HARDING & CRAWLEY
[2011] FamCA 581
•26 July 2011
FAMILY COURT OF AUSTRALIA
| HARDING & CRAWLEY | [2011] FamCA 581 |
| FAMILY LAW – CHILDREN – Presumption of equal shared parental responsibility – whether the presumption of equal shared parental responsibility is rebutted by family violence allegations FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Child’s best interests – where the mother seeks to relocate with the child to New Zealand – where the father seeks that the child remain in Australia, with or without the mother – consideration of Family Law Act 1975 (Cth), s 60CC(3) factors – relevance of the likelihood of the mother’s partner being able to relocate with the mother FAMILY LAW – CHILDREN – Parenting Order – Enforcement – whether any parenting order made can be enforced in New Zealand |
| Care of Children Act 2004 (NZ) Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
| Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) Cowley & Mendoza (2010) 43 Fam LR 436 Godfrey v Sanders (2007) 208 Fam LR 287 Goode v Goode (2006) FLC 93-286 MRR v GR (2010) 240 CLR 461 Taylor & Barker (2007) FLC 93-345 |
| APPLICANT: | Mr Harding |
| RESPONDENT: | Ms Crawley |
| FILE NUMBER: | BRC6391 | of | 2010 |
| DATE DELIVERED: | 26 July 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 19 July 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr R. Slade-Jones |
| SOLICITOR FOR THE APPLICANT: | Ms Ros Byrne of WP Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr J. Bunning |
| SOLICITOR FOR THE RESPONDENT: | Ms Judith Stewart of Stewart Family Law |
Orders
That all previous Orders be discharged.
That the parents have equal shared parental responsibility for the child, J, born … September 2005, for the major long-term issues relating to the child, and without limiting the application of section 65DAC of the Family Law Act 1975 (Cth) (“the Act”), such issues include but are not limited to:
(a)The child’s education;
(b)The child’s religious and cultural upbringing;
(c)The child’s health;
(d)The child’s name; and
(e)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform each other about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That the mother and father inform each other as soon as is practicable of:
(a)The child suffering any illness, other than minor childhood ailments, or major injury, whilst the child is in their care; and
(b)The details of any professional or other qualified person they consult in relation to the child, as well as authorising that professional or qualified person to release information to the other parent; and
(c)Their respective residential addresses, e-mail addresses, landline and mobile telephone numbers and Skype details and of any change to same, in any event within forty-eight (48) hours.
That the mother and the father authorise any school the child attends to provide school reports, photographs and information relating to the child’s education and extracurricular activities (at that parent’s cost) and both parties are authorised to attend all school functions and events involving the child.
That the child live with the mother in New Zealand.
That the child is to spend time with and communicate with the father at all such times as may be agreed in writing by the parties and failing such agreement, as follows:
(a)Until the child attains eight (8) years of age, the child is to spend one-half of all gazetted New Zealand school holiday periods with the father, being the first half in odd-numbered years and the second half in even-numbered years;
(b)Once the child attains eight (8) years of age, the child is to spend all gazetted New Zealand school holiday periods with the father, save for the Christmas school holiday period, when the child shall spend the first half of that holiday period with the father in odd numbered years and the second half of that holiday period with the father in even numbered years.
For the purpose of the school holiday travel outlined in Order (7), the parties shall each pay for one-half of the costs of the child’s flights between Australia and New Zealand, with the father to purchase the ticket to Brisbane and e-mail documentary evidence of the purchase at least three (3) months in advance of the proposed travel (failing which the proposed travel on that occasion will be suspended) and the mother to purchase the return ticket to New Zealand upon receiving confirmation that the Father has purchased the ticket to New Zealand, provided that with respect to the forthcoming October 2011 New Zealand holidays two (2) months in advance for the father’s purchase of the ticket is sufficient.
That the mother shall use her best endeavours to ensure that, whenever possible, the child is accompanied on flights by a family member.
That the child spend time with the father in New Zealand on any occasion that the father travels to New Zealand provided that:
(a)the child continues to attend her schooling and extracurricular activities; and
(b)the mother is provided with at least seven (7) days’ written notice of the father’s proposal to spend time with the child; and
(c)the father bear his own costs in relation to this travel; and
(d)unless otherwise agreed in writing, changeover for such occasions occur in New Zealand Town 1 at a mutually agreed place with the mother to be responsible for transporting J to and from such changeover locations.
That in the event the child is travelling to Queensland at any other time, the mother shall:
(a)Advise the father at least seven (7) days prior to the travel as to the arrival and departure times for the child; and
(b)Ensure that the child is made available to spend time with the Father at all times the father nominates in respect of the child being in Australia in accordance with the following, including:
(i)For at least two (2) nights in each seven (7) night period;
(ii)In the event that the period is between three (3) and six (6) nights, for at least one (1) night;
(iii)In the event that the period is less than three (3) nights, then for at least half a day.
That notwithstanding the provisions of Order (2):
(a)The mother be responsible for the daily care, welfare and development of the child while the child is living or spending time with the mother.
(b)The father be responsible for the daily care, welfare and development of the child while the child is living or spending time with the father.
That the father be at liberty to communicate with the child by e-mail and mail at all times. For the purpose of e-mail communication, the mother shall establish an e-mail account for the child and teach her how to manage the account and the mother shall be responsible for establishing and maintaining such e-mail account at her cost.
That the mother shall make the child available to communicate with the father by Skype at least three (3) times each week (such Skype call to occur between 5.00 pm and 6.00 pm New Zealand time) and on special days, including the father’s birthday, the child’s birthday, Father’s Day and Christmas Day, when the child is not otherwise with the father.
That the Father be at liberty to communicate with the child by Skype at all other reasonable times.
That each party be at liberty to contact the child by telephone at all reasonable times.
That neither parent denigrate, nor allow any third parties to denigrate, the other parent to, or in the presence or hearing of the child.
That both parents do all acts and things reasonably necessary to promote the relationship between J and both parents.
All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered same.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Harding & Crawley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC6391/2010
| Mr Harding |
Applicant
And
| Ms Crawley |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings concerning the child J who was born in September 2005 and who is therefore now five years and ten months of age.
These proceedings arise because the mother (the Respondent in these proceedings) seeks to have J live with her in New Zealand. The father (the Applicant in these proceedings) is opposed to the mother’s wish for J to live with her in New Zealand.
Whilst the mother’s primary proposal is that J live with her in New Zealand, her affidavit and oral evidence at trial confirms that she would not relocate to live in New Zealand without J. That is, against her strong wishes to the contrary, she would live with J in Queensland in the Town 1 area if she is not permitted to have J live with her in New Zealand.
For his part, if J is permitted to live with the mother in New Zealand, the father is not, for reasons discussed further below, prepared to contemplate his own relocation from Australia to New Zealand.
Whilst the parties addressed their respective primary positions in terms of the Orders they sought in the documents they filed with the Court, neither party provided the form of Orders sought, in written form, in the event of the alternative.
By his Amended Initiating Application filed on 7 June 2011, the father sought various Orders including an Order for equal shared parental responsibility with the major long-term issues relating to the child; and an Order for equal time “week about” care arrangements (aside from holiday periods and other specified occasions). Prior to filing the Amended Application, the father had sought an Order for alternate weekend contact from Thursday afternoon to Sunday afternoon and in the alternate week, overnight on Thursdays (aside from holidays and other specified occasions). Likewise, the Orders sought by the father in his Case Outline Document filed 7 July 2011 were addressed only in respect of his primary position and again, in that document (relevantly for present purposes), an equal time “week about” Order was sought.
However, at trial and after the conclusion of the evidence and after submissions by Counsel for the mother, the father, by his Counsel, Mr Slade-Jones, during final submissions, informed the Court that the father no longer pursued the equal time/“week about” proposal, but sought in lieu an Order for alternate weekend contact from after school on Friday until before school on Monday, and in the alternate week, from after school Friday until 12 noon Saturday.
As Mr Bunning, Counsel for the mother pointed out, that late change in the father’s position meant that neither the mother nor the Family Consultant, Ms E, who provided the Family Report and gave oral evidence at trial, were asked to consider and give evidence about the father’s revised proposal. Nor had the father been cross-examined about that proposal. Ms E’s Family Report and oral evidence about “current arrangements” was against the background that J was spending Friday afternoon to Sunday afternoon on alternate weekends with the father.
Likewise, the Orders sought by the mother in her response filed 24 May 2011 and in her Case Information Document filed 7 July 2011, addressed the Orders she sought only on the scenario that J is permitted to live with the mother in New Zealand.
The respective alternatives were canvassed by the Court with each party during the trial and in particular via their respective Counsel in the course of submissions. Both parties altered, to some extent, their respective primary proposals in terms of the Orders they each sought; and because neither party had specifically addressed in written form the Orders they would seek in the event that their primary position did not find favour; I canvassed in the course of submissions with each Counsel the Orders each party would seek in either event. To remove any potential confusion, I directed that each party, via their Counsel, provide Minutes of Orders which each party sought both as regards their respective primary positions and in the alternative. That is, in respect of the father, I sought to provide him the opportunity to provide, in written form, the Minutes of Orders reflecting his primary position (ultimately) and the Orders he would seek in the event that the Court permitted J to live with the mother in New Zealand. Similarly, I sought to provide the mother with that same opportunity.
Exhibit 1 is the document headed “Orders Sought by the Applicant Father” which addresses the Orders the father seeks with respect to his primary position and, in the event J is permitted to live with the mother in New Zealand, the Orders the father seeks in that alternative.
