Ladley and Grant
[2010] FMCAfam 1512
•22 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LADLEY & GRANT | [2010] FMCAfam 1512 |
| FAMILY LAW – Children – parenting orders – relocation – best interests of the child – parental responsibility. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 62G, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Ladley & Grant [2010] FMCAfam 84 Godfrey & Sanders [2007] FamCA 102 |
| Applicant: | MR LADLEY |
| Respondent: | MS GRANT |
| File Number: | SYC 4117 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 15 & 16 June 2010 |
| Date of Last Submission: | 16 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 22 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | The Applicant appeared in person |
| Solicitors for the Applicant: | No solicitor on the record |
| Solicitor for the Respondent: | Ms Wearne |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
All previous parenting orders are discharged.
The parties are to have equal shared parental responsibility for the child [X] born [in] 1998.
The child [X] is to live with the Mother.
The Mother is permitted to relocate the child [X]’s primary place of residence to [W] in the State of New South Wales with effect from 4 January 2011.
Unless otherwise agreed between the parties, the Mother is to arrange for the child [X] to be in Sydney at the following times so that [X] can spend time with the Father;
(a)On the third weekend of every school term from Friday evening until Sunday afternoon or until Monday afternoon if the Monday is a public holiday;
(b)On the seventh weekend of every school term from Friday evening until Sunday afternoon or until Monday afternoon if the Monday is a public holiday, unless the Father elects to travel to [W] on the seventh weekend pursuant to Order 7;
(c)For eleven (11) days of every mid-year school holiday period with the child [X] to arrive in Sydney on the Saturday after the school term concludes and to depart Sydney on the Wednesday 11 days later no later than 48 hours after the school term concludes and departs Sydney no earlier then 48 hours before the new school term commences;
(d)During the Christmas school holidays from 23 December to 3 January; and
(e)For three (3) days in the second last week of the Christmas school holiday period.
For the purpose of the child [X] travelling to Sydney, [X] will travel by aircraft on a scheduled domestic service to and from Sydney during the school terms and will travel by aircraft on a scheduled domestic service or by car during the school holiday periods and the Mother is to be responsible for facilitating and paying for the travel and for booking all of the child’s flights.
In the event that the Father wishes to trave to [W] on the seventh weekend of the school term or for three days during the second last week of the Christmas school holiday rather than have the child travel to Sydney, he is to give the Mother no less than six (6) weeks notice of this intention and the dates he wishes to travel, and the Mother is then to be responsible for paying for and booking the flights for the Father or to contributing to the cost of his petrol for the journey up to the price of what the Father’s flights would have cost.
When the child [X] travels to Sydney by air the Mother is to advise the Father of the dates and times of the flights no less than seven (7) days in advance and during the school holidays and on Fridays is to arrange for a family member or friend to collect the child from and deliver the child to the airport in Sydney in the event that the Father is unable to do so.
The Father is to deliver the child [X] to the airport on the Sundays of the weekends during school terms that [X] is in Sydney to spend time with him and the Father is responsible for ensuring that the child does not miss the flight back on the Sunday.
The Mother is to arrange for the child [X] to stay at the home of the child’s maternal grandparents in Sydney or with another adult known to the Father at times when the Father is working and unable to care for her during the times specified in Order 5.
Subject to Order 16, the child [X] is to spend time with the Father as follows:
(a)During the school term on each weekend that the child is in Sydney as provided by Order 5, from Friday evening to Sunday afternoon or until Monday afternoon if the Monday is a public holiday, and in the event that the Father is working during a weekend that the child is in Sydney, then he is to collect her from the adult whom the Mother has arranged to care for her by no later than 10.00am on the Saturday and 10:00am on the Sunday and is to notify the adult caring for the child of the time he will return her to that person’s care when he collects her in the morning.
(b)During school holiday periods the Father may spend time with the child [X] on any day and for any overnight period that he wishes and provided that he:
(i)Collects the child by no later than 10:00am on any day he commences spending time with her unless otherwise agreed with the Mother or the adult caring for her; and
(ii)Gives the Mother notice before the commencement of the holidays of what periods including collection and return times that he intends to spend with the child;
(c)For three days in the second last week of the Christmas school holiday period; and
(d)At other times as agreed between the parties.
