HILDEBRAND & MATHISEN
[2012] FMCAfam 1127
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HILDEBRAND & MATHISEN | [2012] FMCAfam 1127 |
| FAMILY LAW – Relocation – young child – primary carer’s emotional health – current good substantial and significant relationship between child and the proposed remaining parent, the father. |
| Family Law Act 1975, ss. 60CA, 60CC, 61B, 61DA, 65DAA |
| A v A Relocation Approach (2000) FLC ¶93-035 Bolitho & Cohen (2005) FLC ¶93-224 G & C [2006] FAMCA 994 Mazorski v Albright [2007] 37 FamLR 518 McCall & Clark (2009) FLC ¶93-405 Morgan & Miles [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461 Paskandy v Paskandy (1999) FLC ¶92-878 U v U (2002) FLC ¶92-122 |
| Applicant: | MR HILDEBRAND |
| Respondent: | MS MATHISEN |
| File Number: | AYC 145 of 2011 |
| Judgment of: | McGuire FM |
| Hearing dates: | 8, 9, 10 & 11 October 2012 |
| Date of Last Submission: | 11 October 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Boyle |
| Solicitors for the Applicant: | Harris Lieberman |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Loretta Terrill |
ORDERS
That the father, Mr Hildebrand and the mother Ms Mathisen, have equal shared parental responsibility for the child
X born in 2007 (“X”).
That X live with the mother.
That the mother be permitted to relocate with X to live in City B in Victoria but not be permitted to change X’s primary address from the City B municipality without the express written consent of the father or order of a competent Court.
That X spend time and communicate with the father as follows:
(a)On a cycle of each second weekend but on each third weekend at the discretion of the father with the father to advise the mother in writing within seven days of these orders if he intends the regime to be on a third weekend cycle;
(b)That until the commencement of the first Victorian Gazetted school term in 2013 such time pursuant to order 4 (a) hereof commence at 4.00 pm on the Thursday and conclude at 4.00 pm on the Sunday and from the commencement of the school year in 2013 such time to commence at 4.00 pm on the Friday and conclude at 4.00 pm on the Sunday (or such other times as may be agreed between the parties from time);
(c)For one half of each Victorian Gazetted school holidays commencing first term holidays 2013 and on a week-about basis during the summer school holidays commencing in 2013/14 unless otherwise agreed between the parties;
(d)For one week commencing at 10.00 am on 29 December 2012 until 4.00 pm on 5 January 2013 and for one further period of 7 days in January 2013 at the discretion of the father but not to be consecutive with the period concluding 5 January 2013 and to conclude at least 3 days prior to the commencement of the school year;
(e)X’s time with the father incorporate Christmas Day in each alternate year commencing Christmas 2013;
(f)Should X’s weekend with the father coincide with Mother’s Day then such weekend be suspended and take place on the following weekend, however, if Father’s Day does not coincide with X’s weekend with the father then in any event X spend such weekend with the father with the following weekend in the cycle to be suspended;
(g)Such other reasonable times in City B provided that the father gives reasonable prior notice to the mother;
(h)At all reasonable times by telephone and Skype with the parties to facilitate the use of these media; and
(i)Weekend time-with periods be suspended during school holidays.
That for the purposes of these orders all changeovers take place at an agreed venue in Town C and if no agreement then in the car park of McDonalds Restaurant Town C at the appointed times or otherwise as agreed between the parties.
That within six months of the date of these orders each party enrol in, attend as directed and satisfactorily complete a recognised post-separation parenting course and advise the other parent in writing when such course is completed.
That these orders authorise both parties to attend and participate fully in X’s schooling and extra-curricular activities and be privy to such information as normally afforded parents by children’s schools and other relevant bodies.
That each parent keep the other advised at all times of X’s general medical practitioner and that these orders authorise both parties to have full access to such practitioner and information normally provided to parents.
That each parent keep the other advised at all times of their primary residential address and mobile telephone number.
AND THE COURT NOTES THAT:
APursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Hildebrand & Mathisen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
AYC 145 of 2011
| MR HILDEBRAND |
Applicant
And
| MS MATHISEN |
Respondent
REASONS FOR JUDGMENT
Applications and background
These proceedings concern one child namely X born in 2007 (aged four years). X is a fortunate young lady in that she is the much loved only child of Mr Hildebrand and Ms Mathisen. X also has the benefit of established, loving and solid relationships with both her paternal and maternal extended families and, in particular, her grandparents on both sides in Region E and City B respectively.
X’s parents come to this Court unburdened by the usual issues in family law matters such as alcohol abuse, drug use, domestic violence or child abuse. It is generally agreed that Mr Hildebrand and Ms Mathisen are each loving, devoted and competent parents of young X with a result that she has developed into what the Family Reporter, Dr D, describes at paragraph 38 of her Family Report as:
X presented as being a very happy, confident, bubbly, talkative, well adjusted, independent, and intelligent girl…
The issue for this Court is essentially a discrete albeit complex and difficult one. The parents currently live in Region E. The mother wishes to relocate with X to live in City B where her own family reside. City B is several hours drive from Region E. Not surprisingly, given X being his only child, her young age, and his strong relationship with her, Mr Hildebrand opposes the mother’s move.
The father is 26 years of age and the mother a year older. They commenced living together in late 2006 or early 2007. The mother had come to Region E from her home in City B to study family services. The father had been raised in Region E and still lived with his parents. It is fair to say, and certainly no criticism of these young parents, that they do not present as being overly sophisticated and cosmopolitan but bring for X many of the traits and advantages of their own upbringings in country Victoria. The relationship was, at least for the father, his first serious one. The mother went back to City B for a period after her studies but returned to pursue the relationship with Mr Hildebrand and the parties lived with his parents in Region E. They obtained separate accommodation in City E(2) in 2007. The father is a transport worker but manages a division of a franchise in Region E. The mother has pursued her career in family services but has not worked since before the parties separated in 2011.
The evidence is clear that during the course of the relationship the mother maintained close links with her family in City B. She and the father would travel on a roughly monthly basis during the relationship and the mother’s trips have become even more frequent since separation. In addition the mother’s parents, in particular her own mother, have been frequent visitors to Region E.
Upon separation in 2011 the mother moved with X back to City B. There is dispute between the parties as to whether or not this was with the consent of the father? To my mind, little turns on this issue of credit in respect of my ultimate determination and it is clear that the father pursued and obtained the return of X to Region E through legal channels soon after separation. The mother has since lived in rental accommodation in Region E pending the resolution of this dispute.
