Hill and Denton (No 2)
[2015] FamCA 746
•9 September 2015
FAMILY COURT OF AUSTRALIA
HILL & DENTON (NO 2) [2015] FamCA 746
FAMILY LAW – CHILDREN – equal shared parental responsibility – where father to contribute to child’s overseas travel – where mother sought international relocation – where Family Court to hold child’s passport – where mother permitted to travel with child without the requirement of make-up time – considered whether the child could maintain a meaningful relationship with the father if permitted to relocate overseas with the mother
Family Law Act 1975 (Cth) s 4 s 4AB s 60 B s 60CC s 61DA s 65DAA s 65DAC s 106A
Evidence Act 1999 (Cth) s 140
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
LC & TC (1998) FLC 92-803
APPLICANT: Mr Hill
RESPONDENT: Ms Denton
INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann
FILE NUMBER: CSC 719 of 2012
DATE DELIVERED: 9 September 2015
PLACE DELIVERED: Townsville
PLACE HEARD: Cairns
JUDGMENT OF: Tree J
HEARING DATE: 3, 4, 5 & 6 August 2015 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Jacobs
SOLICITORS FOR THE APPLICANT: Murray Lyons & Co
THE RESPONDENT: In person
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Ms Wilson
SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Lehmann Featherstone Orders
Previous orders
1.All previous parenting orders are forthwith discharged.
Parental Responsibility
2.The mother and father have equal shared parental responsibility for the child C born … 2012 (“the child”).
Time the Child will live with the Mother and the Father
3.From the commencement of these Orders until December 2015 in each week the child will live with the father from:
(a)9:00am on Sunday morning until 3:00pm Tuesday afternoon; and
(b)3:00pm on Wednesday until 3:00pm on Thursday.
4.From the commencement of the 2016 Queensland school year in each fortnight the child will live with the father from:
(a)3:00pm Thursday to 3:00pm Friday in week one and;
(b)3:00pm Thursday to 3:00pm Monday in week two
5.The child will live with the mother at all times the child is not living with father pursuant to these Orders.
6.During the time the child is with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not discuss the Court proceedings, Court orders or any aspects of the Court proceedings with the child or in the presence, or hearing of the child; and
(d)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
Holidays
7.From the 2015 Queensland gazetted Christmas / New Year school holiday period the child will spend time with the father for three consecutive nights each week from Sunday morning until Wednesday morning.
8.From Easter 2016 and each Queensland gazetted school holiday period thereafter the child will spend half the holiday period with each parent as agreed between the parties, and in default of agreement, on a week about basis, with the child to spend the first week of each holiday period with the father in even numbered years, and the mother in odd numbered years.
Child’s travel to Country E
9.Notwithstanding any order herein pursuant to which the child is to spend time with the father, the child is permitted to travel to Country E with the mother on one occasion in each 12 month period for a period of up to six weeks (without the requirement to make up time to the father) such time may include:
(a)The child’s birthday (in alternate years);
(b)Christmas Day (in alternate years) and;
(c)Ordinary school days.
10.The mother is to facilitate communication between the child and the father by Skype on three days per week during any period of time she and the child are in Country E and failing agreement then each Monday, Wednesday and Saturday at a time nominated by the mother.
11.The father will be responsible for the cost of one return economy class airfare for the child to travel to Country E each alternate year, such payment to be made into a bank account nominated by the mother within 21 days of the mother notifying the father of the cost of the airfare.
12.Save and except for the provision in Order 11 above the mother will remain solely responsible for all costs associated with travel for her and the child to and from Country E including any and all airfares and accommodation.
Special days
13.Subject to order 9, but otherwise notwithstanding any contrary arrangement under these Orders, the child will spend the following time with the parent with whom they are not residing:
(a)With the father on Father's Day from 9:00am until 5:00pm in each year:
(b)With the mother on Mother's day from 9:00am until 5:00pm in each year;
(c)With the father from 5:00pm Christmas Eve to 11:00am Christmas Day in odd numbered years and from 11:00am Christmas Day to 5:00pm Boxing Day in even numbered years;
(d)With the mother from 5:00pm Christmas Eve to 11:00am Christmas Day in even numbered years and from 11:00am Christmas Day to 5:00pm Boxing Day in odd numbered years;
(e)If the mother has the child and has travelled to Country E on an arranged extended Christmas holiday pursuant to Order 9 then the child shall be provided an opportunity to telephone/skype the father and extended parental family on Christmas day;
(f)On the father's birthday from after school to the start of the next school day if the day falls on a school day and from 9:00am to 5:00pm if the day falls on a non-school day that the child is not otherwise in the care of the father;
(g)On the mother's birthday from after school to the start of the next school day if the day falls on a school day and from 9:00am until 5:00pm if the day falls on a non-school day that the child is not otherwise in the care of the mother;
(h)On the child's birthday with the father from after school until to the start of the next school day or if a non-school day then from 9:00am until 1:00pm if the birthday falls on a day that the child is not in the care of the father;
(i)On the child's birthday with the mother from after school until to the start of the next school day or if a non-school day then from 9:00am until 1:00pm if the birthday falls on a day that the child is not in the care of the mother.
14.For the purpose of these orders in the absence of any written agreement between the parents, the following orders apply:
(a)The first week of all school holidays is deemed to commence at 3.00pm on the last day of school;
(b)The second week of all school holidays is deemed to commence at 3:00pm on the day 7 days after the commencement of the first week;
(c)If either parent is unable to attend the changeover, then they may appoint a member of their family or friend to facilitate the changeover.
Telephone communication
15.That during school term the father be permitted to telephone/skype the child on Tuesdays between 5.45pm and 6.15pm and the mother facilitate this telephone time.
16.During trips and holiday periods, the parent who is travelling with the child shall be responsible for assisting the child to call the other parent on Mondays and Wednesdays between 5.45pm and 6.15pm, or as otherwise agreed.
17.The parent with whom the child is with, will ensure that the child can speak to the other parent in private and without interruption for up to ten minutes.
18.Should the child express a wish to speak to the other parent, the attending parent shall facilitate a telephone/skype call within a reasonable time.
Extra-curricular activities
19.Neither parent should enrol the child in any extracurricular activity which requires the child’s attendance during the other parent’s time with the child, without the prior written consent of the other parent.
Communication
20.The parents shall primarily communicate about matters concerning the child’s welfare and care arrangements by email for non-urgent matters and text messages for urgent matters.
Schooling
21.That both the mother and the father shall be authorised and entitled to attend at the child’s school or school classroom or similar institution within the guidelines for parental attendance at such institution.
22.That both the mother and the father shall be entitled to attend at parent/teacher meetings, school concerts, shows, sports days, all ceremonies and other school events and functions.
23.That both the mother and the father shall authorise the child’s school to provide to both parents copies of school reports, newsletters and similar documents, and that this Order shall constitute the parents' authority for same.
Specialist appointments and recommendations
24.The parents are to notify each other and keep each other informed (at least 7 days prior if possible) regarding any specialist appointment for the child, as referred by the child’s general practitioner. Each parent is at liberty to attend such appointment and obtain such information from the specialist, subject always to the discretion of the specialist.
Parent unavailable to care for child
25.In the event that either parent is not able to care for the child pursuant to these orders for a period of longer than 48 hours, they shall use their best endeavours to provide the other parent seven days notice (or as soon as that parent has notice of their intended absence) of their unavailability to spend time with the child and offer them the first opportunity to care for the child, subject to the terms of Order 26 herein.
