Jones and Ball
[2010] FMCAfam 398
•27 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JONES & BALL | [2010] FMCAfam 398 |
| FAMILY LAW – Children – relocation – effect of relocation on children – practical difficulty and expense of the children spending time with the other parent and extended family. |
| Family Law Act 1975, ss.65DAA, 61DA, 60B, 60CC, 60CA, 60CC(3), 65DAA |
| Morgan & Miles [2007] FamCA 1230 AMS v AIF [1999] CLR A & A: Relocation Approach [2000] FAMCA 751 U v U (2002) 211 CLR 238 Bolitho & Cohen (2005) FLC 93-224 Taylor & Barker [2007] FamCA 1246 Claringbold & James [2007] FamCA 1032 |
| Applicant: | MR JONES |
| Respondent: | MS BALL |
| File Number: | HBC 928 of 2009 |
| Judgment of: | Baker FM |
| Hearing dates: | 5 & 17 February 2010 |
| Date of Last Submission: | 17 February 2010 |
| Delivered at: | Hobart |
| Delivered on: | 27 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr McKenna |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| Counsel for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Mooney |
ORDERS
That the mother return the children [X] born [in] 2005 and [Y] born [in] 2007 (“the children”) to Tasmania no later than 5.00pm on 27 June 2010.
The mother, at her expense, ensure that the children are returned to Tasmania by 5.00pm 27 June 2010 and for that purpose, should the mother so request in writing (including text message), the father travel to Queensland at the mother’s expense to collect the children and the children live with him until such time as the mother advises in writing that she has returned to Tasmania.
UNTIL FURTHER ORDER
Pending the return of the children by the mother to Tasmania, the children communicate with the father by telephone each evening at 7.30pm, with the father to telephone either the mother’s mobile telephone or Mr T’s mobile telephone and the mother to make the children available to speak on either mobile telephone.
BY CONSENT
That the parties have equal shared parental responsibility for the children.
That during school term the children live with the mother.
That during school term the children spend time with the father on a two-week alternating basis as follows:
(a)In week one, from Wednesday at 3.00pm (or the end of the school day once both children are at school) until Friday at 3.00pm (or from the end of the school day once both children are at school);
(b)In week two, from Friday at 3.00pm (or from the end of the school day once both children are at school) until Sunday at 5.00pm.
That during each of the Easter, mid-term, and summer holidays, the children spend equal time with each parent as agreed and failing agreement:
(a)With the father for the first half and with the mother for the second half of each such holiday in odd years;
(b)With the mother for the first half and with the father for the second half of each such holiday in even years.
Changeover be as follows unless otherwise agreed:
(a)On Wednesdays in week one and Fridays in week two, changeover occur at the paternal grandmother’s home, until both children are at school, from which time the father will collect the children from school;
(b)On Fridays in week one changeover occur at the paternal grandmother’s home;
(c)On Sundays in week two changeover occur at the mother’s home.
Each party be entitled to communicate by telephone with the children whilst the children are in the care of the other party, as agreed and failing agreement, on Wednesdays and Sundays between 6.00pm and 7.00pm and for that purpose shall keep each other informed of each other’s landline and mobile telephone numbers and shall maintain at least one landline or mobile telephone number for that purpose.
The children attend the [omitted] Primary school for their primary years schooling unless otherwise agreed in writing between the parties.
Each party be restrained from threatening, harassing, or abusing the other.
Neither party criticise or denigrate the other party to or in the presence of either or both of the children or cause the children to remain where a third party is criticising or denigrating the other parent.
Neither party use illicit substances whilst the children are in that party’s care nor for an eight hour period prior to the children coming into that party’s care.
Neither party cause or allow the children to be exposed to persons who are consuming or affected by illicit substances.
Should either party take the children for an interstate holiday during that party’s time with the children, that party shall provide the other with at least seven day’s notice in writing of the particulars of such travel including the children’s destinations and travel itineraries.
The father personally supervise the children at all times when the children are in the presence of the paternal grandfather, Mr J.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Jones & Ball is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 928 of 2009
| MR JONES |
Applicant
And
| MS BALL |
Respondent
REASONS FOR JUDGMENT
These are proceedings between the parties for parenting orders of two young children, [X] born [in] 2005 and [Y] born [in] 2007 (“the children”).