The father has re-partnered with Ms F and they live together in Region E. Ms F is a manager. She has no children. The evidence is that this relationship is a stable and committed one. The mother has also entered a new relationship with Mr G. He works in the agriculture sector in Town H which is about 60 kilometres southeast of City B. However, his summer and autumn primarily involve him working in the agriculture sector throughout eastern Australia from south Queensland to southern Victoria. Ms Mathisen and Mr G do not live together and have no immediate intentions of doing so. The mother’s proposal, if successful in her application to relocate with X, is to initially live with her parents in City B and then obtain separate accommodation perhaps in a residence to be built by her father. She intends to pursue her career in family services and adduces evidence that she has an offer of employment in City B. X will commence school proper in 2013 and the mother proposes to work around X’s school hours but would, of course, have the assistance of her family in City B.
The mother proposes that X spend time with the father each second weekend although she now acknowledges that the father may not seek such frequent time given his concerns as to the onerous travel for X. Nevertheless, the mother suggests that she would share the travel for the purposes of X’s time with the father and also offers that he could spend extra time or weekends with X in City B on a flexible basis. She suggests that ultimately school holiday time be shared.
Should, however, I not accede to the mother’s application to relocate with X to City B then Ms Mathisen says that she would reluctantly remain in Region E and proposes that she continue as X’s primary carer with substantial and significant time to the father on a basis of each second weekend with overnight time on the off-week.
The current arrangements are those made pursuant to orders of 28 April 2011 whereby the mother was restrained from moving X from Region E and the child was to spend time with the father each second weekend from after pre-school on Friday until 5.00 pm Sunday and in the other week from after pre-school on Thursday until the commencement of school on the following day. This situation has effectively continued albeit with X also spending a week with her father in 2011, an event which unfortunately caused some dispute between the parties and evidenced their own difficulties with communication and cooperation and impacted on their mutual trust.
Mr Hildebrand proposes that X remain living in Region E and initially spend time with him as follows:
(i) Each alternate week from 5.00 pm Thursday until 9.00 am Monday;
(ii) On the other week from 5.00 pm Thursday until 9.00 am Friday; and
(iii) For one week commencing 29 December 2012.
Upon X starting school next year he initially proposed that X live on a week-about regime between her parents and spend half of school holidays with each of them. In final submissions, however, his Counsel advised that Mr Hildebrand acknowledged some of the reservations expressed by the Family Consultant in respect of an immediate shared care arrangement in the circumstances of these particular parents. Essentially, however, he emphasises that he wishes to maintain his current substantial and significant relationship with X which would allow him to share her school and extra-curricular experiences as well as frequent time being advantages for X which would reasonably not be available should she be living in City B and he in Region E. My understanding is that equal time for X between he and the mother remains his aim in the relative short term.
It is unfortunate for X and these young parents that these proceedings which were commenced as long ago as 2011 and soon after separation have taken so long to come to trial. The application was commenced in the City E(1) circuit of this Court and, as is a common occurrence with circuits, has had at least two previous trial listings without being reached. This has resulted in the understandable difficulty for all concerned of being left in a state of limbo which is compounded by the prospect of relocation expectations or fears. Consequently, the matter was ultimately removed from the City E(1) list to the pilot Relocation List of the Federal Magistrates Court in Melbourne where a priority for relocation matters is provided with an expectation of a trial date within 10 or 12 weeks of directions conditional upon strict compliance with those directions. That pilot relocation project also anticipates orders for the parties within approximately a week or so of trial and with Reasons for Judgment, no later than 28 days from trial dependant, of course, upon the other commitments of the judicial officers. This matter proceeded within the guidelines of the Relocation List with each party having complied with trial directions.
The evidence
The applicant father relied on his own trial affidavit filed 19 October 2012 and a Financial Statement filed the same day. He adduced evidence from his partner Ms F and from his father, Mr J Hildebrand. Ms F and Mr J Hildebrand were both cross-examined.
The respondent mother relied on her trial affidavit filed 22 June 2012 and a Financial Statement filed 13 September 2012. She adduced evidence from Mr G, each of her parents Mr K and Ms L Mathisen, a friend Ms M, and her psychologist Mr N who provided two affidavits filed 22 June 2012 and 20 September 2012. There was also an affidavit from a Dr O whose evidence related to the health of Ms Mathisen’s father who is in remission from cancer. None of Dr O, Mr N or friend Ms M were required for cross-examination and their affidavits were read into evidence accordingly.
The delays in this matter have also caused there to be two Family Consultants providing Family Reports. Ms P, Family Consultant, from the City E(1) Registry completed a Family Report on
30 August 2011 after interviews on 3 August 2011. An updated Report was required because of the delay in coming to trial. Unfortunately a conflict had developed for Ms P and hence a second Report was prepared by Dr D, a Melbourne based Clinical Psychologist. Interviews for that Report took place in September 2012 and the Report was released as recently as 5 October 2012.
Both Ms P and Dr D were cross-examined.
This matter proceeded over four days of evidence commencing Monday 8 October 2012.
The issues
Whilst there are numerous collateral issues on the evidence such as the capacity of each of the parents to attend to X’s needs, the nature of the relationship between X and each of the parents, the willingness and ability of each of the parents to facilitate and encourage a relationship with X for the other parent, and the attitude towards the responsibilities of parenting of each of them, there seemed to be two competing major and broad issues between the parties and as follows:
(i) If X is to relocate with the mother to City B then will she be able to maintain a meaningful relationship with the father in circumstances where geographical considerations will not allow for substantial and significant time within the definition of the Family Law Act 1975 (“the Act”) as against a background where there has been a frequent and regular beneficial relationship for X with her father; and
(ii) Alternatively, if the Court does not accede to X’s relocation to City B then what will be the impact for X of her mother being required to remain in Region E with particular reference to the mother’s emotional health and her need for support?
The law
The advent of a dedicated Relocation List in this Court acknowledges that issues of relocation of children are considered amongst the more difficult matters for determination. As is the case here, proposals of the parents are often finely balanced and see two otherwise good parents unable to negotiate and compromise what can be a life-changing issue for them and their child. Changes in the practical nature of relationships between children and parents will inevitably result from a relocation. One parent will assume a more primary role and time with a remaining parent becomes less frequent if a relocation takes place. Matters of communication, cooperation and sharing of travel come to the fore in such disputes. Whatever determination a Court ultimately makes will almost certainly leave one of the parents and their supporters aggrieved. If a relocation of a child takes place then the remaining parent will suffer feelings of loss and perhaps bitterness. There will need to be significant adjustment in that parent’s own life. On the other hand, an order which effectively prevents a parent from relocating with a child will similarly cause grief, unhappiness and adjustment. Ultimately, these pressures can impact on even the most previously cooperative parents and vicariously on the child.
