EW and SW
[2003] FMCAfam 375
•13 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EW & SW | [2003] FMCAfam 375 |
| FAMILY LAW – Children – residence – young child – mother wishes to relocate to Scotland – mother suffers long standing depressive illness – child primarily and securely attached to the mother – mother isolated from necessary family supports – best interests of child is paramount concern – with family and medical support mother able to continue to meet child’s needs – effect of separation from primary carer considered – ramifications for child’s relationship with father and paternal grandmother considered – mother’s relocation application granted – mother will bring child to Australia annually and father will visit Scotland annually. |
Family Law Act 1975, ss.60, 62, 65, 68
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
A v A Relocation Approach (2000) FLC 93-035
| Applicant: | EW |
| Respondent: | SW |
| File No: | PAM4348 of 2002 |
| Delivered on: | 13 November 2003 |
| Delivered at: | Parramatta |
| Hearing dates: | 21, 22 & 28 August 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Thisleton |
| Solicitors for the Applicant: | Caldwell Martin & Cox |
| Counsel for the Respondent: | Ms M.De Vere |
| Respondent: | In person |
ORDERS
That “the child” R born on 18th January 2001 live with the mother.
That the mother shall have sole parental responsibility for making decisions about the child’s day to day care, welfare and development during such times as he is residing with her.
That the father shall have sole parental responsibility for making decisions about the child’s day to day care, welfare and development during such times as he is residing with him.
That the parties have joint responsibility for the child’s long term care, welfare and development.
That on or after 13 April 2004 the mother is authorised to do all acts and things necessary to remove the child from the Commonwealth of Australia so that thereafter the child’s permanent place of residence shall be in and around the Inverness and Edinburgh regions in Scotland.
Pending the child’s departure to the United Kingdom, the child shall have contact with the father defined as follows:-
(a)Until 23 December 2003 each alternate weekend from 4.00 pm Saturday until 6.00 pm Sunday;
(b)Each other Saturday from 10.30 am to 6.00 pm;
(c)From 4.00pm 23 December 2003 until 3.00pm Christmas Day 2003;
(d)From 4.00pm 27 December 2003 until 6.00pm 29 December 2003;
(e)Thereafter commencing Saturday 3 January 2004 each alternate Saturday from 9.00am until 6.00pm;
(f)Commencing 9 January 2004 from 4.00pm Friday until 6.00pm Sunday each alternate weekend;
(g)On the fathers and grandmothers birthdays from 9.00am until 6.00pm;
(h)From 6.00pm Easter Thursday until 10.00am 12 April 2004;
(i)By telephone at all reasonable times; and
(j)At such other times as may be agreed.
Upon the mother’s relocation with the said child to the United Kingdom and continuing until the child commences school the child shall have contact with the father as follows:-
(a)In Australia on one occasion each calendar year for a period of 21 days (including the evenings on which contact is suspended). The father’s contact shall be suspended overnight on the 7th and 14th nights from 12 noon on the 7th and 14th days until 12 noon the next day.
(b)For the purpose of this contact the dates for contact in Orders 7(a) shall be nominated by the father no less than three months in advance of the intended contact dates PROVIDED HOWEVER that such contact or travel dates shall not include Christmas Day or Boxing Day in 2005 or 2007.
(c)Contact pursuant to Order 7(a) shall commence the day after the child arrives in Australia.
(d)The child shall be accompanied to and from Australia by the mother;
(e)For up to a further three occasions per year within Scotland conditional upon:
(i)The father providing to the mother at least four weeks notice of his intended contact visit;
(ii)Each contact visit not exceeding a period of fourteen (14) days;
(iii)In the event that the father had contact overnight on Christmas night the prior Christmas, his contact shall be suspended from 4.00pm Christmas Eve until 3.00pm Christmas Day.
(iv)By telephone with the call to be initiated by the father placed between 5.00 pm and 7.00 pm at the time standard applicable in Scotland.
That upon the mother’s relocation with the said child to the United Kingdom and commencing after the said child commences school the child shall have contact with the father as follows:-
(a)In Australia on one occasion per year for a period of up to 28 days upon the following conditions:-
(i)The dates for such contact being nominated by the father who shall provide to the mother at least three months written notice of the intended contact dates which dates shall coincide with the child’s school holidays and the mother’s university vacation;
(ii)Until the child turns seven years old contact changeover shall take place the day after the child arrives in Australia;
(iii)Thereafter it shall take place at Sydney airport upon the child’s arrival in Australia.
(iv)The child shall be accompanied to and from Australia by the mother;
(b)In the United Kingdom for up to a further three occasions not exceeding a period of fourteen (14) days per year conditional upon:
(i)The father providing to the mother at least four weeks notice of his intended contact visit;
(ii)In the event that the father had contact overnight on Christmas night the prior Christmas, his contact shall be suspended from 4.00pm Christmas Eve until 3.00pm Christmas Day.
(iii)By telephone with the call to be initiated by the father and placed between the hours of 5.00 pm and 7.00 pm at the times standard applicable in Scotland.
In the event that the father wishes to exercise contact to the child in Edinburgh the mother shall provide the father with accommodation.
That, within eight weeks of the father giving the mother notice that he has obtained technology that enables him to exercise contact via webcam and/or email, the mother shall establish an email address for the child and shall thereafter facilitate contact between the child and the father at all reasonable times.
That the mother shall record the child’s development and activities from time to time on video cassette and shall forward a video of such footage to the father on three occasions each year at the end of the months of April, August and December.
That, in the event the father forwards letters or emails to the said child the mother shall either read such items to the said child once received or, upon the child developing an ability to read for himself, deliver or make available to the child such letters or emails.
In the event that the father forwards any cards, gifts, or other items for the said child, the mother shall ensure that such items are delivered by her to him.
That both parties shall keep the other advised in writing of all current details as to their residential address, telephone contact numbers and email addresses.
That the mother shall keep the father informed of any significant medical concerns regarding the child and shall, within seven days of any request made to her by the father, provide all necessary authorities to any of the child’s treating medical practitioners, to enable that medical practitioner to provide information or documentation about the child directly to the father.
That, upon the child commencing school, the mother shall provide to the father copies of the child’s school reports either by mail or by email and the mother shall do all things necessary to authorise any school attended by the child to provide such information or documentation concerning the child, as the father may request of them.
That upon the mother and child moving to Scotland, the mother is restrained from changing the child’s place of residence to a place that is more than two hours drive by car from the regions of Inverness and Edinburgh without the father’s prior written consent to do so.
That the mother shall provide to the father no less than 30 days notice in writing of any intended change in the child’s residential address.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged.
That the Solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM4348 of 2003
| EW |
Applicant
And
| SW |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings are residence proceedings. They relate to the parties’ only child R who was born on 18 January 2001.
The application
EW (“the mother”) initiated these proceedings when she filed her application for final orders on 12 November 2003. On 21 March 2003 she filed an amended application which identified the orders sought by her at trial. They are as follows:
1.That the child R born on 18th January 2001 shall reside with the mother who shall have the sole parental responsibility for making decisions about his day to day care, welfare and development during such times as he is residing with her.
2. That the mother shall be permitted to forthwith do all acts and things necessary to relocate with the said child to reside in the United Kingdom and specifically in and around the Inverness and Edinburgh regions in Scotland.
3. That pending the relocation of the mother and said child to the United Kingdom, the said child shall have contact with the father defined as follows:-
a. Each alternate weekend from 4.00 pm Saturday until 6.00 pm Sunday (excluding Mother’s Day);
b. Each other Saturday from 10.30 am to 4.00 pm; and
c. At such other times as may be agreed.
4.That, forthwith upon the mother’s relocation with the said child to the United Kingdom and continuing until the said child commences School the said child shall have contact with the father defined as follows:-
a. On one occasion per year for a period of 14 days or such further period as may be agreed, such contact to be conditional upon:-
(i) The dates for such contact being nominated by the father who shall provide to the mother at least three months written notice of the intended contact dates PROVIDED HOWEVER that such contact or travel dates shall not include Mother’s Day, Christmas Eve, Christmas Day or Boxing Day;
(ii) Such contact shall take place in Australia;
(iii) Contact changeover shall take place at Sydney Airport;
(iv) The child shall be accompanied to and from Australia by the mother;
(v) The father shall pay the cost of air travel for the said child for these contact purposes either directly to the air carrier at the time of booking the appropriate ticket or alternatively shall make such payment directly to the mother at least seven days before the due date that payment is to be made to the said air carrier and the mother shall thereafter make such payment on the father’s behalf by the due date.
b. For up to a further three occasions per year within Scotland conditional upon:
(i) The father providing to the mother at least four weeks notice of his intended contact visit;
(ii) Each contact visit not exceeding a period of fourteen (14) days and not occurring on Mother’s Day, Christmas Eve, Christmas Day or Boxing Day except as otherwise provided herein.
(iii) That such contact is conditional upon the father having appropriate accommodation and facilities to care for the child;
c. By telephone, at the father’s discretion, but not to exceed one occasion per week, with the call to be initiated by the father and placed between the hours of 5.00 pm and 7.00 pm at the times standard applicable in Scotland.
