Estrada and Wallis
[2012] FMCAfam 507
•8 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ESTRADA & WALLIS | [2012] FMCAfam 507 |
| FAMILY LAW – Relocation – views of child – weight thereof – variation of final orders – best interests of the child considered. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| In the marriage of B.B.T. and J.M.T. (1980) FLC 90-809 In the marriage of Mulligan (1976) 11ALR 561 In the marriage of Rice & Asplund (1979) FLC 90-725 R v R: Children’s wishes (2000) AFLC 93-000 |
| Applicant: | MS ESTRADA |
| Respondent: | MR WALLIS |
| File Number: | MLC 624 of 2010 |
| Judgment of: | Turner FM |
| Hearing dates: | 20 & 21 February 2012 |
| Date of Last Submission: | 22 March 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 8 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Solicitors for the Respondent: | Wrightway Legal |
| Solicitors for the Independent Children’s Lawyer: | Peter Lynch |
ORDERS
The parties have equal shared parental responsibility for the long term welfare, care and development of the child [X] born [in] 1999.
Each parent have sole parental responsibility for all decisions regarding the daily care of [X], whilst he is in their care.
[X] live with his father.
[X] spend time with his mother in Queensland as follows:
(a)For the first four weeks of the Summer school holidays in odd numbered years; and the last four weeks in even numbered years, when he is to be returned to the Mother not less than 2 working days before the commencement of the new school year;
(b)For a period of 9 days each school term holiday; and
(c)Otherwise as agreed between the parties when the mother is in Melbourne.
Each period of time after the first, is conditional upon [X] being returned to the father on time, at the conclusion of the previous time with the mother.
The father is to pay for the return airfares for [X] from Melbourne to the Gold Coast.
Each parent is free to contact [X] by telephone between 6pm and 8pm on any Monday, Wednesday and Friday that [X] is spending time with the other parent.
Each parent is to make telephone and email facilities available to [X] for him to communicate with either parent at will.
The parents are to provide each other with the current address and telephone numbers for [X].
Each party, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of [X], and from permitting any other person to do so.
Each parent keep the other fully informed at all times regarding education and medical matters concerning [X] and provide any necessary authorities to the school or medical, dental or therapeutic professionals attended by [X] to provide each parent with any documents they may require about [X].
Neither parent take [X] to a counsellor, psychologist or therapeutic mental health professional of any kind without the full knowledge and consent of the other parent and that both parents be at liberty to attend and be involved in any such process as may be agreed from time to time.
The mother’s Contravention Application filed 10 January 2011 and the father’s Contravention Application filed 20 April 2011 are adjourned for interim hearing at 10am on 17 August 2012.
Should the parties file and serve a Notice of Discontinuance prior to 17 August 2012, the interim hearing will be vacated.
AND THE COURT NOTES THAT:
(A)Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Estrada & Wallis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 624 of 2010
| MS ESTRADA |
Applicant
And
| MR WALLIS |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother for her son [X] to live with her in Queensland. He currently lives with his father in Melbourne.
The parties in this matter have one child, [X] born [in] 1997 (now 14 and a half years old).
The parties commenced cohabitation in 1996 and separated in July 2008.
In addition to [X], the mother has two children, [Y] (22 years old) and [Z] (5 years old); Her nephew [A] also lives with her, and is 11 years old. The mother owns a property at [M], Queensland (Transcript “T” 21/2/2012 p,15, l.14), subject to a mortgage.
By final orders by consent on 9 January 2007 [X] was to live with his father, who relocated from Queensland to Melbourne around that time. It was agreed that [X] spend time with his mother, and that the father pay [X]’s return airfares between Melbourne and the Gold Coast. Notation 14 to those orders is:
(14)That should the child indicate to both parents that he wishes to return to the Gold Coast to live with the mother, the parents will negotiate through the child’s grandmother, Ms B, as to the appointment of an independent person to interview the child to ascertain his wishes as to where he wants to live.
