Handley and Handley
[2013] FCCA 1278
•6 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANDLEY & HANDLEY | [2013] FCCA 1278 |
| Catchwords: FAMILY LAW – Parenting – best interests of the child – relocation. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| AMS v AIF (1999) FLC ¶92-852 Mazorski v Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MS HANDLEY |
| Respondent: | MR HANDLEY |
| File Number: | HBC 509 of 2012 |
| Judgment of: | Judge Baker |
| Hearing dates: | 30 and 31 July 2013 |
| Date of Last Submission: | 31 July 2013 |
| Delivered at: | Hobart |
| Delivered on: | 6 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ryan |
| Solicitors for the Applicant: | PWB Lawyers |
| Counsel for the Respondent: | Mr Turnbull |
| Solicitors for the Respondent: | Ogilvie Jennings |
ORDERS:
(1)Ms Handley (“the mother”) and Mr Handley (“the father”) have equal shared parental responsibility of the children X born (omitted) 2005 (“X”), Y born (omitted) 2008 (“Y”) and Z born (omitted) 2009 (“Z”).
(2)The children live with the mother.
(3)The children spend time and communicate with the father as follows:
(a)Each alternate weekend from Friday at 6.00pm to Sunday at 6.00pm (extending to Monday at 6.00pm if Monday is a student-free day).
(b)By telephone on 2 occasions per week.
BY CONSENT, THE COURT ORDERS THAT:
The parties agree the special occasion orders as follows:
(4)That the parents share care of the children during school holiday periods on a week about basis as agreed, but failing agreement:
(a)For the Term 1 and Term 2 holidays the children will be in the father’s care for the first half of the holiday and in the mother’s care for the second half of the holiday.
(b)For the Term 3 holidays the children will be in the father’s care for the second half of the school holiday periods and will be in the mother’s care for the first half with the mother.
(c)For Christmas school holiday periods on a week about basis between each parent’s home, excepting the special arrangements for Christmas pursuant to paragraph 5 below.
(5)Fathers Day – if not otherwise in his care the children will be in the father’s care on the Fathers Day weekend from 5pm Saturday to 5pm Sunday.
(6)Mothers Day – if not otherwise in her care the children will be in the mother’s care on the Mothers Day weekend from 5pm Saturday to 5pm Sunday.
(7)Christmas:
(a)In 2013 and each alternate year the children will be in the father’s care from the day after Term 4 ends to 4.00pm Christmas Day
(b)In 2013 and each alternate year the children will be in the mother’s care from 4pm Christmas Day to 4 pm 27 December.
(c)In 2014 and each alternate year the children will be in the father’s care from 4pm Christmas Day to 4 pm 27 December.
(d)In 2014 and each alternate year the children will be in the mother’s care from the day after Term 4 ends to 4.00pm Christmas Day.
(8)Easter:
(a)In 2014 and each alternate year the children will be in the father’s care from 6pm Easter Thursday to 6pm Easter Monday.
(b)In 2015 and each alternate year the children will be in the mother’s care from 6pm Easter Thursday to 6pm Easter Monday.
IT IS NOTED that publication of this judgment under the pseudonym Handley & Handley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 509 of 2012
| MS HANDLEY |
Applicant
And
| MR HANDLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting orders by the mother of three children, X born (omitted) 2005(“X”), Y born (omitted) 2008(“Y”), and Z born (omitted) 2009 (“Z”).
The parties commenced a relationship in 2006. They married on (omitted) 2011 and separated in April 2012. During their relationship they lived in (omitted). At separation the mother moved to Hobart.
The child X is the mother’s daughter from a previous relationship. X was two years old when she commenced living with the father and she has been raised as his daughter.
After separation the parties could not agree where the children should live. In May 2012, they agreed that until judicial determination, the boys would live in a week about arrangement, and X would live with the father in (omitted) during the school week and with the mother at weekends.
In May 2012, the father disclosed to X that he was not her biological father. In June 2012, the father ceased caring for her and their relationship deteriorated. X did not spend any substantial time with the father until the Family Report interviews in January 2013. In April 2013, orders were made by consent for X’s time with the father, which has progressed to each alternate weekend. X has been attending a clinical psychologist, who has been assisting her to repair her relationship with the father. The boys continue to live on a week about arrangement with each parent.
The parties agreed that final orders be made that the parties have equal shared parental responsibility for the three children, and that X live with the mother. If the Court orders that the boys live with the mother in Hobart, it is agreed that they will spend each alternate weekend with the father extending to Monday if a public holiday.
It is agreed that the children spend one half of each school holiday period on a week about basis with each parent. The parties also agreed time on special days. They agreed that the changeover occur in (omitted). Finally they agreed that the children attend (omitted) Primary School if they live in (omitted) and (omitted) Primary School if they live in Hobart.
Proposals
The mother proposed that the children live with her in Hobart and they spend time with and communicate with the father each alternate weekend, during school holidays and on special days.
The father proposed that, if the mother returns to live in (omitted), Y and Z live with each parent on a week about basis, and X live with the mother and spend each alternate weekend with him.
During the hearing, Counsel for the father indicated that the father’s second preference was that the children live in (omitted) and they spend substantial and significant time with him, from Thursday until Monday in week one and, Thursday overnight until Friday in week two.
The father’s alternative proposal was that if the mother lives in Hobart, Y and Z live with him and spend alternate weekend time with the mother, and X live with the mother and spend alternate weekend time with him. This proposal will mean a separation of the siblings.
At the commencement of the hearing, Counsel for the mother indicated that if the Court orders it is in the best interests of the boys to live in (omitted), the mother will move to (omitted). This was not a proposal of the mother. Her case was that she does not want to move, but conceded that if she has to choose between a move and not having the children live with her, she would choose to have the children live with her. If that is ordered, she proposed that Y and Z spend substantial and significant time with the father from Thursday to Monday in week one and, one night in week two. She proposed that X spend alternate weekends with the father from Friday after school until Monday morning at school.
Evidence
The mother relied on the following:
her affidavit filed 11 July 2013;
affidavit of Dr A filed 16 January 2013;
affidavit of Ms S filed 30 July 2013;
Family Report dated 29 January 2013; and
documents from the Education Department, and the (omitted) Medical Practice[1].
[1] See exhibit M1.
The father relied on the following;
his affidavit filed 9 July 2013;
affidavit of Ms N filed 9 July 2013; and
Family Report dated 29 January 2013.
The mother’s circumstances
The mother was 19 years old and the father was 28 years old when they began their relationship. They commenced living together in 2006. After the births of the children, the mother remained a stay-at-home mother and was the primary carer of the children until separation.
At separation X, Y and Z remained living with the father against the mother’s wishes. She wanted them to live with her. She moved to Hobart at separation and has remained living there since.
The mother alleged that her relationship with the father was characterised by his control of all aspects of her life. She said that he would use emotional blackmail to achieve the outcomes he wanted from her. She said he was very critical of her parenting and housekeeping.
The mother lives in a three-bedroom home on a large block of land in (omitted). Her parents live in (omitted). She sees them at least twice per week. She is very close to her step-father. Her brother lives in (omitted) and she sees him several times each week. She has several close friends who live in (omitted). Her family have lived in (omitted) since she was 13 years old.
