Friscioni & Friscioni
[2009] FamCA 45
•2 February 2009
FAMILY COURT OF AUSTRALIA
| FRISCIONI & FRISCIONI | [2009] FamCA 45 | |
| FAMILY LAW – CHILDREN – Relocation proposal by mother to return live in the Czech Republic with 10 year old daughter – order permitting relocation FAMILY LAW – PROPERTY – Major asset equity in apartment in the Czech Republic | ||
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Friscioni |
| RESPONDENT: | Mr Friscioni |
| INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
| FILE NUMBER: | CSC | 445 | of | 2008 |
| DATE DELIVERED: | 2 February 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Moore J |
| HEARING DATE: | 4, 5, 12 December 2008 12 January 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mrs Pack |
| SOLICITOR FOR THE APPLICANT: | Ms Reaston, O'Reilly Stevens Bovey |
| COUNSEL FOR THE RESPONDENT: | Ms Willis |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
Orders
Parenting:
The mother is to have sole parental responsibility for … born … November 1998 (“the child”).
The mother is permitted to relocate with the child to the Czech Republic.
The child is to live with her mother.
The child is to spend time with her father as follows:
a. for a 6 week period in each year,
i.such time to occur in Australia, being at T or such other place nominated by the father, unless specifically agreed otherwise between the parents;
ii. such time to coincide with the child's summer holiday;
iii.such time is not to include any travel time to/from Czech Republic;
iv.the mother or a responsible adult nominated by her is to be responsible for delivering the child and collecting her from the Cairns airport or other destination in Australia agreed by the parents; and
v.the costs of travel for the child and an accompanying adult is to be shared equally between the parents.
b. for a period of up to 2 weeks in each year, with such time:
i. to coincide with the child's Christmas holiday period, and
ii. to include Christmas day in each alternate year;
iii.to occur in the Czech Republic or in Italy as nominated by the father by notice in writing no later than two (2) months prior to the commencement of the period;
iv.the father is to be responsible for collecting and returning the child from her mother’s residence in the Czech Republic.
c.for a period of up to 3 weeks on no more than 2 occasions each year in the child's home town in the Czech Republic provided the father:
i.gives the mother at least one (1) month’s notice in writing of his intention to do so; and
ii.ensures the child attends school and any extra curricular activities in which she is enrolled while in his care;
d. during any other time as agreed between the parents.
The father may communicate with the child as follows:
a.by telephone, email, webcam, skype, or by ordinary mail at all reasonable times;
b.the mother is to be responsible to initiate one phone or skype or webcam communication to the father each week;
c.the mother is to ensure the child is provided privacy during any communication with her father;
The mother to facilitate and encourage all reasonable communication between the child and her paternal grandmother.
The mother is have reasonable communication with the child during any time that she is in her father’s care and the father is to facilitate the child contacting her mother at any time she expresses a wish to do so.
The mother is to keep the father informed, in a timely manner, of all major decisions made about the child including education, extra curricular activities and health related matters.
The mother is to provide the father with copies of all school reports and other documentation relating to the child's progress at school and/or in extra curricular activities.
Each parent is to keep the other informed of their address and current contact details including telephone numbers, email addresses, webcam or skype.
The father is restrained from drinking alcohol to excess or from being under the influence of alcohol or smoking marijuana while the child is in his care.
Property settlement:
On or before one month from the date of these orders the husband is to do all things and sign all documents necessary to transfer to the wife all his right, title and interest in the apartment and its contents situated at L, Czech Republic.
The wife is to indemnify the husband and keep him indemnified against all liability for debt owing to the wife’s parents pursuant to any loan agreement.
Unless otherwise specified in these orders each party is entitled to retain solely to the exclusion of the other all property in the ownership and possession of that party as at the date of these orders, including chattels, bank accounts, and superannuation entitlements and for that purpose the contents of the apartment referred to in order 11 are deemed to be in the possession of the wife.
If either party refuses of neglects to sign any documents necessary to give effect to the terms of these orders within fourteen (14) days of a written request to do so, the Registrar of the Family Court of Australia at Townsville is hereby appointed pursuant to the provisions of s.106A of the Family Law Act to execute such documents on behalf of the defaulting party.
IS NOTED that publication of this judgment under the pseudonym Friscioni & Friscioni is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FILE NUMBER: CSC 445 of 2008 MS FRISCIONI And MR FRISCIONI |
REASONS FOR JUDGMENT
Proceedings
This decision is about the future arrangements for the parties’ 10 year old daughter, and division of their property.
The mother wishes to return to live in the Czech Republic [CR] and take the child with her. In that event, apart from regular communication with her father by various means, she proposes annual visits for the child back to T and time with her father when he visits Europe, either in the CR or in Italy where he has family. If orders do not permit this, she has made it clear she will not leave without the child and in that event she proposes the child remain living primarily with her at T and spend time regularly each week with her father. The father wants the child to remain living at T. If the mother also remains, he proposes a shared care arrangement. If the mother returns to the CR he proposes visits for the child to her mother there each year; however, since the mother has ruled this scenario out, that can be put aside. The particulars of the formal orders sought are set out in a schedule to these Reasons.
The independent children’s lawyer [ICL] supports the mother’s proposal to relocate and the particulars of the orders proposed are also set out in the schedule.
Whatever the decision, it will obviously have significant implications for the child, directly and indirectly.
Approach
In making parenting orders, the best interests of the child are the paramount consideration [s 60CA]. The Act requires they be determined by having regard to a variety of factors identified as ‘primary considerations’ and ‘additional considerations’ [s 60CC (2)(3)] as elaborated in other sub-sections [s 60CC(3)(4)] and spanning these considerations is the obligation to have regard to specific objects and principles [s60B(1)(2)]. After discussion of the material facts these matters will be evaluated and it will be necessary also to consider the application or otherwise of a statutory presumption related to equal shared parental responsibility and from there to consider whether it will be ‘reasonably practicable’ and in the child’s best interests to spend equal time between her parents and, if not, ‘substantial and significant’ time with each of them. If those outcomes are rejected her arrangements will be decided according to the assessment of her best interests and what is reasonably practicable having regard to all of her circumstances.
These provisions constitute a large body of decision-making directives which are of universal application, including to a parent’s proposal to relocate some distance from where they now live. But there is a body of case law about such proposals, mostly decided before the amendments brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006 – to mention some, AMS v AIF (1999) 199 CLR 160, (1999) FLC 92-842, (1999) 24 FamLR 756; Paskandy and Paskandy (1999) FLC 92-878; A and A: Relocation Approach (2000) FLC 93-035; U v U (2002) FLC 93-112, (2002) 29 FamLR 74; D and SV (2003) FLC 93-137; and Bolitho and Cohen (2005) FLC 93-224 – and since the amendments, cases such as Taylor and Barker [2007] FamCA 1246. I have discussed and summarised elsewhere what I consider to be the fundamental principles arising from these cases as follows:
· ‘relocation cases’ are parenting cases to which the same provisions of Part VII apply as they do to any other parenting case;
· the child’s best interests is the paramount but not the sole consideration;
· each of the proposals advanced by the parents has to be identified;
· in evaluating the evidence (i) neither parent bears an onus to establish a proposed change or continuation of an existing arrangement will best promote the best interests of a child; (ii) regard must be had to the right of freedom of movement of a parent though that may have to cede to the child’s best interests; and (iii) matters of weight are to be explained;
· the evidence is to be evaluated against the relevant Part VII provisions under the span of the objects and underlying principles in any convenient order, though logic suggests the s 60CC factors would come first before the application or otherwise of the presumption about parental responsibility and the resulting time considerations; however, if the presumption applies the obligation to consider equal time or substantial and significant time is to be undertaken separately initially by looking to the child’s current circumstances before balancing the advantages and disadvantages of either outcome against the advantages and disadvantages that would flow from the proposed relocation.
· the outcome is not confined to the proposals put by the parents but all options to secure the child’s best interests may be considered;
· one option may be the other parent’s willingness or ability to move to be nearer the child after the move; and
· the parent proposing to move does not need to establish compelling reasons to justify the relocation.
Evidence
To support the mother’s case there are 15 witnesses, not all of whom were required for cross-examination. A number are friends of hers but, apart from a passing reference to Ms N as ‘partisan’, there is no submission suggesting their evidence was skewed in her favour as a result, and from my point of view those that did give further evidence were all relatively straightforward in their manner and there is no reason to question their veracity.
The father supported his case with 5 witnesses who were not all required for cross-examination. Similarly, their evidence did not attract any criticism in submissions and nor is there any reason to reject what they had to say.
On 28 October 2008 the Registrar made an order for a family report without specifying the particular matters the reporter was to address. The report is wide ranging and includes identification of the issues, the current arrangements, and future proposals, it summarises the interviews and records observations of the child with her parents and, via web-cam, with her maternal grandparents and the mother’s partner in the CR, and it records the reporter’s assessments. The report concludes with a recommendation about the outcome; namely, shared parental responsibility ‘and status quo in regards to living arrangements’ along with the observation that the Court may see merit in the father contributing to the cost of the child’s annual travel to the CR.
Of course the family report process gives reporters a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life, and their assessments are based on the body of learning related to their professional qualifications and experience. But they do not have the advantage of hearing the evidence tested or of observing those involved in a different setting. Nor, usually, is it apparent that they have arrived at the outcome they recommend by taking the path imposed by the Act through the suite of provisions about best interest considerations, parental responsibility and time. Some of the components which underlie the best interest considerations fit well with their expertise and invariably their evidence about that is very important, but the outcome is for the court and while recommendations about it may be helpful in some cases, not the least with settlement discussions, plainly that does not prevail over the court’s responsibility to evaluate all of the evidence, including that given by the reporter, via the structure imposed by the Act and to come to an independent decision about what is best for the child in all the circumstances.
In this case the reporter’s evidence has been helpful but in a decision that can have no universal happy result either way, the weight of the evidence points to a different result.
