HEENEY & HEENEY
[2015] FCCA 1337
•21 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HEENEY & HEENEY | [2015] FCCA 1337 |
| Catchwords: FAMILY LAW ̶ Whether wife and child should relocate from 115km from husband’s residence to 30km from husband’s residence ̶ whether wife should have sole responsibility for choosing school ̶ whether husband should be restrained from placing child’s photo on social media ̶ amount of time spent with husband. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 Sayer & Radcliffe and Anor [2012] FamCAFC 209 |
| Applicant: | MR HEENEY |
| Respondent: | MS HEENEY |
| File Number: | DGC 357 of 2014 |
| Judgment of: | Judge Phipps |
| Hearing dates: | 13 & 14 & 15 May 2015 |
| Date of Last Submission: | 15 May 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 21 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | Serge Naya & Associates |
| Counsel for the Respondent: | Ms Conlan |
| Solicitors for the Respondent | Susan Ruffin Solicitors |
| Counsel for the Independent Childrens Lawyer: | Ms Glaister |
| Solicitors for the Independent Lawyer: | Victoria Legal Aid |
ORDERS
All previous orders, including the order appointing the Independent Children’s Lawyer, are discharged.
The husband and the wife have equal shared parental responsibility for the child [X] born [omitted] 2012 save that the wife will have sole parental responsibility in relation to decisions concerning where the child will attend kindergarten and primary school.
The child live with the wife.
The child spend time and communicate with the husband as follows:
(a)until the child turns four each alternate weekend from 3.00pm or from after kindergarten or school on Friday until 4.00pm on Sunday;
(b)upon the child turning four each alternate weekend from 3.00pm or from after kindergarten or school on Friday until 4.00pm on Sunday extending to 4.00pm on Monday if Monday is a non-school or non-kindergarten day;
(c)until the child commences kindergarten in 2017, each alternate Wednesday from 10.00am until 6.30pm with changeover taking place at the McDonald’s Restaurant [omitted];
(d)for the 2015/2016 long summer vacation and the school term holidays at the conclusion of terms one, two and three the child’s alternate Wednesday time with the husband be extended to an overnight visit as agreed between the parties and in default of agreement the time will conclude at 4.00pm on the Thursday;
(e)from term one of 2017 when the child commences kindergarten, each alternate Wednesday from 3.00pm or after kindergarten or school until 6.30pm with changeover taking place at McDonald’s restaurant, [W];
(f)upon the child turning five from after school Wednesday until before school Thursday each alternate week;
(g)from 3.00pm Christmas Day 2015 until 5.00pm 26 December 2015 and each alternate year thereafter with the husband’s time, if any, suspended from 10.00am on 24 December 2015 until 3.00pm on 25 December 2016 and each alternate year thereafter;
(h)from 10.00am on 24 December 2016 until 3.00pm on 25 December 2016 and each alternate year thereafter with the husband’s time, if any, suspended from 3.00pm Christmas Day 2016 until 5.00pm 26 December 2016 and each alternate year thereafter;
(i)on Father’s Day weekend from 4.00pm Saturday until 4.00pm Sunday;
(j)if Mother’s Day falls on a weekend that the child is to spend time with the husband then the time is suspended from 4.00pm on Saturday;
(k)on the child’s birthday, if not on a day the child is spending time with the husband from after school or kindergarten until two hours later with the child to be returned to the wife at the McDonald’s Restaurant [omitted], and if a non-school or non-kindergarten day from 2.00pm until 5.00pm with changeover at the McDonald’s Restaurant [omitted];
(l)if the child’s birthday occurs at a time the child is spending time with the husband the husband’s time is suspended on a school or kindergarten day from after school or kindergarten until two hours later with the child to be returned to the husband at the McDonald’s Restaurant [omitted], and if a non-school day or non-kindergarten day from 2.00pm until 5.00pm with changeover at the McDonald’s Restaurant [omitted];
(m)during the 2016/2017 long summer vacation only the child’s weekend time be extended for an additional two nights as agreed between the parties and in default of agreement time will conclude 4.00pm on Tuesday;
(n)from the commencement of term one 2017, when the child commences kindergarten, for half of the first, second and third school term holiday periods, at times to be agreed between the parties and if no agreement from 3.00pm or the conclusion of school or kindergarten on the last Friday of the school term until 3.00pm the following Friday with the weekend and Wednesday time to be suspended during all school holidays;
(o)from the conclusion of term four, 2017 for one half of the long summer vacation on a week about basis at times to be agreed in writing and if no agreement then from 10.00am on the day after the last day of kindergarten or school until 10.00am seven days later and each alternate week thereafter until the conclusion of the vacation save that the child must be returned to the wife no later than 48 hours prior to the commencement of the new school year with the weekend and Wednesday time to be suspended during all school holidays;
(p)from the conclusion of term four, 2019 for one half of the long summer vacation times to be agreed in writing and if no agreement from 10.00am on the day after the last day of school until 10.00am on the middle day of the vacation in odd numbered years and from 10.00am on the middle day of the vacation until no later than 48 hours prior to the commencement of the new school year in even numbered years with the weekend and Wednesday time to be suspended during all school holidays;
(q)by FaceTime or telephone each Wednesday when the child is not otherwise in the husband’s care during school term between 6.15pm and 6.30pm with the husband to initiate the call to the wife’s phone and the wife to facilitate the call;
(r)such further or other times as may be agreed between the parties.
