Knight and Barlough

[2013] FCCA 285

FEDERAL CIRCUIT COURT OF AUSTRALIA

KNIGHT & BARLOUGH [2013] FCCA 285

Catchwords:
FAMILY LAW – Parenting orders – mother seeking to move suburbs within one hour’s drive of the father’s residence but making current schooling and care arrangements for the parties’ child impractical if child were to reside with her – father seeking residence of the child during school week – application of mother granted by the Court.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA

Applicant: MR KNIGHT

Respondent: MS BARLOUGH

File Number: MLC 4796 of 2012

Judgment of: Judge Hartnett

Hearing dates: 27 March, 28 March and 19 April 2013

Delivered at: Melbourne

Delivered on: 17 May 2013

Orders made on: 26 April 2013

REPRESENTATION

Counsel for the Applicant: Ms Baczynski

Solicitors for the Applicant: Roger O’Halloran & Company

Counsel for the Respondent: Ms Carter

Solicitors for the Respondent: Harwood Andrews Lawyers

THE COURT ORDERS THAT:

1. The current arrangements between the parties for the care of the child [X] born [in] 2005 (‘the child’) continue to operate until the relocation of the child’s residence to [P] in the State of Victoria.

2. The Applicant father and Respondent mother have equal shared parental responsibility for the long term care, welfare and development of the child.

3. The child be permitted to enrol and attend at [S] School, [P] in the State of Victoria for the remainder of the 2013 school year to the conclusion of her primary education. The father to be nominated as a contact parent by the mother.

4. The child live with the mother.

5. The child’s residence be permitted to be relocated to the [P] area.

6. The child spend time and communicate with the father as follows:-

   (a)from 6.00pm on each alternate Thursday until the commencement of school on Monday, or Tuesday if Monday is a public holiday, commencing in the first school week that the child attends [S] School;

BY CONSENT

(b)for half of each school holidays by agreement and failing agreement from 6.00pm on the day half way through the holidays until 6.00pm on the Sunday prior to the commencement of the new school term;

BY CONSENT

(c)for half of the long summer holidays by agreement and failing agreement for the last two weeks of the holidays commencing on a Sunday at 6.00pm until 6.00pm on the Sunday prior to the first school week of the new school year;

BY THE COURT

(d)from 3.00pm Christmas Day until 6.00pm on Boxing Day in 2013 and each alternate year thereafter;

(e)from 6.00pm Christmas Eve until 3.00pm Christmas Day in 2014 and each alternate year thereafter;

(f)on the child’s birthday, if on a weekend, from 2.00pm until 6.00pm and if on a week day from 6.00pm until 8.00pm. If the child is already in the father’s care at these times, pursuant to these Orders, then he shall make the child available to the mother during these hours;

(g)on Father’s Day from 10.00am to 8.00pm and if the child is in the father’s care on Mother’s Day, pursuant to these Orders, then he will make the child available to the mother during these hours;

(h)by telephone, with the father to instigate the call each Sunday and Wednesday when the child is not in his care and between 7.00pm and 7.30pm; and

(i)other times as agreed to include a Wednesday or Thursday evening in the alternate week to that of (6)(a) herein for dinner between 5.00pm and 8.00pm and with the father to provide all necessary transport to and from the mother’s home, notwithstanding order number (7) herein. In the event the father relocates to the [P] area, then this period of time will become from after school until before school the following morning.

1. For the purposes of changeover, the mother or her agent shall deliver the child to the father’s place of work at [C], or his home if elected (in writing or text) by him, at the commencement of the father’s time with the child, and the father or his agent will deliver the child to school or the mother’s home (when the school is not operating) at the conclusion of the father’s time with the child.

2. The parties shall be punctual at all changeover times.

3. The time the child spends with the father in order (6)(a) and (i) herein shall be suspended during all school term holidays and summer school holidays, and recommence in the same cycle as provided for in these orders as if uninterrupted by the said school holiday periods.

4. The parties shall each provide the other with 14 days prior written notice of particulars of any change of residential address, telephone numbers and email addresses, together with details as to any extra curricular enrolment of the child.

