Dunbar and Rourke

FAMILY COURT OF AUSTRALIA

DUNBAR & ROURKE

[2007] FamCA 132

FAMILY LAW - CHILD – Relocation interstate – Prime consideration of meaningful relationship between the child and parents – Relevant matters to determine “best interests” of the child.

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANT:

Mr Dunbar

RESPONDENT:

Ms Rourke

FILE NUMBER:

SYF

3654

2004

DATE DELIVERED:

16 February 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

11-14 July 2006; 5 & 30 October 2006;

30 January 2007 and 2 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms D Hausman

SOLICITOR FOR THE APPLICANT:

K R Barnes & Co.

COUNSEL FOR THE RESPONDENT:

Mr C Cook; Ms M Giacomo

SOLICITOR FOR THE RESPONDENT:

Nash Clavey

Orders

That the father have the sole parental responsibility for the child of the parties’ relationship E (“the child”) born in December 2001 subject to the following:
(a)The father shall consult with the mother in relation to any proposed change of school for the child and any serious medical or hospital procedure which the child may undergo except for an emergency.
(b)The mother have the daily care of the child throughout such periods of time that the child spends with her pursuant to the Orders made this day or as otherwise agreed upon between the parties in writing.
That the child live with the father subject to Order 3 AND that the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That the father shall give or cause to give the mother or her solicitors no less than seven (7) days written notice of the relevant air travel from Darwin to Sydney including dates and time of his arrival and departure at Darwin airport for himself and the child.
That the mother shall ensure that she takes the child to Darwin airport with his clothes and belongings neatly packed to meet the father in accordance with Orders 2 and 3 and encourages the child to accompany the father on the return flight from Darwin to Sydney.
The mother may spend time with and communicate with the child as follows:
(a)For a period of ten (10) days in each of the three mid-term school holiday periods including travelling time with the father to pay for the child’s return economy air travel to Darwin, Northern Territory on each of these occasions upon the mother giving the father no less than six (6) weeks written notice.
(b)For a period of four (4) weeks including travelling time of each December/January school holiday period as follows:
(i)In 2007 and each odd numbered year thereafter for the last four (4) weeks of the holiday period providing however that the child be returned to the father three (3) days prior to the commencement of the first day of the new school term.
(ii)In 2008 and each even numbered year thereafter for four (4) weeks of the holiday period to commence three (3) days after the commencement of the school holiday period.
(iii)The mother shall pay for the whole of the child’s return economy air travel relating to the December/January school holiday periods.
(c)At any other time when the mother is in Sydney for a period of up to fourteen (14) days during any school term provided that the mother give the father four (4) weeks written notice of her intention to spend time with the child and that the mother provide the father with details of her accommodation and contact telephone number in Sydney and the mother shall ensure that the child attends school on a daily basis and his sport and extra-curricula activities as required.
(d)For such alternative or further period or periods and upon such notice as the parties may agree upon from time to time.
(e)By telephone communication initiated by the father or his partner Ms H within 24 hours of the child’s arrival with the father in Sydney pursuant to Orders 2, 3 and 4.
(f)By way of telephone communication at all reasonable times, the mother may telephone the child PROVIDED THAT in the event of the child being unavailable to speak to the mother then the father shall ensure that either the mother is given a particular time as soon as possible to telephone the child again or otherwise the father shall initiate a further telephone call to the mother as soon as possible for that purpose.
(g)The father shall ensure that the child is able to speak to the mother in privacy during all telephone communication with her.
That during such periods of time that the child spends with the mother then the mother shall ensure that the child is available to speak to the father or his partner Ms H by way of telephone communication at all reasonable times in privacy PROVIDED THAT in the event of the child being unavailable to speak to the father then the mother shall ensure that either the father is given a particular time as soon as possible to telephone the child again or otherwise the mother shall initiate a further telephone call to the father as soon as possible for that purpose.
That upon the father enrolling the child in school in Sydney he shall:
(a)inform the mother in writing of the name, address and particular class in which the child is enrolled;
(b)authorise the Principal of the child’s school or schools to furnish the mother upon her request, and if necessary at her expense, copies of the child’s school reports, notices and correspondence which relate to the child’s educational progress, sport and any other school activities and functions.
That in the event of the child suffering a serious illness or injury then the party with whom the child is then residing shall inform the other party as soon as possible of the nature of such injury or illness and the name, address and telephone number of the relevant hospital and medical practitioner.
That neither of the parties shall make any derogatory comment about the other or his or her partner or family member to or in the presence or hearing of the child and shall use his or her best endeavours to ensure that no other person conducts himself or herself in that manner.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number: SYF3654 of 2004

