Hill and Gore

FAMILY COURT OF AUSTRALIA

HILL & GORE

[2008] FamCA 999

FAMILY LAW – CHILDREN – Best interests – relocation – absence of otherwise relevant evidence

Family Law Act 1975 (Cth)

APPLICANT:

Mr Hill

RESPONDENT:

Ms Gore

FILE NUMBER:

SYF

2194

2006

DATE DELIVERED:

13 November 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

5-6 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr M. Anderson

SOLICITOR FOR THE RESPONDENT:

Mrs Gash

Orders

All previous parenting orders in relation to … born … October 2001 (“the child”) be discharged.
The parents have equal shared parental responsibility for long term decisions in relation to the child.
The child born … October 2001 live with the father Mr Hill.
The child born … October 2001 shall spend time with the mother, Ms Gore:
(a)For one half of each school holiday period commencing the day after the first week of each school holiday period to the last day of that holiday (except for the Christmas and January period) that applies to the school that the child is enrolled in or for such longer period(s) of time as the parents may agree in advance of that period
(b)During the Christmas and January school holiday period for the period of time from the day after the end of term until 3 weeks thereafter commencing in December 2008 and each alternate year thereafter
(c)During the Christmas and January school holiday period from the day 3 week after the day after the end of school term until the day prior to commencement of the next school term commencing in the December 2009 to January 2010 school holiday period and each alternate year thereafter
(d)Such other times that the parties may agree to in writing.
The child shall communicate with the mother each Monday between 5.00 pm and 6.00 pm Australian Eastern Standard Time (“AEST”) implemented by the father causing the child to telephone the mother on the mother’s landline telephone number.
Each party shall keep the other informed of their current residential address, any landline telephone number or mobile telephone number and shall inform the other party, in writing, at least 7 days prior to any proposed change.
For the purposes of implementing the spending time with orders, both parties are jointly responsible for the costs of the child’s return airfares from Australia to New Zealand (Wellington at the time of these orders).
The child is permitted to travel with the “accompanying scheme” of the airline with which she is travelling.
Both parties are restrained from consuming alcohol to excess while the child is in each party’s respective care.
In order to facilitate the operation of the spend time with orders herein the father shall book and pay for the child’s airfare to New Zealand for each holiday period no later than 14 days prior to the holiday period and the mother shall book and pay for the child’s return flight no later than 14 days prior to the commencement of the holiday period.
The father shall provide copies of each of the child’s school reports, photographs and any significant information relating to the child’s health to the mother within a reasonable time of receiving such information and material.
Each party is hereby restrained from discussing the outcomes of proceedings with the child and is also restrained from denigrating the other parent or permitting anyone else to denigrate the other parent in the presence of or in the hearing of the child.
For the purposes of implementing the orders in relation to the child spending time with the mother, the father shall deliver the child to Sydney airport to enable her to travel to New Zealand and the mother shall collect her from the airport in New Zealand. The mother shall ensure that the child is delivered to the airport in New Zealand in sufficient time for her to travel to Sydney to return at the end of the time she spends with the mother, and the father shall collect her from the airport in Sydney.
The father is to bring the child to attend upon the Family Consultant within the next 14 days, or at such time as the Family Consultant is available by arrangement with her, so that the decision can be explained to the child.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
All material produced in response to subpoenas be returned to the party who produced it.
The matter is removed from the pending cases list.

Notations

It is noted that the father proposes the period of time referred in Order 4(a) will occur so that the child will spend longer than one half of the time in each holiday period with her mother.
It is not possible for the father to be specific due to the varying times in each holiday period.