It is important to emphasise that the jurisdiction of this Court is in respect of children. Consequently, whilst I can make orders that allow or restrict X’s place of abode, I cannot do so in respect of adults and must recognise their basic right of freedom of movement. I stress, however, in the matter before me the mother understandably says that she will remain in Region E if I do not accede to her application to move to City B with X.
The Act provides jurisdiction for the Court in respect of parenting orders. The Act itself is silent in relation to the notion of “relocation of children of children”. It follows, therefore, that a relocation of a child is neither prohibited nor is there a presumption against it in the legislation.[1] Rather, a proposal by a parent to relocate a child is simply one matter to consider together with many others in arriving at a parenting order which on balance is in the best interests of the child. It is to be those best interests of X which must be my paramount consideration under the Act.[2] For instance, the mother’s proposal must be considered against that of the father where he ultimately seeks an order for equal shared time of X. As the Full Court of the Family Court observed in Paskandy v Paskandy[3] at page 86,456:
There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be “permitted”.
[1] Morgan & Miles [2007] FamCA 1230
[2] s.60CA of the Act
[3] Paskandy v Paskandy (1999) FLC ¶92-878
In determining the best interests of X, I am obliged to follow a number of mandatory considerations and a course of consideration provided in the Act. The starting point for the process is the presumption that it is in the best interests of X for the parents to have equal shared parental responsibility for her[4]. “Parental responsibility” is defined in the Act[5] as:
… in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
[4] s.61DA of the Act
[5] s. 61B of the Act
This responsibility is usually exercised in the parent’s making important decisions in children’s lives concerning matters such as religion, education and medical procedures etc.
In the matter now before me neither party argues that the presumption of equal shared parental responsibility should not continue to apply or is rebutted. It may not apply if there are issues of family violence or may be rebutted if contrary to X’s best interests. There is no evidence suggestive of either in this matter.
However, the importance of the presumption of equal shared parental responsibility is that it obligates the Court to consider two alternative arrangements for X. Firstly, I must consider whether X spending equal time between her parents is in her best interests and reasonably practicable. If the answer to either of these questions is in the negative then I must consider whether X spending “substantial and significant” time with each of her parents is in her best interests and reasonably practicable[6].
[6] s. MRR v GR (2010) 240 CLR 461
“Substantial and significant” time is defined in the Act as[7]:
a) the time the child spends with the parent includes both:
i) days that fall on weekends and holidays; and
ii) days that do not fall on weekends and holidays; and
[7] s.65DAA (3) of the Act
b) the time that the child spends with the parent that allows the parent to be involved in:
i) the child’s daily routine; and
ii) occasions and events that are of particular significance to the child; and
c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
It is obvious then that a proposal to relocate a child which puts distance between that child and one of the parents will directly impact on the mandatory considerations that I am to have in respect of either equal time or “substantial and significant” in the sense of being reasonably practicable.
I determine X’s best interests by reference to a number of statutory factors set out in s.60CC (2), (3) & (4) of the Act. Whilst I must reference each of these factors, in practical terms some will be more relevant than others in terms of the proposals of the parties and the probative evidence. These considerations are divided into “primary” and “additional” factors. I relate the relevant evidence to each consideration below.
Superior Courts in this jurisdiction have considered the principles to be applied in determining matters involving a proposed relocation but obviously within the context set out above. In A v A Relocation Approach[8] the Full Court summarised the principles which were later considered by the High Court in U v U[9] and then commented on by a later Full Court in Bolitho & Cohen[10] as follows”
U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set our in A v A. In U v U the High Court said the proper approach to be adopted in a relocation case is a weighing of competing proposals, having the regard to relevant s68F(2) (now s.60CC) 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 decisions must be one which is in the best interest of the child.
[8] (2000) FLC ¶93-035
[9] (2002) FLC ¶92-122
[10] (2005) FLC ¶93-224
Her Honour Justice Bolland in Morgan & Miles (supra) at [80] summarised those principles as follows:
It follows from my exposition of the legislation, that earlier called principles:
- that the child’s best interest remain the paramount but not the sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reason;
- The judicial officer must consider all proposals, and may himself or herself be required to formulate the proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
Significantly, and despite what may be a proposal by one parent to disturb a long standing or successful arrangement for a child, neither party bears an onus of proof in matters such as these. Rather, the Court is to consider all of the proposals and make a determination on balance consistent with a child’s best interests.
Child’s best interests – Section 60CC factors
Primary Considerations
Section 60CC (2)(a) – Benefit to the children of having a meaningful relationship with both of the children’s parents
Following significant amendments to the Act in 2006 which introduced the concept of “meaningful relationship”, the Courts have attempted to define the concept. There is no definition in the Act. Adjectives such as “significant”, “of consequence” or “valuable to the child”[11] have been used as synonyms. I am content that a meaningful relationship ordinarily involves all of these and other adjectives. It would be a relationship that offers benefit and value to both child and parent. The Act limits this consideration to children and parents and as such the consideration is one that acknowledges the importance of that particular biological connection. Importantly the Full Court in McCall & Clark[12] adopted the views of her Honour Bennett J in G & C[13] that the consideration for the Court is to be a “prospective one” but with a necessary examination of the current state of any relationships between and also that the focus be on quality of relationships rather than simply quantity in the sense of weeks, days and hours.
[11] Brown J in Mazorski v Albright [2007] 37 FamLR 518
[12] (2009) FLC ¶93-405
[13] [2006] FAMCA 994
All of the evidence before me is indicative of a strong, bonded, loving and successful relationship for X with each of the parents. Each of the parties and their witnesses acknowledge this to be the case in respect of the other parent. This success is clearly a factor of the ongoing involvement by each of the parents and their extended families in X’s life. Those relationships are best summarised by Dr D in her Family Report at paragraph 43 as follows:
X appears to have formed a strong positive bond with both parents; interacting with them both in a way that suggests that she sees them as safe and loving figures in her life.