Mr Dunbar

Applicant

And

Ms Rourke

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings each of the parties seeks parenting orders in respect of their child E (hereinafter referred to as “the child”) who is 5 years of age having been born in December 2001.
The child currently lives with the mother and her partner Mr X in Darwin, Northern Territory and has spent periods of time with the father who resides in B.
The father instituted proceedings pursuant to his Application for Final Orders filed 9 August 2004. In that application and subsequent Amended Application for Final Orders filed 5 July 2006 the father sought orders that the child live with him and otherwise spent time with the mother during school holidays as well as communicating with her by telephone.
Ultimately, the orders sought by the father are set out in the “Minutes of Orders” being Exhibit 5. In substance, Exhibit 5 provides for the child to live with the father and spend time with the mother for a period of 10 days in each of the mid-term school holiday periods as well as four weeks in each December/January school holiday period. In addition, an order is sought that should the mother be in Sydney then the child spend time with her for periods of up to 14 days during any school term, provided that the mother has given the father four weeks written notice. Orders are also sought to provide for telephone communication between the child and the mother as well as for periods of time to be spent with the father in the event of the child continuing to live with the mother in Western Australia.
Pursuant to the Response filed 4 February 2005, the mother sought orders that the child live with her and spend time with the father for five days in each calendar month to take place in Perth and Sydney alternatively, as well as ancillary orders.
The orders sought by the mother at the hearing are set forth in the “Minute of Proposed Orders” which became Exhibit 1.
Exhibit 1 provides for the child to live with the mother and spend time with the father for a period of 10 days in each of the three mid-term school holiday periods and for four weeks in the Christmas school holiday period. A further order is sought enabling the father to spend time with the child should he be in Perth or M in similar terms as that sought by the father in the event of the mother being in Sydney. As no other orders were sought by her, I have inferred that the mother seeks the same orders except that Perth or M should be substituted with Darwin. Further orders are sought to provide for communication between the child and the father as well as for periods of time that the child spend with the mother in the event of the child living with the father in Sydney.
The significant period of cohabitation between the parties commenced in February 2001, although the father’s unchallenged evidence, which I accept, is that the parties lived together for a short period of time (the evidence is imprecise) which commenced in September 2000.
The parties continued to cohabit until they separated in January 2002 when the mother unilaterally decided to return with the child to her home State of Western Australia where she remained until July 2002.
Subsequently, the parties reconciled and commenced to cohabit again in Sydney until they separated under the same roof in March 2003.
The parties finally separated in June 2003 when the mother again unilaterally decided to return with the child to live in Western Australia. The mother and child have continued to reside in Western Australia since that time.
There have been difficulties in arrangements for periods of time to be spent by the child with the father as well as communication between them to which subsequent reference will be made.
The father is 46 years of age and employed as a tree lopper.
The mother is 36 years of age and is engaged in home duties.
The father commenced to cohabit with Ms H in January 2004 and they have continued cohabitation since that time. The father’s son K who is 18 years of age lives with them.
Ms H is employed on a part-time basis as a casual teacher.
The mother has been cohabiting with Mr X in Darwin since 23 January 2007.
The child has been living with the mother and Mr X since 26 January 2007.

Historical background

The following are further brief historical matters.
Between 9 June 2001 in the Local Court H, charges of assault and malicious damage against the father based on statements provided by the mother were dismissed.
On 17 August 2001 in the Local Court H a summons against the father in which an order was sought for apprehended domestic violence was withdrawn and dismissed. The complaint in that regard was based upon statements provided by the mother.
On 13 December 2001 in the Local Court Hornsby a charge of assault against the father based on a statement by the mother was dismissed.
On 18 June 2003 in the Court of Petty Sessions M, Western Australia an ex parte interim apprehended violence order was made for the protection of the mother from the father. The evidence is imprecise as to the terms of the order or its conditions.
During 2004 (the evidence is imprecise) proceedings in which an apprehended violence order was sought for the protection of the mother from the father were dismissed. The mother failed to appear at court.
On 13 January 2005 in this Court, interim parenting orders were made by consent which provided for the child to live with the mother and the father to have contact with the child on certain precise days and periods both in Perth and Sydney. In addition, telephone contact with the father was provided for and each of the parties was restrained from denigrating, intimidating or threatening the other. Directions were made.
On 10 February 2005 further interim orders were made by consent. Those orders provided for suspension of the contact order made on 13 January 2005 and for the parties to submit to DNA parentage testing to determine the paternity of the child.
On 4 May 2005, interim parenting orders were made by consent which provided for the father to have contact with the child for overnight periods of five days both in Perth and Sydney on certain terms. A family report was ordered.
On 5 October 2006, upon the application of the father, leave was granted for him to re-open his case and made directions for further evidence to be given on 30 October 2006.
On 30 October 2006, further evidence was given by the parties.
On 30 January 2007, being the date fixed for delivery of judgment and making orders, application was made by the father to re-open his case. Leave was granted to the father to do so and made directions to ensure the parties had an opportunity to give evidence and call witnesses. A further order was made, unopposed, to enable the mother and her new partner to give evidence by videolink from Darwin.
On 2 February 2007, evidence was given by the parties and their respective partners as well as the maternal grandmother. I made an order, unopposed, that the maternal grandmother’s evidence may be given by telelink. Directions were made for the filing and service of written submissions.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of its parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It is important to note that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
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.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the child and the parenting orders that will be made.

Credibility of the parties

The parties differed in their evidence in relation to the issues of violence, abuse, consumption of alcohol and last but far from least the mother’s willingness to facilitate and encourage telephone communications between the father and the child as well as time to be spent by them.
Due to concessions made from time to time by each of the parties in the course of their oral evidence, it became clear that consumption of alcohol by each of them, with at times abusive behaviour by one to the other, were features of the periods of their cohabitation.
The father for his part, conceded that he had at times been verbally abusive to the mother and that he as well as she consumed alcohol to the point where their respective behaviour was detrimentally affected, as well as from time to time smoking cannabis.
It is essentially in the area of the mother’s alleged obstruction to telephone communication between the father and child and the manner in which the mother conducted herself on occasions in that regard that a major area of conflict arose on the evidence.
I have concluded that where the parties are in conflict in their evidence on those last mentioned matters, I prefer the evidence of the father to that of the mother unless otherwise stated.
For the purpose of that conclusion, I have taken into account and given weight to the following and the demeanour of the parties whilst giving their evidence.
During cross-examination the mother gave responses such as “I do not recall” or “I don’t recall” in response to questions where the very nature of the subject of those questions was such that it was reasonable to expect that she would either admit or deny unless there was a lack of memory due to intoxication or some other reason. Yet, no reason was given by the mother. The matters raised in cross-examination included:
(a)leaving telephone messages for the father using foul language, at times in the presence of the child;
(b)threatening K and using foul language towards him;
(c)abusing Ms H at times in the presence of the child;
(d)telling the child to say to the father “I am gunna bash the shit out of you”;
(e)in relation to a conversation regarding arrangements for the father to speak to the child, saying to the father “payback’s a bitch”.

I have also accepted the evidence of the tape recording of the mother’s messages to the father being exhibits in the proceedings.
In contrast, I have found the father to have given his evidence in a frank and straightforward manner, at times making concessions against interest. As a result, I have greater confidence in the reliability of his evidence in comparison to that of the mother.