5.That upon the mother’s relocation with the said child to the United Kingdom and commencing after the said child commences School the child shall have contact with the father defined as follows:-
a. On one occasion per year for a period of 14 days or such further period as may be agreed, such contact to be conditional upon:-
(i) The dates for such contact being nominated by the father who shall provide to the mother at least three months written notice of the intended contact dates PROVIDED HOWEVER that such contact shall take place only during school holiday periods and not to include Mother’s Day, Christmas Eve, Christmas Day or Boxing Day;
(ii) Such contact shall take place in Australia;
(iii) Contact changeover shall take place at Sydney Airport;
(iv) The child shall be accompanied to and from Australia by the mother;
(v) The father shall pay the cost of air travel for the said child for these contact purposes either directly to the air carrier at the time of booking the appropriate ticket or alternatively shall make such payment directly to the mother at least seven days before the due date that payment is to be made to the said air carrier and the mother shall thereafter make such payment on the father’s behalf by the due date.
b. For up to a further three occasions per year within Scotland conditional upon:
(i) The father providing to the mother at least four weeks notice of his intended contact visit;
(ii) Each contact visit not exceeding a period of fourteen (14) days and not occurring on Mother’s Day, Christmas Eve, Christmas Day or Boxing Day except as otherwise provided herein.
(iii) That such contact is conditional upon the father having appropriate accommodation and facilities to care for the child and that such contact only be during school holiday periods and not to include Mother’s Day, Christmas Eve, Christmas Day or Boxing Day;
c. By telephone, at the father’s discretion, but not to exceed one occasion per week, with the call to be initiated by the father and placed between the hours of 5.00 pm and 7.00 pm at the times standard applicable in Scotland.
6.That, within eight weeks of the father giving the mother notice that he has obtained technology that enables him to exercise contact via webcam and/or email, the mother shall establish an email address for the child and shall thereafter facilitate contact between the child and the father at all reasonable times, but not exceeding one occasion per week, by webcam or email.
7. That the mother shall record the child’s development and activities from time to time on video cassette and shall forward a video of such footage to the father on three occasions each year at the end of the months of April, August and December.
8. That, in the event the father forwards letters or emails to the said child the mother shall either read such items to the said child once received or, upon the child developing an ability to read for himself, deliver or make available to the child such letters or emails.
9. In the event that the father forwards any cards, gifts, or other items for the said child, the mother shall ensure that such items are delivered by her to him.
10. That both parties shall keep the other advised in writing of all current details as to their residential address, telephone contact numbers and email addresses.
11. That the mother shall keep the father informed of any significant medical concerns regarding the child and shall, within seven days of any request made to her by the father, provide all necessary authorities to any of the child’s treating Medical Practitioners, to enable that Medical Practitioner to provide information or documentation about the child directly to the father.
12. That, upon the child commencing School, the mother shall within 14 days of receiving same, provide to the father copies of the child’s School reports either by mail or by email and the mother shall do all things necessary to authorise any School attended by the child to provide such information or documentation concerning the child, as the father may request of them.
13. That upon the mother and child moving to Scotland, the mother is restrained from changing the child’s place of residence to a place that is more than two hours drive by car from the regions of Inverness and Edinburgh without the father’s prior written consent to do so.
14. That the father shall pay the mother’s costs of and incidental to this application.
SW (“the father”) filed his response in March 2003. During the trial his counsel submitted a minute of order which identified the orders sought by him[1].
[1] Exhibit I
The minute of order proposed by the father combine the primary relief sought, as well as his proposals for contact should he fail to obtain an order for residence. The mother’s application for residence is pressed on the primary basis that she and R live in Scotland. The father’s orders address that circumstance. Whether the mother proposes to live in Australia or Scotland, the father wants R to live with him. In the event that the mother’s primary residence/relocation application does not succeed, the mother says she will remain in Australia and wants R to remain living with her. This proposal was presented as a proposal in the alternative and is secondary to that contained in her amended application.
The evidence
The mother relied on the following evidence:
·Her affidavit sworn 16 July 2003 and her oral testimony.
·Affidavit of the JM “maternal grandmother” filed 12 August 2003 and her oral testimony.
·Affidavit of the BM “maternal grandfather” filed 11 August 2003 and his oral testimony.
·Affidavit of SM filed 5 August 2003 and her oral testimony.
·Affidavit of KR filed 5 August 2003. This witness was not required for cross-examination.
·Affidavit of KO filed 14 August 2003. This witness was not required for cross-examination.
·Affidavit of HO filed 14 August 2003. This witness was not required for cross-examination.
·Affidavit of Dr S filed 11 August 2003 and her oral testimony.
The father relied on the following evidence:
·His affidavit filed 16 July 2003 and his oral testimony.
·Affidavit of the MW “Paternal grandmother” filed 16 July 2003 and her oral testimony.
·Affidavit of JS filed 16 July 2003. This witness was not required for cross-examination.
·Affidavit of TB filed 16 July 2003. This witness was not required for cross-examination.
Both parties tendered documents, which became exhibits in the proceedings.
Pursuant to s.62(G)(2) of the Family Law Act 1975 on 16 April 2003 a family report was ordered. Court Counsellor L conducted the interviews and prepared a report, which is dated 11 August 2003[2]. The court counsellor was cross-examined. In his report Mr L concludes:
“If the mother, as R’s primary carer, can establish that her well being and associated capacity to care for R are made vulnerable by her isolation, then it would seem that the child’s best interest would be served by orders which would facilitate his mother’s relocation. Clearly, the cost for the child would be the benefit he derives from a relationship with his father. Unless the father is also able to relocate, at least during the child’s formative years, R’s attachment to his father will diminish in strength.”[3]
[2] Exhibit A
[3] Paragraph 34
Current orders
When she started the proceedings, the mother included an application for interim orders. This was because she wanted orders that ensured that R lived with her and so that she could take him to Scotland during the Christmas 2002 period to visit her family. On 18 November 2002 the court made interim orders by consent which orders are set out below:
1.That the child of the marriage R born 18 January 2001 reside with the Mother.
2.That the parents shall be responsible for the day to day care, welfare and development of the child whilst the child is in their respective care.
3.That the parents shall have joint responsibility for the long term care, welfare and development of the child.
4.That in order to facilitate contact the Mother shall be responsible to deliver the child to the Father at the commencement of contact and the Father shall be responsible to return the child at the conclusion of contact.
5.That subject to Order 7 the parents be restrained from removing the child from the Commonwealth of Australia without the agreement of both parents.
6.That subject to Order 7 the Australian Federal Police be authorised to place the child’s name on the airport watch list at all relevant departure points.
7.That the Mother be at liberty to remove the child from the Commonwealth of Australia on or after 25 November 2002.
8.That the Mother shall cause the child to travel on British Airways flight number 15 departing on 15 January 2003.
9.That by consent during the time the child is absent from the Commonwealth of Australia he shall be supervised by the Mother at all times.
10.That contact shall be suspended during the child’s absence from the Commonwealth of Australia.
11.That the Father be at liberty to collect the child on each of four consecutive Wednesday evenings from 5:00pm until 7:00pm commencing Wednesday 22 January 2003 as catch up contact.
12.That order to facilitate contact in Order 11 herein the Father shall be responsible to collect the child at the commencement of contact and return the child at the conclusion of contact.
13.That in relation to Order 7 herein the Mother shall prior to her departure from Australia deposit the amount of $1,000 in accordance with the Mother’s application filed and specifically Order 10 contained in the document headed “annexure A interim orders sought by applicant”.
14.That the Father have contact with the child as agreed between the parties and in the absence of agreement as follows:
(a)between 4pm- 6pm on 18 January 2003;
(b)between 10am – 2pm on the following Saturday 25 January 2003; and
(c)from 10am – 6pm each alternate Saturday commencing and including 1 February 2003; and
(d)from 4pm each alternate Saturday from and including Saturday 1 February 2003 until 6pm the following Sunday.
15.That both parties have liberty to apply on 24 hours notice.
The issues
The primary issues appear to be:
·The nature of the child’s attachment to his parents.
·The parties’ capacity to meet the child’s physical, intellectual and emotional needs.
·If the child is primarily attached to his mother, the effect on him on separation from her.
·The effect on the child of separation from his father and paternal grandmother if the mother and child live in Scotland.
·If the mother and child live in Scotland, whether the child will have regular contact with the father.
·The effect on the mother’s parenting capacity if her relocation application is refused
Short history
The father was born on 23 October 1967 and is thus 35 years old.
The mother was born on 10 December 1972 and is thus 30 years old. The mother was born in Scotland.
The parties met in about September/October 1990 in the United Kingdom. When they met the mother was nearly 18 and the father was 23 years old. He was on a working holiday and at that stage working in the United Kingdom. Throughout the first half of 1991 the parties toured Germany. They returned to Scotland in July 2001 primarily so that the mother could prepare for university. From their return until late September 1991 they stayed with the mother’s parents at Inverness. The mother then moved into halls of residence at a university. When she went the father did too, taking employment as a salesman. Their relationship continued until about November 1991.
