DONNELLY & BAXTER
[2010] FMCAfam 1418
•10 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONNELLY & BAXTER | [2010] FMCAfam 1418 |
| FAMILY LAW – Two children aged 9 years and 6 years at trial – mother living in Coffs Harbour on the Mid North Coast of New South Wales with the children – Mother wishes to relocate to [B] QLD to be with her new partner and father of her youngest child – Father of the children resides in Coffs Harbour – children live predominately with the mother – father opposes relocation – best interests of children. |
| Family Law Act 1975, Part VII |
| D & SV [2003] 30 Fam LR 91; FLC 93-137 Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 Goode & Goode [2006] FAMCA1346; (2007) 36 Fam LR 422 Taylor & Barker [2007] FAMCA1246; (2008) 37 Fam LR 461 Mazorski & Albright (2007) 37 Fam LR 518; at 526 McCall & Clark [2009] FamCAFC 92, (2009) 41Fam LR 483 G & C [2006] FamCA 994 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 U & U (2002) 211 CLR 238; (2002) FLC 93-112 |
| Applicant: | MS DONNELLY |
| Respondent: | MR BAXTER |
| File Number: | CRC42 of 2009 |
| Judgment of: | Coakes FM |
| Hearing date: | 6 December 2010 |
| Date of Last Submission: | 6 December 2010 |
| Delivered at: | Coffs Harbour |
| Delivered on: | 10 December 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Ms McKinnon |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Mr Davies |
| Solicitors for the Respondent: | Susan Green Solicitor |
ORDERS
THE COURT ORDERS THAT:
The father and the mother have equal shared parental responsibility for the children [X] born [in] 2001 (‘[X]”) and [Y] born [in] 2004 (“[Y]”)(“The children”).
The father and the mother have sole responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are living with either of them respectively.
The parents are to consult each other in relation to any long term issue in relation to [X] and [Y] and are to make a genuine effort to come to a joint decision about issues concerning their care, welfare and development of a long term nature which include (but are not limited to) issues of that nature about:
(a)Their education both current and future;
(b)Their religious and cultural upbringing;
(c)Their health;
(d)Their names;
(e)Changes to their living arrangements that make it significantly more difficult for them to spend time with either parent.
The children live with the mother in or around the Queensland Gold Coast to take effect from the end of December 2010.
The father spend time with the children as follows:
(a)On the third and sixth weekends during school terms applicable in the State of Queensland, from Friday at 5.00pm until Sunday at 5.00pm. The parents or their respective nominees known to the children will meet at the [W] Park at this time for changeovers. This order is to commence on the third weekend of each school term;
(b)For three weekends during the school terms applicable in the State of Queensland from after school on Friday until commencement of school the following Monday morning to be implemented by the father collecting the children from their school in [B] on the Friday and returning them to their school on the following Monday morning with the father to give not less than twenty eight (28) days prior notice in writing to the mother of each such weekend, with such time to occur on the Gold Coast and with the father restrained from bringing the children back to the Coffs Harbour district;
(c)If the father is unable to secure absence from his employment on the Monday of such a weekend then the time will terminate at 5.00pm on the Sunday with the children to be retuned to the mother at her place of residence or such other place as the parents may agree and with the father to give prior written notice of such change in the notice referred to in Order 5(b) above;
(d)For one half of the term one gazetted Queensland school holiday periods being the first half in even numbered years and the second half in odd numbered years. The parties to meet for change over at the [W] Park at a time agreed between the parties and failing agreement to be at 5.00pm on the last day of the school term at the beginning of the period and 5.00pm at [W] Park on the mid point day at the end of the period. If the children are spending time with the father in the second half of these school holidays the parties are to meet at 5.00pm on the mid point day of the holiday at [W] Park at the commencement of the fathers period of time with the father to return the children to the same place at 5.00pm on the day before the commencement of the new school term;
(e)For ten (10) days of each of the gazetted Queensland school holidays at the end of terms two (2) and three (3) commencing at 12.00 noon on the first Monday and concluding at 12.00 noon on the second Friday with implementation to occur at the [W] Park as provided in Order 5(d) above;
(f)For one half of the term four (Christmas) gazetted Queensland school holiday period being the first half in even numbered years and the second half in odd numbered years. The parties to meet for change over at the [W] Park at [W] at a time agreed between the parties and failing agreement to be at 5.00pm on the last day of the school term, or the middle day as agreed between the parties, at the beginning of the period and 5.00pm at [W] Park at [W] at the end of the period;
(g)At any other time as agreed between the parties including but not limited to times that the father’s family may wish to spend with the children if they are in the area where the children reside;
(h)The father and his family communicate with the children by telephone and web cam at all reasonable times between 8.00am and 8.00pm.
(i)If the mother intends to travel to the Coffs Harbour area on a weekend when the children would be spending time with the father or at any time when he would not be spending time with the children under these orders then the mother will contact the father at least two days prior to arrange the venue for changeover, for the children to spend time with the father. The mother will deliver the children to the father’s home at the commencement of time and will collect the children from the father’s home at the end of that time.
In the event that the father relocates to the Gold Coast the following parenting orders apply:
The father and the mother have equal shared parental responsibility for the children [X] born [in] 2001 (“[X]”) and [Y] born [in] 2004 (“[Y]”).
The father and the mother have sole responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are living with them.
The parents are to consult each other in relation to any long term issue in relation to [X] and [Y] and are to make a genuine effort to come to a joint decision about issues concerning their care, welfare and development of a long term nature which include (but are not limited to) issues of that nature about:
(a)Their education both current and future;
(b)Their religious and cultural upbringing;
(c)Their health
(d)Their names
(e)Changes to their living arrangements that make it significantly more difficult for them to spend time with either parent.
The children live with the mother in or around the Queensland Gold Coast.
The father spend time with the children as follows:
(a)During school terms, each alternate weekend to commence on the second weekend of each school term from after school Friday until before school Monday. The father is to collect the children from school on Friday and return them to school on Monday morning;
(b)Every alternate Wednesday during school terms from after school on Wednesday until the commencement of school on Thursday, and to occur in the week following that referred to in Order 10(a) above, to be increased to each Wednesday evening, or such other night in the week as the parents agree and to commence upon [Y] attaining the age of seven (7) years (13 November 2011);
(c)For one half of the gazetted Queensland school holiday periods being the first half in even numbered years and the second half in odd numbered years;
(d)The father and his family communicate with the children by telephone and web cam at all reasonable times between 8.00am and 8.00pm;
(e)At all other times as agreed between the parties.
There is no restriction as to where the father spends time with the children.
The following orders apply irrespective of whether the father moves to the Gold Coast.
By 30 June 2011 each party must attend and complete a Parenting after Separation course or Parents not Partners course conducted by Interrelate or Relationships Australia and must:
(a)Contact the Centre Manager to enrol within fourteen days of the date of these Orders;
(b)Pay the reasonable fees for the course;
(c)Upon completion of the course obtain a letter from the provider certifying sessions attended and completion of the course; and
(d)Promptly provide the other party with a copy of the letter.
Each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number, mobile telephone number, and if applicable, email address and within twenty four (24) hours of any such change occurring.
Both parents are to authorise in writing the Principal of the school attended by [X] and [Y] or either of them from time to time to supply to the other parent copies of progress reports, school reports, notices relating to pupils at such school, school letters, invitations to any carnival, sporting or social functions, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such school, and service of a copy of these Orders upon such school is sufficient discharge of this Order.
The mother is restrained from enrolling [X] or [Y] or either of them in any school activity to occur on the Friday afternoon or evening, Wednesday afternoon or evening and any school or extra curricular activity to occur on a weekend or holiday period when [X] or [Y] or either of them is due to spend time with their father pursuant to these Orders without first discussing the proposed activity and possible enrolment with the father with a view to reaching an agreement and not to occur unless so agreed.
The father is restrained from enrolling [X] or [Y] or either of them in any school or extra curricular activity to occur at a time when [X] or [Y] or either of them is living with their mother pursuant to these Orders without first discussing the proposed activity and possible enrolment with the mother with a view to reaching an agreement and not to occur unless so agreed.
IT IS NOTED that publication of this judgment under the pseudonym Donnelly & Baxter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CRC42 of 2009
| MS DONNELLY |
Applicant
and
| MR BAXTER |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
(Edited from the Transcript)
Introduction
I am delivering this ex tempore judgment this morning on the first occasion possible during this busy week.
There are two children who are the subject of these proceedings. They are respectively [X], born [in] 2001, who [is] nine years of age and her sister [Y] born [in] 2004 who is now six years of age. They are the only children of the relationship between their parents who are the parties to these proceedings.
After separation in early 2007 [X] and [Y] lived with their mother in the Coffs Harbour district, primarily at [O], and spent varying but regular times with their father, also in the same district. There was a good spirit and cooperation between the parents until about mid-2008 in the sense of parenting arrangements for [X] and [Y].
In about November 2007 the mother became friendly with her present partner, Mr F. By March or April 2008 they were romantically involved with each other. Their child, [Z] was born [in] 2009 and has lived with the mother since birth and also in the Coffs Harbour district. Mr F lives at [B] on the Gold Coast in Queensland and located at the southern end of the Gold Coast.
