Fyldes & Dysart
[2021] FedCFamC2F 223
•13 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Fyldes & Dysart [2021] FedCFamC2F 223
File number: DNC 340 of 2020 Judgment of: JUDGE YOUNG Date of judgment: 13 September 2021 Catchwords: FAMILY LAW – concerning a child who is three years old – whether the mother should be permitted to relocate from Darwin to Perth with the child – whether the father could relocate to Perth - where the child lives with the mother and spends time with the father – where the father seeks for the child to remain in Darwin and for an equal shared care arrangement – where there is a high level of conflict between the parties – where the conflict will have a deleterious effect on the child if it continues – where the mother experiences anxiety due to the conflict with the father – where the mother is financially insecure – where the mother asserts she would have more financial security and familial support in Perth – where the mother is willing to offer the father financial assistance to relocate to Perth - where the father asserts he is unwilling to relocate to Perth - where the Court is satisfied it would be reasonable and practicable for the father to relocate to Perth - Court satisfied it is in the best interests of the child to permit the mother to relocate with the child to Perth. Legislation: Family Law Act 1975 (Cth) ss 60CB, 60CC Cases cited: AMS v AIF [1999] HCA 26; 199 CLR 160
U v U [2002] HCA 36; (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 13 September 2021 Place: Darwin Solicitor for the Applicant: Mr Barry of Darwin Family Law Counsel for the Respondent: Mr Tippett QC Solicitor for the Respondent: Maleys Barristers & Solicitors ORDERS
DNC 340 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FYLDES
Applicant
AND: MR DYSART
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
13 SEPTEMBER 2021
UPON NOTING THAT orders 1 to 17 below were made on a final basis on 29 July 2021.
THE COURT ORDERS ON A FINAL BASIS:
1.That the parents shall have equal shared parental responsibility for X born in 2018 ("the child").
2.That should the parties be in the same location, the child may spend time with the parties on special days as follows:
(a)With the father from 2:30 PM to 6:30 PM on the child's birthday, and on Christmas day, and otherwise with the mother on those days.
(b)With the father from 7:00 AM to 5:30 PM on the father's birthday and on Father's Day, and 7:00 AM to 5:30 PM on the mother's birthday and on Mother's Day.
3.That unless otherwise agreed in writing between the parties or otherwise provided for by these orders, changeover shall be as follows:
(a)the B Shopping Centre or ferry terminal.
4.That communication between the parties:
(a)Shall only be in relation to parenting matters and be respectful; and
(b)That without written permission, neither party shall come onto each other's property.
5.The parties shall not directly approach within two metres of one another, except for the purpose of effecting changeover in accordance with these orders or in the event the child approaches one parent and the other parent is required to return the child to the first parent.
6.That both parties shall return to the other the clothes and any other of his items which the other parent provided at changeover.
7.That each parent is to use their best endeavours to promote a positive image of the other parent to the child, and refrain from denigrating the other parent either in person, on the phone or otherwise (email etc.), and further both parties shall speak respectfully towards each other within the hearing of the child.
8.That neither party shall expose the child to cigarette smoke, and shall remove the child from any such smoke and not permit smoking inside any building, vehicle or other confined space in which the child frequents or resides.
9.That each parent shall immediately notify the other of any serious illness or injury or any other emergency involving the child, when the child is in their care, and further both parties shall notify the other of any medical issues promptly including details of any treatment.
10.That both parties shall keep the other informed of their residential address and mobile telephone numbers and advise any change as soon as practicable but within 24-hours and preferably prior to any change if possible.
11.That either party may take the child overseas consistent with these orders when the child is due to spend holiday time with them.
12.That both parties, prior to taking the child overseas, shall obtain medical insurance (including hospital cover) for the child, register with Smart Traveller, and not travel to any country or area which is not recommended for travel by the Australian government.
13.That should either party seek to take the child overseas, as soon as practicable but at least one calendar month prior to departure they shall provide to the other party their destination and details where the child shall be staying.
14.That both parties shall promptly sign and return to the requesting party a passport application for the child, should that be necessary, and should the other party fail to do so this order shall serve as the consent of the other party for the purpose of issue of a new passport.
15.That the party who has applied for the passport and received the passport or has recently travelled with the child and has possession of the passport shall retain the passport until the other party seeks to take the child overseas.
16.That should one party seek to take the child overseas pursuant to these orders, the other party shall promptly provide the passport to the other party upon the other party booking tickets for international flights.
17.That should one party lose the child's passport they shall promptly pay for and obtain a new one.
Relocation and spending time orders until the mother relocates with the child
18.That the child shall live with the mother and the mother may relocate the child’s residence to Perth or surrounding suburbs, but not before 1 December 2022.
19.That until the child relocates to Perth (and noting that orders 20 to 25 are the same as orders 1 to 5 of the interim orders of 29 July 2021 excepting orders which no longer apply), orders 20 to 25 shall apply.
