Keene and Ballard
[2012] FMCAfam 185
•9 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEENE & BALLARD | [2012] FMCAfam 185 |
| FAMILY LAW – Final parenting arrangements for child aged eighteen months – child currently lives with Caucasian father in [B] – Indigenous mother lives in [P] – child has been in care of father since February 2011 – mother hospitalised in [P] and Adelaide in February 2011 due to drug induced psychosis – mother seeks orders that would see child living in [P] either in her predominant care or in shared care regime with father – family report writer recommends child live in shared care arrangement with father and mother in [P] – such proposals reliant on father voluntarily moving to [P] – father’s position is that he would move to [P] only under sufferance – father’s preferred outcome is for child to live in [B] with him – relocation – matters to be considered – right of child to enjoy aspects of her Indigenous background – protection from potential psychological harm arising from possible risk of mother suffering possible recurrence of either substance abuse or mental illness – child entitlement to have a meaningful level of relationship with both parents – adequacy of proposals to spend time with each parent – practical and logistical considerations – presumption of equal shared parental responsibility – equal time – substantial and significant time – best interests – reasonable practicality. |
| Family Law Act 1975, ss.4; 60B; 60CA; 60CC; 60D; 61DA; 61F; 65C; 65DAA; 65DAC; 65DAE; 68L; 68LA |
| Davis v Davis (2007) 38 Fam LR 671 B & R and the Separate Representative (1995) FLC 92-636 Brown & Ferguson [1998] FamCA 239 Davis v Davis (2007) 38 Fam LR 671 MRR v GR [2010] HCA4 Goode & Goode (2006) FLC 92-286 C & S [1998] FamCA 66 AMS v AIF; AIF v AMS (1999) FLC 92-852 Taylor & Barker [2007] FamCA 1246 Cowley & Mendoza [2010] FamCA 597 U & U 2002 FLC 93-112 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 D and S V (2003) FLC 93-137 Godfrey v Saunders (2007) 208 FLR 287 M & S (2007) FLC 93-313 Morgan & Miles [2007] FamCA 1230 Re: CP (1996) 21 Fam LR 486 Fragomeli & Fragomeli (1993) FLC 92-393 H & H (2003) 30 Fam LR 264 |
Applicant: | MS KEENE |
| Respondent: | MR BALLARD |
| File Number: | ADC 1535 of 2011 |
| Judgment of: | Brown FM |
| Hearing dates: | 31 October, 1 & 2 November 2011, 30 & 31 January & 1 February 2012 |
| Date of Last Submission: | 1 February 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 9 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr McQuade |
| Solicitors for the Applicant: | Family Violence Legal Service |
| Counsel for the Respondent: | Ms Ross |
| Solicitors for the Respondent: | Doyle Kingston Swift |
| Counsel for the Independent Children’s Lawyer: | Ms Hafey |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
The parties have equal shared parental responsibility for the child of the relationship [X] born [in] 2010 (hereinafter referred to as “the child”).
The child live with the father in [B] in the state of New South Wales.
The child spend time with the mother as follows:
(a)Until the child attains the age of two (2) years :
(i)For block periods of time of no less than four (4) days in each calendar month, between 10:00am and 7:00pm on the first and fourth days of such blocks but overnight between days 2 and 3, the days to be agreed between the parties and failing agreement to be the last four (4) days of the month commencing with March of 2012, the first such period of time to take place in [P] and the second such period of time to take place in [B], with the location of each subsequent period of time to alternate between [P] and [B] thereafter.
(b)After the child attains the age of two years and until she attains the age of three (3) years :
(i)For block periods of time of no less than six (6) days in each calendar month, between 10:00am and 7:00pm on the first and fourth days of such blocks but overnight between days 2 and 3, and days 4 and 5 the days to be agreed between the parties and failing agreement to be the last six (6) days of the month commencing with October of 2012, the first such period of time to take place in [B] and the second such period of time to take place in [P], with the location of each subsequent period of time to alternate between [P] and [B] thereafter.
(c)From the time the child commences pre-school until the child commences school:
(i)For block periods of time of no less than six (6) days in each calendar month, the periods to alternate between [P] and [B] the days to be agreed between the parties and failing agreement to be the last six (6) days of each month.
(d)From the time the child commences primary school:
(i)For one week in each of the school holidays at the end of Terms 1, 2 and 3 by agreement and failing agreement for one week commencing the first Saturday of the school holidays in 2016 and alternate years thereafter and for one week commencing the second Saturday of the school holidays in 2017 and alternate years thereafter.
(ii)For two periods each of ten days at the end of Term 4 in each year by agreement and failing agreement:-
A. from 24 December 2016 and alternate years thereafter;
B. From 16 January 2017 and alternate years thereafter;
C. From 27 December 2017 and alternate years thereafter;
D. From 19 January 2018 and alternate years thereafter.
(a)For the purpose of this Order, the mother shall collect the child from the father in [B] at the commencement of her time with the child and the father shall collect the child from [P] at the conclusion of the mother’s time with the child.
For the purposes of giving effect to order 3(a), (b) and (c) hereof, so far as each period of time the mother spends with the child in [P], the father shall be responsible for all costs incurred in the transport of the child to [P] and the accommodation of any adult, including the father himself, who travels to [P] with the child and will in addition be responsible for all costs incurred in accommodating the child during any overnight period when she is not in the care of the mother.
For the purposes of giving effect to order 3(a), (b) and (c) hereof, so far as each period of time the mother spends with the child in [B], the father shall contribute the sum of $250.00 towards the costs of each of the mother’s trips to [B] and shall pay this sum to the mother as she directs with such direction to be provided to the father seven (7) days prior to the date scheduled for the mother to spend time with the child in [B] with the payment to be made three (3) days prior to the mother’s travel to [B].
For the purpose of giving effect to order 3(d)(i) & (ii) hereof, the mother shall collect the child from the father in [B] at the commencement of her time with the child and the father shall collect the child from [P] at the conclusion of the mother’s time with the child and each party shall bear his or her own costs of travel arising from the implementation of this aspect of the orders.
The mother spend time with the child at any other times and on any other conditions as may be agreed between the parties from time to time.
The mother be restrained and an injunction issue restraining her from consuming alcohol, illicit drugs, prescription drugs other than in accordance with a prescription issued to her and drugs containing codeine other than in accordance with medical advice during any period of time the child is in her care and twenty-four hours beforehand.
The mother be at liberty to telephone the child and the father do all things necessary to facilitate such telephone communication between mother and child during any period the child is living with him or is otherwise in his care.
The father be at liberty to telephone the child and the mother do all things necessary to facilitate such telephone communication between father and child during any periods when the child is in the mother’s care for two or more consecutive nights.
The mother and father keep the other informed of their current residential addresses and contact telephone numbers (including mobile telephone numbers) and shall notify the other of any changes of such details within seventy-two hours of any change in such particulars.
The mother continue to consult her general medical practitioner, Dr K (or his nominee) and attend upon him (or his nominee) and undertake and complete such treatment, including referral to a psychiatrist or any other medical specialist as Dr K (or his nominee) shall direct.
In the event the mother is referred for psychiatric treatment she complete any course of treatment prescribed for her by such psychiatrist.
The mother attend any course of drug and alcohol counselling recommended to her by Dr K and endeavour to complete such a course of counselling within twelve (12) months of the date of these orders and provide details of the counselling undertaken by her, in writing, to the solicitor for the father.
The mother and father are each restrained and an injunction issues restraining each of them from denigrating the other in the presence or hearing of the child or permitting any other person to do so.
The parties utilise a communication book to be exchanged between them on each handover of the child with the book to contain written details of the child’s dietary needs; sleeping patterns; medical needs and any other issues relevant to her ongoing care.
The mother and father shall inform the other parent as soon as reasonably practical of any significant health issue or significant illness or accident suffered by the child. This order authorises any treating medical practitioner to release information concerning the child’s medical condition to the other parent.
The mother and father shall keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner, including psychologists and counsellors who treat the child and authorise those practitioners to provide the other parent with all information that they are lawfully able to provide to the parents about the child.
The mother and father shall each take all reasonable steps to ensure that their details are included on any documents relating to the child’s enrolment in day care, pre-school and/or school and the mother and father shall each take all reasonable steps to ensure that they are able to receive copies of school reports, newsletters and photograph order forms in respect of the child.
The mother and father shall each be entitled to attend pre-school and school events to which all parents are invited, including parent/teacher interviews, subject to the convenience of the child’s teacher/s.
The appointment of the independent children’s lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Keene & Ballard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1535 of 2011
| MS KEENE |
Applicant
And
| MR BALLARD |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Keene “the mother” and Mr Ballard “the father” are the parents of [X], who was born [in] 2010. They have never married.
The parties met in 2008 and commenced a relationship shortly afterwards. At the time the father was living in [B] and the mother was living in [P].
In August of 2009, Mr Ballard moved to live in [P] with Ms Keene. [X] was born in [P]. The parties separated, in difficult circumstances, in early March of 2011, when [X] was around five months of age.
Shortly before the parties separated, the mother began to exhibit signs of mental illness. Eventually she was detained under the applicable mental health legislation at [P] Hospital and then transferred to the [G] Hospital in Adelaide, where a diagnosis of drug induced psychosis was made.
Whilst the mother was in hospital, [X] remained in the care of her father. During this period, [X]’s paternal grandmother, Ms M travelled from [B] to [P] to provide assistance to the father.
A short time later, Mr Ballard, Ms M and [X] left [P] and travelled to [B]. They have lived together in [B] ever since, in Ms M’s home. [X] sleeps in a cot in the father’s bedroom.
Upon the mother’s discharge from the [G] Hospital, she too travelled to [B]. The parties discussed the possibility of them resuming family life together in [B]. However, this did not work out and the parties separated in tumultuous circumstances.
The father successfully sought a family violence order against the mother as a consequence of what he says was her violent and threatening behaviour in [B]. He, supported by his mother, alleges the mother was drinking alcohol to excess and behaving erratically at this time.
The mother was subsequently charged with breaching this family violence order, but the charge was dismissed, in June of 2011, on the basis of issues arising from the mother’s mental health. She returned to [B] to answer the charge.
From the mother’s perspective, it was untenable for her to live in [B], where she has no family support whatsoever, after the family violence order issued. She asserts the father used the order as a means of cutting her out of [X]’s life.
In those circumstances, she elected to return to [P], where she has close family connections. She is an Aboriginal person, who describes herself as “a Pila Nguru woman, [who is] a direct descendent of the Traditional Spinifex Clan from the Great Victorian Desert.”[1]
[1] See mother’s affidavit filed 5 October 2011 at paragraph 2
It is the mother’s position that [X]’s interests will be best served if she comes to live with her in [P]. In this environment, she will be able to maintain and develop her identity as an Aboriginal child, in the midst of her extended Aboriginal family.
