FLYNN & JEFFCOTT
[2011] FMCAfam 1239
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLYNN & JEFFCOTT | [2011] FMCAfam 1239 |
| FAMILY LAW – Children – relocation – where the mother seeks to relocate from the [S] area of New South Wales to the Newcastle area. FAMILY LAW – Children – parenting orders – best interests of the child – parental responsibility – equal shared parental responsibility – equal time with each parent – substantial and significant time – child aged two years and nine months – whether father should be authorised to arrange for child to be immunised against childhood diseases. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CB, 60CC, 61DA, 65AA, 65D, 65DAA, 62G |
| A v A: Relocation Approach [2000] FamCA 751; (2000) 26 Fam LR 382; FLC 93-035 AMS v AIF; AIF v AMS (1999) 199 CLR 160; 24 Fam LR 756; FLC 92-582 Goode v Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 Mallahan & Mallahan [2010] FamCA 631 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424 U v U (2002) 211 CLR 238; 29 Fam LR 74; FLC 93-112 |
| Applicant: | MR FLYNN |
| Respondent: | MS JEFFCOTT |
| File Number: | SYC 6945 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 23 – 24 June 2011 |
| Date of Last Submission: | 24 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Messner |
| Solicitors for the Applicant: | Abrams Turner Whelan |
| Counsel for the Respondent: | Ms Humphreys |
| Solicitors for the Respondent: | Rebecca Bailey & Associates |
ORDERS
All previous parenting Orders are discharged.
The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child [X] born [in] 2009.
The Applicant father is to have sole parental responsibility for all day to day matters involving the child when the child is in his care according to these Orders and the mother is to have sole parental responsibility for all day to day matters involving the child when the child is in her care according to these orders.
The child [X] born [in] 2009 is to live with the Respondent mother.
The child [X] is to spend time with the father in a four weekly cycle as follows:
(a)In Week 1, from 4:30 pm on Wednesday until 4:30 pm on Thursday;
(b)In Week 2, from 4:30 pm on Friday until 9:00 am on Sunday;
(c)In Week 3, from 9:00 am on Wednesday until 9:00 am on Friday; and
(d)In Week 4, from 9:00 am on Friday until 9:00 am on Monday.
In addition to the times set out in Order (5) above, the child [X] is to spend time with the father on the following days:
(a)From 9:00 am to 4:00 pm on Father’s Day in each year;
(b)For a period of four (4) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be spending time with the father according to Order (5) above;
(c)From 6:00 pm on Christmas Eve until 12 noon on Christmas Day in 2012 and all even numbered years thereafter and from 12 noon on Christmas day until 6:00 pm on Boxing Day in 2011 and all odd numbered years thereafter; and
(d)From and after the time the child commences at school for half of each of the Autumn, Winter and Spring school holidays being the first half in all odd numbered years and the second half in all even numbered years and for a period of three (3) weeks commencing on 2 January in each year the first of such years being the year after the child first commences school.
Notwithstanding the provisions of Orders (5) and (6) above, the child is to live with the mother as follows:
(a)From 9:00 am to 4:00 pm on Mother’s Day in each year;
(b)For a period of four (4) hours on the child’s birthday in each year if that day should fall on a day when the child would not otherwise be living with the mother according to these Orders;
(c)From 6:00 pm on Christmas Eve until 12 noon on Christmas Day in 2011 and all odd numbered years thereafter and from 12 noon on Christmas Day until 6:00 pm on Boxing Day in 2012 and all even numbered years thereafter.
For the purpose of giving effect to Orders (5), (6) and (7) the father is to collect the child [X] from the mother’s residence at the commencement of his time with the child and the mother is to collect the child from school or from the father’s residence as the case may be at the conclusion of the father’s time with the child.
The parties shall promptly keep each other informed about all medical emergencies affecting the child, all specialist medical appointments, all hospital treatment involving the child, the name and address of all treating doctors and all prescribed medication.
The parties shall keep each other informed of any changes to their residential address or telephone numbers within forty-eight (48) hours of any such change occurring.
Upon the child commencing school, the parties shall each be entitled to receive at their own expense copies of all school reports, newsletters, information about school photographs and all other documents normally received by parents of children attending that school.
The Respondent mother is restrained from relocating the residence of the child [X] born [in] 2009 to a place more than fifty (50) kilometres outside the town of [S] on any date prior to [omitted] 2013.
IT IS NOTED that publication of this judgment under the pseudonym Flynn & Jeffcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6945 of 2009
| MR FLYNN |
Applicant
And
| MS JEFFCOTT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of a little boy called [X] for the child to spend equal time with each parent until he commences school and to restrain the mother from relocating the child’s residence out of the [S] area.
The mother opposes these orders, seeking that the child should initially spend alternate weekends and one additional weekend with the father in each two month period. She also wishes to relocate the child’s residence out of [S] to the greater Newcastle area.
Issues
The father, in his Case Outline Document, sees the following issues between the parties:
· The mother’s proposed relocation with [X] to Newcastle
· The effect upon [X]’s relationship with each of his parents if the mother relocates to Newcastle
· The effect upon [X] of the father’s (proposed) week about parenting arrangement
· The practicability of the orders as proposed by the mother
· [X]’s immunisations
The mother has not set out any issues other than those perceived by the father.
Orders Sought
Each party seeks a lengthy and comprehensive suite of orders.
