Keeley and Ness
[2017] FCCA 644
•11 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEELEY & NESS | [2017] FCCA 644 |
| Catchwords: FAMILY LAW – Children – relocation – child’s relationship with each of his parents – impact of proposed relocation on child’s relationship with his father – where father needs assistance to develop a more effective relationship with his son – capacity of mother to support the father son relationship should she relocate – where parties have poor communication – whether child is likely to maintain a meaningful relationship with his father should he relocate to Queensland – whether best interests of child are served by granting or refusing relocation – relocation refused. |
| Legislation: Family Law Act 1975, ss.60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2A), 60CC(2)(a), 60CC(2)(b), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(1)(b), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC, 65D |
| Cases cited: Rice & Asplund (1979) FLC 90 215 |
| Applicant: | MR KEELEY |
| Respondent: | MS NESS |
| File Number: | CAC 30 of 2015 |
| Judgment of: | Judge Tonkin |
| Hearing dates: | 16 & 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Canberra |
| Delivered on: | 11 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | Mr Haddock |
| Solicitors for the Respondent: | Legal Aid A.C.T. |
| Counsel for the Independent Children's Lawyer: | Ms Campbell |
| Solicitors for the Independent Children's Lawyer: | Bowral Legal |
ORDERS
The parents have equal shared parental responsibility for the child X born (omitted) 2009.
The child live with the mother.
The parents are restrained from moving X’s residence from the Canberra/(omitted) region.
The child spend time with the father as agreed between the parties and failing agreement as follows:-
(a)During A.C.T. school term periods:-
(i)From the conclusion of school Friday until the commencement of school Monday on each alternate weekend; and
(ii) From the conclusion of school until 7:30 PM each Wednesday.
(b)For half of all A.C.T. school holiday periods being the first half in all years ending in an odd number and the second half in all years ending in an even number or zero.
The school holidays are to be the A.C.T. school holidays. They will be deemed to commence at 5 PM on the day after school breaks up and to end at 9 AM on the day before the child returns to school. One half of the school holiday period is to be calculated by dividing by two the total number of days the child does not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.
Changeover for the purposes of order 4 (a) (ii) shall occur as agreed between the parties but failing agreement with the father returning the child to the mother’s residence at the conclusion of the child’s time.
Changeover for the purposes of order 4 (b) is to occur as agreed between the parties but failing agreement with the father collecting the child from the mother’s residence at the commencement of the child’s time and the mother collecting the child from the father’s residence at the conclusion of his time. The time for changeover in the middle day shall be 5 PM.
Notwithstanding anything else in these orders, the father is at liberty to communicate with the child by way of Skype or telephone communication between 7 PM and 8 PM each Tuesday and Thursday evening and the mother shall facilitate any such communication.
Within 12 months from the date of these orders, the father shall:
(a)Enrol in, undertake and complete a parenting course offered by Marymead; and
(b)Enrol in and undertake the Circle of Security program run by Marymead; and
(c)Engage in counselling with a psychologist or other qualified counsellor with respect to issues relating to the absence of his father from his life and his parenting of X. Such counselling to continue for a 6 month period or otherwise as recommended by the Counsellor.
To facilitate the father’s involvement in the Circle of Security program, the mother will take all reasonable steps to ensure X is available to participate in the program, if required.
There be liberty to re-list with respect to the implementation of Orders 9(a) to 9(c) and 10 above.
Each of the parties is hereby restrained from speaking about the other or the other party’s family members in a derogatory manner, either to the child in the child’s presence or allowing any other person to do so.
Each party shall advise the other within 48 hours any medical or dental appointments at which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.
Each party will notify the other soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
Within 7 days of the date of these orders, each parent shall authorise any primary school or secondary school of which the child attends to provide information to the other parent in relation to the child’s academic and co-curricular activities, including copies of school reports.
Each parent shall inform the other within 7 days of any change to their residential address, mobile phone number or email address.
The father shall pay to the mother $100 per week in addition to Child Support as assessed, whilst the mother and X remain living in the A.C.T.
NOTATION:
The Court notes that the father agrees to make the payment referred to in Order 17 hereof.
IT IS NOTED that publication of this judgment under the pseudonym Keeley & Ness is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 30 of 2015
| MR KEELEY |
Applicant
And
| MS NESS |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 January 2015 the father commenced parenting proceedings. He sought orders that the child X (then five) live with his mother in the A.C.T., be restrained from moving X to Queensland, continue his schooling at (omitted) Primary School and continue to spend time with his father on alternate weekends. In her response filed on 2 June 2015 the mother sought orders that she be permitted to relocate with X to the Brisbane area in Queensland and for X to spend time with his father for one week in each Queensland school holiday period and otherwise as agreed. At trial the mother proposed X spend time with his father for seven weeks a year in three blocks of time.
Background
The parties were mutual friends but did not live together. They had a one off sexual encounter and X was conceived. X was born on (omitted) 2009.
The mother has been X’s primary carer from birth. The father complained that the mother had limited the time he was permitted to spend with X following his birth. The mother complained the father was inconsistent in spending time. The father had nonetheless spent each alternate weekend with X from the time he was about twelve months old. In late 2015 the father commenced spending school holiday time with X.
In December 2014 the mother’s mother and step father moved to Queensland.
On 5 January 2015 the mother contacted the father by text message advising him that she wanted to discuss with him, her wish to relocate to Queensland with X. On 12 January 2015 the father filed his application opposing X’s relocation.
In May 2016 the parties reached an interim agreement for X and orders were made on an interim basis by consent for X to spend time with his father on Wednesday each week from after school until 7.30PM, from after school Friday to before school Monday (or Tuesday in the event that the child was not required to attend school) on alternate weekends and for half the school holidays. Both parties agree that X who attends (omitted) Primary School has some learning difficulties.
The father commenced living with Ms K (nee Mr G) in October 2015. They married on (omitted) 2017 and live together in a home in (omitted) A.C.T. They are expecting a child in (omitted) 2017.
The mother is living in a home in (omitted) A.C.T. owned by her mother. Her brother Mr K lives there also. The mother is experiencing financial difficulties in Canberra. Her wish to relocate to Queensland is centred around financial difficulties and lack of family and social support in Canberra.
The issue for the Court is whether the mother should be permitted to relocate X’s residence to Queensland.
Proposals
At the conclusion of the proceedings the father handed up to the Court a Minute of Orders in which he sought the following:
“1. Keep the interim orders in place as a permanent agreement as stated in my final affidavit; or
2. Work with the recommendations of the ICL based on Thursdays discussion in the final court hearing.
3. I am also willing to in enrol in any parenting support programs or counselling recommended by the court.
4. I make the offer of $100 per week to Ms Ness, all schooling expenses including excursions, uniforms, I will cover all medical expenses for X.
Should Ms Ness be granted permission through the court to relocate (sic) Queensland I propose the following:
5. X visit for all school holiday periods throughout the year. Although Canberra and Queensland school holidays are not in line with each other.
6. X visit Canberra for all long weekends.
7. X to visit Canberra for Father’s Day.
8. X to visit A.C.T. the weekend of his birthday, my birthday and his siblings birthday.
9. I would recommend Ms Ness need to financially support X’s visits to A.C.T. as this is an additional financial strain that would be avoided if X was to continue to reside in the A.C.T. and a great financial strain when a new sibling for X arrives in our household.
10. X and I speak on the phone/Skype minimum the four times per week.
11. I am able to organise additional time with Ms Ness if I am able to visit the Queensland area.”
The mother in her case outline sought the following orders:
“1. That the parents have equal shared parental responsibility for the child X born (omitted) 2009 (‘the child’).
2. The child live with the mother.
3. That the mother be permitted to relocate the residence of the child within 50 kms of (omitted) Queensland.
4. That pending the mother’s relocation to Queensland the child spend time with the father as agreed between the parties and failing agreement as follows:-
(a) During A.C.T. school term periods:-
(i) From the conclusion of school Friday to the commencement of school Monday on each alternate weekend; and
(ii) From the conclusion of school until 7:30PM each Wednesday.
(b) For half of all A.C.T. school holiday periods being the first half in all years ending in an odd number and the second half in all years ending in an even number or zero.
5. That upon the mother’s relocation to Queensland the child spend time with the father as agreed between the parties but failing agreement as follows:-
(a) For the entirety of each April and September school holiday periods in all years ending in an odd number;
(b) For the entirety of each April and July school holiday period in all years ending in an even number or zero;
(c) For half of each Christmas school holiday period being the first half in all years any in an even number or zero and the second half in all years ending in an odd number;
(d) During Queensland school term periods in Queensland at times to be agreed between the parties and failing agreement as nominated by the father providing:
(i) The father provides to the mother no less than 7 days’ notice of his intention to travel to Queensland;
(ii) The time nominated by the father commences at 9AM on the first day he is to spend time and concludes at 5PM on the last day that the father is to spend time;
(iii) The time nominated by the father does not encompass Mother’s Day;
(iv) The time nominated by the father is to be from maximum non-concurrent period of 3 nights.
6. The school holidays are to be in Queensland school holidays. They will be deemed to commence at 5PM on the day after school breaks up and to end at 9AM on the day before the child returns to school. One half of the school holiday period is to be calculated by dividing (by two) the total number of days the child does not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.