Views expressed by the child and other relevant factors

Each of the parties gave evidence which directly or indirectly suggest that the views of the child are to live with him or her respectively.
Independent evidence was given by the family consultant, particularly in her Family Reports being Exhibit 3 and 4. In Exhibit 3, the family consultant interpreted various “projective play exercises” performed by the child as demonstrating that he “held positive attitudes to the possibility of residing in [B] with his father”. The family consultant also noted that the child had “a positive attachment to his mother” which implicitly suggests that he had a possible view of living with her.
In Exhibit 4 the family consultant stated that the child had indicated a preference for living with the father demonstrated by “mildly negative comments about his life in Western Australia and mildly positive comments about his life in Sydney”. That view of living with the father appeared to be based on the child missing him.
The oral evidence given by the family consultant did not differ from Exhibits 3 and 4. Accordingly, I find that the child has expressed a view directly or indirectly to live with the father albeit the view is not a strong one.

The nature of the relationship of the child with each of the parties and other persons

I accept the evidence of the family consultant which is consistent with other evidence that the child has a happy and relaxed attachment with each of the parties.
There is no issue that the child has a fond relationship with Ms H, the maternal grandmother and his step-brother K.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party

This is one of the significant issues in the proceedings.
The father has given evidence of the mother allegedly having been obstructive in relation to periods of time that he desired to spend with the child and communication with him by telephone in accordance with interim orders and otherwise.
The mother has also contended the father has not facilitated telephone communication between her and the child when the child has been in the father’s care.
I will refer to the evidence given by each of the parties and my findings in relation to that evidence.

