Hartman and Davies
[2015] FCCA 14
•9 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARTMAN & DAVIES | [2015] FCCA 14 |
| Catchwords: FAMILY LAW – Children – relocation – maintaining relationship with both parents – balance favoured child relocating to Adelaide with the mother. |
| Legislation: Family Law Act 1975 |
| Hepburn & Noble [2010] FamCAFC 111. A & A: Relocation approach (2000) FLC 93-035. Cales & Cales [2010] FamCAFC 237. MRR & GR [2010] HCA 4. Taylor & Barker [2007] FamCA 1246. Morgan & Miles (2007) FLC 93-343. AIMS v AIF (1999) CLR 160. |
| Applicant: | MS HARTMAN |
| Respondent: | MR DAVIES |
| File Number: | SYC 5395 of 2013 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 29, 30 and 31 October 2014 |
| Date of Last Submission: | 31 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 9 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Druitt |
| Solicitors for the Applicant: | Gonzalez & Co |
| Counsel for the Respondent: | Ms Kennedy |
| Solicitors for the Respondent: | Abrams Turner Whelan Family Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Ladopolous |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Blacktown Family Law |
ORDERS
The mother and father have equal shared parental responsibility for the child [X] (“[X]”) born [omitted] 2001.
The mother be permitted to relocate to Adelaide, South Australia with [X] forthwith.
[X] shall live with his mother in Adelaide.
[X] shall spend time with his father at minimum as follows:
(a)During each school term for two weekends from after school Friday to before school Monday as agreed between the parties abut failing agreement for the 3rd and 6th weekend of the term; and
(b)For a 10 day block in the April, July and September school holiday periods as agreed between the parties but failing agreement to commence for the first Saturday of the holiday period; and
(c)For the Christmas school holiday for a 4 week period as agreed between the parties but failing agreement commencing 27 December in odd numbered years and 24 December in even numbered years.
(d)On any occasion the father is in Adelaide by giving the mother 14 days notice of his intention to spend time with the child, the location and duration of the time.
Within 14 days of these orders and within 14 days of [X]’s subsequent enrolment at any school the mother and father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school [X] may attend from time to time, that the father and mother upon their own actions and enquires be entitled to a copy of [X]’s school reports, merit cards, any written material pertaining to [X]’s academic and extra-curricular activities.
Both parties shall ensure that each parent is kept informed of the following:
(a)Any medical problems or illnesses suffered by [X] whilst in either parties care.
(b)Any medication that has been prescribed for [X].
(c)Any social, school or religious functions which [X] is to attend.
(d)The particulars of others who may reside with [X] from time to time.
For the purpose of communicating information between the parties the mother and father shall:
(a)Communicate by telephone matters of an urgent nature.
(b)Communicate via email or text message about day to day matters including arrangements for each party to spend time with [X].
In the event either party travels interstate or overseas during their time with [X] provided for in these Orders, the traveling party shall give not less than 7 days in advance written notice of the address and contact telephone number of the location for the travel.
Each party refrain from making critical or derogatory comments in relation to the other parent in the presence or hearing of [X] and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of [X].
Each party advise the other party and keep the other party informed of their current residential address and contact telephone numbers (including both landline and mobile numbers if applicable) and advise the other party of any changes to these details within 7 days.
The parents are equally responsible to meet the costs of any travel arrangements for [X] for the purpose of [X] spending time with either his mother and/or father.
Each party is equally responsible to meet [X]’s school fees should [X] attend [R] School, South Australia.
In the event that the father is able to live in Adelaide for a period of 7 days each second week then upon him advising the mother of:
(a)His accommodation address and details; and
(b)When the father is able to commence such a regime orders 3 and 4 are suspended and [X] shall live with each parent from the commencement of school Monday to the commencement of school the following Monday being with the mother the first week and with the father the second week.
This order to commence 14 days after the father has notified the mother of his arrangements in accordance with order 13 herein.
Thereafter [X] to spend half of all school holidays with each parent being the first half with the mother and second half with the father in odd numbered years and the first half with the father and the second half with the mother in even numbered years.
IT IS NOTED that publication of this judgment under the pseudonym Hartman & Davies is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 5395 of 2013
| MS HARTMAN |
Applicant
And
| MR DAVIES |
Respondent
REASONS FOR JUDGMENT
The matter of Hartman and Davies is an application by a mother to relocate permanently with the parties’ son, [X], born [omitted] 2001, to Adelaide. The mother’s application has been on foot since 2013. The father opposes the relocation.
The matter came before the Court in November for an interim hearing on the mother’s application to then relocate to Adelaide on an interim basis. The hearing was conducted on 6 November 2013. I refused the mother’s application and made an order that [X] live equal time with each parent and that living arrangement has continued from November 2013.
There was a hiatus in September 2014 when [X] refused to return to his father’s care, decamped from school and went to his mother’s home. The mother had no intention of returning [X] to his father at that time.
The father immediately brought the matter back to court, [X] returned to his father’s care and the week about arrangement resumed without further incident.
Whatever decision the Court makes one parent will be bitterly disappointed, for it became clear during the hearing that [X] is a much loved child who has a good relationship with each of his parents, derives much benefit from his relationship with each parent even though each provide him with a different parenting style and throughout his life has spent no less than significant and substantial time with each parent. This will now change as the mother tells me whatever decision the Court makes she is returning to Adelaide with or without [X].
The final hearing was heard over three days on 29, 30 and 31 October 2014.
The mother was represented by Ms Druitt of counsel, and the father by Ms Kennedy of counsel. I had appointed an Independent Children’s Lawyer in September 2014 when [X] was refusing to return to his father’s care, as I was concerned that there would be, perhaps, a breakdown of their relationship.
The Independent Children’s Lawyer was appointed and for their own reasons, with which the Court does not necessarily agree determined not to interview [X]. At the commencement of the trial Mr Ladopolous representing the ICL submitted they would be of little assistance in the case, given they did not have the boy’s views and sought leave to withdraw. Given the increase in trial time and the cost to the parties of the Independent Children’s Lawyer being involved in the trial, I permitted that withdrawal, and this was done by consent.
The evidence
The evidence before the Court was voluminous and cross-examination lengthy.
For the mother, I read the following.
a)Initiating application filed 29 July 2013.
b)Affidavit filed 3 October 2014.
c)Case outline prepared by Ms Druitt of counsel.
d)Proposed minute of order.