BY CONSENT

1. The parties shall each inform the other forthwith by SMS text or telephone of any serious illness or injury sustained by the child whilst in their care and further provide particulars of any treatment required or received by the child together with the name and address of the treatment provider and/or location at which the child is hospitalised or is treated.

BY CONSENT

1. The parties shall each inform the other forthwith by SMS text or telephone about any serious health and wellbeing issues of the child so that they both have the opportunity to be involved in any discussions which may arise with the child’s medical advisors.

BY THE COURT

1. Each party be and is hereby restrained from:-

   (a)discussing with the child or with any other person in the child’s presence, details of the proceedings;

   (b)denigrating each other to the child or speaking with the child, or to any other person in the child’s presence, in derogatory terms about the other party or members of the other party’s household; and

   (c)assaulting, intimidating, molesting, harassing or threatening the other.

2. If the child has an opportunity to attend or participate in a special event during the other party’s time with the child, the other party shall be promptly provided with such information as is relevant to enable them to respond on the child’s behalf as they consider appropriate.

3. The party who receives the child’s school reports shall forthwith provide copies thereof to the other party, or if the school is agreeable, authorise the school to provide copies of such reports directly to the other party at the other party’s cost.

BY CONSENT

1. Each party shall upon receiving notification of any school or extra-curricular events including but not limited to concerts, parent teacher interviews, excursions and camps promptly provide the other party with a copy of such notification or otherwise ensure that the other party receives notification in writing of such events to enable them to attend.

BY CONSENT

1. The child’s passport be provided to the mother within seven days of the date of these orders and be retained by her.

BY CONSENT

1. The child be permitted to travel to the Philippines with the mother in December 2013 for approximately 10 days.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4796 of 2012

MR KNIGHT

Applicant

And

MS BARLOUGH

Respondent

REASONS FOR JUDGMENT

1. These proceedings were placed in the relocation list in Melbourne having been first listed in this Court’s circuit sittings in Geelong in October 2012.  Final Orders were made by the Court on 26 April 2013 being parenting orders in respect of the parties’ child [X] born [in] 2005 who is now aged seven years and nine months.  These are the reasons which support the making of those Orders.

2. These proceedings did not involve a ‘relocation’ in the way that term is normally used.  The Applicant father and Respondent mother both currently reside in Geelong.  The mother wishes to move her place of residence to [P] which is a drive of between 40 minutes and one hour from the father’s home in [B], depending on traffic. There is also a train line that operates between the suburbs which the parties could use.  [P] is still some distance away from Melbourne and toward Geelong so the geographical distance that would result between the parties respective homes, should the mother move, is really a change in suburb that does not preclude weekend and weekday time spent with between the child and each of her parents.  The difficulty in these proceedings was that the very close geographical proximity of the parties’ homes at trial had enabled a pattern of care that could not be sustained upon a move as proposed by the mother and thus the Court was required to consider in whose care [X] should primarily be placed.

3. The presumption as set out in s.61DA of the Family Law Act 1975 (Cth) (‘the Act’) applied on the facts of this case as recognised by the parties who sought that they have equal shared parental responsibility for [X]. The parties also agreed that it was not possible for the Court to make an order for [X] to spend equal time with each of her parents, a consideration required pursuant to s.65DAA of the Act, because it would not be reasonably practicable. The father gave evidence that he would not move, nor consider a move, from his rental premises in [B], a suburb of Geelong, to [P] or a suburb nearby. He accepted that given his desire to remain in [B] and his work commitments at [C] that he could not transfer [X] to and from school in [P] in each second week. The mother gave evidence that if [X] could not move her residence to [P] with her mother, then she would not leave Geelong. The mother however works in Melbourne and has become increasingly frustrated with her inability to spend time with her daughter during the school week and with the difficulties the current orders create for the child when in her care, and did not view a continuation of the current arrangement between the parties as reasonably practicable. Nor, given the poor level of communication between the parties and their on occasion extreme hostility from one to the other, did the mother consider that it was in the child’s best interests for the current care arrangements to continue. However this small (in geographical terms) relocation proposed by the mother, made it reasonably practicable for [X] to spend substantial and significant time with each of her parents regardless of with whom she resided. Pursuant to s.65DAA(2) of the Act, orders providing for that time between [X] and her father were made with a residence order being made in favour of her mother.

