Kershaw and Joyce
[2013] FCCA 1047
•9 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KERSHAW & JOYCE | [2013] FCCA 1047 |
| Catchwords: FAMILY LAW – Parenting – Relocation – Competing interests of meaningful relationship of child with father and the impact of relocation on mother’s parenting capacity and the child’s stability. |
| Legislation: Family Law Act 1975 s.60CC |
| Hepburn & Noble (2010) FamCAFC 111 A & A: Re-location Approach (2000) FLC 93-035 Taylor & Barker [2007] FamCA 1246 Morgan & Miles (2007) FLC 93-343 AIMS v AIF (1999) CLR 160 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 MRR & GR [2010] HCA 4 Cales & Cales [2010] FamCAFC 237 |
| Applicant: | MR KERSHAW |
| Respondent: | MS JOYCE |
| File Number: | PAC 3151 of 2012 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 18 and 19 June 2013 |
| Date of Last Submission: | 19 June 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 9 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weaver |
| Solicitors for the Applicant: | John Spence & Associates |
| Counsel for the Respondent: | Mr Anglin |
| Solicitors for the Respondent: |
ORDERS
That the child, X, born (omitted) 2009, live with her mother and the mother be permitted to remain living with the child in Queensland.
The child spend time with her father failing the parties being able to agree as follows:
(a)One weekend each month, with the mother to facilitate and pay for the costs of the child attending Sydney for three nights and three days in one calendar month and the father to facilitate and pay for the costs of the child spending time with him in Brisbane for three nights and three days in the other calendar month.
(b)The time for the child to commence spending time with her father will be in Sydney the first weekend after 28 days has expired from the date of these orders.
(c)The child to spend one week holiday with her father in each of the gazetted Queensland school holiday periods mid-term at the cost of the mother.
(d)For one week in Christmas each year at the cost of the father and in even-numbered years, the week holiday to include Christmas Day and Boxing Day.
(e)In odd-numbered years the week of holiday to commence the second week in January.
(f)Upon the child reaching age 7, the child to spend two weeks with her father in Sydney at Christmas and travel may travel as an unaccompanied minor.
(g)At all other times as agreed.
The parents to communicate in relation to the child via Skype or text message, and the child to have Skype communication with the father on no less than two occasions each week, and at other times as she may request.
Both parties are injuncted and restrained from speaking ill of or denigrating the other in the presence or hearing of the child or permitting and third person so to do.
IT IS NOTED that publication of this judgment under the pseudonym Kershaw & Joyce is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PAC 3151 of 2012
| MR KERSHAW |
Applicant
And
| MS JOYCE |
Respondent
REASONS FOR JUDGMENT
This matter was heard in the Sydney Registry on 18 and 19 June 2013. The applicant father was represented by Mr Weaver of Counsel and the respondent mother by Mr Anglin. The mother and her witnesses appeared by the video link from Brisbane Registry where the mother and child, X born (omitted) 2009, the subject of these proceedings, reside and have so resided for 18 months.
The father asks that the mother be ordered to return the child to permanently live in Sydney and the mother seeks she remain living in Brisbane with her daughter and family.
Evidence
For the father.
Affidavits of himself, filed 3 June 2013 and 27 June 2012.
Affidavit of his mother, filed 3 June 2013.
Father’s Exhibit 1. These were records from the New South Wales Department of Corrective Services confirming that the father had successfully completed an Intensive Correction Order in 2012, which program ran for six months.
Father’s Exhibit 2, an SMS text message from the mother to the father dated 24 August 2012 with the words:
No, I definitely won't be doing that. You might her father, but you will never be her dad.
Father’s Exhibit 3, a series of text messages between the parents commencing 18 December 2011 and ceasing 17 January 2012. This was around the date that the mother left Sydney for Brisbane with the child.
Evidence for the mother.
Affidavit of herself, filed 18 September 2012 and 29 May 2013.
Affidavits of her partner, Mr Y, filed 18 September 2012 and 29 May 2013.
Court Exhibit 1. A family report prepared by a Brisbane family consultant Ms E, released 29 January 2013.
Both parties’ lawyers presented case outlines to the Court.
Each party, their witnesses and the family consultant were cross examined.
The parties had entered into consent orders when this matter was before Judge Monahan on 17 June 2013, providing for equal shared parental responsibility, changing the child’s name from X to X and a non-denigration order.
The parties entered into further consent orders at the conclusion of this hearing, providing for the issue of a passport for the child, the cost of which will be borne equally by the parents, together with provision for each parent to take the child overseas for travel. These two sets of consent orders, although unremarkable in the usual scheme of things, are quite remarkable and bespeak well of the parent’s ability to focus on the needs of their daughter particularly when one has regard to the history of this matter.
