Kirke and Mason (No.2)
[2009] FMCAfam 1346
•22 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIRKE & MASON (No.2) | [2009] FMCAfam 1346 |
| FAMILY LAW – Children – relocation – mother seeking to relocate with 21 month old child from NSW to Tasmania, opposed by father – mother relying on her mental health and suggested need for family support and its impact on the child, her finances, quality of life, and the needs of half sibling of subject child – father relying on mother's lack of close relationship with interstate family, mother having lived in NSW for 22 years, his lack of connection with Tasmania and child’s relationship with paternal grandmother who lived in NSW – father intending to relocate if child relocates – time child could spend with father unaffected by relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAB |
| Makita (Australia) Pty Ltd v Sprowles, ([2001] NSWCA 305, (2001) 52 NSWLR 705 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd, [2002] FCAFC157, (2002) 55 IPR 354Goode v Goode, [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 C v T [2006] FamCA 1198 Mazorski & Albright, [2007] FamCA 520, (2007) 37 Fam LR 518 Morgan & Miles, [2007] FamCA 1230, (2007) FLR 93-343, (2008) 38 Fam LR 275 |
| Applicant: | MR KIRKE |
| Respondent: | MS MASON |
| File Number: | PAC 2125 of 2009 |
| Judgment of: | Halligan FM |
| Hearing dates: | 15 & 16 December 2009 |
| Date of Last Submission: | 16 December 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 22 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Father In Person |
| Counsel for the Respondent: | Mr Turnbull |
| Solicitors for the Respondent: | Simmons Wolfhagen |
ORDERS
All prior parenting orders in relation to the child [X] born [in] 2008 (the child) are discharged.
The child shall live with the mother when not living with the father pursuant to these orders.
The mother is restrained from changing the child’s place of residence outside the Sydney metropolitan area without the father’s prior written consent until 27 January 2010.
From 27 January 2010, the mother may change the child’s place of residence to the Hobart metropolitan area, and the mother shall not thereafter change the child’s place of residence to a place outside the Hobart metropolitan area without the father's prior written consent or an order of a court.
Until the mother relocates the child’s place of residence to the Hobart metropolitan, the child shall live with the father from 9am to 5pm each Thursday and Sunday and shall also live with the father from 9am to 5pm every third Saturday commencing 2 January 2010.
When the mother relocates the child’s place of residence to the Hobart area, and until the father also changes his place of residence to the Hobart metropolitan area, the child shall live with the father:
(a)Until 31 March 2010;
(i)In the Hobart metropolitan area, from 9am to 5pm on such days as nominated by the father to the mother in advance, provided that the father shall not spend time with the child in Tasmania on more than four days in each fortnight, and shall not spend time with the child in Tasmania on more than four consecutive days; and
(ii)In the Sydney area from 9am to 5pm on four consecutive days once every five weeks, the first occasion to occur within five weeks of the child relocating to Tasmania, the mother to deliver the child to the father in the Sydney area at the commencement of his time and the father to return the child to the mother in the Sydney area at the conclusion of his time, the mother to be responsible for all travel and other costs of bringing the child to Sydney and delivering the child to and collecting the child from the father.
(b)From 1 April 2010;
(i)as in order 6(a)(i) provided that the child may remain with the father from 9am on one day until 5pm on the next day no more frequently than once each week; and
(ii)as in order 6(a)(ii) provided that the child may remain with the father from 9am on one day until 5pm on the next day once in each four day period.
When the father also relocates to the Hobart metropolitan area:
(a)Until 31 March 2008, the child shall live with the father from 9am to 5pm each Thursday and Sunday and shall also live with the father from 9am to 5pm every third Saturday commencing on the third Saturday after he relocates to Tasmania;
(b)From 1 April 2010 to 30 June 2010, the child shall live with the father;
(i)from 5pm Wednesday until 5pm Thursday each week;
(ii)from 9am to 5pm each Sunday; and
(iii)from 9am to 5pm each third Saturday, within the pattern established under order 7(a).
(c)From 1 July 2010 to 30 September 2010, the child shall live with the father;
(i)from 5pm Wednesday until 5pm Thursday each week;
(ii)from 5pm Saturday to 5pm Sunday each alternate week;
(iii)from 9am to 5pm each other Sunday; and
(iv)from 9am to 5pm each third Saturday, within the pattern established under order 7(a).
(d)From 1 October 2010 to 31 December 2010, the child shall live with the father;
(i)from 5pm Wednesday until 5pm Thursday each week; and
(ii)from 5pm Saturday to 5pm Sunday each week.
(e)From 1 January 2011 to 31 March 2011, the child shall live with the father;
(i)from 5pm Wednesday until 5pm Thursday each week; and
(ii)from 5pm Saturday to 9am Monday each week.
(f)From 1 April 2011, the child shall live with the father;
(i)from 5pm Wednesday until 5pm Thursday each alternate week; and
(ii)from 5pm Wednesday to 9am Monday each other week.
Commencing in 2012:
(a)The child shall live with the father for half of all school holiday periods as agreed between the parents, and failing agreement for the first half of holidays commencing in 2012 and each alternate year thereafter and the second half in each other year;
(b)The child shall live with the father from 5pm on the Thursday before Easter Sunday until 9am on the Tuesday after Easter Sunday in 2012 and each alternate year thereafter; and
(c)Order 8(f) is suspended during school holiday periods and the period between the Thursday before Easter Sunday and the Tuesday after Easter Sunday.
Notwithstanding the preceding orders, the child shall spend time:
(a)On her birthday from 5pm on the preceding day to 5pm on her birthday with the father in 2010 and each alternate year thereafter and with the mother each other year;
(b)On the father's birthday, with the father from 9am to 5pm;
(c)On the mother's birthday, with the mother from 9am to 5pm;
(d)On Mother's’ Day, with the mother from 5pm on the preceding day until 5pm on Mother's Day;
(e)On Father's Day, with the father from 5pm the preceding day until 5pm on Father's Day;
(f)On Christmas Day 2009, 2010 and 2011, with the father from 8am until 1pm;
(g)
Commencing in 2012, on Christmas Day from 5pm
Christmas Eve until 2pm Christmas Day with the mother in 2012 and each alternate year thereafter and with the father each other year.
IT IS NOTED that publication of this judgment under the pseudonym Kirke & Mason (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2125 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] unilaterally changed the child’s place of residence from the Sydney metropolitan area to the Hobart area. The father opposed the change and brought proceedings to secure the child’s return to Sydney on both an interim and final basis, and for orders regulating the child’s time with each parent. On 19 August 2009, after an interim hearing, I ordered the mother to return the child to the Sydney area by 16 September 2009 (Kirke & Mason [2009] FMCAfam 874). The mother returned with the child in mid September 2009, but still wishes to live with the child permanently in Tasmania. The father wants the mother and child to remain in the Sydney area.
It therefore falls to the court to determine whether the child should live in Sydney or Hobart, and to determine how much time the child will spend with each parent. In determining the latter issue, the child’s place of residence is irrelevant, as wherever the child lives, the parties will live within reasonable proximity to each other, the father having stated that if the child moves to Tasmania, he will move there too.