Not long after the mother moved she contracted a respiratory illness. At about the same time symptoms of a depressive illness started to become apparent. Although aware of the symptoms the mother and her family were unaware of their significance viz her mental health.
The father returned to Australia in February 1993, after which the parties remained in contact via letter and telephone. In October 1994 he returned to the United Kingdom and in mid-1995 he visited the mother in Edinburgh. He returned to Australia not long after. Having pre-arranged a twelve-month work visa the mother arrived in Australia in April 1996. Upon her arrival the parties commenced cohabitation and in January 1997 they became engaged. Not long afterwards, in late March 1997, the mother returned to Inverness so that she could prepare for their wedding.
The parties were married at Inverness on 21 June 1997. After their marriage they returned to live in Australia where they remained living with the father’s mother.
In about August 1997 the parties moved into rented premises in western Sydney. They remained at these premises until about June 2000 when they moved into another rented home in the same area. After they had been broken into three times, in about November 2000 the parties moved again but remained in western Sydney region, where the mother and child still live.
In September and October 1998 the mother’s parent’s visited her in Australia, staying with the parties for about ten days before touring with them in Western Australia and Canberra.
Because the maternal grandmother believed that the mother was homesick, in July 1999 she paid for the parties to visit them in Inverness. The parties holidayed for about one month, during which time they also stayed in London and visited their best man in Germany.
The mother stopped paid work in October 2000.
Their only child R was born on 18 January 2001. Neither party has any other children.
The father obtained full time employment in about April 2001.
When R was 4 months old the mother took him to see her family in Scotland. Approximately four weeks later the father joined them. During this trip, on 10 June 2001, R was christened at the church where they had married. The parties returned to Australia in July 2001. The mother’s parents paid all the significant costs associated with this trip.
In May 2002 the parties separated for one week. During this separation the father returned to live with his mother while the mother and child continued to live in their rented home.
The parties separated on a final basis on 14 July 2002. At separation the father returned to live at his mother’s home where he still resides. Since separation R has lived with the mother and had contact with his father.
On 19 August 2002 the mother’s father arrived in Australia. Her mother was unwell and unable to make the trip. While in Australia the maternal grandfather initiated discussions with the father on his daughter’s behalf hoping to informally mediate separation issues.
As was provided for in the November 2002 orders, the mother and child returned to Scotland for seven weeks over the Christmas 2002/2003 period. They returned to Australia in late January 2003. Upon her return the mother told the father that she wanted to live in Scotland with R.
The mother’s circumstances and proposals
The mother was born in Aberdeen and when she was 5 months old adopted by BM and JM, who have been married for thirty-five years. Her mother conducts her own practice while her father is a senior partner in solicitor’s practice. The mother is the eldest of their three children, all of whom are adopted. Her sister is 29 years old and employed as an account director in London. Her brother is 27 years old and works as a supervising chef in Edinburgh.
The mother lived at home until she finished secondary school. Scholastically bright the mother had a good academic record and was accepted at university and college. After she finished her secondary education the mother deferred tertiary study whilst she travelled and worked. She worked in Germany and then as a nanny for family friends on the Island of Amrum. It is during this year that she met the father. The mother returned to Inverness to prepare for university in July 1991 during which period the father joined her at her parent’s home. When the mother started university he also moved to the area and obtained work as a salesman.
When the mother started university, taking a Bachelor of Arts degree majoring in French and German, she quickly found that she was unable to cope with it. During the first period she only attended two classes and two lectures. At night she was unable to sleep and during the day was either asleep or unable to leave her room. She returned home for four weeks during the Christmas 1991 vacation. About ten days after she had returned to university she telephoned her mother who, after discussions with university advisers and supervisors, arranged that she defer her studies and return to Inverness. The mother did not return to university for a number of years.
Dr H, her general practitioner, started her on an antidepressant, Molipaxin in January 1992. On 18 March 1992 Dr H referred the mother to Dr J, Associate Specialist in Psychiatry at a hospital in Inverness. Dr J concluded that the mother suffered, “a mild degree of depression”. She changed the medication to Clomipramine and commenced regular consultations with the mother at an Outpatient Clinic. The mother consulted Dr J throughout 1992, during which time she remained on antidepressant medication.
The mother’s health appeared to improve and from about August 1992 until December 1992 she worked for clients of her mother’s as a live in nanny on the west coast of Scotland. During this period she became engaged, but having met her fiancee’s mother ended the engagement. At some stage, probably in late 1992, the mother stopped taking antidepressants. When the mother’s work as a nanny finished she returned home and remained there until about August or September 1994. Although she had planned to return to university she missed the university admission closing date and deferred for another year. Once again her health deteriorated and in February 1993 Dr H prescribed the antidepressant, Anafranil, which she took, and referred her again to Dr J. Dr H agreed with Dr J that the mother should continue antidepressant medication and also re-established regular consultations with her.
In August/September 1994 the mother moved into a flat owned by her parents at Edinburgh. They had purchased the flat in 1993 for her sister’s use while she was a student. The other occupants of the flat were her siblings and cousin and from September 1995 his wife. The mother’s sister and brother were both studying full-time. Upon her arrival in Edinburgh the mother obtained work as a daily nanny, caring for three children until she relinquished her position in March 1996 so that she could come to Australia.
The father visited the mother in mid 1995 during which period they travelled to the Orkney isles and upon their return he stayed with her at Edinburgh. In about August 1995 the mother sought enrolment at University in a Bachelor of Science degree intending to major in occupational therapy. However she withdrew her application and applied for a visa to travel to Australia so that she could be with the father.
On 1 April 1996 the mother departed Scotland and upon her arrival in Australia lived with the respondent in a converted garage at his mother’s home near Liverpool. At that time the father was studying full time at university as well as working part time. Other than trips home for holidays she has lived in Australia continuously ever since. In accordance with the conditions of her visa the mother changed employers each two-three months during her first twelve months in Australia. She worked as a waitress and for two months she also worked as a live in nanny for a family in northern NSW.
Upon her return after their wedding, the mother obtained full time employment as a disability support worker. She then obtained employment teaching life skills to adults with learning and physical disabilities. She remained in this position until April 2000. Next the mother took part-time work with a welfare organisation which became full time on 17 May 2000.
Once the father graduated and after he obtained full time employment the parties decided to start their family. The mother stopped work in October 2000, three months before R was born.
In October 2001 the mother was diagnosed with post partum depression. She attended Dr N and was initially treated with Zoloft and later Avanza. Dr N referred her for counselling. Counselling was frequent and included home visits. It ended in May 2003 when the counsellor changed jobs.
Since separation the mother and R have continued to live in the rented family home, for which she pays $180 per week. The initial lease period expired long ago and the mother continues the lease month by month. She is well regarded by her landlord and her occupancy is as secure as any rental arrangement can be.
For three months finishing in May 2002 the mother completed the first unit in an open learning program for child development conducted by correspondence at University. She has commenced the second unit in this program and has submitted her final assignment. Her purpose in starting this course was to start working towards a university degree in the hope that the first two units would gain credit for the first year of university. The mother works one day per month with at a centre for the disabled for which she is paid $33 per hour. Her income is primarily family payment, parenting allowance, rental assistance and $359.67 per month child support[4]. She has two friends in Australia, SM and KR. R started daycare in June 2003. Before selecting a daycare centre the mother reviewed five centres. Some of R’s playmates from the playgroup he previously attended with his mother attend the same daycare centre. On the first few occasions R found separating from the mother difficult, but now is rearing to get dressed and go to daycare and is obviously doing well there. Daycare starts at 9 am and finishes between 4 and 5 pm. When she is studying the mother finds that she needs to have R in daycare 2 days each week.
[4] Exhibit L
The mother has no family in Australia. She feels socially isolated and wishes to return to Scotland permanently. In Scotland she believes that she has the best opportunity to manage her mental health which in turn maximises her capacity to meet R’s needs and further her career. With her mother’s assistance, she applied for enrolment at a university in Edinburgh. She has been accepted for a Bachelor of Science degree majoring in speech and language pathology. Because of the uncertainty engendered by these proceedings the mother has deferred enrolment and will start in September 2004.
The Bachelor of Science degree is three years, extending to four for an honour degree. In order to gain credit in her first year the mother must also complete linguistics, which subject is not available through open learning. Her mother’s inquiries corroborate the mother’s belief that upon graduation she has reasonable prospects of obtaining work within her chosen profession. Whilst at university the mother will live with R at her parents’ flat in Edinburgh. Presently, her brother and two tenants live there. The mother’s father intends to give the tenants four weeks notice to quit, so that the flat would be available upon the mother’s arrival. The mother’s brother has plans that include starting university where he would study nursing. He would probably continue to live with his sister and nephew if he did not take up the nursing placement. I accept the mother’s evidence that R relates comfortably to his uncle and that she has a close relationship with him. Her parents will provide the accommodation rent-free and assist with any tuition expenses that she may have.
