Hunt and Theophane
[2009] FamCA 1053
•6 November 2009
FAMILY COURT OF AUSTRALIA
| HUNT & THEOPHANE | [2009] FamCA 1053 |
| FAMILY LAW – CHILDREN – sole parental responsibility – with whom a child lives – with whom a child spends time with – child’s religion |
| Family Law Act 1975 (Cth) |
| C & B [2007] FMCAfam 539 G and C [2006] FamCA 994 |
| APPLICANT: | Ms Hunt |
| RESPONDENT: | Mr Theophane |
| INDEPENDENT CHILDREN’S LAWYER: | Vandeluer & Todd |
| FILE NUMBER: | CSC | 1089 | of | 2007 |
| DATE DELIVERED: | 6 November 2009 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 7 & 9 October 2009 |
REPRESENTATION
| FOR THE APPLICANT: | Applicant in person |
| FOR THE RESPONDENT: | Respondent in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Bentley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Vandeluer & Todd |
Orders
All previous parenting orders in relation to the child, … born … September 2006 be discharged.
The mother have sole parental responsibility for the child except that:
a.the mother will not change the child’s residence to an home further than 75 kilometres by road (using the most direct route) from Cairns Post Office, without first obtaining the fathers written consent or otherwise with the approval of a Court exercising jurisdiction under the Family Law Act 1975 (Cth).
b.the mother is permitted to move the child’s residence to the Atherton area.
c.both parties are restrained from interfering with or preventing the child from reasonably participating in the other parent’s religious observations (of Buddhism and Greek Orthodox), when in the care of that other parent;
d.the mother and father are each restrained from altering the child’s name (except as agreed in writing between the parties or otherwise ordered by a Court exercising jurisdiction under the Family Law Act 1975 (Cth)).
e.The mother will keep the father informed of all decisions, where possible in advance, in relation to major long term issues for the child including but not limited to:
i.education
ii.health.
iii.any with any further moves of the child’s residence, within the 75 kilometre area.
The child will live with the mother.
That the child spend time with the father as follows:
a.From the date of this order to 31 December 2011;
i.each alternate weekend commencing on 20 November 2009 from 8.30am Friday until 4.00pm Sunday. The father to collect the child from the Skyrail base at the commencement of this time and the mother to collect the child from the W Child Care Centre at the end of that time. If the Child Care Centre is closed or if the mother is unable or unwilling to meet the cost of the Child Care Centre to facilitate that collection, then, after giving five (5) days notice in writing to the father, collection will take place at the children’s section of the local Library;
ii.each alternate Thursday commencing 12 November 2009 from 10.00am Thursday until 10.00am Friday. The father to collect the child from the Skyrail base at the commencement of this time and the mother to collect the child from the W Child Care Centre at the end of that time. If the Child Care Centre is closed or if the mother is unable or unwilling to meet the cost of the Child Care Centre to facilitate that collection then after giving five (5) days notice in writing to the father, collection to take place at the children’s section of the local Library;
iii.subject to these orders or written agreements for special times, during the gazetted Queensland school holidays the time the child spends with the father shall be increased and/or varied as follows;
1.In the calendar year 2010 the alternate weekend time that occurs under these orders over those school holidays shall extend to 4.00pm on Tuesdays.
2.In the calendar year 2010 the alternate weekend time that occurs over those school holidays shall extend to Wednesdays and the alternate Thursday nights over those school holidays in that year shall suspend;
iv.On 25 December 2009 and 2011, from 2.30pm on Christmas Day until 2.30pm on Boxing Day. The child will live with the mother from 2.30pm on 24 December to 2.30 pm on Christmas Day in those years and any other order for the child to spend time with the father between those hours is suspended;
v.On 24 December 2010, from 2.30pm on Christmas Eve until 2.30pm on Christmas Day, changeovers to take place at the S Shopping Centre. The child will live with the mother from 2.30pm on 25 December to 2.30 pm on 26 December 2010 and any other order for the child to spend time with the father between those hours is suspended;
b.From 1 January 2012:-
i.during the gazetted Queensland school terms, each alternate weekend from 3.00pm Friday until 4.00pm Sunday with changeovers to take place on Friday at the child’s school and on Sunday at S Shopping Centre;
ii.during the gazetted Queensland school terms, each alternate week from after school Thursday until the commencement of school Friday with the father to collect the child from and return the child to the school the child is attending.
iii.In terms of starting days for the time the child spends with the father during school term;
1.if the child is primarily with the father in the last week of the preceding mid term school holiday period (or the week commencing 15th January of the preceding January school holiday for the start of first term) then the alternate Thursday night shall commence on the first Thursday after the start of that term and the alternate weekend shall commence on the second Friday after the start of term; AND
2.if the child is primarily with the mother the final week of the preceding mid term school holiday period (or the week commencing 8th January of the preceding January school holiday for the start of first term) then the alternate weekends shall commence on the first Friday after the start of that term and the second Thursday after the start of term;
(iv) For the Queensland school holidays in January 2012 (which is the school holiday before the child commences full time school), the child will spend time with the father for one week, being the weeks commencing the first and third Saturday of that month. Time commencing at 10.00am on each such Saturday and concluding 10.00am the next Saturday, changeovers to take place at the S Shopping Centre;
(v) For 2012 and each alternate year afterwards, for the first week of the mid term school holidays, commencing at 10.00am on the first Saturday and concluding 10.00am on the second Saturday. Changeovers to take place at the S Shopping Centre.
(vi) For 2013 and each alternate year afterwards, for the second week of the mid term school holidays, commencing at 10.00am on the second Saturday and concluding 10.00am on the third Saturday. Changeovers to take place at the S Shopping Centre.
