Henson and Packard
[2009] FMCAfam 889
•21 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HENSON & PACKARD | [2009] FMCAfam 889 |
| FAMILY LAW – Parenting – relocation – mother seeking to relocate with daughter to Sunshine Coast, Queensland – mother’s husband taken up employment on the Sunshine Coast – father opposes relocation – father seeks equal time with the child in Sydney – whether relocation in child’s best interests. |
| Family Law Act 1975, ss.60B, 60CC, 61C, 61DA, 65DAA |
| B and B: Family Law Reform Act 1995 (1997) FLC 92-755 A & A (Relocation Approach) (2000) FLC 93-035 AMS v AIF; AIF v AMS (1999) FLC 92-852) U v U [2002] HCA 36; (2002) 211 CLR 2 Bolitho & Cohen [2005] FamCA 458; (2005) FLC 93-224 |
| Applicant: | MS HENSON |
| Respondent: | MR PACKARD |
| File Number: | SYC 2001 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 18, 19, 20 March & 16, 17, 18 August 2009 |
| Date of Last Submission: | 25 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trevor Tockar |
| Solicitors for the Applicant: | John R Quinn & Co. Lawyers |
| Counsel for the Respondent: | Mr Paul Schroder |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS
The mother and the father have equal shared parental responsibility for the child, [X], born in 2000 (“the child”).
The child live with the mother.
The mother be permitted to relocate with the child to the Sunshine Coast, Queensland.
The Orders made in the Federal Magistrates Court at Parramatta on 8 July 2002 to continue until such times as the mother relocates with [X] to the Sunshine Coast, and thereafter to be discharged.
At least seven (7) days prior to the mother relocating with the child to the Sunshine Coast, the mother to advise the father in writing of the address at which she will be residing with the child and a contact telephone number.
The child spend time with the father as follows:
During Queensland school holidays
6.1.For fifteen days (15) of Terms 1 and 3 of the Queensland school holidays to commence within twenty four (24) hours of the end of each school term.
6.2For twenty-one (21) days of the Queensland Term 2 school holidays to commence within twenty-four (24) hours of the end of the school term .
Queensland Labour Day and Queensland June long weekends
6.3To commence from approximately 7pm on the Friday of the beginning of the Queensland Labour Day and June long weekends, subject to airline timetables.
6.4The father to ensure that the child is returned to the Maroochydore airport at the conclusion of the Queensland Labour Day and June long weekends at approximately 5pm on the Monday, subject to airline timetables.
Father’s Day weekend
6.5To commence from approximately 7pm on the Friday of the beginning of the Father’s Day weekend, subject to airline timetables.
6.6The father to ensure that the child returns to the Maroochydore airport at the conclusion of the Father’s Day weekend at approximately 5pm on the Sunday, subject to airline timetables.
Christmas school holidays
6.7For four (4) weeks of the 2009 Queensland Christmas school holidays to commence at an agreed point to permit that holiday to conclude approximately forty-eight (48) hours before the Queensland school Term 1 begins in the year 2010, and each alternate year thereafter.
6.8For four (4) weeks of the Queensland Christmas school holidays to commence approximately forty-eight (48) hours after the Queensland school Term 3 ends in the year 2010, and each alternate year thereafter.
When the father visits the Sunshine Coast
6.9Upon two (2) weeks notice being provided to the mother that the father will be visiting the Sunshine Coast, for a period of up to a maximum of seven days (7), unless otherwise agreed between the parents.
6.10The father to ensure that the child attends all her school, sporting and extra-curricular activities when the child is spending time with him on such occasions.
Implementation of Orders for the child spending time with the father
7.1The mother to book and pay for all air fares for the child’s return flights to Sydney.
7.2The mother to provide the father on each occasion with copies of the child’s airline tickets and flight itinerary at least two (2) weeks prior to the child travelling to Sydney.
7.3The mother to accompany the child to the departure lounge for the child’s flight to Sydney, and the father to collect the child from the arrivals gate at Sydney immediately upon the child presenting at the arrivals gate.
The child communicating with the parents
8.1Each parent to facilitate the child telephoning the other parent at all times upon the child’s indication that she wishes to do so, and otherwise to facilitate all reasonable communication between the child and the other parent at all reasonable times by telephone or other electronic means, and in any event not less than twice per week.
8.2Each parent to advise the other and keep the other informed in writing of their respective residential addresses, land line and mobile telephone numbers, e-mail addresses, and any other information necessary for the child to communicate with the other parent, and any changes thereto to be notified to the other parent not less than 28 days prior to the change.
8.3The mother to provide a webcam for the purposes of the child communicating with the father.
8.4The mother to bear all costs of the webcam installation and ensure that the webcam is in good working order at all times.
8.5The father be at liberty to communicate with the child by letter, email, or any other means, and the mother shall ensure that such communications are provided unopened and as soon as reasonably practicable to the child.
8.6Unless otherwise agreed, at least seven (7) days prior to the child spending overnight holiday time away from a parent’s usual place of residence, that parent to provide to the other parent in writing a telephone number and address for such holiday periods.
(9)Additional matters to facilitate equal shared parental responsibility.
9.1The mother to provide to the father copies of all school reports, notices, circulars, newsletters, functions, parent-teacher interviews, photographs and any other documents relating to the child’s schooling or other activities to which parents are invited, as soon as reasonably practicable upon her receipt of them.
9.2The mother to provide the father with the names and addresses of the child’s treating doctor and dentist, or any other treating professional person, as relevant.
9.3Each parent to keep the other parent advised of all information in relation to any medical care or treatment for the child which may occur while the child is living with or spending time with that parent.
9.4Each parent shall notify the other parent as soon as is reasonably practicable of any emergency, accident, serious illness, or admission to hospital of the child, when the child is living with or spending time with that parent.
9.5Both parents be at liberty to attend:
9.5.1Any of the child’s school, sporting or other extracurricular events and activities to which parents are invited; and
Any medical or health related appointments for the child.
9.6Neither parent, their servants or agents to remove, take, send or attempt to remove, take or send the child from the Commonwealth of Australia without furnishing to the other parent detailed copies of the itinerary, accommodation, contact telephone numbers and email addresses of where the child will be staying, and not without the prior written consent of the other parent or an order of the Court.
9.7Neither parent is to remove, take or send the child out of Australia for a period of more than four (4) weeks without the written consent of the other parent or an order of the Court.
9.8The father and the mother to do all acts and things and sign all documents necessary within a reasonable time to ensure that the child’s passport is valid at all times.
(10)Both parents be restrained from changing the child’s surname or allowing the child to be known by any other surname, without the written consent of the other parent or by an order of the Court
(11)The orders sought in the Response filed by the father in these proceedings on 19 June 2008 be dismissed.
(12)Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are attached and included in these Orders.
(13)All outstanding applications be dismissed and removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Henson & Packard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2001 OF 2008
| MS HENSON |
Applicant
And
| MR PACKARD |
Respondent
REASONS FOR JUDGMENT
The Application
This matter relates to the child, [X] born in 2000 who is currently
9 years old. Her parents separated when she was 15 months old. Since then she has lived with her mother, and spends time with her father.
Her mother now seeks that [X] relocate with her to the Sunshine Coast, Queensland. The father opposes the relocation and seeks that [X] spend equal time with him in Sydney.
Background
The applicant mother, Ms Henson, aged 40, and the respondent father, Mr Packard, aged 41, married in 1993. They separated in 2001 and divorced on 3 November 2003.
Final Orders in relation to property and parenting were made by consent on 8 July 2002 (“the 2002 Orders”). Relevantly, these Orders provided that [X] reside with the mother and have reasonable contact with the father, to include alternate weekends from Friday 5pm to Sunday 6pm; each Wednesday or Thursday evening from 3.30pm to 7.30pm; one day per month on the father’s rostered day off (RDO) upon the father giving 7 days notice; holiday contact as agreed; and at such other times as agreed.
Under the current arrangements, the father sees [X] on each Wednesday; alternate weekends; for half of the school holidays; and otherwise as agreed.
The parties currently live about 12 kms from each other. Each lives in a 4 bedroom house, with outdoor facilities for children. [X] has her own room at each parent’s house.
The mother is employed part-time three days a week as a [omitted]. She married Mr H, aged 38, in 2004 at which time [X] was 3 years old.
Mr H was a self-employed [tradesman] until he commenced work in Queensland for [G], (“[G]”), a [trade] related business located in Maroochydore, in February this year.
The mother and Mr H have one child of the relationship, [Y] born in 2006, who is now aged 3 years.
The father has been employed in an engineering capacity with [Q] for 20 years. He is currently employed as a [omitted]. He commenced a relationship with his partner, Ms M, aged 36, in late 2002 and they commenced to reside together in June 2004.
Ms M is employed as a [omitted] on a 9 day fortnight basis. She has three children, [A] aged 18, [B] aged 17, and [C] aged 14. [A] lives with her boyfriend, [D]. Ms M concedes that her relationship with [A] is not very good. [B] lives with his father, Mr S, and sees his mother and Mr Packard fairly rarely. [C] resides with his mother and Mr Packard.
[X] currently attends [B] School in [P], Sydney and is in grade 4. She is to commence high school in 2012.
The maternal grandmother, Ms H, who gave evidence in these proceedings, currently lives with her fiancé five minutes from the mother’s home. The paternal great-grandmother lives in a two bedroom granny flat on the father’s property. The paternal grandparents live approximately two minutes drive from the father’s home. The paternal aunt, Ms P, and her husband and two children also live about two minutes drive away. `
The material relied upon
The mother relied upon the following documents:
·Further Amended Initiating Application filed 24 February 2009;
·
Affidavit of the mother sworn 20 February 2009 and filed
24 February 2009;
·Affidavit of Mr H sworn 20 February 2009 and filed 24 February 2009;
·Affidavit of Ms H sworn 20 November 2008 and filed 21 November 2008;
·Affidavit of Dr K sworn and filed 25 February 2009.