In January 2009, the mother moved from Queensland to Melbourne and returned to Queensland with [X] in January 2010. [X] was returned to Melbourne as a result of a Contravention Application by the father.
By application filed on 12 August 2010, the mother applied for [X] to live with her and spend time with the father, with the father being responsible for [X]’s airfares.
On 25 February 2011 [X] ran away from his father’s residence in Melbourne and flew unaccompanied to Queensland. A recovery order was made on 9 March 2011 for [X] to be returned to his father’s care.
On 30 September 2011 orders were made for [X] to spend additional time in Queensland with his mother. The father’s application to not be responsible for paying [X]’s airfares was dismissed. The matter was set down for further hearing on 20 February 2012 and 21 February 2012 in relation to the mother’s application for [X] to live with her.
At the hearing in February 2010, Mr Smith appeared for the applicant mother, Mr Wright for the respondent father and Mr Lynch for the Independent Children’s Lawyer.
Final orders were made on 9 January 2007. According to the rule in In the marriage of Rice & Asplund (1979) FLC 90-725, the Court should have regard to an earlier order and should not entertain an application to reverse an earlier order unless the Court is satisfied that there “are circumstances which require the Court to consider afresh how the welfare of the child should best be served” (page 78,906 at [1]. The Full Court stated:
“It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard”.
The Court notes that the order for relocation sought by the mother is consistent with Notation 14 to the orders (supra). The Court finds that the actions of [X] are a clear indication to both parents that he wishes to return to the Gold Coast to live with his mother. It is obvious from the Notation that the parties would have regard to [X]’s wishes of where he wants to live. However, the Court must still decide what is in the best interests of [X]. To order that [X] live with his mother in Queensland is comprehended within Notation 14 of the orders of
9 January 2007. The Court does not need to find a “new factor” or “change in circumstances”, other than that [X] wishes to live with his mother in Queensland, to comply with the rule in Rice & Asplund. However for reasons expressed below, the Court finds that that is not in the best interests of [X] for him to live in Queensland. (The mother currently lives in [M], Queensland. Google Maps shows [M] to be 14.5 kilometres or 18 minutes travel from the Gold Coast. The mother regards this as living “on the Gold Coast” (T 20/2/2012 p.16, l.1). Relocating to [M] would therefore be consistent with relocating to the Gold Coast).
It is not necessary that the parties negotiate through Ms B for an independent person to interview [X] to ascertain his wishes, as they are shown clearly, and can be ascertained from his actions. That being so the Court must “weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration” Rice & Asplund (supra at 78-906).
The Submissions
Evidence of the Mother
The mother states that she will not deny [X] the right to see his father. A school report for Semester 1 and 2 of 2011 on the mother’s nephew [A] became Exhibit A1. A school report for Semester 2 of 2011 on [X] became Exhibit A2. The mother took [X] to see her brother in a corrections centre in Brisbane.
The mother states that [A]’s behaviour has improved since [A] has lived with her (T 21/2/2012 p.8, l.37). The mother encouraged [X] to run away to the Gold Coast (T 20/2/2012 p.28, l.22); She bought the ticket and [X] went on the flight by himself (Ibid l.37). [X] was 13 at the time.
A letter written by [X] to his mother became Exhibit R2. In that letter, [X] states:
“I will keeping (sic “keep”) running away. I miss Queensland and all of my friends and family too. If my dad will not let me live with you then I’m sorry but I am going to commit suicide”.
[X]’s school counsellor does not regard the suicide note to be serious (T 21/2/2012 p.86, l.45). [X] told the report writer Dr N (“Dr N”) that “he had not meant to carry out his threat” of self harm (Supplementary Report dated 6 February 2012 p.7, l.5). The Court is very pleased to hear that, as [X] is a teenager with great opportunities for a fulfilling life in front of him. It is the Courts duty to decide what is in [X]’s best interests [s.60CA of the Family Law Act 1975 (the “Act”)].