In the event that the child [X] is unwell and too unwell to travel to Sydney on one of the weekends specified in Order 5 above then the Mother is to notify the Father as soon as possible and is to arrange for the child to travel to Sydney to spend time with the Father on the following weekend.
On the following occasions of special significance the child [X] is to spend time with the parties as follows:
(a)On Mother’s Day the child will spend time with the Mother from 10:00am to 5:00pm if Mother’s day falls on a weekend that the child is to be in Sydney as provided by Order 5; and
(b)In the event that the Mother is in Sydney on Christmas Day in each year then the child will spend two (2) hours with the Mother at times agreed between the parties.
In the event that Father’s Day falls on a weekend that the child [X] is not scheduled to be in Sydney as provided by Order 5, the Father is to give the Mother one month’s notice if he wishes for the child to be in Sydney on the Father’s Day weekend and in that event the Mother is to arrange for the child to travel to Sydney on that weekend instead of the weekend immediately preceding or the weekend immediately following the weekend when the child was otherwise scheduled to travel to Sydney.
The Father is to use his best endeavours to take Saturday nights off work during the times when the child [X] is in Sydney to spend time with him and to take leave from his work for a period of one week during each school holiday period when the child is in Sydney for that purpose.
The child [X] is only to spend overnight periods with the Father provided that the Father is not working that night and has arranged for the child to have her own bedroom.
In the event that the Father intends to take the child [X] on a holiday outside the Sydney Metropolitan Area during his time with her, he is to provide the mother with no less than seven (7) days notice of his intention to take the child on a holiday within Australia and no less than twenty one (21) days notice of his intention to take the child on a holiday outside Australia and for that purpose he is to provide the Mother with details of the location and travel arrangements and a travel itinerary for any overseas holiday.
In the event that the Mother wishes to take the child [X] on a holiday outside Australia she is to provide the Father with no less than twenty-one (21) days notice of that intention and is to provide the Father with the details of the location and travel arrangements and a travel itinerary.
In the event that the Father has cause to find a new housemate and that person is someone that the Father does not already know then he is to consult the Mother about his choice of housemate.
The Father must ensure that the child [X]’s asthma is treated in accordance with the recommendations of the Mother and any medical practitioner when the child is in his care.
The Father and the Mother are both entitled to attend school and other events involving the child [X] including:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendances; and
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies and presentations, sports days, parent teacher interviews, canteen duties and social functions.
That the child [X] shall communicate with each parent by telephone:
(a)With the Father on any night between the hours of 7:00pm and 8:00pm;
(b)With the Mother on any night between the hours of 7:00pm and 8:00pm; and
(c)Each parent is to permit the child to call the other parent on the telephone at any reasonable time she requests to do so.
Each party is to give all authorities and sign all documents necessary to enable a valid passport to be issued to the child [X], such passport to be held by the Mother.
The parties are restrained from discussing these Court proceedings with the child [X].
IT IS NOTED that publication of this judgment under the pseudonym Ladley & Grant is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). .
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4117 of 2007
| MR LADLEY |
Applicant
And
| MS GRANT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the Father for an order restraining the Mother from removing the residence of the parties’ daughter [X] from Sydney to [W], on the North Coast of New South Wales. The Mother has formed a relationship with a man named Mr E, whom she knew when she was a child.
The Mother wishes to relocate the child’s residence to [W]. She seeks orders to this effect:
a)That the parties have equal shared parental responsibility for the child [X];
b)That [X] should live with the Mother;
c)That the Mother be permitted to relocate the child’s primary place of residence to [W];
d)That the Mother will arrange for the child to be in Sydney to spend time with the Father:
i)on the third weekend of each school term;
ii)on the seventh weekend of each school term;
iii)for eleven days in each mid-year school holiday period;
iv)during the Christmas school holidays fro 23rd December to 3rd January; and
v)for three days in the second last week of the Christmas school holidays.
e)that the child will travel by air during the school term and by air or car during school holidays at the Mother’s expense;
f)that the Father may choose to spend time with the child in [W] instead of Sydney on giving the Mother six weeks’ notice; and
g)other ancillary orders.
Background
The Mother was born [in] 1960. She was 49 years old as at the dates of the hearing.
The Father was born [in] 1960, so he, too, was aged 49 years at the time of the hearing.