26.If neither parent is available to care for the child, then she is permitted to spend time with either the paternal or maternal grandparents for up to 48 hours. After this time, if the parent requiring assistance is still absent, that parent is to do all acts and things to ensure that the other parent is given the option to have the child returned to their care pursuant to the terms of Order 24 herein, whilst the absent parent remains unable to care for the child. The parent who is organising for the child to spend the proposed 48 hours with the child’s grandparent/s is to advise the other parent as soon as possible of these arrangements.
Travel
27.If the child is removed from the F Town area for a period of more than four (4) nights, the travelling parent is to provide to the other parent a full itinerary of both travel and accommodation plans and all contact details at least seven days prior to the date of travel.
Overseas Travel
28.That the mother and father be permitted to travel with the child overseas to Hague Convention countries on the following terms and conditions:-
(a)The parent proposing to travel shall provide the other parent with as much notice as possible and at least one month’s notice in writing of any intended overseas travel and a proposed itinerary;
(b)The travelling parent shall provide the other parent with copies of both the child’s and the travelling parent’s return air tickets prior to leaving Australia;
(c)The travelling parent shall provide the other parent with the address at where the child will be staying and a contact telephone number;
(d)The travelling parent shall provide the other parent with contact details of the closest hospital/medical clinic and police station to where the child will be staying;
(e)Both parents shall provide written authorisation to the Registry Manager of the Family Court at F Town authorising the release of the child’s passport for such travel;
(f)Upon the child’s return, the child’s passport shall be deposited with the Registry Manager of the Family Court in F Town for safe keeping.
Passport
29.Each parent will execute a passport application when requested to do so and each will do all acts and things necessary to direct and authorise the Australian Passport Office/Department of Foreign Affairs and Trade to issue a passport to the child within 30 days of receipt of the application.
30.In the event that either party fails to do all acts and things necessary to enable a passport to issue for the child, the Australian Passport Office and/or Department of Foreign Affairs and Trade is authorised to issue a passport for the child, notwithstanding that the other party has not given his/her consent to the issue of a passport or failed to sign the relevant documents.
31.That each of the parties shall do all acts and sign all necessary documents to give effect to the terms of this order and in the event that either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any document necessary to effect the terms of these orders, the Registrar of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
Dispute resolution
32.In the event there are any future disputes about parenting issues, the parents are to jointly attend upon a Dispute Resolution Counsellor at the Family Relationships Centre or other dispute resolution service or mediator, and each are to genuinely engage in an attempt to resolve the issue.
Other issues
33.The mother, Ms Denton born … 1988 be removed from the Airport Watch List held by the Australian Federal Police.
34.That each party shall notify the other of their current postal address, email address and contact mobile phone number and keep them so advised within 24 hours of any change to same.
35.That where changeovers cannot take place at the child’s school then they shall take place at the mother’s election either at the service station at Machans Beach or the mother’s residence or such other place that the parties may agree to.
36.The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
37.Otherwise all extant applications be dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hill & Denton (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT F TOWN FILE NUMBER: CSC719/2012
Mr Hill Applicant
And
Ms Denton Respondent
REASONS FOR JUDGMENT
Introduction
1.These proceedings relate to the parties’ only child, C, born in 2012 and hence presently three years of age (“the child”). The orders which the parties sought evolved during the course of the proceedings. Ultimately upon some matters the parties’ positions only differed slightly, or not at all. There were however three major areas of disagreement. The first was whether Ms Denton (“the mother”) should be permitted to relocate with the child from F Town to Limoges in Country E. The second was whether Mr Hill (“the father”) and the mother should have equal shared parental responsibility, or whether the mother should have sole parental responsibility. The third was, in the event that the mother were not permitted to relocate, the ultimate extent to which the father should spend time with the child, and the rapidity of the escalation from the father’s present time to that ultimate position.
2.I will consider the detail of the parties’ competing proposals in due course, but for present purposes it is sufficient to say that in broad terms the Independent Children's Lawyer and the father’s position were identical, in that both supported orders for equal shared parental responsibility between the parties, opposed the mother being permitted to relocate with the child to Country E, and sought orders which would see a rapid escalation to an ultimate split of time between the parties of 8/6 in the mother’s favour (the father’s proposal) or 9/5 (the Independent Children's Lawyer’s proposal).
3.For her part, the mother sought sole parental responsibility, together with permission to relocate with the child to Country E. She proposed a generous regime of block time between the father and child in Country E and Australia. In the event she were not permitted to relocate, then she sought a much slower increase in the father’s time with the child (and indeed initially a reduction) although ultimately she did not oppose a final split of time which would see the father spend six days and nights with the child in each fortnight.
BACKGROUND FACTS
The father
4.The father was born in 1985 and hence is presently 29 years of age. I know little of his early life save to say that it appears he grew up in the F Town region. At some point, he embarked upon a maritime career. Frequently such jobs involve working several weeks on, followed by several weeks off. That was the case for the father. It seems he was working a six weeks on, six weeks off roster when, aged 24 he met the mother in F Town in June 2010.
The mother
5.The mother was born in 1998 in Country E and hence is presently 26 years of age. The evidence does not detail much of her early life, save that for the last two years of her high schooling, she was in foster care, perhaps arising because of mental illness suffered by her mother. She then studied a business course majoring in human resource management, and it seems she obtained employment in that area when she concluded that course. She travelled to Australia in December in 2009 and had been living in F Town for five months when she met the father. She was then 21 years of age. At that time she was working in a night club, although she had previously also worked in a F Town hotel.
The relationship
6.It appears as though the parties quickly established a romantic interest, but about six weeks after they commenced dating the mother was diagnosed with a pulmonary embolism. She was hospitalised for about a week in relation to that condition and it seems uncontroversial that the father was a substantial support for her. During that time they discussed cohabitation, and the parties agree that the father was unwilling to do so whilst the mother was still engaged in the night club industry. Ultimately the mother left that employment and in September 2010 the parties commenced to cohabit. In January 2011 they moved from F Town to G Town in Victoria to enable the mother to commence upon studying a Masters degree. At about that time the mother fell pregnant. There were concerns about the effect on the child of the drugs which the mother had been taking in consequence of her pulmonary embolism. The pregnancy was terminated. The parties are in disagreement as to whether this was done with the father’s knowledge, but ultimately it is unnecessary to resolve that issue. Whatever be the truth, the father supported the mother through her subsequent grief surrounding the termination.
7.In December 2011 the mother discovered that she was again pregnant. The parties agreed that the mother would postpone her studies and that they would both return to F Town. However before they did so, the mother flew to Country E to visit her mother and grandmother. Shortly after the mother returned from that trip, she attended the F Town Base hospital with the father. Much to the parties’ alarm, she was told that notwithstanding the early stage of her pregnancy, she was likely to give birth any day. If she did so, the child would only have about a 50 per cent chance of survival. The doctors recommended that she transfer to the H Town Hospital which apparently was equipped to deal with any such extreme premature birth. Needless to say both parties were horrified at this news. Shortly thereafter the mother was admitted to the H Town Hospital and remained an inpatient for about 10 weeks. It does not appear to be controversial that the father spent an extensive amount of time at the hospital supporting the mother. Ultimately the pregnancy proceeded to a stage where the mother no longer needed to be hospitalised and she returned to F Town. The parties resided in the father’s parents’ home, who slept overnight on their yacht in order to give the parties some privacy.
8.About three to four days prior to the child’s birth, the parties moved into rental accommodation. In 2012 the child was born. Sometime after the birth, the father’s parents and friends attended the hospital. After the mother and child left the hospital, the parties requested that they be given time to bond as a family. However on 9 August, a paternal aunt was visiting F Town, and the paternal grandmother left a message for the mother advising that she and the paternal aunt were intending to shortly visit the mother to introduce the child to the aunt. This appears to have annoyed the mother, because she felt she was not given sufficient notice of the intentions of the paternal grandmother.