Exhibits for the mother.
Mother’s Exhibit 1, a letter sent to the mother care of her work address enclosing documents in these proceedings, a process which I accept caused the mother a degree of embarrassment.
Mother’s Exhibit 2, a letter from [R] School in Adelaide, dated 27 October 2014, advising that the mother had made an application to enrol [X] in that school commencing 2015.
Mother’s Exhibit 3, two photographs of two of [X]’s 13th birthday cakes.
Mother’s Exhibit 4, a letter from Telstra dated 29 October 2014 indicating that the mobile phone the mother purchased for the child after he had refused to return to his father in September 2014 was not activated until 4 September 2014, that is, after the events. However the evidence is clear the mother did not advise the father the child had this mobile phone.
Mother’s Exhibit 5, a message written on paper towels from [X], “I’m sorry I did not give you presents this year. Love [X]”.
Mother’s Exhibit 6, details of the homework the father sets for the child.
Mother’s Exhibit 7, a notice to produce addressed to the father.
The mother was cross-examined.
The mother relied upon the report of Dr V marked Court Exhibit 1, as did the father.
For the father, I read.
a)Response, filed 5 November 2013.
b)His affidavit filed 3 October 2014.
c)Affidavit of his girlfriend, Ms L filed 3 October 2014.
d)Affidavit of his sister, Ms R filed 3 October 2014.
e)Case outline prepared by his legal team.
The father’s exhibits.
Father’s Exhibit 1, a letter received by him from Child Support dated 5 September 2014 advising that the child was now 100 per cent in the care of the mother. This was a most peremptory act by the mother, and totally unjustified.
Father’s Exhibit 2, documents produced by the Department of Community Services.
The mother, quite extraordinarily, and, again, with little justification whatsoever complained to the Department about the father being in the shower when the child is showering. That investigation is still open.
The mother believed the father was acting in some inappropriate or untoward manner towards the child. The mother made the report in about March 2014. This resulted in the child being interviewed by Departmental officers and the police. There is nothing in her concerns and it is a waste of public money that the Department has been involved in a matter of no substance.
I read from this document –
Caller is reporting concerns of neglect and psychological abuse in the care of the father, father has locked [X] out of the house, left him unsupervised, will not let [X] speak to his mother, [X] sustained severe burns whilst in his father’s care, the environment the father lives in is unhealthy and dirty and not suitable for a child, he has obtained unexplained rashes and head lice whilst in the father’s care.
These events occurred when [X] was 12 some 18 months ago.
The father has had little to do with [X] since he was born. Only at the start of the year he started living with his father.
On 24 March 2014:
Risk of sexual harm. [X], 12, is made to sleep in bed with his father, and his father walks in on him whilst showering. Though [X] has not disclosed any sexual harm, he has stated he is scared of his father and does not like going to his house.
Father’s Exhibit 3, a photograph of [X]’s third cake for his 13th birthday, which is a lovely picture of him transferred to a cake in edible form with the words, “You are definitely a Hartman”, written on the cake. This boy looks exactly like his father. The mother had no justification for permitting this cake to be given to her son. I accept she did not organise the cake. Her niece did. But it was improper that this boy was allowed to see it. He is a Hartman and a Davies.
Father’s Exhibit 4, text messages that the father had downloaded from his son’s mobile phone, dated 9 April 2014. This is what [X] texts his father on 4 September 2014:
Mum, I just sent this to my mean father because I don’t want to live with him ever again.
His father’s responses to [X]’s texts are very appropriate:
Just remember I will always love you and be there for you.
From [X]:
I will never want to live with you either ever again. I want to live in Adelaide with my mum.
Mum, this is what I just said to my prick of a father: “Dad, I’m never going back to you. I did not want to talk to you yesterday, but I was made to. Dad, let me live with my mum.” I think you need to see a psychiatrist. He must have short-term memory loss, or a mental health problem. Do not try to contact me.
These are disgraceful and disrespectful e-mails sent by [X] and the mother should have told her son not to treat his father in this shabby fashion yet she did nothing.
Father’s Exhibit 5, series of SMS messages between the parents commencing 5 October 2014 being as follows
Complaints about the child having bad dandruff because his father makes him use soap. His father responds he has shampoo.
Complaints the mother made about the state of his shoes. The father responds he bought him new shoes on 6 October 2014.
Complaints that [X] does not use deodorant with his father .The father respond “He does. I have it.”
Father’s Exhibit 6, a letter dated 4 February 2014 from the mother’s lawyers to the father’s lawyers which is replete with complaints such as:
[X] has returned with an infestation of live lice eggs for the fourth occasion.
That the father makes him attend sport and other activities he does not want to engage in.
That the father says to him his mother is pressuring the child to say he wants to live in Adelaide.
The child drives around with various adults unknown to the mother because his father is not available to care for him.
Complaints as to the level of child support paid.
Father’s Exhibit 7, a letter from the father dated 30 September 2013 to the mother giving her details of the camping holiday he and [X] had and the extracurricular activities the father had already arranged for [X] as follows.
[X] has [omitted] lessons at [omitted] on Friday, attends [omitted] at [L] on Tuesdays, and attends [omitted] on Monday and Thursday. I accept the father unilaterally enrolled the child in these activates without discussing same with the mother.
Unfortunately, the parents’ communication has significantly deteriorated since April 2013.
Father’s Exhibit 8, a series of emails between the parents on 17 September 2014.
Father’s Exhibit 9, printout of calls made to the mother for the period 24 October 2013 to 30 October 2013.
Father’s Exhibit 10, an email from the father to the mother dated 20 December 2011. This was a proposal that the mother bring [X] to Sydney to live with his father in the first half of 2012 which eventuated.
The spectre of the mother permanently living in Adelaide was clearly at the forefront of the mother and father’s mind in 16 December 2011 as the father says this:
I know you have [X]’s best interests at heart but the move interstate would be a major upheaval to his life in terms of access to his father, schooling, friends and being in the environment he’s used to.
Father’s Exhibit 11, an email from the father to mother dated 6 November 2013 advising of his extra-curricular and advising he has a babysitter to care for him on some Mondays.
The father and mother were each cross-examined.
The father’s sister Ms R, was cross-examined. No one sought to cross-examine the father‘s girlfriend, Ms L.