(vii) For Christmas 2012 and each alternate year afterwards, the child will spend time with the father from 10.00am on the first Saturday of the school holiday period until 2.30pm on Christmas Day, 25 December; and in the immediately following New Year, for 1 week from 1st January and one week from 15th January, commencing at10.00am on each such day and concluding 10.00am one week later. Changeovers to take place at the S Shopping Centre. This being a total of 3 weeks of the approximately 5 week Christmas/New Year School holiday period;
(viii) For Christmas 2013 and each alternate year afterwards, the child will spend time with the father from 2.30pm on Christmas Day to 10.00am on the following 1st January; then for 1 week from 8th January. Changeovers to take place at the S Shopping Centre. This being a total of 2 weeks of the approximately 5 week Christmas/New Year School holiday period.
In the event that the child is not otherwise spending Father’s Day with the father pursuant to these orders the child will spend time with the father from 8.45am until start of school the following day. Collection of the child to take place at the Skyrail base.
In the event that the child is not otherwise spending Mother’s Day with the mother, the time with the father over that weekend will end at 8.45am that day, with the mother to collect the child from the children’s section of the local Library.
If the child is with the mother on the child’s birthday, she is to spend 1 hour with the father from 4.00pm to 5.00pm. The child to be collected from and returned to the Skyrail base and returned to the Skyrail base if a school day.
If the child is with the father on the child’s birthday, she is to spend 1 hour with the mother from 4.00pm to 5.00pm. The child to be collected from and returned to from the children’s section of the local Library.
Each party shall keep the other advised of their home address and emergency contact details and advise the other of any change within twenty (24) hours for such change.
The mother will sign all such documents and do all such acts as are necessary to authorise the child’s school to provide to the father, at the father’s expense, copies of school reports, school circulars and newsletters and any school photographs and this order reflects the mother’s authority in that regard.
Each party, whilst the child is not in their care, will have reasonable telephone communication with the child, such contact to be initiated by the party who does not have the child in their care.
Neither party will denigrate the other party, their partner or family members, in the presence or hearing of the child.
The parties will communicate by way of a communication book which is to be handed over with the child at changeovers AND in the event the book is lost, it is the responsibility of the party who lost it to provide a replacement book.
The mother undertake therapeutic counselling for the purposes of assisting her with regard to anxiety.
Pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
Subject to this direction:-
a.By way of interlocutory direction, at the expiry of twenty (28) days but within thirty five (35) days from the date of this order the Independent Children’s Lawyer forward to the Department of Child Safety, Queensland a sealed copy of this order, a copy of the reasons delivered with these orders, a copy of the Family Reports prepared before the October 2008 orders and a copy of the Family Report of Ms P dated 28 September 2008.
b.The parties, or any one of them, have leave to apply to discharge this direction upon giving seven (7) days notice in writing to the Court and the other parties. Such leave to be available for twenty one (21) days from the date of this direction.
c.The appointment of the Independent Children’s Lawyer be discharged from thirty five (35) days from the date of these orders or such longer time as is otherwise directed by a court.
IT IS NOTED
Pursuant to these orders the Court approves of the mother moving the primary residence of the child to the Atherton area.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend
IT IS NOTED that publication of this judgment under the pseudonym Hunt & Theophane is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: CSC 1089 of 2007
| MS HUNT |
Applicant
And
| MR THEOPHANE |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties’ child celebrated her third birthday shortly before the hearing of these proceedings. Her parents are arguing about where she lives, who has parental responsibility and her religious upbringing.
By consent order made 15 October 2008 the child’s parents had agreed that she live with her mother, her mother should have sole parental responsibility and that she spends regular time with her father. Since that time conflict and poor communication between the parents has intensified.
The mother now wishes to reside with the child at a farm in the Atherton district and seeks some changes to the time the child spends with her father.
The father claims that as a result of an incident in late July 2009 that the mother is an unacceptable risk in caring for the child full time and as such he wants an order changing the primary place of residence of the child so that she lives with him and spends unsupervised time with her mother. He says he should have sole parental responsibility but if that is not my determination then there should be an order for equal shared parental responsibility. In addition he wants an order to enable him to take the child to the Greek Orthodox Church every Sunday and then, when the child turns 6, he wants her to attend Greek school every Friday afternoon during school term.
THE ISSUES
The issues are:-
·Parental responsibility.
·With whom the child should live.
·If the child lives with the mother then can they move to the Atherton district?
·What times the child should spend with the parent with whom the child is not living.
·Whether the child should attend Greek Orthodox Church every weekend and when the child turns 6 whether she attend Greek school every week during school term.
As both parties were unrepresented I endeavoured to explain the process of trial at the commencement and as it progressed. I was conscious that both parties had been involved in the previous proceedings in 2008 and had some levels of understanding of the court processes. I invited the parties to raise with me any concerns they had with regard to the process, and from time to time they did so. As it would be difficult for the parties to know the difference between evidence and submissions, they were sworn at the commencement of the proceedings to tell the truth both from the bar table and when being cross examined, I reminded them of this from time to time.
In these proceedings any statement of fact is to be regarded as a finding of fact unless the contrary intention appears.
BACKGROUND
At the date of hearing the father was aged 43, the mother aged 30. They had met in Melbourne in October/November 2005 and commenced to live together in December 2005.
In early 2006 the parties commenced living together at the Gold Coast in the father’s home and in April 2006 the father alleges the mother attempted suicide. The mother says that this event arose out of threats to her.
The child was born in September 2006. The mother relocated to the Cairns area in August 2007, there was, at one time, an issue as to whether that relocation was by consent or a unilateral decision of the mother. The consent orders made in October 2008 make that issue irrelevant to this determination.
The mother has entered into a new relationship and she is pregnant and is due to give birth to a child about February 2010. Her new partner works in the mines and owns a farm in the Atherton district.
An Independent Children’s Lawyer represented the interests of the child.