The father relied upon the following documents:
·Amended Response to Initiating Application filed 21 November 2009;
·
Affidavit of the father sworn 20 November 2008 and filed
21 November 2008;
·
Affidavit of the father sworn 24 February 2009 and filed
26 February 2009;
·Affidavit of Ms M sworn 20 November 2008 and filed 21 November;
·Affidavit of Ms M sworn 24 February 2009 and filed 25 February 2009.
The Court also had before it a Family Report prepared by Mr Martin O’Grady, psychologist, dated 1 December 2008, (but furnished to the parties with a cover letter from the Court dated 10 November 2008), (“Report”) and an Updated Family Report prepared by Mr O’Grady (but furnished to the parties with a cover letter from the Court dated
9 February 2009, (“Update Report”). Mr O’Grady was cross-examined by the legal representatives for both the parties.
The competing proposals
Both parents sought orders that they have equal shared parental responsibility for the child.
Otherwise, in summary, the mother sought the further following orders:
·[X] live with the mother;
·The mother be permitted to relocate with [X] to the Maroochydore area of Queensland;
·The father spend time with [X] for 15 days during terms 1 and 3 of the school holidays; 21 days during the term 2 school holidays; four weeks during the Christmas school holidays; 3 days on each of the Queensland Labour Day long weekend and the June long weekend; 2 days on the Father’s Day weekend; and on such days and times when the father is in the Maroochydore area;
·The mother pay for the child’s airfares between Sydney and Maroochydore;
·Further communication be facilitated through webcam, telephone, email, ordinary mail, etc, and that the mother pay for the webcam installation and service;
·
The parties be restrained from removing [X] from the Commonwealth of Australia without proper notice to the other party, and that [X] not be taken out of Australia for longer than
4 weeks at a time;
·Provision be made for such things as keeping the other party informed of health issues, school reports, and the like.
The mother indicated that she no longer seeks an order that [X] not be left in the sole care of Ms M when in the father’s household, but that she would prefer someone else to be present at such times.
Otherwise, in summary, the father sought the further following orders:
·[X] not be permitted to relocate to Queensland;
·[X] live with both the father and the mother on an equal time, alternate week about basis, in Sydney, from after school on Friday until the commencement of school on the following Friday, and for half of each of the school holidays; and if not equal time, then substantial and significant time of 6 nights per fortnight with the father and half the school holidays;
·In the event that [X] is not permitted to relocate to Queensland and the mother moves to Queensland, that [X] live with the father and spend the same time with the mother as set out in the mother’s proposed orders;
·Specific provision be made for time that the parties may spend with [X] over Christmas, on Father’s Day and on Mother’s Day, and on [X]’s birthday;
·Provision be made for telephone contact, and for notice to be given regarding, school functions, medical issues, and the like;
·The parties be restrained from taking [X] out of Australia without consent or order of court;
·The parties be restrained from changing [X]’s surname without consent.
Mother’s reasons for seeking relocation
In summary, the reasons given by the mother for wishing to relocate to Queensland include:
· The family will have the opportunity to live a less stressed life;
· She and her husband will be able to be at home more with the children;
· They will be able to comfortably buy their own home in better surroundings close to the beach;
· the children will be able to enjoy a much healthier lifestyle;
· Mr H will never be offered such a good job opportunity in Sydney;
· The opportunity for her husband to become a partner in a more remunerative, less stressful business, with less travel time;
· Their general quality of life, economic and psychological welfare, reduced stress and beach lifestyle will enhance their lifestyle.
In regard to [X], the mother further submits that :
·The child has expressed her wishes to move to Queensland.
·She and her husband will be able to improve their lifestyle in material respects, which will impact positively on [X];
·[X] will have enhanced educational and other extra-curricular opportunities on the Sunshine Coast;
·The mother’s happiness and contentment will be improved, which will impact positively on the child;
·If relocation is not permitted
§this will cause the mother great anxiety, and marital stress, which will impact negatively on the [X];
§the child will be denied the opportunity of living in a happy environment, with wonderful amenities and opportunities available to her;
§the child will be obliged to remain in a situation where she will be exposed to ongoing conflict between her parents.
Father’s reasons for opposing relocation
It is the father’s case that he is unable to move his family and employment with [Q] to the Sunshine Coast, whereas he says, it is open to the mother to remain with her family and employment in Sydney.
In summary, the father says that he sees no conceivable benefit to [X] in her relocating, including:
·the diminution in the quality of his relationship with [X] where he would no longer be able to see her mid-week and alternate weekends;
·the loss to [X] of his strong support where he lives close by and sees her on a regular basis;
·the loss of the strong support of his extended family who also live close by, including the great-grandmother who lives on the father’s property;
·[X] is settled at her present school, and is already booked into [P] School for high school;
·she has a good social network of friends in the area, including three close friends who live next door to him;
·the very good and equally comparable resources available to her in the Penrith region.
Relevant legal principles
Part VII of the Family Law Act1975 (the Act), following the Family Law Amendment (Shared Parental Responsibility) Act 2006, sets out the relevant law in Parenting cases. Section 61DA provides for a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for their welfare. The presumption relates to parental responsibility about major long term issues, not to the time that the child spends with each parent. Major long term issues are defined in s.4 of the Act as education, religious and cultural, health, name, and significant changes in living arrangements.
In this case the parents agree that the presumption applies and that they should retain equal shared parental responsibility for the child.
The Court must therefore consider whether the child spending equal time with each parent would be in her best interests: s.65DAA(1)(a), and whether it is reasonably practicable to do so: s.65DAA(1)(b). If so, the Court must consider making an order for equal time: s.65DAA(1)(c).
If the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests: s.65DAA(2)(c), and whether it is reasonably practicable: s.65DAA(2)(d), and then consider an order for substantial and significant time: s.65DAA(2)(e).
“Substantial and significant time” is defined in s.65DAA(3). The criteria that the Court must consider in determining whether it is reasonably practicable for the child to spend substantial and significant time with each parent are set out in s.65DAA(5) as follows:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d) the impact that an arrangement of that kind would have on the child; and (e) such other matters as the court considers relevant.
It is well-settled that relocation cases are not a separate class of case, but fall to be determined under Part VII of the Act in accordance with the best interest of the child: B and B: Family Law Reform Act 1995 (1997) FLC 92-755. The paramount consideration remains what is the best interests of the child (s.60CA) in any determination of a particular case.
Section 60B(1) of the Act sets out the objects to ensure that the best interests of the child are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 60B(2) sets out the principles underlying those objects. They 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).”
In determining what is in the best interests of the child, the Court must first consider the primary considerations set out under s.60CC(2), followed by the additional considerations under s.60CC(3) of Part VII.
Section 60CC(2) provides that:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations set out under s.60CC(3) (a) to (m) are set out in the body of the judgment. In considering both s.60CC(3)(c) and (i), the Court must also take into account s.60CC(4) and s.60CC(4A).
Sub-sections 60CC(4) and (4A) provide that:
s.60CC(4) – Relates to s.60CC(3)(c) and (i).
Extent to which each parent has fulfilled/failed to fulfil responsibilities as a parent.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 65D provides that, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
The Full Court set out the following guiding principles in determining relocation cases in A & A(Relocation Approach) (2000) FLC 93-035 (after considering the High Court decision in AMS v AIF; AIF v AMS (1999) FLC 92-852):
a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate "compelling reasons" for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
The Full Court then provided the following three step approach to dealing with such cases:
i)identify the relevant competing proposals
ii)explain the advantages and disadvantages of each proposal by examining the s.68F(2) factors (now the s.60CC considerations) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the "reasons for relocation as they bear upon the child’s best interests" against other factors; and
iii)explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
In considering the third step of the process, the Full Court stated that regard must be had to the following three issues:
i)None of the parties bears the onus
ii)The importance of a party’s right to freedom of movement. The Full Court stated in this regard that “we would underline the significant weight that must be attached to the right to freedom of movement, subject, however, to the best interests of the child or children concerned.”
iii)Matters of weight should be explained.
The High Court placed the following qualification on the above approach in A & A in its decision of U v U [2002] HCA 36; (2002) 211 CLR 2
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question ... the objective is always to achieve the child’s best interests (per Gummow and Callinan JJ).
As relevantly observed in this regard by the Full Court in Bolitho & Cohen [2005] FamCA 458; (2005) FLC 93-224:
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant section 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
The parties referred the Court to a number of relocation cases and to a recent article entitled Relocation in the Era of Shared Parental Responsibility by Professor Patrick Parkinson, University of Sydney and Special Counsel, Watts McCray Lawyers, 2008. Whilst these materials provide useful guidance and the Court has had careful regard to them, at the end of the day, each case must rest on its own facts.
The Issues
In this case the presumption arising under s.61DA of the Act, that it is in [X]’s best interests for her parents to have equal shared parental responsibility, applies. Both parents seek an order for equal shared parental responsibility in this case.
The Court is then required to consider whether [X] spending equal time with each parent would be in her best interests and whether it is reasonably practicable, and then consider an order for equal time (s.65DAA (1)(c)). The father has proposed equal time in this case should [X] remain living in Sydney. Otherwise, equal time has not been proposed as reasonably practicable by either party, should [X] relocate with the mother to the Sunshine Coast.
If not equal time, then the Court must consider whether [X] spending substantial and significant time with each parent would be in her best interests and whether it is reasonably practicable, and then consider an order for substantial and significant time.
In this case, the outcome of where [X] is to live, inevitably affects the determination of these matters. The key issues for determination in this regard are:
·whether the mother should be permitted to remove [X] from Sydney to live with her on the Sunshine Coast;
·the impact on [X] if she were or were not to move to the Sunshine Coast;
·the respective likely impact on the mother and the father in the event that [X] does or does not relocate to the Sunshine Coast, and in consequence, any likely impact on [X] from any such impact on her parents;
·in the event that [X] is not permitted to relocate to the Sunshine Coast, whether [X] should spend equal time with each parent on a week about rotation.
These issues will be dealt with below within the context of the what is in [X]’s best interests as ascertained by a consideration of the objects and principles set out in s.60B(1) and s.60B(2) of the Act, respectively, and within the framework of the primary considerations under s.60CC(2), and then the additional considerations under s.60CC(3), and taking into account how each parent has fulfilled or failed in their parental responsibilities to date, as required under s.60CC(4) and s.60CC(4A) of the Act.