Unless otherwise agreed between the parties in writing, including text or email, changeover when not at school, kindergarten or the McDonald’s restaurant [W] shall take place at the BP service station [C].
The husband and the wife do all acts and things necessary and provide all necessary authorities to the other parent to engage with any agreed medical practitioner or allied health professional treating the child from time to time.
The husband and the wife follow all reasonable recommendations and directions of any agreed medical practitioner or allied health professional treating the child from time to time, including the administration of prescribed medication and engaging with other support services.
That each parent is authorised to attend any events and activities ordinarily attended by parents of the child’s kindergarten and school and to receive any information from the kindergarten and school ordinarily received by parents.
The parties ensure that at all times they provide to the other party their current contact telephone number and address.
Each parent inform the other parent of any serious illness, hospitalisation or injury sustained by the child whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the child together with the contact details for the treating doctor(s).
Each of the wife and the husband be and are hereby restrained by injunction from:
(a)denigrating the other parent or any member of the parents family in the presence or hearing of the child or allowing any other person to do so;
(b)discussing these proceedings in the presence or hearing of the child or allowing any person to do so;
(c)exposing the child to family violence;
(d)during any time the child is in their care drinking alcohol to excess or knowingly bringing the child into contact with anyone so affected;
(e)publishing photographs of the child on social media or any public forum or from permitting any other person to do so.
The husband and the wife will each use email and/or text to relay appropriate information about the child’s routine, medication and any other queries or concerns relating to the day-to-day care of the child or any matters relevant to the child’s arrangements.
That each party continue to attend upon their respective counsellors and follow all reasonable recommendations and directions of their counsellors.
That otherwise all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Heeney & Heeney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 357 of 2014
| MR HEENEY |
Applicant
And
| MS HEENEY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Heeney, the husband and Ms Heeney, the wife separated on 23 November 2013. Since then the wife and the parties child, [X] born [omitted] 2012, have lived with the wife’s mother and stepfather in [W] and the husband has remained living in the former matrimonial home in [F].
The issues are:
a)should the wife move her residence and that of the child to within 30km of [F]?
b)should the wife have sole authority to decide which school and kindergarten the child attends?
c)how much time the child should spend with the husband?
d)whether each party should be restrained from publishing photographs of the child on social media or any public forum or from permitting any other person to do so.
Proposals
The husband proposes that the parties have equal shared parental responsibility for the child and that the child live with the wife. He proposes an order that the wife, by the end of January 2016, relocate with the child back to within 30km of [F] and that he pay the wife $150 towards her rent for the first 12 months of the change of residence.
In summary the husband proposes that the child spend time with him:
a)On alternate weekends;
i)from 2.00pm on Friday until 12.00pm on Sunday for two weekends;
ii)from 2.00pm on Friday until 4.00pm on Sunday for two weekends;
iii)thereafter from 2.00pm on Friday until 12.00pm on Monday;
b)from 10.00am Wednesday until 12.00pm Thursday each alternate week;
c)during school holidays:
i)from September 2015 until first term 2016 from 2.00pm Friday until 2.00pm on Wednesday;
ii)from second term 2016 for half school holidays as agreed and failing agreement on a week about basis with the husband to have the first week;
The husband has proposals for birthdays, Father’s Day, Christmas Day and Easter. He proposes change over at [C].