20.That the child shall live with the mother and spend time with the father on a fortnightly basis per orders as follows:
(a)Week 1: Thursday 7:30 AM to 5:30 PM; and
(b)Week 2: Thursday 7:30AM to 5:30 PM Monday;
(c)Up to 7 nights with the father each 4 months, upon the father giving the mother at least 1 calendar month notice, with that time not to occur on special days unless agreed between the parties.
21.That order 20 may be suspended for the mother to take the child interstate or intrastate for up to 6 weeks each year, in block periods of no more than 20 nights on each occasion, upon giving the father at least 1 calendar months' notice, and details as to where child will be staying, and further:
(a)That time shall not include Christmas Day, the father's birthday or the child's birthday, unless otherwise agreed; and
(b)The child shall spend make-up time with the father of at least two nights for each occasion the child interstate or intrastate for more than 7 nights with the mother, at a time to be agreed between the parties in writing.
22.That order 20 may be suspended for the father to take the child interstate or intrastate for up to 7 nights twice per year, upon giving the mother at least 1 calendar months' notice, and details as to where child will be staying, and further:
(a)That time shall not include Christmas Day, the mother's birthday or the child's birthday, unless otherwise agreed.
23.That for the purpose of orders 20 and 21 the parties must ensure that there is a period of no less than 1 month between the periods they travel.
24.That prior to the child spending block holiday time with either party, the relevant party shall advise the other at least 1 calendar month in advance when the time is proposed, and where the child shall be staying.
25.That should the child have more than 42 days absences each year as calculated by his childcare centre:
(a)Any additional fees over and above the usual daily fee for child care required by the mother shall be shared equally by the parties, with each party to pay their half of the additional fees to the child care, and prior to this occurring the father shall sign documents to confirm with the child care centre that he shall be liable for meeting his share of these fees and complying with this order; and
(b)The mother shall meet the child’s base rate daycare costs for child care required by her.
26.That neither party shall take the child overseas without the written consent of the other party.
27.When the child is on holiday both parties shall make the child available for a skype session on every third night at a time agreed between the parties but if no agreement at 6 PM at the location where the child is.
28.That in the event either party is going to be out of mobile phone reception and unable to comply with the preceding order they shall communicate with the other party that they will be unable to comply with the order prior to leaving mobile phone reception.
29.That both parties shall continue to primarily communicate by their current communication application Truece until they switch to the My Family Wizard at the expense of the mother and primarily use that for communication about the child, and further both parties shall:
(a)Keep the other informed about matters concerning the health and welfare of the child; and
(b)Communicate in a constructive, non-critical manner.
Orders that apply once the mother relocates with the child
30.That when the child is on holiday or has relocated to Perth, both parties shall make the child available for a skype session each Monday, Wednesday and Saturday at a time agreed between the parties but if no agreement at 6:00 PM at the location where the child is, and further the mother will ensure the child is available each month for a skype with the father’s other relatives located overseas at a regular reasonable time to be negotiated.
31.That unless otherwise agreed in writing between the parties or otherwise provided for by these orders, changeover shall be as follows:
(a)At the Perth and Darwin airports after the child relocates to Perth; or
(b)If the child is spending time with the father in Perth at the mother’s residence or another location as agreed to between the parties.
32.That school holiday arrangements after relocation shall be as follows:
(a)That the child shall spend time with the father for the first half of the school holidays in odd numbered years, and the second half of school holidays in even numbered years.
(b)That the child shall live with the mother for the first half of the school holidays in even numbered years, and the second half of these school holidays in odd numbered years.
(c)That the child shall return to the mother no later than the Sunday before school is due to resume.
33.That except as otherwise provided by these orders, unless otherwise agreed:
(a)Should the child travel to spend time with the father during the school holidays, no later than one month prior to the child’s travel date the father shall purchase the relevant ticket for the child to travel to him and promptly provide evidence of same to the mother, after which the mother shall purchase the relevant ticket for the child to return to Perth and promptly provide evidence of same to the father.
(b)That should the father not comply in full with order 33(a), the mother shall not be required to transport the child to Darwin.
(c)That the parties shall transport the child to the airport, and should the child miss any return flight referred to in this order for any reason whatsoever, the party who has the child in their care shall ensure the child catch the next available flight, and meet any necessary costs of same.
34.That notwithstanding any other order until the child attains the age of 5 and no longer needs to be accompanied to and from Perth (noting that is likely to be for a period of about 6 months or so after the relocation) unless otherwise agreed:
(a)The father will accompany the child to Darwin, for the purpose of the child spending time with the father, and the mother will accompany the child on the return flight.
(b)That the mother will pay the costs of the father’s accompanying flight, and her own accompanying flight.
35.That should the father visit the location where the child is living, upon the father giving the mother at least 2 weeks’ notice the child shall spend up to 7 days with the father at that location, with the father to take the child to school and to his regular extracurricular activities.