The mother would like to move with all three children to [B] to be with her new partner. The father opposes that occurring.
The Respective Applications
The mother’s amended application was filed on 30 November 2010. The orders she seeks are contained in that application. No useful purpose is served in my reciting the whole of the orders she seeks but in broad terms she proposes: equal shared parental responsibility; that each have responsibility for day-to-day decisions concerning the children’s care, welfare and development; that the children live with the mother in/or around the Queensland Gold Coast; that the father spend time with the children during school terms each alternate weekend from 5 o’clock on the Friday until Sunday at 5 o’clock – and this is in the sense of the mother being unable to live on the Gold Coast and the father remaining in the Coffs Harbour district – and in that sense with the parents to meet at the [W] Park for changeovers. I’m told, and I accept, that [W] Park, whilst not exactly half-way between Coffs Harbour and [B], is a convenient meeting place and has appropriate roadside facilities for parking and refreshments.
The mother then proposes that on at least one of those weekends – that is the alternate weekends during the school terms – the father travel to the area where the children are residing and spend time with them from Thursday after school until Sunday at 5 o’clock. The mother then proposes one-half of the term 1 and term 3 gazetted Queensland school holidays and then defines whether it should be the first half or second half. The term 1 school holidays are usually, so far as Queensland is concerned, held around Easter and usually incorporate the Easter public holidays of Good Friday and Easter Monday.
The mother then proposes one half of the term 4, the Christmas school holidays, in favour of the father and the whole of the term 2 gazetted Queensland school holidays. They are normally of two weeks and is the holiday period which falls in about June or July. The mother also proposes that if she travels to the Coffs Harbour district then she would give some notice to the father and the children spend time with him.
The mother then proposes that if the children are required to remain in the Coffs Coast area then there be equal shared parental responsibility and orders, in the sense of day-to-day responsibility, as before, the children to continue to live with her as they do now and the father to spend time during each school term then – obviously applicable to the State of New South Wales – each alternate weekend from after school on Friday until back to school on Monday; half of each New South Wales gazetted school holiday with further practical parenting orders as to communication by telephone. And no restrictions as to where the father spends time with the children.
In a third alternative the mother seeks an order that if the father relocates to the Gold Coast then, again, there should be equal shared parental responsibility; sole responsibility for day-to-day decisions; the children to live with the mother in/or around the Queensland Gold Coast and the father spend time each school term, each alternate weekend from after school Friday until before school Monday and for half the gazetted Queensland school holidays, and with some other practical parenting orders.
The father’s proposal is found in his amended response – or further amended response – filed on 19 November 2010 but that was supplanted by, or amplified by, orders sought by the father as set out in his case outline document. In those orders he sought a number of practical parenting orders but, essentially, that the mother not be permitted to relocate the children to Queensland; that there be equal shared parental responsibility; that the children spend time with him each alternate weekend from after school on Friday until the commencement of school on the Monday; and each Wednesday night from after school on Wednesday until the commencement of school the following Thursday with the children otherwise to live with the mother at all times and half the holidays.
In the alternative, should the mother be willing to relocate to Queensland with the children then the children live with him in Coffs Harbour, by inference, the parties have equal shared parental responsibility; the children spend time with the mother each alternate weekend from 5.30 pm on Friday until the commencement of school on Monday in the Coffs Harbour area and, not limited to the Coffs Harbour area, for 10 days of the short school holiday periods, they being by inference those at the end of the first, second and third school terms and one-half of the Christmas school holiday period and other times as agreed. The father then proposed some practical parenting orders as to implementation and communication.
Existing Orders
In these proceedings, orders were made as final orders on 2 December 2009 at this court in this registry. Those orders provided that the parents have equal shared parental responsibility; the children live with the mother in Coffs Harbour; the children spend time with the father each alternate week from after school Friday to before school Monday; if the father is unable to return them to school then he is to return them to the mother’s residence on the Monday morning before school or on a Sunday afternoon. The children also to spend time with the father for one-half of all school holiday periods including Christmas school holiday periods.
A number of other practical parenting orders were made. Those orders were then the subject of an appeal by the mother to the Full Court of the Family Court and on 30 July 2010 orders were made by the Full Court allowing the appeal, setting aside the orders made on 2 December 2009, with the respective applications by the parents to be remitted for re-hearing in the Federal Magistrates Court at Coffs Harbour before a Federal Magistrate other than Jarrett FM, and indeed, it was for this reason that I came to these sittings.
My understanding is that the appeal, eventually – I withdraw that. My understanding is that the appeal was then dealt with by consent of both the mother and the father and the Full Court published some reasons for judgment. Since that order was made by the Full Court my understanding is that the orders of 2 December 2009 have continued to operate, that is, that the father has spent time with the children in accordance with those orders, that is, fortnightly from after school on Friday till back to school Monday and half the school holidays.
Background
The mother lives in [O] which is a little to the north of Coffs Harbour and in what was her grandmother’s home following her grandmother’s death in November 2006, and the parties had moved from the Central Coast in about May 2005 to enable the mother to look after her grandmother to whom she was close. The mother became entitled, under the provisions of her grandmother’s will, to be able to live in her home for six years, that is, until November 2012. The mother is not currently working. She is a qualified [omitted] and has had very occasional employment in this capacity in this district.
Her mother, that is, the maternal grandmother, lives in Coffs Harbour and sees the children frequently under circumstances to which I will refer later in these short reasons for judgment. The maternal grandfather lives on the Central Coast. He has re-partnered. He sees the children and the mother very occasionally, usually in this district. It is not to be inferred from that that the relationship between the mother and her father is strained, in fact, I find to the contrary.
The mother is 37 years of age. The father is 32 years of age. The father is employed by a company called [S] in Coffs Harbour as a [occupation omitted]. His ordinary working hours are from about 6.30 am until 2.30 pm Monday to Friday. There is some overtime available to him leading into the Christmas period but the [business] closes from about 22 December to about 14 January each year, that is, a total of about three weeks. He has been employed by [S] for about three years. He does manual work in that capacity and also operates machinery.
On the evidence before me the father has not re-partnered.
On the evidence before me the mother has re-partnered with one Mr F who lives in [B], Queensland under circumstances to which I will refer later in these short reasons for judgment.
As to the father’s extended family, his parents live on the Central Coast and both work. His sister Ms K and her family live on the Central Coast and another sister Ms T and her family are at [omitted] in the Taree District of New South Wales.
The parties commenced their relationship in about 2000, probably towards the latter end of 2000 on the Central Coast where they both lived. They did not marry. They separated in about January 2007. [X] and [Y] are the only children of their relationship. There is a third child who is relevant to these proceedings, that is, the child of the mother and Mr F to whom I have referred and her name is [Z] and she is now one year and six months of age.
The evidence
In the mother’s case I read those affidavits which I was asked to read including the mother’s affidavit, affirmed 22 November and filed 6 December 2010, that of Mr F affirmed 22 November and filed the same day, that of Dr M, a psychologist, affirmed 22 November and filed the same date. In the father’s case I read the affidavits I was asked to read in his case. They were his affidavit sworn 18 November and filed 19 November 2010. There was also in evidence before me, by consent of the parties, the Family Report prepared by Mr P, a Regulation 7 family consultant, who interviewed the parties and the children and spoke to other relevant persons on 21 September 2010. His report was published on 28 September 2010.
There were a number of exhibits. I had the benefit of listening to and observing the mother and father give evidence together with that of
Mr F who appeared in person. Mr P gave evidence by telephone and was cross-examined. I was also assisted by the submissions made by Ms McKinnon on behalf of the mother and Mr Davies on behalf of the father. I note that Dr M was sent the – I withdraw that. I note that Mr P was sent Dr M’s affidavit and the mother’s affidavit before he gave evidence. Dr M was not required for cross-examination.
The issues
It seems to me the issues are these:
(1)Whether the mother should be enabled to relocate [X] and [Y]’s place of residence from Coffs Harbour to [B] and what detriment there would be, if any, as to the children’s relationship with their father, if that were to occur;
(2)If [X] and [Y] are not enabled to relocate to [B] and, given the clear inference the mother would not then relocate without the children, what is the appropriate amount of time for the children to spend with the father given that it is common ground the children will live predominantly with their mother and spend time with their father, save for the father’s application for residence;
(3)If the mother is not enabled to relocate is her emotional wellbeing likely to be affected adversely and if so to what extent, and is that likely to adversely affect her parenting ability and capacity, and further, to what extent is that likely to impact upon her relationship with Mr F and their child [Z];
(4)What are the possibilities of both the father and Mr F respectively moving, in the father’s case, to [B] or, in Mr F case, to Coffs Harbour, and to what extent is that relevant to matters which I am required to take into account, and given also that each has secure employment;
(5)Given the respective proposals of the parents, should the Court endeavour to formulate different arrangements in the children’s best interests.