The Orders sought by the father are set out in a Minute of Orders filed in Court on the second day of the hearing. In summary, they are as follows:
a)The parties are to have equal shared parental responsibility for the child.
b)The father is authorised to attend upon a general practitioner with [X] for the purposes of [X] receiving all childhood immunisations that a child of [X]’s age would ordinarily receive and the father is authorised to take [X] to a general practitioner for the purpose of receiving further vaccinations without requiring the consent of the mother.
c)That the mother is restrained from removing the residence of the child [X] to more than 50 kilometres from [S][1].
[1] Later modified to a restraint on relocating the child’s residence out of [S]
d)That from the date of these Orders until such time as the father commences his shift work roster at [R], [X] lives with the mother and father in accordance with the interim Orders of 16 September 2010.
e)That from such time as the father commences his shift work roster at [R], and continuing until such time as [X] commences at school, [X] lives with the mother and father on a four-weekly basis as follows:
i)with the father at the following times
Week 1: from 4:30 pm Wednesday to 4:30 pm Thursday
Week 2: from 4:30 pm Friday to 9:00 am Sunday
Week 3: from 9:00 am Wednesday to 9:00 am Friday
Week 4: from 9:00 am Friday to 9:00 am Monday
ii)with the mother at all other times, subject to Order 7 (which provides for arrangements for Father’s Day, Mother’s Day, the child’s birthday and the Christmas period).
f)Upon the child commencing school full-time he would live with the mother and father equally as follows:
i)During school term time, on a week about basis, with changeover to occur at 4:00 pm Sunday unless otherwise agreed; and
ii)For one half of each school holiday period.
g)In addition, the child would spend special days with each parent as follows:
i)On Father’s Day with his father from 9:00 am to 4:00 pm;
ii)On Mother’s day with his mother from 9:00 am to 4:00 pm;
iii)For four hours with the father on [X]’s birthday if the child were not otherwise spending time with the father;
iv)For four hours with the mother on [X]’s birthday if the child were not otherwise spending time with the mother;
v)With the father from 6:00 pm on Christmas Eve until 12 noon on Christmas Day in even numbered years and from 12 noon on Christmas Day to 6:00 pm on Boxing Day in odd numbered years; and
vi)With the mother from 6:00 pm on Christmas Eve until 12 noon on Christmas Day in odd numbered years and from 12 noon on Christmas Day until 6:00 pm on Boxing Day in even numbered years.
h)The father seeks other routine orders about matters relating to the child’s schooling, medical emergencies, prescribed medication, treating doctors, and advice of change of address and telephone numbers.
i)Finally, the father seeks orders providing that he would collect [X] from his mother at the commencement of his time with the child and the mother would collect [X] from school or from the father (as the case may be) at the commencement of her time with him.
The mother seeks orders as set out in her Case outline Document. In summary, they are as follows:
a)That the mother and father shall have sole parental responsibility for making decisions about the child’s day to day care, welfare and development during the times the child lives with or spends time with them respectively.
b)That the child should live with the mother at all times when he is not spending time with the father.
c)That the child should spend time with and communicate with the father as follows:
i)Until he attains the age of 4 years, each alternate weekend from 4:30 pm on Friday until 6:30 pm on Sunday extending to 6:30 pm on a long weekend, and an additional weekend on any occasion within a two month period on the father giving at least 21 days notice;
ii)On attaining the age of 4 years and until he commences primary school, for the first and second weekend in each three weekend rotating cycle from 4:30 pm Friday to 6:30 pm Sunday;
iii)Once the child commences primary school, for each alternate weekend, an additional weekend every two months, half of each school holiday except for the Christmas holiday period; and
iv)For the Christmas school holiday period, week about with each parent until the child turns seven, and then half the school holiday period.
d)The mother seeks orders that the child should spend the weekend including Father’s Day with the father and the weekend including Mother’s day with her.
e)The mother seeks a non-denigration order in the usual terms.
f)Finally, and importantly, the mother seeks an order that she be permitted to relocate the child’s residence to the greater Newcastle area.
Background
The father was born [in] 1979.
The mother was born [in] 1986,
The parties commenced their relationship in February 2008 and started living together in March of that year.
The child [X] was born [in] 2009.
The parties separated on 4 November 2009. The child continued to live with the mother.
The following day, the father commenced proceedings in the Local Court of New South Wales at [S] seeking orders that the child should live with him and that the mother be restrained from relocating the child’s residence further than five kilometres from the [S] metropolitan area.
On 9 November 2009 the parties entered into Interim Consent Orders that provided that:
a)They should have equal shared parental responsibility for the child.
b)They should have sole responsibility for making decisions about the child’s day to day care, welfare and development when he is in that parent’s care.
c)The child should live with the mother.
d)The child should spend time with the father at various times calculated according to the father’s work roster.
e)The parties should keep each other informed about medical matters concerning the child and any changes to their addresses or telephone numbers.
f)They should enrol in a course of parenting mediation with a Family Relationship Centre.
g)They should refrain from making critical or derogatory remarks about each other.
h)Both parties were restrained from relocating the child’s residence outside of a 10 kilometre radius of the [S] Post Office without each other’s written consent.
i)They should not attend with the child at any licensed premises except for the bistro.
j)The proceedings were to be transferred to the Sydney Registry of the Federal Magistrates Court.