Background
The mother (34) was born in the CR. She came to Australia in 1997 with a view to staying temporarily while she studied English. The father (40) was born in Italy and came to Australia as a young child with his family who settled in Sydney. They met in Sydney in 1997 while working in the same restaurant. She fell pregnant and their relationship took a different turn. In May 1998 they travelled to L in the CR, where the mother is from, and they married there in August 1998. Their daughter, the subject child, was born there in November 1998. They returned to Australia shortly after her birth and went to live at T in far north Queensland. The father’s mother, who was living there, had arranged employment for him. They have now lived there for a decade.
In that time the mother and the child have returned each year to the CR for a number of weeks and they lived in L for a year in 2006/07 when the mother worked and the child attended school. The father has either accompanied them or joined them for part of the time during the annual visits. As for the long stay in 06/07, he accompanied them initially but he returned to far north Queensland for a few months before again joining them in L. They purchased an apartment in L during this time. They returned to Australia in July 2007 but they separated shortly afterwards on 31 October 2007.
Since the separation they have agreed about the child’s arrangements to a point – she has lived primarily with her mother and has spent time regularly with her father.
In July 2008 the mother instituted the current proceedings seeking to relocate with the child to the CR and at the same time she sought interim orders including an order permitting her to travel with the child to the CR for a holiday. Interim orders were made by consent on 11 August 2008 providing for the child to live with her mother and spend two days per week and other times agreed with her father - indeed, the child has spent additional time with her father after school - and the mother was permitted to travel with the child to the CR which she did between 2 September and 4 October 2008.
The mother paints a positive picture of a close family background in L where regular trips have sustained relationships and her attachment to the Czech culture and traditions. She was educated in the CR to university level, her qualifications apparently being akin to an arts degree, although she has not been able to make use of those qualifications in Australia. From the time the child was about two years of age she has had stable full time employment in T doing clerical work and during the long stay in L she worked teaching English and doing clerical work. She acknowledges that her husband has not been happy in the CR, she recognises that he finds the language difficult, and she is aware he has a different viewpoint about some Czech customs. She became an Australian citizen in 2006. She currently lives with the child in temporary accommodation and if she stays she will have the problem of finding accommodation elsewhere in T. She has formed a relationship with Mr H with whom she has maintained a friendship since they met while at university. He is an engineer by occupation and he lives in L. He is divorced and has two children who are regularly in his care. There is no plan for him to relocate to Australia and nor do he and the mother plan to live together should she return to the CR since they both regard the relationship as still in its infancy.
The father left school early and worked in concreting before getting work in the food industry. He did not complete his qualifications as a chef, but he ran his own restaurant for four years before travelling to various places including to Italy where he has relatives. Over the years he has been in T he has not maintained stable employment – he has had about ten different jobs – working as a chef from time to time and he now works part time at a hotel. At the time the parenting evidence was heard he was studying to complete his secondary education with a view to going on to study at University, but when the hearing resumed recently for the property proceedings he advised he had given up study. He speaks fluent Italian and limited Czech. He loves the life at T – ‘casual…laid back…no traffic…no pollution’. He admits to struggling with eastern European culture, particular some aspects he mentioned specifically, and he regards the cost of living there as expensive. He sees no prospect of himself moving there - apart from his own attachments, he cites the language barrier, his lack of qualifications and his inability to support himself there. Currently he lives in a house shared with his mother and two other men. He has not re-partnered.
The child commenced school at T in 2002 and she currently attends the local Catholic school. She has had some issues about bullying at school but nonetheless she has progressed well and achieved the school’s academic milestones. She speaks Czech fluently [she has some words of Italian] and in 2003 she began distance education in the Czech language provided by authorities in the CR. In the year she lived in L during 2006/07 she attended school and did well. This is supported by the evidence of her class teacher, which includes a copy of her school report in quite positive terms. The child herself describes going to school there as ‘fun’ though she spoke of being teased because she was from Australia – on the other hand, she is also teased about her difference at school at T. She continues to undertake studies in the Czech education system through distance education.
The decade they have spent at T has not been without challenges from several directions. This includes securing and maintaining stable accommodation which seems to be widely acknowledged as potentially problematic. In their case they have moved six times over the years. The difficulties and expense of finding premises for rent and the shortage of housing in the T area is the subject of evidence from Ms KT who worked as a real estate agent there for many years and she still does some lettings and keeps up with what is going on. Another witness, Ms MS, refers in her evidence to limited job and education opportunities at T but also to the constant problem for everyone of getting housing which is scarce and expensive.
The mother will need to confront the issue of housing availability and affordability if she is to remain in T. Her friend, Ms TY, has offered to have her and the child come and stay with her family when her lease runs out this month, but that could not be seen as satisfactory in the longer term. While the father lives in shared premises which seem to suit him, he has the offer of a three bedroom duplex from his friend and employer, Mr LE, who confirms this. Though this has been available to him for some months, he has not taken the offer up at this stage. He and Mr LE have not discussed rent, but Mr LE put it in his evidence between $400 and $450 per week. When he does move it is intended that his mother will move with him to share the rent.
The mother says they had agreed to spend the year of the long stay in the CR and this would be followed by a period when the child would alternate her schooling between T and L each year before the family moved to live in the CR for the duration of the child’s secondary schooling there. This was why the child did distance education in the Czech system, why she was enrolled at school in L before the long stay and why they purchased the apartment in L. This has some corroborative support from Ms TY who relates the father acknowledging as much and the mother’s evidence about it is accepted. It is recognised here, nonetheless, that this was agreed when the family was intact and that is no longer the case.
The child’s education is a topic about which the mother feels quite strongly and it featured in much of the evidence by her and others, although the father’s counsel calls the schooling issue a ‘red herring’. Put shortly and to paraphrase the mother’s viewpoint, she regards the education the child is receiving and would receive during her secondary schooling in T as having shortcomings and she believes an education in the CR is necessary to provide her with the proper grounding to achieve her potential. Around this, she refers to the child complaining of being bullied and being dissatisfied with her teacher and she points to students in the T area having scored below the national average when tested. Taken to the child’s most recent report where she has overwhelmingly received ratings which are at the level of the syllabus or above, the mother is unmoved. Nor is she amenable to any suggestion that other places in Australia could remedy shortcomings without taking the child to the CR to be educated; she does not feel competent to judge the education system here whereas she does in the CR. Beyond the child completing her education, the mother does not see adequate goals being available to the child in her present environment, her perception being [this is no comment on its accuracy] that many girls become pregnant before they complete grade 12 and their employment goal is to get a job at the local supermarket.
Her views about the shortcomings of secondary education at T have some support. As head of special education services at T State School, Ms N lives in T and travels throughout schools in the region. She and her husband, who is also a teacher at the School, intend to return south for their children’s secondary education rather than have them educated at T because they see that as giving their children an advantage. Ms TY who has lived in T for 15 years and is married to a local man also anticipates the education of their children will precipitate the family’s departure from T for Cairns. Ms P who has worked in education has the view that academic standards of schools in T are well below national averages; her daughter attends boarding school south of T.
A contrary view is put in the father’s case. Mr G is head of the maths and science department at T State School with a decade of high school teaching behind him although he has only been teaching in T since October 2008. He describes the School as developing programs to address literacy and numeracy, he speaks positively of the school’s future and he levels no criticism at the standard of education offered to students.
These contrary views about the quality or standard of education offered by schools in T generally, or by the school the child attends now, or by the school she would attend if she were to continue her education there in the future could not be the subject of a finding here. The issue is undoubtedly complex and would require a great deal more information than could be mustered in litigation here and undoubtedly opinions would differ in any event, as they do here. The relevance of it for present purposes is that the mother has an opinion which, it is accepted, is genuinely held, it is not inherently unreasonable and nor is it seen as capricious or advanced for an ulterior motive – after all, she had views about the child’s future education long before this litigation because they were a factor in the earlier agreement for her to be educated in the CR.
It is obvious that the parties’ relationship was fractured for some time before their separation in October 2007. Each has their own perspective about the underlying problems and this is not a judgment about that but it is necessary to canvass some of the history since it has some bearing on considerations required to be taken into account.
First, their evidence raises an issue about the extent of their involvement in their daughter’s day to day care. The father maintains they took equal responsibility as parents, he was involved in a variety of ways at home and at the child’s school, and her care was shared between them. But the mother does not accept this, she contends she has been the primary carer throughout by taking most of the responsibility for the child’s arrangements and, while he contributed, it was not equal to hers. She agrees he involved himself in the child’s school such as by taking a cooking class there, but she was the mainstay around her schooling, as she has been in other areas of the child’s upbringing, such as seeing she had extra-curricular activities like drawing classes, swimming, karate as well as arranging outings such as boating.
By way of general observation, when issues such as this arise in a parenting dispute they are seldom easy to resolve since they invariably rest largely on the subjectivity of the parents and usually, as here, the observations of others is limited by opportunity and scope. However, the body of evidence as a whole leaves the overall impression that the mother’s position is closer to the mark. Certainly she did not start paid work until the child was two years of age and was therefore fully available in those early years, the child has always been with her for the full duration of visits to the CR, and there is no doubt she has been involved in the child’s day to day routine and schooling as well as diligent in finding activities for her in T and spending time with her. On any comparison with the father’s, her involvement has to be seen as not only broader but more child-focussed and consistent over the years.
That leads to another issue which is the father’s conduct; more particularly, the adverse affect on his behaviour of excessive use of alcohol, his use of marijuana and his aggressive and abusive behaviour particularly towards the mother.
