Hoffman and Fairfield
[2020] FamCA 193
•19 March 2020
FAMILY COURT OF AUSTRALIA
| HOFFMAN & FAIRFIELD | [2020] FamCA 193 |
| FAMILY LAW – CHILDREN – International Relocation – Where the mother seeks to relocate with the child to the United Kingdom – Where the father opposes the order and seeks equal shared parental responsibility – Where the child has a strong attachment to both parents – Consideration of section 60CC – Where the Court finds that orders for the child to remain in Australia to be in her best interest. |
| Family Law Act 1975 ss 60B, 60CC, 61DA, 65DAA Surveillance Device Act 2007 (NSW) |
| MRR v GR (2010) 263 ALR 368 Taylor v Barker (2008) 37 FamLR 461 |
| APPLICANT: | Mr Hoffman |
| RESPONDENT: | Ms Fairfield |
| INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
| FILE NUMBER: | SYC | 962 | of | 2016 |
| DATE DELIVERED: | 19 March 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 11-15 November 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lioumis |
| SOLICITOR FOR THE APPLICANT: | Horton Rhodes |
| COUNSEL FOR THE RESPONDENT: | Mr Levet with Mr Seow |
| THE RESPONDENT: | Ms Fairfield |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Cook |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Delaney Lawyers |
Orders
All existing parenting orders in relation to the child X, born on … 2014 ("X") are discharged.
2.1. The parties have equal shared parental responsibility for X.
2.2.Each of the parties has sole parental responsibility for making decisions about X's day-to-day care when she is living with him or her.
X lives with the mother at all times other than periods when she is in the care of the father pursuant to these Orders.
Until term 3 2020 X spend time with the father as follows:
4.1.from the conclusion of school or 3.00 pm on Tuesday until the commencement of school on Wednesday in each week and
4.2.each alternate weekend from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday
4.3.from 4.00 pm on 15 April until 4.00 pm on 19 April
4.4.for the purposes of implementation of Order 4:
4.4.1.the father collect X from school or the mother's residence and return her to school if a school day and
4.4.2.if a non-school day, the mother collect X from the father's home at the conclusion of these periods of time
4.4.3.in April 2020 school holidays the father collect X from the mother's residence on 15 April and the mother collect her from the father's home on 19 April
4.5. upon provision of 42 days' notice:
4.5.1.the mother is at liberty to travel with X to the United Kingdom during the June/July 2020 for a period of 25 days
4.5.2.if the mother so travels to the United Kingdom with X, the child spend makeup time with the father from the conclusion of school on Thursday 18 June 2020 until the commencement of school on the last weekend of the school term and on the first weekend of the next school term
4.6.if the mother does not elect to travel to the United Kingdom with X in June/July 2020, she spend time with the father from 4.00 pm on 5 July 2020 until 4.00 pm on 12 July 2020, with the father to collect the child on 5 July and the mother to collect her on 12 July.
From the commencement of school term 3 in 2020, X spend time with the father as follows:
5.1.from the conclusion of school on Tuesday until the commencement of school on Wednesday in week 1
5.2.from the conclusion of school on Thursday until the commencement of school on Monday in week 2
5.3.the father will collect X from and return her to school for the purposes of implementation of Order 5.
From the commencement of school term 1 in 2021 X spend holiday time with the father as follows:
6.1.for half of the Terms 1, 2 and 3 holidays, from 10.00 am on the first day of the holidays until 3.00 pm on the day being the midpoint of the holidays in even-numbered years and from 3.00 pm on the midpoint day until 12.00 noon on the last day of the holidays
6.2.for the period 9 January at 10 am until 12.00 noon on the last day of the holidays in odd-numbered years and from 10 am on the first day of holidays until 9 January at 10 am on even-numbered years.
6.3.the parties effect changeovers by the father collecting the child from the mother's residence at the commencement of these periods and the mother collecting her from the father's home at the conclusion thereof
6.4.6.4.1. from 9.00 am on 23 December until 12.00 noon on 25 December 2020 and in each alternate year thereafter
6.4.2.from 12.00 noon on 25 December until 12.00 noon on 29 December in 2021 and each alternate year thereafter
6.4.3. from 9.00 am on Father's Day until 9.00 am on the following day
6.4.4.from 12.00 noon on Easter Sunday until the commencement of school or 9.00 am on the following Tuesday in even-numbered years and from the conclusion of school or 3.00 pm on Easter Thursday until 12.00 noon on Easter Sunday in
odd-numbered years.
