H and E - [2003] FMCAfam 576

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & E

[2003] FMCAfam 576

FAMILY LAW – CHILDREN – Best interests of the child – relocation order – shared care – age of child – effect on mother if required to relocate – practicalities of contact – ss.60B, 68F(2) Family Law Act 1975 (Cth).

Applicant:

Respondent:

File No:

BRM7992 of 2002

Delivered on:

17 December 2003

Delivered at:

Brisbane

Hearing dates:

11 & 12 December 2003

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

Mr Page SC

Solicitors for the Applicant:

Hopgood Ganim Lawyers

Respondent in Person

ORDERS

That the child J born 15 March, 2002 reside with the mother.
That the father have contact with the child at such times and places as may be agreed between the parties and failing agreement as follows:
(a)Up to and including March 2004, for the first weekend of each month at Toowoomba on Saturday from 12 noon to 4pm and Sunday from 10am to 3pm with the mother to deliver and collect the child to and from Toowoomba.
(b)On Christmas Day 2003 from 12 noon to 5pm in Roma.
(c)On Boxing Day 2003 from 9am to 3pm in Roma.
(d)Commencing March 2004 and up to and including October 2004, for the first weekend of each month at Toowoomba from Saturday 12 noon to Sunday 3pm with the changeover to occur at Toowoomba.
(e)During the father’s university break at Christmas 2004 in December and January for three periods of three days and two nights in Toowoomba commencing 12 noon and concluding 3pm, one period being at least one week prior to Christmas Eve and two periods being at least 1 week after New Years Eve with the changeover to occur at Toowoomba. During the months of December and January the usual monthly weekend contact shall be suspended.
(f)For Christmas Day 2004 from 2pm overnight to Boxing Day 2pm in Roma.
(g)Commencing April 2005 up to and including November 2005:-
(i)For the first weekend of each month at Toowoomba from Friday 5pm to Sunday 3pm with the changeover to occur at Chinchilla.
(ii)During the father’s university break in June/July, for three nights in Toowoomba commencing 12 noon and concluding 3pm on dates to be provided in writing by the father to the mother within 30 days of such contact taking place, provided however such contact takes place at least 1 week either side of the usual monthly contact that occurs in June and July with the changeover to occur at Chinchilla.
(iii)During the father’s university break in September/October, for three nights in Toowoomba commencing 12 noon and concluding 3pm on dates to be provided in writing by the father to the mother within 30 days of such contact taking place, provided however such contact takes place at least
1 week either side of the usual monthly contact that occurs in September and October and with the changeover to occur at Chinchilla.
(h)During the father’s university break at Christmas 2005 in December and January for two periods of 5 days and four nights in Toowoomba with the first period commencing 12 noon Christmas Day and concluding 3pm on 30 January 2005 with the father to collect the child from Roma and the mother to collect the child in Toowoomba. The second period shall take place after the first week in January on dates to be provided in writing by the father to the mother within 30 days of such contact taking place and with the changeover to occur at Chinchilla. During the months of December and January the usual monthly weekend contact shall be suspended.
(i)Commencing in February 2006 and until the child commences Grade 1 (which will be either in 2007 or 2008):-
(i)For the first weekend of each month at Toowoomba from 5pm Friday to Sunday 3pm with the changeover to occur at Chinchilla.
(ii)For the first half of the Easter school holidays to coincide with the father’s annual leave from Easter Friday 12 noon with the mother to deliver the child to Toowoomba and concluding the following Tuesday at 12 noon with the father to return the child to Roma. The following year the father shall have the second half of the Easter school holidays to coincide with the father’s annual leave from Tuesday 12 noon with the mother to deliver the child to Toowoomba, to Sunday 3pm with the father to return the child to Roma. The first and second halves will then alternate each year thereafter.
