LANDI & FLETCHER
[2019] FCCA 38
•13 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANDI & FLETCHER | [2019] FCCA 38 |
| Catchwords: FAMILY LAW – Parenting – spend time with arrangements – family violence – where mother seeks to relocate to New Zealand with the child. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Connor & Hulett [2011] FamCA 196 |
| Applicant: | MS LANDI |
| Respondent: | MR FLETCHER |
| File Number: | HBC 796 of 2017 |
| Judgment of: | Judge Baker |
| Hearing date: | 21 - 23 November 2018 |
| Date of Last Submission: | 23 November 2018 |
| Delivered at: | Hobart |
| Delivered on: | 13 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mooney of Counsel |
| Solicitors for the Applicant: | Wallace Wilkinson and Webster |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | N/A |
ORDERS
The mother and father shall have equal shared parental responsibility for the child [X] born … 2015 (‘[X]’).
[X] shall live with the mother.
The mother be permitted to relocate [X]’s primary residence to the Location B area in New Zealand no earlier than 60 days from this date.
The mother be permitted to enrol [X] at the C School in Suburb D, Location B.
At any time whilst [X] is in his care, the Respondent father shall not consume:
(a)Alcohol to the point where his capacity to parent [X] is impacted (and in the event that the father exceeds .05 in a random breath or blood test, this would be sufficient to demonstrate that the father’s parental capacity has been impacted upon);
(b)Prescription drugs contrary to any prescription;
(c)Illicit drugs.
The father is hereby restrained from causing [X] to live or stay overnight on the father’s yacht unless specifically agreed in writing between the parties.
Subject to the father agreeing to move to New Zealand, the mother shall pay to the father the sum of $20,000.00 (‘the payment’) to assist the father with his relocation costs.
The payment shall be made as follows:
(a)$10,000.00 upon the father providing to the mother a copy of his resignation from E Employer and his proposed travel itinerary to New Zealand; and
(b)$10,000.00 upon the father notifying the mother of his arrival in New Zealand.
Neither party shall criticise or denigrate the party or the other party’s family in the presence of [X], or allow [X] to remain where any third party does so.
In the event the father has not, within 30 days of the date of his arrival in New Zealand, obtained accommodation and/or employment, the father shall do all acts and things to engage with a clinical psychologist.
If the father engages with the psychologist, the father shall follow all reasonable directions of the psychologist in respect of his therapy and treatment.
Within seven days of the father engaging with the psychologist, the father shall notify the mother of the name of the psychologist and keep the mother informed of all appointments made with the psychologist.
Prior to [X] attending full-time school, the parties attend a community-based mediation organisation in New Zealand to r[X]w the arrangements for the father to spend time with [X].
Spend time with arrangements – if the father moves to New Zealand and has obtained accommodation
[X] shall spend time with the Respondent father as follows:
(a)From Friday 15 February 2019 through to 23 May 2020:
(i)Each Tuesday from 3:00 p.m. until 8:00 a.m. Wednesday.
(ii)Each alternate weekend from 5:00 p.m. Friday until 5:00 p.m. Sunday;
(iii)Such other times as agreed in writing.
(b)After 23 May 2020:
(i)Each Tuesday from 3:00 p.m. to 8:00 a.m. Wednesday.
(ii)Each alternate weekend from 5:00 p.m. on Friday until 9.00 a.m. if a school day and 5:00 p.m. if not a school day on Monday, or such other additional night as agreed;
(iii)Such other times as agreed in writing.
That the provisions of order 14 shall be suspended during the period 24 December to 27 December in each year and the following provisions shall apply;
(a)[X] shall spend time with the father as follows:
i.In 2019 and in each alternate year thereafter – from 11:30 a.m. Christmas Day until 11:30 a.m. Boxing Day;
ii.In 2020 and each alternate year thereafter from 11:30 a.m. Christmas Eve until 11:30 a.m. Christmas Day.