IT IS NOTED that publication of this judgment under the pseudonym Hill and Gore is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2194 of 2006

MR HILL

Applicant

And

MS GORE

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about where and with whom the parties’ child, a young girl aged 7 years should live, in Australia with her father or in New Zealand with her mother, step-father and half-brother.
Issues are raised about the suitability of both environments and the ability of each of the parents and the step-father to properly exercise parental responsibility, and promote the child’s welfare and her relationship with the other parent. The evidence I think shows that each of the parents loves the child and that she reciprocates that love.
The application is one in which the Court is obliged to make a decision in circumstances where the mother is not represented and evidence which would be of assistance to its determination is not before the Court and not tested. That event seems a product of a lack of perception of what is important and also a result of the limited means of the parties.
Whatever the Court does it is certain that, given the determination of the mother and father to remain living in their own countries whatever the result, that the contact the child will have with the parent with whom she does not live will be less than ideal.
The decision is on a fine balance.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in August 1956 and is aged 52 years.
The mother was born in August 1968 and is aged 40 years.
In 1994 the mother travelled from New Zealand to Australia.
In April 1997 the parties commence a de facto marriage relationship.
In October 2001 the child was born and is now aged 7 years and one month.
On 7 January 2004 the parties separated. The mother did not inform the father where she had gone and the father located her some three weeks later.
On 28 January 2004 the father commenced daytime contact with the child.
In July 2004 the father had alternate weekend contact with the child from Friday evening until Sunday afternoon.
In mid 2004 the mother commenced a relationship with Mr Gore.
In August 2005 the mother gave birth to V who is presently aged three years and three months.
The father deposed that in December 2005 the mother suggested he forget about the child, and he subsequently commenced legal proceedings.
In March 2006 final parenting orders were made by consent which provided for the child to live with the mother and have contact with the father in the following terms:
“4.That the Father shall have contact commencing 24 February 2006 defined as follows:
a)Each alternate weekend from 5.00 pm on Friday to
5.00 pm on Sunday.
b)Telephone contact each Tuesday between 7.00 pm and 8.00 pm with the Mother or child to initiate contact.
c) For a minimum of three (3) hours on the child’s birthday.
d)Christmas contact for a period to be agreed between the parties in addition to any contact referred to in clause 4(a) herein.
e) At such further times as the parties may mutually agree.
5.That for the purposes of contact, the Father shall collect the child from the mother at the Mother’s residence at the commencement of contact and return the child to the mother at the Mother’s residence at the conclusion of contact.”
The father asserted that these orders were contravened by the mother in a number of respects and in evidence the mother conceded that that was so.
In August 2006 the mother married Mr Gore.
In June 2007 the father, at the mother’s request, signed an application for the child to procure a passport in contemplation of the mother at some time taking a holiday in New Zealand. The father was assured by the mother that was the purpose of the passport.
The father spent time with the child until 12 August 2007 and the child departed with the mother for New Zealand on 17 August 2007.
On 20 August the father received a telephone call from the mother informing him that she was in New Zealand with the child. The father had not been previously informed of the child’s departure for New Zealand. Upon the father enquiring of the mother as to how long she intended to remain there, he was informed: “For several months. It could be permanent. We have not decided yet.”
On 25 August 2007 the mother, in a conversation with the father, informed him that he could see the child “when you visit here”, “You can use the child support money for the plane fare.”
Proceedings were commenced pursuant to the provisions of the Convention on Civil Aspects of International Child Abduction (“the Hague Convention”) and an order was made following proceedings which were defended in

New Zealand
and the child was returned to Australia by the mother. She was returned on 28 November 2007, not the 21 November 2007 as ordered. It was said by the mother, and I accept, that the delay related to immigration formalities not being completed earlier.
Upon return the mother took up residence in a caravan park in Newcastle, with the child. Although the mother pointed out that at that time of the year such accommodation in Sydney would have cost significantly more, the fact is that the chosen place of residence made contact between the father, whose residence was in Sydney, and the child difficult.
On 30 November 2007 the father spent time with the child for the first time since the mother removed the child from Australia without the father’s consent.
In January 2008 there was an interim hearing at which the mother consented to the child living with the father, pending the final hearing. This course enabled the mother to return to New Zealand at a time when she says that she had run out of money to stay in Australia and in circumstances where her husband was ill and she had not seen her young child for some time. She informed the Court that her decision was difficult but made because she had no alternative.
On 23 October 2008 the Court received a Family Report which was released to the parties. The matter was thereafter mentioned and the mother on that mention said robustly in the words following or to the like effect: “There is no possibility of any agreement between myself and [the father].” The matter was accordingly listed for hearing.