Preliminary findings
The following matters were raised by the parties for the Court’s consideration.
Whether the applicant has demonstrated any financial benefit in relocation
The chronology of events is instructive in this matter:
·Mr H’s first discussions with Mr B, his cousin, about [G] were in October 2007 when on holiday on the Sunshine Coast.
·There were then further discussions in November and December 2007, and January 2008.
·Just after New Year’s Eve 2008, after discussions with the mother, Mr H says he made up his mind to accept the offer, but waited some 2 weeks thereafter just to make sure he was “doing the right thing”.
·On 20 January 2008, the mother raised the issue of relocation with the father for the first time.
·Mr H gave oral acceptance of the job offer on 20 January 2008.
·On 22 January the father’s solicitors wrote to the mother indicating the father’s opposition to relocation.
·In mid 2008 Mr H signed a contract of employment with [G] (see Annexure “A” to his affidavit (copy) and Exhibit 19 (original)), at which time, he says, he was committed to take up the job opportunity.
·The final hearing of these Court proceedings was at that time set down for 10 and 11 December 2008 but it was adjourned at that time to 18, 19 and 20 March 2009.
·On 12 February 2009, Mr H commenced the job in Queensland.
In cross-examination, the mother agreed that Mr H provided her with “an ultimatum” that he was going to go to Queensland whether or not she came too. Mr H agreed in cross-examination that he said to the mother: “… I have to go whether you come or not. I can’t let this opportunity go by” (see mother’s affidavit, paragraph 79). The mother also agreed in cross-examination in this regard that she did not reconsider the question of relocation after she received the letter from the father’s solicitor of 22 January 2008 because she knew of Mr H’s ultimatum and that he was going, regardless of what the father said.
I found Mr H to be a far from impressive witness in this case.
Mr Tockar, counsel for the mother, in effect, concedes so much in his closing submissions.
It is clear from Mr H’s cross-examination that he had decided to go to the Sunshine Coast regardless of whether the mother would join him there or not; regardless of the father’s consent or otherwise; regardless of the outcome of the Court proceedings; and in circumstances where there was no imperative imposed on him under the contract of employment for taking up the job offer at that point in time, or at all.
There is no doubt that his actions would inevitably have put immense pressure on the mother which in turn would impact upon [X]. I consider that the mother’s present high anxiety levels must, in part, be attributable to this situation.
Mr H agreed that at the time of the adjournment of the final hearing in December 2008, he was aware of the mother’s emotional problems, including that she was drained, had diarrhoea, and was vomiting and that these problems did not clear up after the case was adjourned to March 2009. Nonetheless, he states that it did not occur to him to raise the issue with Mr B of his staying in Sydney to support his family emotionally at this point in time.
Mr H says that he is very happy with his work and lifestyle on the Sunshine Coast, but that he misses his family and rings them every evening, including talking to [X] and [Y] before bedtime.
It is difficult to escape the conclusion that Mr H acted unilaterally in regard to both the crucial final decision to relocate and as to when he would relocate. I accept, however, that the mother was fully involved in the prior discussions and that she has always supported, and continues to support, Mr H taking up the job opportunity.
I accept also that, once having accepted the job offer, Mr H was placed in a difficult position of having to further delay his start up date when the final hearing of this matter in December 2008 was adjourned. I accept that this was compounded when Mr B indicated to him in late January 2009 that he wanted him to start by 12 February due to the build up of work and that Mr H felt bound to honour his commitment.
Mr Schroder, counsel for the father, submits, in effect, that the Court should not be held to ransom by the actions of Mr H in his having already relocated to Queensland. I accept his submission. The paramount consideration must always be what is in the best interests of [X] in this case.
I accept, however, that Mr H genuinely believed that the job opportunity was not one that would have been available to him in Sydney; that it would provide him with better money, better hours and more free time; that it eased the administrative burden of running his own business and travelling inordinate distances each day; and that it would provide his family unit with a better lifestyle. He says that he was driving up to 300 kms a day for his own [trade] business in Sydney, where his major clients were situated from Dee Why in the north to Menai in the south. He also says that the administrative side of his business, took up so much of his time after work and on weekends.
I also accept that the mother’s reasons for wanting to relocate are not merely in response to Mr H’s “ultimatum”, but that she has a genuine and independent desire for what she sees as a better quality of life for the family in the context of Mr H being “the major breadwinner”. Her freedom of movement, however, remains subject to what is in the best interests of [X] in these circumstances.
I accept that there may be some merit in the argument put forward by Mr Schroder that Mr H has failed to demonstrate that that he “had to go [to Queensland] for family reasons to better our financial situation.” Mr H points to the fact that he was offered a salary of $70,000 per annum with an extra $50,000 for his building the [trade] side of the business. I am not fully satisfied that he has been able to justify that the job opportunity necessarily puts the family unit as a whole in a financially better off state, based on income, than their remaining in Sydney, at this particular point in time.
His evidence was decidedly vague on a number of crucial points which could have underpinned his rationale of a family financial-needs basis. For example, the vagueness of his knowledge about the family’s present and anticipated financial affairs provides little support for this claimed rationale. One would have expected him to be very aware of what the combined income of himself and the mother was for the 2007-2008 financial year, yet his response to this question in cross-examination was “I don’t know. I have no idea”.
Mr H’s present income in Queensland is nearly $20,000 less than he and the mother’s combined income for that same period. I accept however that these figures may not necessarily reflect Mr H’s longer-term prospects. They would be dependent on his building up the [trade] side of the business and/or the mother acquiring a job to make up the shortfall. In this regard, the mother’s present taxable income is $34,925. Mr H stated that the mother wants to get some part-time employment on the Sunshine Coast, but he did not know how much she would be able to earn and conceded that they cannot be certain that she would be able to get employment there.
The mother, however, gave evidence that she is presently employed in Sydney on a temporary weekly contract basis only, which does not give her job security. She says that she has made enquiries with the Local Governments in Maroochydore and been assured that she can easily obtain employment in 2009; that there is more work available for her in Queensland; and that once [X] and [Y] are settled and happy in their new environment, she should be able to earn $45,000 per annum on a part-time basis, which is $10,000 more than in Sydney. She states that given the proximity to her potential work and the schools, she would be more available for both children.
Mr Schroder also points to the fact that, despite Mr H’s low taxable income levels between 2006 and 2008, especially in 2007, it is nevertheless the case that his sole trader [trade] business provided substantial gross returns in that period with an increase of 88.5% in 2006-2007; an increase of 71% in 2007-2008; and a similar increase for the first two quarters of 2008 (see Exhibits 4 and 5); that his [trade] business had a $323,960 turnover in 2008; that the family went on a
8-10 day holiday to Phuket in 2007 paid for apparently out of their savings (although Mr H had no idea how much credit they had in their savings account and still did not know how much was in it now); that Mr H was able to employ an apprentice in 2007, paying him a gross figure of about five times his own net taxable income of $3,571; that he was able to pay off his credit card each month; that all his bills were paid up to date; that he had no business overdraft or business credit card; and that his only debt was the $20,000 odd mortgage on the home.
In this regard, the mother and Mr H have recently reduced their mortgage on their Sydney home from $340,000 in 2003 when they purchased their home, to $98,940.08 in early 2007, to the present figure of $23,974.80 (Exhibit 20), apparently from the mother selling her house and her also buying a car from the proceeds. Mr H was somewhat unsure, however, how much they were paying on their current mortgage. He is contemplating doubling the size of their mortgage when they buy on the Sunshine Coast, but had not enquired what their mortgage payments would then be. Without this information, again it is hard to see how he can say there is any financial need or benefit to his family unit in relocating to the Sunshine Coast.
Despite these figures of increased turn-over for the 2006-2008 period, referred to above, Mr H stated that his and the mother’s combined net income were not even enough to cover the mortgage repayments, nor to cover food, and household supplies. He claimed that family members had helped them out by paying some of their domestic bills to help them survive financially. He provided no supporting evidence however of this, and his own evidence on the matter was so vague, where he was not able to say how much they had contributed, that the Court remained unconvinced that this was in fact the case. In any event, he conceded in cross-examination that such alleged assistance from his parents on three or four occasions to pay electricity bills, would not have been enough to make up the shortfall.
Yet over this same period, the mother and Mr H were able to very significantly reduce their mortgage, the mother purchased a car, and they took the family on holidays overseas and to the Sunshine Coast.
Mr Schroder also pointed to the fact that Mr H did not annex a copy of his contract of employment to his first affidavit, only providing it as Annexure “A” in his later affidavit of 20/2/09. He points to the four blank spaces in Annexure “A”, which are not present in Exhibit 19 which is the original of the contract of employment. He submits that some suspicion must attach to the Annexure “A” copy, for which no explanation has been given. Given the existence of the original signed contract of employment, in this case, which I accept represents the terms agreed to by [G] and Mr H, I consider that little, if any, weight should attach to the copy.
Mr Schroder further points to the fact, which I accept, that nowhere in Exhibit 19 does it say that time is of the essence, and that it provides for four week’s notice to be given, with no penalty, upon termination.
Furthermore, Mr H conceded in cross-examination that he had made no enquiries about jobs and financial opportunities in Sydney, including as an employed [tradesman]. At best, he had made half-hearted attempts by browsing through the Sunday papers but had put in no job applications.
I thus remain unconvinced that there was a pressing financial ‘need’ for Mr H to take up the job opportunity in Queensland.
It is difficult to say at this point, however, whether or not the family unit will be financially better off in the longer term. Their total gross income for 2008 was $88,925. At the present point in time, whilst
Mr H is earning $70,000 per annum, (which is about $16,000 more than his gross income in 2008), he is still undertaking training and any other [trade] opportunities are yet to be followed up by him. The mother’s evidence is that she would not seek work immediately if she were to relocate, but there is the potential for her to gain part-time employment to add to the family income.Notwithstanding these matters, however, it is settled law that an applicant is not required to demonstrate "compelling reasons" for the relocation and that there is no onus on an applicant, (nor a respondent), to establish that a proposed change to an existing situation, (or continuation of an existing situation), will best promote the best interests of the child. That decision “must be made having regard to the whole of the evidence relevant to the best interests of the child”: A & A at [101].