The wife proposes that the parties have equal shared parental responsibility for the child save that the wife have sole responsibility in relation to decisions concerning where the child will attend kindergarten and primary school. She proposes that the child live with her. She proposes that the child spend time with the husband as follows:
a)each alternate weekend from 3.00pm or from after kindergarten or school on Friday until 4.00pm on Sunday;
b)until the child commences kindergarten in 2017, each alternate Wednesday from 10.00am until 4.00pm with changeover taking place at the McDonald’s Restaurant [omitted];
c)for the 2015/2016 long summer vacation and the school term holidays at the conclusion of terms one, two and three the child’s alternate Wednesday time with the husband be extended to an overnight visit as agreed between the parties and in default of agreement the time will conclude at 4.00pm on the Thursday;
d)from term one of 2017 when the child commences kindergarten, each alternate Wednesday from 3.00pm or after kindergarten or school until 6.00pm with changeover taking place at McDonald’s restaurant, [W];
e)from 3.00pm Christmas Day 2015 until 5.00pm 26 December 2015 and each alternate year thereafter with the husband’s time, if any, suspended from 10.00am on 24 December 2015 until 3.00pm on 25 December 2016 and each alternate year thereafter;
f)from 10.00am on 24 December 2016 until 3.00pm on 25 December 2016 and each alternate year thereafter with the husband’s time, if any, suspended from 3.00pm Christmas Day 2016 until 5.00pm 26 December 2016 and each alternate year thereafter;
g)on Father’s Day weekend from 4.00pm Saturday until 4.00pm Sunday;
h)if Mother’s Day falls on a weekend that the child is to spend time with the husband then the time is suspended from 4.00pm on Saturday;
i)during the 2016/2017 long summer vacation only the child’s weekend time be extended for an additional two nights as agreed between the parties and in default of agreement time will conclude 4.00pm on Tuesday;
j)from the commencement of term one 2017, when the child commences kindergarten, for half of the first, second and third school term holiday periods, at times to be agreed between the parties and if no agreement from 3.00pm or the conclusion of school or kindergarten on the last Friday of the school term until 3.00pm the following Friday with the weekend and Wednesday time to be suspended during all school holidays;
k)from the conclusion of term four, 2017 for one half of the long summer vacation on a week about basis at times to be agreed in writing and if no agreement then from 10.00am on the day after the last day of kindergarten or school until 10.00am seven days later and each alternate week thereafter until the conclusion of the vacation save that the child must be returned to the wife no later than 48 hours prior to the commencement of the new school year with the weekend and Wednesday time to be suspended during all school holidays;
l)from the conclusion of term four, 2019 for one half of the long summer vacation times to be agreed in writing and if no agreement from 10.00am on the day after the last day of school until 10.00am on the middle day of the vacation in odd numbered years and from 10.00am on the middle day of the vacation until no later than 48 hours prior to the commencement of the new school year in even numbered years with the weekend and Wednesday time to be suspended during all school holidays;
m)by FaceTime or telephone each Wednesday when the child is not otherwise in the husbands care during school term between 6.15pm and 6.30pm with the husband to initiate the call to the wife’s phone and the wife to facilitate the call;
n)such further or other times as may be agreed between the parties.
The Independent Children’s Lawyer proposes that the child and wife remain living in [W] and time with the husband as recommended by the family consultant Ms S.
The wife and the Independent Children’s Lawyer propose an order prohibiting the placing of photographs of the child on social media.
The parties agree on a number of general consideration orders.
Children’s provisions
Children’s provisions are contained in Part VII of the Family Law Act 1975 (Cth). The objects of the part and principles underlying it are s.60B.
1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of these objects and principles has relevance in this dispute.
Section 61DA provides that the court when making a parenting order in relation to a child must apply a presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. The relevance is that the wife proposes an exception for choice of school and kindergarten.
Section 65DAA provides that if the child’s parents are to have equal shared parental responsibility the court must consider whether equal time is in the child’s best interests and reasonably practicable or if not equal time substantial and significant time. The definition of substantial and significant time and the considerations for reasonably practicable are contained within the section.
Section 60CA 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. In determining what is in the child’s best interest the court must consider the matters set out in s.60CC(2) & (3).
For children’s matters the pathway through the provisions of the children’s provisions in Part VII, of the Family Law Act 1975 (Cth) is described by the Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
The distance between the wife’s home in [W] and the husband’s home in [F] is 115km. The changeovers have taken place in [W] and at [C], about halfway between each home. The husband says that in peak periods it can take him one and a half to 2 hours to drive to [W].
The husband asserts that this is a relocation case. Arguably it is not. Whether it is or not the pathway through the legislation described in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286 applies in a relocation case just as in any other children’s case. See for instance the decision of the Full Court of the Family Court of Australia in Sayer & Radcliffe and Anor [2012] FamCAFC 209.
History
The husband was born on [omitted] 1981. He is 34. The wife was born on [omitted] 1984. She is 31. The parties met in 2005 and commenced living together in February 2008. They married on [omitted] 2010. The child was born on [omitted] 2012 and is now two and a half years old. The parties separated on 23 November 2013. Throughout the marriage they lived at [F] [address omitted].
The husband is a [occupation omitted] and owns and operates his own [omitted] business. He has five employees. He has flexible working hours.
The wife is a qualified [omitted] and was employed in that capacity in the [F] area until before the birth of the child.
Separation occurred while the parties were attending a wedding at [B] and the child was being cared for by the maternal grandmother. The mother returned from [B] without the husband and went to her mother’s house in [W] where she has lived with the child ever since.
Following separation the child spent time with the husband for about three hours in a park on 1 December 2013 and then between 2 December 2013 and 4 January 2013 on six other occasions for six hours each time at his sister’s home in [P], Victoria.