The relevant law
I have regard to Part VII of the Family Law Act 1975 and in particular the amendments which came into being following the Family Law Amendment (Shared Parental Responsibility) Act 2006. The significant sections are, and to which I must have regard, section 60CA which provides that, and I quote:
“In deciding whether to make a particular parenting order in relation to a child the court must regard the best interests of the child as the paramount consideration”.
I must consider, in determining a child’s best interests, the matters set out in section 60CC. There are two primary considerations. Firstly, and I quote:
“(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”.
There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to section 60CC(4). I must have regard to section 60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to section 61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. This is not such a case.
The presumption may also be rebutted if there is evidence to satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. Again, this is not such a case. The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable then the court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents, see section 65DAA.
It is also necessary for me to consider in the context of this case established case law in relation to relocation and the effect, if any, of the amending legislation upon such case law. It has been held that relocation cases are not a special category of case. The Family Law Act does not specifically mention relocation either in Part VII as it was or pursuant to the amending Act. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involved relocation[1].
[1] Pascale v Pascale (1999) FLC 92-878, 40; 25 Fam LR 607, 40
I have regard to the High Court decision in U & U[2] in which the High Court said this, and I quote:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child, if that were to be adversely affected by movement of a parent”.
[2] U & U (2002) 211 CLR 238; (2002) FLC 93-112
In D & SV[3] which involved a distance of about 120 kilometres and the proposed relocation, the Full Court commented on the need to, and I quote:
“Evaluate all options to determine if the welfare of the children could fit in to the mother’s right to live where she pleased”.
[3] D & SV [2003] 30 Fam LR 91; FLC 93-137at 78290
The Full Court of the Family Court, late in 2007, gave consideration as to the effect of the amending legislation upon relocation. It is reported as Taylor & Barker[4]. In that case, Brewster FM permitted the mother to relocate a nine year old child to North Queensland from Canberra. The Full Court found that when considering the application of section 65DAA to which I’ve referred the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[4] Taylor & Barker [2007] FAMCA1246; (2008) 37 Fam LR 461
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child’s best interests with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable.
The Full Court went on to say at paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements”.
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent”.
It seems to me there is a shift toward the Court considering in a much more practical way and manner how a child’s development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent, and it seems to me that this requires an involvement in the whole of the ordinary household routine where that is appropriate[5].
[5] Goode & Goode [2006] FAMCA1346; (2007) 36 Fam LR 422
I have also considered the decision in Mazorski & Albright[6]. That case involved relocation where Brown J, as she was, after setting out the definition of meaningful and meaning, said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important or of consequence”. 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 quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application and the presumption of equally shared parental responsibility and the requirement for time with the children to be, where possible and in their best interests, substantial and significant”.
[6] Mazorski & Albright (2007) 37 Fam LR 518
The more recent Full Court decision of McCall & Clark[7] involved a consideration by their Honours and a conclusion drawn by them that there are three possible interpretations of section 60CC(2)(a), finding that the preferred interpretation of the benefit to a child of a meaningful relationship is the prospective approach, although, depending upon factual circumstances, the present relationship approach may also be relevant. The Full Court rejected the notion that a court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption then it would have said in clear and unambiguous language.
[7] McCall & Clark [2009] FamCAFC 92; (2009) 41Fam LR 483
The Full Court accepted as appropriate the interpretation of meaningful relationships set out by Brown J in Mazorski & Albright[8] to which I have referred, and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C[9] in the sense that the inquiry is a prospective one in the court evaluating and determining the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[8] Mazorski & Albright (2007) 37 Fam LR 518
[9] G & C [2006] FamCA 994
The Family Report
I was assisted by Mr P, who gave evidence by telephone and was cross-examined by both counsel. In my view, Mr P identified accurately the issues for consideration, the perceptions of the parents, both of each other and the issues, and the history of their relationship, and events since separation. Mr P spoke with [X] and I quote from paragraph 58 of the family report:
“[X] was clear to say that both parents had spoken to her about the proposed relocation and it was evident that [X] still possesses divided loyalties with each of the parents whilst having mixed feelings about any possible relocation given that, “I love my school and my friends.” It was [X]’s view that she didn’t think either parent had denigrated each other to her. [X] did acknowledge to the family consultant that the trips to [B] can be tiring”.
And in paragraph 59:
“When I asked [X] if she had a magic wand and what she would change about her life, she replied by saying, “I would like longer arms so that I could touch my toes”.
Mr P found [X] to be an engaging and intelligent eight and a half year old child who clearly has a loving connection with each of her parents, but in the family consultant’s view remains confused about the positive and negative aspects about any proposed relocation.
So far as concerns [Y], I refer to paragraph 63 of Mr P’s report:
“[Y] informed the family consultant that she told her mother that if they relocated to [B] to live with Mr F that it would be best that her father relocated as well, and when I asked [Y] if she had a magic wand and what changes she would make to her life, she replied by saying, “None, I’m happy”.
Mr P sets out his evaluation in paragraphs 66 to 74 of his report. I don’t propose to read those into these short reasons for judgment, but I take each of them into account. Mr P then made some recommendations found in paragraphs 75 to 78 of the family report. Based on his evaluation, to summarise those, he considered that the children should live with their mother in the Coffs Harbour area; that they should spend time with their father each fortnight from the Friday afternoon after school until Monday morning back to school, and the father implementing that arrangement from school and back to school with a mid-week overnight with both children in the alternate week which could then be increased to a mid-week overnight each week once [Y] turns seven years of age which will be in 2011 on 13 November.
Report of Dr M
Dr M is a psychologist, and his qualifications are set out in his report, which are annexed to his affidavit. Those qualifications are not challenged. I understand from other matters I’ve dealt with in the sittings this week that Dr M is engaged from time to time by the Court either as a Regulation 7 family consultant or as an independent expert. That is not relevant in the sense of the evidence which is adduced by the mother in her case in these proceedings. I note that the report of
Dr M refers to Ms McKinnon, clearly the mother’s solicitor, as being the referring party. Dr M saw the mother alone on 11 November 2010. He describes the documents which were made available to him at the beginning of his report. None of those documents related to these current proceedings in the sense of being affidavits or a family report of Mr P. The genesis of the consultation with Dr M, the mother told me when I asked her, was this:
“I broke down in her office –
clearly a reference to Ms McKinnon’s office –
and [first name omitted] thought it would be a good idea if I saw a psychologist”.
No criticism can be attached, in my view, to Ms McKinnon making those arrangements subsequently for Dr M to see the mother. I note also that the mother had had the benefit of reading Mr P’s report before she saw Dr M. The mother had also seen a psychologist earlier this year - that’s referred to in paragraph 29 of the mother’s one affidavit in these proceedings – following a referral from her GP. In April the mother saw Dr D on three separate occasions for the reason that she was having difficulty coping with the decision of the Court, and I infer from that reference that was the decision of 2 December 2009 which prevented her from moving to the Gold Coast. There is no evidence before me from Dr D.
In making his assertions in his report, Dr M relied on the mother’s account of events and her perception of the cause of her distress. Dr M did not speak to the father nor the children or Mr F and, as I say, did not see a copy of Mr P’s report. In that sense, I had cause to question during the hearing the merit of Dr M’s report, and the weight which could be attached to it, and raised this matter with Mr Davies and
Ms McKinnon in the absence of the parties. It troubled me that the mother had given no evidence in her affidavit that her parenting ability had been affected at all by any depressive feelings or anxiety or distress, but now relied upon Dr M’s report which suggested the possibility – and I emphasise possibility – of her parenting capacity and her mental wellbeing being affected, and probably adversely if she was not able to move.
I find further that on the evidence before me, and I was able to observe the mother give evidence in the witness box, that she was not distressed when giving evidence; in fact, to the contrary. She gave evidence concisely, dispassionately and, in my view, truthfully and was responsive to all questions put to her, and she made admissions against her own interest from time to time when certain matters were put to her. It seems therefore to me that I should receive Dr M’s evidence as a medical assessment of the mother as to her mental wellbeing and her psychological state. Dr M, as I say, was not required for cross-examination and that is no criticism of those who may otherwise have wanted to cross-examine him.
It is apparent – I withdraw that – it is appropriate therefore to assess whether the mother gave Dr M an accurate account of her perceptions and whether that account is supported by her evidence before me.
Dr M, as a precursor on page 2 of his report and under the heading Qualifications, said that:
“The provision of further information from alternate credible sources may warrant revision of the opinions expressed herein”.
He said that:
“Ms Donnelly was referred for assessment to determine the impact that orders made in the Federal Magistrates Court that she remain in the [O] area with her three children have had on her psychological wellbeing and parenting capacity for her children. The purposes of the assessment and the nature of limited confidentiality were explained to Ms Donnelly and her expressed voluntary consent to continue was obtained”.
Dr M obtained a history from the mother which is little different from the history the mother relied upon both in her affidavit and in her evidence. On page 5 of Dr M’s report the doctor refers to Ms Donnelly reporting that Mr F has a close relationship with all three children providing a positive role model and being actively involved with them during contact periods. Ms Donnelly reported that Mr F is empathic and provides her with emotional support during episodes of hopelessness and distress associated with the current family situation.