Dr V who prepared a report in this matter was cross examined and her report was marked Court Exhibit 1.
Court Exhibit 2 was a memo of fees of the Independent Children’s Lawyer’s costs.
Chronology
The mother is 47, the father is 46.
The parties commenced a relationship in 1998 and separated in 2001. The mother was living in Western Sydney working and the father moved to Tasmania.
In July 2001 the mother stopped work and moved to Adelaide to be with her mother and [X] was born in [omitted] 2001 in Adelaide.
The mother relocated to Sydney in April 2002 and [X] commenced his relationship with his father which relationship has continued and strengthened.
I do not accept any submission that at age 13 the mother wishes to take her son to live with her in Adelaide to sever his relationship with his father. That is not the evidence not is it supported from the parents’ history.
In June 2006 there was some talk about the father working in England and the mother and [X] relocated back to Adelaide.
The mother had a lottery win around this time and was able to buy the home next to her mother unencumbered, renovate her and her mother’s home, and buy an investment property, new car and the like.
[X] commenced school in Sydney in February 2007. Despite Dr V’s criticisms that [X] has led an unstable childhood and been moved around, the reality is he’s always attended the same primary school [K] School up until early 2012 when there was some toing and froing with [X]’s schooling due to the mother needing to care for her mother. However the parents we co-operative and supportive of these changes.
I reject the criticism that the mother and father have created instability for this child. Moving back and living in Adelaide for a few months at a time on 2 occasions is not evidence of instability. He attended [K] School until 2012. He has always attended the same high school. When the facts are analysed it is not as is portrayed by the father or Dr V that the mother has created instability for the child.
Secondly in many of these changes the father was a willing participant and they have resulted in a strong and established relationship with his son.
In December 2011 the mother and child returned to Adelaide to care for her mother. By agreement, [X] returned to live with his dad in February 2012. His dad had long service and said he could care for the child. [X] and his father lived at [W] and he continued to attend his primary school at [K] and the mother cared for her mother in Adelaide.
In April 2012 he returned to live in Adelaide with his mother. I accept it was a clear agreement between the parties that [X] would return to Sydney in 2013 to recommence at [K] School for his last year of primary school.
[X] was not returned at the commencement of the school year and came into his father’s care in April 2013.
[X] remained with his father over the mother’s protests. The matter came before me when the father commenced proceedings for the child to be enrolled in [B] School for high school commencing 2014. The mother disagreed.
I made orders that [X] live week about with his parents, that he attend [L] School and put the matter on a path for a final hearing.
Since that time the relationship between the parents has significantly deteriorated.
[X] ran away from his father’s home on 2 September 2014.
Dr V’s report was the second report prepared in this matter. The first report prepared by Ms M was significantly deficient given this was clearly a matter where the mother’s proposal was that [X] relocate with her to Adelaide. Ms M’s report addressed only some of the issues before the Court and a fresh report was required, which was only released shortly before the hearing. Dr V made no recommendations other than:
a)The parties work on a more collaborative relationship so they can exercise shared parental responsibility.
b)That [X]’s final living arrangements are a matter for judicial determination.
c)That [X] spend as much time as possible and is practicable with each parent contingent on where each of the parents live.
The report was useful as it raised all the competing proposals and the consequences for [X] of the competing proposals. The report described clearly the nature of [X]’s relationship with his parents.
In summary, as I will deal with the report in more detail later, Dr V was of the view that [X] has a close and attached relationship with each of his parents. His mother has been his primary carer and she is his closest emotional attachment. The mother is the more nurturing and perhaps permissive parent who does not challenge or confront [X]. The father is the parent who does challenge and does confront him and makes him do things he may not ordinarily want to do or, as described by Dr V, “Gets him out of his comfort zone.” She said:
With an anxious child that [X] portrays to be, this is a very good parenting approach and is something that will benefit [X].
Dr V’s difficulty apparent in the report and clearly expressed in her oral evidence was that she was in a dilemma. Dr V said she can see for [X] the benefit of him moving to Adelaide and she accepts this is his clear and expressed wish and his father agreed [X] has been asking to live in Adelaide with his mother for 18 months.
However, she also sees significant deficits for [X] in living in Adelaide due to her concerns that the mother would not promote the child’s relationship with the father and he may lose touch with his father given that on the day of the assessment the child would not engage with his father and was very negative about him.
Dr V opined that being a boy, it is crucial he have frequent and regular contact with his father whose parenting style and manner will assist [X] to maximise his potential. This was a real and genuine concern at that time as [X] had just run away from his dad and would not engage with his father at the interviews. However matters have settled down since then and [X] has returned to the equal time arrangement and the father son relationship restored if it was ever severed.
After hearing the evidence, I have formed the view that the mother will, as she has always done, continue to promote [X]’s relationship with his father. For as Dr V clearly says in her report, it is remarkable, given the history of these parents, which is that they have effectively never lived together that they have managed to co-parent their boy to a high level and with great success up until early 2013.
The father referred to this as well stating how well he and the mother had done in not having to have third parties intervene.
Dr V commented on how impressive it was that these two people, who are very different people, had no history of living together for any length of time, had successfully co-parented their son for 11 years.
I do not see that 11 years of co-parenting a child will be easily undone. It is the pull of one parent wanting to move for good reason and the other resisting that move for good reason which has caused issues where there were previously none.
It is clear, on the evidence from both parents that [X] is caught in the middle and he voted with his feet in September 2014 in not returning to his father’s home in his father’s week. He has been expressing a wish for 18 months to live in Adelaide with his mother. His wishes, at age 13, must be taken into account by the Court in any decision. The significant concern I have is that, if the child is not permitted to relocate to Adelaide with his mother this may be the death knell of his relationship with his father.
At one level, the mother is playing, as Dr V said, a dangerous game in the position she has taken which is I will go to Adelaide with or without [X].
Dr V was perplexed by the mother’s decision to move to Adelaide whether [X] is permitted to come with her or not and leave her son in the father’s care. She opined that this was perplexing given her primary care of [X], her strong relationship with him, her belief that he is far better living with her than he is with his father, which position is clearly evident in her critical emails of the father’s care of the child.
The father was sanguine when asked what would be the consequence for his son if this scenario eventuated. He said in evidence he believed his son would be able to manage the move and would adjust.
