Duggan and Starr
[2008] FMCAfam 187
•26 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DUGGAN & STARR | [2008] FMCAfam 187 |
| FAMILY LAW – Relocation. |
| Family Law Act1975 – ss.60B, 60CA , 60CC, 61DA and 65DAA |
| Taylor & Barker [2007] FamCA 1246 |
| Applicant: | MR DUGGAN |
| Respondent: | MS STARR |
| File number: | BRC2947/2007 |
| Judgment of: | Howard FM |
| Hearing date: | 1 November 2007 |
| Date of last submission: | 1 November 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 26 February 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Carew |
| Solicitors for the Applicant: | Barry & Nilsson Lawyers |
| Counsel for the Respondent: | Mr Page SC |
| Solicitors for the Respondent: | Georgeson & Co. |
ORDERS
That the mother and the father be individually responsible for making any day to day decisions concerning the child, C born in 2006, during that time that the child lives with each of them in relation to issues that are not major long term issues.
That the mother and the father have equal shared parental responsibility in relation to the child.
That from 26 February 2008 onwards:-
(a)the child live with the Mother;
(b)the child spend time with the Father as agreed, but failing agreement as follows:-
(i)each alternate weekend from 5.30 pm Friday until 5.00 pm Sunday, or in the event that Monday is a public holiday 5.00 pm Monday;
(ii)in the intervening week from 5.30 pm Friday until 8.00 am Saturday;
(iii)every Tuesday from 5.30 pm until 8.00 am Wednesday morning;
(iv)for four weeks per year upon the father providing to the mother:-
A.written notification of his intention to spend time with the child, not less than one month prior to the intended care period commencing;
B.if the father is travelling overseas, an accurate itinerary detailing the travel plans with the child and a copy of the plane tickets associated with that travel.
That once the child commences prep year at school Order 3 be suspended during school holiday periods and the parties share the care of the child during the school holiday periods as follows:-
(a)that the father spend time with the child for the first half of the holiday period and the mother spend time with the child for the second half of the holiday period in each odd numbered year;
(b)that the mother spend time with the child for the first half of the holiday period and the father spend time with the child for the second half of the holiday period in each even numbered year.
That in addition to the time the Father spends with the child in accordance with Orders 3 and 4 hereof, the Father spend time with the child:-
(a)from 9.00 a.m. Christmas Day until 5.00 p.m. Boxing Day in the year 2008 and each alternate year thereafter;
(b)on Father’s Day each year for a period of not less than four hours;
(c)on the child’s birthday for a period of not less than four hours;
(d)on the Father’s birthday for a period of not less than four hours;
(e)for the Easter holiday period commencing Good Friday and concluding Easter Monday in the year 2009 and each alternate year thereafter.
That the Father collect the child from the Mother’s residence at the commencement of his time with the child and the Mother collect the child from the Father’s residence at the conclusion of the Father’s time with the child.
That the child attend a school, as agreed between the parties, or failing agreement within 25 kilometres of Brisbane.
That the parties be restrained from removing or attempting to remove the child from the Commonwealth of Australia without the express written consent of both parties.
That the Mother and Father may communicate with the child during those periods when the child is not living with them, including communication by letter, email and any other electronic means and by telephone at all reasonable times.
That each party shall inform the other as soon as reasonable in the circumstances, about any significant injury, medical or health issue concerning the child.
That the parties be entitled to participate in all aspects of the child’s schooling including but not limited to parent/teacher interviews, speech nights, concerts, sports carnivals and further, that the parties share and assist the child equally in preparing art work, craft and written work produced by the child.
NOTATIONS:
It is noted that the paternal grandmother is willing to look after the child while the Mother works – on such occasions and at such times to be agreed between the Mother, the Father and the paternal grandmother.
It is also noted that in addition to paragraph 12 the Father is prepared to pay for up to two days child care per week in respect of the child to assist the mother with her working arrangements.
IT IS NOTED that publication of this judgment under the pseudonym Duggan & Starr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC2947 of 2007
| MR DUGGAN |
Applicant
And
| MS STARR |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant father in this case is Mr Duggan. The father was born in England in 1964.
