 6.30pm (Queensland time) each Wednesday and Sunday with the mother to place the call and the father to make the child available to receive the call.
That the parent with whom the child is not spending time on Christmas Day shall have telephone communication with the child at 10.00am on that day with that parent to place the call and the other parent to make the child available to receive the call.
That each parent shall ensure that the child is given privacy during telephone communication with the other parent.
That neither parent shall denigrate the other parent to or in the presence of the child.
That each parent shall:-
(a)keep the other informed of the names and addresses of any medical or other health practitioner who treats the child and authorise those practitioners to provide to each parent information required by each of them concerning the child;
(b)promptly inform the other parent if the child while in their care is involved in a serious accident or diagnosed as suffering from a serious medical condition and each parent shall be at liberty to visit the child in hospital.
That each parent shall keep the other informed of their residential and postal addresses and their landline and mobile telephone numbers and notify the other parent of any change to these details within forty eight hours of the change.
That if either party intends to travel away from their usual residential address with the child for a holiday, they shall advise the other party prior to departure of the dates of departure and return and the address and telephone number of the place where the child will be residing during the holiday.
That the mother shall if the school requires it, authorise the school attended by the child to provide to the father information concerning the child’s progress and other school or related activities and to supply the father at the expense of the father with school reports, photographs, certificates and awards relating to the child.
That each parent shall within 14 days enrol in a Parenting after Separation course and after enrolling diligently attend all sessions required to complete the course.
IT IS NOTED that publication of this judgment under the pseudonym Dewey & Metcalf is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 497 of 2008
| MS DEWEY |
Applicant
And
| MR METCALF |
Respondent
REASONS FOR JUDGMENT
Introduction
Prior to June 2008 Ms Dewey and Mr Metcalf lived in Brisbane with their only son, [X].
In June 2008 the father consented to the mother taking [X] to Darwin for a holiday. The mother did not return to Brisbane at the end of the holiday. Save for a period of about ten days in October 2008 she and [X] have lived in Darwin ever since.
In November 2008 the mother filed an application for parenting orders. She sought orders that [X] live with her, in Darwin, and spend school holiday time with the father in Brisbane. At the final hearing these were still the orders sought by the mother.
In December 2008 the father filed a response. He sought orders that [X] live with him, in Brisbane. He proposed that [X] spend school holiday time with the mother in Darwin or, if the mother returned to Brisbane, that [X] should spend time with the mother as agreed and failing agreement on alternate weekends.
At the final hearing the father still sought an order that [X] live with him in Brisbane. However he proposed in the alternative that if the mother returned to Brisbane [X] live in a week about arrangement with himself and the mother.
The evidence
The mother relied on the following documents:-
a)her affidavit filed on 15 January 2009;
b)the affidavit of the maternal grandmother Ms C filed on 15 January 2009.
The orders sought by the mother were contained in her outline of case document.
The father relied on the following documents:-
a)his affidavit filed on 3 April 2009;
b)the paragraphs of his 5 December 2008 affidavit which were referred to in his 3 April 2009 affidavit;
c)the affidavit of Ms S filed 3 April 2009;
d)the affidavit of Mr Q filed 3 April 2009;
e)the affidavit of Ms B filed 3 April 2009;
f)the affidavit of Ms O filed 3 April 2009;
g)the affidavit of Mr W filed 3 April 2009;
h)the affidavit of Mr M filed 3 April 2009;
i)the affidavit of Ms M filed 3 April 2009;
j)the affidavit of Mr J filed 3 April 2009; and
k)the affidavit of Ms R filed 3 April 2009.
The orders sought by the father were contained in a minute of order handed up at the hearing.
A Family Report was prepared by Mr Anthony Vidot, a psychologist and Family Consultant. He interviewed the mother and [X] in person in January 2009 and interviewed the father by telephone in February 2009. Mr Vidot conducted an observation of [X] and the father on
15 April 2009 and prepared an addendum to the report.The mother, father and Mr Vidot were cross-examined. None of the other witnesses were required for cross-examination.
Both the mother and father were insufficiently discriminating about the material which they included in affidavits.
The evidence the mother gave about [X] not being invited (on her case) to the paternal uncle’s wedding in 2007, the father complaining if she washed the towels in hot water, or the father preventing [X] from choosing red or purple boots when he was three years old, was irrelevant and unhelpful, and these are only some examples of evidence of this kind. The mother’s lack of discrimination in presenting evidence detracted from rather than enhanced her case.
Regrettably the father did not let any of the irrelevant evidence pass. He not only answered it himself but two of his witnesses dealt at length with the allegation about the wedding invitation.
The father made allegations about the maternal grandfather and the maternal uncles which were as the mother’s counsel submitted, simply “cheap shots.” Making these allegations did not help the father’s case and no doubt did nothing to improve the relationship between the parties.
Background
The mother and father met and commenced going out together in 1986, when they were about 16 and 18 respectively. They married in 1993, and their only child [X] was born in 1999. They lived in Brisbane throughout their relationship.
There was abundant evidence that the relationship was not a happy one. The father commented during cross-examination that he and the mother were “poorly suited.” The maternal grandmother described them as an “ill matched couple”.[1] The affidavits of the father’s witnesses provided ample evidence on the same theme.
[1] Affidavit of Ms C filed 15 January 2009.
The mother and father separated on more than one occasion prior to their final separation. In August 2005 during one such separation consent orders were made finalising parenting and property matters between them. Later in 2005 however they reconciled.
They finally separated in 2008. It was the mother’s case that separation occurred in late April 2008 and that she thereafter remained living in the former matrimonial home because she had “nowhere to go and no money.”[2] The father did not concede that separation occurred in April 2008 and said that he told the mother in June 2008 that he wanted a separation.
[2] Mother’s affidavit filed 15 January 2009 paragraph 33 cf father’s affidavit filed on 3 April 2009 paragraph 31
The father consented to the mother taking [X] to Darwin for a holiday of three weeks duration during the 2008 mid year school holidays. The mother and [X] had visited Darwin on many previous occasions. The mother’s parents have lived in Darwin since 2003 and the mother’s three siblings and their children all live in Darwin.