Background
The father was born [in] 1966 is aged 43. The mother was born [in] 1970 and is aged 39. The mother left Tasmania when aged 17, and has since lived in the Wollongong and Sydney areas. There in no evidence the father has ever lived outside NSW.
The parties cohabited in the Sydney metropolitan area from March 2007 until November 2008. [X] was born [in] 2008.
The mother has another child, [X]’s half sister [Y], born [in] 1998. [Y] is thus is nearly 12. [Y] lived with the parties during their cohabitation and continued to live with the mother until she and [X] returned to Sydney in mid September 2009. After the mother and [X] returned to Sydney, [Y] lived in the boarding house at her private school in Hobart during the week and lived with her uncle in the Hobart area on weekends. [Y] will live with the mother in Sydney when her 2009 school year ends.
The father has another child, a half sibling to [X], [Z] born [in] 2005, who is nearly 4. [Z] lives with his mother in Melbourne. The father has not spent regular time with [Z].
The interim orders made on 19 August 2009 requiring the mother to return the child to live in the Sydney metropolitan area also provided that the parents have equal shared parental responsibility for the child, that the child live with the mother, and that on his return to Sydney, the child spend time with the father each Thursday and Sunday, for five hours each day for the first eight weeks and then for eight hours each day. Those interim orders also made some provision for the father to spend time with the child pending his return to Sydney.
Bases of the parties’ cases
As I understand it, the father's case as to where the child should live is based on the following propositions:
a)The parties lived in the Sydney area during the parents’ cohabitation and since separation, until the mother's unilateral move to Tasmania in April 2009. This fact is not in issue.
b)The father's friends and employment are in the Sydney area. This is not in issue.
c)The paternal grandmother, who has been involved in the child’s life and has cared for the child on occasions, lives in the Sydney area, and a move to Tasmania would significantly reduce the child’s interaction with the paternal grandmother and damage or limit the relationship with her. It is not in issue that the paternal grandmother has had an involvement in the child’s life and there is a beneficial relationship between the child and the paternal grandmother. I do not understand the mother to concede that a move to Tasmania would have a significant impact on that relationship.
d)The mother has not previously been close to her brothers, from whom she now says she needs support for her and the child’s well being. There appears to be some issue as to when the mother began to seek a closer relationship with her brothers in Tasmania.
e)The mother raised [Y] as a single mother in the Sydney and Wollongong areas without needing or having the support of her brothers in Tasmania. This fact is not in issue, but the mother’s unchallenged evidence is that she moved to live with cousins in Victoria for six months when [Y] was about two out of financial necessity.
f)The mother could obtain employment in Sydney if she wished. This is not in dispute.
g)The mother could afford to live in Sydney if she obtained employment.
As I understand it, the mother's case as to where the child should live is posited on the following propositions:
a)The mother is depressed and needs support as a single mother, especially family support. The father does not accept this contention.
b)The mother's depression and lack of family support has adversely affected her children, and this will be exacerbated and prolonged if she cannot relocate. The father does not accept this proposition.
c)The mother has no family in Sydney but has two brothers in the Hobart area who supported her during her time in Tasmania between April and September 2009, and who will continue to do so if she returns there. I do not understand that this is in dispute.
d)The mother benefitted from the support of her brothers when she was in Tasmania for about five months from April 2009. The father's position is that the mother does not need the support of her brothers.
e)The child has developed a good relationship with his maternal uncles, aunts and cousins in Tasmania and will benefit from being able to continue to develop a close relationship with them. While there may be some issue about the quality of the relationship [X] could have formed with his maternal relatives during his five months living in Tasmania, I do not understand there is any real issue that the child can benefit from relationships with all his extended family, both maternal and paternal.
f)The cost of living, and especially of accommodation, is much cheaper and hence more affordable for her in Tasmania, and she can afford more suitable accommodation for the child in Tasmania. The mother was not challenged on these contentions, and hence they do not appear to be in issue.
g)The mother cannot afford accommodation in Sydney in reasonable proximity to the father's residence. It is not clear that the father concedes this.
h)There is a better quality of life available for the child in Tasmania. The only objective indicia suggested by the mother in her affidavit evidence to indicate a better “quality of life” in Tasmania was not challenged in cross-examination by the father, nor did he contradict it in his evidence.
i)As the father has said he will relocate if the mother and child do, there need be no significant difference in the regime of the child spending time with the father whether the child lives in Sydney or Hobart. On the father's evidence, this is clearly so.
j)The mother's daughter [Y], [X]’s half sister, is now settled in a private school in Hobart and does not wish to leave that school. Based on aspects of cross-examination conducted by the father, I believe this is in issue.
k)[Y] has been awarded a scholarship at the Hobart private school she attends, reducing the school fees. This is an unchallenged fact.
l)The mother cannot afford private school fees for [Y] in Sydney. Based on aspects of cross-examination conducted by the father, I believe this is in issue.
In relation to the time the child spends with each parent, the issue is what is appropriate for this child at his current age and as he grows older, given the past history of care from each parent, given the child’s current relationships with each parent and other significant family members, and given the parenting skills and availability of each parent, to enable the child to continue to develop and benefit from a meaningful relationship with each parent and from appropriate relationships with his extended family, both maternal and paternal. There are no issues of child abuse or neglect or of family violence in this case.
I should record one significant feature of this case which reflects great credit on both parties as parents. Despite the mother's unilateral relocation of the child over the father's objection and the consequent serious disruption for five months to the time the father could spend with the child, so crucial with such a young child, and despite the father's successful interim application frustrating the mother's desire to live in Tasmania, the parents have conducted themselves civilly, even cordially, in their interactions concerning the child. Among cases that come before the court for determination in a contested hearing, this is a regrettably all too rare example of parents who put the interests of their child ahead of any feelings of hurt, anger or animosity towards each other as former partners, or even as a result of fundamental differences about what is best for their child.
Credit of witnesses
The witnesses were the father, the paternal grandmother, the mother, the mother's psychologist Ms E, and the Family Consultant who wrote the Family Report, Dr Hawthorne. All were cross-examined. I am not satisfied any issues arose in relation to the credit of the paternal grandmother, Ms E or Dr Hawthorne.
The father appeared on a number of occasions to be reluctant to directly answer questions that would have entailed making a concession in the mother's favour. He admitted telling the mother he had not made a statement reported by Dr Hawthorne in his report and attributed to the father, but admitted having made the statement attributed to him by Dr Hawthorne.
Despite the father's attempts to avoid directly answering questions the direct answer to which entailed a concession to the mother, and despite his dishonesty to the mother, I am not satisfied the father's evidence was knowingly incorrect or that any issue ultimately arose in relation to his credit as a witness.