This matter initially came before the Court because the mother unilaterally relocated to Queensland with the children. I allowed the mother to remain in Queensland with the children on an interim basis, due to concerns of alleged family violence and threats. The mother is seeking that she permanently relocate the residence of the children from Tasmania to Queensland.
The father is seeking the return of the children to Tasmania so that they can spend substantial and significant time with him.
Background
The father, Mr Jones, is 23 years old and is currently unemployed. He is actively seeking paid employment and does some casual work with [omitted]. The father is Aboriginal.
The mother, Ms Ball, is 21 years old and is currently unemployed.
She is currently living in Bundaberg, Queensland with her new partner, Mr T, with whom she is expecting a child. She commenced a relationship with him in around September 2009.
The parties started a relationship in late 2002 in Tasmania when the father was 17 years old and the mother was 14 years old. The parties cohabitated with the father’s mother, Ms J (“the paternal grandmother”). In around early 2007 the parties moved from her home.
Since March 2007 the father has had two periods of incarceration at [prison omitted] for two counts of driving whilst disqualified. These two periods totalled ten weeks. It was during the second period of incarceration that the parties separated on 29 August 2009.
In September 2009, the father was told by the paternal grandmother that the mother had taken the children to Western Australia to think about their relationship. She said that she should be back by the time the father was released from prison. The mother did not go to Western Australia. She went to Queensland.
The father filed an Application on 8 October 2009 seeking final and interim parenting orders. On 16 November 2009 I made interim orders allowing the mother to remain living in Queensland.
The mother has been the primary carer of the children during the parties’ relationship and after separation. Whilst the father was in prison for a 6 week period in 2009, the mother took the children to see him for weekly visits and he spoke to them on the telephone each night.
A protection order was made ex-parte in the Magistrates Court in Bundaberg on 27 October 2009 against the father. The mother alleged that the father had sent threatening text messages.
The issues and proposalsThe principal issue is whether the children should live in Tasmania or in Queensland. The father proposes that they live in Tasmania with the mother and spend substantial and significant time with him. The mother proposes that they live with her in Queensland and spend school holiday and other time with the father. Another proposal included in the agreed proposed orders referred to below is that the father move to Queensland to live. There is no issue about the mother remaining the primary carer of the children.
The proposed orders agreed by the parties encompass the possible outcomes of the Court. Essentially they provide that if the Court orders that the children are to live in Tasmania, the children live with the mother and spend time with the father on a two week alternating basis as follows:
(a)In week one, from Wednesday at 3.00pm (or from the end of the school day once both children are at school) until Friday at 3.00pm (or from the end of the school day once both children are at school);
(b)In week two, from Friday at 3.00pm (or from the end of the school day once both children are at school) until Sunday at 5.00pm.
They also provide for the children to spend school holiday time with the father, including time at Easter and Christmas. Changeover is to take place at either the paternal grandmother’s home or the mother’s home.
If the father relocates to live within a 100 kilometre radius of the children’s home, the proposed orders provide that the children spend the same time with him as proposed, if the children were to live in Tasmania.
If the father does not relocate to Queensland to live within a 100 kilometre radius of the children’s home, they provide that the children shall live with the mother and spend time with the father for the entirety of the Easter, June, September and one half of the Christmas school holidays. The children will also spend time with the father upon him giving 28 days notice, for block periods of up to 7 days in either Tasmania or Queensland. Telephone communication and the travel costs are proposed. The parties have agreed injunctive orders, regardless of where the children live.
At the commencement of the hearing the Independent Children’s Lawyer did not express a view, due to the late filing of the mother’s trial affidavits and due to Dr Haines not having seen the trial affidavits. After the evidence was heard, the Independent Children’s Lawyer supported the mother’s proposal that the children live with her in Queensland and spend time with the father in Tasmania. She considered advocating a result whereby the children were required to live in Tasmania for at least two years prior to moving to Queensland. She was of the view that this might alleviate two of the major obstacles to the mother’s relocation, the tender age and attachment capacities of the children, and it would allow her relationship with Mr T to stand the test of time (or not). However, she was of the view that two more moves by the family in two years was not in the children’s best interests.
Dr Haines, the Court Expert, recommended that the children live in Tasmania so that they are not separated from their father and extended family for long periods of time. She was of the view that the children’s relationship with the father would be diminished if the children lived in Queensland.