Events after June 2008
In July 2008 toward the end of the holiday, the mother informed the father that she wanted to remain in Darwin with [X] for about three months to “try and sort her life out.” The father was angry and upset. I accept that he told the mother that he wanted [X] returned to Brisbane. I accept that he said to the mother “Fuck you bitch, it’s on.”[3]
[3] Mother’s affidavit filed 15 January 2009 paragraph 38
The father sought legal advice, but he did not make any application to the court or any demand through a lawyer for [X]’s return. In August 2008 the maternal grandfather intervened, and brokered an agreement between the parties. The maternal grandfather prepared a document for the parties signature. The father had input into the contents of the document, and suggested changes.
The document which the maternal grandfather prepared was signed by both parties and dated 2 September 2008. It provided for [X] to live with the mother in Darwin until he completed Grade 7. It provided that the mother was then to return to Queensland with [X] and that [X] was thereafter to live in a week about arrangement with the parents. It provided that if the mother chose not to return to Brisbane, [X] would live with the father in Queensland while he completed his secondary education.
The document was on its face a parenting plan as defined in s.63C (1) of the Family Law Act.
Section 63C(1A) of the Family Law Act provides that:-
(1A) An agreement is not a parenting plan for the purposes of this Act unless it is made free from any threat, duress or coercion.
The father claimed that he signed the agreement under duress. However the only matter to which he alluded in support of this claim was that he felt pressured to sign the agreement in order to ensure that [X] was sent to Brisbane to spend time with him during the school holidays.
I do not accept that the father was unduly pressured to sign the agreement. Although the father said that he feared that if he did not sign he would not be able to see [X] for the school holidays he did not suggest that the mother had threatened him with this possibility. The father was not a stranger to the family law system. In 2005 he and the mother finalised their parenting and property matters with consent orders. The father received legal advice on that occasion and received legal advice again before signing the agreement.[4] In cross-examination he said that in signing the agreement he “made the wrong choice on poor information.”
[4] Father’s affidavit filed 3 April 2009 paragraph
The father’s counsel conceded that there was no evidence that the father had signed the parenting plan as a result of being subjected to duress in the legal sense.
In September 2008 [X] went to Brisbane to spend time with the father for a period which encompassed his birthday on 23 September and the school holidays.
The father sent [X] back to the mother in Darwin on or about 5 October 2008.
On 18 October 2008 the mother returned to Brisbane with [X], with the intention of remaining there. She said among other things that she “felt guilty about [X] not being able to spend more time with [the father].”[5] She further said that she was unhappy with the terms of the parenting plan and thought that if she returned to live in Brisbane it would make the parenting plan null and void.
[5] Mother’s affidavit filed 15 January 2009 paragraph 42
The mother’s evidence about why she chose to return to Brisbane in October 2008 was unconvincing. I can only speculate about whether, when the mother returned to Brisbane, she hoped for a reconciliation with the father. The mother and father had separated and reconciled on a number of previous occasions. If that was the mother’s hope it did not last long. Soon after the mother returned, she received confirmation that the father was in a new relationship. She was distressed. Her mother assisted her to return to Darwin with [X] on 28 October 2008.
On 12 November 2008 the mother filed an application for parenting orders. On 5 December 2008 the father filed a response. On 9 December 2008 the matter came before me for consideration and an interim hearing was conducted.
The Northern Territory Christmas school holidays were about to commence, and I was able to list the matter for a final hearing on 22 & 23 January 2009. I therefore did not make any orders about where [X] should live, but made orders that [X] spend half the Christmas school holidays with each parent.
[X] spent the first half of the school holidays with the father in Brisbane and returned to Darwin on 5 January 2009.
Unfortunately the hearing did not take place on 22 & 23 January 2009 because after [X]’s return to Darwin the father was seriously injured in a motorbike accident. As a result of his injuries he could not travel. The matter was adjourned to 16 & 17 April 2009 for final hearing. Neither party sought any interim orders for the period between 22 January 2009 and the hearing in April 2009.
The relevance of the parenting plan
Section 65DAB of the Family Law Act provides that:
“When making a parenting order in relation to a child, the court is to have regard to the terms of the most recent parenting plan (if any) that has been entered into between the child's parents (to the extent to which that plan relates to the child) if doing so would be in the best interests of the child.”
Neither party now wishes orders to be made in terms of the parenting plan. It does however form part of the background against which the mother’s continued residence in Darwin with [X] since June 2008 must be viewed.
The father consented to the mother bringing [X] to Darwin for a holiday in June 2008. He did not consent to her remaining in Darwin after the end of the holiday, nor did he consent to her enrolling [X] in school in Darwin. I accept that he was angry and upset when the mother told him that she wanted to remain in Darwin for three months and that he demanded that [X] return to Brisbane.
The mother acted high-handedly in remaining in Darwin after the end of the holiday. She acted without due regard for the father’s right to be consulted before a major decision was made about [X]. However the father’s subsequent behaviour in signing the parenting plan, in voluntarily sending [X] back to Darwin in October 2008 and in not communicating to the mother any dissatisfaction with the parenting plan, conveyed acquiescence to the mother and [X] remaining in Darwin.
The mother talked and behaved inconsistently during the second half of 2008. In July 2008 she told the father that she wanted to stay in Darwin for 3 months. On 2 September 2008 she signed the parenting plan, which provided for her to remain in Darwin with [X] for 3½ years. Two and a half months later she returned to Brisbane with the intention of remaining there permanently. Ten days later she was back in Darwin.
I accept that at least by the time the mother filed her application in November 2008 she was firm in her resolve to remain in Darwin permanently with [X] if she could. I accept that the mother genuinely believes that it is in [X]’s best interests to live with her in Darwin.
I accept that at least by the time he filed his response in December 2008 the father was firm in his resolve to secure [X]’s return to Brisbane if he could. I accept that he genuinely believes that it is in [X]’s best interests to live in Brisbane.
The mother’s current circumstances
The mother lives with [X] in a self-contained bungalow in the grounds of her parents’ home in [M], in the northern suburbs of Darwin. The mother intends to look for her own premises if [X] remains with her in Darwin.
At the time of the hearing the mother was engaged in home duties.
[X] attends [M] School. He is making reasonable progress. The father’s claim that [X]’s school report from [M] demonstrated that he was not achieving satisfactory test results when compared with his school report from [K] School was not borne out by an examination of the documents.
The maternal grandmother works from home. She is on hand to supervise [X] if the mother is unable to do so.
The mother was adamant that she would not return to Brisbane, even if the court ordered that [X] return.
