Fraser and Wilson
[2009] FMCAfam 674
•9 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FRASER & WILSON | [2009] FMCAfam 674 |
| FAMILY LAW – Parenting orders – child aged 8 years 7 months – child currently living predominately with the mother and spending time with the father both in Newcastle – mother seeking to relocate to Melbourne permanently – consideration of “meaningful relationship” – best interests of the child – relocation refused. |
| Family Law Act 1975 (Cth) – Part VII |
| A v A Relocation Approach (2000) 26 Fam LR 382 AMS and AIF (1999) 24 Fam LR 756; FLC 92-852 D v SV (2003) 30 Fam LR 91; FLC 93-137 Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286; G & C [2006] FAM CA 994 Taylor & Barker [2007] Fam CA 1246; (2008) 37 Fam LR 461; Sealey & Archer [2008] Fam CAFC 142; Mazorski & Albright (2007) 37 Fam LR 518; M & S (formerly E) [2006] Fam CA 1408; (2007) FLC 93-313; McCall & Clark [2009] Fam CAFC 92 P v P [2006] FMCA Fam 518 U v U (2002) 29 Fam LR 74; FLC 93-112 |
| Applicant: | MR FRASER |
| Respondent: | MS WILSON |
| File Number: | NCC 3507 of 2007 |
| Judgment of: | Coakes FM |
| Hearing dates: | 4 & 5 March 2009 |
| Date of Last Submission: | 5 March 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 9 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Gianacas Argiris McDonald |
| Counsel for the Respondent: | Mr P Hartley |
| Solicitors for the Respondent: | Priest McCarron |
ORDERS
That the mother and the father have equal shared parental responsibility for the child [X] (“[X]”) born 7 August 2000.
That the parents are to consult each other in relation to any long term issues in relation to [X] and are to make a genuine effort to come to a joint decision about issues concerning his care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a)His education (both current and future);
(b)His religious and cultural upbringing;
(c)His health;
(d)His name;
(e)Changes to the living arrangements for him that make it significantly more difficult for him to spend time with a parent.
That each parent is to have sole responsibility for making decisions concerning [X]’s day to day care, welfare and development whilst he is in his or her care respectively.
That [X] live with the mother.
That [X] spend time with and communicate with the father as follows:
(a)During school terms at fortnightly intervals from the completion of school on the Wednesday until the commencement of school on the following Monday, or Tuesday if the Monday is a public holiday and to commence on the Wednesday following the making of these orders and fortnightly thereafter with such period to recommence in each new school term on the first Wednesday if [X] has spent the first half of the immediately preceding school holidays with the father and on the second Wednesday of the new school term if [X] has spent the second half of the immediately preceding such holiday with the father;
(b)For one half of each school holiday period applicable in the State of New South Wales commencing with the school holidays at the end of the second term in 2009, such half to be as agreed between the parents but in the absence of agreement in the first half in years commencing in an even number and in the second half in years commencing in an odd number, with the first half being defined as commencing at 10.00am immediately following the last day of the preceding school term until 6.00pm on the midpoint day and the second half being defined as commencing at 10.00am on the midpoint day until 4.00pm on the last Sunday;
(c)At such other times and upon such dates as the parents agree.
The periods during which [X] is living with each parent as referred to above are suspended, insofar as it is necessary or are varied to ensure [X] is living with the father as follows;
(a)From 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day in even numbered years;
(b)From 12.00 noon on Christmas Day until 12.00 noon on Boxing Day in odd numbered years;
(c)From 4.00pm on the Saturday of the Father’s Day weekend until the commencement of school on the Monday following Father’s Day if not otherwise spending time with the father pursuant to these orders;
(d)On 7 August if [X] is not spending time with the father pursuant to these Orders from after school until 6.00pm if such day is a school day or from 12.00 noon until 6.00pm if such day is not a school day.
The periods during which [X] is living with each parent as referred to above are suspended, insofar as it is necessary or are varied to ensure [X] is living with the mother as follows;
(a)From 12.00 noon on Christmas Eve until 12.00 noon on Christmas Day in odd numbered years;
(b)From 12.00 noon on Christmas Day until 12.00 noon on Boxing Day in even numbered years;
(c)From 4.00pm on the Saturday of the Mother’s Day weekend until the commencement of school on the Monday following Mother’s Day if not otherwise spending time with the mother pursuant to these Orders;
(d)On 7 August if [X] is not spending time with the mother pursuant to these orders from after school until 6.00pm if such day is a school day or from 12.00 noon until 6.00pm if such day is not a school day.
That for the purposes of implementation the father or his nominee known to [X] is to collect [X] from and return [X] to his school when these orders provide that his time with the father commences at the completion of school and concludes upon the commencement of school, and at all other times the father or his nominee known to [X] is to collect [X] from the mother’s home at the commencement of his time with the father, and the father or his nominee known to [X] is to return him to the mother’s home at the conclusion of the period of time between [X] and his father.
That the father may communicate by telephone with [X] at such times as are agreed between the mother and the father but in the absence of agreement each Monday during school terms and between 6.30pm and 7.30pm with the father to initiate such telephone call and with the mother to ensure that [X] is available to receive such telephone call from the father.
Both parents are to encourage [X] to communicate with the other parent when he is staying with one parent at any time he may wish to do so either by telephone, email, text message or any other form of written communication.
That each parent is to advise the other as soon as possible in the event of any of the following occurring:
(a)[X] being seriously injured or falling seriously ill;
(b)[X] requiring urgent medical treatment from a Doctor or Ambulance crew;
(c)[X] being admitted to hospital.
That each parent is to inform the other of any change of particulars of that parent’s address, landline telephone number and mobile telephone number and within 48 hours of any such change occurring.
That in the event that the mother requires any assistance in caring for and supervising [X] likely to extend for a period exceeding 24 hours, the mother is to enquire of the father in the first instance as to whether he can provide such care and supervision.
That within 28 days of the date of these orders the mother is to obtain a referral from her general practitioner to a suitably qualified family therapist or psychologist for therapeutic counselling to assist with and address her unresolved thoughts, feelings and issues relating to the father and is to attend such course of therapeutic counselling until the psychologist or therapist considers no further attendance is necessary. For these purposes alone, the mother is permitted to provide to such therapist or psychologist a copy of the Family Report of Doctor Todd Jacobson published on 20 January 2009.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Coakes delivered this day will for all publication and reporting purposes be referred to as Fraser & Wilson.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3507 of 2007
| MR FRASER |
Applicant
And
| MS WILSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents have one child of their relationship namely [X] born 7 August 2000 (“[X]”) who is now 8 years and 11 months of age and who, following separation of his parents in early 2003 lived primarily with his mother but spent significant periods of time, varying from time to time with his father.
The mother has long held a wish to move to and live in Melbourne with [X] which the father currently opposes although in early May 2005 the parents agreed that the father would not prevent the mother and [X] from moving from Newcastle to another area within Australia at the end of 2006. I will refer later in these short reasons for judgment as to the circumstances under which the parents came to such agreement.
On 23 November 2007 the father filed his application for both interim and parenting orders and on 30 January 2008 the mother filed her response.
Background facts
The father is 38 years of age and is in full time employment in his own business as an [occupation omitted].