The mother maintains this was his history throughout their marriage. His abuse while drunk was invariably followed by apology accompanied by a gift and the promise not to do it again and he says things while drunk – for example, while in the CR he said if she left him ‘I would shoot you, and then shoot myself’ – that he does not later remember saying. While he has tried to give up drinking alcohol, his resolve does not last long and he has never tried to give up smoking marijuana which he does regularly with his mother and others. It is also her view that the father’s judgment about parental issues is affected when he has been drinking; for example, it came to her attention recently [just before the family report interviews] that he had allowed the child to stay overnight without proper supervision with a 12 year old girl who has ‘the interests of more mature girls’ and when she took this up with him he became abusive and hung up on her. The episode is aired in the family report [paragraph 49] which gives this account of the father’s version:
‘49. Like [the mother], [the father] also spoke of the previous Thursday night. He claimed on leaving the restaurant [the child] requested to sleep at her 12 year old friend’s place. The two girls then entered the hotel where the friend’s mother was working, to seek the mother’s permission. On gaining permission, the two girls left the hotel for the child’s home, a unit adjacent to the hotel. According to [the father], ‘I remained at the hotel, had a couple of drinks and sang karaoke’. He reasoned, ‘[the mother] has allowed [the child] to stay overnight on a school night; it would have happened if together [pre separation]’. In a similar vein, [the father] questions why the mother is reluctant for [the child] to spend time with him when such time coincides with others socialising at his home. He explained, ‘I have people over, I cook a meal, we all drink’. [The father] also emphasised ‘rather than pay my tutors I cook them meals.’
The evidence about the father’s consumption of alcohol and its affect on him comes not just from the mother but also from others, here and in the CR. Ms MS who worked in a restaurant with the father describes him often drinking beer during service, he was often drunk and stoned at his mother’s place on Sundays, and when under stress in the workplace he yelled and abused staff and threw pans across the kitchen, he routinely made rude and sexist remarks such as ‘nice ass shame about the face’ and he put his wife down by calling her a ‘cold communist’ and ‘bitch’. Ms TY refers to the father drinking alcohol while giving Italian lessons and Ms C refers to him drinking alcohol to excess and she recounts her experience of him drinking during a camping trip. Various witnesses in the CR have also commented on his use of alcohol and his behaviour. The mother’s parents refer to him drinking alcohol to excess and his good mood changing to aggression. Her brother describes him as being so affected by alcohol on one social occasion at his home that he was unable to go up the stairs without assistance, and that was not the first time he had seen him in such a state. Mr F says his family had social contact with the parents after meeting them in 2006 and he refers to the father continuing to drink alcohol when no one else was and to his conversation being inappropriate. He relates receiving a telephone call from the father in April 2007 when he was very drunk, speaking incoherently, using obscene language about women, calling his wife a ‘bitch’, swearing about the child and talking of women in general being ‘good for nothing’. There is a consistency about all this coming from a number of sources.
While in the CR during the long stay the mother consulted a clinical psychologist, Dr S, about marital difficulties and her desire to raise the child in the CR. She saw Dr S alone on two occasions, in October and November 2006, and then again in early May 2007 before there were two further consultations, with the father present, later in May and early June.
In April 2007, shortly before these last consultations, there was an incident which gives some indication of the state of things. On the mother’s account of it, which is accepted, her parents had been to their apartment for dinner, the father was drinking heavily and after they left he became loud and abusive towards her and towards the child for standing up for her. She locked herself and the child in a bedroom where the father tried to break in by kicking the door. The police were called and he was taken away in handcuffs although he returned after less than an hour. She says the child was distressed by it and had trouble concentrating at school – the fact that the child would identify this occasion in her discussion with the reporter 18 months later attests to the accuracy of that. She also says he apologised the next day, admitting he had a problem with jealousy, drinking and controlling his temper and he asked for her assistance. She contacted Dr S and the father’s participation in two consultations followed. She says his behaviour improved for a time, he asked for another chance which she agreed to and they returned to Australia in July.
In his later report Dr S remarked that the tension between them was intensified by the father being jealous of his wife as well as his long term alcohol and marijuana abuse and their relationship had also deteriorated because of his difficulty adapting to the stay in the CR. Dr S says they tried to cure his tension and aggression by means other than alcohol and smoking. He concluded his short report with the opinion that the mother’s return to the CR would be desirable ‘with regard to her psychic health where also her ability to be a good parent for her daughter [the child] would certainly improve.’ He elaborated on some aspects of his report in cross-examination when he explained that his English had not been sufficient to speak with the father directly and the mother had acted as interpreter during their consultations. He confirmed he had never seen the child. In these circumstances it is obvious that the conclusion just noted could not be given any weight here. The relevance of his evidence is more that the father’s alcohol and marijuana use and its impact on his behaviour was an issue in their relationship and the subject of professional consultation before their separation.
After their return to Australia in July, the problems continued. In September the mother sought a protection order against him which issued 8 October 2007 for two years. The mother says the child started having nightmares, she was often in the sick room at school with headaches and stomach aches and she started wetting the bed at night. Then on 29 October there was a further incident that precipitated their separation. For some time, including while they had been in the CR, the father had suspicions that the mother was having an affair, which she denied, but at some point he found a copy of an email message from Mr H in the pocket of her jeans suggesting the contrary. The mother describes him as yelling rude insults at her in front of the child, standing in front of her with his face right up to hers yelling repeatedly that she was a ‘slut’, she tried to calm him down but he would not stop, and she says she felt powerless. Very likely, if the child’s account of it later is any indicator, they both slapped each other around the head. She took the child and went to the Women’s Shelter.
Asked about whether she takes any responsibility for his conduct, bearing in mind that his suspicions about her having an affair were borne out by the fact, the mother agrees finding the email ‘would not have made him happy’, but she maintains that while the long standing friendship with Mr H had developed to intimacy before she left the CR in July, there had been no sexual relationship until her recent visit in September. Quite apart from that, she said, the father had always been jealous and suspicious, his behaviour when affected by alcohol or marijuana was unrelated to her relationship with Mr H, and it did not give him the right anyway to shout such insults right in her face and conduct himself as he had.
Ms C says the father approached her after the separation to enlist her help in persuading his wife to return to him, saying he was working on his problems, but at the same time he spoke of his wife in a derogatory manner, calling her a ‘cold communist’, and she thought it was disrespectful of him to tell her about the affair with Mr H.
The build up to the separation and its aftermath were not without impact on the child who - at the very least – was present during the uproars in April and October 2007 which obviously would have been frightening and distressing experiences and there are other things that must have caused her difficulty. For example, Ms N relates the child telling her that her father had rubbed himself out of a family picture and put another man in it. Ms C says the child told her that she had to be careful what she says so her father does not get angry. And the child told her mother her father had said she has betrayed the whole family, that she will leave the child and go with another man, and her mother should be ‘rotting in hell’. She also told her mother she had seen her father pushing and kicking her mother’s bike at his residence.
Bedwetting, nightmares and anxiety are all cited as the instigators for the mother arranging counselling for the child with Ms A, a social worker, who saw her for some months from November 2007. Ms A [not required for cross-examination] reports the child describing nightmares involving violence against her or her mother by her father, recalled in detail [there is an example attached to the mother’s affidavit], and that her anxiety about the dreams coming true caused her some distress. She completed some activities in a workbook and in some of that she describes her father as being an ‘angry and short tempered’ man. She also recalled times when her father had been verbally abusive towards her and she related one particular incident when she had spilt some milk at her father’s home and he yelled at her for some time causing her shame and embarrassment. She also described her father attempting to buy her gifts and treats and talking about her mother in a poor manner. She said she loved her father, though at times she felt scared in his company mainly as a result of his anger. Commenting on Ms A’s evidence, the father recalled the milk incident but he thought it exaggerated and he denied speaking poorly of her mother. He conceded he may need to do a course to address the issues raised and said he was prepared to do so.
The child’s attitude towards her father around these sorts of matters and other things is discussed by the reporter [paragraph 71]:
‘71. [The child] described her father as having a range of emotions and variation in tolerance. According to [the child] her father can be ‘welcoming, cheeky, sweet, really pleasant, playful, happy and calm. She distinguished sometimes if I break something, say a drinking glass, dad says its okay, it's nothing [yet] at other times he can get angry, he will be really cross and say I'm clumsy. After five minutes he apologies (sic) to me’. [The child] also spoke of [the father] being ‘aggressive towards mum, he has hit mum; mum hits dad’. To gain an understanding of the level of conflict [the child] has been exposed to she was asked about the most horrible argument she had seen. According to [the child] she has witnessed her parents ‘slapping each other across the head; that was not a pretty sight’. On another occasion, ‘we were in the Czech Republic, called the police. We [the mother and her] had locked ourselves in. Dad was kicking the door.’ [The child] make (sic) the distinction that her father's anger has been more evident since the separation, likewise she pointed out ‘he was never sad, lonely before’. When recalling a recent disagreement between her father and Nona, [the child] pointed out ‘dad was using Italian heated words, Nona left the table [they were dining out]. I felt wow, I did not know dad could be that aggressive. Dad wants his way’.
As for his own account of his drinking, the father told the reporter he consumes three beers each day and ‘on a big night I may drink 8 beers all up, that’s over several hours’. The report continues [paragraph 45]:
‘He accepted on such occasions ‘I might over do it’. Whilst adamant marijuana ‘is very hard to acquire up here [at T]’, [the father] admitted ‘if offered a puff, I accept. I don’t seek it out’.’
That picture of his marijuana use is entirely contrary to the mother’s evidence of his use and her reference to his dealings with his mother and others about it. Having an occasional puff is also inconsistent with the father’s account of his usage at the hearing. Nor is it consistent with Dr S’s reference to the counselling sessions being to address his tension and aggression by means other than alcohol and marijuana. As for alcohol, the father said at the hearing that he had recently reduced his drinking from six heavy drinks a day to four, his reasons being that he felt fuzzy in the mornings and it was affecting his progress at the gym. As counsel for the ICL points out, he made no mention of the child - and nor did he mention what others had said about their experiences of his behaviour when affected by alcohol.
In her assessment the reporter returns to the question of alcohol use first when referring to the overnight stay with the 12 year old [paragraph 87]:
‘87. Whilst acknowledging the [T] lifestyle is more relaxed, the writer is concerned that [the father], knowing that the children would be unsupervised until at least the friend's mother completed her evening shift, allowed [the child] to stay overnight with her 12 year-old friend. Furthermore, the writer is of the opinion that [the father] when responsible for [the child] needs to refrain from excessive alcohol use; abstain from marijuana and be more proactive regarding [the child’s] physical and psychological safety and well being.’