History

1. Statements of fact in these reasons should be taken as findings of fact on the balance of probabilities. The Affidavits relied upon by the mother are as set out in her Case Outline dated 25 March 2013. The final orders sought by her are set out therein and differed slightly from those set out in her Amended Response filed 25 March 2013. The mother sought that [X] live with her in the [P] area and as a necessary consequence attend school there. [X] is currently in grade two. She sought orders that [X] spend time and communicate with the father from each alternate Thursday to Monday, for half the school holidays and other special occasions. She did not oppose [X] spending a dinner time period with her father in the alternate week. She sought other general orders which were for the most part not in dispute between the parties, save as to travel arrangements which the mother conceded at trial she was prepared to share equally, and from one residence to the other. The father sought orders as set out in his Amended Application filed 24 January 2013. The Affidavits relied upon by him were those sworn by him on 21 September 2012, 22 January 2013 and 25 March 2013. He also relied upon a Financial Statement sworn by him on 26 February 2013 and an Affidavit of Dr S, a neighbour, sworn 2 March 2013.  The father sought that [X] live with him in the [B] area during the school week and that she spend three out of four weekends with her mother. He proposed that [X] continue her attendance at the [B] School and that he continue to be employed on the weekend when [X] would be in her mother’s care. The father proposed a changeover point half way between the parties’ residences. The Court made Orders on 26 April 2013 in accordance with the Relocation List protocol, acceding to the application of the mother.

2. The mother and father were both born in Fiji, the father [in] 1961 and the mother [in] 1979. The father is now aged 51 years and the mother is now aged 33 years. The parties immigrated from Fiji to New Zealand where they married in 2000. [X] was born in New Zealand in 2005, and she was aged one year and nearly five months when the parties separated [in] 2007. The parties have since divorced. Although the parties were separated whilst living in New Zealand, they both agreed to immigrate to Australia with [X] and did so on 3 December 2008.  Initially, they resided together, living separately under the same roof, and obtained temporary accommodation in Melbourne and then Geelong. The father obtained employment in [omitted] in [C] in December 2008 and the mother obtained her current employment in Melbourne in January 2009. The parties agreed they would live in close proximity to each other and in Melbourne prior to [X] commencing primary school in 2010. They looked for Melbourne accommodation for several months in 2009. It became clear to the mother that the father wished to remain in Geelong and thus she commenced to look for employment in Geelong. She did make significant attempts, and was prepared to accept a significant reduction in salary, but no jobs were available to her. She secured independent accommodation nearby to the father in February 2010 and continued her onerous travel regime to and from her employment in Melbourne.

3. Prior to their departure from New Zealand the parties had obtained parenting orders in the Family Court of Rotorua. They were orders which catered for the needs of a very young child whose parents resided in close geographical proximity to each other, and were made by consent. Those orders provided for the child to live with her mother and spend time with her father from Monday evening until Tuesday evening; Thursday evening until Friday evening; and Saturday evening until Sunday evening. As the father usually worked on a Sunday, the practical operation of these orders was that [X] spent two days and nights with her father in each week and the balance of the time with her mother. The mother’s evidence is that these orders worked well when [X] was young but that they had not worked well for many years. The father was not open to discussion as to them and in more recent times had commenced to spend time with [X] on a daily basis and at times when the New Zealand orders provided for [X] to be in her mother’s care. This was a consequence of the father’s residence being in close proximity to [X]’s school; his chosen working hours; and the mother’s place of work being Melbourne, some distance from Geelong and [X]’s school, which required her to place [X] in before and after school care during her periods of time with [X].