The flat is close to campus. The university has a creche for staff and students. R would attend the nursery whilst the mother attends lectures, tutorials and the like. If no place is available she will place R into an appropriate daycare facility nearby. During the first year the mother plans to undertake four subjects, a full year’s workload. She is unaware of the number of hours of face to face lectures or the amount of time that may be required in the library, tutorials etcetera but believes she will attend university 3-4 days each week during term. She plans to organise herself so that she studies at night, primarily after R has gone to bed.
Inverness is about two and a half to three hours drive from Edinburgh. Day by day her parents will live in Inverness and regular face to face contact will be maintained primarily during weekends and holidays. Both of her parents regularly visit Edinburgh for work related and personal reasons and are able to attend the mother on short notice. Because she has her own practice her mother has greater flexibility than her father does.
I accept the mother’s evidence that it is highly likely that she is eligible for a student grant which will provide her with regular income whilst she studies. Her prior attempts at university are treated as false starts and as she has retained UK citizenship she should still be eligible for this type of benefit. University study in Scotland is free and unlike the situation in Australia the mother would not end her studies with a potentially substantial HECS debt. Depending upon her arrival time in Scotland, the mother plans to spend some time with her parents at Inverness and then undertake short-term employment before the start of the academic year in spring.
If successful, the mother says that she will bring R to Australia each alternate June/July or Christmas. Her preference is that the June/July and Christmas’s visits alternate between Scotland and Australia. With her parents’ commitment, she says that she will pay her and R’s airfares for these trips. Whilst in Australia she will stay with either KR or SM whilst R has contact to his father. Additionally, she proposes that the father visit R in Scotland annually. Her parents offer either the flat, or alternate accommodation to an equivalent standard. At 58 years old, the mother’s father anticipates retiring in about seven years. During the parties’ marriage he has been financially generous, providing overseas trips and shortly before separation, $30,000 towards a deposit for the parties’ home. I accept his evidence that he will ensure that contact takes place, with no cost to the husband, in Australia annually at least until he retires. Thereafter the mother believes she will be able to pay the airfares.
The father’s proposals and circumstances
The father lives at his mother’s home in metropolitan Sydney. He lives in a converted garage adjacent to the house. The house is a three-bedroom home, with one bedroom established for R. A photograph of R’s room reveals that it is attractively furnished[5]. The father’s mother lives in the house alone. She and the father maintain independent lives, to the extent that he is responsible for his own cooking, laundry and the like. She recently retired having worked for many years as a registered psychiatric nurse. The father proposes that his mother will assist him with practical help parenting R, something she is willing and able to do.
[5] Exhibit S
The father and his brother were primarily reared by his mother as his parents separated during his childhood. His brother is married and lives with his wife and daughter in Canada. His brother and niece visited Australia in September 2003. The father’s extended family lives in the Canberra-Goulburn region and recently he celebrated his uncle’s sixtieth birthday there.
Between 1996 and until the end of 1999 the father studied full time at university. He commenced full time paid employment in about April 2001 and since November 2000 has been the sole income earner for the family. The father works as a personal assistant for a small engineering company. He leaves home a little after 7 am and returns between 6 and 6.30 pm five days a week. He does not work weekends, nor is he required to work at home. This year the father will earn $38,000 gross. He is entitled to four weeks annual leave and presently has six weeks leave accrued. The father’s employer is flexible and with pre-planning the father expects that he will be able to take holidays at times that suit him. On 14 August 2003 the father’s employer confirmed in writing that he expected to readily accommodate the father taking two weeks annual leave each August, two weeks at Easter each alternate year and two weeks each alternate Christmas. Provided he gives his employer six-eight weeks notice his employer agrees that these holidays can be taken[6].
[6] Exhibit R
Since separation the father has completed a number of programs including the well regarded “Hey Dad” fathering after separation program, a one day workshop for fathers with children 0-5 years and a six week “Keeping children safe” course at the Father’s Support Service. These courses have provided valuable information concerning parenting and parenting after separation. No less importantly the father believes he has grown in confidence and has improved his communication skills.
Until 16 April 2003 the father did not pursue any application for residence. Without the mother’s consent, he took R at separation, but returned him without further difficulty. Since then he has exercised regular contact and paid child support regularly. Whilst his original intent was that the parties share R’s care, in principle he recognised that R should continue to live with his mother. The catalyst of his application for residence was the mother’s indication that she wanted to live with R in Scotland. Since then he says he has become increasingly concerned about the mother’s mental health and believes that in the long term R’s best interests will be met in his primary care. He believes that R is displaying signs of anxiety, which he attributes to the mother’s depression.
In the event that R lives with him, the father would hope to work part time with his current employer. Unless he could limit his work to two days per week, he will resign his position. Whilst at work, R would be cared for at home by his paternal grandmother. When R turns 4 the father plans that he would attend pre-school near his home and later attend a school in the same area. In his care, the father would ensure that R continues swimming classes, but would change the venue. He would change paediatricians, so that R would consult Dr V and have Dr A as his general practitioner.
When asked, the father said that moving to Scotland would be impossible. He says he cannot contemplate living there. He has made no inquiries of relevant government agencies to establish what rights of residence, if any, he may have to live in Scotland.
Relevant law
Residence, contact and relocation orders are parenting orders. The applicable law is well settled. These proceedings are conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
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 s.68F(2). Its sub-sections 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. B and B: Family Law Reform Act 1995 (1997) FLC 92-755.
When the court is considering a residence or contact application that includes a proposed relocation the Full Court of the Family Court in
A v A: Relocation Approach(2000) FLC 93-035 identified the approach which judicial officers should take to the adjudication of these matters. The Full Court held[7]:
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
[7] at paragraph 108 from 87,551 to 87,553
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way, which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'”.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court's obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
i)A court will identify the relevant competing proposals;
ii)For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (supra) is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·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.
iii). On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus:
·in determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b)The importance of a party's right to freedom of movement:
·in determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s.92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests 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 order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c)Matters of weight should be explained:
·in determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."
Determining the child’s best interests
R is a happy and healthy toddler. Both parties agree that he has displayed separation anxiety, something the mother says has diminished as R adapted to his parent’s separation. The father says that presently R can be upset when it is time to leave him and return to the mother, something the mother agrees has occurred on a couple of occasions. The father also feels that R is defensive and says things such as “Sorry, Daddy it’s not my fault, I didn’t mean it,” and “Sorry Daddy, please don’t be mad at me,”[8] in relation to obviously inconsequential incidents. Two-year-old children usually do not have the capacity to distinguish significant from inconsequential incidents. Teaching them discernment is one of the key responsibilities of parenting. The fact that R has been upset as the father describes does not necessarily mean that he is an anxious child or that separation issues are likely to continue. The tenor of the court counsellor’s report is that R’s emotional needs are nurtured and that he is a happy, well cared for toddler. Nowhere in his report or oral testimony did the court counsellor discern signs that R showed any signs of anxiety. I am satisfied that he is not an anxious child. This is an important finding as to a considerable extent the father’s application for residence is reliant upon his claim that the child’s emotional needs are unable to be met in the mother’s care, evidenced significantly by the child’s anxiety.
[8] Paragraph 135
R has apparently achieved his developmental milestones in accordance with his chronological age. At not quite 2 years he has yet to acquire the cognitive skills and personal maturity needed to analyse and comment on his parents competing proposals. I am satisfied that he has no wishes that the court should take into account.
The mother stopped paid employment shortly before R was born. Thereafter the parties adopted a traditional approach to child rearing and appear to have agreed that the mother assume primary responsibility for the care of their son and the father would become the main breadwinner whilst R was a new baby. When R was born the father worked with his current employers. He was able to have one week at home after R and the mother was discharged from hospital. Thereafter, day by day the mother was primarily responsible for R’s care.
As he does now, the father left home at about 7 am and returned at about 6.30 pm. Because of the father’s work commitments, his time with R was limited during the week and it was on weekends that he had the opportunity for greater involvement in R's care. In his affidavit material the father gives an account of his involvement in R’s care prior to separation. His account is generalised and in my opinion does not adequately acknowledge the obvious reality that R’s mother was at home attending to him day in and day out during the working week. The mother does not dispute that the father changed R’s nappy, brought R to her at night so that she could feed him and involved himself in R’s care when he was available. The father claimed that each Friday and Saturday night and most weekends he was effectively exclusively responsible for R’s care. This is because he said the mother was visiting friends, involved in playgroup committee meetings, studying and ice-skating. I prefer the mother’s more specific account of her the frequency of these commitments in preference to the father’s generalised claims. Hence, I accept that the mother did go out to see friends occasionally on weekends and on these occasions R was sometimes left in his father’s care. On other occasions R was with her and on many occasions the parties visited friends together.