X, Y and Z attend (omitted) Primary School and will remain enrolled there, if the mother is successful with her application. Y attends kindergarten each alternate week at (omitted). He does not attend kindergarten in (omitted). Z attends pre-kinder at (omitted) Primary School and at (omitted) Primary School.
The mother is in receipt of a Centrelink pension and family tax benefit and receives $615.00 per week. The father pays $50.00 per week child support to her.
In 2011, the mother studied a (course omitted) unit by distance education through the (school omitted). She currently attends a (omitted) course one day each week run by the (omitted) High School. The course finishes in November. She will then have a (qualification omitted). She has been (duties omitted) through her business “(omitted).” She hopes to continue this work when her life settles down and the arrangements for the children’s care are finalised.
The mother has a boyfriend, Mr M, who is 25 years old and lives at (omitted) with his family. He stays with the mother two or three times each week.
The mother does not have a driver’s licence, but she has a learner’s licence. She expects to obtain her full licence this year.
The mother had a difficult childhood and adolescence. She was sexually abused as a child and sexually assaulted as an adolescent. She was diagnosed with an eating disorder in grade 11. Because the father alleged that the mother has poor mental health, which compromises her parenting ability, in January 2013 she consulted a psychologist, Dr A.
Dr A was of the opinion that the mother had no “current indicators of illness or disorder”. She was of the view that she may struggle with her self-esteem at times of stress and become anxious. However, she was of the view that she showed insight into her thinking and behaviour and showed evidence of adaptive coping strategies. She identified the separation of the parents, and periods of separation from her children as times of high stress.
Dr A suggested that the mother engage the services of a psychologist. She obtained a referral from her general practitioner in early February 2013. She has commenced her appointments.
The father’s circumstances
The father is employed by (omitted) as a (occupation omitted) at (omitted). He is employed on a full-time basis and works on a five week rotation roster.
The father commenced a new relationship with Ms N in late June 2012. They commenced living together in November 2012 and currently live at (omitted). They moved there from (omitted) in March 2013. Ms N has two children from a previous relationship who live with them, A born (omitted) 2006 and B born (omitted) 2009. Ms N’s nephew, C born (omitted) 1997, also lives with them.
Y and A share a room, Z and B share a room and C has his own room. When X stays, Z moves in to A’s and Y’s room and X shares a room with B.
The father believes that the optimum arrangement for the children is for the mother and him to live in close proximity in the (omitted) area; for Z and Y to continue to live with each parent on a week about basis; and, for X to continue to live with the mother and have regular time with him.
The father believes that he and Ms N are able to provide a higher standard of care for the children than the mother. He said that he has a consistent routine with the children and a consistent method of discipline. They are teaching them to learn to be independent, to use manners and to share their toys and games.
The father said that he is able to financially support the children and provide opportunities to them because both he and Ms N are employed. He is concerned that the mother is not able to provide stability for the children by maintaining a residence where they have their own space and bedrooms. He believes that, if the parents live in the same area, this would allow him to assist the mother with the care of the children.
The father criticised the mother’s role during the relationship. He said that he was concerned that she did not seem to handle caring for the children and carrying out everyday tasks in the household. He said “the children were often starving when I returned from work and had not eaten since breakfast.” He criticised her for spending a lot of time on line when they were living together. He criticised her for allowing the children to frequently watch television.
The father denied that he was controlling of the mother during the relationship. He agreed that they had a number of arguments, but said that most arguments revolved around housework, as the mother was very untidy and did not clean up. He said that it was very difficult for him to be working full-time and then to return home after the mother had been at home all day to do the majority of the household chores and general household tasks.
During cross-examination, it became apparent that the father has a five week roster, which involves him staying at work on around one night per week over three weeks and one weekend out of five weekends. He has around four rostered days off over that period. It takes him one hour to drive from (omitted) to (omitted). His work hours during the day are from 7.30am until 4.00pm.
In his affidavit filed 8 July, the father said that Y and Z attend family day care on two days each week; his parents care for them on two days each week; and, his partner is at home with them on Fridays.
It became apparent during cross-examination that Y and Z have been in family day care on four days each week for the past two months because the father’s parents have been travelling on the mainland for two months. Ms N’s parents assist in emergencies.
The father said that he has given serious consideration to whether or not he could relocate to Hobart. He has talked to Ms N about this but because they have employment and extended family in the (omitted) area they do not want to relocate to Hobart.
The father said that he would assist the mother move back to (omitted) by paying for a removal truck for one day. Ms N will assist her to secure rental accommodation, should she wish her to do so.
Ms N is 41 years of age. She is employed on a part-time basis working four days a week as a (occupation omitted) for a (employer omitted) at (omitted). She works part-time in order to be able to care for the children. Her children attend (omitted) primary school.
Ms N has assisted the parties in making arrangements for the children. She has an amicable relationship with the mother.
I will now discuss the relevant evidence. I will firstly turn to the arrangements for the children at separation.
The mother
The mother said that when she and the father were discussing separation on 12 April 2012, the father said that if she ever left him, he would tell X that he was not her real father. The mother told him that was not a good idea. The parties agreed that they would have a cooling off period while the mother stayed in Hobart with her sick mother from 13 April until 19 April, when she was due to return to (omitted).
On 18 April the father arrived in Hobart with garbage bags full of the mother’s clothes. He told the mother they were separated and he was keeping the children.
The mother said that X, Y and Z remained in (omitted) with the father against her wishes. When she filed her application on 11 July 2012, Y and Z were living with the parents on a week about basis. X was enrolled in full-time school. The father would not agree for her to relocate to Hobart to live with the mother. The mother spent time with her at weekends. She agreed to these arrangements because she could not return to (omitted).
The Father
In his affidavit, the father said that the mother went to Hobart to spend some time with her family and the children remained in his full-time care. He believed at the time that the separation was temporary. He said that on 2 May 2012, the mother confirmed her intention to remain in Hobart. She sought to have the children live with her in Hobart and spend time with the father on weekends when he was not working. He informed the mother that he opposed the relocation of the children to Hobart. It was agreed, on an interim basis, that the boys live with each parent on a week about basis and that X remain living in (omitted) with him, as she was attending school.
The father said that from separation until approximately mid-June, X remained living with him and spent time with the mother on four out of five weekends.
During cross-examination, the father agreed that the parties had agreed on a cooling off period and marriage counselling. He agreed that on 18 April 2012, he arrived in Hobart with a bag of the mother’s clothes and told the mother that the marriage was over. He agreed that he kept the children in (omitted). He agreed that he acted impulsively on 18 April 2012.
Throughout his affidavit the father acknowledged that the mother’s role was a stay-at-home mother. He said that his role was that of primary income earner and he was heavily involved in the care of the children when not at work. However, during cross-examination, the father said that he was the primary carer of the children as the reason why he retained them in (omitted) upon separation. This statement was not credible, given his affidavit evidence and his actual working hours.
The Family Consultant
Ms M identified the issues during the assessment as follows;
(1)The disadvantages for the children of their parents living such a long distance apart and the risk that the mother may not be able to assist with the transport for the children's changeovers in the long term.
(2)Arrangements that will provide the children with the most advantageous level of care.
(3)The significance of the sibling relationships.
(4)X's specific and different needs compared to her brothers’ needs.
