GTS & DMS
[2007] FMCAfam 363
•8 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GTS & DMS | [2007] FMCAfam 363 |
| FAMILY LAW – Children – parenting order – relocation – consideration of factors. FAMILY LAW – Practice and Procedure – evidence by telephone link. |
| Domestic Violence Protection Act, 1989 (Qld) Family Law Act 1975 (Cth), ss.60CC(2), (3), and (4), 61DA, 65DAA, 65DAE and 65DC Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| B & B [2007] FMCAfam 82 Goode & Goode [2006] FamCA 1346 M & K [2007] FMCAfam 25 PS & OS [2007] FMCAfam 285 |
| Altobelli FM “The search for wisdom: relocation in the era of shared parental responsibility”, paper to be delivered at 10th Australian Family Lawyers Conference, 8-13 June 2007 |
| Applicant: | GTS |
| Respondent: | DMS |
| File Number: | BRC 2366 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 8 May 2007 |
| Date of Last Submission: | 8 May 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 8 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Foley |
| Solicitors for the Applicant: | Rowell Gill & Brown |
| Counsel for the Respondent: | Ms. M. Howe |
| Solicitors for the Respondent: | Journey Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr T.F. Jordan |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Queensland |
ORDERS
That all previous parenting orders in this matter be discharged.
That the Father and the Mother have equal shared parental responsibility for the Child.
That the Child live with the Father.
That for the purposes of enabling the Child to live with the Father, the Father shall pre-pay an airfare from Brisbane to Adelaide for the Child, that airfare to provide for the Child to travel from Brisbane to Adelaide no earlier than 9.00 am on 11 June 2007 and no later than 4.00 pm on 15 June 2007.
That the Child spend time with the Mother as follows:
(a)from noon on the first Saturday of each of the April, June/July and September/October school holidays to noon on the second Tuesday of those holidays;
(b)from:
(i)noon on 23 December 2007 to noon on 22 January 2008;
(ii)noon on 2 January 2009 to noon on 27 January 2009;
(iii)noon on 23 December 2009 to noon on 22 January 2010; and
(iv)noon on 2 January 2011 to noon on 27 January 2011; and
(c)at such other times as the Mother and Father agree.
That for the purposes of Order 4:
(a)the Father shall pre-pay airfares for the Child to travel from Adelaide to Brisbane to spend time with the Mother, and shall do so at least fourteen (14) days prior to the travel and then provide forthwith a copy of the itinerary to the Mother; and
(b)the Mother shall pre-pay airfares for the Child to travel from Brisbane to Adelaide to return to live with the Father, and shall do so at least fourteen (14) days prior to the travel and then provide forthwith a copy of the itinerary to the Father.
That the Child be allowed telephone contact with:
(a)Mother at all reasonable times when living with the Father; and
(b)Father at all reasonable times when spending time with the Mother;
(c)either Mother or Father respectively, at the initiative of the Child, at any time on any day between the hours of 8.00 am Central Standard Time (“CST”) (8.30 am Eastern Standard Time (“EST”)) and 11.00 pm CST (11.30 pm EST).
The parties shall keep each other informed about their residential address and telephone numbers within 48 hours of any change.
This Order shall operate as an authority to any schools to provide to the parties (at their cost) copies of all school newsletters, reports, photographs, certificates and any notes from the school involving the Child as they may reasonably request.
The parties shall be entitled to participate in all aspects of the Child’s schooling.
The parties shall notify the other party of the name, address and telephone number of any Medical Practitioner or other professional that they take the child to, and these Orders authorise the Medical Practitioner or other professional to release information concerning the Child’s health or welfare to both the Mother and the Father.
The parties shall notify each other as soon as practicable should the Child suffer any serious illness or be hospitalised.
The parties shall keep each other informed generally as to the Child’s health.
That neither Father or Mother denigrate the other within the hearing of the Child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 2366 of 2007
| GTS |
Applicant
And
| DMS |
Respondent
REASONS FOR JUDGMENT
Application
In this case the Applicant Father, GTS (“Father”), seeks parenting orders concerning the Child of his relationship with the Respondent Mother, DMS (“Mother”).
STS, born August 1993, is the child of the marriage (“the Child”).
The real dispute between these parties is about with which of the Father or Mother the Child will live. That entails a dispute about re-location, for presently the Child lives with the Mother in Queensland, while the Father resides in South Australia, having relocated there from Queensland.
