Kirke and Mason
[2009] FMCAfam 874
•19 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIRKE & MASON | [2009] FMCAfam 874 |
| FAMILY LAW – Children – interim parenting orders – unilateral relocation by mother – father seeking that mother return with 17 month old child. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 Campbell & Spalding (1998) Fam CA 66 |
| Applicant: | MR KIRKE |
| Respondent: | MS MASON |
| File Number: | PAC2125 OF 2009 |
| Judgment of: | Halligan FM |
| Hearing date: | 14 August 2009 |
| Date of Last Submission: | 14 August 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 19 August 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Brown |
| Solicitors for the Respondent: | Ms Peacock |
ORDERS
Pending further order, the parents shall have equal shared parental responsibility for the child [X] born in 2008.
Pending further order the child shall live with the mother.
The mother shall return the child to live in the Sydney metropolitan area no later than 16 September 2009 and shall not thereafter move the child’s place of residence outside the Sydney metropolitan area pending further order.
Until the mother returns the child to live in the Sydney metropolitan area, the father shall spend time with the child in Tasmania from
10.00 am to 3.00 pm or such other times as may be agreed on any day he is in Tasmania, up to a maximum of three days per week, provided the father gives the mother or her solicitor not less than seven days written notice of his intention to spend time with the child.
Until the mother returns the child to live in Sydney, if the mother visits Sydney she shall bring the child with her and shall give the father as much notice as possible of her visit. The father shall spend time with the child during any such visit to Sydney from 10.00 am to 3.00 pm or such other times as the parties agree on any day he elects to spend time with the child up to a maximum of three days in any week.
On the mother returning the child to live in the Sydney metropolitan area and pending further order, the father shall spend time with the child:
(a)Until the expiry of eight weeks after the child’s return to live in Sydney, from 10.00 am to 3.00 pm on each Thursday and Sunday;
(b)From the expiry of eight weeks after the child’s return to live in Sydney, from 9.00 am to 5.00 pm on each Thursday and Sunday.
IT IS NOTED that publication of this judgment under the pseudonym Kirke & Mason is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC2125 OF 2009
| MR KIRKE |
Applicant
And
| MS MASON |
Respondent
REASONS FOR JUDGMENT
Introduction
In mid April 2009, the mother of then 13 month old [X] implemented her unilateral decision to move with the child from the Sydney metropolitan area to the Hobart area. On 8 May, [X]’s father filed an application seeking orders inter alia for the child’s return to the Sydney area. The mother opposes the father's application. This is the determination of the interim aspects of the parties’ applications.
The father sought interim orders in his application that the mother return with [X] to Sydney, that the parents have equal shared parental responsibility for the child, that [X] live with him from 5.00 pm Wednesday to 9.00 am Friday each alternate week and from 5.00 pm Wednesday to 5.00 pm Sunday each other week and otherwise live with the mother. The mother in her response sought interim orders that [X] live with her in the Hobart area, that the parents have equal shared parental responsibility and that [X] spend time with the father as agreed between the parents.
During the hearing of the interim applications, the father altered the time he sought to spend with the child up to the child’s second birthday. He proposed that until then, he spend time with the child four days per fortnight between 9am and 5 pm, being each Thursday, and on both Saturday and Sunday of each alternate weekend. If the mother was not ordered to return the child to Sydney, the father proposed that he spend time with the child one weekend per month in Tasmania on
3 consecutive days, being Saturday, Sunday and Monday from 9.00 am to 5.00 pm, and that he spend unspecified time with the child in Sydney whenever the mother comes to Sydney.
Also during the hearing, the mother clarified her position about the time the father should spend with [X] if she remained in Tasmania, proposing that the father spend time with the child every third weekend on Saturday, Sunday and Monday between 9.00 am and 11.30 am and between 2.30 pm and 5.00 pm. The mother also proposed that she travel to Sydney during her other child [Y]’s school holidays 3 times per year and that [X] spend time with the father consistent with his availability. The mother also proposed during the hearing that if she was ordered to return to Sydney, [X] live with her and spend time with the father each Thursday and Saturday for 4 hours at times to be agreed.
Background
The father is aged 43, the mother 39. They cohabited in the Sydney metropolitan area from March 2007 at the latest, until October or November 2008. [X] was born in March 2008.
The mother has another child unrelated to [X]’s father, [Y] who is 11. [Y] lived with the parties during their cohabitation and continues to live with the mother.
The father has another child unrelated to [X]’s mother, [Z] who is 3. [Z] lives with his mother in Melbourne. The father said he spends short periods of time with [Z] once every four to six weeks. The mother suggested it was at about half that frequency.
At separation, the father left the parties’ shared home. The mother remained living in that home until she relocated to Tasmania in
April 2009. From separation until the mother travelled to the Northern Territory in March 2009, the father continued to pay the rent on the former shared house of $530 per week, the phone and internet, and the cost of a cleaner. From early March to May 2009, the father paid child support of $300 per week, and from May 2009, he has paid $210 per week. He pays a similar sum in child support for his other son [Z].
