Kirshaw and Trowell

FAMILY COURT OF AUSTRALIA

KIRSHAW & TROWELL

[2011] FamCA 7

FAMILY LAW – CHILDREN – Child related proceedings – mother seeks to relocate with the child from Sydney to Canberra – expert evidence in relation to particular behaviour vulnerability of the child – oppositional and defiant behaviours – the need for the child to have a settled environment – application to relocate refused

Family Law Act 1975 (Cth)

Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Ms Kirshaw

RESPONDENT:

Mr Trowell

INDEPENDENT CHILDREN’S LAWYER:

Slade Manwaring

FILE NUMBER:

SYC

6548

2008

DATE DELIVERED:

13 January 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

6-7 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Millar

COUNSEL FOR THE RESPONDENT:

Mr Jackson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

Orders

The parents have equal shared parental responsibility for S, born … January 2004 (“the child”).
The mother’s application to relocate the child’s permanent place of residence to Canberra is refused.
The child live with the mother.
The child spend time with the father as follows:
(a) during school term:
(i)in Week 1 – from after school on Friday to before school on Monday and
(ii)in Week 2 – from after school on Wednesday to before school on Thursday.
(b) during school holidays:
(i)until the commencement of the 2012 school year – the first and third weeks of the long school holiday periods and one week in the short term holidays.
(ii)from the commencement of the 2012 school year – one half of all school holiday periods, the first half in even numbered years and the second half in odd numbered years.
Notwithstanding any order above, the child spend time with each of her parents as follows:
(a)       on Mother’s Day – from 9.00 am to 5.00 pm with the mother
(b)       on Father’s Day – from 9.00 am to 5.00 pm with the father
(c)on the child’s birthday – for not less than three hours (or 2 hours if it is a school day) with the parent she is not then living with / spending time with
(d)       for Christmas:
(i)
in even numbered years – from 6.00 pm Christmas Eve to

6.00 pm Christmas Day with the mother and from 6.00 pm Christmas Day to 6.00 pm Boxing day with the father
(ii)in odd numbered years – from 6.00 pm Christmas Eve to 6.00 pm Christmas Day with the father and from 6.00 pm Christmas Day to 6.00 pm Boxing Day with the mother.
(e)       for Easter:
(i)in even numbered years – from 6.00 pm Good Friday to 6.00 pm Easter Saturday with the mother and from 6.00 pm Easter Saturday to 6.00 pm Easter Monday with the father
(ii)in odd numbered years – from 6.00 pm Good Friday to 6.00 pm Easter Saturday with the father and from 6.00 pm Easter Saturday to 6.00 pm Easter Monday with the mother.
The parent whom the child is living with / spending time with, do all acts and things necessary to facilitate her communication by telephone and/or Skype with the other parent at all reasonable times upon her request.
Neither parent shall speak critically or rudely about or to the other, or allow another to do so, in the presence or within the hearing of the child.
At all times, the parents shall communicate with the other civilly and courteously.
The parties each pay one-half of any fees of Dr L referrable to his preparation and attendance at the Family Court of Australia on 7 December 2010.
The mother and father be permitted to vary these orders, by agreement made in writing between them.
Each parent forthwith enrol in, attend and complete a Parenting After Separation course (with Relationships Australia, Interrelate or Centacare).
Pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kirshaw & Trowell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6548 of 2009

MS KIRSHAW

Applicant

And

MR TROWELL

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings in which the parties seek different parenting orders in relation to the parenting of their child,

