Elliott and Carter

FAMILY COURT OF AUSTRALIA

ELLIOTT & CARTER

[2007] FamCA 1663

FAMILY LAW – CHILDREN – With whom a child lives – Relocation

Family Law Act 1975 (Cth)

APPLICANT:

Ms Elliott

RESPONDENT:

Mr Carter

FILE NUMBER:

HBC

2007

DATE DELIVERED:

17 May 2007

PLACE DELIVERED:

Hobart

JUDGMENT OF:

Mushin J

HEARING DATE:

17 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Baker

SOLICITOR FOR THE APPLICANT:

Murdoch Clarke

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

P W B Lawyers

Orders

1.All previous parenting orders with regard to the child … born … March 1997 be discharged.
2.The mother and father equally share the parental responsibility of making all decisions with regard to the said child’s care, welfare and development.
3.The said child live with the mother.
4.The mother have the parental responsibility for making all decisions with respect to the said child’s day-to-day care, welfare and development.
5.The mother be and is hereby permitted to relocate with the said child to Western Australia.
6.The father spend time and communicate with the said child as follows:
a.for the entire school term holidays of the child in each year;
b.for one half of the December/January/February school holidays as follows;
i.in the year 2007 and each alternate year thereafter the father spend time with the child for the first half of the December/January school holidays (which shall include Christmas Day) from 12 December 2007 to 7 January 2008;
ii.in the year 2008 and each alternate year thereafter the mother will have the child for the first half of the December/January school holidays which shall include Christmas Day;

c.the father spend time with the child in Western Australia upon the father giving the mother at least four weeks notice in writing of his intention to spend time with the child;
d.the father communicate with the child by way of telephone two times per week;
e.the father communicate with the child by internet on an unlimited basis;
f.the father communicate with the child by video link two times per week;
g.the mother will be responsible for the cost of the child’s air travel from Western Australia to Hobart and return; and
h.the mother will be responsible for the reasonable cost of the father’s return air travel to enable the father to visit the child in Western Australia on one occasion per annum with the father to provide the mother with a minimum of one month’s notice.

7.The application be otherwise dismissed and removed from the list of cases awaiting hearing.
8.General liberty be reserved to both parties to apply.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Elliott & Carter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 77 of 2007

