E and L
[2003] FMCAfam 255
•4 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| E & L | [2003] FMCAfam 255 |
| CHILDREN – Planned relocation of mother – father wishing to restrain mother from moving – recognition of mother’s entitlement to freedom of movement – evaluation of parties’ competing proposals for contact if relocation occurs. Family Law Act 1975, ss.60B, 65E, 68F U & U [2002] FLC 93-112 |
| Applicant: | M E |
| Respondent: | J L |
| File No: | DNM 2606 of 2002 |
| Delivered on: | 4 July 2003 |
| Delivered at: | Darwin |
| Hearing date: | 27 June 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms J. Terry |
| Solicitors for the Applicant: | Janet Terry |
| Counsel for the Respondent: | Ms R Davis |
| Solicitors for the Respondent: | Davis Norman |
ORDERS
That the child T M E-L born the 24th of June 2001 reside with the mother and she be responsible for making all day to day decisions concerning her care, welfare and development.
That the father and mother retain responsibility for the long term care, welfare and development of the said child.
That the mother be at liberty to live with the said child in Karratha in Western Australia.
That the father have contact with the said child upon the mother’s relocation to Karratha as follows:
(a)For 14 days in Darwin in either June or July of each year;
(b)For 14 days in Darwin in either December of each year or January of the following year;
(c)For two periods of 14 days on two occasions each year in Karratha;
(d)At any other times as agreed between the parties in the mother travels to Darwin with the child;
(e)By telephone on one occasion each week, on the child’s birthday, the father’s birthday, Father’s Day and on any other significant days, including Christmas day such telephone call to occur at 5.00pm local time in which the child is residing and in the case of the weekly contact on each Sunday with the mother to telephone the father on a telephone number to be provided by him to the mother via her solicitor.
For the purposes of the contact referred to in 4(a)(b) and (d) the mother is to be responsible for all the costs of the child’s travel to and from Darwin including any costs associated with the child being accompanied on any flight and she shall give 28 days written notice to the father of the dates on which the child will be available for contact in accordance with these orders.
For the purposes of the contact referred to in order 4(c) the father shall be responsible for all costs associated with his travel to and from Karratha and shall give the mother 28 days written notice of the date on which he seeks contact with the child in Karratha in accordance with these orders.
In the event that the father’s contact coincides with Christmas Day in any year, his contact will be suspended to allow the child to spend either Christmas lunch or Christmas dinner with the mother, in the event the mother is in Darwin at the time.
That until the child commences school (not including pre-school) she shall return to the care of the mother during all periods of contact referred to in order 4 hereof on every third night from 6.00pm until 9.00am the following morning.
For the purposes of these orders and failing other agreement between the parties the child shall be delivered and collected before and after each period of contact at the premises of Centacare or such other place that is nominated by the mother from time to time in writing.
All applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2606 of 2002
| M E |
Applicant
And
| J L |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. The applicant is M E “the father”. The respondent is J L “the mother”. The parties are the parents of one child T M E-L born the 24th of June 2001. Accordingly, T has just reached her 2nd birthday.
The parties met in Darwin in 1995 and began a committed relationship shortly afterwards. There is some dispute between them as to when the relationship ended. The father asserts that it was in August of 2002 and the mother that it was in June of 2002. However since the parties separated, T has lived principally with her mother and had intermittent contact with her father. There is no doubt that relations between the parties, following their separation, have been acrimonious and on occasions violent. On the 14th of August 2002, the mother obtained an order pursuant to the Domestic Violence Act restraining the father from approaching, assaulting or threatening her.
On the 27th of March 2003, the father was convicted in the Court of Summary Jurisdiction at Darwin of unlawfully stalking the mother and of failing to comply with this restraining order. According to the father’s criminal history, the dates on which these offences were committed were the 9th of September 2002 in respect of the stalking charge and the 27th of November 2002 in respect of the breach of restraining order charge. As a result of these two convictions, the father was sentenced to 9 months and 28 days imprisonment, to be released on the 30th of June 2003, on a 2 year good behaviour bond with supervision for the first 12 months of the bond. Clearly, these two offences speak of the high level of tensions between the parties, following their separation.
In November of 2002, the mother began a relationship with C P. Mr P is a radio maintainer. For a number of years, he and the mother were both employed by a company known as BAE Systems Australia Limited. However, from 1 June 2003, Mr P has obtained work with Hamersley Iron Pty Ltd, in Karratha in Western Australia. The mother wishes to continue her relationship with Mr P and in order to do so, she wishes to move with T to Karratha to live.
It is her position that she will have greater financial security in Karratha as she will easily be able to obtain work there, which will not only be better paid than the work she currently does in Darwin, but will also require her to work less hours. It is also her position that she and T will be able to live in a peaceful environment, away from the father.
The father opposes T’s relocation to Karratha with her mother. It is his position that he has a close and loving relationship with T and that, given her age and current level of development, to allow the mother to move with her to Western Australia, would be tantamount to severing her bond with him and would have the inevitable consequence of removing him from T’s life, as her father. There can be no doubting that arrangements for the father to have contact with T, in the event that she does relocate with her mother to Karratha, would be problematic indeed, and at best, the father would be able to see her only every few months or so. In the father’s submissions, such contact would be inadequate and would not sustain the existing bond between father and child, with the consequence that T will lose her relationship with her father, to her long term detriment.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of children have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parent’s separation.
In U & U[1] Hayne J said:
“What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[1] U & U [2002] FLC 93-112 at 89,102
Australia is a free and democratic society, whose citizens enjoy the right to live where and how they wish. For that reason, Ms L need not demonstrate compelling reasons as to why she wishes to move T from Darwin to Karratha. Although, in deciding this case, T’s best interests remain my paramount consideration, those interests are not my sole consideration. It will be necessary for me to compare and evaluate each of the parties’ competing proposals, according to the legislative directions as set out in section 60B and section 68F of the Family Law Act, to arrive at the result that I believe will best serve T’s interests. However, I must not lose sight of the fact that both Ms L and Mr E have a right to freedom of movement, both within Australia and indeed outside it. If the ultimate decision of the Court is that Ms L is able to take T with her to Karratha, I must also consider the arrangements that each party proposes for T to maintain contact with Mr E and, if necessary, devise a regime which I believe will adequately fulfil T’s right to regular contact with her father, in the context that she is no longer living permanently in close physical proximity to him.
The way in which each party has presently framed his or her case provides no middle ground. Mr E has said he cannot himself move to Karratha. However, I should not assume automatically that it is not possible for him to move closer to T, so that she can maintain her relationship with him. The fact that Mr E could move to Karratha is a possibility that can be explored, although it is not the preference of either party. At the end of the day, it may be unreasonable to allow Mr E to keep Ms L a virtual hostage in Darwin, to his desires and wishes, when he himself is not prepare to make any sacrifices in order to maintain his relationship with T.
In U v U the majority of the High Court eloquently expressed the difficulty that confronts the Court in the present case, when they said as follows:
“… “contact” with both parents is desirable and important. So too is the presence of a “stress-free environment” for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.
…the reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[2]
[2] U v U (supra) per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed at 89,090 - 1
In this case, it is the mother’s position that the possibility of her living in Karratha with T, provides the best prospect for T of her growing up in a happy and stress-free environment. She proposes contact between T and her father on two occasions each year, for periods of up to 8 days. It is the father’s position that, given T’s age and level of development, this proposal is not sufficient and will not promote her best interests. Accordingly, he proposes that he have contact with T each alternate weekend and overnight on the Thursday of each week. Implicit in this proposal is the necessity for the mother to remain living in the Darwin area. He does not put an end point on this restriction on her right to move. In the alternative, if the mother does leave Darwin with T, he proposes that he have contact with T in Darwin, on at least four occasions each year.
Neither party is in a particularly strong financial position and the costs of travel between Karratha and Darwin, particularly when a small child is involved, are likely to be high. Accordingly, this is not a case which presents any easy or ready solutions.
Having indicated in stark terms the nature of the case before me, I have no reason to believe other than that Mr E and Ms L, in spite of the serious and trenchant criticisms they each make of the other, are motivated in these proceedings by anything other than their love for T and their hope for the best outcome for her in them. Although T’s best interests are my paramount consideration, I am well aware of the painful ramifications that will inevitably flow from the decision that I will make in this case, for at least one of the parties.