7. That changeover the purposes of order 4 (a) (i) shall occur as agreed between the parties but failing agreement at the child’s school.
8. That changeover for the purposes of order 4 (a) (ii) shall acquire shall occur as agreed between the parties but failing agreement with the father collecting the child from school at the commencement of his time and the mother collecting the child from the father’s residence at the conclusion of his time.
9. That changeover for the purposes of order 4 (b) is to occur as agreed between the parties but failing agreement with the father collecting the child from school at the commencement of this time and the mother collecting the child from the father’s residence at the conclusion of his time. The time for changeover on the middle day shall be 5PM.
10. That changeover for the purposes of order 5 (a) (b) and (c) is to occur at the Canberra International Airport and for this purpose the father shall arrange, meet the cost of and facilitate the attendance of the child on the flight from Brisbane to Canberra and the mother shall arrange, meet the cost of and facilitate the attendance of the child on the flight from Canberra to Brisbane.
11. That changeover for the purposes of order 5 (d) shall occur at a location agreed between the parties but failing agreement at the mother’s residence.
12. That pending the mother’s relocation to Queensland the father is at liberty to communicate with the child by way of Skype or telephone communication between 7PM and 8PM each Tuesday and Thursday evening and the mother shall facilitate any such communication.
13. That notwithstanding anything else in these orders, upon the mother’s relocation to Queensland the father is at liberty to communicate with a child by way of Skype or telephone communication at any reasonable time while the child is in the mother’s care each second day commencing on the day the child returns to the mother’s care and the mother shall facilitate any such communication.
14. That notwithstanding anything else in these orders, upon the mother’s relocation to Queensland and the mother is at liberty to communicate with the child by way of Skype or telephone communication at any reasonable time when the child is in the father’s care each second day commencing on the day the child commences in the father’s care and the father shall facilitate any such communication.
15. That each party shall facilitate a request by the child telephone or Skype the other parent and any reasonable time.
16. That upon her relocation to (omitted) the mother shall enrol and facilitate the attendance of the child in a (omitted) activity.
17. That each of the parties is hereby restrained from speaking about the other or the other party’s family members in a derogatory manner, either to the child in the child’s presence or allowing any other person to do so.
18. That each party shall advise the other within 48 hours of any medical or dental appointments at which the child[1] attends and advise the other party of the name and address of any medical or other practitioner who examines, provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.
19. That each party will notify the other as soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
20. That within 7 days of the date of these orders, each parent shall authorise any primary school or secondary school of which the child attends to provide information to the other parent in relation to the child’s academic and co-curricular activities, including copies of school reports.
21. That each parent shall inform the other within 7 days of any change to their residential address, mobile phone number or email address.”
[1] The mother’s minute of order as drafted referred to “the children.” As there is only one child subject to these proceedings, reference above is made to “the child” rather than “the children.”
The mother sought the following orders in the event that the mother was not permitted to relocate the residence of the child from the A.C.T. region:-
“22. That the parents have equal shared parental responsibility for the child X born (omitted) 2009.
23. That the child live the mother.
24. That the child spend time with the father as agreed between the parties and failing agreement as follows:-
(c) During A.C.T. school term periods:-
(i) From the conclusion of school Friday at the commencement of school Monday on each alternate weekend; and
(ii) From the conclusion of school until 7:30PM each Wednesday.
(a) For half of all A.C.T. school holiday periods being the first half in all years ending in an odd number and the second half in all years ending in an even number or zero.
25. The school holidays are to be in A.C.T. school holidays. They will be deemed to commence at 5PM on the day after school breaks up and to end at 9AM on the day before the child returns to school. One half of the school holiday period is to be calculated by dividing (by two) the total number of days the child does not attend school. If this is an uneven number of days the father is to have the additional day in holidays falling or commencing in even numbered years and not those in other years.
26. That changeover for the purposes of order 3 (a) (i) shall occur as agreed between the parties but failing agreement at the child’s school.
27. That changeover for the purposes of order 3 (a) (ii) shall occur as agreed between the parties but failing agreement with the father collecting the child from school at the commencement of his time and the mother collecting the child from the father’s residence at the conclusion of his time.
28. That changeover for the purposes of order 3 (b) is to occur as agreed between the parties but failing agreement with the father collecting the child from school at the commencement of his time and the mother collecting the child from the father’s residence at the conclusion of his time. The time for changeover in the middle day shall be 5PM.
29. That notwithstanding anything else in these orders, the father is at liberty to communicate with the child by way of Skype or telephone communication between 7PM and 8PM each Tuesday and Thursday evening and the mother shall facilitate any such communication.
30. That each of the parties is hereby restrained from speaking about the other or the other party’s family members in a derogatory manner, either to the child in the child’s presence or allowing any other person to do so.
31. That each party shall advise the other within 48 hours any medical or dental appointments at which the child attends and advise the other party of the name and address of any medical or other practitioner who examines or provides treatment or diagnosis in regards to the child and authorise that practitioner to give all information in relation to the child to the other party.
32. That each party will notify the other soon as practicable of any medical emergency in which the child requires medical treatment. Should any such emergency arise, each parent will inform the other of the name and address of any treating medical practitioner and authorise that practitioner to speak to the other parent.
33. That within 7 days of the date of these orders, each parent shall authorise any primary school or secondary school of which the child attends to provide information to the other parent in relation to the child’s academic and co-curricular activities, including copies of school reports.
34. That each parent shall inform the other within 7 days of any change to their residential address, mobile phone number or email address.”
At the conclusion of the proceedings the mother proposed as follows:-
“1. That the parties have equal shared parental responsibility;
2. The mother be permitted to relocate with the child’s residence to Queensland;
3. In the event the Court determined that it was in the child’s best interests for relocation to be delayed, the mother would be prepared to delay relocation until the end of the year;
4. Upon the mother relocating to Queensland the father to spend time with the child in Canberra for 7 weeks a year those times being half the long summer vacation and for two weeks in each of two of the mid - term holidays.
5. The father communicate with the child by Skype or Facetime three times per week.
6. The father spend time with the child in Queensland upon the father providing the mother with adequate notice of his desire to spend time.
7. In the alternative (and pending relocation) the interim orders would continue.”
In addition the mother’s legal representative submitted that if the Court was minded to delay relocation, the mother would accept that the end of 2017 may be an appropriate time for the mother to relocate. The new baby would be about six months old by then. The time frame would allow the father to work on his relationship with X. The mother indicated that she would be prepared to facilitate X’s attendance with the father if the father’s participation in the Circle of Security program required X’s attendance.
The independent children’s lawyer (“ICL”) filed a notice of address for service on 2 March 2017. On 10 March 2017 the independent children’s lawyer filed a case outline in which she indicated as follows “the ICL has made arrangements to meet with X at the earliest opportunity being tomorrow 10 March 2017. The ICL reserves her position until after meeting with X after which the ICL will circulate a proposed minute of orders to the parties.”
On 15 March 2017 the ICL filed a further minute of orders in which she sought orders as follows:
“1. That the parties have equal shared parental responsibility for the child namely X born on (omitted) 2009.
2. The child live with the mother.
3. That the parties be restrained and an injunction be granted restraining them both from relocating the child’s residence outside of the Canberra (omitted) metropolitan area without the prior written consent of the other until the child completes primary school.
4. In the event the mother intends to relocate to the Brisbane area upon the child completing primary school, the mother shall as soon as reasonably practicable and in any event no later than 9 months in advance of the proposed relocation:
(a) Notify the father of her intention to relocate;
(b) Invite the father to attend a family dispute resolution conference;
(c) Provide the father with a list of proposed high schools for the child to attend in the Brisbane area and advise the father of the associates (sic) costs of each; and
(d) Provide the father with a proposal of the time the child is to spend with the father which shall include travel arrangements and costs.
5. Upon the mother fulfilling the requirements set out in order 4 herein, the father shall not refuse any reasonable request received from the mother to attend a family dispute resolution conference and shall respond to the mother within 7 days of receiving the request and shall attend the family dispute resolution conference in good faith and for the purpose of discussing the child relocating to the Brisbane area for the high school period.
6. In the event the family dispute conference referred to in orders 4 and 5 herein is unsuccessful, the mother shall be at liberty to bring a further application before this honourable Court to determine the issue of relocation and in this event the principles of Rice and Asplund (1979) FLC 90 - 215 shall not apply.
7. Whilst the mother remains in the Canberra area with the child, the child spend time with the father as agreed between the parties and failing agreement as follows:
During school term:
(a) In week one, from the conclusion of school on Wednesday (or 3PM if a non - school day) until 6PM on Sunday, with such time extending to the commencement of school on Monday (or 9AM if a non - school day) from the commencement of Term 1 in 2018
(b) In week two, on Wednesday from the conclusion of school (or 3PM if a non - school day) until 7:30PM, with the father collecting the child from school at the commencement of the spend time with period and returning him to the home of the mother at the conclusion of the spend time with period.
(c) In the event the mother is unable to facilitate the child attending (hobby omitted) on the Friday night the child is not otherwise in the care of the father, the father shall also spend time with the child from the conclusion of school on the applicable Friday, (or 3PM if a non - school day), until 9AM on the immediately following Saturday, the purposes of facilitating the child attending be (hobby omitted).