6.5.the parties implement changeovers, where necessary, by the father collecting the child from the mother's residence at the commencement of these periods and the mother collecting her from the father's home at the conclusion thereof
X spend time with the mother from 9.00 am on Mother's Day until 9.00 am on the following day.
X spend time on her birthday with the parent who does not have her care from the conclusion of school until 6.00 pm on a school day and from 12.00 noon until 6.00 pm on a non-school day.
The mother is at liberty to travel outside of the Commonwealth of Australia for a total of four weeks per calendar year on the following conditions:
9.1.provision of no less than 30 days written notice except in the case of an emergency
9.2.provision of copies of return airline tickets, an itinerary, accommodation details and travel insurance certificate
9.3.travel to non-Hague Convention countries is not permitted without the written consent of the father.
The father is permitted to travel with the child outside of the Commonwealth of Australia, on the conditions set out in Order 9, as follows:
10.1.for two periods each of seven days in 2020
10.2.for a total of three weeks in 2021 with no such period to exceed 10 days in length
10.3.for a total of three weeks in 2022 with no such period to exceed 14 days in length
10.4.for a total of four weeks in 2023 with no such period to exceed 17 days in length
10.5.on identical terms to Order 9 from 2024.
Unless provided otherwise in these Orders, changeovers will be implemented by:
11.1.the father collecting X from and returning her to school wherever possible or
11.2.the father collecting X from the residence of the mother at the commencement of time and the mother collecting the child from the home of the father at the conclusion thereof.
Each of the parties inform the other as soon as reasonably practicable of any injury or illness suffered by X, which requires medical treatment, while she is in the care of that parent.
The parties are at liberty to vary the provisions of these Orders by agreement in writing from time to time.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoffman & Fairfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 962 of 2016
| Mr Hoffman |
Applicant
And
| Ms Fairfield |
Respondent
And
| Delaney Lawyers |
Independent Children's Lawyer
REASONS FOR JUDGMENT
The proceedings
Mr Hoffman and Ms Fairfield are the parents of X, who was born in 2014 and is presently five years of age. These proceedings concern parenting orders in relation to X. A significant issue in the proceedings was the mother's proposal to relocate with X to the United Kingdom, which was resisted strongly by the father.
The applicant father sought orders, in the event that there is no relocation to the United Kingdom, which may be summarised as follows:
1. the parties have equal shared parental responsibility for the child
2.each of the parties have sole parental responsibility for day-to-day decisions in relation to the child's care when she lives with him or her
3.the child live with the mother when she is not spending time with the father
4.changeovers take place at the child's school, wherever possible, and otherwise at the residences of the parties
5.from January 2020 until August 2020 the child spend time with the father for four nights per fortnight; for four nights in the April 2020 school holidays and five nights in the July 2020 school holidays
6.from March 2020 the child spend time with the father for four nights per fortnight
7.the mother is permitted to travel to the United Kingdom with the child during the June/July 2020 school holidays, subject to make-up time with the father
8.in Term 3 2020 the child spend time with the father for six nights per fortnight and for half of the school holidays
9.from the commencement of the 2021 school year, the child spend time with the father for six nights per fortnight and for half of all school holidays
10.the child spend time with each parent on special occasions
11.the mother is permitted to travel outside Australia with the child for four weeks per year
12.the father is permitted to travel outside Australia with the child for gradually increasing periods and on the same conditions as the mother from 2023.
In the event the mother is permitted to relocated to the United Kingdom with the child, the father proposed the following orders:
1. the parties have equal shared parental responsibility for the child
2.the child live with the mother at all times other than when she spends time with the father
3.the mother keep the father advised at all times of the child's health care information
4.the child spend time with the father in Australia in December/January each year; in Australia during the Easter school holidays each year; in the United Kingdom during each summer school holiday and on one occasion for 14 days and nights in the United Kingdom each year
5.the child and the father have video communication twice per week.