The mother and Mr H want to buy a home for between $450,000 and $500,000, close to [S] School where they hope [X] will be able to go to school. The mother says that a comparable house in a comparable suburb in Sydney would cost them $800,000 plus to buy. I accept that there would be no disadvantage to the family in this regard.
In conclusion, I am satisfied that there remain some financial advantages to the family in that Mr H now has a guaranteed income; a regular, not sporadic income; that they can plan better without the insecurity of potential fluctuations in income which attach to running one’s own business, particularly in any economic downturn; and with the potential for Mr H to earn more income, once his training is complete, if the [trade] side of the business develops.
I also accept that Mr H appears to be much happier being an employee, without the risks inherent in being self-employed, and without the associated administrative duties of Business Activity Statements and the like. I further accept that the shorter hours; not being required to drive such long distances every day; more time at home; and the prospect of more time to spend playing with [X] and [Y], remain important lifestyle advantages for him and the family unit.
I am thus satisfied that the proposed move to Queensland for financial and lifestyle reasons remain valid factors to be taken into account in determining what is in [X]’s best interests in this case.
Whether the father’s initial response to relocation caused the mother to be misled and to proceed with the relocation
It is the mother’s case that the father initially misled her on 20 January 2008, when she raised the proposal for relocation with the father for the first time, into believing that he was not opposed to [X] relocating to Queensland. She then conveyed the father’s response to Mr H who orally accepted the job offer on that day.
She conceded in cross-examination, however, that the father did not formally consent to [X]’s relocation on that day, but that he “reacted positively” and said that he would fly up to Queensland, but then he changed his mind, causing the current difficulties.
It is the father’s case that he never consented to the relocation. He told Mr O’Grady that he was in a state of shock and quite disturbed about the mother’s proposal, and that any apparent initial agreement or acquiescence was not representative of his true feelings as he felt numb and powerless subsequent to his resuming his strength and perspective and being able to communicate his true view. Mr O’Grady was of the opinion that this is not uncommon human behaviour when persons are confronted with overwhelming situations. I accept his opinion on these matters.
The context in which the father was informed about the mother’s relocation proposal is important. The father’s alleged favourable reaction was given on the spot, at his doorstep, when the mother was dropping [X] off in the school holidays, and apparently in the presence of [X]. He was given no prior notice, he had no time for quiet reflection, nor to discuss it with his partner, members of his extended family or to get legal advice, if he so chose. Yet, in contrast, the mother and Mr H took several months to make up their minds about whether to relocate to the Sunshine Coast, and even then Mr H says he delayed conveying his oral acceptance for a further two weeks just to make sure he was “doing the right thing.”
I consider that the father acted very reasonably in these circumstances, and that no criticism should be made of him in this regard, even if the mother gained the impression that he was not opposed to the move. He quite promptly informed the mother some two days later by solicitor’s letter that he did not consent. The mother and Mr H were thereby on notice of the father’s position in late January 2008, several months before Mr H signed the contract of employment in June 2008, at which time, only, did Mr H consider himself to be contractually bound.
In any event, this factual dispute is largely irrelevant, since Mr H agreed in cross-examination that the father’s consent had always been irrelevant to his decision to go to Queensland.
Whether the father was opportunistic in seeking an order for equal time
Mr Tockar submits that the father’s proposal for equal time is opportunistic and a “cynical and tactical” response to the mother’s application for relocation.
He submits that the father’s claim to have had a long-standing wish to spend more time with [X] is not borne out by the evidence. In particular, he points to Annexure “B” of the father’s current affidavit which states that the “arrangements have previously worked well and I hope these Orders [of 2002] continue” and the handwritten notes of
Mr O’Grady to the same effect.
He further submits that the father’s claim that the impetus for his seeking the current order for equal time was brought about by the introduction of the 2006 amendments to the Family Law Act, is not borne out. He points in this regard to the two year delay after the introduction of these amendments to the father seeking equal time, coincident with his filing his Response to the mother’s relocation Application.
I do not accept these submissions. I accept the father’s evidence that he has had a longstanding wish to spend more time with [X] but that he believed that it was too hard for fathers to achieve such outcomes. He points to his submission to the Parliamentary Enquiry on Child Custody Arrangements, dated 7 August 2003, in support of this position (see Exhibit 16). He says, however, that the 2006 amendments to the Family Law Act provided the necessary impetus for him to bring his present proposal.
I accept his evidence on these matters and am satisfied that the father is genuinely motivated towards bringing about an equal time arrangement. Mr O’Grady was equally of the opinion that the father’s intentions in seeking equal time were “credible and there was no suggestion from the father’s perspective that he was being opportunistic. I had no reason to doubt his long-standing wish … to spend more time with [X].” I accept his evidence on these matters. I further accept Mr O’Grady’s evidence that the father made “a genuine application” for equal time “which hitherto was not expressed that clearly.”
Whether Ms H changed her evidence
Mr Schroder points to Ms H’s original affidavit evidence that that she was moving to Queensland, but submits that she changed her oral evidence to indicate that she would only move if the mother were to relocate there.
Even accepting that there may have been some change in her position, I am satisfied that no adverse inference can be drawn from this. I found Ms H to be a credible witness who was devoted to her daughter and her grand-daughter, [X]. I accept that she has both their best interests at heart in saying that she wishes to live close by wherever the mother might live.
I accept her evidence that her own relocation is conditional upon her daughter moving to the Sunshine Coast, and as such, does not necessarily assist the mother’s case in the sense that Ms H will be equally available in a supportive role whether in Sydney or on the Sunshine Coast.
Ms M’s parenting
Mr Schroder raised in his written submissions, (in reply to the mother’s written submissions), strong concerns over the inclusion in the mother’s written submissions of what he contends is inappropriate and irrelevant material concerning references to the judgment of Stephenson J in [S & M], which the Court ruled inadmissible in these proceedings, and to issues raised concerning psychological risk at the hands of Ms M, in circumstances where the mother had abandoned any case in relation to risk under s.60CC(2)(b); and other matters on which he says there is no evidential basis.
The chronology of this point is instructive. On the final day, after six days of hearing, Mr Tockar made oral submissions to the Court and handed up written submissions of some 36 pages to which he wished to speak, in support of the mother’s case.
I accept that Mr Schroder was not provided with these written submissions previously and had not had the opportunity to read them prior to Mr Tockar speaking to them. Mr Schroder further protested that they were not provided to him over the luncheon adjournment for him to read and that accordingly he was not in a position to reply to the matters raised therein and sought that he be permitted to present the father’s submissions in written form.
Given the constraints to finish the case, after six days of evidence, the Court took the view that Mr Schroder could present his oral submissions in the father’s case to the extent to which they had already been prepared by him, and in reply to those matters raised by
Mr Tockar in his oral submissions to the Court. However, after having had the opportunity to read the mother’s written submissions, that leave should be granted to the father to file any further submissions in response, in writing within 7 days, limited to those matters to which
Mr Schroder considered he was not able to do justice in his oral submissions.
Mr Tockar objected to Mr Schroder being given this opportunity on the basis that Mr Schroder had had the opportunity to decide how he was going to present his case.
Having read the written submissions in reply by Mr Schroder, dated
25 August 2009, I accept his submissions that the following material identified by him in the mother’s written submissions should not be read for the reasons provided by him: Page 10 paragraphs 3-6; Page 10 paragraphs 2 and 3; Page 16(v); Page 17 (iii); Page 18(vi); Page 20 (ii) and (iii); Page 20 (ix); Page 21 7(i); Page 22 (vi), (vii), and (viii); Page 23 9; Page 25 11; and Page 25(H). Accordingly this material is not read by the Court.
Allegations were raised in the present case that [X] had told others that Ms M had used offensive language directed at her, called her “a bitch”; and smacked her and sent her to bed when she was not eating her tuna-bake (see mother’s affidavit, paragraph 129, and the Report of Dr K). Ms M denies these allegations.
There is no evidence that this alleged incident of the tuna-bake resulted in a notification to DOCS, in circumstances where, as Mr O’Grady points out, there is a mandatory statutory duty on Dr K to notify DOCS if he had any concerns in this regard.
[X] also told Mr O’Grady and her mother that Ms M screams and swears a lot (and see further the matters raised under s.60CC(3)(b) below). Ms M conceded in cross-examination that she swore at the children until the father interceded.
Quite serious allegations were also raised in cross-examination of
Ms M, and of Mr O’Grady for his opinion, and in the mother’s affidavit of some matters told to her by [X], about the parenting by
Ms M of her three children, [A], [B] and [C] and the concerns this may have for [X] in regard to her parenting style. These allegations ranged from Ms M using physical violence and physical chastisement, including hitting [B] with a belt. Ms M denied all such allegations and pointed to the “very protracted and messy divorce” that she and her ex-husband, Ms S, went through and her belief that he would “use this opportunity to make false accusations as a further attack on me”.
She admits, however, that she threw a water bottle at [B] in 2004, expecting him to catch it, but that it hit him in the stomach with sufficient force to cause him to cry.
The source of at least some of these allegations put in cross-examination to the witnesses apparently came from court documents pertaining to the Family Court parenting proceedings between Ms M and Ms S in 2005. The Department of Community Services (“DOCS”) determined, however, not to intervene in those proceedings, and by letter to a Judicial Registrar of the Family Court stated that “there is no ongoing role the Department needs to play in protecting the children. This view is based on the investigation of allegations made by the father [Ms S] which have not been confirmed by the Department, and certain concerns about the reporting of the matter which are explained in the attached report …” (Exhibit 17). The attached report, being an Update report for the Family Law Court in the matter, dated
23 October 2002, states that both [A] and [B] “retracted” what they had disclosed to DOCS the previous day, (namely that their mother was hitting them, swore at them, and had made threats to kill herself) on the basis that their father had told them to tell the Department these things (Exhibit 17).