(b)[X] shall spend time with the mother as follows:
i.In 2019 and in each alternate year thereafter from 11:30 a.m. Christmas Eve until 11:30 a.m. Christmas Day;
ii.In 2020 and in each alternate year thereafter from 11:30 a.m. Christmas Day until 11.30 a.m. Boxing Day.
That the provisions of order 14 shall be suspended during the period Good Friday to Easter Monday and [X] shall spend time with the father as follows:
i.From 2019 and in each alternate year thereafter from 9:00 a.m. Easter Sunday until 5:00 p.m. Easter Monday;
ii.From 2020 and in each alternate year thereafter from 9:00 a.m. Good Friday until 5:00 p.m. Easter Saturday;
iii.Such other times as agreed in writing.
[X] shall spend time with the father on her birthday at such times to be agreed and failing agreement from 3:30 p.m. to 5:30 p.m.
[X] shall spend time with the mother on Mother’s Day and time with the father on Father’s Day at such times as agreed in writing.
Spend time with arrangements – if the father moves to New Zealand and has not obtained accommodation
Until the father obtains accommodation in New Zealand, [X] shall spend time with him:
(a)from 9:00 a.m. to 5:00 p.m. on four days per fortnight, such days to be agreed, and failing agreement, on each Tuesday and each alternate Saturday and Sunday; and
(b)Such other times as agreed in writing.
Spend time with arrangements until [X] attends full time school– if the father does not move to New Zealand
In the event that the father does not relocate to New Zealand, [X] spend time with him as follows:
(a)During 2019 to 23 May 2020:
(i)For 8 overnights, twice per year in New Zealand as follows:
i.For four overnights, starting at 9:00 a.m. on Day 1, until 4:00 p.m. on Day 5;
ii.For four overnights, starting at 9:00 a.m. on Day 6 until 4:00 p.m. on Day 10.
iii.Such other times as agreed in writing.
(b)After 23 May 2020:
(i)Time shall occur as set out in order 20(a)(i)i-iii, but shall increase to two lots of five overnights.
The mother shall be responsible for the father’s costs of travel to New Zealand twice per annum.
The mother’s liability for the costs of the father’s travel twice per annum is capped at $1,968.00 per trip and is comprised of airfares, accommodation and car hire.
The father will provide to the mother two months’ notice for his intended dates of travel to New Zealand and in the event that the father does not provide notice in accordance with this order, the father shall be solely responsible for his costs of travel.
The father may elect to spend his time with [X] in accordance with Order 20 in Tasmania, not more than once per annum, on condition that he give the mother three months’ notice and the mother shall at her cost accompany [X] for all travel and remain in Tasmania to facilitate the time AND IT IS NOTED that the mother will not pay the father’s expenses for these periods.
The father shall be at liberty to spend time with [X] in New Zealand on more occasions than twice per year, with him to give the mother no less than 30 days’ notice of his intention to travel to New Zealand. Such travel to be at his sole cost.
Such time that the father elects to spend with [X] in New Zealand shall be in accordance with order 20, unless otherwise agreed in writing.
[X] shall communicate with the father as follows:
(a)By telephone, FaceTime or Skype three times per week on a day and time to be agreed between the parties; and
(b)By telephone, FaceTime or Skype on special days such as Christmas and Birthdays.
The mother send the father one or two videos of [X] on a weekly basis.
IT IS NOTED that publication of this judgment under the pseudonym Landi & Fletcher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 796 of 2017
| MS LANDI |
Applicant
And
| MR FLETCHER |
Respondent
REASONS FOR JUDGMENT
Introduction
The mother of three year old [X] (‘[X]’), born 2015, seeks to relocate her residence from Tasmania to New Zealand. The father opposes the move.
Background
The parties commenced a relationship in April 2010, and commenced cohabitation in July 2010. They had a period of separation in 2014 and finally separated in late 2016.