It appears that the father started completing a diary of his involvement with R in the months prior to separation. At paragraph 43 of his affidavit he details nine occasions during the last month of the marriage upon which he cared for R on his own. On all but one occasion the duration is about two-three hours and on a number of them R was already in bed asleep when the mother left the house and slept until she returned. On another the father walked around the Rocks while the mother and her friend walked through the Botanic Gardens for about two hours. The mother agrees that she went ice-skating on many Monday evenings with a girlfriend. When ice skating she left home at about 7.30 pm and returned home between 11 or 11.30 pm. I accept her evidence that R was fed, bathed and in bed before she departed. On these occasions the father’s responsibility involved ensuring the child was safe and settled, but for much of the time the child was basically asleep. A similar situation when she went into the Library to study in the evenings or an occasional playgroup meeting. I do not overlook that on 16 March 2002 the father took care of R for the day while the mother went shopping or that he took care of him overnight on 13 July 2002. Exhibit D comprises a bundle of photographs depicting R and the father on outings while R was a baby. These were tendered in support of the father’s claim that he was substantially involved in R’s care from when R was a baby. The father conceded that the mother took the photographs and, obviously was present on these occasions. This simple vignette typifies the somewhat exaggerated claims made by the father as to having exclusive care of R rather than complimenting the mother’s primary care of him.
As a consequence of the mother’s far greater daily care of the child I am satisfied that, as at separation she had been R’s prime care giver and the person to whom he had his strongest attachment. Since separation and during their prior separation R lived with his mother and has had contact to his father. Thus, the mother has been the one truly constant figure in the child’s daily life. She has been intimately involved in his development and has nurtured him to a greater extent than any other person. His relationship with her is essential to his capacity to continue to develop as a happy well-adjusted child. The court counsellor observed the mother and child together after R had been seen with his father and then paternal grandmother. He reports “When the mother came in the paternal grandmother left. The child accepted her enthusiastically but then said that he wanted to “go to daddy’s house”. His mother was able to redirect his interest and the pair settled into an enjoyable and warm and intimate play time. R showed his mother the activities he had been engaged in and he remained with her during the session. The child remained relaxed and the interaction was gentle.”[9] The court must be cautious not to over emphasise observations of brief interactions in an unfamiliar setting. That is because a child or parent may be uncomfortable and also because the usually short period of time does not enable a parent to demonstrate the full range of their parenting skills. Simply put the opportunity to do so does not arise. But these sessions are instructive in terms of a parent’s capacity to respond to the child and a skilled counsellor is able to recognise if the child’s reactions suggest that the parent is behaving in a fashion with which the child is unfamiliar. For example, a child whose parent is usually loud and angry would probably show signs that calm and emotionally responsive interaction is something of a surprise. The child’s interaction with his mother was calm and happy and there is no discordant note that suggests this might somehow be different to the way in which she usually deals with R. So too the manner in which she deflected R’s desire to leave and settled him into play demonstrates obvious parental capacity and a good relationship with the child. This reinforces my satisfaction that from her, more than any other person R derives his sense of security and stability. She is the person who has primarily been responsible for his attendances at the doctor, at playgroup and day care. That he is a well-adjusted child is overwhelmingly the result of the mother’s care and her commitment to his welfare.
[9] Paragraph 20
The court counsellor commented: “If the mother is unable to maintain her mental health because she has no emotional support in Australia then the quality of R’s care will be jeopardised.” It is axiomatic that a parent’s capacity to meet their child’s emotional and psychological needs is maximised if they themselves are settled, secure and happy. This is an important consideration for the child’s long term development and adjustment. Prior to separation the mother’s obvious capacity to care for R was enhanced by a number of factors. These included that she and the child had a home and that the father supported her desire to care for the child. Also that she had a comfortable and kindly relationship with her mother-in-law. The father and his mother gave her opportunities for social engagements beyond the limits of her home and to the extent that they could so, supported her care of R. Having to live in rented premises, struggle financially and also endure continuing isolation from close family and friends will almost certainly wear the mother down emotionally. This is likely to undermine her capacity to meet R’s emotional needs to the extent that she is capable of doing.
I am satisfied that as at the date of separation while R was well aware that his father was an important and regular feature in his life, the relationship did not have the depth or quality of the relationship that R enjoyed with his mother. Since separation the father has participated in a graduated program for contact, increasing in frequency and duration. Although he took R at separation, with his mother’s intervention he realised that R needed to return to his mother. On 15 July 2002 the parties attended counselling. Later in the day the mother told the father that she wanted his contact with R to be supervised by either his mother or the father’s Aunty. She appears to have been cautious that the father might take R again and was concerned about the father’s use of cannabis. The father responded appropriately and tolerated the mother’s restrictions for a period. He appears to have recognised that the parties were going through a difficult period and that the mother particularly needed time to accustom herself to the ramifications of his decision to end the marriage. Contact took place on one day most weekends, supervised by either the paternal grandmother of the father’s aunty. On one occasion the father asked the mother to agree that mutual friends supervise but she did not agree.
Upon his arrival in Australia on 19 August 2002 the wife’s father made arrangements to meet the father so that they could discuss separation issues. The parties were unable to communicate effectively and both were keen to try and resolve issues without court intervention. For his part the mother’s father was also keen to explore whether there were prospects that the parties may reconcile. A desire held by his daughter. The meeting was arranged to take place at the father’s home. The father and the mother’s father give different accounts of the father’s behaviour at the meeting. The mother’s father was an impressive witness and gave a clear and compelling account of the way that the father behaved towards him and I accept his evidence in preference to the father’s. I had no doubt that the father did use bad language towards him and that he attempted to intimidate his former father in law by jabbing his finger at him and raising his voice. At the meeting the father gave his father in law a list of “Issues that need to be resolved”[10]. These include contact and asset distribution. There is no suggestion from the father that R should live with him and I infer that he accepted that the child was still well cared by the mother and that R’s best interests were served living with her.
[10] Annexure B1
Although this was a long and difficult meeting significant progress was achieved. Hopeful that a further meeting might bear fruit a second meeting was arranged. In preparation for this second meeting the mother’s father prepared a letter, which summarised the points that were agreed and identified outstanding issues.[11] The parties agreed that daytime access should increase by two hours (10.30am until 4pm) and that overnight contact should start. The mother was concerned that R and his father should have more contact than fortnightly and proposed contact each weekend. Although the mother still wanted supervised contact, her father felt that this was unreasonable and worked to broker unsupervised contact sooner than the three months she wanted. Although the father appeared to agree in principle that the mother and child could travel to Scotland for a period, the dates were not agreed. He had taken R’s passport months prior to separation and persistently refused to return it to the mother. He says because he was concerned that she would flee to Scotland. There was nothing said or done by the mother that made this behaviour reasonable. Her father also reinforced that this issue needed to be resolved and in effect gave his word that R would return. Unfortunately communication deteriorated and the second meeting did not take place.
[11] Exhibit H
I am unsure precisely when unsupervised contact commenced, but the evidence appears to indicate that it started before the mother’s father returned to Scotland. If not then, shortly afterwards. It was suspended while R was in Scotland and resumed in accordance with the interim orders upon his return. Extra contact beyond that provided for in the court orders has occurred on a number of occasions including 21-22 February 2003, 4-6 April 2003, 7-9 June 2003 and prospectively while the father’s brother is visiting. Presently the longest period that R has been away from his mother is two nights consecutively. That is also the longest period of time that R has been exclusively in the care of his father. No doubt this contact has increased the intensity of the father’s relationship with R and has given their relationship a more solid basis than it had only twelve months ago. The court counsellor reported: “When the child and his father met in the waiting area R spontaneously hugs his father. In the observation room, R moved around and investigated play options. During play the father remained on the floor with his son. The pair continually conversed with laughter and positive interaction observed. The father was able to reinforce and encourage. The child began to focus on the sand tray and then white board with his father able to promote imaginative play.”[12] This led the court counsellor to conclude that R is attached to his father, and although not stated explicitly, that they enjoy a happy relationship. This is consistent with the descriptions of their interaction given by his mother, TB and MB. Frequent contact coupled with the father’s active interest in his son has driven this outcome. Equally important is the mother’s commitment to contact and positive reinforcement to R of his father’s importance in his life. Because her influence with R is strong, if the mother wanted to undermine the father’s efforts at relationship building she may well have succeeded. I accept the court counsellor’s evidence that the fact that the child’s relationship with his father is healthy and happy is attributable to their joint efforts. The fact of the mother’s effort weighs against the father’s application for residence and in favour of her relocation application.
[12] Paragraph 18 Family Report
Compared to the mother's relationship, however, the father’s relationship does not have the same centrality for the child. In making this finding I do not overlook the court counsellor’s opinion that “R is attached to his father and appears to rely on both parents for nurturing”.[13] It is a question of degree to which the child is reliant upon each of his parents. The court counsellor did not conclude that R’s primary attachment was with his father. R is accustomed to enjoying contact with his father for longer periods than the observation session with the court counsellor. While the court counsellor’s observations are consistent with this type of contact they do not demonstrate that the child would adapt to a change in residence without real grief at long term separation from his mother. Based upon the child’s history of primary care by his mother and the court counsellor’s observations I am satisfied that the mother’s relationship with R is the most important factor that contributes to the child’s’ happiness and stability. In spite of the increased time the father now has with the child, she remains the child’s primary care giver. Any outcome that undermined that relationship or the child’s capacity to have his mother’s consistent nurturing is inconsistent with R’s short and long term welfare.