(iii)For the first 5 days of the June/July school holidays in Toowoomba to coincide with the father’s annual leave from 12 noon Saturday to 12 noon Friday with the changeover to occur at Chinchilla.
(iv)For the first 5 days of the September/October school holidays to coincide with the father’s annual leave from
12 noon Saturday to 12 noon Friday with the changeover to occur at Chinchilla.
(j)In Christmas 2006 for two 1 week periods in Toowoomba and on Christmas Day at times and dates to be agreed and with the changeover to occur in Chinchilla. During the months of December and January the usual monthly weekend contact shall be suspended.
(k)Commencing in February of the year the child commences Grade 1:
(i)On the first weekend of every month from 10am Saturday to 3pm Sunday with the changeover to occur at Chinchilla.
(ii)During the Easter holidays as provided for above.
(iii)The first half of the June/July school holidays from Saturday 10am to Saturday 10am to coincide with the father’s annual leave with the changeover to occur at Chinchilla. The following year the contact shall take place in the second half of the June/July school holidays from Sunday 10am to Sunday 10am to coincide with the father’s annual leave. Thereafter the first and the second half of these holidays shall be alternated each year.
(iv)The first half of the September/October school holidays from Saturday 10am to Saturday 10am to coincide with the father’s annual leave with the changeover to occur at Chinchilla. The following year the contact shall take place in the second half of the September/October school holidays from Sunday 10am to Sunday 10am to coincide with the father’s annual leave. Thereafter the first and the second half of these holidays shall be alternated each year.
(v)During the Christmas school holidays and on Christmas Day on times and dates to be agreed between the parties.
(l)Reasonable telephone contact on Tuesday and Thursday nights each week between 6:30pm and 7:30pm with the father to call the mother’s residence on Tuesday night and the mother to call the father’s residence on Thursday nights.
(m)For the child’s birthday and the father’s birthday on times and days to be agreed between the parties.
(n)In addition to the monthly weekend contact from time to time the Father may exercise contact to the child in Roma on the 3^rd weekend of each month provided:
(i)he gives not less than one month’s written notice to the Mother; and
(ii)the duration of the contact is of the same duration as then occurring.
That all changeovers in Toowoomba occur at the Toowoomba contact centre.
That all changeovers in Roma occur at the entrance to Woolworths Shopping Centre.
That all changeovers in Chinchilla occur at the entrance to the highway café on the west side of Chinchilla.
That the father (or either of the paternal grandparents) be personally in attendance at all changeovers and be available to supervise the child during all contact periods.
That each party have parental responsibility for the day to day care, welfare and development of the child whilst the child is in their care.
That the mother and father have joint parental responsibility for the child’s long term care welfare and development.
That the mother and father keep each other informed at all times of issues that relate to the child’s care, welfare and development by the use of a communication book until the parties’ verbal communication improves.
That the mother authorise the day care, pre-school or school that the child attends from time to time to provide to the father at the father’s expense, copies of all school photos, reports, notices, newsletters and that the mother keep the father informed of all school functions that the child is attending so that the father may attend.
That the mother authorise the child’s medical practitioner to provide to the father upon his request and it his expense all information in relation to the child’s medical history and records.
That the child be brought up in the Christian faith and that any decision to have the child confirmed into a particular denomination be made jointly by the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM7992 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