The evidence
Child care before separation
It is common ground that the mother has been [X]’s primary carer from birth, taking time off work around the time of his birth to care for him, and breastfeeding him since his birth. It is far less clear what may be agreed or undisputed as to the father's involvement with the child.
There is an issue between the parties whether the father from [X]’s birth has worked a four day week to be available to be more involved with the child, as the father asserts, or whether the father worked long hours five days a week and prioritised his work over his parenting responsibilities, as the mother asserts. I cannot resolve this issue without cross-examination of the parties.
However, whatever his working hours, the father gave evidence of specific tasks he performed in assisting the mother in the care of [X], including bottle feeding until the child was six months old, bathing, nappy changing, nursing him when sick and when he had two operations to rectify a tied tongue, massaging him, taking him to medical and baby health centre appointments on a few occasions, playing with him including swimming with him, reading stories to him, and preparing and feeding him solid food when he commenced on solid food.
The mother's evidence as to the father's involvement with the child, as with some other significant issues, is marked by vague or general comment, opinion and conclusion. She said that the father had “limited involvement with [X]’s care”, and asserted that he “is an inexperienced parent unaccustomed to feeding, bathing, arranging appointments, clothing, supervising and caring for social and intellectual needs of his children”. She also asserted that the father “has not been actively involved in parenting [X] since [X] was born”. The mother said she was responsible for caring for [X] at the time of his operations for tied tongue. The father said he was present, and held the child during the procedure on each occasion. The mother said that [X] is on “limited solids”. That is not inconsistent with the father's assertion of having prepared and fed the child solids.
Thus, other than in relation to the father's involvement during the procedures the child underwent for tied tongue, it is not at all clear whether the mother disputes what the father said he did for [X]. While in the absence of cross-examination of the witnesses the court cannot prefer one version of disputed facts over another, the court is entitled to accept evidence of one party unless it is contradicted by evidence in the other party’s case. The father has given evidence of specific things he has done for the child and the mother has not, and nor has she disputed the things the father said he did for the child with one exception. I therefore accept and find that the father performed the child care tasks he said he did, other than at the time of the procedures for tied tongue.
Child care after separation
There is an issue between the parties as to the extent of the father's involvement with the child after separation. The father said he has continued to work a four day week, the mother said he has always worked five days a week.
The father said that from separation until March 2009, he had the child on his weekday off, taking the child to the mother when necessary for breastfeeding, and otherwise playing with the child, taking the child to play group, swimming with the child, or visiting friends. He said he also spent time with the child from around 7.00 am to 8.30 am one or two mornings a week, and unspecified time on unspecified occasions after work. These before and after work times were at the former shared home. He said he also spent time with [X] for a few hours on either Saturday or Sunday each weekend. He also said the child’s paternal grandmother baby sat the child at the university where the mother worked about once a fortnight.
The mother said that after separation and until she relocated to Tasmania, the father spent time with the child for three to four hours once a week at her work. If the father worked Monday to Friday every week, as the mother asserted, for the father to have done this the mother must have worked on weekends. Neither party gave evidence of the mother's hours of work or the days she worked.
It is thus common ground that the father spent time with the child after separation for three to four hours once a week. I cannot at this interim stage of the proceedings resolve the issue whether the father spent more time with the child.
The father said that in March 2009 with his concurrence the mother went to the Northern Territory with the child for work connected with the mother's university study.
After the mother returned from the Northern Territory, the father said she asked him to mind the child on 2 April 2009, which he did. The paternal grandmother saw the child on 10 April 2009, and the father spent “some time” with the child the following day. The mother and child travelled to Tasmania the same day. The evidence of the time the father and paternal grandmother spent with [X] in early April not apparently being in dispute or inconsistent with the mother's evidence, I accept it.
Since the mother moved to Tasmania, it seems to be agreed that the father has seen the child during the four visits he has made to Tasmania and during the one visit the mother has made to Sydney. On each visit, it seems the father has spent time with the child on more than one day.
There is an issue about the circumstances surrounding the father's time with the child in Sydney. The father's evidence is that in late May, when he learned that the mother was coming to Sydney on 6 June 2009, he spoke to the mother about spending time with [X] on both the Sunday and Monday (public holiday). He said the mother refused, and after further attempts to negotiate time with [X], the mother told him she was no longer coming to Sydney that weekend. He said that at 9.30 am on Saturday 6 June, he received a text message from the mother advising that she had arrived in Sydney and asking if he wanted to see the child on the Sunday. The father changed family arrangements he had made following the mother's advice she was not coming to Sydney on the weekend, and saw [X] on the Sunday with his mother for three to four hours. The mother asserted that on her visit to Sydney in June, the father had the child for approximately four hours on three separate occasions, although he had his mother care for the child for half of one of these periods due to work commitments.