S, born in January 2004 and currently aged 7 years. Neither parent seeks an order for sole parental responsibility, however the father and mother are at issue in relation to the times the child should spend time with each of them.
Importantly, there is also the issue of the mother’s request that she be permitted to relocate the residence of the child from Sydney to Canberra. The mother said that such relocation will afford her additional support from her family, provide a better environment for the child and further enable the child to have the benefit of a closer association with her extended maternal family. The mother asserts that such relocation will not deprive the child of a meaningful relationship with the father.
The mother has put a number of propositions to the Court as to how the child might continue a relationship with the father and indeed has given evidence (albeit without detailed particulars) that she will go so far as paying for accommodation for the father and child in Canberra and for aeroplane flights so that the child can come to Sydney to see the father should he choose to remain in Sydney.
The father seeks an order for equal shared parenting and an order that the child spend equal time with each of her parents.
He asserts that the present application is yet another action of the mother in a series of actions in which she seeks to restrict or eliminate his relationship with his daughter. The mother denies this assertion.
The mother asserts that the child has been traumatised in her life by the departure of her father to Italy on more than one occasion and his disappearance from her life. The father says that he has returned to Australia and is now working in Sydney and can, and wishes to, fulfil his responsibilities as a parent. He acknowledges that he made a significant error in departing for as long as he did. The Court accepts that his regret is genuine. He explained that the departure of a parent for a time was experienced by him when he was a child and he perceives that it had no adverse effect on him. He now has insight into the impact of his departure on his daughter.
The relationship between the parties has previously involved high levels of conflict, with assertions by the mother of intimidation and parental violence, which assertions are denied by the father. However, the parties agree that for at least the past year and possibly longer, the relationship between them has improved and they are better able to communicate with each other.
The mother, while accepting that such improvement had taken place, also said that recently communication broke down when the child complained of being disciplined physically by the father for bad conduct. The father denies the allegation of physically disciplining the child but asserts that she was disciplined for inappropriate behaviour and disciplined appropriately.
Both parties gave evidence that the child is beloved by them and that they acknowledge that the child loves each of them. There appears on the evidence to be a close relationship between the child and each parent but unsurprisingly there seems to be a primary attachment of the child to the mother.
There was evidence before the Court from each of the parties, their extended family and some friends. The Court was further assisted by the evidence of Dr L, an expert witness called by the Independent Children’s Lawyer.
Considering all that evidence and coming to a decision on the management of this child’s life in a way which will best promote her welfare is the task facing the Court in circumstances where the parties are either unable or unwilling to agree on her future.

Background Facts

Where in this Judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1933 the paternal grandmother was born.
In 1937 the maternal grandmother was born.
In 1966 the father was born and is currently aged 44 years.
In 1970 the mother was born and is currently aged 39 years.
In early 1971 the father moved to Italy to live with his parents.
In 2000 the father returned to Australia.
In April 2001 the parties met.
In May 2001 the father went to Italy for a visit.
In October 2001 the father returned to Australia.
In March 2002 the parties commenced cohabitation, and became engaged.
Between October 2002 and February 2003 the parties were separated.
In February 2003 the parties reconciled.
In March 2003 the father visited Italy.
In April 2003 the father discovered that the mother was pregnant and the mother joined the father in Italy.
In September 2003 the mother left Italy and returned to Australia and the father joined her in November 2003.
In January 2004 the child, S, was born and the parties commenced to rent a flat in Sydney.
In June 2004 the parties separated and the father returned to Italy and commenced employment.
In December 2004 the father returned to Australia.
In February 2005 the parties returned to Italy as a family.
In April 2005 the mother and the child returned to Australia and the father remained in Italy.
In August 2005 the parties were reunited in Italy and the family lived in a village near Rome.
In July 2006 the parties separated in Italy.
On 29 November 2006 final parenting orders were made by consent. The mother, who was legally represented in the process, said that the orders were made under duress in that the father declined to sign documents to permit a replacement passport to be issued for the child after the original was lost by the mother. The father agreed that he wanted the orders made before the mother left Italy taking the child with her so that he could have some certainty in seeing the child. It appears that there was a measure of bargaining going on at that time but nevertheless the orders were made and each party had legal representation.
In December 2006 the mother returned to Australia with the child.
In August 2007 the father returned to Australia.
In December 2007 the mother, following a discovery that the child had been taken to see her paternal grandparents in Australia, temporarily prevented the father from seeing the child.
In January 2008 the father went to Italy and the mother commenced work.
On 7 November 2008 the mother filed an Application for Final Orders seeking a variation of the orders previously made and for permission to relocate to Canberra.
In December 2008 the father returned home to Sydney and commenced to live with his parents.
On 25 February 2009 the father filed a Response to Initiating Application. By March 2009 each of the mother and father were employed.
In April 2009 an interim order was made varying the order previously made, by providing the time the child spent with the father on a weekend would not include time overnight, and that the child would spend time with the father during the day on a Saturday for two out of three weekends.
In May 2009 the father ceased to live at his parents’ home and moved to the eastern suburbs of Sydney.
In September 2009 an application to the Waverley Court brought by the mother in relation to apprehended violence was settled by mutual undertakings being given, apparently without admission.
In February 2010 the paternal grandfather died.
In May 2010 the report of Dr L, the independent expert, was released.
On 26 July 2010 further interim orders were made by consent and which restored the child’s overnight time with the father and since then that time has been spent by the child with the father.