The Short Relevant Chronology
The father was born in (omitted) 1990 and the mother in (omitted) 1992.
The mother discovers she is pregnant in January 2009, she being only 16 years of age and still subject to a Department of Community Services control order.
The mother and her siblings having been in foster care throughout their life. The mother has had a difficult life with her own family, and to this day only has contact with one brother and the foster carer with whom that brother lives. The Department was of substantial assistance to the mother in finding her housing, assisting with her understanding of the pregnancy and ensuring she attended courses for young parents.
X was born on (omitted) 2009. The mother had just turned 17 years of age.
In November 2009, the parties commenced living in a de facto relationship.
The mother alleges that during the relationship the father drank alcohol to excess, which consumption led to him behaving in a violent, threatening and terrifying manner towards this young woman, including him blacking out, smashing furniture, punching holes in the wall, screaming at her and the child, hitting the mother and denigrating her. The mother says that this behaviour continued from the commencement of their relationship until the mother relocated with the child to Queensland in January 2012.
The father had two AVO orders taken out against him for the protection of the mother in August 2010 and May 2011.
The father was found guilty of breaching both AVO’s and his serious and destructive behaviour from alcohol consumption was the basis of the order that he attend and complete the intensive correction order programme in 2012 which he successfully completed in late 2012.
The father agrees that the successful completion of that programme was a turning point for him as does his mother.
The mother commenced a relationship with Mr Y in February 2012, she having known him at work in Brisbane. They commenced living together in March 2012.
The father became aware of the mother’s whereabouts in Brisbane in May 2012 and commenced proceedings almost immediately.
The mother gives birth to her second child, Y, on (omitted) 2013 and is currently on maternity leave.
Relevant Prior Orders
The matter came before the Court on 20 September 2012, at which time I ordered the preparation of a family report in Brisbane and that the matter be listed for trial as soon as possible.
I made interim parenting orders as follows.
a)That the parents have equal shared parental responsibility.
b)That the child continue to live with her mother in Brisbane.
c)That the child spend time with her father in Brisbane in the presence of the paternal grandmother and this time to extend to overnight time if he had appropriate accommodation.
d)The cost of time in Brisbane was to be borne by the father.
e)The child to spend time with her father in Sydney on alternate weekends, with the cost of that time to be borne by the mother.
Effectively the child was spending alternate weekends with her father either in Sydney or Brisbane. I accept neither parent can continue to maintain that regime into the future due to the high costs of travel and accommodation on their current limited incomes.
I ordered Skype communication with the child and her father which has successfully occurred.
To their credit, the parties have carried out those orders, with significant financial assistance from the father’s mother and the mother’s partner. There have been occasions, due to work commitments and the significant cost involved in this travel, when the father has not been able to avail himself of the opportunity to attend Brisbane. However each parent agrees time has progressed well, that X enjoys spending time with her father and grandmother and that she and her father have a strong relationship. Her mother says she has fun with her dad and loves him.
The Parents’ Applications
The father’s initial application was that the child live with him in Sydney. He amended that application at the commencement of the hearing and asked that I make orders for X to live with her mother, but that her mother be injuncted from living with the child other than in a radius of Sydney.
Such an order would necessitate X, her mother, Mr Y and Y relocating from Brisbane where they have been living for 18 months and return to live in the Sydney area.
The father then asked that upon the mother returning to live in the Sydney area with the child, he spend significant and substantial time with her from Friday to Monday morning and one other night a week together with holiday time.
The father further asked that if the mother was not agreeable to returning to live in Sydney with X the child would live with him.
The mother’s application was that she and her family remain living in Brisbane.
That she pay for the costs of and facilitate the child spending three nights with her father one weekend in each two months in Sydney.
That the father attend Brisbane at minimum for three nights and three days in the other month to spend time with the child and on any other occasion he can afford so to do by arrangement with the mother.
The child spends one half of school holidays with each parent which time may be increased for the father at his request.
The mother could foresee that when X was around seven years of age, she would be able to travel as an unaccompanied minor.
Both parents were prepared to do a Parenting After Separation course to improve their communication and have agreed in relation to parental responsibility and issue of a passport and travel for X.
Evidence At The Hearing
I accept that the family report contained some errors particularly in relation to the father. For example paragraph 30 of the report stated:
Mr Kershaw had attended two counselling sessions and briefly used prescribed medication but stated these were not helpful.
The facts are that the father has attended all the counselling sessions he was required to attend, is amenable to attend further counselling if he feels he needs to and found the prescribed medication helpful. This positive attitude of the father to maintain and improve his emotional health and functioning has arisen since he completed the Intensive Corrections Order program in September /October 2012.