The respondent mother sought orders which may be summarised as follows:
1. the mother have sole parental responsibility for the child
2. the mother be permitted to relocate the residence of the child to the United Kingdom
3. the child live with the mother
4. the child spend time with the father in the United Kingdom as agreed by the parties
5.the child spend time with the father in Sydney for two periods each of four night during the April 2020 school holidays and for similar periods in the United Kingdom in August 2020 and December 2020/January 2021
6.the child spend time with the father for two periods each of four nights in Sydney in April 2021 and for an eight-night block in August 2021 in the United Kingdom
7.the child spend the Christmas school holidays with the mother in the United Kingdom in even-numbered years and a four-night block period with the father
8.the child spend time with the father for a ten-night period in Sydney during the Christmas school holidays in odd-numbered years
9.the child and the father communicate by Skype.
The mother proposed the following orders, in the event that she is not permitted to relocate with the child to the United Kingdom:
1. the mother have sole parental responsibility for the child
2. the child live with the mother
3.the child spend time with the father from Friday afternoon to Monday morning in week one and on Thursday in week two for three months
4.thereafter the child spend time with the father from Friday afternoon until Monday morning in week one and from Thursday afternoon till Friday morning in week two
5.the child spend time with the father for four nights during the school holidays in 2020; five nights in 2021 and thereafter for seven nights
6.the child spend time with the father on special occasions
7.changeovers take place at the child's school where possible and otherwise at the residences of the parties
8.the mother be permitted to travel overseas with the child for four weeks during the Christmas school holidays and for 25 days in the June/July holidays in even-numbered years and for two periods each of three weeks in odd-numbered years
9.the mother be permitted to travel overseas with the child in the event that a maternal family member suffers a serious medical situation.
On either scenario, the mother sought an order that she be permitted to change the name of the child to X Fairfield-Hoffman. This proposal was resisted by the father and the ICL was silent as to this issue.
The ICL made no specific proposals for parenting orders during final submissions. Counsel for the ICL indicated that he "was in a severe quandary" and that "both outcomes have up sides and down sides".
Background
The father was born in Australia in 1970 and is presently 49 years of age. The mother was born in the United Kingdom in 1976 and is currently aged 43 years. The mother came to Australia in 2010 and acquired permanent residence status in this country in 2013.
The parties met in July 2012 and began to spend time together in the father's home in September 2012. The father contended that the parties lived together as a couple from November 2013 until August 2015, when they separated under one roof. The mother maintained that they separated finally in February 2016, when she and the child moved into separate accommodation.
In June 2016 the child spent time with the father from 7.30 am until 4.30 pm each Wednesday and from 9.00 am on Saturday until 9.00 am on Sunday. From November 2016 this time increased to 7.30 am until 4.30 pm each Wednesday and each alternate weekend from 9.00 am on Saturday until 9.00 am on Sunday and every other weekend from 5.00 pm on Friday until 5.00 pm on Saturday.
On 24 September 2018 orders were made which bifurcated the parenting and property aspects of the proceedings. Orders were also made for expedition of the parenting proceedings. The single expert report of Dr C was released on 23 May 2018.
The parenting proceedings were listed for trial in July 2019 but that hearing was vacated on 4 July 2019, with directions being made for the filing of consolidated affidavits. The proceedings were then listed for a hearing to commence on 23 September 2019 but that fixture was vacated when the mother failed to file her trial affidavit. The trial of the parenting proceedings finally proceeded in late November 2019.
On 22 November 2019 interim parenting orders were made by consent, which provided that the child spend time with the father as follows:
1.from 11.00 am on 25 December 2019 until 11.00 am on 28 December 2019
2.from 10.00 am on 24 January 2020 until 10.00 am on 27 January 2020
3.from 4.30 pm on 31 December 2019 until 6.30 pm on 1 January 2020
4.from 5.00 pm on 3 January 2020 until 9.00 am on 6 January 2020
5.between 6 January 2020 and the commencement of the school term, from 3.30 pm on Tuesday until 6.00 pm on Wednesday in week 1 and from 9.00 am until 6.00 pm on Wednesday and from 5.00 pm Friday until 9.00 am Monday in week 2
6.from the commencement of the school term, from Tuesday afternoon until Wednesday morning in week 1 and from Friday afternoon until Monday morning in week 2.