Exhibit 2 is the form of Orders received from the mother’s representatives setting out the Orders she seeks as her primary position in the event that she was permitted to relocate to New Zealand and the alternate Orders the mother seeks in the event that she is not permitted to relocate the residence of J to New Zealand.
Background to the Dispute
The father was born in 1989 and the mother was born in 1989. The mother, and hence J, are of Aboriginal descent. Their Aboriginal heritage comes from the maternal side of the mother’s family. The mother’s family has their origins with the … people in North Queensland. The mother deposes to having a positive connection with her Aboriginal heritage and recognition of her Aboriginal origin and I find that this is so. The mother celebrates Aboriginal culture and gives the example of her sister’s recent marriage celebration, including traditional dancing when J and the mother were involved in the bridal party.
The mother deposes that she and the father, “…had a brief on and off relationship from July to December 2004 when we were fifteen year-old school students at Town 2 High School.” For his part, the father deposes that the parties met in early 2004 and “formed a relationship”. According to the father, “…the relationship only lasted a month or two, and I then did not see the mother again until approximately October 2004. Our relationship was very rocky.”
On either version, the “relationship” commenced when the parties were barely fifteen years of age, and ended soon after. It does not appear that the “relationship” on the evidence before me, ever comprised the parties co-habiting. On either version, it would appear that the relationship, such as it was, ended at or about the time when the mother became pregnant with J who was born in 5 September 2005. On the mother’s version, when she told the father she was pregnant with J in December 2004, he ended the relationship. On the father’s version, it was after the relationship had ended that he was told in March 2005 that the mother was pregnant. It is not necessary for me to resolve that factual issue and I note that neither party was cross-examined about it.
Both parties advanced evidence before the Court expressing some doubts as to whether the father is in fact the biological father of J. The father deposed to having concerns that he might not be the father, as he was aware of the mother being involved in another relationship at the time she became pregnant. Nevertheless, he asserts that despite some uncertainty as to whether he is in fact J’s father, he was, “…happy to accept the responsibilities of parenthood and wanted to be in [J’s] life.” The father suggests that he is not listed on J’s birth certificate as her father because the maternal grandmother would not allow his name to be noted as the father on the birth certificate because he was not prepared to continue any relationship with the mother.
For her part, the mother deposes that the father would not sign the application for a birth certificate for J, although she acknowledges that he did visit her in hospital after the birth. The mother says that the father refused to participate in DNA testing procedures, but that in 2009, he signed a Statutory Declaration that he was the father. In her oral evidence, the mother suggested to the effect that she had had sexual relationships with five men other than the father at about the time she fell pregnant with J.
Despite this evidence, both parties have proceeded on the basis that the father is in fact the biological father of J. Neither have sought to pursue any application for parentage testing to establish anything to the contrary. I note that on 7 June 2007 both parties consented to an Order that provided, inter alia, for the father to declare his paternity of J.
As already noted, the parties’ relationship had ceased well before the birth of J in September 2005. The parties had both not long turned sixteen years of age when J was born.
After the birth of J, the father deposes that the mother would bring her to his home two or three times a week and he would then spend time with J for approximately half a day.
Some conflict arose between the parties in July 2006. On the father’s version, at that time, when the father was then living with his mother and stepfather, the mother stated that she could no longer cope with caring for such a young child, and placed J into the care of the father. On the mother’s version, the father would not return J to her care following time he spent with her. Neither party was cross-examined on this issue. It appears J came into the father’s care on 11 July 2006 and by 17 July 2006, there was something of a confrontation between the father on the one hand and the mother and maternal grandmother on the other when the father refused to return J to the mother’s care. That led to the mother commencing proceedings in this Court. However, as a result of the involvement of a Family Consultant, who prepared a report, J was returned to the mother’s care and final Orders were made by consent on 7 June 2007. The essence of those Orders was that J was to live with the mother and spend each alternate weekend with the father from 4.30 pm Friday to 4.30 pm Sunday and each alternate Thursday night from 4.30 pm until 7.30 am the next morning.
Those Orders provided for a review to occur between July and November 2009. On 7 August 2009, the parties attended at a Family Relationships Centre and entered into a Parenting Plan. The Parenting Plan provided for J to spend time with the father each alternate weekend from Friday to Monday and on the other alternate weekend from Sunday to Monday. It seems that throughout the period from the time of J’s birth in September 2005, aside from the conflict in July 2006, the parties were able to negotiate and facilitate the arrangements referred to for J with very little conflict. Given their young ages at the time of J’s birth, it is to the credit of both parties that this is so, but in particular in circumstances where the mother found herself essentially a full-time mother at a young age responsible for the primary care of a child, I find it to her credit that she was facilitative of the arrangements referred to.
The affidavit and oral evidence at trial confirms that there were relatively minimal and trivial complaints by both parties throughout the period, leaving aside the specific conflict in 2006 which itself did not loom large in the proceedings before me. For his part, the father suggests that the mother was somewhat inflexible when arrangements were sought to be changed by him, but he does not give any specific examples of that or evidence that that created particular difficulties. For her part, the mother’s concern throughout this period was that during the times J was meant to spend time with the father, he was in fact working and J would spend the majority of the time with the father’s parents. Her oral evidence at trial confirms that she questioned his commitment to J but, as already noted, the arrangements continued.
Up until sometime in 2009, the mother had been living on her own with J in the Town 3 area. She was not in employment and was a full-time mother for J. Her own mother, the maternal grandmother of J, had been living on the Gold Coast and had been providing the mother with support. However, by October 2009, the maternal grandmother moved from the Gold Coast to Perth and the mother found herself with limited family support. She then wished to relocate with J to New Zealand to live with her father, stepmother and their children, her half-siblings. The mother’s father, Mr Crawley, has lived in New Zealand Town 2 on a farm about twenty kilometres away from the township for about eight years with his partner. They have three children, K, aged 6 years, L, aged 4 years and M, aged 2 years, who are thus the mother’s half-siblings.
The mother deposes that she wanted to move to New Zealand to be with her family and for the emotional support she could receive from them, and on that basis she raised with the father that prospect.
On the mother’s version, the father initially agreed that the mother could relocate to New Zealand with J, but even on the mother’s version, it seems to have been a reluctant agreement, with the father using the words, “I suppose”; but even on her version the father changed his mind and would not discuss the matter further and made it clear that he was not agreeable to the relocation.
For his part, the father rejects the proposition that he ever agreed to the mother relocating to New Zealand. I accept his version on this point. He agrees that the parties negotiated an agreement for the mother to take J to New Zealand for holidays. In late 2009 or early 2010, the mother took J to New Zealand for a holiday; there was a further two week holiday to New Zealand with J in approximately February/March 2010. It seems that throughout this period the mother was seeking to raise with the father the prospect of her relocating permanently to New Zealand with J.
The father deposes that in approximately April 2010, the mother again asked him if he would consent to her relocating to New Zealand with J, but that he reiterated that he was not prepared for J to live in New Zealand. The mother does not dispute that version and I accept the father on his version. The parties both agree that the mother requested that the father attend mediation at a Family Relationship Centre. The mother sought mediation in the hope of convincing the father to accede to her wishes about New Zealand, but because the father knew that was the purpose of the mediation, he elected not to attend or participate in such mediation. This makes it clear that it must have been plain to the mother that the father was not giving any consent, qualified or otherwise, to J living in New Zealand.
Despite this, on 29 June 2010, the mother relocated with J to New Zealand in circumstances where she had no consent from the father to so do, and she did not then inform the father of her intentions. It appears that the father only discovered that the mother had departed Australia when, on 8 July 2010, he attended at J’s child care centre to collect her in accordance with the arrangements provided for in the Parenting Plan earlier referred to. On the following day, 9 July 2010, the father filed an application in the Federal Magistrate’s Court at Brisbane seeking that the child be placed on the Airport Watch List. On 30 August 2010, the father appeared before Federal Magistrate Spelleken, who advised him that he would need to make an application under the Hague Convention for J’s return to Australia.
The mother suggests that the father had her contact details in New Zealand and that there was no attempt by the father to contact her. That criticism rings hollow in circumstances where the mother had created a situation where J, who had been seeing her father each weekend over a lengthy period, ceased to have any contact with her father at all because of the mother’s unilateral conduct.
It seems that the father may not have acted as proactively thereafter as might be expected. It appears the Hague Convention proceedings were not instituted until sometime in December 2010. The father says that he had difficulties obtaining J’s birth certificate, but I have difficulty reconciling the four month delay between 30 August 2010 and when the Hague Proceedings eventuated. Nevertheless, the more telling result of what occurred is that the mother did nothing about facilitating any form of contact between J and her father between her departure from Australia on 29 June 2010 and Easter Sunday in April 2011, when there was some contact via Skype. By that time, the mother had been served with the Hague Proceedings (on 27 February 2011).
The mother’s conduct in removing J in the circumstances described, and in compounding that outrageous conduct by doing nothing thereafter to facilitate and maintain J’s relationship with the father is reprehensible given its consequences for J. Moreover, it is also important evidence that requires careful consideration in the determinations the Court must make and is discussed further below.
On 24 April 2011, J and the father communicated via Skype. The mother deposes that on 27 April 2011, the parties attended mediation in New Zealand in an attempt to resolve issues. The mother maintained a wish to remain in New Zealand with J but could not reach agreement with the father in relation to this. She then agreed to return to Brisbane with the intention of filing an Application seeking Orders permitting her to relocate to New Zealand with J.
There was therefore no contact between J and her father for some ten months between 29 June 2010 and 24 April 2011 via the Skype communication referred to. There was apparently several more communications via Skype between 24 April 2011 and when the mother voluntarily returned to Australia with J on 1 May 2011.