There were aspects of the mother's evidence that concerned me, namely-
a)The mother sought to justify her unilateral relocation to Tasmania on the basis that she believed the father would agree. She said she based this belief on the fact that the father had agreed to the mother of his older son relocating to Melbourne in similar circumstances. However, the mother admitted that from January 2009 the father consistently told her he opposed any relocation, and that he had taken legal advice on this issue which had fortified his view that the mother could not relocate without his agreement. Even if the mother thought the relocation to Victoria of the mother of the father's other son was in similar circumstances, and I am not satisfied it was, the mother could not reasonably have thought that the father did not mean his repeated objections to her suggestion that she and the child move to Tasmania. Her evidence that she did is so objectively improbable and unbelievable that I am not prepared to accept it, and I find the mother lied in asserting she held this belief.
b)The mother said that she did not form the intention to relocate to Tasmania until she travelled there for a two week holiday with the father's consent. She said it was while she was in Tasmania that she decided not to return. Her evidence in her affidavit prepared for the interim hearing asserted that she arranged to stay with one of her brothers in Tasmania prior to travelling there, her brother’s house having a self contained flat “which was suitable for us in the short term”. The mother said living with her brother enabled her to find her own suitable accommodation. There was no mention in her first affidavit that she travelled to Tasmania initially for a two week holiday.
c)In that earlier affidavit she also said that she decided it was in [X]’s best interests to relocate to Tasmania before she arranged for the parties to attend mediation, and they attended five sessions. In cross-examination the mother said she decided it was best for [X] to relocate during that mediation, not before as stated in her first affidavit. When the inconsistency was put to her, she then said she could not remember when she decided it was best for [X] to relocate. She drew a distinction between her decision that it was best for [X] to relocate and her decision to in fact relocate. I found the mother's evidence quite unconvincing and, taken with her inherently improbable suggestion that she believed the father would agree to the relocation despite his clear and strong opposition, I do not accept the mother's evidence that she decided to relocate while on holiday in Tasmania. I am satisfied the mother travelled to Tasmania with the intention of not returning, but told the father she was only going for two weeks and would return with the child because she knew the father objected.
d)The mother agreed that the father moved to a four day working week when [X] was born. In her affidavit for the interim hearing the mother asserted that the father “had limited involvement with [X]’s care as he was working full time; I had taken time off work to care for [X]”. It was the mother's case that whether this statement conveyed a false picture needed to be considered in conjunction with other parts of her affidavit, including the following paragraph of that affidavit where the mother said that the father spent time with [X] for approximately three or four hours one day a week at her work. I do not accept that the two paragraphs can be read together. The earlier paragraph refers explicitly to “when [X] was born and while (the father) and I were still in a relationship”, whereas the later paragraph refers to “after (the father) and I separated”. The mother’s explanation for the inaccuracy is unsatisfactory, and I find the mother knowingly misrepresented the father's employment commitments from the child’s birth at least until separation in an attempt to minimise and downplay the father's involvement and hence his relationship with the child.
In the result, I find the mother’s evidence must be treated with caution, especially in relation to matters concerning her wish to relocate with the child as all the above matters go to that issue.
The father's proposals
The father seeks orders that the parents have equal shared parental responsibility, and that the child live with him as follows:
a)Until 30 March 2010, from 9am to 5pm each Thursday and Sunday commencing immediately, and every third Saturday commencing 2 January 2010;
b)From 1 April to 31 May 2010, from 5pm Wednesday to 5pm Thursday each week, and from 9am to 5pm each Sunday and every third Saturday;
c)From 1 June to 30 July 2010, each week from 5pm Wednesday to 5pm Thursday and from 4pm Saturday to 5pm Sunday, and every third Saturday from 9am to 5pm;
d)From 1 August to 30 November 2010, from 5pm Wednesday to 5pm Thursday each week and from 5pm Friday to 9am Monday each alternate weekend; and
e)From 1 December 2010, from 5pm Wednesday to 5pm Thursday every alternate week and from 5pm Wednesday to 9am Monday every other week.
In addition the father seeks to spend specified time with the child on his birthday, Father's Day, and at Christmas time each year, and on the child’s birthday, around New Year’s Day and at Easter time in each alternate year. He also proposes the child spend half of the school holidays with him commencing in 2012, that is, from when the child is four. He proposes that otherwise the child live with the mother, and in addition spend time with the mother on the mother's birthday, Mother's Day and at Christmas time each year, and on the child’s birthday, around New Years Day and at Easter time each alternate year.
The father works as a sustainability consultant based in Sydney earning about $150,000 per annum. He has worked a four day week since the child’s birth, reducing his working week by one day to be more available to the child and to take a greater role in his care. He works three days a week from home and one day a week attends the offices of his employer. On occasion he has travelled interstate, including to Tasmania, and on occasions needs to attend to some work at nights or on weekends, for example to confer with overseas clients by phone due to international time differences. However, overall the father has considerable flexibility in the discharge of his work commitments. He usually does not work on Thursday.
The father has recently purchased a two bedroom townhouse in [M]. He moved in at the end of November 2009. He has a room and a bed for the child. He is the only occupant of the premises.
The father proposes to place the child into child care on days he is not available through work commitments to care for the child. The child’s paternal grandmother lives in the Sydney area and is ready, willing and able to assist the father in the care of the child should the need arise. Since the child returned to Sydney about three months ago, the paternal grandmother has seen the child but not with the father.
The father has a married brother and a married sister who live in Newcastle with their families, and a married brother in New York. The child had no interaction with these family members after the parties separated in November 2008 until after the mother returned with the child from Tasmania. Since then he has had unspecified contact with members of his extended paternal family who live in Newcastle, including his cousins. The father also expressed the hope that in the future there might be an opportunity for [X] to develop a relationship with his half brother [Z].
The father said that if the court permitted the child to move to Tasmania, he would move there too. He said he could secure appropriate employment there. However, he has no family or friends there, although I proceed on the basis that he could make new friends there. He would not have the support of his mother in the care of [X] if he moved there. She was not a significant part of his care arrangements in Sydney. That is not to suggest she is not and has not been a significant person in the child’s life.
The father's proposal to move is the child is permitted to move is not a reflection of his preference. It would come at considerable personal cost to him. It rather is a measure of the father's commitment to a close and personal relationship with his son, which is not possible if he and the child are living far apart.
There is no evidence as to how long the father may need to effect his own relocation if the mother's is permitted to move with the child. For example, there is no evidence whether the father would sell or retain his recently purchased accommodation at [M]. There is no evidence whether a transfer of employment with his current employer would be possible or whether the father would need to secure new employment.
The mother's proposals
The mother's ultimate position at the hearing was that she proposed orders for equal shared parental responsibility, that the child live with her in Tasmania and that if the father did not also live in Tasmania the child spend time with the father as follows (I have converted references to the child attaining a specified age with the relevant date of that attainment to facilitate comparison with the father's proposals):
a)Until 12 September 2010, from 9am to 5pm on four consecutive days every three weeks in Tasmania and every five weeks in Sydney;
b)Thereafter until 12 September 2011, as previously, but with one overnight stay in each four day period;
c)Thereafter until the child commences school on a full time basis, for continuous periods of three days and two nights every three weeks in Tasmania and every five weeks in Sydney; and
d)When the child commences full time school, from 8am Thursday to 5pm Saturday every three weeks in Tasmania, from after school Friday to 5pm Sunday every five weeks in Sydney, and for half of all school holidays.