The mother reported to Dr M that both she and Mr F have attempted to manage the challenging family situation by making all efforts to secure a quality of life on the mid North Coast as evidenced by active seeking of employment, maintaining separate households with minimal financial support and encouraging contact between Mr Baxter and his daughters. The mother reported to Dr M that she is experiencing significant financial and psychological hardship due to the aforementioned psychosocial stressors and is concerned that her ability to maintain adequate care for her children is potentially at risk.
The mother reported to Dr M that she had made all attempts at promoting further contact with Mr Baxter and his daughters. However, his unwillingness to engage in direct contact outside the Court orders and be actively involved in the daughters’ schooling and extra curricula activities has caused her concerns for his commitment to positive parenting. That is a matter which is in dispute on the evidence before me, and to which I will refer later in these short reasons. The mother told Dr M that her wish to relocate to the Gold Coast was motivated not only by her willingness to have [Z] and her father living together, but also to provide an opportunity for a better life for her eldest daughter and to reduce the significant distress she is experiencing due to minimal support.
Dr M refers to a telephone interview with Dr L on 16 November 2010 which confirmed that the mother had attended with negative psychological symptomatology reactive to family stressors, and which is the subject of an exhibit in these proceedings, and to which I’ll refer in a moment. Dr M refers to some brief treatment which she received from a psychologist following the breakdown of the relationship with the father in 2007, and that she, the mother, has been under her GPs care for the past six months due to the current matters before the Court.
Dr M applied some behavioural tests during his psychological assessment and observed that the mother experienced anxiety-related symptoms and negative emotional responses, teariness and crying being triggered when questioned about her situation and current functioning, and she required breaks during interview in order to compose herself. When Dr M administered a test known as the PAI, or personality assessment inventory, to assist with the psychological assessment of her functioning, Dr M described how that test functions, and concluded that the mother tended to portray herself as being relatively free of common shortcomings, to which most individuals would admit, and there was no evidence to suggest an effort to intentionally distort the profile, and with respect to negative impression management there was no evidence to suggest that the mother was motivated to portray herself in a more negative or pathological light than the clinical picture would warrant.
Dr M found in his assessment that the mother’s responses indicated a significant problem that merited further inquiry. Those areas included unhappiness, disruptions in thought process, physical signs of anxiety, stress in the environment, rumination and worry, frequent routine physical complaints, poor sense of identity, physical signs of depression, tension and apprehension, moodiness and feelings of helplessness. Dr M concluded as a result of the administration of that test that the mother’s configuration of the clinical scales suggested a person with a history of stressors that have resulted in significant reductions in self-esteem, thoughts of hopelessness, pessimism and general unhappiness.
He found that the mother’s responses indicated that she felt quite distressed and acutely aware of her need for help, and that she viewed herself as ineffectual and powerless to change the direction of her life. The disruptions in her life have left her uncertain about her goals and priorities, and tense and pessimistic about what the future may hold. Dr M concluded that those difficulties, as she reported them, together with concentration and making decisions, and the combination of hopelessness, agitation, confusion and stress apparent in those scores on the test may place her at increased risk for self-harm, and I underline or emphasise the word “may.”
Dr M then described a number of difficulties significant [sic] with a significant depressive experience which he observed in the mother’s manifestation to him, and noted also that in the mother’s self-report she described no significant problems in areas comprising antisocial behaviour, problems with empathy, undue suspiciousness or hostility, extreme moodiness and impulsivity, unusually elevated mood or heightened activity or problematic behaviours used to manage anxiety. Dr M concluded that on the basis of the depression, anxiety and stress scale, which was also administered, that the mother’s symptoms, as presented, revealed severe depression, severe anxiety and moderate stress.
He administered a further test, being the Beck Depression Index, second edition, and the Beck Anxiety Index, and found that that indicated that the mother’s current levels of symptoms revealed severe depression and moderate anxiety. Correctly, in my view, Dr M also made an assessment of malingering to determine whether the mother, I surmise, was exaggerating or omitting or presenting a picture which wasn’t necessarily accurate for appropriate assessment by him, and
Dr M concluded that the results from that test, the Personality Assessment Inventory Test, suggested that the mother was forthright in her responses and did not attempt to portray herself in a dishonest manner. That is concurrent – I withdraw that – that is consistent with the manner in which the mother presented her evidence during the course of the hearing and appeared in the witness box.
Dr M then summarised his opinions based upon three possible alternatives. The first question was what would the effect be on the mother’s mental wellbeing if the court ordered that she remain in the [O] area? He set out the basis of his psychological assessment and the stressors which the mother clearly was undergoing, and suggested or opined to as a consequence of the mother’s significant reduction in her premorbid cognitive, emotional and social functioning that he believed her current psychological condition was related primarily to the current matters before the court and satisfied the criteria for an individual experiencing severe psychological distress and impaired functioning in multiple life domains as a result of the Family Law matters under review.
He concluded that with consideration to the mother’s psychological condition that she is experiencing notable distress and turmoil due to her current family situation and residence in the [O] area. He said that in his opinion the mother’s mental wellbeing is likely to deteriorate further if she were to remain in her current family situation and residence in [O]. He was then asked to express an opinion as to what the effect would be on the mother and the possible circumstances of her parenting ability if the court ordered that she remain in [O] with the effect that she would not be able to pursue a family life with Mr F with the father of their child [Z]. After describing the factual circumstances revolving around the mother’s present domestic circumstances and her relationship with Mr F and the father, Dr M concluded that the mother’s parenting capacity is at risk of being compromised if she were to remain in [O].
He does not say as to the extent to which that risk may be compromised or what the effect of it may be. Dr M found that the mother presented in the context of this part of his report as a genuine and sincere individual committed to the best interests of her children rather than self-serving interests associated with living with her current partner, and in his opinion if the mother was not able to pursue a family life with Mr F on the Gold Coast her parenting capacity would be further challenged by sole parenting without sufficient support and financial distress. The mother’s current negative psychological symptomatology and perceived sense of hopelessness, he thought, was likely to further impact on her mood and her physical functioning resulting in lethargy, low frustration tolerance and therefore impacting upon her parenting capacity.
The third question he was asked to address was what would the benefits be to the mother’s mental wellbeing and the effect on her children and parenting capabilities if she was able to relocate to the Gold Coast to commence a family life with Mr F. Dr M considered that the impact upon the children would be minimal in the long term if she were to relocate to the Gold Coast. He considered also that the mother had insight into her eldest daughter being likely to desire her current schooling and peer network not to be disturbed in the Coffs Harbour district, but concluded that the benefits for the children in terms of contact, bonding and attachment with their respective fathers is unlikely to change for Mr Baxter’s children, and [Z] is likely to benefit significantly if she were to be reunited with her father and live as a family.
Well, they are of course matters which I am required to determine based on the whole of the evidence. Dr M concluded that if the mother was enabled to move that not only would her mental wellbeing and parenting capabilities improve but that would appear to be in the best interests of all children due to the structure and routine associated with positive parenting.
I attach little weight to Dr M’s observations in relation to the best interests of the children. That is something for the Court to decide and, of course, his function was to make, in my view, a medical assessment of the mother of her psychological state, and Dr M didn’t have the benefit of the other material which the Court has had.
Mr P was given a copy of Dr M’s report, and was asked whether the mother had reported to him any current feelings of depression, and he said that whilst he did not have his notes with him, he would have identified that in his report if it had been observed. The extent of the mother’s discussion as to this issue is found in paragraph 17 of the report where Mr P reports that according to the mother, her maternal grandmother suffered from some depression, and when he asked the mother if she had any history of any mental health issues, she indicated that she had seen a psychologist on three occasions during this year as she was not coping with the current stressors associated with these ongoing proceedings, and the mother was clear to say that she was not on any medication.
Mr P said he was not in a position to challenge Dr M’s findings. Mr P had said in paragraph 74 of his report that:
“There appears to be little doubt that if the Court supports the recommendations within this report –
that’s Mr P’ report –
that the mother in these proceedings will be initially distressed and angry, particularly given her perceived view of the father’s role with the subject children”.
Mr P thought it would be a positive step for the mother to be engaged in a therapeutic process to enable her to accept any Court decision while simultaneously appreciating that whilst the father’s input with the children may be different to that which she provides that
Mr Baxter still has a significant role and relationship with both children.
In cross-examination Mr P confirmed his view that the mother would experience some loss, and therapeutic intervention by a counsellor experienced in family break-up and loss would be necessary for her. Mr P acknowledged that it was difficult to know how the mother will deal with the decision if it is against her. He said in cross-examination that she would have some emotional fragility and severe stress factors to deal with, including finding a new home in due course and further difficulty with her financial resources if she’s unable to obtain work, and being separated from Mr F.