The parties entered into further Interim Consent Orders on 4 March 2010, varying the Consent Orders made in the [S] Local Court. They had attended a Child Dispute Conference on that date and had reached interim agreement on a number of issues.
The Consent Orders provided that the child would spend time with the father over a rotating four week period and the parties were restrained from relocating the child’s residence outside of a 50 kilometre radius of the [S] Post Office (the previous limit was 10 kilometres).
The parties attended a further Child Dispute Conference on 16 September 2010. They entered into further Interim Consent Orders that same day.
The new Consent Orders provided that the parties should have equal shared parental responsibility for the child and required them to refrain from making critical or derogatory remarks about each other or members of each other’s family.
In addition, there were standard orders about communication between the parties.
The Consent Orders provided that the child should live with his mother when not spending time with his father and provided for a schedule of times when he would spend time with his father.
The Consent Orders restrained the parties from relocating the child’s residence outside of a 50 kilometre radius of the [S] Post Office and attending with the child at any licensed premises for any purpose other than participating in a meal or attending a mother’s social group gathering.
The application was set down for final hearing on 23 and 24 June 2011. A Family Report under the provisions of s.62G of the Family Law Act was ordered.
The father has formed a new relationship with a lady named Ms M, who has two children from previous relationships.
The mother has formed a relationship with a man named Mr S, who is a student at [omitted] University. They do not live together.
Evidence
The father gave oral evidence, as did his partner, Ms M. The mother gave oral evidence, as did her father, Mr J. Mr S was not on affidavit and did not give evidence.
The Family Report was admitted into evidence and the writer of the Report, Dr V, gave evidence by telephone from Canada, where she was attending a conference.
The Applicant father deposed in his affidavit of 11 June 2011 that he commenced a relationship with Ms M on 1 April 2010 and were engaged to be married. Ms M is pregnant with their child and is due to give birth on 30 November. Ms M has two children from previous relationships, a boy aged eight and a girl aged five.
It was his evidence that he was always involved in [X]’s care, even though the mother was the child’s primary carer. He deposed that his relationship with the mother began to deteriorate after [X] was born and they separated in early November 2009.
The father deposed that the current arrangements for [X]’s care involved his spending time with the child in accordance with the interim Consent Orders made on 16 September 2010. He resides with Ms M and her two children. He has extended the house in which they live so that the children could each have their own bedroom. He states that Ms M and her two children have “a great relationship”[2] with [X].
[2] Affidavit of Mr Flynn 11.6.2011 at paragraph [64]
The father seeks that the current arrangements continue for the immediate future, with his time with the child gradually increasing until he and the mother have shared care. He intends to continue living in [S].
The father deposed that he wished to enrol [X] in day care so that the child would have the opportunity to spend time with other children his own age and make new friends. He obtained a place for [X] at a day care centre to commence in October 2010 but the mother withdrew her consent, so the child did not go.[3]
[3] Ibid at [67]
The father still wishes to enrol [X] in day care. He would like [X] to attend [S] School when he is old enough, and he is willing to pay the school fees.[4]
[4] Ibid at [68]
The father deposed that he opposes the mother’s proposal to move to Newcastle, believing that the only reason she wishes to do so is to live with Mr S.
The father gave these reasons for opposing the move:
a)[X] has lived all his life in [S], where he has friends and family.
b)If the child lives in Newcastle, the father’s time with him would “reduce dramatically” [5] and he would only be able to see him on weekends.
c)The distance between [S] and Newcastle would involve the child travelling for two and a half hours each way when going from the care of one parent to the other.
d)Because of the distance, he would not be able to be involved in aspects of the child’s life such as his schooling.
e)The father expressed some concerns about the mother’s parenting skills. Whilst he concedes that she is a loving mother with a close and affectionate relationship with [X], he stated that:
Although I do not fear for [X]’s safety in [Ms Jeffcott]’s care, [Ms Jeffcott] sometimes makes poor decisions with respect to what is appropriate to expose [X] to and she often puts her social life ahead of [X].[6]
[5] Affidavit of Mr Flynn 11.6.2011 at [73]
[6] Ibid at [78]
The father deposed that he and the mother frequently disagree on matters relating to the child’s health. He is particularly critical of the mother’s view that the child should not be immunised.
In cross-examination by counsel for the mother, the father said that he had been spending two nights and on occasions three nights at a time with [X], who was two years and four months old at the time of the hearing. He was currently seeing the child for eight nights a month and feared that it would reduce by about 50% if the mother and child were to move to Newcastle. He said that travelling would be the biggest issue if the child were to relocate to Newcastle.
The father said that the mother had told him that she did not want to stay in [S] for the long term. He was aware that her brother lived in Newcastle.
He was adamant that he had never agreed to the child not being immunised against tetanus.
Ms M’s evidence is contained in her affidavit sworn on 16 June 2011. She is 28 years old and employed as a [omitted] in [S]. Her two children live with her. The little boy does not spend time with his father but her little girl sees her father in accordance with Terms of Settlement reached between the parents in 2008. In cross-examination by
Ms Humphreys of counsel she said that the little girl sees her father once each month and for half the school holidays.
Ms M described the Applicant as a loving and caring father who puts [X] first in his life. She described the relationship between the Applicant and the child as “a warm and loving relationship.”[7] She also stated that the Applicant has formed a “wonderful” relationship with her own children. He is looking forward to the birth of their own child in November.