The evidence of the father

In January 2002 the mother left the former matrimonial home with the child together with clothes and personal belongings. No prior notice was given to the father nor was there any message left for him regarding their whereabouts. A few days later the mother telephoned the father and told him that she and the child were not returning. The mother would not disclose the child’s whereabouts. Two days later the father found out from the mother’s grandmother that the mother had returned to live in Perth. Subsequently, the father received text messages from the mother which in part were strange. Gradually, telephone communication between the parties was re-established.
Shortly prior to Easter 2002, the father travelled to Western Australia at the invitation of the mother and stayed with her and the child. The parties argued in relation to the mother’s consumption of alcohol. Ultimately, the father left Western Australia and returned to Sydney. Therefore, the father had a number of telephone conversations with the mother.
In June 2002, the father again travelled to Perth at the invitation of the mother who claimed she had been threatened with violence by the partner of a woman with whom she was staying. Ultimately, the parties and the child travelled together from Western Australia to Sydney and resumed cohabitation.
The parties finally separated in the middle of 2003. The father returned to the former matrimonial home after completing work in the Northern Territory. The father found the mother and child had left the former matrimonial home in similar circumstances to those described in relation to the previous separation of the parties.
On or about the day of the father’s return to the former matrimonial home referred in the previous paragraph, he was served with a copy of a summons seeking an order for apprehended violence against him in the Court of Petty Sessions M, Western Australia. An order as sought was made on an undefended basis on 18 June 2003.
In about September 2003, the father travelled to Western Australia to spend time with the child at the invitation of the mother. The mother allegedly consumed alcohol to excess. The father returned to Sydney.
The father alleges that he was subsequently unable to make arrangements with the mother for regular face to face time with the child, although he did speak with the child by telephone.
In about mid 2004, the mother informed the father that she was “heading north for two years” implicitly with the child. Shortly thereafter, the father was served with court documents in relation to proceedings the mother had instituted against him in the Court of Petty Sessions, M in which a further apprehended violence order was sought for the protection of herself and the child. Ultimately, the proceedings were dismissed. The mother failed to appear at court.
On 9 August 2004 the father instituted parenting proceedings in the Family Court of Australia. The father did not know the whereabouts of the mother and/or child. As a result, interim parenting orders were made on 13 January 2005 to which earlier reference has been made.
It is common ground that the last mentioned orders were not complied with by the mother.
On 11 February 2005 those orders were suspended by consent and orders made for parentage testing, initially on the application of the father.
On 4 May 2005 further interim parenting orders were made by consent following paternity testing results revealing a probability of paternity in favour of the father.
On 3 July 2005 the father arrived in Perth for a period of time to spend with the child in accordance with the existing interim orders. The child was not available. Neither the mother nor the child were at home or at the airport. The father then returned by air travel to Sydney. Correspondence had been previously sent on the father’s behalf to the mother making it clear as to when he would arrive in Perth. The mother claimed via correspondence that the commencement of time to be spent by the child with the father could not take place due to earlier other arrangements which she had made.
The period of time to be spent by the child with the father in Sydney in August 2005 proceeded uneventfully.
The father also had a scheduled period of time with the child in Sydney between 8 to 14 October 2005.
On 23 October 2005 the father made a telephone call to the mother for the purpose of having communication with the child. The mother informed the father that the child was not available as he was being disciplined for “bad behaviour”. The mother refused to make the child available for conversation with the father. The father heard the child screaming. Approximately three-quarters of an hour later the father telephoned the mother again. The mother permitted the child to speak to the father as “he’s out of time-out”. The mother interrupted the telephone call and informed the father that she would not collect the child again at 10.30pm as she claimed she could not afford the petrol to drive to and from the airport. The mother swore at the father. The mother then permitted the child to speak to the father again. During the course of that conversation the mother was speaking in the background and caused the call to be concluded by telling the child “dinner’s ready”.
On 30 October 2005 during the course of a telephone conversation between the father and the child the mother could be heard to say in the background “Did you tell your dad you’re gunna bash the shit out of him?”. The child repeated that to the father. The child then told the father “You’re mean to my mum”. The child also said to the father “Don’t tell the policeman to come again”. The mother told the child that dinner was ready and the child responded to her “No, it’s not, I’ll say that it’s not. It’s not dinner yet Dad”.
On 2 November 2005 the parties had a telephone conversation during the course of which “If you don’t give me money I won’t bring [the child] to the airport on Saturday”.
On 14 November 2005 the father received a telephone call from the mother at about 1.00am in which she said:
“I’ve got laryngitis. Stop fucking with me. [The child] calls someone else Daddy now, so fuck off”.
Shortly thereafter, an abusive SMS message was received by the father from the mother.
On 14 November 2005 the father telephoned the mother to have communication with the child and upon him asking to speak with the child the mother replied:
“By law you have no right. I’ve already talked to the police. Right. I’m not a nasty bitch”.
The father asked for the child to speak to him and the mother then answered:
“Yeah, I’ll let you talk, but you don’t deserve it cos’ you’re a prick. Here he is.”
The father then spoke to the child. The father became upset and had an argument with the mother. The parties then argued. The child became upset. The call was terminated.
On 4 December 2005 the father had a telephone conversation with the child in which the child stated the father had been “mean to my mum” and that he had been told that by the police.
On 8 January 2006 the father had a telephone conversation with the child and he heard the child say to someone in the background “My daddy’s naughty because he punches people”. The conversation concluded.
On 15 January 2006 during the course of a telephone conversation with the child the father repeated the same allegation as referred to in the last paragraph.
On 5 March 2006 during the course of a telephone conversation with the father he overhead the mother in the background say “[E], tell daddy to stop being such a brat”. The child repeated the words “brat” a few times and the mother laughed in the background.
On 12 March 2006 during the course of a telephone conversation between the father and the child the mother caused the conversation to be concluded by claiming:
“It’s time to get ready for bed. Either they respect that or they will lose their Sunday night phone call”.
The father had an uneventful telephone conversation with the child on 26 March 2006.
On 9 April 2006 during the father’s telephone call with the child, the mother interrupted it by speaking to the child from time to time.
On 30 April 2006 the father had an uninterrupted telephone conversation with the child.
A further conversation between the father and the child occurred on 14 May 2006 which was uneventful although there was a disagreement between the parties.
Further telephone calls between the father and the child occurred on 21 May 2006 and 28 May 2006 which were uneventful.
The child spent time with the father in Sydney between 1 June 2006, 7 June 2006 and 11 June 2006 without difficulty.
The periods of time that the father has spent with the child in Sydney proceeded well.
During the course of the trial in July 2006 the maternal grandmother stated that she and the mother would pay for future travel expenses involving the child for the September/October school holidays. The father accepted and stated that he would wait for them to provide him with the necessary arrangements. The maternal grandmother stated this would happen. The father did not hear anything further from either the mother or maternal grandmother.
On 7 August 2006 the parties agreed that the father may speak to the child by telephoning him on the mother’s mobile telephone. During the following week the father was unable to communicate with the child by telephone despite telephoning the mother’s landline and mobile telephone numbers on six or seven occasions. A letter dated 17 August 2006 was sent by the father’s solicitor to the mother’s solicitor setting out the father’s concerns. There was no response to that letter.
On 28 August 2006 a telephone conversation between the father and the child took place. During the course of the telephone call the mother stated:
“I am annoyed by these phone calls every week because it interferes with my real life. I had to rush home tonight from the park where [the child] was spending time with real people in his life.”
The father replied “You have an obligation to facilitate reasonable contact”. The mother then said “Payback’s a bitch, isn’t it, darling”. The telephone call concluded.
On 8 September 2006 the father’s solicitors wrote to the mother’s solicitors setting out proposed arrangements for the next period of time that the child was to spend with the father. No response was received.
On 19 September 2006 the father spoke to the mother by telephone to arrange a conversation between him and the child. The mother said that she did not accept the “next contact arrangements”. The mother stated that she was no longer legally represented and the proposals would not work because the child was now at school. The father responded that he had paid for the arrangements and upon checking with the school it agreed with those arrangements. The mother then stated that she did not care. There was then a dispute in relation to Christmas period without return flight details. The father then spoke to the child and during the course of that conversation overheard the mother say “Tell him I have an appointment with my solicitor at 1.00pm on Wednesday”.
The father provided details of the arrangements that he was making for time to be spent by the child with him in Sydney. The father’s solicitors confirmed those arrangements in writing. No response was received. Ultimately, on 10 October 2006 the father collected the child in Perth and the child subsequently spent holiday period of time with him in Sydney.
The affidavit evidence of the mother is that following the final separation of the parties the father spent time with the child for about nine days in September 2003 in Western Australia. The mother states that subsequently she encouraged the father to have telephone conversations with the child but he did not respond.
In mid-2004 the mother sent the father a text message informing him, amongst other things, she was “going up north for a few months”. The mother states that she did not have an address to give to the father but had requested a neighbour to forward mail to her. That did not happen.
In January 2005 the father travelled to Perth and had supervised period of time with the child for one day in accordance with the orders made on 13 January 2005. Thereafter, the mother did not permit further time or communication between the father and the child as DNA testing was being carried out in accordance with the father’s request.
The mother contends that in April, May and June 2005 periods of time for communication between the child and the father resumed in accordance with the last-mentioned orders following the result of the DNA parentage testing to which the father had tested positive.
The mother states that in July 2005 periods of time to be spent between the father and child did not occur due to “miscommunication” between the parties.
The mother states that subsequently she has taken the child to the airport to enable change-over to occur there rather than the father travelling to G where the mother has been residing.
The mother contends that for most of 2005 the father had not had telephone communication with the child in accordance with the current orders as frequently he did not call each week except for the week preceding the time that the child was to spend with him.
The mother’s evidence in her most recent affidavit sworn 23 October 2006 is that she agrees with the father’s contention that following the conclusion of the evidence in July 2006 the parties had agreed that “contact could take place at any reasonable time”. The mother states that she intended to facilitate that agreement.
The mother contends that telephone communication took place between the father and the child, particularly in August and September 2006 as well as 2 October 2006. Subsequently, the child had commenced spending 16 days with the father in Sydney which started on 10 October 2006.
The mother claims that there had been difficulties with telephone contact between the father and the child on two occasions in August 2006 as the father did not telephone the child. The mother further contends that the child called the child on 15 August 2006 as he had missed speaking to him on two occasions.
The mother further states that on or about 16 August 2006 she informed the father by telephone that she was no longer using the mobile telephone numbers that he had been calling and then provided him with her current mobile telephone number which the father has been able to use to communicate with the child.
The mother also claims that the parties agreed that she should be able to telephone the child on Monday evenings when he is spending time with the father in Sydney. The mother states that although she attempted to telephone the child on 16 October 2006 she was unable to speak to him and left a message on both the father’s landline and mobile telephone numbers. The following day the mother received a text message from the father which informed her that the child would be available to speak with her that day. The mother states that she then spoke to the child and that despite the initial problem the matter of telephone communication had now been successfully resolved between the parties.
The mother further states that subsequent to the conclusion of the evidence in July 2006 the parties discussed the possibility of setting up a webcam so that the child could communicate by that medium. The mother states that on 22 October 2006 she collected the modem with the expectation of being on-line within a week.
In addition, the mother states that she has purchased a “hands free telephone” so that the child can speak to the father in private whenever the father telephones.
With regard to the father’s evidence that the maternal grandmother had offered to pay for the child’s October 2006 visit to Sydney, she was unable to do so as funds she was expecting had not yet been received.
In relation to a number of the incidents relied upon by the father so far as the mother’s alleged lack of willingness to facilitate and encourage time to be spent between him and the child or communicate with each other, I prefer the father’s evidence to that of the mother and make findings accordingly. I do so on the basis that I found the father to be a more credible witness for the reasons previously given by me. In addition, I have concluded that the possibilities are that from time to time the mother has been adversely affected by intoxicating liquor or has been deliberately disruptive as outlined in the evidence of the father to which I have referred and which I gleaned from tape recordings in evidence.
The mother at times has also facilitated periods of time spent by the child with the father including recently in January 2007 without any difficulty.
So far as the impact upon the mother as a result of her consumption of alcohol, the mother to her credit has acknowledged that historically that has been a problem for her, although it seems at times subsequent to the separation of the parties, the mother’s view that the extent of her consumption of alcohol was no longer an issue, has not in fact been the case.
With regard to the mother’s consumption of alcohol, her evidence is that she “drank heavily” during her relationship with the father. Following what the mother described as an assault on her by the father the mother decided she needed professional assistance to deal with “my alcohol dependence”. The mother arranged for counselling for the parties but that did not prove successful.