4. The father issued these proceedings in October 2012 seeking final orders in the same terms as those of the New Zealand court parenting orders. Those orders as described above required a constant change of household for [X], causing dislocation and disruption to [X] as she moved between her parents respective residences, and in circumstances where her parents’ relationship had become highly conflictual causing anxiety to [X]. The mother had commenced a new relationship with Mr L to whom she is now engaged and expressed a desire to reside in [P]. The orders proposed by the father at the time of the filing of his application had the effect of seeking to confine the mother’s residence to be in very close proximity to his own. He also sought that she not remove [X]’s place of residence from the City of Greater Geelong. The mother agreed to Interim Orders on 3 October 2012 to not relocate the residence of [X] to [P] and otherwise to continue the care arrangements earlier provided for in the New Zealand orders. She sought to mediate the matter with the father and indicated that she would make an application, if necessary, to relocate to [P] and seek the alteration of the parenting orders.  The father remained adamant that [X] should not change her primary school and that her residence could not be moved beyond Geelong. He did, however, agree with the mother that the constant movement of [X] between their homes could be eradicated, and in its place an arrangement put whereby [X] spent from after school each alternate Monday to the commencement of school on Friday with him and otherwise lived with her mother. This was an arrangement of four nights in fourteen with her father, together with two further nights in the event the father was not working on a Sunday as provided for in the Orders made by consent on 29 January 2013. In fact, the father often worked on a Sunday thereafter and so the additional nights or at least one of them did not occur.

The Family Consultant

1. Dr W, Psychologist and Regulation 7 Family Consultant, prepared a Family Report dated 30 March 2013. She was cross-examined by the parties. She recommended that if [X] was permitted to relocate her residence to the [P] area, that the father should continue to spend significant time with [X], and that if the move was not supported by the Court, then the current arrangements (being the Orders dated 29 January 2013) should remain in place.

2. The father reported to Dr W that he resided in a three bedroom rental home with two other tenants whom he sub-let the property to. He claimed his working hours with [omitted] to be from 9.30am to 5.30pm weekdays; from 9.00am to 5.00pm Saturday and from 10.00am to 5.00pm Sunday. He claimed to have two days off a week which were both week days, and he stated he generally had only one weekend off a month.

3. The mother reported to Dr W that she resided with her partner of nearly two years in a two bedroom rental home in South Geelong, some five minutes from the father’s home, and that they both worked in the Central Business District of Melbourne. Her working hours were generally 8.00am until 4.00pm.

4. Dr W observed the mother and father to be both very good parents who loved their child and was loved by her in return. She observed them to interact appropriately and positively with their child and noted that [X] was very comfortable and secure with both, as well as with the mother’s partner, Mr L. However, she said in her report as to the father:-

   “14.  …I have concerns about his seemingly single minded focus on her ([X]) at times which poses the question of whether he uses/ needs her to fulfil his own emotional needs instead of the other way around, as it should be; and I also have concerns about his desire to give her everything she wants and his lack of understanding with respect to the possible consequences of this; and his apparent belief that [X] needs him and his food and his attention and attendance to things possibly more than the mother’s, and his apparent tendency to be somewhat dismissive of the mother’s role and her right to parent [X] in the way she wants during her time; and I think this is reflected in his alleged tendency to bring food to [X] at school even though the mother or the before school care agency has already fed her, and in the way he would allegedly pick up [X] from school or after school care early on the mother’s days, without informing her, and in the way he would consistently attend the school on the mother’s days, and in the way he would seemingly manipulate [X] staying additional time with him by picking her up early and then asking [X] to tell her mother she wants to stay with him, etc.

   15. In short, it appears that he has very fixed views about his role and what he thinks [X] needs, and he seems totally oblivious and even indifferent to the normal boundaries that court orders around contact and living arrangements generally impose/infer; and he simply does not appear to understand, or have the capacity to reflect on how his parenting style might create behavioural and general social problems for [X] in the future, and how his actions and behaviours and his negative views and actions toward the mother, in front of [X], might impact [X], and her emotional experiences and psychological world; and he appears unwilling or unable to separate himself and his needs and wants and views, from those of [X]’s; appearing to see them as one.”