There is no issue that the Family Consultant in those court proceedings stated that all three children expressed a clear wish not to live with their mother, Ms M; that Orders were made however in 2005 that the three children live with their mother; that [C] was reluctant to return to live with his mother; that [B] voted with his feet and went to live with his father; and that [A] had refused to live with her mother.
Questions were thus raised in the present proceedings, including why [B] was not living with his mother despite the 2005 Court Orders; why he has been living with his father since May 2006; why he “voted with his feet” and went to live with his father, despite the court order that he live with his mother; why Mr Packard was not in a step-father role with [B]; and why [B] has spent only limited time with his mother and
Mr Packard since.
Mr O’Grady accepted in cross-examination that these issues may well have been relevant and of interest and to cause him to make further enquiries, in particular, in the context of his recommendation that [X] spend equal time in her father’s household. Nonetheless, he points to the fact that [X] told him that that she had never observed any physical chastisement by Ms M.
Mr O’Grady was also of the opinion that, in the time available for interviews, there was no strong suggestion that any chastisement by
Ms M posed a concern in regard to [X].
Having considered these issues, and on the available evidence, the Court is not convinced that any adverse inference should be drawn, overall, in regard to Ms M’s parenting, nor in regard to any concern it may pose for [X] whilst in the father’s household.
Nonetheless, I express some concern that the father had found it necessary to intervene to stop Ms M swearing at the children, on her own admission, which lends some credible support for [X]’s complaints in this regard. I further consider that the consistent reporting by [X] of her concerns in relation to Ms M reflects a level of unease she feels with her, despite the observations of Mr O’Grady. I accept that there is a level of tension in [X]’s relationship with Ms M which is not present in her other key relationships.
AVO proceedings involving the father
Allegations were raised in the present proceedings in regard to AVO proceedings between Mr Packard and [A]’s boyfriend [D], over an incident in which Mr Packard allegedly pushed him, causing an injury to his ribs. The father denies this allegation, but concedes that his relationship with him is bad. DOCS was notified. The AVO proceedings, however, were withdrawn and dismissed on the basis of mutual undertakings being entered by the father and [D]. In these circumstances, the Court is not prepared to draw any adverse inference as to the father’s parenting, based on this evidence.
Whether the father is able to relocate to Queensland
The father’s case is that he is not in a position, on the basis of his employment and his family situation, to himself relocate to Queensland.
He points to the “unique” duties he carries out in his position with [Q] which include [omitted]. He says that these duties can only be carried at [M] in Sydney.
He claims that he could not work in his present position as a [omitted] in other parts of Australia and that there are no [occupation omitted]’s in Brisbane in his field.
I did not find the father to be discredited when pressed on these matters in cross-examination. I accept his evidence that his employment position with [Q] is not transferable to Queensland.
The father further claims that his relocation would cause real concerns over what would happen to the paternal great grandmother who is now aged 88 and who lives in the granny flat on his property. He and Ms M currently assist her with cleaning and shopping. She would have to find alternative accommodation which the father says “may not allow her the freedom, her independence, together with the security of family and assistance close by, which she now enjoys.” He also points to the very close relationship that [X], as well as [A] and [C], have with the great-grandmother which he would like to see continue.
Significantly, it would also mean his moving away from his parents and other supportive family who live in such close proximity to him.
There is also the question of Ms M capacity to follow him, given her present full-time employment and her responsibilities for her own children, in particular [C], and where Ms S lives in Sydney.
Even apart from the father’s employment situation, there is thus no doubt that any relocation by the father would be highly disruptive and distressing to his immediate family unit and to his extended family. In these circumstances, I accept that it is not a realistic option for the father to relocate to the Sunshine Coast, or to Brisbane, in this case.
Mr H’s future intentions
Mr Schroder has submitted that there is no evidence before the Court that Mr H will remain in Queensland and the mother in Sydney in the event that [X] is not permitted to relocate, and that this presents a gaping chasm in the mother’s case. He points to the fact that Mr H never gave evidence that he would remain in Queensland, thus pointing “an emotional gun at the Court’s head.”
I accept that Mr H did not give this precise evidence. However, both his actions and his words can be taken as some clear indication on his part that he will remain working in Queensland, whatever decision is reached by the Court in this matter.
In this regard, he gave the mother what she conceded was an “ultimatum” that he was going to take up the job offer whether she came or not; he conceded that the father’s position on relocation was irrelevant to his decision to take up the job offer; he conceded that the on-going court proceedings were irrelevant to his decision; he took up the job offer in February this year, notwithstanding these matters; he has been employed in Queensland now for about six months; he is aware of the mother’s increased levels of anxiety but made it clear in cross-examination that he was dealing with it by nightly phone calls and that he had not considered postponing his start up date or returning to assist her and the family in Sydney; his evidence is that he loves the job which is going successfully, and that it holds both financial and lifestyle advantages for him and the family. Based on this evidence, I consider that there is no indication that Mr H is likely to return to Sydney in the foreseeable future, whatever the outcome of the present proceedings.
As already indicated above, I accept the submission by Mr Schroder that the Court not be persuaded in this case by Mr H departing for and remaining in Queensland. Rather, it must decide the case on what is in [X]’s best interests, pursuant to the statutory objects and underlying principles, and the statutory primary and then secondary considerations set out in the Act.
Limitations on the Family Reports
Mr O’Grady recommended in his Report and confirmed in his Update Report that the mother’s proposed move to Maroochydore should not be endorsed by the Court, as not in [X]’s best interests at this stage.
He further recommended that the father’s proposal for [X] to spend equal time with each parent on a week about arrangement be endorsed.
His final recommendation was that the Court may wish to encourage both parents to consider an experienced and suitably qualified psychologist to assess and if indicated treat what appear to be “concerning levels of stress and anxiety with [X] at this time.”
In both his Report and Update Report, Mr O’Grady recorded the word “Nil” under the heading Limitations of Family Report. In cross-examination, however, by Mr Tockar, he conceded that there are a number of limitations in his Report and Update Report, including:
·The sources of information available to him and the many more recent affidavits he had not seen;
·His failure to consider the impact on the mother if she saw herself as not able to relocate;
·Given the time constraints, his failure to re-interview the mother for the Update Report, in particular to ask her about [X]’s current state of anxiety;
·Ms M and [C] were not interviewed for the Report in which he made the recommendation for equal time, however, he considered this limitation to be diminished by Ms M being interviewed, and [C] observed, for the Update Report;
·He did not contact Dr K or Dr D, a psychologist, who had interviewed and examined [X];
·The time constraints on him in interviewing persons, (including Mr H);
·His concession of certain factual errors in the Report and Update Report, including that [X] was spending time with her father every Wednesday, not alternate Wednesday as he reported;
·The lack of psychological/psychometric testing of parents by Regulation 7 Consultants, which he considered a significant systemic deficit;
·It would have been advantageous in his view to have carried out similar testing of [X] given her hair-pulling condition;
·His lack of consideration of Ms M in relation to her parenting of her 3 children;
·He made no analysis of the difficulties that could attach to the relationship between Ms M and [C], yet he conceded that this was a serious omission in his Report;
·He conducted no direct interview with [X] and [C], but rather relied on his non-directive observations of their interaction;
·He made no comment at all about the relationship between [X] and [Y];
·
The interviews and his assessment were carried out
7 months prior to his giving evidence at the final hearing, without his having the opportunity to carry out any further update assessment, which would have been advantageous, especially given [X]’s age.
Mr O’Grady conceded in cross-examination that where an expert does not have all the available information, it is more difficult to be absolutely sure in assessing a case.
Mr Tockar criticises Mr O’Grady’s failure to specifically state in his Reports what methodology he has used. I accept, however, that a fair reading of them bears out Mr O’Grady’s evidence that observation is his implied methodology. I accept his evidence in this regard that he sought to create a non-directive environment so that [X], given her age, could optimally express her relationship with each parent which was “most conducive to meaningful observations” and to reduce her anxiety.
I have carefully taken into account the above conceded limitations in the Report and Update Report in assessing the evidence of Mr O’Grady.
I am also aware, and have taken into account, that Mr O’Grady made a Recommendation in his original Report that [X] spend equal time with the father without his having had the opportunity at that time to interview and assess Ms M and her son [C] with whom [X] would be spending half her time on this recommendation; where he was aware that [X] had expressed some degree of negativity towards both Ms M and [C], both to him directly and in the mother’s affidavit of 8/4/08, which he had read, in which [X] had told the mother that “I pull my eyelashes and eyebrows out most at Dad’s because [C] teases me and his Mum always yells at me and blames me for everything”; and where he had no information concerning Ms M parenting of her own three children.
I accept, however, that Mr O’Grady’s twelve years working in the Penrith area with children have provided him with a specific knowledge of the resources and what he refers to as the “plethora” of support for children in stress in that area, as well as the health resources which are considered “good by health professionals.”
I also accept his evidence that he is aware of the health and education system in Queensland and hence competent to draw the conclusion that both areas offer comparable benefits. In this regard, he was not convinced of the prospective advantages for [X], as opposed to for her mother and Mr H, in relocation, where he considered there is “no palpable evidence which suggests that the quality of education, recreational and health resources is superior in the Sunshine Coast to that available in the Penrith region The Penrith region is widely considered to be well resourced in respect to the above resources, and like Maroochydore, is proximal to rich and diverse national park areas” (Report paragraph 23).
The Primary Considerations: s.60CC(2)
(a) The benefit to the child of having a meaningful relationship with both parents
I am satisfied that [X] presently enjoys a meaningful relationship with both her parents. Within the structure of a clearly defined regime where [X] lives with her mother, who has been her primary carer since birth and since the parties separated, but spends time with her father, both have demonstrated a reasonably co-operative approach to parenting, up until the present relocation issue arose.
I accept that both parents dearly love [X] and that she loves them. She has formed a close attachment to each of them, and wants each to remain in her life. The close proximity of their respective households and of extended family on both sides, have facilitated [X]’s relationship with both her parents. She has shared her life with them in the Penrith region, with her school, social network, and sporting activities close by. I accept that both parents impressed as placing a high priority on [X]’s education, social and physical development.
I am concerned, however, that in Mr O’Grady’s opinion [X] appears to have become enmeshed in the present conflict between her parents which may affect her relationship with them.