36.That should the father agree to relocate to Perth, the mother shall pay the father’s relocation expenses to the maximum amount of $10,000 to the father on the following conditions, noting that those funds would be lent to the mother by her parents:
(a)That the father shall notify the mother of his intention to relocate within 12 months of this order being made; and
(b)That the father shall relocate to Perth within 12 months of the mother relocating to Perth; and
(c)That the $10,000 shall be applied as follows:
(i)Firstly, to pay the removal costs of the father and his wife, by way of direct payment to a removalist, and also for the reimbursement of plane flights from Darwin to Perth, and also for fuel and accommodation plus $500 incidental expenses should the father drive from Darwin to Perth; and
(ii)Secondly, to pay bond and rental for the father and his wife in Perth; and
(iii)The balance if any to the amount of $10,000 total to be paid to the father upon his permanent relocation to Perth.
37.That should the father agree to relocate to Perth, the parties shall promptly engage in primary dispute resolution.
38.That the parties shall as soon as practicable engage in counselling or mediation to improve their communications, including at exchange of the child.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Fyldes & Dysart has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Ex TemporeJUDGE YOUNG:
This is a parenting application about X, who is three years old. There are current interim orders that provide for X to live with his mother and spend time with his father:
(a)in the first week from 7.30 am to 5.30 pm on Thursday; and
(b)in the second week from Thursday 7.30 am to 5.30 pm on Monday.
In simple terms, that is four nights a fortnight plus a day in the intervening week. The interim orders also provide for other usual matters, such as holidays and communication.
The mother seeks orders permitting her to relocate the child from Darwin to Perth from December 2022; that is in about 15 months’ time. The child will be four and a half or thereabouts at this time. The mother’s affidavit does not say when it is intended X will start school, however, it would be either in 2023 or perhaps 2024. The mother proposes that after relocation the child would spend school holidays with the father and the cost of travel would be shared. The mother proposes that she will meet the father’s travel costs to accompany the child, presumably from Perth to Darwin, until the child reaches five years old and can travel unaccompanied, which will be in June 2023, six months after the proposed relocation.
The mother does not have any proposal should the father decide to relocate to Perth. The father has not indicated to the Court his intention in this regard, however, on the last day of the trial, the father has sought orders for the continuation of the present arrangements should he relocate to Perth. The mother does not appear to oppose that. I infer from that that the father is leaving open the option of him relocating to Perth should there be orders permitting the mother to relocate X’s residence. The father did not, however, give evidence to this effect.
The father seeks order that the child remain living in Darwin and that there be an equal time arrangement.
Background
By way of background, the parties met in about mid-2017 and began living together soon afterwards. It appears that the mother immediately became pregnant because X was born in 2018. The parties gave conflicting evidence about whether the pregnancy was planned or not. The mother suggests that the father deliberately deceived her about contraception leading to her pregnancy. The father denied this and said the pregnancy was planned by both parties. I do not believe I can resolve this conflict, but I consider the father’s account is more plausible. In any event, the mother said that once she realised she was pregnant she accepted that and the parties moved forward with their relationship.
The parties separated in about September 2019. That was soon after the father was seriously injured in a motorcycle accident, apparently suffered in the course of his interest of motorcycle racing.
The mother’s trial affidavit is critical of the father’s conduct during the relationship, pointing in particular to his lack of support for her in caring for the child and alleging that he was overbearing and disrespectful towards her. She refers to an episode where she threw the father’s bag away from the door, or down the stairs, and accidentally broke his vape pipe. He retaliated by breaking her sunglasses.
Another incident that may have played a part in the parties’ break-up was the mother’s discovery that the father had stayed overnight at a former girlfriend’s house, after lying to her that he had been with another friend. The father alleged that this latter issue was an example of the mother stalking him. His affidavit, at least, said that she had placed a locating device on his phone. On enquiry, it appeared that perhaps the drafter of the affidavit did not quite understand modern phones. It was clear that what was asserted was that, simply, a location service was turned on which allowed the parties, apparently, to share their location on each other’s phone. I assume that is what had happened. The mother said that the parties had agreed to turn on their location services on each other’s phone and that is how it happened. There is a text message from the mother to her parents where she refers to that incident and says that that is what had happened. The mother said the father had forgotten that both phones had the location services switched on. I generally accept what the mother says about that. I am satisfied that it is not an instance of stalking and in any event, that occurred during the relationship.
The father alleged that the mother was aggressive during the relationship, that she was irrational and that she abused alcohol. There was evidence from the maternal grandmother that, on one occasion, the father had shouted at the mother while both sets of parents were present. This, apparently, resulted from a dispute between the mother and the father when she asked him to care for the baby or bathe the baby while she was cooking dinner. It was put to the maternal grandmother that she had made that up and that the father was invariably a quietly-spoken man. I accept what the maternal grandmother says about that incident.