MS ELLIOTT

Applicant

And

MR CARTER

Respondent

REASONS FOR JUDGMENT

This is an application by the mother to move with the parties' 10-year-old child from Hobart to Western Australia between Perth and Kalgoorlie.
It is opposed by the father. The mother's reason for wanting to move is career advancement. She says that if I am against her in moving with the child she will move anyhow and the child will remain in Hobart with the father.
Accordingly whatever order I make will have the effect of the child having a significant change in relationship with one side of his family. The issue clearly raises difficult parenting and emotional problems for each of the parties and I say at the outset that I fully understand those difficulties.
The mother is aged 31 and the father is aged 29. The child is aged 10. The parties married in April 1997 and separated in December 1997. Their relationship was eight months. Their child was born just before their marriage.
Each of them commenced other relationships which have endured since their separation. The father met his now wife in 1998 and they commenced living together in the following year. Likewise the mother commenced her relationship with her now partner in 1999.
In March 2001, the parties agreed to parenting orders. Following the parties' separation, the child had remained living with the mother with frequent contact with the father.
The consent orders essentially provided for significant alternate weekend contact with the father which has obviously enabled him to continue and develop his relationship with the child since the parties' separation.
The father and his wife had a child, J, in September 2001. He is presently aged five and suffers from a significant degree of autism. He clearly has important care issues over and above those of a child not suffering that terrible disability and that obviously occupies the father and his wife to a very significant degree.
In 2004, the mother and the child commenced living with her now partner. They had a child, P, who was born in April 2005.
An event which has occupied a significant amount of time during this trial was the agreed fact that from at least the beginning of 2006 and probably earlier, the child was having difficulties at school. Each of the parties was significantly involved in dealing with those difficulties, and that is to the credit of both of them. It seems that the difficulties emanated from apparent bullying, at least in part, and it is unnecessary to go into the details.
The father was greatly involved with the school and the teachers in dealing with this problem and the mother was involved also - in my view probably equally - in different ways.
As a result of a recommendation from the school teachers in March 2006 the mother obtained a referral for the child from his GP to a child psychiatrist, Dr M. That appears to have been raised with her by the teachers only very shortly before obtaining that referral.
The child started consulting with Dr M shortly after that referral, and has continued to do so, but apparently with a significant break at some time during last year. The notes of Dr M are exhibited before me and have been most helpful.
I am satisfied that the basis of the child's problems does not appear to emanate from within the home of either party. While the child has expressed certain reservations with regard to his father's attitude to his moving with his mother to Perth, I do not see that as being relevant to the behavioural problems at school and the referral to Dr M.
There is an issue between the parties as to when the mother informed the father of the involvement of Dr M. The mother swore that it was not until either June or July 2006 and the father says it was either December 2006 or January 2007. The father says that he first found out about Dr M's involvement when the child informed him that he was going to what the child described as an "anger doctor".
It is common ground that on 5 January 2007, the child had an appointment with Dr M. In December, the child was in his father's care when the mother telephoned him to say that she needed to take the child to a doctor's appointment. The father informed the mother that he was prepared to take him. The father swore in his affidavit that the mother declined that because it was what the father described as "a special appointment". It was at that time that the child informed the father about it being an "anger doctor".
The father ended up taking the child to this appointment on 5 January 2007. The doctor's notes indicate a less than satisfactory dealing between the doctor and the father. The discussion between the father and the doctor was obviously very brief. The doctor gave evidence during the trial and was cross-examined as having commenced the conversation by asking a question of the father to which the father responded, "Why do you ask?" The doctor noted the father as being "wide eyed". The doctor also recorded the father's reaction as being "a tad inappropriate" and noted that he would arrange the next appointment on 30 January with the mother.
In his affidavit of evidence-in-chief in these proceedings the father swore as follows:
28:I have since discovered that [the mother] has been taking [the child] to a psychologist or a psychiatrist. I am not sure who [the child] sees. My solicitors have written to [the mother]'s solicitors asking for details regarding [the child]'s treatment.
29:I only became aware of this on one occasion when in December 2006 [the child] was in my care and [the mother] telephoned to say she needed to take [the child] to a doctor's appointment. I advised [the mother] I would take him and she said, "No, it was a special appointment." [The child] then told me that it was his "anger doctor".
In his viva-voce evidence the father swore that he did not know that the person who he had attended on 5 January was a child psychiatrist. When I noted incredulity he told me of various pressures which he was under at the time, including having just learnt of the child wishing to go with his mother to West Australia and the recent death of a grandparent.
I have to say that I find that evidence somewhat incredible, but at the very least in my view the father is open to criticism for a lack of preparedness to involve himself in a process by which he knew, on the basis of the evidence given by him, that the child was attending an "anger doctor". Given his involvement at school I have been left to wonder whether the attitude which the father has taken to this matter may have something to do with the fact that it was initiated by the mother. I do not have sufficient information to make a conclusive finding.
It is common ground that in the latter part of 2006, probably November, the mother informed the father that she wanted to go to live with the child in Western Australia. At all times the father, assisted by his now wife, has opposed that proposal. That opposition has been made abundantly clear to the child, who has been recorded by both Dr M and the family consultant to whom I will refer shortly, as having been critical of his father.
The proposals of the parties are as follows: the mother has studied in Tasmania and holds tertiary qualification in a specialised field. She wishes to further a career and has been offered employment at a town called S in West Australia which she informs me is between Perth and Kalgoorlie. She swore that she had maintained a weekly search for work through newspapers and internet job web sites and had determined that jobs for even very experienced professionals in her field in Tasmania were rare. That was compared with what she described as "dozens of positions in Western Australia". In addition, salaries in Tasmania for her profession are significantly less than those which she has been offered.
