FRYER & NANSON
[2014] FCCA 297
•27 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRYER & NANSON | [2014] FCCA 297 |
| Catchwords: FAMILY LAW – Parenting – relocation – children aged 9 years and 12 years at trial – mother living in [W], Queensland – father living in Newcastle NSW with both children – mother proposes that both children live with her permanently in [W] – father opposes relocation – best interests of children. |
| Legislation: Family Law Act 1975 (Cth), Part VII |
| Cases cited: D & SV [2003] 30 Fam LR 91; FLC 93-137 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 |
| Applicant: | MS FRYER |
| Respondent: | MR NANSON |
| File Number: | CSC 324 of 2012 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 16 and 17 December 2013 |
| Date of Last Submission: | 17 December 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 27 February 2014 |
REPRESENTATION
| The Applicant: | Self represented |
| Counsel for the Respondent: | Ms V. Carty |
| Solicitors for the Respondent: | Denise Clark Solicitor & Advocate |
ORDERS
The children, [X] (“[X]”) (born [in] 2004) and [Y] (“[Y]”) (born [in] 2001) (“the children”) live with the respondent father.
The children to spend time and communicate with the mother, as follows:
(a)For the whole of the New South Wales public school term 2 school holiday period, and for four weeks of the New South Wales public school term 4 school holiday periods, as agreed, but in the absence of agreement to include Christmas Day in odd number years and to occur in Queensland.
(b)At any other reasonable time during school terms, as agreed between the applicant and the respondent, conditional upon the mother providing to the father 14 days prior written notice (by email or text message) of her intention to spend that time with the children and with such time to take place in the Newcastle or Sydney areas, or such other districts as the parties may agree.
(c)By written or electronic means, as well as telephone communication, at any reasonable time.
The time the children spend with the mother during term 2 and term 4 school holiday periods is to be implemented as follows:
(a)By the mother providing not less than 28 days prior notification to the father of the dates and times of air travel, including identity of the airline, the flight numbers and the names of the airports between which travel is to occur, with the father to ensure that such arrangements are implemented to enable the children’s time with the mother to occur.
(b)As otherwise agreed between the applicant and the respondent from time to time.
The cost of the children’s airfares to and from the mother’s residence is to be paid by the mother with the relevant flights to be booked by the mother after prior consultation with the father, and not less than 21 days prior to the flights taking place.
Within 21 days after the completion of each flight undertaken by the children, or either of them, the father is to pay to the mother 30 per cent of the return air fare applicable for each child for the return journey to and from the mother’s residence, with the mother to send to the father by email or text message a copy of the invoice for the return fare paid for each child or other documentary proof evidencing such payment, with her calculation of such 30 per cent and informing the respondent of the BSB, account number and name of the financial institution to which the father is to make payment of such 30 per cent.
IT IS NOTED that publication of this judgment under the pseudonym Fryer & Nanson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT NEWCASTLE |
CSC 324 of 2012
| MS FRYER |
Applicant
And
| MR NANSON |
Respondent
REASONS FOR JUDGMENT
This is an application by the mother to change the place of residence of her two children from Newcastle, New South Wales, to [W] in far North Queensland [location omitted]. It is a distance of about 2400 kilometres as the crow flies between [W] and Newcastle, or a 38-hour drive without stops.
The practical reality is that air is the only appropriate mode of transport and involves a journey from [W] to Cairns, Cairns to Brisbane and Brisbane to Newcastle or Sydney. Occasionally there is a flight from Cairns direct to Sydney.
The elder child, [Y], born [in] 2001 and now 12 years of age, is a child of the brief relationship the mother had with his biological father,
Mr W, and which occurred before the mother began her relationship with Mr Nanson in either late 2002 or early 2003.
It was not until a parentage testing procedure was undertaken that it was established on 8 October 2013 that Mr Nanson was not the biological father of [Y], but Mr W[1].
[1] See annexure LMF-1 to mother’s affidavit sworn 23rd and filed 30 October 2013.
The mother deposes to being fairly certain that Mr W was the father of [Y] and gradually formed the view, over a number of years, that Mr W was more likely the biological father given physical similarities which became apparent over the years, including hair, skin and eye colouring which were not shared by Mr Nanson, the child [X] or the mother.
The father had always considered that he was the biological father of both [Y] and [X], but deposed to being informed by the mother at a mediation conference in February 2012 that he was not the father of [Y].
Mr Nanson did not believe this assertion and did not believe the mother was telling the truth.
Both parties assert that during the course of their relationship, and when arguments arose concerning [Y], the mother insisted Mr Nanson was the father and Mr Nanson questioned the mother about the identity of [Y]’s biological father.
The mother deposes to eventually locating Mr W by Facebook in about April 2013, which led to an agreement for parentage testing.
It is not in dispute that Mr Nanson has at all times been [Y]’s psychological father. It is also common ground that [Y] has not yet been told that Mr Nanson is not his biological father. I will refer to this later in these reasons.
The mother deposes to a discussion with Mr W in which he said he would not force the issue of being told he is [Y]’s biological father and would leave that process to the mother and [Y].
Whilst in a strict sense Mr W should have been joined as a party to these proceedings, it seemed to me that it was in the best interests of both children for the moment to proceed to the final hearing in the absence of Mr W, given that it had been listed for hearing since directions were made on 5 July 2013. Further, the issue of the identity of [Y]’s biological father did not become apparent until the hearing commenced and had not been raised as an issue by either party so far as the matter being adjourned to join Mr W as a party.
In reaching this decision, I concluded that Mr W is not precluded from making any application he may wish to make in the future for any parenting order in relation to [Y], if indeed he and the mother are unable to reach any agreement.
Consequently, it is the children [X] and [Y] who are the two children the subject of the competing applications brought by the parents.
It is not in dispute that the parties separated in early 2009 with the mother and the children continuing to live in the Newcastle district until the Christmas holidays 2009 when the mother moved with the children to [W]. During the whole of 2010, the children lived with the mother in [W].
During the Christmas school holidays 2010 the mother returned the children to Newcastle to spend time with the father. Since that time, the children have lived continuously with the father in Newcastle subject to spending periods of time with their mother in [W].
It is the mother’s case that she has been able to obtain secure employment in [W], that she has repartnered, that her present location is close to members of her extended family, that she is a descendant of the far north Queensland [omitted] people and that proximity to her family is important for her wellbeing and that the father does not promote the children’s aboriginality.
It is the father’s case that the children have stable lives in Newcastle, that there is no reason to disturb such stability, that he fosters and maintains the children’s aboriginal culture and activities and that he does not represent any risk to the children. Further, it is the father’s case that there is no good reason to disturb the children’s current stable arrangements and that the children are able to spend time with their mother in [W] as well as spending time with her if she visits Newcastle.
Until just prior to the hearing, the mother was represented by Ms Hartley, Solicitor from O’Reilly Stevens Lawyers in Cairns who prepared the mother’s documents upon which she relied at the hearing.
The mother was not represented at the hearing by such lawyers telling me she could not afford their fees. Before the hearing commenced, I explained to the mother the manner in which the hearing would proceed and the relevant law. It seemed to me from some questions I asked of the mother that she had a good understanding of the relevant law and the principles to be applied as was evidenced in part by her outline of case document which it seemed to me she had prepared herself. The mother conducted herself appropriately throughout the hearing as to procedural matters and I am satisfied she was not disadvantaged in presenting her own case.
The respective applications at the hearing
The mother
The mother sought final orders in accordance with her amended application filed on 2 September 2013 including a declaration be made as to the parentage of [Y], that the mother have sole parental responsibility for the long term decisions concerning both [Y] and [X], that both children live with her in [W] or any other location within Australia provided it did not make the father’s time with the children impracticable and the children spend time with the father for the first half of the term 1, term 2 and term 4 school holiday periods in even numbered years and for the whole of the term 3 school holiday period every year and for the second half of term 1, term 2 and term 4 school holiday periods in odd numbered years with an additional long weekend during each school term.