The mother was critical of the father for having his mother care for the child on this occasion, accusing the father of prioritising his work instead of spending time with [X]. It is entirely appropriate and beneficial for the child to have the opportunity to spend time with his paternal grandmother and have the opportunity to develop his relationship with her. As related by the mother, I do not accept that this incident warrants any criticism of the father. This was but one instance of the mother making criticisms of the father that appeared petty or unjustified.
The mother failed to provide any evidence of the child’s daily sleep and feeding routine. With the concurrence of the father, I accepted a statement of facts on these matters from the mother's legal representative during submissions. With the father's concurrence I take this information into account as if it were given as evidence. I note that the father is not in a position to agree or disagree that this is the child’s current routine.
The child usually awakes in the morning between 6.00 am and 6.30 am and is breastfed. He is breastfed again at about 9.30 am, when he has a morning sleep. He may or may not have a breastfeed at lunchtime, that is, at about 1.00 pm. He is breastfed again between 3.00 pm and 4.00 pm when he has an afternoon sleep. His final daytime breast feed is between 6.00 pm and 6.30 pm, when he goes to sleep for the night. During the night, he wakes for two more breastfeeds.
The mother intends to breastfeed [X] until he is two, that is, for about another seven months. She asserted that the child is only on limited solids, which the father denied, stating the solid food that the child ate when spending time with the father in June 2009. I cannot resolve this factual controversy at this stage, when there has been no cross-examination. However, common sense would suggest that as the child, who both parties say weighs 14 kg, gets older and approaches two years of age when the mother intends weaning him, the child’s intake of solid food will be increasing.
The mother's relocation to Tasmania
The mother said that after separation, living as a single parent in Sydney became “more of a financial strain than it already was when (the father) and I were living together”. The mother said she then began to consider a move to Tasmania, apparently for the dual reasons of cost of living and the presence in Tasmania in the Hobart area of her two married brothers and their families and her grandmother. The child’s maternal grandmother is deceased and the maternal grandfather lives permanently in the Philippines. The mother said that she “could not financially or emotionally afford to continue to live in Sydney” with her two children.
The father said that the mother first advised him she had made a decision to move to Tasmania on 2 April 2009, shortly after she returned from the Northern Territory. I do not understand this to be the first time the mother's preference to move to Tasmania was raised with the father, but this is the first occasion on the evidence the father was advised that the mother had made a decision to relocate.
The father's unchallenged evidence is that he objected to the mother moving with the child to Tasmania, that the mother ultimately told him she was going to Tasmania for a two week holiday and would return on 25 April, with which he agreed, and that on 23 April 2009 the mother told the father from Tasmania that she did not want to return to Sydney. The father maintained his opposition to the relocation. The mother's elder child [Y] commenced school in Tasmania on 20 April 2009.
I find on this evidence that the mother unilaterally relocated with the child to Hobart knowing the father objected to the move on the basis it would seriously inhibit the time he could spend with the child. I also find that the mother misled the father into believing she was only going for a two week holiday when she in fact had no intention of returning.
On moving to Tasmania, the mother and her two children first lived with one of her brothers. She has since moved to her own accommodation.
The father's proposals
The father lives in a four bedroom rented house. He said in his first affidavit, sworn on 5 May 2009, that this was a temporary arrangement and that he did not have a room and bed for [X] there. He said he was then seeking a “permanent residence” sharing a four bedroom home in the eastern suburbs of Sydney with friends who have “children”, although only one 18 month old girl was specifically mentioned. He said the home he aspired to would have a room for the child to stay in. The friends with whom he hoped to share this home had an “insignificant” relationship with [X]. However, in his second affidavit, sworn on 12 August 2009, the father said he still lives in the temporary accommodation and that he hopes to buy a home and has obtained a loan approval to do so. Where or when the father might be moving to more suitable accommodation is not disclosed. Nor did he explain why the prior prospective accommodation had not materialised in the three months between affidavits.
The father said he earns approximately $120,000 per annum. The mother asserts he earns about $140,000. He is available to care for the child when not at work, that is, evenings and all weekend. If he in fact is working a four day week, he is also available on one weekday per week as well.
It was not stated explicitly in the father's evidence how he proposed [X] would be cared for while he was at work under the proposal in his application, that is, assuming he is working a four day week, for one weekday per fortnight. The father said that the paternal grandmother had looked after [X] in the past and is available to do so in the future. The paternal grandmother did not swear an affidavit to indicate her availability and agreement to be part of his child care proposals, but this point was not criticised in the mother's case. The mother inferred the father would seek the assistance of his mother as necessary, and addressed the father's proposals on that basis.
The father's initial proposals that [X] live with him for six nights per fortnight would have necessitated [X] being immediately weaned. Nowhere in his affidavit evidence did the father acknowledge or address this. The father pressed his initial proposals until well into his submissions, even though he had no suitable accommodation to have the child overnight, and gave no evidence of when or how he would obtain suitable accommodation.