The mother has criticisms of the father. She regards him as a controlling person who used the family violence proceedings to shut her out of [X]’s life. She also believes that Mr Ballard and his mother are unwilling to support [X]’s relationship with her and foster [X]’s sense of identity, as an Aboriginal child, because of their mutual antipathy for her. She is concerned that the current reality of [X]’s life is that she is being card for primarily by Ms M, rather than her father, who is an inexperienced parent.
From Mr Ballard’s perspective, he continues to hold many concerns about the mother’s mental health and her propensity to abuse a wide variety of substances, including cannabis, alcohol, as well as prescribed drugs, such as appetite suppressants and pain killers, to help her deal with stresses and problems in her life.
In these circumstances, he believes that Ms Keene has a flawed level of insight into the responsibilities of being a parent. More importantly, he is fearful that there will always remain the possibility that the mother will have a relapse of her mental illness and this will potentially pose a significant threat to [X]’s well being, both in a psychological and physical sense.
In addition, it is Mr Ballard’s case that he is well settled in [B], as is [X], where both can access family support, particularly from [X]’s paternal grandmother and great grandmother. At present, the father and [X] are living in Ms M’s comfortable and well provided home.
On the other hand, Mr Ballard regards Ms Keene’s family in [P] to be chaotic and dysfunctional. He has particular concerns regarding [X]’s maternal grandmother, a person whom he believes has significant substance abuse issues herself.
It is a very long way from [B] to [P]. On my calculations, it takes approximately four and a half hours to drive the distance.[2]It is further again to [C], where Ms Keene has strong family connections and regular visits.
[2] See – 389km (about 4 hours 31 mins)
It is generally recognised by child development experts that the years up to age three or four are crucial for a child developing warm and intimate bonds with parents and other individuals who are likely to be important for the child’s sense of identity in later life.
Young children have a limited facility to comprehend time and developmentally speaking, they are unable to comprehend why a parent is absent from their lives and may forget that parent if the period of separation is prolonged.
These issues are particularly relevant to a child of [X]’s age. In these circumstances, it is frequently recommended by experts appointed to advise the court that there be frequent periods of time, albeit that the periods in question are relatively short in duration, between a child and the other of his separated parents, whilst the child concerned remains in the predominant care of his or her primary carer.
It is the father’s position that he has been [X]’s primary carer since March of 2011, which is more than half of her short life to date. It is his position that it is impracticable for him to move to [P] and certainly not his personal preference. At the outset of the case, he did not have any well defined proposals for [X] to interact with her mother in the eventuality that she remained in his primary care in [B].
Regrettably the case could not be finished in the time allocated to it in November 2011. As a result, the case was adjourned for completion in January 2012. During this period, Mr Ballard has given thought to how [X] may spend time with her mother in future, if she continues to live in [B]. Mr Ballard, [X] and Ms M travelled to [P] for two periods of five days in December 2011 and January 2012 so that Ms Keene could spend time with her daughter. As yet there have been no periods of overnight time.
At present, Mr Ballard is not in the paid workforce but he hopes to return to work at some stage in the foreseeable future, when [X] is older, possibly when she has begun pre-school. Ms Keene is also in receipt of social security payments. Accordingly, neither party has ready access to surplus funds to fund travel between [P] and [B].
Notwithstanding these difficulties, Mr Ballard proposed a regime, during his evidence, whereby he would fund the mother’s travel to [B] approximately once per month to spend time with [X]. He estimates the cost as being around $450 to $500 each trip, depending on whether he has to travel to [P] or [C]. He would also be open to Ms Keene spending other extended periods of time, with [X], between these monthly visits, provided she funded this travel herself.
Similarly Ms Keene did not at the outset of the case and during the running of it, fully flesh out her proposals for [X] to spend time with her father, in the eventuality that it be the court’s decision that she should live with her mother in [P]. She initially proposed that he spend as much time with [X] as he wishes and is able to do so.[3]
[3] See family report dated 11 July 2011 at paragraph 11
At the completion of the evidence in the case and at my instigation, each of the parties prepared a detailed minute of the orders sought. I will set out the orders with more precision shortly. The mother wants orders made which would see [X] living with her in [P]. In this eventuality, she proposes that there be a “shared care” regime with [X] spending up to four nights per week in the care of her father. Necessarily such an order is predicated on the basis that Mr Ballard moves to [P] from [B].
Mr Ballard’s position is that [X] should continue to live with him in [B]. He acts on the assumption that Ms Keene will continue to live in [P] indefinitely. In these circumstances, he proposes that he would categorise as [X] spending “substantial and significant” time with her mother in both [P] and [B] for periods up to twelve days per month.
There is a further complicating factor. Besides [X], Ms Keene is the parent of three other children. They are [W] born [in] 1996; [Y] born [in] 1998; and [Z] born [in] 2001. The father of these children is
Mr Moore. He and the mother separated at some time in 2004.
Mr Moore is also an Aboriginal person. He lives in [C], which is approximately 500km west of [P].
At present, [W], [Y] and [Z] are living in [C]. [W] and [Z] with their father and [Y] with her paternal grandparents. Mr Moore and
Ms Keene, in conjunction with Mr Moore’s parents, have plans to send [W] and [Y] to boarding school in Adelaide, from the start of the school year in 2012.
The three children went to live in [C] around the time of the mother’s admission to [G] Hospital in February of 2011. It is the mother’s case that the three children concerned are close to [X] and as such, it is likely to be beneficial if she develops a close relationship with her older half-siblings.
At present, Ms Keene is regularly travelling to [C] to spend time with [W], [Y] and [Z]. In these circumstances, it is her position that it would be unworkable to expect her to also travel regularly to [B] to maintain her relationship with [X].
These proceedings first came into the court on the mother’s application, on 30 May 2011. At this stage, given the difficult circumstances prevailing namely – a very young child; serious issues having been raised about the mental health of one of the parents concerned; issues of poly substance abuse; and obvious logistical difficulties from the distance between [P] and [B] and the limited financial resources of the parties themselves; - it was ordered that [X] be independently represented in these proceedings.
[X]’s representative is Ms Christine Hafey, an experienced family lawyer in the employ of the Legal Aid Commission of NSW. Ms Hafey is to be regarded as a party in these proceedings.
As such, pursuant to section 68L of the Family Law Act, Ms Hafey is required to evaluate all the evidence available in this case and formulate a position, which she believes will best serve the interests of the child concerned.
In this particular case, it is Ms Hafey’s position that [X]’s best interests will be served if she continues to live predominantly with her father in [B]. She proposes [X] spend regular block periods of time with her mother, in both [P] and [B], each month.
She has proposals as to how the cost of the travel should be apportioned between the parties, with the greater burden falling on Mr Ballard. She also has a subsidiary position in the event the court determine [X] should live in [P] with her mother and Mr Ballard follows her there permanently.
On 30 May 2011, it was also ordered that an urgent family report be prepared, as it was anticipated that Ms Keene would be able to travel from [P] to [B] to take part in such a report and also to spend time with [X]. Ultimately, this family report was prepared by Ms A, a social worker and family consultant based in Mildura.[4]
[4] See Family Report at paragraph 14
Ms A interviewed each of the parties and observed them with [X], in [B], in May of 2011. Her report is dated 11 July 2011. Ms A has not been in a position to revisit the family since she compiled this report.
Ms A was of the view that between the time of [X]’s birth until
Ms Keene’s admission to hospital, the mother had been [X]’s primary carer. She also noted that, in the event that Ms Keene had not been admitted to hospital, it was likely that this situation would have continued and possibly the parties themselves may not have separated.
Importantly, Ms A also observed there to be a positive attachment between [X] and each of her parents. Ms A observed the child to be comfortable with both her mother and father and to separate, without distress, from each of them.
At the time of her report, the mother had been separated from [X] and removed as her primary carer for a period of around three months. From the mother’s perspective this is a significant factor. She asserts that it supports her contention that she has retained a very strong bond with [X], which has not been significantly affected by the prolonged separation between the two and enforces the fact that she was the child’s primary carer in the first months of her life, which must be an important factor so far as [X]’s best interests are concerned.
In addition, Mr Ballard expressed a willingness apparently to return to [P], if [X] was living there to Ms A. This is no longer Mr Ballard’s preference. However the mother points to it as a further matter which should lead the court to make orders leading to [X] living predominantly with her in [P].
These factors, when combined with the fact of [X]’s Indigenous background, on her mother’s side, which was centred in [P], caused
Ms A to advance the following recommendations:
“Given the above assessment it is therefore respectfully recommended that; Mr Ballard considers returning to [P] to live and entering into a 50 / 50 shared care arrangement with Ms Keene. As [X] is so young regular contact can often be better. The parents may consider 3 days with one parent and 4 days with the other parent altering consecutive weeks.
If this is not agreeable then [X] should be returned to her mother’s care and be able to spend as much time with her father as practical. This will allow [X] to understand her cultural needs.”[5]
[5] See family report at paragraphs 24-25
Ms Keene is prepared to accept these recommendations in principle. Mr Ballard is not. It is his position that Ms A has underestimated the seriousness of the mother’s propensity to suffer mental illness and more particularly she has been either mislead or has misunderstood the significance of the mother’s prior poly-drug use.
The mother’s position is that her mental health has now stabilised, particularly as she is under the regular care of her general medical practitioner, in [P], Dr K, who also subjects her to regular drug screen testing to monitor for the presence of illicit drugs and other unprescribed substances. The mother also relies on the opinion of a consultant psychiatrist, Dr B, who examined her in conjunction with earlier interim proceedings in this matter.
The father regards the mother as being highly vulnerable to relapsing into serious drug abuse of both legally prescribed and illicit drugs, in the event she continues to live in [P]. He believes that many of the mother’s associates, particularly members of her close family in the form of her sister, aunt and mother are themselves serious drug users and in such circumstances, it is only a matter of time before the mother herself succumbs to the peer pressure of returning to drug use and heavy alcohol consumption.
The circumstances surrounding the parties’ separation, particularly the events which saw [X] coming into the father’s care were difficult and controversial. The father believes the mother and her family remain antagonistic towards him because of these events. He fears for his safety if he is compelled to go and live in [P] because [X] is there and he feels that he has no alternative but to follow her there.
These various matters raise complicated issues relating to an individual’s entitlement to live in the place of his/her personal preference, which at times may come into conflict with what is in the ultimate best interest of the child affected by the working out of those individual adult preferences. Lawyers gather those issues under the rubric of “relocation cases”.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and, for legitimate reasons, wish to take different directions as to where they will live in future.
On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, regardless of the state of the relationship between the parents concerned.