The mother is 29 years of age and is a qualified [occupation omitted] at [N] where she works from 2.00pm until 6.00pm Monday to Friday as the co-ordinator of the [omitted] department.
The father lives in [S] in a home owned by his present wife and the mother lives in rented premises in [C]. A journey between the two homes is about 10 minutes by motor car.
Whilst there is a dispute on the evidence as to when the parties commenced cohabitation, the father has said in April 2000 the mother asserting late 2001, it was conceded by the mother during the Family Report interviews with Doctor Jacobson that the parents lived together from the time of [X]’s birth until January or February of 2003.
The parents did not marry.
The father commenced cohabitation with his present wife, Ms C during 2004, they married in 2005 and have one child of their relationship, [Y] who was born in 2007 and who is now a little more than 2 years of age. They are currently expecting another baby in July of this year.
[X] attends [N] primary school.
There are no current parenting orders, the mother having consented voluntarily to remain in the Newcastle area until the conclusion of these proceedings.
The respective applications
It is the father’s application that [X] live with him each alternate week during school terms from the conclusion of school on the Monday until the commencement of school on the Friday, and each alternate weekend from after school on the Friday until back to school on the following Monday morning, in other words a week about during school terms, and half the school holidays, and otherwise to live with the mother with some other practical parenting orders as to implementation and notification of changes of particulars.
It is the mother’s proposal that [X] live with her, that there be shared parental responsibility for him, and that on the basis that the mother is living in Melbourne that [X] spend time with his father the first week of all school term holidays for one half of the Christmas school holidays alternating between even numbered years and odd numbered years, for the fifth weekend of each school term and communication by telephone with the costs of the child’s travel to be met equally by them.
The mother told Dr Jacobson during the family report interviews on
2 December 2008that if [X] was prevented from relocating then she would not relocate without him[1]. The mother did not resile from this proposal during the course of the hearing.
[1] Paragraph 52 of the Family Report
Such applications were not modified or revised at the hearing.
The evidence
The father relied upon the following affidavits:
a)His affidavit sworn 21 November and filed 23 November 2007;
b)His affidavit sworn 17 November and filed 24 November 2008;
c)The affidavit of his wife, sworn 17 November and filed 24 November 2008;
d)The affidavit of his mother, Ms F sworn 19 November and filed 24 November 2008;
e)The affidavit of his father, Mr F sworn 19 November and filed 24 November 2008;
The mother relied upon the following affidavits:
a)Her affidavit sworn and filed 30 January 2008;
b)The affidavit of Ms W sworn 19 December 2008 and filed 3 February 2009;
c)Her affidavit sworn 20 February and filed 24 February 2009;
d)The affidavit of Mr W sworn 18 February and filed 24 February 2009.
I also had the benefit of a Family Report prepared by Doctor Todd Jacobson who interviewed the parents and [X], the father’s wife and his mother on 2 December 2008.
There were a number of exhibits.
I also had the benefit of listening to and observing the parents and their witnesses required to give evidence both in chief and in cross examination.
I also had the benefit of listening to the evidence of Doctor Todd Jacobson who was cross examined by Counsel for both parents.
The issues
It seems to me the issues are these:
a)What is the nature of the relationship between [X] and his mother and [X] and his father and other significant members of the respective households;
b)What are the appropriate parenting arrangements for [X] and with whom should he live, and if not equal time, what amount of time should be spent with each parent;
c)Should the mother be enabled to relocate [X]’s place of residence from Newcastle to Melbourne;
d)What is the consequence for [X]’s relationship with his father if the mother is enabled to relocate to Melbourne with [X];
e)In the alternative, if the mother is not enabled to relocate [X] to Melbourne, is it in [X]’s best interests to spend time with the father as proposed by the father or substantial and significant time;
f)Given the respective proposals of the parents, should the Court endeavour to formulate different arrangements for the time [X] is to spend with each parent.
The relevant Law
I have regard to Part VII of the Family Law Act and in particular the amendments which came into being following the Family Law Amendment (Share Parental Responsibility) Act 2006. The significant sections are, and to which I must have regard, s.60CA which provides that:
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.
I must consider, in determining a child's best interests, the matters set out in s.60CC. They are broken down into two primary considerations. Firstly:
a) the benefit to the child of having a meaningful relationship with both of the child's parents, and
b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[2].
[2] Ss 65 DAA
It is also necessary for me to consider in the context of this case established case law in relation to relocation and the effect, if any, of the amending legislation upon such case law. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII as it was or pursuant to the amending Act. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[3].
[3] Pascale v Pascale (1999) 25 FLR 607 and FLC 92-878 at para.40.
In A v A Relocation Approach (2000)[4], the Full Court of the Family Court of Australia summarised the guidelines to be applied in the determination of a parenting case involving a proposal to relocate the residence of a child. That summary, in effect, is this.
[4] reported at 26 FamLR 382 FLC 93-035
a) the welfare or best interests of the child as the case may be remains the paramount consideration but is not the sole consideration;
b) a Court cannot require the applicant for the child's relocation to demonstrate compelling reasons for the relocation;
c) the 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 a discrete issue, namely a primary issue, and a further or separate issue as to whether the relocation should be permitted;
d) neither party bears an onus to establish that a proposed change to an existing situation or the continuation of an existing situation will best promote the best interests of a child;
e) a parent's rights as to freedom of movement are not to be ignored.
The Full Court said later in the case of A v A that it was suggested that three practical steps should be followed by a Court in considering a case which involved relocation.
I also have regard to the High Court decision in U v U (2002)[5] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[5] 29 FamLR 74 FLC 93-112
In D v SV (2003)[6], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[6] 30 FamLR 91 at 106 and FLC 93-137 at 78290
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of amending legislation upon relocation. It is reported as Taylor v Barker[7]. In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[7][2007] FamCA 1246; (2008) 37 Fam LR 461
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in para.82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At para.83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
The first of the primary considerations in s.60CC(2)(a) emphasises as one of the matters to be considered the benefit of the child having a meaningful relationship with both of the child's parents. In P v P[8], Brown FM gave very careful consideration to the word "meaningful" in the context of s.60CC(2)(a) and said as follows:
“256. In the context of s.60CC(2)(a) the use of the word "meaningful" by the Legislature is interesting. The ordinary definition of "meaning" and "meaningful" when it is attached to an idea or some object is denoting of the significance or importance of that idea or object. It seems clear that the Court is only to consider whether a relationship is meaningful to the child concerned after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the Legislature intends the Court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
257. The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered meaningful in the context of a parenting order is provided by s.65DAA. The emphasis is on time, but not merely on the extent of that time but rather on its quality and the manner of its utilisation with the child or children concerned. In this context the Court is to consider the parent concerned spending time that falls on weekends, holidays, week days and perhaps most importantly time that allows that parent to be involved in a child's daily routine and occasions of particular significance for both the parent and child.
258. The rationale of s.65DAA is that children benefit in an emotional and developmental sense from feeling that their parents are involved in all aspects of their care which flows from them being exposed to their parents in a variety of settings. These settings include fun activities on holidays and weekends, essentially interacting with their parents in a relaxed setting as well as the day to day reality of the child's life such as supervising homework and bed times, imposing day to day discipline, collection and delivery to school and sports training, essentially spending time with parents in more mundane situations. In this way the child is likely to have a more balanced and richer relationship with the parents concerned.”