Ultimately the father's primary proposal became that on the mother and [X] returning to Sydney, he spend time with [X] on four days per fortnight from 9.00 am to 5.00 pm until [X] turns two, then spend time for six nights each fortnight as in his original application. This was said to take into account the child’s daytime breast feeding routine as outlined by the mother. Based on the mother's proposals, and allowing for the lunch time breastfeed to be foregone on the days [X] spends with the father, this seems a viable alternative without unduly interfering in the child’s suggested breastfeeding pattern. However, under the father's ultimate primary proposal, the uncertainty about the father's accommodation remains an issue from when [X] turns two.
In relation to the inference that the father would have the assistance of his mother to care for the child when he may be at work, the mother stated that the paternal grandmother “is elderly and would have difficulty lifting [X]”, and that she is “certain (the paternal grandmother) would not feel confident caring for a young active boy”. The basis for these opinions was not stated. She said the paternal grandmother “is in her 70’s”. The father said his mother is 69, works as a part time [omitted], and plays an active role in the lives of her four other grandchildren who live locally. It was the father's case that his mother had cared for [X] before the mother moved to Tasmania.
As mentioned, the paternal grandmother did not give evidence. In the circumstances, I cannot resolve the issue about the paternal grandmother’s ability or confidence to care for the child alone.
The father's position is that his moving to Hobart is not a realistic option. He said he has no connection with Tasmania, having his family, friends, job and all important aspects of his life in Sydney.
In fact, while the father's mother lives in Sydney, one of his two brothers lives in Newcastle and his other brother lives in New York. He has seven nieces and nephews aged between six months and five years, four of whom, aged five, four, three and eight months, live with his brother in Newcastle. [X]’s involvement with his extended paternal family in Newcastle has been “intermittent”. The father said they have not seen [X] since November 2008.
If the child remains in Tasmania, the father proposed spending time with the child one weekend per month in Tasmania from 9.00 am to 5.00 pm on Saturday, Sunday and Monday, and that he spend unspecified time with the child in Sydney whenever the mother comes to Sydney.
The mother's proposals
The mother lives with the children in a three bedroom home. Each of her children has a room. The mother's tenure in the home is not disclosed.
The mother is a student. Her income totals about $40,500 per annum from Centrelink benefits and child support.
The mother says both her children are well settled now in Tasmania, and that [X] attends a play group there.
She has two brothers and their families, including three nieces and nephews aged from six to three, living in the Hobart area, as well as her grandmother. The mother sees one of her brothers several times a week and the other less frequently. The mother plays hockey once a week and one of her brothers and his wife mind [Y] and [X] for her while she plays. The other brother has a farm, which the mother, [Y] and [X] visit.
The mother's initial proposal was for the father to spend time with [X] as agreed between the parents, in Tasmania on occasions the father visits Tasmania and in Sydney on occasions the mother visits Sydney. When pressed for greater specificity about the time she suggested the child should spend with his father if he remained in Tasmania, the mother proposed every third weekend on Saturday, Sunday and Monday between 9.00 am and 11.30 am and between
2.30 pmand 5.00 pm.
If required to return to Sydney, as mentioned the mother proposed that the child spend time with the father each Thursday and Saturday for
4 hours at times to be agreed. The inference from this proposal is that despite the child’s breastfeeding regime, and despite the mother's proposal that the child be away from her for no more than two and a half hours at a time if she remained in Tasmania, an absence from the mother of four hours would be appropriate.
The applicable law
The proceedings fall to be determined under Part VII of the Family Law Act 1975. The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about [X], so s.65DAB is not relevant.
In determining what parenting orders should be made, the child’s best interests are the paramount consideration (s.60CA). In determining what is in the child’s best interests, the court must consider the primary and additional considerations set out in s.60CC(2) and (3), including the matters set out in s.60CC(4) and (4A). The objects of Part VII and the principles underlying those objects contained in s.60B provide the context in which the factors in s.60CC are to be examined, weighed and applied in the individual case (Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9).
Under s.61DA a rebuttable presumption is to be applied that it is in the child’s best interests for the parents to have equal shared parental responsibility for the child. If the court is to make an equal shared parental responsibility order, s.65DAA requires the court to sequentially consider the options of an equal time parenting arrangement or a substantial and significant time parenting arrangement.
Assessment of primary considerations (s.60CC(2))
Only the first of the primary considerations, the benefit to the child of having a meaningful relationship with both of the child’s parents, is relevant in this case.
The father said his relationship with [X] is meaningful. The mother said [X]’s relationship with the father is not meaningful, but she hopes it will become meaningful. She suggested that her proposals will enable it to develop into a meaningful relationship.
There is an issue between the parents as to whether at [X]’s young age it will be possible for the father to maintain or develop a meaningful relationship with [X] if the child remains living in Tasmania.