During school holidays:
(d) For the first half of all school holiday periods commencing in years ending in an odd number, and the second half of all school holiday periods commencing in years ending in an even number.
8. For the purpose of orders 7 (d) herein and in the absence of any written agreement between the parties to the contrary, the following order apply:
(a) The first half of the school holidays are deemed to commence at the end of classes on the last day of school;
(b) The second half of the school holidays are deemed to commence at 5PM on the day that is the midpoint of the school of the holiday period;
(c) The midpoint of the school holiday period is to be calculated by dividing the total number of days the child does not attend school by 2. If the number of days are not even, the mother is to have the extra day in even years and the father is to have the extra day in odd years.
9. Notwithstanding orders to 7 and 8 herein:
(a) The child shall not spend time with her father on Mother’s Day weekend from 9AM Sunday;
(b) The child shall not spend time with the mother on Father’s Day weekend from 9AM Sunday until the commencement of school on the immediately following Monday, or 9AM if a non - school day
(c) Where the mother or father’s birthday falls on a day when the child would otherwise be living with or spending time with the other party, the following orders apply:
(i) If the relevant birthday falls on a school day, the child is to spend time with the party having the birthday for a period of at least three hours at a time to be agreed between the parties, but failing such agreement from after school until 6PM; or
(ii) If the relevant birthday falls on a day on which the child is not required to attend school, the child is to spend time with party having a birthday for a period of at least five hours at a time to be agreed between the parties but failing such agreement from 9AM until 2PM.
(d) On the child’s birthday each year, the party with whom the child is currently living with or spending time with is to make the child available to spend time with the other party as follows:
(i) If the child’s birthday falls on the school day, for a period of at least three hours at a time to be agreed between the parties, but failing such agreement from after school until 6PM; or
(ii) If the child’s birthday falls on a day which the child is not required to attend school, for a period of at least five hours at a time to be agreed between the parties but failing such agreement from 9AM until 2PM.
(e) The child to spend time with the parties during the Christmas period and each year as follows:
(i) With the father from midday on Christmas Eve until midday on Christmas Day and with the mother from midday on Christmas Day until midday on Boxing Day in years ending in an odd number; and
(ii) With the mother from midday on Christmas Eve until midday on Christmas Day and with the father from midday on Christmas Day until midday on Boxing Day in years ending in an even number.
(f) The child to spend time with each of the parties during alternating Easter periods, from after school or 3PM on the Thursday before Easter Friday until the commencement of school or 8:30AM on the following Tuesday and this purpose the child shall spent Easter the father in even years and with the mother in odd years.
10. That for the purpose of these orders and unless otherwise agreed by the parties in writing, handovers that do not occur at school shall occur as follows:
(a) The father is to collect the child from the mother’s house at the commencement of any time the child is to spend with him; and
(b) The mother’s to collect the child from the father’s house at the conclusion of any time the child is to spend with the father.
11. That both parties be at liberty to attend a child’s school and any extracurricular activity undertaken by the child which parents are usually invited by the school.
12. In the event that the child wishes to speak with the party with whom he is not currently living with or spending time with, the other party is to facilitate that call.
13. The parties shall keep the other informed of:
(a) The name and contact details for each of the child’s doctors, health care and other treating providers;
(b) Any medical condition, significant illness or other significant health condition suffered by the child, and in the case of an emergency the party with whom the child is in the care of shall notify the other party as soon as reasonably practicable and in any event within two hours;
(c) Any school, educational facility or extracurricular activity provider for the child;
(d) The means by which the other parent might purchase or obtain any school or extracurricular activity photographs or awards; and
(e) The address at which the child will reside when in their care and contact. telephone number and each party shall notify the other party at least 7 days prior to relocating the child’s residence beyond a 20 km radius from where they currently reside.
14. Each party shall do all such things and sign all such documents so as to authorise the other parent to:
(a) Receive all information from the child’s school to which parents are ordinarily entitled including but not limited to, their academics, sporting and social progress;
(b) Receive all information from the child’s school to which parents are ordinarily entitled as to events which parents are entitled to attend or participate; and
(c) Receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who either the child consults or by whom either child is treated.
15. In the event that either party refuses or fails to provide the authorisations required by these orders, or in the event of doubt expressed by any or all of the persons to whom any such authorisation is directed, this order shall itself operate so as to provide the authorisation that would otherwise be given by one or both parents of the child.
16. That unless in the case of emergency in which the party shall communicate by way of telephone call, the parties shall do all necessary acts and things to install the ‘Our Family Wizard’ application and use the application to communicate regarding all matters related to the child.
17. Neither party is to say unkind uncomplimentary things about the other two or in the presence of the child, nor cause or allow anybody to speak in a derogatory manner about either household in the presence or hearing of the child.
18. Both parties be and are hereby restrained by injunction from discussing these proceedings with or in the presence of the child, including the option of possible relocation of the child in 2020.
19. Both parties are restrained from consuming alcohol over the limit of 0.05 blood alcohol when the child is in their care and for 4 hours prior to such time commencing.”
With respect to the orders sought by the ICL a number of the orders proposed were not supported by any evidence before the Court. Moreover no questions were directed to either party regarding some of the proposed orders for example Order 16 was not discussed with the parties. Given that communication between the parties was poor, the Court would have been assisted if the “Our Family Wizard” application had been raised with the parties. Similarly Order 19 the injunction regarding limiting alcohol intake, no questions were asked in this regard. There is little or no utility in proposing orders which impact on the parties without giving the parties an opportunity to be heard about the proposed orders.
At the conclusion of the proceedings the ICL adopted the recommendations made by the Family Consultant who had recommended as follows:-
“1. X continue to live in the Canberra region.
2. X live with his mother.
3. X spend time with his father each alternate weekend from Friday until Monday.
4. X spend time with his father each Wednesday afternoon from after school until 7.30PM.
5. X spend time with his father for half of all school holidays.
6. X have regular telephone communication with his father on Tuesday and Thursday evening of each week between 7.00PM and 8.00PM.
7. At times when X is spending more than 3 consecutive nights with his father, he have regular telephone communication with his mother at least twice per week, on Monday and Thursday evening of each week, between 7.00PM and 8.00PM or otherwise as agreed between the parties.
8. The parent with whom X is spending time be responsible for prompting and facilitating X’s telephone communication with the other parent.
9. The father enrol on a parenting skills program such as those offered by Marymead in Canberra.”
The ICL submitted that an order for equal shared parental responsibility was in X’s best interests. She submitted that the father had agreed to assist the mother to care for X to enable her to meet her work commitments and the mother had indicated she was happy with this arrangement. The ICL conceded that this proposal was problematic as the parents had in the past experienced difficulty in reaching agreement about matters concerning X.
Documents relied on
The father relied on his affidavit filed on 10 February 2017 and that of Ms K filed on 10 February 2017. The mother relied on her affidavit filed on 23 February 2017 and the affidavit of Ms W and Mr A both filed on 24 February 2017.
Legal Principles
Though the father was the applicant in the proceedings, the mother was effectively applying to relocate the child’s residence from Canberra to Queensland. Such cases are commonly referred to as “relocation cases” however a parent’s “relocation” application is not to be treated as a discrete issue in parenting cases. In Sayer & Radcliffe and Anor [2012] Fam CAFC 209 at [47] the Full Court comprising Faulks DCJ, May & Ainslie – Wallace JJ discussed the approach to be taken when a parent is seeking to relocate as follows:
“It is now well established principle that whilst some special requirements may apply, relocation cases are guided and judicial officers are bound by the same legislative pathways as other parenting cases under the Act. In other words relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles [2007] FamCA 1230 at [72] to [73], Palmer & Hammer No 2 [2011] FamCAFC 196 at [28]). A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer No 2 [2011] FamCAFC 196 at [76] and Morgan and Miles [2007] FamCA 1230 at [80] to [81]). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.”
Justice Boland’s sets out in Morgan and Miles [2007] FamCA 1230 at [79] to [81] a helpful exposition of the approach to be taken when considering a parent’s application to relocate.
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) gives the Court the power to make such parenting orders as it thinks proper. Section 60CA provides “In deciding whether to make a particular parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.”
The matters the Court is required to consider are set out in section 60CC of the Act. Those matters include primary considerations and additional considerations. The two primary considerations include:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Subsection 60CC (2A) of the Act directs the Court in applying the primary considerations, to give greater weight to subsection 60CC (2) (b).
In Mazorski v Albright[2007] FamCA 520 Justice Brown considered the term “meaningful” and observed as follows:
[26] “What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.”
The Full Court in McCall & Clark [2009] FamCAFC 92 at 83,476 accepted Justice Brown’s interpretation of the term “meaningful relationship.”
When having regard to the primary considerations, it is necessary to consider the objects of the legislation pursuant to section 60B (1) of the Act. The objects include:
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The principles which underpin the objects are set out in section 60B (2) of the Act namely:
(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).