[7] Affidavit of Ms M 16.6.2011 at [31]
In cross-examination, Ms M said that on Mondays and Wednesdays she attends to [X]’s needs solely because the Applicant quite often goes to work early in the morning and gets home between 3:00 and 4:00 pm.
Ms M said that she and the Applicant do not swear around [X]. She disagreed that the mother had heard her stand and swear in front of the child.
Ms M had some positive things to say about the mother. She noted that the mother had ceased smoking and described her as “a very loving and very caring mother”.
The Respondent mother gave oral evidence. In her affidavit sworn on 14 June 2011 she described how she had moved to [S] to take up a position as an [occupation omitted] for the father’s parents, who had a [omitted] business. When the mother was four weeks pregnant, the father’s mother terminated her employment, saying;
“You can’t work with [omitted] while you’re pregnant”.[8]
[8] Affidavit of Ms Jeffcott 14.6.2011 at paragraph [12]
The mother stated that she did not have a good relationship with the father’s extended family, particularly his mother.
The mother deposed that she had been the child’s primary carer since his birth. She set out that he was found to have a hole in his heart and had to have surgery for a hernia when he was nine weeks old. She was critical of the father’s level of care for the child at this stage.
The mother deposed that she and the father were able to come to a new interim agreement on 16 September 2010, after they had attended a Child Dispute Conference. However, she does not believe that these Orders are working well. In particular, she deposes that Ms M minds [X] all day Tuesday whilst the father is at work. She also claims that the father seldom picks up the child from her residence, and it is usually Ms M who picks up and returns the child.
The mother deposes that she and Ms M have “a very strained relationship” at times and gives examples of abrasive interchanges between them.[9]
[9] Ibid at [55]-[57]
The mother states that she does not like to expose [X] to swear words and claims that both the father and Ms M use such language in their everyday speech.
The mother sets out in paragraphs [65] to [90] of her affidavit why she wishes to live in Newcastle with [X].
Her reasons are;
a)She has close friends and family in the Newcastle area;
b)There are better employment and study opportunities in Newcastle;
c)She only has two friends in [S] with whom she socialises;
d)She is unhappy in [S] and does not like living there;
e)She moved to [S] purely to take up employment and felt very isolated there, and dependant on the father;
f)When she goes to Newcastle she stays with family or her boyfriend, Mr S;
g)She formed a romantic relationship with Mr S in August 2010, but she does not have any immediate plans to live with him;
h)She would like to enrol in [omitted] course offered by the [omitted] Institute of TAFE at [omitted];
i)She proposes to rent accommodation in the greater Newcastle area, particularly around the [W] and [A] area;
j)Her brother Mr G, with whom [X] has a loving relationship, works in [A] and lives in [W] and she has other family members living in the Newcastle area;
k)She has a close and loving relationship with her father who lives in [C] and would be able to spend more time with him if she lived in Newcastle; and
l)She would have no objection if the father were to move closer to the Newcastle area.
The mother was cross-examined by Ms Messner of counsel, who appeared for the father. She confirmed that she had given up smoking before Christmas but said that she had recently resumed.
The mother expressed the view that there are a lot of chemicals involved in conventional medicine that she did not agree with, which is why she preferred to use natural remedies. She also did not believe that vaccinations work as they should.
She said that she would love to move to [C] but that would be too far for [X] to maintain a relationship with his father.
The mother said that she would like to complete her Higher School Certificate and then commence a certificate course at TAFE.
The mother said that she had met Mr S in 2010. His parents live in [S] and he stays with them during university vacations. He is twenty years old and in 3rd Year at University. He expects to graduate at the end of 2012. The mother stays with him when she visits Newcastle, which is usually every second weekend. When the child stays with his father.
Mr S did not swear an affidavit in these proceedings, nor did he attend for an interview with Dr V for the purpose of the Family Report.
The mother said that she has relatives and friends in Newcastle. Her brother Mr G lives in Newcastle with his girlfriend, at her mother’s house. The mother’s brother did not swear an affidavit, nor did he attend for an interview with Dr V.
When questioned about the Family Report, the mother stated that she had not realised that Dr V had said that [X] should be attending day care.[10] She went on to say that she thought the child was “nearing the stage” when he should go to day care.
[10] The matter is referred to in paragraph 48 of the Family Report.
The mother also relied on the evidence of her father, Mr J. He lives in [C]. His wife died in May 2009. He has three daughters and one son. He deposed in his affidavit sworn on 14 June 2011 that they have always been a close family and he speaks to his daughter (the Respondent) by telephone two or three times a week.
Mr J deposed that he travels to [S] from [C] at least every two months and stays with his daughter for “a night or so”. He described his daughter and grandson as having a close bond. He also stated that his daughter supports the child’s relationship with the father by speaking about him in a positive way.
He was aware that his daughter was not happy living in [S]:
I have been aware that [Ms Jeffcott] was not happy living in [S] for quite some time, even prior to their final separation…She appears to be lonely for her family and friends and resentful of the limitations in the [S] area for her to spend time with family and in general.[11]
[11] Affidavit of Mr J 14.6.2011 at paragraph [10]
Mr J also expressed the view that it would be easier for him to spend time with his daughter and grandson if they were in Newcastle, because his son Mr G lives there.
