J and L
[2003] FMCAfam 65
•14 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| J & L | [2003] FMCAfam 65 |
| CHILDREN – Planned relocation of mother – evaluation of parties’ competing proposals – child of tender years – evaluation of mother’s proposals for contact – recognition of mother’s entitlement to freedom of movement. Family Law Act 1975, ss.60B, 65E, 68F(2) U v U [2002] HCA36 |
| Applicant: | R S J |
| Respondent: | A F L |
| File No: | DNM2340 of 2002 |
| Delivered on: | 14 March 2003 |
| Delivered at: | Darwin |
| Hearing date: | 28 February 2003 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms R Davis |
| Solicitors for the Applicant: | Davis Norman & Associates |
| Counsel for the Respondent: | Ms M Bowen |
| Solicitors for the Respondent: | Cecil Black |
| Counsel for the Child Representative: | Ms E Terrill |
| Solicitors for the Child Representative: | Terrill & Associates |
ORDERS
That the father and mother have joint responsibility for making decisions concerning the long-term care, welfare and development of the child of the relationship K M L born 22nd of October 2000.
That the said child reside with the mother in J in the state of Q and the mother have responsibility for making decisions concerning the day to day care, welfare and development of the said child.
That the further hearing of this matter be adjourned until 10.00am on
4 April 2003 to enable the parties and the child representative to agree appropriate orders for the father to have contact to the said child. In the event that the parties provide a minute of the orders that they seek in respect of contact and that minute is approved prior to the adjourned date, the adjourned date will be vacated.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM 2340 of 2002
| R S J |
Applicant
And
| A F L |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a difficult and perplexing matter. It is what is commonly known as a “relocation case”. The parties, A F L and R S J have one child, K M L, born the 22nd of October, 2000 and thus a little under two and a half years of age at the present time. Each of the parents seeks orders in respect of arrangements for the future care of K. The mother wishes to be able to move from K in the Northern Territory and live with K in J, a small community in southeast Q. The father seeks orders that would allow him to have extensive weekly contact with K, which by implication would prevent Ms J from moving away from K. Ostensibly at least, the father does not oppose a residence order being made in favour of the mother in respect of K.
As a result of the difficulties inherent in such relocation cases, K was separately represented in these proceedings by Ms Terrill.
Both parties are comparatively young. Neither of them is originally from the K area. The father being from rural V and the mother from J. They both came to K in search of work in their early adulthood. They met in the town and were involved in a relationship that ended on acrimonious terms, after a little over three years. The mother is bitterly unhappy in K and wishes to return to her own people and community in J, with K. The father has prospered and done well in K. He has friends in the town and a good job. As a result, he has no wish to leave K, which has become his home.
The relationship between the parties is currently bitter and conflicted, a state of affairs that is unlikely to change in the foreseeable future. The positions of the parties are polarised in the extreme and there is no ready solution to their competing claims. Each of the parties has a different view as to what arrangements will be most likely be in K’s best interests in future. Each of them is critical of the other’s ability to care adequately for K in the future and each accuses the other of being at best, an incompetent parent and, at worst a wilfully negligent one. Neither of them trusts the motivation of the other for adopting the particular position they have in respect of K in these proceedings.
It is the father’s position that he has a close and loving relationship with K and that, given her age and current level of development, to allow the mother to move with her to Q would be tantamount to severing her bond with him and would have the inevitable consequence of removing him from K’s life, as her father. There can be no doubting that arrangements for the father to have contact with K, in the event that she does relocate with her mother to J, would be problematic indeed and at best, the father would be able to see her only every few months or so. In the father’s submission, such contact would be inadequate and would not sustain the bond between father and child, with the consequence that K would lose her relationship with her father, to her long term detriment.
It is the mother’s position that she is the central and most important figure in K’s life and has been since the time that K was born. The mother asserts that the father has no insight or understanding into the nature of the relationship between her and K and, on the contrary, is dismissive and undermining of it, to the detriment of K and her well being generally. As a result, it is the mother’s position that each day of her life in K has the potential for her to be harassed and hectored by the father, particularly in respect of the manner of her care of K. She is accordingly deeply unhappy in K and sees no future for herself in the town. She can see no end to the abusive and unremitting behaviour of the father towards her, other than that she leaves K. She feels socially isolated and without support in K. Her family and in particular, her mother, Judith J are her main sources of emotional support and they are in J. In essence, it is her position that, as K’s primary provider of care, it is important that she live in an environment in which she is happy and free from stress and that, if she is in such an environment, it will be conducive to her ability to properly parent K, to K’s long-term benefit. This environment can only be provided outside of K and, at this stage, is available to her at her parent’s home in J. It is implicit in the position that she has taken that it would be better if the father was to move in tandem with her to south-east Q rather that to compel the mother to live indefinitely in K against her will, so that K may maintain her existing bond with her father and in future develop and extend this bond.
This already difficult matter is complicated by one further matter. As a consequence of her responsibilities for adequately representing K in these proceedings and pursuing her best interests, the child representative arranged for both of the parties and K herself to be assessed by an experienced child psychologist, Ms L M. Ms M has particular experience in what is known as “early intervention”. This being a field related to the detection of disabilities in infants and the provision of services to them and their families.
After her necessarily brief assessment of K, it was Ms M’s tentative view that she displayed a “pervasive developmental delay”. It is common ground between the parties that K’s expressive speech level is somewhat delayed, when compared to children of a similar age. It is neither appropriate nor possible for Ms M to provide a definitive diagnosis as to the probable reason for this level of developmental delay and whether it is as a result of anything untoward in K’s organic make-up. That diagnosis must fall to a suitably qualified paediatrician. It is unlikely in the extreme that such a paediatrician would be in a position to make any diagnosis, let alone a definitive one of K’s likely special needs in future, until she is at least three and a half years of age.
This raises a third outcome for these proceedings, which was neither raised nor advocated by either of the parties - that is that the mother should be restrained from removing K from K until this medical evaluation process has been completed, in about a years time. This time would also have the benefit of allowing K to consolidate her relationship with her father and make this relationship more resistant to the rigours of separation which will be necessarily imposed on it by the mother’s relocation with her to J. As is obvious from a consideration of K’s age at the present time and her expressive speech delay, telephone contact between her and the father is, at this juncture at least, essentially meaningless for K.
Ms M acknowledged the bitter and conflicted nature of the relationship between the parties, particularly the harsh and unremitting criticism the father has of the mother and her ability to provide the pre-requisite level of care for K. In Ms M’s view, it would be a benefit for both parents and so for K, if they were both involved, albeit separately, in the process of K’s special needs being accurately diagnosed, so that they could both have an understanding of those needs and be educated by appropriate professionals, as to how to cater to those needs. In this way, their parenting of K would be predicated on a common basis, in order to enable them to work together towards a common goal in their parenting. Ms M believed that, if the father understood that K’s current level of development was as a result of matters inherent to K herself and was not as a result of any omission on the part of the mother in her case, it might ease the current disastrous nature of the relationship between the parties.
Ms M did not necessarily advocate the moratorium as the best outcome in this case. She merely put it forward as a possible outcome. In fact, Ms M did not advocate any preferred outcome from her point of view, seeing the case as being problematic and complex, with no easy or obvious outcome. Certainly, neither party advocates delaying the final resolution of the matter of relocation for one year. Both seek that the matter be determined one way or the other, at the conclusion of these proceedings.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and often irreconcilable claims of right. These claims of right arise when the parents of children have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
In U & U[1] Hayne J said:
“What have come to be known as ‘relocation cases’ present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[1] U v U [2002] HCA36 at paragraph 170
In this case, it will be necessary for me to make findings as to the credit of each of the parties concerned and in particular as to whom of them is more responsible for the current disastrous state of their parenting relationship. In particular, I will have to determine whether the father has been unremittingly harassing and intimidating of the mother, both before and since the parties separated, as she alleges. I will also have to make findings as to whether the father’s parenting of K is likely in future to be seriously compromised by his abuse of either alcohol or marijuana. I will also have to make findings as to the truth or otherwise of the father’s allegations that the mother is an incompetent and lazy parent in that she has refused to administer proper medical treatment to K when required and to provide for her proper emotional, nutritional and hygienic needs. In short, whether the mother is likely, in future, to subject K to serious neglect or emotional abuse.
Having indicated in stark terms the nature of the findings I must make in this case, I have no reason to believe other than that Mr L and Ms J, in spite of the serious and trenchant criticisms they make of each other, are motivated in these proceedings by anything other than their love for K and their hope for the best outcome for her in them. Although K’s best interests are my paramount consideration, I am well aware of the painful ramifications that may potentially flow from the decision that I will make in this case.
Applications
At the outset, it is appropriate to set out the competing proposals of the parties. The mother is the applicant in these proceedings. In her amended application[2], the mother seeks the following orders:
[2] Mother’s amended form 3 application filed the 28th of January, 2003
(1)That the child K M L born 22 October 2000 reside with her mother and that the applicant mother have responsibility for the child’s day to day care, welfare and development.
(2)That the applicant mother be permitted to relocate to Q with the child.
(3)That the father have contact with the child as deemed appropriate by this Court.
(4)Further/other orders as this Court deems appropriate.
However, in a written memorandum handed up on the day of the hearing, she proposed the following orders in respect of the father’s contact with K, both in the event that she be permitted to relocate to J and in the event that she was not:
(1)If the child lives in K
(i)Alternate week-end contact with the father;
(ii)Further/other contact as agreed between the parties from time to time.
(2)If the child lives in Q
(i)Weekly contact by telephone on a specific day and at a specific time, and on important family days such as the child’s birthday, father’s birthday, Father’s Day, Easter Sunday and Christmas Day.
(ii)Contact on two occasions each year ‘in person’ up until the child reaches school age as follows:
a.On two occasions each year once in K and once in J for two periods of not less than two weeks, with the contact occurring for five days, child being returned to mother for two days, five days child being returned to mother for two days;
b.Reasonable ‘in person’ contact as may be agreed upon the father giving to the mother 21 days notice of his intention to exercise contact in J Q.