However, there is no principle of law that requires separated parents to live indefinitely in close proximity to one another. Such a principle would offend our conceptions of personal freedom.
These proceedings are directed to resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of that child which are paramount.[6] The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the child concerned.
[6] See Family Law Act 1975 at section 60CA
The principles, underpinning the part of the Family Law Act dealing with children, emphasise the importance to children of their cultural to background, particularly the rights of Aboriginal children to maintain a connection with their Aboriginal culture and to have the support and opportunity necessary to explore that culture and develop a positive appreciation of it.[7]
[7] See Family Law Act (1975) at section 60B(2) & (3)
However, in order to ensure that the best interests of children are met the court must protect children from coming to harm as a result of being neglected or abused.[8] These considerations are likely to be important in cases involving drug and alcohol abuse and mental health issues.
[8] See Family Law Act (1975) at section 60B(1)(b) & 60CCC(2)(b)
Significantly, the same principles, emphasise the entitlement of a child to know and be cared for by both his or her parents. In any order the court makes, it is directed to ensure that children have the benefit of having their parents as meaningfully involved as possible as is consistent with other considerations relevant to the children’s best interests.[9]
[9] See Family Law Act (1975) at section 60B(a) 60B(1); 60B(2)(a) and 60CC(2)(a)
All these competing factors are present in this difficult case. Whatever criticisms the parties have of one another – and they are many and serious – I have no doubt that [X] has two parents who love her very much indeed and who both aspire to be as fully involved with her as possible as she grows through childhood and adolescence and into maturity.
Mr Ballard is happy and well-settled in [B]. He does not want to move to [P]. Similarly Ms Keene wants to remain in the country around [P] and [C] where her family live and to which she says [X] is connected by reason of her Aboriginal background.
On top of the considerations are issues relevant to how to keep [X] safe from coming to harm. If the parties remain living in their respective preferred location, it is difficult to see how [X] may have the ideal level of relationship with each of her parents, who have much love to offer her.
In short the various permutations available in this case cannot be twisted and turned, like a rubik’s cube, to achieve a perfect outcome satisfactory to all. My focus must always remain on the paramount or most important consideration – what is in [X]’s best interests?
The orders sought by each party
a)The Mother
The mother seeks that the presumption of equal shared parental responsibility should be applied to [X]’s care. She proposes that [X] live predominantly with her in [P].
She has proposals for [X] to spend time with her father in the eventuality Mr Ballard comes to live in [P]. She proposes in these circumstances [X] spends from 9.00 am on each Saturday until 9.00 am the following Wednesday in one week and from 9.00 am on Monday until 9.00 am the following Thursday in the following week.[10]
[10] These are taken from the minute of mother’s proposed orders. I suspect it was not her intention that the time be four days during each week of the fortnight.
In the eventuality that the father does not move to [P], she proposes that [X] spend time with her father for up to five consecutive days per month until such time as she has commenced school. She has no proposals as to how this arrangement is to be funded.
The minute of order submitted by the mother’s counsel Mr McQuade does not envisage an outcome which would see [X] living predominantly in [B] either in the eventuality that Ms Keene continues to live in [P] or she elects to relocate to [B].
She proposes orders that would continue to see her consulting Dr K and abiding by any treatment direction made by him. She also has proposals as to how parental responsibility for [X] is to be exercised including the parties keeping the other informed of medical treatment, educational issues and the like. She would agree to a communication book.
b) The father
The father’s proposed orders are more complex than those envisaged by the mother. He also agrees that the parties should have equal shared parental responsibility for [X] but that she live predominantly with him in [B].
In this eventuality he proposes that [X] spend six days with her mother in [P] commencing immediately with the time to start being confined to day time but concluding with an overnight period on the penultimate to final day of the period.
He also proposes a similar arrangement commencing immediately in [B] provided Ms Keene is willing to come to [B] to spend time with [X]. This arrangement is to continue during 2012 with the overnight periods being incrementally increased in the case of both [B] and [P] visits.
Starting in May 2012 he proposes block four day visits (including consecutive overnights) in May, June, July, September, November in [P] and in February, March, May, June, August, September, November in [P]. Other arrangements are proposed for the school holidays. This arrangement is to continue until 2015.
From 2016 onwards, Mr Ballard proposes a conventional half school holiday regime. He also seeks orders requiring the mother to complete a course of drug and alcohol counselling within six months and be restrained from alcohol and illicit drug use. He has standard proposals in respect of the parties keeping the other informed of relevant matters to do with [X]’s health and education. He too would agree to a communication book.
Significantly Mr Ballard has no proposals as to arrangements for [X]’s care in the eventuality that either it is determined that she is to live mainly with her mother in [P] and he remains in [B] or he decides (albeit against his wishes) to move to [P] as is proposed by Ms A.
The father has made the following, somewhat convoluted, proposal as the payment of the mother’s travel expenses in order to facilitate the complex arrangements for [X] to spend time with her mother which he proposes. The verbatim text of his proposal is as follows:
“That the father do pay for all travel expenses for the Child to enable her to spend time with the mother in [P] AND the Mother do pay for all travel and accommodation expenses for the child to travel to [B], pursuant to the orders in paragraph 5, SAVE AND EXCEPT that the Father shall pay for 2 nights of the mother and Child’s accommodation in [B] during any period spent there by the mother with the Child AND should the parties agree that the Mother shall spend time with the Child in a place other than [P] the Father shall contribute up to $500 towards travel and accommodation and ensure that this time occurs.”
I confess that I am not altogether sure I fully understand this order. I take it that the father is proposing he will pay all costs arising from [X] going to [P] with him and will make a regular and significant payment towards the mother’s costs of coming to [B] as well as making some payment if she wishes to take [X] to [C].
c) The Independent Children’s Lawyer
Ms Hafey proposes that the parties should have equal shared parental responsibility for [X] but if the parties are unable to reach agreement about a major long term issue the father be authorised to make any necessary decision required.
She favours [X] living in [B] with Mr Ballard. In these circumstances, she proposes a less ambitious regime for [X] to spend time with her mother, which is based on the proviso Ms Keene will continue to live indefinitely in [P]. Ms Hafey also proposes that the time be increased when [X] commences pre-school.
During the remainder of 2012 and until [X] commences pre-school, the independent children’s lawyer proposes that there be a regime of monthly blocks, which alternate between [B] and [P]. In these circumstances, she proposes that Mr Ballard be responsible for all costs arising from transporting [X] (and any necessary accompanying adult) between [B], [P] and return.
In respect of any time taken in [B], she proposes that Mr Ballard contribute the sum of $250.00 towards Ms Keene’s costs. The rationale of this proposal being that firstly it is appropriate that Ms Keene make some contribution towards the resulting expense and secondly, the sum of $250.00, bearing in mind the significant costs attributable to him in travelling to [P] regularly, will not be an unsustainable burden on
Mr Ballard.
When [X] has commenced pre-school, Ms Hafey proposes that the block periods of time should be extended to five days per month but the regime of alternating those periods between [B] and [P] and arrangements for the payment of expenditure remain the same. It is essentially Ms Hafey’s position that this is the most realistic regime, given the logistical and financial implications of the parties living in widely separated locales.
Once [X] has started at primary school, Ms Hafey proposes an orthodox time spending regime to coincide with school holidays, with accommodation being made for the sharing of special occasions.
Ms Hafey proposes orders that would restrain the mother from using alcohol and drugs, whilst [X] is in her care and mandate her ongoing treatment by either a psychiatrist or her general medical practitioner. Ms Hafey favours the use of a communication book.
In terms of issues relating to [X]’s Indigenous background, Ms Hafey proposes that the following order be made:
“The father shall take all reasonable steps to ensure that the child learns about and participates in her Aboriginal cultural identity and shall consult with the mother about the appropriateness of his endeavours.”
Although it is not her preferred outcome from the case, Ms Hafey has formulated some proposed orders in the event that Mr Ballard voluntarily relocates to [P]. In these circumstances, she would propose [X] initially spending two days per week in her mother’s care with the time being extended following [X] reaching the milestones of pre-school and primary school.
Finally, although it is not the position advocated by her, Ms Hafey has formulated some orders, which she asserts would be appropriate if it be the court’s determination that [X] should live predominantly with her mother in [P] and Mr Ballard remains living in [B]. In these circumstances, Ms Hafey proposes the application of a similar regime to the one which she advocates if [X] remains in [B].
The issues
At this point, it is useful to summarise the evidentiary issues, which arise in this case:
·Who of the parties is [X]’s primary carer at the present time? Is this situation likely to have changed since Ms A’s report, given the extent of time [X] has now been in the predominant care of her father;
·In any event, given the observations of Ms A, is it simplistic to regard either one of the parties as being [X]’s primary carer;
·What are the implications of [X]’s relationship with her mother having been interrupted significantly since March of 2011, particularly that she has been able to interact with her mother on only a few occasions in that time;
·What are the implications for [X]’s wellbeing of the mother’s psychiatric admissions and admitted past poly substance abuse;
·In this regard, has the mother glossed over these issues with both Dr B and Ms A and indeed how reliable is the mother’s own account of her drug and alcohol use both in the past and now;
·What is the risk of the mother suffering a relapse of either her previous psychotic illness or succumbing to poly-drug and/or alcohol abuse;
·What is the mother’s level of insight into the effects of stress on her personality, particularly in terms of her propensity to resort to the use of alcohol and drugs, when under pressure;
·What are likely to be the mother’s coping mechanisms if she is stressed. Are her current supports adequate;
·What are the implications of such a relapse for [X], both in a physical and emotional sense, particularly if [X] has been returned into the predominant care of the mother, in [P] and the father is distant in [B];
·How can [X] maintain a meaningful level of each of her parents, in the event Mr Ballard lives in [B] and Ms Keene lives in [P];
·What are the possible implications for [X], in the long term, if she perceives she lacks a meaningful level of relationship with one or other of her parents. Will she feel she has been abandoned by either her mother or father.
·Will such a perception prevent her from forming her own meaningful and intimate relationships in the future, because of a lack of trust in such relationships. Further, will such a perception render [X] more liable to developing mental illness herself in future;
·Is it logistically feasible for the parties to travel and for [X] herself to travel regularly, every few weeks or so, between [B] and [P], whilst she is still of very tender years, in order to maintain these important parental relationships;
·Will such an arrangement be workable when the time comes for [X] to attend preschool, kindergarten or crèche and being to interact with children of her own age;
·Is it feasible for the court to approach the matter on the basis that one party would be prepared to consider moving, although it would not be a preferred outcome, to the location in which the child is predominantly living following the final hearing;
·If so, who of the parties is more able to move. What are the implications of such considerations in terms of a parties’ entitlement to live wherever he or she chooses.