Whilst in New Zealand, the mother met, in August 2010, Mr B, a citizen and resident of New Zealand. The mother commenced cohabitation with Mr B in January 2011 and they married on 11 March 2011. The mother is currently in an advanced stage of her pregnancy with Mr B’s child and they are expecting the birth of that child in late August 2011.
In April 2006, the father commenced his relationship with his current partner, Ms F, and they commenced living together in late 2006. They have a child together, C, who was born in October 2008. C is thus two years and nine months old.
Since the mother’s return to Australia with J on 1 May 2011, J’s relationship with her father, Ms F and C has, fortunately, resumed. The father has had weekend overnight contact with J commencing on the weekend 6 to 8 May 2011. The father had further weekend time with J on the weekend of 27 to 29 May and again on alternate weekends thereafter. As I understand the evidence, J had spent weekend and overnight contact with her father on about four weekends between May and the Family Consultant Ms E undertaking her interviews for the Family Report. Ms E undertook her interviews on 27 June 2011, which was after a weekend when J spent time with her father from 24 to 26 June 2011.
Current Arrangements
The mother and J currently live with the mother’s paternal grandmother, Ms N, in a two bedroom unit in Brisbane Suburb 1, in what the mother deposes to as a short-term arrangement. The mother is in receipt of social security benefits and is not in any paid employment and, as noted, is in an advanced stage of her pregnancy. In the event that the mother is not permitted to relocate with J to New Zealand, she intends to live in the Town 1 area for family support. Her maternal grandmother lives in the Town 1 area, and the mother’s uncles and cousin also live with the mother’s maternal grandmother in a five bedroom home. There are five adults living in the home with two spare bedrooms upstairs. As a temporary measure, the mother, J and the mother’s newborn would live with the mother’s maternal grandmother whilst the mother sources independent accommodation in the same area. The mother has no wish to return to the Gold Coast area, primarily because she says she has no family support on the Gold Coast.
The father lives in Town 3 with his partner Ms F and their daughter, C (J’s half-sister), in a rented four bedroom home. The father is employed as a manual worker and, as his work is primarily seasonal, currently works about three days per week.
As noted, J is currently spending time with her father on alternate weekends from Friday until Sunday.
The father has recently commenced paying limited child support. He is assessed at the minimum level of $20.00 per month, but recently started paying approximately $40.00 per month, which he understands to be at that level to clear arrears with his assessment remaining at $20.00 per month. There is no evidence before me as to the extent of the arrears. In this respect, there was no evidence before me to suggest that, other than the times in which J has been in his care, the father has provided anything significant in the way of financial support for J or the mother ever since J’s birth.
Statutory Framework
Part VII of the Family Law Act 1975 (Cth) (“the Act”) (sections 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); the principles which underlie those objects (s 60B(2)); and the specific right of an Aboriginal or Torres Strait Islander child to enjoy their culture. Section 60B(1) provides:
“(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.”
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests. That requirement is supplemented by the further requirement for the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in the particular respects identified in s 60CC(4).
Section 65D of the Act provides the source of the Court’s power to make a parenting order. Section 65D(1) (including the heading) is expressed in these terms:
“65D Court’s power to make parenting order
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.”
Section 65D(1) expressly provides that the power to make a parenting order is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4) of the Act).
As can be seen, s 61DA(1) provides for a presumption relating to the allocation of parental responsibility but does not provide for a presumption about the amount of time the child spends with each of the parents. The latter is dealt with by s 65DAA and subsection (1) of that provision provides as follows:
“(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Subsection (2) requires, where a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child and the Court does not make an Order (or include a provision in the Order) for the child to spend equal time with each of the parents, the Court 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.”
“Substantial and significant time” within the meaning of subsection (2) is defined by subsection (3) as follows:
“(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
The determination of “reasonably practicable” depends upon consideration of subsection (5) and the matters there identified.
In MRR v GR (2010) 240 CLR 461, the High Court observed (at para [9] of the judgment):
“[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires 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.”
At [13], the High Court held:
“[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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-section (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
Further, of particular significance to a case such as this, where there is the prospect of international relocation of a child, I note that at paragraph [15] of the judgment, the High Court held:
“[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.”
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of this Court considered an international relocation case subsequent to the decision of the High Court in MRR v GR (supra). At paragraph 140 of their reasons, the Full Court said:
“…however, we are of the view that, ordinarily, a consideration of the relevant matters in s 60CC of the Act would be undertaken before a concluded view could be formed that the presumption of equal shared parental responsibility applies. That does not mean that such a finding could not be made at an early stage of reasons for judgment, provided that it was clear that it was made having regard to findings made in relation to the s 60CC considerations.”
At paragraphs 334 and 335, the Full Court dealt with the order in which the statutory provisions in Part VII are best considered and said:
“Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other words, the matters in s 60CC could be described as the “best interests” considerations, and they must be considered.
There is a possible overlapping of a number of considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents, may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of the child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of the child including the likely effect of separation from the parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2).”
After considering the requirements in section 65DAA, at paragraph 374 of their reasons, the Full Court set out their reasons as to how following the 2006 amendments to the Act and the decision of the High Court, a trial judge should proceed. Their Honours said:
“As to the best interests requirement of s 65DAA of the Act, in our view, it is not necessary to repeat all of the findings made in relation to the primary and additional considerations in s 60CC of the Act. However, at some point, the best interests considerations must be considered in the context of, or by reference to, the requirements of s 65DAA(1)(a) and (2)(c) of the Act.”
At paragraph 375 of their reasons, the Full Court said:
“Then the trial judge was required to consider 65DAA(1)(b) and (2)(d) of the Act. Section 65DAA(5) sets out matters that the Court must have regard to in determining whether it is reasonably practicable for the child to spend either equal or substantial and significant time with the parents.”
The Full Court, by reference to authority, affirmed the principle that the court must meet the legislative requirements under subsection (5) of s 65DAA as a mandatory requirement.
In Cowley & Mendoza (2010) 43 Fam LR 436; [2010] Fam CA 597, Murphy J, in a parenting case involving the mother’s proposed relocation to live in Brazil with the children undertook an analysis of authorities emanating from the Full Court of this Court as to the preferred legislative pathway that ought be followed by a trial judge and reviewed those authorities in light of the decision of the High Court in MRR v GR (2010) 240 CLR 461.
At paragraph 41 of his judgment, Murphy J summarised the principles as follows:
“The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) 36 Fam LR 422; (2006) FLC 93-286; [2006] FamCA 1346 (Goode)), would, then, appear to me to require a court contemplating he making of parenting orders to:
·first apply the presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
·next, to make findings as to whether any “family violence” or “abuse” as each is defined, exists;
·further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
·determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
·if the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances: ss 65D; 60CA; 65AA. (As the Full court put it in Goode, the enquiry about best interests is “at large”);
·if the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s 65DAA) then proceed to:
omake findings as to whether the subject children’s best interests are best met by an order for equal time; and
omake findings as to the matters prescribed in s 65DAA(5), and, as a result;
omake findings about whether an equal time order is reasonably practicable (that is, in the words of the high court, make “a practical assessment of whether equal time parenting is feasible”); and
oif it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
·if neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests: ss 65D; 60CA; 65 AA.”
I respectfully agree with Murphy J’s analysis of the relevant principles and the legislative pathway suggested and I intend to follow that approach to this case having regard also to the Full Court’s judgment in Collu & Rinaldo (supra) to which I have referred.
Best Interests and Parental Responsibility
As I propose to make parenting orders in relation to J, I must apply a presumption that it is in her best interests for her parents to have equal shared parental responsibility for J. (s 61DA(1)).
This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence as that term is defined in the Act. (s 61DA(2)).
There is some evidence before me having the potential to substantiate a finding of “abuse” and “family violence” within the meaning of the section.
At paragraph 13 of her affidavit for trial, the mother deposed:
“13. I have had difficulties communicating with [the father] in the past. [The father] has verbally abused me in front of J. [The father] has made comments such as ‘Fucken Coon’ in the presence of J. I am part Aboriginal, as is J. In 2006, [the father] and I both consented to the making of a protection order against each other, and these orders have now expired. J and my mother were named persons on the order where I was the aggrieved and [the father] was the respondent.”
As to the alleged verbal abuse, it is unclear on the evidence as to when this occurred and whether there was more than one occasion. That is, it is unclear to me how old J was on any occasion it is alleged that such abuse occurred. It seems to me that it is a reasonable inference, given the contents of the paragraph referred to, that the abuse, if it occurred, occurred in conjunction with the 2006 event earlier referred to. Verbal abuse aside, the respective versions of the parties describing that event would not lead me to be satisfied it was in fact an event of “family violence” within the meaning of that term as it is defined in s 4 of the Act and it seems to me that the active players in that event were parties other than the mother and father themselves.
Whilst the father admitted to the Family Consultant, “one occasion when he verbally abused [the mother]…”, I do not recall it being put to the father in cross-examination that he had engaged in any consistent pattern of verbal abuse of the kind alleged. That is perhaps unsurprising because he does not address that in his affidavit. In fairness, this matter has come on for hearing on an urgent basis, and neither party had any realistic opportunity to file any affidavit in reply.
In the event I am not sufficiently satisfied that there are reasonable grounds to believe that there has been abuse or family violence within the meaning of the section such as to displace the presumption.
No party cross-examined the other in respect of the 2006 incident, and no cross-examination was directed at either party as to any prospect of the mother having any fear or apprehension about the father. Whilst references to that are contained in the Family Report, it is also to be noted that by the end of the report process, Ms E obtained the agreement of both parties to participate in a joint session and Ms E noted in her report and in her oral evidence before me that they were able to engage in the joint session in a, “…respectful and participatory manner and interaction with each other.”