(iii)That the travel costs of the child be shared equally between the parties.
(iv)That when the child reaches school age contact as follows:
a.Contact by telephone each week on the same terms as order 2(i) herein;
b.For half of the June/July school holiday period;
c.For three weeks in the December/January school holiday period;
d.Other reasonable ‘in person’ contact should the father travel to J upon him giving the mother 21 days notice in writing of his intention to exercise such contact;
e.Further/other contact as may be agreed between the parties from time to time.
(3)That if the father locates to within 100 kilometres of the child then contact as per order 1 of these orders.
OTHER ORDERS:
(4)That each party is to keep the other informed of their current residential address and telephone numbers.
(5)That each party is to notify the other in the event that the child is ill or hospitalised whilst in either of their care.
(6)That the child reside with the mother and that she be responsible for the child’s day to day care, welfare and development.
(7)That the parties share responsibility for the child’s long term care, welfare and development.
(8)That contact changeovers are to continue to take place at a neutral place agreed between the parties. In default of agreement at the K Police Station.
In his material[3] the father does not seek a specific residence order in his favour in respect of K. He does however seek extensive contact orders, the effect of which, if made, would be to restrict the movement of the mother away from K. The father seeks the following orders:
[3] Annexure to the father’s affidavit of evidence in chief filed the 6th of February 2003
(1)That the child K M L born 22 October 2000 (“the child”) live with the mother.
(2)That the father and the mother have the joint responsibility for making decision about the long term care, welfare and development of the child.
(3)That the father and the mother each have sole responsibility for making decision about the day to day care, welfare and development of the child, whilst the child is resident with that parent.
(4)That the father have contact to the child as agreed to between the parties, but in default of agreement as follows:
A. Prior to the child attaining school age:
(a)From 10 am Thursday until 5 pm the following Sunday each alternate week commencing from the date of these orders;
(b)From 10 am Saturday until 5 pm the following Sunday each other week and each alternate week thereafter;
(c)Equally shared time on the child’s birthday;
(d)From 7.30 am until 5 pm on Father’s Day should it fall on the father’s non-contact day;
(e)Contact to the father to be suspended on Mother’s Day should it fall on the father’s contact day;
(f)First 2 weeks during June/July 2003 school holidays and each alternate year thereafter and second 2 weeks during June/July 2004 school holidays and each alternate year thereafter;
(g)First 2 weeks during the Christmas 2003 school holidays and each alternate year thereafter and second 2 weeks during the Christmas 2004 school holidays and each alternate year thereafter;
(h)Liberal telephone contact at all reasonable times.
B. After the child attains school age:
(i)During school semesters after school on Thursday until 5 pm the following Sunday and each alternate week thereafter;
(j)During school semester after school on Wednesday each other week until commencement of school the following Friday and each alternate week thereafter;
(k)Each Sunday to enable the father to take the child to the church for a 7.30 am service;
(l)As per paragraph 4A(c) to (h).
(5)That unless the parties otherwise agree, should the child be in the same town or city at Christmas in any year, as is the party with whom the said child is not at that time, then the father or the mother (as the case may be, with whom the child is not at that time living) have the child from 5.00 pm on Christmas Eve until 1.00 pm on Christmas Day on the first of those occasions and thereafter on each second occasion and from 1.00 pm on Christmas Day until 9.00 am on Boxing Day on the second of those occasions and thereafter on each second occasion, and for that purpose and for that period, the holiday contact referred to in paragraph 4A(g) be suspended.
(6)That the changeover location for the purpose of delivery and collection of the child be at the K Anglicare, when ever possible, and otherwise at the K Police Station.
(7)That the mother and the father attend the Anglicare each fortnight in the present of a counsellor to discuss the issues concerning the child’s care, welfare and development until the child attains school age.
(8)That, unless the parties otherwise agree, the father inform the mother, and the mother inform the father as soon as practicable in writing, of the telephone numbers at which the child may be contacted and any changes forthwith.
(9)That, unless the parties otherwise agree, the father or the mother (as the case may be) be permitted during that party’s entitlement to school holidays with the child to take her away from where she would normally reside during that time, upon 6 weeks prior written notice to the other of that intent and in the event of that intention, the father or the mother (as the case may be) provide to the other at least 14 days prior to that departure:
(a)A generalised itinerary and the telephone numbers at which the said child may be contacted during such absence; and
(b)Copies of the pre-paid return tickets for travel, if relevant;
And in the event that there is a material change in that itinerary or of a telephone number, the father or the mother (as the case may be) forthwith notify the other of such change.
(10)That unless the parties otherwise agree, before any action is taken by the mother concerning the child of the parties for:
(a)Education;
(b)Major medical treatment; and
(c)Religion
The mother confer with the father, and if necessary with the assistance of a court counsellor, welfare officer, and if there are any differences between the parties in relation to those matters try to resolve those differences.
(11)That unless the parties otherwise agree, the mother supply to the father as soon as possible after the receipt of the same, copies of all school reports, school photographs (at the father’s expense) and of all other documents which impact upon the child’s education, health and general well being and that the mother inform the father of and furnish all relevant documents to the father as soon as possible after the happening of a significant event relating to the education, health and general well being of the child and have such discussion and enter into such correspondence as is necessary to keep the father fully informed on all or any of these issues.
(12)That the mother take all reasonable steps to ensure that the child is not exposed to domestic violence.
These orders do not envisage a situation other than K and the mother living in K. In response to a query I made of counsel for the father, as to what orders her client would seek if the mother’s relocation was permitted, I was provided with a letter[4] which read in part as follows:
“Our client says, that should the Court order that the mother be allowed to relocate, he proposes the following arrangements for future contact:
(a)That the mother meets all costs associated with contact.
(b)That the father has contact with the child either three times a year, each contact to be of 4 weeks duration, prior to the child obtaining school age, and thereafter each school holiday period except September/October school holidays;
(c)Alternatively, five times per year each contact to be of 2 weeks duration.”
[4] Letter dated the 14th of February 2003 from Cecil Black to Terrill & Associates
At the opening of the proceedings, I invited the child representative to enunciate, if she wished, her proposals for the outcome of these proceedings. At that stage, she did not wish to advocate any particular position. This remained her stance at the conclusion of the evidence. Accordingly, she did not tender any document or make any concrete proposals as to what she believed the orders of the Court should be in these proceedings.
Although neither parent nor the child representative actively advocated it, it is open to me to consider preventing the mother relocating K from K for a finite period of time to enable the medical assessment recommended by Ms M to take place. This flows from my responsibility to frame orders that I consider will best achieve K’s best interests.
The documents relied upon
The mother relied upon the following documents:
b)An affidavit sworn by herself and filed on the 28th of January 2003;
c)An affidavit of her mother, J A J filed on the 21st of February 2003.
The father relied upon the following documents:
a)Two affidavits sworn by himself and filed on the 26th of June 2002 and the 3rd of February 2003;
The child representative relied upon two reports prepared by Ms M dated the 22nd of July 2002 and the 24th of February 2003.
In addition, the parties each tendered a number of documents. Of prime importance in this regard was the criminal history of M S, who is the mother’s current partner and various other documents that relate to domestic violence order proceedings between the parties and Mr S in the K Magistrates Court.
Both parties gave additional oral evidence and each was cross-examined by counsel for the other party and the child representative as was Mrs J. In addition, Ms M was required to attend at Court and was cross-examined by each of the parties.
Background
The father aged 25 was born at W in V on the 6th of May 1977. He is one of eight children. His parents operate a dairy farm in G. The respondent himself completed year 11 at secondary school and then attended a TAFE College. His employment experience has been primarily in meat processing and primary production. He first came to K in May of 1997. He returned to V in November 1997 and returned again to K in April of 1998. He has resided in K ever since. He is presently employed by Power Horticulture, a firm that operates a mango and citrus orchard near K. He has been employed in this position for about four years.
The mother aged 23 was born in K, the nearest town to J on the 28th of October 1979. J is a town of approximately 300 inhabitants. It has a store, social club and primary school. Its main industry is timber cutting. The nearest town to J is K, which is about half an hour drive away. K has a rural hospital and high school. The mother completed year 12 at K High School. The nearest major centres to both K and J are C and C. Brisbane is approximately two and a half-hour drive away. The mother’s parents have lived in J for the past twenty-nine years, where Mr J is involved in the timber industry. Mrs J has some part time work as a cleaner at the J Primary School. Both Mr and Mrs J are aged 52 years of age. On her maternal side, the mother has family who live near G in southern Q and on her paternal side, family who live in the B area.
The mother is one of a family of four. Her brother Z is aged 28 and also works in the timber industry in J. Her two sisters, C aged 26 and L aged 19, live together in C and both work in a cafe in the town. C is expecting a child.
Accordingly, it is clear that the mother has strong family connections in the southeast Q area. After completing school, she worked for approximately one year at the J store. Thereafter, she and a school friend decided to come to K on a working holiday. The mother had heard that there was work available at the K Abattoir. This was the first time that the mother had left her family home at J apart from a brief period of time when she lived with her maternal grandmother at L, near G. She arrived in K in early 1999 and met the father a few months later.
The parties commenced a defacto relationship in May of 1999 and separated in April of 2002. K was born at the K Hospital on the 22nd of October, 2000. K and the mother travelled to J in December of 2001 and spent six weeks with the mother’s family. They travelled to J again at Christmas time in 2002. On each occasion the costs of the air travel was met by Mrs J.
The parties dispute many things, in particular as to who of them was primarily responsible for providing for K’s care from the time of her birth and the circumstances surrounding their separation. However, it is clear that the father was engaged in full time work at the mango orchard during the whole period of the parties relationship, whilst the mother was mainly at home. The parties shared a flat above a cafe in the main street of K.
