Hulk and Diable

FAMILY COURT OF AUSTRALIA

HULK & DIABLE

[2009] FamCA 1317

FAMILY LAW – CHILDREN – whether it is in the best interests of the child to live with the mother interstate – relocation issues – periods of time and communication that a parent has with a child

Family Law Act 1975 (Cth)

U & U (2002) FLC 93-112

APPLICANT:

Mr Hulk

RESPONDENT:

Ms Diable

INDEPENDENT CHILDREN'S LAWYER:

CBD Legal

FILE NUMBER:

SYC

8883

2007

DATE DELIVERED:

24 December 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:

21, 22 & 23 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr M Auld
SOLICITOR FOR THE APPLICANT:	Grays Legal
RESPONDENT IN PERSON:	Ms Diable
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:	Mr Lee
SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:	CBD Legal

Orders

That by consent the mother and father have equal shared parental responsibility for … born … July 1997, known as … (“the child”) and the parties shall note the obligations created by the orders made this day and the consequences which may follow if a party or person contravenes any such orders.
That the child live with the father subject to the following orders in relation to periods of time that the child spend in the care of the mother.
That in the event of the mother commencing to live in the Central Coast area in the State of New South Wales in a residential area which enables the child to attend R High School on or before 24 December 2010 the child shall live with the mother for each alternate week in both school term and school holiday periods that follow the end of each school term or such other period or periods as the parties may agree upon from time to time.
That in the event of the mother choosing not to relocate to the particular area referred to in Order 3 the parties shall ensure that the child spends the following periods in the care of the mother:
(a)During school term for such school days in respect of which the mother provides the father with seven (7) days written notice PROVIDED THAT the mother ensures the child is taken to and from her school and attends all sport and extracurricular activities in which the child is either then engaged or enrolled to participate.
(b)During weekends including long weekends in the Central Coast or elsewhere in the State of New South Wales PROVIDED THAT the mother ensures the child participates in all sport and extracurricular activities for which the child has a commitment unless otherwise agreed between the parties subject to the mother providing the father with seven (7) days’ prior written notice.
(c)During weekends including long weekends in the State of Queensland with the child's return fare to be met by the mother or alternatively for such periods or on such other conditions as the parties may agree upon.
(d)During end of school term holiday periods for half of each school holiday period as the parties may agree upon or failing agreement for the first half in each odd numbered year and the second half in each even numbered year and the child's return fare to and from the State of Queensland if applicable shall be met by the parties equally and in that regard the mother shall provide the father with 28 days’ written notice including details of all flight and travel arrangements made by her for the benefit of the child.
(e)General periods in or out of school term either the mother have the care of the child for such substituted or alternative or other periods as the parties may agree upon from time to time.
That the child live with the father on Father’s Day in the event that it falls on a weekend that would otherwise be spent with the mother from 9.00 am until 6.00 pm or until such later time that the child is otherwise due to return to the care of the mother.
That in the event of Mother’s Day falling on a weekend in which the child would otherwise be in the care of the father then the child may spend Mother’s Day with the mother from 9.00 am until 6.00 pm or such later time that the child is due to return to the care of the father PROVIDED THAT the mother gives the father seven days’ written notice.
That the parties ensure the child is enrolled in and attends R High School or such other school as the parties may agree upon in writing, commencing with first school term 2010.
That the father promptly authorise and request the principal of R High School or any other school attended by the child to provide to the mother at her request and expense with a copy of all school reports, notices, correspondence and any other documents including school photographs in relation to the child.
That in the event of the child suffering a serious illness or injury whilst in the care of either of the parties then the party who has the care of the child at that time shall inform the other party as soon as possible of the detail of such illness or injury and the name, address and telephone number of the relevant hospital or medical practitioner and also provide such hospital or medical practitioner with authority to provide all relevant information to the other party.
That each of the parties shall ensure that the other is provided with the detail of his or her current mobile telephone number and any landline number and shall facilitate and encourage the child to have telephone conversations with the party who does not have care of the child at the relevant time and such telephone calls may take place at all reasonable times and each of the parties shall ensure there is in operation at all times a message bank or return call system so that a message may be left for the child following a missed call and the party who has the care of the child shall ensure that the child receives that message promptly and is encouraged to return the call.
That each of the parties is restrained from discussing or referring to any of the evidence given by either of them or the family consultant with or in the hearing of the child which shall include the family reports and any other written or oral evidence.
That the father or his solicitor make arrangements as soon as possible with the Manager, Child Disputes Services in the Sydney Registry of the Family Court of Australia for Ms B, Family Consultant to interview the child in order to explain to her the orders made and reasons for judgment delivered this day.
That all documents produced on subpoena may be returned to the person who produced the same.
That subject to the orders made this day all outstanding applications are dismissed.
That the proceedings be removed from the Active Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Hulk & Diable is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC8883 of 2007