I do not consider that the mother’s insistence that she would not return to Brisbane was a stunt or an attempt to force the court’s hand. However, the mother has a strong attachment to her son and to her parenting role. I am not one hundred percent convinced that the mother would remain in Darwin if faced with a choice between living in Darwin without [X] and returning to Brisbane with [X].
It was the mother’s case that she would be unable to cope if she returned to Brisbane. She said that she “returned to Brisbane in October last year thinking that [she] could cope and that [she] could not.”[6]Certainly upon the mother’s return to Darwin on 28 October 2008 the maternal grandmother was sufficiently concerned about her to take her to a doctor who prescribed anti-depressants. The mother was also referred to a psychologist, whom she saw once.
[6] Mother’s affidavit filed 15 January 2009 paragraph 62
In his affidavit the father responded to the mother’s description of her condition in October 2008 by saying “I confirm Ms Dewey’s fragile emotional and mental state.”[7]
[7] Father’s affidavit filed 3 April 2009 paragraph 69
I accept that the mother was distressed in October 2008 after she discovered that the father had repartnered with her friend. However the breakdown of a marriage, even when compounded by the simultaneous loss of accommodation and employment and the other party re-partnering, is a distress which large numbers of people in the community are required to, and do, deal with. The mother did not give any evidence of being a person of particular mental fragility generally.
The mother did not provide any medical evidence from a psychologist or a doctor about her current state of mental health.
There can be no doubt that the mother would miss the frequent face-to-face interaction with her family if she returned to Brisbane. She would be unable to call on their assistance to care for [X]. If she returned to Brisbane she would be required to find accommodation and employment.
I accept that the mother does not want to return to Brisbane. If she felt compelled to return she would be unhappy and perhaps resentful. Whether she would in the end make the best of things and cope well enough or whether she would find it impossible to adjust is something I am unable to predict.
However just as I cannot be sure that the mother would remain in Darwin without [X], I also cannot be sure that the mother would return to Brisbane if I made an order that required [X]’s return to Brisbane.
The father’s current circumstances
The father lives in the former matrimonial home in the Brisbane suburb of [K]. This was [X]’s home for some years prior to separation and it provides a good standard of accommodation.
The father operates his own [omitted] business. At the time of the hearing he was well on the way to recovery from the injuries he sustained in January 2009.
At the time of the interim hearing in December 2008 the father was in a relationship with Ms H. This was still the case when Mr Vidot interviewed the father by telephone on 19 February 2009. At the hearing on 16 April 2009 however the father said that he and Ms H were no longer in a relationship, although he said that Ms H continued to work for him and that he was assisting Ms H with home renovations.
If [X] lived with the father, he would be re-enrolled at [K] School, which would provide him with a good standard of education. The father has a strong and supportive network of family and friends who could assist him with before or after school care if required.
It was the father’s case that he would not consider relocating to Darwin, even if the outcome would otherwise be that he only saw [X] during school holidays.
The father said that he would not be able to get work in Darwin. I do not accept this. However the father’s refusal to consider relocating to Darwin is completely understandable. He owns a home in Brisbane, and he operates his own business. His family and friends are predominantly in Brisbane or the Brisbane area. He has no friends or family in Darwin and dislikes Darwin.
I accept that the father would not consider relocating. I do not criticise him for that decision.
[X]’s best interests
In determining appropriate parenting orders for [X], I am required to treat [X]’s best interests as the paramount consideration.
Sections 60CC(2) (3) & (4) of the Family Law Act set out the matters to which I must have regard in determining [X]’s best interests.
The primary considerations in s.60CC(2) are as follows:
“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.”
In Mazorski & Albright[8] Brown J considered the meaning of the phrase “meaningful relationship.” She said as follows at paragraph 26 of her judgment:
“… I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[8] Mazorski & Albright (2007) 37 Fam LR 518 quoted with approval in McCall & Clark (2009) FamCAFC92
In Godfrey & Sanders[9] Kay J. was dealing with an appeal from a decision of a Federal Magistrate. He said that:
“It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[9] Godfrey & Sanders (2007) FamCA 102
Even though separated by distance from his father, [X] has a relationship with his father which is “important significant and valuable to him.” [X] also has a meaningful relationship with his mother.
[X] is at an age where he can communicate well by telephone and electronic means and where significant relationships can survive even if face-to-face contact is infrequent. Provided that the parents each comply with court orders and provided that neither parent undermines [X]’s attachment to the other parent, [X] should continue to have a meaningful relationship with each of his parents even if he lives in a different state from one of them.
While [X] will still have a meaningful relationship with each of his parents however, his relationship with the parent with whom he does not live will be different. I will consider this issue in more detail when considering the likely effect of any change in the child’s circumstances.
As to the second primary consideration, the mother admitted that on one occasion in the past she slapped [X]’s face. Such an action is not lawful chastisement and is abuse and also family violence as defined in the Family Law Act. The mother said that this was a one-off incident. The father did not suggest that he was concerned about [X] being abused by the mother in the future. I do not consider that [X] is likely to be subjected to or exposed to abuse neglect or family violence in the care of the mother in the future.
For reasons to be given later in this judgment, I am satisfied that the father committed some acts of family violence during the marriage. I do not consider however that [X] is likely to be subjected to or exposed to abuse, neglect or family violence in the care of the father in the future.
I must consider any views expressed by the child, and any factors (such as the child’s maturity and level of understanding) that the court thinks is relevant to the weight it should give to the child’s views.
The mother said that on occasions in 2008 [X] expressed fear that his father might take him back to Brisbane. I would not be prepared to treat this as evidence that [X] had a preference about parenting arrangements.
The father admitted that he had questioned [X] about where he wanted to live. During cross-examination the father said “I’ve asked him whether he wants to [come back to Brisbane]. He said ‘I don’t want to say.’ I said ‘That’s fine.”
Mr Vidot considered the matter in the Family Report. He first said that:
“[X] had a strong preference for his parents to be reconciled, but he acknowledged that this was not going to eventuate.”[10]
[10] Family Report paragraph 20.
Mr Vidot then said that:
“[[X]’s] expectation was to remain living in Darwin with his mother. His thinking around this appeared to arise from his strong empathy for his mother and what he described as being scared of his father at times.”[11]
[11] Family Report paragraph 21
Mr Vidot also went on to say however that:
“It was all right for him to stay in Darwin, he believed, even though he was not at all sure how he felt about the prospect of not seeing his father more often.”[12]
[12] Family Report paragraph 21
When Mr Vidot saw [X] with the father in April 2009, [X] showed no sign of being scared of his father, whatever his feelings may have been in the past when exposed to parental conflict.