The applications
At the outset, it is appropriate to set out the competing proposals of the parties. The father is the applicant in these proceedings. In his affidavit material,[3] the father seeks the following orders:
[3] Father’s affidavit of evidence filed 16th of June 2003 at paragraphs 60 to 61
If the mother does not relocate to Karratha.
(1)That the child of the relationship T M E-L born 24 June 2001 reside with the mother.
(2)That the mother and father each have sole responsibility for making decisions about day to day care, welfare and development of the child when the child is living with them.
(3)That the mother and the father have joint responsibility for making decisions about the long term care, welfare and development of the child.
(4)That the father have contact with the child:
(a)Every alternate weekend from 4.30 pm Friday with pick up of the child from Gray Childcare Centre until 7.30 am Monday with delivery of the child to Gray Childcare Centre.
(b)Every Thursday from 4.30 pm with pick up from the Gray Childcare Centre until 7.30 am Friday delivery to the Gray Childcare Centre.
(c)At such other or alternate times as the parties mutually agree.
If the mother relocates to Karratha.
(5)That the child of the relationship T M E-L born 24 June 2001 reside with the mother.
(6)That the mother and father each have sole responsibility for making decision about the day to day care, welfare and development of the child when the child is living with them.
(7)That the mother and the father have joint responsibility for making decisions about the long term care, welfare and development of the child.
(8)That the father have contact with the child:
(a)At least four times a year in Darwin at times as agreed between the parties.
(b)At such other or alternate times as the parties mutually agree.
(9)That the parties share the costs of contact equally.
In a minute of order, which was handed up by the mother’s counsel on the date of the hearing, the mother indicated that she seeks the following orders:
(1)That the child T M E-L born 24th June 2001 reside with the mother and that the mother have sole responsibility for making decisions about the child’s day to day care, welfare and development.
(2)That the mother be permitted to relocate to Karratha Western Australia with the child.
(3)That the father have contact with the child as follows:
(i)For a period of 8 days each June/July.
(ii)For a period of not less than 8 days in December/January of each year.
(iii)Reasonable contact during any time that the mother travels to Darwin with the child.
(iv)Contact by telephone on one occasion each week and on the child’s birthday, father’s birthday, Father’s Day and other important family days.
(v)Other contact as may be agreed between the parties from time to time.
(4)(a) that for the purposes of the contact referred to in proposed order 3 hereof the contact is to occur for two consecutive days from 9.00am to 3.00pm with the child returning to the mother on the third day; with the contact regime repeating.
(b)Overnight contact for one evening if the father has suitable accommodation.
(5)That for the purposes of contact referred to herein all contact changeovers are to occur at Centacare.
(6)That the mother is to give the father not less than 21 days notice of her intention to travel to Darwin with the child in both June/July and December/January and is to provide the father with dates on which the child will be available for contact.
(7)That the mother is to pay the travel costs between Darwin and Karratha, associated with the June/July and December/January contact.
(8)That during all contact occasions the father is not to consume any alcohol or illicit substances or to be in the company of others who are consuming alcohol or illicit substances.
The documents relied upon
The father relied upon the following documents:
i)An affidavit sworn by himself and filed on the 16th of June 2003.
The mother relied upon the following documents:
a)An affidavit of herself filed on the 5th of June 2003;
b)An affidavit of C P filed on the 15th of April 2003.
In addition the mother relied upon the criminal history of the father which was tendered in the proceedings without objection from counsel for the father.
Both parties and Mr P were cross-examined in the proceedings. At the time of the hearing on the 27th of June, 2003, the father was undergoing his sentence of imprisonment at the Darwin Prison. Accordingly, he took part in the proceedings by way of a video link from the Prison. Mr P was in Karratha at the time of the hearing. He gave his evidence by way of a telephone link from his place of employment in Karratha.
The evidence
At the heart of this matter is the nature of the relationship between the parties. The mother portrays the father as violent, manipulative and deceitful. She asserts that he has little understanding of the needs, either emotional or physical, of a child of T’s age. It is her view that the father has adopted his particular position in this case as a means of controlling her and her destiny. In essence, she asserts that Mr E puts his own emotional needs before those of T.
It is the father’s position that, to the contrary, the mother has used T as a tool against him. Essentially, he believes that she has exploited his obvious love for T, by arbitrarily withholding contact from him, in order to provoke a reaction from him, because of the spite she feels for him. He doubts the stated motivation of her proposed move to Karratha and, again, believes that the mother wishes to move just to frustrate his desire to have a close and loving relationship with T.
Having outlined the position of each of the parties, it is clear that they have a deep and abiding mistrust for one another. This mistrust is extremely unlikely to resolve in anything but the long term. I formed the view that the father still has very many unresolved issues, so far as his relationship with the mother is concerned. Much of his evidence was coloured by his obvious resentment at what had occurred following the parties’ separation and, from his point of view, the mother’s moral failings so far as that was concerned. She had made him “suffer”; “broke (him) down”; made him “angry”, by having an affair with “someone at her work”. The most frequently used adjective he applied to the mother was “spiteful”. These are matters that caused me to continue to have a degree of concern about the safety of the mother and T in future. Overall, I formed the view that the father had very little insight into the consequences of much of his behaviour between the time the parties separated and now, particularly its implications for T’s emotional wellbeing. However, to his credit, the father deposed that Ms L was a good mother and capably took care of T. He conceded that it was she who provided most of T’s financial needs.
The mother’s affidavit evidence was brief. In respect of the allegations of violence she had suffered at the father’s hands following separation, she relied on a number of statements, which she had made to police and a schedule that the Northern Territory Police had prepared of their involvement with the parties between the 9th of September and the 26th of November 2002. These documents were annexed to her affidavit, without further elaboration. Neither party sought to explore any of the various incidents referred to in those documents in any great detail, in either cross-examination or in their evidence in chief. In particular, Mr E said nothing about the incident of the 9th of September, 2002, as a result of which, he was apparently convicted of stalking Ms L.
In his affidavit evidence, the father deposed as follows:[4]
“I was convicted on 26 March 2003 on one count of aggravated stalking and two counts of breaching a restraining order. The circumstance of aggravation were that there was a breach of the restraining order. The stalking charges related to incidents on 9 September, 15 September, 23 October and 26 October 2002. I received a 9 month sentence on the aggravated stalking being suspended after 2 months and 28 days on the breaches of the restraining order. The breaches of the restraining order relate to incidents on 9 September and 27 November 2002. There was no violence in any of these charges. I pleaded guilty to these charges as I wanted to finalise the matter. There were other charges, including 4 breaches of a restraining order, aggravated assault, threatening behaviour in a public place and attempting to pervert the course of justice were withdrawn because of insufficient evidence. When I get out of prison I will be on a two year good behaviour bond and I have no intention of re-offending.
All of the incidents relate to my frustration about contact with T. The dates of the incidents are: 9 September 2002; 15 September 2002; 23 October 2002; 26 October 2002; 27 November 2002.”
[4] Father’s affidavit of evidence filed 16 June 2003 at paragraph 42 and 43
The father was not cross-examined in any detail about any of these specific incidents and, in turn, his counsel chose not to cross-examine the mother about the contents of her various statutory declarations to the Northern Territory Police in respect of the various incidents described in them. The exception to this was in respect of two incidents, which occurred on the 15th of September and the 27th of November, 2002. There were no charges laid in respect of either the 15th of September or the 27th of November incident and, in cross-examination, the father portrayed himself as a hapless victim of violence at the hands of the mother and her family.
The 26th of October incident apparently occurred when the parties saw each other, whilst driving through an area of suburban Darwin and the father did a u-turn to pursue the vehicle in which the mother and Mr P were travelling. The father attempted to minimise his responsibility for this incident by saying that he was following Mr P, rather than the mother herself, because Mr P had stuck his fist up at him. However, neither counsel for the mother nor counsel for the father attempted to cross-examine Mr P about this incident.
Overall, I am left in a state of some uncertainty about the precise nature of the charges to which Mr E pleaded guilty and what facts he admitted as a result of his pleas. He himself was confused about the exact dates of many of the incidents and the general tenor of much of his evidence was that, although he conceded that he must accept some responsibility for the various events, much of the fault for them lay with others, particularly Ms L. Because of his lack of specific denial in respect of the statutory declarations on which Ms L relied in her evidence, and the fact that his counsel did not seek to challenge Ms L about their contents, in my view, I should accept their contents as recounting what occurred on the various occasions described therein.