The task for the Court, therefore, is to consider the proposals of the parties and the impact, if any, on those existing meaningful relationships of a move for X to City B? Importantly, it is not for the Court to make orders which seek to create an “optimum relationship” but rather establish, maintain and help flourish “meaningful” relationships. On the evidence before me, however, I find that X currently has a meaningful relationship with both of her parents.
Section 60CC (2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
Even within the broad definition of violence and abuse in the Act, I am pleased to say that there is no evidence whatsoever which causes me consideration under this sub-section.
Additional Considerations
Section 60CC (3)(a) – any views expressed by the child and any factors (such as the child’s maturity and level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
X is just four years of age and was three years old when the interviews for the first Family Report took place. She is clearly not old enough to rationalise the matters that I am to determine and indeed Dr D says that she would be unlikely to be able to understand the nature of a move to City B. Nevertheless, there were discussions between X and Dr D that are worthy of mention in these reasons. At paragraphs 39, 40, 41 and 42 of her Report Dr D observed:
As you would expect from a child of X’s age and stage, it became apparent to the writer that she didn’t really understand what moving to City B means, and this is reflected in the following.
When asked about her parents, X stated “I live with mummy ... I live in City E(2) ... we’ll live in City B in a minute ... mum says she likes it ... my mummy says I like it too ... my daddy says I can’t live in City B ... and I have to stay here ... yeh I like going to daddy’s house ... yeh I like living here ... mummy talks about City B ... she said tell the lady you want to go to City B ... my mummy say that ... yeh she means you ... and I like going to City B”.
However, when the writer asked how she might feel if she couldn’t see her daddy as much if she went to City B, X seemed surprised and stated “oooooh ... no ... he lives in City B too”. When the writer said that daddy lives in City E(2), X again seemed surprised and said “oooooh ... I want to keep seeing daddy”.
To this end she happily said she wanted to live in City B one minute and she seemed excited about this and excited about being near her grandparents; and the next she said she wanted to live in City E(2) and she liked seeing her daddy and the paternal grandparents. Obviously, given her age and stage, we simply cannot put much weight on any expressed wishes.
I see these comments as indicative of an open and confident young girl who has a good and confident relationship with both her parents. X’s comments are also suggestive of some influence, either direct or indirect, from both her mother and her father.
Section 60CC (3)(b) – the nature of the relationship of the child with each of the child’s parents or any other persons including grandparent or other relative of the child
X has had an active and regular relationship with both of her parents and both of her extended families. The paternal grandparents have regularly cared for her. The maternal grandparents have been regular visitors to Region E. The parents, more lately just the mother, and X have regularly travelled to City B throughout her young life, recently on a fortnightly basis. The mother makes reference to X’s relationship with a cousin and other extended family members in City B. I have had the benefit of seeing and hearing the father’s partner, Ms F, give evidence. I am satisfied that X has a healthy and thriving relationship with Ms F who impressed me as a mature, understanding and objective adult who in no way seeks to usurp the role of Ms Mathisen but also offers a positive female role model for X. Mr G’s relationship with X is not so developed and he has had no direct contact with her since Easter of this year.
I have referred above to the beneficial and bonded relationships that X has with each of her parents. However, I am satisfied that X’s primary attachment is with her mother. This is understandable given the traditional family unit prior to separation where the mother was a dedicated at-home parent whilst the father went off to work. This in no way criticises or diminishes the father’s role, rather it is simply, as Dr D observed, that X’s “first port of call” would be with her mother. Dr D noticed some small signs of this when X was asking for her mother during the interview process. In cross-examination from the father’s Counsel, Dr D observed:
I do believe that she has an attachment to her father but definitely more attached to her mother. She was clingy to her mum when I observed X and it appeared that her mother was the primary carer.
Significantly, Dr D focussed on the nature of the relationship for X with the father and its strengths and positive traits when concluding that X’s relationship with her father would be likely to survive a relocation to City B conditional upon positive assistance of the mother and use of facilities such as telephone and Skype. The rider put on these comments by Dr D was that the relationship could develop and flourish but would inevitably be a “different” relationship than that which would develop if X and her father lived in the same locality.
Section 60CC (3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
If she moves with X to City B then Ms Mathisen proposes that she would share the travelling for X to spend time with her father. Indeed, she proposes that she would travel as frequently as each second weekend. She suggests further time with the father in City B.
Much was made at the trial of some evidence in respect of each of the parties that might argue against their understanding of the need to assist and encourage X’s relationship with the other parent whatever her living arrangements. Each of these parents has been culpable at various times in tending to “points score” or focus on their own needs and desires as a priority over X’s interests. Their ability to communicate and cooperate is still seriously lacking. I note, however, that these are a young and unsophisticated parents. X is their only child. They each have family who may be at times supportive to a fault in a naive sense. It is understandable in these circumstances that the mother would want to emphasise and gain every perceived advantage in her quest to return to City B. It is similarly understandable that the father would be keen not to be seen as giving ground to the mother’s case. The result is, as noted by Dr D, a tendency to fall into petty dispute which does neither parent credit. For example, the interim orders provide only for weekend time and one night in the off-week for X with the father. The mother, quite properly in my view, offered the father a block period of a week with X last Christmas. She reasonably expected a similar indulgence of a block period from the father. However, when X was returned from the father after the week he demanded strict compliance with the orders requiring X’s return the following day. Similarly, the father had sought to enrol X in sports lessons which has been a particular interested shared by father and child. The mother countered by suggesting a delay until the spring or summer seasons. She then unilaterally enrolled X in sports lesson and notified the father by solicitor’s letter only after the event and the initial session had taken place. A further example is a dispute between the parties in enrolling X in kindergarten. These being generally good parents, X may have anticipated that she would have the benefit of both of her parents at the start of this important milestone for her. There was no communication between the parties. The father made an enrolment for X after both parents had been to an orientation day. He paid the first terms fees. He went along on the first day only to find that X was not present and subsequent enquiries found her enrolled by the mother elsewhere. I stress that these examples are generally aberrations and contrary to what I have observed as good and dedicated parents. I note that these proceedings have continued for far longer than expected and that the parties have been disappointed on at least two occasions by not getting on for trial. I also take into account the general lack of worldliness of each of them which is, of course, simply an observation and not a criticism. Within this context I prefer and hope that the end of these proceedings will also bring an end to such petty point-scoring and that the current lack of communication and his trust will ameliorate and as each of the parties indicate from the witness box to me to be their desire.