I have formed a very different view of this child from his father on this issue. [X] is aligned with and closely attached to his mother. If he is not permitted to move to Adelaide with his mother this will have significant repercussions for his very important relationship with his father. It has already had significant stress placed upon it as evidenced by the 2 September 2014 “running away incident”. Any further incidents such as that, as Dr V said, may make it harder for the relationship to be retrieved as it has now been.
A significant issue for me to assess is [X] being able to maintain the benefit of his meaningful relationship with each of his parents in either scenario, i.e. living in Adelaide with his mother or in Sydney with his father.
His father put up a third scenario.
The father is willing to fly to Adelaide to spend a week at a time with his son and maintain the week about arrangement if [X] is permitted to move.
This scenario and its consequences were put to Dr V.
She opined such an arrangement would provide a continuation of the current care arrangements which she believed were benefitting the child.
It would fulfil [X]’s express wish expressed for 18 months and expressed clearly to Dr V and clearly by his actions in September 2014 to live in Adelaide with his mother.
It would minimise the impact of change on [X] and ensure his father’s continued involvement and presence in his life which Dr V asserted was so important.
Dr V described it as a win-win.
The father said he believed he would be able to vary and change his work commitments to achieve such an arrangement.
The father has shown a significant commitment to his son by making this proposal which would make it extremely difficult to maintain his relationship with Ms L and his full-time work in Sydney as an [occupation omitted]. Dr V was also concerned of the impact of such an arrangement on the father.
The mother makes no such concessions. Her actions are more self-focused than are the father’s and that what is right for her is right for [X]. The father is not so centred.
To be fair to the mother, her reasons for relocating to Adelaide are that her elderly mother has dementia and she wishes to care for her. However, as Dr V said, that is not an [X]-centred decision and with dementia the question must be for how long could she care for her mother?
However there are other actors operating on the mother’s mind. The mother owns her home in Adelaide which is next door to her mother’s. Thus she has accommodation in Adelaide. The mother says she could not afford to maintain a home in Sydney and sold her home at [D] to pay her legal fees.
I do not accept that she cannot afford to live in Sydney. The mother has not rented her home in Adelaide to provide income. The father pays child support of $300 a week and he has agreed to pay $500 a week to enable her to live in Sydney.
The mother earns approximately $90,000 per annum and she has an investment property. I found the mother’s evidence about her financial difficulties disingenuous.
Having so found I accept the mother was born in Adelaide. Her family is in Adelaide. She has a home in Adelaide and this is where she wishes to live and I make no criticism of that. The mother believes [X] will adjust because he will be living with her and this evidence echoes a further concern I have if [X] is to stay in Sydney.
The parent with whom [X] lives will need to assist him to adjust to the significant change in his care arrangements over the last two years, which is living in Sydney in an equal time arrangement with both his parents. I have formed the view that the parent best able to do this is his mother.
[X] and his father do not have that nurturing type of relationship. Theirs is a more pushing, extending, confronting relationship where the father pushes [X]. This is no criticism.
[X] will need time, nurturing, understanding and compassion and care to deal with the grief he will sustain in being separated from his father who he is used to seeing every week. His mother can provide this care and nurturing.
I would have a significant concern about his father’s capacity to nurture and provide for [X]’s emotional upheaval if he was to remain in Sydney and be separated from his mother, his primary carer. The mother has a greater capacity than the father to provide for this important aspect of his needs to enable [X] to continue his relationship with both parents.
A further concern I have if [X] remains in Sydney is that he will have holidays with his mother in Adelaide. This is inevitable. It is a real possibility that he will simply not return to Sydney and his mother will not force him to do so and thus further litigation will ensue.
This is a matter where minimising future litigation when making orders is relevant consideration.
There is much to support the father’s position that the mother has worked on her son to express his wish to live in Adelaide, pressured her son, minimised the importance of the father in his life, criticised him up hill and down dale on minor issues to achieve her end. However, there is also a significant support for the mother’s case that the father is neglectful, at one level with his son.
[X] was burnt on his upper thigh and around his genital region and abdomen whilst in his father’s care when making two minute noodles unsupervised. He had a couple of friends over. The father did not take this matter as seriously as the mother although he took him to the hospital and informed the mother. [X] then came into her care and she attended to his daily dressings.
Of real concern is that only 5 days after the burns [X] came into his father’s care and the father insisted [X] attend [activity omitted] despite the child telling him his burns were still tender and raw. The child suffered more pain when he was [omitted] as one would expect would happen at [omitted]. The mother is correct to criticise the father on this matter and father admits this was a poor decision.
The mother’s complaints of [X] suffering from five lots of head lice whilst in his father’s care are accepted by me. The mother’s complaints of the child returning to her and not having been properly showered or bathed are accepted by me.
It is clear that [X] has suffered series of nasty skin infections whilst in his father’s care from either fleas or the spa or both. The father has a number of animals in his apartment for [X] and the mother is concerned this may be unhygienic.
When one looks at the emails sent by the father to the mother on this issue and his behaviour it is a poor reflection on his parenting capacity in terms of day to day care. The father’s oral evidence was also of concern on these issues.
On one occasion [X] was returned to Adelaide with a concerning rash which originated in the father’s spa.
The father’s oral evidence was that he had noticed the rash just as he was taking the child to the airport; went to work, got [a prescription] and tried to get to a pharmacy to obtain the necessary treatment on the way to the airport. The child arrived quite unwell. His mother took him to the doctor where he was prescribed antibiotic cream for the rash.
The father is a [occupation omitted]. It is beyond my belief that he only noticed such a serious and unsightly rash as he was leaving for the airport. The father was neglectful on that occasion.
These are not the matters that are so important to the father.
The mother says the father does things with [X] first and later tells her of his decision. For example he took [X] to an optometrist, and a podiatrist and a without first telling the mother. The mother makes no complaint of these appointments but that he does not include her in his decision and is not a team player. He tends to do things in a solo way with the child.
The father made decisions to enrol [X] in [activities omitted] without checking if the mother could get him to those activities in her week. This indicates either a lack of respect or thoughtlessness.
However, these same criticisms could be made for the mother however it is clear the father does not include the mother in a lot of decisions he makes. He makes a decision then tells the mother after the event.
Assisting him with his maths and school work is very important for the father and I accept this assistance has reaped rewards for [X] whose performance in maths has improved dramatically. [X]’s work at school has significantly improved since he and his dad have been together and his dad is vigilant about his homework.