The father was sentenced to this program due to his alcohol fuelled violent behaviour, not only for breaches of AVO’s in relation to the mother, but also affrays in public places.
I am satisfied that the father has been effectively abstinent from alcohol since the completion of that program and that there has been no incident of the father’s prior antisocial, poor and violent behaviour to anyone including the mother and child since at least January 2013.
I make this finding after having heard both the father and his mother give evidence and having read the fathers’ admission to the family report writer at paragraph 29 which is as follows:
Mr Kershaw confirmed he had had a problem with excessive alcohol use and violence, a blackout, broke windows, kicked things, smashed the back door, and he confirmed that his daughter was often present. He conceded that the mother and the child would have been frightened by his behaviour. He confirmed he had breached the Apprehended Violence Orders, and that the mother did invite him into the home after the AVO’s were taken out in 2010 and 2011 and they would end up fighting “because I was pissed,” then the mother would call the police.
The report writer stated the father claimed Ms Joyce aggravated him by being verbally abusive which caused him to drink. In cross-examination, the father said he had not said those words to the report writer.
The father agreed he said Ms Joyce was verbally abusive to him but that the only person to blame for his drinking was him. He repeated that the responsibility for his poor behaviour was his and his alone on several occasions during the hearing.
If the father had said those words to the family consultant he demonstrated a significant change in his responsibility and ownership of his behaviours at the hearing. Having heard the father’s evidence and read his admission of poor behaviours in his affidavit for which he laid no blame upon the mother I am satisfied the father does take responsibility for his poor behaviour in the past and that amongst other matters is one of the reasons he has not re-offended or relapsed.
Secondly, the paternal grandmother has been of great assistance to this young couple. The mother agreed that when X was a newborn the grandmother was a valuable support and resource for the parents and her grandchild.
X is very attached and close to her grandmother. This attachment and closeness was observed and reported upon at paragraph 41 of the report. X was somewhat possessive of her father and grandmother at the interview.
The grandmother described the father and mother’s relationship as toxic. She confirmed they were not good for each other. The report writer opined that the grandmother essentially blamed the mother for her son’s problems with alcohol as she had said:
It’s in her nature to persecute and manipulate. She did a lot of damage to my son.
In oral evidence the grandmother denied using the word “persecute” and agreed she used the word “manipulate”. The grandmother told the Court she did not believe the mother was responsible for her son’s behaviour, that her son was responsible for his own behaviour and that their relationship damaged each of them.
The grandmother reiterated in her oral evidence that if her son relapsed, he would need to go back into a rehabilitation program, as that had worked very effectively for him.
In the report and on a positive note the grandmother said that the parents have to speak to each other and that she believes they are taking baby steps towards doing this, but agreed they have difficulties in communication. This lack of communication was a concern for the report writer as was her view that the father and grandmother blamed the mother for the father’s poor behaviours.
The report interviews were conducted six months prior to this hearing. Thus the child and parents have had six months to trial the interim orders and begin to communicate with each other.
At the hearing both the mother and father confirmed they have been able to speak to each other in a respectful and polite manner in the last six months and send each other respectful and polite text messages concerning their daughter. This positive forward step was confirmed by the grandmother, who said, “I’ve seen them talk at changeovers. There is no problem.”
Mr Y the mother’s partner, said in his evidence that he and the father get on well, they are respectful and polite and that the mother and father are speaking far better than when he first met the mother.
Mr Y reported and confirmed in oral evidence that when he first took up a relationship with the mother, she did not promote X’s relationship with her father because “Ms Joyce was still in a phase of hurting”. He said that at the time of the interview the mother was supportive of X’s relationship with her father and the paternal family.
Mr Y confirmed in his oral evidence that the mother’s support of this relationship has increased even more over the last 6 months.
The mother was asked:
Why was it that you left as you did for Queensland in January 2012 without telling the father where you were going? What were your reasons for doing what you did between 12 and 17 January 2012, that is, removing the child permanently to Queensland?
The mother became extremely tearful and cried as she did on various occasions during the hearing when recounting the behaviour of the father towards her and her daughter during the relationship. Her words were –:
There is a massive reason. For two years, I experienced physical and emotional abuse by the father. I felt unsafe and worthless. I felt pathetic, that I was a bad mother and a failure. I needed to feel safe for once in my life and I needed to get away from him. He kept coming into my house. He hit me and he cut himself in front of me and the child. He told me I was nothing, that I had nothing. I only had his family and I had no one but him. And when I left and went to Queensland, for the first time in two years I felt I could breathe. I just needed to get away from him and be able to breathe.