   And as to the mother:-

   “25. Moreover, I have significant concerns about the mother’s seemingly dismissive and/or indifferent attitude toward the father’s relationship with [X], and the impact such a relocation is likely to have on his ability to continue with shared care, and continue to be as involved in [X]’s life, even though it is only a 30-35 minute drive; since she made it clear that she expected him to do the driving or relocate too; and she seemed indifferent to the fact that her proposal, whilst possibly being better for her, was most likely going to be at the expense of the father’s current relationship and time with [X]. Of further concern to the writer was her apparent view that a change of schools for [X] would (have) little or no impact on [X] either.

   26.Ultimately, whilst I have no doubt that Ms Barlough is a fantastic mother to [X], and this is reflected in their positive relationship and my own interviews and observations; and whilst I can certainly understand why she would want to spend more time with [X], and she would want to make her life with [X] easier and less complicated and time driven; and I can certainly understand her frustrations with the father’s apparent attitudes, and his actions and behaviours; at the same time I simply do not believe she has truly understood or reflected on just how much of a change this relocation will impose on the father’s relationship with [X], as I simply cannot see how shared care could continue; and one has to wonder whether this might in fact be one of the reasons for this proposed relocation too.”

1. [X] presented as being a “really happy, well adjusted, reasonably confident… and reasonably intelligent girl”. She was aware her parents did not like each other and she had observed them to argue a lot. She was concerned about moving too far from her father’s home and hesitant about a change in school, although she indicated to Dr W that “she would be okay with such a move so long as she was able to continue to see her father a lot” (at paragraph 50 of the Family Report).

2. Dr W expressed concern as to each parent with respect to their minimisation of the importance of the other in [X]’s life. She said as to this, at paragraphs 61 and 62 of the Family Report, the following:-

   “61. Of further concern to the writer is the mother’s apparent indifference and/or insightlessness as to the very real impact of her proposed move/relocation on [X], and on [X]’s relationship with the father, and particularly if it forces a change in living and contact arrangements, which I suspect will become necessary; and I believe this indifference, and her apparent view that the father should make all the concessions and changes, presumably because he agreed previously that they would both move closer to Melbourne, is reflected in her comment that “he will either travel… or he will move”. Whilst it is positive that she concedes that if the father can propose an arrangement that will work for him that could still allow for the current arrangement to continue, or similar, then she would be open to this; I suspect that she knows that this will simply not be truly feasible or workable; and ultimately I was left questioning her willingness and ability to fully support [X]’s relationship with the father.

   62. However, in saying this, I certainly recognise that the father’s behaviour and attitude towards the mother appears to have been equally dismissive and disrespectful in various ways, and particularly with respect to the way his rigid and single minded focus and views appear to not only blur the parent child boundaries and leave the writer concerned about him being reliant on the child for emotional support instead of the other way around, but to also blur other boundaries, with respect to court orders, his time and the mother’s, parental roles during their respective times, etc; and I also recognise that the father appears to be somewhat insightless as to the impact on [X] when he yells at and denigrates the mother to and in front of [X], and generally communicates his negative opinion of her; and when he seemingly manipulates [X] for his own means.”

3. The totality of the evidence before the Court supports Dr W’s observation of and comments with respect to the father.  As to her observation and comments with respect to the mother, the evidence before the Court and in particular that of the mother herself who was a credible witness, leads the Court to conclude that the mother does not minimise the importance of the father in [X]’s life and nor does she seek to limit his time spent with [X] per se.  The mother wants the father’s control over her to lessen and to be free to live closer to her employment.  She is not however proposing Melbourne or any of its suburbs, but rather an area not a very great distance from the father.  [X] will spend slightly less time with her father on school days but more time on weekends.  The mother’s increased availability to drive her to school will be enjoyed by [X] and benefit her greatly.

