L and S
[2002] FMCAfam 24
•31 January 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| L & S | [2002] FMCA fam 24 |
| CHILDREN – Residence, contact, relocation. |
| Applicant: | GARTH DUNCAN LAMBERT |
| Respondent: | BELINDA ANN STEEL |
| File No: | ZD2270 of 2001 |
| Delivered on: | 31 January 2002 |
| Delivered at: | Adelaide |
| Hearing Date: | 23 January 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Black |
| Solicitors for the Applicant: | Cecil Black |
| Counsel for the Respondent: | Mrs Pagani |
| Solicitors for the Respondent: | Roberts Nehmer McKee |
ORDERS
That the father and mother have joint responsibility for making decisions concerning the long-term care, welfare and development of the child of the relationship MATTHEW LACHLAN STEEL born
26 February 1999 (“the said child”).That the said child reside with the mother in Townsville.
That the father have contact to the said child at any times and at any place as may be mutually agreed between the parties and in particular as follows:
(a)For two weeks which shall include Easter 2002 in Katherine provided that the said child is returned every second evening to the mother, who will remain in Katherine throughout the contact period, between the hours of 5.00pm in the evening and 9.00am the following morning;
(b)For two weeks during August/September 2002 in Townsville provided that the said child is returned to the mother each third evening between 5.00pm until 9.00am the following morning;
(c)For two weeks during the Christmas period 2002 which shall include Christmas Day in Katherine provided that the said child is returned every fourth evening to the mother, who will remain in Katherine throughout the contact period, between the hours of 5.00pm in that evening until 9.00am the following morning;
Thereafter as follows:
(d)In odd numbered years for the whole of the Queensland June/July and September/October school holiday periods, and for three weeks of the Queensland Christmas school holiday period not including Christmas Day;
(e)In even numbered years for the whole of the Queensland June/July and Easter school holiday periods and for three weeks during the Queensland Christmas school holiday period including Christmas Day;
(f)At all reasonable times by telephone.
Each party shall have responsibility for making decisions concerning the day to day care, welfare and development of the said child when the said child is with him or her respectively.
In the event that the father gives the mother 42 days notice that he has the necessary equipment to receive a computer video link and wishes to have contact to the child by this means the mother shall install the necessary equipment at her place of residence to enable such contact to occur and thereafter the father shall have contact to the said child by this means at all reasonable times.
Prior to the said child reaching 4 years of age (26 February 2003) the mother shall be responsible for the costs of contact which occurs in Katherine and the father shall be responsible for the costs of contact which occurs in Townsville.
When the child reaches 4 years of age the parties will pay equally the costs of the said child travelling to Katherine for contact, including any cost of either parent escorting the said child.
The parties have liberty to apply in respect of the form of these orders
All applications dismissed.
Pursuant to section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD2270 of 2001
| GARTH DUNCAN LAMBERT |
Applicant
And
| BELINDA ANN STEEL |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are GARTH DUNCAN LAMBERT (“the father”) and BELINDA ANN STEEL (“the mother”).
The father and the mother are the parents of one child MATTHEW LACHLAN STEEL who was born on 26 February 1999. Accordingly at the present time Matthew is just under three years of age.
The matter concerns where Matthew will live in future. The mother wishes to live with Matthew in Townsville in Queensland. The father wishes Matthew to continue to live in Katherine in the Northern Territory. He seeks orders from the Court which, if made, would preclude the mother from relocating from Katherine to Townsville as she wishes.
The father is the applicant in the proceedings. In a minute of order presented to the Court he indicated that he sought orders which can be summarised as follows:
a)That Matthew live with him on each alternate weekend from 5.00pm on Friday until 8.15pm on the following Sunday;
b)On each other weekend from 5.00pm Friday until 8.15pm on the following Sunday (the periods of residence to be extended on long weekends); and
c)On each Wednesday from 5.15pm until 8.15pm.
d)During school holidays:
i)For the first half of each of those holidays in 2002 and thereafter in each alternate year;
ii)For the second half of each of those holidays in 2003 and thereafter in each alternate year.
Clearly if those orders are made the mother will be prevented from moving to Townsville as she wishes. For her part the mother seeks that contact orders be made in the father’s favour that would permit her to move to Townsville.
In her response to the father’s application she seeks orders that can be summarised as follows:
a)That Matthew live with her in Townsville.
b)That the father have contact to Matthew at all such reasonable times and places agreed between the parties but in particular as follows:
i)For 2 weeks including Easter 2002 in Katherine, provided that the child is returned to the mother, who will remain in Katherine throughout the contact period between the hours of 5.00pm and 9.30am each second evening.
ii)For 2 weeks during the Queensland June/July school holiday period 2002 in Katherine provided that the child is returned to the mother, who will remain in Katherine throughout the contact, between the hours of 5.00pm and 9.00am each third evenings.
iii)During the September/October school holiday period 2002 in Townsville provided that the child is to be returned to mother each fourth evening between the hours of 5.00pm and 9.00am the following day.
iv)During the Christmas school holiday period 2002 for
2 weeks not including Christmas Day.v)Thereafter as follows:
a)In odd numbered years for the whole of the Queensland June/July and Easter school holiday periods and for 3 weeks during the Queensland Christmas school holiday period including Christmas Day.
b)In even numbered years for the whole of the Queensland June/July and September/October school holiday periods and for 3 weeks of the Queensland Christmas school holiday period not including Christmas Day.