An incident occurred at changeover on 4 January 2014. The wife was accompanied by her mother, brother and stepfather. Allegations of assault and abuse are made on both sides. On 10 January 2014 the wife applied for a Family Violence Intervention Order against the husband. The matter was settled by way of an undertaking by the husband.
The husband filed the Initiating Application on 12 February 2014. On 26 March 2014 interim orders were made by consent for:
a)the child to spend time with the husband each alternate Saturday commencing 29 March 2014 from 9.30am to 1.30pm and each alternate Sunday commencing 6 April 2014 from 9.30am to 1.30pm;
b)the husband’s time with the child be supervised by one of two named supervisors.
c)each party attend a psychiatrist, for assessment and report.
d)the parties and the child attend Dr W for the preparation of a family report.
On the same day, 26 March 2014 an order was made for the appointment of a Independent Children’s Lawyer.
On 16 May 2014, following the reports, further interim orders were made by consent that:
a)the child spend time with the husband from 10.00am to 4.00pm each alternate Sunday commencing 18 May 2014 and from 10.00am until 4.00pm each Saturday commencing 24 May 2014;
b)the application be adjourned to 11 July 2014;
c)the provision for supervision of spend time be discharged for the last two visits before the adjourned date.
On 11 July 2014 interim orders were made by consent for the child to spend time with the husband:
a)from 10.00am to 6.30pm each alternate Sunday commencing 13 July 2014;
b)from 10.00am until 6.30pmm and each alternate Saturday commencing 19 July 2014;
c)each alternate Wednesday from 12.00pm until 6.00pm commencing 23 July 2014;
d)from 9.30am to 12.30pm on the child’s birthday [date omitted] 2014;
e)such other times as agreed.
On 11 July 2014 the provision for supervision was discharged.
On 8 December 2014 further interim orders were made by consent for the child to spend time with the husband;
a)until 19 February 2015;
i)each alternate Wednesday from 10.00am to 6.30 pm;
ii)on 25 December 2014 from 10.00am until 5.00pm;
iii)otherwise as agreed;
b)from 19 February 2015;
i)each alternate Wednesday from 10.00am to 6.30 pm;
ii)from 4.00pm on Friday 2015 until 12.00pm on Saturday, 21 February 2015;
iii)from 4.00pm on Saturday, 28 February, 2015 until 12.00pm on Sunday one March 2015;
iv)from 4.00pm on Friday, 6 March 2015 until 4.00pm on Saturday, 7 March 2015 and each alternate weekend thereafter from 4.00pm Friday until 4.00pm Saturday;
v)from 4.00pm on Saturday, 14 March 2015 until 4.00pm on Sunday, 15 March 2015 and each alternate weekend thereafter from 4.00pm Saturday until 4.00pm Sunday and from the start of April 2015 from 10.00am Saturday until 4.00pm Saturday;
vi)otherwise as agreed between the parties.
The order of 8 December 2014 included an order for the parties to attend Dr W for an updated family report. Dr W became ill and the updated family report was prepared by Ms S. Unfortunately, Dr W is now deceased.
The orders made on late December 2014 have continued up to the hearing.
The reports
Dr G, consultant psychiatrist, prepared reports on both parties. He prepared a report and supplementary report on the husband.
The husband told Dr G that he was seeing a psychologist, Dr J, on a weekly basis and had been since November 2003. In late 2012 his general practitioner prescribed an antidepressant because the husband was depressed before the separation. Dr G’s diagnosis is that the husband appears to have suffered from an Adjustment Disorder with Depressed Mood characterised by low mood and other biological, psychological and social symptoms of depression, in the context of significant marital and parenting stresses. He said that the symptoms appear to have remitted and the husband appears to no longer be suffering from a psychiatric disorder.
Dr G concluded that the prognosis with regard to the husband’s health appear to be good. He concluded that psychiatric disorder does not appear to be a significant factor with regard to the husband’s ability in providing positive parenting, having his daughter live with him, or spend time with him unsupervised.
The wife told Dr G that she attended a psychiatrist, Dr L, on a monthly basis and had been doing so since 2009. She told him that in 2008 she had been referred to her father’s psychiatrist, Dr K. She couldn’t cope and was very depressed. Her father had bipolar disorder and Dr K thought she had it. She told Dr G that she had previously been depressed at age 15, but that she had not received treatment and had been not too bad.
In his summary Dr G says that the mother describes a significant history of depression. The first episode of lowered mood occurred in adolescence and then she had a significant period of depression during her mid-20s, at a time of multiple stressors.
Under the heading “Prognosis” Dr G says there is a significant possibility that the wife will suffer from depressive symptoms in the future if she encounters significant and sustained stressful life events. He said she appears to have matured emotionally and to have gained from her treatments. He concluded that as long as she maintains self management strategies, utilises appropriate supports and actively seeks psychiatric or psychological treatment when necessary, there is also a significant possibility that she will remain well and in the event of any developing depressive symptoms, be capable of dealing with these quickly.