The mother seeks an order, which would restrict the father from consuming alcohol or illicit drugs during any period of contact. Counsel for the father was critical of the mother for not specifically alluding in her affidavit material to any concerns she had regarding the father’s consumption of alcohol and drugs during the parties’ relationship or thereafter. There is some basis to this criticism. In her evidence, the mother indicated that she did not “have a novel” to describe every incident of the father’s anti social behaviour that concerned her. She pointed to the fact that on the 17th of December 2002, the father had consented to an order that prevented him consuming illegal drugs or alcohol during any periods of contact, as evidence of the substance of her concerns in this regard. The father denied any problems with alcohol consumption in the past and, other than occasional recreational cannabis use, denied using any other illicit drugs, particularly amphetamines. This issue was not pursued in any great detail in the hearing before me and I am not in a position to make findings of fact in respect of it.
The major area of dispute between the parties was in respect of who of them, was principally responsible for providing for T’s needs, during the period they lived together. It is the mother’s position that it was she, who provided for the vast majority of T’s needs. The father asserts that he played a significant role, particularly on weekends and during the evenings, regularly feeding, bathing and changing T.
The level of Ms L’s antipathy and contempt for Mr E were apparent throughout the hearing and particularly when she said this about him:
“I do not trust M. He is a liar. I have no respect for him. He has hurt me. He lies through his teeth. He has no respect for the law.”
Although there can be no doubting the strength of those sentiments, after having observed both parties and considered the whole of the evidence in these proceedings, overall I prefer the evidence of the mother over that of the father. In this case, findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of each of the witness concerned. In what follows, statements of fact constitute findings of fact.
a) Brief background
The father was born in Launceston, Tasmania on the 14th of June 1971. However, he has lived in Darwin since 1980. He is a panel beater by trade, having completed his apprenticeship in 1990. The father’s parents moved back to Tasmania, with other members of his family, in early 2002. Consequently, apart from her father, T has no other paternal relatives living in Darwin at the present time. The mother was born in Darwin on the 28th of October 1978. By occupation she is an administration officer. Her parents live in Darwin, where her father operates a building company. The mother owns a residential property, situated at 10 B Court, Woodroffe. This property was built by Ms L’s father’s building company for a greatly reduced price to the mother. There is currently some dispute between the parties as to whether or not Mr E has an equitable interest in this property, which they are trying to resolve.
T is the parties’ only child. The parties began their relationship in 1995. They have never been married. Prior to this relationship, Mr E was involved in a relationship with a person called M F, between 1990 and 1995. Whilst involved in this relationship with Ms F, the father was charged with a number of counts of breaching restraining orders and one count of assault.
On the 1st of September 1994, he was fined $300.00 in respect of one count of breaching a domestic violence order and $300.00 in respect of one count of assault. On the 29th of September 1995, he was charged with six counts of breaching domestic violence orders and sentenced to a total of 49 days imprisonment. A subsequent appeal to the Supreme Court of the Northern Territory in respect of this sentence was dismissed. The father attempted to discount the significance of these convictions by saying that Ms L knew about them when she became involved with him. This is a simplistic analysis. In my view, when considered with the other evidence in this case, it indicates that the father does have a disregard for the law. It also gives a real basis for the mother to be fearful of him and his regard for domestic violence orders.
Both parties were in paid employment for much of the relationship. They lived in Tasmania for a period of approximately 6 months, as well as in Perth and Brisbane at other times. They separated in 2000, but resumed their relationship once again. The mother was absent from her work for a period of approximately 4 weeks before and after T’s birth. She returned to work when T was 3 weeks old and her employers were happy for T to accompany her to work each day so she could be breast fed.
The mother asserts that the father was violent towards her during her pregnancy with T. The father does not specifically deny these allegation. I accept the mother’s evidence that she was subjected to verbal and physical violence from the father during the relationship. T was breastfed for the first 10 months of her life. It is the mother’s position that she was T’s principle carer during the relationship and that, from time to time, she had assistance from her mother. She describes the father’s involvement with T as “minimal”. I have little difficulty in accepting that the mother was T’s primary carer. However, on balance, I believe that the father’s involvement was more than minimal, but I do not believe that his involvement was as extensive as he would have the Court believe. Certainly, I do not believe that he can be described as an exemplary parent. The main burden of caring for T fell on the mother.
b) Events following separation
The parties separated in mid 2002. On the 14th of August 2002, the mother applied for a Domestic Violence Order against the father. The father did not contest the application. If anyone was in a position to understand the consequences of breaching such an order, it was the father, who had been previously sentenced to a period of imprisonment in respect of breaching a similar order.
In all the circumstances of this case, I can well understand why the mother would have been apprehensive about staying in Darwin. At any event, shortly afterwards, she decided to go to Perth with T, for a holiday of 3 weeks. The father is highly critical of the mother for behaving in this way. This was the background to the events that subsequently unfolded. It is the mother’s position that she told the father that she was going to Perth on the day that she left, but she concedes that she did not get his agreement to take T. The father justifies much of his subsequent behaviour on the basis that it was unfair of the mother to dictate to him what occurred in respect of arrangements for T. It is his position that the mother exhibited no respect for his role as T’s father by her subsequent conduct and to a certain extent caused him to behave in the way in which he did. Without doubt, the period after the mother returned to Darwin with T, was a volatile and difficult one for all concerned. There was constant strife between the parties from September to November.
The first incident of which the mother complains occurred on the 9th of September, 2002. The father has said very little, if anything, about this incident. However, the criminal history, which was tendered by the mother, indicates that the incident that occurred on this date was the basis for the unlawful stalking charge. In her statutory declaration to police, the mother deposed that she was at home in the evening of the 9th of September, when the father forced his way into her house. Once inside, he threatened to hang her by the ceiling fan and burn her house down. He manhandled her into the lounge room and threw her on a couch there. He was angry and abusive. He threatened her and threatened to kill himself. It must have been a frightening incident for the mother.
At this stage, no formal orders had been made to regulate parenting arrangements for T. The father commenced proceedings himself in this Court on the 20th of September 2002, seeking alternate weekend contact. He did not seek an urgent hearing in respect of his application. The mother did not formally respond to this application until the 29th of November 2002.
Notwithstanding this incident, on the 14th of September 2002, the mother agreed that the father could have contact with T overnight. She had a social engagement that evening. The next day, before T was due to be returned, the father telephoned the mother and said to her that he was at the Darwin Airport and was about to take T away with him. A short time later, he rang her again and invited her to meet him at the wharf in order to return T to her. However, Mr E failed to arrive at the wharf as he had indicated. Later he telephoned again and another arrangement was made between the parties for them to meet at the Fannie Bay shops. It is the father’s position that he was reacting to the mother’s unilateral decision to take T to Perth and deprive him of contact. In my view the father’s behaviour cannot be excused in this way. In all the circumstances, his behaviour was tantamount to holding T a hostage from her mother. His behaviour was irrational, selfish and frightening. It was calculated to cause the utmost distress to the mother.
As a result of his behaviour, the mother and members of her family followed the father and subsequently had an unpleasant altercation with the father at East Point and T was forcibly retrieved from him. He complains that he was assaulted by both the mother and her brother in this incident. In his evidence, he attempted to portray himself as a hard done by victim. This is nonsense. He brought this response on himself by his behaviour. He was subsequently arrested by police and detained for a number of hours, but was released without charge. In his evidence, the father attempted to portray his release without charge as some sort of vindication for his behaviour. I do not accept this. He behaved reprehensively.
Following his release from police custody, the father telephoned the mother and left a message on her mobile phone. In the message he said as follows:
“You f*** better watch yourself, c***. I never got charged, c***. You and your dickhead brother are going to get charged for what you did, c***. You had better watch yourself, dickhead. You are going to f*** go. What goes around, comes around. You are going to dig your own f*** little grave.”
Once again, the father does not specifically deny this behaviour on his part. His counsel did not cross-examine the mother about the truth or otherwise of her statutory declaration to police about this incident. Again, I can well understand why the mother would have found this incident frightening and offensive. It can only be described as threatening.