She also proposes that prior to Matthew reaching 4 years of age that she shall be responsible for the costs of contact which occurs in Katherine and the father be responsible for the costs of contact which occurs in Townsville. Thereafter she proposes the parties will share equally the costs of contact that will take place in Katherine thereafter.
In the event she is permitted to relocate to Townsville she also proposes that the father have regular telephone contact with Matthew and has indicated to the Court that she would install the necessary equipment at her home to enable an internet computer link incorporating a video camera to be installed.
Background
The father was born on 24 April 1976 in Katherine. He is one of a large family. His parents both live in Katherine as do one of his sisters and one of his brothers. His family have business interests in Katherine centered mainly on a hardware store they own in the town. The father has many other relatives who either live in or in close proximity to Katherine, these relatives include a niece Krissy who is aged 9 and a nephew Thomas who is aged 6 months. Thomas and Krissy are the children of the father’s brother, Craig Lambert and his sister in law Tanya Louise Lambert. Craig Lambert is the managing director of the family business. The father currently works in the family hardware store.
The father attended primary school in Katherine but boarded at St John’s College in Darwin from year 8 to year 12. He spent one year in Japan in 1995 on a Student Exchange Program. He briefly attended university in Darwin in 1996. However he subsequently completed an apprenticeship as an electrical fitter. Following the completion of his apprenticeship he commenced work in the hardware business.
The mother was born on 12 September 1977. Her father John Steel is a warrant officer in the R.A.A.F. He was transferred to the Tindal R.A.A.F. Base near Katherine in 1992 and as a result the mother came to live in the Katherine area with her father and her mother Julie Steel when she was aged 15. Subsequently Mr Steel was transferred to Townsville in 1996, where he and his wife still live. However the mother elected to remain in the Northern Territory after her parents left Katherine.
The parties meet each other in Katherine when each of them was still at school. Their relationship persisted during the time the father was in Japan and attending university. The mother became close to various members of the father’s family particularly his father and mother. Mr and Mrs Lambert senior own a rural property approximately 15 kilometres from Katherine.
The mother and father began to live together at some time in January 1996 in Katherine when they were both aged about 19. They initially lived with the father’s parents then in a demountable situated at the premises of one of the Lambert’s family businesses. The father was engaged in his apprenticeship with the Power and Water Authority at this time. The mother had some part time retail work.
Matthew was born in Katherine on 26 February 1999. After Matthew was born the parties lived together at the home of the father’s uncle and aunt in Katherine.
It is common ground between the parties that their relationship was under a great deal of stress during the later part of 1999 and for most of 2000. They changed addresses several times. They lived with various relatives of the father and in the demountable dwelling. They had a young baby. It seems they were under some financial pressure. The father was away from time to time with his work. He was away for periods of up to a week at a time. The mother was compelled to take employment at a video store and at a music shop. From time to time she worked in the evening.
The mother was anxious to move to Townsville. She wished to be closer to her family. She wanted a home of her own. It seems that the father went along with her wishes and plans were made for the family to move to Townsville at the end of 2000 when the father had completed his apprenticeship. However the father changed his mind in regard to this and instead began to work in the family business.
The relationship between the parties ended in March of 2001. At the time of the breakdown of the relationship the parties where living in the demountable dwelling. The father went to live with his parents. Shortly afterwards the mother’s parents arrived in Katherine from Townsville. The mother, Matthew and her parents left Katherine on
31 March 2001 and drove to Townsville.
The father began proceedings in this Court on the 1 June 2001. At that time he sought orders to compel the mother to return Matthew to Katherine. Further he sought orders that Matthew should live with him in Katherine every second week. The mother subsequently filed a response opposing this application and instead seeking orders from the Court that would permit her to remain in Townsville with Matthew.
This issue between the parties was determined on an interim basis by Federal Magistrate Mead on 27 June 2001. On that date Federal Magistrate Mead made orders as follows:
a)That until further order
i)The mother do return the child MATTHEW LACHLAN STEEL born 26th February 1999 to reside not more than 10 kilometres from the Katherine Post Office, such return to be effected within 21 days of today’s date.
ii)That thereafter the mother be restrained and an injunction is hereby granted restraining her from changing the child’s residential address from the area designated in paragraph (a) hereof.
iii)That the father do pay one half of the cost of the mother’s rental accommodation taking into account the net figure after deduction of the amount received by the mother from Centrelink for rent relief and to a maximum of $100 in any event and that such amount not be taken into account in relation to the question of Child Support.
iv)That the said child do reside with the mother who shall have sole responsibility for his day to day care, welfare and development.
v)That the father have contact with the said child as follows:
(i)On each alternate weekend commencing on the weekend of his return to Katherine from 5.00pm Friday to 5.00pm Sunday (or 5.00pm Monday in the event of a long weekend).