Neither party has ever suggested in respect of the other party that they present any risk of harm to J or that J would be exposed to any abuse, neglect of family violence whilst in the care of the other party.
“Relocation” Cases
Reference to the “best interests” considerations in s 60CC of the Act makes it plain that in every parenting case it is necessary to consider the relevant factual history of the parties; the relevant factual history relating to the parenting of the child the subject of the proceedings; the current arrangements as well as the proposals of each party for future parenting arrangements, amongst many other considerations.
In other words, the process is not undertaken in the abstract or in a theoretical context, but must have regard to the particular child and the particular past history of that child and his or her parents with future parenting proposals considered in the context of that background.
Whilst the statutory framework does not deal differently or specifically with cases involving a proposed relocation from other parenting cases, such cases attract the description of “relocation cases” because they bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests on the one hand, and the legitimate and competing interests of parents on the other. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.
The difficulty with the balancing task involved is no less in the present case.
The Court is not relieved of that difficulty where, as here, a mother says she will stay and not relocate if she is not permitted to relocate with her child, as to embrace that election, without more, would involve the Court in a failure to take into account a party’s legitimate interests.
By the same logic, the Court is not bound by the parties’ proposals in the sense that only one or other proposal can be reflected in parenting orders. The statutory imperatives demand that the Court must consider proposals which meet the “best interests” criteria independently of the proposals of the parties, although, of course, the parties’ own respective proposals must be carefully considered and taken into account. It is essentially by reference to the parties’ competing proposals from which the starting point of the assessment of “best interests” considerations proceeds.
I therefore turn to consider the parties’ proposals in advance of the “best interests” considerations that I must assess.
Each of the parties seek an Order for equal shared parental responsibility. Aside from abuse and family violence, the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (s 61DA(4)).
Having regard to the findings I make as outlined below with respect to their “best interest” considerations, I could not be satisfied that it would not be in J’s best interests for her parents to have equal shared parental responsibility for her. I find that it is in J’s best interests for her parents to have equal shared parental responsibility for her and that presumption is not rendered inapplicable by reasons of abuse or family violence. I find that there is no evidence that would satisfy the test that it would not be in J’s best interests for her parents to have equal shared parental responsibility for her.
Parenting Proposals of the Parties
The Mother’s Proposals
The desire of the mother to relocate to New Zealand arose in 2009 at a time when, her own mother having moved to live in Perth, the mother found herself living alone with J at Town 3; was not in employment, and was a full-time mother caring for J. She wished to move to New Zealand to be with her family and for the emotional support she would receive from them.
The mother’s desire to relocate to New Zealand is obviously heightened by reason of her relationship and marriage to Mr B and the fact that she expects to give birth to their first child in late August 2011. The primary proposal of the mother is that J live with her in New Zealand, with J’s relationship with her father then facilitated via Skype communication three times per week; an e-mail account she would set up for J; initially half New Zealand school holiday contact when she would meet half the cost of J travelling to Australia to be with the father; and contact at any time the father is able to travel to New Zealand; moving to, from the time J is aged ten years, all holidays except for a continued equal sharing of the long Christmas holiday.
On the father’s oral evidence at trial, he would envisage the possibility, if J were living in New Zealand, of his being able to travel to New Zealand, “…once per month or every second month.”
If the mother lived in New Zealand with J, she would live with her husband Mr B and his child, Y, born in August 2005. Y lives with Mr B on a full-time basis and has been living in his sole care since Mr B separated from Y’s mother, Ms O, in about July 2010. It appears that Y’s mother has had contact with Y on a fairly limited basis since those parties separated, in the order of about once per month, although the evidence suggests that Y has not seen her mother since about April this year.
Mr B gave oral evidence that he had instituted proceedings in New Zealand to formalise parenting arrangements with respect to Y. He seeks an order for Y to live with him and to have only supervised contact with her mother. It is unknown what attitude Y’s mother has to that.
If living in New Zealand with J, the mother would be dependant upon Mr B for financial support. He is employed on a full-time basis as a skilled labourer working for N Company. Mr B deposes to working forty hours per week and earning approximately $27.45 NZ per hour. He leaves home for work at about 6.30 am and returns at about 4.30 pm. If living in New Zealand, the mother would have her brother, Mr R, aged 21 years, living in the home. Mr R has Autism/Asperger’s Syndrome and requires some care which would be provided by the mother. Mr R works three days per week as an unskilled labourer. In her oral evidence, the mother describes Mr R as having the mentality of a teenager. She says that Mr R and J have a very close relationship. In New Zealand, the mother and J would live in a three bedroom home in New Zealand Town 2. J and Y would share a bedroom. J had been attending grade one at New Zealand Town 2 Primary School (as was Y) this year prior to the mother’s return to Australia with J and if allowed to return to New Zealand, J would resume her schooling there. Living in New Zealand Town 2 would mean the mother would be in close proximity to her father, Mr Crawley, who lives on a farm about twenty kilometres away. The mother would then be in contact with her stepmother and half-siblings, K 6 years, L 4 years and M 2 years. K is in year two at the New Zealand Town 2 Primary School.
Thus, living in New Zealand, J would be in the primary care of the mother and would continue the relationships with the other children and adults referred to against the background that she was living with her mother in New Zealand relatively recently and from the end of June 2010 until May 2011.
As can be seen from Exhibit 2, on the mother’s primary proposal, J would, until she was ten years of age, spend time with the father in Australia for one half of each of the gazetted New Zealand school holiday periods and from when J is ten years of age, for the whole of the New Zealand gazetted school holiday periods save for a sharing of the Christmas holidays. In addition, the mother would facilitate Skype communication three times per week and J would spend time with her father in New Zealand on the occasions he was able to travel there. The mother continues to have family in Australia and she further proposes that on occasions when J is travelling to Australia, that there be further opportunities for J to have contact with her father.
As already noted, if J is not permitted to live with the mother in New Zealand, the mother is adamant, I find, that she will not go to New Zealand without J.
Forced to remain in Australia, the mother harbours hopes that sometime in the future Mr B might be able to relocate to Australia with Y to be with her. The father’s Counsel submitted that it was realistic for the Court to proceed on the basis that the prospect of Mr B relocating to Australia with Y was a realistic prospect for the Court to consider.
The reality of the situation is that Mr B would need to undertake further training, involving somewhere between eight and sixteen weeks, to have transferrable skills to make him an employable prospect here in similar work to that which he currently performs in New Zealand. More significantly, Mr B deposes to the fact that Y’s mother is unlikely to consent to Y being allowed to move to Australia with him. Obviously, it is not Mr B’s desire to relocate from his home and family in New Zealand. The outcome of the current New Zealand proceedings concerning Y is obviously not yet known. Even if Mr B succeeds in obtaining the orders that he currently seeks, it is completely unknown whether he would obtain Orders allowing him to relocate Y to Australia. I am satisfied that Mr B himself would not relocate to Australia without Y.
Whilst, as already noted, the father’s Counsel submitted that it was realistic for the Court to proceed on the basis that there was a realistic prospect of Mr B relocating to Australia with Y and that this was a realistic prospect for the Court to consider, it seems to me that there are difficulties with that proposition. In Taylor & Barker (2007) FLC 93-345; (2007) 37 Fam LR 461; [2007] Fam CA 1236, the Full Court rejected a ground of appeal to the effect that the Federal Magistrate should have made a finding about the likelihood that if the mother was not permitted to relocate with the children to North Queensland, her partner (with whom she had a child) might come to live with her in Canberra. This decision seems to be authority that the possibility of a relocating parent’s partner moving to live in the place where the child has been living cannot or ought not be taken into account in a case such as this. In any event, on the evidence before me, I would not be prepared to find that there is a likely or realistic prospect of Mr B relocating to Australia either in the immediate or short-term future or indeed even in the long-term as, on his evidence, which I accept, he would not relocate to Australia without Y and at this stage, that prospect must be regarded as an unknown one in circumstances where the outcome of Mr B’s proceedings in New Zealand is unknown.
Father’s Proposals
Presumably because it is the mother’s case that she will not live in New Zealand if she were not permitted to have J live with her in New Zealand, the father’s proposals are predicated upon the mother remaining in Australia with J. As already noted, the father’s initial proposal for weekend time moved to the proposal in his Amended Application filed 7 June 2011, for a shared care/week about arrangement, but by the end of the trial the father resiled from a position of seeking an equal time/shared care arrangement and reverted to a proposal of alternate weekends plus an overnight in the off week, together with holiday time and special occasions.
Thus, on the father’s primary position, J would live with the mother in sufficient proximity to the father’s present residence in Town 3 to make the contact arrangements he seeks reasonably practicable.
The father works as a manual worker. In the off-peak period, as it is currently, and which lasts for about 3.5 months per year, there is less work available to the father. He works less days and for less hours and on the days he works, works from about 6.30 am until 2.30 pm or 3.30 pm. For the majority of the year in the peak season, he works from 6.30 am to between 3.30 pm and 5.30 pm. I understand that this is Monday to Friday work and that the father does not undertake any employment on the weekends.
The father’s partner, Ms F, is not in employment and is available for the full-time care of their daughter C and has in the past and will in the future assist the father in his care of J at times when J is with him. Ms F deposes to the fact that if the mother wanted to return to New Zealand but was prepared to leave J in the father’s care, she would be fully supportive of such an arrangement and would be prepared to care for J at all times when the father was not available to do so.