The mother did not concede that the relatively less frequent opportunities for [X] to spend time with the father if he remained living in Tasmania was relevant to the development of a strong, enduring and meaningful relationship between father and son. However, with a child so young, there are clearly developmental issues relevant to any consideration of how such a relationship may be nurtured. The ability of such a young child to recollect the father from visit to visit is less than that of an older child, and this must impact on the accumulated memory and knowledge of the father on which a meaningful relationship must be built.
Assessment of additional considerations (s.60CC(3))
I will omit any reference to the additional considerations that are clearly irrelevant.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The father said both parents now have a “close” relationship with the child. The mother described her relationship with [X] as “close, loving and meaningful”. I infer from the fact the mother has been the child’s primary carer since birth that his primary and strongest attachment is to the mother.
The father described his relationship with [X] as “meaningful” and “good and close”. The mother described the child’s relationship with the father as “good” and “continuing to develop”, although she did not consider it to be “meaningful”. She made the following statements about the father/child relationship-
·while the child does recognise his father, “it does not go much beyond that recognition at this stage”;
·given that the child had only ever spent short periods of time with the father, she did not think the child is aware of his relationship with his father;
·the child does not miss or look for his father when he is not there;
·she has “not observed a loving, connected relationship”; and
·“[X] did not have a strong, dependable relationship with his father when we were living in Sydney”, and living in Tasmania has not changed that relationship.
It is unclear how these statements are to be reconciled with her statement that the father/child relationship is “good”.
The evidence does not enable me to make any qualitative assessment of the child’s relationship with the father. A relationship does exist, there is no evidence to suggest it is in any way a negative or harmful one, and I am satisfied that it is an appropriate foundation on which to build or continue to build a meaningful relationship from which the child may benefit in the short, medium and long term.
The father said he believed it important for [X] to have a close relationship with [Y]. The mother said the siblings have a very close, loving sibling relationship. This appears not to be in dispute, and I accept the mother's evidence.
The father described [X]’s relationship with the paternal grandmother as “close”, while the mother described it as not significant and not close, even though the child according to the mother spent time with the paternal grandmother before the relocation to Tasmania about once a month. The mother said that “[X] has a relationship with his grandmother in that he to some extent recognises her but not a close relationship”. I am unable to make any qualitative assessment of the child’s relationship with the paternal grandmother. A positive relationship exists, the future development of which would be likely to benefit the child.
[X]’s relationship with his uncle, aunt and cousins in Newcastle is unlikely to be significant, considering the child’s age and the fact he has not seen them since November 2008.
The mother's evidence of [X] having developed a close relationship with his maternal uncles, aunts, cousins and great grandmother since moving to Tasmania in April 2009 seems not to be in issue, and I accept it. The mother said her brothers “are great male role models for [X]”.
The mother's warm descriptions of the relationships [X] had developed with his maternal extended family since moving to Tasmania in April are in stark contrast to the at best tepid descriptions of [X]’s relationship with his father and paternal grandmother. As mentioned, the evidence at this stage does not permit of any objective qualitative assessment of the child’s relationships with his father and paternal grandmother. However, it is troubling in my view that on the one hand the mother extols the relationship [X] has been able to develop in the past four months in Tasmania through regular, frequent interaction with her siblings and their families, but on the other suggests that the limited relationship she said the child has with the father can develop into an appropriate and meaningful one through the relatively far less frequent, less regular contact with the father that her proposals entail.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
and
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Sections 60CC(4) and (4A) are relevant when considering both these considerations, which I will consider together.
The father submitted that the mother's unilateral move to Tasmania and the difficulty he said he had arranging time with the child in early June when the mother came to Sydney indicate both a lack of willingness on the mother's part to facilitate and encourage a close relationship between father and son, and a poor attitude to her responsibilities as a parent of [X]. I cannot make any findings about the June Sydney visit. However, the mother’s unilateral move to Tasmania over the father's objection and through the use of subterfuge reflects poorly on the mother. The mother's actions have precluded the father from participating is a very significant decision about the child. While the mother asserted she needed to move through financial necessity, there is no evidence to demonstrate that financial necessity, and hence there is no objective evidence to justify the mother's unilateral action.
The mother asserted that the father had been and continued to be more interested in his work and his career than in spending time with [X]. Among other things, the mother stated that the only times the father had visited [X] in Tasmania since the mother moved there had been when he was in Tasmania in connection with his work. The father said he extended what could have simply been day visits to Tasmania for work so he could spend time with the child. I also note that the mother refers, without any apparent criticism, to [Y]’s father doing a similar thing, using business visits to Tasmania as an opportunity to spend time with [Y]. I am not satisfied this is a valid criticism of the father.