The Respondent mother is Ms Starr. The mother was born in New Zealand in 1976.
The father’s Application is for parenting orders which would enable him to spend a gradually increasing amount of time with the child (C born in 2006).
The mother seeks parenting orders that would enable her to relocate with the child to live in New Zealand.
The parties commenced cohabitation in Sydney on 7 July 2004. They subsequently relocated to Brisbane in December 2004.
The parties separated on a final basis on 4 March 2007.
C is the only child of the relationship.
The child currently lives with the mother and spends time with the father. Consent orders were made on 7 June 2007 by His Honour Federal Magistrate Slack. Those orders provided that from November 2007 the father is to spend time with the child:-
a)each Tuesday from 5.30 p.m. to 7.00 p.m;
b)each alternate weekend from 5.30 p.m. Friday to 4.30 p.m. Sunday, or in the event that Monday is a public holiday, 4.30 p.m. Monday; and
c)in the intervening week from 5.30 p.m. Thursday to 8.00 a.m. Friday and each alternate week thereafter.
Section 65DAA
I have had regard to the recent decision of the Full Court of the Family Court in Taylor & Barker [2007] FamCA 1246. At paragraphs 61 – 63 it was stated:-
“61.It is also apposite to say in connection with Ground 5, that there was considerable discussion before us as to the appropriate order in which the presently relevant provisions of Part VII of the Act (notably s 60CC and s 65DA) should be considered by a Court in determining a case such as the present.
62.The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63.We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
Later at paragraphs 81, 82 and 83 the Court stated:-
“81.We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that 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. However 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’.
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.
83.However, consistent 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 a child in a case to spend ‘equal time’ or ‘substantial and significant time’ with each parent.”
Having regard to paragraph 82 of the decision in Taylor I do not find it necessary (in this case) to refer to the earlier authorities concerning relocation cases. In view of the comments by the Full Court at paragraphs 81, 82 and 83 of the decision I find it more appropriate and convenient in this case to deal with s.65DAA of the Family Law Act 1975 at the outset. To reiterate, the Full Court has said that the options of the child spending “equal time” or “substantial and significant time” with each parent must 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”.
There is no dispute between the parties that the presumption of equal shared parental responsibility referred to in s.61DA of the Act applies in this case.
In relation to s.65DAA(1) (equal time) neither party contends for an order that the child should spend equal time with each of the parents at this stage in the child’s life. The father seeks an order that, eventually, would enable the child to spend equal time with each parent. The father proposes that this commence when the child starts his prep year at school in 2010. I do note, however, that the child will only turn 4 years of age in January 2010. It is not clear to me whether the child will begin his prep year in 2010 or 2011.
In any event I do not consider it appropriate in this case (in particular having regard to the young age of the child) for the Court to make an order that far into the future. A party’s circumstances may change substantially in the interim period. So far as matters currently stand neither party seeks an order that the child spend equal time with each parent at this point in time.
Section 65DAA(1) requires the Court to “consider” whether equal time is in the best interests of the child. In circumstances where neither parent contends for such an order at this stage in the child’s life I do not consider that it is in the best interests of the child to make such an order.
Substantial and significant time
The term “substantial and significant time” is defined in s.65DAA(3) as follows:-
“65DAA(3) [Substantial and significant time] for the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
Both parties in this case accept that each parent has a good relationship with the child. Both of these parents have demonstrated good parenting skills and a willingness to accept and discharge the responsibilities of parenthood. Both parents are very keen to continue participating in the parenting of C.
The mother gave evidence that the relationship between the father and the child is “fantastic”. The mother also has an excellent relationship with the child.
In my view, there should be an order that enables the child to spend substantial and significant time with both parents in accordance with s.65DAA(2) and s.65DAA(3). I am of the view that an order that the child spend substantial and significant time with both parents is in the best interests of the child in this case, C. My reasons for reaching these conclusions are (essentially) stated in paragraphs 16 and 17 herein and from paragraph 19 onwards herein.
The relocation proposal
An integral part of the mother’s proposal is that she be permitted to relocate with the child to New Zealand.