The mother proposed that the costs of the children travelling to and from the father’s home in Newcastle, in effect, be shared equally between them by the mother meeting the whole of the return airfares for two of the holiday periods each year and by the father meeting the whole of the return airfares for the two other school holiday periods and with appropriate prior notification of the bookings and journeys.
The mother proposed a number of other practical parenting orders for communication by telephone and skype on a regular basis and with both parents to be restrained from consuming more than three standard drinks of alcohol in any one twenty four hour period whilst in the presence of the children and with each parent restrained from bringing the children into contact with any person under the influence of illicit drugs and with each parent to be restrained from and to protect the children from family violence and with the father to be restrained from leaving the children unsupervised with the paternal grandfather and if such contact were to occur the father is to personally supervise the children at all times. The mother proposed also that the father be provided with copies of all school reports.
The father
The father proposed orders as set out in his outline of case document filed on 13 December 2013, namely that the parents have equal shared parental responsibility for both [Y] and [X], that both children live with him, that the children spend time with the mother for the whole of the term 2 school holidays and for four weeks of the Christmas school holidays each year and at any other reasonable time the mother is in Newcastle upon giving prior notice.
The father proposed that the mother meet the costs of the children’s return airfares from Newcastle to [W] and return and proposed a number of other practicable parenting orders not dissimilar from those proposed by the mother.
At the conclusion of the second day of hearing final parenting orders were made by consent as to a number of significant matters as follows:
1.The parents shall have equal shared parental responsibility for the children [Y] born [in] 2001 and [X] born [in] 2004 (“the children”).
2.The parents shall do all acts and things and execute all documents to instruct the Principal/s of the children’s school/s to forward to both parents copies of all school reports, school photographs, any notifications and other documents relevant to the children’s welfare and education and in this regard both parents shall be permitted to attend any function at the children’s school/s to which parents would normally be invited.
3.The parents shall provide authorisation to any treating medical practitioners of the children to allow both parents to have direct access to the children’s health and medical records.
4.Each of the parents shall have reasonable telephone or electronic communication with the children while the children are in the care of the other parent, and the children shall have privacy and peace for such communication.
5.Each of the parents shall advise the other parent as soon as is practicable in the event of a serious accident or illness of the children or either of them whilst the children are in each parent’s respective care.
6.Each of the parents shall advise the other parent of a change of address or contact telephone number within seven (7) days of change in same.
7.Neither parent shall denigrate, nor allow any other person to denigrate, the other parent in the presence or hearing of the children.
8.Each parent is hereby restrained from using corporal punishment to physically discipline the children or either of them and from allowing any other person to do so.
9.Each parent is hereby restrained from allowing the children to be exposed to domestic violence at any time whilst in their respective care.
10.Neither parent shall use illicit drugs nor shall either parent consume alcohol in excess of a quantity which would allow them to legally drive a motor vehicle at any time the children are in their respective care or for 12 hours prior to such time.
11.Each parent is hereby restrained from permitting the children to be in the sole care or company of the paternal grandfather.
The mother made it clear in her case that she had no intention of returning to the Newcastle district to live. The father made it clear in his case that he had no intention of moving to [W] to live.
Consequently, the respective applications for determination were with whom the children should live and the amount of time to be spent with the other parent and how it should be implemented.
Existing parenting orders
Orders were made in the Federal Magistrates Court of Australia in Cairns on 6 August 2012 by consent that pending further order the parents have equal shared parental responsibility for both children, that the children live with the father and the children spend time with the mother for the whole of the September/October 2012 New South Wales school holiday period in [W] with the mother to pay the return airfares for the children and for part of the Christmas 2012 New South Wales school holiday periods, again in [W] with the mother to pay the children’s return airfares and for one long weekend during each school term and with other practical parenting orders as to telephone communication, provision of school reports and non-denigration.
Further parenting orders were made in the Federal Magistrates Court of Australia at Newcastle on 3 October 2012, pending further order, that the children spend one half of the New South Wales gazetted school holidays at the end of the first, third and fourth school terms in 2013 with the mother in [W] with the mother responsible for paying the return airfares, and for the whole of the New South Wales gazetted school holiday periods at the end of term 2, again in [W] with the mother to be responsible for payment of the return airfares.
The other relevant parenting orders were those final orders made by consent on 17 December 2013 to which I have referred above.
Background
The mother is 32 years of age and is employed as a [omitted] by [R] in [W] and on a permanent roster working four days on and four days off. The mother’s day shift is from 6 am until 4 pm, and in the past has worked a night shift.
The mother deposes to proposing to reduce her work hours to a 28 hour week once the home owned by the parties in Newcastle is sold, anticipating that she would then work a four day roster with two days from 10 am until 5 pm and two days from 10 pm until 5 am.
The mother re-partnered with Mr C in [W] and they have lived together from about September of 2010. Mr C is 36 years of age and has two daughters, namely [C], born [in] 2000, aged 13 years, and [D], born [in] 2002, aged 11 years, who live with their biological mother in Cairns, a journey of about one and three-quarter hours by air. [C] and [D] spend holiday time with Mr C in [W].
Mr C is employed as a [in] by [R] in [W] where he has worked since December 2009.
The mother and Mr C rent a three bedroom home from [R], which the mother describes as permanent housing for employees. Mr C currently works from 7.30 am to 3.00pm, with some flexibility.
The mother currently earns approximately $4100.00 per month net after deduction of income tax and child support and Medibank Private health fund fees.
The father is 45 years of age and is employed by [omitted] with a net take home weekly pay of about $820.00. He was previously employed by [omitted], but following knee surgery on both knees in May 2013, he is no longer able to perform such work. He is not required to do any overtime and does not work at weekends.
The father re-partnered with Ms C, aged 45 years, early in 2010. Ms C does not have any children. The father and Ms C rent their home in [omitted], a suburb of Newcastle. Ms C works as a [omitted].
The father has two children by a previous relationship, namely [A], born [in] 1995, now aged 18 years, who was living with the father but has now left, and a younger child, [B], born [in] 1998, now aged 15 years and nine months, who lives with her biological mother.
The mother is an Aboriginal woman and the children, [X] and [Y], both identify as Aboriginal. Neither the father, nor his partner, Ms C, nor the mother’s partner, Mr C, identify as Aboriginal.
The parties commenced their relationship in early 2003, although had known each other some years previously as a consequence of the paternal grandfather, Mr N, and the maternal grandmother, Ms H, now deceased, having lived in a de facto relationship.
The parties separated in early 2009 whilst living in Newcastle, with the father leaving the home and with the mother, [Y] and [X] remaining at the home. The father spent time with the children by arrangement with the mother.
The mother had started studying [omitted] at the University [omitted] during 2009, and over the Christmas holidays at the end of 2009 moved to [W] with both children to spend time with her extended family and obtain employment with [R]. The father agreed to the children remaining in [W] for the ensuing 12 months.
At the end of 2010, both boys returned to Newcastle, with the mother remaining in [W], awaiting the outcome of her application for permanent employment with [R], which was confirmed in May of 2011.
The mother agreed to the children remaining in Newcastle during 2011 to avoid interruption to their schooling. By the end of 2011, there was no agreement between the parents as to the children returning to [W] and they have remained living with the father and Ms C since that time in Newcastle.
The former family home owned by the parents is located at [G], a suburb of Newcastle, and is occupied by the mother’s sister, Ms L, and her father, also the mother’s step-father, Mr H, aged about 48 years.
The evidence
The mother relied upon the following affidavits:
a)Her affidavit sworn 23 May and filed 28 May 2012 in the Federal Magistrates Court at Cairns.
b)Her affidavit sworn and filed 3 August 2012 in the Cairns Registry.
c)The affidavit of her partner, Mr C, affirmed 23 October and eFiled 25 October 2013 in Newcastle.
d)Her affidavit sworn 23 October and filed 30 October 2013 in Newcastle.