[In] 1995 the Mother gave birth to a child called [Y], who is a child from the Mother’s previous relationship.
The Mother and Father commenced their relationship in 1997.
The child [X] was born [in] 1998. She was therefore aged 11 years [omitted] old at the time of the hearing.
The parties separated in 2000 and were divorced in 2006. [Y] and [X] remained living with the Mother. [Y] has been estranged from the Applicant, his stepfather, since an incident in February 2005.
Orders were made by consent on 13th June 2008 providing for the child to spend time with the Father on alternate weekends from Friday to Monday, on the Tuesday and Wednesday of the off week, and for half of the school holidays.
In 2009 the Father opened a pizza shop and commenced working there for six nights a week. He had a full-time job as a union organiser as well.
In June 2009 the Mother commenced a relationship with Mr E, whom she had known when they were children. The Mother eventually decided that she wished to live with Mr E and, in October 2009, she and Mr E approached the Father to advise him of their plans, which would involve her moving to [W] with [X] and [Y].
The Mother made arrangements to move to [W] with the children but in November 2009 she received a letter from the Father saying that he did not consent to the move.
On 17th November 2009 the Father commenced proceedings in this Court seeking to restrain the Mother from relocating the child’s residence.
Despite this application, the Mother moved to [W] with the two children [in] December 2009.
The Father’s application came before the Court on 20th January 2010. Walker FM heard an interim application and made orders requiring the Mother to relocate the child’s residence back to the Sydney metropolitan area and re-enrol the child at her former school, [R] Public School. Her Honour also ordered that the parties should have equal shared parental responsibility for the child and that she would live with the Mother and spend all school holidays prior to the final hearing with her (see Ladley & Grant[1]).
[1] [2010] FMCAfam 84
The application was listed for final hearing on 15th and 16th June 2010 and a Family Report was ordered under the provisions of s.62G of the Family Law Act 1975.
The Mother and the child [X] returned to Sydney but [Y] remained living in [W] in the home of Mr E. The Mother and daughter lived with the Mother’s parents.
On 12th February 2010 Orders were made by consent varying the interim orders made on 20th January. The Consent Orders amended the earlier Order 5(a) and provided that the Order should read:
Every alternate week on Tuesday, with such time to begin between 5:15pm and 5:45pm and such time to conclude no later than 8:00pm and on Saturday and Sunday with such time to begin between 8:45 am and 9:15am and such time to conclude between 4:00pm and 5:00 pm unless otherwise agreed between the parties.
The amended Orders also provided that:
2. The Father prank call the Mother’s mobile phone upon leaving his home to collect the Child on Tuesday evenings so that the Mother and Child know when to expect him.
3. If the Father has not collected the Child by 6:00pm on Tuesdays or by 9:30am on Saturdays and Sundays, the Mother is at liberty to assume that the Father does not intend to spend time with the Child that day.
The Family Report was released to the parties on 22nd May 2010.
The application was heard on a defended basis on 15th and 16th June 2010.
Issues
The Family Consultant identified the following issues in the Family Report:
· [X]’s views and the weight that should be placed on her views
· Whether [X] should be allowed to relocate to [W] with her mother to live with her maternal half brother and her mother’s partner
· The viability of [X] maintaining a close relationship with her father if she relocates with her mother to [W]
· The nature of the parents’ relationship, their compromised capacity to effectively communicate and to co-parent, and the impact of these factors on [X]
· The possible effect of geographical distance, conflict and cost on the sustainability of either parent’s proposal and the impact of these factors on [X]’s ability to maintain close relationships with both parents.[2]
[2] Family Report 19 May 2010 at pages 6 - 7
The Mother’s solicitor, in her Outline of Case Document filed in Court on the first morning of the hearing, identified these issues:
· The nature of [X]’s[3] relationships with each of her parents and significant others, including her brother [Y] and the Mother’s partner Mr E
· The effect upon the Mother, and in particular her parenting capacity, in the event that she is not permitted to relocate [X]’s place of residence to [W].
· The practical difficulty and/or expense of [X] spending time with her father (a) if the proposed relocation is permitted (b) if the proposed relocation is not permitted
· The likely effect on [X] of separation from (a) her father if the proposed relocation is permitted (b) her brother [Y] if the proposed relocation is not permitted
· The parties’ respective attitudes to the responsibilities and duties of parenthood and in particular the extent to which the Father has taken, or failed to take, the opportunity to spend time and communicate with [X].