(ii)On the intervening weekend from 5.00pm Friday to 5.00pm Saturday;
(iii)From 5.15pm to 7.00pm on Wednesday of each week;
(iv)At such other times as agreed between the parties.
As a result of these orders the mother returned with Matthew to Katherine on 25 July 2001 after having lived in Townsville with her parents since early April. The father and his family have had regular contact with Matthew since that time.
The relevant law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principals underlying this object are set out in section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for Matthew.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755.
The law to be applied, and the approach to be taken, in cases where a party with whom the child resides wishes to relocate with the child are summarised by the Full Court of the Family Court in A v A 2000 (FLC) 93-035. The approach to be taken is as follows:
a)The best interest of the child is the paramount consideration.
b)That is not to say however that this is the sole consideration. In particular the Court should recognise the importance of a person’s right to freedom of movement and to organise his or her life as he or she wishes.
c)Neither party bears an onus. That is the mother does not bear any onus of having to persuade me that I should make the orders she seeks permitting Matthew to live in Townsville with her nor does the father have any onus to persuade me to the contrary.
d)In coming to my decision I should be guided by the principles set out in section 60B of the Family Law Act and in determining what the best interests of the child are should be guided by the criteria set out in section 68F(2) of that Act.
e)I am required to look at and compare the two competing proposals, that is on the one hand the proposal by the mother that Matthew should live with her in Townsville and on the other the proposal of the father that Matthew should remain in Katherine with the mother so that he may have regular contact with him. In this respect I am not bound to follow either proposal precisely and I am at liberty to devise a regime which may not be as sought by either party but which I consider to be in Matthew’s best interests. The proposal of the mother necessarily involves Matthew having substantially less face to face contact with his father than he presently enjoys.
Evidence
The father relied on the following affidavits filed on his behalf:
i)Two of himself both filed on 21 January 2002;
ii)
Of his mother Jeanette Helen Dawn Lambert filed on
21 January 2002;
iii)
Of his sister-in-law Tanya Louisa Lambert filed on
21 January 2002.
Each of these witnesses was cross-examined by counsel for the mother, Ms Pagani.
The mother relied on the following affidavits filed on her behalf:
i)Of herself filed on 26 June 2001 and 14 January 2002;
ii)Of her father John Steel filed 14 January 2002;
iii)Of a psychologist Kim Groves filed 14 January 2002;
iv)Of her mother Julie Steel filed 14 January 2002.
Of these witnesses the respondent, Mr Steel and Ms Groves were cross-examined by counsel for the father, Mr Black.
In addition the Court had the benefit of a Family Report which was prepared by Karen Green. Ms Green was required to attend at Court for cross-examination on the hearing of the matter on 24 January 2002 by counsel for the father.
Both parties gave their evidence in a straightforward manner. Although each of them has a very different view as to what is likely to be in Matthew’s best interest in the future, I found each of them to be a truthful witness. Albeit in both their cases their evidence was coloured to some degree by their diametrically opposed positions in respect of the matter. It is to each of their credit that both of them refrained from full scale criticism of the other as a parent. Both acknowledged that the other has a major role to play in Matthew’s life and neither seeks to exclude the other from playing that role. As a result there were few if any conflicts in their testimony regarding factual matters. As I say the difference between them is their competing views as to the more appropriate place in which Matthew should live. As a result of observing each of them in the witness box, during which their motivations and plans for Matthew where subject to prolonged and skillful examination by counsel, I have no doubt that each of them love Matthew very much and each of them has his best interests to the forefront of his or her heart.
Although the mother is the respondent in the proceedings on the basis that it is she who wishes to move Matthew away from Katherine it is convenient to summarise her case first.
The mother’s evidence
It is the mother’s case that she was deeply unhappy in Katherine in the later stages of her relationship with the father. She felt that she was financially subservient to the father in the sense that any wages she earned went to him for the payment of their joint living expenses whilst he kept his wages. She was unhappy in that she and the father did not have a home of their own for Matthew and were dependent on the father’s relatives for accommodation. She was bitterly disappointed when the plans for the family to move to Townsville at the end of 2000 came to nought. She was disappointed in the sense that she felt that her needs had been placed behind those of the father and his wish to assume a role in the family business in Katherine. I accept the mother’s evidence in respect of each of these matters.
I also accept that during the time she lived in Katherine with the father that her social interactions were largely confined to members of his family, particularly his parents. It is agreed between the parties and is a central theme of the father’s case that the Lambert family is a particularly close one. As a result the mother had few, if any friends outside the Lambert family in Katherine. Prior to the break down of the relationship between her and the father she was particularly close to Mrs Jeanette Lambert, the father’s mother.
The mother was foolish and ill advised to leave Katherine when she did in late March of 2001. I accept that the separation was traumatic for her. She had no one to whom she could turn outside the father’s family. She was living in accommodation owned by members of the Lambert family. In such circumstances I can readily understand that she would feel isolated and vulnerable. Given her perception of the closeness of the Lambert family and the fact that she had just separated from the father I can accept that she would feel that his family would harbour some resentment towards her. In those circumstances it is easy to understand why she would turn to her parents for support and that they would come from Townsville to assist her.