The father relied upon the following affidavits:
a)His affidavit sworn 23 and filed 24 October 2013.
b)His affidavit sworn 9 and filed 16 July 2012.
c)Affidavit of Ms C sworn 23 and filed 24 October 2013.
Admitted into evidence by consent was the Family Report of Ms T, a Regulation 7 Family Consultant, published on 13 February 2013, following interviews with the mother and the father, the children [Y] and [X], and the mother’s partner, Mr C, on 5 February 2013.
I also had the benefit of listening to and observing the parents give evidence, together with the father’s partner, Ms C. Mr C was not required for cross-examination.
I also had the benefit of listening to the evidence of Ms T, the author of the family report, who was cross-examined by Ms Carty and the mother.
There was one exhibit F1 – a letter of 17 December 2013 from the Deputy Principal of [K] High School confirming that [Y] is enrolled into year 7 at [K] High School for 2014.
I also had the benefit of submissions from both Ms Carty and the mother.
The issues
It seems to me the issues involve the careful consideration of what are the most appropriate parenting arrangements for [Y] and [X], both in the long term and in the short term, given the mother’s wish to relocate both children to [W], and against a background of neither parent being prepared to change their present district of residence, and in particular:
a)The nature of both children’s relationships with each of their parents and members of their respected extended families;
b)The likely effect of the changes in the children’s circumstances, including the likely effect of separation from the father and significantly reduced time with the father if the children relocate to [W].
c)The practical difficulty, expense and burden of travel for the children and either parent if the children relocate to [W].
d)The likely effect upon the children, if any, of living with their mother in [W], as opposed to living with their father in Newcastle.
e)The advantages and disadvantages for the children living in either Newcastle or [W].
f)The capacity of each of the parents to provide not only for the children’s day to day physical needs, but also their emotional and intellectual needs.
g)The ability of the parents to communicate and cooperate effectively to meet the children’s needs, and irrespective of whether they are living in Newcastle or [W].
h)The significance, if any, of the ability of either parent to foster, encourage and facilitate the right of both children to enjoy his Aboriginal culture and the likely impact any proposed parenting order may have on that right.
i)Given the respective proposals of the parents, whether it is possible for the court to formulate different arrangements for the time the children spend with each parent.
The relevant law
I have regard to Part VII of the Family Law Act 1975. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting Order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. There are two primary considerations:
“(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant.
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting Order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must go on to consider making an Order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[2].
[2] Section 65 DAA Family Law Act1975.
It is also necessary for me to consider in the context of this case established case law in relation to relocation. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII or elsewhere. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[3].
[3] Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 at para.40.
I have regard to the High Court decision in U v U (2002)[4] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[4] U v U (2002) 211 CLR 238; (2002) FLC 93-112.
In D v SV (2003)[5], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[5]D v SV (2003) 30 Fam LR 91 at 106; FLC 93-137 at 78290.
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of the amending legislation upon relocation.[6] In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[6] Taylor & Barker [2007] FamCA 1246; (2007) 37 Fam LR 461.
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
It seems to me the Court is required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[7].
[7] Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422.
I have considered also the decision in Mazorski and Albright [8], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
[8] Mazorski & Albright (2007) 37 Fam LR 518; at 526.
Section 60B (1)(a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
In the Full Court decision of McCall & Clark[9] their Honours Bryant CJ, Faulks and Boland concluded that there are three possible interpretations of Section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.[10]
[9] [2009] Fam CAFC 92, (2009) 41 Fam LR 483.
[10] Paragraph 119.
The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[11].
[11] Paragraph 120.
Her Honour Justice Bennett discussed the terminology in G & C[12] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[12] G & C [2006] FamCA 994.
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said:[13]
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[13] Paragraph 122.
I take into account also the judgment of the High Court in MRR v GR[14] and the requirement for the Court to consider the inherent difficulties for parents who live some distance apart and the consequent stress or other adverse impact which may affect either parent but more importantly the child and the reality of the situation required to be considered pursuant to Section 65 DAA(1).
[14] [2010] HCA4; (2010) 42 Fam LR 231.
I note also the recent Full Court decision in Sayer v Radcliffe &Anor[15] in which it was said relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders.
[15] Sayer v Radcliffe &Anor [2012] FamCAFC 209; 48 Fam LR 298.
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the legislation provides a focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The family report
In the family report, Ms T identified, accurately in my view, the parents’ perceptions of each other and the rationale underlying the mother’s wish that the children live with her in [W] on the one hand, and the father’s preference that the children remain living in Newcastle with him on the other hand.
Ms T noted that the parties reached a significant number of agreements on the day of the interviews, which were subsequently reflected in the consent orders made on the second day of hearing, to which I have referred. By the time of the hearing it was not agreed that the mother be responsible for all travel costs for the children when travelling to spend time with the father.
Ms T identified that the only remaining issue was whether the children should live with the mother or the father and identified also the children’s Aboriginality as being a further issue for consideration by the Court.
Ms T sets out in considerable detail the allegations made by each parent against the other concerning family violence and abuse of alcohol.
The mother told Ms T of her unhappy childhood and the exposure to her mother’s relationships with her two step-fathers and which had involved years of abuse.
The mother told Ms T, and also deposed to[16] her being subjected to sexual assault and inappropriate sexual behaviour by the paternal grandfather, Mr N, during the ages of about 13 and 17 years.
[16] Paragraphs 37 and 38 of the mother’s affidavit sworn 23 October and filed 30 October 2013.
It is to the mother’s credit that she gained sufficient confidence, prior to separation from the father, to engage in psychotherapy to assist her with her childhood upbringing in the culture of family violence and sexual abuse, and in the mother’s own words:[17]
[17] Paragraph 35 of her affidavit sworn 23 October 2013.
So that I could understand my situation and learn how to break the negative cycle.
Whilst the father told Ms T[18] that he did not know whether to believe that his father had sexually abused the mother when she was a child, he had, since the mother’s disclosure, not left the children in the grandfather’s sole care.
[18] Paragraph 29 of the Family Report.
An order to which both parties consented, and which was made on 17 December 2013, was that each parent is restrained from permitting the children to be in the sole care or company of the paternal grandfather.
Ms T found [Y] to be a confident, articulate child who appeared to present developmentally within normal parameters. During 2012, the school counsellor recommended [Y] be assessed by a paediatrician as some attention difficulties and difficulty with short term memory have been noticed. The father took [Y] to the [omitted] Medical Centre and obtained a referral to a paediatrician.
Ms T reports that [Y] enjoys school, has a wide group of friends, was proud to be elected school captain for 2013 and enjoys sports, including soccer on weekends and surfing and other activities.
[Y] told Ms T that he has been involved with NAIDOC at school and is involved in other indigenous cultural activities provided by the school with quite a few Aboriginal students at such school.
[Y] told Ms T that he and his brother, [X], spend time with the mother’s sister, the maternal aunt, Ms L, whenever she requested or if they requested of the father. [Y] told Ms T he enjoys his time with his aunt and her friends.
When asked about his recollection of living with his parents prior to separation, [Y] did not remember any fighting between his parents nor having witnessed either his mother or father being intoxicated.
[Y] told Ms T that he enjoyed the year he lived in [W] with his mother and that he has enjoyed his holidays with his mother, with hunting and fishing and some contact with members of the mother’s extended family at [omitted].
[Y] told Ms T that he liked the mother’s partner who cared for them on some occasions if the mother was at work.
When asked by Ms T if he had a view as to where he should live in the future, [Y] said that ideally he would like to live one year in [W] and one year in Newcastle, but realised that because of his schooling he could not do this.[19]
[19] Paragraph 80 of the Family Report.