There were other allegations about various things that happened during the relationship, but I do not feel that I can make findings about those other matters. Clearly, it was a short relationship with a mismatch of personality and expectations between the parties. Subsequent events have led to a high level of hostility and conflict between the parties. I do not doubt for one moment that what happened during the relationship has been filtered through that lens. In any event, what happened during the relationship is of marginal to no relevance, in my view. What I consider to be relevant is the conduct of the parties in relation to this child, particularly since separation, as far as it reflects on the matters that I must consider in section 60CC, subsections (2) and (3) of the Family Law Act 1975 (Cth) (the Act).
After separation, the parties have made further allegations about each other’s conduct. The mother alleged that the father, on one occasion, had removed the child from her care without her agreement. She said that actually happened on a number of occasions. I note, however, that no orders were made prior to July 2020 when proceedings were commenced. The first orders were made after proceedings were commenced. Therefore, the conduct of each party towards the other regarding X prior to the date of the first orders was not the subject of Court orders and, in my view, this conduct is of limited relevance and assistance.
I should interpolate here that both parties presently live in the community of Town B, which is a small community on the Region C on the western side of Darwin Harbour. It is connected by road to Darwin with the journey taking approximately two hours. It is also connected to Darwin Harbour by ferry of a journey of approximately 15 minutes across the Harbour.
The father said generally of the kinds of incidents referred to in paragraph 11 that it was difficult because, for example, if he was on the same ferry as X and the mother going to or from Town B, then X would come up to him to talk to him. That is hardly surprising. These are points on which I do not feel I can make particular findings. I do note that once proceedings commenced and the parties were legally represented these kinds of matters were the subject of correspondence between solicitors. Many of those issues were, at least in part, resolved.
The mother also complained that the father was hostile at changeover, which generally occurred at the Town B Store, as I understand it. The interactions between the parties at changeover was also the subject of correspondence between the solicitors. The mother asked that the father at least say hello to her and acknowledge her presence. In the father’s solicitor’s letter this was agreed. In cross-examination, he said he did not always subsequently say hello or acknowledge the presence of the mother in a respectful way. He said he chose not to speak to the mother sometimes because of a fear that speaking would lead to an argument in front of the child. To my mind, that indicates a level of hostility and anger on the part of the father, which was likely to be upsetting for the mother. The father conceded as much.
There was evidence of a further incident when the child would not transition to the mother. The mother claimed that the father did not facilitate changeover or make the task any easier. She said that during such a difficult changeover the father began, without her permission, to film her on his phone. I asked the father why he did that and he said his solicitor advised him to do so. Whether that is true or not, I am satisfied that the father had little or no insight into the provocative and stressful effect of his conduct on the mother on that occasion.
The mother also alleged that the father had stalked her, had let down her car tyres or punctured them, had asked whether she had a boyfriend and whether she was pregnant. As for the stalking, there was an incident when the parties crossed paths at a hotel in Darwin. In cross-examination, the mother appeared to accept that interaction may have been coincidental. Her allegation about the car tyres was, I am satisfied, speculative and probably reflective of the mother’s suspicion and anxiety about the father. I am unsure whether the father kept an eye on her driveway at her home as the mother alleged. However, the father did admit that he ought not to have asked the mother if she was pregnant and he apologised.
Another incident resulting in an allegation was that the parties met sometime after separation in September 2019 for dinner at the father’s home. Both agreed a physical altercation followed. The father says the mother attempted to steal some items from his home. The mother says she attempted to retrieve items the father had improperly taken at the time of separation. Both reported the matter to the police but the police did not take the matter any further. In the circumstances, I am hardly likely to be able to make any positive finding.
The father has alleged the mother is irrational, aggressive and has a problem with alcohol. The basis for that last allegation is that the father alleged that he smelt alcohol on the mother’s breath during the day on one occasion. I am not satisfied there is any foundation to any of those allegations.
The mother’s anxiety
The mother claims that the continuing tension and hostility in the relationship between her and the father and the fact that they both live in a small community makes her life stressful and anxious. Senior counsel for the father was dismissive of the mother’s claim in submissions. However, there is independent evidence to support the mother’s claims. Mr D, a psychologist, said he had provided the mother with counselling on five occasions. He confirmed that he had read the correspondence indicating that she had attended counselling at E House, a domestic violence counselling service, on another 12 occasions.
Mr D’s report was deficient in significant ways, if it was to be treated as an expert report. It lacked a clear history and explanation for his conclusions. It was, regrettably, a letter that had some of the characteristics of a mere letter of support. Nevertheless, he said that the mother had no psychological disorder but she experienced:
Anxiety, stress, a sense of isolation and low self-esteem/lack of confidence.
Mr D was not cross-examined and I accept, in general terms, that the mother is experiencing stress and anxiety.