The mother criticised the father for only having called twice in about six weeks to have telephone communication with the child. Telephone communication with a child not yet 17 months of age, who the mother said she is attempting to teach to communicate by phone, would be of such marginal benefit in maintaining or developing the father/son relationship that in my view this criticism by the mother speaks more of the mother's attitude to the father than of the father's attitude to the child and whether or not he has taken appropriate opportunities to communicate with the child since separation. This, with other unjustified or trivial criticisms, betrays a hypercritical attitude by the mother towards the father, and raises concerns about her appreciation of the potential value to the child of the father, and of a relationship with the father. They raise in my mind real concerns about the mother's willingness to facilitate and encourage a close and continuing relationship between the child and his father. This is of particular significance when taken with the child’s young age, the mother's suggestion of a currently relatively weak relationship between the father and child, and the impact on developing that relationship in the future from the less frequent interactions between the father and child that would be a consequence of the child remaining in Tasmania.
I am not satisfied that the father has failed to avail himself of appropriate opportunities to spend time with the child. The father has appropriately contributed financially to [X]’s support, especially after separation, when until March 2009, the father paid the mother's rent, phone, internet and cleaner, from March to May 2009 paid her $300 per week child support, and since May 2009 paid her $210 per week child support.
(d) The likely effect of any changes in 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 (including any grandparent or other relative of the child), with whom he or she has been living
The mother said that as [X] is now well settled in Tasmania, to change the current arrangements by requiring him to return to Sydney would have an adverse effect on him. She said he would lose the “benefits” of living in Tasmania and being close to “our extended family”. She saw no disadvantages for [X] in the relatively less frequent time [X] could spend with the father if he remained in Tasmania.
The mother also said she would be adversely affected, and hence her parenting of the children would be adversely affected, if she had to move away from the relatively greater financial security, and from the emotional and practical support available to her from her family, in Tasmania.
The mother gave no evidence of her costs of living in Sydney and Hobart to support her contention it was cheaper to live in Hobart, or that she could not afford to live in Sydney. Nor was there any evidence to support her contention she could not afford to relocate back to Sydney beyond her assertion she had no savings to do so. Her income from child support and Centrelink benefits is about $40,500 per annum. That is the only evidence provided by the mother about her financial position in either Sydney or Hobart. The father's evidence is that the rent on the former joint home of the parties in Sydney was $530 per week.
The mother will obviously incur some expense in relocating back to Sydney. The level of that expense, the cost of reasonable accommodation in Sydney, and the mother's ability to meet these expenses cannot be determined on the evidence.
The mother said she had friends in Sydney who could provide her with support, but also contended that she “did not have a support network at all in Sydney”. I am unable to reconcile these statements.
I accept that the mother will not be happy if she has to move back to Sydney. But I am not satisfied that the mother's parenting of [X] will be significantly impaired simply on the mother's assertion that it will. A number of opinions the mother expressed about the father are either unjustified or questionable, and I am loathe to accept bald assertions of subjective feelings from the mother made to support her desire to remain in Tasmania as objectively determinative of the matters asserted.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no evidence of the expense of the father spending time with the child if the child remains living in Tasmania. There is insufficient evidence to determine whether, if the child remains in Tasmania, the father can afford to travel to Hobart every three weeks, as the mother proposes, rather than every month, as he proposes. However, on any view of the evidence and the parties’ proposals, the father's time with the child will be significantly less frequent if the child remains in Tasmania than if he returned to New South Wales. I am satisfied that remaining in Tasmania will substantially affect the child’s right to maintain personal relations and direct contact with the father. This is particularly acute because of the young age of the child.
(f) 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
The mother asserted that because the father has not in the past been responsible for the care of the child away from her, he cannot properly care for the child. She conceded that the father has the capacity “to cater at least for [X]’s intellectual needs, however (the father) has not demonstrated this capacity to me”. One reason for that, if in fact it is the case, may be the limited time the father has yet been able to have with the child, and the child’s very young age. The father said he read to the child.
The mother described the father as “an inexperienced parent unaccustomed to feeding, bathing, arranging appointments, clothing, supervising and caring for social and intellectual needs of his children”. This does not mean the father cannot do these things for [X], only that until now he has had limited opportunity to do them. In the absence of any evidence that the father cannot do these things, I am not satisfied this is a relevant consideration. This it must be said seems to typify the mother's attempts to criticise and trivialise the father’s past, present and future role as the child’s father.
The mother also placed considerable emphasis in her affidavit evidence on her extended family in Tasmania in the context, inter alia, of providing for [X]’s needs. She referred to her brothers as “great male role models for [X]”. While they may quite appropriately and beneficially for [X] be great male role models, there is no evidence to suggest that the father is not capable of being a great male role model and father figure for the child, given the opportunity to develop the father/son relationship by the frequency of interaction with [X] that the mother's brothers have enjoyed since the move to Tasmania.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child’s young age and the fact he is breastfed and will continue to be breastfed for about another seven months are relevant considerations. The impact of breastfeeding on the child’s care arrangements so far as time with the father is concerned is self evident. The significance of the child’s age is in relation to what may be appropriate to enable a meaningful relationship to grow between the father and the child.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These are interim proceedings and cannot determine the final proceedings. Whatever order is made, it is not likely to reduce the prospect of further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant
The mother sought to raise the suggested negative effects on her other child [Y] that a return to Sydney would have as relevant to [X]’s best interests. It is not clear to me how this is so. While I accept there is a close and loving relationship between the siblings, it is not apparent to me how the suggested lesser educational opportunities for [Y] in Sydney would impact adversely on that relationship or otherwise on [X].