9.At about that point in time the parties’ relationship began to rapidly deteriorate. The causes for that deterioration are in dispute. The mother says that the father was domestically violent to her and controlling of her; the father denies this and attributes the ultimate failure of the relationship to the mother’s allegedly odd behaviours. I will consider the issue of the father’s alleged domestic violence in due course.
10.On 29 October 2012 – when the child was two months of age – the mother left the parties’ home and went into a women’s shelter. She took the child with her. The parties agree that effected final separation between them.
Post-separation
11.On 8 November 2012 the mother agreed to the father being able to see the child. They met in a public place not far away from a police station. The mother was highly apprehensive that the father would attempt to steal the child. She refused to let him hold the child whilst standing. She said she did so because she was scared that he would run off with the child. She stipulated that the visit be conducted near a police station so that if the father did run off, she would be able to rapidly seek assistance.
12.On 12 November 2012 (and hence just two weeks after separation) the father commenced these proceedings, seeking both final and interim orders that the child live with him and spend two hours of supervised time with the mother each day. He also sought interim orders for the mother’s psychiatric assessment and that her passport be held by the Court. In her Response filed 1 February 2013, the mother sought both final and interim orders that the child live with her and that she be permitted to relocate to Country E with the child. Pending relocation, she sought that the father spend time with the child for two hours on three occasions each week.
13.Prior to filing that Response however, on 20 December 2012 the mother sought a Protection Order from the Magistrates Court in F Town to which the father was the respondent. Although that application did not seek interim orders, in fact in the father’s absence interim orders were made.
14.In her Protection Order application the mother alleged family violence by the father. In due course the father filed several affidavits which refuted those allegations. Ultimately the mother withdrew her application. She denied that she did so because the allegations of violence were untrue, but rather said that at that time she was anxious to conserve her financial resources, and also to minimise the stress she was then experiencing.
15.On 4 February 2013 consent orders were made in the Federal Magistrates Court that the father spend with the child on 4 days per week. The mother was also ordered to be placed on the Airport Watch List.
16.Because of the number of days each week which the father was able to spend time with the child, his employment (by then based at Gladstone with a week-on week-off roster) became problematic. He gave up that employment in February 2013 so that he could maximise the time he spent with the child. He then appears to have commenced employment with his parents, which required him to travel regularly to Darwin, including overnights.
17.After some period of time the mother left the women’s shelter. She found some temporary accommodation, including with a Ms I, who was one of the witnesses before me. Ultimately the mother was able to obtain a rental unit not particularly far from where the father resides with his parents.
18.It seems uncontroversial that during the parties’ first meeting after separation (on 8 November 2012) the mother had asked the father for the return of her passport. The father said that he would do so, then believing that it was still at the unit. He says that upon later searching for the passport, he was unable to locate it. The mother accused the father of stealing the passport. She went to the police. On 24 May 2013 the father was summonsed to appear in the F Town Magistrates Court on a charge of stealing the passport. That charge proceeded to hearing. The father was found not guilty.
19.The father has constantly pressed for more time with the child. He was anxious to commence overnight visits as soon as possible. His ambition had, at least until the conclusion of the trial, always been to achieve equal shared care.
20.Although when she initially moved into her rental unit the mother was reliant upon public transport, at some stage the father via his parents purchased a car for her. The paternal grandfather services the car for the mother. He does not charge for that. The father has regularly been assessed for child support. He has always met those obligations. That said, the amounts that he has been assessed to pay have at times been relatively modest to the point of, on some occasions, minimal. Nonetheless he has met his obligations.
21.Communication between the parties has been difficult. The father has been highly resistant to speaking directly with the mother, and the mother asserts that the father has deliberately used the paternal grandmother as the principal intermediary between them. To the extent that the parties have communicated directly, it has generally been by way of email or text. I will discuss the parties’ communication styles and the difficulties in their communication in more detail later, but for present purposes it is sufficient to say that in my view the father generally presented as dogmatic and inflexible in most of those communications, whereas the mother presented as pedantic. However on occasions the father has also resorted to demeaning communications which, during the course of addresses, I described as puerile.
22.The matter was first listed for trial before me on 26 November 2013. On that occasion the matter settled on an interim basis by consent. The orders included that the parties have equal shared parental responsibility and provided that the child live with the mother. The orders also provided for the child spending progressively increasing amounts of time with the father, including overnight time. Although the mother continued to be restrained from leaving the country, the orders did provide for the father to contribute $3,000.00 to the costs of the maternal grandmother and great grandmother travelling to Australia prior to 30 June 2015.
23.Importantly, and in recognition of the considerable communication difficulties between the parties, the orders also required the parties to obtain psycho educational assistance to “improve their levels of cooperation and effective communication.” The practitioner upon whom the parties were required to attend is a very experienced psychologist. He normally is quite successful in such endeavours, however on this occasion after only a few sessions, he gave up. I will discuss that in detail later.
24.On 3 August 2014 the father had his first overnight time with the child. That progressed to the stage where, by the time of trial, the child was spending three overnights per week with him. The mother contends that the child has consistently demonstrated anxiety from the time when overnights commenced. She says that that anxiety continued when the number of nights increased.
25.From an early stage the father utilised the paternal grandmother to effect changeovers between the child and the parties. He said he did so to protect the child from being exposed to conflict between him and the mother. The mother wanted the father to personally attend such changeovers. Since about (it seems) December 2014, in fact the father has attended such changeovers, albeit with either his mother or father or both. On three or four occasions in 2015, the paternal grandfather has filmed those changeovers. For her part, the mother has made audio recordings of some or perhaps even all changeovers on her mobile phone. She complained via the father’s solicitors that she did not like being filmed at changeovers, but in the course of that complaint, did not disclose that she herself was audio recording them. The father says, and was not challenged, that after the mother’s complaint, his family stopped filming changeovers.
26.It will be apparent from the foregoing that the levels of trust between the parties are very low. For his part, the father and his parents’ evidence was that they do not trust the mother to leave the country, because they believe that she will never return and would attempt hide the child overseas from the father. For her part, the mother does not trust the father because she says that he and his family regularly lie to her about the father’s whereabouts at times when the child is ostensibly spending time with him. The mother sought to prove, by reference to both the father’s affidavits and some subpoenaed airline records, that on occasions when the child was supposed to be spending time with the father, in fact he was out of the State. Whilst the father did not admit that, he did – after initially attempting to evade doing so – concede that in fact on occasion he had obtained the mother’s agreement to substituting time that he would spend with the child under a false pretext, for example that he needed to undertake medical testing, when in fact he was interstate on work.
27.At the time of trial, the parties’ communication remained poor, but not altogether devoid of hope. Perhaps the most telling illustration of that was that, by unhappy coincidence, in fact the child’s third birthday fell on the first day of the resumed trial. That was a day when the child was in the father’s care. The parties had attempted by email correspondence to negotiate for the mother to spend some time with child on her birthday. They were unable to reach any agreement. The father said that was because he did not know what the court hours would be. In the end the parties, being unable to agree the circumstances in which the mother would spend time with the child, accepted that the orders would simply be left to operate so that she would spend no time with her.
28.I resolved that impasse by adjourning the court early. The child was able to spend about two hours with the mother. The evidence is that the parties were both present at the changeover, and jointly played with the child for about 15 minutes. There was no conflict and they were, at least apparently on a superficial level, able to communicate notwithstanding that they were then in the course of the trial.
29.There was another instance of somewhat promising communication during the trial as well. On one morning the mother was running late for court. She telephoned the father directly to ask him to let the court know that she would be about 10 minutes late. He took the call and the parties spoke together. It appears they were civil. Perhaps it bodes well for the future, however I am mindful of the adage that one swallow does not a summer make.