When I come to consider Dr M’s evidence, I find on the basis of his report that the mother’s mental wellbeing is likely to deteriorate further if she remains in her current family situation and residence at [O]. I find on the basis of Dr M’s report that the mother’s parenting capacity is at risk of being compromised if she were to remain at [O], but I’m not able to make a finding as to whether the risk is low or high or anywhere in between. I find on the basis of Dr M’s report that the mother’s current negative psychological symptomatology and perceived sense of hopelessness is likely to further impact on her mood and physical functioning resulting in lethargy, low frustration tolerance and therefore impacting on her parenting capacity. I find that it is likely to impact adversely on her parenting capacity when I come to weigh the whole of the evidence.
Discussion
There is no doubt the parents are very respectful of each other as parents of their children and have considerable insight into the importance of the children maintaining a relationship with each of them. Neither criticises the other to any great extent, that is, in respect of the other’s parenting capacity, although the mother is mildly critical of the father suggesting that he has not been involved with the children as much as he might, and the father suggests the mother has been restrictive of his time since it became clear the mother wanted to move to [B] to be with Mr F, and the father opposed that requesting his time with his daughters – I withdraw that – realising that his time with his daughters would then be restricted, and that perhaps his relationship with them would be damaged.
I am unable to make a finding as to whose version should be preferred in relation to that evidence. The fact is that the children have continued to see their father fortnightly, in accordance with the orders made in December last year. There is probably, I find on the evidence, less cooperation between the parents since the relationship was fractured, and the evidence establishes that less time has been spent by the father with the children since about mid 2008. However, I find that that, by itself, has not affected the father’s relationship with the children. The father describes his activities with the children in his affidavit. He is clearly, I find on the evidence, engaged with them.
He is interested in them. He makes sure there are interesting activities which they follow together. They live together, in the sense of when they are spending time with him, enjoying all the ordinary aspects of day to day living. The children are aware of his ability to encourage their interest in music and beach activities and surfing. I find on the evidence, that the father is able to provide the children with stimulating activities and it is very clear that the children love their father and that he loves them and that the mother recognises that. It is interesting, in my view, that the children give frank perceptions of their relationship with their father to Mr P and it is clear that is a close and loving relationship.
The mother, equally, has a close and loving relationship with both children. I find on the evidence, that the mother has been their primary carer and that the mother is equally able to provide appropriate responsible parenting for both children, in the same way that the father does, and involves them in interesting activities and is there for them when they would like her to be and for all purposes, the mother ensures that they are properly exposed to stimulating activities. In my view and I find on the evidence, the mother has good insight into the effect of the proposed move to [B] on the children and indeed, she spoke to Dr M about that as well as Mr P.
The father – sorry, I’ll withdraw that. The mother describes [X], in evidence:
“As a brilliant student –
during her cross-examination this is –
“As a brilliant student, very closely involved with her school and was on the student representative council”.
The mother told Mr P that [X] did not want to leave her present school. The mother believed that [X] and [Y] had mixed feelings about the proposed relocation and indeed, that’s consistent with Mr P’ observations when he spoke to them. The mother acknowledged, in her evidence, that the travel is tiring for the children, pursuant to the present arrangements, and that the children could ultimately be resistant to seeing their father if they were to become settled on the Gold Coast and establish new friendships as they grow older and pursue different activities.
On the evidence before me, I find equally that Mr F has a good and developing relationship with both children. That is reflected in the family report by Mr P and the children’s accounts of their relationship with him.
Accommodation
In my view, consideration of the accommodation is a relevant matter in the circumstances of this case. The father has the benefit of rented accommodation for which he pays $150 per week. It is located at [omitted], a little to the north of [O] and 10 minutes from the children’s school. The owners of those premises are working abroad in New Zealand for about three years. He thus has security of accommodation for about that period, as I understand his evidence.
The mother has secure accommodation in what was her grandmother’s house until November 2012. The mother pays the cost of rates, repairs and necessary maintenance. Ultimately, that house will have to be sold to provide for a distribution of the grandmother’s estate to eight beneficiaries.
Mr F lives in his home on the Gold Coast at [B]. In 2006 he bought this home. He assesses the current market value at about $550,000. He paid $535,000. He has a mortgage – he borrowed $570,000 and the personal – the present liability in respect of that mortgage is about $530,000. He explained that the additional amount borrowed related to mortgage insurance. He repays that mortgage at a rate of $940 per week. He also has a house in [O], purchased under circumstances set out in paragraph 15 of his affidavit. It was bought in 2004 at a cost of $240,000.
Whilst he explains that members of his family have equity in that property, it transpires that is not a legal equity in the sense of ownership or moneys being owed to his family, but rather in the sense of a moral obligation which I felt he had, that if the house was sold then they should receive some portion of the proceeds of sale. That house is currently let on a long term lease. It is subject to a mortgage of $210,000. It has a current market value, he assesses, of $330,000. The mortgage repayment is $1500 per month. The rent is $300 per week or about $1300 per month. Mr F pays the shortfall of about $200 per month. Mr F gave evidence that he had thought of selling that house, which would then enable him to find accommodation at [O], or it may improve his financial circumstances in relation to his home at [B].
Employment
The father works, as I have described, as a [omitted] in secure employment. He has a gross salary of about $30,000 per annum with a net take home weekly pay of about $480. His firm closes for the Christmas holidays, to which I have referred, and he gives evidence that he has some flexibility about his hours of work in relation to his responsibilities for his children. Whilst that was not corroborated, I have no reason to reject the father’s evidence in relation to his flexibility with his employment. The father has periods of annual leave. The father has also worked as a [omitted] when the family moved to the [O] district in about 2005.
He had also had other work after separation but the evidence does not enable me to make a finding as to the nature of that work, save that it did take him away from the [O] district for sometimes weeks at a time and would also occur in places around Australia. When I asked the father why he had not made inquiries as to availability of work in [B], he said:
“I can’t afford it due to these proceedings. I don’t own a computer, I can’t afford to move, I pay rent at $150 per week and I imagine rent will be a lot more on the Gold Coast. I do not know how much my legal costs are”.
In answer to further questions in relation to his reason for wishing to stay in the Coffs Harbour district, he said:
“I’m established here. My friends are here and this is my home”.
I’m satisfied, on the evidence before me, that the father has employment skills for which there are likely to be jobs in the [B] district or the Gold Coast at large, both in the sense of his present employment and which he had also pursued in Sydney before he moved to the Central Coast, and in his capacity of being a [omitted]. The failure by the father to inquire as to work prospects on the Gold Coast suggests a lack of insight, given that one of the possible outcomes of this case is the mother being enabled to move to [B]. The father had told Mr P of a possible change of his career path. In evidence in cross-examination, he said he was thinking about work in a [omitted].
As to the mother, she is not currently in employment. She gives evidence about her wish to be engaged in the field of employment for which she is qualified. She hasn’t been able to secure such employment either in this district or in the [B] district on a permanent basis or for significantly more periods of time than she has worked in the past locally, which was very limited and, clearly, until the mother knows the outcome of this case, the prospects of obtaining employment on the Gold Coast are obviously very limited. The mother relies upon a Centrelink benefit of $473 per week. She also receives child support from the father in accordance with the current assessment. That child support is limited and whilst there may have been some temporary difficulty in the father paying that support I’m satisfied on the evidence that it’s currently up-to-date and is being paid.
As to Mr F, he is a [occupation omitted] under the circumstances which he sets out in his affidavit and which I accept, he has secure and guaranteed employment, as confirmed by annexure D to his affidavit. He has been employed by his present employer, [omitted], for five and a half years. His salary is of not less than $100,000 per annum, which I take it, is a gross amount. The father is disqualified from holding or – I’m sorry – Mr F is disqualified from holding or obtaining a driving licence until 20 April 2013.
I have regard to exhibit F2 which relates to RTA records concerning
Mr F. He appeared at [omitted] Local Court on 18 December 2008 for a charge of driving whilst disqualified on 24 October 2008. He was fined $1200 and disqualified from holding or obtaining a driving licence from 20 April 2010 to 20 April 2012. Close examination of exhibit F2 and exhibit F3 reveals that Mr F has a poor driving record, in fact, it is an abominable driving record. He has convictions for driving whilst having the prescribed concentration of alcohol in his blood, both at a higher level and at a lower level.
Whilst those convictions took place some time ago and I take into account the whole of those exhibits and whilst it was suggested that perhaps Mr F may have a problem with alcohol, which he certainly did not acknowledge, there is no evidence before me that his ability to care for these children when it is necessary is impaired by his consumption of alcohol. The difficulty, of course, with Mr F is his ability to work but in that sense he is able to obtain lifts to and from work in Queensland and I accept that evidence. He, because he cannot drive, has used the services of long-distance coaches to travel to Coffs Harbour on some occasions. He is then required to leave at about 5.00 pm on a Friday and arrives here in Coffs Harbour at about 11.00 pm. He returns on the Sunday at about 11.00 pm and arrives on the Gold Coast about 6.00 am and goes straight to work. I think I can take judicial notice of the fact that there is also a frequent train service provided by Countrylink between the Gold Coast and these districts.