The Issues

The parties filed a list of issues, which became Exhibit 8, in the following terms:
1.Regarding child living with the mother:
a.child’s primary attachment to mother
b.mother’s greater capacity to provide for child’s needs
c.impact on the child of separation from the mother
d.father’s hostility towards the mother and the father’s lack of willingness and ability to facilitate, and encourage the child’s relationship with the mother
e.mother’s hostility towards the father and the mother’s lack of willingness and ability to facilitate and encourage the child’s relationship with the father.
2.Regarding father’s time with the child:
a.child’s special needs
b.father’s work and overseas commitments and the effect on the practicability and consistency of care for the child
c.the father’s lack of capacity to provide for the needs of the child, including emotional and intellectual needs due to child’s special needs
d.the practicality of an equal time arrangement noting the factors set out in section 65DAA(5)
e.the practicality of a substantial and significant time arrangements noting the factors set out in section 65DAA(5).
3.If the father continues to seek shared care:
a.the poor quality of the communication between the parents
b.the lack of trust between the parents
c.different parenting styles
d.history of conflict between the parties
e.father’s verbal abuse of the mother
f.mother’s verbal abuse of the father.
4.Regarding parental responsibility:
a.lack of communication between the parties and capacity to reach agreement
b.allegations of family violence.
5.Regarding mother’s application to relocate with the child to Canberra:
a.benefits to the child of living in Canberra
b.child’s positive relationship with maternal grandmother and maternal aunt who live in Canberra
c.availability of extended family support to the mother and child
d.mother’s capacity for employment improved in Canberra
e.lack of financial support for mother and child from father
f.minimal effect on quality of relationship between father and child including frequency of time if relocation application successful
g.impact on mother and child if application to relocate denied
h.impact of the child’s physical separation from the father in the event the mother is permitted to relocate to Canberra
i.impact of travel on the child.
In broad terms and in addition to seeking leave to relocate the child’s residence to Canberra, the mother sought orders that the child have contact with the father each alternate weekend; on one such weekend in Canberra and on the other weekend in Sydney. The mother proposed that on the Sydney weekend she would drive the child to Berrima.
The father sought orders that the child live with the parents on a “week about” basis during the school term but that otherwise the child spend half of the school holidays with each parent. The father opposed the child’s relocation with the mother to Canberra. Orders were sought to facilitate communication between the child and each of the parents.
The Independent Children’s Lawyer also opposed the relocation and sought orders that the parties have equal shard parental responsibility for the child; that the child live with the mother; the child spend time with the father and mother on “special days” in accordance with a timetable and that during the school term the child spend time with the father in week one from after school on Friday to before school on Monday and in week two from after school on Wednesday to before school on Thursday.
It was further sought by the Independent Children’s Lawyer that until the commencement of the 2012 school year that the child spend time with the father during the first and third week of the long school holiday periods and for one week in the short term holidays, and that from the commencement of the 2012 school year that the holiday time increase to one half of all school holiday periods. Orders were sought to facilitate contact between the child and the other parent by telephone and Skype in addition to orders restraining conflict by restraint on certain behaviour. An order was also sought that the parties attend a post separation parenting course.

Relevant Law

Legal principles

The principles governing this case are set out in the Family Law Act 1975 (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, I must consider certain matters under section 60CC. Those matters are the “primary considerations” and the “additional considerations” set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the child and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the child spending equal time or substantial and significant time with each parent, where the court is proposing to make an order that the child’s parents are to have equal shared parental responsibility.