Consideration

1. The father is employed as a [omitted] in [C]. He is in receipt of income of approximately $52,000 per annum and in addition rents out two bedrooms of his rental property for further income of approximately $300 each week. This $300 is the total cost of his rental. The tenants change from time to time and on occasion have been required to care for [X] whilst the father works (the tenants are persons unknown to [X] before they become occupants of the home). [X] has shared a bedroom with her father on occasion, which he claims was due to his bedroom having air conditioning in the hot summer months. These living arrangements have been a source of concern for the mother and, in particular, the mother has objected to tenants caring for [X] when she has been available to do so. The father has simply ignored her concerns.

2. Next door to the father for a period of two and a half years was a neighbour by the name of Dr S. Her daughter was a classmate and friend of [X]. She observed the father to take good care of [X] and her own children and noted that [X] appeared settled at [B] School.

3. The mother is employed as a [omitted] in Melbourne. She is in receipt of income in the sum of approximately $65,000 per annum. She resides with her fiancée Mr L, a person known to and liked by [X]. The mother and Mr L commenced their cohabitation in September 2012 in Geelong. They plan to marry in December 2013 in the Philippines and [X] shall be with them. Mr L has two children by a previous marriage whom he sees every second weekend. They reside in [omitted], with their mother so the move to [P] would bring him closer to his children whom he sees each alternate weekend and half the school holidays. They have a good and close relationship with [X] and engage in many activities with her on the alternate weekends they spend with their father. Mr L has a good relationship with his former wife and a loving relationship with his children who are [Y] now aged five years and [Z] now aged nine years. Mr L is also a [occupation omitted] in receipt of income of approximately $76,960 per annum from his employment in Melbourne. Together he and the mother in these proceedings wish to purchase a home in [P].  They have saved the necessary deposit.

4. The relationship between the father in these proceedings and Mr L is poor. When Mr L first met the father he sought to have an amicable conversation with him. The father ignored him. Thereafter, and between March 2012 and September 2012, the father did not participate in any of the collection or return of [X] to and from her mother’s house save for one occasion on 20 July 2012. All transport was done by the mother and to a far lesser extent, Mr L.

5. On 20 July 2012, the father collected [X] at approximately 6.00pm to take her to a birthday party that he particularly wished her to attend. The mother had agreed to his request and the arrangement between them was that the child was to be returned to her mother’s care at 10.00pm that night, the next day being the mother’s birthday. The father determined unilaterally to not return [X] to her mother’s care that night. He failed to respond to the mother’s phone calls and texts until after midnight when he sent her a text saying he was at home with [X].  The mother was concerned and unhappy about the father’s behaviour and the next morning she and Mr L attended at the father’s house to seek the return of the child. When they arrived, [X] was about to leave the premises in a car with a young male driver, unknown to them, and dressed in only her underpants and a jumper. This person was caring for [X] whilst her father was at work, and during a time when [X] was supposed to be with her mother.

6. Other episodes occurred where the father acted unilaterally and contrary to the existing orders and/or the parties agreed arrangements. There were numerous times when the father took [X] from after school care without telling the mother who would then, herself or with Mr L, arrive there to pick her up. The mother and/or her partner would then proceed to the father’s house to collect [X] where they were kept waiting for [X] to emerge from the home. On other occasions, the father attended at the school to provide [X] with food in circumstances where her mother had already provided her with nutritious and plentiful food for the day. Even after Orders were made on 29 January 2013, the father breached such orders by providing [X] with food and removing her from the school grounds and later from after school care during time that was not to be spent with him. 

7. One concerning episode occurred on 19 August 2012, when the mother took [X] and Mr L’s daughter [Y] to attend [X]’s birthday party at the father’s home. The mother subsequently called Mr L to collect his daughter and her, as both she and [Y] had been verbally abused by the father. Mr L attended to find his daughter standing at the front of the house by herself crying. He placed her in his car and approached the house to find the mother. The father approached him and told him to remove the mother from the home as she was not welcome there. This was despite [X] having presented her mother with an invitation to the birthday party, which the mother had agreed to attend to promote [X]’s best interests.  The father was enraged at the time the mother and [X] had arrived, alleging they were late – they were not - and he yelled at the mother calling her a “fucking whore”, “prostitute” and “slut”. [X] observed her mother to be humiliated and abused by her father. The father simply did not care. This episode was extremely distressing to both [X] and her mother.  