The evidence

Written evidence was received on behalf of the applicant father in the form of affidavits filed in the proceedings, one by him and one by a witness,

Mrs W. On the mother’s part an affidavit was filed and a statement, which the mother verified in the witness box and a copy of which had been supplied to the solicitors for the father, was also received. The Family Report was tendered, as were a number of exhibits.
Each of the parties gave oral evidence and was cross examined, as was the Family Consultant. Mrs W also was cross examined by the mother.

The agreed matters

It was agreed that whatever decision I made as to with whom the child should live, that the parties should retain joint parental responsibility.
It was agreed that whatever decision I made, and save for either party otherwise making themselves available in the home country of the child, the only contact on a face to face basis which would occur must in a practical sense, occur in the child’s school holidays.
The mother proposed in her orders that in the event that the child resided with her, the father have more than one half of the school holidays. The father proposed that the mother, in the event the child resided with him, be with the mother for half of the school holidays, with an imprecision as what that meant in the circumstance that he was unaware of the length of a particular holiday in advance, but he asked that it be noted that it was his intention to provide more than one half.
Each of the parties seemed unconcerned that there should be continuing telephone contact, although clearly issues existed between them as to whether in the past such contact had been free of interference by the father or facilitated in the case of the mother, when rung from Australia.
It was agreed that whatever orders were made they should be carried into practical effect by the child travelling from one household to the other in the allocated time by air travel from Australia to New Zealand, and return unaccompanied by a parent, but subject to the general supervision of the carrier airline. This form of transport was said to be one with which the child was content and which was working well.
Both parties, without admission, seemed agreeable to be bound by an injunction that neither of them speak about or permit or allow the other to be spoken about in a derogatory fashion in the presence of the child.
Both parties, without admission, agreed to an injunction that they not consume alcohol to excess whilst the child was in their care.

The Issues

The issues in contest raised were therefore:
a)with whom the child should live and
b)what time should the child spend with the parent with whom she was not living.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… When making a parenting order in relation to a child, 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.”
Subsection (4) provides as follows:
“… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the child's parents are to have equal shared parental responsibility.

Credit

In this case, the father gave direct answers to questions in a quiet and assured manner. He answered questions directly, even though the answer at times did not support his case. He was a witness who impressed that he not only loved his child and, although obviously immensely proud of her educational progress, achievements and her awards, was, it appeared to me, in fact most delighted by the child taking joy in her own achievements. This, it seemed to me, demonstrated a child focussed perception in his care of the child and, like his other evidence, was neither exaggerated nor particularly self-serving. His demeanour in the witness box and his responsiveness to questions lead me to the conclusion that his evidence was credible.
The mother gave evidence in a highly emotional fashion, with her demeanour alternating between tears and laughter, at times bordering on the hysterical. To be fair to the mother, the situation was one which would not be without its tensions, but I was left with the impression that much of this was designed to elicit sympathy in the absence other supportive evidence. I found in her answers and in her demeanour, as well as in her written evidence given here and in New Zealand, a propensity toward exaggeration of events, where such exaggeration served her interests. Whilst accepting her evidence on a number of points, I did not find it as reliable as the evidence of the father.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

It is clear on the report of the Family Consultant that this child would benefit from a meaningful relationship with each of her parents and neither of the parents in their evidence suggested otherwise.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There are issues raised in these proceedings concerning neglect, abuse and family violence.
The mother says of the father that he has an alcohol problem and drinks to excess in the presence of the child. The father in his evidence detailed his drinking habits. If I accept the father’s evidence, those drinking habits are not excessive in the presence of the child or indeed otherwise. The mother produced no corroborative evidence to support her claim. She claimed that the father should have undergone independent testing to provide reassurance about his drinking but the father explained that the Legal Aid Commission would not meet the costs of such testing and that he could not from his own resources. The father produced the results of a pathology test showing that, in relation to a sample collected on 9 October 2008, he showed no signs of the described illicit drugs nor of alcohol. This is but one test but adds some small support to the father’s assertions. I accept the father’s evidence as to his present drinking habits.
The mother said that the father is negligent in his care for the child by permitting her to go to school unaccompanied. The father conceded that on two occasions in response to a stated wish of the child to walk to school in the company of her friends, and accompanied by a neighbour’s older child on a fine day, he agreed that she could. The school he says is close by and it takes no more than five minutes for the child to walk the distance. He has he says otherwise taken the child to school and picked her up at the conclusion of school. I accept the father’s evidence and do not find his conduct neglectful of the child’s interests or safety.
The mother complains that the child has had continuing infestations of head lice and that the father has neglected to treat them. The father for his part produced a number of reports from the child’s school which describe such infestations within the school and the fact that currently some infestations are resistant to treatment. The father’s evidence, which I accept, is that he purchased the appropriate treatments and applied them. He also used a fine tooth comb to seek to remove lice and eggs. He suggested that the child may have been reinfested whilst at the mother’s care. The fact that the child had lice in the circumstances of the visit to the mother as described in her affidavit is not surprising given the attributes of treatment resistance in the lice. I do not find that the father failed to take the appropriate measures to deal with what appears to be and endemic and persistent problem, according to the school, and the notifications from the Department of Education.