THE ISSUES
30.During the course of the trial the following were identified as the issues likely to substantially impact upon the determination of these proceedings:
1.What is the nature of the relationship between the father and the child.
2.Would the child benefit from a meaningful relationship with father and if so, how may that best be facilitated.
3.What benefits would relocating to Country E have for the mother, particularly in relation to:
(a) her financial circumstances;
(b) her family support.
4.What would be the effect on the child of immediate relocation to Country E, and particularly, what would be the effect on her of:
(a)the change in her relationship with the father;
(b)any improvement in the mother’s parenting capacity consequent upon her relocating.
5.If permitted to relocate with the child to Country E, would the mother facilitate a meaningful relationship between the father and child.
6.What would be the effect on the mother’s parenting capacity if she were to remain living permanently in Australia.
7.Is there an age or point in the child’s development at which a meaningful relationship with her father could be maintained long-distance, and if so:
(a)what is that likely age or point in development;
(b)how could the relationship with the father thereafter best be maintained;
(c)what would be the effect on the mother’s parenting capacity if she were to be required to remain in Australia until the child reaches the relevant age or point in her development.
31.To those may also be added the following:
8.Whether the father was domestically violent to the mother during the course of the relationship; and
9.Whether the parties’ communication is, or with the conclusion of these proceedings is likely to be, of a quality and standard sufficient to support an order for equal shared parental responsibility.
32.I will consider those issues in that order in due course, before undertaking a general traverse of the s 60CC considerations and then considering the orders that should be made in these proceedings.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
33.Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
34.Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
35.However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
36.In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
37.Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC.
38.In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
39.“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
40.Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
41.“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family ... or causes the family member to be fearful.
42.Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
Relocation
43.The application of these provisions in the context of relocation cases has been discussed by many authorities. In the relatively recent decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paragraphs 79 to 81, where her Honour said as follows:
79. In considering whether the child should live with the parent who proposes to relocate a court:
·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
·Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
·Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
- that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
- that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
- that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
- the non-relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate 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.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The standard of satisfaction required
44.S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
45.In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
WHAT IS THE NATURE OF THE RELATIONSHIP BETWEEN THE FATHER AND THE CHILD
46.Ultimately it was not in dispute that the father and child have an excellent relationship. There was no contrary evidence. The Family Report writer, Mr J, in his most recent Family Report dated 21 July 2014 said that:
[The child] appeared positively attached and bonded to each of her parents, and certainly comfortable with all other adult parties; and also noted that all parties were focused and positively responsive to the child.
BENEFITS FROM MEANINGFUL RELATIONSHIP WITH FATHER
47.All parties conceded that the child would benefit from a meaningful relationship with the father. In his oral evidence, Mr J was adamant that the child would so benefit. Further his evidence was that it would be best facilitated by a combination of time and activity. He said that face-to-face time was most important for a child in pre-adolescence, and there was a convincing body of evidence which spoke to the importance of bonding and attachment between pre-school and primary school age children and their parents. He said that the benefits that flowed to a child from such bonding and relationships might differ depending upon the child, but in a general sense a child that has an opportunity to have meaningful relationships with both parents has better emotional regulation, and a sense of safety and security. This can lead to an improved sense of identity in pre-adolescence. He emphasised that in relation to a three year old child, frequency of time with the parent was more important than the duration of such time, and specifically gave as an illustration that it would be far better for a child to have three one hour blocks over three days with a parent per fortnight, rather than one block of three hours.
48.I accept that evidence.
BENEFITS TO MOTHER IN RELOCATION
Overview
49.The mother principally argued that relocation would improve her financial circumstances, and vastly improve her access to family support. Whilst perhaps not directly contradicting it, the father did nonetheless challenge the extent of the perceived benefits on both fronts. I will consider each individually.
Financial circumstances
50.Although for most of the period post-separation the mother has not been in employment, in relatively recent times she has been able to secure employment on a part-time basis as a carer for a quadriplegic person. She says – and was not challenged – that her Country E tertiary qualifications are not directly recognised in Australia in consequence of which her employment options have been limited. However the mother also appears to feel that her care of the child precludes her having full-time employment, as, in fairness to the mother, the father says also.
51.In her affidavit filed 17 December 2014, the mother identified that her present earnings for caring was $25.00 per hour, and that she was then in receipt of a pension payment of $738.50 per fortnight, together with family assistance of $342.16 and hence a total of $1,080.66 per fortnight. Her evidence was that her pension entitlements would reduce by $0.40 for every dollar she earned over $186.00 per fortnight.
52.The father is presently paying child support of about $150.00 per fortnight. The mother’s unchallenged evidence was that her basic expenses approximate $1,205.00 per fortnight. It can therefore be seen that the mother exists on a very tight budget.
53.At paragraphs 51 to 54 of that affidavit the mother outlined her hopes for income if she were able to move to Country E. Prior to obtaining employment, her evidence was that she would be entitled to a single parent benefit and rent assistance of approximately € 985.00 per month. She anticipated initial salary once commencing work at €1,650.00 per month, together with further government benefits of €90.00 per month. It appears as though she may be able to move up to salary of up to €3,000.00 per month.
54.She initially contemplated that she would live with her grandparents, which would entail expenses of about €700.00 per month. However once she left her grandparents’ place, her expenses would be about €1,400.00 per month. Assuming she were able to obtain employment with a salary of €1,650.00 per month, it can be seen that she would have some money available for either discretionary spending or saving or both.
55.I am satisfied that there would be some improvement in the mother’s financial circumstances if she were able to relocate to Country E. That said, I am not persuaded that the improvement would be dramatic, but rather it would be simply that the mother would have some financial buffer so long as she remained living with her grandparents, or if living independently, able to obtain employment at the predicted salary.
Family support
56.Whilst it would seem that the mother is an only child, nonetheless she has a large extended family. She appears closest to her mother and grandmother, both of whom filed affidavits in the proceedings.
57.The mother last travelled to Country E in 2012, and since then her mother and grandmother have only travelled to Australia twice. The mother’s evidence was that she telephones or Skypes her mother about three times per week, but on occasions up to five times. Her evidence is that she misses them terribly and feels isolated and lonely. She says that in Australia she feels exhausted, which she attributes to, in part, “not being able to simply enjoy a meal with my family, not being able to hug those close to me and share quality family time…”
58.The mother proposes to live in Limoges if she is permitted to relocate to Country E. Her grandparents live approximately ten minutes away from her mother. Some cousins live close by and others further away.
59.The mother has no family in F Town. She says she has a very limited circle of friends. This was corroborated by the father’s own evidence that during the course the relationship, when he attempted to organise events to which he invited people whom he believed to be the mother’s friends, either no one turned up or very few people turned up.
60.In July 2014 the mother told Mr J that “I don’t really have a support system here; and I don’t have any close friends in [F Town].” She later said “I do catch up with a couple of mothers who have children, and who also speak [Country C]. We have had a couple of play-dates, but the relationships we have are not close.”
61.At the time of that interview, in fact her mother and grandmother were visiting the country. She reported to Mr J “things are going well now, because my family is here.”
62.The mother was critical of Mr J for not interviewing her mother and maternal grandmother whom she believed ought be interviewed in the course of the Family Report and who were available for interview at the time. However Mr J really expressed no opinion as to the level of support which the mother could obtain in Country E, and even to the extent that he did, I would discount it substantially because he did not interview the maternal grandmother and great grandmother.