Dr W prepared a lengthy report dated 1 May 2014. The child was not then two. At the time the main issue was whether the child should have unsupervised time with the husband. This is not now an issue. Dr W wrote in some detail about the conflict between the parties and said that there was a need to take a cautious approach. The she referred to the first four years of life as being a time of developmental vulnerability and said that one of the factors that significantly threatens this attachment for the nation is the effect on a child of repeated and prolonged separation from the primary attachment figure. The wife is the primary attachment figure.
Dr W recommended that daytime time continue until the child was 30 months when overnight time could be considered eventually leading to Friday afternoon until Monday morning on alternate weekends and then holiday time possibly in the June 2015 school holiday period being half the school holidays but no more than five nights in a row in the first two holiday periods and no more than a week at a time after that. She recommended that the husband attend a parenting education and skills building course.
Ms S’s report is dated 5 May 2015. She conducted interviews and observations on 14 April 2015. She concluded that from her observations the child was in the process of developing secure and trusting relationships with both parents. She considered that the husband’s spend time arrangements have been very appropriate for the child’s age and stage of development.
Ms S discusses how children move through the attachment process, how children develop their primary relationship with their primary carer and subsequently the other people in their lives. Ms S’s opinion is that the wife has been excelling in her primary carer role. She said that the child demonstrated that she feels secure and trusting of the wife to be able to separate and tolerate some time away from her. She said that the child was able to separate from the wife to go with her husband and stay in his care without exhibiting any signs of anxiety or distress. She said this also demonstrated the child feels secure and trusting in the husbands care. She described the child as delightful developing above the expected level for her age in some areas and a child eager to learn and enjoy new challenges.
She noted there is still a high level of conflict between the parents. She noted that change overs have been a problem so the parents need to be mindful that the child is being exposed to the conflict. She noted that each parent blames the other and that the wife said that the child wakes up at night crying and upset.
As to the husband’s proposal that the wife and child move back to Melbourne Ms S said that may be too unsettling for the wife and leave her without the family and community support she now has which may then have an adverse effect on the parenting of the child which would then impact on the child’s disposition. When asked in cross examination how she came to this conclusion she said that it was really common sense.
In her report Ms S recommended that the parents share parental responsibilities and that the child live with the wife in [W]. For spend time she recommended that on the child turning three spend time could change to alternate weekends from Friday 4.00pm to Sunday 5.00pm as well as Wednesday from 10.00am to 6.00pm continuing. She said that if the court grants relocation then on the child turning four the alternate weekend could increase to start Friday at 4.00pm until Monday at the start of kindergarten or school as well as on the child turning five the alternate Wednesday could increase to overnight.
She said that on the child turning four some school holiday times could start with three nights each school holidays with the December/January holidays on alternate weeks until the child turned seven and then move into a block for each school holiday to gradually increase to half which should be by 2017.
In cross examination she said that overnight on Wednesday could be introduced earlier, particularly if the husband stays with the child somewhere in the vicinity of [W]. The husband has been spending Wednesdays at his sister’s residence in [P], about a 40 minute drive, or in a cabin he rents [location omitted]. Various alternatives were put to Ms S about commencing the overnight time on Wednesday. Ms S said that the child might cope with the extra overnight time on Wednesday when she turns three, but might not and she recommended a cautious approach. A fair summary of her evidence is that she considered it better to wait until the child turned four.
The parties
The parties are at odds over many of the events which occurred during their relationship, but it is clear that there was much conflict. Each blames the other’s aggressive behaviour. The conflict has occurred after separation at changeover with the event in January 2014 leading to the wife applying for a Intervention Order and a complaint of assault being made against the wife’s brother. Despite meeting at changeover the parties have spoken only once since separation on the occasion of the birth of the husband’s nephew.
Both parties mental state has already been referred to, the wife, in particular, having a depressive period during the relationship and remaining under the care of a psychiatrist.
The husband acknowledges that during the last six months he was drinking more alcohol and watching pornography.
The best interests considerations.
The relevant best interest considerations from s.60CC(2) and (3) are as follows.
The first of the primary considerations :
(a) the benefit to the child of having a meaningful relationship with both of the child's parents.
The additional considerations
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(f) the capacity of:
each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(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;
I will refer to some of these additional considerations first. The child is too young to express any wishes. Her primary attachment is to her mother and she has a secure and trusting relationship with her father. Her maternal grandmother did not give evidence. She was caring for the child while the wife stayed with her father for the duration of the hearing. The child lives at the same residence as her maternal grandmother and maternal step grandfather. The paternal grandmother, who is not in employment, was caring for the child when the parties separated. The obvious inference is that the child has a strong relationship with her maternal grandmother.