Pursuant to subsection 60CC (3) of the Act the Court is required to consider additional considerations in so far as they are relevant. It is convenient to consider these matters when assessing the evidence in the proceedings. Considerations which arise in this matter include the nature of the relationship of the child with each parent and any other person, the likely effect of any change in the child’s circumstances including any separation from a parent or other person, the practical difficulty and expense of the child spending time and communicating with the other parent and the impact of this on the child’s ability to maintain a relationship, the capacity of each parent to provide for the child’s emotional and intellectual needs and the attitude of each of the parents to the child and to his or her responsibilities as a parent.
Assessment of the evidence
The father represented himself at trial. He relied on his affidavit and was cross examined by the mother’s legal representative and the ICL. It was apparent that the father was both nervous and unsure of himself during the proceedings. The Court observed that he found it difficult to articulate and communicate his views about the matter, not due to any unwillingness on his part but due to an inability to express his position clearly. This is not a criticism of the father merely an observation by the Court.
(a) Father’s relationship with X
The parties did not live together. They knew each other through mutual friends. X was conceived when the parties engaged in a one off sexual encounter. The father complained in his affidavit that the mother did not inform him that she had conceived X. He was notified of this by a mutual friend. He said he made contact with the mother advising her that he wanted to play an active role in X’s life. He complained he was not notified about X’s birth however he accepted in cross examination that he held X in the first hour of his life, the maternal family having contacted him. He said he wanted to be present at the birth but the mother refused to allow him to be there. The mother agrees she did not want the father to be present for X’s birth. I find that the mother wanted to exclude the father from being present at X’s birth however this was understandable given that she found the situation she was in at that time, particularly stressful.
The mother has been X’s primary carer throughout his life. The father complained that following X’s birth, he had to continually make requests to spend time with X and this impacted on his ability to form a strong relationship with him. He said that he was only permitted to spend time with X in the mother’s home for the first twelve months of his life. The mother agreed that the father spent time with X in her home for the first twelve months however she said she breast fed X for about the first eight months and wanted to maintain a routine for him. She raised a concern about the father’s demands to spend time with X during this period coupled with the irregularity of his visits. She indicated that the father would not make contact for weeks and then insist on spending time with X. She said after twelve months she gave into the father’s demands to spend time and agreed to X spending time with his father on alternate weekends. I find that the father lacked insight into what was best for X given his very young age.
The father acknowledged that after twelve months the mother permitted him to spend time with X on each alternate weekend from after work on Friday until Sunday night. He said during this period he cared for all of X’s needs. When X was in Year one the father commenced spending holiday time with him.
The father raised a number of concerns regarding the mother. He alleged there were a number of times the mother removed X from Canberra to Queensland without his consent. He said he found out on Facebook through Facebook posts or mutual friends that she was on holiday in Queensland. He said this had an impact on his fortnightly visits with X. In addition he complained that the mother did not provide him with sufficient notice about any change in arrangements and on occasion did not adequately care for X when he was ill. The father provided some examples.
On the weekend of 22 May 2016 X was in the father’s care. He said he received a text from the mother at 5:05PM on the Sunday evening saying “Hey do u want X another night and take him to school tomorrow?” The father responded that he was unable to care for X overnight as he would need to reorganise his work schedule and was required to start a job in 6AM the following day. He advised the mother that he was very busy with work and any delay caused other tradesmen to be delayed on the buildings the father was currently working on. He indicated he was unable to reschedule work commitments at short notice. In her affidavit the mother alleged that she wanted to support a friend who was having problems and that was the reason she requested the father care for X overnight. The father noted that the mother had told him she was at the football having drinks. The mother had posted on Facebook “it’s nights like this I really miss having the parental support here …..one school night off would be nice.”
On 6 June 2016 the mother contacted the father’s sister who agreed to babysit X overnight so the mother could leave Canberra to attend a party. X was ill at the time, was lethargic and had a high temperature and needed medication. The father raised concerns that the mother left X in the care of the father’s sister whilst he was ill.
The father advised the Family Consultant that in June 2016 the mother travelled to Queensland with X at a time he was ill and missing school. The father said he told the mother he opposed her taking X to Queensland on this occasion however he said she dismissed his concerns saying his concerns were unwarranted and that “she knew what was best for her son” and they travelled to Queensland. The father said the mother’s lack of concern for the father’s input and what he considered best for X was concerning for him in the context of her proposed relocation to Queensland. He said the mother was unlikely to support his view and his continued involvement with X if she was permitted to move to Queensland. I find that the mother demonstrated very little regard for the father in electing to travel to Queensland when convenient to her. She appeared to disregard the disruption to the routine X had with his father although I accept that the mother offered “make- up time.” In addition on occasion she provided the father with inadequate notice with respect to removing X to Queensland.
The father raised concerns about X’s hygiene, that he did not shower regularly in his mother’s care or when on holiday in Queensland and on one occasion he had an open sore on his tongue which was discharging pus. The father said he took him to a doctor who diagnosed scabies. He said he treated the condition with medication as prescribed. The mother disagreed X had scabies. The mother provided a doctor’s certificate dated 28 April 2016 that X was seen by Dr K and she (Dr K) confirmed there was no evidence of scabies on that date. No concerns were raised by the mother’s mother or the school regarding the mother’s failure to adequately attend to X’s hygiene. I reject any basis for concern in this regard.
The father currently spends about twenty weekends a year with X and half of all school holidays. The parents share Christmas and birthday visits and X spends time with his father each week on Wednesdays after school during the term. X and the father have a mutual interest in (hobby omitted) and X is now heavily involved in (hobby omitted) training on Wednesdays with his father’s support and involvement. X attends (hobby omitted) activities on Friday evenings and Sunday mornings on the weekends he spends with the father. The father said in evidence that X has “fallen in love with (hobby omitted).” He said that he was involved in (hobby omitted) as a child and he and X are developing a strong bond over this as both of them have a passion for the sport. He said these activities bring X joy and happiness and it is something they do together. X has formed friendships with other children involved in this activity. Though X can only attend alternate Fridays and Sundays the club has been supportive and given him encouragement awards recognising the difficulty for X in attending only every second week to activities organised on a weekly basis. The father indicated that he would like the mother to support X’s involvement in (hobby omitted) in the future.
The father said that since the arrangement for him to spend time with X was formalised following an FDR on 2 May 2016, the agreement forming the basis for interim orders, he and X have built on their relationship. The father said that the lack of time with X should he move to Queensland would negatively impact on his relationship with X and his ability to develop that relationship as he grows older. He said that using Skype to talk to X would not be the same as seeing him on a regular basis. He said he and his family had played a big part in X’s life as much as had been possible. He said his family members had baby sat X at the mother’s request to enable her to go out and attend parties and other occasions. I find that the father is currently substantially involved in X’s care.
(b) Involvement with X’s education
The father alleges that the mother did not consult him about enrolling X in (omitted) Primary School however he was aware X was to start school at (omitted). Before he commenced school the father went to the school and introduced himself and organised for the school to email him all newsletters and provide him with a copy of all school reports. Since X commenced school in 2014, the father paid for X’s school pack or forwarded money to the mother to reimburse her for payment of X’s school pack. He attended all school assemblies where X received an award and was present on X’s first day of kindergarten, met his teacher and saw his classroom. He attended all the Father’s Day breakfasts with X and most of his school concerts, his school fetes on weekends and parent teacher interviews both with the mother and alone. When X attended preschool the father attended his first day of pre-school and was present at his end of year Christmas concert.
With respect to X’s education the father opposed any disruption to X moving from (omitted) Primary School. He said he had been able to organise his work so that he could attend special school events and a move to Queensland would make it impossible for the father to be actively involved in X’s education and school life. X had formed many friendships with children at school which were positive for him and in the event that the move was to be a temporary one the disruption for X would be distressing for him. The father said he had become even more involved with X’s school and he and Ms K had been assisting X with his learning difficulties in particular his reading. Ms K is a primary school teacher and has specific training in this area. The father said it was important for X that he (the father) continue to take an active role in X’s education and opined this would be impossible should he move to Queensland. I find that the father has shown initiative in involving himself and participating in X’s schooling and this has been of benefit to X.
(c) Mother’s proposed move to Queensland
On 5 January 2015 via text the mother sent the following message to the father:
“Hey we need to have a chat & I apologise for doing this via msgs but it’s the only way I could get it all out, cause otherwise I just freeze up. So you know that mum & (omitted) are now living in Qld & that there was a possibility we could also move, well I kind of had no choice but to move to be honest. Financial I just can’t afford to stay in Canberra any more, the $200 I get from Mum to help with rent I can no longer get due to her new job & even with going back to work this year it’s just not gonna be possible, And I’m not willing to move into a tiny little unit when I can get a decent house for us up there. And between me, (omitted) & Mum we will be down there seeing family as often as possible (there’s already 3 trips planned before April LOL) and if you want to fly X down for visits on holidays we can do that, I can also get Skype set up so you can have face-to-face talks whenever you want to ….. I’m not saying this is going to be a permanent thing, and I’m not saying it won’t be. But right now I do believe it’s the smarter choice for both of us, financially & mentally. This hasn’t been an easy decision trust me, but for X its best for us to move in a couple of wks so he can start school at the beginning of the year. I understand how hard this will be at the beginning but you know I would never stop you or your (family) from being a part of X’s life. I truly hope you can try and see this from my point of view. “
The father said upon reading this he became emotionally upset. He approached the Family Court to find out what he should do and consulted a lawyer. He opposed the mother relocating to Queensland with X and filed an application to restrain her from moving X’s residence. Though the mother indicated in the text message that she wanted to “chat” to the father about the move it is apparent that she had already formed an intention to relocate when she advised the father of her proposal.