The father did not see the child for nine months from this time. It was some four or five months before he was able to locate the mother and this would have been a very trying time for him.
On the other hand there are the admissions by the father in his material and orally which confirm the mothers’ version of events that he broke into her home on numerous occasions when drunk, cut himself in front of her, blacked out in her presence, attacked her verbally, ranted and raved in the presence of the child and that the child was traumatised by his behaviours which were fuelled by alcohol.
In light of this evidence I accept that at times the mother was terrified for her and her daughter’s safety. The mother’s recounting of his behaviour had an air of reality and truthfulness about it and she was back in that bad place when speaking of this time in her life. I accept the mother felt unsafe, threatened and completely helpless at times given she had no family of her own to whom she could turn her major support in Sydney being the paternal grandmother.
The mother then went on to say:
I understand I left the wrong way, but I needed to feel safe and be a good mum for my child and finally I am in a good relationship and everything is much better now.
Having heard Mr Y give evidence, I am satisfied he is a supportive, caring, devoted partner, who takes his parenting role of X seriously. He said as he now has his own daughter, he wants to treat Y and X as equals, although he does not want to nor will replace her father.
From the photographs attached to the mother’s affidavit of the home she and Mr Y rent, it presents as a well equipped and spacious home with tiled floors, a large and fenced backyard, four bedrooms, and has all the amenities for comfortable family living at a rent of a mere $390 a week. I put to the parties that the rent for a similar quality home in Sydney in a similar area would be approaching $700 a week. No one disagreed with that proposition.
Mr Y works with (omitted) who are the mother’s employers whilst on maternity leave. He works three days a week in (omitted) position to enable him to assist the mother with Y and continue his University studies. He is studying (omitted) at the (omitted) University and has 2 years remaining to complete his course.
In addition to his weekly net income of about $500 a week he obtains bonuses of $70 a week to a maximum of $160 a week although not necessarily weekly. Prior to the birth of his daughter he, like the mother, was working in (omitted), earning a greater income.
Prior to the birth of Y the mother had worked in (omitted), had been promoted to a (omitted), had been voted and awarded (omitted) and received many accolades for her excellent and stellar performance in her job.
The mother is a capable, intelligent and focused woman with a strong will to succeed. Mr Y and she have made a commitment to each other for the long term and plan to marry. In the last 18 months whilst living in Queensland the mother’s life has significantly changed for the better.
When in Sydney the mother was living in public housing in (omitted) and then (omitted). The mother moved her address due to the father’s behaviour yet the father still believes today that the reason she made the complaint about him breaking into her home via a window was to obtain a different home.
I accept the mother may have invited him into the home after AVO’s had been issued. This young couple were still in a relationship and had a young baby. However the fathers’ behaviour towards the mother was frightening and it was imperative that she feel safe in order to maximise her parenting.
The mother was living in public housing, not working at anywhere near the capacity she has been able to work in Queensland, had a young baby to care for, with none of her own supports to assist her other than the father’s family supports and it is not surprising that she removed herself with her child to an environment which she believed would afford her safety, security and a quality of life that she had been unable to achieve in Sydney.
The paternal grandmother’s support of the mother is admirable however her natural allegiances would lie with her son and if he and the mother were not getting on it would make it near impossible for her to bridge the gap and support the mother.
This young mother has made for herself a positive, happy, child-orientated and fruitful life in Queensland with the support of her soon-to-be husband Mr Y and his family who also assist her. The mother has changed her life and thus X’s life for the better.
The father, to his credit, has changed his life around. He is no longer the man the mother knew, and the difficulty for the mother is that she has not lived with the changed father; she only knows the old father and the old father was someone who justifiably made her feel unsafe, trapped and scared.
The father is a (occupation omitted) and is earning $500 a week net. He lives with his mother and he has significantly changed his life around for the better. He is no longer the threat he was to X’s stability or safety despite the family consultant believing he was potentially a real threat at the time of the interviews.
When the family consultant was apprised of the progress and improvement in the father’s behaviour and attitude, she agreed he would no longer be a threat to the child and therefore no longer recommended time between he and the child be supervised.
Had this hearing taken place six months ago, I would have been very concerned with the mother’s capacity to foster and encourage the child’s meaningful relationship with her father and his family.
Events were still raw for her and she had expressed to the family consultant real reservations of the benefit to the child of the father being in her life. She agreed she had sent him text messages such as:
You’re not a father; you’re just a sperm donor. You put me and X through hell. You’re never going to see her again.
However she had said at paragraph 22 of the report she said she was angry when she made those comments. The father became teary when this evidence was put to him.