J, aged 21 months, is the much-loved only child of the relationship between the applicant mother, Sonya Harland, and the respondent
father, E.
A dispute as to where J should live required a trial, which proceeded before me on 11 and 12 December 2003. These reasons are delivered orally, as an early decision is sought by the parties and is indicated by the high conflict which exists.
Despite specific directions made for the filing by the father of an affidavit of any further evidence, the father's evidence-in-chief (filed 2 December 2003), merely contained 84 items of correspondence which have passed between:
b)the parties;
c)the parties’ solicitors;
d)the father's father, P; and
e)others including to the Court, Centacare and the Toowoomba Contact Centre.
The wife's affidavit of evidence-in-chief was not filed as directed by me, and in itself included over 200 pages of correspondence, some of which was also included in the father's material. Many of the letters, particularly those within the father's affidavit, deal with negotiations and irrelevant issues and are not admissible. As the father was not legally represented, and whilst noting the general objection raised by counsel for the mother, Mr Page SC, I did not regard it as necessary or expedient to rule on these matters indicating I would give such weight to admissible evidence as these reasons indicate.

Competing proposals

The mother proposes that J continue to reside with her in Roma. Her case outline sets out a very detailed regime of increasing contact to the father, both in Toowoomba and Roma. I do not repeat in these reasons the specifics of the regime, other than to summarise its main features, being:
a)Until August 2004, contact on the Saturday and Sunday (but not overnight) for the first weekend of each month in Toowoomba;
b)Commencing September 2004, for six months, the first weekend of each month, from Saturday 12 noon to Sunday 3 pm in Toowoomba;
c)From April 2005, the first weekend of each month, from Friday 5 pm to Sunday 3 pm, the changeovers to occur at Chinchilla, apparently somewhat halfway between Roma and Toowoomba, and during the father's university breaks some block contact for three day periods.
d)Commencing February 2006 until the child commences grade 1, a continuation of the first weekend as before together with Easter, five days in June and September holidays and a further two one-week periods in the Christmas holidays, and when the child begins school, then the first weekend and half of all school holidays, save for Christmas which would be by agreement.
e)Telephone contact two times a week, and special day contact was proposed.
The mother in her proposal did not indicate what arrangements for the care of J would be appropriate if the child is required to live in Toowoomba. She opposes any such order.
The father has consistently urged that the Court require the child and therefore the mother to live in Toowoomba. He opposed strenuously her moving to Roma and his proposals are all predicated on that happening; namely that:
(a)J reside with the father from 4.30 Friday to 8 am Monday each week, and further mid-week contact as agreed; and
(b)Special day contact, and when J reaches school-age, then half of all school holidays.
The father also sought:
“Permission by the Court to have a paternity test conducted with a doctor of the father's choice.”
This has been a more recent request by the father, stemming he says from an alleged assertion by the mother that he may not be the father. The mother, through her counsel, acknowledged paternity and she always has, and there was no basis for requiring the child to undergo the procedure. I formally dismissed the application.
The father's amended response filed 2 December 2003 makes no proposals about what arrangements were appropriate if J remained in Roma with her mother. Clearly, even by the time of the final submissions, the father was too distressed to be able to contemplate any orders other than the child residing in Toowoomba.

History

An abbreviated history of the relationship is all that is necessary and in so deciding I elect not to travel in these reasons into areas of history (certainly those before the birth of J), which are not relevant to the determination I have to make. The father found it very hard as the transcript will indicate, and was clearly disappointed when I restricted his cross-examination to areas of relevance to me. I accept the distinction is a hard one for unrepresented litigants to detect, especially when the mother's own material transversed some matters.
This was a provocation in some ways to the father, but nonetheless, did not make issues such as disputes about life policies, trips overseas, and the history of the relationship before the birth of J, helpful to me in my deliberations.
The father is 32, the mother is 30, and after commencing cohabitation in 1994, the parties had some periods of separation, lived in different parts of Queensland and had a 12-month overseas trip together. The mother became pregnant in June 2001 and shortly thereafter, the father moved to the Gold Coast to live with the mother. The parties were living in the Gold Coast when J was born on 15 March 2002. The father's excited parents were at the hospital at that time.
It is clear that tensions in the relationship were in existence, perhaps not surprisingly when this young couple were dealing with the father's work commitments in Brisbane, a young baby, the family having no local family support, although the father's parents in Toowoomba and the maternal grandmother in West Queensland, were certainly happy to assist and did so; and an apparent lack of agreement as to financial matters including the father's desire to complete further career improving studies.
The final separation on 31 July 2002 was associated with a heated altercation between the parents. The mother sought some calm initially on the Sunshine Coast. The father returned, I am sure, in an anxious and stressed state to his parents' home in Toowoomba. Both young parents do not appear to have coped well initially with the separation and were emotionally supported by their respective families. Tensions between the mother and the father's parents increased, including an incident where the paternal grandmother sought to obtain an explanation from the mother as to why she did not wish to continue with a relationship with her son.
The paternal grandmother says the mother ordered her:
“Off my land.”
Although the mother says she informed the father on 16 September 2002, that she intended to move back to Roma, and despite mediation involving the parties, by the end of the month both parties had retained lawyers and the litigation journey had begun.
The mother did file proceedings in this Court the day after she moved to Roma on 3 October 2002. She has continued to reside in that town, now in an investment property owned by her mother, and works two days a week as a sonographer at the local hospital.
The father continues to reside in Toowoomba with his parents although, because of university study commitments, during the academic terms he remains in Brisbane in rented accommodation. The course in which he is enrolled at QUT is a medical imaging technology course, which builds on the father's current qualifications as a nuclear medicine technologist. The evidence is a little unclear. However, he has at least two years of study remaining incorporating clinical work.