Generally though both the father and the mother need to understand that communication, negotiation, compromise and cooperation and respect are essential elements of good parenting whether they live in the same locality or in different cities; whether they have an equal time arrangement, a substantial and significant care arrangement, or a more traditional regime. I note that each of the parents volunteer to the Court their willingness to attend a post-separation parenting course. Despite the optimism that I show above, I think it proper and of benefit to each of Mr Hildebrand and Ms Mathisen that they do attend such a course and my orders will provide accordingly.
Despite the reservations above, I am satisfied that each of these parents are capable of and will facilitate and encourage X’s relationship into the future with the other parent.
Section 60CC (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other child, or other person (including any grandparent or other relative of the child), with whom they have been living
This consideration is at the crux of the father’s argument and proposal. He says that an order allowing X to relocate will result in less frequent time between them. He argues, with some merit in my view, that a reduction in time cannot be adequately compensated by telephone or Skype communication although, of course, each of these facilities provides some assistance. The father says that a relocation will cause eight or nine hours travel for X and each of the parties on weekends when she is to spend time with him. According to the father the travel will be onerous and tiring for X and in particular given she is entering her first year of schooling. The conundrum he says is that less frequent time will reduce the travel burden for X but will consequently impact on the quality and nature of her relationship with him. As Dr D says, the relationship would be a “different one”. It could not realistically be one of “substantial and significant time” as defined in the Act. He would not realistically be able to attend short or spontaneous events at her school by reason of his own travel, accommodation, or work limitations. His involvement in her day-to-day schooling, extra-curricular activities and enjoyment of life would be impacted in a negative way. The same would apply to the nature of the relationship between X and the father’s extended family. In particular, the paternal grandparents have been an available and regular presence in X’s life and have also participated in activities such as her sports lessons.
The father argues that the mother either deliberately or naively minimises the effect on X of her proposed move to City B. In answer to a question from the bench on this very point Ms Mathisen volunteered:
Well, he would only be missing one night per fortnight
Such a reference to the quantity of time being her proposal relative to the current arrangement misses the point of the legislation and the emphasis by the Courts on the qualitative rather than quantitative aspect of relationships. X is still very young. The social scientists who regularly assist this Court emphasise the benefits to young children of frequency of contact with important adults and the mother’s proposal would put a gap of at least 11 days and perhaps 18 days at a time in face-to-face contact between daughter and father unless the father was prepared to make the eight or nine hour return journey to City B.
I am satisfied that a relocation for X to City B would impact on the nature of her relationship with her father and other members of his family. On the evidence before me and from my observations of her in the witness box, the mother did not seem to acknowledge or have an understanding of that impact although she paid lip service to the fact of it in cross-examination. This is consistent with my observation of a mother who deeply wants herself to be able to move to City B. Equally, however, a similar tendency of self-interest is apparent from the father’s evidence and his answers in cross-examination such as:
“I want to be able to go to X’s school and I want to be able to take her to sports lessons”
Having said this, I find such sentiments to be understandable and not unusual for parents faced with the difficulties of a proposed relocation of their child or being effectively required to live in a place against their wishes.
Section 60CC (3)(e) – the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense would substantially affect the child’s rights to maintain personal relationships and direct contact with both parents on a regular basis
The practical result of the mother’s proposed relocation would be that X’s contact with the father will in the main be limited to weekends and school holidays. This will involve travel of approximately 4 – 4.5 hours each way or up to nine hours over a weekend. There will be the costs of such travel to each of the parties who intend to meet at a half-way junction. There is the possibility of the father travelling to City B on occasion and the mother has issued an invitation. This would cause a further travel burden and costs. He says that he has no ready accommodation in City B and he argues that there may be some difficulty in that City B is a small town and he would be uncomfortable in the company of the mother’s relatives and friends.
The practical effect for X of such an order would be in respect of the travel time and the quality time left to enjoy with the father and other important people in her life. Eight or more hours in a car with her father may have some positives in them being together but is limited in its scope for enjoying a full relationship. The relationship between X and the father would be effectively limited to non-school days.
The mother says that the expenses are mitigated by her willingness to share the burden of travel. She also argues that X is not a stranger to such travel and in fact has travelled regularly between Region E and City B since she was an infant.
The compounding consideration is, of course, X would also be entering full-time school in 2013 and the travel must be seen within this difference context.
Section 60CC (3)(f) – the capacity of each of the child’s parents, and any other person (including a grandparent or other relative of the child), to provide for the needs of the child, including emotional or intellectual needs
It is this consideration that primarily grounds the mother’s proposal. She says that she is anxious, depressed and of low-mood and that these feelings will remain or be exacerbated by being required to remain in Region E with X. She says that she has always wanted to return to City B and this was the case even before separation. She says that she has a support network of family and friends in City B that is not available to her in Region E. She says that her relationship with the father and his own parents has broken down to such an extent that she cannot rely on their support. Ms Mathisen argues that there will be a consequent negative impact on X and her parenting of X if she is required to remain in Region E whereas her demeanour and emotional welfare will be relieved and enhanced if she and X move to City B.
Ms Mathisen gives evidence of her emotional difficulties. She says that she is lonely and isolated in Region E. She says that she cries at night and that X witnesses her doing so. Although she travels regularly to City B with X, the interim orders require her to return to Region E. She says that her low-mood has in part been caused by the length of these proceedings and the sense of being “left in limbo”. For example, she has chosen not to seek employment in her professional field in Region E presumably on the basis that she is hopeful of moving to City B. She says that she has few friends in Region E but maintains contact with long-term old school friends in City B.
Mr N, a psychologist, has provided two affidavits in support of the mother. The first was sworn on 22 June 2012 and refers to Ms Mathisen having attended, and Ms Mathisen’s affidavit suggests that this report was prepared after, four sessions of counselling. A second report in an affidavit sworn 18 September 2012 appears to reference one further counselling session in August 2012. Mr N reports Ms Mathisen as presenting with anxiety and sleeping difficulties. He said that she reported being generally anxious, fatigued and agitated. Whilst Mr N references “Ms Mathisen’s depression and anxiety” as being in part caused by “the prolonged period of uncertainly about her situation caused by delays in the case coming to Court, the lack of family support for her as a single parent in City E(1) and the conflict between her ex-husband and his family”, there is no evidence of a formal diagnosis of depression.
Mr N opines that the prospect of being required to stay in Region E causes Ms Mathisen to herself worry that her mental health would continue to be adversely effected. This, of course, can be interpreted as her being anxious over the proceedings themselves as distinct from the result with possible inference that the conclusion of these proceedings will have a positive effect on the mother’s health and relieve her anxiety whatever the result.