(d) Father’s financial support
Regarding the matters raised by the mother in her text, the father said he had paid child support throughout X’s life in accordance with the child support assessment. He was concerned about the Facebook posts the mother was making regarding financial matters and had formed the view that his child-support payment was not being spent on X. He noted the mother was able to afford Foxtel and X told him that he and his mother regularly ate McDonald’s for dinner. He did not accept that rental properties were cheaper in (omitted). He said he was willing to provide the mother with additional financial support for X.
The father said he had to date provided additional financial support to the mother for X in purchasing all X’s school packs, uniforms for summer and winter including shoes, underwear, lunch boxes, pencil cases, drink bottle, hat and school bag. He has paid for school excursions and advised the mother he was willing to pay for these activities. He pays for X’s haircuts on a six weekly basis. He advised the mother he was willing to pay for X’s medical expenses when X is in his care. He indicated he would discuss any further financial assistance the mother required to assist in X’s care. At the trial the father offered to pay an additional $100 per week for X’s care whilst he was with his mother. I find that the father has fulfilled his duties as a parent by providing the mother with financial support and it is likely he will continue to do so in the future.
With respect to the mother’s employment opportunities the father said in his affidavit that if the mother was employed in Canberra he would offer to arrange to care for X to support her to facilitate her commitment to her employment duties. The father was concerned that there was a higher rate of unemployment in Queensland compared to Canberra. At the time of the trial the mother had secured employment as a (occupation omitted) in Canberra and was undertaking a course to qualify in that area of employment.
(e) Mother’s lack of support in Canberra
According to the father the mother completed her High School years and College years in Canberra. The father has always lived in Canberra. With respect to the mother’s lack of family support in Canberra, the text message sent on 5 January 2015 did not specifically refer to lack of family support as a matter of concern for the mother save that reference was made to the maternal grandmother and her partner moving away. The Court infers that the mother would prefer her mother to live in close proximity to her. The text message refers to the mother’s mother and her partner travelling to Canberra and says “(omitted) & Mum we will be down there seeing family as often as possible (there’s already 3 trips planned before April LOL).” The father claimed the mother had family members in Canberra who could provide her with support. The reference in the text message appears to support that contention. The Family Consultant observed that the mother “identified that she has extended family in the region of (omitted) A.C.T. that she may access for support.” The Court notes that the mother was living in her mother’s home with her brother at the time of the hearing and he was assisting financially in contributing towards the rent of that property.
(f) Concerns raised with the Family Consultant
The father raised a number of concerns with the Family Consultant and addressed these matters in his affidavit. He denied drinking alcohol to excess. The Court notes that this issue was not pursued at trial by the mother’s lawyer. The father raised concerns about the mother’s intake of alcohol making reference to her Facebook posts however the Court notes he did not indicate this impacted on her ability to care for the child as he agreed if the mother remained in Canberra X should continue to live with her.
The father raised concerns with the Family Consultant regarding the mother travelling to Queensland with X at a time when he was ill and missing school and issues about hygiene. In addition he raised a concern that the mother’s step father had involved X in the parenting dispute and X had been told by him “Daddy won’t let you” (move to Queensland). Under cross examination the father said this did not occur “constantly” the use of the word constantly was “wrong.” He said the child had raised the matter once with him. The father said he did not involve the child in the dispute between the parents. I accept his evidence in this regard.
The father said that following the mother raising concerns with the Family Consultant regarding the parents past interactions with each other, he has attempted to be more positive and more supportive of the mother. He said he was making a concerted effort to ensure all communication between them was positive particularly at changeover. I accept the father’s evidence
(g) Father’s ability to relocate
The father is a qualified (occupation omitted) who runs his own business in the A.C.T. He has investigated business opportunities in Queensland. He indicated that (occupations omitted) in Queensland are paid at a lower rate. He said a move to Queensland would have a dramatic impact on his financial circumstances. He indicated he could not move to Queensland. All his family and friends live in Canberra and he has a strong support network in Canberra.
(h) Relationship with Ms K
The father has re-partnered with Ms K–Ms K (nee Mr G). He had a friendship with Ms K’s brother prior to the parties commencing a relationship in 2015. He has lived with Ms K since October 2015. On 14 January 2017 the father and Ms K married. They are expecting a child (a daughter) in (omitted) 2017. Ms K is a (occupation omitted) who has a permanent position at (omitted) school in Canberra. Ms K’s parents Ms L and Mr G have known the father for five years initially through their son. They have developed a relationship with X including attending (hobby omitted) activities and watching X participate in (hobby omitted).
Cross examination of the father
In answer to questions from the mother’s solicitor the father agreed that there was some benefits to the mother relocating but he could not articulate those benefits. He said he opposed X moving to Queensland as he wanted him to have the “best opportunity.” He was of the view that there were no benefits for his son from his perspective. He said “I grew up without a father I know what it’s like….it’s very important to have a father.” The Court asked Mr Keeley about his father. He said “he did not know him, had never met him and he was not part of his life. He had not tried to find out about his father to date.” The Court notes that the father had not raised this issue with the Family Consultant.
The father did not accept that the mother needed to relocate financially. He agreed his payment of $35 per week in child support did not go far however he was concerned that the mother was not using those funds for X’s benefit. He volunteered that he bought new clothes and shoes for X and paid for his school pack, lunch orders and haircuts and had offered to pay for things the mother may need for X. He was concerned about the comments she made on Facebook about her finances. He said he did not contact the mother to offer her money as “he did not want to start any fights.” He said if she asked for money for X it would not be a problem and he would provide it. He offered to pay the mother an additional $100 per week to assist her to care for X in Canberra.
The father observed that the mother had found employment in Canberra. He offered to make himself available to assist her to care for X to enable her to meet any employment commitments. He was concerned about the lack of employment prospects for the mother in Queensland and said he was not comforted by the fact that the mother had a job offer in Queensland.
The father agreed that he was concerned that the move away would negatively impact on X’s time with him. He said “I don’t want him to leave me.” He said he had not prepared himself for a result from the Court that X live with his mother in Queensland. He was hoping it did not happen. He said “we are currently building a very strong relationship.” Asked what he had done about the matter he said “I saw a lawyer and I am trying to stop him from going.” He said he had not had any counselling. He did not need it. He was stressed about the litigation and the mother’s application to move X to Queensland. He said he had his family’s support and the support of his wife Ms K. He said his wife was a positive influence on him.
The father agreed that the maternal grandmother and step father had a close relationship with X. He acknowledged that they had lived in the same home as the mother and X for three and a half years. He said to the Court “my relationship with X would have been closer if he had lived with me.”
He agreed that the mother had friends in Queensland but also had friends in Canberra. He agreed that she had people to support her in Queensland but said she also had family in Canberra.
He did not accept that the mother’s proposal would enable him to have a meaningful relationship with X. He said “just seeing him in school holidays was a big reduction in the time he could spend with him.”
He did not agree there would be a major impact on the mother should she not be permitted to relocate with X to Queensland. He said that the mother had plenty of family and friends in Canberra. He said she travels to Queensland every school holidays. He agreed that if the mother was not permitted to move this may impact on her but he did not know how any impact would manifest. He said the move “is not fair on X – it’s not about me and the mother it’s about X.”
He said he had not contacted the school the mother proposed for X in Queensland or (omitted) Queensland as he had hoped the Court was not going to permit X to leave.
Regarding his interview with the Family Consultant, the father rejected the proposition put that the move was “all about him.” He said it was about X. He agreed however that he focused during the interview with the Family Consultant on himself. He said he thought X would experience a disruption to his education, socially miss friends and miss his (hobby omitted) activities should he move to Queensland. He said the move was likely to affect X.
When asked about the mother’s lack of support in Canberra the father said the mother has family members in Canberra “I don’t know her family, she has cousins, she hangs out with her family in (omitted).”
When asked about the comment in the family report by X that he is “sad like I’ve done the wrong thing” when with Dad he said he has taken on board that comment and has tried to be “not so grumpy and tries to be more positive with him.” He denied saying he would put (sticking) plaster over his mouth.
The father said he was currently building a strong his relationship with X. He disagreed that X takes time to settle, he said “we chat about school.”
Regarding communication between the parties the father said this was via text and it was “free flowing……..we don’t communicate properly…..but it’s been better in 2017.” He said he has tried to improve on the parties relationship and speaks to the mother civilly during changeover (saying hello and goodbye) as this is important for X.
The father raised concerns that the mother does not inform him. He said he had to approach the school himself to organise information being conveyed to him. He was concerned that the mother took X to Queensland when he was unwell and too ill to fly at a time he was too sick to attend school. He said she would give him minimal notice about going to Queensland. She travelled on the father’s weekend and offered him make up time.
The parents are friends on Facebook. The mother annexed to her affidavit two posts about father’s rights. The father said he did not post those articles but simply “liked them” on Facebook. He said he was supporting another person going through the family court at the time. The father said that the mother’s move wasn’t fair. He explained he meant by this that move was not fair on X. He said “he doesn’t understand the impact a move will have on him.”