Procedural history

It is a matter of regret that the trial of this action could not have occurred more quickly. The history of litigation has been punctuated by delays in obtaining a family report after the first interviewer took ill, and psychologist John De Laurence urgently assisted with a report published 8 July 2003 which is before me; confusion and cancellation of counselling/mediation appointments and the trial being adjourned because of the unavailability of a report and then further adjourned to ensure, quite properly in my view, that the trial did not clash with the father's university exam timetable.
Orders for contact were made by me after my initial interim decision on 27 November 2002 which sought to prescribe and then clarify the contact. The orders speak for themselves. The father did not exercise the level of contact which I initially ordered for reasons outlined in these reasons. It is a great pity that the interim contact of four hours each Saturday, Sunday and Monday did not occur.
By my order of 28 January 2003, when the evidence was that the father was not exercising contact as ordered, I reduced the frequency to two weekends a month, not overnight, one in Toowoomba and one in Roma. The father has rarely exercised contact in Roma since separation, the majority of the contact taking place monthly in Toowoomba when the mother travels with J, on the almost four hour trip from Roma.
I ordered changeovers to occur at the Toowoomba Contact Centre, which is still the preferred option of the mother. The father objects to continued changeovers there and proposes the police station in Toowoomba.
There have been disruptions to the contact regime, initially because of the father's claimed inability to travel to Roma, some confusions associated with counselling and most notably, the actions of the father he says as a result of a confusion as to the meaning of my order of

30 June 2003, in holding the child overnight for the contact on 13 and 14 September.
The father in his evidence says that the effect of his contact arrangement is:
“I get only nine out of 720 hours.”

Principles

In these ex tempore reasons, I do not propose to set out fully the law. Clearly, I am taking into consideration the objects of the Family Law Act 1975 set out in section 60B, the requirements of the trial adjudicators to identify competing proposals and to make an assessment of those competing proposals as set out by the Full Court Re A v A relocation approach, and the observations made by the High Court in such decisions as AIS v AIF and more recently, U v U.
I also take into consideration the observations of Kirby J, that where one party is an unchallenged residential parent, then the Court's attention should be directed to shaping an appropriate contact arrangement.
Particularly, I re-state the view that the primary consideration is the best interests of the child, although as the High Court has said, that is not the only consideration. In determining the best interests of the child, the Court must consider the factors under section 68F(2) of the Act.

Evidence

Apart from the parents who were both the subject of cross-examination, I heard evidence from the two grandmothers of J and the report writer, psychologist, Mr John De Laurence. I do not propose in these reasons to recite large parts of the evidence, which would still be fresh in the memories of the parties. I do say however, that I formed the view that all witnesses were essentially truthful although they of course saw past events from their own value perspective.

The tenor of the father's material, evidence and presentation both as a witness and as his own advocate, led me to a view that he has not been able to successfully move on after the cessation of the adult relationship. He found it hard to separate and articulate his own needs from those of the child. I understand the added strain of presenting his own case and it was obvious he holds a strong view that these proceedings are unjust and unfair to him, his parents and the child. He was often emotional. He had not properly prepared cross-examination. Having not secured any affidavits from his own parents, he took the view that the mother's legal representatives actions in subpoenaing his parents, was a tactic designed to prevent them from sitting in Court during the mother's evidence, and calculated to upset him and his support.
I propose to deal with some issues in dispute before turning to the relevant section 68F(2) factors when comparing the competing proposals.