Credit

The mother gave evidence in a fashion which did not inspire confidence. Her reluctance to answer the question asked and instead to provide a statement or history unrelated to it continued throughout the giving of her evidence, notwithstanding a warning from the bench that the apparent avoidance of questions would not stand well for her in the assessment which had to be made of her credit.
Her willingness to make any statement which she thought might support the Court’s view of her application for relocation demonstrated a depth of desire in relation to that outcome but again did not inspire confidence that such promises as were made in evidence were likely to be sustained with the same enthusiasm. Her avowal of benefits to the child in the proposed relocation did not, with some exceptions, seem to the Court to be other than the repetition of slogans, such as “the move will advance the best interests of the child” or words to the like effect.
Nevertheless, much of her evidence rang true. I therefore do not make a blanket ruling about her lack of credibility that would dismiss all her evidence. My findings as to credit are reflected in my findings of fact from which it will be apparent as to the evidence I prefer.
The father’s evidence was not free of combative responses and answers to questions which avoided them. However, in this regard he was less committed to the practice than the wife. For example, he admitted errors in his affidavit material on more than one occasion. The father gave evidence that his Italian heritage tended to perhaps make his speech more histrionic as compared to his Anglo-Saxon counterparts. I think that there is some truth in that but it can be but a short step from histrionic articulation to speech which might to some seem intimidating or threatening. His denials were prompt and emphatic and he was not shaken from many of them. I do not, as I am urged to do, take into account the prompt and straightforward nature of his denials as evidence of a lack of credibility, however once again, I make no blanket finding on credit in relation to the father’s evidence except to say that in the Court’s opinion, where it conflicted with that of the mother, it was on many occasions the evidence of the father that the Court preferred.

Section 60CC Considerations

Primary considerations

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents

Each of the parents said that this child should have a meaningful relationship with each of the mother and the father. Their evidence is unambiguous in that affirmation. The child has a love for each of her parents and to remove from her the opportunity to express that love in a fulsome way will, by common accord, be detrimental to the child.
If there is a geographical distance between the child and a parent it is suggested by the father and denied by the mother that that will impinge on the maintenance of such a meaningful relationship.
The mother says that a relationship can be maintained notwithstanding the distance between them in the event of her relocation. The problem with that assertion is not that a relationship could not be maintained but rather the effect of the distance on the meaningfulness of the relationship.
Dr L was clear in his evidence that the relationship presently existing between the child and her father would inevitably change in the event that the mother relocated to Canberra. It was put by the Court and he agreed that it would become a different relationship. The Court takes the view that, given Dr L’s evidence, the relationship between the father and child in those circumstances would not be a parental relationship which could be given full meaning.
If the father cannot then be part of the child’s daily life, including her social life and other aspects of her development toward her full potential, I think in this case that the relationship would not be the same and it is likely that it will change in its meaning and that the father will be someone who is “visited” in another state, remote from the ordinary life of the child. I consider that such a relationship would be akin to one with perhaps a pleasant but distant relative rather than an involved, proximate and active father who is immediately and at any time able to form part of the child’s experience of the world in the environment in which she is living, particularly as the child develops contacts and friends and activities in the area in which she is living. Such a deprivation for the child of paternal involvement in her life is not in her interests. To suggest that she might forgo a local social life is also not in her interests. The child is not a parcel to be passed between the parents. It is her life that has to be considered and she is entitled to develop peer groups and activities and not have the development of those activities interrupted by the need to travel to Sydney.
It was observed by Dr L that:
On the whole the preferred situation is where both parents can reside reasonably close to each other, so that [the child] can be stable with her mother but have a good relationship with her father.
He considered that an option for the mother to relocate was only tenable if the Court came to the conclusion that an intolerable strain would be placed upon her should she be required to stay in Sydney and away from her supports.
The mother has said that she would be devastated but as against that she and the child have lived in Sydney since at least 2008. The mother has not resided near the place of living of her mother and sister and has not demonstrated any such devastation. They indeed have been frequent visitors in her home in Sydney.
I have, therefore, come to the conclusion that the absence of such a change in the child’s life occasioned by a move to Canberra would not be outweighed by a climate of greater happiness for the mother.
In other words I do not find that the mother remaining in Sydney would so adversely affect the mother that the child would suffer as a result.
In addition, the child would have the positive benefits so emphasised by