[3] This was a reference to the child [X]
The Family Report
The Family Report was prepared by a Family Consultant of this Registry, Ms B. For the purposes of preparing her Report, the Family Consultant conducted informal observations of the child with her half-brother [Y] and with the two children and the various adults. She conducted interviews with the following:
a)the Father;
b)the Mother;
c)the child [X];
d)the child [Y];
e)Mr E; and
f)The Mother and Mr E together.
The Family Consultant also observed [X] and [Y] in company with the Father and then the two children in company with the Mother and Mr E.
The Family Consultant noted that the parties described their relationship as “cordial” and noted that the parties and Mr E acknowledged each other and engaged in polite conversation with each other.
The Father told the Family Consultant that he lived in a three bedroom rental property which he shared with two other men:
At this point in time, were [X] to stay overnight, she would be required to sleep in Mr Ladley’s bedroom, in either his bed or on a mattress on the floor. However, in the future, depending on the outcome of Court proceedings, Mr Ladley indicated that one of his flatmates would move out of the house, so that [X] could have her own bedroom.[4]
[4] Family Report paragraph [17], pages 7-8
The Father told the Family consultant that he had an “excellent” relationship with the child and would feel “devastated” if the Court were to permit her to move away from Sydney. He expressed the view that it was in her best interests to remain in Sydney because she would maintain her current activities and relationships, including with her maternal and paternal grandparents.
He expressed concern that the Mother about the Mother’s attempts to have a controlling and dominating influence over the child’s life and her reluctance to facilitate his participation in major issues involving her.
The Father also expressed concern about:
·The Mother’s ability to fund the travel for the child to spend time with him
·The practicalities of travel and the burden on the child
·The fact that the Mother’s relationship with Mr E was relatively untested
·The effect on the Mother and on [X] of Mr E’s poor physical health.
The Mother was reported by the Family Consultant as saying that, if she were not permitted to move to [W], she would remain living in Sydney with [X] and [Y] would remain living in [W]. She said that she was in receipt of a disability pension and her parents had committed to pay all the child’s airfares and would pick her up and deliver her to the airport.
The Mother said that:
·[W] had a lot to offer to [X]
·It was in the child’s best interests to remain living with her as she had always been the child’s primary cared and was best equipped to parent a pre-pubescent girl
·She had a concern about the negative impact on the child’s relationship with her brother if they remained separated
·She had a concern about the Father’s ability top be physically present to supervise the child because of his work commitments.
The Mother acknowledged that the child had a strong relationship with her father and believed that this could be attributed to her support and facilitation of that relationship.
The Family Consultant noted that Mr E “presented as child focused” throughout the day. He acknowledged that he suffered from Ross River fever, which caused him to suffer chronic fatigue.
Ms B described Mr E as:
…respectful of Mr Ladley’s role as [X]’s father and of the positive relationship he has observed [X] to have with her father. He said that, being a father himself, he ‘understands [Mr Ladley’s] perspective perfectly’. Throughout the day he also presented as empathetic to Mr Ladley’s situation. There were indications that he places a high value on [X] being able to maintain a relationship with her father.[5]
[5] Family Report at 15 [42]
The child [Y] “demonstrated a level of insight and maturity in discussing his family circumstances” and remained “focused on [X], whom he spoke about with obvious warmth and affection”.[6] He said that it would be important for her to continue to have the opportunity to spend time with her father.
[6] Ibid at 15 [42]-[43]
The Family Consultant observed that there were no concerns about the nature of the child’s relationships with either of her parents or with [Y] or Mr E. Whilst she did not wish to be drawn on any significant preferences between [W] and Sydney, she said that she would rather live with her mother.
Ms B did not feel that [X] experienced any pressure to express a specific view:
Instead there were indications that it was her love and loyalty towards both of her parents that seemed behind her suggested solution that she live with her mother and they remain in Sydney for the remainder of the year before moving to [W] over the December 2010/January 2011 school holidays, in time to commence High School.[7]
[7] Ibid at 18 [57]
The Family Consultant recommended that, whether they live in [W] or Sydney, the child should remain living with her mother. She was described as a “resilient” child who would cope reasonably well with living in either place, as long as she remained living with her mother.