I accept that the mother appears to have inappropriately discussed the Court case with [X] to the extent that she told Mr O’Grady that her father wants “to take her away” from her mother. I accept the submission by Mr Schroder that this would have sent a negative message to [X] about her father, with a potential detrimental effect on their relationship. I also accept that [X] obviously feels and responds to her mother’s anxiety.
Mr O’Grady expressed the view in his Update Report that [X]’s increased anxiety and incongruent responses are indicative of her becoming ‘adultified’, that she has become “enmeshed and overly-dependent” on one parent, with “marginalisation” of the other, with the “deleterious affect of robbing her of the capacity to engage in innocent activity”. In reaching this opinion, Mr O’Grady conceded, however, that he had only had the benefit of interviews with the father and Ms M and his observations of [X] with them and with [C]. He had not had the opportunity to weigh in the balance the views of the mother and
Dr K who both report that [X]’s general anxiety levels appear to be settling well. Without his having had the opportunity to take into account these counter-veiling views, I consider that the Court should not place undue weight on his opinion on this point.
Mr O’Grady was of the view that if [X] were permitted to relocate to Queensland, this would have a profound effect on her relationship with her father to whom she is strongly attached. I accept his evidence in this regard.
I equally accept the evidence of Mr O’Grady that the happiness and well-being of both the mother and the father are important to [X]’s own well-being.
I accept that the father would suffer a sense of loss and grief if the mother’s proposal were accepted and [X] was to move to Queensland. [X] is clearly an insightful child who has been shown to pick up readily on her mother’s emotions. Whilst I accept that the father would seek to shield [X] from these emotions, I am sure she would nevertheless feel her father’s sense of loss and grief, which may thereby impact negatively on their relationship, at least in the short-term. However, I note [X]’s statement to Mr O’Grady that she would ‘get used to’ missing her father (Report paragraph 18).
Mr Tockar points to the fact that, on the mother’s proposal, [X] would actually spend a total of more time with her father than under the current arrangements. This would consist of holiday and long-weekend block time.
Mr Schroder points to the effect this will have on the quality of time [X] will spend with her father. She has had regular face to face contact with her father for the past nine years. I am most mindful of the fact that any inter-state relationship, no matter how well-structured, will inevitably change the quality of that relationship. I accept that the quality of [X]’s relationship with her father, would be significantly diminished if the relocation occurred. [X] would no longer see her father every Wednesday as she presently does, as well as alternate weekends, and the extent to which the father could continue to be involved in her regular routine could no longer be maintained.
To the extent to which the father were to fly to Maroochydore to visit [X], would permit him to be more a part of her routine and to be involved with her lifestyle. Nonetheless, I accept that there would still be a clear diminution in the quality of their relationship. The father’s family and social network that [X] and her father presently enjoy together would also not be available to them.
That is not to say, however, that this difference in the relationship precludes it from still being meaningful. I am satisfied that the father would continue to maintain a meaningful relationship in [X]’s life wherever she lives.
I accept that the mother would readily adapt to the new environment and lifestyle on the Sunshine Coast. She would have all her immediate family unit around her, with Mr H on a full-time basis to share her and the children’s lives. She would also have the support of her mother
Ms H who I accept would herself relocate to the Sunshine Coast if her daughter and family move there. The proposed [S] School also clearly offers very good educational and sporting facilities, large open grounds and ovals, and a drama speciality of which [X] is very fond.
I do not consider, however, that there is sufficient advantage to [X] in her attending one school or the other in Penrith or on the Sunshine Coast, nor in the respective resources and activities available to her on the Sunshine Coast versus the Penrith region. I accept the evidence of Mr O’Grady in this regard, based on his knowledge and familiarity with the regions.
The maternal grandmother, Ms H has also made it clear that her own relocation to Queensland is conditional upon the mother’s relocation. She is prepared to move there with her fiancé, Mr T, notwithstanding that she has a part-time job as a [omitted] in Sydney. If the mother and [X] were to relocate to the Sunshine Coast, I have no doubt that Ms H would follow them and continue to play a significant supporting role in [X]’s life.
In these circumstances, I consider that [X] would adjust over time to the changes in her life in Queensland and to not seeing her father face to face on a regular basis. She would have the continued strong support of her mother, her maternal grandmother, Mr H and the continuing bond with [Y]. It is interesting to note in this regard that Mr O’Grady did not suggest that [X] may need any professional assistance in the event that she moved to Queensland.
Should the Court not endorse the mother’s proposal, she does not appear to have indicated whether or not she would remain in Sydney with [X] or go to Queensland without her.
If the father’s proposal is accepted and [X] is not permitted to relocate, this could be expected to have a most adverse affect on the mother’s well-being and state of happiness. With Mr H in Queensland, she would be placed in the most difficult position of having to choose whether she should follow her husband with their daughter [Y] to Queensland or whether she should remain in Sydney with [X].
There is no doubt from the mother’s evidence and that of Dr K, her treating General Practitioner since 1991, that the present court proceedings and Mr H now working in Queensland are causing considerable stress and anxiety on the mother, to the point that Dr K has recently prescribed for her a mild dose of anti-depressant.
I accept therefore that the mother is already in a stressed and anxious state and that any extended prolongation of the existing arrangement, dependent in effect on nightly phone calls from her husband, would place significant strain on their marital relationship.
I accept that the mother’s inevitable distress may impact negatively on [X] who clearly picks up on her mother’s emotions. I am concerned that [X] may blame herself for her mother and Mr H being apart from each other. This may, in turn, negatively affect [X]’s relationship with her father, which it appears may already be the case according to the father’s reporting to Mr O’Grady.
In recommending that [X] not relocate to Queensland, Mr O’Grady took into account that her staying in Sydney may have a “short-term deleterious effect” on her which could be assisted by the involvement of the school counsellor or a psychologist to help her to “re-adjust” to staying in the Penrith area.
He conceded however in cross-examination, in particular given the time constraints, that in reaching his view, he did not have the benefit of re-interviewing the mother since late 2008, some eight to nine months prior to his giving evidence; that he had not read the reports of Dr K, the mother’s longstanding treating doctor; that he had not considered the impact on the mother if she saw herself as not able to relocate; that he had not had the opportunity of asking the mother about [X]’s current state of anxiety; and that he had not made any comment about [X]’s relationship with [Y].
I accept that these are important matters that the Court should weigh in considering his recommendation that [X] remain in Sydney with both her parents available to her. It is also of note that he suggests that [X] may require professional assistance to help her to “re-adjust” to remaining in Penrith where both she and her mother and her father now reside.
Despite these concerns, I accept that [X] would continue to have a meaningful relationship with both her parents in the event that she remains living in Sydney with her mother.
If the father’s proposal is accepted and [X] is not permitted to relocate to Brisbane, the mother decides to move to Queensland with [Y], and [X] lives with her father in Sydney, [X] would suffer the severe loss of the daily contact and care of her mother, who has been her primary carer since birth. It is clear that [X] is strongly bonded to her mother who has been the most constant adult in her life.
She would also suffer the strong loss, on a daily basis, of not seeing, playing and assisting with [Y], with whom she is strongly bonded.
Ms H expressed the view that any separation of the two from each other would be “traumatic for both of them.” I accept that any separation from [Y] would have a negative impact on [X].
She would also lose the strong role that Mr H has played in her life on a daily basis since she was 3 years old, until his recent move to Queensland.
I am not certain whether Ms H would follow her daughter to Queensland in these circumstances, but that if she did, [X] would lose all the family support she has had on her mother’s side on a daily or regular basis.
I thus accept his evidence that one of the aspects of [X]’s improvement has been “the improved therapeutic relationship between her mother and herself [emphasis added] which has enabled [X] to openly talk about her fears and then have assistance in overcoming them and coping with her anxieties.”
I consider that the mother’s continued important role in maintaining the very positive improvement and recovery in [X]’s hair-pulling condition provides some support for [X] remaining primarily in her mother’s care.
I am satisfied that the parent’s co-operation and communication is, and can be expected to remain, poor for at least quite some time to come. [X] needs time to settle and gain confidence again in a regular and stable regime, without parental hostility as her constant backdrop. I consider that her having to move between the respective households in an equal shared care arrangement, with the degree of existing acrimony between the parents, raises some significant concerns about [X]’s capacity to cope with an equal time proposal.
If the parents were to attend some counselling, as Mr O’Grady suggests, this may assist their communication in the future, but I consider it to be too speculative a basis upon which to found a shared equal residency regime at this point in time.
I also refer to the reference by Dr K to the notes of Dr D, [X]’s treating psychologist for her Trichotillomania condition, that [X]’s anxiety was provoked by her worrying about upsetting her father and worrying about getting into “trouble” (see Annexure “B” to his Report). Dr K further reported that about six months after first being diagnosed with the condition that [X] stated that her anxieties had been increased at times at school but also when with her father; one month after that, she reported that she had problems at her father’s house and was getting bored; and on 27 November 2008 that one issue causing her stress was interaction with Ms M and that [C] would bully her.
I consider that these stressors may be compounded, not reduced, if she were to live half-time with her father. When the father is at work, or otherwise unavailable, [X] will often be in the care of Ms M, with [C] present. As indicated above, I am satisfied that there is a level of tension and unease in [X]’s relationships with both of them which could put added pressure on her if an equal shared residency arrangement were to be implemented.
Furthermore, with the father working full-time as well as having the maintenance of a large property, he has not, to date, been able to avail himself of all available opportunities, such as his RDO’s, to spend time with [X]. In these circumstances, it is difficult to see how he could realistically sustain an equal time arrangement, without strong dependence on Ms M, (who herself is working a nine day fortnight and leaves for work each morning between 7 and 7.30am), his parents and his sister.
Taking all these matters into consideration, I do not consider that an equal time arrangement would be in [X]’s best interests.
If the father’s proposal is accepted and [X] is not permitted to relocate, her mother decides to move to Queensland without her, and [X] stays with her father in Sydney, she would no longer be living on a daily basis with her mother to whom she is strongly attached. She would also lose the day to day interaction with Mr H and [Y], with whom she has a strong relationship.