[8] [2006] FMCA Fam 518 at para.256 to 258
I adopt that interpretation by my brother Brown FM. It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[9].
[9] [2006] FamCA 1346
I have considered also the decision in Mazorski and Albright[10], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantities one. Quantities concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[10] (2007) 37 Fam LR 518 at 526
Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
Her Honour Justice Bennett discussed the terminology in G & C [2006] FAM CA 994 finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
In the recent full Court decision of McCall & Clark[11], their Honours Bryant, Faults and Boland concluded that there are three possible interpretations of s.60CC(2)(a) at paragraph 118:
a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b)a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
c)The third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”.
[11] [2009] Fam CAFC 92
The Full Court concluded that the preferred interpretation of benefit to a child of a meaningful relationship in s.60CC (2) (a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant[12].
[12] Paragraph 119
The Full Court rejected the interpretation in sub paragraph (b) finding that if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[13].
[13] Paragraph 120
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazurka, and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said[14]:
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[14] Paragraph 122
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
Time spent by [X] with the father following separation
The evidence establishes that following separation in early 2003, that [X] spent every second weekend from the Friday to the Sunday with the father with an additional overnight stay in the off weeks, usually a Thursday.
[X] was otherwise looked after by his mother except on approximately on two days a week when she was at University.
Similar arrangements continued during 2004 with [X] spending some additional time with the paternal grandparents arranged with the mother and the father spending some additional time.
Early in 2005 the mother informed the father that she wanted to move to Lismore if she was unsuccessful in obtaining a place in TAFE or University in the Newcastle area.
On 5 May 2005 the parents entered into an agreement following mediation at the Community Justice Centre Newcastle, a copy of which is annexed to the mother’s affidavit[15]. Such agreement provided that the parents would share responsibility for [X]’s care, welfare and development and further, that the mother agreed to reside in Newcastle with [X] until December 2006 following which the father would not prevent Ms Wilson and [X] moving to another area within Australia. The agreement provided further that when or if the mother and [X] move from Newcastle then Mr Fraser would have contact with [X] for a minimum of half of all school holidays or as otherwise agreed between both parents. Part of the annexure is not legible.
[15] Annexure “A” to the mother’s affidavit sworn and filed 30 January 2008
[X] commenced his formal education at the beginning of 2006 at [N] School where he remains a pupil. The parents agreed together upon such school.
The father asserts that during 2006 he was spending between four and five nights per fortnight with [X] comprising every second weekend from the Friday night until back to school Monday morning and in the off week Wednesday and Thursday nights. The mother asserts this did not commence until September 2006 and continued until the end of the year. The mother asserts that this was put into place in anticipation of the mother moving at the end of the year.
During late July and August 2006 the mother went to Melbourne for ten days when [X] stayed with his father and the mother investigated aspects relating to her proposed move and the possibility of enrolling [X] at [O] College.
In September 2006 the mother informed the father that she would not be moving to Melbourne for at least another six to twelve months. There is a dispute on the evidence as to the father’s response with the mother asserting that the father did not oppose the mother moving away from Newcastle with [X] and the father asserting that he told the mother he did not want [X] to move away from Newcastle because he would miss him too much.
At the beginning of 2007 [X] spent increased time with his father arranged largely around the mother’s TAFE roster with [X] spending a total of seven nights with his father during a fortnightly period and a weekend from after school on the Friday to back to school on the Monday morning.
By August 2007 the mother informed the father that she wanted to move to Melbourne in December with [X], and the father requesting the mother not to relocate as he had no wish to be a part time parent although the mother asserts the father did not oppose such move suggesting that he and his wife, Ms C would be able to travel to Melbourne three times per year to see [X].
At a meeting between the parents on 30 October 2007, the mother made it clear to the father that she proposed moving to Melbourne with [X] and the father proposed to prevent her from moving.
Following this incident, the relationship between the parties soured to some extent and it became more difficult to arrange for [X] to spend time with the father both during school terms and during the holidays. However, the father spent time during a portion of each school holiday period, continuing during 2008 and with time during the week which, by the late in 2008 amounted to each alternate weekend during school terms.
The mother asserts, and it is established on the evidence, that the father was sometimes unreliable in spending time with [X] as agreed, or sometimes late which led to arguments between them to which [X] was exposed.
The family report
Doctor Jacobson reported that [X] impressed him as an intelligent child with age appropriate maturity who made an easy rapport with him. Doctor Jacobson formed the impression from speaking with [X] that [X] has a good, if not excellent, relationship with each of his parents as evidenced by the favourable things he had to say about them, and similarly with his step mother. Doctor Jacobson also formed the impression that [X] has fond feelings for his younger half brother, [Y]. Doctor Jacobson concluded that [X] was a young child caught in a tug of war between his parents and who has been made aware of each parent’s desire vis-a-vis the mother’s intention to relocate with him interstate[16].
[16] Paragraph 77 of the Family Report
Doctor Jacobson formed the impression not only does [X] not comprehend the distance between Newcastle and Melbourne, he does not comprehend that it is impractical to spend time with his father according to his wishes if he was to live with his mother in Melbourne. [X] had told Doctor Jacobson that if he was to live in Melbourne with his mother then he would like to spend time with his father “every week something like five days every week”[17].
[17] Paragraph 62 of the Family Report
Doctor Jacobson was inclined to conclude that the mother had lost perspective of [X]’s needs to develop and maintain a relationship with his father, and that whilst the mother may feel some degree of relief following a relocation, [X] was likely to feel increasing distress being separated from his father.
Doctor Jacobson was of the opinion that the mother did not appear to have considered that [X]’s separation from his father was likely to have long term consequences for [X] including, but not limited to, not having the option of having a free-flowing relationship with his father as would be exemplified by the father not being able to have frequent involvement with the school and [X]’s extra curricular activities[18].
[18] Paragraph 80 of the Family Report
Doctor Jacobson was of the opinion that if the Court were to adopt the mother’s proposal to relocate with [X] to Melbourne then a significant change in circumstances would occur for [X] resulting in [X] not being able to spend as much time with his father as he does presently or as frequently and that the distance between Newcastle and Melbourne and the consequent cost would make it impractical for [X] to spend time as much time with his father as he does currently and at the same frequency as would be required to maintain and develop their current relationship.
Doctor Jacobson concluded that [X]’s relationship with his father would be likely to waste away as would his relationship with other members of the father’s family including [Y] and the paternal grandparents. Doctor Jacobson thought that [X] would be likely to feel such loss acutely as he has a high quality relationship with his father. This would lead to [X] starting to pine for his father and perhaps for members of his father’s family. Not only would this be disadvantageous for [X]’s relationship with his father and extended family, it would not be advantageous for [X]’s adjustment to living with his mother interstate[19].
[19] Paragraph 81 of the Family Report
Doctor Jacobson concluded that [X] was well established and in a predictable routine enjoying his current school and his peer group in Newcastle and that any change consequent upon a relocation would most likely be accompanied by some degree of setback as it takes time to make adjustments and would be accompanied by some degree of risk that [X] would not make a satisfactory transition to his new circumstances. For those reasons, Doctor Jacobson concluded that [X] not be enabled to relocate with the mother from the Newcastle area[20].