If the parents reside in the same State, the mother proposes that the child spend time with the father as follows:
a)Until 12 September 2010, each Thursday and Sunday from 9am to 5pm;
b)Thereafter until 12 September 2011, each week from 3pm Wednesday to 5pm Thursday and from 9am to 5pm Sunday;
c)Thereafter until the child commences school on a full time basis, each week from 3pm Wednesday to 5pm Thursday and from 3pm Saturday to 5pm Sunday; and
d)When the child commences full time school, during school terms each alternate week from 8am Thursday to 5pm Sunday and each other week from 8am Thursday to 5pm Friday, and for half of all school holidays.
The mother also proposes that the father have telephone communication with the child at all reasonable times and no less than three times a week, calls to be initiated by the father, and electronic communication via Skype, email (when age appropriate) and “any other electronic means available”, to be facilitated by the mother.
The mother owns a one bedroom unit in Sydney that she rents, the income covering the outgoings. It is unsuitable for the mother and the two children to occupy. If able to relocate to Hobart, the mother proposes to sell this property and use the proceeds to buy a house near Hobart, something she could not afford to do in Sydney.
Whether she lives on Sydney or Hobart, the mother receives child support from the father of $200 per week, child support from [Y]’s father of $60 per week, Family Tax Benefit A and B of $115 per week, and rent assistance of $40 per week. Since returning to Sydney, the mother has secured a contract to work with [omitted] until the end of December for which she is paid $434 per week. Without that income, she would receive a Centrelink benefit of approximately $310 per week.
Her evidence is that it costs her $1253 per week to live in Sydney and $730 per week to live in Hobart. The significant differences in her expenses are rent ($550 in Sydney and $280 in Hobart), food ($120 per week in Sydney and $60 per week in Hobart due to the provision of produce from her brother’s farm), travel costs ($78 in Sydney and $20 in Hobart), and private school fees for [Y] ($200 in Sydney, $100 in Hobart). If she lived in Hobart and the father remained in Sydney, which on the evidence seems unlikely, she would have the additional cost of airfares to bring the child to Sydney every five weeks to spend time with the father, which she estimates at an average of $25 per week. The mother was not challenged in cross-examination on any of this evidence, nor was there any contradictory evidence in the father's case. I therefore accept it.
Thus, assuming the mother is not working, and her evidence suggests that in Hobart she would not work, at least until she completes her PhD, she has a weekly deficit of $5, whereas in Sydney, even if she could continue working as she is now, she would have a deficit of $404 per week. There is no evidence as to the mother's position if she worked longer hours than her present position entails, either as to the income she might earn or as to whether the mother would need to have recourse to commercial child care, and if so the cost.
During the approximately five months the mother lived in Hobart earlier this year, she was supported by her brothers. One brother and his wife minded the children twice a week so the mother could play hockey. She visited the other brother on his farm, which the child enjoyed. That brother provided her with produce from his farm, considerably reducing the mother's food bill. The mother enrolled [Y] in a private school in Hobart. The child settled in well and excelled academically. She won a scholarship. She wishes to remain in this school if possible.
Additional parenting options
The other evidence
[X] has been breastfed from birth. The mother intends to continue breastfeeding until [X] is two. The father supports this.
At separation, the father left the parties’ shared home. The mother remained living in that home until she travelled to the Northern Territory in connection with her PhD studies in late February 2009 for about a month. Shortly after her return from the Northern Territory in late March 2009, she relocated to Tasmania. 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 father's time with [X] since separation has been somewhat limited due to the child’s breastfeeding regime.
The father has spent time with [X] since mid September 2009 generally in accordance with the interim orders made on 19 August 2009.
The bases on which the mother suggests [X]’s relocation ought to be permitted may be grouped as relating to-
a)The mother's health and wellbeing, and through her, the child’s welfare;
b)The mother's financial circumstances, and their impact on her ability to provide for the child;
c)Quality of life.
In addition, the mother relies on issues in relation to [Y]’s education to support her application to relocate.
I will deal with the evidence under these topics, then deal with any other relevant evidence of the Family Consultant not otherwise dealt with in these reasons.
The mother's health and wellbeing, and through her, the child’s welfare
Ms E, the mother's psychologist, saw the mother on three occasions in November 2009 on referral from the mother's general practitioner before preparing a report containing her evidence in chief. The inference is that she was consulted initially for therapeutic, not forensic, purposes. The mother has continued to see Ms E regularly since she wrote her report.
Based on the history provided by the mother, Ms E expressed the following opinions:
a)On initial assessment and diagnosis, the mother met the criteria under the Diagnostic and Statistical Manual of Mental Disorders, 4th Ed, 2009, for Major Depressive Disorder in the mild to moderate range.
b)The primary factors contributing to the mother's depression are-
i)Stress associated with current court proceedings, including ongoing stress in her relationship with [X]’s father;
ii)Separation from [Y], who remained at boarding school in Tasmania on the mother's return to Sydney with [X] in mid September 2009.;
iii)Separation from her usual support networks of family and friends who reside in Tasmania; and
iv)Financial difficulties, exacerbated by living in Sydney.
c)If the mother is not permitted to relocate to Tasmania with [X], the primary factors contributing to her depression, namely separation from support networks and financial pressures, will continue for an indefinite period, and will require [Y] to move back to Sydney, causing the mother further concern about the impact on [Y] of changing school and separation from family and friends.
d)If the mother is not permitted to relocate to Tasmania with [X], the mother's symptoms of depression will be exacerbated in the short term and be present for a much longer period of time. Current symptoms of feeling low and teary, nervous tension and general irritability are likely to be greatly intensified in the months after the order requiring her to stay in Sydney, and her depression is likely to continue over time as it will be much harder for the mother to meet her children's needs due to the long term separation from her support networks in Tasmania.
The evidence of Dr Hawthorne was that if the mother was depressed, it would already be having an adverse impact on the child. I accept this evidence.
In relation to the four primary factors Ms E said were contributing to the mother's depression-
a)The stress associated with these proceedings is transient. The proceedings will be over on the delivery of my judgment and pronouncement of orders, barring any appeal. The suggestion of ongoing stress in the mother's relationship with the father is contradicted by both the cross-examination of the father by the mother's counsel and the submissions he made as to the state of their relationship. He emphasised how good and cooperative that relationship was, highlighting the facts that the parties came to court on the first day of the hearing together in the same car, and had planned a camping holiday together with [X] and [Y] during the Christmas holidays. The only stressful matters in the parents’ relationship are the matters in issue in these proceedings, that is, whether the mother can relocate to Tasmania and the amount of, and pace of increase in, the father's time with the child.
b)The mother's separation from [Y] is transient, and would by now have ended.
c)The suggested separation of the mother from her “usual support networks of family and friends who reside in Tasmania” is not supported by the evidence. The evidence is the mother has not lived in Tasmania for over 20 years. She had spasmodic contact with her family there until she implemented her unilateral decision to relocate in April 2009. There is no evidence of any friends there.
d)The mother's suggested financial difficulties, exacerbated by living in Sydney, is at issue, but the unchallenged evidence of the mother indicates that in Sydney she would have considerable difficulty managing financially, and she would lead a hand to mouth existence in a significantly lower standard of accommodation than if she lived in Tasmania.
Ms E said that if it had been the case that the mother had not had any regular association with her family in Tasmania before April 2009, if they had not been part of her support network, and if the mother had been able to care for [Y] as a single mother at a similar age to [X], it would possibly affect her opinions but she could not say how without speaking further with the mother.