It is the father’s position that, on separation, the mother left K in his care, so that she could pursue a relationship she had clandestinely commenced with Mr S, formerly one of his best friends in K. It is the mother’s position that the father forcibly evicted her from the family home on learning of her relationship with Mr S and thereafter would not permit her to continue her role as K’s primary carer. It is her position that thereafter the father severely restricted her contact to K and threatened that if she attempted to seek orders in respect of K that he would ensure that she would never see the child again. This is in marked contrast to the father’s position that the mother effectively abandoned K with him so that she could pursue her relationship with Mr S.
In the aftermath of the parties’ separation, the father took K with him to V to visit members of her paternal family. The father and K were away for approximately two weeks. The mother was not consulted about this trip and was fearful that the father and K would not return to K.
It was against this background that the mother commenced proceedings in this Court on the 20th of May 2002. At her request, her application was given an urgent hearing date on the 23rd of May 2002. On this date, the father raised serious concerns about the ability of the mother to adequately care for K. In short, he alleged that she was a negligent and selfish mother and that he had grave concerns about K’s safety, if the Court made orders allowing for her to be returned to her care. He also alleged that there was a grave risk of K being exposed to domestic violence as a result of the violent disposition of Mr S and the high probability that he would assault the mother in future. In contrast, the mother asserted that she was K’s primary carer and was being prevented from fulfilling this role because of the father’s actions, which were motivated by his own emotional needs, rather than the needs of K herself.
Because of the paucity of information available to me on the interim hearing and the serious allegations that each party had made about the other, I determined that K should be separately represented in these proceedings. I also decided that the relevant Northern Territory Child Welfare authority, Family and Children’s Services, be invited to intervene in the proceedings. Ms Terrill was subsequently appointed to represent K. However, Family and Children’s Services declined to intervene in the proceedings.
As a result of Ms Terrill’s appointment, both parties and K were assessed by Ms M on the 13th of July 2002. She subsequently completed a report on the 22nd of July 2002, which in part read as follows:
“Until April 2002, K has enjoyed the benefits of being cared for by her primary attachment figure that is her mother. This relationship was abruptly severed when Mr L refused to allow Ms J to leave the family home with K. Young children, who experience sudden disruption to their primary attachment relationship become withdrawn, show inhibited exploration behaviours and high levels of anxiety and distress. K exhibits behaviours that are consistent with anxious or insecure attachment.”[5]
[5] Ms M’s report 22nd July 2002 page 6
As a result of Ms M’s report, on the 24th of July 2002 the following orders were made on an interim basis:
(1)That the child K M L born 22 October 2000 live with the mother and that she be responsible for making all day to day decisions concerning her care, welfare and development.
(2)The father have contact to the said child each weekend from 9.00am on Saturday until 5.00pm the following Sunday and at any other times and places as the parties may mutually agree.
(3)That the hand over and collection point for contact be at the K Police Station.
The extent of the father’s contact to K at this time was as a result of agreement between the parties. It was also ordered that the parties and Mr S attend a parenting course in K. At the time of these orders, there was no suggestion that the mother wished to relocate with K away from K. In a formal sense, the parties, and in particular the child representative, became aware of the mother’s desire to relocate when she amended her application on 28 January 2003, one month prior to the date on which her original application seeking a residence order in respect of K had been fixed for hearing.
Since the parties separated, the mother has lived with her current partner, Mr S at premises at U Road. This property is about 7 kilometres from the centre of K and is not served by public transport. The mother cannot drive herself and is reliant on others or taxis to transport her to and from K. The return taxi fare is approximately $32.00. She receives a parenting payment of $450.00 per fortnight.
The father has continued to work at the mango orchard. He receives an income of approximately $650.00 gross per week, although his hours vary according to the time of the year and the amount of work required to be done at the orchard. He lives in rented accommodation in K. Both parties have attended the Good Beginnings Parenting Course, as required by the orders of the 24th of July 2002.
There continues to be a deal of tension between the parties and between the father and Mr S. The father describes Mr S as a dangerous and violent man, of whom he is fearful. Mr S did not give evidence before me. However his prior criminal record was tendered. This indicates that Mr S was born on the 26th of June 1968 and has convictions recorded against him between 1985 and 2001. These convictions include traffic offences;[6] the possession and use of cannabis;[7] and more recently serious offences that have resulted in the imposition of terms of imprisonment. On the 2nd of November 2000 he was convicted of entering a dwelling armed with intent and was sentenced to six months imprisonment, of which sentence he was to serve 14 days, the remainder being suspended. On the 26th of September 2001, he was convicted of assault occasioning bodily harm and breaching the earlier suspended sentence and sentenced to eighteen months imprisonment, of which he was to serve nine months prior to him being considered for parole. These latter convictions were recorded at the K Court of Summary Jurisdiction.
[6] These include dangerous driving and exceeding .08 and were recorded on 31/10/85;
[7] 11/10/94
The father concedes that he and Mr S were previously friends and that he (Mr L) purchased illicit drugs from him (Mr S) from time to time. However, since the mother began her relationship with Mr S, relations between the two men have soured. In September of 2002, the father applied for a restraining order against Mr S. Such an order was made by the Local Court at K, with Mr S’s consent, without any admission of liability on his part.
On the 18th of September 2002, the mother applied for a Domestic Violence Order against the father in the Local Court at K. In support of her application she swore an affidavit, in which she deposed that the father had abused alcohol and marijuana during their relationship and as a result had, in the past, locked her out of their common home and held a knife to both her and K’s throat. In her affidavit, she indicated that the father had not assaulted or threatened her since the parties separated however, she indicated as follows in her affidavit:
“Whenever A and I see one another, he hassles me and causes trouble for me. He is always telling me that the man I am living with now is on drugs and is bashing me, when it is not true. If I ignore him, he gets frantic and raises his voice and keeps saying these things. He asks me, how long are you going to stay with M for? Every time we see each other he harasses me; several times he has called me “slut” at pick up or collection times.”
The mother’s application for a Domestic Violence Order was dealt with by the Court on the 25th of September 2002, on which occasion the father was restrained from approaching the mother, either directly or indirectly, except for the purposes of exchanging K for contact, or acting in an offensive or provocative manner towards her. The order was granted for a period of six months, on the basis that the father consented to it, without any admissions of the truth of any of the allegations made against him.
It is the mother’s position that she is the most significant person in K’s life at present and the more competent of the two parties as a parent. She asserts that she is deeply unhappy and socially isolated in K, particularly in her present circumstance at U Road. Her only sources of emotional support in K are Mr S and members of his immediate family. It is difficult and expensive for her to travel into K and, as a result, she has been unable to form social attachments in K or join any parent or play groups in the town. In any event, she asserts that the father has caused her to become ostracised within the social network in which she formally moved, because of untrue allegations that he has made against her and Mr S. She asserts that her main source of emotional support is from her mother and sisters, with whom she is in constant telephone contact, communicating with her mother in particular, on most days. She is fearful that her ability to adequately parent K will be compromised, if she is forced to remain in K against her will. In addition, she is fearful of the father and feels worn down by what she describes as his constant harassment of her. This harassment includes verbal abuse at contact handovers and the frequent allegations that he makes to police, medical practitioners in K and the child welfare authorities that she is a negligent mother and that K is in danger if left in her care. In short, it is her position that life in K is a misery for her and her emotional make-up is such that she does not have the strength to survive the constant stress that she is placed under by Mr L. It is her position that she never intended to remain permanently in K, either before or after K’s birth. She asserts that the father indicated a willingness to leave the town in the early period of their relationship but subsequently resiled from his promise to leave. Although she continues to be committed to her relationship with Mr S, it is her position that it is more important for her emotional well being that she be able to leave K, rather than to stay in the town with Mr S. Mr S intends to remain in K for the time being, operating a dog washing business that he has recently started. In both the short and long term, the mother wishes to be with her own people in J. In this environment she will be able to regain her own personal sense of happiness and freedom and this will inevitably benefit K as she (the mother) will become a more competent and effective parent.
It is the father’s position that, if the mother is permitted to relocate the residence of K to J, given her age and the distance between K and J and the practical and financial considerations of the child moving between the two locations, it will have the inevitable consequence of removing him from her life as a contributing and capable parent. In effect, K will lose him as a father. His major concern is, that given K’s current age and level of cognitive development, which is delayed, particularly in respect of expressive speech, K does not have a fully established relationship with him and, if permitted to leave, the current level of that relationship is doomed to diminish. He denies that there is any proper basis for the mother’s assertion that she is fearful of him or that she is socially isolated in K. It is his position that if she made more of an effort to make friends and engage in social activities in K, she would be happy in the town and connected to its community. He continues to be critical of her parenting skills in general, and in particular, alleges that she is unwilling to cooperate with him in forming a common basis on which to parent K together. As a result, he argues that the mother, because of her antipathy for him as a person and as a parent, is attempting to undermine the current level of his relationship with K, for her own emotional needs. It is the father’s case that he is happy living in K and his future is assured in the town. He has no wish to give up a job which he likes and in which he is well regarded by his employer. In those circumstances, it is his position that it is only reasonable that he should remain living in K and that in order for K to maintain and develop her bond with him that she too should remain living in K.
The issues
The authorities are clear that it is necessary to compare the pros and cons of the parties’ competing proposals, from the prospective of the child’s best interests. In completing that exercise, the following issues appear to be relevant:
·What is the nature of the relationship between the parties – in particular is the father denigratory and emotionally abusive of the mother as she alleges and so undermining of her role as K’s mother;
·What is the likely consequence for K given her age, level of development and attachment to her father, if she is taken to live in J;
·In the event that the mother is permitted to relocate with K to J, how can orders be made that will ensure that K maintains regular contact with her father;
·What are the likely consequences, in terms of the mother’s ability to reach her optimal parenting capacity, of her remaining in K, as she perceives it, against her will;
·What is the truth or otherwise of the allegations that the father makes against the mother that she is an incompetent and negligent parent.
