Kessler and Riley
[2011] FMCAfam 1265
•23 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KESSLER & RILEY | [2011] FMCAfam 1265 |
| FAMILY LAW – Interim parenting orders – relocation. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA, 65DAC |
| AMS and AIF (1999) 24 Fam LR 756 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Barker (2008) 37 Fam LR 461 T & N (2004) 31 Fam LR 281 Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MR KESSLER |
| Respondent: | MS RILEY |
| File Number: | BRC 4281 of 2011 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 4 November 2011 |
| Date of Last Submission: | 4 November 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 23 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Carroll Fairon Solicitors |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | N/A |
ORDERS
UNTIL FURTHER ORDER
That the Mother and Father have equal shared parental responsibility for the child [X] born [in] 1999 including but not limited to:
(a)schooling of the child, including decisions about the type of schooling and the schools at which the child shall attend;
(b)surgery and hospitalisation and medical treatment for any serious injury, illness, condition or disability including attendance of the child for whatever reason upon a child psychologist, counsellor, family therapist or psychiatrist;
(c)decisions about religion and religious instructions and observance by the child;
(d)decisions about the child playing or being involved in a sporting, cultural, artistic or community activity including competition, training or meeting.
That both parties shall be entitled to attend any public or school social, sporting or educational event involving the child, including but not limited to theatre performances, sporting events, school activities and functions, Christmas parties and other special occasions and that both parties:
(a)inform the other party of such events in a timely manner; and
(b)communicate to the other if arrangements are made for the child.
That each parent shall have sole responsibility for the day to day care, welfare and development of the child during the periods when the child is in that party’s care.
That the child shall live with the mother and the father at all times as may be agreed between the parents, and failing agreement as set out in this order.
That the child shall live with the father as follows:-
(a)During school time and from the first weekend in each school term in 2012, for the first weekend in each three week block the child shall spend time with the father from Friday to Sunday, or Monday if a Public Holiday or Pupil Free Day;
(b)During school time and from the first weekend in each school term in 2012, in each six week block the father shall be at liberty to travel to the mother’s location to spend time with the child for one weekend from Friday afternoon to Monday morning, upon the giving of 14 days notice in advance;
That in addition, the child shall spend time with the mother in Townsville for the weekend 25 to 27 November 2011;
That the child live with the mother at all other times.
That notwithstanding orders (5) and (7) above, the child shall spend the Mother’s Day weekend with the Mother and the Father’s Day weekend with the Father irrespective of where the child may be pursuant to these orders.
That for the purposes of the travel referred to in this order:
(a)where reasonably practicable the child be booked on the first available flight after school on Friday afternoon;
(b)where practicable and unless otherwise agreed, the child be booked on a flight that arrives at the mother’s location before 7.00pm on Sunday evening or Monday evening in the event that Monday is a public holiday or pupil free day at the school [X] is attending.
That for school holidays:-
(a)For the December / January school holidays the child will spend the first half of the school holidays with the mother in 2011 and the second half with the father; alternating each year thereafter;
(b)The whole of the Easter school holidays shall be spent with the mother.
(c)The whole of June / July school holidays in 2012 shall be spent with the father.
(d)For the September / October school holidays in 2012 the child will spend the first half of the school holidays with the father and the second half with the mother;
(e)For the purpose of all school holidays, the holiday period will begin on the first Saturday morning of the holidays and shall conclude two mornings before school resumes (and the flights on each day shall arrive at their destination by 2.00pm).
(f)For the purpose of all school holidays the usual weekends which occur during term times, in accordance with Order 5 above shall be suspended.
That the child is to be collected and delivered as follows:- the parents (or their agents) shall attend at the relevant domestic airport and arrange for the child to be checked into or collected from his relevant flight.
That each parent shall be permitted to telephone the child at all reasonable times.
That the Father be responsible for booking and the costs of the child’s travel to Townsville and the Mother be responsible for booking and the costs of the child’s travel to Brisbane.
That each parent notify the other as soon as practicable of any accident, emergency, serious illness or significant injury involving the child.
That in the event that the child requires medical or hospital treatment, the parent then caring for the child will immediately inform the other parent via phone, SMS message or email (in this order of priority).
That in the event that an urgent decision must be made by either parent and the other parent is not able to be contacted after all reasonable attempts have been made, or fails to respond to reasonable requests for information, the parent then caring for the child will make that decision and inform the other parent by the most immediate means possible.