Evidence
Documents relied on – Father
The Father read the following affidavits:
a)affidavit of the Father, filed 13 April 2007 (“Father’s Affidavit”);
b)affidavit of LCD, filed 30 April 2007 (“Father’s Friend’s Affidavit”);
c)affidavit of JKT, filed 30 April 2007 (“Father’s Mother’s Affidavit”);
and relied upon the Application for Final Orders filed 14 March 2006.
Oral evidence – Father
Each of the Father, the Father’s Friend and the Father’s Mother was cross-examined but not re-examined on their affidavit. The Father’s Friend’s oral evidence was given by telephone link.
Documents relied on – Mother
The Mother read the following affidavits:
a)affidavit of Mother filed 9 May 2006 (“Mother’s First Affidavit”);
b)affidavit of Mother filed 13 June 2006 (“Mother’s Second Affidavit”);
c)affidavit of Mother filed on 3 May 2007 (“Mother’s Third Affidavit”),
and relied upon the Amended Response for an Application of Final Orders filed 13 June 2006 (“Amended Response”).
Oral evidence – Mother
The Mother was cross-examined, but not re-examined on her affidavit.
Independent Children’s Lawyer
The Independent Children’s Lawyer (“ICL”) read the following affidavits:
a)affidavit of Marie Leonie Adams filed 28 June 2006, annexing a Family Report prepared by her (“First Family Report”);
b)affidavit of TB filed 28 June 2006, annexing documents produced by the High School (“June 2006 School Documents”);
c)affidavit of Richard Church filed 20 April 2007, annexing a Family Report prepared by him (“Second Family Report”); and
d)affidavit of TB filed 24 April 2007, annexing documents produced by the High School (“April 2007 School Documents”).
Ms Adams was not required for cross-examination on the First Family Report.
Mr Church was cross-examined but not re-examined on the Second Family Report.
Mr McDonald, the guidance officer that the Child’s school was called and gave oral evidence (examination-in-chief and cross-examination) by telephone.
Background facts
Uncontroversial relevant background facts include the following:
a)Father and Mother commenced a relationship in approximately 1990;
b)the Child was born on 24 August 1993, and is now 13 years of age;
c)the parties separated in sometime in either 2000 or 2001;
d)the Child has lived with the Mother since separation, and spent some time with the Father;
e)consent orders were made by the Family Court on 15 December 2003 (“Consent Orders”) for the Child to live with the Mother and spend time with the Father each alternate weekend and half of each school holidays;
f)the Child spent time with the Father, in accordance with the Consent Orders, until late 2004 when the Father relocated to South Australia;
g)since relocating to South Australia in late 2004 the Child has spent time with the Father during some of the 2006 school holidays; and
h)on 28 June 2006, Senior Registrar Dittman of the Family Court made interim orders (“Interim Orders”) that the Child live with the Mother and spend time with the Father during the June/July, September and Christmas school holiday periods.
Other relevant facts – residence and care of the child
Living arrangements
Both Father and Mother have appropriate living arrangements for the Child.
The Father lives with the Father’s Friend, where he is live in carer. The live in arrangement is not intimate and seems stable and long term, with the definite possibility that the house owned by the Father’s Friend may eventually pass to the Father and/or Child. [Fathers’ Affidavit, para. 25; Father’s Friend, Transcript, p.36].
The Father’s Friend’s house has a room for the Child, billiard table, computer, heating and cooling, a dog and a large backyard (with vegetable patch) which backs onto Crown land with direct access to the Murray River. [Father’s Affidavit, paras. 22-23].
The house (which has neighbours either side) is in a rural hamlet of about two dozen houses, five kilometres from a rural town of 5000 people about an hour and a half from Adelaide. The town has a high school. [Father’s Affidavit, paras. 24 and 26; Father, Transcript, p. 25].
The Mother lives in a unit in an apartment block in suburban Brisbane, and the Child has his own bedroom in the apartment, two pet birds, a Playstation and an X-Box and 2 bikes. The Mother and Child have lived in the apartment for the last two and one half years.
The Father has family in South Australia, namely his mother, a brother and a sister as well as, four nieces and nephews (cousins of the Child) [Father’s Mother’s Affidavit, paras. 4-9]. They live an hour and a half to two hours away, but see the Father regularly, and have seen the Child when he has spent time with the Father. [Father’s Affidavit, para. 37; Father’s Mother’s Affidavit, para. 12; Father, Transcript, p. 12].
The Father’s Mother gave evidence in these proceedings.