The Court considers the letter (Exhibit R2) to be a clear indication that [X] wants to live on the Gold Coast. The mother stated that [X] needs a father in his life (T 21/2/2012 p.4, l.19). She states that she “would make sure that he ([X]) would see his father” (Ibid l.28). Mr Smith submitted that on the basis of the decision in In the marriage of Mulligan (1976) 11ALR 561, there is no principle that a male child needs a male in their life. The Court notes that s.60CC(2)(b) of the Act provides that a primary consideration is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. The Court accepts that in looking at that matter, it should take into account the characteristics of a parent. It is not suggested here that the father has characteristics that should prevent him from having a meaningful relationship with [X].
Evidence of Ms B – the paternal grandmother
Ms B is aware of [X]’s desire to move to the Gold Coast to live with his mother (Ibid p.31, l.45).
Evidence of Ms A – [X]’s stepmother
Ms A states that it has been fairly common knowledge that [X] has been wanting to move for a long time.
Evidence of [Y] – [X]’s half brother
[Y] gave evidence at the hearing that [X] wants to go to the Gold Coast.
Evidence of Dr N
·[X]’s emotional state would certainly be improved by living on the Gold Coast initially (Ibid p.59, l.7).
·It is “definitely against [X]’s wishes” to stay in Melbourne (Ibid p.59, l.20).
·“One of the biggest risks of [X] living in Queensland… is that [X] doesn’t value his relationship with his father at the moment, … and I suspect that [X]’s relationship with his father would suffer” (Ibid p.60, l.32).
·[X] loves both of his parents.
·If [X] has problems he would probably seek out his mother (Ibid p.66, l.34).
·[X]’s father responded in an appropriate way after [X] ran away to the Gold Coast (Ibid p.67, l.32).
·[X]’s visit to jail “could be just a simple family visit” (Ibid p.68, l.28).
·“The longer [X] can be maintained in a stable and structured and (sic “within”) very firm boundaries, the better it will be for him in the long run. Even if he does eventually decide of his own accord to go and live with his mother and take matters into his own hands, I think it’s actually quite critical this period right here and right now, and if that could be maintained for a year or so, then I think that will be in good stead for him for the future” (Ibid p.70, l.20).
The Court sees no reason to discount that opinion of Dr N who specialises in Child Adolescent and Family psychology (CV attached to Dr N’s reports). Her view must override the wishes of [X] who is reported to be immature for his age.
Dr N’s assessment of [X] moving to the Gold Coast to be with his mother is that “in the medium to long term that would not be good for [X]’s development… I consider that [X]’s need for strong guidance in the next few years will be very important to him, and Mr Wallis seems much better equipped to provide it” (Psychological Report dated 2 May 2011 p.17).
Dr N supports the father’s proposal for [X] to spend time with his mother during school holidays. To ensure his prompt return, Dr N supports orders whereby a particular period of holidays is conditional upon [X] being returned to his father on time from the previous period, so that the next period does not occur unless the previous one is complied with (T 21/2/2012 p.70, l.5).
In Dr N’s Supplementary Report she concludes at page 10 that:
·[X] impresses as much less determined to live with his mother (p.10.5).
·[X] has a “strong relationship with his father but is unable to fully appreciate this at the moment” (Ibid .6).
·[X] “requires some very strong boundaries and strong parenting to enable this young man to reach his potential” (Ibid .7).
·“Mr Wallis appears to be better equipped to deal with [X]’s challenging behaviour” [The Court refers to s.60CC(3)(f) and (i)].
·“It is also my assessment that if [X] lives with his father he is more likely to maintain a relationship with both parents, but living with his mother is likely to contain risks that the relationship with his father will not be fostered” (Ibid .7) [The Court refers to s.60CC(2)(a), s.600CC(3)(c)].