Mr J was cross-examined by Ms Messner of counsel, who appeared for the father. He said that his daughter had not had the full range of immunisations as a child. His late wife had been involved in the alternative health care profession and the family were influenced by her views. He expressed the opinion that some vaccines contained the cells from aborted foetuses, a view shared by his daughter.
The Family Report
The Family Report was prepared by Dr V, a Regulation 7 Family Consultant. For the purpose of the Report, Dr V interviewed the following people:
a)the Applicant father;
b)the respondent mother;
c)the father’s partner, Ms M;
d)the maternal grandfather, Mr J;
e)the mother’s elder sister, Ms F; and
f)a friend and relative of the mother by marriage, Mr N.
Dr V noted that the mother had said that she had been in a relationship with Mr S for the past 10 months:
Ms Jeffcott said that Mr S did not attend the family report interview appointment as he had university lectures.[12]
[12] Family Report paragraph [5]
Dr V observed the interaction between the child and each of his parents as well as with Ms M and her two children. She noted that he moved readily between his parents while they waited in the waiting room and played with Ms M’s two children.
It is to the credit of both parents that they were observed to cooperate in settling their child when he became distressed and:
…it was noted that they were able to be polite in each other’s presence and to communicate with [X].[13]
[13] Family Report at [34]
The Family Consultant’s evaluation of the parties is quite lengthy, extending to some eleven lengthy paragraphs. Whilst the parties have their disagreements, Dr V observed many positive things about their relationship with [X] and with each other, saying:
41. One of the most challenging of family situations after separation occurs when parties separate when their children are infants. Ideally such young children require regular periods of shorter contact with the parent with whom they do not live. Although the parties claim that their communication is not easy, to their credit they have been able to make and amend arrangements for [X] to spend substantial time (from four to five evenings per fortnight) with his father which have suited Mr Flynn’s changing work schedules. The parties are to be acknowledged for their capacity to do this. Indeed the arrangements that have been in place have provided for [X] to spend up to three consecutive nights with his father which is not often recommended for such young children. Neither parent expressed serious concerns that these arrangements have not thus far been workable and [X] also seems to be coping with these arrangements.
42. Both parties acknowledge the relationship [X] has with the other and Ms Jeffcott spoke positively of the role members of
Mr Flynn’s family play in [X]’s life.[14]
[14] Ibid at [41]-[42]
Dr V raised two specific issues in the Family Report:
a)[X]’s stage of development and the consolidation of primary attachments: and
b)The mother’s proposal to relocate and its effect on [X].
Dr V also gave oral evidence about the child’s state of development but, with respect, her comments in the Family Report appeared to me to cover the issue in admirable detail. She stated at [45] to [48]:
45. There are two key factors which are crucial to this matter. The first is related to [X]’s stage of development. [X] is currently at the stage of development which is crucial for the consolidation of primary attachments. Literature supports the notion that significant attachments consolidate as the child internalises mental representations of their caregivers from the age of nine months to three years old. On the occasion [X] was observed with his parents, he displayed some signs of separation anxiety and asked for his mother to comfort him. This is not to discount the relationship [X] has with his father and significant others in that household, as children can form multiple attachment relationships, and [X]’s relationships with his father and member(s) of his father’s family were also assessed to be secure and strong. However, for young children attachment relationships consolidate best from having a secure base in one home environment.
46. The attachment process is two way and the security of a child’s attachments is very much dependant on a parent’s interaction(s) with the child. These include sensitivity to their children’s signals, psychological and physical availability and acceptance versus rejection of an infant’s needs. Secure base behaviour requires a parent to interpret a child’s signals and be attuned to those cues even if there is limited verbal component as is currently the case with [X]. An important dimension of sensitivity in attachment formation is the capacity of the parent to balance the child’s need for appropriate interaction which includes soothing on the one hand and giving the child space to entertain themselves on the other hand. Both parents were able to demonstrate responsiveness to [X] on the discussed aspects in the course of this assessment and they appeared relaxed and at ease with [X]. There were many similarities in their interaction with him. They gave him space to explore his environment but also responded appropriately and affectionately to him when he sought them out or was distressed.
47. It is imperative that the future arrangements that are put in place for [X] are such that they provide him the opportunity to consolidate his attachments with minimal disruption. Given that his expressive language is still in early stages of development, it is difficult for this to occur without him having physical contact on a regular basis i.e. weekly with each parent. Electronic modes of communication such as telephone and Skype are not modes of communication appropriate for children whose language skills are limited as [X]’s currently are.
48. In the coming year, [X] needs to be prepared for the stage of development in which he receives reinforcement for taking initiative and requires the freedom to play, to ask questions, to use imagination and to choose activities that are challenging and of interest. The context in which this occurs best is through play with children of similar age (and) develop(ment) such as in a play group or a child care facility. Play is the vehicle by which children of this age acquire social skills such as sharing and collaborating. Mr Flynn and Ms Jeffcott need to consider making decisions about such activities for [X] which will in turn have an impact on the days he is available to spend time with his father during the week.[15]
[15] Family Report at [45]-[48]
In her oral evidence, Dr V reiterated these concerns, saying that there was a concern about the child at his stage of development not seeing his father each week. The opportunity for [X] to spend time with his father on a weekly basis is important at this stage.