The mother complained of an incident of violence with the father in 2003. The father conceded that he either pushed and/or shoved the mother in that year. The mother said that there was more to it than that. There was however no prosecution of the father and indeed the mother conceded that she was contacted by the Department of Community Services, and assured them that there was no other violence apart from this incident in the relationship and although offered the opportunity to contact them at any time, she did not do so. The incident although entirely inappropriate was, it appears, isolated and was on the father’s evidence a regrettable symptom of the parties’ failing relationship. It is of course the fact that the parties do not presently live in a relationship.
The father is said by the Family Consultant to have a clear understanding of the child’s emotional needs. Such a statement, together with the child oriented attitude of the father, leads one to the conclusion that the child would not be at risk of psychological harm in his care.
The failure of the mother to prioritise the needs of the child over her own needs, and her apparent lack of understanding of the effect on the child of her removal from the father, and her comment to the father to “forget about [the child]” demonstrates an absence of understanding of the child’s emotional needs and of her attachment to her father. This conduct provides grounds for ongoing concern as to whether those needs will be accorded the priority that the law demands they be accorded in her household. The Family Consultant observed that the mother had difficulties balancing her loyalties to her daughter with those to her husband and her son.
The mother has married Mr Gore. He would, if the mother succeeded in her application, be a person who lived in the child’s household. The father complains of him that he is a violent man, intemperate of language and inclined to smoke marijuana. There is some support for these assertions:
a)
A report tendered by the father from the New South Wales Police Force Computerised Operational Policing Systems (COPS) disclosed that

Mr Gore has come under notice on a number of occasions with the department and has been convicted of a number of offences.
b)The offences for which he has been convicted include: possession of Indian hemp and supply drug of addiction in 1983; driving whilst having in his blood in excess of the prescribed concentration of alcohol in 1986 (described as in the middle range); and assault occasioning actual bodily harm in 2001. In that latter crime Mr Gore was said to have placed his victim in a headlock and punched the victim a number of times in the face. The assault it seems was unprovoked. The police report states that in a telephone call that they received after the incident from Mr Gore who had fled the scene, he sounded heavily intoxicated.
c)In 1999, in reporting on the causes of a fire in a vehicle in which he was sleeping after a “heavy nights drinking” Mr Gore claimed that the fire was caused by the fact that he was still intoxicated the following morning and had dropped a cigarette on a sleeping bag.
d)
In 2004 someone threw a brick through the front windscreen of

Mr Gore’s car and he reported the incident to the police. On interview, Mr Gore made the following comment after disclosing his belief as to the first names of the perpetrators (and his ignorance of their surnames) and his lack of knowledge of their present whereabouts:
“I don’t know but you better find them before I do or I will be taking my baseball bat with me and they will end up in hospital.”
He is also reported as having used the following intemperate language:
“Last time it took you two fucken (sic) hours to get here and you didn’t give a shit. Why would you give a shit now.”
e)He further came under notice in 2005 when an occupant of the same housing complex reported he had made derogatory remarks.
f)He has come under police notice in addition in 2007 for allegedly threatening a rental agent who had served an eviction notice for non payment of rent. He raised his fists to him and made threats including, as he left, “you’re lucky I’m not breaking your legs.”
g)Mr Gore is reported by the father as having said to him in a telephone conversation, after Mr Gore went to New Zealand:
“I’m coming over there and I’m going to blow ya fuckin head off. You fucken piece of fucken shit. How dare you invade their privacy you fucken …”
h)
To Mrs W, the father’s witness in this matter, Mr Gore is said to have said “I beat my dog to within an inch of her life - she needs to know that I am her boss and I can do anything with her.” He has also been reported as saying to Mrs W, in the presence of the child, to “fuck off out of my house” and “You’re a smart bitch get out of my house”.