8. On 18 October 2012, when the father attended at the mother’s home to collect [X], Mr L approached him to ask why he had attended at the school again and given [X] food. The father, as was his practice, ignored him. Mr L opened the father’s car door.  The father denied he had attended the school, which I find he had, and then commenced to reverse his car. As he did so, he closed the car door shut before opening it forcibly and striking Mr L with it. Mr L stepped back as the father revved his engine and drove the car toward Mr L. He gestured for Mr L to walk toward the car. He shouted profanities at Mr L and drove off. Mr L reported this matter to the police.

9. Mr S swore an Affidavit on 6 December 2012, the contents of which were unchallenged by the father. He has observed the mother to be “disciplined, loyal and reliable, and a very good role model for her daughter”. He gave evidence that on 26 February 2012 the father delivered [X] to the mother’s home and drove off. [X] then knocked on his door. She was distressed and crying. She said her father had driven off and left her at her at mother’s home but that the mother was not home. Mr S drove [X] to her father’s home, and as he was not there, left her in the care of a neighbour who was known to [X]. The mother was extremely concerned when told by Mr S about this incident and tried to speak with the father on numerous occasions before finally sending a text message to him. His response was as follows:-

   “you fukn cunt I didn’t tel u was my weekend off did and u took off, from now I will make sure [omitted] stays here every Sunday. U brain is fucked, because ur arse been fucked by your father, u father fuckn cunt, u fuckn whore”

   and

   “U brother fucker, u fuckd up bitch, u fuckd ur father, u suckn pigs dick, u pig shit”.

10. The father refuses to communicate with the mother about matters going to [X]’s welfare and there is a long history of no (from the father) or abusive communication between them. The mother has tried repeatedly to communicate by telephone with the father, and in a civilised way, about essential matters going to [X]’s care. She has been met with silence and no co-operation. Matters have escalated. The history of text exchanges between the parties, at times, is abysmal. Each is highly derogatory of the other. Both are abusive and on occasion the mother has responded in similar manner and language to the father.

11. The mother has been required to place [X] in before school care during the times [X] is in her care because of her need to travel to Melbourne for her employment. Part of her proposal for her move to [P] is that she will be able to have [X] remain at home, in her or more likely Mr L’s care, until school commences. After school, she will be able to collect [X] by 4.30pm and thus enjoy spending more time with her during the week days.

12. Although the mother has specifically asked for the father to provide her with his work rosters, he failed to do so in any meaningful way. When giving evidence at trial his evidence constantly shifted as to what precisely is required by his employer in terms of days worked.  After earlier denial, the father finally conceded that he is not required to work four out of five weekends as he currently does, but rather chooses to. In fact, he has available to him each second weekend where he does not have to work.  He sought from the Court, orders for [X] to be in his care in each school week rather than during the weekend.  The mother’s case was that she has historically had greater periods of care of [X] than the father, and that she should continue to have such care which was in [X]’s best interests. She did not seek to exclude the father in the same way that he did her, but rather had tried to work with him which proved impossible given the father’s complete disregard of her input or need to spend time with [X] without interference from him. He has been consistently late to deliver [X] to her mother’s care but pressures the mother and child by arriving to collect [X] early at the commencement of his time spent with [X].

13. The mother was denied block holiday time with [X] in January 2013 by the father on the basis that he had taken leave from his employer. In fact, on 4 January 2013 he was working and had placed [X] in a school holiday program. This was contrary to the then existing orders. This was yet another example of the father’s lack of support of the mother’s relationship with [X] and his attempts to reduce the mother’s time with [X].

14. The father on one occasion took [X] to hospital. He failed to notify the mother within a reasonable time and his evidence that the mother would have not done anything had he contacted her, together with her response being “I was partying with my friends. Next time someone’s sick don’t call me” when he eventually contacted her, was simply implausible.