Ms B saw one advantage in [X]’s relocation to [W] as that her relationship with her brother would be better protected.
The Family Consultant suggested that, in order to minimise the impact on the child if she were to relocate, the move should coincide with the end of the 2010 school year.
The recommendations in the Family Report are that:
a)The parents should have equal shared parental responsibility for the child;
b)If the child were not to relocate she continue to live with her mother and spend time with her father in line with the current orders; and
c)If she were to relocate, the mother’s proposal for maintaining her relationship should be accepted, with a strong emphasis on regular telephone, email and/or webcam contact between [X] and her father.
Evidence and Submissions
The Family Consultant was required for cross examination, and her evidence was taken first. She said, in answer to questions from Ms Wearne, who appeared for the Mother, that the sibling relationship with [Y] was significant for [X] and living with her mother was “a given”.
In reply to the Father, Ms B said that there would be no negative effects if [X] wanted to spend more time with him.
The Father gave oral evidence and was cross-examined by Ms Wearne. He said that he was no longer involved with a band, which had taken up some of his time.
The Mother gave oral evidence. She said that she took medication for Crohn’s Disease and homeopathic remedies for depression. She described the life in [W] as one where there was no traffic, the pace was slow and there was no stress.
The Mother’s treating Doctor, Dr C, gave evidence by telephone. He said that Crohn’s disease was of unknown origin but not psychosomatic, although stress was a contributing factor.
Although Mr E provided an affidavit he was not required for cross-examination.
The Mother’s solicitor submitted that there was no issue about equal shared parental responsibility but, when considering the requirements of s.65DAA of the Family Law Act 1975, shared care was not in the child’s best interests, nor was it reasonably practicable if she were to be living in [W]. If she were still living in Sydney, she should continue to live primarily with her mother. The Court should consider substantial and significant time with each parent.
The Father’s proposal would require both parents to live in [omitted] Sydney, which would have a financial impact as there is no longer any low-cost housing available.
Ms Wearne referred the Court to the decision of Kay J in Godfrey & Sanders[8], a decision on appeal from the Federal Magistrates Court, where it was held that the legislative changes wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 do not cast an onus of proof on the relocating parent and the child’s best interests remain the paramount consideration.
[8] [2007] FamCA 102
In respect of the factors under s.60CC of the Act, it was submitted that Mr E was reported as being respectful of the Father’s role. Whilst the child declined to express a preference about the relocation issue she did say that she wanted to live with her mother.
The arrangements for the Mother and child in Sydney were unsatisfactory and the resultant stress was putting a strain on the Mother’s health. It was also a factor that the Mother’s other child, [Y], was living in [W].
The Father submitted that whatever happens, when [X] stays with him she would have a bedroom of her own. He disagreed with the submission of the Mother’s solicitor about what was in the child’s best interests.
He submitted that it was in the child’s best interests to have a meaningful relationship with both parents. There was no evidence to suggest other than that the child had a loving relationship with both parents. The issues of the Mother’s health and [Y]’s situation were subsidiary. The Mother, he said, was motivated primarily by her desire to pursue a relationship with Mr E and her concerns about [Y].
The Father further submitted that it was in the child’s best interest to stay living in a community in which she had lived, including the school that she has attended all her life. If the Mother were to remain living in Sydney she would receive assistance from her parents.
The Father criticised the Mother’s unilateral decision to relocate when she did, which involved her giving up her accommodation in Sydney.
He expressed a concern that if the Mother were permitted to relocate the child’s residence for such a large distance out of Sydney it would have a negative impact on the child’s relationship with him.
The Court should not give the issue of the separation of the siblings the weight that the Mother suggests.
The Relevant Law
Section 60CA of the Family Law Act 1975 provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the child as the paramount consideration. The Court determines what is in a child’s best interests by considering the matters set out in subsections 60CC(2) (which are the primary considerations) and 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
It is provided by subsection 61C(1) of the Act that each of the parents of a child who has not turned 18 has parental responsibility for the child.
When making a parenting order, the Court is required by subsection 61DA(1) to apply a presumption that it is in the best interests of the child for his or her[9] parents to have equal shared parental responsibility for him or her.
[9] “her” in this case
Subsection 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with that parent has engaged in:
a)abuse of the child or another child who, at the time, was a member of the parent’s family; or
b)family violence.