The Mother’s Leaving To Queensland
It is clear that in December 2011, the parents were attempting a relationship but were not living together. The text messages between the two at that time portray love for each other. The father says he wants to come back and be a family again. The mother is not sure. The child spends time with her paternal family, in early January 2012 for her Christmas time.
The mother and father are texting about the child at that time and those messages are contained in document 2 of Father’s Exhibit 3.
On 12 January 2012, the father wrote to the mother as set out in document 3 in Father’s Exhibit 3–:
I hear you’re moving.
The mother replied to him:
What are you talking about?
Some time between 12 January and 17 January 2012 the mother agrees she rang the father and told him she father she was moving to Queensland.
The child was with the father at that time and he refused then to return the child to the mother. That hardened the mother’s attitude toward the father and the paternal family, as X had never been separated from her mother without her mother’s consent prior to that time.
The father said to the mother, “You’re not taking her to Queensland.” The mother said he said more than that, but agreed he said at least those words.
The mother reported to the family report writer at paragraph 21 that the father withholding X from her in January 2012 had influenced her decision not to let the father spend time with the child until a Court made the orders, as his conduct had put fear into her and caused her grief in being separated from her child and she did not want this to occur again.
The father did not agree to return the child to the mother. With the assistance of her younger brother’s foster father, Mr G, the mother collected the child on 17 January 2012 from the father’s home and decamped to Queensland.
The father then experiences the anguish of trying to locate his child. He knew she was in Queensland but not where she was. The mother said in her evidence that when she went to Queensland, she was hiding from the father. She was hurt, frightened and needed to get her self-esteem back. The mother has been successful in her endeavour and by dint of her relationship with Mr Y and her success at work is now functioning at a competent and capable level.
X is attending preschool and by all accounts is doing well. She’s a happy, affectionate, emotionally robust child. The family report writer was impressed that despite being separated from her father by such a vast distance, spending only alternate weekend time with him and having not spent time with her father for nine months in 2012 X’s relationship with her father and paternal grandmother was very strong. Thus, the father and mother each have a close and attached relationship with their daughter.
The Parents Competing Proposals
The competing proposals are clear.
In the Full Court’s decision in Hepburn and Noble[1] they held that A and A: Re-location Approach[2] is no longer good law after the 2006 amendments to the Family Law Act.
[1] (2010) FamCAFC 111.
[2] (2000) FLC 93-035.
In Cales & Cales[3] their Honours said at page 15 paragraph 65.
[3] (2010) FamCAFC 237.
The effect of the change introduced by the amending Act were explained in Goode & Goode as follows.
“In our view the Act makes it clear that when a parenting order is sought whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of a child that the child’s parents have equal shared parental responsibility as expressed in s. 61DA. subject to the qualifications in subsection (2), (3) and (4).”
The finding that such a presumption is in a child’s best interest necessarily leads to a consideration under section 65DAA of whether a child should spend equal time with or significant and substantial time with parent. This legislative intent and pathway when determining these proposals has been subject to a decision in the High Court of MRR & GR[4].
[4] [2010] HCA 4.
In Cales their Honours went on to discuss the principles arsing out of MRR & GR concluding at paragraph 140 that:
In MRR the High Court has now made it clear that in making an order in a child’s best interests section 65DAA requires consideration of both “best interests” and “reasonably practicable” when considering making either an equal time or significant and substantial time orders.
The High Court held at page 13 of MRR as follows:
Section 65 DAA is expressed in imperative terms. It obliges the Court to consider whether it is in a child’s best interests to spend equal time (or significant and substantial time) with each parent and whether it is reasonably practicable. It is only when both questions are answered in the affirmative that consideration may be given to making an order in the affirmative.
The principles set out by Federal Magistrate Brewster, as he then was, in his first instance judgment of the Appeal in Taylor & Barker[5] were confirmed by the Full Court at the Appeal and are:
a)The best interests of the children are the paramount consideration but not the sole consideration. This principle was confirmed by Justice Boland sitting as a single Appeal Judge in Morgan & Miles[6].
b)Secondly, and consistent with Justice Kirby’s decision in AIMS v AIF[7] freedom of movement is a factor in these decisions.
c)An applicant for orders permitting relocation need not show compelling reasons before such an order will be made. Indeed neither party bears an onus: that is to say neither parent has the onus to establish that a change in the current contact arrangements or a continuation of those arrangements will best promote the interests of a child.
d)The reasons for a parent wishing to re-locate with a child are only one of the matters to be considered and it should not be dealt with as a separate issue. This principle was approved in Taylor & Barker.
e)The Judge must identify the competing proposals and evaluate how each proposal will hold advantages and disadvantages insofar as the best interests of the child are concerned.
f)The Judge is to indicate which matters are of greater weight and explain how the matters balance out.