At the time the mother went with Matthew to Townsville, Matthew was a little over two years of age. I accept the mother’s evidence that up to this time she had been his primary carer. The father does not seek to seriously challenge this view. He concedes that during the early months of Matthew’s life he was often away as a result of his work commitments. The father has made no criticisms of the mother’s abilities to care for Matthew.
Ms Steel lived in Townsville with her parents from early April 2001 until 25 July 2001, a period in excess of three months. She did not work during this time but received a government benefit. She was able to save some money as a result of not having to pay accommodation expenses. I accept that Matthew coped with this change in environment. Given his age at the time and the fact that he remained in the consistent care of his mother this does not surprise me. I also accept that she was happy living in Townsville with her parents.
The mother returned to Katherine in order to comply with Federal Magistrate Mead’s order in the company of her father John Steel. It was Mr Steel who found the flat where she and Matthew took up residence. The rent was $220.00 per week. At the current time the mother receives a Centrelink sole parent benefit of approximately $334.30 per week. In addition the father contributes child support for Matthew in the sum of $70.50 per week.
It is the mother’s case that notwithstanding the rental assistance she receives from the father pursuant to the order of Federal Magistrate Mead made on 27 June 2001 that she is under severe financial pressure living in Katherine. She complains of high rents and high living expenses in Katherine when compared to those associated with living in Townsville. As a result she has had recourse to her parents to assist her with some bills. Although no formal evidence was provided regarding the comparative costs of living in Townsville and Katherine I accept the mother’s evidence that rents in Townsville are substantially cheaper than in Katherine. It would also appear to me that given Katherine’s comparatively small population and its geographical isolation that food expenses are on balance more likely to be higher in Katherine than in Townsville.
It is the mother’s wish that she should be Matthew’s full time carer during his formative years. To this end she has chosen not to seek either full time or part time work. She cannot be criticised for her decision in this regard. I accept that she is devoted to Matthew and for this reason wishes to be able to attend to his needs on a full time basis.
Since returning to Katherine the mother has felt socially isolated and financially disadvantaged. I accept her evidence that she has felt rebuffed by the Lambert family since her return to Katherine. The separation of the parties, the mother’s subsequent departure to Townsville and the resulting court proceedings polarised the mother’s position from that of the father and his family. Proceedings such as these do engender mistrust and resentment. It would have been difficult for the mother to return to Katherine given the suddenness of her departure from the town, the length of time she was away and the circumstances in which she had to return. I have no doubt that there was bitterness and resentment on both sides. In such circumstances, unless each party possessed an extraordinary capacity for reconciliation, it is difficult to see how things could return to how they had been before.
I accept the mother’s evidence that as a result of what occurred between March and July of 2001 she felt that her relationship with the Lambert family had been irreversibly damaged. This was also the view of Jeanette Lambert when she gave evidence before the Court. It was sad to see the obvious discomfort of both women, who had been previously close, when Mrs Lambert gave her evidence in Court. Mrs Lambert was obviously upset by the depth of the estrangement of Ms Steel from her family.
I can also accept the mother’s perception that whatever financial assistance that has been given to her since her return to Katherine by the father has been begrudgingly given. It was Mr Steel who found the flat. Since the mother returned to Katherine there has been a downward change in the assessment of Child Support due to her from the father.
In this regard it is telling that further offers of financial support have been made by the father only since the Family Report was released. It is also telling that offers of social engagement have been forthcoming from the Lambert family, particularly Tanya Lambert, only since the release of this report. In circumstances such as these I can readily accept that the mother feels that attempts are being made to accommodate her by the Lambert family for their own ulterior motives. I can also accept that she feels uncomfortable in Katherine now that all her previous emotional supports have been stripped away. She is very much alone. As a result I accept that she is very unhappy in Katherine.
In these circumstances the physical and financial disadvantages of Katherine appear more starkly to her. She has become more aware of the level of crime and social misbehaviour in the town and its lack of such things as safe parks for her and Matthew. It is understandable that Townsville would appear very much a more preferable option to her than Katherine.
It is against this background that the evidence of Ms Groves assumes a great deal of significance.
Ms Groves is a consultant psychologist. She interviewed the mother on four occasions between September 2001 and January 2002. She also performed a test on the mother designed to elicit the level of any depression the mother may have been suffering at the time of the test.
Ms Groves does not have wide experience as a psychologist. She became a member of the Australian Psychological Society only at the beginning of 2000. Nonetheless she impressed me as a competent witness whose evidence was thorough and well considered. I accept her evidence and her professional opinion in respect of the mother. Ms Groves’ opinion was that at the time of her assessment of the mother that she was suffering from mild signs of emotional and behavioural difficulty. She was not suffering any significant depression but was anxious. This assessment was confirmed by the psychometric test administered by Ms Groves. The mother’s condition had come about in Ms Groves’ opinion as a result of the significant levels of stress in her life. These stresses included the mother’s level of financial insecurity, her feelings of social isolation in Katherine and her anxiety about her future, in particular the outcome of these proceedings.