15. The father has made allegations that the mother has damaged his car and assaulted him. The mother denies these allegations. The existence of these allegations and their denial is counterproductive to a co-parenting relationship. These allegations arose on the day of [X]’s birthday party which is referred to in paragraph 21 of these Reasons.  The father took [X] to the police station following that birthday party. He alleged that her mother had hit her father with the car keys that day and scraped her keys along his vehicle causing damage to it. He had clearly told [X] of these allegations, behaviour which he said the mother engaged in as she departed the property, upon his instruction that day. [X] was concerned for her mother and asked the police whether the mother was “going to be in trouble?” No charges are pending.

16. Mr A, the Principal of [B] School, gave evidence in the proceedings. He was subpoenaed by the father. He described [X] as a wonderful child who had many friends at the school. She was making good academic progress. His evidence was that the father was well liked in the school community and observed to be an involved, loving father. He attended the Monday morning assemblies, parent-teacher interviews and often stayed on school premises with other parents after school commenced. The mother by comparison was not known within the school community. His evidence further was that the school is well resourced and has good sporting, cultural and other programs.

17. [X] is happy at her school and in a supportive and excellent school environment. She is however limited in the time she can spend with her mother, and engage with her in extra curricular after school activities, such as gymnastics and ballet, by virtue of attending at a school so far from her mother’s place of work. She is an engaging and adaptive child and the mother’s proposal is to move her from one State primary school to another, the father objecting to the [M] School in [P] which she had initially proposed. The mother’s evidence is that [S] School is suitable to [X]’s needs and is an excellent primary school. The father declined to make enquiries as to it. Whilst [X] will leave behind classroom friends in a move, she will form new friendships and have the active engagement in the school community of her father and her mother.

18. Section 60CA of the Act requires the Court to regard the best interests of the child as the paramount consideration. In the determination of those interests the Court must consider those matter set out in s.60CC(2) and (3) of the Act. It is clearly on the facts of this case beneficial to [X] to have a meaningful relationship with both of her parents and despite the parties, at times, high level of conflict there is not a need to protect her in the terms as set out in s.60CC(2)(b) of the Act.

19. The additional matters required to be considered as set out in s.60CC(3) of the Act relevantly are as follows (sub paragraphs (h) and (m) are excluded:-

    “(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 still a young child whose views are given some, but not a great deal of weight. She wishes to maintain contact with both her parents.

    (b)    the nature of the relationship of the child with:

    (i) each of the child’s parents; and

    [X] has a good and loving relationship with both parents.

    (ii)    other persons (including any grandparent or other relative of the child);

    [X] has a good relationship with the mother’s fiancé.

    (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 has far greater capacity in this regard.

    (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

    [X] will not be separated from either of her parents.  Her routine shall alter in a beneficial way.

    (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

    Not relevant.

    (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;

    [X]’s rights will not be substantially affected.

    (f)        the capacity of:

    (i) each of the child’s parents; and

    The mother has greater capacity than the father in the promotion of the child’s emotional needs.

    (ii)any other person (including any grandparent or other relative of the child);

    Not applicable.

    to provide for the needs of the child, including emotional and intellectual needs;

    (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;

    Both parents promote [X]’s religious and cultural identity.

    …

    (i)         the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

    The mother has demonstrated greater responsibility toward parenthood than the father in attempting to communicate with the father in [X]’s bests interests and in not being as dependent on the child as the father.

    (j)         any family violence involving the child or a member of the child’s family;

    The father’s verbal abuse of the mother in the presence of the child harmed [X] as did his involvement of her in the allegations he made against the mother.

    (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;

    Not applicable.

    (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;”

    Either party may bring further proceedings before [X] reaches adulthood as a consequence of their poor communication and relationship but these orders might bring to their lives a new structure they can both be content with.

1. The father wished for the parties to meet half way at a service station for changeover.  However there is a history of late arrivals between the parties, mostly emanating from the father.  It is better for [X] to be transported from one family home or school, or her father’s workplace to another.  It will reduce the tension for her when her parents are together, and normalize more so the arrangement.  The parties should be capable of this mode of changeover.

2. The outcome of these orders is in essence that [X] spends one less night a fortnight with the father but gains valuable weekend time with him.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  17 May 2013