In accordance with the Full Court’s decision in Taylor & Barker (supra) the mother’s relocation proposal now has to be balanced against the finding that the child should spend “substantial and significant time” with both parents.
Mr Page of Senior Counsel appeared on behalf of the mother and submitted that the mother’s proposal to relocate with the child to New Zealand will still enable the child to spend substantial and significant time with the father.
If the child is living in New Zealand and visits Australia for 4 – 6 weeks each year (as proposed by the mother) the child will not be attending child care, kindergarten, pre-school or school in Australia. Essentially, therefore, the child will be “holidaying” in Australia. The mother’s proposal does not allow compliance with s.65DAA(3)(a)(ii).
Further, s.65DAA(3)(b)(i) provides that the child is to be taken to spend substantial and significant time with a parent only if “… the time the child spends with the parent allows the parent to be involved in the child’s daily routine”.
In my view, the child’s “daily routine” refers to the child’s daily routine on an average, normal day. This would include (in a given case) a parent attending and being able to assist and be involved on parent days at child care centres, kindergarten, pre-school and school. It would also include attending at school concerts, assisting with homework, attending at school sport and other extra curricular activities.
This could not be achieved if the child is living in New Zealand and the father is in Australia.. If the child lives in New Zealand and comes to spend time in Australia the child will essentially be “holidaying overseas” for 4 – 6 weeks per year while spending time with the father (as proposed by the mother). In my view, this proposal does not allow compliance with s.65DAA(3)(b)(i).
In respect of s.65DAA(3)(b)(ii) the time the child spends with the parent must also allow the parent to be involved in occasions and events that are of particular significance to the child. This would include the first day at kindergarten, the first day at pre-school, the first day at school, and parent days at child care, kindergarten, pre school and school. Once again, it is highly unlikely that s.65DAA(3)(b)(ii) can be satisfied in the event that the mother relocates with the child to New Zealand. The mother seeks an order (in paragraph 6 of her proposed orders), “that the parties be entitled to participate in all aspects of the child’s schooling including but not limited to parents/teacher interviews, speech nights, concerts, sports carnivals and further that the parties share equally in art work, craft and written work produced by the child”. Paragraph 6 of the mother’s proposed orders (which, standing alone is a sensible order) could not possibly be achieved if the father is in Australia and the mother and the child are in New Zealand.
Best interests of the child
A review of some of the preliminary provisions in Part VII of the Act is appropriate. I have highlighted some of the text for ease of reference.
Section 60B states, inter alia:-
“SECTION 60B OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
60B(1) [Object of Part] The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; …”
Section 60B(2) provides, inter alia:-
“60B(2) [Principles underlying object] The principles under-lying these objects are that (except when it is or would be contrary to a child’s best interests):
(b)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(c)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(d)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(e)parents should agree about the future parenting of their children; and
(f)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Subdivision BA of Part VII of the Act is entitled, “Best interests of the child”.
Section 60CA states:-
“SECTION 60CA—CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC is entitled, “How a Court determines what is in a child’s best interests”. The Court must consider the matters set out in ss.60CC(2) and (3).
Section 60CC(2) states:-
“60CC(2) [Primary considerations] The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There is no dispute in this case that it is to the child’s benefit to have a meaningful relationship with both of the child’s parents. Furthermore, there is no evidence of any possible harm, abuse, neglect or family violence in relation to the child.
It is worth noting paragraph 31 of the decision of the Full Court in Taylor & Barker (supra). In that paragraph the Full Court quoted from His Honour Federal Magistrate Brewster. Paragraph 31 from the Full Court decision reads:-
“31.His Honour then turned to the primary considerations contained in s.60CC and he noted that the second of those considerations (being the need to protect the child from being subjected to or exposed to abuse, neglect or family violence) did not apply in this case. As to the first primary consideration, being the benefit to the child of having a meaningful relationship with both parents, his Honour said:
‛14. …In relation to the first were [the child] a very young child it could be cogently argued that contact of the type proposed by the mother would not be conducive to his having a meaningful relationship with his father. However [the child] is some nine and a half years of age and, in my opinion, he will continue to have a meaningful relationship with his father even if face to face contact is confined to school holiday periods’.