On Wednesdays the child has spent time with the husband at his sister’s house. The obvious inference is that she has a good relationship with the father’s sister and her family.
The husband has pursued his relationship with the child and his participation in decision-making by these proceedings. There are some issues about his attitude to child support. Child support currently is about $150 per week. At one point earlier in 2015 he was two months behind. He blamed the person in his business responsible for payment. He objected to the assessment of child support to the Child Support Registrar because the agency had adjusted his taxable income by removing depreciation of motor vehicles. He claimed not to object to paying the child support but that he thought it unfair that motor vehicle depreciation was not taken into account. The current assessment expires in October 2015 and a new assessment of $28 per week made. This is based on his 2014 tax return. The husband said he thought this low and suggested $100 a week might be appropriate.
A number of the next additional considerations are relevant to the question of where the wife and child should reside.
Wife and child’s place of residence
[F] is 115Kms from [W]. According to the husband it can be up to a 1½ hours drive but much less at non-peak times. The wife does not wish to return to the [F] area because she is well settled with her mother and stepfather in [W] and all her support is there. Her mother has a four-bedroom house and she and the child occupy the upstairs area. The other residents are her mother and her step father. Her mother is not employed and is therefore available to assist with the care of the child.
The wife pays her mother $100-$200 per week. The wife says her mother asks her to pay what she can afford. This provides the accommodation including payment of rates and utilities and provision of food. The wife purchases nappies and other things for the child and purchases her own clothes and personal requirements. The wife’s mother sometimes purchases clothes for the child. The wife’s income is child support of $150 per week, separated parents benefit and family tax benefit.
A significant consideration in relocation cases is the practicalities of the principal carer in moving to the area proposed by the other party. The practicalities are the basics of living, accommodation food and the day-to-day care of the child. They are relevant to the consideration of the ability of each parent to provide for the needs of the child.
The wife says that she has looked at websites which give comparable rents between Melbourne in [W]. In Melbourne average rates for a two-bedroom residence or apartment is $370 per week and in [W] $260 per week. She has stepbrothers living in [suburb omitted] who she believes pay $300-$350 per week. One has a two-bedroom residence and the other a three-bedroom residence. The husband produced no evidence of rents in the [omitted] areas which seems to be largely where he proposes that the wife and child should move.
The current child support assessment finishes in October 2015 and the child support agency has made a new assessment of $28 per week. This is based on the husband’s taxable income for 2013/2014 of $32,000. The husband’s financial statement gives a weekly income equivalent to about $50,000 per year. The husband equivocated about how much child support he would pay but eventually said he thought about $100 a week would be fair.
He proposes to pay the wife $150 towards her rent for the first 12 months. He proposes that she move at the beginning of 2016. The wife’s financial position would go from one where she has full board for herself and the child for $100-$200 per week to one where on the husband’s evidence for 12 months she would have an additional $150 per week in income, would have to pay, as best as I can see on the evidence, $300-$350 per week for rent, pay for utilities and pay for food for herself and the child. She might get assistance from her mother and her father who has assisted and continues to assist her financially, but that is not certain.
She says she wants to care full time for the child until the child goes to school. She is qualified as a [omitted] and has worked as such. Prior to the birth of the child she had employment as a [omitted]. She says she intends to start her own business and believes she can do that from [W].
The husband says that the wife would have a better chance of employment if she was in the [F] area. I have no evidence other than the husband’s assertion. The wife says she does not know.
The wife’s support in [W] is her mother who is available virtually all the time. She attends church in [W] and has the support of the church group and friends, including in the church group, in [W]. The child attends a playgroup twice a week and swimming once a fortnight in [W] and the wife gave evidence of a playgroup or play date with mothers from the church on Fridays.
The wife acknowledges that the husband has a wide extended family network in the [F] area as does she. The wife’s father, stepmother and grandmother lived in the [F] area and the wife has a close relationship with all of them. The husband’s case is that she could obtain support from his family and her own family if she lived in the [F] area.
The wife denies this. She says her support is in the [W] area. I consider it apparent that however good her relationship is with her father, stepmother, grandmother and others in her wider family they cannot provide the level of support she receives from her mother.
The wife alleges a history of abuse and controlling behaviour. This is largely disputed. The relevance now is that the wife gives as one of the reasons for not wanting to return to the [F] area that she would be uncomfortable living in the area where she had lived with the husband.
The final episode the wife alleges was on 22 November 2013 when the parties separated. Both parties attended the husband’s cousin’s wedding at [B]. The wife alleges behaviour by the husband which included abusing her, pushing her into a table, ripping her bag off her shoulder and throwing it into the bushes, pulling a bracelet off her wrist, snapping it and throwing it into bushes along with her bag. She says he then retrieved the bag from the bushes and emptied its contents onto the ground before crushing them beneath his feet. She said he then locked her out of their cabin for a time. She goes on to give further details. She walked away and was driven by some passers-by to [omitted]. She caught a taxi to the home in [F] then drove to her mother’s home in [W].