MR HULK

Applicant

And

MS DIABLE

Respondent

REASONS FOR JUDGMENT

Introduction

The contested proceedings before me are proceedings in which each of the applicant (who for convenience I shall refer to as "the father") and the respondent (who for convenience I shall refer to as "the mother") have sought parenting orders in relation to their youngest child A (who for convenience in this judgment will be referred to as "the child").
The parenting orders sought by each of the parties is that the child forthwith live with the father in terms of his case or the mother in terms of her case and that the child then have periods of time with the other party, both during school term and in school holiday periods, subject to the issue of whether or not the mother is prepared to relocate to the Central Coast in the State of New South Wales where the father and the child live or, alternatively that the father is prepared to relocate to the State of Queensland where the mother lives near the parties’ eldest child, S Hulk.
The issue of equal shared parental responsibility, of which there is a presumption pursuant to s.61DA of the Act, is not a matter of controversy. Each of the parties, supported by the independent children's lawyer, has sought an order that they have equal shared parental responsibility in relation to the child.
The parties cohabited for a period of approximately eight years which commenced during 1991 and continued until they finally separated on 4 July 1999.
The parties were married in 1994 and that marriage was subsequently dissolved.
The child is 12 years of age having been born in July 1997.
The child has been living with the father continuously for the past period of almost two and a half years which commenced in September 2007. They have lived in the father’s home on the central coast.
The mother had previously had the care of the child, as well as their eldest child S, until she left for Queensland in September 2007.
In the period between the separation of the parties and the mother moving to Queensland, the mother had married Mr Diable, which whom they have a six year old son, L, who lives with his father.
Consequently, for the past period of almost two years the child, the subject of these proceedings, has been living with her father, and L who is not the subject of these proceedings, has been living with his father in the Newcastle area.
The parties have previously been engaged in proceedings in 2003. Parenting orders were made which essentially provided for the child to live with the mother.
Subsequently proceedings were instituted in this Court. There have been a number of interim orders made against a background where the mother has continued to live in different parts of Queensland. Those orders included orders made on the first day of these substantive proceedings which were conducted in accordance with the Less Adversarial Trial (“LAT”) practice and procedure. Those orders were made on 10 November 2008 and provided for interim parenting orders to enable the mother to spend periods of time with the child both at W in the central coast area where the maternal grandmother and her husband lived, and subsequently in the period 10 to 21 January 2009 at K in Queensland where the mother's brother and sister-in-law lived. Further ancillary orders were made to facilitate those orders taking effect.
The mother, at that time, lived with a Mr E. There were issues raised of the manner in which Mr E related to or was likely to relate to the child, which were matters of some controversy. Consequently, bearing in mind those issues and the need to make orders in the best interests of the child on the available evidence whether they be interim orders or final orders, ultimately the orders to which I have referred in effect ensured that the mother would be able to spend periods of time with the child both with the maternal grandmother and otherwise with members of her extended family in Queensland without Mr E spending time with the child except at the mother's brother's home at K.
On 9 July 2009, I made further interim parenting orders by consent and those orders provided for the child to spend time with the mother at the home of members of her family at K in Queensland and again the presence of Mr E was restricted to only being at the home of the mother's brother and sister-in-law. The mother, however, was noted to have the right to take the child north and south of Brisbane to visit family members and places which might be of interest to the child.
On 29 September 2009 an independent children's lawyer was appointed.
In addition, the issues for determination were crystallised and directions made for the filing and service of affidavits and otherwise to fix the continued hearing for three days commencing at 10.00am on 21 December 2009, especially due to the need to resolve the issues as soon as possible with regard to the child's impending move to high school in 2010. The matter of the child’s education at high school level was obviously a matter of substance, depending upon whether it was found to be in the child's best interest to live with the father or the mother given that the mother at the time was living in Queensland and the father and the child were continuing to live at on the Central Coast, the father's proposal being to continue to live in that area.