On the father’s primary proposal, J would be living with her mother, presumably in the foreseeable future, in the Town 1 area (given the mother’s position) and he would seek contact from after school Friday until before school Monday in each alternate week and in the other week from after school Friday until 12.00 noon Saturday. In addition, he would seek half school holiday contact and contact on special occasions in relation to birthdays/Christmas and Easter.
In respect of the father’s primary position, Exhibit 1 contains the Orders sought by the father and Exhibit 2 contains the Orders the mother would seek and postulates the Orders sought by each party if J resides in Australia. The difference of significance (on that scenario) is that the father would have his alternative weekend contact concluding on Monday morning, whilst the mother proposes a 5.00 pm Sunday conclusion.
On the father’s proposal, J would spend regular weekend time with the father; his partner, Ms F, and their two and a half year-old daughter and J’s half sibling, C. The father also deposes to the fact that when J spends time with him, she also has the opportunity to spend time with her paternal grandmother, Ms A, the father’s stepfather, Mr S, the father’s sister, Ms E, and his brother, Mr D, as well as Ms E’s daughter, X, and the father’s grandmother, Ms Z.
The father is adamant that if J is permitted to relocate to New Zealand with the mother, the father will not himself relocate to New Zealand. As already noted, the father has maintained a relationship with Ms F since about mid-2006 and they commenced co-habitation in late 2006. As also noted, they have one child together, C, who was born on 28 October 2008. At paragraph 39 of his affidavit, the father deposes:
“39. It would be impossible for me to move to New Zealand because my partner, [Ms F], has two sisters living in the [Town 2] area, whilst her mother lives at [Town 4]. [Ms F] has a very close relationship with her mother and two sisters and her three nephews aged seven, five and two years and her niece aged three years.”
I interpolate from this that the father would not relocate because Ms F would not accompany him and leave her home and family here. Likewise, all of the father’s family reside here and he has no family in New Zealand.
I therefore find that there is no prospect of the father relocating to New Zealand in order to live proximately to J if her relocation to that country is permitted.
Determining best interests – section 60CC considerations
By way of overview, and before turning to any of the individual considerations set out in section 60CC, it seems to me to be important to record several observations. First, to the extent that one or more of the considerations set out in the section requires a review of the parties’ history in their parenting of J so as to make the assessments and value judgments called for, it is important to highlight that when J was born in September 2005, both parents were barely sixteen years of age. They are now both only twenty-two years of age. Any criticisms by either party of the other party’s past conduct or attitude must be viewed in the light of that reality. Likewise, it seems to me that the Court ought be slow to assume that past conduct is necessarily an entirely reliable guide to future conduct.
Second, J has always been in the primary care of her mother. That is in circumstances where the parties have never co-habited and J’s experience of care with her father has, in more recent years, been weekend contact and otherwise relatively short periods. Against that background, it is unsurprising that the Family Consultant, Ms E, assesses that whilst J is attached to both of her parents, her primary attachment is to her mother. I accept that assessment. When providing her Family Report and indeed when giving oral evidence at trial, Ms E understood (as did the Court) that the father’s proposal was for an equal shared care/week about arrangement. Ms E assessed such an arrangement as not in J’s best interests and her assessment was to the effect that a continuation of the “current arrangements” plus only one overnight period in the alternate week would be preferred as being in J’s best interests as compared with the proposal for a move to any further extension of time. I accept these assessments.
Third, as has already been noted, the father ultimately changed his proposal and no longer sought any orders for shared care or equal time. Implicit in that changed approach is the recognition by the father that J’s best interests would be served by remaining in the primary care of her primary attachment figure, the mother.
Fourth, some of the findings I have already made are relevant to the s 60CC considerations and indeed the considerations mandated by s 65DAA. Moreover, as has already been referred to, there is significant overlap between some of the statutory imperatives as they appear in different places within Part VII and whilst I have attempted below to make specific findings with respect to the particular “considerations” referred to that I am obliged to take into account, I have had regard to the overall facts and findings in reaching conclusions, without necessarily repeating each and every of the underlying facts or findings in that process.
For reasons already identified, I will commence my consideration of the section 60CC “best interests” considerations by reference to subsection (3).
Section 60CC(3) “additional considerations” (including s 60CC(4), (4A) and (6) consideratons)
(a) views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Family Consultant, Ms E, assessed J to be a very engaging, talkative and intelligent child who presented as well-dressed and appropriately groomed. Ms E’s assessment is that J appears to be meeting developmental milestones expected of her age group. (paragraph 30 of Family Report). Relevant to the assessment of J’s views are the following extracts from the Family Report:
“30. [J] aged five was a very engaging, talkative and intelligent child who was well dressed and appropriately groomed. [J] appeared to be meeting developmental milstones expected of her age group.
31. J understood that the purpose of her interview ws to “Answer what mummy says”. When asked [J] said that her mother had not informed her of what to say but had asked her prior to the interviews whether she wanted to live in New Zealand or Australia and said that her opinion about this would be elicited.
32. [J’s] informed likes and dislikes about each family member were typically within socially accepted behaviour and parenting practices other than her description, if accurate, of occasional, and in my opinion inappropriate physical disciplining of her by her mother with a fly swat and witnessing again in my opinion inappropriate physical disciplining by [Mr B] of his daughter [Y], apparently leaving hand prints on her torso.
33. [J] appears to be aware of the acrimonious relationship between her parents, remarking that her father had sworn at her mother and further expressing the view “he’s a lot nicer to mummy (now) but she doesn’t want to see him or listen to him”. Apparently [the mother] has told [J] that they “Came back (to Australia) because daddy wants me” and that as a result and contrary to [the mother’s] wishes [Mr B] will not be present for the baby’s birth.
34. [J] remarked “Daddy loves me more than he used to” and said that she wanted to spend more time with her father. [J] viewed that whether this occurs is her mother’s choice.
35. [J] became sad when she spoke about living either in Australia or New Zealand. She described missing her friends in New Zealand. She equally described missing her father when she was there and foresaw that if she relocated “I won’t see daddy (which made her feel) very very sad… I don’t want to leave daddy here… [C] really loves me… I want daddy to live in New Zealand”.
36. [J] was formally observed with her father, step mother and two and a half year old half sister [C]. Brief formal observation of her with her paternal grandmother also occurred. Later, she was formally observed with her mother and step father. [J’s] interaction with her step sister [Y] was informally observed throughout the day.
37. [J] displayed an easy manner with all family members with whom she interacted warmly and confidently. [J] greeted her father and paternal grandmother by jumping into their arms and kissing hem. She both initiated and was receptive to affection by both the maternal and paternal family members. [J] also asked where her mother was at one point. The adults participated in play with [J], predominantly assisting her with completing a fairy craft project and [J] willingly followed her father’s suggestion that she allow [C] to help, gently instructing and helping her younger sister.
38. Of note was [J’s] reaction to separating from her father at the conclusion of their observation session. [J] clung to [the father’s] leg, sobbed uncontrollably and repeatedly said “I want you”. [The father] picked [J] up, cuddled her, patted her back and spoke soothingly to her. [J] only calmed after the paternal grandmother asked whether she would like to call her father during the week and [the father] had given her a piece of paper with his telephone number written on it to give to [the mother]. [J] remained teary when she returned to the childcare room.”
Importantly, the Family Consultant, Ms E, reached the following conclusion concerning the weight that ought be given to the views expressed by J:
“52. At five years of age [J] does not possess the cognitive, social or emotional capacity to make decisions about where she should live. As such it is my opinion that whilst her wishes and feelings should be heard they cannot be afforded significant weight.”
I find that beyond expressing views reflecting her attachments to both parents, there is no discernible view of J that could be said to be determinative or of assistance in reaching a conclusion as to her best interests. For example, J’s statements recorded in paragraph 35 of the report may be a reflection of her actual experience that when in New Zealand from the end of June 2010 she did not have any contact with her father for the whole period until the last month or so, so that J may equate living in New Zealand as meaning that she would have no contact with her father as compared with what is proposed. I find, based on Ms E’s assessment, which I accept, that in any event it is not appropriate to attach any significant weight to any particular expression of view by J in the assessment process.
Further, neither of the parties or other witnesses raised in either affidavit or oral evidence before me any other evidence as to any discernible views expressed by J that alter the above findings.
(b) the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
On the whole of the evidence, but in particular the assessments made by Ms E which I accept, I find that J has a strong attachment to both of her parents but in light of the considerations earlier discussed, her primary attachment figure is her mother.
So far as J’s relationship with her father is concerned, one of the remarkable features of this case is that despite the fact that J was removed from all contact with her father when the mother relocated with her to New Zealand at the end of June 2010 and no contact was resumed until about April 2011, the evidence of the Family Consultant, as contained in her report, as well as the evidence of each of the father and his partner, Ms F, (which I accept on this point) reflects that a warm and loving relationship between J and her father has nevertheless endured. The father makes the point that even when he first saw J upon her return to Australia, she was immediately delighted to see him and warmly engaged with him.
Likewise, there is nothing in the evidence before me to suggest otherwise than that J enjoys positive relationships with each of the persons referred to by, respectively, her father and mother. That is, J clearly enjoys a positive relationship with C and so too with Y in her respective immediate households, as well as with extended family members on both sides.
Whilst the father urges the proposition that because J was only in New Zealand for eleven months, it is likely that she has closer and better relationships with his extended family than with, for example, Mr B, I am not satisfied on the evidence before me that this is so.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent AND (f) the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional or intellectual needs AND (i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents AND (4) the extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent;
J’s presentation as assessed by Ms E and described above, particularly her presentation as an intelligent and talkative child appearing to have met all of her relevant developmental milestones, is a credit to both of her parents. In particular, the mother is deserving of some credit given her role as primary carer and primary attachment figure.