The Mother says that she has assistance from her mother, her 26 year old daughter (the Child’s half-sister) and an old family friend to supervise the Child if required when she is unavailable, and that she and the Child see the half-sister and her two young children regularly. [Mother’s Third Affidavit, para. 13-14]. None of these persons gave evidence on behalf of the Mother.
Education
The Child is presently in year 9 at a Brisbane suburban state high school.
The Child’s education is presently characterised by:
a)An exceedingly high rate of absence from school, whether by reason of truancy, suspension or illness, including, for example:
i)suspension from 7 September, 2006 for 3 days for truancy;
ii)suspension from 14 September, 2006 for 3 days for smoking cigarettes on the school grounds;
iii)suspension from 18 October, 2006 for 20 school days for having drugs in his possession and conduct prejudicial to the good order and management of the school;
iv)suspension on 12 December, 2006 for 3 days for stealing [Father’s Affidavit, paras. 76-79, Attachments GTS 1-4]; and
v)total absences for the period 23 January 2006 to 8 June 2006 of 42.5 days (with 22 of those days listed as “UNEXPLAINED” under “Reason”) and a further 31 days on which the Child was late (with 26 of those days listed as “UNEXPLAINED” under “Reason”) [June 2006 School Documents, Annexure B].
The report of the Deputy Principal provided on 17 April 2007 is damning, as follows:
a)“Attendance record. Poor.”
b)“General scholastic progress. Poor. Does little if any work.”
c)“Frequently in trouble for bullying.”
d)“Hair long and sometimes unclean.”
e)“Truancy is becoming almost continuous. Completely ignores discipline, counselling.”
f)“Relationship with mother is clearly not good. Speaks rudely to her. She has claimed that he hits her.”
g)“Mother very frequent visitor to the school. Last conversation with her said that [Child] had been hitting her.”
h)“His conduct has led to very poor reputation at this school. He seems extremely unhappy.”
i)“2 times 20 days Short Term Intervention Program. Mother refused to permit him to attend either program, in spite of the school offering to pay for transport.” [April 2007 School Documents; and in relation to (i) see also McDonald, Transcript, p. 67].
The Child’s Semester Two 2006 Report was poor. He received 1 C (Manual Arts); 2 D’s; 4 E’s and 2 NR’s (no rating). Comments include “inconsistent worker”; “unsatisfactory approach”; “inattentive”; “poor worker”; “disappointing effort”; “works only under close supervision”; “minimal effort.” [Father’s Affidavit, Annexure GTS – 5].
A 2007 Mid-Semester Report (undated) indicated that interviews were essential in four of eight subjects, and that in four subjects his industry needed attention, and that in 2 subjects his behaviour needed attention. [Mother’s Third Affidavits, Annexure A]. That Report says nothing of the Child’s scholastic progress, but does indicates there may have been some recent improvement in industry and behaviour. [See also McDonald, Transcript, p. 69].
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 concerned interim parenting orders. Nevertheless, the judgment presently is “the only authoritative guidance on the effect of the changes” in the law relating to relocation wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) effective 1 July 2006. [Altobelli FM “The search for wisdom: relocation in the era of shared parental responsibility”, paper to be delivered at 10th Australian Family Lawyers Conference, 8-13 June 2007, p.10].
Therefore, and albeit that was said in the context of an interim parenting order, the Court adopts what was said by this Court in B & B [2007] FMCAfam 82 (“B & B”) where Wilson FM said:
The principles to be applied on the determination of an interim application such as the present were recently reconsidered by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. The best interests of the children remain the paramount consideration: Section 60CA of the Act; Goode & Goode [2006] FamCA 1346 at [69].
The framework in which those best interests are to be determined are the factors adumbrated in s.60CC of the Act. The objects and principles contained in s. 60B of the Act provide the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case Goode & Goode [2006] FamCA 1346 at [10].
In Goode & Goode [2006] FamCA 1346 the Full Court was particularly concerned with the effect the amendments introduced by the Family Law (Shared Parental Responsibility) Act 2006 had on the approach that a court should take on, relevantly, an interim application. At [72] their Honours concluded that the amending Act evinced a legislative intent in favour of the substantial involvement of both parent’s in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence, and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.
In following the “legislative pathway”, their Honours set out a procedure to be followed on an interim application, at [82] as follows:
“In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.” [B & B at paras. 2-5 per Wilson FM].
Issues
The essential issues in dispute and to be determined are as follows:
a)with whom the Child is to live, and where; and
b)with whom the Child is to spend time, and whether that time ought be equal, substantial and significant, or otherwise, the latter being dependent upon relocation issues.