Relevant legal principles

Section 60CA of the Act makes it clear that in deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
For the purpose of determining what is in a child's best interest, findings of fact have to be made to underpin the considerations that are enumerated in ss 60CC(2) and 60CC(3). I incorporate the substance of s 60B and the principles underlining the objects outlined in that section as if they were now fully set out. It is important to stress that for the purpose of a child having the benefit of parents having a meaningful involvement in their life to the maximum extent, must be consistent with the best interest of the child. That in turn directs the court to take into account the facts that must underlie those considerations in s 60CC.
In addition, it is important to emphasise that a parenting order can only be made when it is in the best interests of the child and that is the paramount consideration. As I have emphasised to the parties, the focus is on that matter, rather than what is in the best interests of a parent. That is not to say that a parent's interests are unimportant. Quite to the contrary. However, the focus must be on the child's best interests, and that is what is required pursuant to the Act which has been the law for many years.
Section 60CC sets out the primary considerations for the purpose of contemplating parenting orders that may be made by a court. Those primary considerations are the benefit to the child of having a meaningful relationship with both of the child's parents and, the need to protect a child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The first of those two primary considerations has particular focus in these proceedings.
Although family violence was raised as an issue for determination and the parties have given affidavit evidence in that regard, that issue in terms of the way the hearing was conducted, reflected little exploration in terms of cross-examination of the parties. Consequently, it became apparent that fortunately from the child's viewpoint the need to protect her from the type of harm which forms one of the two primary considerations to which I have referred does not require anything other than recognition that such a consideration must be taken into account.
The matters to which I referred, which will be relevant in these proceedings pursuant to s.60CC(3) are now to be set out by me.

Relevant historical background

I should add at this point that especially having referred to the conduct of the proceedings before me, the father at all times has been legally represented. The mother has been unrepresented.
Consequently I have endeavoured to impress upon the mother both at the commencement of the hearing this month and during, that I cannot provide legal advice to her as if I was a lawyer retained by her for that purpose. However, should there be any matters of practice and procedure or indeed any matters which might be legal questions, then the mother was encouraged to raise those matters with me and I would endeavour to provide information as sought.
In addition, the mother was provided at the commencement of the hearing with sufficient time for perusal, copies of the relevant sections in Part VII of the Act that deal with parenting proceedings. The mother at no time evidenced by her words or actions that she was unable to comprehend the nature of the proceedings, the manner in which they were conducted, or the issues that needed to be dealt with. There were occasions when the mother did quite properly raise matters of concern to her and I provided information to meet those concerns.
Moving on now to the particular matters that arise as additional considerations under s.60CC(3), I make the following findings:

Views expressed by the child

There is no controversy that the child has expressed strong views to live with the mother. The evidence which supports that is found in the Family Report, which is marked Exhibit 2.
A previous memorandum by the author of the report, Ms B, Family Consultant provided in June 2008 and further evidence before me, in particular the email printouts that passed between the mother and the child are Exhibit 7.
There has been contrary evidence given by the father in terms of statements or representations allegedly recently made by the child to the effect that she would like to continue to live with him. The father’s evidence in that regard was not the subject of challenge.
Overall, I preferred the evidence given as to the view expressed to live with the mother. I find that there has been a consistent view expressed in that regard, particularly recorded by an experienced family consultant. The email contained in Exhibit 7 does lend some support to it, however, it also contains the statement by the child where she says in her email dated 4 March 2009 sent to the mother:
"I just want to tell you that I don't hate my dad. I do love him and I do have fun with him, but I just want to live with you but sometimes I feel torn between you both and I feel like dad will think he's not a good dad and I hate him. But truly I don't hate him. I love him to pieces but I feel more at home with you."
In addition, the child raises a legitimate and understandable question in the second last paragraph of that email which has particular significance in view of the issues of possible relocation by the mother are concerned, in that the child states:
"Sometimes I feel like why is my life like this and why did people above…"
and I interpose there, being her parents
"…give me all this pain and no one else? But I know that my life is like this for a reason and in the end something great will happen and it's all worth it but know that I'm actually hurting. I just can't handle it."
The reason, as will be apparent later in my judgment, for singling out that particular quotation, as well as the first one to which I have referred demonstrates not only that the child is torn between two parents who she loves, although expressing a preference for living with the mother, but also, providing an expression of despair that her parents who are supposed to be providing mature, responsible guidance and to alleviate the emotional stress that the child is obviously under, have put her in the position where that stress continues.
Consequently, I find that the views expressed by the child are that, on balance, she prefers living with the mother; that she has a loving relationship with each parent; that she does not wish to hurt them; and in her email to the mother to which I have referred, is calling out for her parents implicitly to resolve their issues and to alleviate the stress which she has been under.
Sadly, the parties have not been able to do so. That is not a criticism of either of them. However, choices have had to be made and choices still can be made notwithstanding that those matters have been considered and ventilated at a considerable extent in these proceedings. Unfortunately, from the child's viewpoint the choices to which I will subsequently refer have not resulted in some compromise or settlement which would truly be child-focused, as opposed to being focused on other matters.
So far as the relationship of the child with each of the parties and other persons are concerned, I have already made findings as to the nature and extent of the relationship between the child and each of the parties.
There is evidence before me, which I accept, that the child also has a loving relationship with L. There is also evidence which I accept that the child has a fond, if not loving, relationship with the eldest child. The reason for less than an absolute conclusion in that regard is that that particular issue was not explored to any significant extent. However, notwithstanding the distance between those two children, one of whom is now an adult with her own child, I see no reason not to make the finding which I have made.