[5] [2007] FamCA 1246.
[6] (2007) FLC 93-343.
[7] (1999) CLR 160.
In this matter it is the father who is seeking that the child and mother re-locate to Sydney. The competing proposals of the parties are easy to state. The mother wishes to remain with child in Brisbane. The father wishes the child and mother to return to Sydney. If I order the child be returned to Sydney the mother will return with the child.
There is little dispute about the time the child should spend with the father if she lives in Sydney or remains in Brisbane.
Neither parent seeks an order for equal time and the family consultant opined that for a child of X’s age an equal time arrangement would be contraindicated to her developmental needs and thus not in her best interests.
The father says:
An order for significant and substantial time is an order that is in my daughter’s best interests, in that it will maximise the benefit to her of a meaningful relationship with me...
I am in no doubt that X benefits from a meaningful relationship with her father and grandmother. Her mother agrees with this. I have no doubt an order for X to spend significant and substantial time with her father would promote and maintain that benefit and likely maximise her relationship with him.
However I am mindful of Justice Kay’s decision in Godfrey & Sanders[8]:
Even if the move results in a diminution of quality of the relationship what the legislation aspires to is to promote a meaningful relationship and not an optimal relationship.
[8] [2007] FamCA 102.
Before I make any order including an order for significant and substantial time for X to spend with her father I must follow the legislative pathway set out in Goode & Goode[9] and consider all the factors under section 60CC (2) and (3) of the Act to determine what order is in X’s best interests.
[9] [2006] FamCA 1346.
Part of the consideration of what order is in X’s best interests is consideration of whether a proposed order is practicable and realistic. The High Court held in MRR & GR that when contemplating making an order for equal and or substantial and significant time, the order must be both practicable and realistic and in the child’s best interests.
Having regard to where the parents live an order for significant and substantial time could only be practicable and realistic if the parents lived in close proximity to each other.
In the decision of Cales & Cales the Full Court held at paragraph 143:
What the legislation obliged him to do was to consider whether to make such an order (significant and substantial time). In his overall consideration of the case his Honour should have weighed up and balanced the undisputed fact that regardless of where the mother lived the children were to remain primarily in her care.
This is the reality for X. Whatever order I make she will remain in her mother’s primary care.
And balance the benefits the children would experience living with the mother including the provision of more suitable and affordable housing and support for her mother from family members.
These are factors that the mother relies upon in her application to remain living in Brisbane.
Against the reduction in time to be spent with the father.
The mother’s case is that she seeks to maintain what has been for X a stability of life, income, housing, kindergarten, and attachments to others being her partner and his family. This current stability for X was not that which she experienced prior to the mother’s move to Queensland. The mother asks the Court permit her to remain living in Queensland.
If I accede to the mother’s request an order for significant and substantial time could only be made if the father moved closer to where his daughter lives. He says he cannot. He simply does not have the means to do so and does not have a job. His income is too low, it is only some $500 net a week, and he is not even sure if he could obtain the same TAFE course or same job that he has now with NSW TAFE to provide for himself in the Queensland area. His mother has been funding his trips to Queensland to spend time with the child.
If I accede to the father’s request and order the mother live with the child in the Sydney area on a practical level an order for significant and substantial time could be made. However the other part of my task is to consider whether making such an order namely the mother and child re-locating to Sydney would be in X’s best interests.
The consequences for the mother, her family and X of such an order are profound.
To comply with such an order as the mother said she would, would necessitate she, her husband, X, and Y, being uprooted from their home, moving to an unknown address in Sydney, a city where Mr Y the current sole breadwinner has no job, the mother has no job or family support, an environment Y has never known and which X has been absent from for 18 months on a permanent basis.
His Honour Justice Kay said in Godfrey & Sanders:
There must be a balance of the meaningful relationships with the father with the primary caregiver getting on with the life she chose and endeavouring to maximise opportunities for the children to be adequately supported.
This principal is almost a recitation by the mother of her primary arguments for having gone to Brisbane and to be allowed to remain there.
The mother has excellent housing that she could not afford in Sydney. The mother had a well paid job in Brisbane which provided for her and X. The mother may return to that job after maternity leave she is undecided at this stage. The mother and X are supported by her partner and she has made a life for herself and her child in this location.
I must now look at the matters under section 60CC (2) and (3) of the Family Law Act, to determine what order I ought make in this child’s best interests, having regard to the competing proposals of the parties.
The first factor is maintaining for the child the benefit of a meaningful relationship with each of her parents.
The family consultant stated in her oral evidence and in her recommendations at paragraph (b):
If X lives in Brisbane, she spends time with her father, at minimum, every four weeks for three consecutive nights.