Another source of independent evidence was Ms F, a counsellor who offers “play therapy” to children. Senior counsel for the father challenged the expertise of this witness and I consider there is a proper basis for that challenge. Ultimately, I did not have to resolve the issue because the mother simply relied on factual observations by Ms F. Ms F said that in June and July 2020, she saw the parties together, apparently while they were attending for X to engage in play therapy. She said the mother appeared fearful of the father and was visibly nervous and anxious.
I accept that the mother is anxious about her interactions with the father. I accept that the father displays limited insight into the mother’s response to him. I am not satisfied that he is able to disguise what I am satisfied is a feeling of anger and hostility towards the mother.
The mother’s credibility
Generally, I found the mother to be a credible witness. I consider that some of her interpretations of the father’s conduct are probably misplaced due to her suspicion and anxiety about him. Senior counsel for the father made a spirited attack on the mother’s credibility. He said that she had consistently maligned the father. Some examples were that the mother said in her affidavit that the father had said:
I baby anchored you.
This was said four years ago. The father, in cross-examination, accepted that that had been said but said that the mother’s interpretation was wrong. In those circumstances where it is not challenged that that was said, it strikes me as an unusual statement. I do not believe I can draw any inference against either party about the intention of the father in saying that or the correct interpretation of that statement.
I have mentioned the mother’s allegations about car tampering and stalking. I have said I am not satisfied that those allegations are correct. I am satisfied that the mother had interpreted, generally, conduct that may be innocent enough through eyes affected by suspicion and anxiety. I do not draw the inference that evidence is deliberately intended to malign the father. The same remark may be made about the telephone and the engagement of the location services. I accept the mother’s explanation about that.
Another example given by the father of the mother maligning him is in relation to child support. It was submitted by senior counsel for the father that the mother gave false evidence about the father that he owed child support of approximately $7,900 to his former partner in Country G. I interpolate that the father is a Country G citizen who has been living in Australia for some considerable time and living at Town B since 2012. The mother annexed a photograph to her affidavit which apparently was provided by the father’s former partner in Country G. That photograph, which was from an equivalent child support agency in City H, was dated June 2021 and the account seemed to show that the father owed that amount alleged above. I should add that there is some evidence that Country G has a treaty agreement with Australia that provides for the collection of child support in one jurisdiction in accordance with orders made in the other jurisdiction. Such is the case here.
In re-examination, the father was shown a recent printout dated August 2021 from the Australian Child Support Agency which showed there was no debt in relation to the child living in City H, J. There was no objection to that document being tendered in re-examination. The tendering of evidence in re-examination was irregular. In my view, it was available and should have been tendered in examination-in-chief. The effect of that, in the absence of any application by counsel for the mother to recall the father for re-examination, was that there was no cross-examination about the circumstances. The mere fact that there is a printout from the Child Support Agency made some two months later really says nothing. One possible explanation, and I make no finding about it because I cannot, is that between June 2021 and August 2021 the debt was paid. However it is approached, the matter does not support the submission that the mother gave false evidence. All in all, I consider the mother attempted to be a truthful witness.
The father’s credibility
The father’s credibility was also attacked. The father claimed in his trial affidavit that during the time the child was on holidays in Perth in January 2021 the mother had permitted only one video or FaceTime call between the child and his father. In cross-examination, the father said there were actually three occasions when that had happened but on each occasion they were cut short by the mother and lasted no more than three minutes. Asked why the father had not made that latter claim – that is, that the calls were cut short by the mother – in his affidavit, he said his solicitor advised him not to make the claim or had edited the claim out. I do not find that a satisfactory explanation.
There was an attack on the mother in cross-examination, as I have mentioned about her being aggressive, irrational, and a person who abused alcohol. That attack must have been made on instructions. That attack foundered in a lack of evidence. I think that the instruction to counsel to mount that sort of attack on the mother without a proper basis in evidence reflects on the father’s reliability and credibility. All in all, I have serious reservations about the father’s credibility and generally I prefer the evidence of the mother if there is an issue as to credibility.
The Family Report
The Family Report expressed concern about the high level of conflict between the parties. The Family Consultant said the mother displayed symptomology of anxiety. While the Family Consultant said that the child had a solid relationship with the mother and the father and the father’s wife, Ms K, the level of conflict, according to the Family Consultant, posed serious risks to the child. In the Report the Family Consultant outlined the long-term dangers posed to the psychological, social, and emotional development of a child by being exposed to parental conflict. None of that can be in doubt.
In oral evidence, the Family Consultant said that at this stage of the child’s life he required stability, and I will also quote from paragraph 190 of the Report:
The writer is concerned about the parents’ capacity to be emotionally available to X given the high levels of animosity directed to each other. X is likely to witness frequent parental discord during changeovers whereby the parents appear unable to conceal their feelings toward the other. Children who are placed in the midst of parental conflict are more likely to display anger, stress, depression and anxiety.