During the assessment, Ms M said that she was unable to observe a different strength in the boys’ attachment relationship with the mother compared with the father. She was of the view that the father had been significantly involved in the children’s care after observing the father’s close connection with X, despite the significant fracture in their relationship.
The father was critical of the mother’s housekeeping and lack of routines during their relationship. The mother volunteered that she “is not the best at housekeeping.” Ms M was concerned about her using an alarm to remind her about necessary daily tasks. This indicated to her that the mother is lacking in an instinctive motivation and flow in her daily routine.
During cross-examination, Counsel for the mother asked Ms M whether her use of alarms could have been as a result of her low self-esteem, lack of confidence and anxiety about the issue of housekeeping standards raised by the father. Ms M was unable to say. Her impression was that the mother had difficulty meeting the day-to-day needs of children and undertaking parenting tasks.
When questioned further, Ms M said the mother set an alarm to wash the dishes, to put clothes out, to put on washing, and to pack up toys. She conceded that the mother was trying to establish a routine for housework. She agreed that she did not consider that the mother’s care of the children was inadequate.
Ms M said that parents are generally better able to competently meet their children’s needs when they feel supported and thus more content with their lives. The happiness of a child and their caregiver/s are generally intertwined.
Ms M said the mother was responsive to the children’s needs during the observation session. However, she was of the view that the children would have a more enriched childhood and better standard of care if they were to live with their father. She said that the possible advantages to the children’s physical, emotional and intellectual development of living with their father should be taken into consideration. However, she said that if the court is satisfied that the children are not likely to be significantly disadvantaged by any lower standard of care provided by the mother; then the advantages for the children in living with X, and their mother, who is more available to care for them than their father, might outweigh the benefits of them having a more advantageous upbringing in the full-time care of their father.
During cross-examination, she explained her view that the father can provide a more enriched environment compared to the mother. She said she was talking about his ability to take the children on outings, as he has a driver’s licence and greater resources. The mother’s general description of day-to-day activities was restricted largely to the home and the local area. She said that because she finds meeting day-to-day needs of the children challenging, it is more difficult for her to provide “the extras”.
Ms M was of the view that at the interview, the mother inadvertently or deliberately behaved in a manner that might have resulted in irreparable damage to the relationship between X and the father. She said that the mother clearly did not expect that X would want to see the father on the assessment day. She said that she appeared to have psychologically prepared herself that X would not be spending time with the father. She considered that the mother was not supporting X’s relationship with the father.
Ms M was of the view that Y and Z will be most advantaged if their mother was to return to live in the (omitted) area, so as to be able to spend substantial and significant time with each parent. She was of the view that was the optimum arrangement for the children.
She said that due to the importance of the children having the benefit of their experiences with the father, (as well as the importance of the father/children relationships), and the risk of the visiting arrangements for the children breaking down if they were to live with their mother in Hobart, there could be greater confidence about the children’s well-being in their mother’s primary care, if she were to live in the (omitted) area. She recommended a more even, but not necessarily an equal time arrangement, if the parents live within close proximity to each other in the future. She also recommended that X spend significant time with the father, but less time compared to her brothers.
Ms M made recommendations; on the assumption that the mother will continue to live in Hobart; on the basis that the Court finds that Y and Z are not likely to be significantly disadvantaged by any difference to the standard of care provided by the mother, compared to the father’s care; and the children’s visits with their father are likely to be facilitated in the long term.
She recommended that Y, Z and X live with the mother and spend alternate weekends and half the school holidays with the father. She also recommended that the children have telephone communication.
Relevant Law about Family Reports
In Hall & Hall[2] the Full Court of the Family Court of Australia made some general and helpful observations about the weight a Family Report should be given
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 F.L.R. 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted[3].
[2] (1979) FLC 90-713.
[3] Ibid at para 78819.
The decision in Hall & Hall[4] was considered by the Full Court of the Family Court of Australia in Friscioni & Friscioni[5]. Their Honours confirmed that, despite the age of that judgment, it remains on point. This was confirmed by the Full Court in the case of Hannigan & Sorraw[6].
[4] (1979) FLC 90-713.
[5] [2010] FamCAFC 108.
[6] [2010] FamCAFC 257.
In Friscioni & Friscioni[7],
Quoting the trial judge, the Full Court said:
Of course the family report process gives reporters a perspective not available to a judge, including the opportunity to speak directly to the child and observe the child interacting with parents and others who are significant to the child’s life, and their assessments are based on the body of learning related to their professional qualifications and experience. But they do not have the advantage of hearing the evidence tested or of observing those involved in a different setting. Nor, usually, is it apparent that they have arrived at the outcome they recommend by taking the path imposed by the Act through the suite of provisions about best interest considerations, parental responsibility and time. Some of the components which underlie the best interest considerations fit well with their expertise and invariably their evidence about that is very important, but the outcome is for the court and while recommendations about it may be helpful in some cases, not the least with settlement discussions, plainly that does not prevail over the court’s responsibility to evaluate all of the evidence, including that given by the reporter, via the structure imposed by the Act and to come to an independent decision about what is best for the child in all the circumstances.[8]
[7] [2010] FamCAFC 108.
[8]Ibid at para 10.
Conclusion about Ms M’s evidence
Ms M did not have the benefit of reading the trial affidavits of the parties, nor did she have the benefit of hearing or weighing the evidence of the parties. The conclusions I make about her evidence are made after hearing all the evidence.
I do not agree with Ms M's concern about the mother’s inability to attend to meet the day-to-day needs of the children. I accept the mother's evidence that she has suffered from low self-esteem and was subjected to criticism by the father about her standards of housekeeping. This is the reason that she was using the alarms to assist her. She was scared that if she did not “keep house” to the father’s standard, she may jeopardise her prospects of Y and Z living in Hobart with her. The father’s use of a real estate agent's report to demonstrate the untidiness of the mother’s rental home was an indication of the father’s critical attitude towards her. I consider that “untidiness” may be subjective. The agent did not give evidence and was not cross-examined. I place no weight on the report.
The mother has ensured the children’s attendance at school and has attended to all their health checks. Y’s and Z’s weight and height are satisfactory. The medical records of the children demonstrated the mother’s ability to attend to the physical and developmental needs of the children.
Whilst the father was very critical about the mother and her parenting in his affidavit, he conceded during cross-examination that she loves and supports the children; she provides plenty of toys for them; she gets them to school; she takes them to playgrounds and to visit friends and, she interacts with her extended family with the children.
Counsel for the mother asked Ms M on what she had based some of her opinions about the mother’s care of the children. Ms M gave evidence that her perception of the differences in the households was based on descriptions the father gave of the mother not attending to the children’s needs in a timely manner. She referred to the mother not giving the children their breakfast in a timely manner. Ms M accepted the father’s report. However, the father’s evidence was that he left for work at 6:50am when living at (omitted). I agree with the submission of Counsel for the mother that the mother should not be criticised for not giving the children breakfast at that early time.
I do not agree with Ms M’s assessment that the father can provide a more enriched environment compared to the mother. The father has a driver’s licence which enables him to take the children on outings. He is employed on a full-time basis and his partner is employed on a part-time basis. The mother is in receipt of Centrelink benefits and child support. She has a learner’s licence. She intends to obtain her driver’s licence this year and to purchase a motor vehicle.