Ms T commented that [Y] did not want to express a preference for one parent or the other as he loves both his parents and enjoys living in both areas. [Y] told Ms T that if he lived with his mother, that he might go to Brisbane or Cairns to boarding school for his second year education, but would not be unhappy doing so as he has a cousin who has done the same thing.
[Y] expressed a view to Ms T that, irrespective of the parent with whom he lives, he would want to spend half the school holidays with the other parent but thought that it would be good if he had a greater portion of the holidays with the parent with whom he did not live. Ms T observed that [Y] had a close relationship with all the adults present.
Ms T found [X] to be a quiet child who was able to separate for interview and report his experiences and wishes, and appeared to present developmentally within normal parameters. [X] told Ms T that he enjoyed school and had a good group of friends at school and enjoyed playing soccer on the weekends.
[X] told Ms T that he misses his mother at times but enjoyed spending time with her and her partner, Mr C. [X] told Ms T that he was upset coming home from his mother in September 2012 because he wanted to stay up there in [W].
Ms T commented[20] that [X] reports to love both his parents and enjoys his time in both places but wanted the Court to know that, if given a choice, he would like to live with the mother as long as he could spend holiday times with the father.
[20] Paragraph 88 of the Family Report.
Ms T observed [X] to have a close relationship with all the adults present.
In her evaluation,[21] Ms T commented that it would appear the mother suffered a significant degree of childhood psychological trauma and, as such, may have difficulties with psychologically attaching securely to her children.
[21] Paragraphs 90 to 100 inclusive of the Family Report.
Ms T expressed the opinion that the mother’s lack of commitment to the children over the past two plus years is cause for concern and would have caused the children to feel abandoned by her and undervalued in regard to their importance to the mother.
Ms T was concerned that the mother had made errors in regard to both children’s current ages or dates of birth during the interview, and although she claimed this was due to being nervous, she was able to state her and her partner’s age and date of birth details accurately. Ms T thought this may amount to further evidence of the mother being disconnected emotionally from the children over the previous two years.
Ms T commented upon the inarguable and significant benefits for indigenous children to be immersed in their indigenous culture, and in so doing, develop a real sense of belonging rather than indifference and are encouraged to be proud of their Aboriginality rather than feeling disadvantaged by it.
Ms T expressed a view that indigenous children would thereby develop a strong understanding and find support at hand when they experienced racism within the predominantly white or Australian culture.
Ms T commented that the father’s unsophisticated attitude toward indigenous peoples in Australia and the disadvantages they face is concerning.
Ms T expressed a view that it was evident that the children were well settled living with the father and are flourishing at school and within their sporting and peer groups, commenting further that it would be unusual for the Court to order a change of residence in such a situation unless there was an unacceptable level of risk of harm to the children in the father’s care or if the Court found the benefits to the children of living immersed in their culture outweighs the stability currently evident in their lives.
Ms T made a number of recommendations, in essence, that the children live with the father and spend six weeks each year during school holiday periods with the mother, so long as she is not rostered on to work, with further time to be spent with the mother in Newcastle if the mother travels to Newcastle for that purpose.
Ms T also recommended communication via Skype on a frequent basis.
During cross-examination by Ms Carty, Counsel for the father, Ms T agreed that with [Y] starting his high school education in 2014, he will begin the process of individuation and find increasing importance for him to spend time with his peers as opposed to his parents. Ms T agreed, for that reason, it was important for him to spend some school holiday time at home, but could cope with two weeks away from home with the other parents.
Ms T commented that if children of this age do not socialise during school holiday periods, they can find themselves out of their immediate peer group with adverse consequences. Further, the opportunity to take up casual employment or begin a relationship with a girlfriend is made more difficult.
When asked as to specific holidays, Ms T thought that if the mother visited Newcastle during the term 1 school holidays, that will be of benefit to both children, and similarly with the term 3 school holidays.
Ms T considered that if the whole of the July school holidays was spent in [W], that is a period of between 12 and 14 nights, then [Y] would cope and knows that he would have a good time with his mother.
As to Christmas, Ms T, considered a period of four weeks might give rise to a complaint as to being too long, but that a little more than half the holiday would be appropriate and give the residential parent some good relaxed downtime.
In relation to [Y] being told of the identity of his biological father, Ms T impressed that he should be told as soon as possible and that the next school holidays may be a good time, although qualified this by saying that adolescence is the worst time to tell him as this is a period when he would be working out emotionally who he is, building his own self-esteem and gaining knowledge about himself.
Ms T made it clear that it would be preferable for both the mother and the father to tell [Y] together after first obtaining expert advice as to how to tell him and ensuring that such discussion takes place where [Y] is comfortable. Ms T suggested two agencies who will be able to assist.
Ms T emphasised that it will be important for the parents to agree upon what to say to him if he becomes angry or sad for the reason that he could be angry with his mother for not having told him sooner and he could be concerned as to what this means concerning his relationship with his psychological father.
Equally, Ms T emphasised that [Y] needs to be reassured by both his parents about their love for him. Ms T emphasised further that both parents need to be ready to face his first possible reaction as well as fury with both of them and the possible rejection by him of both of them.
Ms T perceived that he could experience a significant emotional loss initially and that his self-esteem will be effected adversely with consequent grief, shock, despair and denial.
The evidence before me is that both children had seen a psychologist at NewPsych and on the second day of hearing, the father was making immediate inquiries as to seeing a psychologist as soon as possible for advice as to how [Y] should be told.
I find on the whole of this evidence that, whilst there is no current indication that [Y] has knowledge of Mr W being his biological father, although there was one incident where he may have overheard a conversation between the mother and her sister, Ms L, and was aware that he attended for blood testing, it is crucial that both the mother and the father tell him together after obtaining expert advice as to how it best can be done.
Ms T was cross-examined by the mother, who had indicated to me at the beginning of the hearing that perhaps Ms T had been biased as to her preparation of the report and, in particular, had not interviewed the father’s partner, Ms C. When asked why Ms C had not been interviewed, Ms T said that if there were no allegations about a partner, and the children report they liked the partner, then she would not normally think it necessary to do so.
Ms T agreed that she had also interviewed the father’s eldest daughter, [A], and that it was an oversight that she had not been listed in the persons interviewed.
The mother asked Ms T why she had made little mention in the family report of the children’s progress at [W] School during the year they were living with their mother. Ms T said that the children had said they enjoyed everything during the year they had lived with their mother, including the school and sport and friendships.
Discussion
The evidence establishes that the mother is bona fide in her wish for the children to live with her in [W] and that her application and is not brought out of malice toward the father.
When asked what she thought were the father’s positive parenting attributes, the mother said that the father meets the children’s needs and he generally cares about them, although she had no direct current knowledge of how he was doing that at the present time.
When asked about his criticisms of him, she said that she was concerned that he had withheld, and was likely to withhold, the children from her and would interfere in their relationship with her, and was concerned that he would try and keep them out of her life, particularly with education. At this point, the mother said that she had been worried about [Y]’s progress at school and his preparation for high school, and that it will be nice to know from the father rather than having to make inquiries herself.
The mother said that she had spoken to [Y]’s school and was satisfied that there were measures in place to assist him, and that he had received help with counselling and did not think there was much more that she could do. She agreed that she now receives the newsletters and the school reports.
The mother acknowledged that, with the exception of 2010, the children have lived the whole of their lives in Newcastle, and at their present school, they were both noted as being Aboriginal and benefited from Aboriginal prioritised learning plans.
The mother agreed with Ms Carty that both children were well settled at school, especially [X], although the mother had some concerns about [Y], as referred to by Ms T in the family report.
The mother was critical of the arrangements made by the father for [Y] to commence his high school education at [K] High School, but I gained the impression this was more on the basis of lack of consultation and because it was out of the zone for [G].
The mother said that she would have preferred [Y] to go to [B] High School but did not adduce any evidence as to why such school should be preferred. The mother also gave evidence that she would like to investigate other schools for [Y], as she thought there may be better schools and gave [L] High as a further example, however, the mother adduced no evidence in support of her contention that such schools would be more appropriate.