Continuing on the topic of alcohol usage, she adds:
‘88. Whilst [the father] reports low levels of alcohol consumption and marijuana use, [the mother] reports during their relationship such use triggered verbal abuse, jealousy and paranoia. Whilst acknowledging there is disparity in his reported use, the writer strongly encourages [the father] to access counselling with a view to cease marijuana use and to reduce his level of alcohol consumption. Given [the mother] associates alcohol and marijuana use with [the father’s] negative behaviour, by addressing such use there is possibility that other negative behaviour may dissipate.
89. Despite these shortcomings all (sic) which could be addressed through participation at counselling, the writer is of the opinion that [the father] is a capable parent. Interview data suggests that if given the Court's consent for [the child] to live with him, [the father] had considered [the child’s] future needs and clearly articulated plans to provide for her. His plans extended to acquiring more appropriate accommodation.’
The closing submissions for the father dismiss the issue of alcohol and marijuana as having been ‘whipped up into something’, while the ICL submits there are real concerns about it and that is echoed in the submissions of the mother’s counsel. For my part, the question is certainly not irrelevant to consideration of a child’s best interests and in this case the overwhelming weight of the evidence establishes the father to have a long history of excessive use of alcohol, it does adversely affect his mood, and he does become aggressive and abusive. In saying that reliance is placed not only on the mother’s evidence and that of her witnesses but also the evidence of the father himself and that of the reporter. His conduct has been particularly directed towards his wife, as she described, it has been witnessed by the child, and there is a consistent thread through the evidence of several witnesses that it has affected their regard for him.
The mother says, and it is accepted, that before the separation she was able to shield the child to some extent from alcohol and marijuana with strategies such as leaving the house and going out to do activities with her, but she cannot do that now and it concerns her that the child is staying overnight in a house where this is going on. It is accepted that her concerns are of long standing and genuine.
In August 2008, on referral by a social worker, the mother consulted Dr GR who is a psychiatrist at the outpatient clinic at T. He later produced a short report and gave some further brief evidence at the hearing. She spoke to Dr GR of feeling frustrated and powerless and trapped and her desire to return to the CR. He diagnosed Adjustment Disorder with Depressed Mood. He said her major stress is the requirement for her daughter to remain in Australia, given her desire to return to the CR to be closer to her family and supports. He discussed with her the prospect of not being able to do so and he suggested she consider the alternative – develop Plan B, as he put it - but he says she is very fixated and is pinning her hopes on being able to leave. He concluded that if she cannot return to live in the CR with the child she will be at risk of developing Major Depression. Distress, powerlessness, and feelings of being trapped are potent precipitants for depression, he says, and while he agreed anti-depressants could be prescribed if necessary he also said good supports are also an important component of treatment.
Summary of Proposals
The broad outline of their competing proposals for the future will be apparent from what has been said already but this needs some elaboration before coming to the evaluations required.
As already noted, ruling out a departure for the CR without the child dispenses with the father’s proposal about the child living in T and visiting her mother in the CR and has necessitated the mother putting a secondary proposal if she is to remain at T.
If she is permitted to return to the CR the mother agrees with the ICL that sole parental responsibility would be more practicable than shared parental responsibility. As for the child’s time with her father in that event, she set this out in her orders sought but she takes no issue with the arrangements proposed by the ICL which need not be repeated here. Suffice to say those arrangements envisage a trip back to Australia each year, they allow for the father to spend time with the child by visiting Europe should he elect to do so, and visits would be supplemented by regular communications through email, telephone and web-cam.
She plans to live in L in the apartment if she is able to retain it on property settlement or with her family if that cannot be achieved. She has no plans to live with Mr H at this stage, although she does not rule it out, but both will take the relationship slowly and see how things develop. She would have the support of her family. The child would attend school there.
She is confident she can use her qualifications and experience, including her competency with English, to obtain work in L. While she has made some enquiries about the availability of employment, she cannot yet identify any specific job she has to go to and therefore what her income or leave entitlements would be. Even so, she anticipates being able to fund trips back to Australia each year from her income, supplemented by the financial support pledged from family and friends if required. On the topic of funding travel, it can be noted here that at the end of the case the father changed his earlier position and instructed his counsel that he would contribute half the cost of an annual trip between Australia and the CR, irrespective of whether the mother is living in T or in the CR.
Despite having made no mention of it in her affidavit, the mother agreed there had been good times in T but she sees the issues as having become bigger as the child became older. As mentioned at the outset she does not see the environment meeting the child’s needs, there are so few opportunities for her, she wishes the child to have the advantages in life that an education in the CR would give to her, and she cannot see any goals for the child’s longer term future at T. It was preparatory to giving her these advantages that the mother arranged the distance education in the Czech system, it was agreed to alternate their living arrangements between T and the CR before living there during her secondary education, and the apartment was acquired.
Despite being questioned at the hearing about whether she had considered living ‘elsewhere’ in Australia to meet these concerns, this remained an oblique suggestion and took on no concrete form from any direction, but the mother does not see a future life for herself in Australia. As she pointed out, apart from the seven months she spent on arrival as a student in Sydney, she has lived at T and her only plans are to return to the CR. She describes in her affidavit her feelings of devastation if she cannot do so and that has some support from Dr GR’s assessment of how she is coping at the moment and the risk to her of Major Depression in that event.
If she is to remain in T, she rejects the father’s proposal that the child spend equal time with him. She outlines her concerns about his capacity to meet her needs in her affidavit which have been picked up in what has been said already. Her concerns extend to time during the school holidays - she says there is little to do in the area and if the father is working the child would be bored with little to occupy her, but if he were to arrange a trip south or organise a camping trip, she would agree to her spending up to two weeks with her father not more than three times per year.
As the father is not proposing change, his proposals can be outlined more briefly. He is steadfast in his opposition to the child leaving T. This suggests he sees her education, including her secondary education, as being satisfactorily met by the schools at T although at the hearing he did not rule out the child going to high school in Cairns. But for now he puts forward no concrete plan to move elsewhere at any specified point in the future. It became apparent that earlier in the marriage the parents had discussed living elsewhere and it also became apparent that the father had applied for fly in/fly out employment at a mine site since separation, but there is nothing to say the father sees his future anywhere but at T which provides a lifestyle he enjoys.
He virtually concedes he does not presently have accommodation that is suited to the child’s longer term care because if she is to remain he plans to move to the accommodation Mr LE offered some time ago. While the rent has not been discussed he says his mother will also move there and they will share the rent. That is supported by her evidence.
At the time the parenting evidence was heard he was working 20 hours a week in the hotel, but when the hearing resumed for the property proceedings Mr ML [who helped him present his case] said the father had given some thought to his situation and he intends to increase his employment hours and therefore increase his income. His offer to pay half the travel costs, irrespective of where the child is living, has already been mentioned.
As for the child’s arrangements if she is to remain at T, they are reflected in the orders he seeks and they are set out in the Schedule. He points out that the child has lived at T since shortly after her birth. Amongst other things, remaining there would give her the benefit of both parents continuing to be involved in her day to day upbringing and she would also be able to maintain her close relationship with her paternal grandmother who has been a significant figure in her life. He is upset at the prospect of the child leaving to live in the CR and he certainly does not see the various means of electronic communication as any substitute for time they could spend in each other’s company and nor does he see an annual visit back to Australia as sufficient to sustain their meaningful relationship.
Objects and principles, best interest considerations
On that note, it is convenient to refer to the objects and their underlying principles set out in the Act before coming to the best interest considerations. The former [s60B(1)] are about ensuring children’s best interests are met by ensuring they have the benefit of both parents having a meaningful involvement in their lives to the extent that is consistent with their best interests, by protecting children from exposure to physical or psychological harm, by ensuring they receive adequate and proper parenting to help them achieve their potential, and by ensuring parents fulfil their duties and meet their responsibilities to their children’s care, welfare and development. The latter [s60B(2)], except when it would be contrary to the child’s best interests, acknowledge the child’s right to know and be cared for by both parents, a right to spend time on a regular basis and communicate regularly with both parents and significant others, a right to enjoy their culture, and that parents jointly share parental duties and responsibilities and should agree about future parenting.
primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
All of the evidence points in the direction of this child presently having a meaningful relationship with both parents and deriving benefit from that. Despite the difficulties that have accompanied the separation of her parents, this is not surprising since she has had the support and involvement of both over the years of her upbringing, albeit with some disproportion as discussed earlier.
For some period each year while in the CR with her mother and for a longer period of four months during the 06/07 long stay, the child has regularly spent time away from her father and, while that cannot be said to have diminished her relationship with her father, it has to be recognized that relocating to the CR would result in longer and more sustained absences from her father, giving her much less opportunity to be around him and do the things with him that commonly underlie meaningful relationships than if she were to remain at T. This is a significant factor.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The child has been exposed to aggressive behavior and verbal abuse, as discussed earlier.
additional considerations
(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
In her affidavit the mother spoke of the child being positive about living in the CR and that she prefers the school in the CR. In discussions with the reporter, however, she put the child’s views this way ‘I know [the child] would like to stay, keep it [her living arrangements] the way it is…it is hard on her knowing that I want to go to the Czech Republic.’ [paragraph 41]. At another point in her evidence she said the child wavers between wanting to go to the CR and wanting to stay in T.
There is no doubt the child is aware of her mother’s strong wish to take her to live in L and of her father’s strong desire for her to remain living in T. She is also aware of some of the consequences and their feelings about it. For example, if she goes she is aware she would only see her father once a year – ‘If we move to the Czech Republic, I would only see Dad once a year. If Dad was to live in Italy, that’s less distance, maybe I could have more trips. We (Mum and I) could visit him, he could visit us.’ [report, paragraph 69]. She sees her mother as ‘sad and lonely’ - she told the reporter her mother cries a lot and misses her family [paragraph 70] – and while identifying her father’s anger as being more evident since separation she told the reporter ‘he was never sad, lonely before.’ [paragraph 71].