That all decisions concerning any non-urgent medical procedures and treatment and non-urgent medication for the child will be made jointly by the mother and the father.
That this Order hereby authorises:
(a)The child’s school to provide each parent with copies of all school reports and other reports on school progress and behavioural issues and all school circulars, notices, details of all functions, parent-teacher nights and other activities to which parents are invited and school photograph order forms;
(b)The child’s General Medical Practitioner or any other professional associated with the health, welfare, care and development of the child to communicate with each parent and provide them with all such information and documents they may request from time to time regarding the child’s medical health and general welfare, including any diagnosis, proposed treatment or prognosis for the child.
That each parent keep the other parent informed at all other times of all professionals consulted in relation to the welfare, care, health, development and education of the child at all times including but not limited to the particulars of the name, address and contact details of that professional.
That each party hereby irrevocably authorises any person or institution including but not limited to any doctor, carer, teacher, hospital, childcare institution, school and any social, sporting or recreational organisation, to release all and any information, (verbal or in writing) reasonably requested by the other in relation to the child.
That each parent inform the other of their residential address, home telephone number, mobile telephone number and email address and shall notify the other in writing of any change to the same within forty-eight (48) hours of any such change.
That neither party shall denigrate the other or their family to or within the hearing of the child, and ensure that no other person denigrates the parent or their family to or within the hearing of the child.
That neither parent shall discuss these proceedings to or in the presence of the child.
That the parties shall consult each other by first communicating with each other by telephone or in writing or if necessary meeting together to discuss and agree upon decisions concerning matters relating to the child’s long-term care, welfare and development and that neither parent will make a decision in relation to these matters without consulting the other.
That in the event the parties are unable to resolve a dispute by consultation as provided in the preceding paragraph, they shall attend mediation and counselling with either:
(a)A qualified Family Law Dispute Resolution Practitioner; or
(b)A Family Relationship Centre (or some similar organisation).
That in the event the parties are unable to agree on the identity of any proposed mediator or any dispute resolution service then:
(a)The party who first raised the subject matter of the dispute is to submit to the other party a list of not less than 3 potential dispute resolution services or providers;
(b)The other party is to select 1 mediator or dispute resolution practitioner or provider from that list;
(c)The costs of the dispute resolution service or mediator be as agreed between the parties;
(d)Both parties are to attend upon such Family Law Dispute Resolution Practitioner or Service so selected and endeavour to reach agreement in respect of the matters in dispute.
That the parents arrange for the child to be enrolled at both the [B] School and the [T] School for the 2013 school year until this matter is able to be determined on a final basis.
IT IS NOTED that publication of this judgment under the pseudonym Kessler & Riley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 4281 of 2011
| MR KESSLER |
Applicant
And
| MS RILEY |
Respondent
REASONS FOR JUDGMENT
Introduction
Eleven year old [X] is fortunate to have two loving parents who care deeply for him. They have not needed the assistance of a court to make parenting decisions in the past as they have been able to reach agreement about his care. They now need that assistance because
Ms Riley, [X]’s mother has moved to Townsville to be with her husband. She would like [X] to live with her there. [X]’s father,
Mr Kessler wants [X] to remain living in Brisbane. Consistently with their past ability to reach agreement on parenting matters they have been able to agree on what time [X] should spend with the other parent regardless of where he lives.
The court has not had an opportunity to determine the dispute on a final basis and therefore this decision relates to interim arrangements until the court is able to hear the matter in August 2012.
Background
The parties formed a relationship whilst at school in 1997 however they have never lived together as partners. When [X] was born in 1999 the mother was living in Geelong and the father in Sydney. In 2001 the mother moved to Brisbane to continue her studies in [omitted] before eventually joining [occupation omitted]. In 2004 the father moved to Brisbane in order to be close to [X]. He developed his relationship with [X] with the support of the mother. By the time [X] was 6 years of age he was living with both parents in a form of shared care and after a while in a week about arrangement with both parents.
The mother is married to Mr R, also a [occupation omitted]. They commenced their relationship in 2006 marrying in September 2010 although they have had a couple of short periods of separation. Mr and Ms Riley have a daughter [Y] who is 3 years of age and are expecting another child in December this year. Mr R has a 6 year old daughter, [Z] from a prior relationship. [Z] lives in Townsville primarily with her mother but spends regular time with Mr and Ms Riley now that they live in Townsville.