Having regard to the child’s age (he is currently only two years old) I do not consider that contact of the type proposed by the mother in this case would be conducive to the child having a meaningful relationship with the father. I will refer to this point again later in these Reasons.
The additional considerations to be taken into account are contained in s.60CC(3). I will refer to those subsections which are relevant in this case.
Section 60CC(3)(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
By reason of the child’s young age, subsection (a) is not applicable to this case.
Section 60CC(3)(b) – the nature of the relationship of the child with:
each of the child’s parents; and
other persons (including any grandparent or other relative of the child)
The child has a close and loving relationship with both parents. I am also satisfied that the child has a close and loving relationship with the other maternal and paternal relatives with whom he comes into contact (including his grandparents).
In particular I accept that the child enjoys a close and loving relationship with:-
(i)the mother’s brother, Mr G and his family. I note that Mr G and his family live in Brisbane;
(ii)the father’s sister Ms R and her partner (also residents of Brisbane); and
(iii)The child’s cousins who live in Brisbane.
I also accept the evidence of the applicant to the effect that the mother has many friends in Brisbane with young children. In addition to her own brother (Mr G) the mother is friendly with Ms L (who has a son approximately the same age as C); Ms C (who has a daughter who is of similar age to C) and Ms N (who has recently given birth to a son). These people are all friends of the mother in Brisbane.
Section 60CC(3)(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
I am satisfied, having observed both parents in the witness box, that they are both willing and able to facilitate and encourage a close and continuing relationship between the child and the other parent.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:-
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
This question only becomes relevant if the mother relocates to New Zealand with the child.
Mr Page of Senior Counsel appearing on behalf of the respondent mother touched on this issue when he submitted that there was no evidence to suggest that there is any difference between a ten year old child and (as in this case) a 22 month old child when a Court is considering a question of relocation.
Ms Carew of Counsel appeared on behalf of the applicant father.
Ms Carew disagreed with the submission made by Mr Page SC and
Ms Carew stated in her submission:-
“Now the child in this case is only 22 months. He is still a baby. I certainly disagree very strongly with the submission of my learned friend that it makes no difference what age the child is. Of course it makes a difference. It is common sense that it makes a difference. A child who doesn’t have the verbal ability of an eight or ten year old is clearly not going to be able to have the same sort of relationship with a parent as an older one”.
I agree with this submission made by Ms Carew. In my view the age of the child does make a difference. There will be a considerable reduction in the amount of time the child is able to spend with the father if the mother and the child are living in New Zealand. The occasions when the child is able to spend time with the father will occur less regularly.
In my view, the likely effect upon this young child of spending less time and/or less regular time with the father is that the child’s relationship with the father will be adversely affected.
My view in this regard is based upon the following evidence (which I accept):-
(a)the evidence of the mother as stated in her Affidavit filed
3 October 2007:-
“48.C is beginning to be very upset whenever I pick him up from Mr Duggan’s house after his stay over on Saturday nights. Mr Duggan and I are communicating and trying out a few different ideas for hand over to see if we can minimize C’s reaction.
49.After his time with Mr Duggan, he walks straight to his bedroom and makes sure everything is where he left it. He then does the same with his toys and books.”;
(b)the evidence of the mother (already referred to herein) that the child’s relationship with the father is “fantastic”;
(c)
the evidence of the father contained in his Affidavit filed
5 October 2007which reads, inter alia:-
“31.C and I have a close and loving relationship.
32.C always appears comfortable and happy in my care. I am able to attend to all of his needs.
33.C is very affectionate towards me and has no hesitation in approaching me for a hug. He appears to enjoy showing me things that I have taught him on a previous visit. Our relationship is continually growing and becoming stronger.
34.C does not show any signs of anxiousness or distress at being separated from Ms Starr.
35.I have placed photos of Ms Starr around the home and C often points to them and says ‘mummy’.
36.I note that the only distress that C has ever shown is when Ms Starr comes to collect him at the conclusion of my time with him.
37.On occasions C has cried and clung to me tightly, refusing to let go.