The other key issue raised by Dr V in the Family Report was the mother’s proposal to relocate to Newcastle. She expressed reservations about the mother’s proposal, saying at paragraph [43]:
It is for the Court to determine the merits of Ms Jeffcott’s desire to relocate but her presented proposal for the purposes of this assessment seems somewhat unformulated. Her living and study intentions in Newcastle seem still formative and, if indeed her study and work needs are the motivators for her desire to relocate, the Court may need to investigate whether there are similar options for her in [S], at least until [X] is a little older. There is also some ambiguity about the role her partner and her extended family will play in her life as well as that of [X] if they do relocate.[16]
[16] Ibid at [43]
Again, Dr V had this to say about the proposed relocation;
She also referred to the personal supports she has in the Newcastle area yet surprisingly none of them attended with her on the day of the appointment whilst she was accompanied by a significant number of other family and friends who had travelled from further afield. Such a move would, perhaps, have personal advantages for Ms Jeffcott, however the option remains largely untested.[17]
[17] Family Report at [49]
Dr V recommended that if the proposed relocation did not proceed, then the current arrangements should remain in place. However, if the relocation were to proceed, then along with the alternate weekends, arrangements should be made for [X] to spend time with his father in the intervening week as well as at a time that accommodates other activities that are in place for him, such as day care.
The Relevant Law
The matter to be decided by the Court is what is referred to as a “relocation case”, where the mother, with whom the child lives, seeks to move with the child from the [S] area to the greater Newcastle area, a distance of about 150 kilometres. This distance, whilst not vast, would still involve a change to the arrangements where the child spends time with each parent.
Counsel for the Applicant has referred the Court to the recent decision of Murphy J in Mallahan & Mallahan[18], where his Honour considered at [14] to [39] the principles to be followed in parenting orders and relocation cases, in the light of the decision of the High Court in MRR v GR[19]. With respect, I have found this exposition to be very helpful.
[18] [2010] FamCA 631
[19] [2010] HCA 4; (2010) 42 Fam LR 531; FLC 93-424
In particular, his Honour stated:
14. Parenting orders, of whatever type, are driven by a determination of the best interests of the particular children who are the subject of the proceedings (Sections 60CA; 60CB; 61DA(1) & (4) and 65DAA). The issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s 60CC)…
17. Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Family Law Act 1975 “the Act” (s 60B(1))…
18. The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship…The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.
19. Decisions about the best interests of individual children, arrived at by weighing those Objects and Principles, and the statutory Considerations are given further statutory direction and specificity by further statutory requirements which:
(a) direct a court to presume (rebuttably – s 61DA(4)) that shared parental responsibility is in a child’s best interests (s 61DA(1)); and
(b) require, consequentially, the court to consider whether an equal time order is in the best interests of the children (s 65DAA(1)); and
(c) if not, require the court to consider whether a child spending “substantial and significant time” (s 65DAA(2) (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and
(d) require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A)).
20. The two requirements earlier referred to, relating to the amount of time children spend with their separated parents, are each governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).
21. The determination of “reasonable practicability” is, also, not left at large but is circumscribed by a number of statutory factors, including geographic distance; capacity to implement the relevant arrangements; the capacity of the parents to communicate with each other in the future; the impact on the children; and any other matters which the court considers relevant (s 65DAA(5)).[20]
[20] [2010] FamCA 631 [14], [17]-[21]
Murphy J went on to say of relocation cases:
27. In my view, it remains the case that, as I said in the earlier decisions referred to:
· A “relocation” case is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
· A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings About parental responsibility and quantity of time.[21]
[21] [2010] FamCA 631 [27]
His Honour also said that:
Findings about best interests might be seen to have a predominant relationship with the child; findings about reasonable practicability might be seen to have a predominant relationship with the parents.[22]
[22] [2010] FamCA 631 [29]
The court must consider the parties’ proposals but is not bound by them in making parenting orders. The court must make orders to meet the children’s best interests (AMS v AIF; AIF v AMS[23]; U v U[24]).
[23] (1999) 199 CLR 160; 24 Fam LR 756; FLC 92-582
[24] (2002) 211 CLR 238; 29 Fam LR 74; FLC 93-112
His Honour then summarised the steps that a court must take:
37. The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:
· First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
· Next, make findings as to whether any “family violence” or “abuse”, as is each is defined, exists;
· Further or alternatively, then make findings, by reference to s 60CC(3) about such matters relating to best interests relevant to the issue of whether parental responsibility should be shared equally;
· Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
· If the presumption is rebutted and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);
· If the presumption is not inapplicable or not rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
- Make findings as to whether the subject children’s best interests are best met by an order for equal time; and
- Make findings as to the matters prescribed in s 65DAA(5), and, as a result;
- Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
- If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
· If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the children’s best interests (s 65D; s 60CA; s 65AA).[25]
[25] [2010] FamCA 631 [37]
Importantly, the Court has an obligation to consider the exercise of the power to make each order in the prescribed manner when the precondition for an order for equal shared parental responsibility has been met, even if neither party seeks an order for either equal time or substantial and significant time.[26]
[26] [2010] FamCA 631 [38]-[39]
Conclusions
The first matter to be considered in making parenting orders about this child is the application of the presumption that it is in his best interests for his parents to have equal shared parental responsibility for him. The father seeks an order for equal shared parental responsibility. The proposal of the mother is more of a default proposal, in that she seeks orders that each parent will have sole parental responsibility for [X] at times when he is living or spending time with that parent.