The mother's evidence was that she did not cohabit with [Y]’s father after the child’s birth, and that when [Y] was about two, for financial reasons she left NSW and lived with cousins in Victoria for about six months. I have no further evidence about the circumstances surrounding the mother's decision to then move to Victoria or to subsequently return to NSW. This evidence from the mother was given after Ms E was cross-examined, she having been interposed with the father's consent to suit her availability due to professional commitments. Hence it was not possible for this scenario to be put specifically to her.
I am satisfied that the mother's brothers in Tasmania were never part of any support network the mother relied on since first becoming a parent until her unilateral move to Tasmania in April 2009. I accept the father's evidence that the mother had quite limited interaction with them before April 2009. However, that is not to say that they could not become part of a support network. I accept the mother's evidence that they did in fact provide her with practical and helpful support in the five months she lived in Tasmania this year.
In assessing the weight to be attached to Ms E’s evidence, it is in my view highly relevant that-
a)Three of the four primary factors leading Ms E to her diagnosis of a major depressive disorder are either not proven on the evidence, or are transient and will be removed by the conclusion of these proceedings.
b)Her diagnosis and opinions are based solely on what the mother told her and I have found that the mother’s evidence should be treated with caution, particularly in relation to matters going to her wish to relocate.
c)The fact that the mother's brothers have not been part of the mother's support network in the past would possibly affect her opinions, but there is no evidence how they would affect her opinions.
Ms E stated that the mother reported to her-
a)feeling low at times;
b)often feeling teary and alone;
c)experiencing high levels of tension particularly towards the end of each day;
d)frequently ruminating over problems;
e)being more reactive to situations than she would normally;
f)having difficulty relaxing; and
g)having problems falling asleep each night, but otherwise having undisturbed sleep.
Having related these “symptoms” (my term), Ms E expressed the opinion about Major Depressive Disorder. The clear inference is that she based her diagnosis on these matters.
In her affidavit evidence, the mother said she has felt overwhelmed living in Sydney as a single parent and has had feelings of not being able to cope. She said she constantly worried about her children’s future. She felt a loss of control of her life being unable to afford a home in Sydney for her children, and this added to feelings of anxiety and pressure in Sydney. She said she felt socially isolated and vulnerable. While she has four close friends living in Sydney, they are not readily accessible to her because of geographic separation around the Sydney area. She said in Tasmania she could afford to occasionally spend some money on herself and socialising, and had been able to afford financially and practically to commit to playing a team sport, relying on her brother and sister-in-law to mind the children during training and games, something she could not do in Sydney in the absence of a support network and because travel times to and from training and games were too great.
This evidence was not challenged by the father in cross-examination. However, I have expressed general scepticism about the mother's evidence in support of her desire to relocate. If I am not satisfied these matters genuinely reflect the mother's experience, then I cannot place any weight on Ms E’s opinions. That would not be because I have formed an adverse view of her professional competence, which was never challenged. Rather it would be because a failure to prove the factual basis for expert opinion evidence must affect the weight that can be attached to that evidence (per Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles, ([2001] NSWCA 305 at [85], (2001) 52 NSWLR 705, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd, [2002] FCAFC157, (2002) 55 IPR 354).
There are a number of matters that argue against placing any weight, or any significant weight, on Ms E’s opinions, namely-
a)My findings on the mother's credit, especially on relocation matters.
b)The fact the mother has not relied on the suggested support network in Tasmania before.
c)Ms E’s evidence that if the mother had not relied on the Tasmanian support network before it would possibly affect her opinions but she could not say how.
In favour of placing significant weight on Ms E’s opinions are that-
a)The mother gave unchallenged evidence consistent with the matters on which Ms E appears to have based her diagnosis of a Major Depressive Disorder.
b)The fact the mother may have managed as a single mother with [Y] without the support of her Tasmanian family does not necessarily mean she may not genuinely need that support now. She did not live with [Y]’s father after that child’s birth, and hence never relied on his support. She was living with the father for a time before and after [X]’s birth. Further she now as a single parent has the primary care of two children of significantly different ages with therefore significantly different needs and interests. I am satisfied the loss of the partner relationship together with the present parenting demands the mother is experiencing have created a quite different personal dynamic for the mother to her situation when [Y] was an infant.
c)The fact the mother may not have had a close relationship with her family in Tasmania in the past does not mean she may not now have sought and established a closer relationship with them from which she gains support. I am satisfied she did so between April and September 2009.
While, in suggesting the consequences of not permitting the mother to relocate, Ms E seems to have proceeded on the basis that the mother's siblings in Tasmania had been of practical and emotional support to her for longer than they had been, her diagnosis of a major depressive illness was not based on this, but on the mother's reported feelings. Similarly, the fact three of the four primary causes she suggested for the depressive disorder she diagnosed are unlikely on the evidence to exist or to be affected by whether or not the mother goes to Tasmania does not necessarily affect the diagnosis itself. It was never suggested to her in cross-examination that it did.
On balance, despite my general scepticism of the mother's evidence on matters relating to the relocation, despite the fact that these are entirely subjective feelings being reported by the mother with no objective means of confirmation, and despite the fact that she seems not to have mentioned any of them to Dr Hawthorne, I am satisfied that the mother is feeling as she reported to Ms E, and hence Ms E’s diagnosis of Major Depressive Disorder should be accepted.
In relation to the effects of not being permitted to relocate, I am satisfied that the mother's symptoms are more likely than not to continue, if not be exacerbated, in that her sense of social isolation, her financial concerns, and the frustration of her wish to live elsewhere, will continue. I am satisfied it is more likely than not that if the mother did relocate, she would in fact have the support of her family in Tasmania, that her financial position would improve, that her feelings of social isolation would reduce or disappear, and hence a number of stressors in the mother's life would be ameliorated or removed. I am therefore satisfied it is more likely than not that a move by the mother and [X] to Tasmania would ameliorate or resolve the mother's Major Depressive Disorder.
Consistent with the opinions of both Ms E and Dr Hawthorne, I am satisfied it is more likely than not that [X] is being adversely impacted, and would continue to be adversely impacted, by the mother's depressive disorder if she were required to remain in Sydney. I am satisfied it is more likely than not that that adverse impact would be considerably reduced or removed if the mother and [X] were permitted to relocate to Tasmania.
However, these are not the only consequences of staying or relocating, and they are not the only matters to be considered in deciding this case.
The mother's financial circumstances, and their impact on her ability to provide for the child
I have set out the mother's financial circumstances when dealing with her proposals. She has a clear preference to continue with research and the preparation of her Doctoral thesis rather than seek more work. She conceded that she could seek more work. As mentioned, there is no evidence as to what she might earn, how many hours of employment might be involved, and whether there may be a financial cost in securing any extra child care. The mother has a strong aversion to paid child carers because she said [Y] did not fare well in the care of a paid child carer when she was young.
I am satisfied that the mother would find it extremely difficult to manage financially in Sydney. I am satisfied the mother's cost of living in Tasmania would be significantly less and that she could afford a better material standard of living in Tasmania than in Sydney, including being able to afford free standing accommodation with a yard for [X] to play in which she could not afford in Sydney.