Having [X] attend extra-curricular activities and stay the course and not give up when the going gets tough are the important matters for his dad. His mother is the more nurturing parent.
At 13, [X] can fly unaccompanied between Adelaide and Sydney for weekends, other special occasions and holidays.
Skyping either parent is a task [X] can do without assistance, as is emailing. There are none of the impediments that distance creates in maintaining a relationship with a young child as opposed to a teenage boy of 13 who has a sound and attached relationship with each parent.
The relationship [X] has with each of his parents is strong and can withstand pressure, time lapses and distance. [X]’s parental relationships have withstood significant pressure in the last two years and are still strong.
I cannot accept that [X]’s relationship with his father will be severed if he lives in Adelaide. It will be changed and likely diminished but not severed. [X] is 13 his relationship with his father is sound and his father will maximise every opportunity to spend time with his son.
On the other hand if he does not go to Adelaide with his mother that is when I fear his relationships may be in serious difficulty. As Dr V says, [X] may feel abandoned by his mother which may cause a fracturing of his primary relationship with her, cause him to blame his father for this loss and then we have a child with an impaired relationship with each of his parents whereas at present he has a good relationship with each.
The orders sought
The parents agree they should share parental responsibility no matter where [X] lives.
The mother seek orders that [X] live with her in Adelaide.
That [X] spend time with his father in school term in Adelaide from after school Friday to before school Monday as agreed and failing agreement, the second, fourth, sixth, eighth and tenth weekends.
For 2 weekends a term in Sydney.
On in other occasion the father can come to Adelaide
The costs are shared by the parents.
A 10 day block holiday in April, July and September school holidays, and four weeks at Christmas commencing 27 December in odd numbered years and 24 December in even numbered years.
On any other occasion the father can come to Adelaide.
If [X] did not relocate with his mum the mother proposed she have similar time with [X] as for the father.
The father took no umbrage with the mother’s application and said if [X] lived with him he would have no issue with the mother coming to Sydney whenever she could to spend time with [X].
[X] would spend time with her in the holidays and on some weekends. Thus there is little between the parents as to [X]’s time with the other parent.
The issue is does he live in Sydney or Adelaide.
The competing proposals and likely scenarios are as follows.
a)The mother relocates to Adelaide without [X] and [X] remains living in Sydney with his father. What are the consequences for [X] in that event?
b)The mother relocates to Adelaide and [X] relocates with her. What are the consequences for [X] in that event?
c)[X] relocates to Adelaide with his mother and his father is able to arrange his work schedule such that he can continue the week about care arrangement in Adelaide. What are the consequences for [X] in that event?
Dr V was very positive of this 3rd option. She described it as a win-win for [X]. Properly she questioned whether the father could sustain such an upheaval in his life. I find that Mr Davies is extremely committed to his son and if anyone can make it work, he is the parent who can make it work.
There are then three proposals.
a)[X] with his mum in Adelaide, the dad coming to Adelaide on weekends. [X] being in Sydney for holidays and the occasional weekend.
b)[X] with his father in Sydney, the mother coming to Sydney on weekends. [X] being in Adelaide for holidays and the occasional weekend.
c)[X] in Adelaide with his mum and his dad with his care as is now.
The mother submitted that she has the established emotional relationship with her son. The father’s relationship with [X] is more outcomes orientated.
His father has a number of projects and activities for him to engage in and wants to see results. This is both good for [X] and important in his development. However living with his mother best serves [X]’s emotional needs.
It is very important, Ms Druitt said, that [X]’s wishes are acted upon. He has been expressing them for 18 months, he is 13 years of age and he is intelligent.
I reject any submission that [X] does not understand the consequences of his wishes to live in Adelaide with his mother. He clearly knows the consequence is that he will not be living with his father every second week.
He may not understand the emotional impact upon his functioning of such a decision and neither would most adults. However he knows the consequences of not living with his mother and he has told all and sundry for 18 months that this is not what he wants.
[X] is acutely aware of the consequence of his wishes. No one knows the future we adults do not so why should a child. I am certain he knows the consequence of his wish which is he will live with his mother and not with his father and mother week about. He is prepared to sacrifice living with his dad each fortnight to live with his mother. His wishes have weight. He voted with his feet on one occasion.
[X] knows Adelaide. He has lived there previously. He knows the distance between Sydney and Adelaide, the length of the plane flight, what it is like flying on a plane; none of this is new to him.
[X] may not know how he is going to feel no longer living with his dad and being separated from his school friends and attending a new school. However he has not raised any concerns about those matters with Dr V his mother or father. I do not accept that at an intellectual level he does not understand the meaning of living in Adelaide with his mother.
One matter Dr V raised which is of concern to the Court is if [X] is living in Adelaide with his mother in a situation where a lot of her time is devoted to caring for her aged mother this may not be the most conducive environment for a 13 year old boy to flourish. That may be true. However, if his father is able to manage a week about in Adelaide these concerns will be ameliorated by his father’s ability to engage in extra-curricular activities and continuing to extend [X]. Even if his father sees him each second weekend in Adelaide or more frequently these concerns will be lessened from the positive influence his father has on his development.
I was disappointed that the father could not see the potentially devastating impact upon [X] in not living with his mother when she is his primary attachment figure, and that is his expressed wish.
I could not see any insight from the father of the potentially serious impact of such a consequence on his son namely not living with the parent you have been saying you want to live with for 18 months for the next 5 years.
The mother shows greater attention to [X]’s physical needs, his rashes, his hair, his body odour, his clothing. His father is more focused on his education and his performance. Education can be maintained, fostered and encouraged electronically and remotely. Emotional nurturing and day to day care cannot.
What is the sadness is that the last 18 months have been diabolical for the parents and their relationship and in stark contrast to their past co-operation. Each has behaved in a non-child focused way at times.
The mother buying the child his own mobile and not telling his dad at the time of the run away. The mother causing the Department of Community Services investigation; the police interviewing the child on 2 September 2104 when he ran away from his father which was completely inappropriate, unnecessary and a poor way of dealing with this delicate situation. The mother made a rude call to Ms L, the father’s girlfriend, saying many nasty things. The mother admitted this action and agreed it was unnecessary, destructive and quite out of character.