She went on to recommend that the parents attend some parenting classes, such as “Circle of Security” to improve their knowledge of the child’s developmental needs and help them develop a manner of parenting that provides structure, warmth, and emotional support to X. I endorse what she says about the parenting courses.
The Family Consultant said that the child should maintain his primary relationship and, given his age, he should see the other parent at frequent shorter intervals. In oral evidence, the Family Consultant said that, given the child’s young age, the high level of conflict between the parents and the developmental need of the child to have a primary relationship, she did not support the father’s proposal that there be an equal time shared care arrangement.
The Family Consultant recommended that the mother not relocate the child away from Darwin. In oral evidence, the Family Consultant conceded that she did not exhaustively consider the possibility of the father relocating to Perth. She said the father relocating to Perth and allowing the child to see him frequently in the way that she considered most desirable would equally satisfy the child’s developmental needs. I accept the Family Consultant’s opinions, including her opinion that the father’s relocation to Perth would be an equally desirable outcome for X as the mother remaining here.
Relocation
The Full Court and the High Court, particularly in the decisions of U v U [2002] HCA 36; (2002) 211 CLR 238 (U v U) and AMS v AIF [1999] HCA 26; 199 CLR 160 have emphasised that so-called “relocation cases” are not to be considered other than as a whole; that is, by considering the proposals of each of the parties. It is not appropriate to break down consideration of the matter into stages. I am conscious of that requirement. Nevertheless, it is necessary in this case, reflecting the remarks, particularly of Gaudron and Hayne JJ in U v U, to give careful forensic consideration to the question of relocation. In doing so, careful forensic consideration must be given to, amongst other things, the reasons for relocation given by the mother, the reasons against relocation given by the father, and the reasonableness and practicability of those matters.
The mother says that she wants to relocate for the following reasons:
(a)first, she points to her level of anxiety flowing from conflict between the parties;
(b)secondly, she says she would be financially better off in Perth; and
(c)finally, she said she would have family support in Perth.
I will deal with each of those matters separately.
Anxiety and conflict
I accept that there is conflict between the parties at a high level and this is productive of anxiety in the mother. I accept that in the long term this will affect X adversely if it continues. The Family Consultant could not have made her views more clear about that. It would be surprising if it was asserted that a continuing level of conflict between the parties of the kind that has been going on would not be significantly deleterious to X in the longer term.
The father accepted as much, in my view. He said that, at present, he attempts to shield X from the conflict. He said that in the not too distant future he thought that X would become aware of it. I accept that this conflict is exacerbated because the parties living in a small community at Town B which is connected by a single ferry across the Darwin Harbour. As a result, it is unavoidable that the parties will frequently meet, not only at changeover, but at other times. I accept that that is difficult for the mother.
The mother’s financial position
The mother is employed with a professional qualification by the Employer L. She earns a base salary at the moment of about $82,000 a year. In addition, she receives rent for a granny flat at her home of $13,000 a year. She also receives a Family Tax Benefit of $5,824 a year. Her gross annual income is $101,400, which equates to $1,950 gross a week.
She filed a financial statement for the purpose of the trial and she was not challenged on that. She pays income tax of $310 a week. She has a mortgage commitment of $592 a week. She pays rates of $25 a week and house insurance of $37 a week. She has private health insurance which costs $49 a week. She has two cars necessitated by the fact that she has a car on each side of the Darwin Harbour, commuting by ferry. There is nothing unusual or unreasonable about that, in my view. One of those cars is leased which costs her $303 a week. She also refers to Mastercard repayments of $25 a week. She says that she has other personal expenditure of $635 a week. I do not propose to go through each of those items, but they include, after a rebate, childcare expenses of $130 a week. There is nothing exceptional about those items. The mother was not challenged about that financial statement. The total of the expenditure is $1992 a week. In other words, a deficit of $42 a week.
I accept that the mother is financially struggling, particularly with the commitment to a mortgage and childcare. She does not receive, at the moment, any financial support by way of child support from the father. For the 2019/2020 year, she received a child support assessment of approximately $250. For the 2020/2021 year, she received a child support assessment of $274, approximately. For the current year, the father’s child support is assessed as zero dollars. The father is in receipt of Centrelink benefits because he is unemployed.
In evidence, I asked the father about his capacity to earn an income. He told me that he works primarily doing work with motor vehicles. He told me that last financial year he had a number of jobs towards the end of the financial year that earned him about $7,500. For this financial year – in other words, the past two months – he said that he had eight jobs and earned a gross amount of $9,700. He said of that latter amount $9,000 was profit and he had spent four days working to earn that profit.