There is no evidence of family violence, abuse or neglect (s.60CC(2)(b); s.60CC(3)(j)) or of any family violence order that applies to the child or a member of his family (s.60CC(3)(k)).
It is clear on the evidence, particularly from the Family Report, that there is a benefit to [X] in having a meaningful relationship with each of his parents.
Turning to the additional considerations under s.60CC(3) insofar as they are relevant, the child [X] is too young to express any views, but he was observed by the Family Consultant to respond positively to both of his parents, both of whom are obviously very important to him. He has been observed to have a warm and loving relationship with each of his parents. He was also observed to have a comfortable relationship with the father’s partner, Ms M, and her two children.
The maternal grandfather, Mr J, attended the interview with the Family Consultant and also gave evidence. It would appear that he has a good relationship with [X]. The mother conceded that [X] had a close relationship with his paternal grandparents:
Ms Jeffcott did not dispute that [X] has formed a close relationship with his father and his paternal grandparents and that she sees evidence of the strength of those relationships.[27]
[27] Family Report at [23]
The Family Report makes it clear that each of [X]’s parents, despite their differences, have both a willingness and an ability to facilitate a close and continuing relationship between [X] and the other parent:
The parties have since been able to reach several agreements about the time [X] spends with his father. These arrangements have largely been determined to suit the work commitments of Mr Flynn who does shift work…
Mr Flynn said that, in spite of the breakdown of the relationship, he and Ms Jeffcott were, for the most part, able to make decisions that were in [X]’s interests. He indicated that they agreed on living arrangements that were mutually convenient and accommodating of changes to his work roster. He stated that this has enabled him to sustain a ‘hands on’ role with [X] by spending substantial time with him on a very regular basis. He said that he and Ms Jeffcott have attempted to be ‘reasonable’ with each other and have managed to shield [X] from any conflict between them.[28]
[28] Ibid at [3] and [14]
It seems clear that both of [X]’s parents have the capacity to provide for his needs, including his emotional and intellectual needs. They have, despite certain criticisms of each other, a positive attitude to their child and to the responsibilities of parenthood.
However, the mother’s proposal to relocate her residence and that of the child from [S] to the Newcastle area will constitute a significant change to [X]’s circumstances and is likely to lead to a separation from his father, which will have a significant effect on his relationship with his father.
Again, the proposed move to the Newcastle area will create some practical difficulty for the child in spending time with and communicating with his father. The concern about the mother’s proposal has been addressed by Dr V in the Family Report.
[X] is a little boy aged two years and nine months. He is at the stage where he is consolidating his primary attachments, which tends to occur between the ages of nine months and three years (see Family Report at [45]). The mother’s proposal would take [X] some distance away from his father during that critical period, which does not appear to be in his best interests.
The mother’s proposal would also reduce the frequency with which [X] would spend time with his father, and reduce the time by about half. According to the Family Report, the child needs to spend regular periods of shorter time with each parent, preferably at weekly intervals (see Family Report at [41], [47] and [51]).
It is significant that the agreed distance between [S] and Newcastle is approximately 150 kilometres, which would involve travelling by car for about two and a half hours in each direction. Whilst this is not an impossible distance, it does impose some burden upon a small child in terms of travelling time, although the impact of a journey of that length will decrease over the years.
I note that the mother has also stated that she would have no objection if the father were to move closer to Newcastle. However, this does not seem to be a practical option, noting the fact that the father and Ms M have employment in the general area of [S] and an established home there.
I am not satisfied that the mother’s proposal to relocate the child’s residence out of [S] to the Newcastle is in [X]’s best interests at this stage of his development.
The other aspect to be considered is the fact that the mother’s proposal to move to the Newcastle area has been described by the Family Consultant as “unformulated” (Family Report at [43]). The mother does not have to demonstrate “compelling reasons” for relocating out of [S] (AMS v AIF; AIF v AMS[29] at [47]), but her reasons for moving at this stage are not very convincing.
[29] supra
The mother refers to the fact that she has commenced a relationship with Mr S, who is attending the University [omitted]. He lives in Newcastle although his family members live in [S]. However, Mr S played no part in the proceedings whatsoever. He did not depose to any affidavit, nor did he attend court to give evidence. He did not attend for an interview with the Family Consultant.
The mother also refers to the fact that her brother Mr G works in [A] and lives at [W].[30] He did not give evidence. There is no affidavit from him. He did not attend the interviews with the Family Consultant.
[30] Affidavit of Ms Jeffcott 14.6.2011 at paragraph [83]
The mother was accompanied to the interview with the Family Consultant by her father, who lives in [C], and her sister, who now lives in Darwin. Whilst they spoke highly of the mother’s parenting skills, neither of them was able to offer much evidence about the viability of the mother’s proposal to move to Newcastle, except that her father said it would be easier for him to visit if both the mother and her brother were located in the one general area.
The mother wishes to commence studies at TAFE, but her evidence about the extent of her inquiries about the availability of educational opportunities was vague. The mother does not seem to have investigated the opportunities available at the TAFE College in [S].
The mother’s friend Mr N told the Family Consultant that the mother would stand “to be stuck there ([S]) for 16 years”[31] and this may indeed be the key to the mother’s wish to relocate to Newcastle.