The evidence
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses concerned. In what follows, statements of fact constitute findings of fact.
I observed both of the parties carefully as they gave their evidence and at other times during the course of the proceedings. Although of a similar age, and sharing the common background of growing up in rural communities, they are very different in temperament. The mother described herself as a shy and nervous person and so she seemed to me. Mrs J described her daughter as coming from a “fairly protected” home and having a sheltered background. In the witness box, the mother presented an aura of emotional venerability. She did not seem to me to have a strong or resilient personality. I do not think that she would cope easily with criticism. She did however give her evidence clearly and I believed her evidence. She was moved to tears on two occasions in response to questions regarding how she would cope with, or feel about, the prospect of having to live indefinitely in K.
I did not think that her tears were feigned. As a result, I accept that she is presently deeply unhappy living in K.
Ms J was not a particularly sophisticated or articulate witness. Her evidence was however heart felt. She tried to describe to me the difference between K and J, as she felt it. K, she said, was “a place for men”, whereas her “place” (J) was “completely different”. By this I took it, and I mean no disrespect to K, that she perceived K to be lacking in domestic comforts and to be, from her perspective, somewhat brutish and aggressive. Certainly, from her point of view, it is not a community which provides her with female society or support.
The father was outwardly self-assured and attempted to portray himself as sophisticated and worldly. However I formed the view that he is still immature and self-absorbed. He is by nature somewhat voluble and gave his evidence with an air of swagger. I have little doubt that he is by far the more assertive of the two parties. Certainly he is not timid in putting forward his views. This difference in the personalities of the two parties led me to the view that there was a considerable power imbalance between them. This was a view I shared with Ms M. It seemed to me that the father would brook little opposition from the mother in respect of his plans. I formed the view that the father was likely to have been domineering towards the mother in the past.
The father is convinced of the rightness of his position and, as a result, was prone to exaggeration in his evidence. I also formed the view that the father was liable to reconstruct his evidence to suit his own purposes, but particularly to portray the mother in as negative light as possible. In his first affidavit, the father described the mother as being “aggressive and abusive”; suffering “mood swings”; being “anorexic and bulimic”; threatening to kill herself; and being “unreliable and difficult to trust”. He was unable to say anything of a positive nature about the mother. In cross-examination, he confirmed that he could not think of anything positive to say about her as a mother. Although stopping short of describing her in his evidence as a bad mother, when asked what positive things he could say of Ms J as a mother, he replied “she was not the best mother”.
However, the father was not able to call any evidence, independent of himself, to support the allegations that he has made about the fitness of the mother to parent K and his allegations regarding her emotional stability. In particular, the father asserted that the mother had to receive medical treatment at the K Hospital, in respect of her alleged bulimia. No independent records were produced in respect of this allegation. This confirmed my impression that the father has a tendency to resort to emotional hyperbole in describing the mother, for his own purposes. As a result, I did not believe much of his evidence.
The father is still bitter as what he sees as an act of betrayal by both Mr S and the mother in forming their relationship, as he sees it, behind his back. I formed the view that he is having difficulty coming to terms with the end of his relationship with the mother and continues to be very angry with her. I believe this anger has motivated much of his behaviour towards the mother since the parties separated and is likely to be a factor in future.
Accordingly, in general terms, where there is a dispute between the parties as to the evidence, I prefer the evidence of the mother over that of the father.
a) The nature of the relationship between the parties
The mother arrived in K in early 1999 with her friend. They were on a working holiday. It was an adventure, being the first time the mother had been supporting herself away from her family. When she arrived in K, she had no plans to live there permanently.
When the parties met, they both had few responsibilities. Both were away from their families and could largely do as they pleased. As a result, they were content to party together and with other similarly unattached young people in K. Both of them overindulged in alcohol and used illicit drugs. Both being fairly immature, they did not have a firm base on which to build a long-term relationship together. Certainly they did not have access to any family support to assist them through difficulties with their relationship, once the mother became pregnant with K. Clearly the nature of the relationship between the parties changed radically when the mother fell pregnant. I accept that at this time, she wished to return to her family in J. However, although he gave some lip service to the mother’s wish in this regard, the father was not willing to leave K.
I accept that the mother stopped drinking and taking drugs when she fell pregnant with K and has remained largely abstinent ever since. I do not think that this is the case so far as the father concerned.
The flavour of the mother’s evidence, throughout these proceedings, is that she is concerned that the father’s ability to adequately parent K is potentially compromised by his abuse of alcohol and marijuana and by the fact that he moves in circles where the use of alcohol and drugs is the main social activity. The father concedes that, in the past, he has been “no angel” so far as alcohol and drugs have been concerned but asserts that his alcohol use has been severely curtailed since the advent of K and his drug use non-existent.
In these circumstances, one would imagine that he would go to some lengths to portray himself as favourably as possible to Ms M, the family report writer. It was her assessment of him, when he arrived for the first family report in July of 2002, that he had a hangover. This caused Ms M to have considerable scepticism as to the father’s assertion that he had in fact moderated his use of alcohol and marijuana. As a result, Ms M believed that the father’s abuse of alcohol and marijuana have been a factor in the parties’ relationship since its inception and continued to be so. Ms M was concerned that that father’s use of alcohol and marijuana had the serious potential to affect his ability to care for K.
The father does not have a great deal of insight into the needs of a child of K’s age and level of development. It is clear that following her birth, he continued to work, whilst the mother stayed at home. He said this in his affidavit:
“When K was born I took three days off work and only worked half days the next week afterwards. I have worked constantly since then only taking holidays when the applicant and I separated. At the time of separation I was working long hours and did not spend much time with K. Whatever time I spent with K, it was most enjoyed by both of us. At the time of my leaving K for various reasons, she cried not wanting me to go. Upon my arrival back into K’s presence, I would see her being ecstatic so very much happy to see me.”
In those circumstances, it seems clear that, from the time of her birth until the parties separated, the mother provided the vast majority of care for K. The father was the family’s breadwinner, whilst the mother remained at home. The father is unable to point to any definitive evidence that establishes anything untoward in the mother’s care of K during this period. Certainly, the evidence indicates that the father was content to leave to the mother the major responsibility for providing care for K.
K was approximately seventeen months old when the parties separated. The circumstances surrounding the parties’ separation were traumatic for all concerned. The catalyst for the parties’ separation was the relationship between the mother and Mr S. The father did not react well, when he learnt of the relationship. I accept that when the parties separated, the father did lock the mother out of the parties’ former home and then thereafter severely rationed her contact to K. In this way, he went to some lengths to express his domination over her. He showed little regard for either the mother’s feelings or any insight into K’s needs to maintain contact with her mother, who up until this time had been her primary provider of care. Rather, he unilaterally imposed his will on the mother, without consultation with her or regard for what was likely to be in K’s best interests.
This must have been an extremely difficult period of time for the mother. She was a long way from home. She was limited in her accommodation choices and had limited funds. The father showed scant regard for her feelings. He must have known that she was vulnerable at this time and that he had the upper hand. His behaviour during this period confirms my impression that the father was extremely bitter about the relationship between the mother and Mr S and, to a large degree, was motivated by his own emotional needs in behaving in the way that he did.
The father has an extremely negative view of Mr S, describing him as a dangerous and violent man. However, the fact remains that the father was content to buy drugs from Mr S and regarded him as a close friend, until he commenced his relationship with the mother. The father was also happy to allow Mr S to have contact with K prior to he and Mr S falling out. The father has deposed that he is fearful of both the mother and K being subjected to domestic violence because of the violent propensity of Mr S.
It is difficult to make any assessment of Mr S, as he did not give any evidence in these proceedings. His criminal record is a significant one and has resulted in him receiving lengthy sentences of imprisonment, in respect of crimes of violence. However, I do not know the exact circumstances of these offences.
Mr S took part in Ms M’s first assessment of the parties and K. At that stage, she was asked to make some assessment of any risk posed to K, by reason of the mother’s relationship with Mr S. In her first report Ms M opined as follows:
“There is no evidence to suggest that Mr S has a propensity of violence towards women and children or that he has enacted violence on Ms J. Prior to the parents separating, Mr L had no problems with Mr S coming to his home each day and having contact with Ms J and K. Mr L appointed Mr S K’s godfather when she was christened and on a number of occasions left K in Mr S’s unsupervised care. This behaviour is not consistent with that of a person who is fearful of another or who believes that other is likely to cause harm to his family members. In my opinion, Mr L is resentful of Ms J’s relationship with Mr S and this is his primary motive in raising concerns about K’s safety when in the company of Ms J and Mr S.”
Ms M’s assessment accords with my own observations and impression of the father.
It is the mother’s case that the father’s bitterness about the failure of the relationship between the parties, continues to infuse every interaction that occurs between them and, as a result, his feelings are such that he is incapable of behaving civilly towards her or of seeing anything positive in respect of her relationship with K.
In my view, the evidence is clear, that both before and after the orders of the 24th of July 2002 were made, the father has gone to great lengths to undermine the mother’s confidence and, as a result, her ability to properly parent K. In Ms M’s terminology, the mother is a vulnerable person and has been “on the receiving end of a great deal of negative emotion” from the father. In this regard, I accept the mother’s evidence that the father continually refers to her as a “slut” and “tart”. I also accept her evidence that the father has continued to report to the relevant authorities that she is a negligent mother. In my view, the mother does not have a great deal of emotional resilience and, as a result, finds it difficult to cope with this constant barrage of what amounts to emotional abuse from the father.
Since the orders of the 24th of July, 2002, the parties have attended parenting courses run by a psychologist at Good Beginnings in K. The mother also attends the centre on a regular basis to receive counselling and support. The particular counsellor concerned, has indicated to the father that she believes that Ms J is a capable mother from her observations of the mother’s interactions with K. In his evidence, the father conceded that he had been told this by the counsellor concerned. As a result, Mr L and the counsellor have had a falling out. It seems to me that the father is incapable at this stage of accepting that the mother has anything at all to offer K, let alone anything of a positive nature.