With regard to the willingness and ability of the parties to facilitate and encourage a close and continuing relationship between the child and the other parent, I make the following findings.
The father, at times, has shown less than an appropriate willingness and ability in that regard. The evidence suggests, which I accept, that has been brought about by a combination of factors. One being the father’s perception of the mother having placed her own needs above the needs of the child by moving to and/or remaining living in Queensland, and that that situation developed from when the child was a very young age, nine. Secondly, the poor communication between the parties. Thirdly, what the father perceives to have been a potentially disruptive and unattractive influence of the child that might be brought to bear by the mother's former partner, Mr E.
So far as the mother is concerned, her willingness and ability has also been compromised. That has been brought about by the turmoil of her life in Queensland, to which she referred, especially due to the difficult relationship that she had at times with the eldest child; that child's own particular problems, which the mother, as the parent, felt the need to assist the child commendably; her obvious negative view of the father as a parent and, as she saw it, as an obstacle to the child recommencing to live with her.
However, during the hearing and as a result of the orders that have been sought by each of the parties, it became clear that whatever difficulties there were in the past are unlikely to continue in the future. The mother's views, which I accept, are that should the child live with her then the father may make such arrangements as he wishes, implicitly on a reasonable basis, to spend time with the child in Queensland. No mention was made by the mother of time spent on the Central Coast. However, the tenor of the mother’s evidence has led me to conclude that she was willing for that to take place.
In addition, the mother's view was that communication between the parties is likely to improve, particularly if an order was made for the child to live with the father. Both parties have shown their willingness, either directly or implicitly in their evidence, to improve communication between them, whether it be verbal communication or written communication. Consequently, I will hold that each of the parties now have the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent. That is fortified more so by the submissions made by counsel for the father in that he is prepared to facilitate the relocation by the mother back to the Central Coast so that the child will have the benefit of a substantial relationship on an ongoing basis with each parent on the basis of him providing the amount of money that the mother had said she needed to relocate, that is $5,000.00, albeit that the terms of the provision of that amount was to be as a loan, interest free with no payments for three months, followed by repayment at $60.00 a week. That proposal by the father was ultimately rejected by the mother.
The mother, for her part, then put forward her proposal that she would move not to the area on the Central Coast which previously she said she would move to if she had $5,000.00, but rather to a different area, namely the Newcastle area, on the basis that the $5,000.00 was a gift and not a loan. These are matters to which I will subsequently refer.
With regard to the likely effect of any change in the child's circumstances, including separation from the parent with whom the child has been living, I make the following findings.
It is clear that should the child live with the mother then fulfilment will be given to her view that she prefers overall to be living with her. To that extent that will be a benefit to the child. The other effect of changes in those circumstances would be that the child would then have to adjust to a number of changes in her life. They include no longer having daily care by the father; no longer being immersed in the community in which she has stable and long-standing ties, both in terms of her friends, activities and the school where she has been making outstanding progress; as well as having to adjust to a new home environment, none of her friends being available; having to meet and make new friends and attend a school of which she has had no introduction or knowledge. The question then obviously arises is whether or not those changes are likely to be met by the child in a manner which is in her best interests and my conclusion in that regard will shortly be given.
With regard to practical difficulty and expense of the child spending time with and communicating with a parent, that obviously arises in the current circumstances, given that the father lives on the central coast of New South Wales and the mother lives in the Sunshine Coast area in the State of Queensland.
The mother's financial circumstances are modest, according to her evidence. I accept the mother’s evidence there being nothing put to me to the contrary.
The father is a pensioner. He has his own home. There is no evidence before me of the balance of the father’s financial resources other than he has a source of income, his pension benefits and has $5,000.00 given his proposal that he provide it by way of a loan to the mother, to which earlier reference has been made.
In the event of one or either of the parties continuing to live in their current location, then practical difficulty and expense does arise.
Travel expenses including perhaps air travel will need to be met, accommodation may need to be met, although that is unlikely. Those represent the major expenses involved. Obviously, if one party has the care of the child on the basis that the child is not primarily living with that party then there will be the living expenses and entertainment expenses for that child during that period.
To that extent, the difficulty or expense to which I have referred will affect the child's right to maintain personal relations and direct contact. Whether it will substantially affect that right is a matter on which I cannot form a conclusion, other than to say that potentially that is the case. Technology these days will ease the difficulty in that regard due to not only mobile phone but also email and possibly the use of Skype or cam camera to facilitate increased communication.
An important matter is the capacity of the parties to provide for the needs of the child, including emotional and intellectual needs.
There was no issue that each of the parties has the capacity to provide for the physical needs of the child. Those physical needs being represented by the physical environment that can be afforded. A criticism was raised of the father of his dismissive attitude of the child's susceptibility to an allergy to dust or mites. His evidence was that that it did not seem to be a problem of any real concern.
The mother's evidence is to the contrary. Exhibit 6 contains two medical reports. The first report is that of a consultant physician and allergist, Dr C dated 3 August 2005. At that time, the child was living in the Newcastle area, Dr C concluded that the child could suffer from a rash due to the consumption of pineapple and that skin tests show quite a large reaction to dust mite and an equivocal reaction to mould mix. A later report, not from a physician but from a radiologist dated 22 July 2005, reports a persistent cough of six weeks although the cause is not given. It also reports that there is a possibility of asthma but otherwise the child’s lung fields were clear.