Dr N recommends that [X] continue living with his father (Ibid .9)
The above conclusions cannot be discounted, and must be given great weight.
Evidence of the Father
·The father does not dispute that [X] wants to live with his mother (T 21/2/2012 p.73, l.2).
·[X] moving to the Gold Coast could improve the father’s relationship with [X]… “but I don’t know if that would be the best thing. That would be the easiest way for me” (Ibid p.74, l.25).
·“I threw a pillow at him, as he lay on his bed, onto his face, as a joke” (Ibid p.76, l.1).
·The father has an arrangement with the school to send an email to him if [X]’s work is late.
·The father earns around $100,000.00 p.a. The father wants [X] to continue his studies up to Year 12 if possible (Ibid p.82, l.42).
·The father proposes that [X] spend time with his mother:
i)For four weeks in the Christmas holidays;
ii)Nine days in each school term holidays; and
iii)Otherwise as agreed when the mother comes to Melbourne
The father proposes that the mother pay half the cost of the airfares for [X]. A similar application by the father has previously been made to the Court and was dismissed on 30 September 2011. Circumstances have not changed since that application was dismissed. The application is dismissed.
At the end of the hearing on 21 February 2012, the Court ordered the parties to file and serve written submissions and reserved its decision.
Written Submissions by the Independent Children’s Lawyers
Mr Lynch acknowledges that [X] has expressed a consistent wish to live with his mother.
Mr Lynch submits that according to Dr N’s report, [X] may not have a relationship with his father if he goes to the Gold Coast. The Court accepts that [X] may find it more difficult to have a meaningful relationship with his father if [X] moves to the Gold Coast, but the same applies to [X] maintaining a meaningful relationship with his mother if [X] remains in Melbourne. The solution is to provide for [X] to spend substantial time with the other party. In the mother’s Amended Outline of Case filed on 17 February 2012, she proposes that [X] spend time with and communicate with his father as follows:
(4)That the child spend time with his father at all reasonable times as agreed between the parents but not less that the following:
(a)For the first four weeks of the Summer school holidays in odd years and the last four weeks in even years when he is to be returned to the Mother not less than 2 working days before the commencement of the new school year;
(b)for the first nine days of each school term holiday period in every year;
(c)at any time by agreement between the parents and at any time the father chooses to notify the mother that he will be on the Gold Coast.
(5)The father communicate with the child:
(a)At all reasonable times by telephone or e-mail with the mother being at liberty to similarly communicate with the child when he is in the father’s care.
(b)The mother must make telephone, e-mail facilities for the child to communicate with the father at will.
(6)That the father be solely responsible for the costs of the child’s airfares between Melbourne and the Gold Coast.
Minute 4 above is the counterpart to what the father proposes.
The Court finds that those provisions, suitably amended, would enable [X] to have a meaningful relationship with both of his parents if he lives with his father.
Section 60CC(2)(b) – The Independent Children’s Lawyer does not submit that there is any significant factor within this sub-section.
Section 60CC(3)(a) – The Independent Children’s Lawyer recognises that [X] has expressed a clear and consistent wish to live with his mother, but submits that the Court should take into account Dr N’s view that [X] is immature and vulnerable.
In Dr N’s Supplementary Report she concludes that “Mr Wallis is better equipped to deal with [X]’s more challenging behaviour”, and that if [X] lives with his mother, his relationship with his father will not be fostered. The Court accepts those findings.
Dr N gave evidence on 21 February 2012 as follows:
·That “[X]’s emotional state would certainly be improved by living in Queensland initially” (T 21/2/2012 p.59, l.8)
·That in terms of [X]’s behaviour “he’s a lot more compliant when living with his mother” (Ibid p.60, l.17)
·Dr N suspects that “[X]’s relationship with his father would suffer” if he goes to live with his mother (Ibid p.60, l.36)
The Court is left to wonder if [X] will resent his father if he regards him as preventing him living on the Gold Coast? However, that is not a decision for the father; the Court is to decide what is in the best interests of [X], having regard to all the material before it.