The father has only recently begun to pay child support in respect of K. To date, the mother has received one payment of $350.00. The arrears, in respect of the applicable child support assessment, amount to approximately $1,500.00. The father deposed that he is reluctant to provide funds to the mother, as he does not believe that she will spend the funds on providing for K. This attitude is indicative of his lack of respect and trust for the mother.
It seems that K may be a child with special needs. The father attributes delays in K achieving proper developmental milestones to omissions on the part of the mother. I am concerned that the father does not exhibit a great deal of sensitivity to K’s difficulties and glibly blames the mother for them. In his affidavit the father deposed as follows:
“After the separation the bond between K and I became even closer than ever. I took five weeks off work and had all kinds of assessments done on K and had her immunised. The assessments displayed that K was way behind in her developmental skills so I continue to get advise from the appropriate people to help her catch up. K started to catch on quickly but it was not until she went into daycare that she really began to develop.”
In my assessment, the father is likely to continue to blame the mother for any problems that K may exhibit in future, such is his negative view of her. It seems to me to be naïve of him to consider that removing the child from her mother for a short period of time and then placing her in daycare, would have had such a dramatic consequences for K.
The father is not greatly sympathetic to the mother’s current situation in K. He concedes that she does miss her family but asserts that apart from that fact, she has no reason to be miserable in K. It is his position that she could take up a hobby, get a job or meet people instead of choosing to watch television, as he rather dismissively puts it.
b) The mother’s future plans
The mother’s future plans are modest and not particularly well developed. She has no specific work skills and few ambitions. There is not a lot of work in J. At the present time she misses her mother particularly and also her sisters. In the longer term, she would like to get some casual work for herself either in J or in C.
Mr S plans to stay in K for the next six to twelve months and then move to J or nearby. He has apparently started a dog washing business and wants to develop it and save some money. The mother is resigned about her separation from Mr S. The relationship between them may survive the separation or it may not. What is important from her point of view at the present time, is getting out of K. In my view, this demonstrates how unhappy she feels in K and the extent of her desperation, in that her desire to leave the town has priority over maintaining her relationship with Mr S.
The mother has not given a great deal of thought to the prospect of what she would do if compelled to remain in K, either indefinitely or for a finite period of time. Certainly she has no plans to work in the town and, apart from Mr S and his immediate family, has no close friends or relatives in the town. Presumably she would continue to live at the property at U Road, which is somewhat isolated from the town. She has no plans to learn to drive.
The father is critical of her failure to be more involved with activities within K itself and so make friends. In her evidence, the mother conceded that there are playgroups within K. She has not accessed these groups because of difficulties with transport. Her only professional support has been from the social worker at Good Beginnings, whom she attends regularly. The social worker has given the mother advice about how K’s speech may be encouraged. In future, K will need access to speech therapy. K has been assessed on one occasion by the speech therapist who attends to K. However, this person is leaving the position and K will be without a speech therapist for some time. The mother does not anticipate any great difficulties in obtaining appropriate speech therapy and other medical treatment for K in the event that she is permitted to return to J. However, she has not made specific inquiries as to what is available in J.
c) The father’s future plans
The father does not have any plans for himself other than that he should remain in K and continue to work for Power Horticulture at its mango farm in K. He enjoys this work and is apparently valued by his employer. It is his position that he and the mother chose to raise K in K and therefore the mother and K should remain in K indefinitely. If the mother is permitted to leave the town with K, it is his position that she should pay all the costs of his future contact to her. The rationale for his position is that, from his point of view, it is only appropriate that as it is the mother’s choice to leave that she should pay all the costs associated with contact.
In his evidence, the father conceded that he had, in the past, moved backwards and forwards between V and K and had in the past uprooted himself to pursue employment. He owns no property in the town and has no plans to acquire any. However, at the current juncture, he would not consider leaving K.
d) Mrs J’s evidence
Mrs J impressed me as a decent and thoughtful person. I accept that she has a close relationship with her daughter and loves her dearly. She confirmed that she talks with her daughter on the telephone on an almost daily basis. In the past, Mrs J has paid for her daughter and K to travel from K to J and return. Mrs J indicated that both the mother and K were welcome to stay with her and her husband for as long as they wished.
Mrs J described her daughter as a shy and unassertive person, who had had one boyfriend before leaving home to travel to K. She was surprised when she learnt her daughter was expecting a child. She confirmed my impression of the mother that she is not a particularly worldly person. Certainly, Mrs J was concerned when her daughter decided to leave home and travel to K.
For sometime now, Mrs J has been concerned about her daughter’s unhappiness in K. She believes that the mother is greatly stressed in K and unhappy. Otherwise, she is not concerned about the mother’s ability to properly parent K and believes that she is a very good mother.
e) The Family Report and the evidence of Ms M
At the request of the child representative, a family report was prepared to assist the Court in the disposition of this matter. The report was prepared by L M. Ms M is a psychologist with approximately 20 years experience. She holds a bachelor’s degree and graduate diploma in psychology. She was employed by Territory Health Services, in its child welfare sections, in both T C and K between 1985 and 1990. She was the Director of Early Intervention Services at Carpentaria Disability Services between 1990 and 1997. For the past 6 years she has been a psychologist in private practice in Darwin and, in that capacity, has provided a number of family reports to this Court and the Family Court. I found her to be an impressive and well qualified witness. In particular, she has a great deal of experience in assessing infants in a child protection context. As a result of her experience, I found Ms M to be an impressive and well qualified witness.
Ms M’s first contact with K was on the 13th of July, 2002. She observed K with both her father and mother over a period of two hours in each case. As a result of her initial observations, Ms M concluded that the mother was K’s primary attachment figure. However, at the time of this initial assessment, Ms M was concerned at how K presented. Given Ms M’s experience in early intervention, it is, in my view, appropriate to give her assessment a large degree of credence. Ms M was concerned that K was not interested in interacting with people, during the time she was observed, preferring to orientate herself to objects rather than people. Further, Ms M observed what she described as a severe language delay, combined with a delay in the acquisition of socialisation skills on K’s part. As a result of her observations, in her report dated the 22nd of July 2002, Ms M formed the view that K was “exhibiting insecure attachment behaviours as evidenced by her withdrawn demeanour, limited exploration behaviours and unsettledness”, which could be attributed to the disruption of her primary attachment to her mother, following her parents’ separation. It was on that basis that she recommended that K be returned to the principle care of her mother.
Ms M was also gravely concerned about Mr L’s history of alcohol and substance abuse. No doubt in large part because of his presentation at the assessment with a hangover, she suspected that Mr L was drinking to excess and was sceptical about his drinking history as presented to her. She was concerned that the father would not be able to meet K’s needs or supervise her activities responsibly because of his excessive use of alcohol. In her first report, Ms M opined as follows:
“From descriptions provided by Ms J of K’s developmental progress before separation, she was a child that was doing well and appeared advanced for her age. She was walking independently by 12 months, had a vocabulary of more than 20 words, enjoyed playing a range of interactive activities such as peek a boo, kicking balls, turning pages in a book, dancing to music and was leaning new things every day. She was an even-tempered child who rarely was distressed or upset. Ms J displayed a good understanding of the effects of separation on K and has noticed the changes she has undergone. She is concerned about the long-term effects that the current situation will have on K’s emotional development and on her relationships in the future.
Mr L would like us to believe that K has adjusted well to separation from her mother and has noticed no changes in her behaviour. His lack of awareness of K’s developmental regression is likely due to his limited involvement with her prior to separation, as well his lack appreciation of the importance of K’s attachment relationship with Ms J. While Mr L is providing for K’s physical needs, he lacks the awareness and sensitivity to respond to her emotional needs at this point in time.”
Ms M saw K again on 11th of February 2003. On this subsequent occasion, Ms M continued to be concerned at how K presented. She continued to be a child who appeared to be disconnected from the adults in her environment and who was developmentally delayed in a number of regards, including the development of expressive speech. Ms M did not think that this was indicative of any emotional abuse to which K may have been subjected. Nor did she think it was as a result of any omission or neglect occasioned by the mother. In Ms M’s opinion, Ms J was making appropriate efforts with K, however K was not responding. Ms M believed that there was some inherent deficit in K herself. This caused her to posit that K was suffering from a “pervasive developmental delay”.
As a result of her observations, Ms M was of the view that K needed to be assessed by a paediatrician. As indicated previously, Ms M believed that such an assessment would be unlikely to be definitively completed until K was at least three and a half years of age. It was also her view that it would be desirable for both parents to be involved in the process. Her assessment of K was that she was a “non-verbal child”, who did not cope well with change and who was easily disturbed.
Ms M did not believe that either parent was particularly aware of the extent of K’s likely special needs in future. However of the two parents, Ms M believed that Ms J had proven to have the greater sensitivity. She was concerned that Mr L was unable to conceptualise K’s needs, other than that he believed that K’s current difficulties were due to environmental issues and a lack of stimulation on the mother’s part. In order to dissuade Mr L of these misconceptions, Ms M believed that it was important that both parents be involved in K’s assessment and be educated as to how they could each provide for her needs in future. In short, Ms M believed that such a process would dispel the suspicion the father felt for the mother and her ability to properly parent K. This was the basis of her suggestion that the Court consider delaying the mother’s departure with K from K for a period of approximately one year.
Ms M was greatly concerned about the level of conflict between the parties. It was still her view that Mr L was unhelpfully preoccupied with the relationship between Ms J and Mr S. She did not think that the parties in this case would ever have a easy relationship and she could see no point in referring them to relationship counselling at this stage. She believed that the mother was vulnerable in K and was susceptible to growing levels of stress if she was forced to remain in the town. Her view of the continuing relationship between the parties, if the mother remained in K, was somewhat bleak. She believed that Mr L would most likely continue to exhibit hostility towards Ms J. In those circumstances, she was concerned about the mother’s future ability to parent K adequately becoming compromised. Other than these concerns, she had no other concerns regarding Ms J’s ability to provide for K’s emotional needs.