That position is with a company called B Ltd, which has offered her employment at a base salary of $65,000 per annum. In addition there is the normal requisite statutory superannuation employer contribution, which in this case would be $5,850, which would derive a total remuneration of $70,850 per annum. In addition she would be provided with an unfurnished house at a rental which is described as being nominal in the sum of $45 per month and utilities such as electricity, gas and water would be paid by her employer to a total value of $3000 per annum. She would receive relocation assistance, but reimbursement would be required if she left the company within 12 months of commencement. There is a probationary period of three months. In addition to that, the job includes some opportunity for graduate advancement which is, in itself, an advantage.
During the trial, counsel for the father put to the mother that there was a job interview available for her with a company known as Z Ltd, which is based in Hobart but has interests on the west coast of Tasmania. The trial was adjourned to enable the mother to attend an interview which she did. She received a job offer which was significantly inferior to the B Ltd offer and to his credit the father, through his counsel, abandoned the argument that that job should be taken in preference to the B Ltd job, other than for purposes of parenting, to which I will refer in due course. I am satisfied that the West Australian job is very significantly superior to the Z Ltd offer.
As I mentioned at the beginning of these reasons, the mother proposes to shift to Western Australia for the purpose of taking up the B Ltd job. That move would be with the child, her partner and their child, P. However, in the event that I were against her in her proposed move with the child, she would nevertheless move to Western Australia with her partner and P because she sees that as a longer term improvement of her own situation. In that event, the child would remain living in Hobart with the father, his wife and the child, J. The parties are agreed that on either result, the child would visit the other parent for all the school holidays each year. If the child were living with the mother in Western Australia, she would pay the total cost of the child travelling to Hobart, and is also prepared to consider payments to enable the father to visit in Western Australia.
In the event that the child is to live with the father in Hobart, the costs of travel for the child to Western Australia would be shared equally between the parties. I am about to consider the father's financial situation, but suffice it to say at this stage that the father's ability to meet half of the costs of that travel in the event that the child lived with him would be totally dependent on payments by the mother to the father of child support for the child, those costs being derived from those child support payments.
I now turn to an evaluation of the respective proposals. These proceedings must be determined in accordance with Part VII of the act which provides that:
In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
There is authority for the proposition that the word "paramount" does not mean “sole”. It means "most important". Those best interests are the child's best interests. In my consideration of this matter I must then turn to the objects and principles underlying Part VII contained in section 60B.
The parliament has relevantly provided that the objects of the relevant part of the act are:
To ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child;
(b) protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence;
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential;
(d) ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
I am pleased to find that there is no issue of physical or psychological harm to the child, or any risk of being exposed to abuse, neglect or family violence.
Parliament has also set out a number of principles which underline those objects which it provides should apply "except when it is, or would be, contrary to a child's best interests."
I emphasise then that these principles are subject to my not finding that it is contrary to the child's best interests. Those principles are:
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;
b)Children have a right to spend on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children;
e)Children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture.
These objects and principles were augmented by the parliament in the amendments to the Act which came into force in July 2006. Those amendments, together with other amendments, effectively promote the primacy of both parents of a child being as involved as possible in the care and upbringing of that child. Clearly in the case of a relocation application such as the present one, that principle is to be modified by the proposals as imposed on the court by the parties, but always subject to the paramountcy of the child’s best interests.
It is that tension between the obvious desire for parents to be as involved as possible in a child's upbringing on the one hand and the impossibility of that as created particularly by the proposals in this matter, which on any view have the parties an enormous distance apart from each other, that creates the problems in a case such as this.
I now turn to the circumstances and to a consideration of the child's best interests in the context of the legislative framework which I have so far outlined. The parliament has set out a number of primary and additional considerations which I am required to consider in determining the child's best interests.
The primary considerations are two in number. The first of those is "the benefit to the child of having a meaningful relationship with both of the child's parents". It is clear on any view that there is a benefit to the child of maintaining a meaningful relationship with both the mother and the father. The question of whether that can be maintained in these proposals is one of the issues which I must consider here. Clearly the present status quo, by virtue of those proposals, cannot be maintained.
Returning to the primary considerations, again there is no question in this matter of any physical or psychological harm or abuse, neglect or family violence.
I then turn to the additional considerations. The first of those is any views being expressed by the child and any factor such as the maturity or level of understanding which I think are relevant to the weight which I should give to the child's views.
There is a significant amount of evidence supporting the proposition that the child wants to move with his mother and the rest of the immediate family in that household to Western Australia. Part of that evidence is from the family consultant, Ms N, who provided the court with a children's and parents' report dated 25 March 2007 and was cross-examined during this hearing.
Initially let me say that I was most impressed by Ms N and accept her evidence in its entirety. Ms N noted that the child loves both his parents. He feels worried and frustrated and otherwise "has no wish or ability to decide between them". He misses the other parent when he is with one of them and he says that he misses them "both the same".
He says that he wants to spend more time with his father and says, "I rarely ever get to see him". He records preferring to have "a week-about arrangement". He believes that both his parents need him and that each of his brothers, one in each household, needs him equally.
He accepts J's autism; finds his behaviour difficult - "but I do not regard that as a negative factor." He likes his current school and would want to remain there if he lives in Tasmania.