Mr N’s affidavit and report repeats evidentiary matters that were put before the Court such as the current difficulties between Ms Mathisen and the paternal grandparents and lack of communication between the parties. Importantly Mr N observes as of 22 June 2012 the following:
Ms Mathisen has responded well to therapy, reporting reduction of her symptoms and has been more assertive with the current custody agreements, but she remains anxious about the Court decision and the possibility of staying in City E(1).
The second report dated 18 September 2012 references only one further session of therapy taking place on 16 August 2012. Mr N notes Ms Mathisen as presenting as:
…anxious and low in mood describing the feeling as being “worn down”. Ms Mathisen stated that she had taken up temporary accommodation because of the ongoing uncertainty of her situation. She said that she continued to undertake co-parenting X with her partner, as the Court has ordered, but her attempts at doing so continue to wear her down.
Mr N concludes at that stage:
It appears that Ms Mathisen’s continuing presence in City E(1) with X has not made co-parenting with her partner any easier for Ms Mathisen or enabled her ex-partner to take up the opportunities for increased input into parenting decisions. The current situation has continued to creating (sic) feelings of anxiety, low-mood and agitation in Ms Mathisen.
Mr N was not required for cross-examination. Mr Hildebrand’s Counsel, however, was critical of the reports in an evidentiary sense and urged the Court to place little weight on them. Issues raised with this evidence include the following:
(i) That there has been no formal diagnosis of depression;
(ii) That the mother herself references her mood to the ongoing proceedings and that this factor will be removed by the Courts’ decision;
(iii) That the evidence itself refers to positive improvement by the mother after a series of four counselling sessions. There is only limited evidence of ongoing therapy and it is implied that the mother would benefit by and should attempt to mitigate her own difficulties by further therapy;
(iv) That there is no direct probative evidence on the impact on the mother’s alleged condition upon her parenting capacity and that in this sense the mother has been a competent and successful parent for X during the interim period that she has been required to live in Region E with emphasis on the observations of Dr D as to X’s positive and confident demeanour..
Counsel for the father also leaves open for the Court to consider the bona fides of the mother’s claimed depression or anxiety. Significantly, the first Family Reporter Ms P, questioned the mother as to her mood and coping skills at paragraph 22 of her Report as follows:
Ms Mathisen said she has a few good friends/former work colleagues that she spends time with in Region E. In response to a query, Ms Mathisen said that her emotional health is fine and that she has not felt any need to access counselling support related to the parents’ separation or to the relocation dispute. In response to a query, Ms Mathisen said that, if she is not permitted to relocate with X, she will remain in City E(2), as being a fully involved parent to X is extremely important to her.
The question raised by the father’s Counsel is as to why, in light of those positive comments to Ms P, the mother should feel the need to commence Counselling and present as depressed and anxious within a matter of weeks of the release of Ms P’s report? The suggestion is that, having read Ms P’s Report, the mother identified a difficulty for her application and sought to attend counselling to rectify that problem and hence is effectively a malingerer. This particular issue was pursued in cross-examination of Dr D who agreed that this was indeed a possibility given the mother’s entrenched desire to move herself to City B and the apparent lack of positive support for that move in the Report of Ms P. Dr D, however, also offered another possibility being that the advent of the Ms P Report and its failure to positively support X’s relocation itself may have impacted negatively on Ms Mathisen and effectively triggered her anxiety when she may have previously had some confidence in the success of her application.
Dr D herself saw Ms Mathisen as exhibiting the signs of situational depression. She observed “low-mood, despondent and a feeling of hopelessness”. Dr D said that she did, as is her practice, check for the possibility of Ms Mathisen being a malingerer but did not conclude this to be so.
Unsurprisingly, the mother’s witnesses all referenced her loneliness, anxiety and frustrations of being required to remain in Region E and her fear of having to do so permanently.
Given all of the above, however, the evidence suggests that the mother has been an able and good parent to X and that X has thrived in her care. Similarly, the father gives all the indications of being a competent parent and I expect that the criticisms of the father’s skills by the mother in her affidavit reflect only her tendency to embellish her own case. In fact, the mother was at times, albeit a little reluctantly, complimentary in the witness box as to the father’s competence as was he of her. Dr D, however, also noted the tendency of both these parents to focus on their own needs and wants.
The capacity of each of these young parents to care for X is enhanced by the keen assistance given to each of them by their extended families and the proper and objective position taken in the father’s household by Ms F.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
With the exception of matters that concern the child’s age as set out above, this consideration is not relevant to the matter before me.
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This consideration is not relevant.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Generally, both the father and the mother have presented as responsible and dedicated parents. They have developed an impasse in respect of communication. Understandably a prospect of relocation has caused a lack of trust between them. There is little evidence of senior family adults acting as honest brokers but rather they seem to have each taken their own child’s side in this dispute which in turn has compounded and entrenched the communication difficulties for the parents.
Section 60CC(3)(j) – any family violence involving the child or
a member of the child’s family; and Section 60CC(3)(k) – any family violence order that applies to the child or a member of the child’s family
This is not a matter in which issues of family violence are relevant.
Section 60CC (3)(l) – Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
This is, of course, a difficult consideration given the unknowns of the parties’ proposals. If the mother is required to remain in Region E and her alleged health concerns are exacerbated then there may be a possibility of further proceedings either in similar terms as the current application or for a change in X’s primary living arrangements. Alternatively, the results for the mother and X of a move to City B are not known. The mother is of course confident that her mood will stabilise and there will be a positive effect for X together with a continuing successful relationship for X with the father. However, a serious deterioration for X in her relationship with Mr Hildebrand could lead to further proceedings. Similarly, the mother’s circumstances could further change. Her current partner does not live in City B. Their relationship has not yet reached the stage of living together. Hence, a further change in the mother’s circumstances is a possibility.
Section 60CC (4) – The extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the children’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.
There has been some criticism of the father in not attending at speech therapy sessions for X. Generally, however, I am satisfied that these two parents have discharged their responsibilities of parenting of X in a satisfactory manner. Whilst they each tend to focus at time on their own needs and desires, this is more a factor of their youth and backgrounds as opposed to any deliberate mala fides. Their responsibility now is to focus on their own post-separation relationship which will still be required for the next 14 or so years whilst their daughter traverses childhood and adolescence. The simple fact is that these parents have a duty to cooperatively parent and respect each other as parents and it is not insignificant that they each have sought an order for equal shared parental responsibility and the responsibilities which come with that status and despite admissions by both of them as to failings, communication and cooperation.