The proposal put forward by the mother that she ensure the child come to Sydney once each two months, and the father attend Brisbane in the other month is consistent with that recommendation.
In her evidence, the family consultant said that the reduction in time she currently spends with her father would result in a diminution of her current relationship with her father as she is currently spending alternate weekends in his care, either in Sydney or Brisbane.
I accept that the mother who is not working and is on maternity leave following the birth of her second child, can no longer afford monthly trips to Sydney as she could when working.
I accept that due to the father’s current low income he is unable to fund monthly trips to Brisbane and his mother has been funding these trips and thus the time of regime will change if the mother remains in Brisbane.
The family consultant opined that given the strong relationship the child has with her father and grandmother, she may well be able to deal with a reduction in time with her father and continue to maintain her strong relationship with him. However this is a risk and the consequences are untested.
The family consultant was very concerned of the negative consequences upon the child’s current stability if I ordered the mother to return to Sydney. She opined such a move would be destabilising and may ultimately have a deleterious effect on the child’s hitherto beneficial relationship with her mother. The family consultant stated repeatedly that to order such a move would risk the mother’s stability and parenting capacity which she has achieved in the last 18 months and any diminution in those stabilities would have a negative effect upon the child.
Prior to moving to Queensland the mother did not have stability in her life and her daughter was exposed to the negative consequences of this lack of stability. The family consultant said the impact of disrupting that stability now will detrimentally impact upon the mother’s parenting and the child and is a significant and unknown risk.
Secondly, I find disrupting the stability the mother has achieved for herself and her daughter may also have a negative impact upon and put at risk the good work these parents have done towards improving their communication and relationship.
There is no doubt the mother’s move to Brisbane and the orders made by the Court in August 2012 for the child to spend alternate weekends with her father combined with the parents ability to make these orders work have not only cemented the father and child’s relationship but assisted the parents to move forward and begin to speak to each other.
Mr Y said, when the orders became a reality the mother saw the benefit to the child of having time with her dad and grandmother, and she has been trying ever since to improve her communication with him and she and the father have improved their communication.
Ordering the mother and child to leave, what for them is, a stable and supportive home life, may well negatively impact upon what has been the good work done by each of the parents to improve their communication as the mother may react adversely in such a move.
I say this as it was evident from her oral evidence that the trauma she suffered at the hands of the father is real for her and still raw. Her demeanour and emotion displayed in crying and sobbing while recounting these events and the reasons for her move revealed reactions that may be likened to a form of post traumatic stress disorder. The mother is able to deal with these feelings whilst living in Brisbane however a return to Sydney, a place she describes as escaping from in order to breathe may result in these feelings overwhelming her.
If the mother is overwhelmed the consequence for X may result in a compromise of her mother’s parenting and this would have a negative impact upon the child as the child is primarily attached to her mother. Such a move may significantly disrupt the benefit to the child of her meaningful relationship with her mother and as a consequence her meaningful relationship with her father.
The need to protect the child from harm. This was a relevant consideration when the parents lived in Sydney.
The father’s violence and coercive behaviour towards the mother in the presence of the child posed a real threat to his daughter’s safety and well being. The mother’s conduct in re-establishing the relationship with the father on many occasions exposed the child to further poor behaviours and posed a threat to the child’s well being.
I am now confident the father has changed from the person he was and he no longer uses alcohol. I am satisfied the mother has provided a stable, child focused and happy home for the child with Mr Y since her move to Queensland. Thus the concerns and risks for X evident from her birth are no longer a concern for the child in either parents care.
The wishes of the child are not relevant in this matter due to her age.
The nature of the child’s relationship with each parent and significant others. X has an excellent relationship with each of her parents, her extended families, the mother’s partner, and her sister, Y. She is a fortunate child to have so many people in her life, who wish to be part of her life, love her dearly, and can contribute to her growth.
The insight each parent has into their responsibility of parenthood and their capacity and understanding of the child needs. The mother was careless of protecting the child’s right to a relationship with her father when she denied the child spending time with him for nine months after her move to Queensland. The mother agreed she had not considered the effect on X’s relationship with her dad when she moved to Brisbane at paragraph 21 of the report.
However at paragraph 23 of the report she confirms the child is connected to and has a positive relationship with her extended paternal family, including her father. The mother said the situation is a lot different now, “X does not have to be involved in our issues” as she and the father are not in a relationship and she has realised the benefit to X of having an ongoing relationship with the father.