Dr N continued:
·That “if [X] is not compliant, then I think she ( the mother) might struggle” (Ibid p.64, l.3)
·That [X] is very“ easily led astray” (Ibid p.64, l.28)
·That if [X] lives with the mother he will be having poor influence at home (from [A]) (Ibid p.65, l.30)
·That [X] having an idealised view of the Gold Coast is “a measure of his immaturity” (Ibid p.66, l.24)
·That [X] is “very immature for his age” (Ibid p.70, l.10)
·That “the longer he can be maintained in a stable and structured and (sic “within”) very firm boundaries, the better it will be for him in the long run” (Ibid p.70, l.20)
Section 60CC(3)(e) – The Independent Children’s Lawyer submits that airfares are relatively cheap if booked in advance. The Court notes that payment for airfares will be required regardless of which parent [X] lives with. At present, the father pays for the airfares. That can be rationalised by the fact that they have been caused by the father relocating to Melbourne with [X].
The Independent Children’s Lawyer proposes that [X] continue to live with his father and spend time with his mother during school holidays, on the Gold Coast as agreed.
Written Submissions for the Father
It is submitted for the father that the findings of Dr N are in favour of [X] living with him in Melbourne. The Court agrees.
The father seeks sole parental responsibility for [X]. It is submitted for the father that lack of communication between the parents militates against it being in the best interests of [X] for his parents to have equal shared parental responsibility for him. The Court is not satisfied that the current lack of communication shows that it would not be appropriate in the circumstances for [X]’s parents to have equal shared parental responsibility for him. The Court orders that the parents have equal shared parental responsibility for [X].
The Court finds that:
·“Equal time” with each parent is not reasonably practicable considering that [X] is a student, and considering the parents live in different states [s.65DAA(1)].
·“Substantial and significant time” with the mother (as defined in s.65DAA(3)] is also not reasonably practical having regard to the same factors.
The Court considers the orders made below for [X] to spend with his mother are in the best interests of [X].
It is submitted that [X] having a meaningful relationship with both parents will best be facilitated if [X] lives with his father. Dr N considers that the mother would not encourage [X] to spend time with the father. The Court finds that the father is more likely to encourage [X] to have a meaningful relationship with his mother than vice versa.
The Court finds that it will be to the benefit of [X] for him to have a meaningful relationship with both of his parents [s.60CC(2)(a)].
It is submitted that the mother has failed to protect [X] from physical or psychological harm. The Court finds no evidence to support that conclusion.
It is submitted that although [X] wishes to live on the Gold Coast, Dr N finds him to be immature [s.60CC(3)(a)]. That is so. For reasons expressed above, Dr N’s opinion, that it is in the best interests of [X] that he continue to live with his father, is accepted by the Court.
As to s.60CC(3)(b), it is submitted that [X] is dependent on his father for stability and behavioural guidance. Dr N agrees. [X] told Dr N that the “situation between him and his father is good” (Supplementary Report p.7.2). [X] has a relaxed relationship with his mother (but the Court observes that to some extent, that could flow from the mother imposing less restrictions and supervision on [X]). Dr N finds that [X] needs supervision and boundaries.
[X] has the support of the paternal grandmother in Melbourne. He has a stepmother with whom he has a good relationship. His half brother [Y] lives in Melbourne and has a good relationship with [X]. His half sister [name omitted] lives in Melbourne.
Section 60CC3(c) has been considered above.
It is submitted in relation to s.60CC(3)(d) that the likely effect of moving to the Gold Coast would be that [X]’s relationship with his father, paternal grandmother, cousins and uncles will be severed. The Court finds that to be likely. The relationship with his stepmother would also likely be severed.