I accept that the father was probably incapacitated for work for a considerable period after his motorcycle accident in mid-2019, however, I do not know how long he was incapacitated. There is no evidence about that. I also accept that he underwent some significant surgery in the middle of last year related to his condition of Crohn’s disease. I accept he was unable to work for a considerable period after that, however, there is no medical evidence about how long he was unable to work. Nevertheless, at the moment, I am satisfied that the father is capable of employment and of earning a significant income and he has been for, probably, some months. Nevertheless, no financial assistance has been provided to the mother.
The mother’s family support in Perth
The other ground that the mother points to is her family support in Perth. Her mother and father live in Perth, her siblings, and X’s cousins. The mother says in her trial affidavit that her parents are in the position to offer her accommodation in a house next to theirs which they own. The mother said she would be able to live in that property without paying rent or, perhaps, on a reduced rent basis. She says that that would provide financial security and provide closeness to her family. I accept that her family, particularly her parents, are very supportive of her and she is very close to them. I also accept that she receives emotional and psychological reinforcement from their presence.
The father’s opposition to relocation
I have referred to the case of U v U, particularly the judgments of Gaudron J, who was in the minority in that case, and Hayne J, who was in the majority. Those judgments emphasise the necessity for a forensic examination of the reasons why the other parent should not move, and I will read a passage from the decision of Hayne J, at [175]:
When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. That may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in Country M, so too it might have been expected that the father would be asked what he would do, if the mother was to have the child reside with her in Country M. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangement will best serve those interests.
The father gave a number of reasons why he was unwilling to move to Perth, including:
(a)First, he said he is well-established in the Town B community and has many friends there;
(b)Secondly, he said he suffers from Crohn’s disease and his treating doctors are here in Darwin who he trusts and he does not want to see other doctors;
(c)Thirdly, he said his wife, Ms K, is seeking IVF treatment and that treatment is being provided here in Darwin. He said she should be permitted to seek medical treatment from the doctors in whom she trusts.
(d)Finally, he said he was establishing a business.
I will deal with these matters in reverse order.
The father gave evidence that he is establishing a business. The business appears to be in motor vehicles. The father said that he had been trying to establish that business over the past four months. He had placed advertisements on social media and was receiving some work as a result of that. He said that he was proposing to apply for a certification from the Northern Territory Government so that he could tender for government work. He said that he has not yet applied for that. He also said that he has an oral agreement for work with a Darwin business that does a lot of that sort of work and would send work his way.
The father told me that he had made no inquiry about whether that sort of work was available in Perth. In my view, the kind of work that he describes is work that would be done all around Australia, and I would be very surprised if there was not that kind of work available in Perth should he wish to pursue it. Further, I am satisfied that the father is a person of wide experience, particularly in relation to motor vehicles. He clearly has a passion for motorcycles and at one point was engaged in racing motorcycles. He has worked in retail. I am satisfied there is much in the father’s background which would suggest that he would be very likely to find employment in Perth should he seek such employment. Ms K is a trained hospitality worker. She has worked in Australia as a hospitality worker and has worked in remote areas as a hospitality worker. Subject to the outcome of Mr Dysart and Ms K’s plans to have a baby, there seems to be no reason at all why they could not both find employment in Perth.
In relation to the medical matters concerning the father’s Crohn’s disease and Ms K’s desire for IVF treatment, there was nothing to indicate that appropriate medical treatment and care was not available in Perth.
In relation to Mr Dysart’s assertion that he is well-established in the community at Town B and, as he put it in cross-examination, that “his friends are like family”, there was no evidence from those friends or of their engagement with X or anything of the kind. In fact, there was no other evidence that the friends in Town B were like family at all and I am not satisfied they are like family.
As I have already observed, Mr Dysart is as Country G citizen. His parents live in Country G. He gave no evidence of any relatives in Australia, certainly none in the Northern Territory, Darwin or Town B. Similarly, Ms K, whom he met online, is a Country N citizen and, as I understand it, her family remain in Country N. There was no evidence that she has any family in Australia.
Beyond Mr Dysart’s undoubted strong preference to remain living where he is, there is no reason I am aware of that would preclude him and Ms K relocating to Perth. I am satisfied that it is reasonable and practicable for the father to relocate to Perth.
In addition, I should say that the mother is offering to financially support the father’s relocation in December 2022 by offering some $10,000 or more if the removal expenses are more. In my view, that is a generous offer and, had it not been made, it is probably not an order I would have felt compelled to make.
The legislative pathway
Turning to the legislative pathway which a Court is required to follow when exercising a parenting jurisdiction under the Act, the primary considerations in assessing the best interests of a child are set out at section 60CC of the Act. Subsection 60CC(2)(a) states that the primary considerations are as follows:
(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.
Fortunately, in this case, the latter factor is not relevant, in my view.