This is not a case where the child can be seen as having expressed a view one way or the other and this factor plays no part in the decision. No submission has been made to the contrary.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child clearly loves both her parents and it is beyond doubt that her most important relationships are with them. The reporter says she rated her parents as being of equal importance. That is not to say, however, that she has the same kind of relationship with each of her parents.
The reporter’s assessment that she has a close and loving relationship with her mother is entirely consistent with the evidence as a whole.
It is also accepted that she has a close and loving relationship with her father. By the same token, the history suggests there have been challenges brought about by her exposure to some of his conduct and his anger. The undisputed evidence of Ms A about her consultations with the child at the very least attests to that. It is possible that the child’s view of her father as angry and short tempered and yelling at her over spilt milk [literally] may have been related to his inability to contain his hurt and disappointment about the marriage breakdown rather than reflect the way he generally goes about things as a parent. Certainly it seems not to have displaced his daughter’s affections - although that comes with no guarantee if that is a continuing experience or she is burdened with the strain of hearing denigrating remarks made about her mother or women generally - and her views about his temper are moderated by other affectionate descriptions of her father given to the reporter: ‘welcoming, cheeky, sweet, really pleasant, playful, happy and calm’.
If the child remains in T there would be no barrier to her relationship with her father developing as it has been. If she is living in the CR counsel for the mother submits that her relationship with him will be maintained by quality time spent with him during the proposed visits, through other forms of communication in the meantime, and if the father increased his work hours and therefore his income he could travel to Europe to spend additional time with the child.
Certainly such arrangements would be put in place in that event. Nonetheless, inevitably a move to the CR would bring about a shift in the ground on which the child’s relationship with her father has been built to this point and introduce change to the role her father is able to contribute as a parent in the present circumstances. The impact of this is not to be underestimated. But it can be observed that the child is at an age and stage of development where her attachments have been formed, rather than still being in their formative stages, and it is highly unlikely a ‘shift’ would transmute into severance or irreparable damage or anything approximating it at that end of the scale of impact.
There is contention about what would be sufficient to sustain their relationship in that event and obviously it is the father’s case that the arrangements proposed would not be adequate for the purpose. Support for that submission is drawn from the family report where, after commenting that the child would easily adjust to life in the CR and before noting the father had dismissed the idea of living in Italy as ‘impractical’, the reporter said [paragraph 86]:
‘……On the other hand, [the child] at 10 years of age is reliant on her parents to facilitate her relationship with the other parent. Such reliance would increase if [the child] was geographically separated from a parent. Whilst the parents proposes web-cam, email and telephone calls to supplement [the child’s] limited physical time with the other parent, the writer is of the opinion that such an arrangement is insufficient to sustain [the child’s] present close loving relationship with her parents.’
I shall return later to this and other assessments but for now it can be said that the conclusion of insufficiency appears to rest, at least in part, on the child’s dependence on her parents [in reality, her mother] facilitating her relationship with her father which, in turn, rests on the view that she would either not do so or not do so adequately. Indeed the child’s dependence on her mother to facilitate her communication with her father was something the reporter spoke of to support the proposition that while she did not recommend relocation ‘at this time’, the child could relocate to the CR when she is in high school and better able to contact her father without her mother’s active support [paragraph 91]. These are not views I share and nor do they have the support of the submissions of the ICL.
As for the child’s other relationships, she has a close and affectionate relationship with her paternal grandmother. She described her relationship with her Nona as ‘really close, nearly as close as Mum and Dad’ and she spoke to the reporter of spending time together and her grandmother taking her places around the local area on her scooter - when she is absent in the CR she speaks to her grandmother as well as her father. None of this is surprising since she has lived around her grandmother in a small community all her life. It can also be accepted that a move to the CR would bring about a significant shift in the ground on which this relationship has been founded.
The child has also established good relationships with her maternal grandparents during visits over the years. She spoke to them in the reporter’s presence through skype in fluent Czech without any need for her mother to interpret and she quickly became engaged in conversation with her grandmother and then with her grandfather she became more animated. The child’s comment that she would like a better relationship with her maternal grandparents indicates that she has positive views about them. Her mother says she has developed relationships with cousins whose company she enjoys when she is in the CR and there is no cause to question that. She is obviously part of a close extended family there. As for Mr H, the child spoke positively of his ability to organise outdoor activities including camping and she has met his two children, but she has not yet established a close relationship with him.
Her father has two sisters who both filed affidavits in his case although neither was required for cross-examination. As one sister lives in Brisbane and the other in Victoria, distance obviously affects the time they are able to spend together as a family. Nonetheless both sisters outline the communication and visits over the years their mother and brother have been living in T and there is no reason to think the child does not benefit from whatever opportunities there have been to spend time with extended family on her father’s side.
(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
Willingness and ability is a core consideration whenever relocation is proposed and it is one of a number at the heart of this decision, because while any move to the CR would certainly be accompanied by orders for visits and a variety of regular communication, if the child’s relationship with her father were not supported at the very least by compliance with court imposed obligations then that relationship would be damaged which would represent a significant loss for the child and adversely affect her future well-being. It is important, therefore, that there be sufficient confidence in the mother’s promise to fulfil the commitments imposed and in her ability to do so.
It is the mother’s case that she has demonstrated willingness and ability to facilitate and encourage the child’s relationship with her father and that she will continue to do so. This is supported by the ICL who submits the Court can be confident the mother will do so if orders are made as proposed, recognising at the same time that it will require a commitment from both parents. On the other hand, it is an aspect of the father’s case that his relationship with the child would be significantly compromised if she is to live in the CR which is a prospect he finds distressing.
Of course there have been absences when the child has been in the CR over the years, but there has been no precedent for the future the mother proposes and so there is no matching history for examination in that light. But I am satisfied the mother would fulfil the commitments that orders impose and I am also satisfied that she would have the ability to do so.
The submissions for the father urging a contrary finding raise the mother’s criticism ‘about almost every aspect of the father’s parenting’ and it is said, therefore, that the Court would be a ‘little cautious’ about accepting she would support the relationship from such a distance. If that is the attitude she takes to the CR, it is submitted, this ‘tendency to be super critical’ combined with the enormous reduction in the father’s influence - the inevitable result of distance and time - would lead the Court to see her as not ‘overly keen’ to promote the relationship. The submission acknowledges the mother did express a positive attitude towards the father in discussion with the reporter - ‘33. [The mother] expressed concern that [the father] may be belittling both her and the maternal family to [the child]. On the other hand, [the mother] acknowledged [the father] loves [the child], he is sociable, takes her out..... [The mother] credited the father for his capacity to motivate [the child] to do her homework and his ability to look after [the child’s] physical needs’ – but she qualified these positive remarks with further criticisms during cross-examination. It is also submitted that she did not comply with her obligations about communication when she was in the CR recently - she sent less emails than she was obliged – and funding to meet the costs of travel is a big issue with a lot of unknowns about the mother’s future circumstances - whether she will get employment or what her income or leave entitlements would be. The point is also made that since she brought the relocation application she has wavered in her proposals about how the travel costs would be paid - initially the father would be asked to pay all of it, then it would be shared equally, and finally she proposed paying all of the costs. Furthermore, while others have said they will contribute to the costs, it is not apparent they know what amounts are involved and there is no way of guaranteeing any contribution from them will be forthcoming if required.
I see these submissions as sound enough but they do not incorporate other considerations. First, though they might not count for much overall, some basic historical observations can be made:
(i)The mother has remained living in T with the child despite her strong wish for some time to live in the CR which obviously constituted something of a struggle within the marriage and led to their now abandoned agreement; she has always returned from annual visits; and she has not attempted to pre-empt the issue at any point by some unilateral action excluding the father.
(ii)Despite the discord and the mother’s concerns about the environment the father provides, there has been agreement about arrangements for the child to spend time with her father outside the times specified in the court orders.
(iii)She has developed and presented concrete proposals about visits as best she could without the practical underpinning of being able to point to a particular job with a specific income and leave entitlements.
(iv)While she was criticized for not adhering to the communication arrangements while in the CR recently - and it is true that her emails did fall short of what was required in the four weeks she was absent - she did give a plausible explanation for it and she also pointed out that there had been times she had not been able to connect with the father when she tried.
(v)Her positive remarks do include acknowledgement of the father’s importance to the child, reflected in this statement to the reporter: ‘[the child] loves her Dad, they have a good relationship. I don’t want her to lose contact with her father, knowing that she has a Dad who loves her is important.’
That said, criticisms about aspects of the father’s parenting do run throughout her affidavit and she maintained this critical outlook during the hearing. All directed to his parenting and the provision of appropriate supervision, the topics include his use of alcohol and marijuana; the impact of it on his behaviour; her steps to shield the child from that sort of environment; his lackadaisical attitude towards providing the child with activities or to fund them; the lack of privacy at the shared premises he has occupied rather than take up the more suitable accommodation offered some time ago; his efforts to undermine the child’s regard for her mother by things he has said to her and done in her presence; and flawed decisions such as allowing her to stay overnight with the 12 year old girl without proper supervision.
Being concerns for the child’s well being while in his care, it can be inferred they will be no less so if the child is to go into her father’s care when living in the CR, so the argument put for the father about her criticisms is entirely understandable. On the other hand, if the criticism is well founded it is no solution to point to it saying the relationship therefore will not be supported; the better response would be a commitment to keeping up the other end of the parental bargain by seeing the child is cared for more responsibly in the future.
In this case the weight of the evidence does establish that the criticisms are not without substance and, as I find, the mother’s concerns are justifiably held, including about long standing issues of alcohol and marijuana use and their apparent connection to shortcomings in temperament and important areas of responsibility. Given that finding, the question to be evaluated is whether the criticisms and concerns would be likely to prevail when she is living far away and swamp the pledges she gives here about visits and other support for the relationship in that event.