63.The mother’s unchallenged evidence was that prior to meeting the father she did not intend to stay permanently in Australia. There is some dispute between the parties as to whether during the course of their relationship they agreed to live in Country E and raise their family there, but ultimately it is unnecessary to resolve that dispute. However it is plain that the mother has since the breakdown of the relationship consistently wanted to return to Country E. I am satisfied that she would have greater emotional support in Country E, even acknowledging that she presently speaks with family members between three and five times per week.
64.Further, the mother perceives that she is indeed presently captive in Australia. She has not been permitted to even holiday to Country E since the birth of the child. No doubt permission to relocate would affect her release from that perception, which would likely of itself be of benefit to her.
Evaluation
65.I am satisfied that the mother’s financial circumstances would somewhat improve if she were permitted to relocate to Country E, and the availability of emotional support from friends and family members would also improve. Whilst the mother may view both with a degree of overstated optimism, there would nonetheless be real and substantial benefits to her in relocation.
EFFECT ON CHILD OF IMMEDIATE RELOCATION
Overview
66.In relation to this issue, the father focussed upon the diminution of his relationship with the child, should she relocate to Country E, whereas the mother asserted that there would be an improvement in her capacity to parent the child consequent upon her own improved emotional functioning. In substance the mother said that her improved functioning would outweigh any disadvantages consequent upon the changed relationship between the father and child, whereas the father said the balance lay the other way around.
Effect on relationship with father
67.At paragraph 75 of the Family Report filed 1 August 2014 Mr J opined that “relocation of [the child] is most likely to significantly disenfranchise the continuing development of a meaningful relationship with her father.” He further said that the mother “also seems to demonstrate naiveté in respect of the predictable range of challenges, and likely impact of the child’s relationship with her father as a consequence of relocation.” In oral evidence he identified that there could be a range of potential impacts on the child including an adjustment to bonding with the father. There were likewise a spectrum of possibilities as to how she would demonstrate the effects of the impact. He said that the child could carry it in a profound way for a long time of her life and it could effect a longer term change to how the child perceives herself.
68.The mother proposed that the father would only spend face-to-face time with the child in block periods either in Country E or Australia. However there are two issues which would determine the extent of those blocks on a practical level. The first is the father’s capacity to fund travel for himself to and from Country E, and meet the costs of living for himself and the child when in Country E. There is some contest between the parties as to the extent of the likely costs, with the father asserting that they would be more expensive than the mother did, but on any view there will be considerable expense involved. Likewise until the child is able to travel independently, there would be the costs of not only the child’s travel to Australia, but also the fare of an accompanying person. The father is presently unemployed, and his future employment options are a little unclear. Whilst in the past he has been able to earn substantial income by virtue of his maritime qualifications, they have now lapsed. He is contemplating undertaking an apprenticeship as an electrician. I do not overlook the fact that the father’s parents expressed a desire to support their son to meet the costs of travel. In the father’s words “they will do whatever it takes to ensure that I remain in the child’s life.” However practically there will be limits to the expenses which they will be prepared to bear, or which the father can independently bear.
69.The second matter is the restriction on the father’s ability to travel consequent upon any work commitments. Whilst it is nice to theorise about the father spending extensive block time with the child, that is also dependent upon him having sufficient leave entitlements. In the past the father has worked in the maritime industry which tends to have rosters which see people enjoying up to six months leave per year, however the father’s qualifications in that field have lapsed and his future employment seems to likely lie elsewhere.
70.Moreover the time which the father spends with the child in Country E is most likely to be holiday time, unless the father were to obtain accommodation sufficiently close to the child’s school to enable her to attend school whilst spending time with him. Unless that were to occur, then the father is unlikely to be a regular feature in the child’s everyday life, but rather the relationship would be one centred around leisure and recreation.
71.The mother also proposed that the father should have very liberal Skype and telephone communication with the child when not spending face-to-face time with her. She says that these, combined with the father’s face-to-face time, would maintain the meaningful relationship.
72.There is something of an irony in the mother’s argument on this point however. Whilst the mother has not spent face-to-face time with her own family in Country E, she has seen her mother in Australia for a block period of time in 2012 and then again in 2014. Her evidence is, as I have already recited, that she also Skypes with her family between three and five times per week. Accepting that the mother might be proposing slightly more generous blocks of face-to-face time between the father and child, nonetheless the fact is that the mother says that the combination of face-to-face time with her family in Australia, and regular Skype and telephone communication, is insufficient. However that is precisely the regime that she seeks to impose upon the father.
73.I am satisfied that the effect of relocation of the child to Country E, irrespective of whose orders prevailed in relation to the circumstances of the father then spending time and communicating with the child, would substantially disrupt the relationship between the father and child and lead to a markedly different relationship between them than would otherwise occur if there were regular face-to-face time.
74.By way of footnote I should acknowledge that the time difference between Country E and Australia would impact upon the time which the father could communicate with the child electronically, and further, in the case of a three year old girl, keeping her attention for any length of time on Skype might prove difficult.
Improvement in mother’s parenting capacity
75.The mother says that her improved financial situation and emotional supports would lead to her being a better parent. Mr J said that he did not know whether that was in fact the case. He said that he had no real firm opinion about the matter. He acknowledged that the mother would likely feel better about herself, but then again she might not.
76.In this instance, it is instructive to look at the mother’s present parenting capacity. To date, leaving aside the communication issues with the father, she has been an exemplary parent. No one made any criticism of her capacity, and she herself acknowledged that she was a good parent.
77.Amongst the mother’s witnesses was a social worker friend of hers, Ms I. Although she opined in her affidavit filed 17 December 2014 that the mother was “more likely to have a positive lifestyle if she can return to [Country E]” she went on to say that the mother “maintains a positive outlook (at least on the face of it) and foresees a wonderful life ahead with [the child], this includes contact between [the child] and [the father], wherever she resides.” She had also previously said in an affidavit filed 27 September 2013 that to her observation the mother “is physically, financially, emotionally and psychologically capable of providing stable, safe and a loving environment” for the child.
78.It is somewhat difficult to see how an improvement in the mother’s capacity to parent the child would occur from relocation, given the high threshold from which she starts. True it is that perhaps she may be financially better off, but that is only likely to occur if she obtains full-time employment or remains living with her grandparents. If she works, that is likely to impact upon her capacity to care for the child, at least in terms of the hours of the day that she is available. Further, whilst one might generally conjecture that a happier parent is a better parent for a child, notwithstanding her frustration and anxiety at being marooned in Australia, nonetheless the mother appears to be a fundamentally happy and optimistic person. Certainly neither Mr J nor the mother’s own psychologist, Ms K, reported any clinically significant issues in relation to the mother, and did not diagnose her as suffering from depression or anxiety. Therefore unlike many cases for relocation where there is extant substantially impaired capacity to parent, that is not a feature of this case.
79.I am not satisfied that there would be any significant improvement in the mother’s capacity to parent the child consequent upon relocation. At best any improvement would be marginal.
Evaluation
80.I am satisfied that weighing the two relevant factors in the balance, sees a negative outcome for the child in relocation to Country E. In a sense the mother implicitly acknowledged this by conceding that relocation was the least worst outcome for the child. To my mind that was a tacit acknowledgment that the move to Country E would be a negative one for the child, at least in one respect. Irrespective of whether in fact the mother was so conceding, I am nonetheless satisfied that would indeed be the outcome.
WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP IN COUNTRY E
81.This was a significant topic of evidence and argument before me. The father contends that in the past the mother has been begrudging in permitting him to spend time with the child, and resistant to increases in that time, particularly to overnights. The mother denies that she has been so begrudging, and says that her resistance to increased time and particularly increased overnight times has flowed from the child’s demonstration of anxiety with changes to her routine. The mother says that the child has been anxious for the last eight months since overnight time commenced, and it is this which motivates her to seek a reduction in the short term in the number of overnight visits between the child and the father, albeit she concedes that in due course the number of overnights should increase.