Section 60CC(3)(e) – The Court finds that the practical difficulty that is likely to flow if [X] lives on the Gold Coast is that arrangements for him to be returned to his father will not be complied with by the mother. In the past, the mother has not complied with arrangements. Orders have been tailored to deal with that difficulty.
Section 60CC(3)(f) – It is submitted that the mother is less capable of setting boundaries for [X] than is the father (based on the opinion from Dr N); the Court agrees.
Section 60CC(3)(g) – not relevant.
Section 60CC(3)(h) – not relevant.
Section 60CC(3)(i) – It is submitted that the mother has shown little concern for the development of [X] and his emotional wellbeing. Based on the opinions of Dr N, the Court finds that the father demonstrates a better attitude to the responsibilities of parenthood. The Court gives this consideration great weight.
Section 60CC(3)(j) and (k) – not relevant.
Section 60CC(3)(l) – It is submitted, and the Court accepts, that if [X] lives on the Gold Coast with his mother, it is probable that orders that [X] spend time with his father will be breached and subsequent proceedings will be instituted. The Court has confidence that if [X] lives with his father, orders for the time with the mother will not be breached by the father. They are not likely to be breached by the mother also, as that will result in the loss of [X]’s next period of time with her (supra).
Section 60CC(3)(m) – It is highly relevant, and shows an irresponsible attitude by the mother, that she would arrange for a ticket for [X] to leave his father’s care without discussion with the father, and fly by himself to the Gold Coast. The Court gives this consideration great weight.
Section 60CC(4) – The father has facilitated the mother spending time with [X]. Both parents maintain [X] when he is with them. The parents are free to communicate with [X] when he is with the other parent. The parents do not communicate well and have not involved each other in making decisions in relation to [X]. They need to learn how to do this.
Section 60CC4A – The parent’s relationship ended on 19 October 1998. Since then, the mother has arranged for [X] to leave the care of his father without discussing that with the father. The gravity of that action cannot be diminished.
Written Submissions for the Mother
It is submitted for the mother that the two most important considerations are [X]’s views, and the capacity of the parents and others to provide for the needs of [X]. The Court finds that those are but two of the relevant considerations. Having regards to the opinion expressed by Dr N, the Court finds that the immaturity of [X] is relevant to the weight to be given to his views.
It is submitted for the mother that the circumstances which justify varying the orders made on 9 January 2007, that [X] live with his father, are that [X] has become unhappy in Melbourne and wishes to live with his mother. Accepting that those circumstances exist “the Court is then required to consider afresh how the welfare of [X] should best be served” (Rice & Asplund supra at [1]). Those principles apply whether the original order is made by consent or after a contested hearing (Ibid). The Court rejects the submission for the mother that because the original order was not contested, there is less restriction on varying it.
It is submitted that there is no evidence that should an order be made that [X] live with his mother, she would use her influence over [X] to ensure that Court orders for [X] to spend time with his father would be disobeyed. Having regard to the circumstances of this case, the Court finds that the father is more likely to comply with Court orders, than is the mother.
It is submitted for the mother that there are no significant issues within s.60CC(2)(b). The Court accepts that submission.
It is submitted, and the Court accepts, that [X] wants to live on the Gold Coast with his mother. The Court gives [X]’s views careful consideration. They are significant, but their weight is affected by [X]’s immaturity; the opinions of Dr N outweigh them. The Court has had regard to the decision in R v R: Children’s wishes (2000) FLC 93-000. The good reason for departing from [X]’s views are his immaturity and the opinions of Dr N such as “I think its actually quite critical for this period right here and right now… and if that could be maintained for a year or so, I think that will be in good stead for him in the future” (supra) (emphasis added)
In view of the opinions of Dr N, the Court does not find the competing [considerations] to be closely matched, so that [X]’s wishes are the deciding factor (In the marriage of B.B.T. and J.M.T. (1980) AFLC 90-809). To do that would be to ignore what the Court finds to be in the best interests of [X].