While there is no crystal ball to predict the future, I am comfortably satisfied she would adhere to any arrangements put in place by orders and she would do what is required to support and sustain the child’s relationship with her father. I am satisfied she is a devoted and responsible parent, who recognises the child loves her father and he loves her, with a genuine appreciation of the child’s interests and the importance for her of maintaining her relationship with her father. She gives the strong impression of wanting the child to have the time with her father that is practicable and to have frequent communication with him by whatever means can be devised, and yet that does not stand as an isolated sentiment because she also impresses as wanting her father to look after her responsibly and see to her care with the attention and sensitivity her age and stage of development requires, for there to be no cause for concerns. Her attitude is understandable in the circumstances discussed to this point. Wherever the child is living, her father has a part to play too in seeing that his relationship with his daughter is sustained and part of that is doing the right thing by her when she is in his care. Again, there is no crystal ball to predict whether that will be the case.
Turning to the mother’s ability, central to this is her ability to fund the travel if the move is permitted. Despite her confidence about getting work, obviously there are unknowns, there is no way of guaranteeing or enforcing the pledges of financial support from family or friends if required, and it is recognised that the mother has shifted her position over time about who would pay the fares. Yet her confidence about getting work is probably not misplaced because she did have work there during the long stay, she does have a history of stable employment behind her, she is fluent in English, and she does have a tertiary education in the CR, which all supports a confident outlook. That aside, while the costs will depend on a number of variables, they would be substantial nonetheless. The child cannot travel independently and it would be a few years yet before she could do so - in the meantime, there would be the additional cost for her mother or another adult to accompany her. Even so, I see the visit proposed as being within her financial reach, all things considered. The probabilities are that she will get work, she does have the support of family who have demonstrated their financial support in other ways, and there is also the fact that the father has agreed, to his credit, to contribute half of the costs of the fares even if she is living in the CR, which is an appropriate concession since making a financial contribution to the support of a child, wherever they might be living, is part and parcel of the responsibilities of a parent.
Turning to the father’s willingness and ability to facilitate and encourage the child’s relationship with her mother, this has not received any attention in submissions but there is a good body of evidence to say he does appreciate the importance of that relationship and while he has understandable reservations about the future, he offers no criticism of the mother in her role as a mother. He has supported the child accompanying her mother every year back to the CR and learning her mother’s first language and culture - which adds to their relationship – to which there can be added his offer of financial support for travel, on either outcome. It is regrettable, therefore, that there have been some not insignificant lapses in judgment which were hardly designed to engender in the child a positive outlook towards her mother, such as calling her mother a ‘slut’ and talking of her mother betraying the family and rotting in hell and so on. It is not to condone it to say this sort of behaviour was now some time ago when he believed she was having an affair with another man – the mother justifiably observed that even if she were it does not entitle him to conduct himself as he did – but it can be said on a more positive note that there has been no recent recurrence of this sort of thing.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The evidence establishes that the mother has carried out her parental responsibilities since the child’s birth in a commendable way. She has been an involved and committed parent, with a sensitive and intelligent child focus, who has met the challenges of living in a relatively small and remote community by supporting the child in a range of recreational pursuits, activities and friendships and she undoubtedly supports the child in her education which she sees as giving her the tools to be equipped for the future. She arranged counselling for the child after the separation, aware of her child’s anxieties and alive to the difficulties she was experiencing, which were not insubstantial on Ms A’s report of her feelings. She has developed and supported the child having close ties with her Czech heritage and language and family relationships which are all important for the child’s sense of identity and belonging. She has maintained stable employment over many years and contributed to the child’s financial support and she has been responsible for most of her financial costs since the separation. The child has developed well, which no doubt can be attributed not just to one parent but to both and the upbringing she has been given, but her mother’s input has been, I find, positive and substantial. It comes as no surprise to see the reporter’s assessment that separating the child from her mother is ‘unjustifiable’ although that scenario is nowhere on the cards. In saying all of this, the child’s description of her parents’ fighting which also implicated her mother - ‘slapping each other across the head, that was not a pretty sight’ – has not been overlooked.
The child has also had the benefit of her father’s love and support. Whatever the difficulties discussed earlier, his role has been important to the child’s well being and he has played his part as a committed parent as he has thought fit. An insight into his input is to be found in the child’s more positive comments about him and from her love for him and attachment to him. He has supported her trips to the CR each year and he has supported her bi-lingual and bi-cultural upbringing generally. He worked during the years before separation and contributed to the family’s support. His financial support since separation has fallen off leaving the mother to meet most of the child’s costs including for her education from her income although he has paid for the child’s costs during the time she has been with him and he has arranged and paid for a tutor for her. In these ways he has demonstrated a commendable attitude to his responsibilities as a parent. But it will be obvious from what has been said already that there is a downside to this assessment which arises from the history and consequent legitimate concerns about his excessive use of substances and their effect on his behaviour along with other lapses in judgment about parenting matters. Obviously there can hardly be confidence that a parent who is drunk or affected by alcohol or stoned can properly care for a child and nor can they be an effective carer when substances render their behaviour aggressive or combative.
(4) 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: (i) 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: (i) 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.
The mother has fulfilled her responsibilities as a parent by taking the opportunity to participate in decisions in relation to the child, to spend time with her and to communicate with her. She has also facilitated the father being involved in decisions, spending time and communicating with the child. The shortcoming in emails to the father while in the CR recently does not alter that and nor does the father’s comment that he has had difficulty in arranging to have the child with him on weekends. She has fulfilled her obligation to maintain the child by meeting her day to day costs when in her care as well as paying for her needs such as her school fees, trips, books and for her activities such as karate and swimming.
The father has also fulfilled his responsibilities as a parent by taking the opportunity to participate in decisions related to the child, he has spent time with her and communicated with her. Without returning to T in the weeks between the end of the first part of the hearing and the resumption to take the property evidence, he went to stay with his sister but it is understandable he might want to see and spend time with his family and nothing is made of that here. While he has made some financial contribution to the child’s needs since separation, including some clothing and a holiday, the major cost has fallen to her mother. It is said that he will now review his work situation and increase his hours of employment. If this happens no doubt his future support would be set by child support assessments if the child were to be living T and if she is not it would assist him pay a share of the travel costs.
(f) the capacity of: (i) each of the child’s parents; and (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
Contrary to the reporter’s assessment, the mother’s counsel submits that the father cannot be seen as a capable parent. This submission relates to paragraph 89 of the family report. Before recording that assessment, the reporter had expressed concern about the father’s decision to allow the child to stay unsupervised for a time at the 12 year old friend’s place, she said he needs to ‘refrain from excessive alcohol use and abstain from marijuana and be more proactive regarding [the child’s] physical and psychological safety and well being’ and she strongly encouraged the father to get counselling with a view to ceasing marijuana use and reducing his level of alcohol consumption. This follows:
‘Given [the mother] associates alcohol and marijuana use with [the father’s] negative behaviour, by addressing such use there is possibility that other negative behaviour may dissipate.
Despite these shortcomings all of which could be addressed through participation in counselling, the writer is of the opinion that [the father] is a capable parent. Interview data suggests that if given the Court’s consent for [the child] to live with him, [the father] had considered [the child’s] future needs and clearly articulated plans to provide for her. His plans extended to acquiring more appropriate accommodation.’
Mention should be made here of an argument put by the father’s counsel to the effect that the move would see the child become a ‘child of the Czech Republic’, a ‘teenager of the CR’, her whole life becomes the CR and Australia becomes ‘the holiday’. But I think this tends to overstate the situation somewhat because this is a child who has demonstrably been brought up as bi-lingual and bi-cultural. The move would not introduce her to a whole new environment, culture and language and nor could it be seen as likely to swamp or eradicate what she knows from the first 10 years of her life. What it would do is change the balance of what she has been accustomed to throughout her life – the pattern of spending most of her time in T and a number of weeks each year in the CR would be reversed. That would be a significant change, but not likely to displace her connection with and knowledge of where she spent the first decade of her life.
Conclusion - orders
Ultimately all of the considerations discussed have to be weighed in the balance and having done so I am satisfied the child’s best interests would be served by the mother being permitted to relocate with her to the CR. In my opinion the weight of the advantages for the child from permitting the move and the disadvantages of not being permitted to go outweigh the advantages and disadvantages of maintaining the status quo.
I am conscious that this decision will probably seem unfair to the father and no doubt be distressing for him, all I can say is that in discharging the obligation to evaluate the child’s best interests that is where the weight has fallen for reasons I trust are apparent.
Form of orders
The orders proposed by the ICL and adopted by the mother are appropriate to those circumstances and will be made with some relatively minor modifications. But counsel for the mother presses proposed orders 10, 11 and 12 of the mother’s further amended application. They relate to restraints upon the father drinking to excess and smoking illegal drugs, making racist remarks, denigrating the mother and permitting others to smoke illegal drugs, drink to excess or denigrate the mother in the presence of the child. Also, orders would oblige him to enrol in an anger management and in a Triple P Parenting Course program and comply with reasonable directions of the program director and provide the mother with certificates of completion.
Proposed orders of this sort have become not uncommon and, on one view of it, could be seen as self-evidently consistent with the best interests of a child and therefore readily made. But apart from the obvious need to be supported by findings, some hesitancy is justified. One of the additional considerations is to make the orders least likely to lead to further proceedings, but ancillary orders imposing an array of restraints can constitute can be fertile ground for further litigation and spawn contravention proceedings at every turn for infringements real and perceived. Also, the restraints may be fundamental to responsible parenting and if it is thought necessary to regulate parental behaviour in the way proposed that gives rise to questions about the appropriateness of the substantive parenting orders they are meant to accompany. As for orders about anger management and parenting courses, probably at a minimum it would be helpful to the delivery of any benefits to have some level of enthusiasm or initiative from the participant.
As for the programs mentioned in the orders sought here, there is nothing to say the particular courses can be made available to the father in T and I see no utility of making them in a vacuum. If he is motivated to address the issues that have been discussed and they are available then it will be a matter for him. As for the other restraints proposed, I am prepared to order that he not consume alcohol to excess or smoke marijuana while his daughter is in his care since that has been a continuing grievance by the mother and it may serve to alleviate some of her concerns, but that is as far as I am prepared to go.
Property
Apart from what has been said already, there is not a lot to recount about the history relevant to their property claims.