Again, the presumption may be rebutted by evidence that satisfies the Court this it would not be in the best interests of the child for her parents to have equal shared parental responsibility for her (see s.61DA(4)).
If a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child, the Court is required by subsection 65DAA(1) of the Act to consider whether:
a)the child spending equal time with each parent would be in her best interests; and
b)such an arrangement would be reasonably practicable.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of the child’s parents would be in her best interests; and
b)whether it would be reasonably practicable.
The term “substantial and significant time” is defined by subsection 65DAA(3) of the Act. It includes time spent with a parent both on days that fall on weekends and holidays and those that do not. It also requires that the time that the child spends with the parent must allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child (see s.65DAA(3)(b)).
“Substantial and significant time” also requires that the time the child spends with the parent should allow the child to be involved in occasions and events that are of special significance to the parent (see s.65DAA(3)(c)).
When deciding whether equal time or substantial and significant time would be reasonably practicable, the Court must have regard to the matters in subsection 65DAA(5). They are:
a)How far apart the parents live from each other;
b)Their current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each parent;
c)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing the arrangement;
d)The impact that the arrangement would have on the child; and
e)Any other matter that the Court considers relevant.
I have considered all of those matters and I will refer specifically to those that are particularly relevant.
Conclusions
First of all, I am of the view that equal shared parental responsibility is a matter that is not in issue. Notwithstanding a reference to an incident in the past between the father and the Mother’s child [Y], I am not satisfied that the presumption does not apply or that it would not be in the child’s best interests for [X]’s parents to have equal shared parental responsibility for her.
It is a recommendation in the Family Report that the parents should have equal shared parental responsibility for [X] and I accept that recommendation.
There is evidence to satisfy the Court that each party has a strong and loving relationship with [X]. The parties have the ability to communicate with each other about the child.
I propose to order that the parties should have equal shared parental responsibility for the child.
The best interests of the child are the paramount consideration. The primary considerations are:
a)The benefit to the child of having a meaningful relationship with both of her parents; and
b)The need to protect her from physical or psychological harm arising from abuse, neglect or family violence.
It is clearly of benefit to [X] to have a meaningful relationship with both parents. This is born out by the observations of the Family Consultant in the Family Report and the evidence of the parties themselves.
There is no appreciable risk of physical or psychological harm to the child in the care of either parent. There is no evidence that Mr E poses any threat to the child and he appears to have made a favourable impression on the Family Consultant as being child-focused.
Whilst the Father’s accommodation initially raised a concern, as it appeared that he shared a three bedroom residence with two each other men, each of whom had their own room, he made it clear that he would make arrangements for the child to have her own room when she was staying overnight with him. It would not be appropriate for a girl of her age to be sharing a bedroom with her father, but this is not proposed by the Father.
[X] has expressed a view that she wants to live with her mother, whether that be in Sydney or elsewhere. She is eleven years old and, from the Family Report, appears to be reasonably mature for her age. I believe that her views should be given some weight.
There is evidence from the Family Report, and from the parties themselves, that this child has a strong and loving relationship with each of her parents. She also has an appropriately strong relationship with her half-brother [Y], who spoke of her with warmth and consideration.
[X] has two sets of grandparents, each of whom live in the Sydney area. It would appear that she has a positive relationship with her grandparents.
The Father has expressed reservations about the Mother’s willingness to facilitate and encourage a close and continuing relationship between [X] and her father. The Mother denies this, and states that one of the reasons that [X] has as strong a relationship with her father as she has is because she has encouraged her in this regard.
Relocation to [W] would bring about a significant change in the child’s circumstances. She would be separated by distance from her father, although the Mother has proposed arrangements for the child to spend time with the Father in Sydney on a regular basis. She would also be separated from her grandparents, although from the Mother’s proposal the maternal grandparents would have a considerable involvement in her travelling arrangements when she visits Sydney.
The advantages for [X] in living in [W] would be that she would still be living with her mother, which was described by the Family Consultant as a “given”, but that her mother would be happier and less stressed if she were living where she wants to be and living with Mr. Mr E, which is what she wants to do.
Living at [W] would mean that [X] would be reunited with her half brother, [Y], which would assist and strengthen that relationship. I accept the Father’s submission that this consideration should not be given excessive weight, but it is a consideration to which weight should be given. It is better for [X] to live with her brother than not to live with her brother, given the value that each one puts on the relationship.