It seems that following this incident, the parties attempted to reach some accommodation with each other in respect of arrangements for T’s care through mediation. At least, initially the mother agreed that the father could have contact with T from 4.30pm Thursday until the following Friday morning and every alternate weekend. However, later she perceived that T did not cope well with this extended contact and she decided to withdraw it. This again led to the father taking things into his own hands, with disastrous consequences. He is critical of the mother for failing to communicate properly with him. However, in all the circumstances, I can well understand why she would be fearful of him and why given his past behaviour, it would have been difficult for her to have a rational conversation with him about arrangements for T’s care.
The mother made a further statutory declaration to police on the 24th of October, 2002, in which she made further complaints about the father’s harassment of her. In brief, she complained that he had followed her, in his car, whilst she was driving along Wishart Road, Berrimah and later telephoned her on the 23rd of October 2002. It is the mother’s position that once again the father had breached the conditions of the earlier Domestic Violence Order.
The next incident of which the mother complains occurred on the
25th of October, 2002. In this incident, the parties again came into contact with one another, whilst driving in suburban Darwin. The father executed a u-turn in his motor vehicle to pursue the vehicle occupied by the mother and Mr P. The father abused Mr P and threatened him. Once again, I accept that the father’s behaviour was frightening and intimidating of the mother and cannot be justified. Certainly not on the basis, as the father would have it, that his animosity was directed towards Mr P rather than the mother.
In my view, given his behaviour up to this time, it was not reasonable for the father to expect to have contact with T as a matter of right. There were no specific orders in place regarding contact and he had behaved poorly. It is no justification for his behaviour that he felt frustrated in his attempts to have contact with T. I accept the mother’s evidence that T did not respond particularly well to the periods of extended overnight contact that she had with the father. The mother may be criticised for going back on an earlier agreement and not properly communicating her concerns to the father but, throughout this period, he behaved like a bully and a standover merchant.
Things came to a head on the 25th of November 2002, when the father took things into his own hands and attended at T’s family daycare centre and removed her without prior reference to the mother. He retained her until the 28th of November, in spite of the mother’s requests that she be returned to her.
In all the circumstances, this must have been very frightening and upsetting for the mother. In a subsequent telephone conversation between the parties, the father attempted to dictate terms to the mother in respect of property settlement and future contact arrangements for T, in exchange for returning the child to her mother. Again there was an unpleasant and violent altercation between the parties at a shopping centre and the police had to be involved in retrieving T from the father. Mr E was arrested but released without charge after being detained for four hours. Once again, in my view, this behaviour does him no credit at all and is behaviour that cannot be justified because of the supposed frustration the father was feeling. In my view, it is simplistic for the father to blame the mother for what is his own conduct.
On the 17th of December 2002, orders were made in this Court, regarding interim parenting arrangements for T. It was agreed between the parties that the father would have contact on Christmas Day and New Year’s Day from 8.30am until 1.00pm, with changeover to occur at the Palmerston Police Station and on each Thursday from 4.30pm until the following Friday at 7.30am, with T to be collected and returned to her daycare centre. To the credit of each of the parties concerned, these arrangements went without incident until the father’s incarceration on the 27th of March 2003. During this period, the father obtained accommodation for himself in a unit at Bakewell.
c) The mother’s future plans
I accept that the mother commenced a relationship with Mr P in November of last year. Mr P moved to Karratha on the 1st of June 2003. He is currently employed as a radio maintainer by Hamersley Iron Pty Ltd. Mr P is 25 years of age and has no children. The mother and Mr P plan to live in Karratha for the next 2 or 3 years. They both have extensive family in Darwin. Mr P receives a salary of approximately $70,000.00 per annum and in addition is provided with accommodation, in a 3-bedroom house in Karratha, by his employers. He is earning considerably more than he has previously earned in Darwin. As part of his employment package, he is entitled to 2 return airfares each year for each member of his family between Karratha and Perth. The mother believes that, due to her relationship with Mr P, she and T would be entitled to these airfares.
The mother has given evidence that she would be able to obtain work in the Karratha area through the employment placement firm Skilled Engineering Limited. She believes that she would be able to obtain a part-time job in Karratha, in which she would earn approximately $36,000.00. At the present time, on a full-time basis, she earns $33,000.00 in Darwin. However, at this stage, she has not got a certain job to go to. Overall, it is the mother’s position that she and Mr P will be significantly better off financially in Karratha and that a period of
2 or 3 years working there, would enable them to make a firm base for their and T’s financial future.
I do not accept that the relationship between Mr P and the mother is a sham, as the father would have it. On any view, there are significant benefits, which the mother would have, if she moved to Karratha, not the least of which is the emotional support and security that she would gain by pursuing her relationship with Mr P. It is also her position that her life in Darwin has been very difficult, particularly between September and November of last year. This is undoubtedly true. The reason it was difficult stems from the father’s behaviour towards her.
The evidence of Mr P was that he applied for the job in Karratha in November of last year. In the past, he has worked in the town for periods of up to 4 weeks, to assist his previous employer, BAE Systems Pty. Ltd. He is familiar with the environment of the town.
I accept that he applied for the position because it provided him with the prospect of financial advancement. Since he applied for the job, the relationship between him and the mother has developed. They lived together for about 6 months in Darwin until his recent departure for Karratha.
The mother proposes using the airfares provided by Mr P’s employer to facilitate contact between T and her father, on two occasions each year in Darwin. She herself would also want to visit Darwin to see her parents and family. Mr P has to utilise his leave and the airfares in each year. He cannot accumulate either his leave or the airfares from year to year.
The father was released from prison on the 30th of June 2003. He is staying in a caravan on the property of some friends in Berry Springs. He hopes to be able to return to work as a panel beater shortly. He is in good health. He has deposed that he has no intention of getting into trouble again and regardless of his behaviour, will be subject to the supervision of the Northern Territory Office of Corrections, for a period of 12 months from the date of his release. He is currently trying to negotiate some form of settlement with the mother in respect of the parties’ property matters.
Although the father concedes that being a panel beater is a portable trade and that it is comparatively easy for him to move around Australia with his tools of trade, it is his position that it is not possible for him to live in Karratha, as he does not know anyone in the town and does not know what are the prospects of employment for him there. In his evidence, he indicated that he has no other qualifications beside his ability to be a panel beater, but conceded that he has done labouring work in the past.
Overall, it is the father’s position that he wants to see T “as much as possible” and that if T was to move to Karratha, he would be “devastated”.
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act.
Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
a)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
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve T’s best interests.
As the issue of the location of the children’s residence is at the heart of the case, it is necessary for me to make some specific reference to a number of recent decisions of both the High Court of Australia and the Full Court of the Family Court of Australia.
The High Court considered the issue of relocation in AMS v AIF; AIF v AMS. In the case[5], which was the subject of appeal, both parents sought residence of the child concerned. In addition, the mother sought to be released from an undertaking that she had given not to remove the child from Perth without the father’s consent. At the time of the hearing, she wished to be able to return to the Northern Territory with the child concerned. The orders of the trial judge provided for the child to live with the mother but her application to be released from her undertaking was dismissed and an injunction was granted restraining her from changing the child’s principle place of residence from Perth. On appeal, the Full Court of the Family Court, refused to set aside the restraints on the mother changing the child’s principle place of residence. The High Court (Gleeson CJ., Gaudron, McHugh, Gummow, Kirby and Hayne JJ, Callinan J dissenting) allowed the mother’s appeal. The majority of the High Court held that the trial judge had erroneously exercised his discretion by requiring the demonstration by the mother of “compelling reasons” to counter the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan area of Perth. They found that the Full Court should have intervened on this ground.
[5] AMS v AIF; AIF v AMS (1999) FLC 92-852
In the judgment Kirby J set out nine general propositions derived from the authorities relevant to the question of relocation of a child’s residence, as follows:[6]
[6] AMS v AIF FLC 92-852 at page 86,041 – 86,043
“ This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.
First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a ‘careful and delicate analysis’, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the ‘welfare’ (or ‘best interests’) of the child should be the paramount consideration. It may provide a list of considerations or ‘principles’ to be applied in the exercise of the court’s powers. However, the ‘paramount’ consideration is not the same as the ‘sole’ or ‘only’ consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these consideration, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the ‘feminisation of poverty’ resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v. Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas, wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in other jurisdiction but with different orders as to access and contact.
Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court'’ discretion.
Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”
Kirby, J went on to consider whether it was appropriate for a trial judge, in a relocation case such as this one, to consider whether it was appropriate for a residence parent to be granted “permission” to relocate with a child and if so, whether in order to obtain such “permission”, a resident parent need demonstrate “compelling” reasons for such a move. His Honour disapproved of both such concepts. Bearing in mind a citizen’s right to live and move freely, the requirement to provide such compelling reasons was unduly restricted and might unwittingly tie a residential parent in one location indefinitely, without any commensurate restriction on the other parent.
This led His Honour to conclude that although pursuant to the Family Law Act, the best interests of the child were the paramount consideration, they were not the sole consideration. To a large extent, the freedoms enjoyed by parents in a country such as Australia – essentially the right to live how and where they chose – must, on some occasions, impinge on the rights of the child concerned. It was not appropriate to restrain a parent from moving merely to keep the child in the same location would achieve an “ideal” level of regular physical contact with the other parent. Such an approach was unreasonable because it:[7]
“…impermissibly restrained the residence choices open to the mother. It illustrates an application of the legislation unduly favourable to the interests of the non-residential parent. He is subject to no injunction and he lives where he chooses effectively requiring his former partner to remain close at hand to maximise his contact with the child of their relationship (and, it must be added, the child’s contacts with him). Whilst the last stated consideration is certainly a matter proper to be taken into account, it is not the sole consideration to inform the Court’s decision.”
[7] AMS v AIF (supra) at 86,050
However, His Honour considered that the trial judge was then required to give consideration to alternative regimes for contact, such as an extension of periods of contact, and whether such regimes adequately fulfilled the child’s right to regular contact with the other parent concerned. In certain circumstances, if the contact proposed was insufficient, it might give rise to the need to review the entire issue of residence. His Honour concluded:[8]
“…to compel the mother, against her wishes, effectively to remain in the Perth metropolitan area , and to oblige her to conform to that requirement by an unlimited injunction, because her reasons for relocation were not regarded as ‘compelling’ amounted to an erroneous exercise of the primary judge’s discretion.”
[8] AMS v AIF (supra) at 86,051
In this case Mr E does not seek the residence of T. He himself is not prepared to move to Karratha. His position is analogous to that adopted by the father in AMS, which is to oblige the mother to remain living in Darwin indefinitely because, in his submission, it provides ideal circumstances for him and T to have contact with one another. It is a position that pays no heed to Ms L’s entitlement to freedom of movement. To use Kirby J’s terminology such an “unlimited injunction” would be an “erroneous exercise of discretion”. Rather, in this case, it seems that I must consider the adequacy of arrangements for contact proposed by both parties whilst bearing in mind that T’s best interests are my paramount consideration but not the sole consideration.
In A v A: Relocation Approach[9], the Full Court of the Family Court, following the decision of the High Court, stipulated that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child. It held that the best interests of the child remained the paramount consideration but not the sole consideration. The Court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the Court to evaluate each of the proposals advanced by the parties. That evaluation must assess the advantages and disadvantages for the child’s best interests of each proposal and consider each relevant section 68F(2) factor. When evaluating the proposals, the Court must have regard to the fact that neither party bears an onus (the Court must have regard to the whole of the evidence relevant to the best interests of the child) and the importance of a party’s right to freedom of movement. If the Court considered that the arrangements proposed by one or other of the parents were not adequate in respect of contact, it might become necessary for the Court to order a regime which would best meet the right of a child to know and have physical contact with both parents, independently of the parties’ proposals.
[9] (2000) FLC 93-035
The High Court again considered the question of relocation in U v U[10]. This case concerned a mother, who wished to leave Australia with the child concerned, to return to India, her country of origin. This proposal was opposed by the father of the child concerned. In the case, the High Court considered that the primary Court was obliged to give careful consideration to the proposed arrangements of each party but was not bound by those proposals. The Court rather had to look at the matters stated in section 68F(2) and elsewhere in the Family Law Act in coming to a decision about the residence of the child concerned. The objective remained always to achieve the child’s best interests.[11]
[10] U v U (supra)
[11] U & U per Gummow and Callinan JJ at 89,089 and Hayne J at 89,102
In this regard, Hayne J with whom the Chief Justice agreed, drew attention to the Court’s need also to inquire of the non-custodial parent as to whether he or she was able to move to be nearer the child concerned, if relocation occurred. He said as follows:
“When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.”[12]
However, I must bear in mind that it is not appropriate for a Court at first instance to embark upon a roving inquiry about a relocation case, independent of the positions of each of the parties concerned.[13]
[12] U & U per Hayne J at 89,103
[13] U & U per Hayne J at 89,102
Discussion
The mother is not required to demonstrate “compelling reasons” for wishing to relocate T’s residence from Darwin to Karratha. Having said that, I find that her reasons for wishing to move from Darwin to Karratha, with T are valid and understandable. I accept that she has formed a genuine relationship with Mr P and he has moved to Karratha to pursue a legitimate career option, which will provide him with greater remuneration than that which he has previously enjoyed in Darwin. I also accept that it is legitimate for the mother to wish to be able to move away from the father, who has tormented and abused her in the past. Given the exceptional level of conflict between the parties in the past, it is legitimate for the mother to want to have for herself and T, a quiet life, free from conflict. In my view, this is not a case where the mother is manufacturing reasons for her relocation, in order to maliciously curtail the existing relationship between T and her father. I accept that her relationship with Mr P has developed quickly and she wishes to pursue it. I also accept that she wishes to remove herself from the high level of conflict she has experienced with the father in the past. I also accept that she sees some financial advantages for herself in Karratha.
However, having said that, I also recognise that cases such as this one are intrinsically difficult and require a careful and delicate analysis of all the relevant facts. In this regard, I must bear in mind that neither of the parties to the proceedings bears an onus to establish that a proposed change to the existing situation, or a continuation of the existing situation, will best promote T’s interest.
Although T’s best interests are my paramount consideration, they are not my only consideration. I cannot ignore the legitimate interest and desires of the parties concerned. In this context, I must remember that both the mother and father, as Australian citizens, are members of a democratic society that recognises the rights of people to move freely and to live where and how they choose. Indeed, one of the purposes of the Family Law Act is to enable parties to a relationship to disconnect with one another and lead their own lives, as they see fit. Accordingly, a party’s wish to pursue an object that will bring about his or her greater happiness, is a legitimate consideration. The happiness or otherwise of a parent, who is responsible for providing the home for a child, may in turn have ramifications for the well being of that child. In Fragomeli & Fragomeli[14] the Full Court of the Family Court said as follows:
“The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare… a child’s welfare may well be adversely affected if the custodian’s movements are restricted. If the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which might adversely affect the child…”
[14] (1993) FLC 92-393 at 80,023
In this case, the father does not seek to challenge the mother’s position that she should continue to be the residential parent. Rather, he seeks to restrain the mother from leaving Darwin, in order to allow him to have regular contact with T. If the father is successful in his application to so restrain the mother, given the history of disputation between the parties, it cannot be doubted that she will become very bitter about this result. She will be denied the prospect of pursuing her relationship with Mr P. She will be denied the opportunity of pursuing better paid employment in Karratha. She will become a virtual hostage to Mr E, a person who in the past has been violent towards her and who has been imprisoned for this behaviour. In those circumstances, I can well understand why the mother would be bitterly unhappy and indeed stressed, if compelled to live indefinitely in Darwin against her will. This will potentially have ramifications for her ability to parent T to the full extent of her capabilities.
It is now necessary to set out the advantages and disadvantages of the parties’ competing proposals. In doing this, I must bear in mind that I am not to proceed in a way that separates the issue of relocation from that of residence, and the best interests of T. I am not entitled to dissect the case into discrete issues. In essence, the issue of relocation cannot be separated from that of residence. I must also consider the arrangements that each parent proposes for the child to maintain contact with the other, in the event of relocation and, if necessary, devise a regime that I consider will adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.