[13] Paragraph 23 Family Report
The most significant advantage of the father’s proposals are that he would have free and easy contact to R and consequently R would have the opportunity for regular and meaningful involvement from both his parents in his daily life. From the father’s point of view, whether he has an order for residence or regular contact predicated on the child residing in Australia he would have a greater opportunity to be meaningfully involved in R’s care. Potentially their relationship would continue to develop and become even stronger than it is now. The advantage to R and father of proximity of the parties’ homes is obvious. He could have more regular contact than living in different hemispheres makes possible. Of course, this outcome could be achieved if the father moved to Scotland. I do not accept that it is impossible for the father to move to Scotland. There is no evidence that he is able to do so, but before I could be satisfied that he was unable to migrate to Scotland the parties would have needed to call evidence about the issue. The father appeared surprised that he was required to answer questions about the possibility that he might move to Scotland. With respect to him, his dilemma is no less confronting than that which the mother faces. I accept his evidence that he will not move to live in Scotland. The tenor of his evidence was that even if he could migrate he could not contemplate changing employment, where he lives and losing the support he derives from family and friends in order to live in a country where this was not available to him.
At the father’s request the court counsellor also met his mother and observed her with R. Both parties agree with the court counsellor that R has a good relationship with his paternal grandmother. The court counsellor describes a comfortable scene in the playroom during which R and his grandmother played and chatted. Prior to separation the father’s mother tried to establish a close relationship with the mother and clearly recognised that the mother needed emotional support from her, which support she willingly gave. They went shopping together and after R’s birth she met the mother for coffee, babysat R when asked and appears to have offered guidance to the mother as she was learning to be a new parent. By the time the parties had separated R had a comfortable relationship with his paternal grandmother something that is clearly acknowledged by the mother’s preference that she supervise contact. Since contact has become un-supervised it has predominantly taken place at her home and although not under her supervision she has frequent contact with R during his father’s contact. Of all his grandparents R has his strongest relationship with his paternal grandmother.
R’s relationship with his maternal grandparents is pleasant and comfortable, not yet strong. They have had less involvement with him but sufficient contact that he recognises them and is able to be left in their care for short periods without distress. Both impressed as focused on his welfare and capable of establishing an enriching and loving relationship with him, given the chance to do so. The mother’s application will give these relationships the opportunity to grow while at the same time lessen the intensity of the child’s relationship with his paternal grandmother at least for some years. Because R has a well established relationship with his paternal grandmother, a relationship that means more to him than his relationship with his maternal grandparents I give greater weight to the impact on this relationship of the competing proposals than I give to the maternal grandparental relationships. The court counsellors evidence that these coming years are important years for any child’s capacity to develop and maintain relationships must be carefully considered. The import of this evidence is that at R’s age relationship building is maximised if a child has regular contact with the people concerned. Where contact is less frequent, relationships will not be as strong and previously strong relationships will diminish. I accept that this is so.
As with most issues in relocation cases it is a question of balancing seemingly irreconcilable positions. The paternal grandmother impressed me as a strong and capable person who is attuned to R’s moods and general needs. R will miss his regular contact with her, and she will miss him deeply. However provided contact takes place annually for block periods it is likely that she and R will be able to settle back into a comfortable relationship. I do not accept that their relationship would be sacrificed by relocation to Scotland. The paternal grandmother will bring her energy and capacity into each contact occasion and is highly likely to be able to reinvigorate her relationship with R each time contact takes place. In the particular circumstances of this case while the grandparent’s relationships are significant these relationships are not as critical as the child’s relationships with his parents. I give greater weight to the significance for the child’s relationships with his parents than I do with his grandparents, friends and other relatives. At his age friendships do not have the same significance, in terms of longevity and emotional attachment, that they do for older children. Whether established at pre-school, occasional contact with cousins, neighbours friends or children from playgroup these friendships are not so significant that they weigh in favour of one proposal as compared to any other proposals.
The father’s counsel emphasised that the mother’s proposals probably involved R living in a home with his uncle, a person he barely knows. His Uncle is not a stranger to R and is a person who has the mother’s trust and affection. Provided she is living with him, R is likely to quickly adapt to his presence in the flat and establish the comfortable relationship that the mother says will develop. Because the mother so obviously supports this relationship and there is nothing in the evidence that suggests that there is something inherently worrying about the uncle, sharing the flat will in all probability simply enhance their relationship and is unlikely to have any adverse impact on the child’s welfare.
A great deal of the hearing focussed on matters concerning the mother’s mental health. It is important to emphasise that the mother need not demonstrate compelling reasons for her decision to reside in Scotland. I say this in the sense that she does not carry an onus to do so. However understanding a parent’s reason for substantially changing a child’s living arrangements can be instructive in terms of that persons attitude to the responsibilities of parenting. The emphasis on the mother’s health was relevant to two pivotal issues. Firstly whether the mother’s mental health impairs her capacity to care for R to such an extent that he should change residence. Secondly whether cognisant of her susceptibility to depression the mother’s decision to relocate to Scotland, with its ramifications for the child demonstrates sound rather than erratic parenting.
The court received a series of reports from the mother’s treating doctors[14] and a medico-legal report prepared by Dr S. The composite effect of the reports was that the court had available diagnostic material and relevant history from all of the mother’s treating doctors, dating from March 1992. Symptoms that the mother may be suffering a depressive illness became apparent in late 1991. Unaware that she was suffering an illness, the mother slowly slid into depression and returned home, a pattern of seeking help from primarily her mother that later became apparent. Her symptoms included social withdrawal, tearyness, forgetfulness, inability to attend classes, night time insomnia and a general sense of not coping. Although not suicidal the mother explained that were it not for her parents’ support she fears her mental health would have been very much worse. I accept her evidence that although at times she found herself in conflict with her parents, mostly her father, this does not lessen their centrality to her capacity to cope with this illness. Medical treatment and family support contributed to a lessening of the mother’s symptoms and on her doctor’s advice she stopped taking antidepressant in 1992. Once again her symptoms returned and she resumed antidepressant medication and psychotherapy in early 1993.
[14] Exhibits F and G
The mother’s treating doctor in Australia is Dr N. On 17 November 2000 he reported “I have seen her 4 times for severe stress resulting from 2 break-ins and subsequent problems with the realtor. As she is pregnant, she wasn’t given medications for her stress and reactive depression.”[15]
[15] ExhibitG
Her third bout of depression developed when R was born. Dr N diagnosed that she suffered postnatal depression and treated her with medication and counselling. She was referred to a community health service and established a therapeutic relationship with her counsellor. With medication and counselling her mood improved and she was able to stop taking Zoloft in mid 2002. Again she felt unwell and in June 2002 resumed taking Avanza. She attended counselling regularly until her counsellor left the centre. Aware that she ought to have made finding another counsellor a priority the mother explained that the demands of this hearing, being overseas for a time and “putting her own needs last” meant that she had not yet done so. The father’s counsel emphasised the mother’s non-attendance at counselling and submitted that the mother had not taken all appropriate steps to manage her mental health using resources available in Australia. I accept that the mother ought to have sought its continuance. Failing to do so is partly symptomatic of her illness but not doing so while dealing with these proceedings is understandable. I am satisfied that the mother is attuned to circumstances that undermine her mental health and make her susceptible to depression. These primary issues are her homesickness, isolation from her family and dealing with separation issues. While counselling may help the later, the mother’s evidence that “a lot of my emotional state is homesickness and nothing can fix that” is unlikely to improve through counselling. From her perspective professional relationships are important but insufficient to meet her emotional needs long term. I accept that this is true.
Dr S conferred with the mother on 24 July 2003. The purpose of her consultation was to review the mother’s mental health having regard as well to the medical reports identified at page 1 of her report. Unfortunately Dr N was away and unable to provide a report. Once Dr S had reviewed the mother she provided an opinion as to the mother’s current mental health, the ramifications for the mother and child of the mother’s depressive illness and recommendations for future management. Dr S reported, “As she [the mother] has suffered at least three episodes of depression, she is vulnerable to suffer a relapse in the future. The risk of relapse is greater if she has little family and social support.” Although much was made of the mother’s friendships established through playgroup and an Uniting Church community welfare agency, I accept the mother’s evidence that these friendships do not offer her the level of emotional support and practical assistance that her family in Scotland can. Given that she has been in Australia for eight years, it seems to me that if the mother was able to establish strong and emotionally rewarding friendships she would have done so by now. That she does not have this type of established friendships possibly reflects her shy nature and now he need to return to her family.