The Court does not give less weight to the wishes of [X] solely because of his age, but because his immaturity decreases the weight to be given to them.
It is submitted for the mother, that [X] has a better relationship with her, than with the father. That appears to be so, but that does not mean that orders should not be made to facilitate a meaningful relationship with both parents.
It is submitted for the mother that the father has prevented her from participating in decision making about [X], particularly his schooling. That is so, and the Court is ordering that the parents have equal shared parental responsibility for [X].
It is submitted for the mother that the father does not spend enough time with [X]. However, it is noted that [X] told Dr N that he “hoped that if his father could spend more time with him and stop yelling at him, his life would be much better”. Ordering that [X] live with his father will contribute towards satisfying that hope.
It is submitted for the mother that she takes more opportunities to communicate with [X]. That is so, but the Court accepts the father’s view that frequent calls from the non-resident parent prevent [X] from adjusting to home life.
It is submitted that [X]’s relationship with his father is likely to improve if he is allowed to live on the Gold Coast with his mother. That is possible, but is outweighed by the opinions of Dr N that it is “actually quite critical this period right here and right now and if that could be maintained for a year or so, I think that would be in good stead for him in the future” (supra).
The mother submits, and the Court accepts, that the same practical difficulties and expenses apply whether [X] lives with his mother or father. The Court finds that the father should continue to pay for [X]’s airfares.
The mother submits that as the father works full-time he is less able to provide for [X]’s needs. That is not necessarily so – it is also a question of quality time and guidance. Dr N states that the father is better able to provide guidance and boundaries for [X].
The mother submits that [X] is not doing well at school since he has lived with the father. The Court finds no evidence that this is caused by the father; it could be due to [X]’s immaturity or to the ongoing affects of his parents fighting.
Decision and Orders
Having considered all the evidence, the reports by Dr N and the considerations of s.60CC of the Act, the Court finds that it is in the best interests of [X] that he continues to live with his father. The Court therefore orders:
(1)The parties have equal shared parental responsibility for the long term welfare, care and development of the child [X] born [in] 1999.
(2)Each parent have sole parental responsibility for all decisions regarding the daily care of [X], whilst he is in their care.
(3)[X] live with his father.
(4)[X] spend time with his mother in Queensland as follows:
(a)For the first four weeks of the Summer school holidays in odd numbered years; and the last four weeks in even numbered years, when he is to be returned to the Mother not less than 2 working days before the commencement of the new school year;
(b)For a period of 9 days each school term holiday; and
(c)Otherwise as agreed between the parties when the mother is in Melbourne.
Each period of time after the first, is conditional upon [X] being returned to the father on time, at the conclusion of the previous time with the mother.
(5)The father is to pay for the return airfares for [X] from Melbourne to the Gold Coast
(6)Each parent is free to contact [X] by telephone between 6pm and 8pm on any Monday, Wednesday and Friday that [X] is spending time with the other parent.
(7)Each parent is to make telephone and email facilities available to [X] for him to communicate with either parent at will.
(8)The parents are to provide each other with the current address and telephone numbers for [X].
(9)Each party, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of [X], and from permitting any other person to do so.
(10)Each parent keep the other fully informed at all times regarding education and medical matters concerning [X] and provide any necessary authorities to the school or medical, dental or therapeutic professionals attended by [X] to provide each parent with any documents they may require about [X].
(11)Neither parent take [X] to a counsellor, psychologist or therapeutic mental health professional of any kind without the full knowledge and consent of the other parent and that both parents be at liberty to attend and be involved in any such process as may be agreed from time to time.
(12)The mother’s Contravention Application filed on 10 January 2011 and the father’s Contravention Application filed on 20 April 2011 are adjourned for interim hearing at 10am on 17 August 2012.
(13)Should the parties file and serve a Notice of Discontinuance prior to 17 August 2012, the interim hearing will be vacated.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 8 June 2012
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