Evidence
The father relied on the following:
·Application filed 8 October 2009,
·Affidavit of the father filed 20 January 2010,
·Affidavit of the paternal grandmother filed 20 January 2010.
The mother relied on the following:
·Response to Initiating Application filed 28 January 2010,
·Affidavit of the mother filed 28 January 2010,
·Affidavit of Mr T filed 29 January 2010.
The father, the paternal grandmother, the mother and Mr T were all cross-examined. All parties filed written submissions.
The Independent Children’s Lawyer relied on the following:
·Reasons for Judgment dated 16 November 2009,
·Orders dated 16 November 2009,
·Documents produced to the Court by Tasmania and Queensland Police,
·Report of Dr Janet Haines dated 13 January 2010.
Dr Haines was cross-examined by all parties. Dr Haines’ conclusion was that the mother should not be permitted to relocate with the children to Queensland.
Relevant Law
Section 60CA of the Family Law Act 1975 provides:
“In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration”.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The court is also required to consider s.61DA which provides the presumption, that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if not in the best interests of the child. If the presumption of equal shared parental responsibility applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable or failing such an order being made, whether it is in the child’s best interests and is reasonably practicable to spend substantial and significant time with each of the parties.
This application raises a potential permanent relocation of residence for the children from Tasmania to Queensland. In Morgan & Miles[1] Boland J, sitting as the Full Court, considered the relevant principles applicable to relocation cases, prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Her Honour referred to cases including AMS v AIF[2], A & A: Relocation Approach,[3] U v U[4] and Bolitho & Cohen[5]. Her Honour then referred to the legislative framework introduced by the amending Act and concluded:
“It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate ‘compelling’ reasons;
-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement”,
[1] [2007]FamCA 1230
[2] [1999] CLR
[3] [2000]FAMCA 751
[4] (2002) 211 CLR 238
[5] (2005)FLC 93-224
remain valid.
-What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s.60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes (sic) a requirement that matters under s.60CC or s.65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s.60CC factors, and then applying those findings to a consideration of the criteria of s.65DAA to craft appropriate orders.” [6]
[6] paragraphs 80 and 81
The Full Court in Taylor & Barker[7] referred to the same approach which should be followed in relocation cases and decided that s.60CC should be considered first, followed by s.61DA and s.65DAA and stated:
“…it would seem only logical that the Court make findings regarding the matters contained in those sub-sections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.”
[7] [2007] FAMCA1246
The Full Court further stated:
“the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate and discrete issue, but rather as just one of the proposals of the child’s future living arrangements, in so far as that approach is possible”[8]
[8] at paragraph 53
The court is not confined to a choice between the proposals of the parties, as the best interests of the child may not be best served by these proposals. A trial judge is entitled to look beyond the proposals of the parties in making an order, if open on the evidence.[9]
[9] Bolitho & Cohen [2005] FLC 93-224 at paras.83-85
The primary considerations cannot be considered without reference to the additional considerations. Bennett J, has said:
“I interpret s.60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents and [the child] by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent which a meaningful or significant relationship with both of A’s parents is going to be beneficial and of advantage to [the child] into the future.[10]
[10] Claringbold & James [2007] FAMCA 1032 at 226
I shall now consider the evidence and s.60CC considerations before I consider s.61DA and s.65DAA.
The father’s circumstances
The father lives with the paternal grandmother in Hobart. He is unemployed and receives a Newstart allowance of $220.00 per week. He pays $100.00 per week board to the paternal grandmother and spends $70.00 on cigarettes, although he said he intends to give up smoking. Whilst the father is currently unemployed, he is actively looking for employment and does some casual work with [omitted].
The father has Aboriginal heritage. He has a large family in Tasmania, including his mother, brother, uncles, aunts and cousins.
The father is assessed to pay $154.00 per week child support to the mother that sum being assessed on his full employment. He is currently not paying any child support.
The father has a number of convictions for driving offences. He was convicted of driving whilst disqualified in 2003 and of two traffic offences. In 2006, he was convicted of driving whilst disqualified and two other traffic offences. In 2007, 2008 and 2009 he was convicted of driving whilst disqualified and of other traffic offences. He went to prison in 2008 for one month and again in 2009 for six weeks.