It is obvious that should there be a continued concern by one party or the other, regardless of the attitude of the other party, then surely it is a matter of common sense, let alone sensibility and concern for a child's health that arrangements be made for her to take part in a consultation, not with a general practitioner, but with a medical practitioner whose speciality is in dealing with child related allergies in order to have updated and specialised information may result in measures having to be taken for the improved health of the child.
If, on the other hand, the father's opinion is made out, then the only thing that will have been lost is the time spent on the consultation and the cost. Both those matters would seem to be a very small price to pay in order to alleviate parental concerns, not to mention ensuring that there is up to date and current specialised information on the matters referred to several years ago in Dr C’s report being part of Exhibit 6.
I do not see the need to make an order in that regard. I consider the parties are intelligent, educated people who, despite the differences between them, do have an appropriate parental attitude so far as the child is concerned and that they will be responsible enough to ensure that such a further specialist consultation takes place in the near future.
The emotional needs of the child represents another matter.
The issues raised are that the mother has a greater capacity to satisfy the emotional needs of the child, as opposed to the father. I have referred to the evidence that each party has given, as well as that of the family consultant, not to mention Exhibit 7. Emotional needs, however, are not simply related to a parent. There could be emotional needs in terms of stability and routine, friendships that have been formed and other matters which may affect a child's emotional state. Those matters have had scant attention in these proceedings, which is unfortunate, to say the least.
The focus seems to have been almost exclusively on the question of the capacity of each of the parties to provide for the child's emotional needs restricted to one topic only, albeit an important one, namely with whom the child should live, given the best interests of the child to which I have referred. I accept that the mother may well have a greater capacity than the father to meet the child's emotional needs in terms of living with her. That is the emotional need of the child to live with her.
The child clearly has an emotional need to have a substantial involvement of the father in her life, so much has been made clear in the email being Exhibit 7 tendered by the mother. The child also has an emotional need for the parties to put to an end the pain to which she has been experiencing as demonstrated by the quotation from one of her emails which I have set out earlier.
The father's proposal is that the child continue to live with him because he has provided stability and routine for the child. The child has progressed very satisfactorily at school and related activities, to the point where she has been the captain of the school. She has excelled in her school sport and intellectual and extracurricular activities.
In addition, in order to meet what seemed at one stage of the evidence to be the mother's willingness to return to live in the Central Coast if she had $5,000.00 to alleviate the financial hardship which might otherwise be involved, he was prepared to advance that sum, albeit as a loan. If that was accepted, it did not follow, of course, that the mother would have to expend all the $5,000.00, however it would undoubtedly meet her concerns in terms of travel expenses, a bond, payment of rent initially, and to assist her until such time as she obtained other employment. To that extent, it was a loan interest free with $60.00 a week repayment. The mother rejected that approach, notwithstanding her insistence that she would need $5,000.00 to return to that area.
The father's proposal also was that to meet implicitly the child's crying need to have both parents substantially involved in her life that there be equal time spent by the child with each parent in that area on either a week about or fortnight about basis. That too was rejected. The mother's approach has been that either the child live with her in the Sunshine Coast area or, alternatively, that she live with the mother in the Newcastle area and that the $5,000.00 to which I have referred be a gift and not a loan. If the child was to live with the mother in the Newcastle area, that would mean that all of the changes to which I have referred would have to be met. The child would also have the prospect of going to a school of which there is no evidence before me whatsoever of the mother having carried out any inquiries to ascertain its suitability compared to the R school to which I have referred in respect of which the father has carried out extensive inquiries. The mother also has not this year carried out any inquiries in relation to the suitability of the R school.
Consequently, I have concluded that each of the parties does have the capacity to meet the emotional needs of the child. The mother has a greater capacity in terms of satisfying the child's emotional need to live with her or, alternatively, to spend substantial periods of time with her on an ongoing basis. The issue is her willingness to exercise that capacity in a way which does not totally conform to her different views as to how she would meet the child's emotional needs. I will refer subsequently to those different views.
The child appears to have no difficulty intellectually. I find that each of the parents has the capacity to meet the child's intellectual needs.
The father, however, has shown by his practical application, as opposed to theoretical views, that he has striven hard to ensure that the child has a satisfactory educational life and clearly, on the unchallenged evidence before me, the child's intellectual needs have been met to the level where she has excelled.
The mother has made inquiries of a school nearby to where she lives. I accept her evidence in that regard. The question of how the child would adjust to that school compared to the school the father proposes, where the child would also be assisted emotionally by her circle of friends attending the same school, remains a matter on which there is an unresolved issue.
With regard to the parental attitude of the parties, I find there is no issue that each of them has the appropriate parental attitude to the child, subject to the findings that I have made of their respective capacity to meet all of the needs of the child.
Family violence was raised as an issue.
Fortunately, it appears to have receded into the background in that it was only briefly touched upon in the course of the evidence of the parties.
Consequently, I find that there no longer is a potential issue of family violence to which the child may be exposed.
With regard to the issue of a preference for an order least likely to lead to an institution of further proceedings in relation to the child, this was not a matter on which any submissions were made.
I find that there are potentially ongoing problems between the parties unless communication between them greatly improves. I have accepted the parties’ evidence, given directly or indirectly, that an “improvement” in communication is likely to be the case. Whether matters in the future will fall into place without the need for further proceedings is a matter on which I am unable to make a finding. As I have already stressed, no submissions were made in relation to this issue by or on behalf of either of the parties, including counsel for the independent children's lawyer.