If the children were to live with the mother in [W], I am satisfied on the mother’s unchallenged evidence that there are more than adequate facilities for the children’s education, health and sporting activities.
If [Y] wished to go to University, the mother said he would be able to attend the [omitted] University at Cairns and would be eligible for a subsidy from [R].
As to [X], the mother acknowledged that he is happy at his present school, has lots of friends and enjoys sport, including soccer.
The mother was cross-examined closely concerning an incident in April of 2013 when the mother and her sister, Ms L, spent a few days in Sydney with [Y] and [X] and Ms L’s baby, [name omitted], and an argument developed between the mother and Ms L. The mother conceded that she and her sister had been drinking but not to the extent of intoxication.
The mother denied that she had told [Y] at that time that the father was not [Y]’s biological father but conceded that she had talked to Ms L about [Y]’s paternity at the same time.
The mother did not think [Y] had become aware of the issue concerning his paternity and based such belief upon the fact that [Y] had not said anything to her.
I accept the mother’s evidence that she did not say anything to [Y] on this occasion about the identity of his biological father. The mother said that she was under the impression that the father was going to talk to [Y] about the identity of his biological father and agreed the issue had to be dealt with sensitively with counselling to be put into place for [Y]. The mother conceded that she had not talked to the father about how the issue could be approached.
I am left with the distinct impression following the evidence given by both parents that each has preferred to avoid confronting this issue following publication of the parentage testing results, probably because it is a difficult matter for each to face and probably do not feel equipped to go about finding professional assistance.
As a consequence of evidence given during the hearing, I am satisfied that both parents are now well aware of the importance of embracing the issue, obtaining professional assistance and telling [Y] as soon as they are able and together.
The mother became very upset and broke down when she was asked questions about her psychotherapy, which commenced in 2005. The mother gave compelling evidence as to how she perceived her world to be falling apart at the time she sought professional help and that she wanted to address the issues, and which she did for a couple of years without telling the father about her allegations concerning the paternal grandfather. The mother agreed that the father had supported her wish prior to separation that the paternal grandfather spend no time with the children.
The mother cross-examined the father as to his financial support of the children during the 12 months following separation in early 2009. The father said he helped out a bit and responded:
“You did not want child support.”
The father said he paid a total of about $450 but that the agreement was that, if she needed money, he would help out if he could. The father conceded he had not offered any money for the support of the children.
I was left with the distinct impression from the tenor of the father’s evidence that, following separation, he had little concept of the cost of support of two children and was reluctant to pay child support.
The father conceded that he had not visited the children in [W] during 2010 when they were living with the mother and had not made any inquiries of [W] College as to their progress at school. The father said:
“I wasn’t kept in the loop re their schooling.”
When asked by the mother whether he had any concerns about the children in [W], the father said:
“You left for two weeks to go up there and then we agreed to a 12‑month period, but I was concerned about drinking and family.”
The mother suggested to the father that, if he had concerns, then he could have visited, to which the father replied:
“I would have been out of my depth. I did not know anybody there. I did not know where you lived. I have only recently got your postal address from the affidavit.”
I was left with the clear impression from this passage of the father’s evidence that he had no real concerns about the mother’s ability to care for the children in [W] and that he had no interest in visiting them. I find that it is implausible that the father could not have made inquiries to find out exactly where the children were living and, equally, he could have made inquiries of the mother as to the children’s school.
I am left with the impression that the father was not overly concerned or necessarily interested in the children’s progress and welfare. The evidence establishes also that the father did not pay any child support during 2010.
The mother deposed to contacting the father in early January 2012[22] to the effect that there was an agreement that the children return to live with the mother in [W] at the beginning of that year. The mother deposed to the father’s response being to the effect that if the mother wanted the children to live with her then she would have to return to Newcastle.
[22] Paragraph 61 of the mother’s affidavit sworn 23 October 2013 and filed 30 October 2013.
The mother deposed to making arrangements with the father on 14 January 2012 for her to visit Newcastle and spend time with the children and deposed to the father texting her not to bother about coming down because the children would not be there. The mother emphasised in her affidavit that the father did not tell her that he was taking the children camping.
The father had deposed[23] that the mother intended to visit Newcastle on the long weekend in January 2012 but that no firm arrangements were made, with the mother stating that she may come down for the Australia Day weekend.
[23] Paragraphs 26 to 30 of the father’s affidavit sworn 9 July and filed 16 July 2012.
The father deposed to having made arrangements to go camping for a week at [omitted], which occurred, and that they were located out of telephone range except when the father went into the town for supplies and received messages on the telephone, both from the police and the mother.
The mother cross-examined the father about the arrangements for her to spend time with the children and said that he had taken four weeks leave to spend time with them, which had started just before Christmas 2011, and that he was on annual leave between 3 and 16 January 2012.
When asked as to where he was on 20 January 2012 when the mother arrived at Newcastle, the father was somewhat vague in his responses and said that he did not know.
It would appear that the mother had issued a subpoena to the [workplace omitted] for the father’s work record, which suggested that there was no record of the father taking leave between 16 January and 24 January 2012. When asked whether he was working during that period, the father said:
“I can’t confirm.”
When asked by the mother if it was possible that he was working, the father said:
“We were probably in [omitted].”
The mother asked the father if he recalled receiving a text from her on 14 January that she would be coming to Newcastle, to which the father responded:
“I can’t say yes to that.”
At that point the mother showed her telephone handset to the father.
The mother put to the father that he had sent a text in response saying:
“The children won’t be there.”
I prefer the mother’s evidence as to this incident. I am satisfied the father apprehended that the mother proposed to take the children back to [W] and that he was keen to prevent that occurring. I am satisfied on the mother’s evidence that the father denied the children spending time with the mother on that occasion.
Whilst the father has asserted that the mother made a number of promises to visit the children in Newcastle but did not keep those promises, I’m satisfied that it is more likely that the mother had said she would visit Newcastle if she could but that her financial circumstances precluded her from doing so, and of which she gave evidence during cross-examination.
The father gave evidence in cross-examination by the mother that he uses the surname Nanson for [Y] for registration at his present school, for soccer and other general use, but that his medical records at [OMITTED] Hospital show “[Y] Fryer”, which is also used at [omitted] Medical Centre.
The father said in cross-examination that, prior to separation, the parents had agreed that [Y] should be enabled to use “Nanson” as his surname for all purposes and that the necessary paperwork had been obtained, but this was followed by an argument and not done.
The mother cross-examined the father as to the emergency contacts on [Y]’s school enrolment forms showing Ms C and the paternal grandfather, Mr N. The father said that these particulars had been notified before the court proceedings had been commenced and that his father had been included because he was the only other adult presently available.
The father agreed in cross-examination to delete the paternal grandfather as an emergency contact and to be replaced by his sister, Ms R.
The mother cross-examined the father as to his convictions for drink driving with the father admitting one conviction in about 1985 and again being charged in 2009 but not being convicted. The father gave evidence that the children were not with him at the time of the incident in 2009 and emphasised that he had never driven over the limit when the children were with him.
Whilst the mother expresses a concern about the father drinking alcohol excessively, there was no evidence adduced in the mother’s case upon which I can make a finding that the father represents a risk to the children as a consequence of inappropriate consumption of alcohol.
The mother cross-examined the father about his fostering of the children’s Aboriginal culture outside the school programs. The father mentioned a friend of his, Mr A, to whom he spoke about looking into Aboriginal activities outside school and that fishing trips had been talked about. Eventually, the father was obliged to concede that he did not do a lot of things outside school to foster the children’s interest in Aboriginal culture and activities.
The mother cross-examined the father about his conversation with a process server on 26 June 2012, when the father was served with the mother’s initiating application and supporting affidavit.[24]
[24] See affidavit of Ms S sworn 2 July and filed 11 July 2012.