The father made concessions about his poor role modelling, his lack of parental responsibility in the past, and his lack of support for the mother as a parent. He also made concessions about the mother’s capacity as a parent. However, he did not disclose a current driving charge listed in the Magistrates Court in May 2010 and he denied sending text messages, until confronted with evidence in respect of each issue. This indicated to me that he was prepared to “bend” the truth when it suited him.
There was little evidence about the proposal for the father to move to Queensland. When the father was asked by the Independent Children’s Lawyer whether he would move to Queensland, he said that he did not believe that it was more sensible for him to move than for the mother to return to Tasmania. He has not prepared for the possibility of the children being allowed to remain in Queensland. He said it will be a very hard thing to do and there has to be a lot of thought put into it, but he said he would have to think seriously about moving because he did not think he could stand to see his children just four times a year.
The mother’s circumstances
Until September 2009 the mother and the children lived in Tasmania. The mother has always been the primary carer of the children. She now lives in Bundaberg with the children and Mr T. She is engaged to Mr T and is also pregnant. They plan to marry in September 2010. The mother receives Centrelink payments of $800.00 per fortnight. She contributes towards household bills. She pays $100.00 per week for the children to attend day care.
It was intended that Mr T’s son [Z], who is 12 years old live with them full-time from February 2010. Mr T spends time with his 10 year old daughter during school holidays. He spends time with his 2 year old son every couple of weeks. He owns his own home in Bundaberg. He is [employed in the transport industry] and earns $47,000.00 per annum.
The mother said that her father, two sisters and brother will shortly be moving to Queensland. She did not provide any corroborating evidence of this. In Tasmania she has the support of her mother. Her sister lives in Tasmania, although she does not spend time with her. Her half-sister lives in Tasmania for several months a year. The mother said she has more support in Queensland because she has Mr T, his mother and stepfather and his family.
The mother has commenced volunteering in the tuck shop at the local school. The children help her and are familiar with the teachers and are making friends. The mother has not discussed with the father any proposal for the children’s schooling.
The mother believes that she can offer the children a better lifestyle in Queensland with Mr T. She said that she is less stressed in Queensland because she has the security of a home. She is happy because Mr T has employment and has a driver’s licence. He spends time with her and the family. They undertake activities such as eating out, outings to beaches and parks, going bowling and to the movies. During cross-examination the mother conceded that she would be happy in Tasmania if she was living with Mr T. She also conceded that a return to Tasmania will not have a negative impact on the children.
When the mother was asked whether she thought the father would move to Queensland she said she could not see him moving there.
Although Mr T accepted that the move to Tasmania will mean a great upheaval for him, he is willing to move with the mother and the children. He and the mother will need to find accommodation in Hobart and he will need to find employment. He has child support obligations and he will also need to rearrange his time with the children who do not live with him.
The mother’s relationship with Mr T is very new. Although the mother said that she is engaged to him and is pregnant with his child, she said that she will be in a relationship with him “as long as it lasts”.
Dr Haines
Dr Haines is an experienced psychologist who regularly prepares reports for the Court and gives evidence. Dr Haines was appointed with Terms of Reference on 30 November 2009. In her report Dr Haines indicated that she had not received the Terms of Reference.
The Independent Children’s Lawyer was critical of the quality of
Dr Haines’ evidence because she did not have a proper brief, the mother was unrepresented and unprepared when she met with
Dr Haines, the parties had limited time with her and the extended family were not interviewed by her.
Dr Haines interviewed the mother, Mr T and the father. She observed the children with the mother and the father separately. Dr Haines said that she had set aside one day for the assessment, but Ms Ball had informed her office that she wanted to start as early as possible because she had to be finished by midday. Dr Haines did not interview the extended family. This was partly no doubt due to the limited time available to her and to the pressure on her of completing the report to be released prior to the hearing in January 2010.
The Independent Children’s Lawyer was also critical that Dr Haines seemed to be of the view that the mother had the onus to persuade the Court that a better life for the children is in Queensland, rather than Tasmania, and that she considered the issue of the risk of harm to the mother and the children from the father as the focus of whether the children should remain in Queensland or not.
I agree with these specific criticisms and insofar as they form the bases of her recommendation that the children not remain in Queensland, I do not place weight on the recommendation. Any conclusion I reach will be on the basis of all the evidence before me.