It is the mother’s proposal that T should live with her in Karratha and have two periods of block contact of 8 days duration each year, as well as regular weekly telephone contact. Given T’s age, it is difficult to see how she will derive much benefit from such telephone contact, as she will be unable to communicate very well with him for some time to come, given her current stage of her development and the only likely benefit that she will receive from such contact will be the benefit of hearing his voice. The chief advantage of the mother residing in Karratha with T is that she is likely to feel much happier there and will be able to pursue her relationship with Mr P. This is likely to create a supportive environment for her parenting of T. If the father remains living in Darwin, she will be free from harassment at his hands.
The major disadvantage of the mother’s proposal can be starkly put. There can be no doubt that if T does live in Karratha and, in the near future, the father does not move to Karratha, the potential for T to develop a relationship with her father, will be severely curtailed, if not severed entirely. Given T’s age and her level of intellectual development at the present time, it is clear that she will have difficulty remembering her father in between periods of contact and, as a result, the existing level of attachment between them will diminish over time. It is recognised that the early years of infancy are central to the development of attachment between children and their parents. In this regard, the current tender years of T militate strongly against the mother’s proposal to relocate her at this stage. This clearly is the central issue in the case. Potentially to allow T to be relocated at this stage, gives rise to the possibility that she will lose her relationship with her father, in both a short and in a long term sense. As Hayne J pointed out in U v U:
“It is now recognised as self evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents.”[15]
[15] U v U (supra) per Hayne J at paragraph 176
In this case, it is the mother’s position that the father’s attitude and past behaviour toward her are indicative of, at least, a potential for the relationship between T and her father to be an abusive one, in the sense that Mr E, remains strongly apathetic towards her and this attitude on his part has in the past impacted adversely on T herself and is likely to do so again in the future. It is her position that T is not strongly attached to her father. In essence, it is her position that T will be better off in Karratha living with her, where she will be able to live a peaceful, stress-free life.
However, notwithstanding this position, she does advocate some contact between T and her father. As has already been indicated, the parties differ as to the extent of this contact. Given the distance between Karratha and Darwin and the costs of travel necessarily involved, it seems unlikely that the parties will be able to afford contact on more than four occasions per year. A consequence of this proposal is that it will severely affect T’s entitlement to maintain regular contact with her father. Given her age and the interruptions that have already occurred in the relationship between the father and her, the consequences of this are likely to be serious.
The father is also critical of the mother’s proposal in that it will necessarily take T away from regular contact with other members of her maternal family, such as her grandparents and from her established routine in Darwin. He is dismissive of the financial issues raised by the mother, pointing to the fact that she has secure employment in Darwin and a house in which to live in the town.
As has already been indicated, the father does not believe that it is either practicable or reasonable for him to move to Karratha himself. This relocation is most certainly not a position advocated by the mother. In her evidence before me, she was unwilling to provide her proposed address in Karratha, because of her fears about the father and the possibility that he will stalk her again. Given my finding in respect of the father’s behaviour prior to his incarceration, I accept that there is some basis for the mother’s concerns.
These are, in brief, the competing proposals that I must evaluate against the criteria provided by section 68F(2) of the Family Law Act. As is apparent, the exercise that I must undertake is “to attempt a resolution of often irreconcilable considerations”[16], which arise from complex issues. However, the ultimate issue is the best interests of the child concerned and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.[17]
Section 68F(2) factors – determining the best interest of the child
[16] See AMS v AIF (supra) per Kirby J at 86,041
[17] See A v A (supra) at 87,552
a) The child’s wishes
T is just over two years of age. She is not capable of expressing a wish. Accordingly, this is not a relevant consideration.
b) The nature of the relationship between the child, her parents and other significant people
In my view, there can be no doubt that the most significant person in T’s life to date has been her mother. Her mother has provided the vast majority of T’s care, both before and after, the parties separated. The nature of the father’s relationship with T is more difficult to gauge. Certainly, since his incarceration in March of this year, he has had little contact with her. To her credit, the mother brought T to the prison to see her father on her birthday. It is the father’s position that T recognised him. Prior to his imprisonment, the father’s contact with T was also somewhat curtailed, in the difficult circumstances that prevailed after the parties separated. In my view, the evidence does not indicate that T is strongly attached to her father at the present time.
The significant issue in this case is rather the potential for T to develop a relationship with her father and the obligation the Court has to recognise the principle, as set out in section 60B of the Act, that a child has a right to regular contact with both of his or her parents. Necessarily, given her age and the dislocations it has suffered, the relationship between T and her father, is in its nascent stages.
The mother deposes that T enjoys an excellent relationship with Mr P and is “respectful” of M’s position in her life.[18] It is difficult to assess the truth or otherwise of this statement. Undoubtedly, Mr P’s involvement with T has only occurred recently. If the mother does relocate with T to Karratha, it can be anticipated that T’s relationship with him will develop further.
[18] See mother’s affidavit of evidence at paragraph 48
c) The likely effect of any change in the child’s circumstances
The mother’s proposal that T be relocated from Darwin to Karratha has major implications for T in the long term. Given her age, T is not likely to find the move to another town in itself unduly unsettling. Her mother will travel with her to Karratha and so she will remain in close proximity to the most significant person in her life. However, in the event that the father does not move to Karratha, she will be deprived of the opportunity of having regular contact with him. Given her tender years at the present time, there is a real possibility that she will forget her father in future. I accept, notwithstanding the recent interruption to contact caused by the father’s imprisonment, that she did remember her father when she recently saw him in the prison.
There are a number of positives from T’s point of view of the change proposed by the mother. Particularly that the primary provider of her care, her mother, will be significantly happier in Karratha rather than Darwin. However, the detriments of the mother’s proposal are obvious and serious. Inevitably, T will be deprived of the opportunity to have regular contact with her father. Given her age, I accept that this might be tantamount to the child being deprived of the opportunity to have a relationship with her father. This may have implications for her long term development as she grows older, in that she will not have access to a fully developed relationship with her biological father. At any rate, at best, there can be no doubt that the relationship will be curtailed. This is the central issue in the case. I am required, on the other hand, to balance the possible detriment to T of having an unhappy and unfulfilled mother, who feels threatened in Darwin, with on the other hand, the inevitability that she will suffer a severe curtailment in her relationship with her father.
Inevitably, this exercise involves an assessment of the potential risks to T of remaining in Darwin with an unhappy parent, who feels trapped, bitter and quite possibly threatened. It seems an inevitable consequence of the father’s proposal, if it is realised, that the mother will feel that she is forever to be subjected to his will and that her wishes and ambitions are to be held in suspended animation for so long as the father deems it appropriate. In my view, particularly given the father’s past behaviour, such an arrangement cannot lead to a situation in which the mother will feel happy or can develop a sense of emotional equilibrium.
These implications must be considered in the context of what I have found to be an abusive relationship between the parties. It is, I think, a significant thing for the Court to restrain the mother from leaving Darwin, when one of the major reasons for her wishing to leave Darwin, is her apprehension that, so long as she remains in Darwin, she will be subject to the unremitting hostility of the father. In my view, there is a very real basis for the mother’s concern in this regard. As I said at the outset, I continue to hold concerns that the father’s feelings for the mother remain unresolved. I think, given the father’s previous history of disregard for court orders, particularly restraining orders designed to protect the mother, that there is a genuine basis for the mother to be fearful of the father, for so long as she remains living in Darwin. This is an important consideration and must have implications for the long term well being of T.
d) The practical difficulties associated with contact
It is a very long way from Darwin to Karratha. Neither party provided me with evidence of the costs of air travel between the locations, but I accept they are likely to be considerable, particularly if T is to be accompanied, which, given her age, will be necessary at this stage. Similarly, to travel between the two locations by road would be time consuming and expensive.
The father is not in a strong financial position at present. He is recently released from prison. At present, he is reliant on friends to provide him with accommodation. It will take him some time to get on his feet financially. He will need some time to get work and then he will have to save for a bond and rent in advance on his accommodation.
The mother and Mr P are significantly better off financially than the father. Mr P enjoys a comfortable wage. It is likely that the mother will also be able to obtain employment that will provide her with a reasonable level of income in Karratha. In addition, Mr P has access to some subsidised air travel, although I accept that this will not cover the full expense involved in T returning to Darwin. Most likely, T will have to travel from Karratha to Perth, at the expense of Hamersley Iron, before flying on from Perth to Darwin.