82.The difficulty in unravelling this to discern where the truth lies is the fact that it is quite likely that consciously or otherwise, both parties have seen the extent of the father’s time with the child as an important issue in the litigation. It is quite possible that the father has perceived that the more time he spends with the child prior to trial, the better his case to resist relocation might be. The mother may well have perceived the opposite.
83.I am satisfied that indeed the mother has been somewhat resistant to the father spending time with the child. Even at the outset, she restricted his time with the child to short blocks supervised by herself in a public place outside a police station, and would not let the father hold the child while standing. Her concern was that the father would run off with the child, and even leaving aside the somewhat fanciful nature of that suspicion, it ignores the fact that that was precisely what the mother had done when she left the home.
84.In evidence before me the mother consistently referred to herself as the child’s “primary care giver.” Whilst that is undoubtedly true, it did seem as though the mother was using that term in a way to distinguish herself from the father in almost a denigratory way. It carried with it the likelihood that the mother perceived herself as a more important figure in the child’s life than the father. If that is correct, then it may well explain why the mother has been resistant to increases in time between the father and child.
85.Whilst I shall consider the child’s anxiety issues when considering the specific parenting orders in this case, it is unnecessary for me at this juncture to make any findings in relation to her anxiety, because I accept that the mother genuinely believes that the child is demonstrating anxiety, irrespective of whether in fact she is. Part of the explanation for that may lie in the fact that, even at three years old, the child does not sleep in her own bed when with the mother, but rather sleeps with the mother. On the other hand, in the father’s household, she sleeps in her own room.
86.The evidence is insufficient to persuade me that the mother in fact would not promote a relationship between the father and child if she were permitted to relocate with the child to Country E; by the same token the evidence is insufficient to affirmatively persuade me that the mother would promote a meaningful relationship. It follows that there is therefore some question mark hanging over this issue.
87.That was not ameliorated by the orders which the mother sought, at least during the course of the trial, as to the time which the child should spend with the father if she were permitted to relocate. They were somewhat vague and depended upon factual preconditions which, it seems, would give the mother some capacity to determine whether or not they had been met. For instance at paragraph 6 of her Case Outline, when dealing with the proposed orders for block time the mother proposed that initially the father would spend three day time contact with the child “then progress to overnights to suit [the child’s] development.” Although later the mother attempted to provide some specificity to those orders, it did seem as though the mother was seeking to leave the matter to her determination as to whether or not the child was sufficiently developed to spend overnight time with the father. All of that left considerable room for suspicion that the mother was reserving to herself the right to veto overnight time if she thought it inappropriate.
WHEN COULD CHILD MAINTAIN LONG DISTANCE RELATIONSHIP WITH FATHER
88.No party proposed deferring the time when the mother could relocate with the child to Country E, whether as a primary or alternative proposal. Nonetheless it remains a possible outcome to the proceedings, and against that background Mr J gave some oral evidence, in which he said there was no definitive point in time where the relationship could continue on a meaningful level, other than to say the older the child, the greater the capacity they have for maintaining a strong bond notwithstanding distance and limited time. He said that he tried to keep the possibility of a perpetuation of a meaningful relationship open, however the “politics of poverty” meant that the time which the father and child spend together would necessarily be limited. I accept that evidence.
WAS FATHER DOMESTICALLY VIOLENT TO MOTHER
89.This issue arose in a somewhat unusual way. The mother’s trial material did not directly raise issues of domestic violence. Rather it was the father’s affidavit that annexed the material generated in the course of the mother’s domestic violence application, together with the material he at the time relied upon to refute those allegations. But for that, the matter would not have been raised. Further, the father criticised the mother for not cross-examining him in relation to the issue. She was not obliged to do so: see LC & TC (1998) FLC 92-803. Moreover, the mother did not assert that there should not be equal shared parental responsibility based upon any domestic violence, or because, if possible, shared decision making would not be in the best interests of the child, but rather that the parties’ poor communication practically precluded equal shared parental responsibility. In a sense therefore the question of domestic violence is a false issue in this case. Nonetheless, given s 61DA, and specifically the fact that if there are reasonable grounds to believe that there has been family violence, certain statutory consequences ensue, it seems incumbent upon me to resolve the issue.
90.The first allegation of domestic violence was raised by the mother in a letter she left for the father when she separated from him. It referred only to the father’s alleged “constant verbal abuse towards me.” She gave examples of it. She went on to say “the situation has escalated to the point I wonder if the next step will be hitting me.” However the very next sentence was “I know that this is not your intention and I want to believe that you would be able to control yourself but I cannot help having doubts when you have to go kicking our outside furniture to calm your nerves or when you stop the car half on a median strip when you put your head on the steering wheel and hit it with your hands while groaning because of frustration.”
91.That letter was written by the mother seemingly without any assistance. However by the time she came to prepare her protection order application, she had the assistance of a worker at the women’s shelter where she was staying. The father’ cross-examination of the mother really was that the statement was embellished with the assistance of that worker, rather than being truly a product of the mother. Certainly the statement is written in far more emphatic and strong terms rather than the mother’s separation letter. For instance it refers to “intolerable abuse I was experiencing from the respondent.” Plainly that is not the mother’s wording; it is most unlikely that she would use the word “respondent” and I am satisfied that that word was chosen by the worker. Moreover the next paragraph in that statement commences “I have been experiencing verbal, emotional, psychological abuse, threats, intimidation and controlling behaviour from him for about two months.” Again that language suggests to me that it was the product of the worker rather than the mother. That is not to say that it may not be in fact a true account, but it is certainly not the mother’s words.
92.The specific instances referred to by the mother in that statement appear to be chronologically ordered as follows:
·When the parties were living in Victoria, the father got very drunk and when the mother was trying to help him into the shower, the father turned to her threatening her with his wrist “like if he was ready to punch me because he apparently he got a bit of water in his eye”;
·The episode when the father drove up onto the median strip and banged the steering wheel with his hands;
·An occasion when the father said to the child “I feel like pulling mummy’s hair too sometimes but I would not get away with it as easily as you do.”
·The father threatened to hire a hit man;
·The father would call the mother derogatory names ;
·On an unspecified occasion the father said to the mother “I feel like smashing your head against the wall”;
·The father kicked furniture in the car port out of frustration;
·The father sought to restrain the mother from seeing a friend on the basis that the friend was a “slut”. The father told the mother that while he was away at work he would have someone check up on her every day and that she had to be nice to them.
93.The father denies all of these events. He prepared extensive affidavit material refuting the allegations in the domestic violence proceedings, including filing affidavits of his parents, neighbours and an aunt. All of that material is annexed to the father’s trial affidavit in these proceedings. The absence of cross-examination of the father or his parents by reference to the allegations makes the resolution of this issue all the more difficult. Essentially I am left with the untested evidence of the father and the other witnesses in the domestic violence proceedings, and the mother’s assertion in the witness box under cross-examination that her allegations were true.
94.However there are a number of extraneous matters which do have some bearing upon the issue, comprising:
·The fact that the mother withdrew the domestic violence proceedings and did not press for their resolution;
·The fact that the mother first made the allegations whilst in the women’s shelter, and had not made them to a social worker who came to assist the parties try and resolve their differences during the later stages of their relationship;
·The lack of any independent third party evidence;
·The failure of the mother to cross-examine any of the witnesses by reference to the issue.