The father’s household therefore has more disposable income. However, the mother has been able to support the children financially. She has the support of her family to take the children on outings. She uses public transport. She has made friends, who have children at the same school as her children.
The mother is available to care for the children. She is not employed at the present time, although she intends to pursue her business or obtain employment when the children attend full-time school next year. The mother has chosen to be a stay-at-home mother whilst the children are young. That was the arrangement the parties agreed upon whilst they were in a relationship.
The father is employed. He relies on his partner and other people, including his parents when they are in Tasmania, to care for the children. His relationship with Ms N is of short duration, and if it does not become long term, the father will need other assistance in caring for the children, taking them to school and collecting them.
I do not agree with Ms M's assessment that the mother has not encouraged X’s relationship with the father. Ms M noted in her report, that X has seen the school social worker and the “worry doctor,” during cross-examination she said that she was not aware that X had been seeing a psychologist. She was not aware about what X had told the psychologist, or about the psychologist's opinion of how X's relationship with the father could be repaired. Ms M criticised the mother for using emotionally laden language in X’s presence.
The mother was opposed to X having overnight or weekend time at that stage. She said that what she talked about was nothing that X had not already told her. She made it clear to X that she could see the father. She told Ms M that short periods with the father would be better for X before long periods of time commenced. She was voicing a slow re-introduction of X to the father in accordance with the psychologist's advice. She was surprised on the interview day that X said that she wanted to see the father, as X had told her in the car that she did not want to see him.
In December 2012, X commenced consultations with a psychologist, Ms S her evidence was that X’s responses about her father have slowly shifted over time. Initially she was angry with him. Then she reported a deep sadness and was missing him terribly. X then said she was pleased that she would not have to see him at Christmas time. In sessions in early 2013, she reported that she was still concerned that she will be hurt again by the father, but was willing to see him. She said that she would “give it a go”.
Ms S recommended a gradual increase in contact for X with the father, to allow for a strengthening of their relationship. At the time of her report dated 26 March 2013, she said that X expressed that she was willing to start developing a relationship with the father again, although she was cautious about this at that time. She said that she would be willing to talk to the father if someone was there to support her. X also stated she would be willing to see the father during the day, but she would not stay overnight yet.
I consider that the evidence as a whole indicates that the mother has promoted X's relationship with the father.
After the father made the disclosure about non-paternity to X, the mother did not cease X’s time with the father. X went back to (omitted) to live with him until he stopped that arrangement on 8 June 2012.
In February 2013, X and the father commenced spending time together at (omitted) McDonalds’s with others present. On 2 March 2013, X and the father spent time together, again at (omitted). On 3 April 2013, interim orders were made providing for X’s time with the father to gradually build up to overnight time. On 6 April 2013, X spent four hours with the father in (omitted). On 4 May 2013, X began spending overnight time with the father. On 31 May 2013, X began spending each alternate weekend with the father.
In respect of the father’s assertion that the mother has not promoted the relationship between Y, Z and him, I consider that there is also no evidence to persuade me that the mother has not promoted these relationships.
Dr A
Dr A is a clinical psychologist. The mother consulted her on 20 December 2012. She gave her a full history, including that she was molested by her first step-father when she was a young child; in her adolescence she was diagnosed with an eating disorder; and she was sexually assaulted when she was 17 years old. She developed depression and was later diagnosed with symptoms of post-traumatic stress disorder. She told her that with time the symptoms decreased, although she still experiences some anxiety.
In respect of her relationship with the father, the mother said that they met online. They decided to marry in 2011 in the hope of improving their relationship. When they first met she said the relationship was relaxed and positive and she felt safe and secure in the relationship. She said that, when she moved to (omitted), she started to feel differently and missed not having her family around her. She started to feel very lonely. She said that she found it difficult to be separated from the children since separation, but spoke of the need for the children to maintain relationships with both parents.
The mother told Dr A that she did not feel that living in the (omitted) area was an option. She did not want to live there and her supports there were limited. She has felt far happier and healthier since she has been in Hobart. She has linked in with the local primary school and the social workers. Her family is nearby and available to her when she needs them. She has friends through her parents’ business and she has made other friends who have young children.
Dr A administered the MCMI – III test to the mother. She found that the mother was open and honest in her responses and did not attempt to conceal any aspects of her behaviour or thinking. Dr A said that her profile does not show evidence of any current clinical symptomology or severe clinical syndromes. Her profile is consistent with the history provided, showing mild elevations for anxiety and trauma.
In relation to personality traits, the mother produced one significant elevation indicating the presence of personality traits consistent with low self-concept, past experiences of low mood and the experience of negative or anxious cognitions.
In conclusion, Dr A said that the results of the assessment do not show any current indicators of illness or disorder. The personality profile suggests that her experiences during childhood and adolescence have made her vulnerable, particularly during times of stress, to negative or anxious cognitions and that she may at times struggle with her self-esteem. She showed insight in relation to her thinking and behaviour and showed evidence of adaptive coping strategies. A positive environment and positive interactions with others will be very important for her coping and well-being. She demonstrated a positive attitude to her family and community and views them as valuable sources of support. It is likely that a separation from her current networks may increase her vulnerability to low mood, negative thinking and cause her to become more isolative. She thought that would increase significantly if she had to relocate to a place where she did not want to live.
During cross-examination, Dr A agreed with Counsel for the father that the mother has good coping skills. However, the reality of what the mother has told her, that she feels the place for her to cope best, with the best use of parenting skills, is where she feels supported. She does not feel that she has that support in (omitted).
While the mother has the ability to apply her good coping skills, she has vulnerability to negative thinking, depression and anxiety. Dr A does not believe that (omitted) is the optimal place for her to cope.
Dr A said that there would be a significant impact on the mother if she had to move back to (omitted), rather than making a choice to move. She said that given some of the difficulties she has experienced in the past, it is a risk factor for her to feel isolated.
Dr A said that the term “coping” is a broad term for a person to be able to see that he or she has the resources to deal with whatever demands are presented in his or her environment. She said that coping does not always feel good. A person can cope, but to his or her own psychological detriment. Optimal coping for a parent is to be able to manage stress, to continue good contacts with the children to a degree to maintain a sense of well-being, and to feel supported and connected. It is possible for a person to cope to one's own detriment by getting by. Whether or not that is the best thing for one’s own psychological well-being is another thing. The quality of the parent/ child relationship would suffer if a parent was not feeling great about their situation.
I found Dr A an impressive witness. She did not change her opinion about the mother in cross-examination. She answered questions clearly. I accept her evidence and place weight upon her opinions.
Relevant law
In proceedings for a parenting order, the Court may make such parenting order as it thinks proper subject to Part VII, Div 5.[9]
[9] Section 65D(1), 65D(2); CCH, Australian Family Law and Practice, vol 1 (at 538-9-11) 16-020.
Section 60B sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Family Law Act 1975 (“the Act”) provides that when a Court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration.
In determining the child’s best interests, the Court is guided by s.60CC of the Act. Pursuant to s.60CC(1) the Court must consider the matters set out in ss.60CC(2) and (3) when determining a child’s best interests. Section 60CC(2) sets out the primary considerations which the Court must take into account, and s.60CC(3) sets out a number of additional considerations.