The husband has a different version. Each alleges the other were affected by alcohol. But what is significant is that the husband wrote the wife a letter following this apologising. It includes a statement that he remembers grabbing her bag and throwing it away and saying that it was totally unacceptable and crazy.
The husband acknowledges that in the six months or so prior to separation when the relationship had deteriorated he was drinking a significant amount of alcohol and watching pornography.
The husband alleges that the deterioration in their relationship and the bad behaviour was on the part of the wife. The wife’s descriptions of events after the wedding on 22 November 2013 are detailed. No doubt she states it from her point of view and no doubt she was responding to the husband, but her description is too detailed to be completely made up. The same will apply for other incidents. The husband alleges that the wife was the one who was aggressive and abusive. I accept that she was not passive or silent during the many incidents.
Whatever the truth about each of the incidents which are alleged I am satisfied that there was sufficient in the husband’s behaviour to justify the wife’s statement of discomfort if she returned to the area. She says this will affect her ability to care for the child because the child will notice her mood and that it will affect the child and I accept that this can be the case. This is a further reason why the wife’s desire not to return to [F] is justified.
Ms S considers that if the wife was compelled to move that may be too unsettling for the wife and leave her without the family and community support she now has which may then have an adverse effect on the parenting of the child which would then impact on the child’s disposition
The husband through his counsel applied for an adjournment of the hearing so that Dr G could be called to give evidence. The purpose was said to be for Dr G to give evidence whether he considered the mother would be affected if she was compelled to move. The potential evidence was said to be relevant to the opinion Ms S expressed about the effect of the move. I refused the application for adjournment for reasons I gave at the time.
Dr G said there is a significant possibility that the wife will suffer from depressive symptoms in the future if she encounters significant and sustained stressful life events. He said she appears to have matured emotionally and to have gained from her treatments. He concluded that as long as she maintains self management strategies, utilises appropriate supports and actively seeks psychiatric or psychological treatment when necessary, there is also a significant possibility that she will remain well in the event of any developing depressive symptoms and be capable of dealing with these quickly.
Ms S said that her opinion was based on common sense and so not on any assessment of how it might affect the wife’s mental health. Dr G has not stated in his report that a move would affect the mother’s mental health and so there is no evidence that it would and I approach the question of whether the wife should be compelled to move on this basis.
The consideration of the attitude to parenthood is relevant here. All acknowledge that the mother’s care of the child is excellent. The child is thriving in her wife’s care where she is. The husband insistence on pursuing an application that the wife be compelled to move shows a lack of understanding of the significance of these considerations. The child has been living at her grandmother’s residence since November 2013. She is settled and more than well cared for in that environment. The husband has been able to spend appropriate time with her given her age and she has developed a secure and trusting relationship with him. The child is involved in travel moving between the parents but the husband approach appears to be more motivated by the inconvenience to him of the driving rather than what is best for the child.
The most significant consideration in the place of residence issue is that the child is thriving in the current environment and thriving in a relationship with both her parents. Her primary carer, her mother, is well able to provide for all the child’s needs, physical, emotional and psychological in the current environment. I do not consider that a move to within 30km of where the husband lives will improve her already excellent relationship with him. On the contrary, if the wife was unsettled by the move, and that affected the child her relationship with her father might suffer. The child’s best interests will not be served by compelling her mother to move her residence to within 30kms of the husband’s residence that is [F].
Parental responsibility
The husband proposes that the parties have equal shared parental responsibility which would include them having responsibility for the child’s education (both current and future). Section 65DAC would then require each party to consult the other person in relation to educational matters and make a genuine effort to come to a joint decision about that issue.
The parties disagree about the type of school the child should attend. She will commence school in 2017. The husband proposes a catholic primary school while the wife proposes a government primary school. The husband was brought up a Catholic and the child has been baptised in the Catholic Church. He says he wants the child to have the same opportunity as him. The wife is not a catholic. She attended a Pentecostal church when living at [F] and for a time a prayer group with Catholics. She now belongs to the [omitted] and attends each Sunday with the child and meets with members of the Church on an informal basis throughout the week including a playgroup or play date on Fridays. She is opposed to the child attending a Catholic school.
The wife has investigated the schools in [W]. There is a government primary school and a Catholic primary school. The government primary school has a preschool attached to it which, for four-year-olds, has a program for four-year-old kindergarten pupils where they attend at the school for introduction to the preparatory year. As she has enquired of other parents and says that the government school has a good reputation.
The husband named a number of Catholic schools in the [F] area. He has not made enquiries about those schools. He has not made enquiries about schools in the [W] area.