Dr L as ones this child needs, those being of stability and an absence of change and which, on Dr L’s evidence, will promote her welfare having regard to her special needs.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Dr L’s evidence was that this child has a particular behavioural vulnerability and demonstrates oppositional and defiant behaviours. The single expert considered that the child requires:
[a] settled existence in which there is good emotional control shown by both parents, and good levels of communication and consistency in handling [the child’s] behaviour will be instrumental in preventing her deteriorating in her behaviour.
Dr L proffered the view that:
It is absolutely imperative that the prior volatile relationships between the parents cease in order not to exaggerate the oppositional and hypervigilant behaviours currently demonstrated by [the child].
For all the conflict which has passed in this case, the Court is of the view that the parties are not unintelligent and have the ability to not only hear and understand Dr L’s words but also to put them into practice. Following on from that is a consideration of whether they have the will to do so. It is the Court’s view that such is their love for their child that they will do so for they now know that a failure to do so will cause injury to their child and be a form of abuse of the child.
There is a clear need to protect this child from instability. To relocate the child to Canberra would afford her yet another change in her schooling in circumstances where she has already had a number of such changes. She will change the residence in which she has lived for a large part of her life. In addition, she will have to change her friends and surroundings and will not have, as she does at the present, a relationship of the same nature with her father and paternal grandmother. The relationship with the grandmother appears friendly although as yet the paternal grandmother does not speak English and the child does not speak Italian. The grandmother however says that they “understand” each other. She has been able to maintain a relationship with her maternal aunt and her maternal grandmother each of whom visits the child in Sydney and it seems in the 2010 year visits occurred between them on almost a monthly basis and for significant periods.
A lot of evidence was adduced by the mother which if believed might suggest that the father, who is a man of a demonstrative nature, was a person of whom the child was frightened. However, the child demonstrated no such fear in her interaction with the father with Dr L. The father frankly says that the child is naughty on occasions and that is in accord with Dr L’s assessment of her as having oppositional behaviour and also with some reports from the school. The father also agrees that he disciplines the child, but says he never does so excessively. I accept the father’s evidence in that regard and accept that the interaction between the child and the father does not demonstrate any such fear. Indeed, Dr L gave evidence of the child opposing the father and it seems without fear of any consequences.
The father made grand statements on occasion and, for example, said to

Dr L that he would return to Italy if he did not get his way, a statement acknowledged somewhat ruefully by the father. Such remarks could be seen as threatening or intimidating but there is no evidence which the Court accepts that the father has deliberately hurt his daughter. It certainly appears that his conduct in remaining away for a significant period of the child’s life might have caused the child psychological harm but in the Court’s view it was an act of ignorance rather than one done with a deliberate intent to hurt. The father’s ignorance on these matters is now the subject of the education received by his exposure to Dr L’s evidence.
A move away from her long established home, school, friends and father will be a risk to the child’s stability and a move away from her paternal grandmother will likewise represent a change to her life as she presently knows it, although perhaps not as lasting.
It is the Court’s view that a failure to move to Canberra, given their past conduct in coming to Sydney, is not likely to be restrictive of the established relationship between the child and her maternal aunt and maternal grandmother.
Given the emphatic nature of the evidence that stability is required for the child, it is not seen by the Court as being in her best interests to move for those reasons and a refusal of permission for the mother to relocate is prima facie necessary to protect the child from harm.
The question is whether that prima facie view might be overturned when measured against the asserted effect of an order that the mother cannot relocate with the child. She says that she would be “devastated”, if not permitted to relocate the child’s residence to Canberra. In relation to the mother, Dr L said that in that event:
[The mother] will have to accept a significant sacrifice in her well being if both parents are to remain living in Sydney. Her needs for support appear to be genuine and hence preventing her from settling in the ACT will have an impact on her, to her detriment. However, she does present as having some resiliency.
It appears however that the mother informed Dr L that:
She sees her family much less than she likes. Her mother is currently 73 and getting somewhat frail. Her mother did visit occasionally through 2009 but clearly [the mother] wants to spend more time with her mother.
It appears that the mother did not tell Dr L of the times when her mother had visited her in 2010 and the times that her sister had visited her. It seems to the Court that the mother has maintained a continuing relationship with her family and there is no apparent reason for her not to continue to do so. Given that she speaks of the ease of movement to Canberra, she clearly would have the same opportunities to visit her mother as such a move would afford the father to visit his daughter. One of the incidents and responsibilities of parenthood is sacrifice of one’s preferences for the best interests of the child, where the two conflict.
The mother said to Dr L that she accepted that a move to Canberra would mean a reduction in time between the child and her father when he is in Australia. There is no evidence of any present intention of the father to return to Italy.
The mother asserts that she needs the support of her family because she needs to go back to work. At the date of the hearing the mother was undertaking work in Sydney and had previously done so in Sydney and had employed a nanny.
Given the matters referred to above it seems to the Court that it is more probable than not that the harm to the child occasioned by a move to Canberra would be more significant than any harm which might be caused by an inability of the mother to live near her family.