[20] Paragraphs 82 and 83 of the Family Report
It is significant in my view that whilst Doctor Jacobson was cross examined to some extent about this evaluation, the Doctor did not resile from his conclusions and opinion and there is nothing on the evidence before me that causes me to doubt the basis upon which Doctor Jacobson reached his conclusions.
Doctor Jacobson drew some other conclusions to which I will refer later in these reasons for judgment but ultimately made recommendations that the parents share equally parental responsibility for long term decisions concerning [X]’s care, welfare and development and that the mother be prevented from relocating [X] from the Newcastle area.
The Doctor recommended that [X] spend time with the father on alternate weekends from after school on Friday until back to school on Monday morning, half school holidays, half of special occasions including, but not limited to important religious holidays, birthdays and Fathers Day as well as additional times by agreement between the parents.
Doctor Jacobson concluded that the mother should give the father first right of refusal if and when she requires any assistance in caring for or supervising [X] and made some other recommendations relating to practical parenting, and further, that the mother attend and successfully complete a course of therapeutic counselling for the reasons given in his evaluation.
The mother’s reasons for moving to Melbourne
The mothers given reasons for wishing to move to Melbourne, as deposed to in her affidavit sworn 20 February[21] are that she is extremely limited in work opportunities in Newcastle and would like to obtain full time employment working with children perhaps involving early childhood teaching. The mother claims that job opportunities in this field in the Newcastle area are either non existent or very limited but the only evidence that the mother adduced relates to a search she conducted in November 2007.
[21] Paragraphs 40 and 41
The mother’s present qualification enables her to work in [omitted][22]. The evidence establishes that whilst she has attended TAFE to complete a Diploma, it seems it is necessary for her to attend University to obtain a Degree in [omitted] before she can pursue her chosen career.
[22] Paragraph 49 of the Family Report
The mother also deposes to finding that living in the same city as the father is very difficult for her on the premise that the father’s behaviour is intimidating toward her.
I am not satisfied on the evidence before me that the father has been either deliberately or unwittingly intimidating toward the mother.
Doctor Jacobson formed the impression that the mother’s desire to relocate is in large part motivated to address the discomfort the mother experiences living in the same geographical area as the father and his wife, if not distress. Doctor Jacobson was inclined to conclude that the mother was attempting to avoid unpleasant feelings vis-a-vis the father by relocating rather than taking constructive steps rather than taking constructive steps to resolve her discomfort. Doctor Jacobson concluded that the mother has considerable unresolved issues stemming from the break up with the father and that a geographical solution to emotional problems is not a solution at all. For these reasons, Doctor Jacobson concluded that it was more appropriate for the mother to take steps to address her unresolved thoughts, feelings and issues relating to the father by engaging in therapeutic counselling[23].
[23] Paragraphs 78 and 79 of the Family Report
The impressions and conclusions of Doctor Jacobson as referred to above were not the subject of any extensive cross examination by
Mr Hartley for the mother such that the Doctor resiled from his evaluation. In cross examination Doctor Jacobson affirmed his view that whilst the problems were not of the mothers’ own making he concluded rather than dealing with those problems, whether it be her emotional distress or otherwise, she was trying to avoid dealing with them by trying to move to Melbourne. Doctor Jacobson said that it was the mother’s feelings of hurt and resentment toward the father which are the principal problems about which she would benefit from therapy with a psychotherapist. Doctor Jacobson concluded that the mother has a strong feeling of resentment towards the father.
The child’s relationship with each of his parents
I am satisfied on the evidence that [X] has a very good relationship with his father as a consequence of the amount of time they have spent together, and that the father is committed to maintaining such a relationship.
It is significant, in my view, that Dr Jacobson noted during the observation session for [X] with his father, his wife and their child [Y] that [X] has an obvious relationship with his father and step mother which amounts not only to a close relationship but also many shared experiences with [X] being comfortable interacting with his father and step mother as evidenced by his seemingly spontaneous talk and behaviour[24]. Dr Jacobson also observed an obvious relationship between [X] and [Y] with [X] exhibiting patience and taking pleasure interacting with his younger brother.
[24] Paragraph 74 of the Family Report
Equally, it is significant, and I find on the evidence that the mother has an appropriate fond and loving relationship with [X], and when observed by Dr Jacobson with [X], the mother impressed Dr Jacobson as highly attentive to, and involved with [X]’s play and able to organise activities for him. Dr Jacobson observed an obvious relationship between [X] and his mother.
In the case of both the mother and the father, Dr Jacobson neither overheard or observed anything during the observation sessions which caused him any concerns.
The parent’s relationship with each other
The evidence establishes that the relationship between the parents is very poor. The mother told Dr Jacobson that she wanted nothing to do with either the father or his wife and wanted to be able to get away and not see them[25].
[25] Paragraph 30 of the Family Report
In her affidavit sworn 20 February 2009[26] the mother deposes to living in the same city as the father very difficult and that she describes his behaviour as intimidating and that she wants the father to leave her alone. She says
“I feel that I can’t go down the street without him or his wife or associates approaching me and invading my personal space. I’m approached in shopping centres, soccer games, my work, restaurants, the pub and even my own home. He seems to be ignoring the fact that I want to get on with my life without him…”
[26] Paragraph 41
In cross examination by Mr Levick, the mother said it was not appropriate for the father, if it was not his weekend with [X], to watch [X] play his game of football if [X] was with his mother for that weekend. The mother thought it made a difference for [X] as to who came to watch him play football and the mother said that [X] would understand that his father was not welcome to watch him play football if that was his mother’s weekend.
When asked as to what she thought [X] might think about this she said
“I think that [X] struggles with the angst and animosity between us anyway and I think that has a more detrimental effect on him than us going every other week to his game so we both get to see him play”.
The mother acknowledged to Mr Levick that she and the father are the most important people in [X]’s life but rejected the proposition that [X] may have a bit of difficulty in understanding why his parents don’t get on saying
“I am sure he would like it to be otherwise but he understands the circumstances”.
When asked as to incidents in supermarkets, it was put to the mother that there was one incident at an Aldi supermarket when the mother was shopping there and the father and his wife were shopping at the same time that [X] was with his mother.
It was suggested to the mother that on such occasions that if there had been more than one that what had occurred was the father saying no more than a greeting to [X] and a polite acknowledgement to the mother and that it had not occurred unless [X] was present. The mother disagreed saying that the father knows just how intimidating she finds him and that he still continues to approach her even though he knows she just cannot be around him. On one particular occasion the mother said that after meeting the father in the supermarket, she went to the car park and burst into tears when told by [X] that the father had seen their car in the car park and thought he would come in and find them and say hello.
When asked by me as to what was wrong with the father, on seeing the car making a point of finding her on the presumption that he knows that [X] is likely to be with her and he just happens to be there given the limited time [X] spends with him the mother said:
“I need to be able to get on with my day to day things without having to – as I’ve said I find Mr Fraser intimidating – there’s a lot of reasons why and I’ve just asked, and I do think its better for [X] – I’m not yelling at Mr Fraser, I’m not abusing him I’ve just asked him to respect my personal space. I don’t need that when I’m just out and trying to get things done like going to work or doing the grocery shopping”.