At the time of service, and after identifying herself, Ms S deposed to the father saying, when asked the name of the other party in the proceedings:
“[Applicant’s first name omitted] pig! Bitch! What documents do you have?”
Ms S deposed to placing the documents on a small table on the veranda, to which the father responded:
“You can stick them up your arse and don’t come back onto my property.”
The father conceded that he may have said “bitch” but did not recall using the word “pig”. He said that he did not accept service of the documents because of all the abusive phone calls he had received from the mother and that, at that time, he had had enough of her. The father admitted the conversation as to “stick them up your arse”.
I find on the balance of probabilities that the father used the word “pig” as well as “bitch”.
When asked by me as to what the father perceived the mother’s positive attributes as a parent were he said:
“She loves the kids, has always provided for them, means well and wants well for the children and she’s tried to integrate them into the Aboriginal culture and she’s very protective of them and it’s important that they spend time with her.”
When asked by me as to any negative aspects of the mother’s parenting, the father said:
“It’s the violence and aggression, lack of self-control and low tolerance to alcohol and she thinks confrontation is okay, although it is now improving, given her history.”
As to family violence, different accounts are given by each parent as to incidents during the relationship. I am satisfied on the balance of probabilities that there were arguments between them culminating in family violence but the evidence did not enable me to make any finding as to where the greater responsibility lay for such incidents. Doing the best I can, I find it is likely that both engaged in family violence from time to time and that alcohol was a contributing factor.
The mother cross-examined the father’s partner, Ms C.
Ms C told the mother that she was largely responsible for getting the children ready for school in the morning and that she picked them up sometimes from school and did a lot of the parenting. Ms C told the mother that she read them stories sometimes and put them to bed and that Mr Nanson was equally involved in the parenting.
Ms C had deposed to she and the father having a stable and loving relationship with no domestic violence.[25] The mother cross-examined Ms C as to whether there had been a separation during 2012. Ms C said that there was no separation but there had been some arguments and she had decided to end the relationship. This occurred at about Christmas 2012 and they fixed up the relationship over a couple of weeks. The cause had been [A] and her boyfriend, but they both left at the end of January or beginning of February 2013.
[25] Paragraph 10 of her affidavit sworn 23 October and filed 24 October 2013.
When asked by the mother as to how Ms C fostered the children’s Aboriginal cultural interests, Ms C said that she had arranged for a fishing course, for instruction in traditional ways of fishing, and that she knew of an Aboriginal art shop in [omitted] and was always looking for anything that would help with their cultural education.
Ms C conceded that there were no other specific Aboriginal activities.
I was left with the impression from Ms C that the fostering of the children’s Aboriginal culture and identity was not a significant part of the role she perceived she played as a step-parent to the children.
The mother had raised as an issue her concern as to sexual abuse of the children by the paternal grandfather.[26]
[26] See paragraphs 80 to 90 of the mother’s affidavit sworn 23 October and filed 30 October 2013.
I am satisfied that, as a consequence of the injunctive order agreed between the parents, that the children will not be exposed to any risk from the paternal grandfather and which will also extend to the possibility of the children coming into contact with him if they are spending time with the mother’s sister, Ms L.
The mother also raises a concern about the father’s inappropriate use of alcohol, to which I have referred, and prohibited substances. There is no evidence before me upon which I can make a finding that the father continues to use marijuana, which in any event he denies, or that his parenting ability is affected adversely by use of prohibited substances.
Application of section 60CC and the legal principles
How a court determines what is in a child's best interests
Determining child's best interests
Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
I find on the whole of the evidence before me that there is a very significant benefit for both children to be able to continue to enjoy and benefit from the meaningful relationship which I find each child has with the parents.
It is clear on the evidence before me that, whilst the relationship between the parents is poor as to communication and both lack some insight as to effective communication, I am satisfied on the whole of the evidence before me that both parents love their children very much and both have much to offer them.
It is significant also that both children have a close relationship with the parents’ partners.
I find on the evidence that, whether the children live with their mother in [W] or remain with their father in Newcastle, each parent will ensure that time is spent with the other parent and that there is regular communication by telephone and other electronic means. In these ways, the meaningful relationship which both children have with each parent will be continued.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Clearly there is a need to protect both children from being exposed to risks of this nature.
Whilst it is clear that there has been family violence between the parents, there is no evidence to suggest that either child was exposed to any arguments or incidents between them or exposed to the consequences of excessive use of alcohol or prohibited substances.
Whilst the father raises the incident in April 2013 when the mother was spending some time with her sister and the children in Sydney and the children were exposed to a distressing argument, I am satisfied from the mother’s evidence in cross-examination that she did all she could at the time to minimise the children’s exposure to the argument.
I am satisfied from the evidence of both parents that each is well aware of the importance of protecting the children from risks of this nature and will do all they can to ensure that no such risk arises.
For reasons I have given earlier I am satisfied that both parents will protect both children from any risk of inappropriate behaviour by the paternal grandfather.
3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
It is, perhaps, not surprising that [Y] told Ms T that ideally he would like to live one year in [W] and one year in Newcastle but was then reluctant to express a preference because he loves both parents and enjoys living in both areas.
Equally, it is, perhaps, not surprising that [X], as the younger child told Ms T that if given a choice he would like to live with the mother so long as he could spend holiday times with the father.
Whilst the father gave evidence in cross-examination by the mother that he had asked the boys where they would prefer to live and that they had told him that they preferred to stay in Newcastle, but like to see their mother for holidays, I can attach very little weight to such evidence. The father said, somewhat glibly, in response to the mother that he had never stopped the children from relocating to [W].
The father was clear to say that he did not propose to separate the children. It is not the mother's case that the children be separated.
It seems to me that the correct approach to the children's express wishes is to take them into account but not give them such weight as to be determinative.
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
I find on the whole of the evidence before me that both children have a fond, close, secure and loving relationship with each of their parents. Whilst there is no doubt on the evidence before me that until separation the mother was the primary carer, which continued during 2009 and 2010, the father had an integral relationship with both children which changed very significantly from the end of 2010 when the children have lived permanently with the father.
(ii) other persons (including any grandparent or other relative of the child);
The evidence before me establishes that both children have a close and loving relationship with not only Mr C, the mother's partner but also Ms C, the father's partner.
Equally, it is likely that both children enjoyed establishing a relationship with the mother's extended family and members of her people in the [location omitted] during 2010 and which can be continued as the children grow older. Similarly, the children are known to members of the father's extended family although the evidence has not enabled me to make any finding with precision as to the nature of those relationships.
(c) the extent to which each of the child's parents 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
The evidence before me is such that the father has predominantly made proposals in the last three years about long-term issues for both children including selection of school and medical treatment from time to time. It is unfortunate that these decisions have been unilateral and it remains for the father to be actively conscious of the need to involve the mother in major long-term decisions if they are to remain living with him. Similarly, I am left with the impression that the mother acquiesced in the father's degree of disinterest when the children were living with her in [W] as to matters concerning their education, progress at school, sporting activities and the like and it would remain necessary for her to consult with the father about major long term matters if the children live with her in [W].
(ii) to spend time with the child; and
I am satisfied on the evidence before me that the mother has been very conscious of ensuring that the children spend time with her in [W] and that she has met the cost of facilitating the flights for them.
The mother has spent time with the children in [W] in accordance with the orders made in July of 2012 and which led to two periods in 2012 and for three periods in 2013 at the time of the hearing with further time to be spent over the Christmas period 2013/2014.
Equally, the father has ensured the children have spent time with the mother.
I am satisfied that whether the children live in [W] or in Newcastle each parent will ensure the children spend time with the other parent and communicate with the other parent in accordance with orders to be made.