He "accepts that his mother wants to go to WA in order to improve her financial situation". He refers to his parents as being "very different" and realises that "they don't like each other much...they don't get along".
Of importance is Ms N's record of the following:
He says there is "good and bad if I go and if I stay" and he gets frustrated that "I should be able to make up my mind". [The child] has struggled to resolve this issue but has found it impossible as he does not want to choose where he ought to live. If his parents cannot decide, [the child] wants the judge to decide because "I don't care what his answer is - not my choice, his choice" and that "either way is fine".
The parties accept that the child has expressed views wishing to go with his mother. The child is of a comparatively young age and in my view it is necessary to be very wary about the weight which one gives such expressions of wish. A move to West Australia would be an adventure and he would undoubtedly enjoy it, at least initially. However, at his age he has a very limited ability to understand the concept of the move on a longer term basis and accordingly acting on the expressions of wish to which I have referred is, in my view, at least unwise. I find that by virtue of what Ms N has reported, the weight to be given to his expressed views is to be at best very limited.
I then need to consider the nature of the child's relationships with each of his parents and with other persons. I am going to consider that matter, together with the question of the capacity of each of the parents and others to provide for his needs, including emotional and intellectual needs, and the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between him and the other parent.
As Ms N has correctly noted and consistent with the evidence, the child loves both his parents; does not wish to decide, and that love is reciprocated in full measure. Each of the parents has a significantly differing attitude towards parenting. As Ms N noted during her cross-examination, the child has a loving relationship with the father and has more of an emotional relationship in the mother's household.
She also noted in cross-examination that it was the child's "consistent wish" to go with his mother to Western Australia. Although Ms N did not interview the mother's partner and only saw him very briefly when he came to pick up the child to return him to school, she observed from the child a good and comfortable attitude towards that partner.
Accordingly, I find that the child has a strong and appropriate relationship with both of his parents; appropriate relationships with their respective partners, but on the basis of Ms N's evidence, there is more of an emotional relationship in the mother's household which suggests to me a better bond in that household than the father's household. That is hardly surprising given that for virtually the whole of his life the mother has been the primary parent of the child with a high degree of input from the father.
There are several matters with regard to attitudes towards parenting. It is clear on all of the evidence that the parties have a poor relationship. They find it difficult to communicate with each other; clearly do not communicate very much, and on an important thing such as the behavioural problems at school to which I referred earlier, seem to have been acting in parallel rather than in concert.
While that is a criticism of both of them, there is another aspect to that which concerned me. In her recommendations at the end of her report, Ms N stated:
The court may find it useful to consider the ability of each parent to positively promote [the child]'s relationship with the other parent and their household.
I observed a significant difference between the parents in that regard. I have already noted the different approach to parenting in the respective households. The evidence satisfies me that that difference is highlighted more in a negative sense by the father's household against the mother's household than vice-versa.
While they are small individual matters, a young child is going to readily pick up on them. Two matters that were raised were the assertion that the child bathes more in the father's household than he does in the mother's and that his homework is more assiduously attended to in his father's household. That may or may not be true. It would seem on the probabilities that at least as far as the homework is concerned it may be but then only marginally so, because the child appears to be a well-adjusted child who is functioning at an age appropriate level. However, my criticism of the father and his wife is that they have brought this to the attention of the child to the extent that it is probable that he would have detected a degree of negativity by his father towards his mother.
The child noted through Ms N that each of the parties is critical, but with regard to individual incidents it seems to me on the evidence that is more so in the father's household.
Certainly during her very brief cross-examination the father's wife today was critical of the mother on at least a couple of occasions. I completely agree with Ms N who stated:
It is highly desirable for both parents to accept and respect [the child]'s relationships within both households. This will be even more important if the two households are going to be a greater distance apart.
I turn to the question of what is referred to often as the status quo. I have already noted the mother's role as primary carer, without in any way deprecating the role of the father. I have noted Ms N's statement of more of an emotional relationship in the mother's household.
It is submitted on behalf of the father that were I to accede to the mother's application, the change of status quo would not simply be one of geography, together with schooling and the like, but would be more basic in that the mother's partner would effectively be the primary carer. That is said to emanate from the mother's proposal in which her occupation in Western Australia involves her working on a fortnightly rostered basis of nine days on and five days off. It is submitted that during the nine days on the partner will be effectively the primary carer.