The father is a health professional who works in private practice and as a staff specialist at the N Centre. He is required to work a hospital shift at 5.00 pm every Wednesday.
The mother is an allied health worker in part-time employment. The mother said that she hopes to increase her hours of employment if she remains in Australia.
The mother alleged that the father engaged in "abusive parenting" of the child and subjected her to family violence. In essence the mother alleged that the father's violence toward her took the form of shouting, verbal abuse, derogatory comments about her and throwing of objects in her direction. The father largely denied these allegations but, as appears below, audio recordings admitted into evidence over his objection provided some corroboration for the mother's complaints. The mother alleged also that the father shouted at and abused her in the presence of the child. She alleged further that the father shouted at the child.
In 1997 the father faced charges of common assault and trespass as a result of incidents which occurred at the end of "a volatile relationship". He gave this account of these events:
223.In 1997, I was charged with common assault and trespass. At the time, I had recently been in a volatile relationship with a woman who was prone to overdosing on drugs. When she re-partnered, I became jealous, dressed up in commando gear and subsequently scaled a 10m drainpipe and entered her apartment with a knife. Our relationship was impulsive and when she was my partner, she had previously informed me that she would marry anyone who scaled a nearby 10m tree to fetch an ice-cream tub which was lodged at the tree's top. At the time of my offence and in that context, I thought of my act as a chivalrous gesture but appreciate the ridiculousness of what I did. I pleaded guilty and received a “Section 10” in relation these [sic] charges. I immediately regretted my actions and appreciated that it was a stupid act and would have and did cause distress.
Since the separation of the parties the mother and the child have travelled to the United Kingdom in July/August 2016, December 2018/January 2019 and July/August 2019. On each of these three occasions the father contributed $750 or $1,000 toward the travel costs of the mother and the child.
The evidence and witnesses
The applicant father relied on the following affidavits:
1. Mr Hoffman (the father) sworn 21 August 2019
2. Mr D (brother of the father) sworn 21 August 2019
3.Mr F (treating psychiatrist of the father) sworn on 24 October 2019.
All of these witnesses were cross-examined by counsel for the mother and the ICL.
The respondent mother relied upon the following affidavits:
1. Ms Fairfield (the mother) sworn on 18 September 2019
2.Ms G (former nanny of the child) sworn on 18 September 2018
3. Ms J (former tenant of the parties) sworn on 21 September 2018
4. Ms B (the maternal grandmother) sworn on 8 September 2019
5.Dr H (alleged treating psychiatrist of the mother) sworn on 8 October 2019.
Ms G and Ms J were not required for cross-examination. Ms Fairfield was cross-examined briefly via telephone from the United Kingdom. Dr H was not required for cross-examination after I rejected most of his report due to, inter alia, lack of compliance with Rule 15.41 of the Family Law Rules 2004.
Dr H was engaged originally as a therapist for the parties jointly to assist them with parenting arrangements. The father refused to continue this process from February 2017 and the mother then attended appointments alone or, on occasion, with the child.
Dr H stated in his report:
10.I have not taken on the role of Ms Fairfield's treating psychiatrist in terms of her own mental health, nor has Ms Fairfield asked me to do so. Ms Fairfield has continued to consult with her own treating general practitioner and psychiatrist, in that regard ...
In my view, this statement alone was sufficient to place the evidence of Dr H beyond the scope of material permissible pursuant to Rule 15.41. It was abundantly clear from the body of the report that the opinions expressed by Dr H well exceeded the range permitted by Rule 15.41. For example, Dr H expressed a view as to "the benefits of the proposed relocation to the United Kingdom".
For these reasons I admitted into evidence only paragraphs 141, 142, 143 and 144 of the report of Dr H. These paragraphs appeared under the heading "clinical observations of Ms Fairfield's personality functioning" and contained no reference to any material obtained by Dr H during therapy sessions which included the father.
Counsel for the father objected to the admission of audio recordings of arguments between the parties on 18 July 2015, 23 January 2016 and 14 February 2016. These recordings were made by the mother without the knowledge or consent of the father and thus breached the provisions of the Surveillance Devices Act 2007 (NSW).