The mother’s father commented that the mother and her mother are very close and that their daughter had always looked primarily to her mother for support. On both occasions that the mother became ill whilst she lived in Scotland she returned home to her parents. Both the maternal grandmother and the mother impressed me as having developed a good understanding of the nature of the mother’s depressive illness, her symptoms and management of them. The father’s counsel cross-examined the mother’s mother at length about her lack of awareness that her daughter was ill whilst at university and lack of understanding of the ramifications of her illness. I accept the maternal grandmother’s evidence that whilst she was aware that the mother was not coping with university and that there were signs she was unhappy it took time to appreciate the significance of them. As this was the onset of the mother’s first depressive episode it took time, and doctor’s advice, before the maternal grandmother, and others, understood that the mother’s symptoms were more serious than an inability to settle into university life. Since then, her father and mother have been attuned to their daughter’s mental health and her mother in particular is sensitive to signs that she may be depressed. The mother’s parent’s concern for their daughter is reflected in the great efforts they have made to maintain regular contact with her. In addition to telephone calls, they have provided the funds for the mother and her family to visit Scotland and they have visited Australia. Obviously, these trips served a dual purpose, but that does not detract from the mother’s evidence that she needed this contact with her family in order to cope with a strong sense of isolation and separation from her parents and life in Scotland. However her mother is ill and can no longer manage regular trips to Australia. The mother’s evidence that she needs her parent’s close and intimate support was compelling. Although telephone calls can be made from Australia the mother can only have her parents effective support, particularly her mother’s nurture if she lives within easy travelling distance to them. I have no doubt that if the mother was in any difficulty, although 3 hours away her mother would stop everything and immediately attend her daughter. Annual trips to Scotland do not address the mother’s need for this level of intimate family nurture.
The mother was cross-examined at length about compliance with recommended treatment, symptomatology and ramifications for her capacity to parent R. The tenor of the mother’s evidence is that she has put every ounce of energy into being the best parent she can be. By ensuring that R’s needs are met she has little emotional energy left for herself. Essentially her evidence is that without adequate support she is highly anxious that she will suffer recurrent bouts of depression and that eventually neither she nor R will manage. The mother impressed me as a responsible and caring parent whose identity is intrinsically linked with her role as R’s mother. If her depressive illness resulted in an inability to adequately parent R there is a real risk that her self esteem will be compromised which in turn may impact on her capacity to cope without adequate family support.
The paternal grandmother provided the mother with important emotional support, particularly after R’s birth. One of the unfortunate outcomes of family break ups can be that well-meaning grandparents are casualties of the marriage breakdown. After separation the father returned to his mother’s home and, whether rightly or wrongly, the mother believes she is strongly aligned with her son and un-supportive of her. Not long after separation, the mother accused his mother of undermining her relationship with the father and since then the mother and the paternal grandmother previously good relationship has ended. Such emotional support previously available to the mother from her husband has also ended. They are unable to communicate and the mother perceives that the father criticises her parenting and is generally unsupportive. Regrettably, these proceedings will have enhanced rather than lessened that belief. I agree that the father is no longer in a position to provide the mother with emotional support. Their relationship is now so poor that they are unable to speak and address matters relating to R in writing using a communication book. In the months prior to separation the mother established a friendship with Ms Q. Initially, the father appears to have been pleased that the mother had this friend and recognised that this gave the mother an outlet beyond home and study. However, he decided that this friendship created difficulties in the parties’ marriage and asked the mother’s friend, in effect, to spend less time with her. The friend agreed with the father’s request. At a time when the mother was depressed, taking antidepressant medication and from the father’s perspective, the marriage was in trouble it would have been a more sensitive response to the mother’s health to encourage this friendship. This simple incident demonstrates that the father while the father was probably motivated to try and help the mother he was unaware to give her the support she really needed.
The mother’s depression is consistently diagnosed as “mild”. Does this mean that it should not be taken seriously? Or that its consequences are not significant? Mental illnesses range in severity, some crippling while others can have little impact to the way a person lives their life. As far as depression is concerned it is unsustainable that a court would only take the issue seriously if a person was so depressed that they were entirely unable to function or suicidal. The issue is one of risk and hence degree. There is a real likelihood that unless the mother returns home to Scotland that she will suffer further depressive episodes. Not to the extent that she is suicidal but so that her capacity to meet R’s emotional needs on a continuing basis is jeopardised unless she almost entirely ignores her own emotional needs in order to meet his. The totality of the evidence persuades me that such an outcome will wear her down and the quality of her life will be substantially diminished. R’s capacity to rely on his mother’s emotional nurture to the extent that he has enjoyed it to date will also be put at considerable risk. In Scotland I am satisfied that the mother will be able to receive appropriate treatment. In the event that she does not pursue treatment and help with the desired vigour her parents will step in and enable this to happen.
I have carefully considered whether the risks inherent in a reduction in the mother’s capacity to meet R’s emotional needs should she remain in Australia support a change in his residence. In my opinion they do not. The critical factor is that I am satisfied that R is more strongly attached to the mother than any other person. In circumstances where with family and medical support I am satisfied that these needs will continue to be met I am not satisfied that this relationship which is fundamentally important to the child’s welfare should be substantially disrupted. The loss to the child and its consequences emotionally are simply too great.
What is the impact of the mother taking the child to Scotland on the father’s relationship with him? Quite properly this was the focus of considerable evidence. When examining this issue I do so from the context of my strong satisfaction that the mother will act to ensure that the child has a continuing relationship with his father. This is not a case of ‘out of sight out of mind.” Since separation and without court orders the mother facilitated regular contact. She has given more contact than the November 2002 orders provided. Not because she anticipated that this would later be scrutinised in these proceedings but because she genuinely believes that R needs and is entitled to a good relationship with his father. Her initial cautious approach was motivated by a number of factors identified earlier in these reasons.
I accept her evidence that during their relationship the father used marijuana to the extent she describes in her affidavit. I also accept that the father no longer uses it and that this is properly no longer an issue. Once she accepted that unsupervised contact was appropriate the mother has ensured that it has occurred. There have been occasional misunderstandings about contact, for example whether a weekend was day only or overnight contact and she has not always agreed with the father’s requests to change contact arrangements. None of this undermines my comfortable satisfaction that wherever R is living she will comply with the court’s orders for contact and positively reinforce with R his father’s primacy. This means that when contact occurs, R will be prepared with happy anticipation to see his father and grandmother and during absences memories recalled, letters read and telephone contact ensured.
In spite of this positive reinforcement R’s relationship will lessen, at least during the coming years. R and his father will be deprived of the chance to immerse themselves in each other’s lives with ease and the enjoyment that comes from weekly contact will be lost. The father will feel this deeply, an outcome that saddens me for him. R too will strongly feel this loss for a time, but under his mother’s careful guidance will adapt. There are similar implications in the mother’s proposed relocation for the child’s relationship with his father as with his paternal grandmother. However an important difference is that R is now used to nurture from both parents. As I did with her I have carefully considered whether because of R’s age and stage of development his relationship with his father will be irretrievably damaged. To the extent that R will no longer have a strong sense of who his father is and the opportunity to enjoy a meaningful relationship with him, I am not persuaded that this is a likely outcome if relocation is ordered. The father impressed me as being committed to R’s welfare and determined to be as good a father as he possibly can be. In whatever circumstances. Long gaps between face to face contact will require the father to draw on different skills in order to maintain his relationship. He writes lovely letters to R[16] which reveal a sophisticated capacity to communicate at age appropriate levels in writing with R. R’s mother reads these letters to him and will continue to do so. Although block periods of contact will be initially disconcerting for R, in terms of separation from his mother, this is necessary in order to give father and child the chance to immerse themselves in each others lives with an intensity that will make the longer periods between contact bearable. Importantly of a duration that means R will feel enriched by his father’s love for him and have memories that he can recall and enjoy until they see each other again.
I am strongly satisfied that both parent’s are genuinely motivated to ensure that R’s relationship with his father will endure and that it will continue so that R has a strong sense that he is loved by his father and enjoy a still meaningful relationship with him.