The mother was adamant in her oral evidence that she would continue to actively facilitate this relationship and the reality is this is what she has done for in excess of six months. The mother has a positive attitude to the father as X’s dad and this augurs well for X’s ongoing relationship with her father. To order the mother to move to Sydney, may well disrupt, if not eradicate, that positive attitude and all the good work that each the mother and father have done may be for nought.
Both parents are now able to put the needs of their child before their own. When younger and together, I could not say that was the case. The father drank alcohol to excess and behaved very poorly. He did not support the family. The mother drank alcohol and may have left the child with the paternal grandmother more than was necessary to satisfy her social needs. However, they are each in a different place, and different people to that which they were at that time, and their daughter’s needs are clearly their priority. The father’s commitment to maintaining a relationship with his daughter is impressive.
I find both parents would support their child’s educational and emotional needs.
The impact of change upon the child. This is, for me, the most difficult and most fraught risk factor to consider. It is the father’s application that will impose the greatest change upon the child’s current well settled arrangement should I make the order he seeks.
I am most concerned that ordering X to be taken away from the home she has known for 18 months, be removed to Sydney with her mother, Mr Y and her sister, to an unknown environment and a home yet to be discovered, a step father and mother with no jobs and in reality putting her mother back into an environment she believes she escaped in order to feel safe and protected would seriously jeopardise this mother’s functioning as a parent, and therefore have a significant and detrimental impact upon the child.
As the family consultant reported, the strength of the child’s relationship with her father may enable her to cope with the reduction in time and the consultant was further strengthened in this opinion when she considered the mother’s proposal the child have 4 periods a year holiday time with the father in Sydney in addition to time at Christmas. The mother proposed the holiday time with the father increase as the child aged.
The most profound issue for the family consultant was:
The difficulty for the mother in returning to Sydney is the stability of the household, which she may not have in Sydney that she has in Brisbane, and this may affect her parenting, and this possibility is unknown.
The father has but himself to remove to Brisbane. The mother has herself, Y, her partner and X. She will be removing herself, not only from the stable home she has lived in, but also the support of Mr Y’s family, who have been instrumental in assisting her at this difficult time in her life.
Skype was an activity the family consultant believed would assist X to maintain her relationship and memory of her father over time and distance and reinforce her relationship with her dad. The child uses Skype to contact her father and this activity is a part of X’s routine.
The mother’s only memory of the father and the relationship with the father is one of trauma. Trauma she and her child suffered at his hands. I accept the mother’s sincerity in needing to escape Sydney and be away from that environment in order to feel safe and to use her words “be able to breathe”. The mother has achieved these goals. Importantly the move to Brisbane has enabled the mother to increase her ability to positively communicate with and have a positive view about the father as X’s father.
I accept, by not making the order sought by the father the child’s time will be reduced with him on a monthly basis however her time over the year will be a similar amount as she will be spending block holidays with him.
There is a cost and difficulty in the child maintaining relationship with her father if she remains in Brisbane which is not in evident if she returns to Sydney. The parents have despite this cost and difficulty not only maintained the child’s relationship with her father but strengthened it. The cost to the mother of re-locating would be a significant impost upon her.
The negative impact upon the mother of requiring her to remove herself, her family, to Sydney after 18 months of living in Brisbane to enable the child to spend five nights or so a fortnight with her father and maximise her relationship with him has the potential to wreak havoc upon X’s stable and child focused life.
Such an order has a high chance of compromising the mother’s feelings of stability, safety and security, her ability to further communicate and improve communication with the father, and her ability to parent not only X, but also Y. All the good work that has been done by the mother and the father to date to improve their communication, so their daughter has a relationship with the father, may well be undone.
I find that the imperative is maintaining X’s stable home with a fully functioning mother and that this factor outweighs the negative impact of the high cost of travel if she remains in Brisbane.
The time the child has spent with her father at great cost to the mother and grandmother has established a strong, connected and attached relationship, which I am satisfied, is sufficiently robust to be maintained at an optimal level and enable X to continue to benefit from a meaningful relationship with her father.
I accept the father will not be able to be involved with his child’s schooling and extra curricular activities on a weekly basis if she is in Queensland and he remains in Sydney. However that deficit does not have the same potential significant negative consequences for X as does the potential disruption of her current stable living arrangement with her mother.
The father may be able to move to Queensland in the future. He is a young man and his future is not set in cement. He is a (occupation omitted). His child is flourishing in the environment the mother has created for her and if he moves to Brisbane he will be able to take part in his child’s life in her home environment.
For all the above and what I find to be the overwhelming balance namely the imperative of maintaining X’s stable home environment with a fully functioning mother outweighs the negative consequences of the child remaining in Brisbane and I find the order in the child’s best interests is that she remain living with her mother in Brisbane.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 29 July 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Costs
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Remedies
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