Additional considerations

(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 has expressed to Dr L that she likes her mother and her father equally. She informed him:
… that her Mum, Dad, Nan and her grandfather were fun and she would not discriminate between them
She further said:
… she misses her Dad when he goes away and she said she has a good time with him and looks forward to him being with her.”
Dr L concluded at this point:
… that [S] is a young girl who simply wants to have time with her father on a regular basis and seems quite comfortable living with her mother.
At one stage the child said that she wanted to go and live in Canberra but in that exchange Dr L took the view that the child might have been spoken to by her mother. I accept, however, the evidence given that after spending a holiday in Canberra, the child expressed a desire to live there. It seems to the Court that the child’s predominant views are that she wishes to continue her relationship with each of her parents. It does not seem to the Court that her expressions of view about living in Canberra should be given weight except to the extent that they reflect that the child had a good time there. It is not accepted that they are a maturely expressed and considered view and may well be influenced by what the child probably knows is the desire of her mother.
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The child has a loving relationship with each of her parents. Whilst she is primarily bonded to her mother, she is also demonstrating a strong bond with the father. That bond continues to develop as the child now spends time overnight with the father. During more recent times when this has been so, both parties have asserted that the child’s behaviour has improved. The view expressed by Dr L was that the continuation of the relationship with the father was in the interests of the child.
The child seems to have a warm relationship with her maternal aunt with whom she has spent time and also with her maternal grandmother. It is the evidence that she also has a relationship with the paternal grandmother, her “Nonna”, and the evidence is that despite the present language difficulties between them, they understand each other. The father, referring to his relationship with the child, described it as a work in progress given his previous absence from the child’s life, and saw a move of the child to Canberra as likely destructive of all that had been achieved in the rebuilding of that relationship to which he had devoted considerable effort, and which had been accompanied by a conceded improvement in the child’s behaviour.
(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
It is the father’s case that the mother has sought to impair and limit his relationship with the child whilst it is the mother’s case that the father has caused problems in that relationship. The father says that the mother does not abide by the Court orders, whereas the mother says that the father is inflexible and indeed the father accuses the mother of the like failing.
The past history of the relationship of these parties and their actions in relation to the child were the subject of dispute. The mother made assertions which it seems might have been able to be supported by reference to a diary which was not produced. A Jones v Dunkel (1959) 101 CLR 298 inference was asked to be drawn.
The Court is of the view that the history, while perhaps some explanation of the current situation, is only that. What is needed is a child-focussed solution for this child which promotes her welfare; not a raking over facts which hopefully now will be confined to the dustbins of history.
Each of the parties said that they would obey the orders of the Court. The father for his part said that flexibility was attainable within the context of orders made and the mother seemed to agree. For this reason an order will be made giving the mother and the father the power to vary the terms of the orders as to time spent by agreement.
The Court suspects that given the level of past hostility between the parties much of the allegations and counter allegations probably have some truth. It is however a matter for the Court to find the way forward and, given the assurances of the parties, the Court is reasonably confident that each of them will give effect to those orders.
Litigation never brings out the best in people and in this case it seems that no exception is found. There had, it appears, been no discussion as between the parents as to the arrangements that could be made on a change of place of living of the child.
No discussion was undertaken by the mother as to the schools the child might attend. No discussion had taken place as to the costs and who would bear them in relation to the child spending time with the father following such a change in residence.
There is no doubt that a concern reasonably existed as to the willingness of the mother to promote a relationship between the child and the father. It is submitted by Counsel for the father that the mother is unable to take responsibility for bad things that happen and takes the course of blaming the father - for the loss of a boyfriend, the loss of a nanny and for her giving up a full-time job. This, it is said, does not bode well for co-operative parenting. The mother says that all conflict will disappear in the event that she is permitted to move to Canberra. There is no basis for that optimism in the evidence.
Notwithstanding that however, the Court takes the view that these parties are able, and in the past have, demonstrated a willingness to co-operate and communicate. Absent the pending litigation, the Court hopes that process will resume. It will do that more easily if the parties live proximately rather than at a distance and the resumption of such communication can only serve the interests of the child. The parties have heard the evidence and one would hope come to an understanding (and have been given some insight into the effects of behaviour damaging to the child by the evidence of Dr L) that the main victim of intransigence and lack of co-operation is the very child for whom each of them professes love.
It is time for them to give substance to that profession of love for their child by deeds and not just by words and demonstrate to the child and the world that just because they had a failed relationship they will nevertheless continue with the business of being parents in a businesslike, polite and pleasant way.
In order to assist them in that regard, and to again direct their attention to the problems that may face them and to hopefully facilitate a more relaxed and effective dialogue between them, it is the Court’s intention to order that they attend a post separation parenting course.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The view of the expert is that given this child’s vulnerabilities, stability is a key requirement in her progress in life. Consequently, separation from either parent is likely to have adverse consequences for her. The orders the Court makes in this matter, on the evidence, must be those which promote maximum stability for her. It is the view of the Court that it is too great a change and too early a time to move from the present position in relation to parenting arrangements to the proposal of the father. Such a move has the potential to adversely affect the child at this time.
In his written submissions counsel for the father submitted that the mother has failed to appreciate the likelihood that the child developing a closer relationship with the maternal extended family, in particular her grandmother and aunt, may lead to the diminishment of the father’s role in the child’s life. Furthermore, it was the father’s position that the child has maintained those close relationships from a distance.
(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 his written submissions counsel for the father pointed to the oral evidence of Dr L which was to the effect that relocation requires increased organisational requirements with the parents.
The orders proposed by the mother included that the child spend time with the father each alternate weekend during the ACT school holidays in the first fortnight from 7.00 pm on Friday until 4.00 pm on Sunday, with such time to occur in Canberra and with the father travelling to Canberra and staying there with the child. It was the father’s written submission that the mother’s proposal in this regard lacked consideration and organisation and that she had not considered the issue of appropriate accommodation arrangements in Canberra.