Mother's reasons for relocating

Whilst I am conscious that the authorities make it clear the mother has no onus to demonstrate any compelling reason for a relocation to Roma, in this case the background of the mother's decision to move to Roma is relevant to the best interests of the child.
The mother's family have been graziers in the Western Queensland area near the large rural town of Roma. The widowed maternal grandmother and siblings of the mother live in this locality, the area of her birth. Considering that neither party had a strong connection with the Gold Coast, it is not surprising that when the relationship broke down, the mother looked at her options and saw the comfort and support from her family in an area she grew up in, as compelling to her.
She has been able to obtain part-time employment in the area, enjoys rent-free accommodation, and can utilise the available supervision of the maternal grandmother of J, when working. The father would seek to persuade me that the mother's choice to return to Roma was calculated to create an insurmountable barrier between J and himself. After separation (and a brief period living at Logan) the father again for quite understandable reasons, returned to live with his parents. Having decided to undertake further studies, his current available resources are modest. He is supported emotionally by his parents, with whom he enjoys a very close relationship.
His demand (for that is clearly how it should be described) that the mother live in Toowoomba, is based substantially on the mother meeting his preferences. As I will soon suggest, living in the same town would certainly increase the options of care for J. However, this young family as a couple has no real connection with Toowoomba.
The history of their relationship shows they have never lived in Toowoomba as a couple. I accept it is a much larger town than Roma, and that as such it would provide some possible work opportunities for the mother. The father's manner creates, I accept from the evidence, the tenor of correspondence and presentation in the Courtroom, a genuine fear within the mother; not of the father causing her physical harm, but of being intimidated, bullied and controlled by the father.
I believe that this factor did influence the mother's initial decision to move to Roma. It did provide a geographical barrier, but in my view not an insurmountable one.

Facilitation of contact

The father urges me to find that the mother has not facilitated contact with him and his family since separation. I formed the view that the father is a devoted parent but that he rarely is capable of looking at his own actions, rather preferring to judge entirely all difficulties as stemming from the mother's conduct.
Not unusually, post-separation, when tensions, frustrations and anxieties are at their highest, some of the facilitation of contact was initially strained. It must of course be remembered that J was only four months old at separation. Since the mother's move to Roma, the level and frequency of contact has clearly, in my view, been adversely affected by the father's inability to travel to Roma.
If the mother had not travelled monthly to Toowoomba then J's development of a relationship with her father would have been even more greatly affected. Rather than condemnation the mother deserves some credit for persisting, perhaps under the eye of the Court, with the orders made for her to come monthly to Toowoomba. She has facilitated some, although not a lot of additional visits and some flexibility was evident.
The father, he says, because of a combination of transport difficulties, health and costs, refused to take up options for regular contact in Roma. I formed the view he could have tried harder to have regular contact in Roma. It would have been more difficult but not insurmountable. Mr De Laurence described such an attitude of the father as "bloody-mindedness", a description which offended the father. At the least the father's conduct shows a pragmatic rigidness which has, in my view, its origin in his desire to control the mother.
I have read the documents produced as business records by the Toowoomba Children's Contact Centre. The father and his parents criticised the conduct of the people who offer this service to the community. Whilst I accept the father would have liked an opportunity to cross-examine some of the persons involved in the centre I do not believe such an exercise would have been helpful to me. I am satisfied at this time and more importantly because of the current dynamics of the parties' relationship that this centre offers the safest and best environment for changeovers for J, at this time.

Father's application for shared residence

Although the father says he seeks shared residence, his Response really seeks the child in his care in Toowoomba when he is available and by his Response at paragraph 17, he seeks for his parent's contact when he is not available and additional contact when sought by his parents. Some themes run through the father's case, best evidenced by:
(a) His calculation that he is only getting nine hours out of 720 hours.
(b) His mother's claim that:
“It is the trend today. Jason, as I know, is sticking to his guns for what he wants.”
(c)The discounting by him of the effect of his unavailability whilst studying in Brisbane.
(d)A lack of insight and awareness of the difficulties likely to be experienced by J in separating at her young age from her primary carer, the mother.
Certainly if the parents had both lived in the same area then more flexible care arrangements could be structured. However, because I have formed the view that it is not in the best interests of J to move to Toowoomba at this time, that is unlikely to occur. The father says, and I accept, there are no real job prospects in or around Roma in his chosen profession.
I was directed by Mr Page SC, for the mother, to the decision of Ryan FM in T & N [2001] FMCfam 222 and her remarks at paragraph 93.

I agree with these well considered and thoroughly researched observations and would add that additional factors, in this case, are the age of the child and the high conflict that exists coupled with ineffective communication and lack of mutual respect which permeates this current dispute, make a shared regime unworkable at this time.
Mr De Laurence agrees.