(iii) to communicate with the child;
The evidence establishes that the mother has regular communication with the children without any significant difficulty and no further observation or finding is necessary.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
It is clear that the mother has fulfilled her responsibility in this respect as the mother pays child support of $940.00 per month pursuant to the child support assessment and meets the cost of the airfares for the children travelling to and from [W].
The father is responsible for the support of the children living with him in Newcastle both as to accommodation and to day-to-day recurring needs. There is no suggestion on the evidence before me that either of the children wants for anything in the form of financial support in the father's care. Whilst the amount of child support paid by the mother is not insignificant and the costs of supporting the children are likely to be significant I am satisfied that both parents meet and share the obligation to support the children.
Whilst the father can be criticised for his lack of willingness to provide financial support during the two years following separation, he has now assumed the fulltime care of the children and his past conduct in that respect is to be seen in that light.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
I find on the whole of the evidence that there is likely to be a risk of significant adverse affect on both children if they are to live with their mother in [W] and for three reasons. First, whilst the evidence establishes that both children have a close relationship with both parents and all relevant adults, it is clear that the children have in the last three years established such a close relationship with their father and Ms C that it is now a very significant relationship for both children which ought not be put at risk if it were to be severed.
Second, the evidence before me is that both children are well settled living with the father and Ms C and are flourishing at school and have well-established sporting activities and peer groups. As Ms T said in evidence, the process of individuation, especially for [Y] attracts increasing significance and which will apply shortly to [X].
For the children to live in [W], it is quite possible that [Y] would attend a boarding school in Cairns as their mother intimated and that [X] could well follow suit which would then displace them from living in the direct care of their mother. Equally, they could complete their secondary education, as I understand the mother's evidence, in [W] but in either case, which I find very significant, they would again attend the school which they have not attended for three years, and lose the security of the friendships they already have.
There is nothing to suggest on the evidence before me that the children would not adapt to a new school and make friends and settle into a different lifestyle, but it seems to me there is an attendant risk and that such risk is not warranted.
Third, the evidence does not establish that the continuing development of the children's Aboriginal cultural, social, emotional and spiritual awareness will not be served if the children remain in Newcastle as compared with living in [W].
Whilst the mother gives detailed evidence[27] of the importance to her of her Aboriginal descent and identity and the activities she has enabled the children to enjoy when spending time with her, there is nothing to suggest on the evidence before me that the mother is unable to continue to foster these activities and awareness, not only when the children are spending time with her but also by communication with them if the children remain in Newcastle with their father. The mother impresses me as being very conscious of enabling the children to remain connected with their culture and lands.
[27] Paragraphs 154 to 167 inclusive of her affidavit sworn 23 October and filed on 30 October.
Whilst it is clear that the father and his partner have perhaps an unsophisticated attitude toward indigenous people and are perhaps minimally aware of the importance to the children of their culture being fostered and developed, as Ms T observed the evidence does not establish that the father and his partner deny the children such opportunities. It is clear from the evidence concerning the children's schooling that Aboriginal culture is an important part of the school program, and there is no reason to suggest that this will be discontinued in high school. The children also attend school with other Aboriginal children.
I take into account also that whilst the mother expresses a heartfelt wish to foster the children's Aboriginal identity, the reality is that the children would lead busy lives in [W], attend school, study, complete homework, play sports and mix with their peers. It will be little different if the children remain in Newcastle. There are two working parents in both families.
I find on the whole of the evidence that whether the children live in [W] or in Newcastle there is no risk to the development of their Aboriginal cultural, social, emotional and spiritual awareness and there is certainly no risk of it being lost.
When I come to weigh these competing considerations, I find there is no disadvantage for the children remaining in Newcastle with the father and spending time with the mother in [W].
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If the children are living in [W] they will be separated from their father and Ms C with whom they have developed a very close relationship over the last three years. If the children remain living with their father in Newcastle they will remain separated from Mr C but they have not lived with him except when the mother and Mr C commenced their relationship in September of 2010.
It seems that there is a greater risk of an adverse effect for the children in being separated from Ms C.
I take into account also that if they were living in [W] the children will be separated from their other sister Ms L whom they see from time to time.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is a very significant practical difficulty and expense of travel for the children irrespective of whether they are living in [W] with their mother or remain in Newcastle with the father and I have previously referred to the distance and travel time involved and the cost, of which there was no direct accurate evidence save that there was a general assessment that a return airfare cost around $800.00 for each child.
The mother has been able to pay for and arrange for the children to travel from Newcastle to [W] to spend time with her and return and which may involve flights between at least three airports with the children sometimes arriving in Newcastle and sometimes in Sydney. The father has ensured that both children are taken to and from the relevant airport as advised by the mother. To that extent, the parents have been able to cooperate about travel arrangements.
It becomes necessary to consider the ability of each parent to fund the continued cost of airfares and whether the cost should be shared, and if so to what extent. The mother is on a gross salary of $96,000.00 and pays child support of $940.00 per month, income tax and health insurance with Medibank Private for both children and herself. Her net take home monthly pay is $4100.00 after the deductions referred to above. The mother is in a salaried permanent position. The mother told me that she has the following monthly commitments.
A car loan with Toyota for a 2006 Landcruiser; outstanding amount $4000.00
$ 890.00
A personal loan from Redi Finance; outstanding amount $4000.00 and borrowed to attend the hearing.
$ 135.00
Yamaha Finance for a motorbike since sold; outstanding amount $3000.00.
$360.00
Mortgage repayment of a property at Property G, [G], Newcastle; outstanding amount $260,000.00
$1600.00
Total
$2985.00
The mother gave evidence that she had sold the motorbike to fund her visit to Newcastle in April 2013 to see the children. The mother gave evidence that the property at Property G is owned by her and the father and has a value of about $299,950.00. Consequently, the equity is likely to be less than $40,000.00. The father does not make any contribution to the mortgage. The home at Property G is occupied by the mother's sister - Ms L - and Mr H, her stepfather as previously referred to in these reasons. The mother would prefer to sell the property but no agreement was reached for this to be done during the course of the hearing.
The mother considered that she could stay at the property if visiting Newcastle but was reluctant to do so because of the state of the home and two dangerous dogs. The mother thought it likely that Mr H would eventually leave the home once he has completed building a home in [omitted].
Deduction of the mother's committed repayments of $2985.00 per month from her net take home salary of $4100.00 per month leaves a balance of $1115.00 per month and, therefore, the equivalent of $257.00 per week from which to support herself for other needs. There is no evidence before me as to the financial circumstances of Mr C or the extent to which they share the household expenditure.
The mother gave evidence that she had paid legal costs to her solicitors of $23,000.00 from moneys saved from her salary. The mother gave evidence that she has the benefit of a remote area travel allowance at the beginning of each year in addition to her salary which enables her to benefit from one return journey between [W] and Sydney each year and can include accommodation up to a maximum of $1500.00. A claim can be made after the expenditure has been incurred.
The father is currently on a gross salary of $58,000.00 per year, giving him a net weekly pay of $820.00 after income tax, superannuation, gym fee, social club fee and union fees. He pays child support of $72.00 per week for his younger child [B], rent of $320.00 per week and tutoring fees for [Y] of $30 per week together totalling $422.00.
Consequently, the father has a net weekly amount of $398.00 to meet the cost of supporting himself and the two children. The father claimed that he also supported his partner Ms C but I note that Ms C is in fulltime employment but there is no evidence before me of her income or her contribution towards household expenditure.
I take into account also that the father receives child support of $941.00 per month. The father paid his legal fees of about $9500.00 from a combination of family allowance of $6000.00 and a rebate of income tax and some savings.
Doing the best I can, it seems to me that the father has the capacity to contribute 30 per cent towards the cost of travel for the children, irrespective of where they are living. I note that the mother ensures that the children can travel with an airline which provides a facility of unaccompanied travel for children. Other forms of communication in the form of telephone, text, Skype and other electronic means will ensure communication.