It seems to me that the father’s loss of a driving licence is a matter for which he must take – sorry, Mr F’ loss of his driving licence – is a matter for which he must take responsibility. He was declared, as a consequence of previous convictions, an habitual offender which attracted, by itself, a period of disqualification. The recent occasion in 2008 was not the first occasion upon which he had been arrested for driving whilst disqualified. It seems clear to me that, given the leniency which the courts seem to have extended him, that there’s a real prospect of Mr F being imprisoned, if he is arrested again, for driving whilst disqualified and it seems to me that this should be brought home very clearly to Mr F and the mother’s notice. The mother tells me, and I accept, that she has knowledge of the reasons for Mr F’ disqualification and his driving record. Mr F was cross-examined as to what he would do if the mother was obliged to stay in this district and he said, and I quote:
“I would have to stay at [B] to support the family and the girls. I am financially not able to move”.
Mr F had worked in this district in 1999 under circumstances which he sets out, but more significantly, between August 2009 and 5 February this year. That was work as a [omitted] which work was terminated as a consequence of a failure by the [employer] to provide funds, as I understand the circumstances. During that time he lived with the mother and the children and [Z] in the [O] district. I’m satisfied that Mr F has made enquiries locally as to the possibility of both [omitted] work. It is clear that he is qualified to do both. Mr F gave evidence of the inquiries he had made locally naming persons of whom he had enquired of. I accept that evidence.
I accept Mr F’s evidence that he perceives there would be difficulty obtaining employment in this district. I take into account also that, whilst it is of his own making, Mr F will be severely hampered without a driving licence whether he were to endeavour to conduct his own business or establish his own business, either as a [omitted]. In fact, I find on the evidence it would be almost impossible for him to work in that capacity unless he had someone who could drive him everywhere and that seems unlikely on the evidence before me. It would be unrealistic to expect the mother to do that, given that she has a young baby to look after.
Equally, it would be unrealistic to expect that Mr F could find employed work in this district when he is not able to drive. It imposes a considerable responsibility on those who may like to employ him to provide transport and that probably is unrealistic. It would also be a significant salary reduction which Mr F assesses will be $750 per week in this district and clearly would not be sufficient income for Mr F to meet his very extensive financial responsibilities.
For those reasons I do not accept Mr P’s conclusions set out in paragraph 71 of the family report that Mr F has greater capacity to relocate his place of residence and his employment to this district, in fact, the evidence is to the contrary. When I come to compare the ability of the father and Mr F to consider relocating I find on the balance of probabilities that the father is better equipped to move, if he is of a mind to do so. Significantly, though, the father was asked in cross-examination what he would do if the mother went to [B] and he said this, and I quote:
“I’d follow, but don’t know how long, I daresay”.
Travel
Both the mother and the father and Mr F all acknowledge the disadvantages of the present arrangements and the undesirability of the children travelling to and fro as they presently do. What happens is that fortnightly the mother takes the children on a Friday afternoon to [B] and then comes back on the Sunday or sometimes on the Monday morning.
The mother agreed, in cross-examination, that this journey fortnightly for the children, all three children that is, is very tiring for them. The mother leaves this area at about 3 pm and if she doesn’t stop at [W] or somewhere else, it takes between three and a half and three and three quarter hours if there is no stop. If she stops, it’s about four hours. I was left with the impression that the mother prefers to stop, if only because she has children of this age travelling with her and it’s likely that there will be a need to stop from time to time. The mother was cross-examined extensively as to any absences of the children from school as a consequence of her journeying to and fro. I’m satisfied that during 2009 and 2010 there was no more than one occasion in each year as a consequence of either leaving early or coming back on the Monday due to travelling to Queensland.
Mr F has provided the mother with a Nissan Navara Dual Cab new motor vehicle, which he is funding himself, to enable the mother to travel with some degree of comfort. However, that does not relieve the children nor indeed their mother of the tedium of such a journey and inevitable difficulties of travelling by road. The father would have the ability to travel to [B] if the children are going to live there, either by driving himself or travelling by coach or travelling by train. There is no suggestion, on the evidence before me, that he cannot do that.
Health
The father’s health is good, on the evidence before me. He does not suffer from any disabling or restrictive illness.
The mother has in the past suffered from Meniere’s disease. Presently it is in remission and has been in remission for about two years. That certainly has presented her with some difficulties in the past and she suffers from a hearing loss of 40 per cent in one ear but that does not affect her parenting capacity or ability. It is the issue of depression or the possibility of depression affecting the mother which requires some closer examination. In exhibit M1 – in addition to the mother’s own evidence that she had consulted her doctor, her GP, a Dr L, there is an assessment within exhibit M1 of 11 December 2007 where it is noted, when the doctor considered a diagnosis, that her grandmother had died about one year previously and she had a break up relationship prior to that, and that clearly is with Mr Baxter, and there were two children. And she used some Ziovan some three weeks previously and felt that she was going nuts as she told her doctor.
She told her doctor that she had had some ongoing mood problems since that time, with a previous history of lows. never any specific medication, lots of periods of wanting to run and previously those periods had lasted up to a month. Currently, she told Dr L, it was similar but seemed worse over the previous six weeks. She gave a history of her sister and her grandmother being on antidepressants and that her mother had, potentially, a personality disorder. Dr L, and it must be borne in mind that he is a GP, but his initial diagnosis or formulation was that the mother was then suffering from some depression which was moderate and recurrent. He gave her some advice about eligibility for the Better Outcomes in Mental Health Care initiative.
I’ve referred to the mother seeing a psychologist at about this time previously in these short reasons for judgment. In April of 2010, there is a note by Dr L that, in relation to her mental wellbeing, there was a telephone consultation and the mother confirmed that she was seeing Dr D. During cross-examination the mother said that she suffered from depression. She said it affected her terribly – this was put in response to questions following Mr Davies being able to consider Dr M’s report. She said it was very difficult to maintain a quality of life. She said that she put on a brave face and that she found it difficult to cope – I’m sorry, very difficult to cope from time to time. She said that she was not on medication and that she could not take medication because she was still breastfeeding [Z].
Application of section 60CC and the legal principles
I turn then to consider the matters I am required to consider, pursuant to section 60CC of the Act. I will just pause to suspend delivery of reasons. This will take a little while. If anybody wants a break, then we can break now for five minutes.
Turning to the matters I’m required to consider under section 60CC and the application of those principles, as to section 60CC I make the following findings. In relation, firstly, to the primary considerations which are:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
I find on the evidence before me, that there is a very significant benefit for both [X] and [Y] to continue to enjoy and benefit from the meaningful relationship each currently has with both their parents. It is clear, on the evidence before me, that both parents love both children very much and that each parent has much to offer each of their children. I’m satisfied, on the evidence, that the mother has recognised the importance of both children maintaining a relationship with their father and even though some difficulties have occurred, I’m satisfied on the evidence, that relationship has been developed and fostered with their father, notwithstanding that it has taken place only on a fortnightly basis during school terms and for portions of the school holidays.
The issue I am required to decide is whether the meaningful relationship which currently exists can be continued, either by both children continuing to live in the Coffs Harbour district with their mother or moving with their mother to [B] and either visiting their father in Coffs Harbour or he visiting them in [B]. There is another possibility of course and that is whether the father is able to move to [B]. But I conclude, on the evidence before me, that both children will be able to maintain a benefit from a meaningful relationship with both parents, irrespective of where they live, that is either here or in Queensland.
I am equally satisfied that irrespective of where they live, both parents have recognised the importance of communication between the children and their father which currently takes place a few days a week, if not most days. I think the evidence was something in the order of four to five days a week. And similarly, that when the children are with their father, the mother enjoys a similar telephone communication with them. It is to the credit of both parents that telephone communication has not been restricted. Equally, I’m satisfied that if the children are living in Queensland, the mother would ensure that the children have communication by electronic means with their father in the form of – the term will come to me. It’s a derivative of a precursor to Skype – webcam and telephone.
However, it would remain for the father to install that facility or ensure he has access to that facility. Whilst the father told me he does not have a computer, I think I can take judicial notice of the fact nowadays that computers can be purchased with facilities such as these at a reasonably nominal cost and inside – I’ll withdraw that – and likely to be within the father’s financial capacity.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I’m satisfied, on the evidence, that neither parent would willingly expose either child to risks of this nature. On the evidence before me, there has been no such risk and consequently the need for protection does not arise.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
I’ve referred to the family report, paragraphs 58 and 63 in relation to the views expressed by both children. It seems to me that the children do in fact, on the evidence, have some mixed views. It seems to me that, given [X]’s age, now nine years of age, I can attach little weight to her expressed views but I take them into account. Similarly with [Y], who is just six years of age. They are not sufficiently mature, in my view, to express a valid wish to which I could attach any weight and it’s clear – I’ll withdraw that. It is not surprising that, given their awareness of the consequences of what is proposed in the sense that the children do travel frequently now to [B], they are aware that their mother would like to live there with their little half sister. The father would prefer that they stay in the same district but they are perhaps unable to express a valid view.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
As I have said, there is no doubt on the evidence before me that both children have a fond, close and loving relationship with each of their parents. I am satisfied, on the evidence, that both parents have much to offer each of their children and will continue to do so and to be able to do so, irrespective of whether they are living in the Coffs Harbour district or on the Gold Coast.