Development of J's relationship with the father

I accept the evidence of the father and his mother that when J is in his care she is happy, settled and affectionate. Although the frequency of contact to date is far from optimal, it seems that J has been able to retain memories and senses of her father from her contact. She does not seem to demonstrate anxieties at separation. I believe the mother deserves some recognition for encouraging this presentation by the child. I do not accept that the mother's conduct seeks to minimise the father's role as really the only father figure in the child's life at this time.
As Mr De Laurence opines both in his written report and in his oral evidence a child of J's age would be able to cope with and adjust to overnight stays with the father after a period of regular contact. He recommended at paragraph 49 that:
“Overnight contact should not occur until there has been four consecutive contacts to build up more consistency and familiarity. When this has been done contact that included one overnight stay is considered consistent with the child's developmental ability, with this extending to two overnight stays per scheduled contact visit once J has had her second birthday. If however the commencement of the four consecutive fortnightly visits is delayed there should be at least six months worth of single overnight visits occurring in order to cement routine, build confidence and predicability prior to the commencement of the longer weekend contact periods even if this means extending past the child' second birthday.”
When Mr De Lawrence was asked, considering the frequency of contact that has occurred, the mother's reported reactions of J including her "clinginess" and unsettled nature after the holding overnight of the child, Mr De Laurence expressed some concerns about whether the child would cope with overnight stays of only monthly regularity at this time. I take these views into consideration when assessing the whole of the evidence.
The relationship with the father at this time is not as secure as it could have been if the initial order had been complied with by the father. He and the child therefore suffer a delay in the development of a natural bonding which is beneficial to J. I do not however detect any alienating conduct by the mother or the maternal grandmother which concerns me and could, if it were present, put at risk a development of the father's relationship with his daughter.

Effect on mother if required to re-locate

I would assess that if the mother was required to re-locate (not because I can order her to do so which clearly on the authorities I cannot) as a natural consequence of the child living in Toowoomba, the mother would suffer a significant adverse impact on her parenting capacity. She would lose the balance created by her current employment; her family support; the financial benefits of rent-free accommodation, and the comfort of the familiarity of the region of her birth.
I predict that her fears of the controlling behaviour of the father would probably manifest. When the father was away from Toowoomba either studying or doing clinical work it is likely that the paternal grandparents would be unable to resist a desire to involve themselves in the mother's life. It is an overall dynamic, which would distress the mother and, as the primary carer, even on the father's proposal, this would adversely impact on J.

Section 68F(2) factors

In dealing with the relevant section 68F(2) factors I rely upon but do not repeat, findings and observations I have already made on disputed factual issues.

Relationships

I have identified in these reasons the important relationships for J. She is primarily attached to her mother. However her father has already been established as a very important person in her life, who she recognises and enjoys being with. The observations by Mr De Laurence made nearly six months ago confirm this to be the case. The grandparents on both sides of the family are developing their individual relationships although I accept that by reason of the supervision offered by the maternal grandmother, at this time her relationship is more secure.
I had the benefit of seeing the grandmothers give evidence. I regard both of them as strong-willed and loving members of J's family. They offer her, as I suspect does the paternal grandfather, a different dimension of care. I could have been a little concerned by the paternal grandmother's description of J as “our baby” but seen in the context of the whole of the evidence I am satisfied all she craves is a closer and more inclusive relationship with the child.

Effect of change

I have already assessed that requiring the child to live in Toowoomba would adversely affect the mother's capacity to parent. The father's proposal would improve opportunities for contact with him but only on weekends and when he is not otherwise in Brisbane. Greater flexibility for contact with the paternal grandparents would occur whilst the support and relationship with the maternal grandmother would be more difficult to maintain. J, I suspect, would cope and adjust provided her mother remained at this early age her main and primary carer. Children at this stage of their development are more attached to people than places and things. Her security is derived from her mother. As I have assessed a move to Toowoomba by the mother now having re-established herself in Roma could put at risk that evenness of behaviour which nurtures a young child.
The advantages of the child of remaining in Roma at this time outweigh the advantages of a move to Toowoomba.