[16] Exhibit O
The only viable means of implementing orders for contact if the mother and child live in Scotland is by air travel. The average return adult airfare is about $2,000 and child’s fare is about $1,600. There are seasonal fluctuations, which may slightly increase or reduce these costs. The return journey from Scotland involves flying Inverness – Gatwick, changing to Heathrow for Sydney. There is no suggestion by either party that R could manage this travel unaccompanied for many years. I accept the mother’s evidence that she will travel with him to Australia, remain in Australia and then accompany him back to Scotland annually. The cost of implementing contact from Scotland is substantial. The mother agrees that she will pay the costs of this annual contact visit to Australia. She makes this concession aware that personally she is unlikely to have the funds to honour that commitment until she graduates from university and has obtained employment. On her behalf, both of her parents undertook to the father that they will meet these costs, at least until the maternal grandfather retires. He anticipates retiring in about seven or eight years. The father’s counsel submitted that the court did not have sufficient evidence that would enable it to accept that the maternal grandparents have the financial capacity to meet this annual cost. However, the father concedes in his affidavit, “To the best of my knowledge both parents are financially well establish and possess four separate properties, one in which the applicant’s parents dwell in at Inverness along with the other three properties used as investment properties”.[17] Although I do not have precise details about the mother’s parents income nor their net worth, both are obviously well established professionals living in a substantial home. Throughout the marriage they have provided significant cash assistance to the parties, by way of gifts, travel costs and in mid 2000 gave them $30,000 towards a deposit for their home. In all of the circumstances I am satisfied that they have the financial capacity to meet the costs of the mother and child annual trip to Australia for contact as well as to provide accommodation for the father should he exercise contact in Scotland. One of the issues is when contact in Australia should commence, that is at Sydney airport immediately upon the child’s arrival or later. Without significant stopovers the trip from Inverness will be about thirty hours. With time differences, the journey will be tiring for R and for the next few years perhaps a little disconcerting. Upon his arrival in Australia R will benefit from being able to settle overnight with a long sleep and start contact fresh, able to enjoy the excitement of seeing his father and grandmother. When he is older and more used to the journey contact should commence upon his arrival in Australia. It would be unreasonable, even if he is tired, not to acknowledge his excitement at seeing his father by having his father able to greet him at the airport and contact start immediately. Because of his age the initial periods of contact will be broken up so that at the seventh and fourteenth night R returns to his mother overnight. This will still give the father the opportunity to travel within the region with R, but address R’s need to see his mother and be reassured that he is returning to her.
[17] Paragraph 127
The father has the financial capacity to visit Scotland at least annually. It is highly desirable that he does so and I am satisfied that he will travel to Scotland to see R probably annually. Because R will be fresh the father’s contact will start at Edinburgh or Inverness airport, the venue determined by the father. There is no good reason why the father’s contact in Scotland should be limited geographically to Edinburgh-Inverness. If the father wishes to explore the United Kingdom with R, he can do so. Before he could take R beyond the United Kingdom, he will need to discuss this proposal with the mother and obtain her consent. By the time R has started school, her consent ought to be freely given. The orders provide for contact in Scotland more frequently than once per year. I make this provision so that should he wish to take it and be in a position to do so, the father’s entitlement is established without the need for further litigation. However, it is unlikely that the father will be in the position to afford contact this frequently unless there is a significant change in his financial circumstances. Presently, there is no evidence to suggest that there will be significant change in his financial circumstances. Hence, although he has the right for additional contact, it is unlikely that he will take it.
The mother’s proposals provide that on occasion there could be gaps of eighteen months between trips to Australia. R needs a guarantee that he will have block contact with his father annually. Provided he nominates times that coincide with university vacation and, after R starts school, also school holidays, the timing of the trips to Australia shall be nominated by the father. He will need to pre-arrange holidays with his employer and in those circumstances the timing for the trips to Australia should be determined to suit his availability. There may be occasions when the father is not available because of employment for the entirety of the proposed contact period in Australia. Provided R is cared for during the day by his paternal grandmother the contact will be enriching and it would be inappropriate to order that the father ensure that he is available each moment of contact.
There are no problems with practical difficulties or expenses of contact inherent in the father’s application for residence or his alternate proposal that the mother be restrained from removing R to Scotland. These proposals are both predicated upon the parties living in Sydney and in close proximity to each other. In terms of this factor, the father’s proposals are more advantageous because they would enable regular and easy contact without the expense associated with international travel. However, this is not a case where the total cost of international travel is prohibitive or unable to be met and therefore it is highly unlikely that ordered contact may fail to happen. With her family’s backing the mother can afford the costs of travel until her father’s retirement and will then ensure that she meets the costs for travel from her own resources. The practical difficulties and expense of contact is less significant than the need to preserve and promote the child’s primary emotional attachment and continued care by the mother.
The husband’s counsel challenged the mother’s evidence that she could successfully complete university in Scotland and obtain professional qualifications. Essentially, it was submitted that as her earlier attempts at tertiary education had failed, she could not expect to succeed this time. However, the circumstances of her early failure and proposal for study commencing late 2004 are very different. In her late teens, the mother was depressed and uncertain about her nominated field of study. Since then, she has realised that she has a particular interest in her chosen field of study, has successfully completed two open learning units and has significantly greater personal maturity so that her decision is better informed. Studying full time with the daily responsibility for a child is a significant undertaking. The mother’s plans are not spur of the moment, ill considered notions. They are well thought through. She does not embark on this venture isolated from key supports. Although they do not live in the same town, the parents are available to compliment her care of R, should she need it, and she can rely on her cousins and while he is in Edinburgh her brother for practical assistance. There is a possibility that the mother may decide full time university study is too demanding whilst R is a toddler. In those circumstances she may pursue employment and again defer study. I think this outcome highly unlikely, but should it occur, the mother is well positioned and motivated to pursue employment so that contact in Australia is ensured.
The mother made allegations of family violence. She conceded that the father had never been physically violent, but said that at times she felt threatened by his aggressive language to her. The father presented as articulate and confident in his capacity to argue his own cause. I am satisfied that as compared to the mother’s quiet and shy persona, there were times when she would have felt that he has been verbally aggressive and at times formidable. However, I am not satisfied that he has been abusive. Context in this regard is important. The relevant context is that towards the end of a failing marriage, these parties were unable to agree on many issues. This is probably why their marriage failed. In turn this led to arguments between them. They are regretful incidents but do not provide any basis for concern about family violence.
In Scotland the mother will have the financial and personal support that she needs to maximise her capacity to continue to provide R with the high quality support and the nurturing he has received since his birth. This will maximise not only the quality of his relationship with his mother, but also his capacity to establish and maintain strong relationships with his father and other relatives. That is because the child will have the security inherent in his strong relationship with his mother, offered in the environment that enables her to most effectively parent the child. This is a weighty matter that supports the mother’s application to live in Scotland with the child. I am satisfied that the child’s short and long term interests are intrinsically linked with his mother’s capacity to provide his day to day care. Ordering an outcome that significantly increases the risk that she will suffer recurrent bouts of depression is inconsistent with R’s best interests. I am comfortably satisfied that the proposal that best ensures her continued capacity to adequately meet R’s emotional and physical needs is contained in her proposal to relocate to Scotland.
The mother wishes to leave for Scotland in the very near future. If relocation were permitted the father wanted R’s departure delayed until shortly before the start of university. The balance is between giving the child and his father as long a period of time together as possible and enabling the mother to have the family supports she needs. Leaving their departure too long may put her under more stress than her mental health can cope with. I have already made findings about the parties poor relationship. There were incidents that revealed their inability to communicate is stressful for both parents. The father now seems to have adapted to communication via solicitors and in writing. The other finds this stressful because the nuances of issues cannot be teased out and compromised. In the period immediately after separation the father’s attempts to communicate with the mother were rebuffed, a situation he felt was unsatisfactory and confounding. She is now in the same situation. Trying to obtain his consent to travel to Scotland late last year was trying and unnecessarily complicated.
I do not accept the father’s evidence that he was merely waiting for an itinerary. He was well aware that the mother needed his timely consent if she was to depart in time for Christmas. I accept the mother’s counsel’s submission that he consent only in the face of a strong application the hearing for which was about to commence. His approach to communication with the mother and conceding reasonable propositions, for example contact while her parents were in Australia for this hearing and the “Bundanoon” weekend reinforce that the parties method of dealing with each other has become a stressor for the mother.
I will order that the father’s contact increase pending R’s departure but the increase must be balanced with his capacity to spend time away from the mother. If there are special occasions, work Christmas parties and the like then I expect the mother to agree to this additional contact. Thereafter contact periods must be long enough to enable father and child to spend meaningful time together. I do not accept that the periods proposed by the mother are long enough and order larger periods of contact than she would prefer. While inconvenient to her, this inconvenience must give way to R’s need to spend a proper amount of time with his father.
Balancing all these competing concerns I am satisfied that the mother should depart Australia after Easter. That period is not so long that her health is seriously and irretrievably compromised and gives the father and child the chance for further time together. This timing also enables the mother to re-establish herself with R before university starts. Importantly she will be able to settle R into day care or preschool and his new home. Her active involvement, without the distractions of university will make these changes much easier for him to handle.
The father will be deeply distressed by the outcome of these proceedings. He wants to be a good parent and is capable of being so. However these parents organised R’s life so that prior to separation he established his primary attachment to his mother, an attachment that has endured and strengthened since separation. Had the parties decided that the mother would work and the father take on the child’s daily care subsequent to his birth the result of this hearing may have been different. That is because the father would have become R’s primary attachment figure and the person best able to meet his emotional needs. Because R’s security, general adjustment and emotional well being is so strongly connected to the mother his needs require an order that he live with her in Scotland. His relationship with father will be effected but he will still enjoy a good relationship with him and have a clear sense of his father. If contact occurs twice annually the ramifications for their relationship are less than if it occurs once a year. However even if contact in Australia only happens once a year, the father and his mother will invest so much of themselves in it that the child’s relationship with his father will not be lost.
For these reasons I am satisfied that the orders identified at the start of this judgment are in the child’s best interests.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 13 November 2003
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