Discussion
Each of the party’s proposals for X’s living arrangements has merit. There are some obvious advantages for her on the evidence in orders being made in accordance with the father’s application that X live in Region E. These include but are not limited to the following:
·X is young and the father’s proposal gives a greater frequency of direct contact for her with each of the parents;
·The father’s proposal is the only one that will realistically allow a substantial and significant relationship between daughter and father in accordance with the definition in the act and thereby allowing X to enjoy the presence and participation of Mr Hildebrand in her schooling and extra-curricular activities;
·X remaining in Region E will give her frequent and available access to the paternal extended family and she will be easily able to participate in family events;
·The mother, Ms Mathisen, has historically maintained an ongoing relationship with her own family from City B. She has visited regularly with X both prior and post-separation. Her own parents have visited Region E frequently thereby maintaining the support mechanisms that Ms Mathisen says she seeks and requires. The continuation of this situation is a reasonably practicable proposition;
·The mother has lived in Region E for most of the last eight years. She has worked in Region E. X’s own connections, such as they are, have primarily been in Region E through family and pre-school;
·The mother has a work history in Region E. She has relevant qualifications. Her claim that she has been unable to obtain employment is tempered by the evidence that she did not actively seek work in her field in Region E post-separation at least for some time;
·The mother’s proposal if she is to relocate with X to City B would cause onerous travel for X perhaps on a fortnightly basis in order to see her father and for up to approximately nine hours on each occasion. Nine hours out of a weekend is a substantial impact in terms of quantity and quality of time. Alternatively, less frequent visits because of the burdens of travel could possibly impact on the nature and quality of the relationship between X and the father;
·The current lack of communication between the parents does not sit easily with placing another vagary of distance into the equation. That is, for example, spontaneous events in X’s life might not be easily and readily communicated between the parties allowing the father’s participation;
·If the mother and X were to move to City B, and whatever the regime of time for X with the father in Region E, there is a possibility of conflict between X’s life in City B and the requirement to travel to Region E on a regular basis. This is a common factor for consideration in relocation cases. Inevitably, the child will develop relationships, interests and commitments in her home town which may conflict with orders requiring her to travel for weekends and holidays; and
·There has been consideration of the father himself relocating to or nearer to City B. On the evidence this does not appear to be a realistic proposition. He has long-standing employment in Region E. He is clearly a young man still dependant himself to a degree on his parents. He has entered into a new relationship with Ms F whose employment is also in Region E.
Similarly, however, there are negatives for X remaining in Region E and positives for her interests in relocating with the mother to City B. They include but are not limited to the following:
·On the evidence, the mother has been and is the primary carer for X. Considerations must be given to her own freedom of movement. I am satisfied that her desire to move back to City B is not a recent invention. Her unchallenged evidence, conceded by the father, is that she expressed that wish consistently and well before separation. I am satisfied that her wish is genuine and not motivated by any mala fides;
·The mother’s own support network is based in City B with her parents, brother and extended family. There is a close dependency for the mother on her family evidenced by her regular and frequent travel back to City B usually with X;
·There is little evidence of any similar support network for the mother in Region E. Her relationship with the father is untrusting, non-communicative and uncooperative and hence unsupportive in any altruistic sense. The evidence suggests that culpability in this state of affairs lies with each of the parties. Further, a previous supportive (if at times tense) relationship for the mother with the father’s parents has also broken down. Evidence in the witness box from all participants corroborates this to be the case. The father’s own mother did not give evidence although historically and recently many of these tensions appear to be between these two women. Although there is evidence of the mother having socialised in Region E to a degree, the thrust of the evidence is that she is lonely and unhappy in Region E and with little social intercourse or support and continues to look to City B for this support;
·The evidence suggests that should the mother and X be required to remain in Region E then they will, in any event, continue to travel regularly to City B. That is, I am not convinced that this situation would cease upon my final determination of the issue of relocation. The mother and X have always travelled back to City B. The result and irony is, of course, that X would be enduring the burden of travel between Region E and City B and return in any event and probably on a fortnightly basis;
·A return for the mother to City B would not impact immensely on the quantity of time for X with the father although, of course, the important consideration of quality-time has real potential to be impacted. Currently X sees her father each second weekend between Friday and Sunday and overnight on the Thursdays in the off-week. The practicalities of a move over and above the travel burden, would impact only on the Thursday nights. In the meantime, the mother proposes elongated weekends to commence Thursdays before X commenced school. The father professes some flexibility in his employment arrangements and may be able to punctuate formal orders with other spontaneous visits to City B;
·I am satisfied on the evidence that the mother will assist with travelling if she is permitted to move to City B and that generally she will encourage and facilitate the father’s time despite the current communication and trust limitations;
·There is evidence that the mother has employment currently available for her in City B in her chosen field. Her unchallenged evidence is that she could work in hours consistent with X’s schooling. In any event, she has the abovementioned support mechanisms regularly available to her in City B;
·The mother has entered a new relationship with Mr G who lives near to City B. The nature and circumstances of that relationship, however, can have little impact on my determination;
·The mother’s unchallenged evidence is that she will receive financial support and perhaps in a form of assistance with accommodation from her parents. This must be seen, however, against her current obligations of renting a four bedroom home which appears to be an unnecessary, unreasonable and unsustainable indulgence. It is noteworthy, that the formal financial contributions of the father by way of child support amount to $50 per week at most and for a time have been less. I am satisfied, therefore, there is significant financial burden and X’s financial support falls primarily upon the mother and any assistance from her family, directly or indirectly and of the mother securing long-term employment would be of benefit to X;
·There is evidence that the mother’s psychological or emotional health is impacted by her being in Region E and would continue to be impacted if required to stay. The option of the mother returning to City B without X is not one that is available to me on the parties’ proposals. There is evidence from the mother’s psychologist, Mr N, that she suffers from anxiety and depression and this relates to matters such as this application, the delays in the determination of the application, her genuine, consistent and long-standing desire to return to City B and the breakdown of her relationships in Region E and the prospect of having to remain in Region E. There is some corroboration of Mr N’s evidence including from Dr D who is of the view that the mother suffers situational depression. The mother herself gave unchallenged evidence that she manifests her low-mood by crying at night and at times in the presence of X. There is corroborative evidence from the mother’s family and her boyfriend of her loneliness and general unhappiness in Region E.