[X] having an “expectation” of remaining in Darwin is not the same as [X] having a positive preference for living in Darwin. I do not consider that there is any evidence of [X] having a firm view favouring one of the arrangements proposed for his future over any other.
I must consider the nature of the relationship of the child with:
a)each of the child’s parents; and
b)other persons (including grandparents or other relatives of the child).
Although Mr Vidot said that he observed [X] with the mother he did not provide any detail about that observation. Mr Vidot said that [X] demonstrated a “strong empathy” for his mother. This conclusion would appear to be based on the things [X] said to Mr Vidot about his experiences in the home prior to separation and his preference that his mother not be upset.
The father did not raise any concerns about [X]’s relationship with the mother. I accept that [X] has a strong relationship with his mother.
Mr Vidot observed [X] with his father on 15 April 2009 and said as follows:
“From the observation it was clear that [X] has a strong relationship with his father. He displayed no signs of wariness, cautiousness, sadness or being scared around his father. He appeared pleased to be spending time with him after a few months of not doing so. [X] was attentive to his father, helping him with his crutches and chair, later offering to get a drink for him.”[13]
[13] Addendum to Family Report paragraph 1
The mother said during cross-examination that [X] loved his father. I accept that [X] has a strong relationship with his father.
In his report of January 2009 Mr Vidot said that:
“[X] demonstrated convincingly to me that he had a stronger and warmer attachment to his mother than his father.”[14]
[14] Family Report paragraph 8
This conclusion would appear to be logically based on the following evidence in the Family Report:
“[[X]] aligned himself strongly with his mother’s position in relation to these incidents [the incidents of the father displaying anger and aggression] perhaps because he sensed she was almost as powerless to do anything about them as he was. There had been dissatisfaction from his mother over his father’s changes to telephone contact; [X] reported his preference for his mother not to be upset by his father over such changes.
[[X]] had seen movies that were ‘not nice’ in that there were some scenes that disturbed him. He had been afraid to tell his father about his feelings in case his father got angry and took it out on his mother. This account further suggests the accuracy of how much [X] empathises with his mother. He was quite protective of her throughout the interview, without wishing to criticise his father absolutely.”[15]
[15] Family Report paragraph 23 & 24
Mr Vidot observed [X] with his father in April 2009 and observed [X]’s caring behaviour on that occasion. Mr Vidot did not change his view about [X]’s attachments even after observing [X] with his father. I place weight on Mr Vidot’s opinion about [X]’s attachments.
I am satisfied that [X] has a good relationship with his maternal grandparents and maternal extended family. He has had contact with them throughout his life. The father was critical of the maternal grandparents but he did not suggest that [X] had anything other than a good relationship with them.
The mother did not raise a concern about [X]’s relationships with the father’s siblings or their families.
I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
It was a central plank of the father’s case that the court should be concerned about whether the mother had the willingness and ability to facilitate and encourage a close and continuing relationship between the father and [X].
The father pointed to the fact that in her affidavit the mother made numerous (in his view spurious) complaints about his conduct and had nothing good to say about him
Many of the mother’s complaints about the father reflected as much as anything else the mother’s personal dissatisfaction with the father and had no place in an affidavit filed in a parenting case. However the mother was clearly able to recognise and acknowledge that [X]’s relationship with the father was different to her own. During cross-examination she readily said that “[X] loves his Dad very much and his Dad loves him very much.”
The mother conceded that she had told [X] on one occasion in Darwin that the father was not paying child support. She said that she made this comment after [X] asked her about getting new glasses and shoes. The mother said quietly and in my view sincerely “I admit I was wrong and I shouldn’t have said that. I try hard not to say things which put
Mr Metcalf in a bad light.”There was ample evidence that during his time in Darwin [X] had not been influenced or coached by the mother or her family to have a negative view of the father. Mr Vidot commented that [X]:
“presented as thoughtful and concerned not to speak ill of either parent, unless he knew something from his own experience.”[16]
[16] Family Report paragraph 20
Prior to any court proceedings being commenced or even hinted at, the mother made arrangements for [X] to spend holiday time with the father in Queensland.
In April 2009 Mr Vidot observed a strong relationship between the father and [X]. In my view there was no evidence which would support a finding that if [X] continued to live with the mother in Darwin there was a risk that his relationship with his father might be undermined.
The father was as negative about the mother as a person as she was about him. He was deeply offended by the allegations she made about his violence and aggression. He retaliated by making allegations that the mother had herself been violent and aggressive and by making many barbed comments about the mother. He has refused to speak to the mother on the telephone in recent months.
When asked in cross-examination what he said to [X] about the mother he replied: “I’ve told him to be nice to her. I’ve told him to behave and I’ve told him not to believe everything she says about me.”
While the father may not be warmly inclined toward the mother there was nothing to suggest that if [X] lived with him he would attempt to undermine the mother’s relationship with [X].
I am satisfied that both the father and mother are willing and able at least to facilitate and encourage a continuing relationship between [X] and the other parent, and I am satisfied that neither would attempt to deliberately undermine [X]’s relationship with the other parent.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
a)either of his parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the child has been living.
The orders proposed by the father if made would result in three potential changes for [X]. The first would be leaving Darwin and living in Brisbane. The second would be living with the father and seeing the mother only during school holidays. The third would be living in an equal time arrangement if the mother returned to Brisbane.
The orders sought by the mother if made would not result in any immediate change for [X] but they would perpetuate the change which has already taken place, that is a change from seeing his father frequently to seeing his father only during school holidays.
I am satisfied that [X] would cope with a return to Brisbane as a place. [X] has settled in Darwin and has friends at [M] School, but if he returned to Brisbane he would be re-enrolled at [K] School, which both parents apparently consider a satisfactory school, and would re-engage with children he knew previously. He would see less of his maternal grandparents and maternal extended family, but that was always a feature of his life before June 2008.
How [X] would cope with being separated from his mother and living predominantly with his father is another matter.
The mother has been a constant presence in [X]’s life to date. During the parties separation in 2005 [X] remained with the mother. He has lived predominantly with her since June 2008. She has been a caring and devoted parent to [X]. I accept Mr Vidot’s evidence that [X] has a closer and warmer attachment to his mother than to his father.