The troubling evidence relating to these considerations so far as the mother is concerned are the events surrounding her unilateral decision to remove J from Australia and travel to New Zealand at the end of June 2010 until her return, in the face of Hague proceedings, in May this year. Those actions are compounded by the fact that the mother did nothing to facilitate any contact between J and the father until very late in the period prior to her return, again after she had been served with Hague proceedings. Her oral evidence at trial served in many respects to heighten concerns about her conduct. When asked questions along the lines of whether she viewed J’s relationship with the father as important or significant or valuable to J, the mother expressed considerable reluctance to answer any of those questions in the affirmative, and her grudging acceptance of the proposition that it was a “significant” relationship seemed, by the grudging nature of that “concession”, to highlight her view that the relationship was not valuable or important.
Viewed in isolation, the evidence concerning the mother’s removal of J; her failure to facilitate contact; and her oral evidence at trial as to her views as to the value or importance of J’s relationship with her father is deeply troubling. The mother even went so far as to suggest, in her oral evidence, that she had no regrets concerning the circumstances and consequences of J’s removal to New Zealand. Moreover, she conceded in cross-examination that when she went to New Zealand with J, she would have been content with the result that J never again had anything to do with her father, either by way of contact or otherwise.
There is also evidence from Ms F (paragraphs 8 and 9 of her affidavit) and from the father (paragraph 46 of his affidavit), which I accept, pointing to J being exposed to denigration of the father when in the mother’s care and the involvement of J to some extent in these proceedings.
On this evidence, significant questions attend these considerations and in particular the willingness of the mother to facilitate and encourage a close and continuing relationship between J and her father, and her capacity to provide for J’s emotional needs in this respect given the importance to J of her father and the father’s other family members, as is made obvious on the assessment of Ms E.
Balanced against that evidence is the evidence earlier referred to of the extent to which the mother has demonstrated, from the time of J’s birth, a willingness to facilitate contact and the relationship between J and her father, particularly in the circumstances already referred to. Further, it is to be understood that when cross-examined at trial, the mother was facing a proposal from the father for a shared care arrangement if she remained living in Australia with J. I had the impression of the mother, when giving her evidence, that she was reluctant to make appropriate concessions as to the value of the father’s relationship to J when faced with the prospect of the father’s then proposal and I thought her desire to impress upon the court a history of the father not being as engaged with J as he might (from the mother’s perception) infected her attitude and her evidence. There is also the fact that the mother commenced to facilitate the Skype communication in April 2011; voluntarily returned to Australia without contesting the Hague proceedings; and has facilitated the contact referred to since her return; but I hesitate to view these actions in isolation from the Hague proceedings and subsequently these proceedings which in themselves may have been the catalyst for the mother to act more appropriately in J’s interests.
Paragraph 28 of the Family Report crystallises what seems to have been the mother’s view about the father’s commitment to J prior to her return with J from New Zealand in May this year. Paragraph 28 is as follows:
“28. [The mother] was uncertain about whether [the father] prioritised [J’s] needs. For example, she has formed a belief that [the father] was often at work or at social functions when [J] was in his care, and that [J] also spent significant time at either the paternal grandmother or paternal aunt’s home on the weekends. [The mother] also stated that [the father] had not attended any of [J’s] kindergarten events. These issues were to some extent clarified during the joint feedback session, when [the mother] asked [the father] to address her concerns. [The mother] appeared to accept that [the father’s] current workplace was more accommodating of his childcare responsibilities.”
Further, paragraph 29 of the Family Report recorded the following:
“29. [The mother] disagreed that she was unsupportive of [J’s] relationship with her father and said that she believed that it was important for them to maintain a meaningful relationship. [The mother] stated that her reason for wanting [J] to spend half the school holidays with her until aged ten was her belief that [J] would not manage longer periods away from her care. [The mother] was agreeable to regular Skype contact and also to [the father] travelling to New Zealand as frequently as he liked to spend time with [J]. She would not however contribute to his travel expenses. [The mother] proposed to share [J’s] travel costs for school holiday time with [the father].”
Neither party was cross-examined before me specifically on these factual issues but the father himself, in his oral evidence, seemed to acknowledge that he had some greater or renewed commitment to J since she has returned from New Zealand. He made an observation to the effect, “You don’t know what you’ve got until it is gone.” At paragraph 31 of his affidavit, the father deposed:
“31. [J] and I have always enjoyed a close relationship, but I believe that the relationship has strengthened because [J] was not able to spend time with me for eleven months and further, is now able to understand the importance of spending time with me.”
(emphasis added)
Whilst it is curious that the father would put this in terms of a better appreciation on the part of J, I think the proper interpretation is that the greater appreciation is that of the father given his oral evidence referred to. In this respect I note that paragraph 14 of the Family Report records:
“14. [The father] described a close and loving relationship with [J]. “She means the world to me” and said that his appreciation of their relationship has only intensified by the ten months in New Zealand. …”
Likewise, the affidavit of Ms F, the father’s partner, caused to be filed by the father in these proceedings, contains at paragraph 6 the words, “Since returning to Australia, I have noticed the very close bond that [J] has with her father…” The affidavit is silent as to the period prior to June 2010.
In the course of her own oral evidence at trial, the mother, seemingly in support of her proposition that the father’s commitment to J has renewed or intensified since the New Zealand absence referred to by the father’s oral evidence at trial as to the comment, “You don’t know what you’ve got until it is gone,” referred to above. The mother, in her own oral evidence at trial, pointed to that evidence from the father in that context.
As a matter of common sense, it would be unsurprising if a then sixteen year-old father, finding himself to be a parent as a consequence of an unplanned pregnancy with a person with whom he had only a short-term and tumultuous relationship; did not demonstrate then and thereafter the level of commitment to his child to the standard that the mother may have expected. In this context, I also note that J herself apparently volunteered to the Family Report writer, “Daddy loves me more than he used to,” which may possibly indicate from J’s own perception an increased commitment by the father to her since the hiatus in their contact while she was in New Zealand.
Plainly, the mother’s views are likely to have been affected by what she saw as a reasonable request (rightly or wrongly) for her to relocate with J and commensurately an unreasonable refusal (from her perspective) by the father to allow her to so do. I note that at that time, the proposed relocation was for the reason that she wanted to have family support in New Zealand and she was yet to meet Mr B.
I therefore find that whilst there is evidence of risk of the mother’s unwillingness to facilitate J’s relationship with the father, there are the balancing factors to which I have referred, including also the Orders the mother herself seeks, which will likely be enforceable if she were permitted to relocate to New Zealand, as to the extent of contact between J and her father, and, on her proposal, the mother’s partial funding of that contact. By enforceability I have in mind section 70 of the Act (and I note that New Zealand is a “prescribed overseas jurisdiction” for the purposes of section 70M); and Regulation 24 of the Family Law Regulations 1984 (Cth); as well as New Zealand legislation such as the Care of Children Act 2004 (NZ) which makes provision for the registration in New Zealand of parenting orders made in Australia.
Conversely, the risk referred to exists whether or not the mother is permitted to relocate. The risk has the potential to be heightened in the event that the mother is not permitted to relocate and lays the blame for that at the feet of the father and of course J is, from the contents of the Family Report, already well aware of the dispute between her parents.
Balancing the competing considerations I find (not without some hesitation) that despite the past failures referred to; the history of these parties; and their current respective primary proposals; it is more likely than not that each party will and is able to facilitate the relationship of J with the other parent (even if the willingness is driven, at least in part, by Court Orders) and each of them, devoted as they are to J, have the capacity to meet her needs including her need of a relationship with both of her parents.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living
Plainly, if the mother is permitted to relocate to New Zealand, there will be a change in the nature and frequency of J’s current contact with the father and thus her relationship with the father’s partner, Ms F, and J’s half-sister, C. I also have regard to J’s relationships with extended family members on the father’s side. However, the mother’s proposal if she is permitted to relocate to New Zealand would incorporate Orders to enable significant participation of the father in J’s life and opportunities for J to pursue her relationships with those in the father’s household and his extended family. Moreover, if an Order for equal shared parenting responsibility is made, the father will participate jointly with the mother in decisions concerning J’s long-term welfare.
In terms of assessing likely changes, it is the fact that J resided in New Zealand with her mother for the period earlier referred to from the end of June 2010 until May 2011. That was in circumstances where for most of that period J had no contact at all with her father until the Skype communications referred to. Even in those unfortunate circumstances, J’s relationship with her father obviously endured. At paragraph 28 of his affidavit, the father deposes:
“28. When I first saw [J], after her return to Australia, she was very excited to see me and acted as though she had not been away. She jumped into my arms and embraced me warmly. After being reunited with me, she hugged my partner, [Ms F], and our daughter, [C], who was born on […] October 2008.”
That description, which I accept, followed only the Skype communication J had with her father at the end of her period of living in New Zealand. In circumstances where the proposed Orders if J is living in New Zealand includes thrice weekly Skype contact; telephone and mail contact; as well as substantial holiday contact and additional, perhaps monthly or so, weekend visits by the father, I find that if J is permitted to relocate to New Zealand with her mother on the regime of Orders proposed, there will not be an adverse change in terms of J being able to maintain a relationship with her father.
On the scenario that J continues to live primarily with her mother in Australia, for reasons further discussed below, that will enhance opportunities for J’s contact with the father and the significant other people on the father’s side of the equation but it will have obvious ramifications for J’s relationships with the mother’s husband, Mr B; his daughter, Y, and extended family members on the mother’s side living in New Zealand. There are, of course, the other members of the mother’s family who are in Australia as referred to. There is also the fact that the mother’s new baby and child may grow up with limited involvement of Mr B and whilst these proceedings are directed solely to J’s best interests, it is obviously not in J’s best interest to experience the poor developmental outcomes of her half-sister or half-brother postulated at paragraph 47 of the family report of Ms E.