Relocation cases are very difficult, which is recognised in the authorities dealing with relocation. They have important consequences for children. In Morgan & Miles[10] Boland J, sitting as the Full Court, considered the relevant principles applicable to relocation cases, prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Her Honour referred to cases including AMS v AIF[11], A v A: Relocation Approach,[12] U & U[13] and Bolitho & Cohen[14]. Her Honour then referred to the legislative framework introduced by the amending Act and concluded:
[10] (2007) FLC 93-343.
[11] (1999) FLC ¶92-852.
[12] (2000) FLC 93-035.
[13] (2002) 211 CLR 238.
[14] (2005) FLC 93-224.
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate ‘compelling’ reasons;
-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement”,
remain valid.
-What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s.60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes (sic) a requirement that matters under s.60CC or s.65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s.60CC factors, and then applying those findings to a consideration of the criteria of s.65DAA to craft appropriate orders. [15]
[15] (2007) FLC 93-343 at para 80 & 81.
The Full Court in Taylor & Barker[16] referred to the same logical approach which should be followed in relocation cases and decided that s.60CC should be considered first, followed by s.61DA and s.65DAA, and stated:
…it would seem only logical that the Court make findings regarding the matters contained in those sub-sections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.[17]
[16] (2007) FLC 93-345.
[17] Ibid at para 62.
The Full Court further stated:
the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate and discrete issue, but rather as just one of the proposals of the child’s future living arrangements, in so far as that approach is possible.[18]
[18] Ibid at para 56.
Recently in Sayer & Radcliffe[19], the Full Court of the Family Court also recognised that all relocation decisions are difficult. The Court referred to the guidance and approach taken by the Full Court in decisions such as Starr & Duggan[20] and Heaton & Heaton[21]. A court is required to clearly follow the legislative pathway applicable to parenting cases and the issue of relocation is not to be treated as a discrete issue in the making of orders.
[19] (2012) FamCAFC 209.
[20] [2009] FamCAFC 115.
[21] [2012] FamCAFC 139.
The Court is not confined to a choice between the proposals of the parties, as the best interests of the child may not be best served by these proposals. An option may be a parent’s willingness or ability to move to be nearer the child after the move. A trial judge is entitled to look beyond the proposals of the parties in making an order, if open on the evidence.[22]
[22] Bolitho & Cohen (2005) FLC 93-224 at para 83-85.
In AMS v AIF[23]Kirby J noted,
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To that extent that earlier authority may have suggested the contrary, it has now, properly, been rejected. [footnotes omitted][24]
[23] (1999) FLC ¶92-852.
[24] Ibid at para 145.
Counsel for the father relied upon the decision of the Full Court of the Family Court in Sampson & Hartnett (No 10)[25]. Their Honours Bryant CJ and Warnick J identified that the appeal against the trial judge raised the following significant issues:
[25] (2007) FLC 93-350.
The power of the Family Court to directly or effectively order a parent to relocate;
the effect (if any) of s 92 of The Constitution on parenting orders actually or effectively requiring or preventing interstate relocation (and related questions about the form of orders) and
the propriety of orders and the power to make them, that have a coercive impact, that seek to create a situation, rather than orders that derive from findings based upon the evidence and that are responsive to the proposals of the party.[26]
[26] Ibid at para 6.
Their Honours continued:
If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rarer, because the effect is more drastic. The person being ordered not to move at least has chosen that location as some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefor the order is much more of an imposition on that person’s freedom.[27]
However we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) The location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.[28]
The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rarer in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.[29]
[27] Ibid at para57.
[28] Ibid at para58.
[29] Ibid at para 59.
In Cales & Cales[30], the Full Court of agreed that the type of order envisaged by the majority in Sampson & Hartnett (No 10) is one which will be rarely and sparingly made.[31] The Full Court was not persuaded that as a result of MRR v GR[32] the decision of the majority was no longer correct law.
[30] (2010) FLC 93-459.
[31] Ibid at para 89.
[32] (2010) 240 CLR 461.
In MRR v GR[33], the High Court considered s.65DAA of the Act.
[33] Ibid.
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”
Sub-section (3) explains what is meant by the phrase "substantial and significant time”.
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".[34]
[34] Ibid at pages 464-465.
Later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order…[35]
[35] Ibid at page 466.
It is, therefore clear that, if an order for equal shared parental responsibility is made or proposed to be made, a consideration of s. 65DAA is required. The High Court has also made it clear the Court is required to consider “best interests” and “reasonably practicable” in respect of both equal time and substantial and significant time.
To determine what parenting arrangements are in the best interests of the children, the Court is required to consider all the evidence and have regard to the s.60CC factors, informed by s.60B of the Act. My conclusions will be reached by an assessment of all the evidence and all the relevant factors pursuant to s.60CC of the Act.
I shall now turn to the s.60CC considerations.
Section 60CC(2)(a)
Section 60CC(2)(a) provides that when considering the best interests of a child, the Court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child
The term “meaningful” is not defined in the legislation but it has been the subject of a number of judgments. In Mazorski v Albright[36], Brown J considered the dictionary definitions of “meaningful” and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[37]
[36] (2007) FamCA 520.
[37] Ibid at para 26.
In McCall & Clark[38], the Full Court of the Family Court considered the meaning of the term. Their Honours Bryant CJ, Faulks DCJ and Boland J affirmed the judgments of Mazorski vAlbright[39] and M &S[40] and held that a “meaningful relationship” is one that is important, significant and valuable to the child;[41] that it should be the subject of a qualitative, rather than quantitative, assessment; [42] and, that there is no single approach to determining the benefit to a child of a meaningful relationship with their parents.[43] Their Honours went on to hold that that the Court should adopt a prospective approach to the issue:
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.[44]
[38] (2009) FLC 93-405.
[39] (2007) FamCA 520.
[40] (2007) FLC ¶93-313.
[41] Mazorski v Albright (2007) FamCA 520 at para 26.
[42] Ibid.
[43] M & S (2007) FLC ¶93-313 at 33.
[44] (2009) FLC 93-405 at para 118.
Dessau J noted in M & S[45], that it is inevitable a long distance relationship, with longer but less frequent time spent together, is different from a relationship where people live closer together with regular face-to-face contact. However, that does not mean that the relationship cannot be meaningful.
[45] (2007) FLC 93-313.
The parties agreed that Y and Z have a meaningful relationship with both parents and that is of benefit to them to have that relationship. Apart from the recent difficulties between X and the father, and the effect that has had upon their relationship, the mother is of the view that X’s relationship with the father is one of importance, significance and value to X. The mother supports that relationship continuing to be meaningful and believes that there is benefit to X of continuing the relationship.
Section 60CC(2)(b)
Section 60CC(2)(b) provides that when determining the best interests of a child, the Court is required to consider, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
In this matter, X has been psychologically damaged by the father, by informing her that he is not her biological father and by ceasing to care for her in the way he did. She has been making progress since psychological intervention by Ms S. X will continue to have psychological assistance to repair her relationship with the father. I turn to the evidence of the parties about this disclosure.
Evidence of the Mother
The mother said that on or about the week of 14 May 2012, the father told X that he was not her biological father whilst he was driving her down to Hobart. He did not tell the mother that he was going to do this. There was no discussion about how X would be supported and what information would be provided to her. The father returned her to the mother and left without saying anything to her. The mother said X burst into tears. She said that the father had told her, “I’m not your father, but still want to be your daddy.” X also said “I don’t belong to anyone.”