There can be no doubt that [X] would miss his mother if his residence changed. Whether he would understand why this change was being made is open to question. [X] may adjust in time with this change to his parenting arrangements, but a lot would depend on whether the father was able to sensitively parent him through the transition, and empathise with [X] when [X] became distressed.
The father in his affidavit showed a considerable lack of sympathy for the mother. I cannot be completely confident about the father’s ability to sensitively parent [X] if [X] struggled to cope when he first made the transition to the father’s sole care.
It is highly likely that in the short term a change to living with his father would be very difficult for [X].
Whether there would on balance be any long term benefit for [X] in making this change is open to question. While a change of residence would maximise [X]’s time with his father it would minimise his time with his mother. It would simply swap one loss (the loss of frequent and varied time with his father) for another loss (the loss of frequent and varied time with his mother) and result in no net benefit for [X].
The father’s alternative proposal was that if the mother returned to live in Brisbane, [X] should spend equal time with both of his parents.
An equal time arrangement would give [X] the opportunity to see his father frequently and to interact with him in a variety of circumstances and not just during school holidays, and would give him the same opportunity in relation to his mother.
There are two reasons why an equal time arrangement might have a negative impact on [X]. Firstly he could only live in an equal time arrangement if the mother returned to Brisbane.
The mother does not want to return to Brisbane, and would almost certainly feel resentful and unhappy if she returned under a compulsion. She would need to obtain accommodation in reasonable proximity to the father’s residence and [X]’s school. It is impossible for me to know how the mother would cope with a return to Brisbane.
If the mother did not cope with a return to Brisbane this would have a negative impact on [X]. Mr Vidot identified a strong tendency for [X] to empathise with his mother and said as follows:
“[X] is definitely composed and happy in Darwin. He is now freed to some extent of feeling compelled to protect his mother, with whom he clearly identifies warmly and insightfully. It is good for him developmentally to be out of the psychological space where he had felt compelled to empathise strongly with his mother around the aggression and abuse he had witnessed against her from his father.”[17]
[17] Family Report paragraph 28
If the mother returned resentfully and unhappily to Brisbane and did not settle, there is a risk that [X] may again be placed in a situation where his ability to get on with his own life would be compromised by his tendency to empathise with his mother.
The second reason why equal time might have a negative impact on [X] would be if the need for the parents to communicate regularly again exposed [X] to conflict between his parents.
At present the parents hardly communicate at all. The mother said that she did not want to talk to the father on the telephone because she did not like being sworn at. The father will not speak to the mother. If [X] lived in a week about arrangement, the parents would need to communicate frequently.
Mr Vidot expressed the following concern:
“As I noted in the family report, [X] was very protective of his mother and demonstrated convincingly to me that he had a stronger and warmer attachment to her than to his father. In the observation with his father, he demonstrated a caring capacity toward his injured father. In general, it appears that [X] has a natural inclination to empathise with both parents, although more so with the mother. Thus, if the parents were in the same city and the apparent force of the differences between them were to continue unabated, I would be concerned that [X] could be placed in the situation of empathizing with each so strongly that it could push him into a difficult and confusing place emotionally.”
The father proposed that the parents attend a Parenting after Separation course and certainly this might assist them to improve their communication. This is not a case however where communication difficulties have simply arisen at or around separation. The parents have had a problematic relationship and an inability to communicate constructively for a very long time. It is difficult to be confident that their ability to communicate and constructively resolve disputes will improve just because they complete a ‘Parenting after Separation’ course.
If [X] remains in Darwin with his mother, his circumstances will be the same as they have been for the last ten months but will be very different from what they were for the majority of his previous eight years, namely circumstances in which he saw his father almost every day.
The opportunity for [X] to engage with his father on a frequent basis and to seek his advise about problems which are ephemeral and may never be mentioned if time passes before the next visit, will not exist. The opportunity for the father to be immediately aware of what [X] is doing at school, to be immediately aware if he is having problems at school, and to attend school events if he chooses to do so, will also not exist.
[X] misses his father but appears to have adapted happily enough to the situation where he sees his father during school holidays. The extent to which the loss of these opportunities will have a detrimental effect on [X] in the long term is something on which I can only speculate.
Mr Vidot was not asked in cross-examination to give any expert evidence about the potential psychological effects on [X] in the longer term of such a separation from his father.I must consider the practical difficulty and expense of 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 a parent on a regular basis.
If [X] returns to Brisbane and the mother also returns and lives within reasonable proximity of the father’s home, there will be no practical difficulty and no great expense involved in [X] spending regular (and frequent) time with each parent.
If [X] lives in a different state to one of his parents, he will still be able to see each parent regularly, if that is defined to mean in a fixed regime, but distance and the fact that [X] attends school means that he will not be able to see both parents frequently.
[X] will of course be able to communicate with the absent parent freely by telephone or electronic means, and he may also be able to spend additional time with that parent if the parent visits [X] during term time.
Mr Vidot recommended that if [X] lived with the mother in Darwin he spend time with the father on four occasions each year during school holidays. The mother adopted this proposal. The father proposed that if [X] lived with him he should spend time with the mother on three occasions each year namely during the mid-year and end of year holidays, and during either the holiday at the end of Term 3 or the holiday at the end of Term 1, alternating each year.
If [X] lives in a separate state from one his parents Mr Vidot’s recommendation has merit, as it would ensure that the least possible amount of time passed between visits.
The mother proposed that the parties each pay half of the costs of [X]’s air travel.
The father went into some detail in his affidavit about his financial circumstances. He maintained that once he was back at work full-time his expenses would exceed his income. He did not however provide any evidence about the cost of airfares, nor did he assert that he would not be able to afford to pay half of the airfares on either the three occasions each year which he proposed should occur or on the four occasions each year which Mr Vidot proposed should occur. The father’s counsel made no submissions on the issue of the father’s ability to contribute to airfares.
I must consider the capacity of each of the parents to provide for the needs of the child, including his emotional and intellectual needs.
I am satisfied that the mother has the capacity to provide for [X]’s needs. [X] has been in Darwin in the primary care of the mother for twelve months. He is developing well. He is making reasonable progress at school. He has maintained a strong relationship with the father.
As to the father’s capacity, the mother complained about aspects of the father’s parenting in the past, for example that he was not sufficiently watchful of [X], that he allowed [X] to view unsuitable films and that [X] copied bad language from his father. The issues raised by the mother were clearly important to her but I suspect that they illustrate as much as anything the different personalities and interests of the parties and their lack of sympathy for the other’s point of view which characterised their marriage.