Although Ms M believed that the mother was better equipped than the father to provide for K’s emotional needs and was confident that the mother had not subjected K to any physical abuse, Ms M was concerned about the proposal that K be relocated to J. She characterised K as a child who would most likely experience problems settling into a new environment. As a result, she believed that K would experience some sort of grief reaction at losing regular contact with her father and would have some difficulty in adjusting to such a change in her circumstances.
However, Ms M’s greatest concern was at K’s likely loss of her relationship with her father. Ms M was gravely concerned that the effect of the mother’s move to J, would be to sever the relationship between father and child. Given her age and lack of verbal skills, Ms M agreed that telephone contact was, to all intent and purposes, meaningless for K. She was also gravely concerned that K would have to be re-introduced to her father during any subsequent contact visits in future.
Accordingly, Ms M’s assessment of this matter accords with my own. It is a difficult and problematic case that presents no easy solution. The particular difficulties are presented by K’s age, the level of her development at present and the conflicted and polarised positions of the parties. If the mother is permitted to relocate with K, the current circumstances of the parties are such that it would not be easy for there to be regular contact between K and her father. Ms M conceded that there was a real risk posed by relocation that K would lose her father figure in life, to her long-term detriment.
Ms M summarised her position in respect of the case in her report as follows:
“Both parties indicate that they are unable to communicate with one another with regard to K’s needs and that conflict remains high. It is evident that conflict is unlikely to abate in the near future and as such the chances of the parties improving their communication and increasing their co-operation with regard to parenting is unlikely to change. While it is acknowledged that both parties are frustrated by the behaviour of the other it is my opinion that Ms J, as the less assertive of the parties, copes less well with this conflict than Mr L. She has a limited support network in K, reduced finances and has difficulty coping with her protracted separation from extended family and friends. If the Court makes the decision to grant relocation, this would certainly alleviate the psychosocial stress that Ms J is experiencing which in my opinion will have a positive flow on effect for K. K would also benefit from having contact with her extended family and from the involvement of her maternal grandparents in her daily care. If the Court does not permit relocation one would expect that Ms J’s sense of isolation would increase and as such, there is a high risk that she would have difficulty meeting the ongoing demands of parenting K. There is also the risk that she would become increasingly resentful of Mr L and that this would result in an escalation of conflict between the parties. If this occurred, K would continue to be exposed to parental conflict and this would not be conducive to her long-term psychological welfare. Furthermore, if relocation were not granted the opportunities for K to develop a relationship with her maternal extended family would be limited to occasional contact.
If it were the decision of the Court to grant relocation then careful consideration would be required to ensure that K had sufficient contact to maintain her relationship with Mr L. As a young, non verbal-child, she is unlikely to benefit from telephone contact or other non-physical contact arrangements. Neither Ms J nor Mr L have the financial means to support more than one contact visit per annum and this is not considered sufficient to maintain K’s relationship with Mr L. While Ms J has indicated that she would be willing to support an ongoing relationship between K and Mr L, she was unable to articulate how this could be achieved in reality. If the Court decided against relocation K would continue to have regular contact with Mr L however as stated above such contact is likely to occur within an atmosphere of parental conflict and distrust. Ms J has indicted that while she would accept the determination of the Court if relocation were not granted, she would make further applications for relocation at some future date. Ongoing litigation is not helpful in promoting family stability as it interferes with the capacity of family members to plan for the future and achieve a level of stability that promotes psychological wellbeing.”[8]
[8] Ms M’s report
The law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the objects of this part of the Family Law Act. The object is to ensure that the children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interest, the following:
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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents 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.
The application of these objects is subject to the provisions of section 65E, which regards the best interests of the child or children concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F(2) of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. In this case it is the Court’s duty to make relevant findings of fact concerning the cases of each of the parties and then apply each of the relevant sub-sections contained in section 68F(2) to those findings in a common sense and practical way, in order to ensure that the final orders that are made result in a situation that will serve K’s best interests.
As the issue of the location of the children’s residence is at the heart of the case, it is necessary for me to make some specific reference to a number of recent decisions of both the High Court of Australia and the Full Court of the Family Court of Australia.
The High Court considered the issue of relocation in AMS v AIF; AIF v AMS. In the case[9], which was the subject of appeal, both parents sought residence of the child concerned. In addition, the mother sought to be released from an undertaking that she had given not to remove the child from Perth without the father’s consent. At the time of the hearing, she wished to be able to return to the Northern Territory with the child concerned. The orders of the trial judge provided for the child to live with the mother but her application to be released from her undertaking was dismissed and an injunction was granted restraining her from changing the child’s principle place of residence from Perth. On appeal, the Full Court of the Family Court, refused to set aside the restraints on the mother changing the child’s principle place of residence. The High Court (Gleeson CJ. Gaudron, McHugh, Gummow, Kirby and Hayne JJ, Callinan J dissenting) allowed the mother’s appeal. The majority of the High Court held that the trial judge had erroneously exercised his discretion by requiring the demonstration by the mother of “compelling reasons” to counter the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan area of Perth. They found that the Full Court should have intervened on this ground.
[9] AMS v AIF; AIF v AMS (1999)FLC 92-852
In the judgment Kirby J set out nine general propositions derived from the authorities relevant to the question of relocation of a child’s residence, as follows:[10]
[10] AMS v AIF FLC 92-852 at page 86,041 – 86,043
“141. This Court comes to the consideration of the arguments in these appeals with the benefit of at least thirty years of consideration of like problems by appellate courts in Australia and other common law jurisdictions. I derive the following general propositions from the authorities.
142.First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a ‘careful and delicate analysis’, which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
143.Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child’s place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the ‘welfare’ (or ‘best interests’) of the child should be the paramount consideration. It may provide a list of considerations or ‘principles’ to be applied in the exercise of the court’s powers. However, the ‘paramount’ consideration is not the same as the ‘sole’ or ‘only’ consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144.Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these consideration, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145.Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146.Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women’s equality or the ‘feminisation of poverty’ resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v. Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147.Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child’s contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas, wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in other jurisdiction but with different orders as to access and contact.
148.Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149.Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court'’ discretion.
150.Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.”
In the event the mother is successful in her application to relocate, she proposes that, until K reaches school age, the father should have physical contact to her on two occasions each year and at other times as agreed between the parties, in the event that the father visits J. The difficulty with this proposal is that it may mean that K will go for periods of up to six months without seeing her father. In addition, the mother proposes regular telephone contact. Given K’s age and current level of development, at the present time, telephone contact is meaningless and cannot be a substitute for physical contact.
Ms M is concerned that, if the mother does relocate to J, there will be a strong possibility that during every subsequent period of contact, K will have to be reintroduced to the father. In Ms M’s assessment, K is not a child who copes well with change of any kind. In effect, K will have to re-form her attachment with her father during each period of contact and this may be traumatic and time consuming.
The father proposes much more extensive contact of up to five times each year. He proposes that the mother pay all the costs associated with this contact. This is unrealistic, given her financial position. It is also, to some extent, indicative of the attitude that the father has to the mother that, although he has greater financial resources, he nonetheless considers that the mother should pay all the costs of contact. He has little regard for the mother’s future position and financial circumstances. He is not willing to countenance any great degree of inconvenience to himself or indeed consider moving closer to J.
It will be expensive for the mother to travel to K from J with K for contact in K. Given her age, K will have to be accompanied. Equally problematic is the father coming to J for contact. J is a small town. There is not a great deal of accommodation available there. If the father stays in one of the adjoining towns, he will need transport. Although Mrs J has indicated that she is willing to allow the father to visit her home, she is not prepared to allow him to stay.
In all these circumstances, I am gravely concerned at the implications of the mother’s proposal that K should have physical contact with her father only every six months or so. However, on the other hand, the father’s proposal appears equally unworkable. The father is intransigent in respect of his opposition to the relocation of either K or himself from K. No compromise is available. In this regard, I bear in mind what was said by the Full Court in A v A – Relocation Approach as follows:
“In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interest of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to consider a regime which would best meet the rights of the child to know and have physical contact with both its parents.”[21]
[21] A v A – relocation approach at page 87,553
In my view, given K’s age, the present level of her development and the distance between K and J, and in particular the matters referred to in section 60B of the Family Law Act, the contact proposed by the mother, in the event that she relocates K with her to J, is not adequate. I must act on the assumption that the father will remain in K. This must result in contact between him and K being problematic and expensive, if the proposed relocation is permitted.
e) The capacity of each parent to meet the child’s needs
It was Ms M’s assessment that both parents are capable of meeting K’s physical needs. However, in July of 2002, it was her view that the father lacked sufficient insight and sensitivity to respond to her emotional needs. I accept this evidence and this remains my assessment of the father at the present time.
As I have found, since the parties separated and to the present, the father has attempted to undermine the mother’s role as K’s primary provider of care and the mainspring of her emotional well-being, through a constant campaign of harassment against her. This has included abusing and denigrating her at contact handovers and making unwarranted complaints about her parenting capacity to the relevant authorities. The father is well aware of the mother’s lack of emotional resilience and that she does not have the resources to deal with his actions towards her. It is not in K’s best interests for the parenting relationship between mother and child to be undermined in this way.
Although not without short comings in her parenting of K, I am satisfied that of the two parties in this case, the mother displays the greater aptitude to provide for the emotional needs of K. Her capacity in this regard is likely to be enhanced if she is permitted to relocate with K to J, where she will have emotional support from her mother and family. Almost certainly she will be happier in J and this will promote her ability to provide for K’s emotional needs.