·Given [X]’s background as an Aboriginal child, how best can her entitlement to maintain a sense of connection to this aspect of her life be maintained.
·In particular, what are the implications for her sense of identity, as she grows to maturity, if she feels divorced from her identity as an Aboriginal person, by reason of the fact that she is living predominantly with her father in a non-Aboriginal milieu;
·Can the father sustain a sense of connection for [X] to these aspects of her background if [X] lives with him, in [B];
·What is the likely importance to [X] of having a sense of close relationship with her half-siblings [W], [Y] and [Z]. How best can these relationships be developed;
·What are the respective parenting capacities of each of the parties and what is their level of insight into the important aspects of being a parent;
·What is the role of the paternal grandmother in this family. Is she a person is either consciously or unconsciously either incapable or unwilling to support [X] having a proper level of relationship with her mother;
·What occurred, in [B], when the parties separated. Is the father a violent and controlling person. As such, does he represent an impaired role model for [X]. If he did behave violently towards the mother, can this violence be categorised;
·What was the nature of the mother’s behaviour following her discharge from [G] and her arrival in [B]. Was she drinking excessively;
·Were the father’s actions in obtaining a family violence order justified or was this a mechanism designed to frustrate the mother’s relationship with [X];
·What is the parties current capacity to communicate with one another and to achieve and maintain a parenting relationship conducive to the equal discharge of parental responsibilities;
·Is the environment of [P] likely to be detrimental to [X]’s best interests, particularly given the risk that the mother may succumb to peer pressure and engage in unsafe drug and alcohol use, particularly given her previous history of psychotic illness.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount or most important consideration [Family Law Act section 60CA].
At the commencement of Part VII is a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes. The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. These additional considerations include the Aboriginality of any child concerned [section 60CC(3)(h)], a matter to which I have already alluded.
Again, the application of these various considerations must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The principle set out in section 60B emphasise a child’s entitlement to know and enjoy his or her culture. This is a theme, which is taken up by section 60D(3), which deals specifically with Aboriginal children. Such children have a right to maintain a connection with Aboriginal culture and to have the necessary support, encouragement and opportunity to explore that culture and develop a positive appreciation of it.
These are themes, which are in turn, given greater emphasis by section 60CC(3)(h) & section 60CC(6). The legislation recognises that Aboriginal children have unique needs and particular difficulties, as a result of the treatment of Indigenous people throughout the history of European occupation of Australia and up to the present time.[11] This history is one of dispossession and discrimination.
[11] See Davis v Davis (2007) 38 Fam LR 671 at 689
The Full Court of the Family Court[12] has identified a number of recurrent themes, which are relevant to Aboriginal children, because of their unique position in Australian society. Courts such as this one are directed to bear these themes in mind, when making any order in respect of an Aboriginal child.
[12] See B & R and the Separate Representative (1995) FLC 92-636 at 82,398
These themes have been taken up by the legislature in its recent amendments to the applicable legislation brought about by the Family Law Amendment (Shared Parental Responsibility) Act 2006. These themes can be summarised as follows:
·A child whose ancestry is either wholly or partially Indigenous will be regarded as “black” by the cultural mainstream in Australia regardless of the child’s own personal identification or particular upbringing.
·Australia remains a country where racism, particularly against Aboriginal people remains prevalent. As such, Aboriginal children are likely to be exposed to racism from an early age.
·The removal of an Aboriginal child, from his or her family of origin, into a Euro-centric environment is very often devastating to the child concerned, particularly if it is coupled with a separation from the child’s family of origin and culture.
·The greatest protection, for an Aboriginal child, from the corrosive affects of racism or prejudice is to be part of a community which has to deal with such discrimination regularly.
·If an Aboriginal child has access to strong role models, who share his or her racial makeup, this is likely to provide the greatest protection from exposure to racism, either institutionalised or otherwise.
·Aboriginal children, who are removed from their family of origin, often suffer an acute identity crisis in adolescence, particularly if they are brought up in ignorance of their culture or in circumstances which deny their Aboriginality.
·A denial of cultural identity may result in a significant loss of self esteem, which can last well into adult life with possibly highly debilitating circumstances.
The current legislative provisions, dealing with Indigenous children, are consistent with article 30 of the United Nations Convention on the Rights of the Child, which affirms the right of Indigenous people to “enjoy” their own culture and to speak their own language.
In the context of its definition of what is meant for an Aboriginal child to “enjoy” his or her culture, the legislation [section 60CC(6)] speaks of an entitlement to maintain a connection to that culture. In Brown & Ferguson[13] Moore J said as follows:
“As I see it, the requirement to maintain a connection to [Aboriginal] lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses and active experience of lifestyle, culture and traditions.”
[13] Brown & Ferguson (unreported), Family Court of Australia No.BR8668 of 1996, delivered 23 February 1998 at pp 29-30
Children such as [X] do not necessarily learn about their culture in an intellectual way. Nor are they necessarily able to assume such knowledge of their own volition, at a later stage of maturity, either in later childhood or in adulthood. Rather, as Ms Keene would have it, they assimilate necessary cultural knowledge and practices through direct immersion in that culture, on a day to day basis.
The court is required to have regard to the kinship obligations and child-rearing practices, arising from the circumstances of any Aboriginal child involved in the proceedings before it [section 61F].
This section is consistent with other amendments made to the legislation, which are designed to facilitate greater involvement of extended Indigenous family members in the lives of any children concerned.[14]
[14] See explanatory memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 78
The children’s right to enjoy and maintain their culture are one consideration in addition to many others. The act requires these cultural rights be afforded real weight and significance. They must however be properly balanced with all the other rights which the children have pursuant to section 60B and other relevant issues which impact upon their welfare, both now and in the future.[15]
[15] See Davis v Davis (2007) 38 Fam LR 671 at 694 [93] per Young J
The fundamental task for the court is to determine, bearing in mind these goals and principles, what is the best outcome for any child concerned, both now and in the future. Necessarily different but equally important concepts must be weighed and accessed against each other to achieve the best outcome for any child concerned.
After consideration of the various matters listed in section 60CC, the court is directed to consider, in making any parenting order, whether the parties concerned should have equal shared parental responsibility for their child [section 61DA]. This arises because of the legislative implication arising from the principles and objects of the Act that children are likely to benefit if their parents are closely involved in their lives.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
In this case all of the parties concerned (including Ms Hafey, albeit with a significant reservation) agree that the presumption of equal shared parental responsibility is not rebutted. Accordingly, as a necessary matter of law, the court is bound to consider each of the parties’ proposals for a regime of shared parenting, within the matrix provided by the applicable legal provisions. This includes what is reasonably practical in the circumstances, as well as what is in the best interests of the child concerned.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order (or a substantial and significant time order) that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[16]
[16] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
The court is required to put into place the outcome which it considers will best serve the interests of [X], according to the best criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[17]
[17] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
Both section 60B(1)(b) and section 60CC(2)(b) speak of the need for the court, in any orders which it makes, to protect the child or children concerned from exposure to abuse, neglect or family violence and the resulting physical and psychological harm which results from some exposure.
Accordingly, the fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to abuse, neglect or family violence. It is not my function to punish any of these parties concerned for their past conduct. Rather, I must assess the psychological consequences for the children, of that behaviour.
Cases involving the presumption of equal shared parental responsibility, where each of the parents concerned has evinced an intention to live in a locale far away from the other – as in this case, the father in [B]; the mother in [P]; – pose particular difficulties for the court. Necessarily, it may be compelled to consider possible outcomes independent of those primarily propounded by the parties, namely the prospect of one moving to the locale preferred by the other. The rationale for such an outcome being that it is the one theoretically best placed to serve the interests of the child concerned.
Such cases create a tension between competing legal principles. On the one hand, one of the purposes of the family law legislation is to provide former partners with mechanisms to enable them to lead separate lives in future and make arrangements for the care of their children, in the now changed circumstances following the end of their relationship. There is no principle of law that requires separated parents to live indefinitely in close proximity to one another.
On the other hand, pursuant to the principles contained in the Family Law Act 1975, it is the entitlement of a child to have a meaningful relationship with both his or her parents, regardless of the fact that the parents concerned chose not to live together. As such, it has been said that relocation cases need careful analysis.[18]
[18] See C & S [1998] FamCA 66
This requirement for careful analysis flows from the fact that a parents’ entitlement to freedom of movement, as a citizen, is frequently difficult to reconcile with the entitlement which children have, pursuant to the Family Law Act 1975, to maintain and develop relationships within their family, particularly with a parent, which are likely to be significant to them, both in the short and long term.
The High Court has considered this dilemma in a number of cases and has determined that although the child’s best interests are the paramount consideration, they are not the sole consideration for the court. A parent’s aspirations as to where and how he or she proposes to live in future is something which the court is required to take into account. However, these expectations must yield to the child’s ultimate best interests.
In AMS v AIF; AIF v AMS[19] Kirby J set out nine general propositions, derived from the relevant authorities, concerning relocation, which can be summarised as follows:
[19] AMS v AIF; AIF v AMS (1999) FLC 92-852 at 86,041-86,043
·Each relocation case is unique and so the facts of each such case require a careful and delicate analysis;
·As a result, no single factor will be dispositive in a relocation case. Each case requires the application of an individualised judicial discretion. Although the child concerned’s welfare is the paramount consideration, it is not the only consideration for the court;
·Accordingly, the court cannot ignore the legitimate expectation of a parent that he or she should be free to live how and where he or she chooses in future. There is no universal rule that requires separated parents to live in close proximity with one another to ensure that their children have the optimal relationship with both their parents;
·Democratic societies, for obvious reasons, place a high store on the entitlements of adults to decide where they will live. Accordingly, courts are reluctant to interfere with a parent’s right to freedom of movement, particularly if that parent is the unchallenged custodian of the child concerned. Interference, by court order, in the life of such a parent, may lead to resentment on that parent’s part, which, of itself, is likely to have negative implications for the child concerned;
·However “the touchstone” remains the best interests of the child concerned and not the wishes and interests of parents;
·One of the primary functions of Family Law legislation is to provide mechanisms for separated spouses to begin a new life for themselves, independently of their former partners. Accordingly, any legislative rule regarding the right of a child to maintain frequent and direct relations with both parents cannot be interpreted as an absolute one;
·Courts in Australia have a more relaxed attitude to relocations within Australia, when compared to overseas relocations, because of the availability of reliable transport and telecommunication facilities within Australia and because of the homogeneity of social and cultural factors in this country;
·When considering a relocation application, the court will be required to assess the adequacy of new contact arrangements with the other parent concerned, and particularly whether those arrangements are in the best interests of the child concerned.
·The court retains the discretion to depart from the norm of shared parental responsibility, in appropriate cases.