Assessment of competing proposals
The father's primary proposal, that the mother return [X] to Sydney pending the final hearing of these proceedings and that he see the child on four days per fortnight until the child turns two and then for six nights per fortnight, has the advantage that it would increase the opportunities for the father and child to spend time together, and hence is more likely to facilitate the development and growth of a meaningful relationship between the father and child, which is particularly important in the early years of the child’s life, when strong, long term parental bonds are formed. It will also provide greater opportunity for the child to spend time with his paternal grandmother and to develop his relationship with her. If it also provided an opportunity for [X] to develop a relationship with his extended paternal family in Newcastle, it would be a benefit to him, but on the evidence I am unable to find that this would happen in the interim to an extent that would be significant.
I do not accept the mother's assertion that the father is likely to prioritise his work over spending time with the child to the extent that the opportunity for more frequent time with the child if he returned to Sydney would not be taken up by the father or that the child returning to Sydney would not lead to any better development of the father/child relationship than if the child remained in Tasmania.
However, the father's specific proposals are vague and uncertain about the father's ability to provide appropriate accommodation for the child when he proposes overnight time commences. They also entail moving from day time only time to six nights per fortnight, in blocks of two consecutive nights and four consecutive nights, from the child’s second birthday. I am concerned about the impact on the child at age two of moving so precipitately to so much overnight time. The father's time cannot come at the risk of impairing the primary bond with the mother or causing the child distress at too lengthy separations from his primary attachment figure.
The father's primary proposal would cause the mother some upset at having her desire to live in Tasmania frustrated, at least in the interim pending a final hearing of the proceedings. However, I am not satisfied on the evidence that this is likely to have any significant impact on the mother's parenting capacity and thus on [X]’s welfare.
Another consequence of the father's primary proposal is that the mother will incur the expense of relocating back to Sydney. I am prepared to accept for present purposes, despite the absence of objective evidence of the fact, that the cost of living, particularly for accommodation, is likely to be higher for the mother in Sydney than in Hobart. However, in the absence of objective evidence I am unable to find that the mother could not afford these expenses, despite her contention she has no savings to meet the cost of relocation. She was apparently able to meet the cost of moving from what she described as a higher cost area in April 2009. I take into account the fact that the father paid the mother's rent and some other expenses until shortly before her relocation to Tasmania, and that it is not part of his proposals to resume meeting any of those expenses for the mother if she returns to Sydney. However, she is currently able to provide accommodation for herself and her children in Tasmania, and in the absence of objective fact evidence, I cannot find the mother could not afford reasonable accommodation in Sydney.
I also take into account that a move back to Sydney would remove [X] from regular contact with his extended maternal family in Hobart, and inhibit the future development of his relationships with those members of his extended family. It would also remove the mother from the support of her family, although I am satisfied on the mother's evidence that she did have a network of supportive friends in Sydney and there is no evidence they are not now available to her. I accept that the mother would probably derive less emotional support from a network of supportive friends in Sydney than from her family in Tasmania.
The mother's primary proposal, that [X] remain living with her in Tasmania and spend time with the father on three consecutive days every three weeks in Tasmania and time as agreed when she visits Sydney three times a year, would permit a continuation of the child’s current involvement with his extended maternal family, but would I am satisfied significantly impair the development of a meaningful relationship with the father because of the relative infrequency of the time he could spend with the father. This, I am satisfied, is particularly pertinent at his young age. The mother would have the continuing support of her extended family if she remained in Tasmania.
The objects of Part VII of the Family Law Act include ensuring that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child (s.60B(1)(a)). The principles underlying the objects include that (except when it is or would be contrary to a child’s best interests) children have the right to know and be cared for by both their parents, and children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives) (s.60B(2)(a) and (b)).
I am concerned that the mother’s unilateral relocation to Tasmania, and her primary proposal that she and the child remain there and the father see the child once every three weeks and on three other occasions a year are not consistent with this object or these principles. I am not satisfied there are relevant considerations going to the child’s best interests that would, absent the mother and child having moved to Tasmania, warrant the child spending time with the father at the frequency suggested by the mother. The matters relevant to the child’s best interests that accrue from living in Tasmania, such as the lower cost of living, the ability to see his extended maternal family frequently and develop close relationships with those members of his extended family, and the suggested greater happiness of the mother in being able to maintain her relocation, do not in my view outweigh the benefit to the child of the closer more meaningful relationship he could develop with his father if he returned to Sydney.