Notwithstanding the specific criticisms of Dr Haines’ report, her evidence was helpful to the Court. In particular, her evidence about the relationships between the children and each parent, the likely effect on the children of separation from either parent, the needs of young children and attachment to their parents was helpful. The Independent Children’s Lawyer accepted that her evidence of the needs of young children to have regular time with each parent was compelling. I place considerable weight on this evidence of Dr Haines.
I shall now turn to the s.60CC considerations.
Section 60CC(2) - The primary considerations are:
(a) the benefit of the child having a meaningful relationship with both of the child’s parents;
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.”
One of the objects of Part VII of the Act is to ensure that the best interests of the children are met by ensuring that the children have the benefit of their parents having a meaningful involvement in their lives[11].
[11] Section 60B(1)(a)
One of the principles underlying the objects of Part VII is:
“Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”.
The Court is required to take into account the importance of the benefit to a child of having a meaningful relationship with both parents, and pursuant to the s.60CC(3) considerations, determine whether this benefit can be achieved in the best interests of the child.
It is of benefit to [X] and [Y] to have a meaningful relationship with each parent. They have a close and loving relationship with both parents. The issue is which of the living arrangements for them, as proposed by each parent, will result in the recognition of the importance of them having a meaningful relationship and in the provision of the benefit of such a relationship.
Section 60CC(2)(b)
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is evidence that during the parties’ relationship the father has had violent outbursts in the presence of the children. He admitted that he verbally abused a third person by calling him “nothing but a cunt” and to “fuck off away from my children and my house”. The mother alleged that the father punched holes in the wall at the paternal grandmother’s home during their arguments. The father admitted to hitting the wall once. He also admitted to becoming “unbearably jealous” when the mother became friendly with his male friends. He admitted to having arguments with the mother because he did not get over her having slept with one of his friends.
The father said that he is now “over [Ms Ball], one hundred percent, completely.” He said that his inappropriate behaviour since separation was due to “being set up and heartbroken.” His behaviour will now be different because “now it is about the best interests of the kids”.
I accept the mother’s evidence that during the parties’ relationship the father had temper outbursts, punched holes in the walls at the paternal grandmother’s home and held the mother down on the bed by the throat on one occasion. I also accept the mother’s evidence that the father never hit her.
The mother told Dr Haines that she was not at risk of harm from the father during their relationship, although she said that she may have to reconsider that view now their relationship was over. During cross-examination she said that she had no concerns about the children’s well-being whilst spending time with the father.
After the parties separated the father admitted to sending violent and abusive text messages to the mother and Mr T. This was unacceptable behaviour by the father. Dr Haines assessed the transmissions of text messages as a “somewhat immature expression of increasing frustration rather than an objective sign of risk of violent action”.
Dr Haines observed the father approach the mother and Mr T in a friendly manner in her rooms. The father expressed a desire for a working relationship with Mr T to ensure the wellbeing of his children and has accepted that Mr T will feature in the children’s lives.
Dr Haines was of the view that the children are not at risk of witnessing and being affected by family violence, due to her observation of the children’s presentation towards both parents. She said that she did not have a strong indication that family violence was a feature of the relationship. She suggested that discontentment may have been a feature of it.
In my view, the evidence indicated that the mother is bitter towards the father for his past lack of interest in her life and the lives of the children and the resulting unhappiness this caused her, rather than being fearful of him.
The mother conceded that she held no concerns about the children’s well-being while spending time with the father. The mother agreed to proposed orders with time occurring between her and the father. She agreed for there to be no injunctive mechanisms in respect of the father’s family. She did not arrange the Contact Centre for handover in December 2009, January and February 2010. This evidence is consistent with my view, that whilst the father’s past behaviour indicated that family violence occurred, in the future the children do not need to be protected from exposure to family violence.
Section 60CC(3) – additional considerations
Relevant Considerations
Section 60CC(3)(a)
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.
The children were not interviewed and are too young to express a view.
Section 60CC(3)(b)
The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children have a loving and close relationship with both mother and father. The mother has always been the primary carer of the children. The father accepts that she is a very good mother. Dr Haines said that she is to be commended for raising two happy, healthy and well-adjusted children. The observation of Dr Haines is that the children seem to be strongly attached to the father. Her observation of their interaction indicated a strong bond and good attachment, notwithstanding the mother’s claims of very little involvement by the father in the children’s day to day lives.