Presumption of equal shared parental responsibility – section 61DA(1)
When the Court makes a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption “is directed to the decision making responsibility of the parents”: B & B at para. 16 per Wilson FM; ss.65DC and 65DAE, Family Law Act, 1975 (Cth) (“the FL Act”).
Neither party submitted that the presumption ought not apply, and there is seemingly no dispute that there ought be equal shared parental responsibility.
There is some evidence of abuse or violence in this case, (and discussed in more detail at para. 33 below) but it is not such as to warrant rebuttal of presumption of equal shared parental responsibility [s.61DA(2), FL Act], nor is there sufficient evidence warranting a finding that it is not appropriate for the presumption to apply [s.61DA(3), FL Act] or that it is not in the best interests of the Child for the presumption to apply [s.61DA(4), FL Act].
In the circumstances, the presumption applies, as there is no or no sufficient evidence justifying removal from either parent of their parental decision making responsibilities.
The application of the presumption invokes the time spent provisions of s.65DAA(1) of the FL Act.
Time Spent
Section 65DAA(1) of the FL Act provides that:
“Equal time
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
In order to determine whether equal time with each parent is in the best interests of the Child it is necessary to consider the primary and additional considerations in s.60CC(2)and(3) of the FL Act.
Primary Considerations – section 60CC(2)
Benefit to the child of having a meaningful relationship with both parents – section 60CC(2)(a)
There is no dispute that both parents want a meaningful relationship with the Child, and that each parent wants the other parent to have a meaningful relationship with the Child. The issue between them is how that is to be achieved in the best interests of the Child when the Father resides in South Australia and the Mother resides in Queensland, and the effect their respective residential status will have on their ability to spend equal or substantial and significant time with the Child.
The emphasis here must be on the benefit to the child, and not the dispute between the parents (which is ongoing), because “a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents”:PS & OS [2007] FMCAfam 285 at para. 23 per Lucev FM.
There is no dispute that the Child will benefit from having a meaningful relationship with both parents. The issue is how that is to be achieved to maximise benefit to the Child with Father and Mother living in different states.
The need to protect the Child – section 60CC(2)(b)
The evidence discloses:
a)that the Father has been violent toward the Mother on two or three occasions, resulting in the issuance of Protection Orders under the Domestic Violence Protection Act, 1989 (Qld) against the Father (in relation to the Mother only) in April 2000 and July 2003 (the latter expiring in July 2005); [Mother’s Second Affidavit, para. 18 and Annexure A];
b)no history of violence between the Father and the Child; [Father, Transcript, p.10]; and
c)recent violent and abusive episodes between the Mother and the Child; including:
i)the Mother intentionally stepping on the Child’s foot with a stiletto heel; [Second Family Report, paras. 71 and 74; Father’s Friend’s Affidavit, para. 16.];
ii)the Child being hit by the Mother (allegedly because he had “been throwing toys and tried to hit her”; [Second Family Report, para. 71];
iii)general pushing and shoving, angrily, between Mother and Child; [Second Family Report, para. 74];
iv)the Child throwing food at the Mother and wipeing it on her face; [Mother, Transcript, pp. 39-40]; and
v)the Child threatening to “knuckle” the Mother and punching her in the back and temple; [Mother’s Third Affidavit, para. 40; Transcript, p. 55];
d)that:
i)although the Mother asserts that she has not “been physical” [Mother’s Third Affidavit, para. 40] with the Child a consideration of the evidence overall indicates that it is more than likely that she has “been physical” with the Child [see, for example, McDonald, Transcript, p. 66];
ii)the conclusion in (i) is reinforced by the Mother’s evidence. When asked about controlling the Child she responded:
“I can control him, my oath I can”. [Mother, Transcript, p. 40]; and
“I can control him, don’t you worry”. [Mother, Transcript, p.40].
The words “my oath I can” and “don’t you worry” were delivered in a manner which was menacing; and
e)the Child has been the subject of physical abuse by one of the Mother’s partners (in 2004); [Transcript, p. 40-41].
It is axiomatic that violence by or toward a Child is to be abhorred, and prevented if possible, and that abuse by or toward a Child ought not be tolerated, and likewise, prevented if possible. In this case the Child has been violent and abusive toward the Mother (and she likewise towards him). One of the Mother’s former post-separation partners has been violent to the Child. On the evidence it seems that as the Child, through adolescence, grows increasingly independent, this conflict between Mother and Child living in the confines of a Brisbane suburban unit, is likely to increase. There is no evidence of actual, or likely, violence towards the Child from the Father, the Father’s Friend (with whom he resides, and with whom the Child would reside if living with the Father) or the Father’s relatives living in South Australia.