I admitted these recordings into evidence pursuant to the provisions of Division 12A of the Family Law Act, subject to weight, in the exercise of my discretion. As appears below, these recordings demonstrate that the father directed obscene and abusive language at the mother on at least these occasions.
I am conscious, however, that these altercations occurred in close proximity to the parties' final separation and in a situation of heightened stress. Additionally, the most recent recording was made four years ago and thus it cannot be assumed that this material represents their current style of interaction.
Approach to these proceedings
In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8]Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9]Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13]Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
In Taylor v Barker (2008) 37 FamLR 461 the Full Court (Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:
(i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:
U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36; Bolitho v Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458, applied.
(ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s.60CC matters; however, such a proposal now also needs to be considered in the context of s.5DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s.60CC(1) provides that in determining what is in the child’s best interests, the court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
(v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s.65DAA(5). A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland. This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.
(vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
The best interests of X: Section 60CC considerations
Section 60CC(2): Primary considerations
... (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The proposals of the parties suggest that they each consider that the child will benefit from an ongoing meaningful relationship with both of her parents. It is difficult to reconcile the mother's contention that the child has been subject to "abusive parenting" by the father with her proposal that she spends substantial periods of overnight time in his care. Similarly it is difficult to reconcile this complaint of the mother with her consent to the interim parenting orders of 22 November 2019. These orders provided that the child spend four nights per fortnight in the unsupervised care of the father.
Dr C opined that he "did not regard it as likely that X would be placed at a risk of physical or psychological abuse by either parent." He noted that the mother alleged that X has been placed at risk in the father's care but opined "this assessment did not identify evidence beyond the mother's allegations to support such a view."
Dr C reported favourably on the child's interactions with each of her parents. He opined as follows:
125.X was observed to have numerous strengths. She spoke in an enthusiastic manner about her life experience with each of her parents. She disclosed to her father a stressful interaction with a peer in a manner consistent within the range of normal experience. Both parents responded in a thoughtful and reassuring manner. This was inconsistent with the father's allegations that the mother was excessively anxious in her parenting. Such observations did not support the mother's assertion that X had been exposed to angry and neglectful parenting while in her father's care.
For these reasons, I conclude that there is no need to protect the child from physical or psychological harm while in the care of either parent. For the purposes of section 60CC(2)(b), I am not satisfied that the evidence established a need to protect the child from exposure to family violence.
Regrettably, the child has been exposed to a dysfunctional co-parenting relationship, which Dr C described in the following terms:
129.Both their first couple therapist, Ms K, and the current therapist, Mr M, identified a prominent approach-avoidance couple dynamic. It was thus probable that this had been intractable, despite assertive therapeutic intervention for the parents individually and as a couple. This was most concerning. The intransigence of this dynamic highlighted the incompatibility between the parents' personality styles. Dr H's detailed correspondence highlighted the longstanding adversarial nature of the parental interaction, which had been further exacerbated by the current adversarial Family Court proceedings. This had fuelled the mother's desire to return to the UK, which in turn amplified the father's anxiety that he would be excluded from his much-loved daughter's life. When the mother minimised his role, he responded in a defensive and critical manner which in turn amplified her reactivity as she perceived him to be angry and controlling. The father magnified the importance of his engagement in shared activities, such as swimming, given the emotional deprivation experienced as a child.
Section 60CC(3) considerations
I will refer only to those considerations set out in section 60CC(3) which have relevance to the present proceedings.
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
X is five years old and, accordingly, any views which she expressed as to parenting arrangements carry little weight.
Section 60CC(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)
Dr C assessed that the child has a positive and loving relationship with each of her parents. He opined as follows:
124.X presented as a bright and emotionally sophisticated three-and-a-half-year-old girl, consistent with the account of both her parents. She was identified to have a secure primary attachment with her mother and a secure secondary attachment with her father. Numerous delightful interactions were observed between X and her mother and father during an extended interview. Their interactions were monitored whilst in the room with X and each of her parents via a Skype connection. These observations were consistent with X's stated experience of positive and loving connections with each of her parents. This was both reassuring and surprising, given the longstanding conflictual parental relationship.