At the commencement of these proceedings I raised with the parties and the then Independent Children’s Lawyer that as consent orders had been made in October 2008, I should only have regard to the events since that time. In those circumstances I indicated to the parties that I would only be looking at what has occurred since 15 October 2008 in determining what changes, if any, ought to be made to those orders.
The parents and the Independent Children’s Lawyer concurred with that approach, except that the father wanted to deal with his allegation that the mother tried to commit suicide on 6 April 2006 when she was pregnant. Evidence was allowed in respect of that issue.
Shortly before the consent orders were made in October 2008 a report was prepared and released by Dr K who found that neither party suffered from any diagnosable psychiatric disorder. The Independent Children’s Lawyer at one stage sought to rely upon this report, however, the parties agreed that as it was an agreed fact. As such I treated it as agreed without the tender of the report.
This is a high conflict case and the communication by both parties is confrontational and exhibits high conflict. Neither parent has a real insight into the impact the conflict has on the child. This is a significant feature in determining the question of parental responsibility.
RELEVANT LEGAL PRINCIPLES TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Act. This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s61DA of the Act. Section 61DA is part of the amendments and became operative on 1 July 2006. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to subsections 2, 3, 4 and 5.
21.If the presumption is found to apply and is not rebutted, as not in the best interests of the child, an order must be made in accordance with s 61DA for equal shared parental responsibility. If not, the Court must make a declaration that the presumption does not apply and for reasons pursuant to subsections within s 61DA.
22.The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
[1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a Court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
How a Court determines what is in the best interests of a child is set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A Court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss60CC(2) and (3) of the Act. Part of s60CC reads as follows:
Primary considerations
(2) The primary considerations are:
(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.
Note: Making these considerations the primary ones is consistence with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
(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;
(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;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A Court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court must consider each of the additional considerations separately. A Court should have regard to all of the matters set out in s 60CC to consider how, together, they should give effect to either or both of the primary considerations in determining the child’s best interests.
A Court needs to evaluate the nature and quality of the parent child relationship.
RELOCATION CASE
This case was run by the parties as a relocation of the child’s residence over some distance. The Independent Children’s Lawyer submitted that this was not a relocation case. There was an issue about whether the Atherton area was 45 minutes (on the mother’s evidence) or 60 minutes (on the father’s evidence) from Cairns. On balance, I prefer the evidence of the mother. If the child is left in the mother’s primary care and she is to move to an address 45 mins from the father’s home, that is not a relocation and if it is done for a sound reason it should not be prevented.
THE FATHER’S EVIDENCE
The father relied upon his affidavits filed 1 July 2009, 16 July 2009, 6 August 2009, 17 August 2009, 15 September 2009 (two affidavits) and an affidavit
of 2 October 2009.The father has a strong personality. When giving evidence he was glib and was not forthright and at times was not accurate in his evidence. He is a determined and forceful character.
The father asserted that the mother contravened orders made by this Court on 15 October 2008. That contravention application was dismissed.
An example of the father’s approach to the accuracy of information is set out in his affidavit of 6 August 2009 where he said at paragraph 6:-
[the mother] on 1 May 2009 asked me that she was changing the time, that our daughter can have two overnight stays from 12.00pm Friday until 12.00pm Sunday which allowed me to increase availability time for our daughter to stay for two overnight stays.
I have had our daughter for approximately 12 weekends (three months) of two night sleep overs with me.
What the father failed to say about this was that this was a one off arrangement which was made clear to him and which is evidenced in the documents that passed between the parties.
On occasions he exaggerated and at other times he prevaricated, when asked questions which he clearly did not wish to answer. I do not believe he was truthful all of the time.
I have treated his evidence with caution.
THE MOTHER’S EVIDENCE
The mother gave evidence and was more straightforward than the father. The family consultant says, and I accept that:-
·the mother is avoidant and sometimes after avoiding problems with the father, she sometimes over-reacts;
·the mother is anxious and is distrustful of the father, and
·she does not regard him highly, however, she is compliant, with court orders.
I generally accept her evidence but I have treated it with some caution
Parental responsibility
There is a presumption that it is in the child’s best interests for the parent to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not to the time the child spends with each parent. The Act provides for certain circumstances in which the presumption shall not apply or may be rebutted. I need to turn to this because in this case the Independent Children’s Lawyer’s view is that the presumption of shared parental responsibility does should not apply because of the level of conflict between the parties.
It is usually in the best interest of children that both parents participate in major ongoing decisions about their life.
A Family Report was prepared by Ms P, a family consultant” on the 28 September 2009. In that report the family consultant says:-[2]
For successful parenting, both parents need to demonstrate effective communication and significant goodwill to facilitate co-operative interactions with each other. Furthermore, parents need to be consistent in their expectations and approach to disciplining their child; such consistency necessitates open, co-operative, child–focused dialogue. Such co-operative parenting, especially after separation, is seen as being both attainable and socially desirable but also integral to the welfare and development of the child. Certainly, children have a recognised right to be properly fathered and mothered until adulthood.
[2] Page 15 of the Family Report dated 28 September 2009.
The family consultant observed:-[3]
[the mother] and [father] are at times able to cooperate, for instance at one point they were accessing the same swimming venue and kindy gym…….
she went on to say:-
On the other hand, it would appear [the mother] and [father] are predominately parallel parenting. That is there is minimal consultation regarding how they parent [the child].
[3] Ibid.
The family consultant also said:-[4]
It is evident to the writer that the parents have not progressed to the point where they can verbally communicate in an amicable manner.……
[4] Ibid.
I agree with the family consultant’s observations where she says the parents are unable to communicate and have therefore been unable to parent co-operatively. On the evidence before, me, I do not believe this will change into the future.
The family consultant was concerned that the child would be exposed to some displays of verbal hostility by her parents, I share that concern.
The family consultant has recommended (and I accept) that an order for sole parental responsibility be made in favour of the mother subject to the following conditions:-[5]
(a)the mother keeps the father informed of all decisions made, and when time permits, to canvass his opinions regarding major long term issues of the child.