Ms Groves was of the view that Ms Steel was not suffering a significant level of depression due to her inherent psychological resilience. Clearly at the time she was examined the outcome of these proceedings was unknown. As a result Ms Groves was of the view that Ms Steel was in the “fight” stage of her response to her position.
One of the potential major stressors in the mother’s life, in Ms Groves view, was the possibility that she might feel powerless in the sense that she had no control over the future direction of her life if she was compelled to remain in Katherine. Ms Groves was of the view that Ms Steel’s age at the present time was one at which women such as the mother typically begin to develop their long term identity and delineate future personal goals. In Ms Groves’ view it was important for the mother to have the opportunity to develop her own identity in this way.
Ms Groves accepted that Ms Steel felt socially isolated in Katherine. In her view the mother exhibited mildly dependent traits and was a person who was in need of social support. She was not receiving any such support in Katherine.
As a result of all these factors Ms Groves had some concerns about the mother’s future position and in particular what the likely consequences would be for her if it became necessary for her to remain in Katherine for the foreseeable future. She was of the view that the mother was vulnerable to developing significant depression if she did remain in Katherine against her will. This would flow from the mother feeling powerless in not being able to shape her future destiny as she chose by moving from Katherine. The risk of the mother developing depressive symptoms if she was compelled to remain in Katherine was in Ms Groves view “significant”. In terms of the mother maintaining her psychological health and not developing a depressive illness in future Ms Groves was of the view that a relocation to Townsville with Matthew was the best option. In this respect Ms Groves accepted that the mother was a family-orientated person and as such would not consider a situation in which she was not Matthew’s primary carer.
The mother has modest future proposals if she is permitted to relocated to Townsville with Matthew. In the short term she would live with her parents at their home in Townsville in an endeavour to save money. Thereafter she would like to obtain rental accommodation for herself and Matthew. She does not envisage a situation in the next few years in which she is not involved in Matthew’s primary care.
She wishes to study in Townsville to become a beautician. It is a modest career aspiration and would provide her with the opportunity to do semi-skilled work which is readily adapted to being done on a part time basis. It did not seem to me that her plans in this regard were particularly well thought out. However given the current uncertainty regarding her position this is understandable. However it would seem to me to be the sort of career that would readily adapt to her chosen role as Matthew’s primary carer.
The mother’s father, Mr John Steel also gave evidence. He impressed me as a concerned and loving parent. I have no reason to believe that he and his wife would not provide the maximum level of support to the mother and Matthew if they were permitted to relocate to Townsville. I accept the mother’s evidence that her parents are the providers of significant emotional support to her and were so in the months following her separation from the father.
The father’s evidence
Mr Lambert was a likeable young man. He did however strike me as being still somewhat immature. Certainly he had not closely considered the potentially deleterious effects on the mother of her having to remain in Katherine for the foreseeable future and the consequences of this for Matthew. He did not seem to me to be a person who would readily empathise with the financial situation the mother found herself in and any sense of financial dependence and powerlessness she might feel as a result. I perceived that there was a certain level of begrudgement in his giving of financial support to the mother since her return to Katherine. Certainly it did not seem to me that he had gone any further than the absolute minimum that was necessary.
In this regard it is telling that he has deposed that he did not realise that she was in financial difficulties until he read her affidavit of evidence. It is also telling that the level of child support that the father was assessed to pay in respect of Matthew dropped from $476.17 to $282.17 in November of 2001 and this occurred without reference by the father to Ms Steel. In my view this state of affairs is indicative of the strained communication between the father and members of his family with Ms Steel. It is also significant that although the father deposed that he and his father were attempting to find accommodation for the mother on her return to Katherine they did not communicate this fact to her and it was Mr Steel who in fact located accommodation for his daughter.
In cross-examination Mr Lambert did accept that Ms Steel’s financial position if she did remain in Katherine would be “parlous”. Yet he seriously suggested that the ability of his family to take Matthew on overseas holidays was an advantage of Matthew staying in Katherine. It seems to me that he has given little thought to the difficulties that the mother may encounter in future if she is in receipt of a government pension for a long period of time whilst living in Katherine with Matthew.
Nor was the father a person readily able to concede that the relationship between Ms Steel and his family had been irreversibly changed as a result of what had occurred since separation and that from now on it was likely that Ms Steel would feel an outsider from his family. In this regard I felt that the protestations of Ms Tanya Lambert that she had been too busy to see the mother on her return to Katherine were somewhat hollow and that it was unlikely that it was mere coincidence that attempts at contact had occurred only since the release of the Family Report.
It seemed to me that the father is a person who is prepared to some extent to put his needs before those of both the mother and Matthew. In this regard he saw his future and his career very much as being in the family business in Katherine. He would not countenance any other option and was not prepared to consider moving to Townsville.
The father conceded that Ms Steel had been the primary carer of Matthew during his life to date. He agreed he was still learning to be a parent, that he had learnt a lot and still needed to learn a lot more. It seemed to me that he is still somewhat dependent on his mother, sister and sister-in-law in his care of Matthew.