95.An allegation of any kind of family violence is a serious matter, although here there is no assertion of actual physical contact. Nonetheless the mother’s allegations are serious, albeit perhaps not gravely so. It is incumbent upon the mother to persuade me, and in this regard her failure to put it in her trial material or otherwise rely on it before me is unusual. Weighing all those matters in the balance, I am not persuaded on the balance of probabilities that the father was domestically violent in the way the mother alleges during the course of the relationship or thereafter.
PARTIES’ CAPACITY TO COMMUNICATE AND MAKE JOINT DECISIONS
96.An unusual feature of this case is that the father has deliberately tried to restrict the mother’s communication with him, either by confining communication to writing, or using his mother or father as an intermediary. The father has been highly resistant to, at least in the past, telephone communication with the mother, or any face-to-face contact at all. He explains that on two bases; firstly so that the child is protected from exposure to any conflict between the parents, and secondly because he was concerned that the mother may use such occasions to generate further false complaints. I have already explained that the father’s family is deeply suspicious of the mother and the mother equally suspicious of the father.
97.Moreover, from time to time the father has in his written communications with the mother behaved inappropriately. Some of his emails are plainly demeaning and others do have an intimidatory aspect to them.
98.The parties acknowledge that they needed to improve their communication as evidenced in the consent orders made in November 2013. They sought the formal assistance of an experienced psychologist, Mr L. In his report dated 11 July 2014 he said as follows:
[Ms Denton] and [Mr Hill] were ordered to attend for “psycho educational assistance to assist the parents to improve their levels of cooperation and effective communication” by Justice Tree of the Family Court on 26 November 2013. It was also ordered that I be provided with a copy of the Family Report. I note that I never received a copy of the Family Report, and I was only provided with a copy of the orders when I first met with [Mr Hill] on 24 January 2014.
The issues raised during the counselling were focused mainly on communication between parents, managing changeover for contact, and negotiating variations to the contact arrangement.
[Ms Denton] presented as generally cooperative and eager to try to address issues to reduce the conflict. Her main focus was on communication and changeover issues, including her inability to directly contact [Mr Hill], the fact that the was rarely present during the changeovers, and what she perceived as being relatively hostile communication from him via email. [Ms Denton] was particularly frustrated that she was unable to communicate with [Mr Denton] (sic), believing that this significantly impacted on the parents’ capacity to communicate regarding the child. On several occasions I challenged [Ms Denton] on how she had handled issues involving conflict with [Mr Hill] and his mother at changeover, and provided recommendations on how to manage similar issues in the future. In general she was able to accept these recommendations, and was open to discussing other strategies to reduce conflict.
[Mr Hill] presented as defensive and reluctant to engage in counselling. Throughout the contact he remained very focused on past events, and insisted that any direct contact between him and [Ms Denton] was likely to result in her making accusations against him. As a result, he was not prepared to negotiate any changes to the existing arrangements that would involve any increase in communication or contact between himself and [Ms Denton].
It was clear during the first joint appointment that the level of negative emotions and conflict between [Ms Denton] and [Mr Hill] made any effective counselling impossible. As a result, I kept them in separate rooms during the second joint appointment. This, however, remained ineffective and at the end of the second joint appointment I advised that that I felt further counselling was likely to be ineffective and I recommended that no further counselling appointments be scheduled at that stage.
In my opinion, joint counselling is unlikely to significantly improve the parental communication at present, although I think that both parents may benefit from some ongoing individual counselling to help them manage their emotions in relation to the current situation and to develop better conflict management strategies.
99.The father’s evidence, seemingly accepted by the mother, was that since about December 2014 when the father has been attending changeovers in person (albeit with one or both of his parents), the parties have been able to communicate in a civil way, albeit only in relation to superficial matters, and further points to the amicable conversation which the parties were able to have during the course of the trial. However the parties had been unable to by themselves sort out the issue of the mother spending some time with the child on the child’s third birthday, and further there is a long history of the parties needing to use solicitors to negotiate variations in the time which the father spends with the child.
100.The mother, being self-represented, got to cross-examine the father in person. I was therefore able to watch their interaction, albeit in a highly artificial and structured environment. The father adopted a relatively rigid communication style with the mother and at times appeared to demonstrate some hostility. For her part, the mother was highly detail focussed and pedantic. I could readily envisage that outside of the courtroom, those characteristics would be more prominent. I suspect that the parties will always find difficulty in communication because of their personality styles. Moreover, both parties demonstrated immaturity in their communication with each other and seemed to let personal issues infect what should be child focussed communication.
101.The real question is however whether with the resolution of these proceedings, and the passage of time generally, things might change. Certainly the Independent Children's Lawyer urged upon me – as did the father – that there should be an order for equal shared parental responsibility. That was made cognisant of the obligation on the parties under s 65DAC.
102.The history of these parties can only cause great doubt about whether the parties could exercise equal shared parental responsibility.
103.However there is another way of looking at this issue, and that is whether either party could in fact be trusted to exercise sole parental responsibility. As I raised with counsel during the course of submissions, each of the parties demonstrates matters raising serious concerns as to whether or not giving either of them sole parental responsibility would be in the best interests of the child. I will further consider the allocation of parental responsibility when considering the individual orders.
SECTION 60CC FACTORS
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
104.This has been sufficiently addressed already.
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
105.This is not engaged in this case.
Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
106.The child is too young to express any views.
Section60CC(3)(b): The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
107.The child has a good relationship with both parents and the child’s grandparents.
Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
108.This is only lightly engaged in that the mother points out to the fact that the father has at times travelled for work when he could have spent time with the child. However I am not satisfied that the father has not reasonably availed himself of all opportunities to spend time with the child.
Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
109.The father has always paid child support, and indeed currently is paying the amount that he has been assessed at notwithstanding that he is unemployed. In fact his parents are paying those sums. I do not overlook that at times the father’s assessed child support has been light, but on the other hand the father has voluntarily provided a car and serviced it at no cost to the mother.
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:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
110.I have considered this issue already.
Section 60CC(3)(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
111.I have sufficiently addressed the cost of travel to and from Country E and Australia; the reality is that the father would be restricted in being able to spend face-to-face time with the child if relocation were permitted. That would substantially affect the child’s right to maintain direct contact with both parents on a regular basis.
Section 60CC(3)(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
112.Both parents have good capacity to provide for the child.
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
113.The child has both Australian and Country C cultural heritage. It will be important for the child to explore and enjoy her Country C heritage, and I am satisfied that on either parties’ cases, that will occur.
114.On the other hand if the child were to relocate to Country E, she would lose much of her Australian heritage. She would only get to enjoy that during holiday times. There is some, but limited, prospect that she would lose her capacity to speak English. In this regard the mother’s evidence was that she would require the child to undertake English classes and to study English as a second language at school.
Section 60CC(3)(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
115.This is not engaged.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
116.Both parents demonstrate a good attitude towards the responsibilities of parenthood, save that each of them allows personal issues to intrude in their communication to the detriment of the child.
Section 60CC(3)(j): Any family violence involving the child or a member of the child’s family
117.I have sufficiently addressed family violence.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
118.An interim family violence order was made without notice to the father and without admission. However the mother did not press the application to final hearing. I can draw no inference from the interim order.
Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
119.This is engaged here in that I raised with the parties the prospect of making an order which would see the child not able to relocate for some time, however counsel for the father and the Independent Children's Lawyer recognised that this carried with it a substantial risk of further litigation.
Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant
120.The mother has a right of freedom of movement and travel. Subject to domestic law, she has the right to live wherever she chooses.
121.I cannot identify any other fact or circumstance beyond those that I have discussed already.