In late 2006 they purchased the apartment in L in the CR for $102,300 and it was registered in their joint names. From their savings in Australia, accumulated from their earnings over the years in T, they contributed a little under $60,000. The wife’s parents gifted to them a little over $36,300 which went towards the purchase price and they borrowed approximately $15,100 interest free from her parents for that same purpose. They have repaid some of the loan and there is now $11,000 owing.
The wife’s parents gave them some furniture and other items for the apartment and they purchased other items from their own funds. They did some renovations to the apartment which essentially was some plastering and painting and it is accepted that the father did most this work. They lived there until their return to Australia in July 2007. Since then it has been rented and the rent pays for the outgoings. The mother has looked after those arrangements.
As noted earlier, the wife had stable full time employment after their daughter turned two years of age and she also worked during the year long stay in the CR. While the husband’s employment was not stable, he was also employed in various positions over the years up to their separation. Obviously they have contributed their earnings towards the support of the family, as reflected in the history outlined earlier, and they have applied some of their earnings to making the annual trips to the CR. The father also had a trip to Italy on his own at one point. The wife’s employment, it is accepted, provided them for some time with accommodation at a considerable reduction in rent.
They have had support from the mother’s family not only in the ways mentioned but also with the costs of their wedding and with accommodation during stays in the CR over the years.
It is the father’s case that they have received some financial support from his mother over the years which his mother’s evidence supports. He says they owe his mother $14,000 made up of between $5,000 and $6,000 advanced when they first went to the CR before their marriage and there was later another $8,000. He says the first advance was to get them started in the CR and have the baby in L. His mother had said he could pay it back one day ‘when you can’ and it had always been his intention to repay her one day. As for the $8,000 he says this was when they purchased the apartment and his mother ‘contributed to our cash flow’ while they were in the CR – it was her way of helping when they had used all their money to purchase the apartment. Again, he says, it was not a gift but she asked for it to be repaid ‘when you can’. Hence, it is his case that a $14,000 debt to his mother should be brought to account. His evidence is supported by his mother’s; in particular she gave him $6,000 when he was going to the CR initially and he gave him a further $8,000 in preparation for the trip to the CR before they separated. She says in effect that he told her he will return the money when he is in a position to do so.
But the wife has a different outlook. On her account of it, she had her return air fare when they went to the CR together initially and the money he received from his mother was for his air fare and funds for Europe. The only other money she is aware coming from his mother is $600 while they were in the CR which the husband told her had been sent for Christmas presents. Indeed his mother confirms in her evidence that she never spoke to the wife about money.
As is usually the case when money from family members is put in dispute, the issue ends up being rather cloudy. But the weight favours the wife’s evidence being accepted; that is to say, all she knew about was the money for his air fares initially and a small sum of money for Christmas presents. It also favours the conclusion that whatever was advanced by the father’s mother is unlikely to be repaid and therefore it should not be brought to account as a debt in calculating the parties’ current net assets. I say that because the first advance was over 10 years ago and despite working and having funds available to make some repayment during that time, none of it was returned to the father’s mother and nor has she asked for repayment. Also, they did not use all of their savings to buy the apartment but kept some in reserve, and yet none of that was used to repay the father’s mother either any part of the initial advance or any of the $8,000 said to have been given to her son more recently. In so far as he did receive some financial assistance from his mother, that can be taken into account in a general way as a financial contribution by the father.
They had savings amounting to $19,000 at the date of their separation. It is the wife’s case that at the husband’s request she transferred this money to him around the time of their separation. He accepts this – there are bank statements to demonstrate it – but he says he recalls returning $9,000 to her although he could not identify how this could have been done from any bank statements. Knowing him, he said, it probably would have been in cash although he could not say where he would have got that amount in cash and when taken to the bank statements which ran from 8 September 2007 to 7 March 2008 he agreed there is no support there for his proposition. The wife’s evidence is accepted as the more reliable. The hsuband should be seen as retaining savings of $19,000 at separation which he has used for his own purposes.
Around March 2008 a child support assessment issued for $97 per month or thereabout and the father paid that before the assessment was later reduced to nil. Otherwise he has paid for the child’s costs as discussed earlier. The mother I find, has paid the majority of the child’s costs since separation.
The husband says he has incurred debt over the last couple of months by borrowing from his mother and from Mr ML who has provided him with $6,000 for various purposes and there is no reason to doubt that. With credit card debt, he estimates he has debts between $10,000 and $12,000.
Assets and liabilities:
There is an issue about the value of the L apartment. The figure below represents the opinion of the valuer appointed for the purpose. Obviously it is much less than they paid for it at the end of 2006 and the husband has not embraced the figure as its proper current value. Even so, he has not at any stage taken the step of obtaining another valuation and so put his view of it to the test. In the circumstances, while his position can be understood, it would be unfair to the wife nonetheless to ignore what is the only evidence of its value.
The value of their superannuation entitlements is agreed. Whether or not the mother could claim her superannuation benefits because she is permanently departing the country was not addressed and I could not say since that would be governed by the rules of the particular fund and a matter for the fund’s trustees. As far as the evidence here is concerned, her entitlement therefore cannot be seen as presently available to her and in that way distinguishable from the husband’s entitlement. There is not much difference in the figures and it will be appropriate to include them as assets along with others.
The value of the Suburu retained by the father is disputed – the wife’s solicitor puts it at between $4,900 and $6,600 by relying on the ‘Red Book’ while Mr the father says it is only worth between $1,500 and $2,800 although he points to nothing in particular to support his estimate. I have erred in his favour and adopted the top end of his range at $2,800.
It is appropriate to bring to account in the assets, as an existing distribution of property to the father, the $19,000 he retained for his own purposes. Also, while he has debts of between $10,000 and $12,000 they have not been included in the calculation of their current net assets because that relates to the father’s own living and work arrangements since separation and the wife should not be expected to contribute to that. These decisions are supported by authorities such as Biltoft (1995) FLC 92-614, Af Petersens (1981) FLC 91-095 and Townsend (1995) FLC 92-569 and the discussion in Zalewski [2005] FLC 93-241.
Apartment in L 81,303
Wife’s superannuation Q Super 21,332
Wife’s superannuation Super Trace 636
103,271Less
Debt to wife’s parents 11,000
92,271Husband’s superannuation 26,000
Savings [retained after separation] 19,000
Subaru motor vehicle 2,800
Jet Ski 200
48,000
Total 140,271
Contributions
The parties’ marriage lasted 9 years and it is now 15 months or thereabouts since their separation in October 2007.
Their daughter is 10 years of age. They have both been involved in her upbringing in the ways discussed earlier, but her mother has been primarily responsible for her care since the separation as well as being primarily responsible for her financial support in that time.
Neither of them came to the relationship with any assets and the assets they built up over the period of the marriage have a relatively modest value, the most substantial being the apartment in L followed by their respective superannuation entitlements.
Over the years they were together they both worked and earned an income from which they met their living expenses, some of which was used for travel each year, but they did accumulate savings and were able to contribute a relatively substantial sum to the purchase of the apartment towards the end of 2006. The funds they put towards the purchase represented over 58% of the purchase price.
But this purchase was possible only with the funds coming from the mother’s parents for which she receives the credit here. In particular, she is to be seen as contributing the gift of over $36,300 from her parents – which represents over 35% of the purchase price – as well as the interest free component of the loan repayable over time. The mother is to be credited also with other contributions made by her parents: the provision of accommodation each year during visits and the furniture and household items they provided to establish the L apartment. She has also been responsible for managing the apartment since separation.
The father contributed to the work that was done on the apartment by plastering and painting. He can also be seen as having contributed whatever funds he received from his mother over time and other assistance she has provided.
On the assessment of their contributions, the solicitor for the wife submits that should be seen as 60% to the wife and 40% to the husband. In my opinion, this is the least that could be credited to the wife given the magnitude of the gift from her parents for the purchase of the apartment along with their interest free loan plus the weight of her other contributions throughout and including the responsibilities she has had post separation, financial and non-financial.
Section 75(2) factors
They are of similar ages and neither has any health issue identified as impeding their capacity to engage in employment and support themselves and their daughter in the future. Both have skills and experience which equips them for the workforce. The husband can earn better money than he is at the moment, not only by increasing his hours from 20 per week but by working as a chef. This would be more than the wife’s earnings from clerical work but disparity of future earnings or earning capacity is not a factor of any particular relevance here.
What does call for an adjustment to the assessment made of their contributions is responsibility for the child’s future care. That will be shared according to the orders propose which mean her mother will have most of the responsibility for the remainder of her dependent years. While her father will contribute to the costs of future travel, her mother will be source of all her costs beyond that – at least while there is no tangible proposal about the payment of future child support apart from paying half the travel costs. This consideration calls for a significant adjustment in her favour.
The submissions for the wife are that a further 10% to 15% is required in recognition of her future responsibilities and I agree that is appropriate. An adjustment of 10% would entitle her to assets worth a further $14,000 while 15% would entitle her to a further $21,000.
Outcome
If just 10% adjustment is made for s 75(2) factors, a 70% entitlement overall would give the wife assets to the value of $98,189 which is in excess of the value of assets she would retain [after taking sole responsibility for repayment of the debt to her parents]. That would require the husband to pay her close to $6,000 for her entitlement to be met. If the 75(2) adjustment were to be 15% - by no means unjustified in the circumstances when applied to such modest net assets – that would bring her overall entitlement to 75% which would require the husband to pay her just under $13,000.
However, I propose to relieve him from the obligation to pay either amount - which may be some consolation to the husband about the accepted value of the apartment. It is acknowledged that the assets he will retain include the $19,000 he appears to have spent on past purposes and he has debts to pay, but I am satisfied in all the circumstances that the outcome discussed will represent a just and equitable result having regard to their respective contributions and future responsibilities.
Orders will be made accordingly.
Schedule of parenting orders sought
Orders sought by mother per further amended application December 2008
The mother and father shall have equal shared parental responsibility for the child […] born […] of November 1998 ("[the child]").
The child shall live with the mother in the Czech Republic.