Quality of life
The only tangible matters relating to a better quality of life living in Tasmania that the mother identified are the ability to afford a house with a yard for [X] to play in and the proximity of her brother’s farm which [X] enjoyed visiting.
[Y]’s education
Dr Hawthorne interviewed [Y] and reported that the child “acknowledged that she had found the moving from Sydney to Tasmania with its necessary change of school difficult”. When
Dr Hawthorne asked her preference if the court required her mother and [X] to remain in Sydney, [Y] is reported to have said she would prefer to return to Tasmania for her schooling and spend school holidays with her mother and [X]. This is unchallenged evidence and I accept it.
The mother said she could not afford a private school education for [Y] in Sydney. She was not shaken in this evidence and I accept it.
The Family Consultant’s evidence
The mother made a number of criticisms of Dr Hawthorne’s report. Most were minor errors or inconsistencies that were not shown to affect his opinions, or were a result of misreading the Family Report, or were in relation to matters that were ultimately irrelevant. Most were not put to Dr Hawthorne in cross-examination. There was however one significant factual issue between the mother and Dr Hawthorne.
Dr Hawthorne stated (Family Report at [45]) that it was the mother's proposal that the child spend day time only time with the father every five weeks until he is eleven. The mother said this was incorrect. She said she had never told Dr Hawthorne that was her proposal, and had not told Dr Hawthorne her proposal was one that would have that result. She gave no evidence of the proposal she did outline to
Dr Hawthorne.
In cross-examination, Dr Hawthorne denied the mother told him her proposal was for day time only contact between [X] and the father until [X] commenced school. Referring to his contemporaneous notes of his interview with the mother, he said that as is his usual practice he first asked what orders the mother was seeking. He said she told him she was seeking orders that the child spend time with the father from 9am to 5pm on consecutive days until the child was old enough to fly unaccompanied, and based on [Y] having just commenced to do so, [X] would need to be 10 or 11 to begin flying unaccompanied.
Dr Hawthorne was not further challenged on this point after he gave this evidence.
No issue about Dr Hawthorne’s credit as a witness was raised in submissions on behalf of the mother, and as already indicated, there was no issue about his credit. I accept Dr Hawthorne’s evidence and find this is another example of the mother not telling the truth on her oath.
Dr Hawthorne expressed the opinion that if the parents were to live in the same location, be it in Sydney or Tasmania, the chid is potentially able to develop a significant relationship with his father. This would depend, according to Dr Hawthorne, on the father's continued commitment to his son, and the mother’s resolve to provide the child with the opportunity to spend substantial time with the father. He observed that at that time the mother did not reflect that resolve. However, since then the mother’s proposals have change and provide for the child to spend greater time with the father than she was previously proposing.
Dr Hawthorne also commented that the mother's commitment to breastfeeding [X] until age two or so appeared stronger than her desire to provide the child with the opportunity to spend even a full day in his father's care. That statement, not strictly in my view an expert opinion, but rather an inference drawn from facts of which he was aware, must be reconsidered in light of the evidence now before me. The father conceded in the witness box before me that he supported the mother breastfeeding the child until age two, and that the child had refused to take expressed milk from a bottle since about six months of age. That necessarily places certain practical constraints on the time the child could spend with the father.
Dr Hawthorne recommended that-
a)The parents have shared parental responsibility;
b)The child continue to live with the mother;
c)The child frequently spend time with the father “and that the length of time be gradually increased to the stage where (the child) spends significant and substantial time with (the father), say by the age of three”.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. Section 60B sets out the objects of Part VII and the principles underlying those objects.
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 deciding what parenting order to make, the child’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the child's best interests.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles 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.”
If the court is to make an equal shared parental responsibility order, the court must consider the child spending equal time with each parent, and if such an order is not to be made, must consider the child spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (s.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)). As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho & Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, P & P, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340.
In relation to parenting cases involving a proposal to relocate the child’s place of residence, Desau J, in M & S, [2006] FamCA 1408, (2006) 37 Fam LR 32, (2006) FLC 93-313, a case decided within six months after the commencement of the Shared Parental Responsibility amendments, and shortly after the Full Court delivered its decision in Goode & Goode (above), summarised the pre-Shared Parental Responsibility law as follows:
“21. … In an effort to distil the complexity of the law, the Full Court had set out the applicable principles and the approach for a trial Judge in A and A (Relocation Approach) (2000) FLC 93-035 (considering the binding authority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852). It provided three steps for the judge (at para 82):
‘1. Identify the relevant competing proposals;
2. For each relevant s. 68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s.60B;
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.’
22. Expanding on the second step, the Full Court in A and A added:
· As one, but only one, of the matters considered under s. 68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
23. The Full Court emphasised that none of the parties bore an onus to establish that the relocation would promote the best interests of the child, and the applicant could not be required to demonstrate ‘compelling reasons’ for the relocation. Significant weight had to be attached to the parent’s right to freedom of movement, but subject to the child’s best interests, which remained the paramount though not the sole consideration. And, in deciding best interests, the court had to consider the arrangements each parent proposed for the child to maintain contact with the other and if necessary, devise a regime which would adequately fulfil the child's right to regular contact with a parent no longer living permanently in close physical proximity.
24. In Bolitho and Cohen (2005) FLC 93-224, the Full Court noted that the High Court in U and U (2002) FLC 93-112 had reaffirmed that the ‘overarching issue’ in relocation, was to ensure that any parenting order was in the best interests of the particular child. It noted too that U and U ‘… ameliorated the somewhat rigid and/or formulaic approach set out in A and A.’ The Full Court (at para 72) referred to the High Court having said:
‘…that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.’”
In relation to the changes effected by the Shared Parental Responsibility amendments, her Honour said:
“28. Although there is nothing in the new legislation explicitly altering the previous approach to relocation whereby the court was obliged to consider the child’s best interests as the paramount consideration, the amended Act does provide a context, through its objects, principles, and particular considerations, that is substantially different from the context in the previous legislation. As the Full Court in Goode’s Case observed (at para 72):
‘… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…’
…
38. Counsel for the father submitted that the new Part VII provisions effectively cast an onus of proof on the applicant for relocation. They do not, and it is clear that was not the intent of the amendments. The legislature has not explicitly prohibited the relocation of a child away from one parent. It has not introduced a specific presumption against it, nor an onus of proof on the moving party. Nor has it suggested that just because the relationship between a child and a parent will inevitably be affected by a move away, that in itself should preclude the court from permitting the relocation. Otherwise, given the inevitability of some change to the nature of the child/parent relationship when the structure of the time spent together is changed, virtually all requests for relocation would as a matter of course be disallowed. Had that been the intention, the Act would have been amended accordingly.
39. The objects and principles of the Act, the primary and additional considerations under s 60CC, together with the various provisions in relation to equal shared parental responsibility, direct the court squarely to maintaining the important relationship between a child and his/her parents. But the child’s best interests remain the court’s paramount consideration (s 60CA). In the opening words of the objects provisions in s 60B(1) of the Act, and again in s 60B(2) where it is stated that the principles set out there apply ‘except when it is or would be contrary to a child’s best interests’, the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.”