Although the evidence of violence or abuse is recent and not prolific, in terms of the need to protect the Child from violence or abuse in the future, it seems to the Court that that protection would best be afforded by the Father.
There is some evidence about the quality, or lack of quality of food [Father’s Friend’s Affidavit, para. 17; Second Family Report, para. 77] but the evidence is insufficient to reach any conclusions as to possible neglect.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
The Child has expressed clear views. He wishes to live with his Father [Second Family Report, para. 91]. The rationale for those views reflect a level of discernment appropriate to a 13 year old boy in the Child’s circumstances. The rationale for the Child’s view includes:
a)the nature of the physical environment in and around his Father’s residence providing scope for outdoor activities; [Second Family Report, para. 77];
b)the more responsible treatment he is afforded by his Father; [Second Family Report, para. 77];
c)recognition that he has more fun with his Father, but that this is attended by a greater degree of obligation to attend to matters such as household chores; [Second Family Report, para. 77];
d)a better quality of food at the Father’s residence; [Second Family Report, para. 77];
e)embarrassment at the Mother’s behaviour in front of friends; [Second Family Report, para. 74];
f)the restrictions imposed on him by his Mother; [Second Family Report, para. 74]; and
g)the sometimes violent and abusive behaviour of Mother to Child, and vice-versa, and the conflict between them; [Second Family Report, paras. 74 and 84].
The Child acknowledges that his views have become clearer since the First Family Report, and attributes this to his having had the opportunity, in the intervening period, to spend time with the Father, which he had not done for some considerable period of time prior to the First Family Report. [Second Family Report, para. 91].
That the Child’s views have become clearer, or changed even, is unsurprising given his age, the passage of time (almost 10 months) since the First Family Report was prepared and his inevitable development over that period, plus the opportunity to spend time with his Father.
The Child is now of an age and developmental stage where some weight ought to be attached to the views he has expressed. [Second Family Report, para. 91].
The Court will attach an appropriate degree of weight to the views of the Child in making a final determination.
The nature of the relationship of the Child with each of the parents – section 60CC(3)(b)(i)
The Child presently has a somewhat troubled relationship with the Mother. It involves a view that his mother is “controlling and over-protective.” [Second Family Report, para. 74]. It has involved violence and abuse between them. The Child is not happy living with his Mother in their current environment.
The relationship with the Mother has of course to be considered bearing in mind that she has been the primary carer for the Child throughout his life, and that the Child has lived with her since Father and Mother separated.
It is clear however that the relationship between Mother and Child is a difficult one. It is:
a)punctuated by violence;
b)resented by the Child whom she “infantilizes”; [Second Family Report, para. 83]; and
c)restricting the social and educational development of the Child. [Second Family Report, paras. 84 and 88].
In assessing the nature of the relationship of the Child with the Father consideration has to be given to the fact that the Father has not been the primary carer during the Child’s life, and therefore some caution must be exercised when assessing the nature of the Child’s relationship with the Father. [Second Family Report, para. 90; Father, Transcript, pp. 19-20].
There must also be caution exercised about the Child’s relationship with the Father in light of the fact that that relationship (as is not uncommon) has, in recent times, been a fun and holiday one.
However, even with those cautions the Child’s relationship with his Father seems a better and more appropriate relationship for the Child having regard to his:
a)adolescence;
b)increasing need for independence as adolescence merges into young adulthood;
c)possible need for a gender specific role model; and
d)the environment in which he will live with his Father; [See generally Second Family Report, paras. 77 and 90; Father, Transcript, pp.12-13].
These are matters which both Child and Father are cognisant of, and recognise as important in their relationship.
By contrast, the Child sees the Mother as embarrassing, oppressive and restrictive. Restricted the Child reacts, and arguably rebels, affecting important areas of his life including, critically, his social development and education. [Second Family Report, paras. 70, 74 and 80].
The Court agrees with the view expressed in the Second Family Report [at para. 90]: “It seems apparent that the current arrangements are simply not working for this child.”
The Court considers that the nature of the Child’s relationship with both parents is not inappropriate, but that the relationship of the Child with the Father is better and more appropriate than that of the Child and the Mother, particularly having regard to the Child’s present and ongoing developmental needs.