AMS was determined prior to significant legislative amendments to the Family Law Act bought into effect by the Family Law Amendment (Shared Parental Responsibility) Act. These amendments have added emphasis to the importance of a child maintaining a meaningful level of relationship with both of his or her parents and have changed the pathway, which the court must follow, in all cases concerning children, particularly those in which the presumption of equal shared parental responsibility has been found to apply. This pathway applies just as much to cases involving relocation, as it does to more conventional parenting cases.
Pursuant to the applicable legislation, when the presumption of equal shared parental responsibility has been found to apply, the court is directed to “to consider” firstly equal time and then secondly “substantial and significant” time between a parent and child. It has been held that this requirement applies just as much in relocation cases as it does in other cases pertaining to children.
The Full Court in Goode & Goode[20] has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
[20] See Goode & Goode (2006) FLC 92-286
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
In Taylor & Barker[21] the Full Court of the Family Court spoke of the risk of the court potentially devaluing the legislative imperative placed upon it to consider actively a child spending equal time or substantial and significant time with both parents, in all cases, including those which contain a relocation proposal.
[21] Taylor & Barker [2007] FamCA 1246 at paragraphs 81-83
In Cowley & Mendoza[22] Murphy J considered that a parenting case, involving a relocation issue, was to be determined like any other parenting case with the necessary fact finding exercise required by section 60CC being directed towards the outcome best calculated to serve a child’s interests. However, His Honour also considered that it was necessary for the court to make specific findings about what reasonably practicable in this context.
[22] See Cowley & Mendoza [2010] FamCA 597
Murphy J approved the following passage from Dr Dickey QC:
“In the majority of cases concerning a child’s future there must be a balancing of the interests of the child with the interests of each of the parents. The interests of the child do not override the interests of the parents; they have to co-exist with them. The function of the court is to balance these interests in a way that best promotes the welfare of the child whilst giving appropriate recognition to the claims and interests of the parents.”[23]
[23] See Dickey QC reflections on MRR v GR (2010) 84 ALJ 296
In U & U[24] the High Court held that the court was not bound to consider only the proposed arrangements put forward by each of the parties concerned in any parenting case but rather, as the best interests of the child concerned remained the paramount consideration, it was open to the court to consider other potential outcomes.
[24] See U & U 2002 FLC 93-112
In some cases, such an outcome was the possibility of the other parent moving to be closer to the other parent concerned, in the proposed place of relocation, rather than the case being confined to discrete issues of either allowing a proposed relocation or restraining the parent who wished to move from relocating the child concerned.
In the case, Gaudron J spoke of the inherent sexism of restraining a mother from moving, if no consideration was given to the possibility of a father choosing to move in tandem with the mother and child. Whilst Gummow and Cullinan JJ spoke of the responsibilities of being a parent as potentially lasting a lifetime and the inherent restrictions on the wishes of a parent arising from such responsibilities as being equally long lasting.
Such comments are germane to the perennial tensions which arise between the best interests of any child concerned in a parenting case and the legitimate expectations of parents whose interests will be affected by the case’s outcome.
In this particular case, it seems to me that there are four possible outcomes:
·[X] and the father continue to live in [B]. In this context the mother continues to live in [P] and arrangements are made for mother and child to spend time together in these difficult geographical circumstances;
·[X]’s place of predominant residence is transferred to her mother in [P]. Mr Ballard elects to remain in [B]. In these circumstances, arrangements are made for [X] to spend time with her father in the same difficult geographical circumstances;
·The father and [X] relocate in tandem to [P] and a shared care arrangement (or something close to it) is engineered. The court however cannot compel Mr Ballard to move and such an outcome would depend on the court determining that [X]’s best interests dictated that she should live mainly with her mother and it being anticipated that Mr Ballard would move in tandem with [X] to [P], as he has indicated he will do;
·[X] remains living in [B], with Mr Ballard and orders are made on the assumption that Ms Keene will move herself to that locale. This seems unlikely, given Ms Keene’s opposition to such an outcome.
As the child’s best interests remain the paramount consideration in the outcome of any case involving a potential relocation and as one of the components of a child’s best interest is the right to have a meaningful relationship with both parents, I must consider the adequacy of the arrangements proposed by the relocating parent for the child to spend time with the other parent concerned.
The potentially deleteriously consequences, for children, of locating away from one of their parents, compound with the distance involved. The tyranny of distance develops by degree.[25] For obvious reasons, it is likely to be more difficult for a child to maintain a meaningful relationship with a parent, if an international relocation is involved or the move involved is to a far distant part of Australia – say from Cairns to Hobart or Broome to Bairnsdale.
[25] See B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,196
The age of the child concerned may also be a relevant consideration, as is the state of development of the child/parent relationship involved and the parties’ financial capacity to maintain such a relationship, over distance [section 60CC(3)(e)].
It is a common occurrence for a parent to move voluntarily away, from the child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. For obvious reasons, one of the frequent consequences of marital breakdown is that parties concerned form new relationships. Accordingly the interests of new partners become involved.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[26] As Kay J pointed out in Godfrey v Saunders[27] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[26] See D and S V (2003) FLC 93-137 at 78, 280
[27] See Godfrey v Saunders (2007) 208 FLR 287at 298
Although the shared parenting legislation has added emphasis to the principle that children benefit, in their emotional and social development, by having as extensive a relationship as possible, with both their parents, there thus is no principle of law that the parents of children are required to live indefinitely close to one another, in order to ensure that such an optimal outcome is achieved. The recent legislative amendments have not changed this situation.
If such a principle was indiscriminately applied, in children’s cases, it would necessarily result in the negation of a parent’s entitlement to freedom of movement. Parents would never be able to move with their children following relationship breakdown. The court cannot ignore this entitlement. If the legislature intended to curtail this right, it would have specifically done so.
As a result of these considerations, I conclude that the main thrust of the enquiry, in this case, remains what outcome is likely to best serve [X]’s best interests. The recent amending legislation has not specifically prohibited a parent relocating with a child because such a move will have implications for the nature of the child/parent relationship with the other parent concerned nor has it imposed any special onus on the parent wishing to relocate.[28]
[28] see M & S (2007) FLC 93-313 per Dessau, J. at 81,386
As Boland J put it:
“The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtaining such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.”[29]
[29] Morgan & Miles [2007] FamCA 1230 paragraph 74
The evidence
The case before me occupied five full sitting days. Each party provided lengthy affidavits of their evidence in chief and relied on other affidavits, which had been prepared during earlier stages of the proceedings. Both parties were represented by experienced and well prepared counsel. As a result, both parties were extensively and expertly cross-examined by counsel for the other party.
In addition, besides her own evidence, the mother relied on evidence from her previous partner, Mr Moore, a consultant psychiatrist Dr B and her current general medical practitioner Dr K. Both Dr B and Dr K gave evidence via telephone from their respective consulting rooms.
It was a cause for comment by Ms Ross, counsel for the father that the mother chose not to call any evidence from her own mother, Ms K or any other members of her family, who live in [P]. No explanation was given for this omission.
At present, the mother is living with her mother in [P]. Mr Ballard is critical of Ms K[30] because of her alleged issues to do with substance abuse and other concerns relating to her level of psychological stability. In my view, the absence of evidence from Ms K is a concern, particularly given the mother’s own history of substance abuse and other evidence which indicates her vulnerability to “peer pressure” in respect of drug and alcohol consumption.
[30] I mean Ms K no disrespect by referring to her as [first name omitted] in these reasons for judgement. This was how she was referred to by each of the parties and their respective lawyers during the proceedings before me.
Besides he himself, the only other witness on whom Mr Ballard relied was his mother Ms M. The only other witness in the case to give oral evidence and to be cross examined by each of the parties and Ms Hafey was the family report writer, Ms A.
The written affidavits of each of these witnesses (and in Ms A’s case her written report), together with their respective oral evidence provided in court, constitute the major evidence in the case. However, in addition to this testimony, other important documentary evidence was tendered to the court. In the main, these documents dealt with
Ms Keene’s psychiatric health.
In this regard, Ms Keene’s records from the [G] Hospital; the [P] Hospital; and the [P] Medical Centre had been subpoenaed and extensively examined by counsel for each of the parties. As a result, issues arising from these documents were put to the mother herself, to Dr B and to Dr K.
As a result of matters arising from these documents, it is Ms Ross’ submission that Ms Keene has not been entirely frank about either her past psychiatric history or her previous drug use, either to the court itself or to other witnesses involved in its processes, particularly Dr B.
In this context, I must make some assessment of Ms Keene’s credibility. This is a difficult task for me to undertake. Ms Keene left school early, without the benefit of an extensive education. These proceedings found her in the unfamiliar and intimidating milieu of the courtroom, where she was cross-examined, at some length about her complicated medical history. In addition, the subject matter of the proceedings was, for obvious reasons, fraught with an intense level of emotion for her.
For all these reasons, it was very difficult for Ms Keene to give her evidence. However, notwithstanding the allowances which must be made for these factors, I did not find her to be an entirely satisfactory historian. Her method of dealing with unpalatable facts was to initially deny them or to be unresponsive or evasive in respect of difficult questions, but when pushed and probed, she made many concessions, albeit unwillingly, particularly about her previous drug and alcohol use.
Overall, I accept that Ms Keene is an honest person, but I have doubts that she has been fully frank about her previous history, which in my assessment is a difficult and troubled one. In all these circumstances, it is difficult to gauge her overall level of insight into her current difficulties and the factors which are likely to precipitate their return.
In my view, Ms Keene remains a vulnerable person, who requires an extensive level of support wherever happens in future. These factors made the absence of evidence from Ms K perhaps more significant. It is difficult for me to gauge how much support is available to the mother in [P] from her family and friends there. More importantly perhaps, it is difficult for me to assess the sort of peer pressure she is likely to receive in respect of her future drug and alcohol use.
One of the major features of the mother’s case, at least in affidavit form, were her complaints that that father had been violent towards her in the past. The father too had complaints, in his affidavit, of being threatened and vilified by the mother. The parties chose not to focus on these matters in the oral presentation of their respective cases and in cross-examination of the other. Accordingly, issues to do with family violence are not to the forefront of the court’s deliberations in this matter.
That is not to say that the parties are without criticisms of each other. However, those criticisms appears as concerns regarding their lack of sensitivity or understanding, on the part of the other, of [X]’s needs and what is important in being a parent. The mother sees the father as lacking insight of her and [X]’s cultural inheritance and of having no understanding of the implications of moving [X] away from [P], as she would see it, unilaterally.
The father regards the mother as lacking insight into the consequences of her previous behaviour for [X]’s wellbeing and of having little understanding of what is likely to precipitate a return of her previous and significant level of psychological difficulties. He remains deeply suspicious of the mother and fears that she either has or is about to resume what he sees as an anti-social lifestyle.