The father is married to Ms P. They have been in a relationship since 2008 and married in October of this year. Ms P has lived primarily in Sydney but is in the process of fully relocating to Brisbane to be with her husband.
In 2008 the mother raised with the father her desire to move to Townsville with [X]. Although the parties have always been able to reach agreement as to the parenting of [X] this issue has been too difficult for them to resolve. They attended mediation in 2008 to try to resolve the disagreement but were not successful. In June this year the mother moved to Townsville and consented for [X] to remain living in Brisbane with the father until the matter could be determined on an interim basis after the preparation of a family report.
The Evidence
In support of his case the father relied on his Initiating Application filed 23 May 2011 and his affidavits filed 23 May 2011 and 2 November 2011. His solicitor also tendered written submissions.
The mother relied on her Response filed 3 June 2011 and her affidavits filed 3 June 2011 and 31 October 2011.
Annexed to the mother’s affidavit filed 31 October 2011 was a letter addressed to both parents from Dr P, Clinical Psychologist dated 28 October 2011.
The parties had jointly retained the services of Mr M, Social Worker and Regulation 7 Family Consultant for the preparation of a family report which was before the court.
Determining interim proceedings is complicated by the inability of the court to determine disputed questions of fact without the benefit of having evidence tested. Fortunately in this case although there were some slight discrepancies between the parties the significant evidence is not in dispute. An important issue is what weight should be given to the evidence of Dr P and Mr M at this stage in the proceedings.
Mr M interviewed the parties, their partners and the child in September this year. His report was released the following month. In the report he concluded that [X] should remain living with his father believing his adjustment to a new environment and new school should he move to Townsville would be less conducive to his welfare.
He observed [X] to be an intelligent boy who spoke happily about both his parents. He indicated that he was missing his sister [Y]. In relation to the child’s views he reported:
[81] Of his views, [X] said “I would rather in some ways to be with Mum cause she has a baby on the way and I’m missing my Mum but living with Mum, I would miss Dad a lot, as much as I’m missing Mum”. He said “I miss my Mum terribly and I’m missing my little sister. She talks about me every day I hear”.
[82] He concluded that he did not know what he wanted to do. He said “I would be unhappy either way because of missing the other parent”. He feels that he can cope with whatever happens, but he does not feel that any outcome is going to be good for him. He likes both secondary schools that have been proposed by his parents, these being [T] School and [B] School.
………
[91] In consideration of what is best for [X], it must be noted that his personal views are split. I do not think that this is due to solely to a desire not to hurt either parent, but rather is a result of evenly based attachments and the recognition of the different benefits that he receives from each parent, due to their respective personalities.
Dr P is a clinical psychologist who has had a therapeutic relationship with [X] since late 2008. The mother gave evidence of the child having had about 16 sessions with her although the father recalled that there had only been two sessions this year initially in May and then on 28 October. Both the mother and father have been supportive of [X] seeing her. Dr P sent a letter to the parents after the October session. This letter was annexed to the mother’s affidavit. I am satisfied that as these are interim proceedings it is appropriate to receive and have regard to this correspondence even though it did not come before the court by way of direct affidavit evidence from Dr P. The letter purports to advise the parents of those parts of [X]’s sessions with her that he did not specifically request confidentiality. It provides a good source of information of the views the child has expressed to Dr P in May and October and contrasts with the views expressed by him to Mr M in September.
In her letter she recorded that in May [X] expressed a wish to complete this school year in Brisbane and then think through what he wanted to do. Dr P was of the view that at that time he was quite neutral about where he wanted to live believing he could live with either parent. However in the October session there had been a marked shift in his views. She recorded him as being quite clear in his desire to finish the school year in Brisbane and then move to Townsville. He said he wanted to live in Townsville because most of his family lives there; he misses his sister [Y] and wants to live with his new baby sibling. He said that “It has been painful not being with my Mum”.
It would seem from Dr P’s letter that this boy is feeling the pressure of the conflict between the parents. He also raised with the psychologist some concerns about conflict in the father’s household that has caused him to hide in a wardrobe on occasion. There was no evidence before the court on this issue other than what Dr P recorded in her letter. I do not propose to make any findings in relation to this, given these are interim proceedings, other than to note that should the child’s report to the psychologist be accurate there is the potential for significant compromising of his emotional health if it was to continue.