The mother said in her affidavit that on occasions the father consumed alcohol to excess but she did not provide any real detail about the father’s alcohol consumption. There was no evidence to support a finding that the father’s capacity to care for [X] in the future might be impaired as a result of him consuming alcohol irresponsibly when [X] was with him.
The mother did not complain about the father’s care of [X] during his visits in September 2008 and Christmas 2008.
The father has maintained a strong bond with [X] in the last ten months. He is a capable adult. I am satisfied that he has the capacity to provide for [X]’s needs, with the small caveat that unless the father is able to put aside the resentment he feels over the mother’s allegations about his aggression and violence, and his strong desire to be vindicated about this issue, there is a risk that he may not be able to properly provide for [X]’s emotional needs.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture, and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant.
The mother is a Jehovah’s Witness. The father proposed an order that each parent authorise the child to have a blood transfusion if the child’s best interests required it. The mother’s attitude to such an order was not sought in cross-examination and no submissions were made about this issue at the end of the hearing. As a result I do not intend to make the order proposed by the father. The parents will have to deal with their differences about this issue if and when the issue arises.
I must consider the attitude of each parent to the duties and responsibilities of parenthood.
Each parent is keen to fulfil their duties and responsibilities as a parent and to be an integral part of their son’s upbringing. In that respect each parent demonstrates a good attitude to the duties and responsibilities of parenthood.
I must consider any family violence involving the child or a member of the child’s family.
It was the mother’s case that her relationship with father was “marred by violence throughout” and that she suffered “physical emotional and verbal abuse from [the father].”[18]
[18] Mother’s affidavit filed 15 January 2009 paragraph 4
The mother portrayed the father as a man who was quick to anger, who was physically violent on occasions and who was verbally abusive.
The mother described a number of specific incidents of physical violence. She alleged that early in their relationship the father became angry and took to a car with an axe; that fifteen years ago he put his hands around her neck and threatened her; that he punched her in the chest when she playfully struck him; that he threatened to break her nose; that he threw a rocking chair in anger which bounced off a bed and hit her before breaking; that he tried to strangle her in bed; that in anger he smashed an iron skillet on a table near her; that he punched a wall in anger and kicked open a locked door breaking the lock; that in early 2008 he picked up a suitcase and threw it at her; that he smashed his hand on a table in anger hurting himself; and that he hit his head on a table and in doing so damaged [X]’s DVD player.
The mother said that the father was frequently verbally abusive to her, calling her names such as “bitch” or “fucking bitch”. She also said that he sometimes became aggressive and angry in public.
The father was affronted by the suggestion that he had been violent to the mother. He “emphatically denied that [the parties] relationship was marred by violence throughout” or that he “had a lot of anger in him.”[19]
[19] Father’s affidavit filed 16 April 2009.
It was the father’s case that the mother was not a witness of credit in respect of the violence allegations. In submissions his counsel pointed to the fact that when the parties signed an application for consent orders in 2005, the mother made no mention of family violence as an issue. He pointed to the fact that she had never applied for a family violence order. He submitted that there was no evidence of the mother complaining to anyone else during the relationship that the father had been violent. He relied on the affidavits of the father’s friends and family members whose evidence was to the effect that the father was not a person known to them as a violent person or an angry or aggressive person save when provoked by the mother. The father’s counsel submitted that the mother’s proposal for [X] to spend time with the father was inconsistent with her claims about his violence aggression and verbal abuse.
In his affidavit the father claimed that the mother had stated in the 2005 application for consent orders that “there was no history of violence whatsoever”[20] in the parties relationship. This is incorrect. At best an adverse inference could be drawn against the mother because the parties answered “no” to the question on the form about whether there was any other matter referred to in s.68F (the predecessor of s.60CC) which was relevant to the making of parenting orders. In the context of the parties having reached agreement however, it is not surprising that this question was not meticulously considered.
[20] Father’s affidavit filed 5 December 2008 paragraph 18
It is true that the mother never applied for a family violence order, but this does not lead to an inevitable conclusion that no violence occurred.
The submission that there was no evidence of the mother complaining to anyone during the marriage that the father had been violent was in error. The maternal grandmother gave evidence of the mother telling her that the father had pushed her against a post and threatened her and that the father had attempted to strangle her. The maternal grandmother said that these complaints were made fourteen or more years ago. The maternal grandmother was not required for cross examination.
The evidence given by the father’s friends and family members was unchallenged, but the fact that these witnesses did not see any family violence is not necessarily inconsistent with the mother’s claim that violence occurred within the home.
As to the mother’s proposal about the time [X] should spend with the father, the mother in her affidavit and her oral evidence showed that she was able to differentiate between her relationship with the father and [X]’s relationship with the father. The mother did not allege that [X] himself had been the direct victim of abuse or violence by the father. The mother’s proposals for [X] to spend time with the father, in a household in which she would not be present, were not inconsistent with her claim that the father had been aggressive, violent and abusive to her during the relationship.
Insofar as the mother claimed that the father tended to lose his temper not just in disputes with her but also outside the home, I am not satisfied that the evidence supports this claim.
The mother conceded that the evidence she gave about an incident involving a work truck was based on something she had been told, not something she had seen. The evidence of the father’s witnesses suggests that the father is not generally known as an angry volatile and quick tempered person.
The following can be marshalled in support of the mother’s claims about the father’s behaviour toward her and in the home. Firstly
Mr Vidot, an experienced psychologist, said in his report as follows:
“[The mother], at the time of her interview, appeared to be genuinely afraid of the father, lining up a series of convincing accounts of his aggressive and abusive behaviours from their relationship in support of her position.”[21]
[21] Family Report paragraph 27
Mr Vidot said as follows about his interview with [X]:
“Anger was something his father displayed quite often towards his mother and sometimes toward [X]. He remembered his father’s yelling, abusing and swearing in relation to his mother and recalled how his father had smacked him, using strong (“bad”) language in relation to him at times….the injury to his father’s hand was clear in his memory, as was his father banging his [the father’s] head against a wall because his head hurt.”
I accept Mr Vidot’s evidence that the reference in his report to [X] telling him about the skillet incident (which occurred when [X] was only 3 months old) was a mistake on Mr Vidot’s part and that the incident [X] referred to was a different incident which [X] had himself observed.