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
Each of the parties has taken all available opportunities to participate in making major long-term decisions in relation to the child. The father has taken all opportunities afforded to him by the mother to spend time with the child. He has been eager at all times since the separation to increase the child's time with him and, largely, the mother has resisted these proposals.
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
The father has paid Child Support as assessed and contributed to the cost of travel by the mother and X to the United Kingdom. Pursuant to Orders made in September 2019, the father will meet the cost of private school fees for the child.
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
The mother's proposal for a relocation to the United Kingdom will result in major changes to the child's life. The nature of her relationship with her father will likely change for the worse, such that he becomes "like a kindly uncle" in the words of Dr C.
Notably, the mother agreed in cross-examination by counsel for the father that "relocation is not optimal". She conceded that the child "enjoys her time with the cousins and paternal family. She said also "I am sure X would miss her father if there is a relocation" and "I am sure she would feel lost on Father's Day and her birthday".
In his oral evidence Dr C said words to the effect that:
The mother's holiday time proposal would cause difficulties for X in that she would not have an attachment relationship with the father, it would be like a kindly uncle. It would be a loss for her and there would be potential for damage to the relationship with the father.
Dr C said also words to the effect:
If there was a relocation with twice weekly Skype, I would be surprised if there more than two face-to-face contacts per year. That would be like a kindly uncle but not a meaningful parental relationship.
Dr C expressed these opinions in his report:
131.The importance of X's relationship with both her parents was clearly identified in this assessment. Dr H had previously opined that the mother's mental health would improve in the context of her proposed relocation to the UK. I concur with this view. She readily identified the longstanding conflictual nature of her relationship with the father as the source of ongoing stress. She had the opportunity to source social support from family and longstanding friendships in the UK. Despite assertive psychological and psychiatric intervention, the stress associated with remaining in Australia against her wishes was likely to persist. Dr H had considered that this would impact upon X's psychological and emotional development. Although this may be the case, X was currently progressing well and had been protected from her mother's emotional vulnerability and the chronic parental conflict. The proposed relocation to the UK would necessarily result in the breakdown of the close and loving relationship which X shared with her father. This would be a source of distress and may impact on her subsequent emotional and personality development. There is no doubt that the father would be acutely distressed by the breakdown of this loving relationship. His early developmental exposure to separation and loss rendered him vulnerable to adjustment issues.
132.Thus, the proposed relocation was likely to improve the mother's mental health and diminish that of her father. X was identified to be competent and resilient child who was likely to cope with the disruption of relocating to the UK. She was likely to have her developmental needs adequately met by her mother and her social network in the UK. That said, the loss of her father's role in her life would remain a significant loss into the future.
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
A relocation to the United Kingdom inevitably would create difficulties of practicality and expense in the child spending time with the father. Realistically, the mother's capacity to contribute to the cost of travel between the United Kingdom and Australia cannot be predicted with any certainty.
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
Mr F diagnosed that the father suffers from an adjustment disorder. Dr C spoke to Mr F in the course of preparation of his single expert report in relation to his diagnosis of the father. Dr C reported that Mr F held the view that the father has "mild narcissistic traits but not a personality disorder" and that he "recognised that [the father] could be perceived as narcissistic and controlling." In his brief oral evidence Mr F said "I am certain that he does not have a personality disorder."
Mr F described the impact upon the father of the ongoing litigation as follows:
The prolonged struggle for increased access to his daughter and the threat of her relocation to the United Kingdom has impacted [the father] by causing anxiety, depressive feelings and severe psychological stress impacting his daily functioning.
Mr F proffered this prognosis in relation to the father:
[The father’s] prognosis is dependent upon the alleviation of the prolonged stress due to the threat of relocation of his daughter: should it be resolved that she remains in Australia and he continues to have further access, my prognosis is favourable. Should the relocation proceed, his prognosis is guarded with a propensity to severe depression.
In his oral evidence Dr C said that he did not form the view that the father should be diagnosed with a personality disorder. He explained that the father's "frustration goes with narcissism because there is a sense of entitlement, a sense that one should be held in high esteem and there is frustration if that is not forthcoming from the other party". Dr C opined that frustration can lead to outbursts of anger, particularly at times of "additional stress".