I propose to give significant weight to both the report of Mr M and the letter from Dr P. Whilst both documents have been prepared from a different perspective, one a forensic report the other a therapeutic letter of advice, they both assist the court by providing some insight as to the child’s views at different points in time and give some indication of the burden borne by him as a result of his parent’s inability to resolve their disagreement.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[1] and must consider the best interests of the child as the paramount consideration.[2] In AMS and AIF his Honour Justice Kirby held: [3]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[1] S.60B
[2] S.60CA
[3] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of the child is met by both parents having a meaningful involvement in their child’s life; that the child is protected from physical or psychological harm; that he receives adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
a)Children have a right to know and be cared for by both their parents;
b)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children; and
e)Children have a right to enjoy their culture.
[4] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[5] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[6] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[7]
[5] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[6] S.61DA
[7] S.61DA(2) & (4)
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[8] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[9] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[10] A major long-term issue in relation to a child means an issue:
[8] S.61B
[9] S.61C
[10] S.65DAC
about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.[11]
[11] S.4
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the court finds that type of arrangement is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents. Again the court must be satisfied this type of arrangement is both in the child’s best interests and reasonably practicable.
This legislative approach must be followed in all parenting cases.[12] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[13] In Taylor v Barker[14] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[12] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[13] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[14] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[15]
[15] ibid at page 480
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
Presumption of Equal Shared Parental Responsibility
There is no evidence to suggest that the presumption of equal shared parental responsibility should be displaced in this matter. Further both parties agree that they should equally share their parental responsibility for [X]. I will make an order accordingly.
Consideration of Equal Time or Substantial and Significant Time
Having indicated that I will make an order for the parties to equally share parental responsibility I am required to consider whether it would be in the best interests of this child and reasonably practicable for him to live in an equal time arrangement with both parents or a substantial and significant time arrangement if an equal time arrangement is either not in his best interest or reasonably practicable.
For virtually half of his life [X] has lived with his parents in a shared care arrangement. Neither party submitted that this arrangement has not benefited the child and it is clear from the report of Mr M that this child has secure attachments with both parties. I note that until he was six years of age he lived primarily with his mother. Since June of this year he has lived primarily with this father but has been spending regular weekend time with his mother notwithstanding the geographical distance between the two households. This weekend time has seen him travel to see his mother for 3 weekends one month and 2 weekends the following month. Both parties agreed that this amount of travel was not sustainable for him in the long term.
The parties respect each other as parents and have a history of being able to communicate effectively on matters relevant to [X]’s welfare, reaching compromises when necessary and successfully implementing a shared care arrangement.[16]
[16] See S.65DAA(5) and T & N (2004) 31 Fam LR 281
If it were not for the geographical distance between the parent’s respective homes I would find that it is in [X]’s best interests for him to live with his parents in an equal time shared care arrangement consistent with his experience over the last 5 or 6 years until June of this year. That arrangement however is not reasonably practicable now the parties are living so far apart.
In relation to whether the child should spend substantial and significant time with the parents I note the parents have reached an agreement as to the arrangement that should be put in place for [X] regardless of where he primarily lives. This arrangement would provide that he would live with the non-primary carer for the first weekend in each three week block from Friday afternoon to Sunday afternoon but extended to Monday if it is a public holiday or pupil free day. The parties also agree that the other parent could travel to the child’s primary living location on another period upon the giving of 14 days notice.
There is also provision for the child to spend school holidays with the non-primary carer for half of the December/January school holidays, the whole of the June/July school holidays with the non-primary carer, the whole of the Easter school holidays with the mother and with the parties to share equally the September/October school holidays.
Because the parties have reached agreement in relation to the time to be spent with the non-primary carer I am satisfied it is not necessary for me to further consider the provisions in relation to substantial and significant time other than to say that I am satisfied that that arrangement would ensure the child maintains and develops a positive relationship with his non-primary carer and accordingly I would be satisfied it would be in his best interests.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
I am satisfied that the child has a close and loving relationship with both parents. Mr M observed that [X] had developed a sound relationship with both parents, had evenly based attachments to them and held them both in high esteem. The parents’ mutual commitment to [X] has no doubt been largely responsible for this positive outcome.