In the event that the mother is successful in her application to relocate, she proposes that T have contact with her father on two occasions of 8 days duration each year, in June/July and December/January. The difficulty with this proposal is that it will mean that T will go for periods of up to 6 months without seeing her father. In addition, the mother proposes regular telephone contact. Given T’s age and current level of development at the present time, telephone contact is likely to be largely meaningless and cannot be a substitute for physical contact. In the event that the mother is permitted to relocate from Darwin to Karratha, the father proposes contact on at least four occasions each year in Darwin. He proposes that the parties share the costs of this contact.
I am gravely concerned at the implications of the mother’s proposal that T should have physical contact with her father only every 6 months or so, in the event that she is permitted to relocate to Karratha. In this regard, the father’s proposal that there be four occasions of contact each year appears to be a better one, though obviously the financial implications are more severe. As has already been indicated, he remains intransigent about the possibility of him moving himself from Darwin to Karratha.
In this regard, I bear in mind what Hayne J said in U v U. It is incumbent upon the Court to at least explore the possibility of the non-residence providing parent moving. I can understand why the father would be unwilling to move, given his lack of connections in Karratha. However, his connections with Darwin are not particularly strong, apart from the number of years he has spent living in the town. At present, he has no employment in Darwin and his close family have left the Northern Territory. It may be the position that he is precluded from leaving the Northern Territory because of the conditions related to his conditional release from prison and his obligation to be on probation for the next 12 months.
However, at the present time, there appears little room for compromise between the parties’ primary competing proposals. The mother does not advocate anything other than that she should relocate to Karratha and the father does not propose himself leaving Darwin. In this regard, I must bear in mind what was said by the Full Court of the Family Court in A v A: Relocation Approach as follows:
“In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interest of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to consider a regime which would best meet the rights of the child to know and have physical contact with both its parents.”[19]
[19] A v A: Relocation Approach (supra) at 87,553
In all these circumstances, the father’s proposal for contact between him and T in the event of a relocation remains a more realistic one.
I am concerned that to give effect to the mother’s proposal gives only token recognition to the principles set out in section 60B of the Family Law Act. I do not think that her proposal for 8 days contact on two occasions each year is sufficient to enable T to develop any kind of meaningful relationship with her father, given her present tender years.
e) The capacity of each parent to meet the child’s needs, including her emotional and intellectual needs
In my view, the evidence is clear that the mother is the better placed of the two parties to provide for T’s needs, including her emotional and intellectual needs. The mother remains suspicious of the father’s general parenting abilities. It is her position that he had minimal involvement in providing for T’s care prior to the parties’ separation. In cross-examination, she raised concerns that she had regarding the father’s ability to provide for T’s needs. However, counsel for the father, was critical of her in that she had not specifically outlined these matters in her affidavit evidence. This is so.
In her evidence, the mother concentrated on the father’s harassment of her following the parties’ separation. I have already made findings in respect of these matters. In my view, these various matters show that the father has little insight into T’s emotional needs. He has attempted to undermine the mother’s role as T’s primary provider of care and the mainspring of her emotional well being, through a constant campaign of harassment against her. This has included abusing her and making threats to take T away from her. He has in the past acted unilaterally in removing T from the mother and from her childcare and seems to have little regard for the child’s emotional needs, as a result of his actions.
As a result of these matters, I have considerable concerns regarding the father’s abilities to provide for T’s needs in future. In my view, it is likely that the mother will be able to reach her full parenting capacity, if she is permitted to relocate to Karratha and so escape the likelihood of any further undermining of her central role in T’s life.
f) The child’s maturity, sex, background and other characteristics
In my view, T does not have any particular attributes that make this subsection particularly relevant.
g) The need to protect the child from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
i) Any family violence involving the child or a member of the child’s family
j) Any family violence order that applies to the child or a member of the child’s family
In my view, these matters provide the central considerations in this case. In my view, the evidence is clear, that the father subjected the mother to a campaign of violence and intimidation between September and November of last year. This culminated in him being sentenced to a lengthy term of imprisonment for his behaviour. The father’s behaviour was violent and demeaning to the mother. It was also potentially dangerous to T herself. Through his campaign, the father attempted to use T as a tool to hurt the mother. He showed little insight into the responsibilities of parenting.
It is not acceptable that the father used violence against the mother. In my view, the behaviour of the father, particularly on the 9th of September, 2002 cannot be described as trivial or reactive. In all the circumstances of this case, it is in my view appropriate for me to be cautious about the father’s evidence that he has come to terms with the end of his relationship with the mother and now no longer wishes to transgress the law in regards to her. It is his position that he behaved in the way that he did because he was frustrated. He points to the fact that since the orders were made in December of 2002, he has abided by them. This is so, but he was also facing a number of serious criminal charges. Given his history of non-compliance with Domestic Violence Orders in the past, I remain concerned that the father may be violent to the mother again in future, particularly if he perceives that she is acting against him. As I have already indicated, I believe that the mother has strong grounds on which to be fearful of the father. These fears provide a strong justification for her wishing to move to Karratha. I think that I would be naïve to accept that just because there have been no difficulties between December and March, the date of the father’s incarceration, that in future there is no likelihood of violence between the parties.
h) The attitude to the child and the responsibilities of parenthood
Neither party in this matter is able to indicate to the Court anything particularly positive about the other’s abilities and attributes as a parent. The impression I have gained from each of them, is that they would each cheerfully exclude the other from having much to do with T in future, if this was possible. I attribute this attitude largely to the degree of conflict that exists between them. In the long term, the hopes for improvement in their level of communication must be fairly bleak.
However, of the two parties, I believe that the mother has the greater ability to put the past behind her. It is to her credit that she took T to the prison to see her father. It is also to her credit that, in the extraordinary situation that existed after the parties separated, she was prepared to consider some form of contact between T and her father. Although she remains strongly antagonistic towards the father, I believe that she accepts, which some reluctance, that T does have an entitlement to have contact with her father.
The father lacks insight into the responsibilities of being a parent.
I accept that he loves T dearly and does want to spend as much time as possible with her. However, it seems that he does not generally consider the impact of his actions either on the mother or on T herself. In the past he has responded to difficulties with violence and threat.
He is incapable of little empathy for the situation in which the mother finds herself. In particular, he demands a great deal by way of sacrifice from her, but offers none himself. He would not permit the mother to relocate to Karratha, but he is not prepared to consider moving to Karratha himself, although his ties in Darwin are not particularly deep. In this regard, it seems to me, that the father is unwilling to consider the matter from any prospective other than his own. The impression I have formed of the father is that he is largely unwilling to make any personal sacrifices, certainly not so far as the mother is concerned.
k) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parent’s circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
In my view, it would be unreasonable to compel the mother to remain in Darwin until T is older, in order for T to develop her as yet semi-formed relationship with her father. The mother is likely to feel bitter that she has been compelled to put her life “on hold” for the father’s benefit. In such circumstances, to make an order that would require the mother to remain in Darwin indefinitely, is very likely to invite further proceedings. In my view, such an order can only be a prelude to more litigation. Certainly, I do not think that it would lead to an easing of the current disastrous relationship between the parties. To the contrary, I believe that it would inflame the situation.
Notwithstanding the father’s reluctance to relocate to Karratha, this is in my view, a very real possibility. It seems to me to be unreasonable, in the extreme, to expect the mother to abandon the prospect of both emotional happiness and financial advancement and compel her to stay in Darwin, when the father himself does not have employment in Darwin or any familial connections in the town. In many ways, his life is a more portable one than the mothers, apart from his obligation to be subject to supervision following his release from prison. However, I must also bear in mind that his obligation to be on probation for the next 12 months is a consequence of his own behaviour and not attributable to the mother.
l) Any other factor or circumstance that the Court considers relevant
In my view, it is important to consider the economic implications of the two competing proposals. If she is permitted to relocate to Karratha, the mother will be significantly better off financially, as well as emotionally. She will be able to pursue her relationship with Mr P and between the two of them, they are likely to have an annual income in the vicinity of $100,000.00. She will also be able to rent out her house in Darwin and have access to subsidised accommodation in Karratha.
I accept her evidence that she will be able to obtain employment in Karratha that will better renumerate her for less hours work than in her current position in Darwin. These are important considerations.