(b)in the event the mother was to relocate within the Cairns Tablelands District that she be restrained from living beyond a 75klm radius (by car) from the Cairns Post Office.
(c)in the event the mother intends to relocate beyond the 75klm radius (by car) from the Cairns Post Office, that she will not change the child’s place of residence without giving the father 90 days notice.
[5] Ibid at page 19.
The father complained that the mother had not been involved in the co-operative parent’s course however the mother offered an explanation which was supported by the family consultant which is understandable in the circumstances.
The father asserted that the time the family consultant spent at his home was twenty minutes and the family consultant said thirty minutes. I prefer the evidence of the family consultant.
Who should the child live with?
The father says the child should primarily live with him or alternately live half of the time with him or spend substantial time with him.
There is an allegation by the father that the mother endeavoured to kill herself and the unborn child on 6 April 2006. The mother’s evidence was that she was attacked by the father and fled to the laundry and threatened to take tablets as a way of defending herself. The father’s evidence is that the mother was endeavouring to take the tablets to commit suicide and he prevented her from doing so, thus saving the mother and the baby.
I prefer the evidence of the mother, although there is somewhat histrionic nature to it. I am satisfied that the father was bullying and threatening the mother and being verbally abusive, possibly physically abusive to her. She over-reacted and threatened to take tablets, and probably put the tablets in her mouth but with no intention to swallow them, only to protect herself from the abusive father. This over reaction is consistent with the assessment of the mother by both myself and the family consultant. I am satisfied that this was not an attempt to harm herself or the unborn child, and I note that subsequent to that event in October 2009 the father consented to orders that the child live with the mother.
The other major issue raised by the father arose out of an event on 31 July 2009.
There needs to be some history to put this incident into perspective. In early May 2009 the mother suffered an illness which made it difficult for her to care for the child on a particular weekend. Her family could not provide the help that she needed at that particular time and as such she asked the father, on a one off occasion, if he would take the child for a three day weekend. The mother said she was concerned that the father would treat this as an offer to extend that time permanently and as such made it clear that it was one weekend only.
The mother’s concerns were realised as once this one off occurred the father required this arrangement to continue indefinitely. The father said this arrangement continued over about a ten week period, but it is clear from the evidence of the mother (and at some degree from the evidence of the father) that the mother was urging that this arrangement to stop and that the father was determined that this remain in place.
The mother had arranged for a letter to be sent to the father by her then solicitor to bring the arrangement to an end as the mother said, and I accept, that it was having a detrimental effect on the child.
I am satisfied that on Friday 24 July 2009 the mother arrived at 8.30am Friday morning for the child to spend time with the father for that day only and that the father turned up in the middle of the day to try to continue the unilateral arrangements he was endeavouring to impose on the mother.
It was not consensual parenting by the father and was an endeavour by him to impose the regime upon the mother rather than through negotiation or court orders. Inevitably the child did not see the father that day.
The father assured me in evidence that the following Friday he had entered into an arrangement with the mother to collect the child at 8.30am to stay with him for the whole weekend to make up time that he lost the previous day. He said he had no notice at any time from the mother or anyone on her behalf that the mother wanted to revert to the orders. Later in cross-examination he conceded that a member of the mother’s family had telephoned him about it but he ignored the notice because it was not from the mother.
The Independent Children’s Lawyer asked him to explain an entry in the communication book, and in particular, his comment on 25 July 2009 that:-[6]
Next Friday I will be pick up [the child] at 12. You will be there - … you leave me no choice this won’t occur. 1 May 2009 I had [the child] at 12.00pm to overnight until Sunday 12.00pm …
[6] Exhibit ICL1.
There was an issue as to whether the words following that in the communication book were written there at that time or at some other time.
Irrespective, of this I am satisfied that the father knew there was a problem the following Friday. His evidence was that the mother knew and that his note to her[7] was just politeness. His evidence was untrue. The father had intended to continue to force the arrangement on the mother and had, by handing her the letter, inflamed an already volatile situation. His expressions of concern for his daughter as a consequence of the volatility which he put in place are hollow.
[7] Exhibit B of mother’s affidavit filed 2 October 2009.
The mother arranged to meet the father at 8.30am on 31 July 2009 in accordance with the court orders. The father knew that if it was to be a three day weekend the pick up time would be about 12.00pm.
In an approach inconsistent with the then orders and the wishes of the mother, the father took the child and then handed the mother a letter saying he would retain the child until the following Sunday. The mother panicked (as I find the father would have been aware). She went to the father’s car and tried to stop him from taking the child. The father asserts that the mother endeavoured to smash the window near the child, I do not accept his evidence in that regard and I prefer the version of the mother.
The father drove away with the child. The mother in a state of high anxiety drove her car along another street and used her car to block the father from using that street. She drove in a dangerous way. The mother pleaded guilty to driving in that way and was fined $600 but no action was taken on her driver’s licence.
The father said that there was a significant impact between their motor vehicles. Yet his own quotation shows that the damage to his car was minimal, if at all. Most of the cost was removing and replacing parts of the car so that a light holder could be replaced. The mother says that the car was in fact damaged elsewhere in another accident. I am satisfied that there was no collision. I am satisfied that the father set up this confrontation and that his evidence was at least highly exaggerated. I am also satisfied that there may be some exaggeration to the evidence of the mother.
The father submitted that the mother intended to harm the child on 31 July 2009. I do not accept that submission nor do I make that finding. The mother acted impulsively dangerously but it was out of a protective concern rather than violent behaviour towards the child or the father.
The father created the conflict irrespective of its impact on the child. Neither parent can look back on that episode with any pride, it was about their conflict not about the child.