The parents separated when [X] was very young, just 15 months old. She has lived primarily with her mother since then. Ms H who lives close by, has been very involved in her life since her birth. Mr H has been living in the same household with her since she was 3 years old. [Y] has been living in the household for the last 3 years. I accept that each of these persons is very significant in [X]’s life, and her mother most of all. I accept that [X] has a very strong bond with her mother and that any separation from her would be devastating to her and not in her best interests. Indeed, the father reported to Mr O’Grady that there had been an alarming escalation in [X]’s anxiety when away from her mother (see Update Report paragraph 11). Ms H also expressed the view that the bond between [X] and her mother is “very, very close” and that [X] would not be happy being away from her mother.
I also accept that any separation from [Y] would have a profound effect on [X], given the very strong sibling bond that is between them (and see further the mother’s affidavit, paragraphs 44-51). I further accept any prolonged separation from Mr H would have an impact on [X].
Moreover, since the 2002 Orders came into force, the parents have agreed to keep the alternate weekend regime during school holidays, which means that [X] has usually never been away from her mother for more than a seven day period at a time.
I consider that this scenario would pose the greatest pressure and stress on [X] where she would be separated from her mother and [Y] on a daily basis, thus with the highest potential risk of her relapsing with some general anxiety condition. As discussed above, Dr K has pointed to the very significant role played by the mother in bringing about and maintaining [X]’s recovery from her Trichotillomania.
I consider that there would be a profound diminution of both the quantity and the quality of the time [X] presently spends with her mother, which no other form of communication, such as webcam, could adequately compensate. [X] would suffer a deep sense of grief and loss from being separated from her mother, in particular, in circumstances where, on the father’s evidence, she is already experiencing some fretting when away from the mother and increased anxiety. [X] is already picking up on her mother’s stress. I accept that these concerns would escalate.
The mother has pointed to the particular strength of her parenting style as being her capacity to communicate effectively with [X] and that “regular communication times” were a feature of this (Report paragraph 13). I accept that the mother would no longer be able to adopt such a facilitative approach on a regular, face to face basis, if [X] remains living in Sydney without her.
I accept that, of the competing proposals, this scenario would have the most significant detrimental impact on the well-being, welfare and development of [X].
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
If the father’s proposal is accepted and [X] and both parents remain in Sydney, there will be no added financial impact on, nor practical difficulty with, [X] spending time with and communicating with her father.
If the mother’s proposal is accepted and [X] is permitted to move to the Sunshine Coast, I accept that Maroochydore is readily accessible with its own airport. There is also Brisbane airport within reasonable proximity.
the mother proposes that she will pay for seven return flights for [X] to visit her father in Sydney in accordance with her proposal for [X] to spend block time with her father in school holidays and on long weekends. Otherwise, she proposes that, on those occasions when the father flies to Queensland, he bear his own costs using his subsidised [Q] staff travel fares.
There would also be the costs of the father and [X] communicating by webcam, email and telephone. The mother has stated that she will pay for the costs of webcam installation. These facilities, especially webcam, would assist in mitigating the affect on [X]’s ability to maintain regular contact with her father and his extended family.
The father is of the view that if [X] were to travel to Sydney to spend alternate weekends with him there, the mother should meet the costs involved. Even if this was forthcoming, however, he expressed concern over the impact alternate weekend travel would have on [X]’s sporting and extracurricular activities, given that she is “heavily involved” with weekend sports. He says that the effect of such an arrangement would be that [X] would miss every second game. I accept that it is difficult to see how she could maintain her sporting commitments in these circumstances.
I would also have concerns over the increased dislocated nature of her life if she were required to travel each alternate weekend; the impact this would have on her friendships and social activities; and the practical difficulties of carrying any school work she may have to do, especially once she enters high school. I accept therefore that, if [X] were permitted to relocate to Queensland, apart from the financial implications, the present alternate weekend arrangement would not be in her best interests, which the father has very fairly recognised.
Indeed, if the father’s proposal is accepted and [X] lives with her father in Sydney, but the mother moves to Queensland the father proposes that [X] spend time with her mother in accordance with the mother’s proposal, that is, during block school holiday time and long weekends. Both parties thus realistically agree that any attempt to implement substantial and significant time would not be reasonably practicable in either of these circumstances.
If the father himself were to travel to Queensland on alternate weekends, he says that due to the costs involved, his time with [X] would be dramatically reduced unless the mother was responsible for meeting the costs associated with his travel to and from Sydney each fortnight. The father is eligible for [Q] staff travel fares which provide stand-by status on flights. On this basis, he estimates that his total costs of travelling to visit [X] for flights, accommodation, car hire, meals and entertainment would be $567.17. However, given the very real problems of staff being able to secure a seat on weekends and school holidays, he says that full fare travel is the only realistic option. On this basis he estimates his total costs at $855.17.
The father also points out that as both he and Ms M work full-time, the weekend is the only extended leisure time for family activities. He is involved in sporting activities on the weekend. He also coaches [C]’s soccer team which requires him to attend training sessions and weekend games. He also has their large property to maintain. In these circumstances, it is unrealistic to suggest that he would travel on a fortnightly or even regular basis to Queensland to visit [X] should she relocate there. I accept that this would affect the amount of contact that [X] would have with her father and his family, but not to the extent of substantially affecting their personal relations.
In the event that the father’s proposal is accepted and [X] is not permitted to relocate, and the mother remains in Sydney with her, the ongoing cost of maintaining two households in Sydney and on the Sunshine Coast, with some commuting between them, may well diminish any potential financial benefit that may flow from Mr H’s job opportunity.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no issue in this case that both parents have the capacity to meet [X]’s needs.
Both place a high importance on her formal and informal education and on her intellectual development, and both have generally been involved in significant events in her educational and extra-curricular life. I have no doubt that they will continue to do so and to fully meet [X]’s intellectual needs whatever the outcome of this case.
Both have sought to ensure, in this regard, that [X] has received very good schooling, presently at [B] School, and both have considered her best interests in having the forethought to enrol her for high school at the [P] School. I accept that the mother also enrolling [X] at [S] School is an appropriate measure to ensure she continues to have a positive educational experience, in the event that she is permitted to relocate to Queensland.
There is also no issue that both parents presently provide very substantial accommodation for [X] when she is in their respective care. The mother and Mr H reside in [P], near Penrith, in a comfortable four bedroom home in which [X] has her own room, and with adequate space for her to pursue both indoor and outdoor activities. It is also close to various recreational, educational, health and sporting facilities.
The father lives with Ms M on a small acreage in [U], near Penrith in a 4 bedroom house in which [X] has her own room. The home is similarly comfortable to the mother’s, with a large natural outdoors environment, and with similar proximity to [X]’s various educational and recreational needs.
Both parents have provided a nurturing and generally positive environment in which to ensure that [X]’s emotional needs have been well met. They have demonstrated a strong commitment to her emotional well-being and her developmental needs.
[X] is clearly strongly attached to both parents. I accept, however, that the mother has played the more significant role in meeting her needs on a day-to-day basis. I have some concerns, however, that in recent times, she has not been able to shield [X] from the present court proceedings, as discussed above. There is no doubt in this regard that [X] is very aware of the present conflict between her parents over the relocation issue and that she is clearly not immune from her parents’ feelings, and the mother’s in particular. Nonetheless, I accept that she remains a devoted mother to [X] and continues to be genuinely motivated to provide the best emotional environment she is capable of providing for [X], in the present circumstances.
If the father’s proposal is accepted and [X] is not permitted to relocate, and the mother decides to stay in Sydney to be with [X], the mother will have to continue to cope with the daily care and development of both [X] and [Y], without the full-time support of her husband. I have concerns that the emotional and physical adjustments the mother would face may, for at least the foreseeable future, affect her being able to provide as effectively as she has done in the past for [X]’s, as well as her own and [Y]’s, emotional needs. It may become even more difficult than presently for the mother to shield [X] from any unhappiness, anxiety, or frustration she may inevitably experience. This could be detrimental to [X]’s emotional well-being with the potential to impact on her development.
The impact this may continue to have on [X]’s relationship with her father is also concerning. The father has already reported to Mr O’Grady that [X] has become a little more “emotionally distant” from him in recent times (Update Report paragraph 11).
If the mother’s proposal is accepted and [X] moves to the Sunshine Coast, I acknowledge that the father would continue to place the same importance on [X]’s emotional needs. The father impressed, in this regard, as generally having insight into [X]’s emotional and developmental needs. However, the extent to which the father would be able to maintain the same quality of involvement in meetings [X]’s emotional needs as in the past, may be affected by the tyranny of distance and the different environment of the Sunshine Coast in which they would be relating if the father were visiting [X] there. In these circumstances, I do not consider that the father would be able to provide the same level of care he has to date in assisting [X]’s emotional needs. This would not, of course, be the case in the event that [X] is not permitted to relocate, the mother decides to relocate without her, and [X] lives with her father in Sydney.
I accept that the father has substantially shielded [X] from his own emotions in the present impasse over relocation, which is strongly to his credit. I am satisfied that he would continue to do so whatever the outcome of the present proceedings
I also accept the evidence of Mr O’Grady that the father “impressed as being a committed, active and responsive parent, and with an adequate repertoire of both insights and skills relevant to responding to [X]’s various developmental needs. He spoke of his capacity to balance flexibility, warmth, structure and firmness in respect to the time spent with her. He also demonstrated a considerable reflective capacity in relation to emotional fluctuations which have been observed with [X] in recent years. This refers to his capacity to make sense of the child’s emotional states, as well as his own, which is considered fundamental to sensitive and effective parenting” (Report paragraph 9). In his Update Report, Mr O’Grady confirmed the positive parental attributes of the father in meeting [X]’s emotional needs (Update Report paragraph 9).