Mrs W further reported him as saying “I will kill you if you ever try to contact [the mother] again.”
i)Mr Gore is also reported as having left a message at Mrs W’s husband’s work “Your wife has been in a serious car accident.”
Mrs W has also deposed to statements made by the child of Mr Gore having failed to feed her lunch in a timely fashion and, when in charge of her, not playing with her.
The child reports an incident to the Family Consultant in which Mr Gore made intemperate statements which were taken by the child to mean that he would be content to spend money to take the rest of the family on holiday but not her. The mother says that the statement, although interpreted by the child in that way, was not to that effect. She does not deny however that Mr Gore made a statement to the child which understandably led to that conclusion by the child. None of the above allegations have been answered by Mr Gore. In this matter where if the mother were to succeed, and he become a major part of the child’s life, one would think that at least an affidavit might have been filed dealing with these allegations. That it has not demonstrates either an insensitivity to the seriousness of them or an insouciance as to the outcome of these proceedings.
In any event, in the absence of evidence from Mr Gore as to the allegations, they are in the main uncontradicted. Accepting in these circumstances as I must the uncontradicted evidence, that evidence displays a man of violent and intemperate behaviour and speech. He is a person lacking in self-discipline and any understanding of ordinary polite conversation. He concedes difficulty in managing the child. An environment of which he was a permanent part is not one in which one could be comfortable and happy to raise a child.