PARENTAL RESPONSIBILITY
122.The mother seeks an order that she have sole parental responsibility, whereas the father and Independent Children's Lawyer seek orders for equal shared parental responsibility. I have already foreshadowed that a live issue here is not only the parties’ capacity to communicate, but whether either party is a suitable candidate for sole parental responsibility.
123.The following factors tell in favour of sole parental responsibility vesting with the mother:
·She is the child’s primary care provider;
·It would avoid opportunities for conflict between the parties in relation to the child.
124.On the other hand the following points tell against the mother having sole parental responsibility:
·There is a question mark as to the extent to which she wants the father to be involved in the child’s life;
·She has been prepared to act unilaterally in the past to the detriment of the child’s relationship with the father.
125.The following points tell in favour of there being an order for equal shared parental responsibility:
·Each parent has much to offer this child and each bring different life experiences which could be of assistance to the child in relation to decision making;
·Once these proceedings have resolved, there is some reason to hope that the parties will recognise that their continued interaction only relates to the child and they both have an important role to play in her development.
126.On the other hand the following matters tell against there being an order for equal shared parental responsibility:
·The parties have a history of poor communication;
·The parties’ personality styles appear to generate friction.
127.Upon balance, although no without some very considerable hesitation, I am satisfied that the best interests of this child lie with there being equal shared parental responsibility. There will therefore be an order to that effect. In making that determination I am particularly mindful that much of the context of the parties’ communication to date has been against the background of this litigation which will now resolve. Further, I am mindful that both parents have much to offer this child. True it is that I am worried that an order for equal shared parental responsibility might be the triumph of hope over experience, but upon balance the hope is sufficiently real to justify such an order.
WITH WHOM AND WHERE SHOULD THE CHILD LIVE
128.The mother’s primary position is that the child should live with her in Country E and spend block holiday time with the father. The father’s position is that the child should remain living in Australia and spend gradually increasing time with him. Although initially he sought orders which culminated in equal shared time, ultimately once the Independent Children's Lawyer’s final position had consolidated, he did not press for equal time, but rather substantial and significant time. The difference between him and the Independent Children's Lawyer was only as to whether it should culminate at five or six nights per fortnight.
129.In the event that relocation were permitted, there were some slight differences between the parties as to what time the child should spend with the father; in the event that relocation was not permitted, the only real difference between the parties was that the mother wanted a much slower increase in the overnight time than was proposed by the Independent Children's Lawyer and the father. Somewhat ironically, the mother and father agreed that the ultimate culmination point should be six nights per fortnight as distinct from the five contended for by the Independent Children's Lawyer.
130.As with all international relocation applications, the matter is difficult. It is quite understandable for the mother to want to return to her country of origin where all her family and most of her friends reside. It is likewise quite understandable that the father does not wish to jeopardise the meaningful relationship which he has with the child by her living in another country far away from him.
131.The following points are in favour of the mother’s proposal to relocate:
·The mother may have some slightly better financial circumstances in Country E;
·The mother would have the benefit of her family and friends;
·There may be some marginal increase in the mother’s parenting capacity in consequence.
132.However the following matters are against the mother’s proposal and in favour of the father’s position:
·The father’s relationship with the child would be adversely and substantially affected, and the father would not be a day-to-day, face-to-face, feature of the child’s life;
·There is a question mark over the extent to which the mother would actively seek to facilitate the continuing relationship between the father and child;
·The mother’s parenting in Australia has been exemplary;
·The mother’s yearnings for Country E may be somewhat met by permitting her to holiday there.
133.Upon balance in my view the best interests of this child do not weigh in favour of relocation. In so concluding I give particular weight – indeed determinative weight – to the adverse impact which relocation would have on the child’s relationship with the father. She is only three years of age and to permit relocation would substantially curtail her right to have a meaningful relationship with her father. He has much to offer the child, and that is best afforded by him having regular face-to-face time with the child, and for him to be engaged in all aspects of her life.
134.Because I will order that there be equal shared parental responsibility, notwithstanding that the father did not ultimately press for equal time, s 65DAA(1) requires me to consider whether it would be in the child’s best interests and reasonably practical to make orders for equal time.
135.As to the child’s best interests, in T v N [2001] FMCAfam 222 Ryan FM (as her Honour then was) at [93] said:
The factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
136.Accepting that the legislative framework has changed since that decision, there is nonetheless no reason to think that as a practical matter those considerations do not remain live in determining whether or not equal shared care is likely to work. Plainly many of them are not met in this case.
137.Particularly there is no history of demonstrated successful implementation of equal care or indeed anything approaching it, there remain considerable difficulties in the parties’ communication, and there is no evidence to support a conclusion that the child’s day to day life is similar in each household. Equal time would not be in the child’s best interests.
138.Equal time would also not be reasonably practicable, having regard to the matters listed in s 65DAA(5). Particularly I am not persuaded that the parties have the capacity to implement such a regime, nor is their communication presently of a quality sufficient to support it.
139.I decline to make an order for equal time.
140.I then turn to consider whether there should be an order for substantial and significant time. Although all parties agreed, in the event relocation was not permitted, that there should be such a regime ordered, that does not absolve me from complying with s 65DAA(2).
141.As to whether such a regime would be in the child’s best interests, I am satisfied that it would enable her to have not only a meaningful relationship with both her parents, but indeed an optimal one. As I have said earlier, both of these parents have much to offer this child. Substantial and significant time would be in her best interests.
142.Turning to reasonable practicability, the parties have already implemented a regime of substantial and significant time. Whilst their communication is problematic, it has demonstrably nonetheless been able to support such care arrangements. Whilst there appears to have been some anxiety experienced by the child arising from spending increasing time with the father, particularly overnight time, there is no reason to believe it will not abate with time, including if there is a further increase in the child’s time with the father. The fact that both parties seek such a regime confirms that this must be their view also. I am satisfied that orders for substantial and significant time are reasonably practicable, and will make them.
143.That then leaves only the question of the extent to which the father should spend time with the child. I am satisfied that the culminating point should be five nights per fortnight. In so concluding that such is in the best interests of the child, I am particularly mindful that on the father’s proposal (as finally articulated, Thursday to Saturday in week one, Thursday to Monday in week two), the mother would never spend an entire weekend with the child.
144.As to the rate of progress, I am satisfied that the escalation to five nights should be as proposed by the Independent Children's Lawyer. Particularly I am not persuaded that any anxiety experienced by the child requires the progress to 5 nights to be staged over some years. Not only do I suspect that the mother’s proposal has much to do with her anxiety rather than the child’s, I am also mindful that with appropriate parental support and responsible flexibility, any anxiety should be able to be accommodated.
145.Finally, I am not satisfied that it is in the child’s best interests there should be any immediate reduction in the child’s time with the father as proposed by the mother. The child is coping adequately with the current arrangements.
146.The only remaining issue is then whether the father should be given the option, should he so wish, of spending all five nights in one block in one week. That was not his proposal, and only arose in the course of debate between his counsel and myself in submissions. I raised it because of the father’s past history of week-on, week-off employment in the maritime industry. However his evidence was that he did not think his future lay in that field any more, and further, the mother opposed any such order because it would unduly restrict her capacity to obtain employment, in that in the nine day period she cares for the child, she would not be able to work. Upon balance I am not persuaded that there should be the option give to the father to take all five nights in one week, because that would indeed likely adversely impact upon the mother’s employment opportunities in Australia.
OTHER ORDERS
147.The parties are agreed that there should be liberal communication as proposed by the Independent Children's Lawyer. I am otherwise satisfied that the orders sought by the Independent Children's Lawyer are in the child’s best interests and will so order.
CONCLUSION
148.For these reasons I will pronounce orders as set out at the commencement of these reasons.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 9 September 2015
Associate:
Date: 9 September 2015
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