Conclusion

I have concluded as follows.
I have determined that there will be an order by consent to provide for equal parental responsibility to vest in each of the parents so far as the child is concerned.
I have also determined that it is in the best interest of the child to live with the father in one or other of the following scenarios. The first, is that in the event of the mother commencing to live in the Central Coast area in the State of New South Wales, in an area which enables the child to attend R High School, within the next 12 months, then the child should live with her for each alternate week in both school term and school holiday periods that follow each school term or, such other period or periods as the parties may agree upon from time to time.
In the event of the mother choosing not to relocate to the Central Coast, then I propose to make orders which provide for the child to primarily live with the father, subject to the following periods of time that she should live with the mother. Those periods will reflect school days on the Central Coast upon the mother providing seven days written notice, weekends and long weekends in the Central Coast or elsewhere in New South Wales, provided that the mother ensures the child participates in all sport and extracurricular activities for which the child has a commitment, upon seven days prior written notice being given, weekends, including long weekends in the state of Queensland, with the child's return fare to be met by the mother or, alternatively for such periods or other conditions as the parties may agree upon.
In addition, on the basis of the mother remaining living in Queensland, for half of each school holiday period or such other period as the parties may agree upon and in that regard the mother to provide the father with 28 days’ written notice, including details of all flight and travel arrangements and the expense of travel to be met by the parties equally.
In the event that the parties consider that they are bound by every term and condition in the orders I will make, I will also make an order to ensure on a formal basis that the parties retain flexibility to meet the child's changing needs and reasonable expectations and activities. Consequently, the mother shall have the care of the child for substituted or alternative or other periods as the parties may agree upon from time to time.
In addition, orders will be made for the child to live with the father on Father's Day and with the mother on Mother's Day as it falls due.
I have also concluded that it is in the child's best interests to be enrolled in and attend R High School or such other school as the parties may agree upon in writing, commencing with first school term 2010.
Ancillary orders will also be made to ensure that the mother receives copies of all school reports, notices and other documents, including school photographs, and that each of the parties inform the other promptly in the event that the child suffers a serious illness or injury and provide detail of that issue, together with the name, address, telephone number of the relevant hospital or medical practitioner with authority to provide information to the other party.
Each of the parties will also have to ensure that communication is available for the benefit of the child and to that extent each of the parties’ current mobile telephone number or landline must be provided on a current basis and each of them will have to facilitate and encourage the child to have telephone conversations with the other party at the relevant times. Also, each party shall maintain in full operation at all times a message bank or return call system so that a message may be left for the child following a missed call and the party who has the care of the child to ensure that the child receives that message promptly and is encouraged to return the call.
Each of the parties will be restrained from discussing or referring to any evidence given by either of them or the family consultant with or in the hearing of the child, which shall include the family reports and any other written or oral evidence.
In addition, so that the child may be properly informed of not only all of the orders made but the reasons for them as appears in the judgment, as opposed to an anecdotal or selective excerpts, which one or other parent might provide to the child, I will make an order that the father or his solicitor make arrangements as soon as possible with the Manager Child Dispute Services in the Sydney Registry of the Court for Ms B, Family Consultant, to interview the child in order to explain to her the orders made and judgment delivered this day.