Dr C conferred with Ms L, a clinical psychologist in the course of preparation of his report. The mother consulted with Ms L between February 2016 and May 2017.
Dr C reported as follows in relation to his conference with Ms L:
115.Ms L had formed the view that [the mother] had felt overwhelmed by [the father’s] constant criticism and undermining behaviour. [The mother] had sought validation as she struggled as [the father’s] changed the rules and goal posts. [The mother] had not initially been motivated to relocate to the United Kingdom. This had been a response to her challenging personal and financial circumstances. Ms L shared [the mother’s] concerns regarding the long-term negative impact on X of exposure to the parental conflict. Ms L viewed co-parenting in such circumstances as "impossible". She referred to [the father’s] intervention when Ms Fairfield had planned holidays with X to travel to the UK."
When taken to this passage of his report by counsel for the mother in
cross-examination, Dr C said:
This is consistent with my observation of the dynamics between the mother and the father but I was comforted by the report of Dr H in relation to mature coping mechanisms et cetera. There was evidence that [the mother] was being effectively supported.
Dr C here referred to the four paragraphs of the report of Dr H which survived objection on behalf of the father. Dr H reported as follows:
141.I have observed [the mother] to have strong personality functioning. I have outlined above [the mother’s] demonstrated strong reflective functioning, self/other boundaries, maintenance of parenting and occupational roles, and adaptive coping during very trying circumstances in recent years.
142.[The mother] uses mature psychological defences such as sublimation, suppression, anticipation, altruism and humour. I have not observed her to make recurrent use of immature defences such as externalising, projecting, splitting or idealising/devaluing. Where [the mother] is tempted towards a more immature response, she shows an ironic awareness of the same, and mostly corrects herself, as in the example above where she is tempted to say "no" to [the father] in a context where he has done the same to her in the past.
...
144.Whilst our focus in therapy has been in the domain of parenting, I observe that in other domains of functioning, [the mother] has considered and has made sensible lifestyle choices in keeping with her own values and circumstances. Examples in recent years her decision to change workplaces/work arrangements, and her decision to move X's day care close to home so that she could utilise the same more flexibly. I observe that where [the mother] has had vulnerabilities, she has sought professional assistance, for example in domains such as her depression and ADHD, and appears to have made good use of that professional assistance.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parties is a devoted parent to their child. Regrettably, their dysfunctional interpersonal relationship has prevented them from co-operating with each other on a consistent basis.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
I do not consider that family violence plays a role in the determination of these proceedings. As noted, Dr C identified no basis for concern that the child requires protection from abuse in the care of either parent.
I accept that the father has conducted himself in an arrogant and demeaning manner toward the mother on occasions. For example, in the audio recording of 23 January 2016 the father said to the mother "If you answer in the affirmative, I suggest that you start taking antipsychotics."
In a text message sent to the mother on 12 November 2016 the father stated inter alia:
"As a result of your breach of Dr H's recommendations, it has become apparent that your personality disorder is impacting on my relationship with X, your ability to facilitate X's interests and your ability to mother. Should you breach Dr H's recommendations on one further one further occasion, I will be presenting this argument (with evidence from Dr H) to Judge Monaghan."
Dr C agreed in cross-examination that this text message "could be considered abusive" and that "it is clearly demeaning and undermining of [the mother]". Dr C expressed a similar view in relation to the audio recording. He said in cross-examination words to the effect:
"The father responded to the mother in a sarcastic, demeaning and undermining manner in the recording. It seemed to me that he was responding by expressing his frustration and was contemptuous of the mother's position and meant it as such."
In his affidavit the father expressed "regret" that he had stated that the mother has a personality disorder in the text message of 12 November 2016. He blamed his "frustration" with a perceived lack of co-operation by the mother in relation to arrangements for swimming lessons with him, as had been supported by Dr H. It may well be that the father expressed this "regret" for tactical reasons.
Both Ms J and Ms G described demeaning and aggressive conduct and critical comments directed at the mother by the father. Ms G was employed as a nanny for the child between 31 October 2015 to January 2016. Her observations thus were made in the period leading to the separation of the parties. Ms J lived in the home of the parties from 5 September 2015 until 3 November 2015, thus her observations also occurred toward the end of the relationship.