While it is clear that in a physical sense that will be so, at least in the morning because of the mother's absence, it cannot be said that the mother is therefore necessarily excluded as primary carer.
Further, there was no cross-examination of the mother's partner asserting his inability in caring and there is no other evidence to suggest to me that he is inadequate in that way. Save for the criticism of the father's partner which I have already made, I make the same finding with respect to her and her caring for the child.
However, there is one significant difference in that household and that is the completely understandable need of the father and his partner to care for their autistic child. While I accept the evidence of the father that that care has been at a high level but is diminishing, of necessity the fact of the autism will make extra demands on that household which are not experienced in the mother's household.
On any view the consequence of the respective proposals is to diminish the child’s relationship, not just with the other adult parent, but also with the other brother. If he goes to Western Australia there is a diminution of the relationship with J. If he stays in Hobart, there is a diminution of his relationship with P.
I am not in a position to evaluate the interests of those children and in any event, as was submitted by counsel for the mother, the relevant paragraph of the legislation refers to the likely effects on the child, that being the child, of any separation from any other child. In my view that does not mean that I disregard the other children, but the primary consideration is the child. There is no doubt that there will be some negative effect on the other child no matter which proposal I accept.
I regret that I must also be critical of the father in his attitude towards providing finances to the mother's household. He is a musician by occupation and has an additional job which derives him some income, but the average annual income appears to be approximately in the level of the mid 20 thousands. The father conceded that since 1998 he has paid to the mother's household for the support of the child a total of $1823.61, which I think is approximately $3 a week. There is no evidence to establish that he has taken further steps to obtain employment to enable him to undertake a greater financial responsibility.
I am not suggesting that he is in breach of child support orders, but in my view he can be seen to have not contributed to that household to the extent which would have benefited the child, and as a result since the separation of the parties the mother has had to assume virtually the entire financial burden for the child.
I also accept the additional financial requirements of caring for J and I accept that the father has spent money on providing things like uniforms and the like in his own household for the child. He has also provided some small things for the mother for the child for school, but in my view that does not blunt the fundamental criticism which I make of him.
In addition, the very consequence of the mother's proposed move is to improve the financial situation of her household which will be of significant benefit to the child. That demonstrates to me a commendable attitude towards parenting and her desire to improve the child’s upbringing.
One of the consequences of the move will be that she and her partner will be able to dispose of the property which they own in Hobart, or alternatively to rent it, which will enable them to improve their overall financial situation.
A matter such as this one is always very difficult. In my view it is in the child's best interests that I accede to the mother's proposal. My reasons are these: I regard the mother in her position of primary parent as being likely to have at least as good, if not a better bond with the child, than does the father. I regard the mother's attitude towards parenting of the child as demonstrated by her desire to improve herself and thereby the child, including an improvement of the financial situation, as being in the child's interests.
Conversely, I do not regard the father's attitude to financial support as being as good as that of the mother. I find myself unable to relevantly differentiate between the effect on the child of being denied constant contact with one or other of his siblings and I find on the balance of probabilities that the mother will better facilitate the relationship of the child with the father and his household than vice-versa.
In terms of everyday parenting, I do not differentiate between the respective roles of the households and the decision that I make will maintain the status quo insofar as primary parenting is concerned to the greatest extent possible as qualified by the requirements of the respective proposals.
I do not regard the change of schooling as being an issue of significance. Children change schools constantly for all sorts of reasons. One might speculate that removal from a school at which the child has clearly had problems may be to his benefit, but I do not have the evidence to make that finding one way or another.
Again, plenty of children live in small towns throughout Australia and while the child has grown up in a capital city, there is no evidence to enable me to find that there is something intrinsically more in his best interest than that which is proposed by the mother.
I am confident that the child is a remarkably well-adjusted child and will be able to adapt, albeit that on both proposals it may be reasonably expected that he will always have some degree of difficulty in adapting initially.
In my view the order which I propose in acceding to the mother's proposal has a higher probability of bringing proceedings between the parties to an end by virtue of the reasons for which I make this decision, and in particular the maintenance of the status quo and the mother's attitude towards parenting.

I can do no more than wish the parties well.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date: 3 March 2008

[2007] FamCA 1663

17 May 2007

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