The mother further proposed that the child spend time with the father in the second fortnight from 7.00 pm on Friday until 4.00 pm on Sunday, with such time to occur in Sydney and with the mother travelling to Berima in NSW for the purposes of handover. In the father’s written submissions he asserted that the mother had not adequately considered the distance involved in travelling by car between Sydney and Canberra, and that she had then raised the possibility of air travel during the hearing.
In any event, the proposal of the mother would impose an additional cost burden on the parties in travel and accommodation.
(f)the capacity of: (i) each of the child’s parents; and (ii) 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
It was the father’s evidence in his written submissions that the mother has revealed limited insight into the importance of the child’s relationship with the father.
It was the father’s submission that, in the event the mother were permitted to relocate with the child to Canberra, that the mother would not be motivated to promote the child’s relationship with the father. The father points to the asserted history of the matter, and his allegations that the mother has historically restricted electronic communication between the child and the father.
In his written submissions the father argued that in his oral evidence

Dr L was unable to specifically identify what assistance, other than general “family assistance” could be provided by the mother’s family if she and the child were to live in Canberra, but referred in his report to whether the mother would be placed under an “intolerable strain” if she were to remain in Sydney with the child, as discussed above.
The mother’s evidence, although containing some detail, was uncertain and it seemed to have been added to “on the run” as to the arrangements she might make to provide for the needs of the child to have a meaningful relationship with the father. Although asserting that that was important for the child there was a tendency for the mother to tailor her evidence from time to time to the needs of her case rather than to recount considerations made as a result of careful forethought. This did not give rise to a feeling of confidence about arrangements she might make. It seemed she had not given much thought to in what premises the father and the child might spend time together in Canberra. There seemed little appreciation on her part of the burden which would be imposed by the required travel particularly as it seemed likely that such travel would be by road.
(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 father is from an Italian family. His mother, who speaks limited English, is a resident in Australia. The child will have available to her that connection with her heritage. The mother concedes that the connection would weaken were she to move to Canberra. She says that she would seek to assist in the maintenance of that heritage by enrolling the child in a school described as an Italian/English school to seek to preserve that cultural background. It is the view of the Court that a culture would be better absorbed if exposure to it is in a familial context rather than a non familial one.
S is a child reported by her mother and Dr L as being extroverted or “cheeky”. She has been taken to a paediatrician by the mother and also to a clinical psychologist. The child has had behavioural problems at her school. Dr C prepared a report which is referred to by Dr L in his report. It is suggested that the child may be suffering from separation anxiety and has the potential to develop an adjustment disorder. It was suggested by Dr C that these problems reflected an association of stresses and strains in the child’s family. The report of a Dr P refers to the child having emotional problems in the context of the dispute between her parents.
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) 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 (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has clearly had the heat and burden of the day in the discharge of the responsibility for the day-to-day care of the child. The absence of the father whilst he was in Italy increased that burden. The father has made payments toward the costs of the child’s support and continues to do so. However, it seems that the mother bears a higher proportion of the child’s costs. If the contributions of the father are thought inadequate then the mother has available to her those processes which are provided for in child support legislation. The father for his part suggested that the mother had not, contrary to her evidence, asked him to contribute more to the cost of the child.
There has been an allegation that the father has physically disciplined the child. I accept the father’s evidence that he disciplined the child but not inappropriately or physically. I find that each of the parents has applied themselves to the physical care of the child. Each of them appears to be making a contribution to the development of the child and her education.
(k)any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no evidence of any orders falling within this category.
(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
It is clearly in the interest of this child that there be an end to dispute between her parents and a concentration by each of them on the means by which they can work co-operatively to enable their daughter to attain her maximum potential. A failure to recognise the importance to the child of an absence of conflict can, on evidence received by this Court time and again, have a severe and long term impact on the mental health of children. I think that neither of these parents wants to be seen to be responsible for causing their child the sort of ill health such conflict can bring. To continue the conflict is to abuse the child. The absence of continuing conflict is a gift that only the parents can give the child. It is a gift beyond price and one that needs to be borne of the conviction of the parents that it is in their child’s interest to make it.
Having said that, it is the Court’s view that the orders presently made could be changed as the child gains in confidence and maturity and has security in a relationship with each of her parents which is mutually supported by them. The appropriate time for such extension will be when the child has gained entry to secondary school. It is hoped that the parties will see the wisdom of meeting at that time and agreeing on any change. If they are unable to do so the Court would like to see them undertaking mediation with a view to reaching agreement. That process will minimise dispute and reduce the costs in time, money and emotion which would otherwise attend the resolution of such a disagreement by litigation.
(m)any other fact or circumstance that the court thinks is relevant
The fact that the mother in her evidence said that she could not see any downsides in the move to Canberra for her daughter is, in the Court’s view, an indication that orders are needed which have the effect of maintaining a meaningful relationship between the child and her father. Her perception appeared in part to be that it was more important that the child have an increased relationship with her maternal grandmother and maternal aunt.
The Court is concerned that, given the mother’s either ignorance or insouciance in relation to the effects of such a move on the child and her relationship with her father, that she would not apply herself to the maintenance of the relationship between the child and her father in the event that such a move were permitted and that lack of application would be to the detriment of the child.