On another occasion the father observed three bruises on the child. He concluded that these bruises were as a result of the mother pinching or squeezing the child. He reported that matter to the child protection authorities. There is no evidence that the bruises have been made by the mother. The father did not contemplate an innocent explanation for them. I am not confident the father would encourage a relationship between the mother and the child.
I am satisfied that the mother does not pose an unacceptable risk to the child.
Changeovers
The father suggests that some changeovers should occur at the local library and I have endeavoured to facilitate that on some occasions. Similarly I have endeavoured to address the Christmas Day concerns, once the child becomes older, by using that as a launching point for the time the child spends with each parent over that holiday period.
Relocation
In his affidavits of 1 July 2009 the father noted that the mother no longer wished to move from Cairns and thus she should be forced to remain in Cairns for the indefinite future. The mother is proposing to move forty five minutes from where she currently lives. That is not a relocation. It may add a little bit to the travelling however in all of the circumstances of this child, particularly with regard to the comments of the family consultant, it seems a sensible child focused approach. I will put in place orders which provide that each of the parties do part of the travel with the father to collect the child from the Skyrail base and the mother to collect the child in Cairns.
Church
The father wants the child to attend Greek Orthodox Church each Sunday and commenced Greek school every Friday after the child’s 6th birthday.
Annexed to his affidavit of 2 October 2009, and admitted into evidence, was a letter from Reverend O of the Greek Orthodox Church. Reverend O said that the child was making friends by attending the church on a regular basis and this provided a foundation for her to attend the after hours Greek language school and Greek dance group held weekly. He said that this would enhance her development in both the Greek language and the traditional dancing.
I note the evidence is that this later course does not commence until the child is six and presumably she can attend there on a fortnightly basis.
Reverend O went on to say that consistency is important in the child’s spiritual and cultural development. He did not say, as the father did, that it was necessary for the child to attend each Sunday.
The mother is a Buddhist. She has no objection to the child attending Greek Church on the Sundays when the child is with the father but she is anxious that the child spends some weekends with her particularly as the child will be commencing school in 2011 (part time) and 2012 (full time). The child will likely have a sibling in early 2010.
During the hearing I gave a copy of the parties a copy of the decision Federal Magistrate Altobelli in C & B [2007] FMCAfam 539. In that case the Federal Magistrate discussed the roll of Courts in religion and rightly concluded that courts cannot be a panacea for all interrelationship problems. He said:-
113.This is a difficult issue. I do not have enough evidence to make a decision. I would in any event be reluctant to make an order in terms of that sought by the mother. I doubt it can be enforced. Even if it were contravened it would be almost impossible to fashion an appropriate sanction. There are some matters of parental responsibility that are simply best left to parents to decide. This is one of those issues where, on the facts of this case, law should not intervene. The mother who is Jewish, and the father who is Catholic, might consider for themselves the words of an eminent Mormon family law scholar:
“Some advocates of children’s rights manifest the lingering hubris of the belief in the infinite and invincible capacity of the law to do good. They see law as a secular Messiah, a cure all for every social ill, a big yellow social bulldozer that can shove away the old problems and build new temples of goodness. But rights and relationships are very different things. It is troubling to try to define relationships between parent and child in terms that suggest separation, individualism, boundaries, legalism, lawyers, courts, lawsuits, and forced compliance”.
114.Perhaps it is not just advocates of children’s rights who need to reconsider the view that law somehow has the answer to all the issues that might arise in relation to children. Perhaps many parents who have conflicts about their children also need to recognise the limits of family law.
To put in place one parents choice of religion over every weekend would circumvent the beliefs of the other and could impact on the broader relationship between the child and her mother and other sibling. It seems to me that every alternate Sunday with the father at his Church is sufficient.
In terms of the arrangements for Greek school that is so far ahead and the circumstance of the child and the parties three years ahead are uncertain. I will not make an order in that respect at this time. That should be a matter for the parties to negotiate via a Family Relationship Centre or similar in the coming years.
The father submitted that unless the child lives with him half the time or most of the time he would not have a relationship with the child. I do not accept that submission. I am concerned that his approach is parent centred not child centred. I have considered whether this is an appropriate case where an order should be made for equal or significant and substantial time. There is great conflict between the parties which predicates against equal or significant and substantial time.
Equal time does not mean a meaningful relationship and lack of equal time does not necessarily equate to a meaningful relationship. Equal time in this case is about the needs of the parents not the needs of the child.
There is no doubt that the father in recent times has developed and is developing a good relationship with the child. There is not a doubt that the father loves the child and the child loves the father. However, I accept the evidence of the family consultant that the primary connection with the child is with her mother and that the mother’s general parenting of the child is of high quality.
The father says that any change giving him less time would upset the routine of the child. What I intend to do is put in place a routine which can develop to significant and substantial time once the child commences school. In doing so I am hopefully putting in place arrangements which would prevent the child from being exposed to unnecessary conflict between the parents at changeover.
Section 60CC (3) Factors
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is too young and too immature to have her views taken into account. The child was not interviewed by the family consultant.
(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);
On the evidence of the mother and the family consultant I am satisfied that the child is closely bonded with the mother and that the mother is the child’s primary attachment. The family consultant, who has undertaken two reports, was strongly of the view that the mother is generally a good calm parent with regard to the child. The general nature of her evidence was that the mother is a good mother and parents well but for the pressure applied to her by the father.
The family consultant reports that the father and the child have a deep affection for each other and the child responds affectionately to the father. Her evidence, however, was that the child is not as attached to the father as the mother. The child has a close relationship with her maternal grandparents and the mother hopes the child will have a close relationship with her half sibling who is to be born early next year.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent including the father’s views as to the mother’s involvement with the child
The mother is compliant with orders. She is somewhere inflexible in terms of that compliance and has genuine concerns about the father. The father asserted that the mother “hates” him and refers to paragraph 53 of the Family Report. That has to be read in context.
The family consultant also says the mother has a “relaxed style” and is committed as a parent; she has a strong relationship with the child and a strong bond with the child.