The father agreed with the ICL that X had a good relationship will all members of the family. He described him as “a happy little boy.” He said his bond with X had increased since his time had been formalised. He said he would agree to do a joint parenting course to improve communication and had suggested to the mother’s lawyer that they participate in the course together however the mother had declined.
(j) Impression
The father impressed as a very loving, caring parent who demonstrated a great interest in his son. He was heavily involved in X’s schooling and he and Ms K had endeavoured to assist him with his learning difficulties during the short time X spent with them. The father and X shared a common interest in (hobby omitted) and the father supported, encouraged and participated in this activity with X. It was apparent that X and his father shared a passion for the sport.
The father placed great significance on the father son relationship. He said “I did not have a father I know what that’s like.” He considered that from X’s perspective the loss (or diminution) of the relationship as a result of the move to Queensland would have a hugely negative impact on X. The father came from the unique position of understanding the impact of the absence and/or loss of a father son relationship having experienced this himself. I formed the view that it was likely that the father had unresolved emotional and psychological issues around this.
The Family Consultant observed that the father’s interaction with X was problematic. He raised concerns about the difficulties in the father’s relationship with X saying “he does not know how to be an effective parent.” Mr Keeley had not told the Family Consultant that he did not have the experience of a father during his life. The Family Consultant indicated this would explain the nature of the relationship between X and his father given that the father did not have the experience from his own father as to how to be an effective parent. The Family Consultant recommended that the father would be assisted by undertaking counselling not only to address how to be a more effective parent for X but also to address any unresolved issues that relate to Mr Keeley not having the experience of a father and not knowing his father. The father indicated he was ready and willing to obtain that assistance.
B. Ms K (nee Mr G)
Ms K–Ms K was not required for cross examination. She indicated in her affidavit that she had seen a great growth in the bond between the father and X following the implementation of interim orders in May 2016. She observed that X and his father share a passion for outdoor activities and she observed they had a deep connection to each other. She said that the father introduces new experiences for X when they spend time together such as taking X to “(omitted)”, (omitted), local parks, movies and museums. X and his father appear to be very connected and when his father attends special events at X’s school such as the Father’s Day breakfast, concerts and school fetes, X and his father talk about the occasion for weeks after the event. She said that X has shown a strong interest in the pending arrival of the new baby and has expressed excitement in how he looks forward to being a “big brother” and spending time with the baby.
C. Mother’s evidence
The mother gave evidence and was cross examined by the Independent children’s lawyer. The father directed one or two questions at the mother but was unsure of questions to ask and his cross examination of her was very brief.
(a) Relationship with X
The mother agreed that X was conceived as a result of a one off sexual encounter and that the parties did not live together. She agreed she did not want the father to be present in the delivery room when she gave birth. She said she received an abusive text message from the father and she found this time to be very stressful.
The mother has been X’s primary carer from birth. X has a strong and secure attachment to his mother. X lived in a home with his mother, maternal grandmother and the mother’s step father for the first few years of his life. A month or two after X was born the mother permitted the father to come and visit X at her home in her presence for a few hours each week. She said the father pressured her to allow him to take X away from the home but she refused indicating that X needed to have a routine. She complained that the father would drop in to see X and the time he spent was inconsistent. I accept the mother’s evidence that prior to X reaching twelve months of age the father was inconsistent in spending time with X.
The mother said that between the time of X’s birth and when he was about twelve months old, the father would spend on average once a week with X for about three hours. By the time X was twelve months old the mother agreed that the father could spend time with X on alternate weekends. This arrangement continued until May 2016 when interim orders were made. From the time X was in Year one, he spent time with his father during the school holidays.
The mother indicated that although the alternate weekend arrangement was in place she had to make an enquiry of the father each weekend to see whether or not he was actually going to attend to pick X up. She said that from time to time the father had not advised her whether he would be attending to pick up the child. The mother complained that on many occasions the father had asked her to pick X up early on a Sunday afternoon. As these allegations were not put to the father in cross examination, I am unable to assess whether there were difficulties for the mother. I formed the view from other evidence that the father regularly spent time with X each alternate weekend from the time he was twelve months old and had been a consistent and significant person in X’s life.
The mother said there were difficulties between the parents. She occasionally received abusive messages. She said the father had not been supportive when she asked him to spend more time with X. The father disagreed with this. The mother said on one occasion she was in hospital and the father told her he could not take time off work. The father was not cross examined about this. The father agreed however on 22 May 2015 the mother had offered the father an additional overnight on the Sunday and he had declined saying he had to start work at 6 AM and that he was too busy and too far behind in work to care for X that evening otherwise he would have accepted the extra time. I accept the father did not make himself available to care for X on this occasion.
Whilst living in Canberra the mother has been heavily involved in X’s schooling attending school assemblies and school excursions as a volunteer and as a reading assistant in his classroom. X enjoys swimming and the mother has facilitated his participation in that activity. She intends to continue X’s involvement in swimming in Queensland.
(b) Family support
The mother said she had spent eleven years of her life in the Brisbane area and most of her family and friends lived in Brisbane. She said in December 2014 her mother and her stepfather “who she is incredibly close to” returned to Queensland to live. She said she missed them very much and they had always been supportive of her and X. She said that X had a close bond with her mother and stepfather and they assisted in raising X for the first years of his life in their former home at (omitted).
The mother said she felt very isolated in Canberra. She said the closest family member she has in Canberra is her brother Mr K. She said he was planning to move back to Brisbane in July 2015 but put his plans on hold to assist her over the last two years. At the time of the trial the mother’s brother was living in the home she lived in sharing the rent. He was not on affidavit.
The mother said many of her close friends lived in the Brisbane area. She said these were her childhood friends that she grew up with and included her best friend Ms J, Ms J’s husband and their four children. I accept the mother’s evidence that she has family and friends in Brisbane. I note that the mother travels to the Brisbane area with X regularly to visit family and friends, primarily funded by her parents.
(c) Financial difficulties
The mother said she was struggling financially in Canberra. She found it difficult to make ends meet and relies on her parents and brother for financial assistance. She lives in a three bedroom house in (omitted) owned by her mother. She pays $250 per week in rent. Her brother pays the balance of the rent being an additional $100 per week. It is her mother’s property and she is renting the property at less than market value according to the mother.
It is unclear from the evidence why the mother pays the greater share of rent of $350 per week. The mother’s brother was not on affidavit and there is no evidence of his financial circumstances. The mother indicated he provides financial support however it would appear that the mother is subsidizing him, making a greater contribution towards the rent. This was not explored in cross examination.
The mother gave brief evidence in chief that her Centrelink benefits had recently been reduced from $1100 to $800 or $900 a fortnight. A Centrelink letter (Exhibit R5) was tendered on her behalf. This document did not support the mother’s evidence but demonstrated that the mother’s Centrelink benefits though they had recently changed were moderately increased. The mother’s financial difficulties were one of the reasons the mother gave for wanting to relocate to Queensland.
The mother said she was now working on a casual basis as a (occupation omitted). Regarding work, she is paid between $20 and $25 per hour. She is available to work from Tuesdays to Fridays during school hours (or for five hour days). She is undertaking (omitted) qualifications online and hopes to qualify by mid - 2018. Her work is based on making herself available. She agreed that she had the potential to work twenty hours per week but indicated sometimes the work is not available. Further she said increasing her work hours would impact on the Centrelink benefits she receives.
The mother receives $150 per fortnight from her mother to help her get by and provide for X. She said that rents in Brisbane were much cheaper than in Canberra “around $100 less per week than she is paying now.” She said she could rent a new two-bedroom property of around $260 per week in (omitted). The mother did not indicate that she had investigated rent in Canberra cheaper than the $350 per week. There was no evidence that she had investigated public housing in Canberra notwithstanding her financial circumstances. She received a rent assistance allowance as part of her Centrelink benefits. Regarding the issue of payment for Foxtel, the mother said that her brother pays for that. I accept the mother’s evidence about her difficult financial circumstances. I note she has the potential to earn $400 per week from (omitted) work. Though she is X’s primary carer he attends school. She could increase her work hours if/when these become available. She receives financial assistance from her mother. If she remains in the A.C.T. the father will be required to provide her with support of $100 per week in addition to Child Support as assessed.
(d) Relocation to Queensland
In answer to a question from the ICL, the mother agreed that she alone had made the decision to relocate to Queensland. She said that the parties had never had a discussion about it. I infer from this evidence that in sending the text message to the father on 5 January 2015, she was providing the father with “a couple of weeks notice” before relocating to Queensland with X. According to the father, it had been the mother’s practice with trips away to give the father inadequate notice when she took X to Queensland with her holidays. No consultation took place regarding the mother’s decision to relocate X’s residence to Queensland.
The mother said she completed four years of school in Canberra including Year twelve. The balance of her schooling was in Queensland. She did not have many close friends or other support in Canberra. She said she visits Queensland when she can and her mother pays for the flights for her and for X. She intends to enrol X in (omitted) Primary School if she is permitted to move. The school is in (omitted) and is approximately a minute away from the (omitted) shopping complex. There are vacancies at the school for X. After X completes primary school she intends to enrol him in (omitted) High School. There are two other high schools in (omitted) approximately seven minutes from (omitted). She has not discussed any of the proposed schools with the father.