These are interim proceedings, and follow a unilateral relocation by the mother. Relevantly in my view, in Campbell & Spalding (1998) Fam CA 66 Warnick J, with whom Ellis and Lindenmayer JJ agreed, said:
“In my view it is clear that the interests of any child or children, including the children here, are very much connected with any questions directly affecting those children, such as a re-location, being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or circumstances of the child with regard to one of its parents, from what it or they had been immediately beforehand.”
Campbell & Spalding was decided before the Shared Parental Responsibility amendments, and the Full Court’s decision in Goode & Goode (above), which effectively overruled the prior line of authorities on the significance of status quo in interim parenting matters (FamCA at [71]). However, their Honours in Goode & Goode did not hold that a status quo is irrelevant, observing that their comment about the prior authorities on the significance of status quo “is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s.60CC, particularly s.60CC(3)(d) and s.60CC(3)(m) and, if applicable, s.60CC(4) and s.60CC(4A)” (Fam CA at [73]).
Morgan & Miles (2007) FamCA 1230, (2008) 38 Fam LR 275, (2007) FLC 93-343, which was decided after Goode & Goode, dealt with an appeal from interim orders made by a Federal Magistrate following a unilateral relocation by one of the parents. The case was decided by a single judge sitting as the Full Court, namely Boland J, who was a member of the Full Court that decided Goode & Goode. Her Honour relevantly for present purposes, said (at [87] – [88]):
“87 As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88 It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.”
The child was in a settled arrangement involving at least weekly contact with the father prior to the mother's unilateral relocation.
A consequence of the relocation has been a significant reduction in the frequency of contact between the father and the child. This is of particular significance with such a young child.
Faced with the options of the child living with the mother in Tasmania and seeing the father on three consecutive days once every three weeks and on three other occasions in Sydney pending a final hearing, or living with the mother in Sydney and seeing the father at least four times a fortnight pending a final hearing, I am satisfied it would be in the child’s best interests to live with the mother in Sydney and see the father more frequently, and to thus improve the opportunities for the child to benefit from a meaningful relationship with the father and to be cared for by both his parents.
The parents both propose an equal shared parental responsibility order. There is no evidence such an order would not be in [X]’s best interests.
I am not satisfied an equal time parenting arrangement would be in the child’s best interests, because of the current breastfeeding regime, because of the child’s young age and the relatively limited involvement of the father in the child’s care up to the present, because of the lack of adequate accommodation for the father to have the child half the time, and because of some question mark that must attend the care arrangements the father could put in place for the child when he is at work. In any event, the father does not seek such a regime.
Nor am I satisfied that a substantial and significant time parenting arrangement is in the child best interests, even though the father seeks it. I have come to that decision for the same reasons I am not satisfied an equal time arrangement would be in [X]’s best interests.
While the father proposed spending time with the child until his second birthday on four occasions a fortnight, he proposed one occasion one week and three occasions the following week. I am not satisfied this is best for the child. Having regard to the child’s age, I consider a regular frequency of twice a week better able to facilitate the development of the child’s relationship with his father. I note the mother proposed the child spend time with the father twice a week if she was required to return the child to live in Sydney.
Having regard to the child’s age, the current breastfeeding regime, the respective relationships the child has with each of his parents, the fact the mother is likely to be his primary attachment figure, the fact the father has not previously had the child overnight, and the risk that separating the child from the mother for too long, especially overnight, may distress the child at his current stage of development and with his current parental relationships, I am satisfied that the child should spend time with the father on two days per week, and that the length of time he spends should commence at five hours each day, and increase to eight hours each day after two months. This will take account of the evidence suggesting that at most, [X] has so far spent a maximum of five hours in the father's care on any one occasion. I am satisfied this will not be inappropriate having regard to [X]’s breastfeeding regime and the fact he does not always have a breast feed in the middle of the day, and it will not entail such long absences from the mother as to risk unsettling the child. It will I am satisfied not interfere with his relationship with his mother or his sibling. I am not satisfied this regime should change once the child ceases to be breastfed. I am satisfied the limitations of the father's current temporary accommodation are not such as to render such a regime inappropriate for the child.
Decision
Accordingly, I will order the mother to return with the child to live in Sydney pending the final hearing of the matter. In the absence of any evidence that may go to the timing of the mother's return, I will give her 28 days to move with the child back to Sydney.
Upon relocation, the father is to spend time with the child twice a week for five hours on each occasion for eight weeks and then for eight hours on each occasion. Until the mother returns with the child to Sydney, I will make orders to facilitate the father spending time with the child in Tasmania if the father visits there and in Sydney if the mother visits Sydney before her relocation.
I will otherwise set the matter down for a final hearing on the earliest available dates in my docket and make orders for preparation for that hearing.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Halligan FM
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