38.Ms Starr and I have discussed C’s behaviour at handover and agreed to trial a reversal of the current collection pattern, that is that for the weekend of 29-30 September 2007, Ms Starr delivered C to my home at the commencement of my time with him and I delivered him to Ms Starr’s home at the conclusion of my tie with him. However the change of arrangements did not make any difference to C’s demeanour and C started to cry as soon as I walked through Ms Starr’s gate with him to return him to Ms Starr. I stayed at Ms Starr’s home until he settled.”
The mother has a close and loving relationship with the child. The mother’s close and loving relationship with the child will continue whether or not the mother lives with the child in Brisbane or in New Zealand.
Section 60CC(3)(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.
Clearly there will be substantial expenses involved in organising for the child to spend time with the father should the mother and the child relocate to New Zealand.
I accept the evidence of the parties that neither the mother nor the father has the financial capacity to pay for the airfares between Australia and New Zealand to facilitate the orders proposed by the mother.
I note paragraph 107 – 109 of the mother’s Affidavit filed 3 October 2007 where it is stated:-
“107.The cost of flights to New Zealand in off peak return are about $300.00 and peak return is approximately $500.00. With enough booking notice you can obtain good deals through different airlines.
108.A flight from Brisbane to Auckland takes approximately 3½ hours. A flight from Auckland to T at a cost of $100.00 takes about 40 minutes, or if one was to drive, it takes 2 – 2½ hours.
109.My parents have generously offered to pay for C’s flights to Australia if so ordered. I will contribute to the cost once C and I are on our feet financially again.”
The reality of an international relocation is that there will be practical difficulties and expenses involved for the child to spend time with the parent who remains in Australia (namely the father). Those practical difficulties and expenses will substantially affect the child’s right to maintain personal relations and direct contact with the father on a regular basis.
Even if the mother’s parents pay the airfares (as they have generously offered) the mother’s proposal will mean that in the next two years the child will (each year) spend time with the father on four occasions only (for one week at a time).
Currently the child spends time with the father every week (including overnight time).
I find that, on the evidence, if the mother relocates to New Zealand with the child that this will substantially affect the child’s right to maintain personal relations and direct contact with the father on a regular basis. Furthermore, if the child remains living in Brisbane with the mother there will be no practical difficulties or expenses which would substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Section 66CC(3)(f) - the capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both of the child’s parents (and indeed the mother’s and the father’s extended families) are able to provide for the needs of the child on an emotional and intellectual level.
Section 66CC(3)g) - The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and other characteristics of the child that the Court thinks are relevant.
Concerning the child’s age I refer to paragraphs 43 to 49 herein (inclusive).
Section 66CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I am satisfied that both parents have an exemplary attitude towards the child. Furthermore, both parents have accepted the responsibilities of parenthood and this is demonstrated by their actions. In this regard I note and accept the following evidence of the mother from her Affidavit filed 3 October 2007:-
“9. I cared for C when Mr Duggan was at work. Mr Duggan arrived home from work at approximately 6.00 pm and would play, bath and give C his bottle for bed.
10.During the weekends we shared C’s care.
11.I always prepared C’s dinners and occasionally Mr Duggan would prepare C’s cereal for breakfast and make him a sandwich for lunch.
12.C slept through the night since he was 4 months old except for a period when he was teething.
13.I had the care of C during the night. When C went onto a bottle (9 months) Mr Duggan would help out on weekends.”
I also note and accept this evidence of the mother also contained in her Affidavit filed 3 October 2007:-
“44.Mr Duggan comes to see C every Tuesday in my home 5.30 pm or there about till 7pm when C goes to bed.
45.On Tuesdays Mr Duggan arrives when C is having his dinner at about 5.00 pm – 5.30 pm. I feed C and then it’s bath time, bottle and bed which Mr Duggan tends to.
46.Mr Duggan spends time with C overnight every second Saturday, Saturday night until noon on Sunday. Mr Duggan asked for that as it worked around his employment.”
I also accept the evidence of the father where he has stated in his Affidavit filed 5 October 2007:-
“15.When I was at work, Ms Starr was C’s primary carer.
16.When I was not at work Ms Starr and I equally attended to the care of C.