Parental responsibility
In circumstances where the mother and the child remain in Australia, the ICL proposed that the parties have equal shared parental responsibility. In my view, the sole reason why the mother should have sole parental responsibility would be the dysfunctional relationship between the parties. Regrettably, Dr C opined that there is no likelihood of an improvement and expressed the view that "it will remain stuck, however the types of issues will change over time."
On the other hand, the father will play a significant role in the child's life if she remains in Australia. On the proposals of both parties, she will spend significant time in the care of the father and he will pay her private school fees. I consider that, as the child matures, she may find it strange and confusing that a highly involved father is unable to participate in major decisions in her life.
If the mother and the child relocate to the United Kingdom, it would be difficult in a practical sense for the parties to share parental responsibility. Distance would mean that the father would be unable to be involved in the child's
day-to-day life and share her interests and activities. In the poignant words of Dr C, the father would most likely become "a kindly uncle" rather than a parent who has a meaningful relationship with the child.
Conclusion
I agree with the ICL that "there are upsides and downsides to both outcomes" in these proceedings. After the separation, the mother's intentions initially were to remain in Australia and involve the father in the child's life to a significant extent. She has now altered her position and adopted a stance which was described by Dr C as "the ultimate avoidance" in her relocation proposal.
Mr F gave clear and cogent evidence that the father would be at real risk of severe depression in the event of a relocation. In my view it is reasonable to infer that his parenting capacity would be compromised if he developed such a degree of depression. In that event, both distance and his mental health would compromise the child's opportunity for a meaningful relationship with her father.
On the basis of the evidence of Dr H, I consider it likely that the mother would seek appropriate professional assistance and support if she and the child remain in Australia. I take into account the evidence of Dr H that the mother possesses "mature psychological defences" and in the past "has made sensible lifestyle choices". The mother gave evidence that she would increase her hours of employment if she remains in Australia. I regard that plan as evidence of the personality strengths which Dr H identified in the mother.
Hopefully, both parties will settle into a routine and engage in conflict less frequently at the conclusion of these proceedings. Mr F indicated that a major source of stress and anxiety for the father would be removed, in the event that there is no relocation. Dr C expressed some optimism that the parties will "settle into complying with orders after the proceedings are completed."
The father offered no opposition to the mother and the child travelling the United Kingdom on a regular basis. As noted, he has provided financial assistance for that purpose in the past. No doubt such assistance with the cost of travel in the future would assist in the parties' separated parenting relationship.
I agree with counsel for the ICL that "there are upsides and downsides to both outcomes" of these proceedings. It seems to me that the outcome which offers to the child the best prospects of a meaningful relationship with each of her parents is that she remains in Australia.
I appreciate that the mother probably will not function optimally on that scenario, at least until she puts in place appropriate professional and personal support mechanisms. I accept that evidence of Dr H as to her personality strengths and “mature psychological defences". It seems to me to be more probable than not that the mother will adapt to an ongoing life in Australia with the child. On the other hand, the evidence indicated that the father would not be likely to adjust to a relocation and continue to fulfil his role as a supportive parent to the child.
I will thus not accede to the mother's application that the child relocate with her to the United Kingdom. For reasons set out above, I will not accede to her application that she have sole parental responsibility for the child in these circumstances.
As there will be an order for equal shared parental responsibility I am required to consider whether it is in the child's best interests, and reasonably practicable, that she spend equal or substantial and significant time in the care of each of her mother and her father. Neither party proposed an equal time arrangement and I will give no further consideration to such an outcome. In my view, the proposals of each of the parties would fall within the parameters of "substantial and significant time" for the child with the father.
I see no justification, from the point of view of the best interests of the child, for a change in her surname. The mother deposed that she asked the father to consent to a hyphenated surname on 9 August 2019 but gave no evidence of any previous request. The child has now commenced her formal education and, presumably, was enrolled with the name which appears on her birth certificate. It may well be confusing for her, if her name suddenly is changed within her school community and friendship group.
In terms of arrangements for the child to spend time with the father, I am not bound by the proposals of either party. Accordingly, I will make orders which appear to me to best to serve the interests of the child.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 19 March 2020.
Associate:
Date: 19 March 2020
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