The father seeks that the mother remain in Katherine with Matthew so that Matthew can spend regular time with him, his parents, his brother Craig and sister-in-law Tanya Lambert and their daughter Krissy and his sister Deb. I accept that each of these people enjoy a significant relationship with Matthew and love him deeply. However I consider that there is still a residual level of resentment between the Lambert family and the mother and that this is unlikely to dissipate in the short term. To their credit both the mother and Ms Tanya Lambert indicated that they will attempt to maintain a level of civility in their communications with each other. However I consider that there will be little warmth in any future dealing between the mother and the various members of the Lambert family. I suspect that certain members of the Lambert family feel that Ms Steel has betrayed them and that the rift is likely to remain for the foreseeable future.
The Family Report
A Family Report was prepared to assist the Court with the disposition of this matter. This report was prepared by Karen Green. Ms Green is a Social Worker and Family Court Counsellor. She gave her evidence by way of a telephone link from Victoria where she now lives. I found her to be an impressive and well qualified witness. I accept her evidence.
During the course of the preparation of her report, Ms Green observed Matthew with both of his parents. She also interviewed Mr Lambert and Ms Steel.
Ms Green was impressed with Ms Steel as an independent and competent parent who had had extensive experience of caring for Matthew as a sole parent. She was of the view however that Ms Steel did require practical and emotional support and that this was more likely to be available for her in Townsville.
Ms Green was also impressed with Mr Lambert and with the strength of his conviction that he would play a major role in Matthew’s life regardless of the place of Matthew’s residence. She was impressed that a level of good will in respect of arrangements for Matthew still existed between the parties. However the general tenor of Ms Green’s report and evidence was that Ms Steel had been Matthew’s primary career during his life to date and that it was she who was the person best placed to meet his needs in future. Ms Green was concerned at the possible implications of the mother having to remain in Katherine for the foreseeable future and the ramifications of this for Matthew. In the conclusion to her report she had this to say:
“The option of Ms Steel remaining in Katherine longer term as the sole-care provider would potentially meet the child’s emotional developmental needs by him having regular contact with both parents. However, the option does not appear to be a viable option, due to Ms Steel’s feelings of isolation, the perceived lack of support, absence of opportunities for her to build a future for Matthew and herself, and her strong desire to reconnect with the support of her own family.
If the Court’s decision was for the Matthew to remain in Katherine in Ms Steel’s care, it is possible that she would cope with residing in Katherine for a time-limited period, due to her generally positive outlook and her apparent ability to adapt to difficult or changing circumstances for the child’s sake. However, the importance of parents having access to adequate practical and emotional support, thus being able to maintain parenting responsibilities in order to achieve personal aspirations and goals, should not be under-estimated. It is inevitable that without adequate support, Ms Steel’s positive outlook would diminish, her energy levels would decrease, and her parenting style may be adversely affected.”
In short Ms Green’s opinion tends to support the assessment of Ms Groves. Both were concerned about the possible deleterious effects on Ms Steel’s mental health if she were required to remain in Katherine and the possible consequences of this for her ability to adequately parent Matthew. In the short term, until the resolution of these proceedings Ms Steel had been able to cope with the situation. Thereafter, depending on the results of these proceedings the position was more problematic.
Ms Green believed that Matthew has a significant attachment to both his parents. She was also concerned about Matthew being separated from his paternal grandparents. She was of the view that if Matthew was to be relocated from Katherine that given Matthew’s current age and level of attachment to his father that the relocation would affect his relationship with his father. However she thought that the relationship between father and son could still be forged if Matthew relocated but obviously not in the same way as before.
Ms Green was of the opinion that Ms Steel had thought closely about how the relationship between Matthew and his father could be maintained if Matthew moved with her to Townsville and that her proposal for integrated and staggered contact was a sensible one. She was further of the view that if Matthew did exhibit distress on relocation, which was by no means certain, that Ms Steel had the necessary resources to deal with this distress so that Matthew’s emotional needs could be met in future. She was also satisfied that Ms Steel was a parent who was likely to promote contact between Matthew and his father in future.
Discussion
The competing proposals of the parties and the implications of those proposals are as follows. In the event that the mother relocates Matthew to Townsville, Matthew will have significantly less face-to-face contact with his father and members of his paternal family with each of whom he has a close and warm bond. This is the significant disadvantage of the mother’s proposal.
The advantages of the mother residing with the child in Townsville are that it is likely that she will be much happier in that environment. She feels that she will be safer and more secure and supported in Townsville where she has family on whom she will be able to rely for the support that she needs. It is clearly beneficial for Matthew that the parent with whom he primarily resides is living a happy and fulfilled life.
I am satisfied that regardless of the outcome of these proceedings that the mother intends to remain as Matthew’s primary carer, whatever the implications are for her personally. In my view her reasons for wishing to move to Townsville are genuine ones and not motivated in anyway by a wish on her part to dislocate the current level of relationship between Matthew and his father and the other members of the Lambert family.