There is no evidence to support a finding that [X] was coached by his mother to provide information to Mr Vidot. Mr Vidot said that:
“[X] was considerably more nuanced than his mother, but did recall key incidents in relation to his father’s behaviour while convincing me that he had been very scared of his father at those times. [X] also indicated that otherwise he maintains a solid relationship with his father, which indication suggests that he has not been coached in the manner the father feared.”[22]
[22] Family Report paragraph 27
The mother’s presentation in the witness box was consistent with her claims. She was asked in cross-examination why she had sought an order that neither parent telephone the other except in the case of an emergency in relation to the child, that they communicate by email or text message and that neither party denigrate, harass or abuse one another during such communication. Her answer was “because I don’t like being sworn at.” The mother appeared upset when giving this answer.
The greatest difficulty for the father however is that he admitted that there were arguments in the home and shouting in the home. He admitted that he had “what you might call a bit of a temper.”[23]. He admitted to punching a plasterboard wall, hitting an iron skillet on the table, and hitting his head against the table in frustration and damaging a DVD player which was under papers on the table.
[23] Father’s Affidavit 5 December 2008 paragraph 19
Despite these admissions the father refused to concede that he had been violent. In answer to a question in cross-examination he said “I wasn’t violent. I would call what I have done a bit of a childish tantrum.”
Section 4 of the Family Law act defines family violence 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 reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
The physical actions to which the father admitted were all actions capable of causing a person reasonably to fear for or reasonably to be apprehensive about their personal well being or safety. The father conceded in cross-examination that it was fair to say that [X] would have been scared by his displays of temper. The words which the father said to the mother in July 2008, “Fuck you bitch, its on” were also capable of causing a reasonable person to be apprehensive about their personal well being or safety.
I do not accept all of the mother’s evidence about family violence. The evidence about the father hitting the car with an axe could be capable of relatively innocent explanation and was not aggression directed at the mother. The claim that the relationship was “marred by violence throughout” is an exaggeration. However, I accept the mother’s evidence about the incidents involving herself summarized in paragraph 151.
It was the father’s case that any incidents which did occur between himself and the mother were the result of the mother provoking him. He commented to Mr Vidot that the mother “could make a Labrador bite her.”
When asked however about what the mother did which provoked him he responded that it “was being told I was not a good father and not helpful.” I do not accept that there is any evidence that the mother behaved in a way which somehow justified the father’s aggressive behaviour.
While I accept that the father did commit acts of family violence it is important to keep the issue in perspective. As Chisholm J said in JG & BG[24]:
“Violence may take many forms and have a quite different significance in different cases. It might be, for example, a single outburst, out of character, caused by a stressful situation, for which the violent person feels immediately regretful and apologetic. It might be the result of mental instability or disease. It might stem from a person's inability to control his or her temper. It might represent a deliberate pattern of conduct through which the violent person exercises a position of dominance and power over the other. It might be associated with a particular situation, and be unlikely to be repeated in different situations, or it might be a recurrent pattern of behaviour occurring in many situations. The violent person may deny the violence, or seek to justify it, or alternatively might accept responsibility for it and be willing to take appropriate measures to prevent it happening again.
These and many other aspects of violence may be highly relevant to the court in its task of attempting to determine the relevance of the violence to the children's welfare. The court's ability to make this determination will of course depend on the evidence available to it. 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. “
[24] JG & BG (1994)FLC 92-515
I do not accept that the father’s behaviour in the home was justified by any provocation but the evidence does rather suggest that the father’s relationship with the mother brought out the worst in the father. The unchallenged evidence of the father’s witnesses suggests that the father is not a man who is widely perceived as having an anger management problem.
This is turn rather suggests that the father would not be a threat to [X] or a poor role model for [X] if [X] spent time with him in the absence of the mother.
The father’s counsel complained that the mother sought to transmogrify a few isolated incidents of violence into a syndrome of violence. In my view this misses the point of the mother’s evidence. There may only have been a few incidents of actual violence in the course of a lengthy relationship, but the evidence strongly suggests that the mother and father had a relationship which was marked by conflict over a lengthy period. The conflict between the parties occasionally resulted in violence but it also resulted in outbursts of temper and strong language by the father which scared [X] and frightened and upset the mother. The father and his family say that such behaviour is not typical of the father, only serving to underline the particular difficulties the mother and father have always had in communicating and cooperating.
The father said that the mother had thrown saucepans and other items, including an iron, at him in the past. These matters were not explored during the hearing and I am not satisfied that I can make a finding that the mother committed acts of family violence based on this evidence.
There are no family violence orders, nor has a family violence order ever been applied for by either party.
I must consider whether it is preferable to make the order which is least likely to lead to the institution of further proceedings.
In my view there is not much likelihood of further proceedings being instituted in this matter, regardless of whether I make the orders sought by the mother or the orders sought by the father. The only issue which could result in further proceedings is [X] requiring a blood transfusion, an issue I certainly hope will never arise.
I must consider any other fact or circumstance which the court considers relevant.
The father’s counsel submitted that it was clear from the maternal grandmother’s affidavit that she had no time for the father, and that this raised a concern that [X]’s relationship with the father might be undermined if [X] continued to live in Darwin.
The maternal grandmother did say many negative things and no positive things about the father in her affidavit, but there was no evidence that the grandmother had spoken badly about the father to [X] or in [X]’s presence. [X]’s relationship with his father has remained strong over the last ten months. I do not accept that there is a risk that [X]’s relationship with his father will be adversely affected if he continues to live in an environment which includes the maternal grandmother.
Regrettably when affidavits are prepared for a hearing there is often a focus on the negatives rather than the positives. The affidavits of the father’s family and friends contain strong criticism of the mother. I do not accept that the father’s home and circle of friends and family provides an environment better designed than the mother’s home and circle of friends and family to protect [X] from hearing anything negative about his absent parent.
Parental responsibility
Pursuant to s.61DA of the Family Law Act, I am required to apply a presumption that it is in [X]’s best interests that his parents have equal shared parental responsibility for him, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or family violence.
I am satisfied that there are reasonable grounds to believe that the father did commit acts of family violence and therefore the presumption does not apply. However it is still open to me to make an order for equal shared parental responsibility.