[31] Family Report at [29]
Weighing up all these factors, I am satisfied that the presumption of equal shared parental responsibility applies, namely, that it is in the best interests of the child [X] for his parents to have equal shared parental responsibility for him.
There is no evidence of abuse or family violence which would lead to a finding that the presumption does not apply.
Whilst I am not satisfied that the mother’s proposal to relocate [X]’s residence from [S] to the Newcastle area is in the child’s best interests, this finding is not sufficient to satisfy the Court that it would not be in the best interests of the child for his parents to have equal shared parental responsibility for him.
Accordingly, I propose to apply the presumption under s.61DA(1) that it is in [X]’s best interests for his parents to have equal shared parental responsibility for him.
The next matter to be considered is whether it is in the child’s best interests and whether it is reasonably practicable for the child to spend equal time with each of his parents (s.65DAA(1)).
The father seeks an “equal time” order, but not until the child commences to attend school. The mother does not seek such an order at all.
At present, whilst the father is working shift work, it is difficult to see that it would be reasonably practicable for the child to spend equal time with him. The mother is not in employment or in a course of study at present, so she has the time available to attend to [X]’s care on a full-time basis. The father’s partner, Ms M, will presumably be at home full-time once she has the child she is expecting, but it is not the purpose of these orders to make an order that would lead to the child spending time with Ms M, without criticising her parenting ability in any way.
Importantly, the father does not seek an order for equal time until [X] commences school, which is over two years away. It would be purely speculative to make a decision on whether it is in the child’s best interests or reasonably practicable for him to spend equal time with each parent once he commences school. In any event, the mother does not want to stay living in [S] until [X] turns 18, and it is reasonable to assume that she will leave at some stage.
I note that Dr V, when discussing the consolidation of [X]’s primary attachments, noted that he displayed some sign of separation anxiety at one stage and stated:
This is not to discount the relationship [X] has with his father and significant others in that household, as children can form multiple attachment relationships, and [X]’s relationships with his father and members of his father’s family were also assessed to be secure and strong. However, for young children attachment relationships consolidate best from having a secure base in one home environment.[32]
[32] Family Report at [45]
I am not at this stage satisfied that it is in the child’s best interests or reasonably practicable for him to spend equal time with each parent.
What next must be considered is whether the child spending substantial and significant time with each of his parents would be in his best interests and reasonably practicable (s.65DAA(2)).
The evidence, particularly the evidence in the Family Report, shows that it would be in the child’s best interests to spend substantial and significant time with each parent. He is at an age where he needs to consolidate his attachments, which requires frequent time with each parent. He has a positive relationship with each of them, even though he showed some signs of separation anxiety when observed by the Family Consultant “and asked for his mother to comfort him”.[33]
[33] Ibid
Whilst the child remains living in [S] with his mother, it would, in my view, be reasonably practicable for him to spend substantial and significant time with each of his parents.
The Court must consider the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent (s.60(CC)(4)), having regard, in particular, to events that have happened and circumstances that have existed since the parents separated (s.60CC(4A)).
It is relevant that the father has re-partnered and formed a stable relationship with Ms M, who has children from two earlier relationships and is now expecting the parties’ own child. The family environment that has been created appears to be a warm and nurturing one in which [X] appears comfortable.
The mother has now formed a relationship with Mr S, although it is still only in its formative stages. The court has little information about him.
One issue that has arisen is the difference between the parties about vaccination for the child. The father seeks orders that would allow him to have [X] vaccinated but the mother opposes the idea, based on matters she has learned from her late mother and items she appears to have read on the Internet.
I am somewhat dubious about finding that the Court can take judicial notice about the benefits or otherwise of vaccination against childhood diseases. In the absence of medical evidence one way or the other I am not prepared to make a finding that it is in [X]’s best interests to be vaccinated against certain diseases, nor am I prepared to make an order permitting the father to do so.
Conclusions
It is in the best interests of the child [X] for his parents to have equal shared parental responsibility. It is in his best interests for each parent to spend substantial and significant time with him, and, whilst the mother remains in the [S] area, it is reasonably practicable for that to occur.
The issue that has occupied so much of the parties’ attention is, of course, whether the mother should be permitted to relocate the child’s residence out of [S] to the greater Newcastle area. I am not satisfied that relocation is in the child’s best interests at his current stage of development. The evidence from the Family Consultant, which is uncontradicted, is that such a move would be detrimental to the consolidation of the child’s attachment to his father and, to a lesser extent, with his father’s new immediate family.
Whilst the mother may well be frustrated and unhappy in [S] now that her marriage has ended and she may well wish to move elsewhere, the timing of such a proposal does not accord with [X]’s best interests. It is in his best interests to remain living with his mother in the [S] area whilst his attachment to his father develops.
This should not be taken to mean that the mother is obliged to remain living with the child in [S] until he attains the age of 18, or even until he starts high school. However, until [X] is older, he is better off to remain in the [S] area. The circumstances may be different once he turns four, for instance, which will be [in] 2013.
The mother, of course, is free to live where she likes. These proceedings concern where the child should live. Accordingly, an order will be made restraining the mother from relocating the child’s residence from an area more than 50 kilometres from the town of [S] prior to [date omitted] 2013.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 25 November 2011
0
5
1