Both the maternal and paternal grandmother have a close and loving relationship with the children. The mother said that the paternal grandmother has helped her with the children’s care since their births. She is a “fantastic grandmother”, according to the mother. She attended with the mother at all the children’s immunisations and gave the mother advice. The mother said “I know she loves them and would never let anything happen to them. I also know how much the children like spending time with her.” However, the mother was critical of how the grandmother told her how to parent [X].
The mother accepts that the children’s relationship with their extended family is important for them.
The paternal grandmother deposed that the children have spent a lot of time with their five cousins, who are aged between two and ten years of age. Whilst in Tasmania, the children saw their extended family not only for special occasions but at least once to twice a week. They share a special bond with the father’s sister and her daughter [S], who is three years old. [Y] has a close relationship with [S].
Section 60CC(3)(c)
the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother relocated to Queensland with the children without the father’s knowledge or consent. This prevented the children from spending time with the father and his family. Her attitude to the father was that the children were not or would not be affected by separation from him. She could not see any positive contributions the father might make to the children’s lives. However, she enabled the father to spend time with the children overnight in mid December 2009, notwithstanding that the orders provided that the time be supervised, and also whilst she was in Hobart for the hearing in January and February 2010.
The mother proposes that the children spend school holiday and other time with the father and his family. She accepted that the children need to spend time with the paternal family. I am of the view that she will in the future facilitate and encourage a close and loving relationship between the children and the father.
There is no issue that the father’s willingness and ability to facilitate, and encourage, a close and continuing relationship between the children and the mother.
Section 60CC(3)(d)
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The likely beneficial effect of [X] and [Y] living in Tasmania is that they will have opportunity to have both parents involved in day to day activities such as attendance at school and sport and other extracurricular activities. They will also benefit from spending time with the grandmothers and the father’s family.
If the parents do not live in same city, the children will spend extended school holiday time with the father. Dr Haines’s evidence was that it is psychologically difficult for young children to spend extended periods of time away from a person who is important to them. Dr Haines said, “three weeks to a two year old is a very long period of time, three weeks to a three year old is a very long period of time to be away from the person who is most important.” Dr Haines said long periods of separation can affect attachments and anxiety levels, so that a child will become more stressed and distressed:
“It has the potential to affect attachments, it certainly can affect things such as anxiety levels, so a child will become more stressed and distressed. While it can be said that a lot of children can adjust to that, it’s not the case that all children adjust to it either, that it always becomes a struggle for some children, and I don’t think there’s any easy way to predict how that’s going to turn out for that individual child. For example, in [Y]’s case, the mother reported that the children were happy in Queensland, but then when [Y] is with her father, she does not want to let go of him. Like, she was in my room and had her hand on him the whole time, even when she was playing, because she didn’t want him to disappear, means that she has been affected by the separation.”
Dr Haines was of the view that telephone calls and Skype can mitigate children’s distress, but this does not take the place of physical time with each parent. She thought that [X] would cope better than [Y] with periods of separation, because at his age he can understand the concept of distance.
Dr Haines was of the view that the most desirable arrangement is for young children to have regular and frequent time with both parents. She said that [X]’s separation from his father was not very easy for him and was affecting him, although he would tolerate separation from his father slightly better that [Y]. She said that [Y] would have difficulty tolerating being away from her father.
Dr Haines said that it is very difficult for young children in general to spend extended periods of time away from a person who is important to them, and that means both the mother and the father. Not only will [Y] miss out on regular time, which is necessary for her to communicate well with her father, she will also suffer from the separation from her mother for extended periods of time. The children will also be separated from two grandmothers and the father’s extended family for long periods.
Section 60CC(3)(e)
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is a significant matter due to the distance between Hobart and Bundaberg. If the mother lives in Queensland with the children, there will be significant travel costs for the parties to enable the children to spend time with the father.
The father is unemployed on a Newstart allowance of $220.00
per week. The mother lives in Bundaberg which means that there is a
5 hour drive to the nearest airport. The mother receives Centrelink benefits of $800.00 per fortnight. She has never worked in paid employment and is now pregnant. She seemed uncertain about the payment of the travel costs. Whilst she said that she could afford travel costs associated with her proposal, she said “we’ll get a loan”.