When the father exerts enormous pressure on the mother and the mother becomes anxious she then expresses hate towards the father but is then able to move on from that. At some levels it is at least indicative that the mother is endeavouring to be frank to the family consultant.
The parties are unable to communicate except at the most basic level. They cannot agree on many factors and the language used in the communication book is indicative of their difficulties in co-parenting.
The father in his case endeavoured to show that this was a fault of the mother and not him. That in itself shows his enormous lack of insight. I am confident that the mother will encourage a relationship but perhaps not as confident as that of the family consultant.
On the other hand the father has completed a focus on children course although the family consultant says that he is more self focused than child focused. When watching the father give evidence and listening to his evidence it is clear that he does not see the impact of his very powerful nature upon the mother and consequently the child.
The family consultant gave evidence that if the father was given sole residence it is likely he would “shut the mother out and move to the Gold Coast”. On seeing and hearing the father I am satisfied that that is a distinct possibility.
The father sees any injury to the child as an assault. Children from time to time get bruises. That is the nature of little toddlers. The father asserts that this is evidence of abuse by the mother and there is no such evidence.
I am not confident the father encourages the relationship between the child and the mother. The father has very strong Orthodox Greek religious beliefs. He seems dismissive of the mother’s beliefs in Buddhism. The father is determined that the child should attend Greek school and attend church every Sunday.
(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;
If the child moved to the care of the father it would be a huge wrench to this child, her primary carer is the mother. There is no evidence of any circumstance which would warrant such a wrench. The events of 31 July 2009 must be seen in context and in terms of the findings of fact, they are unfortunate but do not warrant the change sought by the father. It would have a profound impact on this child which, in the circumstances of this case, is unnecessary.
I am not confident that the father would encourage a relationship with the mother or allow the child to continue in the meaningful relationship with her.
The move to the Atherton area is not that far away in real terms, particularly for a father who has a car and the recourses to use it. The Atherton area is a 45 minute drive from Cairns. In a capital city such drive would hardly raise any concerns at all. The father conducts a relationship with his girlfriend between Cairns and the Gold Coast and seems quite happy to travel to Brisbane to conduct the case in child support when a telephone hook-up would have been sufficient. The mother proposes a changeover at Skyrail or at a child care centre. Either of those makes sense. The effect of the change to the Atherton area may mean that the father spends a little more time in his car but it is not of significant consequence, when weighed against the benefits to the mother and child of living in a different area than the father. This is supported by the evidence of the family consultant.
(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;
There is no practical difficult and expense in the child moving to the Atherton area bearing in mind both parties have cars.
(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;
There is no issue that both the parents have the physical capacity to care for the child, although there is some concern about the emotional capacity of both parents as discussed earlier in these reasons. However, I am satisfied that both are able to care for the child apart from the underlying conflict that exists between them and their inability to communicate.
Having regard to the expert evidence of the family consultant, which I generally accept, I am satisfied that the child has a better chance of thriving in the full time care of the mother than the full time care of the father and in particular I note her observations set out in the Family Report, her evaluations and recommendations.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The father is of Greek background. The father is anxious for the child to understand her Greek culture and heritage. The mother does not oppose that although she is concerned, and in the circumstances of the evidence before me, rightly so, that the father will allow his religious beliefs to overwhelm that of the mother’s.
The orders I will make will enable the father to involve the child in her Greek lifestyle and culture and continue to take the child to church at least each alternate Sunday. I do not intend to make orders that the child go to Greek school which is some three years ahead, that is too far ahead in the future. At this stage I do not intend to prevent the father from taking the child to church although he ought to be sensitive that this is one of the religious views which is being passed on to the child, not the sole religious view.
It may be appropriate, depending on the circumstances of the child, that she attend Greek school when she is six. That will be a matter that the parties will need to address at that time and hopefully through a Family Relationships Centre or other mediation. The mother was ordered to undertake post-separation counselling. I accept the evidence of the family consultant that the mother has endeavoured to go into that course but due to the availability that has not yet been completed although the mother is booked in.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents demonstrate generally strong regard to the responsibility to parenthood except in terms of their behaviour to each other and the continuation of this conflict. They both must be aware that the conflict is damaging to this child but the dynamics of their personalities and their approach is such that the conflict remains and, sadly, I accept the view of the family consultant that it is likely to remain in the foreseeable future.
I find that the communication between the parties is poor and not likely to improve irrespective of the circumstances.
The family consultant recommends that the mother partake in counselling with regard to her anxiety and I will make an order that the mother do so. The mother said she would consent to such an order and as such I have made that order.
(j) any family violence involving the child or a member of the child’s family;
In terms of family violence and family violence orders I reiterate what I said earlier that there was a history of family violence which I did not address bearing in mind the orders made in October 2008. This is with the exception of the circumstances on 6 April 2006 which were raised by the father and which I deal with in these reasons.
I am satisfied that this was an example of the father being violent to the mother both verbally, emotionally and physically and that the mother reacting to that violence in a peculiar way which reflects her inability to deal with the kind of conflict which the father raises.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
The issue of violence has been discussed elsewhere in these reasons and there is no current family violence order.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The Independent Children’s Lawyer submitted
The mother has concerns that the father uses court proceedings/and or the threat of court proceedings as a weapon against her. In any case, finality is preferable, given the age of the child, it is submitted that the orders made should take into account that her needs will change over the years. In this regard, it is submitted that the time the father is to spend with the child should alter as she becomes older and starts school etc.
I accept that submission and I have structured orders to address that submission. However, I am concerned that irrespective of the orders which are in place the father will continue to come back to the Court to seek more time and further direction.
(m) any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
Section 60CC(4) of the Act
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Each party has taken the opportunity to participate in the life of the child since separation and spend time and communicate with the child. Both parties have failed to find a solution to the conflict that exists between them.