Section 60CC(4) & (4A)

I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of this child and are practicable for the reasons specified above.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for her parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there have been allegations of family violence as has been set out earlier. The evidence however does not permit of a finding that it has occurred. There has also been a history of conflict between the parties. The ability of the parties to communicate has however improved of recent times.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child. It seems to me that each of these parents says that they recognise the importance of the relationship between the child and the other parent. To give substance to that recognition and to provide a framework where the parties can be reminded of the need for them to work toward a common goal, the Court proposes to make an order for shared parental responsibility. The child will benefit from the input of each of her parents into decisions affecting her long term welfare.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case the Court finds that there is good reason for the presumption to apply and neither party seeks other than an order for equal shared parental responsibility. Given that the Court does not intend to permit the child’s permanent place of residence to be relocated the parties will live in close proximity. The parties’ communication, although a mixture of good and bad in the past, is, on their evidence, improving and there appears to be no insurmountable differences between them on such things as the child’s education.

Section 65DAA

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.

The Orders to be made

Dr L in his evidence continually maintained the importance for the child of maintaining stability. The proposal initially made by the father for there to be an equal sharing of time with the child was not presently viable. He saw such a programme of sharing time with the child as contrary to the need of the child to have a stable base which he did not see occurring on a shifting of residences on an equal time basis.
Such an arrangement would be contrary to her present routine and hinder her in settling down and establishing a sense of routine. However, Dr L said that he did not think that the current routine was in the child’s interest either. He noted that it was best for the child to have a stable base living with her mother, who could provide the most secure household but have good levels of contact with her father. He said that the preferred situation was that both parents reside reasonably close to each other so that the child can be stable with her mother but have a good relationship with her father. The Court does not think that the mother is incapable of accepting and complying with orders which are designed to achieve what the evidence points to as being best for the child.
The order the Court proposes to make will not at the present time afford the parties equal time. It is clear from the evidence of Dr L that that is not in the interests of this child. The Court will however make an order which is for substantial and significant time. The change involved in such a decision having regard to the child’s experience thus far will be able to be accommodated by the child.
I therefore propose to make the orders in relation to parenting as set forth above.

I certify that the preceding one-hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 13 January 2011.

Associate:

Date: 13 January 2011

[2011] FamCA 7

13 January 2011

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