The distance between the parents clearly adversely affects the children's right to maintain a relationship with the other parent but in all the circumstances the parents have put in place the best arrangements they can and which will be able to be continued given that neither parent proposes to move.
Doing the best I can and given the costs it seems to me that irrespective of where the children live the most appropriate periods of time to be spent with the distant parent are for the whole of the term 2 holidays and four weeks of the term 4 Christmas holidays. To that extent, I accept the unchallenged evidence of Ms T but find that the longer holiday period at Christmas is appropriate. These arrangements do not preclude either parent from visiting the distant place to see the children at other appropriate times and I will order accordingly.
(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;
For reasons given earlier on I have no hesitation in finding on the whole of the evidence before me that both the mother and the father are able to provide not only for both children's day-to-day physical needs but also their emotional and intellectual needs. Whilst the father can be criticised for his unsophisticated approach to some aspects of parenting in the past, I am satisfied this has not detracted from his ability to meet the children's needs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
No particular observation or finding is necessary as I have dealt with these matters at length earlier in these reasons.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Both children are Aboriginal. I have referred at length earlier in these reasons for judgment to various aspects of the evidence brought by each parent as to the manner in which each perceives the importance of developing the children's Aboriginal culture. I have referred also to that part of Ms T's evaluation dealing with the benefits to Aboriginal children of living immersed in their indigenous culture.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It is difficult to make a finding on the evidence before me as to the reason for the mother remaining in [W] with the consequent exclusion from the children's lives. Whilst the mother asserts that it is financial security that has led her to remain in [W] as well as the proximity to her immediate extended family, I find on the evidence that the mother is not without skills and intellectual ability and drive which would enable her to return to the Newcastle area to live.
The issue raised by Ms T[28] that there was a possibility that the mother suffered a significant degree of childhood psychological trauma which has resulted in her possibly having difficulties with secure psychological attachment to her children was not tested by the mother in cross-examination. That is not to criticise the mother for not doing so. It is one of the unfortunate aspects of the mother representing herself in a parenting case involving the complexity of relocation. Ms T commented that the mother's lack of commitment to the children is a cause for concern and would have had some adverse affect upon the children. To that extent, I am reluctant to find that the mother has displayed a poor attitude to the children or to the responsibilities of parenthood.
[28] Paragraph 933 of the family report.
Suffice to say it remains less than clear as to why the mother remains at such a great distance from her children when she had been their primary carer and they remained with her for two years following separation.
In every other respect, I find the mother has demonstrated an appropriate attitude to the children and the responsibilities of parenthood. To her credit, she has been consistent in maintaining a relationship with them and I am satisfied she will continue to do so irrespective of where the children are living.
At times, the father has displayed a poor attitude to the responsibilities of parenthood by failing to communicate as well he could with the mother and failing to provide an appropriate level of support. The father also displayed a poor attitude in January of 2012 when I am satisfied he could have done a lot more to ensure the children spent some time with their mother and I am satisfied he knew the mother was travelling to Newcastle to spend time with the children.
Irrespective of my decision, I am satisfied that each of the parents will continue to exercise appropriate responsibility as parents as they do currently and will continue to be committed to such roles.
(j) any family violence involving the child or a member of the child's family;
I have referred earlier in these reasons to family violence and no further observation is necessary.
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On the evidence before me, there is no current family violence order. The last apprehended violence order in which the mother was the protected person and the father was the defendant expired in March of 2010.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Insofar as I can I will make orders which hopefully will avoid the need for further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
The issue of [Y] being told the identity of his biological father is a vexed issue but during submissions at the end of the hearing I was left with the distinct impression that both parents will obtain appropriate assistance and make every effort to inform [Y] as soon as possible and together and without the need for orders. The parents had also agreed upon the time the mother was to spend with the children during her period in Newcastle prior to her return to [W] on 20 December. The parents also agreed that the children would travel to [W] to spend time with the mother from about 28 December to return to Newcastle on 24 January 2014.
The mother agreed to supply a certified copy of [Y]'s birth certificate to the father and the father agreed to retain the surname of Fryer for [Y].
I was left with the distinct impression from observing both parents toward the end of the hearing that the process of giving evidence had been cathartic for each of them and that each had a better understanding of the need to cooperate with their parenting both by better communication and a willingness to respect the other parent's point of view.
Section 61DA
When making a parenting order the court is required to apply a presumption that it is in the best interests of the child for the child's parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in the section. Both parents agreed that equal shared parental responsibility was appropriate and consented to an order to that effect.
Section 65DAA
Consequent upon making an order for equally shared parental responsibility the court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances. Irrespective of whether the children are living in [W] or Newcastle the evidence establishes that not only is it not in the children's best interests but neither is it practicable to spend equal time with each parent. In fact, it is impossible. Similarly, it is not possible to provide for continuing substantial and significant time except during periods of school holidays which in my view should be significant.
Advantages and disadvantages if the children remain in Newcastle
Advantages
Both children will remain living with their father and Ms C, and continue to attend their present schools, subject to [Y] moving to [K] High School in 2014, and are able to continue their present sporting activities and friendships and maintain their relationship with members of extended families. Both children will continue to have the opportunity to spend time with their mother in [W] and, if their mother is able to travel to Newcastle spend time with her here.
Disadvantages
It is difficult to identify any specific disadvantage save for the inevitable intricacy of spending face to face time with their mother. Whilst the mother may be disappointed if the children do not live with her in [W] there is no evidence before me at all which suggests that any such disappointment will affect adversely her wish to spend time with the children or her parenting ability. A further disadvantage is the unlikelihood the mother will return to Newcastle to live.
Advantages and disadvantages if the children relocate to [W]
Advantages
The children will be reunited with their mother who was their primary carer prior to separation in the two years following separation and the children will be able to avail themselves of better opportunities to be involved directly in their Aboriginal family’s culture and ways.
Disadvantages
The significant disturbance for the children in moving to [W] represents a risk of loss of their current stability both at school, their sporting activities and their friendships. It is likely that the children will grieve the loss of their father and Ms C having now established a close and loving relationship with each of them over the last three years. There is the possibility of the mother electing to have the children complete secondary education in Cairns as opposed to [W] with a consequent further disturbance for either or both children. There is also the unlikelihood the father will move to [W] to live.
Conclusion
Cases involving a proposed relocation are some of the most difficult which come before the court. In this case, the difficulty arises from the fact that the children have two loving caring parents who have not been able to agree on a number of matters and particularly with whom the children should live. This is made considerably more difficult by neither parent being prepared to leave the district in which she and he are currently residing. Equally, it is probably difficult for each parent to contemplate moving themselves given their present stability and financial security and having re-partnered.
When I compare the respective proposals and compare the advantages and disadvantages and I consider and weigh the whole of the evidence my conclusion at the end of the day is that it is in the best interests of both children to remain living with their father in Newcastle and spend time with their mother in [W].
My reasoning is that there are significant risks flowing from the disturbance of the children's present stability and with some possibility that those risks could not be overcome. Irrespective of where the children live, they will continue to maintain a relationship with both parents.
I conclude on the whole of the evidence before me that the disturbance to the children's present place of residence and most of all their wellbeing and the relationship they currently have with each parent is not warranted.
I accept the mother may be disappointed with my decision but I ask her to bear in mind that the court is required to make a decision in the children's best interests and not the parents' best interests.
I have taken into account the right of both parents to choose their place of residence and their freedom of movement.
I have considered also whether it is possible for the court to formulate a different arrangement for the children and have concluded it is not given the respective circumstances of each of the parents. It seems to me it is appropriate for the children to spend extended time with their mother during two holiday periods in [W] and also for the mother to have the opportunity to spend time with the children in Newcastle upon giving appropriate prior notice.
For these reasons, I make the following orders.
I certify that the preceding two hundred and sixty-five (265) paragraphs are a true copy of the reasons for judgment of Judge Coakes
Associate:
Date: 28 February 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Standing
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