K is likely to be a child with special needs in future. Certainly she will need speech therapy. In the short-term, there may be difficulties in K having speech therapy in K due to the recent redeployment of the town’s speech therapist. Both parties have indicated a willingness to ensure that K has access to proper medical treatment and assessment in future. In this regard, the father has indicated that he would be willing to drive K to Darwin each week for private speech therapy classes. However, I do not think he has fully considered the financial implications of this offer. The mother has indicated that she would ensure that K has speech therapy and other necessary medical assessment in J. She points to the fact that there is a hospital in K and other major facilities in Brisbane, a two and a half hour drive away. However, at the present time, she has not made any detailed inquiries in respect of exactly what facilities would be available to her in either J or further afield in south-east Q.
I am not sure if either party has any great degree of insight into the likely extent of K’s special needs in future.
However, of the two parties I consider that it is the mother who is likely to be more proficient in ensuring that K’s future medical needs are met. I reach this conclusion for the following reasons. I was impressed with her regular attendance at Good Beginnings in K and her willingness to take advice from the social worker employed there. It was also the mother who arranged for K to see Ms K E, the speech pathologist who currently services the K area. Ms E reported to Ms M that she was impressed by the mother’s interactions with K and her ability to stimulate and respond to K’s communication efforts. She also reported that the mother was motivated to seek further information and contribute to the assessment process in respect of K.[22]
[22] Family report dated 24 February 2003 page 3
f) The child’s maturity, sex, background and other characteristics
In my view, K does not have any particular attributes that make this subsection particularly relevant, other than her age and the delay in her development of expressive speech, mean that she will have extreme difficulty in maintaining a relationship with her father, via the medium of the telephone.
g) The need to protect the child from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
I am satisfied that neither parent would actively expose K to any direct physical or psychological harm. However, there is no doubt that the tensions between the parties at the present time and in particular the father’s harassment of the mother and his denigration of her, have the capacity to cause psychological harm to K in the long run. The wish of the mother to protect both herself and K from this behaviour, is a major factor in favour of her proposal to relocate K to J.
Both parties accuse the other of exposing K to the risk of harm by reason of neglect. It is the mother’s position that the father has a significant problem with alcohol and marijuana and, as a result, she is fearful that during periods of contact he may pass out. She is also fearful that the father will make good a threat he has previously made that he will kill K in order to make her suffer. As a result, she believes that the father is mentally unstable and from her point of view, each weekend contact is filled with stress and concern. In this regard, I believe it most improbable that the father would harm K out of a selfish desire to hurt the mother. However, given his history of alcohol and marijuana use and Ms M’s concerns about this, do, in my view, give credence to the mother’s fears.
The father categories the mother as a lazy and incompetent parent, who is unwilling to provide sufficient stimulation to K or indeed provide her with proper nourishment. It is likely that K’s lack of response to him and others, is as a result of K’s inherent make-up. Certainly this was Ms M’s view. In spite of numerous complaints to the police and the relevant child protection authorities, no evidence has been provided by the father in support of his allegations against the mother. It was Ms M’s assessment that the mother is capable of providing the proper level of physical and emotional care that K requires.
On balance, I believe that the risk of emotional harm occurring to K is greater when she is in her father’s care than her mother’s.
h) The attitude to the child and the responsibilities of parenthood
Neither party in this matter is able to indicate to the Court anything particularly positive about the others abilities and attributes as a parent. The father is generally critical of the mother. The mother, although she concedes that the father loves K, is generally suspicious of his motivation in these proceedings and of his ability to care for K during contact periods. Both parties are generally immature and have not considered how they can best support each other as the parents for K. The impression I have gained from each of them, is that they would cheerfully exclude the other, from having much to do with K, if this was possible. I attribute this attitude largely to their immaturity and the conflict that exists between them. Sadly, I can only agree with Ms M’s assessment that hopes for improvement in the level of communication between the parties is “fairly bleak”.
The father’s attitude towards the payment of child support has been poor. I do not regard his explanation for the delay in payment – that is he does not trust that the mother will use the money paid by him for K’s purposes – as acceptable. The father does not generally consider the impact of his actions either on the mother or on K herself. He has a need, as Ms M put it, to be in control of his environment. In my view, this leads him to have a tendency to be domineering, particularly of those who are likely to be compliant, such as the mother.
In this particular case, the father demands a great deal by way of sacrifice from the mother. He would not permit her to relocate to J but if it is permitted, he would require her to pay all the costs of contact. He is unable or willing to consider this future aspect of contact from K’s point of view. As an employed person, he is likely to have access to more funds in future than the mother, as she is likely to be in receipt of social security payments for some time in the future. In this regard, the father is unwilling to consider the matter from any perspective other than his own. This is not positive parenting.
Although I can understand the reluctance of the father to consider moving from K to south-east Q, in the event that the mother is permitted to relocate, this is nonetheless an option that is open to him. This course would, of course, entail some sacrifice on his part. However, the impression that I have formed of the father is that he is largely unwilling to make any personal sacrifices, certainly not so far as the mother is concerned.
i) Any family violence involving the child or a member of the child’s family
The father has made serious allegations concerning the violent disposition of Mr S and the potential danger that this represents for K. As already indicated, it is difficult for the Court to make an assessment of the level of this danger, given that Mr S did not give evidence in the proceedings himself. However, there can be no doubt that he has a serious and significant criminal record. Ms M was aware of this record in general terms and also had the benefit of interviewing Mr S himself and observing him with K. As a result, she discounted Mr L’s concerns to a large degree. In the circumstances of this case, I do not regard the father’s concerns as being a significant matter. Certainly, they do not have a high significance in terms of the issue of the mother’s relocation.
j) Any family violence order that applies to the child or a member of the child’s family
The mother has a current Domestic Violence Order against the father. I am satisfied that the order was properly made. I am satisfied that the mother continues to have need of the order. I am also concerned that the father has, from time to time, breached the order, since it was made, by subjecting the mother to verbal harassment.
k) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parent’s circumstances change. As a result, arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that will minimise the prospect of the parties seeking orders from the Court in future. Litigation is costly in both financial and emotional terms and does nothing to encourage an easy parenting relationship between the parties concerned.
I am concerned that the option proposed by Ms M will not bring these proceedings to a termination. I am fearful that each party will use any possible incident that occurs between now and the end of the twelve month period postulated by Ms M as a pretext to bring more litigation, either to bring the moratorium to an end or to extend it.
I consider it unlikely in the extreme that, if compelled to remain in K, the mother will change her attitude to the town to any great degree. She is likely to feel bitter, unhappy and socially isolated. She did not strike me as the sort of person who, when subjected to a personal hardship would attempt to make the “best of a bad job” and so actively throw herself into the task of making a life for herself and K in K. She does not have either the maturity or personal energy to adopt such a stance. The impression that I had of the mother was that she was very much “marking time” in K. In those circumstances, to make orders that would require the mother to remain in K indefinitely, is very much to invite further proceedings, in a very short time. Such an order can only be a prelude to more litigation. Certainly, I strongly suspect that the mother’s dissatisfaction with it, is likely to be a catalyst to further litigation on her part. It cannot lead to an easing of the current disastrous relationship between the parties.
l) Any other fact or circumstance that the Court thinks is relevant
The mother does not advance economic reasons for wishing to relocate from K to J. In my view, she is unlikely to be significantly better off financially in J. She has no specific work skills to speak of and I accept Mrs J’s evidence that J itself is an area where job opportunities are scarce, particularly for women. Opportunities are likely to be better in C and C.
The greatest advantage, from the mother’s point of view, of moving back to J is that she will be in an environment in which she is happy and with which she is familiar. She will be able to return to live with her parents and recover from what I accept has been a traumatic period of her life, in the last few years in K. J is very much the environment in which the mother feels comfortable and secure. She will also gain a sense that she is in control of her own destiny, rather than being in thrall to the father. As I have already said, I am concerned that her sense of being confined in K may have ramifications for her ability to care for K to her maximum capacity.
Finally, I have no doubt that the sense of isolation that the mother currently feels in K will be greatly ameliorated if she goes to live in J. There she will have the support of those she loves, especially her own mother. The father is critical of the mother for her failure to make friends and join social networks in K. However, bonds and social networks do not develop overnight and depend on time and common enthusiasm to develop. The mother has no enthusiasm for K. She is unlikely to develop any enthusiasm for the town in future. It seems mainly redolent of unhappy memories for her. The closest bonds and friendships are usually those of blood and those, which are long standing. Clearly, in the mother’s case, those bonds for her are in J and south-east Q.
I accept that both in the short term and in the long term, the mother is likely to be significantly happier in J than in K. A happy and self-fulfilled parent is likely to be a better one. This is a significant matter.
Conclusions
This is a difficult and perplexing case. It does not present a ready solution and the detrimental consequences, for K, of each of the parties’ proposals is apparent. Neither party is prepared to compromise, in order to accommodate the interests of the other, or indeed the interests of K, herself. In this regard, I think it relevant that the father is unwilling to consider moving from K, where he has lived only since April of 1998 and where he has no family or strong connections other than employment, but would willingly detain the mother indefinitely in the town, knowing full well that she is bitterly unhappy there. In those circumstances, it is difficult to see how even the most magnanimous of parents would settle down and commit themselves happily to a life in K. The mother does not have great reserves of magnanimity for the father. On the contrary, she is likely to feel that she is a prisoner in K, without release date and her gaoler is the father, a person who has no regard or respect for her, either as an individual or a parent. I have no doubt, if compelled to remain in K, she will become deeply unhappy and bitter and her unhappiness and bitterness will have serious ramifications for her abilities to parent K, to the full extent of her capacity.
The mother is not a particularly experienced parent. Parenting K in future is likely to be difficult and demanding. Accordingly, the mother will need emotional support and guidance, to assist her with her parenting of K. This support and guidance is not available to her in K. It is available in J, particularly from her mother. Mrs J impressed me as a level headed and sensible person. She is a mature person, who has successfully parented four children herself. She will provide the necessary emotional support and advice that the mother requires. This will be of great benefit to K, in respect of the quality of the care she will receive from the mother.