The father was not a sophisticated witness. He was however completely honest and lacking in guile. He was frank about his own past drug use and, as such, I had no difficulty believing that he is now completely drug free, a state of affairs which is confirmed by his obviously modest lifestyle and his ability to save money, which is to his credit.
At this stage, I accept that the main focus of the father’s life is on [X] and her wellbeing. I also accept that he is [X]’s main provider of care and has applied himself diligently, in somewhat difficult circumstances, to the task of learning how to be a competent parent. I reject the mother’s contention, which is based only on her own suspicions, that Mr Ballard is in some way Ms M’s surrogate and she is the true carer of [X].
I have described Mr Ballard as not being a sophisticated person. I mean him no disrespect. Like the mother, he has not had the benefit of an extended period of education and, on his own admission, his secondary schooling was troubled. As such, he does not have a well developed understanding of the nuances of cultural differentiation. Nor, for obvious reasons, has he a personal experience of the difficulties which confront Indigenous Australian citizens in contemporary society.
Mr Ballard is however, well-intentioned. He is well aware of [X]’s Aboriginal inheritance and professes to acknowledge its centrality to her likely sense of identity, as she matures. In this context, he said he was learning Pitjanjatjara from books and the internet and was teaching [X] a few words of the language. He also said that he had got some “story books for Aboriginal children” to which [X] would have access.
I do not wish to be dismissive of Mr Ballard’s desire to learn and impart Pitjanjatjara, to [X], essentially “in vacuo” but, in a visceral sense, he can have little understanding of what it is to be either an Aboriginal person, in a general sense, or a Pitjanjatjara person in a more specific sense. His cultural background is different. In this sense, I think it somewhat naïve for Mr Ballard to consider that he could impart these aspects of [X]’s cultural orientation through his self-directed educational efforts.
Mr Ballard is [details of personal appearance omitted]. Ms Keene, in presentation, could only be taken for an Indigenous person. Mr Ballard proposes that he will enrol [X] at both a play group and, in time, a pre-school operated by an Aboriginal Cooperative in [B], the services of which are presumably intended to be utilised by parents and children, who identify as Indigenous.
There is a significant Indigenous population in [B] and its surrounds. In this case, I have not been provided with any evidence – either expert or lay – which seeks to differentiate the cultural practices of Indigenous people in Western New South Wales from those of Northern South Australia and the Western Desert area.
Mr Ballard has obtained a book about “the Spinifex People” which I understand is concerned with the people of the Western Desert area. But my impression is that his comprehension of any particular idiosyncrasies of these people and their distinctions from other Indigenous groups, in Australia, particularly Western New South Wales, is not a sophisticated one.
In this context, I am mindful of the comments of the Full Court of the Family Court in Re: CP[31] where it was stated that it was erroneous for courts such as this one, when dealing with Aboriginal children, to regard there as being a “homogeneity of Aboriginal cultures”.
[31] Re: CP (1996) 21 Fam LR 486 at 501
These are complex issues. The Aboriginality of [X] is an important issue, but it is not the only defining issue in this case. As Young J pointed out in Davis, the rights of Aboriginal children to enjoy and maintain their culture are one consideration amongst many. This right however must be balanced with all the other rights pertaining to children, pursuant to the applicable legislation, to reach the result which the court considers is the one most likely to serve the best interests of the child concerned.
Ms Keene did not advance a great deal of specific evidence about her background and the cultural implications arising from it. In particular, she did not call any expert evidence of an anthropological nature. As such, I am unaware as to whether she proposes that [X] will be parented in a significantly different normative way that than which would prevail in a household, such as Mr Ballard’s, which is essentially Anglo/Celtic in its orientation and based on a nuclear family model.
The implication of much of Mr Moore’s evidence is that he regards himself as having a role in [X]’s parenting because of his paternal relationship with [X]’s half siblings. In addition, he proposed a role for himself in introducing Mr Ballard to important family members in [C]. This suggests that he takes something of a collectivist view of the parenting of [X].
In this context, it has been noted that the Aboriginal view of family and social life is a collectivist one, pursuant to which many members of the community are vested with the responsibility for the “growing up” of a child.[50] Pursuant to section 61F, I am directed to have regard to any kinship obligations and child rearing practices relevant to the culture from which [X] springs. Apart from Mr Moore’s evidence, which was somewhat tangential, I have not been provided with any extensive evidence in regards to this issue.
[50] See S Ralph “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12 AJFL 140
In addition, Ms Keene has not provided extensive evidence about what is entailed in her personal practice of Pitjantjatjara culture. I accept that she speaks some Pitjantjatjara but do not know the extent of her facility in this regard. I also accept that it is appropriate for her to attend the funerals of extended family members. In this sense, I accept that she is part of a widely dispersed family network.
However, I have not been provided with other details of her cultural orientation, such as her involvement with traditional practices such as food gathering and the like or her ceremonial responsibilities. Importantly, no evidence has been provided of any cultural implications potentially arising for a female Aboriginal child, such as [X], growing up in her father’s household.
I do not raise these matters to be critical of Ms Keene. I can appreciate why she would find it potentially offensive to feel that she must demonstrate to the court that she is an Aboriginal person, when it must be obvious to all concerned that she is indeed. This is the most important consideration in the case. Ms Keene is obviously an Aboriginal person. As such, it is overwhelmingly likely that [X] herself will be similarly so identified, whether she chooses to be so or not.
Mr Ballard proposes, if [X] remains in his care, enrolling her at a child care centre and pre-school operated by an Indigenous corporation. He is doing so because of his acknowledgement of [X]’s Aboriginality. In all the circumstances of this case, it seems likely that, regardless of her own personal preferences for orientation as she grows older, [X] will be identified by “mainstream” Australians as being an Aboriginal child or part Aboriginal child, rather than as a predominantly European child. As such, she will be regarded as belonging to a particular group within Australian society, which is readily identifiable.
This may have both advantages and disadvantages, for [X], as she grows older. Firstly, she is likely to benefit from being part of a rich matrix of extended relationships, based in both [P] and [C]. This is the mother’s case, supported by Mr Moore.
However, for many complex and historical reasons, as is well known, many Aboriginal Australians continue to suffer from significant levels of social disadvantage. Regrettably, Indigenous Australians are still subject to racial prejudice from some members of Australian society, who either fail to appreciate or reject outright many or all of the difficulties, which confront many Indigenous Australians.
Such individuals are prone to stereotypical generalisations about Aborigines and the reasons for their disadvantage, very often blaming Aborigines as being the authors of their own disadvantage. [X] may be the subject of such prejudice.
These are difficult issues, which have confronted Australian society generally and the Family Law Courts in particular, when they have had to determine cases involving children of both Aboriginal and Caucasian background.
In the context of this case, the difficulty arising is that, if [X] remains living predominantly with Mr Ballard, she may lose some of the benefits of being an Indigenous child – a sense of connection and belonging to culture and a people – but retain the disadvantage – she may be subject to racism and stereotyping, regardless of her own behaviour but not have access to sufficient emotional resources to help her cope with this prejudice.
It is for reasons of this kind that the legislature has seen fit to emphasise, in the applicable legislation, the need for courts such as this one to pay particular regard to issues surrounding Aboriginal children, specifically the manner and context in which such children are parented.
Indigenous children, growing up within an Indigenous context, are likely to be inoculated, too a significant degree, against the detrimental emotional consequences of suffering racial prejudice. In such a context, they will have Indigenous people and role models to whom they can refer such an experience. As such, they will be able to put such an experience within a larger context of being an Aboriginal individual, surrounded by proud and wise kinsmen – something likely to be lost to an Indigenous child, who is predominantly living in a European milieu.
As Ralph puts it:
“While the achievement of stable and affectionate attachments is a highly important developmental goal for all children, the achievement of a coherent sense of identity based on cultural affiliation is equally important.
…
The Aboriginal perspective is based upon a collectivists view of family and social life that sees responsibility for the growing up of children invested in many people. According to this view, children come to trust in the capacity and commitment of a multitude of people to care for them and nurture them through childhood and into adulthood. By this means children come to take their place in Aboriginal society where responsibilities and obligations to family and kin are deeply rooted and pervasive. From this perspective the disruption caused to a child’s primary attachment, for example, is out-weighed by the benefits arising from the child’s exposure to a broader and deeper network of family and kin to whom the child will eventually form strong attachments.”[51]
[51] See S Ralph “The Best Interests of the Aboriginal Child in Family Law Proceedings” (1998) 12 AJFL 140 at pages 143 - 144
I appreciate that the manner in which Ms Keene has put her case does not include the specific delineation of these issues. The focus of her case is more bluntly put. Essentially, she asserts that [X] is and will always be an Aboriginal child and for her to remain predominantly in the care of Mr Ballard is to allow her to remain in the wrong place.
Her counsel, Mr McQuade, in reference to this issue described it as “the elephant in the room”. By which I take it, he concedes that this aspect of the mother’s case has not been well particularised or delineated in the applicable documents but is the glaringly obvious underpinning of her position that [X]’s interests will be best served if she lives with her mother in [P].
However, notwithstanding the importance of [X]’s Aboriginality, I must not lose sight of the fact that it is one factor amongst many and not necessarily the determinative factor. [X] also has a need for stability and predictability in arrangements for her care. Fundamentally, she also needs to be protected from potential harm, particularly arising from the risk of her mother suffering a recurrence of substance abuse or mental illness.
This is the central issue in the case, how is the court to balance issues arising from [X]’s tender years and vulnerability to harm, with her right to maintain and enjoy strong cultural connections. It is not a balance which falls easily into place in my mind.
Mr Ballard asserts that he will be able to provide [X] with some exposure to Indigenous culture, if [X] remains living in [B]. Again, I have not been provided with any evidence as to differences between Pitjantjatjara culture and the culture of Indigenous people, who live in [B].
I accept however that, in general terms, it is likely that, by attending Indigenous organisations, in [B], [X] is likely to be exposed to positive Indigenous role models and have an opportunity to interact with other Indigenous children, which is likely to be a helpful thing for her. However, the culture arising from western New South Wales may be different to the culture of Aboriginal people in the mother’s part of the country. It will certainly be different in the seminal sense that it will be imparted to [X] by persons who are not her direct kith and kin. In this sense, I accept it will be qualitatively different.
From the mother’s perspective, the provision of cultural information and role modelling in this way will be tokenistic, artificial and most probably inappropriate. This is the nub of this aspect of the case.
Mr Ballard undoubtedly loves [X] but he is not and never can be an Aboriginal person. As such it will be difficult for him to play a significant role in fostering within [X] a strong sense of connection to her Indigenous background. He cannot be a direct role model for her in this regard. For obvious reasons, Ms Keene is far better placed in this respect.