The father acknowledged in cross examination by Mr Hartley that the mother is very disappointed that she cannot move to Melbourne and that he understands her disappointment. He said the mother gets upset with him sometimes and tends not to acknowledge his presence and ignores him finding that that is the normal situation when dealing with her.
The father described a moderate level of conflict between he and the mother at the time of the family report interviews explaining to
Dr Jacobson that he tried not to engage with the mother when he perceived she wanted conflict[27].
[27] Paragraph 18 of the Family Report
The father told Dr Jacobson that he thought that [X] was affected by the conflict between him and the mother making the observation that [X] goes “as stiff as a board” when the mother and he are in close proximity[28].
[28] Paragraph 12 of the Family Report
As to the paternal grandparents whom I am satisfied on the evidence have spent time with [X] independently of the father, I am satisfied that the mother is not able or willing to foster a continuing relationship for [X] with them. The mother conceded that [X] loves his grandparents and that [X] has seen them at a football match and ran over to them to give them a hug. The mother agreed that [X] would be aware that the mother did not welcome the presence of the paternal grandparents near her. The mother said that she no longer felt that she could put her feelings behind her, as to the paternal grandparents in relation to getting on with them for [X]’s benefit. The mother agreed that this continued from at least October 2007.
The mother also perceives that the father intimidates her at [omitted] Centre when he collects [X] at the beginning of his time with him.
The mother’s attitude toward the father is at odds with the demonstrated ability for the parents to have cooperated in the past, particularly following separation and leading up to the latter part of 2007 to discuss and be able to agree upon arrangements for [X] and with a degree of flexibility accommodating not only their work and study but also trips away in the mother’s case to see her family, and work and new family commitments in the father’s case.
On balance, when I come to weigh this evidence and consider it carefully, I find, on the balance of probabilities, the mother has become frustrated in not being able to move away from Newcastle at the end of 2007 as she envisaged and that this frustration now takes the form of anger, bitterness and resentment toward the father. The mother’s resentment is magnified by her understanding that she would be able to move away from the district and is compounded by the arrangements made and the expense incurred in physically arranging to move then to be told by the father that he opposed the move.
To some extent, the father must bear some responsibility for this resentment the mother bears toward him.
More significantly, both parents must bear responsibility in failing to anticipate or take into account the likely affect of the father establishing an increasingly stronger relationship with [X] as [X] grew older and perhaps resisting the mother moving, and the mother not foreseeing the need for [X] to maintain frequent time with his father.
The father’s frustration with the mother arises from the mother’s lack of cooperation with him as to [X] spending time with him from about September or October 2007 when he made it clear he would not agree to the mother moving. I find on the evidence that the mother reduced the time that [X] was spending with the father to fortnightly weekends as opposed to at least twice that amount of time in a fortnight and other occasions prior to the father’s refusal.
There was no good reason on the evidence before me for the mother to reduce [X]’s time with the father at that time.
I find on the balance of probabilities, that on the evidence before me the relationship between the parents is poor and unlikely to improve unless both are able to give [X]’s best interests significant priority over their relationship with each other.
This factor alone leads me to conclude that an arrangement for [X] to live with his parents under an equally shared arrangement is doomed to failure and is not in [X]’s best interests. [X] can however be protected to a very large extent from his parents coming into contact with each other, especially when he is present and I will make Orders to ensure, as best I can, that this objective is achieved.
Dr Jacobson reports, and I accept, that the mother is [X]’s dominant attachment figure. I accept Dr Jacobson’s conclusion, which was not subject to any significant challenge, that [X] should live principally with his mother[29].
[29] Paragraph 86 of the Family Report
Application of Section 60CC
As to section 60CC I make the following observations and findings:
(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
There is no doubt on the evidence before me that [X] is loved by both his mother and father and members of the father’s extended family and that both parents care about him and would like an outcome that ensures that he has a continuing relationship with each of them.
I am satisfied on the evidence as to the activities which [X] has enjoyed in the household of each parent. This has led to [X] benefiting from a meaningful relationship with each of his parents even though he is now spending less time in his father’s household than he has in the past. The father deposes to the extensive activities to which [X] has been exposed and which he has enjoyed as well as visits with and activities with the father’s extended family.
I find on the evidence that the benefit of the meaningful relationship [X] currently has with both his parents is well established and ought, in his best interests, to be enabled to be continued without disturbance, and probably enlarged. I find, on the evidence, that it is most likely that the present meaningful relationship with the father flows from not only the frequency of time he has spent with his father but also the quality of that time and the wide range of activities and relationships to which [X] has been exposed.
It seems to me that if [X] were enabled to live with the mother in Melbourne there would be an inevitable disturbance to the frequency of time and to the nature of the activities which [X] would be able to enjoy in his father’s household. For example, there would be a considerable reduction in weekend time from the currently not less than five weekends per school term with no opportunity at all for involvement in extra curricular sporting activities or school activities unless the father was able to visit Melbourne.
Doctor Jacobson gives very clear unchallenged evidence that if [X] is not enabled to spend time with his father as regularly and as frequently as he does at present, and by inference be as involved in his activities as he presently is then [X]’s relationship with his father is likely to atrophy.
On the evidence before me, that risk is not warranted. [X] should be enabled to continue to benefit from the meaningful relationship he currently has, and which the father proposes continue.
I conclude that upon the evidence before me, it is of considerable benefit for [X] to continue to have a meaningful relationship with both his parents.
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst I am satisfied on the evidence before me that neither parent will willingly expose [X] to risks of this nature, and whilst I am satisfied that occasions have occurred in the past when the father’s conduct toward the mother and hers toward him have amounted to family violence there is no evidence before me that either parent currently presents a risk of this nature save for the possibility that the parents may exhibit anger with each other.
[X] is well aware of the fact that his mother and father do not get along and become angry with each other but is not aware of why this occurs. When asked by Doctor Jacobson as to how he felt about the anger between his parents he said:
“Not too bad.”[30]
[30] Paragraphs 61 of the Family Report
Insofar as such arguments between the parents are of concern and represent a risk for [X], it seems to me that orders which result in the parents having minimal opportunity to confront each other when [X] is physically present will reduce the risk of exposing [X] to psychological harm from observing his parents argue. Also on the evidence before me, there is nothing on the evidence to indicate that [X] has so far suffered any psychological harm as a consequence of such arguments.
Additional considerations are:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The most reliable evidence as to the views [X] has expressed is found in the Family Report following his discussion with Doctor Jacobson. Both parents depose to statements made by [X] to each of them and to the father’s present wife but these are likely to be less reliable given [X]’s awareness of the conflict between the parents and his mother’s wish to leave Newcastle and move with him to Melbourne.
[X] told Doctor Jacobson that he would like to spend some additional time with his father and could recall spending time with him from the conclusion of school on Friday until the commencement of school on Wednesday morning. As to his mother’s wish to move to Melbourne, [X] told Doctor Jacobson:
“I’m not sure if I want to live there or here”
adding that as he has always lived with his mother and that he would like to live with her[31].