(ii) other persons (including any grandparent or other relative of the child);
The evidence is, again, that there is no – I’ll withdraw that. The nature of the relationship with the maternal grandmother is a loving and fond relationship. She pops in to see them in the mornings, if she is able to, before they go to school. She works at [omitted] in the district where they live. She is in full time employment. The paternal grandparents live on the – sorry, I’ll withdraw that. The maternal grandfather lives on the Central Coast but for reasons I have given, he is able – withdraw that. The maternal grandfather is able to visit these districts from time to time. There is no reason to presume that that would be discontinued or cease.
The paternal grandparents live on the Central Coast, as I have described, and other members of the father’s extended family live either on the Central Coast or in the Taree district. I am satisfied, on the evidence, that both children have a close and loving relationship with each member of their extended family and that that will continue, whether or not the children are living in the [O] district or Coffs Harbour district or the Gold Coast.
(c) 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;
Whilst there is some dispute on the evidence as to this issue and to which I’ve referred and in respect of which I’m not able to make a finding, I’m satisfied, on the evidence, that both parents will continue to ensure that both children spend time with their father, irrespective of whether they are living in this district or on the Gold Coast. I’m satisfied also that both parents have the ability to ensure a close and continuing relationship.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
On the evidence before me, it is likely that there will be no separation from their mother and that they will live with her either in this district or on the Gold Coast. If the children stay in this area, there will be no separation from their father and he will continue to see them. He seeks some extra time, to which I have referred in this application and which I find would be appropriate, as to mid week and frequency and, indeed, that’s also supported by Mr P, not perhaps quite to the same extent the father would seek. If the children move to the Gold Coast, I find it is likely that there will be no significant separation from the father. The mother makes certain proposals as to holiday times and there is no suggestion their father would be prohibited or prevented from spending time with the children, both in this district and on the Gold Coast.
It is likely that the children will miss their father initially if they move to the Gold Coast but I’m satisfied that their relationship with him is well-established and that they would be able to cope with any initial change in the frequency of spending time with him.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother has given evidence that her mother, who lives in [O], would probably move to the Gold Coast if the mother were to move there. The maternal grandmother hasn’t given evidence in these proceedings. I have no reason to disbelieve the mother’s evidence in that respect. As to when and how it would be effected would remain to be seen if the mother moves. The maternal grandfather may not be able to see the children quite as frequently but, I suppose, if he is prepared to make the journey to Coffs Harbour, and whilst it’s a significantly further distance to the Gold Coast, he may nevertheless be prepared to do that. I can take judicial notice of the facility to fly, either from Sydney or Newcastle to the Gold Coast.
Similarly, it seems to me if the children are living in the Coffs Harbour district their ability to spend time with the paternal grandparents and family will not be affected because the father will be able to continue to travel to those districts during extended holiday periods. In summary, doing the best I can and given the significance of the relationship which the children have with each – or with both the maternal and the paternal grandparents – it seems to be there will be no significant change in respect of where they are living.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This matter is a significant issue in the circumstances of this case, not in the sense that it represents a financial burden which becomes prohibitive, of course, it does represent a financial burden but it’s not one which on the evidence before me the parents have not been able to meet. The real difficulty lies in the travelling time to which I have referred.
Extended car journeys – and the mother has acknowledged, of course, the journey’s time for the children – the extended car journeys for children of this age are tiring; they’re boring. I can’t ignore the inherent risks of travelling by road, that particular road between [O] and the Gold Coast. There are inherent risks and dangers in travelling by road. Any proposed change – [W] is clearly appropriate for the reasons that I have given – if it is that the mother is to go to the Gold Coast then the travel can be shared between the parents by changing over at [W]. I have referred to communication and it seems to me there’s no financial disincentive or prohibition in relation to communication by the methods which I have described. There is also, of course, the facility of text messaging and email once the father acquires a computer.
(f) the capacity of:
(i) each of the child's parents; and
ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I have no hesitation in finding on the whole of the evidence before me that both the mother and the father are able to provide not only for both children’s day-to-day physical needs but also their emotional and intellectual needs. The parents are, as I have said, respectful of the other’s ability, to look after and care for the children and foster their development. I make the same finding in relation to grandparents on both sides and other members of the extended family.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
There is none. I have made earlier observations and findings as to the children’s nature and personality and no further observation or finding is necessary.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This has no application on the evidence before me.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I find on the evidence before me that both parents have displayed an appropriate attitude toward their children and to the responsibilities of parenthood toward them individually. It is perhaps unfortunate that to a limited extent the parents could be said to have failed in their responsibilities of parenthood following separation in failing to communicate at all times successfully about their children, particularly since mid-2008 when it became clear the mother wished to relocate and the father was resistant. And further, in failing to come to a practical resolution as to the matter now before the court. It could be said though, on the other hand, that the parents in this case and indeed Mr F have faced and, indeed, face a dilemma, about which or for which there is no easy solution.
I find in all probability that with the cessation of litigation and whatever the decision is that the parents ought to be able to improve their relationship with each other and communicate more successfully although, in reality, one parent will be upset and distressed and the other will be pleased with the outcome, but nevertheless will probably have some concern for the other parent as a consequence of their relationship with each other, which I find is respectful and sincere.
I was left with the impression, from the manner in which the parents gave their evidence, that they would both like to improve their communication but both recognised the cause of the present impasse in that respect. Nevertheless, it is to their joint credit that their children, it seems to me, and I find on the evidence, have not been affected adversely at all by their present difficulties with each other.
(j) any family violence involving the child or a member of the child's family;
Family violence has no application in these proceedings.
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
There is no current family violence order in force. That has no application to these proceedings.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I would like to think that the orders that I make would avoid the need for further proceedings and I will endeavour to make orders to obviate that need.
(m) any other fact or circumstance that the court thinks is relevant.
I think it’s particularly relevant to try and ensure that the children are not exposed to the same frequency of travel as a consequence – I withdraw that. They not be exposed to the same degree of travel to which they are currently exposed. To travel fortnightly in the manner in which I have described is not in either child’s best interests.
I accept that the mother has tried to bring about a system of fairness to ensure that [Z] and the girls, if I may call them that, spend time with Mr F, her partner, but equally are able to spend time with their father. As Mr Davies pointed out quite rightly in his submissions, it is always open to the mother to travel to and from Queensland with [Z] alone whilst the girls are spending time with their father.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
The court is required to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the children’s parents has taken or failed to take the opportunity and the legislation is set out. I don’t propose to read that into these reasons for judgment at this stage but it will appear if a transcript is required. But I’m satisfied that both parents have fulfilled their responsibilities as a parent and have taken the opportunity to ensure the children spend time with each of them and communicate with each of them and have fulfilled their obligations in relation to financial support. As I have said, the father pays child support and continues to pay child support, albeit in a modest amount.
Section 61DA
When making a parenting order the court is required to apply a presumption, that it’s in the best interests of the children for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in this section. This is a case where I’m clearly satisfied that I should make an order for equally shared parental responsibility and, indeed, both parents seek it.
Section 65DAA
Consequent upon making an order for equal shared parental responsibility the court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances. The court must also consider whether the spending of equal time or substantially significant time is in the best interests of the child and is reasonably practicable. Section 65DAA(5) defines the matter to be taken into account. I don’t propose to read those into these reasons.
I find on the evidence before me that if the mother stays in Coffs Harbour then it is not in the best interests for the children to spend equal time with each of them for the reason that this would involve a significant separation of them from their mother; it would involve a significant separation from their half-sister [Z]; it hasn’t occurred since separation and I have some doubt as to whether it will be effective. Further, the father has not sought such an arrangement. Further, I find that it would not be reasonably practicable. The father’s working hours preclude him from effectively looking after the children in the morning before he goes to work. He goes to work at an early hour, as I have said, and currently he takes the children back to their mother’s home on Monday morning at 6.00 am to enable him to go to work. The children get up at about 5.00 am, I think it was, or 5.15.
I find on the evidence that if the mother remains in Coffs Harbour, it’s in the children’s best interests to spend substantial and significant time with their father as they do now and I find also on the evidence that it is reasonably practicable for that to occur.
If the mother is enabled to move to [B] and the father remains in Coffs Harbour, I find it is not in the children’s best interests or reasonably practicable for equal time to occur by virtue alone of the distance between the two places of residence and the requirement to attend school and for that not to be disturbed.
On the other hand I find that if the mother is enabled to move to the Gold Coast and the father also moves to the Gold Coast again, for the same reasons, equal time is not in the children’s best interests at this time but clearly substantial and significant time is in the children’s best interests and I would adopt Mr P’s recommendations in relation to the time the father can spend with the children, that is, alternate weekends which are extended from Friday and back to school Monday, an evening during the week and when [Y] attains the age of seven years for that to be one night in each week overnight.
The advantages and disadvantages of the respective proposals
The advantages if [X] and [Y] remain in [O]
On the evidence before me they’re well settled here, they’re stable at their respective schools. [X] is doing extremely well at school, there’s no reason to think that [Y] wouldn’t do otherwise. They spend time with their father without difficulty. He is close to where they live and I have described the activities which they enjoy with him. They are close to their maternal grandmother who lives in the same district, they’re relatively close to the paternal extended family and whom they see during school holiday periods. They have secured accommodation with their mother for a period of two years.