If the mother is required to remain in Katherine I am satisfied that there is a significant probability that her mental state will deteriorate. There is a possibility that she will become resentful and feel powerless as a result and that this may well precipitate within her a depressive reaction. This would have potentially serious consequences on her ability to adequately parent Matthew. Accordingly if the mother is not permitted to relocate to Townsville it may well have serious consequences for Matthew. The mother will also be deprived of the opportunity of pursuing her plans to live with her parents in Townsville and in time gaining her qualifications as a beautician.
These are in brief the competing proposals that I must evaluate against the criteria provided by section 68F of the Family Law Act. I must remember that all children have an entitlement to regular contact with those who are significant in their lives, particularly their parents. I must bear in mind that Matthew’s welfare is my paramount concern. However I must also remember that I am deciding this case in the context that both the mother and the father as Australian citizens of a democratic society that recognises the rights of people to move freely and live where and how they choose.
Section 68F(2) factors, determining the best interests of the children
a) The child’s wishes
Matthew is not yet three. There is no evidence of what his wishes are and in any event at his age, even if he had expressed a wish, he would not be capable of understanding the implications of what is involved in giving effect to it.
b) The nature of the relationships between the child, his parents and other significant people
I accept that Matthew has a good relationship with both his parents and indeed with members of both his maternal and paternal family. However the most significant person in Matthew’s life to date is undoubtedly his mother. Whatever the outcome of this case this will remain the position. As I have said, I accept that because of her devotion to Matthew and her wish to remain his primary carer, that if it be the decision of the Court that Matthew remain in Katherine that Ms Steel will remain in the town. In my view it is important that the Court take all necessary precautions to ensure that the relationship between Matthew and his mother is enhanced rather than damaged. In this regard I am concerned about what I regard as the strong possibility that Ms Steel will become seriously depressed if required to remain in Katherine with Matthew. In any view if Ms Steel does become depressed and is required to seek psychiatric treatment, and in addition if she feels that all possibility for future advancement are denied her and that she is caught in a welfare trap and as a result becomes and continues to be deeply unhappy that this will have severe implications for Matthew and Ms Steel’s ability to care for him adequately.
c) The likely effect of any change in the child’s circumstances
As I have indicated in the foregoing paragraph I am concerned at the implications for the mother and her ability to adequately care for Matthew of the father’s proposal in regards to future care arrangements for Matthew. The mother is coping at present with looking after Matthew in Katherine. In my view she is coping because as far as she is concerned there is still hope that she will be able to leave Katherine with Matthew. With this hope, although she is anxious, she remains psychologically resilient. If this hope is crushed within her I have grave concerns about her ongoing ability to cope in Katherine. I accept that she loathes the town and feels deeply unhappy there. I accept that she has little support in the town and is financially disadvantaged. If she remains in Katherine she will be a sole parent paying a high rent who is dependent on welfare payments. I have concerns at the implications of this for Matthew as he grows older.
If Matthew does relocate to Townsville, Ms Steel will be much happier. However Matthew will have significantly less contact with his father. In this regard it is significant that Matthew apparently coped with the four-month separation from his father whilst he was in Townsville in mid 2001. The mother’s proposals for contact are the best available in the circumstances. I also give a good deal of significance to Ms Green’s opinion that the mother has both the necessary will and resources to assist Matthew to cope with any potential trauma that relocation may precipitate within him and further that Ms Steel is likely to promote the bond between Matthew and his father in future.
However it cannot be said that Matthew suffering such trauma on relocation is a certain consequence of his relocation. In my view given his age and what happened in mid 2001 it is more likely than not that he will adapt well to the change.
d) The practical difficulties associated with contact
Ms Steel proposes that if she is permitted to leave Katherine with Matthew that he would have contact with his father four times each year for periods of a fortnight at a time prior to him reaching school age. Initially the contact would alternate between Katherine and Townsville. Ms Steel would be involved in the contact in the sense that Matthew would return regularly to her during contact at night. She proposes that the costs of contact would be shared between the parties. These expenses are likely to be significant, particularly to Ms Steel.
It is of course of great significance that Matthew’s contact with his father will be reduced from regular weekly periods to four times a year. However there seems to be sufficient will on both sides to ensure that this regular level of contact as proposed by the mother takes place. Particularly in respect of the Lambert family I am satisfied that the means will be made available to ensure that contact takes place.
It is also significant that Ms Green was of the opinion that Ms Steel was amenable to regular contact taking place and had thought closely about how it could be best implemented.
Obviously the relationship between Matthew and his father will be different if Matthew is permitted to go to Townsville with Ms Steel. However there is no evidence that this will cause the relationship between father and child to be severed.
It seems to me that Ms Steel is supportive of the relationship between Matthew and his father and will endeavour to reinforce the importance of that relationship with Matthew. Although not ideal the computer video link proposal will have the effect of maintaining some form of regular visual contact between father and son.
e) The capacity of each parent to meet the child’s needs
Both parents are capable of meeting Matthew’s needs, including his emotional and intellectual needs. However in my view the mother is significantly better placed in this regard than the father. This was also Ms Green’s opinion.