At paragraph 39 of Ms L.’s affidavit:
On 13 September I received an anonymous call from a blocked number. When I answered the phone a woman’s voice said to me, with a stern voice, “Can I just say that, in the case of Hartman & Davies, you will be hauled to Court. Your parenting skills will be questioned.” “Who is this?” The caller hung up.
This was most unfortunate.
For the father enrolling him in all sorts of extracurricular activities before checking with his mother that she could deliver him to these various venues. Taking him to dentists, podiatrists and optometrists without letting his mother know in advance.
Insisting on [X] attending [activity omitted] when he was still be suffering from nasty burns, the child being burnt in his care; not treating his rashes, head lice, body odour, unkempt appearance appropriately. These are all matters both parents have significantly failed in.
However this is what can occur when our relationship with our children is at issue. We do not necessarily react appropriately.
The father has struggled to combine his work needs with [X]’s care. He leaves [X] at home at times alone. [X] complained that his dad left him at home when he was sick. His father’s work means he cannot always down tools to care for his son at short notice. It has been difficult for the father to maintain this equal time arrangement whilst he works full-time without anyone to assist him in the care of his son.
I accept [X] does not like being left alone and this has been an issue for the child and the mother.
I accept that in some aspects the father has put [X]’s needs first. However, that is not so when it comes to his work. The father should have put in place known and structured care arrangements for [X]
There should have been someone to collect and deliver him to and from school or [X] attend after school care or some other arrangement. It has been ad hoc and difficult, and I accept this child has been left at home, at times, alone and his father has not been able to make those arrangements. There is no complaint from [X] whilst in the mother’s care of being left alone.
Although I do not accept that the mother cannot afford to live in Sydney I do not accept that the mother exhibits a self-focused approach in her desire to move to Adelaide. It is very important for a parent that where you live and what is happening in your life is satisfying for your needs as well as your child to enable you maximise your parenting capacity. Children do not live in a vacuum and what is happening to their parents is happening to them be it positive or negative.
The mother is torn between the needs of her mother and her son. It is not for me to judge which should prevail that is the mother’s decision. I can only deal with and rule upon the consequences for [X] of her decision.
There are many reasons why it will be beneficial for [X] to live in Adelaide with his mother. His mother will be satisfied being able to care for her mother and her son, she will have little if any financial stress as her home is unencumbered and will be able to afford to send him to a private school, she will be returning to her and [X]’s place of birth, [X] will be close to his extended maternal family of uncles cousins and his mother’s parenting capacity will be enhanced due to her level of satisfaction and contentment in living where she believes it is best for she and [X].
It was put to me most strenuously by Ms Kennedy that stability for [X] is paramount - maintaining his school, his circle of friends, his relationships, particularly his beneficial relationship with his father is what is at issue. That is true and I accept the submission. However, he has had one year at a high school in Sydney. If he goes to Adelaide he will be commencing at the [R] School, and he will be staying in Adelaide.
There should be no more arrangements by agreement whereby this boy is moved from state to state by either of his parents. I do not see that the stability of these outside activities, although important, trumps his primary relationship with his mother and his attached relationship with his father. These outside stabilities are relevant but cannot trump his parental relationships.
Ms Kennedy submitted that what [X] needs is for his mother to step up to the plate and say, “I’m going to Adelaide to look after grandmother. You’re going to live with your dad. I’ll see you lots, and I love you.” I reject that submission. Dr V was most concerned that if that eventuated [X] would feel rejected by his mother and then suffer all the emotional costs that may follow.
At paragraphs 97 and 98 of her report:
Ms Hartman appears to be the more laissez-faire parent, although she disputes she has not set boundaries for [X], but she is less likely than Mr Davies to challenge [X] or say no to him, and indeed perceives his father as pushing him too hard.
Mr Davies is the parent who is more likely to encourage [X] to move out of his comfort zone and to face challenges, albeit they might be uncomfortable. With a child who has some propensity for anxiety, such as [X], facing difficult situations in a supported way is extremely important for him.
Dr V saw [X] and his father at a most difficult time. He did not want to see his father their meeting was strained as he has just run away. I accept things have settled down. I accept Dr V’s concerns at the time of the report interviews of [X] not being able to maintain his relationship with his dad over distance given his behaviour at that time and the strained relationship she observed. However that is not the situation now.
The father has the capacity to say, “It’s okay, mate. I love you. Don’t worry about it,” and has done so. The result has been [X] moved back in with his dad with little difficulty or problem, and the relationship is as strong as ever.
Paragraph 98:
The lack of appreciation each of the parents has for the other’s parenting is unfortunate, because rather than [X] being exposed to two styles of parenting that can serve enhance his wellbeing, [X] is choosing to take a critical and rejecting stance, particularly towards his father.
[X] may be taking such a stance as he sincerely wishes to reside in Adelaide or live with his mother wherever she lives and his father is not listening to him. I do not criticise his father if this be the case. The consequence of listening may be too hard to accept.
Dr V went on to say:
It may not necessarily be the most beneficial for [X] to live with a parent who does not push him, as his father did.
[X]’s presentation was concerning, as it took a position, a black and white view of each parent, and that is often a precursor for difficulties in maintaining a relationship with both parents as children progress through their adolescence.
Dr V saw [X] at a very difficult time for him. He had just run away from his dad. He described his mother as the perfect parent which cannot be correct. However his comments and presentation are in a context where he has been asking and expressing a wish to live in Adelaide with his mum for 18 months. It is not something that has just happened. It is not a request that has just occurred, and part of his presentation may have been due to his belief that his father is not listening to him.
Paragraph 74:
Given the current proposals of the parties, there are wins and losses for [X] whatever the outcome. Relocation by Ms Hartman with [X] to Adelaide raises the tension of Ms Hartman meeting her needs, against the losses for [X].
The option is congruent with [X]’s views. He does have positive memories of living in Adelaide. It is imperative his views be given more weight; otherwise there is a strong likelihood he will usurp his wishes by choosing with his feet where he lives, and that is to be discouraged. But his views are not based on a mature appreciation of the options, and he is identifying with his mother.
Dr V said, if the past is an indicator of the future, there may be more moves for [X].
I do not necessarily share this concern. The parties did not need orders until 2012. They will have orders in place now that prohibit a parent from changing a child’s permanent place of residence. Thus I do not share that concern.
Of the negatives of the move Dr V said that there is an element of the mother placing her needs in the foreground as was the case when she moved to Adelaide on the last occasion to assist with her mother.