Additional considerations

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The child has expressed, according to the affidavits and the Family Report, different views at different times to different people. In the circumstances, I accord the expression of her views little weight. It would in this case probably be a fair assumption that this little girl would like generally to please the parent she is with at the time by what she says.
(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)
The child I am sure loves each of her parents. She has a relationship with her paternal extended family whom she visits regularly. There is no detailed evidence of her relationship with the mother’s extended family, however there is apparently also a relationship there. It has, of course, been more limited because of the child’s primary place of residence at this time. The child has a relationship with her half-brother V and it is, on the totality of the evidence, an affectionate relationship and one which would not be as intimate otherwise in the event that I was to make an order that the child live with the father. This would be a possible detriment to both of the children. However, the Family Consultant notes that whilst the child spoke warmly of V she did not seem to interact with him very much, choosing to shut him out of her games and telling him to go away several times. She observes that V is at an age where his play may seem annoying to an older sibling.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The whole tenor of the mother’s behaviour, her request that the father forget the child, her taking of the child to New Zealand without apparent concern for the nature of the relationship of the child with the father and her need for her father, and her apparent problems in maintaining telephone communication with her daughter between New Zealand and Australia does not presently speak well of her ability or willingness to maintain a close relationship between the child and the father.
The father on the other hand, has assiduously telephoned the mother so that the child might speak with her and telephoned back when the time or the circumstances were inconvenient. He has co-operated in the travel of the child to New Zealand to provide time for her with her mother and he continues to declare in his proposals and intention to continue to do so. The mother points and rightly to the fact that she is the one who has made the proposal for a longer period of time with the father should the child reside with her, than the father has made in his proposals. However, the father in a late submission explained what he had proposed as meaning something more expansive than it seemed, and that the problem with the expression of his proposed order was related to a lack of certainty about the length of the school holidays. He indicated a willingness to expand the time spent by the mother and child beyond his original proposal.
(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
The child has developed a strong relationship with the father. There is no doubt she does and will continue to miss her mother to whom she had her primary attachment. It would be her desire that they both lived in the same country, and preferably in the same city. She has however been a child who has not performed in the past well at school and she is now progressing educationally and socially at her school, receiving acclamation for her efforts and developing pride in them. Although she has like all children had the experience of some children on occasion being mean to her, she has it seems made friends. To uproot her from this environment would be a shock and perhaps a setback at a time when the child is making outstanding progress educationally and gaining self-esteem and pride from so doing. She will miss and continue to miss I am sure her half-brother and certainly one of the changes which would benefit her by going to New Zealand would be to enable her to develop a relationship of greater intimacy with him. The mother points to the assistance she can give the child in progressing through puberty but there is no evidence that the father cannot provide the same assistance with that process for the child and I believe that it would be consistent with his care for the child that he will find any necessary help required with that process.
(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
Given the countries of residence of the parents there will be difficulty and expense occasioned by the child spending time with the other parent but each parent has proposed that the costs of the child spending time with them, whatever orders I make, be shared between them. Both seem willing to be bound to facilitate communication with and about the child. There will be, whatever order I make, a capacity for the child to spend time with the other parent during school holiday periods on a regular basis.
(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
I have already commented on much of these issues. The mother has indicated that should the child reside with her it is her intention, as her husband returns to work, to work less and spend more time with the children and in those circumstances to also procure some additional child minding assistance from outside sources. I have no concern that the physical needs and intellectual needs of the child could be met by either parent. The father has a track record of pursuing the educational needs of his daughter with apparent success. I am concerned that Mr Gore would not have, on the evidence, a sensitivity to this little girl’s needs and perceptions, particularly her emotional ones.
(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
There is nothing particularly relevant here. The mother is a New Zealander and the father Australian. Whatever order I make the child will have the benefit of both cultures. The mother asserted that her daughter being female is probably better raised by her mother, but I do not accept this as so.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This does not apply.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The matters of concern here have already been adumbrated in this judgment, save that it appears that the mother has not, in any fulsome way, embraced her obligations financially for the support of the child. It seems that payments to the father in fulfilment of the mother’s obligation have been sparse and the responsibility for the financial support of the child has been primarily his.
(j)any family violence involving the child or a member of the child’s family
I have already referred to this above and will not further detail the matters save to say that my conclusion is that Mr Gore, on the evidence before me, demonstrates a propensity for violent action and violent and intemperate language. He has not, it appears, changed that habit. The father conceded with regret an incident some time ago which was at the death throes of a failing relationship which has now ended. He otherwise has not demonstrated any propensity to violence.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is none.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The order that I make will reflect a situation which has existed now for some time and whilst that is certainly not the only matter I have taken into account, I would express the hope that there is an end to proceedings between these parties since it is obvious from the Family Consultant’s report that the present conflict is causing the child pain.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading, and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of the child for the reasons specified herein.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case, I come to the conclusion that I should apply it on a fine margin. The strong weighting factor is that both parents desire it and there is little to encourage communication between them in the history of this matter. Perhaps a need for consultation and agreement on the long term interests of the child will promote that communication in a way which also acts in the best interests of the child.

Section 65DAA

This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
Given the respective places of residence of the mother and the father I cannot consider such a proposal which is practically unworkable, nor can I consider as realistic any proposal for substantial or significant time within the meaning of those terms referred to the in Act. The places of residence of the parents are such that the only realistic order for the child to spend time with each parent is one which operates during the school holidays.
I propose to make such orders.

Relevant Law for consideration in relocation cases

General Principles

The best interests of the child is the paramount consideration.
The best interests of the child is not the sole consideration.
One cannot ignore the interests and desires of parents, but if there is conflict between these considerations priority must be accorded to the child’s welfare and rights but they must be viewed in the context of the circumstances of the parent with whom the child resides.
The issue for this case cannot be separated from the issue of residence and the best interests of the child. The issue of who should be the resident parent is not separate from a consideration of whether a relocation of the child should be permitted. I have come to the conclusion that the best interests of this child are served by her remaining living with her father.
When considering the substantial geographical change involved in cases such as this, one deals with that change as just one of the proposals for the child’s future arrangements, so far as that approach is possible. Any change in residence or retention of current residence will affect adversely the amount of the time that the child can spend with the other parent.
No one factor is dispositive of decisions as to residence of the child in the context of a proposed relocation.
All the issues arising under section 60CC must be considered.