17.I attended to all of C’s day-to-day needs when I was not at work, including feeding, bathing, changing nappies, dressing, organising meals, bottles and comforting C at night.
…
Time with C on Tuesdays
39.My time with C on Tuesday is spent at Ms Starr’s home. Ms Starr is often present.
40.When I arrive at Ms Starr’s home at 5.30 p.m., C greets me with a cheeky smile and is generally sitting in his high chair finishing his dinner. We spend time together playing with his toys, reading a book or watching a movie.
41.I attend at bathing C and putting him to bed at 7.00 p.m. with his night bottle.
42.Although Ms Starr is usually present in the home on Tuesdays, Ms Starr leaves C and I to our own devices and does not interfere or attempt to assist me care for C.
43.I collect C on Fridays at 5.30 p.m.
44.When we arrive home, I provide him with dinner, which I generally have prepared the previous night, which generally consists of some meat and vegetables or rice and potato. On occasions we have take-away followed by fresh fruit.
45.C and I spend time playing together after dinner before I give him a bath and put him to bed with his night bottle at 7.00 p.m.
46.C generally arises at 6.30-7.00 a.m. in the morning at which time I dress C and provide him breakfast consisting of porridge, toast, fruit or yogurt.
47.C and I will have a quick play together before I deliver him to Ms Starr’s care at 8.00 a.m.
48.My weekend time with C offers an opportunity for C and I to spend quality one on one time together. It also provides an opportunity for C to spend time with my family.
49.When I collect C at 9.00 a.m. from Ms Starr’s on Saturday, he is fed and dressed.
50.I always change C’s clothes when he arrives at my house to clothes I have for him at my home. I dress C in his mother’s clothes when I return him to Ms Starr’s care.
51.C and I generally spend time together playing or going to the park. We are very affectionate towards each other, giving each other lots of hugs and kisses. I miss C when I don’t see him and I believe that C also misses me.
…
54.C has an afternoon nap from about 1.30 p.m. to 3.00 p.m.
55.After C has slept we spend more time playing together. I then provide him dinner at around 5.00 p.m.
56.After dinner I give C a shower and we then spend some time playing with his toys.
57.I then read him a book and give him night bottle and put him to bed at 7.00 p.m.
58.C arises on Sunday morning approximately 6.30 a.m. to 7.00 a.m.
59.After I provide him breakfast we generally spend one on one time together at the park, which is walking distance from my home. On occasions we will visit friends and family.
60.Ms Starr collects C at 12.00 p.m. from my home.”
The evidence which I have referred to here (and which I accept) reinforces my view that both parents have displayed exemplary parenting skills.
Section 60CC(3)(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
As C gets older I would certainly hope that the parties are able to agree on possible variations to the orders. As stated earlier, I am not prepared to make orders concerning shared care which would not become operative for 2 – 3 years.
Section 60CC(3)(m) - any other fact or circumstance that the Court thinks is relevant
I have considered the evidence concerning the mother’s isolation. I am satisfied, however, from observing the mother in the witness box, that she has a resilient nature. I also note that the mother does have friends and some family members living in Brisbane. I note that the mother’s brother and his wife live in Brisbane. I also note that the mother’s parents visit Australia quite regularly. I also infer from the evidence that the mother’s parents are likely to pay for the mother and the child to visit New Zealand during the course of each year.
Further, having observed the mother in the witness box and listened to the evidence generally concerning the mother’s prospects of employment I am satisfied that the mother will be able to obtain suitable employment in Brisbane.
I also note and accept the evidence that the father’s family (in particular his mother) are willing to assist with child care when it comes to the question of the mother engaging in employment. My impression from the evidence is that the mother is agreeable to such a proposal.
In addition to the paternal grandmother assisting with C while the mother works, I note and accept the evidence of the father that he is prepared to pay for the cost of two days child care per week.
Conclusion
It will be apparent that I have reached the conclusion that it is in the child’s best interests for the mother and the child to remain living in Brisbane, Australia.
I have already concluded that it is in the child’s best interests to spend substantial and significant time with both parents. The child will live with the mother and spend time with the father as per the orders stated at the front of these Reasons.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 26 February 2008
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