Dr V agreed that although there is a correlation of a primary care-giving parent being happy, and a child benefiting because the parent is happy, at paragraph 78 she opined:
There is a disruption of [X]’s education trajectory as well as his peer group, which assumes increasing greater importance for adolescence.
Dr V was concerned that the mother had a limited insight into the impact of relocating to Adelaide on [X]’s relationship with his father and that the move would signify a significant loss in the continuity of regular time [X] spends with his father, and is likely to seriously diminish the social capital the father has to offer and the role model he provides for [X].
Dr V was properly critical of the cake with the words “you are definitely a Hartman” inscribed thereon and the text messages [X] sent to his father. I agree the mother should have intervened on these occasions.
However these e-mails and the cake were at a real low point of the parents’ relationship, not the high point they had enjoyed up until late 2011, early 2012.
The law
The competing proposals are clear. For the mother it is for [X] to live permanently in Adelaide with her.
If she is not permitted to move him to Adelaide then he lives with his father in Sydney and she and [X] spend time together in Sydney and Adelaide.
For the father it is that [X] live with him in Sydney the mother lives in Adelaide and [X] spend time with his mother in Adelaide and Sydney.
Or the third possibility that if [X] moves to Adelaide his father may be able to arrange his work to continue the equal time arrangement in Adelaide.
In the Full Court’s decision in Hepburn and Noble[1] they held that A and A: Re-location Approach[2] is no longer good law after the 2006 amendments to the Family Law Act.
[1] [2010] FamCAFC 111.
[2] (2000) FLC 93-035.
In Cales & Cales[3] their Honours said at page 15 paragraph 65.
[3] [2010] FamCAFC 237.
The effect of the change introduced by the amending Act were explained in Goode & Goode as follows.
“In our view the Act makes it clear that when a parenting order is sought whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of a child that the child’s parents have equal shared parental responsibility as expressed in s. 61DA. subject to the qualifications in subsection (2), (3) and (4).”
The finding that such a presumption is in a child’s best interest necessarily leads to a consideration under section 65DAA of whether a child should spend equal time with or significant and substantial time with parent. This legislative intent and pathway when determining these proposals has been subject to a decision in the High Court of MRR & GR[4].
[4] [2010] HCA 4.
In Cales their Honours went on to discuss the principles arising out of MRR & GR concluding at paragraph 140 that:
In MRR the High Court has now made it clear that in making an order in a child’s best interests section 65DAA requires consideration of both “best interests” and “reasonably practicable” when considering making either an equal time or significant and substantial time orders.
The High Court went on to say that:
Section 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
The Court said it was clear that both questions need to be answered when reading paragraph (c) which refers back to the two preceding questions posed in paragraphs (a) and (b) namely whether it is both in the child’s best interests and reasonably practicable for such an order to be made. Further this two fold approach is a statutory condition that must be fulfilled before the Court has the power to make a parenting order of that kind.
Where, as here, there is a prospect of a relocation, the High Court held in MRR & GR that section 65DAA(1) is concerned with the reality of the situation of the parents and the child and not whether it is desirable that there be equal time spent by the child and each parent, and sic I read, significant and substantial time.
The presumption in section 61DA(1) of equal shared parental responsibility is not determinative of the questions arising under section 65DAA(1) being the nature of the time to be spent.
The Court said section 65DAA(1)(b) requires a practical assessment of whether equal-time parenting is feasible or sic significant and substantial time is feasible.
The principles in a relocation matter were set out by Federal Magistrate Brewster, as he then was, in his first instance judgment in Taylor & Barker[5] and were confirmed by the Full Court at the Appeal and are:
a)The best interests of the children are the paramount consideration but not the sole consideration. This principle was confirmed by Justice Boland sitting as a single Appeal Judge in Morgan & Miles[6].
b)Secondly, and consistent with Justice Kirby’s decision in AIMS v AIF[7] freedom of movement is a factor in these decisions.
c)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed neither party bears an onus: that is to say neither parent has the onus to establish that a change in the current contact arrangements or a continuation of those arrangements will best promote the interests of a child.
d)The reasons for a parent wishing to relocate with a child are only one of the matters to be considered and it should not be dealt with as a separate issue. This principle was approved in Taylor & Barker.
e)The Judge must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
f)The Judge is to indicate which matters are of greater weight and explain how the matters balance out.
[5] [2007] FamCA 1246.
[6] (2007) FLC 93-343.
[7] (1999) CLR 160.
The starting point is whether to rebut the presumption of equal shared parental responsibility.
Although the parents do not communicate effectively now they have in the past and neither sought I rebut the presumption.
[X] cannot spend equal time or significant and substantial time with his parents if his mother is in Adelaide and his father in Sydney.
As the mother is determined to live in Adelaide no matter the Court’s decision [X] can only live in such an arrangement if his father can also manage to live in Adelaide. There is a prospect he can but it is only that, a prospect.
If his father can manage to live in Adelaide for a week at a time I would continue the equal time arrangement. Dr V says the current arrangement of equal time has provided [X] with the best both his parents can give; will maximise his current positive education trajectory and development into adulthood as he will have his mother’s nurturing and his father’s capacity to push him out of his comfort zone which are both to his benefit.
However, unless the father can manage to turn his life upside down for his son this is not a possibility.
If [X] lives with his mother he will continue to benefit from his meaningful relationship with her. There must be a diminution in his relationship with his father; however I do not accept that the mother will not promote the relationship. The mother will promote this relationship as she always had until it became necessary to litigate the competing proposals. [X]’s relationship with his father will continue although it could not be as fulsome as it is now and may be at a more superficial level.
If he stays in Sydney he will continue to benefit from his relationship with his father however there is a distinct possibility that given such an outcome is against his strongly held wishes his relationship with his mother and father may be diminished.
Dr V said [X] may feel abandoned by his mother and resent her, blame his father for this abandonment and resent him and the result may be a diminished relationship with each parent when currently it is good with both.
The child’s wishes
[X]’s wishes are clear he wants to live in Adelaide with his mother. Although Dr V said [X] did not understand fully the consequences of such a move I do not so find. [X] knows Adelaide, he knows if he does not live in Adelaide he will not be living with his mother and he knows he will not be living with his father if he does live in Adelaide. I must place weight on his wishes and give them careful consideration as Dr V opined.