In K, the mother is isolated and unhappy. This cannot be conducive to her developing her parenting skills to their maximum extent. I have formed the view that the most central relationship in K’s life is that which she shares with her mother. There is no doubt that the mother has been K’s primary carer for the vast majority of her life. In my view, given this fact, it is likely to be in K’s best interest that orders are made that will facilitate the development of this central relationship in her life. Put quite simply, the mother will be a better parent in J.
If the mother had greater emotional resilience and maturity and more support in K, I would not so easily have been able to reach this conclusion. However, she does not have the necessary support and guidance in K and this is the strongest factor in favour of her relocating K from K to J. In my view, the prognosis for K, of the mother being a parent in K whilst locked in a bitter dispute with Mr L, is not particularly bright.
The object and principles of the Family Law Act, as set out in section 60B[23] are a statement of the optimum outcome in each case. The right to know and be cared for by both parents and the right to contact with both parents and with other people significant to them are rights of the children and not of the relevant adults. The optimum outcome is not always possible in every case. My responsibility in the case is to weigh and balance the factors for and against the relocation of K to J and reach the outcome that I think is most calculated to lead to K’s best interests being served. I readily acknowledge that none of the possible outcomes in this matter fills me with confidence.
[23] See paragraphs 95 & 96 hereof
I have closely considered the effect a move to J would have on the frequency and quality of face to face contact that K would enjoy with Mr L. It is obvious that if K is to live in J, Mr L would not be able to participate in aspects of her daily life in the same way he currently does now that she lives in K. However, against that must be set the ramifications of forcing Ms J to remain in the environment of K and the continuing tension that is unremittingly generated when she is in close proximity to Mr L. I accept that this tension must have the capacity to impact adversely on K, particularly in the sense that the mother’s ability to properly parent K is adversely affected.
In assessing which of the party’s proposals will best meet K’s best interests, I take into account all of the findings that I have made earlier in this judgment. Of paramount importance in this regard is my finding that the mother has been the most significant person in K’s life to date and that as a result, K is closely bonded to her. It is also of great importance that I have found her to have more competent parenting skills than those of the father. When coupled with the conflicted nature of the parenting relationship between the parties and the lack of support and guidance that the mother has in K, these are the most significant factors in favour of the mother’s proposal.
As I have already noted, I am not entitled to consider the case in a way which differentiates the issue of residence from that of relocation into discrete issues. The father seeks orders that are tantamount to a shared residence arrangement. I have formed the view that the child should continue to live with the mother. I do not believe that the father’s proposals are workable. I have formed the view that K should continue to live predominantly with her mother. In my view, the evidence establishes that this would be in K’s best interests. I am satisfied that the mother would be deeply unhappy and would feel trapped, if compelled to remain living in K. This leads me to the conclusion that she should be permitted to relocate with K from K to J. In my view, on balance, this is the result that is most calculated to K’s best interests, in both the short and long term being served.
The mother is not required to provide compelling reasons for her wish to move. In all the circumstances of this case, the reasons that she has given for wishing to move, are natural and understandable. Quite simply, she wants to go home to her mother. Although, she clearly has an uneasy relationship with Mr L, I do not think that her wish to move is motivated by any feeling of malice towards him. In any event, to a large degree, Mr L is the author of his own fate, as a result of his unremittingly hostile behaviour towards the mother.
To require the mother to demonstrate compelling reasons for any move, would have the effect of, perhaps, permanently tying her to live in physical proximity with the father for an indefinite period of time. As is obvious, the personal relationship and the reasons she had for coming to K in the first place, have finished, or at least materially altered. Given that the best interest of K is the paramount, but not the only consideration in this case, it behoves me to consider the legitimate expectations and ambitions of the mother, who wishes to pursue her life and her parenting of K, with her family, in J. In all the circumstances of this case, I do not believe that it is reasonable that she be compelled to live in K with K either for the next twelve months or indefinitely.
I have closely considered the proposal of Ms M that the mother should be compelled to remain in K for the next twelve months, to enable the paediatric assessment of K to be completed. On the surface, this proposal has much to recommend it. However, ultimately, I do not believe that it is in K’s best interests. The effect of such a moratorium would be to compel the mother to put her life on hold for a period of twelve months. I do not think that such a moratorium is likely to significantly ameliorate her feelings of dissatisfaction and unhappiness. To the contrary, I believe that, to so restrain her, is likely to increase her feelings of powerlessness and entrapment. In such circumstances, I believe that it is unlikely that she would put any significant personal resources into developing a social network for herself or in pursuing support to assist her in her parenting of K in K. There would be little point, if her period of residence in K is temporary. Of particular importance is the fact that the tensions between her and the father are likely to be increased rather than reduced. As the time grows nearer for her to leave, the prospect of further litigation will increase. The father is likely to look for every pretext to retard her plans for departure. The mother will feel that she is being compelled to put her life in limbo for the period of her restraint. These tensions are likely to lead to more rather than less potential flash points between the parties, in their already volatile relationship. Sadly, I do not necessarily believe that the father and mother are capable of taking part in such a paediatric assessment of K, as recommended by Ms M. If the relocation is to be permitted, there is much to be said for making it on the basis of a clear and defined break between the parties. This is particularly so, given the acrimonious nature of the relationship between the parties, which is unlikely to change in future. For these reasons, I do not believe that the proposal to restrain the mother from leaving K for one year is likely to be in the best interests of K.
At the centre of these reasons is my conviction that of the two parties, the mother is the one that is more attuned to the needs of K and has the greater capacity to meet her physical, intellectual and emotional needs.
The major fault with the mother’s proposal is that it significantly interferes with the entitlement of K to have regular and meaningful contact with her father. There is no ready solution to this dilemma. The father is unwilling to move. In my view, it is essential for K’s well being that she lives with her mother in J, where Ms J will be happy and supported. Neither party is financially well off. To her great credit, Mrs J has indicated that she will assist her daughter with some of the finances involved. The father has essentially washed his hands of the practical difficulties of contact. He shows no great insight in this regard.
Given the unwillingness of the father to compromise his own wishes in this regard to any degree, it is my view that as they currently stand, the mother’s proposals for contact are woefully inadequate. Given K’s age and level of development, the mother’s proposal that there should be actual face to face contact approximately every six months is not sufficient to satisfy K’s entitlement to have regular contact with her father. I am well aware that one of the consequences of the decision that I have made is that K will inevitably suffer a reduction in the nature and quality of her relationship with her father. However, in my view, the other factors as set out in section 68F(2), which favour the mother, outweigh this very serious concern.
In evaluating the competing proposals of the parties in respect of contact, I am not bound to accept either of their proposals but may, if necessary, order a regime that I consider will best meet the rights of the child concerned to know and have physical contact with both of her parents.
I have closely considered this issue, particularly in the context of the financial circumstances of both parties, neither of whom are in a strong financial position and being well aware that the likely costs of transport between K and J and return, are likely to be significant. In the circumstances of this case, I consider that there should be contact between the father and K on at least four occasions each year, until she commences school. The periods of contact should not exceed ten days and should provide for a mechanism for the child to be returned to her mother at regular intervals during the contact, at least until she attains school age. There are practical difficulties associated with contact in both K and J. However, it would appear appropriate, unless the practical difficulties are insurmountable that the contact should alternate between K and J. Although the financial circumstances of both of the parties are straightened, it seems to me that the father is significantly better off than the mother at present. In those circumstances, I propose that the mother bear all the expenses related to one contact visit to K each year and the father bear his costs of travelling to J for contact and bear the costs of the mother and K travelling to K on the other occasion.
Thereafter, once K has reached school age, the father should have contact to K for the whole of the mid-year Q school holidays and for half of the end of year holidays, alternating Christmas Day with the mother. The costs of travel should be shared. There should also be regular weekly telephone contact.
I am well aware that orders along these lines will require a great deal of sacrifice on the part of both parties. It will also have financial implications for Mrs J. However, being a parent, often involves sacrifices, both financial and personal.
The father has said that he is not willing to consider relocating from K to J. There is no requirement that he should. The issue of whether or not the father was able to move from K to south-east Q was not explored in any great detail in the hearing before me. The father simply asserted that he would not consider it and regarded it as grossly unfair to him that it would be suggested that he should move. The reasons why he would not consider the move are his employment in K, which he enjoys and in which he is secure and comfortably paid and his general preference for the town, where he has friends and feels settled. However, it should not be assumed that the father cannot, or should not, contemplate moving closer to K, to facilitate more easily his contact with her.[24] The ball is in his court in this regard. Accordingly, in the event that he changes his mind, I propose making orders that will allow him to have contact to K on the same basis as he currently has in K, that is alternating weekends.
[24] See U v U per Hayne, J at paragraph 175; per Gaudron, J at paragraph 35
I have drawn, in broad-brush, the basis for the contact orders that I believe are appropriate in this case. I appreciate that the practical mechanisms for these orders will be somewhat complicated and may be subject to negotiation between the parties and the child representative, as to the fine details. Given the level of hostility between the parties, it may also be desirable that the necessary orders are drawn in such a way so that there is no room for ambiguity, or in the event of dispute between them, as to dates and times for contact, there is a means within the orders themselves, to resolve such disputes between the parties. For that reason, I propose adjourning these proceedings until 10.00am on 4 April, 2003, to enable the parties to discuss between themselves the exact orders as to contact. In the event that the parties reach agreement as to the form of the order, that date can be vacated and the agreed orders made. I anticipate that the parties and the child representative will be able to agree exact orders, to give effect to the practical implications of these reasons for judgment so far as contact is concerned.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: Lynnette Chin
Date: 14 March 2003
17/2/89; 14/9/95; 11/1/96.
0