The mother comforted X and then went outside to find the father. She asked him why he would do that. He admitted to the mother that he told X to hurt her, because the mother had begun dating again.
X was left very distressed and confused. X said that she did not want to go back to her father’s residence, but she was crying and saying her real home is where her “daddy is.” The mother said that X was clingy for many months and this gradually decreased over time. The mother was supportive of X continuing her relationship with the father and returned her to his care at the end of her time with her.
Several weeks later, on the weekend of 8 June 2012, the mother’s parents had an argument with the father at changeover. The father telephoned the mother and told her that he no longer wished to care for X and she was to remain with her.
This was devastating for X. She felt rejected. X had nothing packed. She had been attending (omitted) Primary School up to that point. The mother enrolled her in (omitted) Primary School in June 2012.
Evidence of the father
In his affidavit, the father said that he made the decision to tell X that he was not her father. He did not consult with the mother, mainly because they had not been communicating at this time. He said he sat down with X when he told her. He told her that he still wanted to be her father but that, for the interim, she was going to live with her mum. He said he regretted what happened, as his actions resulted in him not seeing X and that his relationship with X was damaged.
During cross-examination, the father said that he told X that he was not her biological father on the morning of 12 May 2012 before he drove her down to (omitted). He did not telephone the mother to tell her what he had done. He conceded that this was an error of judgment.
He said he did not know why he told X. He agreed that he was angry that weekend because the mother had begun dating. He said that this was very hurtful. It was put to him, by the mother’s Counsel, that he was being vindictive and did what he always said he would do; tell X that he was not her biological father. He denied that he was being vindictive. He said again that he did not know why he told her on that day. He said he was just very emotional.
During cross-examination, the father conceded that what he did to X was “disgusting.” He said that he could not imagine what effect this has had on X, although he conceded that it was devastating for her.
In respect of ceasing his care of X, the father explained that he telephoned the mother to inform her that X was staying with her, because of accusations made against him by the maternal grandmother of acting inappropriately towards X. He said his reaction was to limit his exposure to accusations being levelled at him.
The father said that, at that time, he was very emotional and was not functioning properly. He said that he would not do anything again to hurt X.
The father accepted what Ms S has said that X is happy to spend time with him, but it brings up a lot of turmoil and raises confused feelings for her. He accepted that it has been very confusing for her. He accepted that it is possible that she sometimes calls him Mr Handley and at other times calls him dad, because of her confusion.
Findings about this evidence
I accept the mother’s evidence that the father had threatened to tell X that he was not her biological father if she left him. The father told X on the weekend the father discovered that the mother had begun dating again. He admitted that he was hurt and emotional. I do not accept the father’s evidence that he did not know why he told X. I consider that he was carrying out his threat. He did not consider the consequences to X.
The father said he regrets having done this and started to be regretful on the same day he told X on the drive from (omitted) to (omitted). Notwithstanding his regret, the father made X feel rejected several weeks later. Without any discussion with X, he ceased caring for her.
As result of the father’s actions, X has required psychological treatment. Their relationship has been damaged, but is being repaired with the assistance of Ms S.
Ms S
Ms S is a clinical psychologist, who has a therapeutic involvement with X. She prepared a report dated 26 March 2013 which was annexed to her affidavit. She has had sessions with X on 6, 13, 20 December 2012, 10 and 31 January, 14 February, 21 March, 8 May, and 10 and 24 July 2013. She spoke with the mother on three of these occasions and on 26 March 2013. She had a conversation with the father on 25 March 2013 and he also attended the consultation on 8 May 2013.
Ms S said that X usually presents as a bright and “up-beat” child, but was quite down during their last session on 10 July. X appeared to be feeling the effect of the litigation and broke down in tears. She commented “mum and Mr Handley are fighting over me like I’m a little toy.” She said that X would like the court process to be finished so she can return to her “normal life where (she) just gets to live with mum”. X has spoken of still not quite trusting the father and at the same time commenting that she does not want to hurt his feelings by refusing to go on access.
X adores her brothers Y and Z and she reports that she is happiest when they are around. She has expressed the desire to remain living with her mother, but is happy to see the father occasionally.
Ms S reported that X was very hurt and confused by the father’s revelation to her that he was not her real father. She recalls feeling “dumped like a piece of rubbish.” This resulted in X feeling unwanted, very insecure and worried about others with whom she is close will also leave her.
Ms S noted that since June 2012, X had limited contact with the father. The mother reported to Ms S on 6 December 2012 that she was concerned about the impact the separation and the father’s seeming rejection of X had on her well-being. She reported that X has started lying, is getting angry and then cries often, and appeared almost resentful of her brothers. X reported feeling hurt by the father and worried that her mum would also leave her.
X’s therapeutic intervention has predominantly focused on reducing the confusion and hurt caused by the relationship breakdown between her and the father.
In her report, Ms S said that X said she would be willing to talk to the father, if someone was there to support her. X also stated that she would be willing to see the father during the day, but that she would not stay overnight yet.
Ms S recommended a gradual increase in time with the father. She hoped that developing their relationship will help X to feel more secure and confident.
During cross examination, Ms S said that there is a lot of work to be done to repair the relationship and trust between X and the father. The most important priorities for X are ending this litigation and for her to have a stable and consistent routine.
Ms S’s evidence was not challenged. I accept her evidence.
Section 60CC(2A)
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b) the Court is to “to give greater weight to the consideration set out in paragraph (2)(b).”
Additional considerations
Section 60CC(3)(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
Y and Z are too young for any weight to be placed upon their views.
X’s views in respect of the father have changed over time. She did not want to see him after May 2012, but with the assistance of psychological intervention she is now spending time with him again. There is no dispute that X wants to spend time with the father.
Section 60CC(3)(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 mother was the primary carer of the children during the relationship. The mother is X’s primary attachment figure. Y and Z have a close and loving relationship with both the mother and the father. Both parents have been involved in their care.
The children are close to both their maternal and paternal grandparents. X has a strong bond with Mr C, the maternal grandfather
Y and Z have good relationships with Ms N and her children.
Ms M made the point that step-sibling relationships are not as important as half sibling or sibling relationships. She said that there are advantages for the boys living with X. Ms S said that X loves her brothers very much and is happiest when they are around.
Section 60CC(3)(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;
The father unilaterally ended his care of X. As a result their relationship was damaged. He did not spend any substantial time with her from May 2012 until April 2013.
Section 60CC(3)(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;
Both parents have filled their obligations to maintain the children.
Section 60CC(3)(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 whom he or she has been living;
The father asserted that his relationship with the children will be negatively impacted if they move to live in the mother's care in Hobart.
The mother has been the primary carer of the children during the relationship. Y and Z have been separated from the mother each alternate week since May 2012. They have been separated from living with X.
The likely beneficial effect of the parents living in the same city is that the children will have the opportunity to have both parents involved in day to day activities such as attendance at school and extra-curricular activities.
The likely adverse effect of requiring the mother to move to (omitted) is that she will be forced to live where she does not want to live. This involves a consequent risk of affecting her mental health and her parenting capacity.