Both parties sought an order for equal shared parental responsibility. They both have a good relationship with their son and they will both continue to be an important part of his life. They do not communicate well, but major issues do not arise frequently. If the parents cannot agree about a major issue, dispute resolution services are available to assist them and as a last resort, an application can be made to the court.
It is in my view entirely appropriate and in [X]’s best interests that I make an order that the parents have equal shared parental responsibility for him.
Conclusion
As I have made an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act to consider whether it would be in [X]’s best interests and reasonably practicable to make an order that [X] spend equal time with each of his parents.
I am not persuaded that an order for equal time would be in [X]’s best interests. For such an arrangement to work, [X]’s parents would need to be able to communicate and not only resolve bigger issues such as choice of extra-curricular activities but also resolve without rancour smaller issues such as [X] leaving things behind at one parents home. These parents do not have a good track record of being able to communicate effectively and resolve disputes. If they argued and frequently became frustrated and angry with each other [X] would be exposed to conflict and this would be detrimental for him. Given their history I am not convinced that completion of a parenting course would necessarily solve all these parent’s difficulties.
I am also required to consider whether making an order that [X] spend substantial and significant time with each of his parents would be in his best interests and reasonably practicable.
If time with one of the parents was at the lowest end of end of the scale, namely alternate weekends and at least one overnight a fortnight, the necessity for frequent communication and co-operation between the parents should be lessened. Such an arrangement might be in [X]’s best interests. He is close to both his parents, and they each have much to offer him. Such an arrangement would ensure that he spent time with each parent not only during school holidays but also during the school week and on weekends.
The difficulty however is that such an arrangement would not be reasonably practicable unless the mother moved back to Brisbane.
The mother does not intend to voluntarily return to Brisbane. I could however make orders similar to those proposed by the father, namely that [X] live with the father and spend school holiday time with the mother, but that if the mother returned to Brisbane [X] still live with the father but spend substantial and significant time with the mother. If the mother did not want to be parted from a regular involvement in [X]’s life this may in effect compel the mother to return to Brisbane.
In my view however it would not be in [X]’s best interests for such orders to be made.
Firstly, while if the mother returned these orders would have the advantage of ensuring that [X] spent time with each parent during school terms as well as during school holidays, if the mother returned unhappily to Brisbane under a compulsion and did not settle, the overall outcome might not be a positive one for [X].
Secondly, I am by no means persuaded that if the mother lived in Brisbane it would be in [X]’s best interests to live with the father and spend substantial and significant time at the lower end of the scale with the mother. There is no point my making an order that if the mother lives in Brisbane [X] live with her and spend substantial and significant time with the father, as the mother does not intend to voluntarily return to Brisbane.
Thirdly, if the mother stood by her resolve not to return, the outcome would be that [X] lived with the father and saw his mother only during the school holidays.
The father of course would not perceive any difficulty with this outcome. He wants his son to live with him.
It was the father’s case that if a choice had to be made [X] should live with him because he was the parent who could best be trusted to promote [X]’s relationship with the other parent. I do not however accept that the mother lacks the ability to promote the relationship between [X] and the father, nor do I consider that the father’s ability to promote [X]’s relationship with the other parent if [X] lives in a separate state from one of his parents is superior to that of the mother.
The fact that in April 2009 [X] was observed to have such a strong relationship with his father, after having lived in Darwin with his mother for ten months, undermines the submissions by the father’s counsel that the mother cannot be trusted to promote the relationship between [X] and the father.
I accept that the father could provide for [X]’s needs on a day to day basis, and I accept that [X] and his father have a good relationship.
However[X] is closely bonded to his mother. He has done well in her care while living with her in Darwin and he has settled in Darwin. He misses his father but he has maintained a strong bond with his father and is not expressing a desire to return to Brisbane. [X] informed
Mr Vidot that when his parents lived together he was scared of his father on occasions and concerned for his mother. [X] might well be very confused about why an order was now being made that he leave his mother to live with his father.
If the mother had applied to relocate when she was still in Brisbane, she might not have been successful. However at the time of the hearing before me the mother was not in Brisbane. She had been living in Darwin for ten months. [X] has settled with his mother in Darwin. He is making reasonable progress at school and has made friends. He is not showing signs of any behavioural problems. His bond with his father has remained strong.
In my view an order that [X] lives with the mother in Darwin is, when all the options are considered, the order in which I consider most likely to promote [X]’s best interests.
Mr Vidot recommended that if [X] remained in Darwin he spend time with the father during the two short one week holidays each year for half of the mid-year and Christmas holidays. This would give [X] holiday time with his mother as well, but would also give him time with the father as frequently as possible.
I intend to make orders in terms of this recommendation and to order that the parents each pay half of the cost of [X]’s air travel.
The mother sought an order that the father be restrained from allowing [X] to view DVD’s or computer games with M rated content or above. The father’s counsel opposed such an order being made, pointing out that its enforcement would depend on the child conveying information to the mother, and that it was undesirable that [X] be placed in that position.
Another difficulty inherent in such an order is that the orders I make may be in place for some time, and an order which is appropriate now may be inappropriate as [X] gets older.
Mr Vidot was of the view that the mother’s concerns about [X]’s exposure to inappropriate material had been “soundly acknowledged by the father.”[25] I am not persuaded that it is necessary to make an order restricting the father’s choices about [X]’s viewing. That matter should be left to the father.
[25] Family Report paragraph 32
The mother sought an order that the parents not telephone one another except in the event of an emergency and that they communicate for preference by email or text message.
The reason the mother gave for seeking this order was heartfelt. However I do not intend to make the order. The father has not telephoned the mother at all in recent times. If either party does in the future consider themselves harassed by telephone calls, there are some self-help strategies available such as not answering calls or using an answering machine.
The mother sought an order that the father be restrained from consuming alcohol to excess or taking any form of illegal substance while the child was in his care. There was no evidence of the father taking illegal substances. Evidence that the father became drunk on isolated occasions during the lengthy relationship or general allegations that in April 2008 the father began to drink more alcohol than before, do not create justify an order being made concerning the father’s alcohol consumption.
The father proposed that each party enrol in and complete a Parenting after Separation course and in my view this would be beneficial and would assist them to focus on the future rather than the past. I intend to order that the parties each attend such a course.
For all of the above reasons the orders will be as set out at the beginning of this judgment.
I certify that the preceding two hundred and thirteen (213) paragraphs is a true copy of the reasons for judgment of Terry FM
Associate: Rachel Hodgson
Date: 8 July 2009
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