The financial care of this child has been left almost entirely to the mother since separation. Since separation the father has paid very little child support.
On the father’s evidence he has paid a total of about $2,600 child support over the period of 2 years since separation, about $26 per week. On the mother’s evidence he has paid about $1,400, about $14 per week. I do not need to determine that fact for either way, in the context of his earnings and lifestyle, the father pays a very small amount
The parties are currently engaged in proceedings in another place with regard to the child support. During the course of this trial the parties were also involved in proceedings in the Federal Magistrates Court (on Thursday 8 October 2009) with regard to the level of child support paid, there being current arrears of about $15,000. The value of those arrears will change depending on the outcome of the child support proceedings.
The father pays about $160 per week for his motor vehicle. It is stark in terms of his attitude to parenting that he pays that amount for his car and $14 to $26 per week for the maintenance of the child.
There was evidence about the father’s income and I find that he earned about $41,000 in the 2008/2009 financial year. This being about $2,000 a month interest on his term deposit, about $7,000 a year in sales and about $10,000 a year net on an investment property.
I am not confident that this discloses the whole of the father’s income. He was reluctant to provide details of his income and his expenditure, particularly in light of his flying from the Gold Coast to Cairns on an almost a weekly basis for part of 2009, to spend time with the child, had somewhat of a hollow ring to it. Even if he was earning $41,000 per year and the child was in his care for 104 nights of that year (as he asserted) then his levels of child support are ridiculously low.
The father says he is going to a new business at the present time in the tourist industry in Cairns. He anticipated earning about $40,000 for the first year of that business and in addition to this he was continuing in the business of sales. The father says that this will be a seven day a week job but the hours are fluctuating.
I have had regard to the circumstances and events since separation.
Having regard to all of those circumstances it seems to me that it is of benefit to the child to have a meaningful relationship with both parents.
There is a need to protect the child, as far as possible, from the conflict between the parties. To that end the less interaction the parties have the better.
My first determination is whether there ought to be equal shared parental responsibility or it should rest with one parent or another. The family consultant’s evidence was that:-
For successful parenting, both parents need to demonstrate effective communication and significant goodwill to facilitate co-operative interactions with each other. Furthermore, parents need to be consistent in their expectations and approach to disciplining their child; such consistency necessitates open, co-operative, child–focused dialogue. Such co-operative parenting, especially after separation, is seen as being both attainable and socially desirable but also integral to the welfare and development of the child.
Sadly in this case the evidence of the family consultant is that this child’s parents are unable to parent co-operatively. She says it appears they :-
are predominately parallel parenting …… and there is minimal consultation regarding how they parent the child.[8] …… [they] have not progressed to the point where they can verbally communicate in an amicable manner”.[9]
[8] Page 15 of the Family Report dated 28 September 2009.
[9] Ibid.
This is a high conflict case. The father and mother in terms of the events leading up to the 31 July 2009, including those times, has shown an inability to communicate at any rational or reasonable level. To place that child in joint parenting in those circumstances would certainly not be in the best interests of the child.
Counsel for the Independent Children’s Lawyer submitted it was not appropriate that I make an order for equal shared parental responsibility and said in support of this assertion:-
….. given the level of conflict between the parties it is likely that any attempt to participate jointly in the decision making process will result in conflict, which as the child grows older, is likely to cause psychological harm to [the child]. As such, it is recommended that one party be responsible for the long-term decisions, and given the recommendation by the family court report writer that the child, reside with the mother, it is preferable that the mother have the responsibility for long-term decision making.[10]
[10] Page 10 of the Outline of Case of the Independent Children’s Lawyer.
I am satisfied in this case that the mother should have sole parental responsibility of the child. The mother is the primary carer of the child and provides a safe and loving environment for her. She is sensitive to the child’s needs and manages an ongoing relationship between the child and her father. This is also because she will comply with the orders and this will enable decisions to be made about the well-being of the child in the circumstances where the parties cannot operate jointly.
Having determined that there ought not to be a change with regard to parental responsibility I now turn to the question of where the child should live.
As may be clear from these reasons, there is no basis upon which the orders made last year, that is, that the child live with the mother, ought not to be changed. Conflict has continued and these parents. The father has taken contravention proceedings in circumstances where they were dismissed and where the father’s evidence and the mother’s evidence was that it was unmeritorious (whether it was completely unmeritorious or not was not clear).
Further there are difficulties in terms of the father’s proposal to care of the child; his availability to care for the child, his failure to understand the impact of his very powerful nature upon the mother and consequently the child, and his approach towards failing to meet his child support obligations for the child.
The child is settled in the loving care of the mother and is thriving but for the conflict which the child endures through the parties at changeover.
In his submissions the father said that he primarily sought that the child live with him and spend time with the mother. That is clearly not something the father has thought through and having regard to the evidence of the family consultant, in terms of the quality of care provided by the mother and the quality of care provided by the father, it is not sustainable.
The father’s fall-back position was that there ought to be equal time. I asked the father how this would work and how that would be in the best interests of the child. The father struggled to give a rational response. I am concerned that the equal time was more about the need of the father rather than the need of the child.
The father’s proposal for the child’s care are ill-considered and are not child focused.
The father has approached a lady who works in a shop in Cairns to care for the child whilst he is working. The father proposes to employ her seven days a week for three to four hours per day. Bearing in mind the mother will be available to care for the child on a full time basis there is no reason why the child should not be in her care.
As an example of the conflict the father tendered in evidence an email from the mother dated 27 and 28 June 2009[11]. The father said to the mother in his email[12]:-
Will you be looking into that child care centre next week, also I have been busy cleaning the house …
U (sic) decide to book [the child] to child care centre at […] that will end any further correspondence from me and possible (ICL).
[11] Exhibit F5 and Exhibit F 7.