As I say, no detailed evidence has been provided to me as the level of the mother’s proficiency in the Pitjanjatjara language or what specific cultural activities she wishes to engage in with [X]. Mr Moore described himself as leading an urbanised lifestyle but also stated that he followed his own culture strongly. He did not qualify what he meant by this.
In addition, I have not been provided with evidence from other members of [X] direct maternal family, based in either [P] or elsewhere, as to what is envisaged, from their perspectives, in terms of [X] being exposed to and enjoying the Indigenous part of her background.
I appreciate however that it is possible to enjoy a cultural experience in a passive as opposed to an active manner. From the mother’s point of view, it is context which is important. It is her case that [X] needs to live in a household which is Aboriginal and to which other Aboriginal persons feel comfortable to come so that [X] herself has a sense of being immersed in this aspect of her background rather than intermittently exposed to it from time to time.
In my view this case provides a different factual situation to that which confronted the court in M v L (Aboriginal Culture). In that case, the father was a Maung man, who lived in Eastern Arnhem Land. The mother was an Indigenous woman, who lived on the outskirts of Katherine. Many kilometres separated the parties’ two homes and there were great practical difficulties in the children spending periods of time with one or other of their parents, particularly during the monsoon season.
As such, Kay J observed that the children concerned in the case could not be maximally exposed to the two different and distinct cultural backgrounds of their parents. The children concerned in that case had to live predominantly with one parent or the other.
Similar considerations arose in Davies. The child concerned was under three years of age. She had lived with her European grandmother in rural Victoria since very shortly after her birth. The mother was a Western Arrente woman from Ernabella in the north of South Australia. It was found that the child would gain only limited benefit from interacting with the Koori people of Victoria, given her matrilineal Indigenous connections.
It was also found that the child needed to develop a positive connection with her mother’s culture to ensure her best interests were met. In order to maintain this connection, it was determined she needed to live in her mother’s community with her mother. By necessary implication, it would have only been possible for the child concerned to visit Ernabella infrequently because of logistical considerations.
Ernabella is a community in the Pitjanjatjara homelands. [P] is an outback town with a mix of Indigenous and Non Indigenous population. The father proposes that [X] be able to visit [P] fairly regularly. Accordingly, although there are significant logistical considerations arising in this case, they do not appear to be as extreme as in these two other cases. In addition, in my view, this case also raises significant protective issues as a consequence of the mother’s previous substance abuse and mental health concerns, which also distinguish it.
[B] is an isolated town in western New South Wales. Necessarily its history is different to that of [P] but both are to be considered outback towns. Both have a significant Aboriginal population. Accordingly, I do not think that it can be said that [X] will be living in some form of white suburban enclave if she remains living with her father, particularly if she attends the playgroup and kindergarten which he has in mind.
Mr Ballard can never know viscerally what it is to be an Indigenous person. However, I do not think that he is inherently a racist or would do anything actively to harm [X]’s sense of identity, which he acknowledges is Aboriginal.
Ms M is not well disposed towards Ms Keene at present. Mr Ballard also has a jaundiced view of Ms K and other members of the mother’s family, whom he regards as anti-social. He also asserts that he personally will be at risk of suffering serious harm, from members of the mother’s family, if he lives permanently in [P].
These matters sound warnings in my mind. Clearly Mr Ballard is antipathetic to many members of the mother’s family, whom he regards as potentially corrosive influences in [X]’s life. In these circumstances, is there a risk that he might either actively or tacitly communicate negative and stereotypical views about Aboriginal people to [X]?
If this risk comes to fruition, it may precipitate some form of identity crisis in [X] herself. It may also be damaging to her own sense of self esteem and cloud her perception of who she is and where she fits in. This risk is likely to become more significant as she moves from childhood into adolescence. I do not consider it an insignificant risk.
However, important though the matters which fall for consideration under this criterion are, they are not the sole determinative factor. Rather they must be considered within the overall context of the case and the other applicable factors arising under section 60CC.
j) Family violence
k) Any family violence orders
Given the matters I have discussed in respect of primary considerations, I do not propose to address either of these criteria. This is not a case which centres on family violence. Applicable family violence order was dismissed due to considerations relating to the mother’s mental health.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
This is a complicated case. It raises many difficult issues. [X] is very young and the factors which are important to her care and development may very well change over time. Accordingly, it is difficult to see which is the outcome most calculated not to lead to further litigation.
Given her tender years, issues relating to her sense of identity are not likely to be a part of [X]’s consciousness at the present time or in the immediate future. This may not always be the case. It is not unknown for the onset of puberty to bring on an acute sense of identity crisis in Aboriginal children.
It may be, if [X] remains living predominantly with her father, as she matures, that she gains a sense that she is simply living in the wrong place. However, whether this will be so is conjecture, on my part, at this stage. As such, I do not consider that the prospect alone of [X], at some indeterminate stage in the future, deciding that she would prefer to live with her mother, is a factor that should influence the court’s decision at this stage.
Whatever is the outcome in this case, one party will leave it feeling deeply dissatisfied. This is not a favourable prognosis for the avoidance of future litigation. In particular, in my view, Mr Ballard is likely to feel deeply aggrieved if he feels that circumstances have been manipulated to compel him to go and live in [P], notwithstanding his view that the evidence available to the court demonstrates that he is the more viable of [X]’s parents at this stage.
The presumption of equal shared parental responsibility
All of the parties, including Ms Hafey, seek that the presumption of equal shared parental responsibility should be applied in this case. The only proviso is that Ms Hafey has proposed a mechanism to resolve any conflict arising about major long term decisions for [X] through conferring upon Mr Ballard the power to have the final word.
With respect to Ms Hafey, in my view, such a mechanism defeats the intention of the legislature in respect of the conferral of equal and shared parental responsibility, for a child, on parents. The essential element of such authority is that it is both diffuse and shared in the sense that the parents concerned are required to consult with and confer together, in order to reach consensus in respect of the exercise of the authority jointly conferred upon them. In my view, to give one parent the automatic final say in how that authority is be exercised is counter to such an ethos and may render otiose its conferral in the first place.
In all these circumstances, I propose to make an order that the parties have equal shared parental responsibility for [X]. I think such an outcome is likely to be in [X]’s best interests because it will ensure that both parents remain involved in major long term decision making for her, which is important given her background. In addition, I do not think that the presumption in favour of its implementation has been rebutted by issues of family violence, neglect or abuse, particularly given that both parents are in favour of its conferral upon them.
Conclusion in respect of best interest considerations and considerations of reasonable practicality
As the presumption of equal shared parental responsibility applies in this case, I am required to give earnest consideration to [X] spending either equal time or substantial and significant time with both her parents.
The only viable way such an outcome can come about, given the extreme unlikelihood that Ms Keene will be able to move to [B], is if Mr Ballard either moves voluntarily to [P] or feels compelled to do so as a result of the court’s decision in this matter.
As a result of the two limb test contained in section 65DAA and what was said in Taylor & Baker, I must consider the question of equal time (and substantial and significant time) first, within the context of the various section 60CC factors applicable, before turning to consider whether either such outcome is reasonably practicable to put into operation.
In my view, Ms A, the court appointed expert, approached the case in panglossian terms. As such, she submitted that the best possible outcome for [X] was if one party – in this case Mr Ballard – moved to be closer to the other parent, so that [X] could have the best possible relationship with each of her parents.
I acknowledge that there would be many positive outcomes from such a result. [X] would have the opportunity to be exposed to her mother’s care and have the involvement of her wider maternal family on a frequent and natural basis. In addition, in the eventuality of a recurrence of Ms Keene’s mental illness, Mr Ballard would be close by to act as a safety net for [X].
However, such an outcome would rely on the court determining that overall Ms Keene was the better parental option for [X] and thereafter Mr Ballard voluntarily deciding that he would therefore move to [P], to be closer to [X]. Ms A relied unduly, I think, on Mr Ballard’s statement to her that he was prepared to move to [P]. However, I do not think she unteased the possible implications of such an outcome or tested the spirit behind it.
Mr Ballard is prepared to move to [P], but only as a last resort. He would not do so willingly or magnanimously. He remains convinced that he is the better parental option for [X] and she will be better parented by him in [B], where he feels secure and happy and where he believes his immediate and long-term prospects are superior. In these circumstances, he would go to [P] resentfully. Such an outcome would not assist Mr Ballard to discharge his parental responsibilities towards [X] to the full extent of his capabilities and thus is not likely to be in [X]’ overall best interests.
In addition, the essential rationale of [X] going to live in [P], which brings about the basis for Mr Ballard being placed in a position where he can elect to follow her, if he wishes, is that Ms Keene is determined to be the better parental option. Otherwise, I think he is entitled to consider that his own personal preferences have been disregarded and he is being compelled to move, against his preferences, artificially.
At this stage, after a close consideration of the various section 60CC factors applicable, I am not persuaded that Ms Keene is the better placed of the two parents concerned. At this stage, notwithstanding the evidence of Dr B and Dr K, I remain concerned that there is an appreciable risk that Ms Keene may resume her past history of substance abuse and this may precipitate a further episode of serious mental illness, which has the potential to be extremely deleterious to [X]’s well being, in both a physical and psychological sense.
As such, I am not persuaded that it is likely to be in [X]’s best interests, at this stage of her development, to move her to her mother’s predominant care in [P]. I consider that such an outcome is filled with too many inherent risks. I remain concerned that Ms Keene lacks insight into the factors which precipitated her psychotic episode in early 2011.
This lack of insight is demonstrated by her failure to seek out more support for herself in [P], particularly in the form of drug and alcohol counselling. In addition I am concerned at the lack of evidence regarding the sources of potential emotional and actual support which arise for her in [P]. In these circumstances, notwithstanding the positive evidence of Dr B and Dr K, I consider there remains a real and appreciable risk of the mother relapsing at some stage in the foreseeable future into some form of substance abuse.
Accordingly, at this stage, I consider that the best option for [X] is to remain in the predominant care of her father, in his preferred location, which is [B]. After a perhaps inauspicious start, I am satisfied that [X] is now well settled in her father’s care and it is likely to be detrimental to her best interests to change this arrangement.
Ms A’s proposal of a shared care regime, centred in [P], is in my view, an untested and experimental one. The factors currently unknown being how effectively the parties’ parental relationship would function in these circumstances, which I consider to be predictably difficult and stressful for both parties, but particularly Mr Ballard and how he would cope emotionally at being compelled to leave [B] against his wishes.