Capacity to parent

The mother is both a prudent and competent parent. The child's presentation is at all times excellent and the father does not really challenge this but says he can do likewise given the opportunity to do so. He would need and, clearly from the evidence of his mother, receive (if he asked for it or not) her support, advice and guidance. That would be of assistance. His unavailability in Brisbane and, no doubt, the weekend study and other clinical responsibilities he has makes him a far less available parent than the mother. I do not see this situation changing and especially when the father has completed his course and quite naturally will then need to look at job prospects elsewhere as well as Toowoomba.

Attitude to parenting

Parents rarely show all their best qualities in the confines of a courtroom or even the short interview and observational opportunity afforded by a report writer, as in this case. The adversarial nature of the process tends to focus on negatives rather than positives. The attitudes of both the mother and father are within normal ranges bearing in mind the stresses they have both been under. I do not question the father's love or devotion to J but I am puzzled that he has not made more of an effort to find solutions to his dilemma about visiting her in Roma.
I have come to the conclusion that his view that he should not have to do so or that the mother should bring the child to him in Toowoomba shapes his conduct. This is a concern because it establishes a failure to distinguish between his own needs and desires and the best interests of the child. The child relied on the father to make more effort to see her than he has. I hope, but am not entirely optimistic, that he will do so in the future and place the needs of J as a higher priority.
The mother says that the completion of a parenting course has helped her. I think the father would benefit from undertaking a balanced parenting course on post-separation issues from one of the respectable community agencies. I do not propose to order him to do so.

Practicalities of contact

The distance and availability of contact make arrangements for sharing the care of J a challenge. On the evidence I do not accept that the father's health (of which no admissible corroboration for the serious back complaint was offered), transport and costs are the biggest impediment. The father's attitude is, in my view, the seminal barrier. There seems to be cars available in the household of his parents.
I tried to explore with him his availability over the summer university break. He gave no evidence of other commitments to work save for clinical requirements of his course, which would prevent him from journeying to Roma. Accommodation costs would also be a factor and earlier offers of the mother to assist both in providing accommodation and with loans were rejected by the father.
I continue to be disappointed by his approach, which is not child focused. I heard some evidence that the parties had a substantial equity in vacant land at the Gold Coast. A resolution of that defacto property dispute may unleash some funds, which the father could use. He certainly should consider doing so. The orders I propose to make contemplate that possibility.

Likelihood of future proceedings

It is unfortunate that I predict that future proceedings are likely to be commenced in this matter. The father and his family will be unhappy with both my analysis and decision. He says he intends to appeal any decision other than shared care. That, of course, is his right. It does not influence me to make an order which I regard as contrary to the child's best interests at this time.
I think perpetual litigation will not assist this family. Improved communication will, and although the father says he prefers to communicate verbally, the tenor of written communication (including the communication book notes that form Exhibit 1) does not auger well for an improved level of trust and mutual respect. Some therapy directed specifically to improving communication strategies would assist but I feel unable to order it. Mediation to date has not proved successful.

Conclusions

In my view, the best interests of the child are not served by requiring the child to live in Toowoomba. On balance, although difficulties and challenges for effective contact present in this case, J should remain living in Roma with her mother.
The level of contact proposed by the mother requires some modification in my view. I heard the mother's observations of J after the September overnight contact. She honestly conceded she was upset and distressed when the child was finally returned to her. Her unsettled presentation is likely to have been felt by the child. I would not regard the child's clinginess as unusual but not entirely due to some form of separation anxiety.
Although I would hope the father will make arrangements to travel to Roma, in the absence of that occurring, the overnight contact will be delayed until J turns two in March 2004. It will be one night overnight for six, monthly visits extending to two overnights by October 2004.
I propose to increase time with the father in Toowoomba for the Christmas/New Year holidays in 2004-5 to three periods of three days and two nights duration.
I propose to provide the father with an opportunity on one month's notice to exercise the third weekend of every month in Roma.
Telephone contact shall occur now and be bi-weekly, one initiated by the father and one by the mother. The father will need to accept that the child cannot expect long exchanges with him at her current age. Mr De Laurence says this would assist and I agree.
It is difficult to predict how future events will unfold but in an endeavour to proscribe some future arrangements I intend to order as per paragraphs 2(g), 2(i) of the mother's case outline and 3, 4, 5, 6 with modifications that either of his parents can attend the changeovers –

7, 8, 9, 10, 11 and 12 of the mother's case outline.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Baumann FM

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