Conclusion

The tasks facing the court are:
a)To identify the competing proposals
b)For each relevant consideration under section 60CC the court should identify the competing proposals and the relevant advantages and disadvantages and
c)Finally, there should be an explanation of why one proposal is preferred over the other having regard to the best interests of the child being the primary but not sole consideration.

In considering a result in this case the Court is not bound by a consideration of the parties’ proposals.
The mother proposes:
a)That the child live in the household formed by herself and her new husband and their child, in New Zealand.
b)She proposes a combination of assistance in the care of the child including help from the step-father and child care providers, as well as her own care on an increasing basis, as she is rendered able to reduce her working hours.
c)She proposes that the child will spend the majority of the school holidays with the father in Australia and otherwise contact him by telephone.
These proposals will afford the child, she says, a relationship with her extended family and with her half-brother.
It will of necessity involve the disruption to the child’s life by her removal from the home in which she has built a strong relationship with her father and a school at which she is progressing well and where she has friends.
On the adverse side it will bring her into close contact with the mother’s new husband who, on the evidence, is not considered an appropriate exemplar for the child.
The mother proposes the cost of the child’s travel to spend time with the father be shared by the parties. It will, like the obverse proposal, limit the contact with the other parent but have the advantage for the child of a more intimate relationship with her half-brother.
The father proposes that the child live with him in his present residence and continue at her present school.
This course will provide a home environment which is familiar to the child and from which she can continue to attend her present school, where she is doing well. She will retain her present friends and her relationship with the father’s extended family.
It seems to me on the evidence that the father is more likely to promote a continuing and close relationship with the mother than the mother is with the father.
There is no evidence that, in his home, his daughter is taught that her mother is disliked and is unworthy. On the evidence, the same cannot be said of the mother’s household.
It is more probable that the father will provide a home in which the child is free to express her feelings and have them validated. He will be more likely to be a good exemplar for the child rather than the mother’s husband who seems to have been unable or unwilling to develop and maintain a relationship with his other children and is prone to violence and intemperate and violent language.
I believe that the father’s home will be a home in which the child will have her intellectual and emotional needs met as well as her physical needs. It is more likely of the two to be a home in which the carer will be focussed on the child and not on a past failed relationship and enmity arising therefrom.
The father’s residence will not be a home in which the child will be required to adapt to an entirely new routine and make new friends.
It will be a home in which the child will be removed from her mother who was her primary attachment figure although it seems clear that she has a strong attachment to the father also and the relationship with the mother will, by reason of her decision to reside in New Zealand, be more limited.
As I see the character and personality of the mother’s new husband, she will live in an environment where there is reasonable hope of her being divorced from much of the parental conflict.
I believe that the father is better able to reassure the child and there is with him, I think, a reason to hope that the child will live in a stress-free environment. It is more likely to be a home where she can be afforded the opportunity of growing up with less stress and greater happiness, and the opportunity of a relationship with both parents which hopefully is rewarding.
Her father is likely to provide a home where the child will have the advantage of being able to maintain a contact with her mother without the guilt engendered by the undisguised antipathy for the father.
Weighing up these matters, and given the whole of the evidence in the case, I am not persuaded to the view that the advantages to the child of being able to live with her mother in New Zealand outweigh the disadvantages to her in being removed from her current environment.
Those advantages I see as being both long and short term.
I note that the child has been already been distressed at the current situation and, in the circumstances, I believe it is important that the child be informed that the decision is mine and neither that of her mother and father, both of whom I am sure she loves, and whom I am sure love her. It should be explained to her in language she can understand, that I have come to this conclusion because I think it best for her and the best way in which she can maintain a good relationship with each of her parents. I accordingly, and so this message can be delivered in a child centric way, propose to make a direction that the child attend upon the Family Consultant within the next 14 days for that to be explained to her.
It is hoped by the Court that the child will be able, as a result of this decision, to express her feelings for each of her parents in a free and unfettered way.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one-hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 13 November 2008

[2008] FamCA 999

13 November 2008

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