[12] Exhibit F7
The mother replied in agitated terms on 29 June 2009:-
I am not putting [the child] in child care, WHY THE HELL WOULD I, I LOOK AFTER [THE CHILD] NOT SOME STRANGER. [The child] is great with other kids, she is most of the time a good sharer, all toddlers go through a bit of mine, mine mine stage, it is normal. Read some books about it [the father]. I do intend to move to [the Atherton area] in September, so I will be putting that before the Judge and he can make the rules. We are due in court in September.
In relation to the father’s proposal it is noted that in the Family Report[13] the father proposed that the child live with him on the Gold Coast although his position changed during the hearing. I am concerned that his long term plans are to relocate with the child to the Gold Coast.
[13] Dated 28 September 2009.
Having regard to all of the facts and circumstances articulated in these reasons and as set out in the parties respective affidavits I am satisfied that the child should remain living with the mother and spend time with the father.
In terms of the time the child spends with the father, the mother does not want the child to spend more time than necessary and is somewhat restrictive. At some levels this is like slicing up a piece of cake, a little bit of time here and a little bit of time there. This has to be seen in the context of a child having an entitlement to grow up in some peace and without constant yo yoing between parents. The less changeovers the better and the less contact between these parents the better. The facts of this case predicate against equal time (which I considered) and whilst there will be additional time once the child starts school the time at present needs to be limited to protect this child from conflict.
The family consultant initially raised three options but preferred option three. I am attracted to that approach although I think the time spent out to be just a little less bearing in mind my concerns about the child being exposed to the conflict between the parties.
The orders are structured to put in place less contact between the parties and initially each alternate weekend with another day. They will develop over the years to each alternate weekend plus one other night and half school holidays. I determine that this will meet the child‘s needs for now and when she starts school.
In terms of school holidays I propose that the child will spend three periods of three days over the Christmas school holiday period in 2009/2010 and four days in each of the school holiday periods in 2010. In 2010/2011 the child will spend two periods of five days with the father and then five days in each of the school holiday periods that year, in 2012 it will go to half school holidays. Normal time will be otherwise suspended during school holidays.
In terms of religious instruction, there is no reason why the child, at this stage, should be prevented from having religious beliefs with each of her parents whilst in their respective care. In addition I will be making orders for Mother’s Day with the mother, Father’s Day with the father.
At Christmas I propose that the child will be with one parent from Christmas Eve until 2.30pm Christmas Day one year and from 2.30pm Christmas Day until the end of Boxing Day the following year.
The move to the Atherton area
It is not in issue that the mother is in a relationship with Mr E. She is pregnant to him and due to have a baby by him in February 2010. Both the mother and Mr E at one stage were looking to purchase a property in Cairns. They were unable to get that property and the mother now wishes to live most of the time in the Atherton area which is about a forty five minute drive from Cairns.
This is not a relocation case. However it is appropriate bearing in mind the consent orders made last year that a court consider the question of the move.
The evidence of the mother, which I accept, is that Mr E wants to live at the farm and she wants to live at the farm with him. Mr E spends about twenty one days a month away from home in terms of his work. The child is settled on the farm.
The evidence of the family consultant, which I accept, is that the mother worries about the father watching her and monitoring her movements and as a result and she becomes anxious. The parents live in the same vicinity and meet from time to time in Cairns where they live. I accept the evidence of the mother that the father watches her and at some levels stalks her. The father’s explanations about some ‘inadvertent’ meetings are not convincing. I accept the evidence of the family consultant that it would be better for the mother if she was further away from the father to avoid those accidental meetings.
The parties and the Independent Children’s Lawyer are each suggesting that the child spend a couple of hours on her birthday with the parent with whom she is not living. The effect of that is that the child’s birthday will be spent travelling from one parent to another and is more about the needs of the parent than the needs of the child.
On examining the Queensland school holiday dates from 2009, 2010, 2011, 2012 and 2013 it is clear that the child’s birthday takes place in the Queensland school holiday periods. The effect of these orders and the order I propose to make that commencing 2012 the child will be with one parent in that week in one year and with the other parent that week the following year. I will put in place orders for the parent who does not have the care of the child on her birthday to spend an hour with the child on that day. However, it will be the parent that travels not the child. In terms of the changeover arrangements during school holidays, they shall be agreed by the parties in writing or in the event the parties are unable to agree with the father to collect the child from the Skyrail base and the mother to collect the child from the day care centre or the foodcourt at S Shopping Centre or, if it is not open, the church at the end of that time.
Summary
The mother is the primary carer of the child and the matters raised by the father, both before and after the consent orders, are not such as it would be in the best interest of the child to change that arrangement.
The conflict and general nature of the parties, considered in the light of the factors under s60CC of the Act, is such that that equal shared parental responsibility would not meet the needs of the child nor would it be in her best interest. The better approach is that the mother have sole parental responsibly with a requirement to keep the father informed as recommended by the family consultant.
As to the time the child spends with the father, it needs to be regular but not equal, having regard to the facts of this case. It needs to change and increase until the child commences school in early 2012. I have fashioned the orders to meet that need of the child.
To reduce the possibility of conflict at changeovers they need to be in public places and as irregular as possible.
With the religious education of the child I have put in place orders which are balanced and leave available the attendance of the Greek Orthodox Church on a fortnightly basis. The question of Greek school is left until after 2013, which is the first term of school in the year following the child’s 6th birthday.
As there has been at least one notification to the Department of Child Safety I propose to direct the Independent Children’s Lawyer to provide a copy of these reasons, the orders and Family Reports to them. This would enable the Departmental officers to have some context in respect of any further notifications. I did not raise this with the parties or the Independent Children’s Lawyer during the hearing. Accordingly I am giving leave for them to relist the matter before me on short notice, to enable argument on this point should the parties or the Independent Children’s Lawyer think it is unnecessary or unreasonable.
Accordingly, I will be making orders as set out in these reasons.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 6 November 2009
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