The mother said that she will move back to (omitted) if there is no other option. She would be able to function physically, but emotionally and mentally she would suffer. Her confidence and resilience has improved because she is surrounded with family and supportive people, who are her mother, step-father, brother, her partner and his family, and friends in (omitted) and in (omitted). Her friend Ms C in (omitted) supports her. She believes that X would suffer by a move, which could backfire and make her angry.
Dr A was of the view that, although the mother has good coping skills, she has a vulnerability to negative thinking, depression and anxiety and Dr A does not think (omitted) is the optimal place for her to cope. She thought that her vulnerability to low self-esteem, anxious and negative thoughts would increase significantly if she has to relocate to somewhere she does not want to live. Her evidence was that people can cope to their own psychological detriment. Optimal coping for a parent is to be able to manage stress, continue good contacts with the children, maintain a sense of well-being, and to feel supported and connected. The quality of the parent-child relationships would suffer if a parent was not a feeling good about their situation.
The disadvantage of the three children living in Hobart is that the three children will spend less frequent time with the father. The children will need to travel between (omitted) and Hobart each alternate weekend. The evidence was that the children are coping with travel between the cities each week. It is likely that they will manage travel each alternate weekend.
The effect on Y and Z on a change of their living circumstances by living with the mother will not be significant. The mother has been their primary carer prior to separation and the children are used to being in her care. X lives primarily with the mother and the boys will not benefit by being separated from her any longer.
Ms M said that if the children live with the mother in Hobart, there would be an adjustment for the children, but it will not be devastating for them. She was of the view that the children will be able to adapt.
X and Y are settled at (omitted) Primary School. Y only attends every second week. His teacher reported that he appears a bit lost and takes time to settle. He is receiving extensive assistance from the speech pathologist at the school. The mother said that the school can offer speech therapy to Y two to three times per week.
Section 60CC(3)(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;
The father lives at (omitted), which is approximately 30 minutes from (omitted). The mother lives in (omitted). It is approximately a three hour drive between each residence. The parties have agreed to use (omitted) as the changeover venue.
Ms M raised the issue of whether the mother will continue with transport arrangements in the long term. She was of the view that it may be difficult for the mother in the long term because she does not have a driver’s licence, and she supports herself on Centrelink benefits.
The mother has been able to arrange the transport of the children since May 2012. She has been assisted by her parents. She intends to obtain a driver’s licence this year.
I have no concern about the mother continuing to transport the children for the purposes of spending time with the father.
Section 60CC(3)(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 consider that both parents have the capacity to provide for the physical and intellectual needs of the children.
I do not consider that there is a basis for concern about the mother’s physical care of the children. I do not consider that the children will be disadvantaged by being in the mother's care. The father may have a different parenting style to the mother with better routines and standards of housekeeping; however there is no evidence that the mother is not properly caring for the children.
There are no issues raised by (omitted) Primary School, and there are no issues raised by the children's medical practitioners. The medical records demonstrate the mother’s ongoing ability to attend to the physical and developmental needs of the children.
The children have been regularly immunised. There were a number of health checks by the general practitioners and at the baby health clinic when the parents were in a relationship. Z has attended upon specialist paediatric registrars and paediatricians at (omitted) Hospital. There have been no concerns in respect of the children’s weight. (omitted) Practice notes indicate that the mother has been diligent about attending the children’s medical needs.
The mother has ensured the children's attendance at school and has attended to all their health checks. The father accepted that Y’s and Z’s weight and height are satisfactory.
Dr G described Y as a normally growing, robust four-year-old. He said the only concern for all three children is the issue of these proceedings and the friction between the parents.
The father agreed that Y and Z live with the mother on an alternate weekly basis since May last year. He filed a Response in August 2012 seeking an order that the children live with the mother in (omitted). He was asked by Counsel for the mother why he sought that order, if he was so concerned about the mother’s care of the children. He answered that he would not like that arrangement, but it was important for him to have the children living in the same area as him.
Ms M acknowledged that there is little difference of caring for three children for one week compared to two weeks. If the mother is managing well with the children for a week-long period, she did not consider that having the children for a longer block of time will be the demise of her good parenting. She said that the Court would need to consider how robust the mother’s support network is and whether she has family friends or professionals to assist her in Hobart.
The mother is the principal emotional support for X and has the ability to provide for her emotional needs. I consider that she also has the ability to provide for the boys’ emotional needs. The children are attached to her.
The children are also attached to the father. However, I have a concern about the father’s ability to provide for the emotional needs of the children, demonstrated by his actions with X. He has placed his needs before the needs of X on at least two occasions and has not been child focused.
I do not agree with the submission of the Counsel for the mother that what he did was impulsive. He had already made a threat to the mother to tell X in early April. He carried out that threat one month later.
I am of the view that the father has not demonstrated insight into the effect this has had upon X. In his affidavit he expressed regret because his actions resulted in him not seeing X and his relationship with her was damaged. He did not express regret about the upset, confusion and damage he had caused X.
I consider that the father also demonstrated a lack of insight into the effect this has had on X when he said that he suspected that she may have been told to call him Mr Handley and not dad. It was only during cross-examination, that he conceded that it is possible that this has occurred because of X’s confusion. I accept the mother’s evidence that she did not tell X to call the father Mr Handley.
The father was also dismissive of the mother when she tried to talk to him about X playing them off against each other. This had been happening for some time. The father accepted that he did not take this seriously until Ms N took it seriously.
I consider that the mother has behaved in a child focused way in trying to protect X from the upset and hurt that she has suffered as result. The mother has taken her to Ms S for therapeutic treatment. She has supported X through the upset and with her re-introduction to the father.
Section 60CC(3)(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
Y and Z are young children, but have adjusted to the week about arrangements and to the travel. Y has a moderate speech delay. He has been formally assessed and both households are attending to speech exercises with him.
Section 60CC(3)(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;
This subparagraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has a responsible attitude to the children and the responsibilities of parenting.
The father’s actions in respect of X indicated an irresponsible attitude to parenting by the father. He was not child focused and placed his own needs before those of X’s needs.
The father’s action of returning the X to live with the mother meant that she has been separated from living with her siblings.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(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;
Ms M noted that there was a power imbalance in the relationship due to the difference in age, the level of each party’s education, the father’s income. The mother felt the power imbalance. I consider that it is likely that there was an imbalance.
The mother has alleged that the father was controlling of her and verbally abusive towards her during the relationship. She alleged that he has been abusive towards her on changeovers, but did not provide any details of the alleged abuse.
The mother said that there was fighting, screaming and yelling by the father well before the end of the relationship. She conceded that in May 2012 there was an incident in which both parties swore and yelled at each other.
She insisted that the father was emotionally controlling. He would not give her choices about seeing her family and she felt cut off from her family and friends in Hobart.
I am of the view that the father demonstrated controlling behaviour when the father told the mother that if she ever left him he would tell X that he was not her real father. Also the mother said that the father was aware that she was diagnosed with an eating disorder at school, yet he would tell her that he would leave her if she ever got fat. When it was put to him by Counsel for the mother that he used to criticise her for being fat, he answered that “I would not do that.” I prefer the mother’s evidence which I accept.