[31] Paragraph 32 of the Family Report
When asked by Doctor Jacobson as to his experience when the week about residential arrangement was in place [X] told Doctor Jacobson:
“It was good but mum and dad had an agreement that if she stayed her for three years, she could move anywhere in Australia then this happened.”
[X] told Doctor Jacobson that the current proceedings arose:
“Because dad doesn’t want us to leave.”
When asked as to his feelings about the mother’s proposal [X] told Doctor Jacobson:
“I’m not really sure.”
adding that he was uncertain as to the longest amount of time he had been separated from his father[32].
[32] Paragraph 64 of the Family Report
[X] told Doctor Jacobson that he would like to live in Melbourne for the reason that he would like to see his uncle and also said to Doctor Jacobson:
“So mum can be happy where she is and so dad can be happy where he is.”[33]
[33] Paragraph 65 of the Family Report
When asked in relation to his mother’s happiness, [X] told Doctor Jacobson that his mother is unhappy living in Newcastle because, when asked how he knew this to be the case:
“It’s because she can’t visit her family and there are no jobs for her here.”
When asked how he would feel if his mother did not move to Melbourne [X] told Doctor Jacobson:
“Probably just the same but it would be harder because mum can’t find a job anywhere.”
It seems to me I can attach some weight to [X]’s views as expressed to Doctor Jacobson, given his age and his awareness of the difficulties between his parents although I make allowance for the fact that he does not have an understanding of the issues associated with the distance between Newcastle and Melbourne. However, I give significant weight to his expressed wish to spend some additional time with his father which I find on the evidence flows from the well established relationship he has with his father, especially taking into account separation a little more than six years ago.
b) the nature of the relationship of the child with:
each of the child's parents; and
ii) other persons (including any grandparent or other relative of the child);
The evidence establishes that [X] has a very close and loving relationship with both of his parents. I am equally satisfied that [X] has a very close and loving relationship with his step mother, Ms C and close, loving and developing relationship with his half brother [Y] and the paternal grandparents. Doctor Jacobson observed that [X] was gentle while interacting with [Y] and patient with him and seemed to take pleasure interacting with his younger brother[34].
[34] Paragraph 75 of the Family Report
The evidence of Doctor Jacobson as to these matters was not the subject of any challenge during the course of the hearing.
Whilst there is no direct evidence before me of [X]’s relationship with the maternal grandparents, who live in Brisbane, he has visited them and there is no reason on the evidence before me to conclude that it is other than a loving and caring relationship with them.
The mother’s brother lives in Melbourne and whom the mother sees occasionally sometimes with [X]. I am satisfied on the evidence that [X] has spent some time with his maternal uncle.
I conclude on the evidence before me that if [X] remains living in Newcastle his present well established relationship with his father and members of the father’s household and the paternal grandparents and the mother and the maternal grandparents will be enabled to continue as it is and flourish. If however [X] lives in Melbourne his time with his father and members of the father’s household will be significantly reduced which, in my view, is not conducive with continuing the relationship which [X] currently has and which I find on the evidence is of considerable benefit to him.
c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
For reasons given earlier, the mother demonstrated a lack of insight when she elected to reduce the time [X] had been spending with his father, and when she perceived the father was unreliable and failed to honour obligations he made to her.
I find on the evidence that there were occasions when the father was unreliable but the combination of the parties failure to communicate successfully concerning flexibility and the mother’s failure to consider the effect upon [X] of reducing the time he was spending with his father, which clearly he enjoyed from his descriptions to Doctor Jacobson amount to an inability on the part of the mother to recognise the importance of a free-flowing relationship with his father, and to which Doctor Jacobson refers in paragraph 80 of the Family Report, especially if the father is unable to have frequent involvement with [X]’s school and extra curricular activities if [X] is living in Melbourne.
The mother’s proposed move to Melbourne, given her strong feeling of antipathy toward the father which I find exists on the evidence, is likely to result in the mother being less willing and able to ensure [X] maintains a close and continuing relationship with the father and his family, and for a number of reasons.
If the mother moves to Melbourne, she plans to complete her education but she has no firm proposal concerning where she may do this, or where she may live, except for staying with her brother initially, and there is considerable uncertainty as to employment. Whilst the mother asserts that she would be able to find employment easily given her present qualifications she does not have a firm offer of employment. Further, the mother has no family support, with the exception of her brother. She would also need to contend with [X]’s re-establishment in a new school, making new friendships and missing his father and his family. It seems to me that these factors together are likely to make it more difficult for the mother to promote [X]’s relationship with his father, even though I accept the mother would have every intention of complying with the proposal she makes.
On the evidence before me, I am satisfied that the father will ensure that [X] continues his close relationship with his mother, irrespective of whether [X] is living in the Newcastle area or Melbourne.
d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
This consideration is central to the present dispute between the parents.
Pursuant to the mother’s proposal [X] would not be able to spend time with his father as easily and frequently, if he were to live in Melbourne, as currently he enjoys whilst living in Newcastle, and the father remains in Newcastle.
For reasons given earlier, and which is unchallenged, Doctor Jacobson concludes that [X]’s relationship with his father is likely to waste away, as would his relationship with other members of the father’s family if [X] were living in Melbourne and the father and his family remained in Newcastle.
There was nothing in the mother’s written evidence as to basic factual material as to flying between Newcastle and Melbourne and return, the costs, identity of the carrier, available fare structures and frequency and the ability for children to travel unaccompanied. For this reason, I gave Mr Hartley leave to adduce such evidence from the mother.
I am satisfied that it is feasible to fly between Melbourne and Newcastle and return and that the flights are reasonably frequent, [X] can travel unaccompanied and there are advantageous fare structures.
I am not satisfied on the evidence as to the mother’s ability to afford frequent travel for [X] but to that extent, I take into account the generous offer by her brother, Mr W to pay [X]’s airfares to and from Newcastle.
In considering the costs of meeting airfares I take into account the father’s evidence concerning his financial circumstances given during cross examination. In summary, the father is engaged in a business concerned with [omitted]. The father and his wife gave the impression of being confident in the future prospects of such industry but at the present time they live off a line of credit both for their business and domestic expenditure which has a cap of $224,000.00 and is drawn to $205,000.00. The income from the sale of [omitted] products is modest but is likely to improve. The father pays very modest child support of $93.00 per month.
The home the father occupies in [S] is owned by his wife and secures the line of credit. The father also owns a yacht which he estimates has a value of $16,000.00 and paid from the line of credit.
The father conceded that the amount of child support he pays does not meet the cost of supporting [X] and considered it had not occurred to him to sell his yacht to make a greater contribution towards [X]’s costs.
Ms C derives additional income from teaching [omitted] courses assisted by a government grant.
On the evidence before me, the father has no wish to move to Melbourne or indeed away from the Newcastle district which is perhaps not surprising bearing in mind his fledgling business is based in Newcastle and tied in particular to the [omitted] of the Hunter basis and is not an interest which is portable. The father has established a home in Newcastle with his present wife and their young son and the husband’s parents are also in the same district.
It is unrealistic in my view to consider this case on the basis that the father could or there is some prospect of the father relocating to Melbourne.
Consequently, I find on the evidence that neither family is in a strong position financially although the father is in a stronger position to assist with the cost of [X] travelling to and from Melbourne.
ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Doctor Jacobson considered that if [X] moved to Melbourne, and his father remained in Newcastle, [X] will start to pine not only for his father but perhaps for members of the father’s family. In that context, I find that such family includes Ms C and [Y] and to a lesser extent the paternal grandparents. Doctor Jacobson considered that this would not only be disadvantageous of [X]’s relationship with his father and members of his father’s family, it would not be advantageous for [X]’s adjustment living with his mother interstate[35].
[35] Paragraph 81 of the Family Report
Doctor Jacobson considered, and this was not the subject of any challenge, that [X] appears to be well established in a predictable routine and appears to enjoy his current school and his current peer group. Doctor Jacobson concluded that any change that would flow from a relocation is likely to be accompanied by some degree of setback as it takes time to make adjustments of this nature and are accompanied by some degree of risk that [X] would not make a satisfactory transition to his new circumstances[36].
[36] Paragraph 82 of the Family Report
Doctor Jacobson concluded that [X] should not be enabled to relocate with the mother from the Newcastle area.
e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
I have referred in some detail to this consideration above and the likely effect of any changes.
There is also a significant practical difficulty if [X] is living in Melbourne in [X] travelling to and from Melbourne, especially one weekend per term. It is not the time in the air alone which must be taken into account it is the inevitable required waiting time at airports prior to embarkation, travel to and from airports which inevitably are on the fringes of modern cities, and is certainly the case with Newcastle and Melbourne and occasional delays.
Whilst [X] has expressed to his mother some enthusiasm for flying it seems to me more likely that it is a journey which will cease to be appealing as he grows older especially if his mother is reluctant to encourage him to spend time with his father.
This sub-section otherwise has no application if both parents remain in Newcastle given the short distance and a journey of no more than
10 minutes between the parents present homes and the location of [X]’s present school.
f) the capacity of:
each of the child's parents;
ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied on the evidence before me that both parents are able to provide for [X]’s day to day physical needs and to a very large extent, his emotional and intellectual needs.
It is only in respect to the mother’s loss of perspective of [X]’s needs to develop and maintain a relationship with his father, that the mother, in making her present proposal, may fail to provide for [X]’s emotional need for such relationship with his father.
If however the mother remains in the Newcastle area, and given the nature of these proceedings during which both parents have been placed under the microscope with their parenting ability and strengths and weaknesses having been tested and examined closely, I am satisfied that if the mother remains in the Newcastle area the mother will be better able to meet [X]’s emotional needs as to not only the continuation and maintenance of his relationship with his father but also its development.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
[X] is a young boy who on the evidence before me is intelligent and articulate and aware of the conflict between his parents. He has no special needs to be taken into account.
As to his parents, I am satisfied on the evidence that neither parent has any lifestyle matters which affect adversely the ability to care for [X] and meet his needs.
h) if the child is an Aboriginal child or a Torres Strait Islander child:
the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii) the likely impact any proposed parenting order under this Part will have on that right;
On the evidence before me, this paragraph has not application.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have referred to this to a large extent earlier in these short reasons for judgment and add that it reflects poorly on their joint responsibility as parents that they have not been able to make significant progress in improving their communication with each other and about which Doctor Jacobson makes very clear observations.
I propose to make an order that the mother see a suitably qualified family therapist or psychologist or therapeutic counsellor to assist with and address her unresolved thoughts, feelings and issues in relation to the father, as recommended by Doctor Jacobson. I am of the opinion that this is all the more important both for the short term and the long term for the mother given that she will be most likely disappointed with the outcome of these proceedings if she is unable to move to Melbourne but perhaps more importantly, it is the relationship between her and the father which requires improvement in [X]’s best interests, irrespective of where she lives.
The father must also bear some responsibility for the poor level of communication given his original agreement that the mother could leave the area at a certain time and his subsequent resiling from that agreement, and whilst the father said that he entered into the agreement under duress, the father at that time did not think about the consequences for [X] given that his evidence was that he knew of the very clear wish on the part of the mother to leave.
It behoves the father to ensure that he keeps to arrangements made for [X] to move between the parents respective households, to be on time and to keep to arrangements that have been made. In this way, and with the assistance to which I have referred, both parents are likely to be able to communicate much more successfully with each other and establish a degree of trust.
j) any family violence involving the child or a member of the child's family;
I have referred to this earlier in these short reasons for judgment and no further observation or finding is necessary.
k) any family violence order that applies to the child or a member of the child's family, if:
the order is a final order; or
ii) the making of the order was contested by a person;
On the evidence before me there is no current family violence Order in force.
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In framing the Orders I propose to make, I will endeavour to avoid the need for further proceedings.
m) any other fact or circumstance that the court thinks is relevant.
Whilst the mother may initially be unhappy if she is required to remain in the Newcastle area, there is no evidence before me that her unhappiness, if indeed she remains unhappy, will have an adverse impact upon her capacity to continue to parent [X].
Whilst Doctor Jacobson suggested that the Court may need to consider as to how [X] could spend time with members of his mother’s family during times that do not interfere with his education[37], it seems to me that there is no practical way that this can be achieved. The mother’s parents live in Brisbane and there is very little evidence before me as to how frequently they visit Newcastle. It is not appropriate, in my view, for [X] to be removed from school during the school term to spend extended periods with his maternal grandparents. [X]’s increasing age requires continuity of attendance at school to enable him to achieve his educational milestones particularly as he approaches the end of Primary School and prepares for his Secondary education. It remains open to the mother to travel to Queensland when [X] is staying with her during school holiday periods, if indeed her parents are not able to visit Newcastle.
[37] Paragraph 88 of the Family Report
If however the mother was to spend some extended time with her family, whether it be in Brisbane or Melbourne, I am satisfied on the evidence that the father can look after [X] and it would be appropriate in those circumstances for the mother to make arrangements for [X] to stay with the father.
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
to participate in making decisions about major long‑term issues in relation to the child; and
ii) to spend time with the child; and
iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
participating in making decisions about major long term issues in relation to the child; and
ii) spending time with the child; and
iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these matters at some length earlier in these reasons and no further observation is necessary.
Section 61DA
When making a parenting Order, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child, subject to the presumption not applying or being rebutted under circumstances provided in this Section.
Both parents propose equal shared parental responsibility and whilst that, by itself, is not a reason to make such order I am satisfied from my observations of the parents whilst giving evidence, and the evidence of Doctor Jacobson, that it is appropriate to make such an order, even though the communication between them is poor. I am satisfied having observed them that in relation to major considerations each parent will be able to put any continuing personal issues aside to confer and in all probability agree about major decisions.
I will set out the matters about which they are required to consult with each other so there is no doubt as to their reciprocal obligations.
Section 65DAA
Consequent upon making an order for equal shared parental responsibility the Court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.
Section 65DAA (5) provides that in determining whether it is reasonably practical for a child to spend equal time, or substantial and significant time with each of the child’s parents, the Court must have regard to:
a)How far apart the parents live from each other; and
b)The parents current and future capacity to implement an arrangement for the child spending time, or substantial and significant time, with each of the parents; and
c)The parents current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement of that kind; and
d)The impact that an arrangement of that kind would have on a child; and
e)Such other matters as the Court considers relevant.