At paragraph 51 of her Family Report, Ms E observed that on the scenario of J living in New Zealand, use of technology such as Skype may assist with J maintaining a healthy relationship with her father and provide a platform for her to consolidate her own view of him. The Family Report writer reported that both the parties in the interview process recorded that Skype worked well when used within the period referred to when J was in New Zealand, and likewise in their oral evidence before me, both confirmed that Skype had worked and worked well. Ms E’s conclusions in her report to this effect were fortified by her oral evidence about the Skype communication occurring three times per week and the father visiting J in New Zealand every month or second month.
Those considerations taken with the proposals as to the extent of contact proposed by the mother if she is living in New Zealand lead me to find that whilst there will be a change in circumstances if the mother were permitted to relocate, it would not be contrary to J’s best interests in terms of the likely effects upon J for that proposal to be adopted if the balance of considerations points in that direction.
(e) the practical difficulty and expense of the child spending time with, and communicating with a parent, and whether that difficulty or expense would substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
If the mother is residing in Australia with J at her planned location, the practical difficulty she faces is that she is of limited financial means, reliant upon social security and does not own a motor vehicle. At paragraph 52 of her affidavit, the mother deposes:
“52. My financial circumstances are very difficult and I do not have a car. I have concerns about catching public transport at night and walking at night to and from public transport. To get to [the father’s] on public transport, I need to catch two buses and a train each way, and it takes about two and a half hours each way. I also have to walk about a kilometre from the bus to [the father’s] home. …”
Whilst the mother was there referring to her current circumstances living in Brisbane Suburb 1, on the evidence before me, it does not seem that there would be a particularly enhanced economic position for the mother if she moves to the Town 1 area as she proposes if she must remain in Australia.
There is evidence, which I accept, that Mr B, who will remain in New Zealand, is unlikely to be able to afford contributing to the mother’s household as well as his own and in any event, in those circumstances, there is a significant risk, as the Family Report writer identified, of the relationship between the mother and Mr B not enduring in those circumstances.
As has already been observed, the mother is unable to rely upon any financial support of significance from the father in circumstances where he is assessed to pay child support at the minimum level of $20.00 per month.
There are practical difficulties and expenses attendant also if J is residing with the mother in New Zealand. The mother will be reliant upon Mr B and his income to meet her share of the travelling expenses for J associated with her proposals. The mother’s evidence (paragraph 73 of her affidavit) is that the cost of air travel between New Zealand Town 1 and Brisbane is approximately AUD$535.00 return provided fares are purchased at least three calendar months in advance. Thus the cost of each of her proposed return trips with J would be AUD$267.00 for each party (if expenses are shared), so that there is a not insignificant expense on an annualised basis for the trips contemplated by the mother on her proposal. In his oral evidence, as already noted, the father suggested that outside the holiday trips, he would expect to be able to travel to New Zealand approximately once a month or every second month. Aside from the travelling costs, I would assume the father would incur associated expenses for accommodation and the like. The father’s evidence was that he earned between about $1,400.00 and $1,700.00 per fortnight net of taxation so, unless he increases his earnings, his expectation may or may not be ambitious. Neither party advanced detailed evidence before me of their general expenses.
At Annexure “JNKC3” of her affidavit, the mother put before the Court details of flight information for flights between Australia and New Zealand as well as details of one particular airline’s policy so far as its “unaccompanied minors program” is concerned. Those details indicate a flight travel time between Brisbane and New Zealand Town 1 of between three hours ten minutes and three hours forty-five minutes, which are significant periods of time, on top of whatever time it takes for travel between New Zealand Town 1 and where the mother actually proposes to live in New Zealand for a child as young as J.
I find that there are practical difficulties and expenses associated with whatever proposal is adopted, but on the evidence as a whole, the practical difficulties associated the mother’s proposed relocation to New Zealand are probably greater, but not insurmountable.
On the proposed relocation, those practical difficulties would be compounded if the mother loses the support of Mr B. He gave evidence before me and I formed the impression that whilst he was not prepared to fund separate trips by the father to New Zealand, he was committed to funding the holiday trips contemplated or at least the half cost of each trip on the mother’s proposal. I find that the affidavit evidence and oral evidence of Mr B as to his income supports the proposition that his income would be sufficient to meet the mother’s share of the contemplated costs in that respect, subject to the caveat I have expressed as to the lack of evidence concerning expenses.
Whilst I have earlier referred to subparagraph (f) of s 60CC(3), one further specific matter having the potential to impact upon the mother’s capacity to provide for J’s emotional needs is raised on the evidence of the Family Report writer, Ms E. At paragraph 25 of the Family Report, Ms E records:
“25. [The mother] recounted situational related depression when she was about eleven years old after her parents separated. [The mother] was an inpatient at a psychiatric unit for three weeks after attempting suicide by cutting her wrists with a razor. [The mother] stated that she has not engaged in self harming behaviour nor felt depressed since that time. [The father] raised no concerns about her mental health status.”
As to this, the Family Report writer further records at paragraph 47:
“47. If [J] does not relocate and [Mr B] remains in New Zealand as is his stated intention, significant strain is likely to be placed upon [the mother] and [Mr B’s] marriage. Their unborn child’s ability to bond with [Mr B] will certainly be adversely affected which may compromise that child’s developmental outcomes.
48. [The mother’s] parenting capacity could be compromised. [The mother] may experience financial hardship and difficulty with finding appropriate accommodation. She will have a newborn child to care for. [The mother] has identified a limited support network in Queensland. [The mother] may be more vulnerable to an episode of situational depression, having experienced teenage depression when faced with the stress of her parents’ separation. Consequently, [the mother] may not be emotionally or psychological (sic) available to [J].”
Ms E expanded on these observations in her oral evidence before me. Whilst Ms E pointed out in her oral evidence that she is not medically trained or qualified (I note from her curriculum vitae, attached to her report, that she holds Bachelor Degrees in Social Work and Arts), Ms E maintained the observation that given the mother’s history in this respect, there is a risk to be contemplated that the mother may decompensate in the manner described by Ms E if she is forced to remain here. Plainly, it would not be in J’s best interests if that risk eventuated.
At paragraph 23 of the Family Report, Ms E records:
“23. [The mother] and [Mr B] stated that if [J] was not able to live in New Zealand, this would have significant implications for their marriage and for their unborn baby’s opportunity to establish a relationship with [Mr B]. [The mother] would, she said, essentially, ‘be a sole parent with two children,’ if she lived in Australia.”
Whilst the mother expressed the hope that her marriage to Mr B would endure the effect of her remaining in Australia whilst he lived in New Zealand, it would seem that even the mother herself, as a matter of practical reality, recognises the adverse possibilities, as does Mr B. The mother is due to give birth to her child with Mr B in late August 2011. If she remains in Australia because she is not permitted to relocate to New Zealand, on her proposed residence here, she will have some emotional support from some extended family members, but as she says, she will essentially be a sole parent with two young children. She has no employment and no capacity to improve her economic circumstances whilst reliant upon social security benefits. No significant financial support can be expected from the father and no offer or proposal in that respect is advanced by the father. It is to be remembered that the mother has sought to relocate to New Zealand since 2009 to gain the support of family in circumstances when she was then living alone with only J. Whilst there is no medical evidence before me that assists me to assess the risk, I note that even the father via his Counsel conceded in submissions that it was a risk the Court had to contemplate.
Ms E confirmed in her oral evidence that if the risk eventuates, it may have significant effect upon J if her primary carer and primary attachment figure, her mother, becomes emotionally unavailable to her. That has potential ramifications for J’s relationship with her father, given that it would seem that J is keenly aware of her mother’s wish to relocate to New Zealand and there is therefore a significant potential for J to attribute any emotional distress in her mother to the fact that the mother has been unable to relocate to New Zealand.
On the evidence, I consider that I must attach some significant weight to the risk referred to in consideration of J’s best interests.
(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 of characteristics of the child that the court thinks are relevant; AND (h) if the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right
The mother deposes (paragraphs 64 to 66 of her affidavit) that she is of Aboriginal descent from her mother’s side of the family. The mother refers to her own positive connection with her Aboriginal heritage and recognition of her Aboriginal origins. The mother encourages J to have a positive connection with her Aboriginal origin. Whilst the mother suggests that the father does not value J’s Aboriginal background, it seems to me that whether or not that is so, on either primary proposal the mother would be in a position to maintain, in J’s best interests, her identity and connection with her Aboriginal origins.
In the Summary of Argument of the Respondent mother filed by leave on 19 July 2011, the submission is made (at paragraph 34) that:
“34. It is important, it is submitted, that [J] be able to be exposed to her Aboriginal heritage through regular interactions with her extended family in New Zealand.”
I do not understand that submission in light of the evidence that J’s Aboriginal heritage is via the maternal grandmother and her family on the maternal side. The maternal grandmother resides in Perth, and I am unaware of any evidence suggesting extended family members (other than the mother’s brother) reside in New Zealand. It is the mother’s father who resides in New Zealand with other extended family members.
Whether or not I am wrong about that, I maintain the finding that J will, on either proposal, contemplating primary care by the mother, be able to maintain her Aboriginal identity.
(j) and (k) – Family violence and any family violence orders
I have already dealt with the evidence on this aspect of the matter above. I find that there is no family violence considerations affecting J’s best interests.