The mother’s evidence is that subsequent to the final separation of the parties she has made efforts to overcome what she described as “my abuse of alcohol”. In that regard, the mother stated that she has made progress since returning to live in Western Australia and with the support of extended family members.
During the mother’s oral evidence given in July 2006 the mother stated that it was in effect only rarely that she consumed alcohol which was restricted to social occasions. Exhibit 7 being a medical report dated 7 July 2006 concludes that the mother’s liver is “functioning completely normally”. The writer stated that the “improvement in her liver function would be explained by either her decreased use of medications or alcohol (or both)”. I accept Exhibit 7 and find that as at the date of that medical report the mother’s improved health was due to one or other (or both) of the causes mentioned in Exhibit 7.
However, it seems that consumption of alcohol, remained an issue for the mother. In her Affidavit sworn 23 October 2006 the mother stated that in order to assist her efforts to “contain my drinking” she joined Alcoholics Anonymous in particular a certain group which met on 12 occasions between the period 26 July 2006 to 18 October 2006. The mother stated that she missed a session due to hayfever and another session as her car was not working. In addition, the mother stated she had “missed three other sessions”. Accordingly, a quarter of the sessions that she was due to attend were not attended for reasons unexplained by the mother in her evidence. I infer that the mother did not have any reasonable basis for missing those sessions as otherwise the explanation would have been given by her in her affidavit, as she provided explanations for missing the two other sessions.
Whilst I accept the evidence of the mother as at 30 October 2006 that she had joined Alcoholics Anonymous and may have made some progress in controlling her consumption of alcohol, her progress may not have reached the stage at that time that alcohol is no longer an adverse issue for her. This is demonstrated by the mother’s unexplained absences from Alcoholics Anonymous sessions in her Affidavit sworn 23 October 2006 and the lack of further expert evidence.
On 2 February 2007 the mother’s evidence, and that of Mr X, was to the effect that the mother was a light drinker of alcohol and sober at all times. No mention was made by the mother of whether she has continued to attend Alcoholics Anonymous. I infer that the mother has ceased to attend that organisation’s sessions in view of the evidence referred to in this paragraph.
I accept the mother’s evidence, and that of Mr X, that for the short period she has been in Darwin the mother’s consumption of alcohol has been under control. However, having regard to the mother’s substantial history of the adverse effect on her of consuming alcohol with intermittent improvement, as previously referred in this judgment, I am not satisfied that on the balance of probabilities that her consumption of alcohol is unlikely to be a problem for her in the foreseeable future.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation from the mother or any other person with whom she has been living