The mother’s move to Townsville however has potential consequences for the child’s relationships with his parents. Clearly he will spend less time with one of his parents. Whilst a child’s relationship, especially for a child who has already established a strong and positive relationship with both parents, need not necessarily be detrimentally affected by spending less time with a parent it remains an important consideration. Having said that however, I would respectfully adopt the view of Brown J in Mazorski v Albright[17] where her Honour said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[17] (2008) 37 Fam LR 518 at 526 [26]
If [X] was much younger and had not formed a close relationship with his father any significant move such as that proposed by the mother would have greater consequences for his ability to fully develop the father son relationship. In this case however he has developed that strong relationship as a result of the mutual commitment by both parents to it. Having established that relationship and given his age he is likely to maintain it even if he is not living with his father to the same extent as he is now. Likewise his relationship with his mother would also be maintained if he was living primarily with his father.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
Notwithstanding the mention in the letter from Dr P of conflict in the father’s home to which I have already referred, I am satisfied that there is no evidence of this child having been exposed to abuse, neglect or family violence. This issue might be enlivened at a final hearing if there is more to the issue raised in the letter.
The additional considerations: s.60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
This is an important consideration for the Court given [X]’s age. Although he is about to turn 12 years of age his views in themselves will not be determinative of the matter and must be considered along with all of the other considerations. Having said that I am satisfied that significant weight should be afforded to his views. That task however is complicated by the fact that his views appear to have shifted over time.
In May of this year he appears to have wanted to stay in Brisbane until the end of the school year and then decide what he wanted to do. Dr P was of the view that at that time [X] was quite neutral about where he should live. In September he indicated to Mr M that he did not know what he wanted to do although he did indicate a slight preference to be with his mother as he was missing her and his sister. He said he would be unhappy either way as he would miss the parent he was not living with. By the following month, when he spoke to Dr P, [X]’s views appear to have firmed somewhat to wanting to live with his mother.
I have not had the benefit of having the evidence of Mr M and Dr P tested however I am satisfied that [X] would be more familiar with
Dr P and therefore more inclined to be open about his feelings. Although some of the language he is recorded as having used would suggest he has been influenced by adult discussions I am satisfied he has formed a preference to live with his mother in Townsville.
Both professionals found [X] to be mature and intelligent. Their reports however suggest that he maybe worrying about the issue and trying to problem solve himself – that is not his responsibility. He may also be influenced by his mother’s sadness. The mother conceded that she may not have been able to shield him completely from her disappointment in agreeing to have him live primarily in Brisbane this year.
I find that at this stage [X] wants to live in Townsville. Whilst all of the matters raised above may have influenced his decision I am of the view that a significant influence is likely to be that he is missing his sister and mother.
The nature of the relationship of the child with each of the child’s parents and other persons
Whilst ultimately this issue will be of particular significance at the final hearing I am also satisfied that it is an important consideration at this interim stage. I have already found that he has a close and loving relationship with both parents and I am also satisfied that he would have a close relationship with the partners of each parent. The observations of Mr M would appear to confirm this and the letter from Dr P would suggest it.
The mother was particularly concerned that although the child had a positive relationship with both parents there was a risk that his relationship with his sister [Y] and the baby due in December would be detrimentally affected by him living primarily with the father. Until June of this year [X] had lived in the same household as [Y] every second week for all of [Y]’s life. Both
Mr M and Dr P record [X] as missing his sister. Sibling relationships are vitally important.On this issue the mother’s proposals would be preferred as they are more likely to enable [X] to further develop and maintain his relationship with [Y] and develop a relationship with his new born sibling. Although under the father’s proposal [X] would see these children during school holidays and every third weekend I would be concerned that unlike an already established parent child relationship a sibling relationship would not develop beneficially for the child to the same extent as it would if he were to live in the same household as the other children.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
I am satisfied that both parties are supportive of [X]’s relationship with the other parent and that they will continue to encourage that close relationship and have the means and commitment to do so.
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
When a parent relocates there can be profound consequences for a child. If the child moves with that parent he will have to face being away from the other parent; commence a new school; adjust to a new environment; develop new friendships; and cope with travel. If a child remains with the non-moving parent he will also have to adjust to being away from a parent and siblings and deal with the effects of travel. These consequences can in some children be a tough ask.