Determination of X’s best interests in respect of her living arrangements are finely balanced in this matter. I have attempted above to extract from the evidence many of the factors which weigh for and against a proposed move of the mother with X to City B. To my mind, the considerations which attract most weight in that determination are in balancing the following:
(i) The inevitability is that a move to City B would impact on the nature of the relationship between X and her father. This would undoubtedly be a result of the bare fact of less frequency and spontaneity in face-to-face contact now and as X grows older. The relationship would not have the benefit of involvement in the sense of the definition in the Act of substantial and significant time. Future conflict between an order for time-with and X’s own wishes to pursue relationships and interests is a likelihood. Nevertheless, I find some merit in the evidence of the expert, Dr D, in that X currently has a strong bonded and attached relationship with her father. This augers well for the relationship surviving a relocation. Dr D speaks of a successful but “different” relationship for X with her father if there is a relocation. She says that such a relationship could flourish and remain meaningful and beneficial for X. My observations of the father suggest that he is a devoted and dedicated parent and that he would continue to maximise his relationship with X even if she was to move to City B. I repeat, of course, that the task for this Court is to make orders within an imperfect context that give a beneficial and meaningful relationship for a child with the father rather than an ideal or optimum one. I am satisfied on all of the evidence that should she move to City B with her mother then X’s relationship with her father is strong enough to survive a relocation and will continue to flourish and be meaningful albeit of a “different” nature than if X and her father lived in closer proximity.
(ii) The second consideration that attracts considerable weight in my determination is the emotional health of the mother and its impact on her parenting of X and hence on X herself. There is justifiable criticism of the evidence adduced in this regard. I must take into account the chronology of the evidence and the statements made by Ms Mathisen to the first Family Reporter, Ms P that can be summarised as the mother seeing herself coping well post-separation in Region E. Nevertheless, there are factors which corroborate the observations and conclusions of Mr N, the mother’s psychologist and argue against the mother being a malingerer or simply being opportunistic or seeking to obtain evidence in support of her case after Ms P’s Family Report. Dr D proffers a viable possibility that the continued delays and the fact of Ms P’s Report and its lack of positive support of the mother’s proposal could itself have contributed to anxiety and low-mood. There was the essentially unchallenged evidence of the observation of all of the mother’s supportive witnesses as to her loneliness, anxiety and low-mood. There is the evidence of the mother herself as to her manifest unhappiness at times witnessed by X. She compared this to X observing her happiness in City B. Importantly, there is evidence that the mother has historically returned to City B on a regular basis. This is both before and after separation. This is consistent with what she says as seeing her support networks there and an absence of them in Region E and her being unhappy and lonely in Region E. My reading of the evidence and observations of both the father’s and mother’s supporters is corroborative. Essentially they don’t dispute that the mother is and has been unhappy in Region E since the parents’ separation. The father candidly conceded this in the witness box. I have also had the opportunity to observe the mother in the witness box and listen to her evidence under cross-examination. She impressed as a quiet, relatively unsophisticated young mother who is strongly dependant upon support networks. I also have the benefit of the observations and conclusions of Dr D, which in some ways differ from those of Ms P, but are more recent and which indicate situational depression in the mother. I couple these observations with the fact of the mother being the primary carer of X and the parent with whom, in any event, X is likely to spend most of her time in the near future. Taking all of this evidence into account I am satisfied that the mother does suffer emotional difficulties, low-mood and situational depression related to these proceedings and her genuine desire to move herself and X to City B. I accept the evidence of both Dr D and Mr N that an order requiring the mother to remain in Region E will continue this mood and will not necessarily be alleviated by simply bringing these proceedings to an end. Even taking into account X’s successful progress to date, the danger is that continuing emotional difficulties for her primary carer has real potential to impact on X and the parenting capacity of her mother.
In respect of other relevant considerations I am satisfied on the balance of probabilities on the evidence that X does have a meaningful relationship with both of her parents and that the relationship with her father can continue to be meaningful if she moves to City B. I am satisfied that a post-separation parenting program will assist the parties to deal with what are current communication and trust problems but that generally each is supportive of the other’s relationship with X and I emphasise the concessions made by each parent to this effect in the witness box. I am satisfied that X is capable of enduring the somewhat onerous travel between City B and Region E and in any event the fact of regular travel between the two cities is an inevitability for this child wherever she lives. She has regularly travelled since she was an infant.
Taking all of these matters into account and on balance I am satisfied that X’s best interests are served by permitting the mother to relocate to City B. There will be orders that X spends time with her father fortnightly between Thursday at 5.00 pm and until 4.00 pm on Sunday until X commences school in 2013. Thereafter time for X with the father should be available to them on a fortnightly basis. However, I am mindful of the father’s evidence that his preference be for three-weekly cycles. I note the evidence of Dr D that X’s relationship with the father would endure such a cycle. Nevertheless, I also note that X has already travelled consistently on a fortnightly basis and think her best interests are served by this regime remaining available to her but at the discretion of the father. I note Dr D’s comments as to block periods of time not being too lengthy given X’s primary attachment to her mother as her primary carer. However, I must weigh this evidence against the fact that X apparently enjoyed and endured a week with the father as long ago as December 2011 and that neither party reported any difficulties for the child. X is socialised in the sense that she has attended kindergarten. She will be entering the school system in early 2013. The father, his parents, Ms F and their homes are all familiar to X. It is important that she maintains the quality of her relationship with her father and be able to settle into his home when the opportunity avails. I am of the view that two periods each of one week post Christmas 2012 and before the commencement of school would not be contrary to X’s best interests. Thereafter, X should spend one half of each Victoria term school holidays with her father. She should spend half of the summer holidays with the father from 2013/14 by which time she will be six years of age and have spent one year at school. I will leave the parties to decide whether those summer periods be broken or continue for a block of three weeks. They should encompass Christmas Day in each alternate year with X to spend Christmas with her mother in 2012. There will be orders for telephone and Skype communication. I will order that the parties attend and complete appropriate post-separation parenting courses. There will be an order that the parents have equal shared parental responsibility for X.
Taking into account the distance between City B and Region E, the commitments of the parties and X’s schooling, the strong supportive families of both parents, my findings as to the willingness to share the burden of travel, the assistance to be gained from a post-separation course, together with the obvious commitment of both parents to X, I am satisfied that such orders are reasonably practicable.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 19 October 2012
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