She said X has three close friends who attend (omitted) Primary School. He has known them since he was born and has socialised with them on visits to (omitted) over a number of years.
(e) Employment opportunities
The mother said she is currently employed in Canberra on a casual basis with (employer omitted) through her employment provider (omitted). She works on average twelve to fifteen hours per week. Her employment depends on the availability of shifts. She said (omitted) has an office in (omitted) that would be able to assist her in obtaining employment in the (omitted) area.
She said her mother Ms W and husband Mr A conduct a business from their home at (omitted) which is approximately fifteen minutes from (omitted). She has been offered work in that business doing (omitted) tasks for approximately twelve hours per week. The mother was asked by the Court that as her parents conduct their business from their home, presumably over the internet, whether it was possible for the mother also to conduct part of that business from her home. The mother responded that she hadn’t made any inquiries in that regard.
(f) Additional support
The mother said she intended to live close to the maternal grandmother and her step father. She said that her mother had the flexibility of running her business from home and was available for family support at short notice. She said she has a friend Ms J who has also offered her casual work in her (omitted) business which is based in (omitted). She also has a close network of friends being four families in (omitted) that she can rely she can rely on for support in relation to X who will be able to assist with childcare and after-school care if necessary. Other than her mother and step father, none of these persons were on affidavit however, I accept that the mother says she will feel more supported if she relocates to Queensland.
(g) Father son relationship
The mother said she was prepared to encourage X to build a strong relationship with his sibling regardless of where he lives. She denied that she had ever made time for the father to spend with X difficult. She said she had always advised the father when she was visiting Queensland and offered him make up time. The father complained that she would provide him with minimal notice of her trips to Queensland. She said on a couple of occasions she had taken X out of school but always consulted his teachers. I accept the father’s evidence that the mother provided the father with minimal notice on several occasions when she removed X to Queensland.
The Family Consultant raised a concern about the lack of communication between the parents. He said there were currently deficits in the father son relationship. He indicated that it would be extremely difficult if not impossible for X to develop a sibling relationship with the new baby expected in (omitted) 2017, should X relocate to Queensland. He concluded that it was preferable for X to remain in Canberra to enable him to develop a stronger relationship with his father and allow him the opportunity to develop a relationship with his new sibling.
The Family Consultant indicated he was not convinced that the mother would actively encourage the relationship between the father and the child should she relocate. He accepted that she had offered make up time in the past but formed the view that it was the mother’s preference to keep the father at arm’s length. I similarly formed the view that the mother was unlikely to encourage and promote the father son relationship should she relocate.
The Family Consultant was of the view that in relocating to Queensland, the distance between the father and X would make it very difficult for the two of them to maintain their relationship. There would be a significant reduction in the opportunity to be involved in X’s life and in particular to be involved with his schooling and (hobby omitted) activities. He formed the view that the impact of this on X would be detrimental.
He was of the view that the onus would be on the mother to support X’s relationship with his father if she relocated to Queensland. He was concerned about the mother’s ability to do this. Though she indicated that she would support X undertaking (hobby omitted) activities her comments in this regard were inconsistent. In particular she had formed the view that such an activity was not safe for X. The Family Consultant concluded that there was a lack of enthusiasm and a lack of commitment on her part to ensure X maintained a strong relationship with his father. I concur.
With respect to the mother’s feelings of isolation in Canberra, he noted that the mother referred to family members who lived in (omitted) and although she was not close to them she indicated that she would likely move to (omitted) should she be required to remain in Canberra and would rely on them if she needed to.
With respect to any psychological impact on the mother should she not be permitted to relocate, the Family Consultant formed the view that the mother was resilient, she had undergone counselling when distressed in the past and she continued to engage in counselling once every two months or so. He indicated that it was likely she would engage in counselling when she needed the support. In his opinion the mother would likely experience a period of high stress immediately after a decision which indicated she was not permitted to move to Queensland but he formed the view that this would be “short lived.”
He said it was inevitable that there would be a negative impact on X should he relocate to Queensland, in particular the amount of time proposed by the mother would not be sufficient for X to maintain a strong relationship with his father and it would not enable X to establish a relationship with his new sibling. He was of the view in order for X to have a strong relationship with his father, he needed to spend regular and consistent time with his father and it was essential for the father to obtain support and counselling to address his own parenting issues. He formed the view that the father would struggle to maintain a relationship with X should he relocate to Queensland. The father had already missed a few telephone calls while the child was living in Canberra. He said that although X and the father had a good physical relationship, in putting distance between them “they would lose a lot.” He said that there was not much evidence of co-parenting between the parties, there was no discussion about joint decisions and that did not bode well for supporting a relationship with the father and X in the future.
With respect to X’s wish to relocate to Queensland, the Family Consultant indicated that X was an immature seven-year-old who had no real understanding of relocation and what that would mean and the impact this would have on X’s relationship with his father. He formed the view that X was simply repeating the wishes of his mother. He noted that X had only ever experienced Queensland during holiday time and had no understanding of what it would be like to live as a normal child in Queensland, for example going to school and being away from his father. He formed the view that with respect to X’s wish to move to Queensland, he had “either overheard or been involved in conversations regarding his mother’s wish to move to Queensland.” X was aware of the school he would be attending if he were to relocate to Queensland and he volunteered that he could spend time with his father during school holidays. The Family Consultant indicated that this information may have influenced his view that he wanted to move to Queensland.
Family Consultant’s conclusions and recommendations
The Family Consultant recommended that the mother and X remain in Canberra. The father needed to work on his relationship with X which from the child’s viewpoint was seen as “negative and unpredictable.” The father’s recent communication had been inconsistent and he said this may be unsettling for X as his mother is likely to have prepared him for the call. He said that given X’s ambivalent attitude towards his father it is of particular importance to strengthen that relationship. He said that X needs to develop a more secure and stable relationship with his father and noted that the father would benefit by enrolling in a parenting program for father’s facilitated by Marymead.
The Family Consultant noted that the mother and father have different parenting styles and each interact with X in a different way. There was a lack of communication in the parental relationship which has made it difficult for X to negotiate the parent’s differing rules and expectations of his behaviour in the two households. He said this was likely to have a negative impact on his relationship with either parent.
Regarding X’s express wish to move to Queensland, he was not confident that X understood the impact in relocating to Queensland. He formed the view that X had a limited concept of what it would mean to have reduced time with his father. He said the move would be a significant adjustment for X who has regularly spent time with his father throughout his life. He indicated that when a child moves a significant distance from one parent this typically has a significant detrimental impact on the child’s relationship with the non-moving parent. Having regard to the distance of the relocation proposed by the mother he said it was inevitable that X’s relationship with his father will be affected.
He said that the mother’s suggestion that she is willing to be proactive in supporting X to maintain a relationship with his father following relocation appeared genuine. He said regular telephone or Skype will go some way toward maintaining the relationship but “it will be vital that X continue to spend time with his father particularly considering that the relationship appears to be largely based on shared activities such as (hobby omitted).”
The Family Consultant noted that at this stage X remains dependent primarily on relationships with his caregiver. This will be a protective factor if he is to adjust following relocation. He said it is not likely that his peer relationships will be greatly impacted. However in order for X to achieve optimal developmental outcomes he should have the opportunity to have a positive and meaningful relationship with each of his parents. If X remains living in Canberra, this will allow him to continue spending significant time with his father.
The Family Consultant noted that social and family supports are strong protective factors for good mental health. Regarding the mother’s report that she lacked family and social support in Canberra, the Consultant noted that without adequate support the mother is at increased risk of experiencing health issues that impact on her parenting capacity. However he observed that the mother’s current reports suggest that she had made positive progress since 2015, has engaged in counselling and support and is pursuing employment and educational opportunities for the first time since X was born. The mother acknowledged that until recently she has resisted making such commitments in Canberra. The mother identified that she has extended family in the region of the (omitted) area that she may access for support and she indicated that she planned to move to the (omitted) area if she were to remain in Canberra to access these supports.
The Family Consultant opined that it is possible that by remaining engaged with work and study and by accessing continued counselling and support the mother may also be able to establish more social supports in Canberra. He noted it is understood that the mother has not had a formal assessment of her mental health however it appears she has a capacity and resources available to her to maintain her own well-being in the event that X is required to remain living in the Canberra region.
The parents relationship since X’s birth appears to have been characterised by poor communication and a lack of consultation regarding X’s care. The mother said that she felt her relationship with the father may improve following any final agreement or decision regarding the proposed relocation. This should be a positive outcome for X. Considering the current parental relationship and X’s current relationship with his father it is not in X’s best interest to spend equal time with each of his parents. It was preferable for X to continue living primarily with his mother and spending regular time with his father.
Section 60CC(2)(a) the benefit of having a meaningful relationship with both parents
It is of benefit to X to have a meaningful relationship with both his parents. X is securely attached to his mother and will continue to have a meaningful relationship with her regardless of where he lives. X’s relationship with his father is problematic at present and the father requires further assistance to develop effective parenting strategies which will benefit X long term. The father is ready and willing to engage in programs and/or counselling to improve his relationship with X. Any relocation at this stage is likely to impede this process. It is in X’s best interests at present that he develop and maintain an important, significant and valuable relationship with his father
Section 60CC(2)(b)
Neither lawyer raised any issue of family violence that was likely impact on either party’s proposal for X to live with or spend time with each of his parents.