As I have already indicated it is in my view important that the Court makes orders that will foster the mother’s abilities to continue to provide for Matthew’s needs. There is nothing to indicate that she is not a competent and caring parent.
f) The child’s maturity, sex, background and other characteristics
In the circumstances of this case this subsection does not have any application.
g) The need to protect the child from physical or psychological harm caused by abuse or ill-treatment, violence or other behaviour
There is no evidence to indicate that Matthew needs to be protected from any physical or psychological harm. He is a much loved child by all who are involved with him.
h) The attitude to the child and the responsibilities of parenthood
I am satisfied that each of the parties is committed to responsible parenting. In particular Mr Lambert has gone to some lengths to enhance his parenting skills as a result of his devotion to Matthew.
i) Family violence involving a child or member of the child’s family
This is not a case involving issues of family violence.
j) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Finality is desirable in children’s cases. A decision should be made between the competing proposals of the parties.
k) Other factors
In my view it is important to consider the economic implications of the two competing proposals. On the one hand if Ms Steel remains in Katherine she will be significantly disadvantaged financially. It is likely that she will remain in receipt of government benefits for the foreseeable future and beholden to the father for additional financial support. She will be living in expensive rented accommodation. She will be deprived of any opportunity in the short to medium term of developing any financial independence or indeed any sense of her own identity as an individual. There is a grave danger that she will feel in future that she is the financial prisoner of the Lambert family.
On the other hand if permitted to relocate to Townsville it seems that she will be better off financially in the short term as she will be relieved of the obligation to pay rent. She will thus be able to save. Her living expenses are also likely to be less in Townsville.
Her plan to pursue a cosmetology course is a modest proposal but will in future give her flexibility and some measure of financial independence. It is not an extravagant ambition by any means but it is her ambition and if possible she should be able to pursue it.
Conclusions
The advantages of the mother and Matthew moving to Townsville are:
a)Ms Steel will be much happier and this will be reflected in her ability to care for Matthew;
b)Ms Steel will have greater emotional and practical support in her care of Matthew;
c)Ms Steel will be more financially secure in Townsville;
d)Ms Steel will be able to pursue personal and career goals;
e)Matthew will be able to develop his relationship with his maternal grandparents.
The advantages of the mother and Matthew remaining in Katherine.
a)Matthew will be able to maintain his current level of relationship with his father and close extended paternal family.
Against this must be set the significant risk that Ms Steel will develop a serious depressive reaction if compelled to stay in Katherine. In my view, on the basis of Ms Grove’s evidence, this is not a spurious or contrived risk but a very real possibility. If Ms Steel did become seriously depressed this would have major ramifications for her abilities to care for Matthew and serious implications for both his physical and emotional well being.
As I say, I am satisfied that the mother’s wish to relocate with Matthew to Townsville is genuine and not motivated by any desire to reduce the father’s input into Matthew’s life. I am satisfied that she would be happier and more content in Townsville and that this is in Matthew’s best interests.
I am satisfied that the mother is genuinely unhappy in Katherine and feels socially and emotionally isolated in the town. True it is that she has lived in Katherine for many years, through her teens and early twenties, however that was at a time when she had been welcomed into the Lambert family as a daughter. The Lambert family was the context of all social and personal interactions in Katherine. That is no longer possible.
As a result of her separation from the father she is now largely a stranger to the family. She is alone. She is financially insecure and in receipt of government benefits. As she perceives it she is financially beholden to the Lambert family who begrudgingly dole out some extra money to her. Her modest ambitions to be a beautician will come to nought.
In those circumstances, I can readily understand that she would feel a captive to the father and his need to develop his career in the Lambert family business in Katherine. I can also understand why all the shortcomings and isolation of Katherine would appear starkly to her in such circumstances.
This is a sad and difficult case. The ambitions and aspirations of the parties are different. They were different during the relationship and this in my view was a major catalyst for its failure. The mother has long wanted to return to Townsville. The father sees his career and future with his family in Katherine. It is not possible for both wishes to prevail. Both parties are entitled to pursue their legitimate expectations. However the Court must determine which is likely to best meet Matthew’s interests.
In my view the advantages of the mother relocating to Townsville with Matthew outweigh its disadvantages. Accordingly I am of the view that Matthew’s best interests will be fostered by him living with Ms Steel in Townsville.
Regrettably the move of the mother to Townsville will necessarily result in a change in the current contact arrangement Matthew will have with his father. However this is not a case where the relocation will inevitably sever the bond between father and child. The contact proposed by the mother is the best that is available in the circumstances. In Ms Green’s view the bond between Matthew and his father will be able to be maintained through the contact as proposed by the mother.
I have no reason to believe, given the mother’s behaviour since she returned to Katherine and her attitude towards the father and his contact with Matthew, that the father will not have regular contact with Matthew in future.
For all these reasons, the orders of the Court are as set out at the commencement of these reasons for judgment.
As I indicated when the hearing of this matter concluded that practicalities dictated that these reasons and orders would be distributed to the parties electronically. For that reason liberty is granted to each of the parties to apply in respect of the form of these orders.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate:
Date:
0
0
0