The Father has submitted that a move away from Sydney would take this child out of the school that she has attended since she started school and would take her away from her established school friends. Clearly, [X] has considered that aspect, because she herself suggested that the move to [W] should wait until the end of the school year. It is always the case that [X] was going to experience a change in her life by going to High School, which was always going to happen at the beginning of the 2011 school year. Thus, there would be a new school and new school friends. Even if she went to a high school in Sydney, it is likely that a number of the child’s friends from primary school would go to different schools anyway.
[W] is still within New South Wales, so the child will still remain within the same State education system.
A move away from Sydney would involve some practical difficulty and expense in [X] spending time with her father. The maternal grandparents have offered to meet the costs of air travel and play a role in picking up the child from the airport and returning her there at the end of her time in Sydney.
There will also be a need for regular telephone communication and for communication by email or webcam. The child will still be living in the same State and the same time zone as the Father.
The child’s parents have the capacity to provide for [X]’s needs, including her emotional and intellectual needs. It would be preferable for [X] to be living with her mother when she goes through puberty, as that can have an emotional as well as a physical effect on the child, as the Mother has suggested to the Family Consultant.
The Father’s living arrangements have been less than optimal for the child spending overnight time with him, with his sharing of a residence with two other men, although he proposes to arrange for the child to have her own bedroom when she stays with him. There have also been considerable demands on the Father’s time, with a full-time job from Monday to Friday and operating a pizza shop on most evenings. This has placed a limitation on his having the time to spend with [X].
Considering this child’s maturity, sex and lifestyle, she is a girl aged eleven years who appears to be resilient and quite mature for her years. There are no specific cultural or traditional considerations which would add weight to the matters to be considered.
I have no concerns about the attitude to the child and to the responsibilities of parenthood demonstrated by each of this child’s parents. They clearly love her and want to spend time with her.
There are no relevant family violence issues and there is no family violence order that applies to the child or any members of her family.
It would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. In my view, orders that place the child’s best interests as the paramount consideration should be least likely to lead to the institution of further proceedings.
This is a case where the Mother unilaterally moved herself and both of her children from Sydney to [W] to establish a live-in relationship with Mr E. She did so in the knowledge that the Father did not agree to the move and had in fact commenced proceedings in this Court to restrain her from doing so. This led to the Orders made by Walker FM in January 2010. The Mother was obliged to return to Sydney with [X], although [Y] remained living in [W], in the household of Mr E.
In considering the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent, I note that the Father has claimed that the Mother has tried to be the dominating figure as far as decision-making in this child’s life has been concerned. The Mother claims that she has always been the primary caregiver. Her decision to go ahead with the move to [W] when she originally did, over the Father’s objection, can be seen as a mistake, which led to her having to return to Sydney.
[X]’s parents separated when she was quite young. The Mother met Mr E, whom she had known when they were children, and commenced, or re-commenced, a relationship with him. This relationship is important to her and, not unnaturally, she wishes to pursue it. Mr E was not required for cross examination, but he emerges from the Family Report as a caring man with children of his own and an appreciation of the Father’s situation. The fact that the Mother was happy for [Y] to live in his household during the year whilst she and [X] were back in Sydney is a testimony to the opinion that she holds of his ability and suitability to look after her child when she is not there.
I am satisfied that the Mother’s proposal to move from Sydney to [W] to live in a relationship with Mr E is in the child’s best interests. [X] will be in a household with her mother and brother in a quiet country town. The proposed arrangements will allow her to maintain her relationship with her father and her grandparents in Sydney.
The parents will have equal shared parental responsibility for the child. Due to the distance between them, it is not reasonably practicable for the child to spend equal time with each of her parents.
Again, because of the distance between the residences of the parents, it is not reasonably practicable for the child to spend substantial and significant time with her father as defined by subsection 65DAA(3). She will be spending time with him on days that fall on weekends and holidays, but not normally on other days.
Nevertheless, it is clear that this child wants to live with her mother who has always been her primary caregiver. She can still maintain a strong relationship with her father. I am of the view that the relocation to the North Coast of New South Wales is in the child’s best interests and I will order accordingly.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 28 April 2011
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