In the event of the child moving from the daily care of the mother to that of the father together with Ms H will have the likely effect of the child only spending periods of time with the mother during school holidays. There will of course be the opportunity for the mother to have telephone communication each week.
In the event of such a change occurring, the child will have to adjust to not only ceasing to have the daily care of the mother except during school holiday periods, but also have to adjust to living with the father, Ms H and K in their household as well as a new school. The child’s social environment at home and with friends will also change.
The substance of the family consultant’s evidence given in Exhibits 3 and 4 being the family reports dated 6 September 2005 and 11 July 2006 is consistent in that the child is likely to adjust to the change of living with the father, Ms H and K without harmful trauma. The family consultant qualified that opinion by pointing out that how the child would cope with “lengthy separations from his mother” was likely to be largely influenced by her own coping with those separations. The difficulties in that regard were referred to by the family consultant in her oral evidence, although she did not depart from the substance of Exhibits 3 and 4. I accept the family consultant’s evidence and make findings accordingly.
The child is likely to benefit from the daily care of the father and Ms H in their household. The child has a loving attachment with the father and is fond of ms H and K. The child will benefit from the family unit that such a household provides.
In addition, it is likely that the child will also benefit from no longer having to experience the mother’s erratic and at times highly charged behaviour towards the father so far as facilitating and encouraging communication between them, as well as the lack of her disruptive actions at times during the course of telephone communication between the father and child. I have previously referred to the evidence of the father in that regard, which I have accepted and made findings accordingly.
I also find that the father and Ms H are likely to be willing to facilitate and encourage telephone communication between the mother and child on a regular basis as well as ensuring that arrangements are appropriately made in advance for the child to spend periods of time with the mother in Western Australia and in Sydney should she decide to do so.
There is a lack of evidence of substance which would lead me to conclude that the father will engage in the erratic and disruptive behaviour that the mother has demonstrated from time to time so far as telephone communication between her and the child in the event of the child living with the father and Ms H.
As previously referred to, on 2 February 2007 the parties and witnesses gave further evidence following leave having been granted on 30 January 2007.
The evidence of the mother was that she and the child were now living in Darwin together with her new partner, Mr X.
The evidence of the mother and Mr X in regard to the development of their relationship is as follows.
The mother and Mr X met at a Tavern in Western Australia in December 2006 whilst the mother was drinking with a friend. The mother had been observed by Mr X drinking at the same place with a friend four days earlier.
The mother and Mr X developed an intimate relationship from the day after they met, which has continued to the present time.
On 3 January 2007, Mr X returned to his premises in the Darwin area where he was and remains stationed as a member of the Defence Forces.
The child had spent time with the father in Sydney for the period 12 December 2006 to 29 December 2006. Upon the child’s return to Western Australia and to the care of the mother he met Mr X for the first time on 29 December 2006 and continued to spend periods of time with the mother and Mr X when he was at the mother’s home for a total period of about five days until Mr X returned to Darwin.
Mr X remained living in the Darwin area and engaged in his duties in the Defence Forces from 3 January 2007 to the present time.
For the period 13 to 25 January 2007 the child spent a further period with the father in Sydney.
On 13 January 2007 following the child leaving first to return to spend a period of time with the father in Sydney as previously mentioned, the mother then immediately travelled to Darwin and has remained living there until the present.
The mother did not return to Perth to collect the child following the last period the child spent with the father which, as previously mentioned concluded on 25 January 2005. However, the child was met by the maternal grandmother at Perth airport and the child then travelled by air to be met by the mother on 26 January 2007 at Darwin airport.
Since 26 January 2007 the child has lived with the mother and Mr X.
On 25 January 2007 the child was enrolled by the mother at W Primary School and has subsequently attended that school.
The evidence of the mother is that on 23 January 2007, having previously travelled to and remained in Darwin as a holiday and to further her relationship with Mr X, decided to permanently live with him in Darwin.
The mother then gave instructions by telephone to her solicitor in these proceedings informing her of her intention to relocate to Darwin with the child. No instructions were given by the mother to her solicitor for that information to be conveyed to the father or his solicitor, let alone to apply to re-open the mother’s case to give evidence in relation to the actual or proposed relocation to Darwin with the child.
The mother’s solicitor informed the Court on 30 January 2007, and I accept, that not only did she lack those instructions but that she did not give consideration to the issue of whether or not she had a duty to the Court to advise the mother to make the application earlier referred.
The maternal grandmother gave evidence, which I accept, that she endeavoured unsuccessfully to telephone the father or Ms H to advise the mother relocated with the child to Darwin.
As a consequence of the events to which I have last referred, neither the father or Ms H were informed of the mother’s relocation to Darwin until the mother spoke to Ms H by telephone on 29 January 2007.

Practical difficulty and expense of a child spending time with and communicating with a parent and the effect on the child’s right to maintain personal relations and direct contact with both parents on a regular basis

There is obvious practical difficulty and expense of significance so far as the child spending time with either of the parties, regardless of whether he continues to live with the mother in Darwin or moves to live with the father in B.
Travel by air is the only practical option, from a reasonable viewpoint. The father has undergone considerable expense to ensure that the child is able to travel with him between Perth and Sydney to spend time with the father in Sydney.
The mother is unemployed and receives Centrelink benefits. However, the mother’s evidence, which I accept, is that in the event of the child living with the father she will seek employment. That is likely to increase the mother’s ability from a financial perspective to meet the expense of the child spending time with her either in Darwin or Sydney. Indeed, the mother appears to have secured part-time employment in an army mess.

The capacity of each of the parties and any other person to provide for the needs of the child including emotional and intellectual needs

There is no issue that each of the parties has the capacity to provide for the physical needs of the child as well as ensuring that he is able to attend school.
Brief evidence was given by the father that the child’s attendances at school had been irregular whilst living with the mother. No detailed evidence was given in that regard. Accordingly, I find the father’s evidence too imprecise for me to make any findings in that regard.
I find that the father has the capacity to provide for the child’s emotional needs. The father gave evidence of the manner in which he has related to the child during periods of time the child has spent with him, as well as when they have had telephone communication. The latter, at times, was fraught with difficulty due to the disruptive behaviour of the mother. The father responded in a sensitive and child focused manner.
I find that the mother has a limited capacity to provide for the emotional needs of the child. That has been largely demonstrated by the manner and conduct of the mother by her disruptive behaviour during some of the telephone conversations between the father and mother, to which earlier reference has been made. The mother has manipulated the child to make derogatory statements to the father and involved the child in adult issues such as the police. Further, the mother provided a wholly inappropriate and insensitive refusal to permit the child to engage in a telephone conversation with the father because she had decided that that was the time needed to discipline the child by preventing him from speaking to the father.
In addition, certain of the comments made by the mother to the father, the subject of evidence to which earlier reference has been made, shows that the mother is capable of being a vindictive person who has little regard for the effect that her behaviour has upon the child.
There is no issue that Ms H has the capacity to provide for the physical, emotional and intellectual needs of the child as does K. No contrary submission was made.
There was no issue raised in relation to the capacity of Mr X to provide for the needs of the child. I find that Mr X has such a capacity albeit that it has only been demonstrated for a short period of time whilst the child has lived with him and the mother.

The maturity, sex, lifestyle and background of the child

The child has the maturity commensurate with a five year old boy. No contrary submissions were made.