The additional considerations are set out in subsection 60CC(3) are as follows:
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child is not old enough to express a view.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
The child has an excellent relationship with both parents. I do not doubt that X is loved by his mother and father and loves his mother and father. There was evidence from the mother of the pleasure that X takes in his father’s company. The mother freely conceded that. That was also a factor in me being reassured that the mother is likely to do everything that is reasonable to support the child’s relationship with his father. There is no real evidence about X’s relations with other persons, though it appears that the paternal grandparents have visited on at least one occasion. There is no real evidence of the connection there, however. It appears that X is getting to know Ms K’s family in Country N by video, but beyond that limited evidence of some connection, there was no particular evidence. I do not doubt that X has a close relationship with the maternal grandparents who have frequently visited the mother and X in Darwin. X and the mother have also visited the maternal grandparents in Perth, along with other extended family on the maternal side.
(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
(ii) to spend time with the child; and
(iii) to communicate with the child
Both parents, as far as I can tell from the evidence, have sought to participate in decision-making, spend time with the child, and are communicating with the child. Both parents are invested in this child’s welfare to the best of their ability.
(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
The mother is solely responsible for maintaining the child. The father has not contributed to the maintenance of the child. This is certainly the case in recent times, despite having the capacity to do so, as I have found. That reflects very poorly on the father, in my view.
(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
(ii) any other child, or other person (including any grandparent or other relative of the child), with he or she has been living
There is no other relevant child at the moment. If the mother relocates to Perth with X and the father does not relocate to Perth at the end of next year, as is proposed, then that is likely to have a deleterious effect on X. The Family Consultant makes it clear that she believes, and I accept this opinion, that it is in X’s best interests that he spend regular and frequent time with each parent. Obviously his mother is the primary carer at the moment, however, in the context of this case, it is desirable that X spend regular and frequent time with both parents. That can only take place if both parents are living in the same locality.
(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
This is the crux of the matter. If both parents are in the same locality, there will not be a problem. If the mother relocates and the father does not follow, then I am satisfied that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. As is commonly the case, this Court is reluctant to entertain relocation applications with very young children. I note the mother is not proposing to relocate for another 15 months, so the child will be considerably older. Within a relatively short time after moving the child will presumably commence school and be able to spend holiday time with the father, should the father not relocate himself. While it is not the ideal situation, I am satisfied that even if the father chose not to relocate the child will be able to maintain a meaningful relationship with both parents and, particularly, the father by visiting during school holidays on a regular basis.
(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.
I am satisfied that the mother is capable of providing for the emotional and intellectual needs of this child and has done so successfully. In relation to the father, I have reservations about his insight into the effect of conflict on this child. I give the example of a matter that was previously mentioned, namely his agreement in solicitor’s correspondence to attempt to say hello to the mother and acknowledge her presence while X was there in an effort to create the impression of normality between the parents. The father was unable to carry through on that on each occasion. It may be, and I do not know, that he usually did carry through, however, the fact that sometimes he did not suggests to me that the father’s sense of anger or hostility overtakes his capacity to focus on the child, X’s, needs. His failure to pay child support to the mother, when I am satisfied that he presently has the capacity to do so, also reflects poorly on his capacity as a parent. It is, in my view, indicative of a focus on his own needs rather than his son’s.
(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
I do not propose to consider that matter other than by the remarks I have already made.
(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;
That is not relevant.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have made some remarks about that, and I do not propose to repeat them.
(j) any family violence involving the child or a member of the child’s family.
Apart from the incident shortly after separation at the father’s home involving him and the mother arguing in a quite immature way about the ownership of some insignificant chattels, there has been no family violence as distinct from levels of conflict and hostility falling short of family violence.
(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;
I am not aware of any family violence order.
(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.
I take that into account in making these orders.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance I consider relevant.
Conclusion
In this matter the best interests of the child are the paramount consideration as set out in section 60CB(1) of the Act. Paramount consideration means, of course, the most important consideration, but not the only consideration.
As the case law makes entirely clear, in Australia there is something called a right of movement of an adult, though perhaps in legal terms that is not strictly an accurate description. In this case, the mother wishes to move from Darwin to Perth at the end of next year with a child who will be four and a half. She is not obliged to provide compelling reasons for her move, however, I do accept the reasons she puts forward as genuine, authentic, and reasonable.
The father says he does not want to move. He does not, however, say he will not move and his affidavit is silent about that, as is his evidence. I therefore do not know whether he will move or not. I am satisfied that it would be reasonable and practicable for the father to move in order to maintain a relationship with his son that involved them spending frequent time together. In this case, the father’s position that he does not want to move effectively amounts to an attempt to exercise a veto. The decisions in the area, including U v U that I have referred to, make it clear that that cannot happen.
I take into account the fact that the mother has genuine reasons for moving. I have accepted, in broad terms, each of the arguments that she advances. In broad terms, I have rejected each of the arguments the father advanced for not moving. I am satisfied that the father does not wish to move but that is not to be given significant weight in all of the circumstances in deciding whether the mother should move. There will be orders as the mother seeks.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 20 October 2021
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