(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
Given that J is yet to turn six, and the prospect that at the young age of her parents, there may well be substantial changes in their respective circumstances in the future, it is to my mind in J’s best interests that shorter term rather than longer-term considerations ought carry more weight in considering her best interests.
Whilst there is probably greater potential for further proceedings to ensue if J is permitted to live with her mother in New Zealand, rather than in Australia, given the risk of difficulties eventuating with regard to any ordered contact, it does not seem to me that this in and of itself is a factor of such weight that it would stand in the way if the balance of considerations point sufficiently in favour of the mother’s proposed relocation with J.
(m) any other fact or circumstances that the court thinks is relevant
I do not identify any separate fact or circumstance under this consideration not otherwise already addressed.
Section 60CC “primary considerations”
Section 60CC(2) of the Act provides as follows:
“Primary considerations
60CC(2) The primary considerations are:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
With respect to subparagraph (b), I have already dealt with the history, such as it is, of any evidence as to abuse or family violence. Based upon my findings in that respect, and my findings otherwise including those in relation to the “additional considerations”, no consideration of subparagraph (b) causes me to identify the need for the protection described in that subparagraph.
With respect to subparagraph (a), I consider, as I have already found, that there is benefit to J in having a meaningful relationship with both of her parents.
In this context, Mr Bunning, Counsel for the mother, referred the Court to the decision of Kay J, sitting as a single Judge of the Family Court pursuant to arrangements made under s 94AAA(3) of the Act, in hearing an appeal from a Federal Magistrate in Godfrey v Sanders (2007) 208 Fam LR 287.
In particular, Counsel for the mother relied upon paragraph 36 of the judgment, where Kay J held that even if the move (a relocation) results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
Having regard to the findings I have already made with respect to the additional considerations; and my other findings, I consider that a meaningful relationship with both parents will be maintained whatever primary proposal of either party is adopted.
Whilst the mother’s proposed relocation of J to New Zealand may arguably impede an “optimal” relationship as opposed to the requirement of a meaningful relationship, the mother’s Counsel stressed that although different in form, the overall time provided for in the mother’s proposal including the Skype communication, equate to, at least in terms of amounts of time, substantially the same as the time identified on the father’s primary proposal.
Whether or not that is so, the consideration for the Court is whether a meaningful relationship between J and both of her parents is a benefit for J (which it clearly is) and can be maintained.
Section 65DAA
As I propose to make an order for equal shared parental responsibility, subsection (1) of s 65DAA requires me to consider whether J spending equal time with each of her parents would be in her best interests.
Having regard to the findings I have with respect to the s 60CC considerations I have referred to, I do not consider that it would be in J’s best interests for her to spend equal time with each of her parents.
I am also obliged to consider whether J spending equal time with each of her parents is reasonably practicable having regard to the matters identified in subsection (5). As earlier referred to, the decision of the High Court in MRR v GR (supra) makes it plain that s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. So far as “reasonably practicable” is concerned, the High Court has made it plain that a practical assessment must be made as to whether equal time parenting is feasible having regard to the particular circumstances of the parties and the reality of the situation of the parents and the child.
The reality of this situation is that it is the mother’s firm desire to live with J in New Zealand. Plainly, if the mother is living in New Zealand with J, an equal time parenting arrangement is not reasonably practicable.
Even on the father’s proposal, the parties would be separated by a significant geographical distance. On the father’s proposal, J would live with the mother in the Town 1 area and when with the father, J would be living in the Town 3 area of the Gold Coast. J has commenced school, and I cannot conclude that it would be feasible for J to be attending school in the Town 1 area, whilst at the same time residing with the father or conversely attending school at Town 3 in periods when she is living with the mother in the Town 1 area. I therefore find that “equal time” with both parents is neither in J’s best interests nor is it reasonably practicable within the meaning of the section.
I must then consider whether J spending substantial and significant time with each of her parents would be in her best interests and consider whether her spending substantial and significant time with each of her parents is reasonably practicable.
The definition of “substantial and significant time” is contained within subsection (3) of s 65DAA.
I repeat what I have earlier said above as to reasonable practicability and the reality of the parties’ situation. I also refer to the findings I have made on the s 60CC considerations and refer to the competing proposals of the parties. I therefore conclude that it would not be in J’s best interests nor would it be reasonably practicable for J to spend substantial and significant time (within the meaning of subsection (3)) with each parent.
Overall Conclusions and Orders
This is a difficult and finely balanced case. In the end, balancing the considerations I have referred to and the findings of fact and the findings otherwise I have made, I find that it is in J’s best interests that her parents have equal shared parental responsibility for major long-term issues in relation to J, but that her best interests overall would be met by allowing the mother’s proposal to relocate J to live in New Zealand with Orders for significant and substantial contact and other involvement by the father being made.
It is in J’s best interests that her parents have equal shared parental responsibility for major long-term issues in relation to J, and I propose to make an Order to that effect. Such an Order activates s 65DAC of the Act, and requires the parties to act jointly in making decisions about major long-term issues in relation to J; and requires each of the parties to consult the other in relation to such decisions; and requires the parties to make genuine efforts to come to a joint decision about such issues. Notwithstanding s 65DAC, I propose to make the Order in terms of that sought by the father in terms of identifying the particular long-term issues which he identifies.
I find that it is in J’s best interests that she continue to experience the primary care of her mother as her primary attachment figure and that it is in J’s best interests that her own circumstances are maximised and that, in the primary care of her mother, she have the experience of, and stability of circumstances provided by, being part of the re-constituted family unit comprising her mother; her mother’s husband Mr B; their child expected to be born in late August 2011; and Mr B’s daughter Y. Obviously, that can only occur if the mother is permitted to relocate J to live with her in New Zealand and, as noted, I propose to make Orders to that effect.
I find that it is in J’s best interests to avoid the risk, which I find to be of significance, of the mother’s parenting capacity being compromised with the attendant consequences for J, if the mother as her primary carer and primary attachment figure was forced to remain living here with her newborn child and J without the emotional and financial support of her husband and with limited other family support.
I find that it is for J’s benefit and thus in her best interests that the meaningful relationship she has with her father is maintained and allowed to develop and that J’s right to know and be cared for by her father; and have the benefit of experiencing the care and parenting of her father and being part of the father’s reconstituted family unit ought to be maximised within the constraints of J living in New Zealand whilst her father remains in Queensland.
Taken from Exhibit 1 and Exhibit 2, there are many issues agreed between the parties as to the Orders to be made in the event that, as is proposed, the mother is permitted to relocate with J to New Zealand. One issue is that the father seeks an Order that the mother be solely responsible for all travel costs for J for her travel to spend time with the father. The father proposes to meet his own travel costs for the other visits he plans on a monthly basis or thereabouts. The mother seeks an Order that would see both parties equally sharing the cost of the travel referred to.
In my view, in circumstances where the father has historically provided and is currently providing support as modest as $20.00AUD per month by way of child support, it would impose a significant additional burden upon the mother if she were to be responsible for the whole of these costs. Moreover, what is essential in J’s best interests is that the contact ordered occurs and in my view, the prospects of that are maximised if there is a sharing of that expense in the manner proposed by the mother and I propose to make Orders to that effect.
The father proposes that J spend all school holiday periods with him, whilst the mother proposes that until J reaches the age of ten, the school holiday periods should be shared, and once J is ten years of age, she ought spend all holiday periods, other than the Christmas period, with the father, with the Christmas period being shared.
The Annexure attached to the mother’s affidavit and marked “JNKC12” is a copy of the gazetted holiday periods in New Zealand for 2011 and 2012. It can be seen from that document that whilst there are some differences, there are similarities with the school holiday periods gazetted in Queensland. If the mother returns to New Zealand with J, the first relevant holiday period will commence on or about Friday 7 October, with school resuming on 25 October.
In the face of the evidence of Ms E, which I accept, I find that it would not be in J’s best interests to immediately commence spending the whole of each school holiday period in Australia when her home is to be in New Zealand. That would involve long periods away from her mother in circumstances where, on the evidence before me, it would seem that the longest time J has spent away has been about a week or so. Particularly in circumstances where there is to be the Skype communication thrice weekly and the father will be seeing J in New Zealand on visits taking placing approximately monthly or so, I think it is in J’s best interests that for the time being, she also have the experience of being able to spend holiday time with her mother. Indeed, on occasions when in holidays the mother travels to Australia, that will nevertheless involve, on the proposed Orders set out by the mother, J spending time with her father on those occasions.
However, that noted, I am conscious of Ms E’s evidence so far as developmental milestones of children are concerned, pointing to the age of nine years as being as good a guide as any of the potential for children to increasingly be susceptible to negative attitudes on the part of the parent with whom they primarily live. Having regard to that evidence, I consider that rather than from the age of ten years, it is reasonable that from the age of eight years (which gives J a further two years) J ought commence spending all school holiday periods, other than the Christmas period, with the father in Australia with a sharing of the Christmas holiday period.
The father’s proposal is that he should spend a maximum of one weekend per month for any visits he makes to New Zealand, whereas it is the mother’s proposal that the father can spend time with J on any occasion he is able to travel to New Zealand. As the latter perhaps enhances opportunities for the Father, I will make Orders in those terms.
I propose to adopt the specification in the mother’s proposals in respect of the time the father will spend with J on the occasions when J travels to Queensland with her mother (or any other family member) with some modifications to the Orders.
The only other difference of note is that the father seeks a “no denigration” Order, and I propose to make such an Order with respect to both parties.
I order in accordance with the Orders set out at the commencement of these reasons.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 26 July 2011.
Associate:
Date: 26 July 2011
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Jurisdiction
-
Remedies
-
Procedural Fairness
0
2
3