The nature of the relationship of the Child with other persons – section 60CC(3)(b)(ii)
The Child has had a limited relationship with other persons associated with the Father.
The Father lives with Father’s Friend. Father’s Friend has a disability and requires live in assistance. The Father is Father’s Friend live in carer. The Child will, if the Father obtains the orders he seeks, live with the Father and Father’s Friend. The Father’s Friend, in those circumstances, might well become the most significant other person in the Child’s life. That is the most significant person in the Child’s life apart from the Father and Mother.
The Father’s Friend has met the Child three times during time spent by the Child with the Father at the Father’s Friend’s home in June/July, September and the December 2006 holidays. Father’s Friend describes the Child as “very nice”, appearing comfortable in “our home”, offering to help around the house, and making her a cup of tea in bed on her birthday. [Father’s Friend’s Affidavit, paras. 11-12].
The Child appears to consider Father’s Friend to be “nice” and says “they get along well”. [Second Family Report, para. 77]. The Child nominates her as a person he trusts and respects. [Second Family Report, para. 76].
The nature of the Child’s relationship with other persons in the Father’s and Mother’s family is dealt with above and, violence apart, is probably a neutral present consideration, although the Court considers that the family relationships with the Father’s family in South Australia are likely to grow over time, and be more genuinely supportive than the existing relationship with the Mother’s family.
The willingness and ability of each of the Parents to facilitate and encourage a close and continuing relationship between the Child and other Parent – section 60CC(3)(c)
There is no dispute in this case that both the Father and Mother are willing and able to facilitate and encourage a close and continuing relationship between the Child and the other parent, so far as finances and the ultimate location of the Child permit. It is appropriate that they do so.
Likely effect of changes in Child’s circumstances, including separation from parents and others – section 60CC(3)(d)
The respective proposals of Father and Mother are in stark contrast. The Father’s proposal will see the Child at least:
a)relocated from Queensland to South Australia;
b)change his home and living environment from a suburban unit with the Mother to a small country hamlet with the Father and Father’s Friend; and
c)change schools.
These are significant changes for the Child.
If the Child remains with the Mother there will be no change. The Child has always lived with the Mother.
There appears to be little doubt that the Child is of an age, and physical and intellectual capacity, to cope with the significant changes. So much so that the Family Report writer “see[s] no benefit in delaying his move until the end of the school term” if the Court makes orders that the Child live with the Father. [Second Family Report, para. 93]. The Child himself clearly has no doubts he can cope with the changes, and evinces a very positive attitude towards the relocation, home and living environment and possible educational improvement. [Second Family Report, paras. 77-78]. Given the Child’s school record the latter indication is of itself welcome.
Relocation to South Australia would also involve a considerable change in the Child’s relationship with the Mother. The Child recognises that fact, and seemingly accepts it and is willing to visit his Mother during school holiday periods. [Second Family Report, para. 91]. Thus, the separation from the parent with whom he has lived throughout his life is seemingly not of such concern to the Child, to constitute a significant effect, or have an adverse effect. There are no other persons amongst the Mother’s relatives, or other persons, whom it would seem the Child will be significantly or adversely effected by being removed from, if the Court grants the Father orders for relocation.
If orders are granted as sought by the Father the Child will be living in proximity (albeit not immediate) to his paternal grandmother, the Father’s Mother, an aunt, and uncle and four cousins. The Child has already had some contact with the Father’s Mother, and his extended family in South Australia. [Father’s Affidavit, para. 37; Father’s Mother’s Affidavit, paras. 6-9; Father’s Mother, Transcript, pp. 30-31]. That contact has seemingly been beneficial to and/or enjoyed by the Child. [Father’s Mother’s Affidavit, paras. 11-13; Father’s Mother, Transcript, pp. 30-31; Father, Transcript, p. 12].
Other changes, discussed elsewhere in this judgment, would also seem to be changes having an effect, principally beneficial, if the Child relocates. These include:
a)the Child’s positive view of a change in school (including removal from what, even on the Mother’s case, appear to be adverse influences amongst other children at his present school);
b)the change from a restrictive suburban environment to a more physical and independent country environment; and
c)a permanent male role model, whilst retaining appropriate female role models (the Father’s Mother and the Father’s Friend), albeit not the Mother.
Overall, the likely effects of the changes in the Child’s circumstances if the Father’s proposal is ordered by the Court are seemingly positive for the Child.