If compelled to remain indefinitely in Darwin, she will most likely lose her relationship with Mr P and have to remain in her current job. For his part, the father’s financial position in Darwin is uncertain. He has all the difficulties that confront a person who is being released from prison. Certainly, it is difficult in the short term to see how he can provide much economic support for T. In my view, the evidence indicates that T and her mother will be significantly better off in Karratha as opposed to Darwin.
Conclusions
As with all relocation cases, this is a difficult case, which does not present a ready solution, in the sense that the detrimental consequences for T of each of the parties’ proposals are readily apparent. Neither party is prepared to compromise, in order to accommodate the interests of the other, or indeed the interest of T, herself. In particular, the father is not prepared to consider moving from Darwin to Karratha. As is apparent from the father’s recent convictions and term of imprisonment, he has subjected the mother to a prolonged period of violence and harassment. In those circumstances, it is difficult to see how even the most magnanimous of parents, would settle down and commit themselves happily to a life in Darwin, against his or her will. The last few months of the mother’s life have been extremely traumatic for her. If compelled to remain in Darwin, I believe that she will become bitter at the prospect of losing her relationship with Mr P. This may have implications for her ability to adequately parent T.
The object and principles of the Family Law Act, as set out in section 60B, are a statement of the optimum outcome in each case. The right to know and be cared for by both parents and the right to contact with both parents and with other people significant to them are the rights of the children and not of the relevant adults. The optimum outcome is not always possible in every case. My responsibility in the case is to weigh and balance the factors for and against the relocation of T to Karratha and reach the outcome that I think is the most calculated to lead to her best interest being served. I readily acknowledge that neither of the parties’ proposed outcome in this matter fill me with confidence that the objects and principles of the Act can be fully achieved in this case.
I have closely considered the effect a move to Karratha will have on the frequency and quality of face to face contact that T will enjoy with Mr E. It is obvious that if T is to live in Karratha and Mr E does not move that he will not be able to participate in nearly all aspects of her daily life. However, against this must be set the ramifications of forcing Ms L to remain in Darwin against her will and in an environment with Mr E that is potentially explosive and quite possibly dangerous. I must also not lose sight of her legitimate expectation of being able to pursue her own personal happiness and financial advancement as she sees fit.
In assessing which of the parties proposals will best meet T’s best interests, I take into account all of the findings I have made earlier in this judgment. Of paramount importance in this regard is my finding that the mother has been the most significant person in T’s life to date and that as a result, T is closely bonded to her. It is also of great importance that I have found her to have more competent parenting skills than those of the father and a greater insight into the responsibilities of being a parent. By his behaviour, the father has demonstrated a singular lack of insight into what it is to be a parent and the necessary respect that is required for the other parent concerned.
As I have already noted, I am not entitled to consider the case in a way which differentiates the issue of residence from that of relocation into discrete issues. The father does not argue anything other than that the mother should continue to be the residence parent in this case. I have formed the view that T should continue to live with her mother.
I am satisfied that this would be in her best interests. This leads me to the conclusion that she should be permitted to relocate with T from Darwin to Karratha. In my view, on balance, this is the result which is most calculated to be in T’s best interests, in both the short and long term.
The mother is not required to provide compelling reasons for her wish to move. In all the circumstances of this case, the reasons that she has given for wishing to move, are natural and understandable. She wants to pursue her relationship with Mr P. She wants to pursue her greater financial security with him. She wishes to escape the father’s unremitting hostility towards her, which in the past has unfortunately involved T. In any event, to a large degree, Mr E is the author of his own fate. As a result, of his behaviour towards the mother, he was sentenced to a period of imprisonment.
To require the mother to demonstrate compelling reasons for any move, would have the effect of, perhaps, permanently tying her to live in close physical proximity with the father for an indefinite period of time. The personal relationship between her and the father is finished, or at least materially altered. Given that the best interests of T is the paramount, but not the only consideration in this case, it behoves me to consider the legitimate expectations and ambitions of the mother, who wishes to pursue her life and her parenting of T in Karratha. In all the circumstances of this case, I do not believe that it is reasonable that she be compelled to live in Darwin with T either indefinitely or for any other particular period of time.
However, having considered that it is appropriate for the mother to be permitted to relocate, it is now necessary for me to consider the adequacy of her proposals for contact in future. It will also be necessary for me to consider what orders should be made for contact between now and the time, in about three weeks, when she proposes leaving Darwin for Karratha. The major fault with the mother’s current proposal is that it significantly interferes with the entitlement of T to have regular and meaningful contact with her father. This is particularly important given T’s current age. There is no ready solution to this dilemma as the father is unwilling to move. In my view, it is essential for T’s well being that she lives with her mother in Karratha. Given the unwillingness of the father to compromise his own wishes, it is my view that the mother’s proposals for contact as they currently stand are woefully inadequate. Given T’s age and level of development, the mother’s proposal that there should be actual face to face contact approximately every 6 months, is not sufficient to satisfy T’s entitlement to have regular contact with her father. I am well aware that one of the consequences of the decision that I have made is that T must suffer some detriment in her future ability to form a close relationship with her father, perhaps permanently. However, in my view, the other factors as set out in section 68F(2), which I have outlined already and which favour the mother, outweigh this very serious concern.
The proposals of the father for contact are not closely defined other than that he would seek contact on at least four occasions each year. He does not specify the duration of these periods of contact. It is his position that the parties should share the costs of contact equally.
In evaluating the competing proposals of the parties in respect of contact, I am not bound to accept either of their proposals but may, if necessary, order a regime that I consider will best met the rights of the child concerned to know and to have physical contact with both of her parents.
T is a child who has just turned two. The father has not had overnight contact with her since late March of 2003. Between December of last year and March of this, he had overnight contact on one evening per week. Prior to that, I accept the mother’s evidence that contact for longer periods of time were problematic from T’s point of view. In all the circumstances, it is my view that I must be cautious in respect of the orders for contact, which I make both for now and in future, after the mother has relocated to Karratha. Although I can well understand why the father would want to have as much contact with T as possible, I must approach the question from T’s prospective, bearing in mind her age and level of development.
In many ways, in future, it would be easier if the father travelled to Karratha for contact, rather than T travelling to Darwin. The father, unlike T, has no need to be accompanied. It would also be easier for T to return intermittently to her mother and an environment with which she is familiar, during periods of contact. Given the problems that have existed in the past and T’s age, I am of the view that, at least until T starts school, there should be a regular opportunity for her to return to her mother during periods of contact. This is a factor that militates strongly against there being four periods of contact each year in Darwin, as the father seeks. I also accept that the mother is likely to only have two holiday periods each year and that she is the person best placed to accompany T to and from Darwin. Given her likely financial superiority to the father, she should pay the costs associated with two periods of contact each year in Darwin. The 8 days on two occasions each year, which she proposes is insufficient for such contact. It should be extended to 14 days in each case.
On balance, I believe that, at least until T starts school, there should be two other periods of contact in Karratha, also of 14 days duration. As the father will have to travel to Karratha to facilitate this contact, it is only appropriate that he should bear his own costs of travel in relation to it. The father should be required to give 28 days notice of his intention to come to Karratha and would be responsible for arranging his own accommodation there.
In the event that the father does elect to move to Karratha, it will be necessary for the parties to consider what the level of contact should be. It will also be necessary for the parties to consider what the contact should be if the mother returns to live in Darwin, which is likely to occur after she and Mr P have spent 2 or 3 years in Karratha. In general terms, after some period of introduction, I consider the appropriate level of contact in each case would be alternate weekends and possibly overnight on one other occasion each week. Once T has reached school age, the father should have contact with her for half of each school holiday period, regardless of whether she is living in Karratha or Darwin.
I make these observations in a general way. Given T’s age and level of development, it is difficult if not impossible to draft orders that will cover every eventuality in her life for the next three, four or more years. Much will depend on the conduct of the parties in facilitating contact in the next few months as to what ultimately are the appropriate orders.
The mother has some concerns about the father’s present accommodation since his release from prison. It is important that he see T during the next three weeks or so, before the mother departs with her for Karratha. However, his natural desire to see his daughter should not be allowed to outweigh the mother’s natural concerns about where T will be staying during this period. I will allow the parties to discuss this issue before making any concluded orders in this regard.
For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 4 July 2003
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