The child shall spend time with the father at all times as agreed between the mother and father and in particular:-
(a)For a period of six weeks of the child's end of school year vacation and during the period from the 1st of July until the 30th of August (less travel time) with the mother paying the cost from Prague to Australia and the father to bear the costs from Australia to [T].
(b)In every alternate year for the whole of the child's Christmas School Holiday vacation period of two weeks in Europe at the cost of the father and in the event that the father spends time with the child in the two week Christmas school holiday vacation period in Czech Republic, then the mother shall vacate the unit and permit the father to spend time with [the child] in the unit;
(c)That should the father choose to travel to the Czech Republic to spend additional time with the child, then the father spend time with the child for three weeks and on no more than two occasions each year:
(i)That the father ensures that the child continues to attend school during that time, if the child is not otherwise on holidays;
(ii)The father gives the mother two months notice in writing of his intention to travel to the Czech Republic.
Communication
During the period of time that the child spends time with the father, the mother communicate with the child by telephone and email on at least one occasion each week.
That the child communicate with the father by telephone and webcam communications at all reasonable times with the mother initiating the telephone calls on at least one occasion each week.
That in addition, the father communicate with the child at all reasonable times by initiating telephone calls from Australia to CZ.
That the mother initiate the telephone call and permit the child to communicate with the father by phone on the following occasions:-
(a) The child's birthday;
(b) The father's birthday;
(c) Father's Day;
(d) Easter Sunday; and
(e)Christmas Day, (in the event that the child is not spending time with the father on Christmas Day.)
That the mother ensures the child communicates with the father via email at least once each week.
That the mother will at all times keep the father informed of:-
(a)child's residential address, land base telephone number and webcam details;
(b)the child's general wellbeing, educational progress and health issues by email, letter or telephone no less than one occasion each month;
(c)the mother will provide to the father a copy of the child's school reports as and when they are received; and
(d)the mother will provide a recent photograph of the child at least 4 times each year.
Restraint
Father
When [the child] is in his care, that the father be restrained from:-
(a) drinking to excess and smoking illegal drugs;
(b) making racist remarks;
(c) denigrating the mother to or in the presence of the child;
(d)permitting others to smoke illegal drugs, drink to excess and denigrate the mother to or in the presence of the child.
The father is to enroll in an anger management program within thirty days of the date of these Orders and the father shall fully participate in and complete the anger management program and comply with all reasonable directions by the program director and provide to the mother a certificate of completion.
The father is to enroll in the Triple P Parenting Course (full course) within thirty days from the date of these Orders and the father shall fully participate in and complete the Triple P (full course) Program and comply with all reasonable directions by the program director and provide to the mother a certificate of completion.
In the event the mother's Application to relocate is unsuccessful
The child shall live with the mother.
That the child shall spend time with the father:-
(a)each Tuesday from after school until before school on Wednesday and each Friday from after school until 6pm Saturday evening with the father to return the child to the mother's residence;
(b) all other times as can be agreed between the parties;
(c) For a period of time to be agreed on:-
(i) The child's birthday;
(ii) The father's birthday;
(iii) Father's Day.
Overseas holidays
That the mother be permitted to travel with the child to the Czech Republic for a maximum period of six weeks each year for a period nominated by the mother provided that such period only includes Christmas Day in each alternate year.
That in the event of the mother travelling overseas with [the child], the mother provide to the father a travel itinerary and a return ticket.
School Holidays
That subject to Order 15 and subject to the father completing the courses referred to in Orders 23 and 24, the child spend time with the father as follows:-
(a) One half of the Easter school holidays;
(b) One half of the June/July school holidays;
(c) One half of the September school holidays;
(d) One half of the December/January school holidays.
Christmas
That for the 2008/2009 Christmas holiday period, the child spend time with the father in the week beginning Monday 15th of December 2008 for one week and alternate weeks thereafter until the completion of that holiday period.
That in the event that the child does not travel to the Czech Republic with the mother at Christmas time, the child is to spend Christmas Eve with the mother and the evening of Christmas Day with the father.
Notification
That the parents will keep each other informed as to any change in residential address and land based telephone number and/or mobile number within seven days of any such change occurring.
The parent responsible for the care of the child is to contact the other parent as soon as practicable if the child:-
(a) Becomes seriously ill;
(b) Is hospitalised;
(c) Is involved in an accident.
Restraint
Father
When [the child] is in his care, that the father be restrained from:-
(e) drinking to excess and smoking illegal drugs;
(f) making racist remarks;
(g) denigrating the mother to or in the presence of the child;
(h)permitting others to smoke illegal drugs, drink to excess and denigrate the mother to or in the presence of the child.
The father is to enrol in an anger management program within thirty days of the date of these Orders and the father shall fully participate in and complete the anger management program and comply with all reasonable directions by the program director.
The father is to enrol in the Triple P Parenting Course (full course) within thirty days from the date of these Orders and the father shall fully participate in and complete the Triple P (full course) Program and comply with all reasonable directions by the program director.
Orders sought by father per amended response filed 19 November 2008
That the mother and father have equal shared parental responsibility for the child […] born […] November 1998.
The child […] live with the father.
That the child spend time with and communicate with the mother at all times as agreed between the parties but failing agreement
a.For all of the Christmas school holiday period;
b.By telephone mail or webcam at all reasonable times;
c.At all such times as the mother may travel to Australia the child will spend time with the mother as agreed between the parties provided the mother provides 1 months notice in writing of her intention to travel to Australia.
d.That the mother and father shall share the cost of the child’s travel and that of any accompanying adult for the child to spend time with the mother in accordance with these orders.
The father will at all times keep the mother informed of
a.The child’s residential address, land base telephone number, webcam and email address details;
b.The child’s general wellbeing, educational progress and health issues by email;
c.The father will provide to the mother a copy of the child’s school reports as and when they are received.
Should the mother choose to travel to Australia to spend additional time with the child pursuant to Order 3(c) then she may spend time with the child for 3 weeks on each occasion and on no more than 4 occasions each year provided
a.That the mother ensures that the child continues to attend school during that time if the child is not otherwise on holidays
b.Should the child spend time with the mother for the period of up to 3 weeks then the father shall communicate with the child during that time by phone on a daily basis and face to face for 24 hours each 7 days.
Should the mother not relocate to Czech Republic
That the mother and father have equal shared parental responsibility for the child […] born […] November 1998.
The child […] live with the mother and father on an equal shared basis as follows
a.A minimum of 2 days per week with such times to be nominated by the father to the mother at least 7 days before hand when possible, and in event within 2 days to the mother;
b.Any other times as agreed between the parties.
The child […] live with the mother and father on an equal shared basis as agreed between the parents but failing agreement as follows
a.With the father each alternate week from 3:00pm Friday until 9:00am the following Friday with the father to collect the child from school and return her to school;
b.With the mother each alternate week from 3:00pm Friday until 9:00am the following Friday with the mother to collect the child from school and return her to school;
c.If the mother is not available to collect the child after school on any day the child is to spend time with the mother the father will collect the child from school and return her to the mother when the mother has finished work;
d.For one half of each school holiday period with the father to have the first half in even numbered years and the mother to have the first half in odd numbered years;
e.For the child’s birthday if on a weekday the parent with whom the child is not living shall spend from 4:00pm until 7:00pm with the child. If the child’s birthday falls on a weekend the parent with whom the child is not living shall spend from 1:00pm until 6:00pm the parent with whom the child is to spend time shall be responsible for the collection and return of the child to the other parent;
f.For Christmas day if the child is not living with parent from 2:00pm on Christmas day until 2:00pm on Boxing day;
g.Should the mother wish to travel with the child to the Czech Republic during the Christmas school holiday period with the child orders (d), (e) & (g) will be suspended provided the mother provides to the father 28 days notice in writing of the intended travel together with a copy of the travel itinerary and the return ticket for the child.
The parent responsible for the care of the children is to contact the other parent as soon as practicable if the child;
a.Becomes seriously ill;
b.Is hospitalised; or
c.Is involved in an accident.
Orders proposed by independent children’s lawyer – exhibit 13
The mother have sole parental responsibility of […] (the child) born […] November 1998.
The mother be at liberty to relocate with the child to the Czech Republic.
The child spend time with the father as follows:
a. for a 6 week period in each year,
i.such time to occur in Australia, being [at T] or such other place as nominated by the father, unless specifically agreed otherwise between the parties
ii. such time to co-incide with the child's summer holiday
iii. such time not to include any travel time to/from Czech republic
iv.the mother to be responsible to deliver the child to and collect her from the nearest Australian capital city as nominated by the father
b. for a period of up to 2 weeks in each, with such time:
i. to coincide with the child's Christmas holiday period, and
ii. to include Christmas day in each alternate year
iii. to occur in Czech Republic or in Italy as nominated by the father
iv.the father to be responsible to collect/deliver the child, or to arrange for her travel to/from her home town in Czech Republic
c.for a period of up to 3 weeks on no more than 2 occasions each year in the child's home town in the Czech Republic provided that the father:
i. gives the mother at least 28 days notice of his intention to do so
ii.ensures the child attends school and any extra curricular activities while in his care
d. At any other time as agreed
The father communicate with the child as follows:
a.by telephone, email, webcam, skype, or by ordinary mail at all reasonable time
b.the mother to be responsible to initiate one phone or skype or webcam communication to the father each week
c.the mother to ensure the child is provided privacy during any communication with her father
The mother to facilitate and encourage all reasonable communication between the child and her paternal grandmother
The mother have reasonable communication with the child during any time that she is in the fathers care and the father facilitate the child to contact her mother at any time that she expresses a wish to do so
The mother to keep the father informed, in a timely manner, of all major decisions made about the child including education, extra curricular activities and health related matters
The mother to provide the father with copies of all school reports and other documentation relating to the child's progress at school and/or in extra curricular activities
The mother to keep the father informed about any serious health issues that arise for the child
The parents will each keep the other informed of their address, and contact details including telephone numbers, email addresses, webcam or skype details
The father be restricted from drinking to excess or from being under the influence of alcohol while the child is in his care
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore
Associate:
Date:
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Remedies
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