The mother said the father criticised everything she did, including her parenting of the children and the house work. She gave a number of examples of the father’s behaviour during the relationship, which was usually related to the standard of her housekeeping and the untidiness of the house. I accept the mother’s evidence that the father was critical of her during the relationship. He admitted that he was not satisfied with the amount of housework she was doing. He accepted that there were arguments about housework. The father conceded that recently he sent the mother a text message and told her to “get it together” because she may possibly have been late for changeover due to a doctor’s appointment.
The mother described an incident when she went to see a movie with a friend in February 2012. The father came into the theatre to check up on her. He gave evidence that he found out that the mother had a male called Mr T stay the night when he was away, and he became very distressed. He telephoned her when she was at the movie. He telephoned her parents. He thought she was at the movie with Mr T. He went to the front desk at the theatre and reported that there had been a family emergency, so he could speak with the mother. He discovered that she was there with several friends, not Mr T.
I consider that whilst the father exhibited controlling behaviour during the relationship, I am not persuaded that family violence has been committed. The parties argued and raised their voices, however I am not satisfied that this amounted to family violence.
There is no evidence of any family violence order having been made in this matter.
Section 60CC(3)(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;
It is preferable to make orders that would be less likely to lead to institution of further proceedings. Ms S said that it is a priority for X for this litigation to be ended. Dr G also said that a concern for all three children is the issue of these proceedings and the friction between the parents.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
Parental Responsibility
In this matter the statutory presumption in section 61DA applies in respect of the children Y and Z and is not rebutted. I consider that there are no reasonable grounds to believe that family violence or abuse has occurred.
The presumption of equal shared parental responsibility only applies to parents.[46] However, the Court can make an order that a non-relative have parental responsibility.[47] The father is not X’s biological parent and does not have the benefit of the presumption. However, both parties seek an order for equal shared parental responsibility in respect of all three children.
[46] Section 61DA(1) of the Act
[47] Section 64B(2)(c) of the Act
An order for equal shared parental responsibility requires consultation in relation to any relevant major long-term issue and requires genuine efforts to come to a joint decision.[48] Whilst the parties have had difficulty in communicating since separation, they have been assisted with the use of a communication book. Ms N has been very helpful in assisting their communication. The mother said that she has been assisted by attending a post-separation parenting course. I consider that the father should also attend a course. The finalisation of this litigation should result in a reduction of tension between the parties and an improvement in their communication in respect of long-term issues for the children.
[48] Section.65DAC of the Act
Both parties are involved and committed parents. I consider that it is in the best interests of the children that their parents share parental responsibility for them.
Live with and spend time with
As there is to be an order for equal shared parental responsibility I must apply the provisions of s.65DAA as explained by the High Court in the decision of MRR v GR.[49] I am required to consider whether it would be in the best interests of the children for them to spend equal time with the parties, and whether it would be reasonably practicable for them to do so.
[49] (2010) 240 CLR 461.
The father’s evidence was that he will not move to Hobart because of his and Ms N’s employment. The mother does not want to return to live in (omitted) because her family and support network is in Hobart. If the parents live in different cities, equal time for the children with both parents is impracticable. Even if they both live in (omitted), and equal time is practicable, I consider that it is not in their best interests.
The mother was the primary carer of the three children during the relationship. The father has been very involved in the care of the children during the relationship, to the extent that his employment enabled him to be. The mother has continued to be X’s primary carer since June 2012, and she has shared the care of Y and Z on an alternate weekly basis. The care arrangement for the children during the relationship is a significant factor to which I have given weight in evaluating the living options for the children.
In respect of X, I consider that it is not in her best interests to spend equal time with each parent. X is closely attached to the mother and is in the process of repairing her relationship with the father. The parties have agreed for X to live with the mother and spend alternate weekend time with the father.
I am of the view that it is also not in Y’s and Z’s best interests to spend equal time with each parent. The mother does not work outside the home and is available to care for them and to take them to school and collect them. She is a loving mother. I consider that she has a greater capacity than the father to provide for their emotional needs. I am of the view that she has a better insight into parenting than the father. These are significant factors to which I give weight in evaluating the living arrangements for them. I also place weight upon the sibling relationships. I consider it is in their best interests for the children to live together. I consider that they should remain in the substantial care of and live with the mother.
Substantial and significant time ensures that both parents are involved in the children’s daily routine and can participate in events of significance to the child and parents. I consider that it is in the children’s best interests to spend substantial and significant time with each parent.
This arrangement is reasonably practicable if the parties’ residences are geographically proximate. If the mother lives in Hobart and the father lives in (omitted), this arrangement is not reasonably practicable.
The proposal for the mother to move back to (omitted) was made by the father. He submitted that is it is in the best interests of the children that this occurs so that the children can spend frequent and regular time with both parents.
As I have said, the mother does not want to move back to (omitted). She has a freedom of movement which is significant, but which is constrained by the responsibilities of parenthood and should give way to the children’s best interests.
Dr A gave evidence that the mother could cope if she were to live in (omitted). However, she also said that she has vulnerability to negative thinking, depression and anxiety. Dr A does not believe that (omitted) is the optimal place for her to cope. I place weight on her opinion that there would be a significant impact on the mother if she had to move back to (omitted), rather than making a choice to move. I place weight on her view that, given some of the difficulties the mother has experienced in the past, it is a risk factor for her to feel isolated and the quality of her relationships with the children could suffer.
Ms M also gave evidence that that parents are generally better able to competently meet their children’s needs when they feel supported and thus more content with their lives. The happiness of a child and their caregiver/s are generally intertwined.
Counsel for the father submitted that in accordance with Ms M’s view, it is optimal for the children for both parents to live in the same city. He submitted that if the Court orders Y and Z live with the father, the mother will move to live in (omitted). Counsel for the father further submitted that the Court therefore does not need to make an order directing the mother to move. However, it was conceded this will indirectly achieve the same result.
I consider that there are no factors which indicate the mother should be required to live in (omitted). This is not a matter in which the mother will not promote the children’s relationship with the father. The children will be able to maintain meaningful relationships with both their parents, as their residences will only be a three hour drive apart.
If the children live in Hobart with the mother, their time with the father will, by necessity, be less frequent. However, I consider that this will not diminish the children’s meaningful relationship with the father. I consider that alternate weekend time and school holiday time and time on special occasions will enable them to maintain their meaningful relationships. I consider that the mother will promote the children’s relationship with the father.
A significant matter to which I have given weight is that the mother’s family live in Hobart, where the mother will have the benefit of their support. The mother is not required to demonstrate compelling reasons for a move.[50] Nevertheless, I consider that she genuinely seeks support and comfort from her family. I am of the view that she is genuine in her desire to live in Hobart.
[50] AMS v AIF (1999) 199 CLR 160, A v A: Relocation Approach (2000) FLC 93-035, U v U (2002) 211 CLR 238 and, Bolitho & Cohen (2005) FLC 93-22.
The mother’s desire to live in Hobart does not reduce her commitment to the children’s relationship with the father. She has a willingness and ability to continue to encourage a close relationship between the children and the father I have weighed the children’s best interests with the right of the mother’s freedom of movement. I have considered all the relevant best interest considerations and have reached the conclusion that is in the best interests of the children to live with the mother in Hobart.
I consider that the children will continue to have a meaningful relationship with each parent should they live with the mother in Hobart. The father will continue to spend regular time with them and continue to be involved in their lives.
I certify that the preceding two hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date:6 September 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Jurisdiction
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Procedural Fairness
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