There is a practical difficulty and expense of the children spending time with the father on the mother’s proposal, if neither party can afford the cost of travel. This will affect the children’s right to maintain a personal relationship and direct contact with the father on a regular basis.
Section 60CC(3)(f)
The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother’s evidence was that the father’s involvement with the children during the relationship was minimal. The father avoided going on picnics and trips to parks and he did not show any interest in doing anything with the children. He spent a lot of time with his friends when he was not at work. The mother was unable to see any positive contribution the father may have to make to the children’s lives, although she did acknowledge that since separation he has been a much better father and has the capacity to parent the children.
Even though Dr Haines said that the father could have been a better father during the relationship, she observed that he and the children had well established routines and interaction patterns that indicated a strong bond and good attachment between them. She reported that it is often the case that there is an improvement in the father/child relationship following the breakdown of the parental relationship because there is a greater need for the father to involve himself in the day-to-day needs of the children. She said that the end of the parental relationship has forced the father to adopt better parental behaviours.
The father acknowledged that he may not have done as much for the children as he should have. He admitted to Dr Haines that he did not spend enough time with the mother and the children and accepted that he spent time with his friends. He acknowledged that the mother is a very good mother and primary carer. He has never doubted her ability and has not said anything to suggest that she is unable to give them the love and support they require on a daily basis.
There is no dispute that the mother has the capacity to provide for all of the children’s needs. I accept the view of Dr Haines that the mother has the capacity to be a good parent whether she lives in Queensland or in Tasmania. She said that she will be happy whether she is in Queensland or Tasmania.
The mother deposed that the paternal grandmother was always helpful with the care of the children and described her as a “fantastic grandmother.” She provided on-going support to the parties.
Section 60CC(3)(g)
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The mother and father are very young parents. They have been supported financially and emotionally by the paternal grandmother with the care of the children. The father’s immaturity was evident by his re-offending with driving offences. The mother’s immaturity is evident in the way she unilaterally relocated to Queensland with the children. Notwithstanding their immaturity, they have raised two happy, well-adjusted and confident children, according to Dr Haines.
Section 60CC(3)(h)
If the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
In Tasmania the mother was involved in a music program and young mother’s group through the Aboriginal Centre. In Tasmania the children attended the Aboriginal Children’s Centre for 2 days each week where they participated in early learning activities and experiences of cultural significance about their Aboriginal heritage. The father and his family have been actively involved in the Aboriginal community and participate in cultural experiences and events which occur annually.
The mother believes that it is important for the children to know their culture. She accepts that the children can attend major functions during the year. However, regular contact for the children with the Tasmanian Aboriginal community during school terms will be expensive, and the parties may not be able to afford the cost of the travel for this to occur.
Section 60CC(3)(i)
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The father has not fulfilled his responsibilities to the children as fully as he should have done during the relationship. He had two periods of imprisonment and as a result is now unemployed. He is not paying child support and is currently in arrears. He says that he will fulfil his responsibilities as a parent now and in the future. There has been some evidence that he is trying to be a better father during his time spent with the children in December and January.
The mother has a responsible attitude to the responsibilities of parenting, although by her unilateral relocation with the children she did not consider the children’s relationship with the father.
Section 60CC(3)(j) and (k)
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person.
An interim protection order has been made on an ex-parte basis in Queensland against the father.
I have referred to the issue of family violence elsewhere in these reasons.
Section 60CC(3)(l)
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Parenting orders are never final. This has been a difficult matter and unfortunately neither option appears less likely than the other to lead to further litigation.
Section 60CC(4)
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
The father has not paid child support for several months notwithstanding that he deposed that he was up to date in child support payments. The mother’s evidence was that during the relationship the father drank alcohol every day and smoked marijuana until he went to bed. He introduced marijuana to the mother who also smoked before she went to bed, although there was no evidence that her use impacted upon her parenting capacities. The father conceded marijuana use until about April 2009 and now he uses it socially, the last time being four months ago.
The mother prevented the father from spending time with the children when she unilaterally relocated to Queensland. She has, however, allowed overnight time for the children with the father in mid December 2009 and also when the children returned to Tasmania for the hearing.