Strickland J in C v T ([2006] FamCA 1198) and Brown J in Mazorski & Albright ([2007] FamCA 520, (2007) 37 Fam LR 518) made similar comments in relation to the continuing paramountcy of the best interests of the child, the changed legislative context in which those interests are now to be assessed post the Shared Parental Responsibility amendments, the absence of any presumption against relocation, and the absence of any onus of proof on the applicant for relocation. See also comments by Boland J, sitting as the Full Court of the Family Court of Australia, as to the correct approach in Morgan & Miles, [2007] FamCA 1230 at [79] – [81], (2007) FLR 93-343, (2008) 38 Fam LR 275.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
In this context, meaningful “is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’” and “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child” (per Brown J in Mazorski v Albright, [2007] FamCA 520 at [26], (2007) 37 Fam LR 518, approved by the Full Court (Bryant CJ, Faulks DCJ and Boland J) in McCall & Clark, (2009) FamCAFC 92 at [115] and [121]; (2009) FLC 93-405, 41 FamLR 483). “What the legislation aspires to promote is a meaningful relationship, not an optimal one” (per Kay J in M v S, [2006] FamCA 1408 at [36], (2006) 37 Fam LR 32, (2007) FLC 93-313, approved in McCall v Clark, Ibid at [116].
In assessing this consideration, “(t)he court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”. Depending on factual circumstances, the court may also need to “consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made” (McCall & Clark, Ibid at [118] and [119]).
“(T)he legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests” (Ibid at [121]).
There is no issue that the child can benefit greatly from a meaningful relationship with both parents. However, the “meaningfulness” or significance of the relationship for a child not yet two must be different to that for an older child. Put another way, the way in which a meaningful or significant relationship can be created or developed must be affected by the stage of development of the child, and ought to be informed by social science learning on stages of childhood development and attachment theory.
It is unfortunate that the court ultimately did not receive the benefit of direct evidence from Dr Hawthorne about “any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children” (McCall & Clark, Ibid, at [126]), despite my comment before Dr Hawthorne’s cross-examination that I would be greatly assisted by the eliciting of such evidence. However, counsel for the wife consented to me having regard to the general import of that literature to the effect that close parental attachments and bonds are formed in the first four or five years of a child’s life, and that the formation of such attachments and bonds requires frequent personal interaction between parent and child.
Both parents propose a regime that ought to facilitate a meaningful relationship in this sense, bearing in mind the child’s age. It need not be affected whether the child lives in Sydney or Hobart as the father will follow if the child is permitted to relocate.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This consideration is irrelevant.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child is too young to express any views.
(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)
Dr Hawthorne, having observed interaction between the child and each of his parents and with [Y], expressed the opinion that the interaction was “relaxed and natural, suggesting that (the child) was comfortable with each of them”. The child displayed no distress at separation from them at the end of their time with him.
However, Dr Hawthorne also expressed the opinion that the “short time that father and son have been together and the long separation at a critical period of [X]’s development of attachment have undoubtedly prevented the establishment of any significant closeness between” them. While in Dr Hawthorne’s opinion this at least in part is the product of the mother's unilateral relocation of the child to Tasmania, it remains a “fact on the ground” and cannot be ignored simply because the mother bears some culpability for the situation. The culpability is relevantly taken into account when considering other relevant factors.
I am satisfied there is a close bond and attachment between mother and son, the product of the constant physical closeness between them and the extent to which the mother has been the parent who has met the child’s needs, especially since separation.
I am satisfied there is a good relationship between [X] and [Y].
I also infer that the child has a good relationship and is comfortable with the paternal grandmother, the mother at one stage during the hearing while under cross-examination authorising the paternal grandmother to tend to the child in the Child Minding Area of the court when advice came to the courtroom that the child had become distressed.
I accept that the child during his five months living in Tasmania would have gained some familiarity with his extended maternal family living there, and relationships would have commenced to form.
The state of any relationships, probably quite embryonic, that may have begun to form between the child and his extended paternal family in Newcastle is quite uncertain because of the lack of any information from the father about the amount of time the child has spent with them since returning to Sydney in mid September. I am satisfied there was no relationship in existence with these family members before then because of the very rare encounters with them, none occurring from November 2008 until after September 2009.
(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
The mother said she made an error of judgment in deciding to remain in Tasmania in April 2009 without the father's agreement. But I am deeply concerned about the sincerity of this evidence in light of the findings I have made in relation to the mother's credit.
The mother’s attempt to mitigate her culpability for the unilateral relocation with an obviously spurious justification casts doubt in my mind on her professed admission that she made an error of judgment. There is a strong sense that the mother in parts of her evidence has attempted to misrepresent aspects of her case, including her attitudes to the father and his significance in the life of the child, in an effort to win from the court the permission she seeks to move the child to Tasmania.
The mother said in cross-examination that she still believed, as she had said in her affidavit for the interim hearing, that if the father remained in Sydney, due to his work commitments he would not have the capacity to develop any better relationship with [X] whether the child lived in Sydney or Tasmania. This is despite the less frequent time together that would necessarily result from the geographic separation if they lived in different States. She confirmed in cross-examination that her view was that the child could have just as good a relationship with the father if he spent time with the father every five weeks or so as if he saw the father on a regular weekly basis.
The mother is intelligent and well educated, having embarked on research for her PhD. She supported her decision to breastfeed [X] until age two, a decision the father supported, on the basis of extensive research she had undertaken. I explicitly referred in my judgment determining the interim proceedings to the importance of more frequent time spent between parent and child “in the early years of the child’s life, when strong, long term parental bonds are formed” (at [82]) and commented that spending time together every three weeks, as the mother then proposed, would “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”, which was “particularly pertinent at his young age” (at [88]). For the mother to nonetheless assert that the child can have just as good a relationship with the father if he spends weekly time as if he spends time every several weeks suggests that she is either wilfully ignorant, having not used her undoubted research skills, skills she used in relation to breastfeeding, to inform herself on this topic, or she is again lying on her oath in an effort to secure permission to relocate.
I find that the mother does not have a real appreciation of, nor commitment to, the relationship between the child and his father, despite the mother's protestations about a similar inference drawn by the Family Consultant. I emphasise that my finding is not based on
Dr Hawthorne’s statements in the Family Report, which as I say are inferences from facts as he understood them, and not an expert opinion. I base it on an inference I draw from the above evidence. I find that in unilaterally relocating despite the father's explicit objection, the mother has failed to facilitate the father's participation in making a decision about a major long-term issue in relation to the child, and has failed to facilitate the father spending time with the child (see s.60CC(4)(b)). I am not satisfied the mother is committed to facilitating a close and continuing relationship between the child and the father.
I find that the father is both willing and able to facilitate and encourage a close and continuing relationship between the child and the mother.
(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
If the child moves to Tasmania, there will be no impact on the time the child can spend with the father, because of the father's intention to move to Tasmania if the chid does. Such a move would, however, come at some significant cost to the relationship between the child and the paternal grandmother, who would not be able to see the child as frequently, despite the fact that the paternal grandmother maintains a relationship with a grandchild living in New York.