Parental capacity
Both parents have a capacity to provide for their son’s emotional, psychological and educational needs. The father has a superior capacity to provide for his educational and confidence needs by pushing his son and his mother a superior capacity to provide for his emotional needs.
I would be concerned at his father’s capacity to cope and help [X] cope with his distress if he is not to move to Adelaide. He and his dad can engage in their maths test and the like over the internet and via Skype this is not so for emotional needs.
Both parents take their responsibility of parenthood seriously and have always been involved in their son’s life.
The likely effect of change on [X]
There is a significant risk to [X]’s emotional stability in his relationship with his father, his mother, and his ability to form attachments in the future with others if his secure primary attachment to his mother is severed or damaged, which is a potential risk if he lives in Sydney with his father. That is a most significant risk for [X].
His mother may have engineered unwittingly or intentionally this risk by her decision to live in Adelaide without [X].
However I accept [X] sincerely wants to live with his mother and that this is his informed position.
The risk of his relationship with his father being diminished or even severed which is a risk whether he lives in Sydney or Adelaide would not place him in the same emotionally vulnerable state of diminishing or severing his relationship with his primary carer.
As I see it on the evidence this is where the balance lies.
Lifestyle, sex, and maturity
[X] is a boy and his father’s capacity to extend his son, deal with him in a child-focused way, not let him get away with not completing task is a benefit to him and a contrast to his mother’s style of parenting.
The rude emails the boy sent to his father, which his mother should have pulled him up for is a classic example. His father’s response was to confirm his love for his son.
[X] has a level of maturity and is a capable child and he has benefitted from both parents involvement in his life and upbringing.
However, the real concern for this Court is that if [X]’s wish to live with this mother is not granted he may vote with his feet as he has done in the past and not return from Adelaide to Sydney after a holiday.
I do not accept Ms Druitt’s submission that the father moved away from his stated position in cross-examination that, “I can go to Adelaide seven days in 14.” What he said was, “It would be difficult. It will take me time to work it out.” I accept that. This is something he has thought about, because he is thoughtful. When it comes to his son he will move heaven and earth to maximise his relationship.
Capacity to promote relationship with the other parent
For reasons that are unclear to me, both Dr V and Ms Kennedy said the father had a superior capacity to promote [X]’s relationship with his mother than the mother did with the father.
I disagree. It has been the mother who has promoted the child’s relationship with the father since his birth in difficult circumstances where the parents had little time living together and separated before his birth.
The mother voluntarily returned to Sydney after [X]’s birth when there was no compulsion on her to do so.
The mother has returned with [X] or returned him to Sydney from Adelaide on at least 2 occasions when there were no orders in place.
If the mother did not want to promote [X]’s relationship she would not have and would have stayed in Adelaide and never returned to Sydney voluntarily on several occasions.
[X] has a strong and attached relationship with his father and he would not have this relationship if it had not been supported by his mother.
These matters have been overlooked by the father and even Dr V came to the same conclusion. However she saw [X] at a time when he had run away from his father and she did say she wished she had been able to re-interview the family when things had settled down. When she was informed [X] had returned to his dad and all had settled down she then somewhat softened her opinion of the mother’s capacity to promote this relationship into the future and over distance.
I do not accept either parent has a greater capacity than the other to promote their relationship with their son. They both have it in spades, and they have done it.
Each had a good working relationship before this litigation and I am hopeful it will reignite once this judgment is delivered.
The father has taken a unilateral, I know what is best attitude to some matters such as extra-curricular activities etc. and is not as careful or conscientious as the mother about safety and personal hygiene.
The mother has let [X] know she is moving to Adelaide and all the benefits he will have if he joins her. There may well be an element of the mother’s needs being taken up by [X] as his needs. However his mother has been his primary carer and he is closely aligned with her.
Impact of change
There are significant practical difficulties whether [X] lives in Sydney or Adelaide for both parents and the child. The parents have the capacity to overcome these difficulties. Whatever order is made there will be significant change for [X].
If he remains in Sydney he no longer lives with his mother but he stays at his current school, maintains his friendships and his usual activities and continues to live with his father and have his father’s daily and valuable input into his education.
If he moves to Adelaide he has to adjust to a new school, which is agreed he attend, new friends to make, new home to live in and will no longer be living with his father. He will to have to share his mother with his grandmother. These are not insignificant changes. His positive educational trajectory may be disrupted by the changes and in not having his father pushing him each second week.
If he moves to Adelaide and his father is able to mange to live there each second week the impact of the bi-weekly contact with his father will minimise the changes for [X] and ensure his education remains on track.
This is a matter where minimising future litigation when making orders is a relevant consideration.
If [X] remains living in Sydney he will have holidays with his mother in Adelaide. This is inevitable. It is a real possibility that he will simply not return to Sydney from a holiday and his mother will not or may not be able to force him so to do and thus further litigation will ensue.
Difficulty and expense in maintaining time
There is a difficulty and expense for the parents in enabling [X] to maintain his relationship with either parent no matter what order I make. However his parents have the financial resources to overcome some of these obstacles.
If he lives in Sydney he flies to Adelaide and his mother flies to Sydney.
If he lives in Adelaide he flies to Sydney and his father flies to Adelaide.
If his father lives in Adelaide each second week his father bears the brunt of travel. The parents agree they will share these costs.
Importantly at 13 [X] can fly unaccompanied between Adelaide and Sydney for weekends, other special occasions and holidays.
Skyping either parent is a task [X] can do without assistance, as is emailing. There are none of the impediments that distance creates in maintaining a relationship with a young child as opposed to a teenage boy of 13 who has a sound and attached relationship with each parent.
The relationship [X] has with each of his parents is strong and can withstand pressure, time lapses and distance. [X]’s parental relationships have withstood significant pressure in the last two years and are still strong.
On balance the option which I find has the best chance of maintaining [X]’s relationship with each of his parents is that he move to Adelaide with his mother.
The win-win is if his father can manage to live in Adelaide as well once each second week.
However, even if that is not possible the prospect of [X] having a damaged relationship with each parent is a real possibility if he remains in Sydney. This is a primary consideration under the Act and has been a significant factor in my decision to favour the mother’s position as the order that will be in [X]’s best interests into the future.
I certify that the preceding two hundred and fifty (250) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Associate:
Date: 09. 01. 2015
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