The children’s views
X was assessed as an immature seven year old who lacked a full understanding of the impact of the move to Queensland and it appears his wishes had been influenced from what he had been heard or told. Little weight has been afforded to X’s views.
The nature of the relationship of the child with each parent and other persons
The mother is X’s primary carer with whom he has a secure primary attachment. Though his father loves and cares for him, X currently views his father as punitive and unpredictable. The Family Consultant observed that the father was not an effective parent and required assistance to develop a more effective relationship with his son. If X moves to Queensland at this present time, it is likely the move will have a detrimental impact on X’s relationship with his father. The father and his partner are expecting a child in (omitted) 2017. Should X relocate to Queensland it will be difficult if not impossible for X to develop a sibling relationship with the new baby.
Whether the parents have taken or failed to take the opportunity to participate in making major long term decisions in relation to the child, and/or taken the opportunity to spend time and/or to communicate with the child
The mother has failed to consult the father in the past regarding major matters for example schooling. Communication between the parties is poor. The father for his part involved himself in X’s education despite the lack of communication. He has maintained a regime of spending consistent time with X since he was twelve months old. The mother has largely facilitated that time though she has regularly prioritised her desire to travel to Queensland with X over and above spending time with his father though she has offered make – up time on these occasions.
The extent to which the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The father has paid child support as assessed. In addition he has contributed towards expenses for X and offered to financially assist the mother with payment for school excursions and other items. At the trial he offered to pay the mother an additional $100 per week to assist her to care for X.
The likely effect on the children of any changes in their circumstances including separation from a parent or any other child
The move to Queensland for X is likely to have a significantly detrimental impact on his relationship with his father which at this stage requires further support. It will be difficult for X to maintain a close and significant relationship with his father should he move to Queensland given the nature of the father son relationship at present. It is unlikely that X would be able to develop a sibling relationship with the new baby should he relocate.
The practical difficulties and expense of the children spending time and communicating with each of their parents
The mother’s proposal incorporates significant practical and financial difficulties for both parents.The child will be required to fly from Brisbane to Canberra and return, three times a year. The cost of return flights will be significant in addition to motor vehicle expenses which will be incurred between (omitted) and Brisbane airport. Neither parent is in a strong financial position. The mother has only recently commenced part time work in Canberra. She is currently in a position to increase her work hours and is completing qualifications which will enhance her future employment prospects. Should the father take the opportunity to visit X in (omitted) in the event of a relocation, he will have the cost of additional return flights to Brisbane from Canberra, motor vehicle costs and accommodation costs. The current arrangements in Canberra are reasonably practicable for the father to spend time regular time with X.
The capacity for the parties to provide for the children’s emotional and educational needs
X is securely attached to his mother and the mother has the capacity to care for all of X’s needs. The father needs to develop a reflective capacity given the deficits in his relationship with X. He has undertaken to engage in programs to assist with this. The father has demonstrated a capacity to care for X’s educational needs.
The attitude that each parent has demonstrated to the responsibilities of parenthood
Communication between the parents is poor. I share the view of the Family Consultant and I am not convinced that the mother would actively encourage the relationship between the father and the child should she relocate. In the past the mother’s preference has been to keep the father at arm’s length not consulting him about schools, providing minimal notice on occasion she has travelled to Queensland and dismissing his concern about travelling with X when he was ill. Though she indicated she would support X’s participation in (hobby omitted), she considered the sport unsafe.
Advantages in relocating
There are a number of advantages in the mother relocating. She will have the support of her mother to whom she is close and the support of friends. It is likely with this support she will be more settled and this will have an impact on X. X will have the benefit of spending time with his maternal relatives and friends he has made during his trips to Queensland. The mother has indicated she has a number of offers of employment in Queensland. She asserts she will be financially better off in Queensland.
Disadvantages in relocating
X will not have the benefit of spending regular consistent time with his father. It is likely there will be long absences between times X spends with his father. The arrangements to spend time will be both physically demanding and expensive. X will not have the opportunity of developing a relationship with his new sibling. The problematic nature of his relationship with his father will remain and is unlikely to change without the father and X engaging in programs to improve and enhance their relationship.
Equal shared parental responsibility
Under section 61DA (1) of Act the Court is required to consider whether it is in the best interests for parents to have equal shared parental responsibility for a child. Subsection 61DA (2) of the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in “(a) abuse of the child; or (b) family violence.” Neither parent raised any concern that the child was at risk of abuse or being subjected to or exposed to family violence in the other parent’s care. As such the presumption applies.
Pursuant to subsection 61DA (4) of the Act the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility.
Section 65DAC of the Act provides that an order for equal shared parental responsibility requires the parties to consult with one another about major long term issues and to make a genuine effort to come to a joint decision about any relevant issue. “Major long term issues” is defined in section 4 of the Act and includes issues relating to a child’s education, health, name and changes to a child’s living arrangements that make it significantly more difficult for a child to spend time with a parent.
Both parents seek an order for equal shared parental responsibility which was supported by the ICL even though communication between the parties is poor. However the parties communication has improved since proceedings were commenced and they manage to communicate in a civil manner regarding matters concerning X primarily by text message and at changeover. Neither parent suggested that the other should not be fully involved in X’s life, in his schooling and regarding medical matters though there was a dispute as to when the mother had provided the father with the name of X’s treating practitioner. There is no evidence to rebut the presumption of equal shared parental responsibility. The Court determines to make that order.
Section 65DAA (1) of the Act provides that subject to subsection (6) if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide for the child to spend equal time with each of the parents.
Whether it is “reasonably practicable” is to be determined by reference to matters set out in section 65DAA (5) of the Act. That section provides that in determining for the purposes of subsections (1) and (2) whether it is it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The High Court in MRR & GR [2010] 240 CLR 461 determined with reference to subsections 65DAA (1) and (2) of the Act that it was a statutory pre- condition that a Court consider both whether an order for equal time and/or substantial and significant time was both reasonably practicable and in a child’s best interest before an order for equal time and/or substantial and significant time is made. The High Court indicated at [13]
“It is only when both questions are answered in the affirmative that consideration may be given under paragraph (c) to the making of an order.” What is required is a consideration of “the reality of the situation of the parents and the child and not whether it is desirable that there be equal time spent by the child with each parent. The presumption in section 61DA (1) is not determinative of the question arising under section 65DAA (1). Section 65DAA (1) (b) requires a practical assessment of whether equal time parenting is feasible.”[3]
[3]MRR & GR (supra) at [15]
Though the father initially sought orders for equal time this had been abandoned by him at the end of the trial. The Family Consultant indicated that
“the parents had different styles of parenting and each interacted with X in a different way. The lack of communication in the parental relationship has likely made it difficult for X to negotiate differing rules and expectations of behaviour in two households and may have a negative impact on his relationship with either parent.”[4]
Having considered the evidence the Court is of the view that equal time is neither reasonably practicable nor in X’s best interests.
[4] Family Report prepared by Mr T dated 29 June 2016 at [76]
Under section 65DAA (3) of the Act a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays;
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The mother does not propose X spend significant and substantial time with his father nor would this be possible if he lived in Queensland. The father’s proposal is for X to spend time with his father on Wednesday from after school until 7.30 p.m. and from after school Friday to before school Monday (or Tuesday in the event that the child was not required to attend school) on alternate weekends. Those orders provide for substantial and significant time however they are only reasonably practicable should the mother remain living in Canberra.
The mother’s proposal for time results in the father and X not spending time together for months at a time (four to five months between April and September, five to six months between July and December). In order to spend more time with X she proposed that the father notify the mother of his intention to spend time with X in Queensland mid-term as agreed between the parties for a maximum of three non consecutive nights. That arrangement would not constitute substantial and significant time.
At the conclusion of the trial the ICL did not support the mother relocating X’s residence to Queensland. She indicated she would adopt the recommendations of the Family Consultant. The mother indicated that should she not be permitted to relocate X’s residence to Queensland, she would remain in Canberra as X’s primary carer. In those circumstances she indicated that the orders proposed by the father would be appropriate. The father proposes that the interim orders be made final.
Although the best interests of a child is the paramount consideration this is not the sole consideration for the Court. How and where a parent intends to live and each parent’s proposals for the future are matters the Court is required to take into account in making a determination. As Judge Brown said in Clement & Clement [2014] FCCA 1664 at [346]
“the fundamental task for the court is to determine bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B what is the best outcome for any child concerned, now and in the future.”
The Court is of the view that the proposed orders put forward by the father, recommended by the Family Consultant and supported by the ICL are both reasonably practicable and in X’s best interests. Having considered all the evidence and in particular the current deficits in the father son relationship and the importance of providing X with an opportunity to establish a relationship with his new sibling, the Court intends to make orders in accordance with the counsellors recommendations.
The Court accepts that it is the mother’s desire to relocate to Queensland. It would be appropriate for the parents to reconsider each parent’s respective proposal for X (including any proposal by the mother for X to relocate to Queensland) in three years from now as X is approaching high school. It would be beneficial for the parties to engage in mediation for that process.
I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 11 April 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Costs
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