On the other hand, I am satisfied it is more likely than not that a move to Tasmania would reduce or eliminate the adverse impact on the child flowing from the mother's Major Depressive Disorder through a likely amelioration or resolution of her depression.
The difficulty is that there can be no objective empirical measurement of the detriment to the child from the diminution in the relationship with the paternal grandmother or the reduction in the detriment to the child from an amelioration of the mother's depression.
(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
In the circumstances of this case, this is irrelevant.
(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
I am satisfied the father has the capacity to meet the child’s needs. I am satisfied the mother has and will continue to meet the child’s needs, subject to the qualification that I am not satisfied she appreciates the importance to the child of a close and loving relationship with the father, or is committed to encouraging and fostering such a relationship.
(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 age, close primary attachment to the mother, and breastfeeding regime until two are significant matters that must affect the crafting of any regime for spending time with the father. The time must be frequent with a child of this age, but it must not be of such duration as to cause the child distress from over-long separation from his primary attachment figure. The child needs to progress gradually towards spending substantial and significant time with the father.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
My comments about the mother's willingness and ability to facilitate and encourage a close and continuing relationship between the child and his father are equally applicable here.
(j) Any family violence involving the child or a member of the child’s family
This is not relevant.
(k) 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.
(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
Neither of the parties’ proposals appear more likely not to lead to further litigation.
(m) Any other fact or circumstance that the court thinks is relevant
The other relevant matters do not go to the child’s best interests and will be dealt with hereafter.
Assessment of parties’ proposals
The father's proposal, subject to a consideration of the detail of the spending time regime, has the advantages that the child will continue his good relationship with his paternal grandmother, and he will in future have an opportunity to develop relationships with members of his extended paternal family in Newcastle. The father would not have to uproot himself and move away from work, family and friends, a relevant consideration albeit subservient to the child’s best interests. It has the disadvantages that the quality of the mother's parenting of the child, the mother being the undisputed primary carer of the child into the future, would continue to be compromised by a likely continuation and perhaps exacerbation of the mother's depression, the material standard of living of the child would be less than if he moved to Tasmania, the child’s newly begun relationships with his extended maternal family in Tasmania will be significantly disrupted, and the mother's freedom of movement, another consideration that is relevant, albeit subservient to the child’s best interests, would continue to be curtailed. Another relevant consideration that is subservient to the child’s best interests and which is a disadvantage of the father's proposal is the mother's inability to afford private schooling in Sydney for [Y], who clearly wishes to continue at her private school in Hobart but will not be able to if the mother cannot relocate with [X].
The mother's proposal, subject to a consideration of the detail of the spending time regime, presents the reverse advantages and disadvantages.
On balance, I am satisfied that the considerations going to the child’s best interests favour the child living in Tasmania. While the mother's lack of commitment to the father/son relationship, and her failure to facilitate the father's participation in such a major issue as the relocation, would raise serious issues if there was to be significant geographic separation between the parents and spending time arrangements would need to rely heavily on her commitment to make them work, the father's intention to move if the child also moves effectively removes this as a strong argument against a parenting regime under which the child would move to Tasmania. While as I have said there can be no objective empirical measurement of the advantage to the child of any reduction or elimination of the mother's depression from a relocation and the disadvantage to the child of a diminution in the quality of his relationship with his paternal grandmother that a relocation would bring, I nonetheless must place significant weight on matters going to the effectiveness of the primary carer as a parent. Thus, while I am sure the paternal grandmother will be bitterly disappointed at losing her previous closeness to [X], and [X] will be disadvantaged by a loss of the former degree of closeness, I am satisfied the potential benefits to the child of living in Tasmania outweigh the disadvantages of doing so and the advantages of remaining in Sydney.
So far as the time the child should spend with the father is concerned, Dr Hawthorne expressed the view that there was no “magical age” for commencing overnight time. He said he had no difficulty with the mother's ultimate proposals if the parents lived in reasonably close proximity to each other. He was not asked by the mother's counsel whether he had any difficulty with the father's proposals. It was not submitted that the father's proposals were inconsistent with anything Dr Hawthorne said.
Dr Hawthorne said the significant issue for him was not so much the amount of time the child spent with the father but rather the father's involvement in and assumption of responsibility for the child’s day to day life. Nonetheless, Dr Hawthorne did recommend that “significant and substantial” time commence “say” when the child was about three. That will be in mid March 2011. That is not to say there should be no overnight time before then.
As the parents agree there should be an equal shared parental responsibility order, the court must consider an equal time arrangement. The culmination of the father's proposed regime for spending time with [X] will entail the child spending seven nights each fortnight with each parent. While it will entail the child spending four hours less than half the time each fortnight with the father, it is essentially an equal time arrangement.
Despite the Family Consultant’s reference to the child spending “significant and substantial time” with the father by about the age of three, I do not see anything in the Family Consultant’s report to contra indicate an equal time arrangement. I am satisfied the father has much to offer his son, is focussed on his son’s best interests, and is strongly committed to pursuing the strongest possible relationship with him. I am satisfied the child has much to gain from the opportunity to develop a strong and enduring bond with his father, an opportunity that has been denied him since separation by the limitations on his time with the father imposed by the mutually agreed breastfeeding of the child and the mother's unilateral relocation, placing further significant constraints on the time the child could spend with the father for five months. The child is at a critical stage of his development in relation to the establishment of strong parental attachments, and if he is to be given to opportunity of developing such an attachment with his father, it is crucial he frequently spend significant amounts of time with him. This is especially so because of the adverse view I have formed of the mother's commitment to encouraging a close relationship between father and son, despite her evidence to the contrary.
I am satisfied that an escalating regime of spending with the father culminating in the child spending the time the father seeks with him is in the child’s best interests. I take the view that the child’s time with the father should increase more quickly than proposed by the mother, but not as quickly as the father proposes. The father's proposal would entail the child spending seven nights each fortnight with the father from 1 December 2010, before the child’s third birthday. While I am satisfied that should be the culmination of the escalating regime of spending time, I am not satisfied that should commence before the child turns three. I am satisfied the child should commence spending one night a week with the father from the child’s second birthday, when the mother intends to wean the child. Thereafter the father's time should increase incrementally every three months culminating in the child spending a total of seven nights a fortnight with the father.
Decision
I am therefore satisfied that it is in the child’s best interests that the parents have equal shared parental responsibility, that the child primarily live with the mother in Tasmania until the father can relocate and an equal time arrangement be implemented, and that until an equal time arrangement can be implemented the child spend frequent time with the father, being day time only until the child turns two, and then increasing every three months until the child is spending seven nights a fortnight with the father. I am satisfied the mother should be permitted to relocate the child’s residence to the Hobart area from late January 2010, for the commencement of [Y]’s school year. This will give the father the opportunity to at least begin the process of arranging to relocate, and ensure the child is able to spend ongoing frequent time with the father for as long as possible before the child relocates.
Although not the subject of evidence, I proceed on the basis that the father will probably not be in a position to relocate permanently as soon as the mother will, and there will be an indeterminate period when the child is in Tasmania and the father is still residing in NSW. I will make orders to attempt to maintain the father/son relationship until the father can relocate.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 22 December 2009
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