My reasons for arriving at such determinations are as follows.
The child clearly has a loving relationship with each of the parties. The father, since the child was of a young age, that is almost over two years ago when she was nine, has provided stable accommodation and environment, encouragement at her school and all activities, as well as shouldering the vast bulk of financial support for the child. It is clear also that these tangible benefits are not to be viewed in isolation.
The email tendered by the mother, being part of Exhibit 7, demonstrates that the child does have a loving relationship with the father and that such loving relationship does satisfy her emotional needs to a certain degree. The child clearly has a very pressing emotional need to live with the mother. The mother herself has assured the child, much to the mother's credit, that both of the child's parents love her and that she will continue to support that approach. The mother has stated in her email to the child dated 26 January 2009, contained in Exhibit 7, as follows:
"There is something I need to explain to you. I think my relationships often did not work because my children were always more important than the partner, husband or boyfriend."
The mother then proceeded to outline her views about past relationships.
So the question of the ultimate priority of the child, compared to any other adult relationship, was emphasised to the child. Indeed, during the course of her submissions, the mother stated to me as follows:
"I promised [the child] that I would do my best to return her to my care."
That was apparently said to the child last year.
The rhetoric employed by the mother has clearly been impressive. I have no doubt that the mother meant it at the time, however, such statements need to be measured against actions taken in that statements are easily made. Sometimes the actions to be consistent with them are more difficult. The mother has emphasised, perfectly understandably, that she has another child, namely S, who lives near her. S is 18 years of age. S is in a relationship, albeit one that appears to have had its difficulties. S also has a child. The mother has been assisting S in the care of the child.
The mother used a dramatic and interesting opening to me in her submissions by referring to the difficult choice that faced King Solomon in terms of splitting a child. The mother then said that the child should be given as a whole to either her or the father. In my view such an analogy, whilst interesting, is not one which is appropriate for the choices to be made in this case. The reason is that first of all the mother has an opportunity not to have half the child but to have the whole of the child each alternate week or alternate fortnight on the Central Coast. So will the father in that situation. The result will be that the child will have what everyone agrees is the optimum for the child's benefit, namely a substantial involvement in the relationship and the continuation of that relationship between the child and each parent.
During the course of the hearing this week, when I raised with the mother the consideration of possibly moving back to the Central Coast, given that her relationship with Mr E had come to an end, that she was living by herself and that she did not have any economic ties to the area in which she is living in terms of being self-employed or a business which required her ongoing commitment, the mother's response to me was, "that is impossible".
The family consultant, Ms B, also stated early in her oral evidence that having read the mother's last affidavit, being the Affidavit sworn on 7 December 2009, she was bemused that the mother now free from the previous pressures of a relationship, and that S now seemed to have developed her own family unit (who would no doubt be grateful to have continued parental assistance) was now free to move to the Central Coast. This matter was explored further with the mother, much to her stress. I accept that the mother was stressed in being asked on a number of occasions, particularly by me, her reasons for not moving, given that the child had expressed a need to have the benefit of the mother's emotional parental relationship and also the need for the child to have an ongoing substantial relationship with the father.
I fully appreciate that the mother became upset at having to return to this difficult subject, particularly as these are not only parenting proceedings, but proceedings in which the mother has been self-represented, a difficult task for any person. Nonetheless, as I explained to the mother, it is an important issue for the child. It is one of real difficulty which Judges face from time to time and it was an important matter from the viewpoint of the child's best interest that the evidence should be as complete as possible on this particular matter, as well as other matters, given that final orders were to be made. I re-explained that to the mother the following morning.
In addition, it was a matter of curiosity to me that a child who may be emotionally vulnerable is told by a parent that the priority in her life is for her children above other relationships, and that the child needed both parents, that when this matter was raised with the mother, it was met only with every possible reason why it should not happen. When the mother stated of her own volition, without being pressed, that she needed $5,000.00 to return to live on the Central Coast – having to face the difficulties of moving, the father then gave instructions to indicate his willingness to provide the $5,00000, albeit as a loan.
The mother had previously illustrated that she would have to break her lease, ensure that the agents obtained a new tenant, faced potential financial consequences of breaking a lease, travel expenses, payment of a bond and implicitly some rent, not to mention gaining other employment.
The mother has for the last 18 months, been employed with a local Club in their function facility. The mother has received a commendation for her work. Clearly, she has an employment record which would stand her in good stead. The mother accepted that there are other similar clubs in and around the Central Coast area. I accept the mother's evidence that an automatic transfer does not follow. However, given the financial assistance that was offered, one might have thought that it would be attractive to the mother to at least make an effort to demonstrate on a positive basis rather than a negative one that she is willing to explore that possibility.
As I have already stated the fact that $5,000.00 would be made available does not mean that all the $5,000.00 would have to be spent.