Parental responsibility
Each party seeks an order for equal shared parental responsibility. Both parents have a close and loving relationship with them. I am satisfied that such an order is in the best interests of the children. The parents were able to communicate about the arrangements for the children in January and February 2010 and were able to reach agreement in respect of proposed orders.
As I will make an order for equal shared parental responsibility, I am required by s.65DAA (1) and s.65DAA (2) to consider whether [X] and [Y] spending equal time with each of the parents is in their best interests and reasonably practicable, or failing such an order being made, whether it is in their best interests and reasonably practicable to spend substantial and significant time with each parent. Significant and substantial time includes weekends, holidays and periods during the week, so that parents can be involved in events of particular significance to the child and the parents.
Neither party considers that it is appropriate that the children live equally with each parent. Having regard to the fact that the mother has been the primary carer of the children since their births and that the children are very young, I am of the view that it is not in their best interests that they live equally with each parent.
If the children live in Tasmania, or the father moves to live in Queensland, the parties have agreed that the children spend substantial and significant time with the father by spending time with him in week 1 from Wednesday at 3.00pm until Friday at 3.00pm and in week 2 from Friday at 3.00pm until Sunday at 5.00pm and for one half of the school holidays.
The evidence of Dr Haines is that young children need to have regular time with each parent and separation for long periods can affect attachments in them. Dr Haines was of the view that the children seem to be strongly attached to the father. The most desirable arrangement for young children is to have regular and frequent time with their parents. I accept Dr Haines’s evidence about this and I am of the view that regular and frequent time is in the best interests of the children.
I am not satisfied that the father has the financial capacity or the intention to move to Queensland. The mother could not see him moving. He lives with his mother. He has casual employment with [omitted]. He is dependent upon his family and the Aboriginal Community for support. He had not put a lot of thought into moving, although he said that he would have to think seriously about it if the children remain living in Queensland. In my view it is unlikely he will move away from his family and support network. There is no evidence that he has any friends or contacts in Queensland. I accept the submission of the Independent Children’s Lawyer that this is not one of those exceptional cases whereby a positive injunction to relocate ought to applied against the father.
If the children live in Queensland, the time the children will spend with the father will be school holidays and times when there are significant cultural events in Tasmania and at other times, if the father can afford travel to Queensland. Whilst this amounts to substantial and significant time, I am not satisfied that it is in the children’s best interests. Having regard to their young ages, I am concerned that if the children live in Queensland and the father lives in Tasmania, their attachments will be affected by long periods of separation from the father during the school term. I consider that it is not in the children’s best interests to spend holiday time with the father in Tasmania, which will mean long periods of separation from the mother, their primary carer. The mother also accepted that travel for children of their ages would be “pretty tough”.
I am not satisfied that it would be reasonably practicable for the children to spend this substantial and significant time with the father. I am not satisfied that either parent can afford the cost of the travel for such time to occur in the future.
Conclusion
This is a difficult matter. I have weighed the children’s best interests with the “right” of the mother’s freedom of movement. I have considered all the relevant considerations and competing factors and have reached the conclusion that it is in the best interests of the children to live in Tasmania with the mother. This will enable them to have the benefit of having a meaningful relationship with both of their parents. I am of the view that their involvement with both of their parents would not be meaningful to the maximum extent consistent with their best interests if they live in Queensland with the mother.
Dr Haines was of the opinion that there would be no impact upon the mother’s parenting capacity if she lived in Tasmania, as she has the capacity to be a good parent wherever she lives. I accept this view. During cross-examination the mother said that she will be happy living in Tasmania if she was living with Mr T.
The mother indicated that if the children are not permitted to relocate to Queensland she will pack up everything, find accommodation in Tasmania and work out the schooling situation for the children. Mr T is willing to move to Tasmania with the mother.
If the children live in Tasmanian they will be able to spend time with the father each week. They will be able to attend events of cultural significance. They will be able to spend regular time with both grandmothers and the father’s family. Their attachment to each parent will not be affected.
I have taken into account that Mr T will need to sell his home, leave his employment and find new employment in Tasmania. I shall delay the relocation to Hobart for a period of two months to enable the mother and Mr T to make appropriate arrangements for travel and for accommodation in Tasmania.
I will extend the interim order I made in February 2010 in respect of the communication by the children with the father, pending their return to Tasmania.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 26 April 2010
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