It is hard to predict how a child will cope with these consequences. In [X]’s case I am satisfied that he has been missing his mother and sister in particular since they have been living in Townsville. This is the case despite the extensive travelling he has undertaken to be with his mother. Both parents agree that that sort of travel is not sustainable in the long term and propose a reduction to every third weekend. This is more child focused but the effect will be that wherever the child lives he will see less of the other parent.
Under the father’s proposal the child will continue at his current school until he completes his primary schooling at the end of next year. The mother would enrol him in [T] School for year 7. It would seem that this was a factor taken into account by Mr M in recommending against the child’s move to Townsville. [X] has told Dr P however that he wants to start the 2012 school year in Townsville.
The father was also concerned that any interim arrangement not be an experiment to see how [X] copes and feels after a period of time in Townsville. This is an important consideration as there is potential for even more disruption to the child if he moves to Townsville in the interim and commences a new school only to return if final orders see him living primarily with is father in Brisbane. If that were to happen he would commence the 2013 school year in a new school in Brisbane as he would then enter High School. His father has proposed [B] School if that is the case however the mother is concerned about him attending a same sex school.
No matter where the child lives in the interim he will be faced with adjustments. The risk of further changes if he is moved to Townsville now only to be returned to Brisbane after a final hearing weighs in favour of the father’s proposal. However the child has already experienced almost half a year of living away from his sister, mother and her partner and appears to be missing them. Relieving him of this ongoing loss would weigh in favour of the mother’s proposal although there is no doubt he would then experience a sense of loss from being away from his father.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Despite the obvious financial consequences of the move in relation to the child’s travel both parties are committed to ensuring he visits the other parent regularly. I am confident this will continue. The parents’ proposal of reducing his travel is also child focused.
The capacity of each of the child’s parents and any other person, including any grandparent or other relative of the child, to provide for the needs of the child including emotional and intellectual needs
I have no concerns as to either parent’s ability to provide for [X]’s needs in any way.
The mother proposes to take maternity leave for the next 12 to 18 months which would mean she would be more available for [X] if he has difficulties adjusting to living in Townsville and a new school.
The maturity, sex, lifestyle and background of the child and of the child’s parents
The father identifies as Tamil and embraces his culture and heritage. This will be an important consideration at the final hearing. I note the mother is supportive of [X] embracing his heritage.
The child’s right to enjoy his or her culture if the child is an Aboriginal child or a Torres Strait Islander child and the likely impact on any proposed parenting order
The child is not of Aboriginal or Torres Strait Islander heritage.
The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents and the extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent s.60CC(4)
I am satisfied both parents have been committed to [X] and have fulfilled their responsibilities in parenting him.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
This is not relevant in this case.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This is an important consideration but more appropriately dealt with at a final hearing.
Discussion
This is an evenly balanced case made more difficult in that I have not had the benefit of having the evidence tested. Although I would have preferred to have heard this matter by way of final hearing I am satisfied that I have sufficient evidence to determine the matter on an interim basis.
The father urged me not to experiment with [X]’s placement by changing the current arrangements until I can determine the matter after a final hearing. Whilst there is much merit in keeping a long standing arrangement in place until a matter can be properly explored other considerations must also be taken into account. Changing a child’s home environment and school and reducing a child’s time with a parent can risk a child’s sense of stability. At the same time a child’s stability can also be compromised if a child is ‘missing terribly’ another parent and sibling.
When I weigh the considerations referred to in this judgment and take into account the professional opinion of Mr M and the observations of Dr P I find that it would be in this child’s best interests for him to live primarily with his mother. Mr M came to a different conclusion. He appeared to put significant weight on the risks associated with a child’s adjustments to a new environment and school. Whilst I don’t reject the importance of those considerations and have also given them considerable weight I am of the view that more weight should be given to the child’s views and his relationships with his mother and siblings.
Although I am satisfied he will miss his father in a similar way to how he has missed his mother I am also satisfied that his relationship with his father is strongly established and consequently will be maintained even though he will not see his father as often. A move to live primarily with his mother will assist him to overcome his feelings of missing her and his sister and will enable him to develop a relationship with his soon to be born sibling. Whilst [X] would likely maintain his relationship with his mother if he lived primarily with his father because that relationship is also strongly established, his relationships with is siblings may not develop to his benefit if he is not living primarily in the same house as them.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Date: 23 November 2011
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