The parental attitude of each of the parties

It is undisputed that each of the parties loves the child and each in their own way at times have exhibited a responsible parental attitude.
The mother’s parental attitude is at best inconsistent in terms of her willingness and encouragement in communications between the child and the father, apart from difficulties that have existed so far as implementation of arrangements for the child to spend periods of time with the father. I have made findings in relation to those matters which do not require reiteration.
I find that the father has at times engaged in abusive conversations with the mother which either expressly or by inference took place in the presence or hearing of the child which undoubtedly were upsetting to him. The fact that the father may have been provoked is of little consolation to the child.
I have also made findings in relation to the turbulent relationship of the parties during their periods of cohabitation. The volatile relationship may have impacted upon the child notwithstanding his tender age at the time.

Family violence and family violence orders

Relevant orders and proceedings have been previously referred to.
The mother has given evidence of the father’s violent and abusive behaviour towards her during the periods of cohabitation and subsequently so far as abuse is concerned.
The father has admitted that he was violent towards the mother during cohabitation by pushing her and smashing a car window. I accept the father’s evidence and make findings accordingly.
I am not satisfied on the balance of probabilities as to whether other incidents of physical violence between the parties did take place. There is no doubt that the parties engaged in strong verbal abuse of each other, including on one occasion the father leaving abusive telephone messages for the mother in accordance with the relevant tape recording in evidence.
During the course of the parties’ oral evidence, they conceded each of them were fuelled by their respective consumption of alcohol and inferentially the smoking of cannabis. I infer that those ingredients of their lifestyle made their relationship more highly charged than might otherwise have been the case.
So far as the conflict of evidence of the parties in relation to exchange of abuse between them subsequent to their final separation, I accept the evidence of the father where it conflicts with that of the mother for the reasons previously given.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the child

I am not satisfied that any particular substantive parenting order is least likely to lead to the institution of further proceedings in relation to the child by comparison with other alternative orders, save and except that orders which provide for the father to ensure communication with the child are more likely to be adhered to without the disruption and obstructiveness the mother has displayed on occasions in the past, subject of earlier findings.

Any other relevant fact or circumstance

The mother on a number of occasions has relocated with the child subsequent to the final separation of the parties. In each instance, that decision was made by the mother unilaterally and without any prior notice to the father, let alone an opportunity for him to discuss the matter with the mother and the manner and frequency with which the father should be able to have or continue to have a meaningful relationship with the child.
When the parties separated following each of their two periods of cohabitation, the mother travelled with the child to Western Australia. The father only discovered her whereabouts with the child as a result of his own enquiries.
Following the first period of separation between the parties the father travelled to Western Australia at the invitation of the mother to assist her and the child to return to live with him in Sydney following difficulties in the mother’s relationship with the partner of a friend of hers.
As previously stated, following the final separation of the parties the mother travelled with the child to Western Australia and commenced living there. The child was then about 18 months old.
In 2004 the mother again unilaterally decided to travel with the child, with her then male friend, north to R. The mother did not give the father any opportunity to discuss with the mother whether it really was in the best interests of the child for him to be relocated in the circumstances not to mention her proposals (if any) for detailed arrangements to enable the child to communicate and spend periods of time with the father in the changed circumstances. Shortly thereafter, the mother’s relationship with the male friend in question came to an end due to her evidence of an unspecified problem between the child and the male friend.
The mother subsequently had a relationship with another male friend and there were further difficulties between the child and that person. That relationship then ceased.
Another relationship then developed between the mother and another man for a period of about three months. The evidence is unclear as to the manner in which the child was introduced to and spent time with that person.
The mother’s evidence is that she has had a platonic relationship with a friend whose name is Mr N. I accept the evidence of the mother that he is the person whom the mother referred to in a telephone conversation with the father who the child then called “daddy”. All the relevant circumstances that gave rise to such a relationship between the child and Mr N were not detailed in the mother’s evidence.
The mother now cohabits with Mr X. The child lives with them. For that purpose the mother relocated to Darwin and made arrangements for the child to commence living with her and Mr X without any prior notice or discussion with the father either directly or through the parties’ respective solicitors.
As on previous occasions to which I have referred, the mother essentially presented the father with the child’s new living arrangements as a fait accompli.
The mother obviously determined that it was in the child’s best interests to not only relocate with her to Darwin but also to commence living with her and Mr X who the child had only met and had been in his company for a period of about four or five days.

CONCLUSION

The proposals of the father are that the child live with him and Ms H in their home in B and attend a local school.
The father further proposes that the child spend substantial periods of time with the mother in Darwin during school holidays following each school term and that otherwise the mother have regular telephone communication with the child.