This is not a case were I am persuaded that it is in [X]’s best interests for him to spend equal time with each of his parents. My reasoning is based on the observations, evaluation and conclusions of Doctor Jacobson, which were not the subject of any serious challenge such that he changed his recommendations.
Further, the father is not available to meet [X]’s everyday practical needs given his evidence in cross examination, especially given his commitment to developing his business further. I am also concerned as to the father’s past inability to meet arrangements made with the mother for the collection and return of [X]. Further, I take into account [X]’s dominant attachment figure is his mother.
It seems to me however it is in [X]’s best interests for me to consider him spending substantial and significant time with his father and family whilst living predominately with his mother and which I conclude is likely to be in his best interests.
I conclude therefore it is in [X]’s best interest to live predominately with his mother and spend substantial and significant time with his father.
When considering the appropriate time for [X] to spend time with his father, Doctor Jacobson[38] suggested that “at the very least” [X] spend time with his father on alternate weekends, half of school holidays, and other occasions to which he refers. In cross examination by Mr Levick, Doctor Jacobson agreed that such recommendation was the minimum and said words to the effect that the more time spent by [X] with his father, the more the effects of unhappiness would be balanced and mitigated against.
[38] Paragraph 87 of the Family Report
In response to a further question, Doctor Jacobson told Mr Levick it would be for [X]’s benefit if he were to spend fortnightly periods with his father from after school on a Wednesday until back to school the following Monday morning, especially for building the relationship with [Y] and the baby yet to be born.
Doctor Jacobson said in response to a question from me in relation to this evidence, and if [X] was to spend such a period of time in the father’s household was there a risk that the mother’s resentment toward the father could become worse or stronger and [X] be affected by that? Doctor Jacobson thought it was possible.
I asked Doctor Jacobson whether he thought that it would be likely to have an adverse affect on [X], in the sense of [X] becoming perhaps resentful toward his mother because he perceived her to be unreasonably obstructive to him spending time with his father. Doctor Jacobson said that it may not happen now at his present age but eventually it could really contaminate his relationship with his mother.
When asked by me whether Doctor Jacobson thought a period from Wednesday after school until Monday morning was appropriate or not, Doctor Jacobson said that if the mother could shield [X] from the acrimony that the mother has toward the father, and is not aware of it then he could not see a problem with [X] spending time with his father for that period.
In answer to a further question from me, and in reference to some paragraphs in the Family Report, Doctor Jacobson concluded in general terms that the mother had protected [X] from exposure to some of her feelings and had not made comments to him which were insulting or derogatory of the father and his present wife.
Doctor Jacobson said there was no evidence which he had seen to suggest that the mother’s unhappiness had affected her ability to parent [X].
The relocation proposed by the mother
If the mother remains in the Newcastle area, [X] will be able to live predominantly with her and spend substantial and significant time with the father.
If the mother moves to Melbourne with [X], [X] will continue to live predominantly with his mother but will not be able to spend substantial and significant time with his father, for reasons to which I have referred earlier in this judgment.
On the evidence before me, there is no prospect of the father relocating to Melbourne and indeed, I find on the evidence that it would not be practical for him to consider doing so given his remarriage and his younger son [Y] and his ties to the non relocatable business he is now establishing.
It is appropriate that I consider the advantages and disadvantages of the prospective proposals.
If [X] were to remain living in Newcastle, he would continue to live predominately with his mother, his mother is able to care for him, his mother is his primary attachment figure and he would be able to see his father and members of his family on a regular basis both during school terms and school holidays thus enabling [X] to continue the development of his relationship with his father and his family, and he would be able to develop his growing relationship with his paternal grandparents. It will also be easier for him to see the maternal grandparents who live in Brisbane.
The disadvantage if [X] continues to live in Newcastle with his mother is that the mother may continue to feel frustrated in not being able to move to Melbourne to achieve her desired wish and where she perceives there are better prospects for continuing her education and obtaining employment in her chosen field.
The advantages for [X] to live with his mother predominately in Melbourne would be that his mother would at least be able to pursue her education and employment opportunities and spend time with his uncle and cousins and perhaps benefit from greater financial security if the mother is able to do as she wishes but the evidence is far from clear that this would in fact be the case.
The disadvantages for [X] living in Melbourne would be the real likelihood that his relationship with his father would waste away as would his relationship with other members of his father’s family including the father’s present wife, their child [Y] and the paternal grandparents as a consequence of not being able to spend time with them as regularly as he does now. For the reasons given by Doctor Jacobson, [X] is likely to feel the loss of such relationships acutely as he has a high quality relationship with his father.
A further disadvantage is the burden of travel for [X] from Melbourne to Newcastle to maintain a relationship with his father and extended family and the attendant cost.
Further, I am not able to ignore as a disadvantage the inevitable disturbance to [X]’s present education and disturbance of his present school and peer group.
Final Conclusion
When I compare the respective proposals and the advantages and disadvantages my conclusion at the end of the day is that I give greater weight to the need for [X] to be able to continue to maintain and develop the relationship with his father and members of the paternal family which therefore requires [X] to live in reasonably close proximity to his father. In coming to this conclusion, I have considered and weighed carefully all the evidence before me, particularly that of Doctor Jacobson.
I could not be satisfied that [X]’s present good relationship with his father will be maintained if the mother was enabled to move to Melbourne. To contemplate otherwise would be to deny [X] the right he has to live with and be brought up by both his parents.
I accept that the mother will be, in all probability, disappointed with my decision but I take into account the evidence before me that the mother’s parenting ability will not be affected adversely if she remains in Newcastle.
I have taken into account the mother’s right to choose her place of residence and freedom of movement. The mother should be enabled to relocate if it was in [X]’s best interests but for the reasons that I have given earlier, this would endanger [X]’s relationship with his father and quite possibly irreparably. That risk is not warranted and is to be avoided.
I have considered very carefully whether it is possible for the Court to formulate different arrangements for the time [X] is to spend with each parent and I conclude that it is not possible for me to do so given the significant difficulties the parties experience in communicating with each other.
Having concluded that [X] should remain living in Newcastle, and primarily with his mother, I find on the evidence that the amount of time [X] spends with his father should be as recommended by Doctor Jacobson, and consequently substantial and significant time as opposed to equal time.
It seems to me unnecessary for me to make an Order restraining either parent but in particular the mother from changing the place of residence of [X] to a place outside the immediate Newcastle area without first obtaining the consent in writing of the other parent or pursuant to an Order of the Court. My reasoning is that the mother had consented voluntarily to remaining in the Newcastle area until the proceedings were concluded and I am satisfied she will remain in the Newcastle area upon the completion of these proceedings. The father has no proposal to leave the district. Further, the Order I propose to make for equal shared parental responsibility requires the parents to discuss and agree upon any changes to [X]’s living arrangements that make it significantly more difficult for him to spend time with either of his parents. The Orders I propose will facilitate changeover taking place at [X]’s school during school terms and at the parent’s respective homes on other occasions.
As to communication by telephone, the evidence establishes that this has been flexible in the past but I will make an Order that in the absence of agreement, this occur early on Monday evenings each week with the father to telephone [X] at that time given that [X] will be spending considerable time with his father.
For these reasons, I make the following orders.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: J Manners
Date: 9 July 2009
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