Despite these positive statements, Mr O’Grady also commented on some residual concerns over the extent to which the father had listened to and responded to issues raised by [X]’s in respect of her relationship with Ms M and with [C] (Report paragraphs 19, and 28). Mr O’Grady recommended on that occasion that the Court “may wish to encourage the father to pay due attention to the issues raised in this report in respect to [X]’s relationship with his partner and step-son.” I note, however, that a similar recommendation was not included in
Mr O’Grady’s Update Family Report.Mr O’Grady further observed that the father appeared to be realistic in recognising that [X]’s emotional adjustment had at times been “compromised by the lack of co-operation and level of acrimony which had prevailed” since early 2008 between the parents (Update Report paragraph 10).
I also accept that Mr H places importance on [X]’s emotional needs and will continue his present commitment in this regard, in particular if [X] is permitted to relocate and live with him again on a daily basis. Until February this year, he has been actively involved in [X]’s daily life since she was three years old. He continues to speak to her nightly by phone. He has, and continues to perform, an important parenting role; he has contributed significantly to her financial support by paying an estimated $1,000 per month for her living costs; and has shown a capacity to meet her emotional and intellectual needs. There also appears to be no issue that he has never sought to undermine the father’s role in [X]’s life which is to his credit. I accept that he has taken on his role of step-father with “enthusiasm and commitment”, as Mr Tockar submits.
Ms M has been involved in [X]’s life now for some years, but not on a daily basis. I consider that she is not presently meeting [X]’s emotional needs to the same extent as the other significant persons in her life, as discussed above.
There is no issue that Ms H, the paternal grandparents, and the father’s extended family have contributed very positively to [X]’s well-being and development. Whether [X] relocates to Queensland or not, I accept that Ms H will continue to see [X] on the same very frequent basis as she has done to date throughout [X]’s life, with her strong focus on meeting her on-going emotional and developmental needs. I also accept that the paternal grandparents, and the father’s extended family, would continue to contribute to [X]’s same emotional and developmental needs, but to a much lesser extent should [X] relocate to Queensland.
(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;
If the mother’s proposal is accepted and [X] moves to the Sunshine Coast, she may benefit from the new experience of living in another environment, near the beach, meeting new people, making new friends and having Mr H back in her life on a regular basis with her familiar family unit back together.
The readjustments required of [X] in relocating, at her age and level of maturity, and given her past history of general anxiety with Trichotillomania have been dealt with above.
The father has also been involved in [X]’s educational, sporting and extracurricular activities. I accept that his involvement in these regular aspects of [X]’s lifestyle would be diminished if he were only to spend block time with [X] during school holidays and long weekends.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
There is no issue that both parents have demonstrated a dedicated and caring attitude towards [X]. They are loving and committed parents who have generally placed a high priority on their parenting role and responsibilities.
There is some degree of disagreement between the parties, however, over the extent to which the father has been involved in [X]’s schooling and sporting activities. The mother contends that the father rarely attends [X]’s school functions, parent teacher nights, sporting events, and has not taken her to swimming lessons since 2002.
I accept that the father was involved in some aspects of [X]’s daily care until the parties separated, but that the mother took the primary responsibility in this regard. Thereafter, I accept that the father has taken some active involvement in her schooling, including attending some pre-school and school functions, award ceremonies, assemblies, parent-teacher interviews, and helping with her school work. He has also been involved in her extracurricular activities, including attending some netball, basketball, dancing and Little Athletics events, and her recent sports’ carnival in which she has shown quite some aptitude. [X] has also had the benefit of sleep-overs, birthday parties, camping and other holidays whilst in his care.
Within the constraints of his full-time employment, his partner also working, a child to look after in their household, a sizeable property to maintain and with his own and [C]’s sporting interests to attend, I consider that the father has demonstrated a supportive interest and involvement in [X]’s life and a commitment to her welfare and development.
Indeed, the mother conceded in cross-examination that she has had no concerns about the father’s parenting of [X] since their separation in 2001; that she is still not critical of his parenting at all; that [X] was involved in a wide range of activities involving both parents; and that the father has involvement with her schoolwork and he has a homework desk for her at his place. I thus accept that the father has been fulfilling his obligations in this regard.
Mr Tockar pointed to the failure of the father to take advantage of maximizing each available occasion to spend time with [X] and criticised the fact that he had not accorded her priority on these occasions. For example, he referred to the fact that since the 2002 Orders were entered, he had only taken advantage of 2 out of a possible 100 RDO’s available for him to spend time with [X], and that neither of these RDO’s was taken more recently than October 2008.
The father’s evidence was that he has a one and a half acre block and house to maintain and that he wanted to ensure that it was in good condition to ensure that his time spent with [X] was as beneficial as possible and that other weekends were taken up in children’s and sporting activities which limited his time in regard to RDO’s.
Mr O’Grady gave evidence that the father’s acreage is not an inconsiderable block of land in [U], and that the father’s time away from work was quite limited. He further pointed generally to the need, and indeed entitlement, of any parent to look after themselves and to rest and recuperate so that they are optimally available to their children. He conceded that he was not able to say how relevant this need was to the father, but that self-care is relevant to all good parenting.
Having considered these matters and the father’s explanation, I do not consider that any criticism should be made of the father for not having optimised every RDO opportunity to spend time with [X]. Nor do I consider that it reflects adversely on his attitude and commitment to [X].
There is no issue that the father has paid child support for [X] from the time of separation and that he is presently up to date in his payments. Following the sale of the former matrimonial home the father paid $650 per month in child support in accordance with an informal arrangement between the parties. Since the Child Support Agency has been involved, the father has paid $450 per week. I do not accept that the father should be criticised, as the mother submits, for his reducing the amount of his payments in accordance with the Child Support assessment of his responsibility in this regard. I accept that he has been meeting his financial responsibilities to support [X].
The father also continued to pay the mortgage payments on the former matrimonial home for some 12 months after separation to permit the mother and [X] to continue to reside there to provide some stability for [X].
The father says that he also pays half of [X]’s school fees and other costs involved with her schooling, such as school uniforms. He conceded in cross-examination, however, that the words “school uniforms” referred only to school shoes, which could have been misleading on his part. When in his care, the father says he pays for the costs associated with [X]’s sporting activities, therapist costs, and clothing. The mother says she pays for [X]’s netball, basketball and swimming fees.
Both parents have thus generally demonstrated a most positive attitude toward [X], and to their parental responsibilities thereby ensuring [X]’s proper care, welfare and development.
(j) any family violence involving the child or a member of the child's family;
This consideration is not relevant in this case.
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This consideration is not relevant in this case.
(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 am aware that this is the second time that the parents have been involved in parenting proceedings concerning [X]. Both parents were able to reasonably co-operate on the first occasion by entering into the 2002 Consent Orders.
The present litigation impasse, however, has caused a high level of conflict between them, where direct communication has effectively broken down. [X] has formed such a strong attachment and relationship with both her father and her mother. Both her parents are aware therefore of the impact on her of their present conflict and of these Court proceedings, in circumstances where she has a history of a general anxiety disorder.
The outcome of these proceedings will inevitably be extremely upsetting for one of the parents. Whatever decision the Court reaches as being in [X]’s best interests, I would hope that neither parent would seek to embark on any further litigation in the future from which [X] would inevitably suffer.
(m) any other fact or circumstance that the court thinks is relevant.
Mr Tockar pointed to the mother’s right to freedom of movement and to the need for the Court to also give serious consideration to the best interests of [Y] who will be affected by any orders made by the Court. I accept that these matters should be given appropriate weight in these proceedings, but that the best interests of [X] remain the Court’s paramount consideration.
Conclusion
This is indeed a difficult decision which has to be made in this case. In determining what is in [X]’s best interests, it has been necessary to weigh carefully each of the relevant primary and then additional considerations which have been discussed above. [X]’s best interests must be considered paramount, above the impact on either parent, and above the right of either parent to freedom of movement or to stay put. I am satisfied that it is in [X]’s best interests that the mother be permitted to relocate with her to the Sunshine Coast.
It is necessary for [X] to have some certainty and stability in the outcome of this matter. If she remains in Sydney, with or without her mother, this would be less likely to be achieved than if she were to move to the Sunshine Coast.
If her mother moves to the Sunshine Coast without her, this would have the most devastating effect on [X], as discussed above. If her mother remains in Sydney, [X] would be left in a continuing destabilised and fractured environment, with the potentially on-going conflict between her parents; with the mother torn between [X] and her husband with the marital and financial strain of maintaining any long distance relationship over a prolonged period; and with the on-going potential for the mother to decide to leave her and join Mr H on the Sunshine Coast with [Y].
In contrast, I am satisfied that [X] would adjust reasonably readily to the new routine and lifestyle in a stable and nurturing home environment on the Sunshine Coast. Her mother would be in the best position to support her emotionally, with her own family unit intact again.
I know this will pose some challenges for [X]’s relationship with her father. There is no doubt they will miss each other dearly. Whilst there will be a change in the nature and quality of that relationship, the amount of time spent together will be much the same as under the current arrangements. I am confident, however, that the deep attachment and meaningful relationship that [X] has already built up with her father will endure and that the strong bond they share will continue to be reinforced in the block time together, any time the father can visit [X] to share her day-to-day life, schooling and routine, and by frequent phone calls and webcam. I am equally confident that the mother will encourage and facilitate [X]’s close and continuing relationship with her father in this context.
Equal time
In these circumstances, with [X] living inter-state, it is not suggested by either party, that her spending equal time with both parents would be in her best interests. It would also obviously be entirely impracticable for her to do so. I thus decline to make an order for equal time pursuant to s.65DAA(1)(c).
Substantial and significant time
Equally, neither party has suggested that it would be in [X]’s best interests that she spend substantial and significant time with her father, in these circumstances. It would also be entirely impracticable for her to spend time with her father during the week. Further, the father has very fairly pointed to the detriment, in particular, to [X]’s sporting commitments, if she had to commute to Sydney on alternate weekends, apart from the costs involved. The father also made it clear that he would not be able himself to sustain commuting to the Sunshine Coast on alternate weekends, given his sporting and other family commitments, apart from the costs involved.
I thus decline to make an order for substantial and significant time pursuant to s.65DAA(1)(e).
I certify that the preceding three hundred and twenty-eight (328) paragraphs are a true copy of the reasons for judgment of Orchiston FM.
Associate: Kate Lambert
Date: 21 August 2009
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