Issues as to the long term viability of imposing a shared parenting regime for [X] over-lap in terms of her best interests and what is reasonably practical to implement. In respect of the first issue, I am not convinced that for the court compulsorily to mandate such an option would be in [X]’s best interest because it is likely to render
Mr Ballard bitterly predisposed towards Ms Keene and feel that his legitimate expectations and aspirations had been ignored.
In addition, as [X] is currently doing well in [B], I do not consider that such an experimental move of her to [P] is justified. The evidence currently demonstrates that, notwithstanding the interruptions arising throughout 2011, [X] has a viable level of relationship with her mother. This relationship has been sustained in very difficult circumstances with each party visiting the other in both [B] and [P].
It seems to me that the parties have the resources to ensure that [X] continues to maintain a sufficient level of relationship with her mother in the event that she ([X]) remains living in [B] and Ms Keene remains living in [P]. In this regard, Mr Ballard proposes an elaborate regime whereby he would substantially fund [X] spending time with her mother in both locations. He argues that his proposal amounts to substantial and significant time and is an outcome which is calculated to be both in [X]’s best interests and to be reasonably practical to implement.
I have some concerns that his proposal is unduly ambitious and may falter for this reason. However, I do not doubt his commitment to the ideal of [X] spending time with her mother regularly and relatively frequently given the circumstances prevailing. Up to this stage,
Mr Ballard has shown an ability both to travel with [X] to [P] and to subsidise the mother’s necessary expenses in this regard.
Accordingly, it seems to me that it is logistically possible for [X] to be able to spend time with her mother about once per month, for periods of up to six days, in the period prior to her commencing pre-school. Although not a perfect outcome, I am satisfied that such an arrangement will ensure that [X] retains her existing level of relationship with her mother and is able to extend it.
The desirability of [X] having a meaningful level of relationship with her mother, in these difficult circumstances, needs to be balanced with developmental issues arising from [X]’s tender years. In my view it would not be in [X]’s best interests for extended periods of overnight time to be suddenly implemented. A more graduated and cautious approach is warranted.
Ms A’s position is predicated on the basis that a shared parenting regime, based in [P], would undoubtedly enhance [X]’s relationship with her mother and increase her exposure to important aspects of her and her mother’s shared cultural inheritance. Undoubtedly this is so. But I do not think that it would come without a price and I consider it naïve to think that such an arrangement can be put into place without considerable difficulty.
Mr Ballard does not have a life or support in [P], notwithstanding the fact he has lived there in the past. I accept his evidence that the town has only negative connotations for him. Undoubtedly he would not go to [P] willingly or happily.
This is a hard case. It boils down to balancing what is known with what is unknown to achieve the outcome which is best for [X]. At present I am satisfied that she is doing well in the current arrangements, notwithstanding the obvious detriments arising from the fact that her mother lives so far away from her.
In my view there are too many potential pitfalls arising from either moving [X] into the predominate care of her mother or in some way, through a process of force majeure, directing Mr Ballard to go and live in [P], if he wishes to continue to have a significant role in [X]’s care, particularly when it is taken as a given that Ms Keene will not herself move to [B].
In determining that [X]’s interests will be best served by her remaining in Mr Ballard’s predominate care, I have not overlooked the issue of her Aboriginality. But this issue is one amongst many others and must be balanced and weighed in the context of those other considerations – primarily her current level of stability and the concerns I have about risks potentially arising to her as a consequence of her mother’s difficult recent history.
I accept that [X] is likely to be regarded as an Aboriginal child by those who come into contact with her. Mr Ballard has tacitly recognised this fact through his stated intention to enrol her at a play group and kindergarten primarily designed for Indigenous children. Accordingly issues to do with her sense identity and where she personally fits in the world at large are likely to become far more important for her as she matures.
As such, I concede that there are potential risks arising from putting into place a regime whereby she lives in a household which is not Aboriginal in its cultural orientation. However, given her age, these are not currently pressing issues for [X] and, in my view, significant as they are, matters relating to the on-going stability of her care and the assessment of future risk arising in that care are more important for the court at this stage.
In addition, the outcome proposed by both Mr Ballard and the independent children’s lawyer will not result in Ms Keene being removed as an influence in [X]’s future development. Nor will it mean that [X] will be deprived of the opportunity to interact with members of her maternal family in both [P] and [C]. Accordingly [X] will have some opportunity to enjoy and experience aspects of her maternal culture. I concede that this will not be as extensive an opportunity as would be the case if she lived predominantly with the mother in [P].
The father’s case is not based on a denial of [X]’s Aboriginal background. He accepts that [X] is to be regarded as an Aboriginal child. This follows from his enrolment of [X] in an Aboriginal play group and his naïve but worthy attempts to learn Pitjanjatjara. As such [X] is not likely to be deprived of the opportunity to interact meaningfully with Aboriginal adults and children if she remains living in [B].
Accordingly, I have not come to the conclusion that issues pertaining to [X]’s cultural background, important though they undoubtedly are and whilst conceding that a denial of her background and identity are likely to lead to incipient problems later on, are of such moment that orders should be made to ensure [X] lives predominantly in [P] with her mother.
I have attempted to summarise my conclusions regarding where [X]’s best interest ultimately fall pursuant to the various criteria arising under section 60CC of the Act. I have come to the conclusion that it is not likely to be in her best interest to either live predominantly in [P], with her mother, or in that location in some form of either equal time or substantial and significant time regime.
However, I concede that the outcome advocated by Ms A, which is predicated on the basis of Mr Ballard moving, has much to recommend it in a theoretical sense. However I must also consider what parenting regime is reasonably practical to implement given the reality of the familial situation currently confronting the court. That situation is one in which the parties are currently living in different locales separated by a significant distance and neither is currently willing to move.
In my view, this aspect – relocation – must be considered in the context of what is objectively practicable, based on the reality of the situation in which parents and child find themselves, not what is theoretically desirable for any child concerned.[52]
[52] See MRR. v GR (supra) at paragraph 15
As part of this exercise, the court cannot ignore a parents’ legitimate entitlement to live how or where he or she chooses. In purely theoretical terms, the best possible outcome for [X] is likely to be one in which she could spend as much time as possible, in all manner of circumstances, with each of her parents, whilst at the same time ensuring she remains safe from harm.
The test of what is practicable, in any given case, is to be assessed by the court objectively. In making this objective assessment, the court is required to consider four specific criteria and one genetic criterion, as set out in section 65DAA(5). I turn to consider those matters now.
The only way to implement an equal time (or a substantial and significant time) regime is if Mr Ballard moves to [P]. Otherwise, self-apparently, the parties’ respective homes are too far apart.
If either an equal time or substantial and significant time regime was founded on the forced resettlement of Mr Ballard to [P], I have grave reservations that the parties have sufficient resources – either individually or in tandem – to make such regime work effectively.
Mr Ballard is likely to be resentful at being forced to live somewhere he does not want to.
The parties separated around twelve months ago in difficult and traumatic circumstances for each of them. The process of adjustment to the emotional sequellae of that separation continues for each of them. In such circumstances their communication skills are neither subtle nor well developed. The forced move of Mr Ballard to [P] is not likely to assist the parties in advancing their communication skill. In this context, I also concede that the maintenance of the current status quo is not likely to be calculated to predispose the mother favourably to the father.
In all these circumstances, I have come to the conclusion that the outcome advocated by Ms A, which is also cautiously adopted by the mother, is not one which is reasonably practicable to implement. The major factor in this regard being that such a regime could only come about by the denial of Mr Ballard’s individual preferences as to where and how he wishes to live his life in future, when it has been found by the court that he is the better place parent to provide the major component of the care required by [X] at this stage.
Conclusions
I apologise for the length of these reasons for judgement. However, as the length of the document indicates, I have not found this to be an easy case to determine. Regardless of the difficulty, at the end of the day, it is necessary for the court to focus on how it believes the best outcome may be achieved for [X], after weighing and considering the various considerations relevant. Necessarily this is a process of synthesis. No one factor is necessarily determinative.
However, as I observed earlier, the essential nub of the case is how best to balance [X]’s need for security and safety from harm, given her tender years and obvious level of vulnerability, with her right to maintain and enjoy strong cultural connections to the Indigenous peoples to whom she is matrilineally related, who are primarily centred in [P].
Claims for stability and continuity of care are more easily made on behalf of the father, who has had the care of [X] since February of 2012. The indications are that [X] is thriving in his care and for reasons already explained, I have reservations about the ongoing stability of the mother’s household and the durability of her recovery from a serious episode of substance abuse, in circumstances where she has a prior history of such difficulties.
Claims for cultural involvement and integration are made strongly by the mother, who argues that [X], as an Aboriginal child, needs to be with other relatives who similarly identify, so that she can be exposed to strong role models who will assist [X] to understand who she is culturally. Given the contemporary history of this country, these are significant and compelling concerns.
I have come to the conclusion that the balance will be best met if [X] continues to live with her father and the mother spend the regular monthly periods time with her as proposed by Ms Hafey. In my view, this is a workable regime. I accept that Mr Ballard is committed to its implementation.
Given the distance involved, monthly visits, including the immediate instigation of some overnight time, are the best means of ensuring that [X] has a meaningful level of relationship with her mother, in what are undoubtedly difficult and challenging circumstances. It is appropriate that the blocks be incrementally extended as [X]’s grows older.
Mr Ballard has proposed an ambitious regime of time, which he asserts equates to substantial and significant time. I have grave reservations that the parties have sufficient resources, both in a financial and more general sense, to make such a regime work. In these circumstances, it is prudent to inaugurate a more modest regime but one which has a greater probability of being successfully implemented.
The regime also has to accommodate [X]’s tender years and level of development. She needs to see her mother regularly but I have to be aware of potential pitfalls which may arise resulting from her being separated from her father for extended periods of time, which [X] herself will have no facility to rationalise. At this stage, it appears likely that the father is [X]’s main source of emotional security, given the period of time she has been in his predominant care.
A balance has to be struck regarding these two competing considerations. In my view, the balance is best struck by allowing immediate regular four day visits per month, which will include one overnight, until [X] has attained the age of two. Thereafter the block can be extended to six days with the two overnight periods. At pre-school age, the overnight time can be extended once again. The parties are of course, free to agree other arrangements consensually outside this framework.
Each of the parties and the independent children’s lawyer proposes an early implementation of block periods of time given the logistical issues arising. Notwithstanding [X]’s tender years, I agree with these proposals in general terms. These logistical considerations also militate in favour of an early implementation of overnight time.
It is appropriate that Mr Ballard pay the greater proportion of the costs which will arise. Up to this stage, he has shown a greater facility to save and budget. In addition, it seems appropriate that the visits alternate between [P] and [B] in order to ensure [X] has the best possible level of exposure to her maternal family based in [P]. More conventional orders can be made in respect of the period after [X] has started at school.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding six hundred (600) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 9 March 2012
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