Practical difficulty and expense of Child spending time and communicating with parents and whether that will substantially affect the Child’s right to maintain personal relations and direct contact with both parents on a regular basis – section 60CC(e)
This is a case where:
a)the parents do not live in reasonable proximity; and
b)both public and private transport is not readily available or financially viable for the purposes of spending equal time with each parent.
There is no evidence which indicates that the Father or Mother intend relocating in closer proximity to each other. So long as that remains the case there will be practical difficulty and expense involved if the Child is to spend time and communicate with the parent with whom the Child does not live.
The financial circumstances of the Father and Mother compound that practical difficulty by reason of the cost of travel between Queensland (Brisbane) and South Australia (Adelaide).
Whichever parent the Child lives with the Child’s right to maintain personal relations and direct contact (in at least a physical sense) will be substantially effected. However, given the Child’s age the effect is unlikely to be as substantial as it would be if the Child were younger. [Cf M & K [2007] FMCAfam 25 at para. 48 per Altobelli FM].
The effect will also be lessened by telephone contact. The Child is of an age where he can maintain telephone contact with the distant parent. There does not appear to be an issue that the Child ought to maintain contact with the distant parent. [Father, Transcript, p. 23], although there is some indication that, in the past, the Mother has hindered telephone and other contact [Father, Transcript, pp. 15, 18 and 23].
The Child’s right to maintain personal relations and direct contact with both parents on a regular basis will be affected in relation to one parent, no matter where the Child lives.
Capacity to provide for the needs of the Child, including emotional and intellectual needs – section 60CC(3)(f)
Both Father and Mother are able to provide physical shelter for the Child. The physical environment able to be provided by the Father in South Australia is probably better suited to the Child’s current male adolescent needs. [Second Family Report, paras. 77, 88 and 90]. Both Father and Mother are able to provide food for the Child, but it appears that in terms of both quality and quantity the food provided by the Mother, whilst not constituting neglect, may fall short of the proper needs of the Child. [Second Family Report, paras. 55 and 77; Father, Transcript, pp. 13-14 and 22; Father’s Affidavit, paras. 46-52; Father’s Friend’s Affidavit, para. 17; Mother’s Third Affidavit, paras. 33-36].
In regard to the social needs and social development of the Child the Father has exhibited an understanding of the needs of a male adolescent, those needs including:
a)a robust and challenging physical environment; [Father, Transcript, pp. 12-13];
b)a measure of independence; and
c)the ability to mix with children of his own age, without embarrassment and thus have appropriate social structures and interaction. [See generally Second Family Report, paras. 68-69 and 90; Father, Transcript, pp. 12-13].
By contrast, the Mother exhibits a lack of understanding of the Child’s social needs. The description of the Mother by the Family Report writer as being “excessively protective” [Second Family Report, para. 86] is undoubtedly correct [see also McDonald, Transcript, p. 67]. She exhibited in her evidence a level of mistrust of others in the Child’s life which was unfounded. [Mother, Transcript, pp. 45-46].
It is sad but true that the evidence supports the findings of the Family Report Writer that the Mother “has limited insight and little understanding of her child’s developmental needs” and that the conflict with the Child has “interfered with” the Child’s social development. [Second Family Report, para. 84].
The Father clearly appreciates the need to ensure that the Child’s educational needs are met by being properly supported and ensuring that the Child attends school and receives appropriate curriculum and teacher support, in the context of the Child’s currently appalling attendance record and a less than satisfactory academic record. [Father, Transcript, pp. 9 and 12].
that the Mother did not have the same appreciation was apparent from her evidence [see especially Transcript, pp. 42-43, 51-52 and 55-58], and especially from her failure to support the Child’s attendance at school intervention programmes, even when the school was paying for transport. [McDonald, Transcript, p. 67; April 2007 School Documents, Annexure A; Mother, Transcript, p. 55-58]. Her explanation for that failure was very unsatisfactory [Mother, Transcript, pp. 56-58].
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
The Father presents as a sensible and mature person. Despite some involvement some years ago with drugs and the Protection Orders in relation to the Mother (which expired – July 2005), the Father appears to have moved on in his life. He has settled in a rural community in South Australia, and a settled full-time but fairly flexible role as Father’s Friend’s carer. This role as a carer, and the nature of the rural lifestyle led by the Father appears as if it will afford him adequate (and perhaps ample) opportunity to be involved with the Child, and to provide the Child with a lifestyle which will give the Child the opportunity to mature in an appropriate environment.