The father contends that it is in the best interests of the child to live with him and Mr H in their home in B which represents an established and stable household.
In addition, the father proposes that the child will also have the benefit of the relationship of the other member of the household namely, the father’s son K with whom the child has a good relationship.
The mother proposes that the child continue to live with her and her partner Mr X in Darwin.
The mother contends that notwithstanding the short relationship between her and Mr X and the very limited period of time that the child has lived with the two of them, the child is happy in his situation which is a settled one in all respects.
As previously referred to, the best interests of the child is the paramount consideration for the purpose of deciding whether to make a particular parenting order in relation to the child.
I have concluded that it is in the best interests of the child that he now live with the father in his household in B with periods of time to be spent by the child with the mother during school holidays principally in Darwin as well as in Sydney upon certain conditions which will be set out in the relevant orders.
My reasons for reaching this conclusion are set forth in the following paragraphs.
I have accepted the evidence of the family consultant in relation to the views expressed by the child and her qualified opinion regarding the child’s adjustment to no longer living on a daily basis with the mother but living with the father and Ms H in their household in B.
So far as those matters are concerned, no application was made on behalf of either of the parties by their counsel for an order for a supplementary Family Report in respect of the child’s relationship with Mr X and all other relevant aspects of the child’s environment and settlement in comparison to the benefits of living with the father in his household in Sydney.
Due to the child’s age and recent change to his living arrangements brought about unilaterally by the mother, I do not attach any significant weight to the child’s views.
I do give weight to the positive aspects of the evidence of the family consultant, which I have accepted, regarding the effect on the child living with the father in his household as opposed to continuing to live with the mother, qualified as it must be by the lack of expert evidence through no fault of the family consultant due to her inability or that of another family consultant to consider all relevant aspects of this matter so far as the child is concerned consequent upon his recent relocation to live with the mother in Darwin.
The mother’s case, until her relocation to Darwin during January 2007, was that it was in the best interests of the child to continue to live with her in Western Australia. The mother’s reasons were that she had established a stable home for the child, the child was progressing satisfactorily at school, and the child had the benefit of members of the mother’s extended family including the maternal grandmother with whom the child has had a longstanding fond relationship.
The mother also claimed that she had been a more settled person in Western Australia no longer affected by the difficulties in her relationship with the father.
The mother obviously decided that it was in her best interests to relocate from Western Australia to live with Mr X in Darwin. Whilst I accept that was a sincere decision of the mother, it is clear she was of the view that that decision would also suit the child.
The child had known Mr X for no more than about four or five days. The child had already experienced a number of changes in his living arrangements involving male figures. Apart from the two separations from the father, the child has had a relationship with other male friends of the mother, which on the mother’s own evidence proved to be adverse to the child. One of those relationships also involved moving from his then settled environment to R and then returning to the area in Western Australia in which he and the mother had previously lived.
The mother has made the further unilateral decision to provide a radical change to the environment in Western Australia which she had previously contended was very much in the child’s best interests. The child has now left the stable living environment and school which the mother had stressed was to the child’s advantage not to mention the disruption to the child’s relationship with the maternal grandmother which the mother had previously emphasised was of importance to the child.
These changes did not come about as a result of the child having had any substantial relationship with Mr X. Rather the reverse.
In addition, the mother’s evidence is bereft of any suggestion of having given careful and mature consideration to balancing the benefits to the child which she had previously stressed existed in Western Australia compared to the relative unknown of a new environment and changes that it represented for the child in Darwin.
Last but not least, this has been yet another episode of the wife making an important decision so far as the child’s living arrangements are concerned without any prior notice or consultation with the father either directly or through the parties’ respective solicitors. The only excuse given by the mother has been that she did not speak to the father due to past stressful telephone conversations that they had and that the mother has had difficulties in the past in telephone conversations with Ms H. No reason of substance was put forward by the mother as to failing to instruct her solicitor to provide prior notice to the father of the proposed relocation or indeed to make application to re-open the mother’s case so evidence could be given before such an important change in the child’s life actually occurred. In that regard, I consider I am entitled to assume that the mother has been responsibly and competently represented by her solicitor on the record and as a result should have received the appropriate legal advice.
Consequently, I have concluded that the mother has shown an irresponsible attitude towards important decisions affecting the child’s life including but not limited to recognition of the need to involve the father in substantial decision-making for the child, if only at the very least by giving him adequate notice with an opportunity to respond.
For the mother to have acted that way when judgment was pending was inexcusable on the evidence that is before me.
I have made findings in relation to the willingness of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party. It is clear from those findings that the mother has often been obstructive and disruptive notwithstanding other occasions when she has taken a positive approach.
By contrast, I have accepted the evidence of the father which reveals that he has been positive and conciliatory in arrangements sought to be made and implemented so far as his relationship with the child and also the relationship between the child and mother.
I have not lost sight of the allegation by the mother that the father was unco-operative in relation to telephone communication last Christmas. That matter was barely touched upon in the oral evidence most recently given before me.
Suffice to say that each of the parties will need to demonstrate sensitivity and flexibility in the future and adopt a positive approach so far as the child communicating with and spending time with each of them recognising that as the child grows his reasonable needs and requirements will change. Those needs and requirements will have to be accommodated on an understanding and reasonable approach without brandishing the terms of orders which may not always fit the future circumstances of the child.
The father affords a stable household, well established over a considerable period of time which the child has enjoyed. The members of that household include the father, Ms H and K. I have made findings in respect of the relationship the child has with each of them. The stability and settled environment the father can offer is in start contrast to the history of the mother’s arrangements for the child in the last few years.
I have made findings in respect of the likely effect upon the child should he live with one party or the other. Those findings support my conclusion that it is in the child’s best interests to live with the father as opposed to the mother.
I have also made findings that the father will be willing to facilitate and encourage the continuation of the loving relationship between the child and the mother having regard to the practical difficulties that arise due to one party living in Sydney and the other in Darwin.
A prime consideration is the benefit to the child of having a meaningful relationship with each of the parties. There are obvious difficulties in that regard whether the child continues to live with the mother in Darwin or with the father in Sydney due to the tyranny of distance, the expense involved and the lack of opportunity for each of the parties due to their respective situations and limits to their financial circumstances all of which necessarily restrict the amount of travel that can be reasonably undertaken. No doubt that is why each of the parties has put forward proposals for time to be spent by the child with the other party during school holidays.
For the reasons previously given, I have concluded that a meaningful relationship between the child and both parents is more likely to be promoted by the child living with the father rather than with the mother.
There is little doubt that the quality of communication between the parties since they last separated has been generally unsatisfactory, although at times appeared to suggest improvement. So far as the mother’s recent decision to relocate with the child to Darwin, for the reasons previously given, communication between the parties was non-existent prior to the event for which the mother must accept sole responsibility.
In addition, important issues which were necessary, involved change of living arrangements, change of school, and last but far from least another relationship with a male figure were determined solely by the mother without any prior notice to the father.
The matters referred to in paragraphs 215 to 219 lead me to conclude that the presumption of shared parental responsibility is rebutted on the basis that it is in the best interests of the child to do so in accordance with the provisions of s 61DA(4). I should add that no submissions were made by counsel for the mother in 2006 in relation to ss 61DA(1)-(4) notwithstanding that at the commencement of the trial and subsequently that issue was referred to by me.

I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 16 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DUNBAR & ROURKE

[2007] FamCA 132

16 February 2007

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Family Law

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Procedural Fairness