In Chappel & Chappell (2008) FLC 93–382 the Full Court of the Family Court of Australia said at [75]:
In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
I consider it is clear from the parties’ views about the type of school the child should attend that they will not agree. In addition they are unlikely to have a face-to-face discussion. Communications are in writing or text. They have spoken only once since separation and that was when the husband informed the wife that he had a new nephew. I consider there is a high probability that to enrol the child in school either the wife will need to act unilaterally in choosing the school or there will need to be further proceedings to determine which school the child should attend. If the parties have equal shared parental responsibility for matters concerning education and the wife acts unilaterally she will contravene the obligation imposed by s.65DAC. That in itself means a likelihood of further proceedings by the husband bringing a contravention application.
The child’s best interests are not served by having a deadlock over which school she should attend. It is in her best interests that the wife have sole responsibility for selecting the school. The issue of religious or nonreligious primary school is not there with choice of kindergarten but again there is a risk of deadlock and it should be avoided. The wife’s proposal that she be solely responsible for choice of school and kindergarten is in the child’s best interests.
Spend time
The time the child should spend with the husband is largely governed by what is appropriate for her age and the practicalities of the distance between the parties. So far as the first of the primary considerations are concerned the child has a meaningful relationship with the husband. There is agreement that the father’s time should increase. The father’s proposal that it should ultimately be nine nights with the wife, five nights with the husband and half school holidays. The disagreements are whether the alternate weekends should extend to Monday mornings, whether there should be overnight time during the week and how soon time for half school holidays should be introduced.
Alternate weekends extending to Monday morning are impractical once the child commences school and kindergarten if kindergarten is on Monday morning. Ms S recommends the time extend to 3 nights upon the child turning four but the amount of travelling to get to school on Monday morning would be too much. The wife intends that the child attend the preschool attached to the primary school. I am not clear from the evidence whether four-year-old preschool or kindergarten will include Monday mornings. The best guide I have for what will promote the child’s relationship with each parent and maintain the child’s current thriving condition is Ms S’s recommendation. The solution is to order that upon the child turning four the time on alternate weekends be extended to 4.00pm on Monday if Monday is a non-school or kindergarten day. A 4.00pm return on the Sunday or Monday is appropriate given the amount of travel.
Ms S recommends that the alternate Wednesdays be extended to overnight time once the child turns five and again this is the best guide I have as to what will this promote the child’s relationship with each parent. The Wednesday time will have to commence after school or kindergarten once these have commenced.
The Wednesday order currently provides for the Wednesday daytime to finish at 6.30pm. The wife proposes 4.00pm because she says the
6.30 pm finish is too late to enable her to prepare the child for bed. 6.30pm enables the child to have an evening meal with the father and does not seem to have affected the child.
Ms S recommends three nights each holidays on alternate weeks once the child turns four. The order I propose for alternate weekends once the child turns forward achieve this. Otherwise, the wife’s proposal is largely in line with Ms S’s recommendation. She proposes half school holidays commencing with term one 2017.
Section 65DAA
This section applies if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child. The orders will provide for equal shared parental responsibility but with the mother to have sole responsibility for selecting the kindergarten and school. I will assume that s.65DAA does apply.
Neither party proposes equal time and given the decision I have made about the mother’s residence the distance between the parties homes makes it impractical. I note that Ms S recommended against equal time.
As to substantial and significant time I have dealt with the best interest considerations earlier in these reasons. Reasonably practicable is relevant once the child commences kindergarten and school and I have dealt with that by providing for weekend time only to extend to Mondays on a non school or non-kindergarten day. On Wednesdays during the current daytime contact the husband has spent his time with the child relatively close to [W]. In making a recommendation Ms S assumes that if overnight on Wednesdays commence the husband will spend that time in the [W] area and I will make the same assumption. The assumption is reasonable given the husband’s current practice.
Photographs on social media
The consent order of 26 March 2014 included a restraint on both parties from publishing photos of the child on social media. The wife and Independent Children’s Lawyer propose an order making this a permanent injunction. The husband opposes such an order.
The father published a photograph of himself and the child on social media as his profile photograph after the order of 26 March 2014 had been made. When this was put to him in cross examination he initially denied that he had done so. He said that the photo had been placed on his Facebook page by some other person. Eventually he conceded that he had placed it as the profile photo.
The wife does not believe in Facebook. She is the child’s primary carer and if she does not want her child’s picture on social media the husband should respect her view. There is no evidence before me that placing the child’s photograph on social media will promote the child’s relationship with the husband. A child seeing photographs of a parent both with and without the child is a normal part of a child’s relationship with the parent but that has nothing to do with her photograph being on social media. I am not aware of any reason why a photograph of a young child on social media would promote the child’s relationship with a parent.
Since the child’s photograph on social media is a source of anxiety for the wife and will not promote the child’s relationship with the husband the prohibition order is in the child’s best interest.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Date: 21 May 2015
Key Legal Topics
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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