In relation to the mother’s accommodation in the Sunshine Coast, she stated that her unit was a desirable one and that she did not expect real difficulty in obtaining another tenant. The mother herself could be proactive in that regard, given her experience in a real estate agency, albeit in sales rather than rentals.
When the mother was faced with the fact that her own proposition was now to be met, albeit as a loan, the mother then changed her whole approach. The approach then was that she would move, albeit to the Newcastle area, and that the $5,000.00 should be paid as a gift. It must have been clear to the mother that such an approach would not be agreed to. The father's whole case has been of the child remaining in the Central Coast area in those parts where she could attend R School. Consequently, the mother's approach was nothing other than an attempt to demonstrate being positive in the knowledge that it would not be accepted.
The mother has rightly pointed out that she is in a difficult position, because she has another child and a grandchild living in Queensland. Consequently, she cannot employ herself to satisfy all children. That is undoubtedly correct. However, that is exactly what the mother has done for the past period of approximately two and a half years. The mother moved from the Central Coast when the child was still very young. Her other child, L, was even younger. He was about four years of age. L lives with his father in the Newcastle area.
The mother gave evidence, which I accept, that she considered at the time it was financially beneficial to both her and, indirectly the children, if she could pursue a career with her brother's company in Brisbane earning $65,000.00 per annum. It transpired, through no fault of the mother, that that career could not be pursued because the company came into difficulty.
The next question which arose is that career having come to a halt, what was it that prevented the mother from returning to the Central Coast? The answer must surely be a combination of the need to support the eldest child, quite understandable, and then her subsequent relationship with Mr E, which tended to be her focus.
However, the present position is that none of those matters arise any longer, with the exception of the position of the eldest child. Consequently, a potential move back to Central Coast is merely a continuation of what the mother has done herself for the last period of about two and a half years, that is, divide her time between one child and the other. There are obvious attractions to returning to the Central Coast in that she would be able to provide substantial relationship for the child, as well as L who is still very young, not to mention affording the child the optimum of a substantial relationship with both her father and the mother.
The mother, as is her perfect right, has chosen not to do that. That is a matter for her and each person has a right of freedom of movement and must make their decisions accordingly. At times, however, when it comes to care of children, compromises have to be made and sometimes an adjustment of priorities. It is a matter for each of the parties to decide those particular issues in terms of the priorities in their lifestyle so far as the child is concerned and their commitments to others. It is obvious that if the mother lived at the Central Coast, then she could embark upon the same potential periods of time with S in Queensland but that is not something that the mother apparently contemplates. Indeed, the mother emphasised to me the rhetorical question of:
"Why should I accept $5,000.00 to live in a place that I don't like?"
The answer to that question is the place is not the ultimate priority, it is the child, and that is a matter which the mother had emphasised to the child, both in her email and her submissions to me to which I have referred.
Unfortunately, I have come to the view that the mother may emotionally have the desire to meet the child's emotional needs, but is unwilling and does not have a commitment of the highest order to demonstrate in a practical way that she will do so. That is entirely a matter for the mother. However, given that the mother may have a change of mind, I propose to make orders which will provide for equal time for the child's care on the Central Coast. There needs to be a finite period for that purpose. Consequently, I consider that 12 months is a suitable time. I emphasise that the High Court in recent years has made it clear that a trial judge is not bound by the proposals of either party but may consider, and if necessary, make orders that are in the best interests of the child, having regard to the findings made on the evidence before him or her.[1]
[1] U & U (2002) FLC 93-112
I have found that the father has a demonstrated capacity to meet the child's ongoing needs, albeit the emotional capacity is not as high as that of the mother. On balance, however, given that the child has made outstanding progress socially and with her education, on the evidence before me has enthusiasm for R School, a school which has been researched by the father to a considerable degree to meet the child's abilities, and in the knowledge that the father will continue to provide stable support for the child to the best of his ability in every possible way, I have concluded that it is in the child's best interests to make the orders to which I have referred.
The parties have had a history of poor communication. As I have already found, that is now to be improved, very much for the benefit of the child. In addition, to facilitate communication, the child should have an open line to either parent and not be restricted to arbitrary time limits. This child is now 12. She will be 13 next year. It is, in my view, totally inappropriate to limit a child of that age to a short window of opportunity to speak to one parent or the other. Each parent will, I am sure, respect the child's needs in terms of education, homework and other matters and not call at clearly inappropriate times. The child should have privacy when making the call and each parent should now be able to be relied upon without orders having to be made to that extent which in some ways would be demeaning.
Each parent will need to ensure that the other is kept fully informed in relation to any serious illness or injury which the child may suffer. The mother needs to be kept up to date in terms of the child's progress at school. Consequently, the appropriate order will be made.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Date: 29 January 2010

[2009] FamCA 1317

24 December 2009

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