The Mother endeavoured to present as a sensible and mature person. However, notwithstanding the undoubted genuineness of her endeavours, it was clear that she lacks the maturity and sensibility of the Father, and that her lifestyle is one which is characterised by isolation and a general mistrust of others. The former is evinced by her having “one friend”, no job and a seemingly difficult to understand reliance on the Queensland Police Service to assist (to the extent of the relevant capability) in resolving everyday issues (such as the Child’s attendance at Intervention programs ) [see above and Second Family Report, paras. 24 and 26]. The latter is evinced by her claims of manipulation of others [Second Family Report, paras. 24 and 26].
The evidence concerning the Mother’s mental health confirms, to some degree, that her isolation and mistrust of others is unlikely to dissipate. [Mother, Transcript, pp. 48-49].
The Mother’s lifestyle and background are such that there is an inevitable effect on the lifestyle of the Child, such that:
a)his movement, even in and around the apartment and apartment block in which they live is limited, although that may have improved somewhat of recent times [Second Family Report, paras. 48, 58-59 and 69];
b)there is considerable conflict between Mother and Child;
c)the Child is, and feels, embarrassed by the Mother; [McDonald, Transcript, p. 65]; and
d)the Child’s relationship with others is either affected or inappropriate, and this has adversely affected his social skills [Second Family Report, paras. 83 and 87].
The Child, having now had some experience of his Father’s residence and rural environment seemingly welcomes the possibility that he might be afforded the opportunity to develop relationships and lead an active lifestyle in that environment. [Second Family Report, paras. 77 and 91].
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
Not applicable in this case.
Attitude to the Child and the responsibilities of parenthood demonstrated by each parent – section 60CC(3)(i)
Both Father and Mother have a loving and caring attitude toward the Child, within the boundaries of the relevant family, social, medical and employment restraints otherwise referred to in these reasons.
The Father’s evidence demonstrates that he has a proper attitude to the responsibilities of parenthood. He understands the need to act in the best interests of the Child’s needs, socially, educationally and otherwise. The Court accepts that there was a period during the Father’s transition and move to South Australia where he did not necessarily fulfil his parental responsibilities fully (s.60CC(4) and (4A), FL Act), but he has, on the evidence, moved on.
The Mother endeavours to demonstrate that she had a proper attitude to parenthood. However, much of her evidence, particularly in relation to the needs of the Child concerning social interaction and education, demonstrated an abdication of the responsibilities of parenthood, and a failure to appreciate the seriousness or consequences of that abdication. The Court does not consider that that position, or the Mother’s conduct, would be likely to change in the future. [s.60CC(4) and (4A), FL Act].
Family Violence – section 60CC(3)(j) and (k)
The issues concerning family violence dealt with above.
Order has likely to lead to further proceedings – section 60CC(1)
In the Court’s view an order in favour of the Father, that the Child live with him, is less likely to lead to further proceedings. By reason of the matters referred to otherwise in this judgment it appears that if an order is made in favour of the Father it will:
a)not result in any further agitation of the issues by the Father, or on behalf of the Child; and
b)be readily apparent to the Mother that any further application by her is unlikely to be successful (barring an extraordinary change in circumstances).
Consideration – time spent
Having considered all of the evidence and the applicable considerations under s.60CC(2) and (3) of the FL Act, the Court considers that it is:
a)for reasons set out above, not in the best interests of the Child to spend equal time with the Father and Mother; [s.65DAA(1)(a), FL Act]; and
b)not reasonably practicable, in any event, by reason of the distance they live apart. [s.65DAA(1)(c), FL Act].
There will therefore be an order the Child live with the Father.
In order to facilitate a more meaningful relationship with the Mother, and bearing in mind that the Child is willing to visit the Mother on school holidays, it is appropriate to provide for the Child to spend longer than normal times with the Mother on school holidays. There will therefore be orders that the Child:
a)spend time from noon on the first Saturday of each of the April, June/July and September/October school holidays to noon on the second Tuesday of those holidays with the Mother;
b)spend from:
i)noon on 23 December 2007 to noon on 22 January 2008;
ii)noon on 2 January 2009 to noon on 27 January 2009;
iii)noon on 23 December 2009 to noon on 22 January 2010; and
iv)noon on 2 January 2011 to noon on 27 January 2011,
with the Mother; and
c)at such other times as the Mother and Father agree.
The cost of air fares from Adelaide to Brisbane are to be paid by the Father, and the cost of air fares from Brisbane to Adelaide by the Mother.
Other consequential orders will be made.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Jacky Semler
Date: 8 June 2007
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