The disadvantages if [X] and [Y] remain in [O]
The disadvantages if the children remain in [O] are that the mother is likely to have continuing restrictions in relation to obtaining appropriate employment, [Z] remains separated from her biological father, there is travel of about four hours which I have described each way when the mother travels to [B] and there is no doubt in my mind that the mother would wish to continue doing that. The mother, I find on the evidence, would remain unhappy and stressed if she is required to stay here. Her mental well-being, on the evidence, I find is likely to deteriorate further and I cannot ignore the continued break from her relationship with her partner in that context. It seems to me also that her current perceived sense of hopelessness and negative psychological symptomology is described by – sorry, identified – by Dr M – are more likely than not to impact adversely on her parenting ability.
The advantages if [X] and [Y] move to the Gold Coast
The mother and [Z] and the children and Mr F are then together and able to live in the place where they currently stay fortnightly. I find on the evidence that that accommodation is secure. I find also it’s appropriate accommodation and whilst it’s currently being extended and has not yet been extended completely and requires a bit of work to finish it off – and which Mr F is doing himself – nevertheless it’s appropriate accommodation. I find also, and it’s significant in my view, that the mother’s anxiety and risk of mental health deterioration, as identified by Dr M, is likely to be ameliorated very significantly. I find also that the children would not be exposed to the same degree of travel save that, if they see their father in Coffs Harbour, their frequency of that would need to be addressed.
The disadvantages if [X] and [Y] move to the Gold Coast
The disadvantages of the children moving to the Gold Coast if the father doesn’t move his place of residence are that there may be some reduced time spent with their father but it would not be significant under the orders I would propose to make in those circumstances. He would have limited involvement with the girls’ friends in the district where they would live and, equally, he would have limited involvement in their school activities and a relationship with their school teachers which he currently enjoys. However that disadvantage can be addressed with appropriate orders, in my view.
I cannot ignore the possibility, again as a disadvantage, that on the evidence before me the relationship between the mother and Mr F is not a tested relationship over a long period of time in the sense of them living together. If that relationship were to fail, and that could not be ruled out in all the circumstances, there would be considerable upheaval for the children but, on balance, I consider that possibility to be remote.
If on the other hand the father does move to the Gold Coast then those disadvantages are ameliorated.
Conclusion
This is a finely balanced case, in fact, it’s a very finely balanced case. It epitomises the difficult choices parents must make when a relationship breaks down and one of the parties meets someone at a distance and then wishes to relocate to that place and there is distance involved and it’s further complicated by there being a young child of that new relationship. In some respects, there could be no satisfactory resolution to this case. These are parents who have worked very hard at being parents. Neither has engaged in any aberrant behaviour. Mr F is no doubt able to be an appropriate stepfather to these children, whilst at the same time recognising, in my view, and respecting the father’s role as their biological parent.
When I compare the proposals and the advantages and disadvantages to which I have referred, and I look at the whole of the evidence, my conclusion at the end of the day is that I give greater weight to the mother’s proposal to move with the children to [B]. My reasoning is this: I cannot ignore the father’s own evidence that he is able to move to the Gold Coast. I was left with the distinct impression that, as a consequence of this decision that I am making today, the father will move once he finds work and accommodation. My reasoning is that he is a devoted father; these are his only children; he wants to maintain a relationship with them; he wants to spend time with them. It is a relationship which is constructive and meaningful for them and also him and I find on the evidence for the reasons that I have given that he is able to move.
Now, I cannot escape the father’s alternate application, that the children live with him. What the father sought was that the children live with him if in fact the mother was going to move to [B]. That, in my view, was never a viable proposition on the evidence before me and it was not pursued with any vigour and quite rightly so, in my view, by his legal advisers. I accept Mr P’ observation or conclusion in paragraph 70 of the family report, and I quote:
“It is fair to say the father did not convince the family consultant of his capacity currently to be the children’s primary carer in the foreseeable future”.
If the father does not move or decides to move or there is a delay in his moving, he can spend substantial and significant time with the children in Coffs Harbour and also on the Gold Coast, although that would involve some expense for him. But in my view the children’s travel needs to be kept to a minimum. This can be achieved by the father spending time with his children in Coffs Harbour two weekends each school term, with the children to travel for that purpose and changeovers to take place at [W]. The father can then spend further weekends with the children on the Gold Coast that would necessitate his travelling to the Gold Coast for that purpose. I’m satisfied he can do that and I have in mind that he would travel up on the Friday when he finishes work.
He finishes work at a reasonable time and he could, if he is able to, obtain leave from work on the Monday, come back on the Monday and if he is not, then his time can conclude on the Sunday afternoon at about 5 o’clock. To counteract that, because it seems to me that the father perhaps may not be able to travel to Queensland at the frequency which I would prefer, at least until he moves, then he should have and he should continue to have, whilst he is not living in the Gold Coast, extended holiday periods during the holiday periods at the end of the second and third school terms and they should be 10 days of each of those school holidays. That is, from the first Monday until the second Friday. He should have half the Christmas holidays and he should have half the Easter holiday break or the period at the end of the first school term.
When I come to compare what that means in real terms as to the father’s time with the children currently, pursuant to the existing orders, he sees the children from Friday into Monday morning or three nights per fortnight. That would range between 48 and 60 nights during the year and for the half holiday periods he has it probably gives him somewhere between 83 and 102 total nights. To some extent it’s an exercise that I’m currently carrying out which has an air of artificiality about it because it depends upon length of holidays, changes for some reason and other differences.
Under the orders that I will make and under the proposals which I have outlined the father would have a total of about 45 nights with the children as a consequence of the holidays and as a consequence of weekends in Coffs Harbour and those weekends, if he is able to maximise them before he moves to the Gold Coast – if indeed he is to do that – the total of about 85 nights. Then again they vary a little way but it’s not significantly different from the amount of time he currently enjoys. Of course, it’s not a matter of time, it’s a question of what happens during the periods of time. I’m satisfied that the father, in all probability, could obtain leave from his employment for those periods of time, extended periods of time, during the school holidays.
I find also, and it’s significant in my view, that the children have a well-established and secure relationship with their father. If they were very young children they would not be able to withstand time away from him under the orders that I have proposed. When I come to compare the balance of time to be spent with the father, it is the security of their present relationship which enables them to have continuing meaningful time with their father. Whilst in the longer term it doesn’t necessarily represent an increase, it does represent the continuity of their present relationship and it’s to the father’s credit and he has ensured that relationship is being maintained. Of course it becomes quite different if the father moves to the Gold Coast.
Insofar as matters concerning the mother’s health, those issues were identified by Dr M. I have much greater confidence that those difficulties identified by Dr M will resolve in all probability in their entirety if the mother moves. I am concerned that the risks identified by Dr M may well result in deterioration in her health. I am not able to ignore those risks and I take into account, in particular, that the mother did not adduce any evidence in her own case that she was adversely affected. But as the mother said when she was cross-examined by
Mr Davies, and I find realistically she is probably able to put on a brave face only for so long, and ultimately something will change to her detriment.
Insofar as concerns Mr P’s report and his recommendations he didn’t have the benefit of seeing or listening to the evidence and whilst that is no criticism of Mr P I must, of course, make a decision based on the evidence. Mr P said that if both parents and the children move to the Gold Coast district any adverse effect upon the girls would be minimised.
I accept the father may be bitterly disappointed at first with my decision. I would expect him to be and whilst the court can empathise to some extent with his predicament, I am required to make a decision in the children’s best interests and not the parents’ best interests. But the father impressed me as a pragmatic young man and that he will, when the dust settles as it were, think carefully about his options.
I’m satisfied that he presented to me as a young man who will cope with the reality of his children moving, as I say, once he comes to terms with the decision that I have made, and I am satisfied that he will wish to maintain his present relationship with his children. I am left, also with the distinct impression that the mother will be sensitive to the father’s sense of loss, as he would perceive it. I’m satisfied that in the past the mother has been sensitive to aspects of their relationship both when they were living together and in subsequent times.
I have taken into account the right of both parents to choose their place of residence and their freedom of movement. I have considered very carefully in this particular case because it is so finely balanced, whether it is possible for the court to formulate a different arrangement for the children from that proposed by the parents and, regrettably, I conclude that I am not able to do so. I make the following orders. Now, my court officer will bring those orders down to you, there’s no need for you to record them, but you can read them from the document, and I publish those orders.
You will see, when you read those orders, and I will give you time to read them unless there’s anything else either of you wish to raise with me, that the mother should remain here until the end of December. In my view it’s not appropriate for the mother to move – I should add this as an addendum to my reasons and I do so – it’s not appropriate for the mother to leave now. The children need to complete their present term at their school, to be able to say goodbye to their friends and I understand the school term comes to an end next Friday, and there will be, no doubt, some matters to occur over the Christmas period and the mother can then move at the end of December.
I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of Coakes FM
Date: 22 December 2010
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