After separation, [X] lived with the mother and spent day time with the father. The mother commenced her parenting application in September 2017. In January 2018, it was ordered by consent that until further order, [X] spend time with the father for three hours each Wednesday; all day on the second and fourth Saturday of each month; and all day on the first and third Sunday of each month. The father agreed to an order that he not consume alcohol or illicit drugs 12 hours prior to, or at any time during, his time with [X]. He also agreed to follow all reasonable directions of his treating psychologist in respect of his treatment.
Since August 2018, [X] has spent overnight time with the father once per week.
During the hearing, the father agreed to the mother’s proposal for his time with [X], pending the delivery of judgment. This means that [X] is to spend time with him each alternate weekend from 9.00 a.m. Saturday until 5.00 p.m. Sunday; each alternate Wednesday from 3.00 p.m. until 8.00 a.m. Thursday; and from 2.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day. There will be some catch-up time, as the mother intended to take [X] to New Zealand over Christmas.[1]
[1] Exhibit M14.
Circumstances of the Parties
The mother is 32 years old. She is a health care professional and works in a hospital in Town F (‘the clinic’). She and the father set up this practice during their relationship. After separation she continued to work there. She sold the business in July 2018. She works part-time at the clinic on Mondays, Wednesdays, Fridays, and on the second and fourth Saturdays of each month. She lives in Town F with [X]. [X] attends preschool on three days per week.
The mother came to Tasmania in 2010. Her parents purchased a house for her during 2014. Her parents and extended family live in Location B, New Zealand. She wants to move there with [X], so that she has family support. She intends to live with her parents until she purchases a property. She intends to undertake locum work on two-three days per week, so that she and [X] can adjust to their surroundings. She has been assured by several hospitals that there is often work available for casual health care professionals.
She has a large network of extended family and friends in the area where she intends to live and work, and they will support her with [X]’s care.
If the Court does not permit [X]’s relocation, the mother will remain living in Tasmania with [X]. She does not assert that she will not be able to parent [X] if she cannot move to New Zealand. Her mental health has improved, however her stress is exacerbated by the continued separation from her family.[2]
[2] Affidavit of Ms I sworn 4 October 2018, Annexure D, 16.
The father is 34 years old. He is a tradesman and works at E Employer on a casual basis. He lives in Location G with his partner Ms H, who is a public servant. They have lived together since late 2017. Since separation, the father was unemployed until he obtained a job at E Employer in June 2016. He had financial difficulties and was homeless, living on his boat. In June 2017, he suffered an emotional breakdown. He was diagnosed with a Major Depressive Disorder. He has been stable since living with his partner, and he is currently well.
The father indicated during the hearing that, if the mother’s relocation of [X] to New Zealand is permitted, he will relocate there. This will mean he will need to leave his employment, and the support of his partner. It is likely he will have to sail his boat to New Zealand and live on the boat, until he finds accommodation and employment. He will be moving away from Tasmania, where his family live.
Proposals
The mother proposed a gradual increase in [X]’s time with the father, increasing from two nights per fortnight to three nights per fortnight in July 2019, and to four nights per fortnight in May 2020. She also proposed time on special days.
The mother proposed that if the father moves to New Zealand, she pay him the sum of $20,000 to assist him with his relocation costs. [X]’s time with the father is conditional on him obtaining suitable accommodation. Until then, she proposed that [X] spend day time with him.
Various restraint orders were sought by the mother, most of which the father agreed be made.
The father proposed that, forthwith, [X] spend time with him on five nights per fortnight. He opposed the relocation of [X] to New Zealand. If the Court permits her relocation, he sought that it be delayed until [X] turns five years old. He made it clear that he will also relocate if the Court permits the relocation.
The father agreed that if the mother is permitted to relocate [X] to New Zealand and he follows, he will engage with a clinical psychologist if he does not find suitable accommodation and/or employment within 30 days of his arrival.[3]
[3] Exhibit M2.
The Parties
The mother made appropriate concessions during cross-examination by the father. Although at times she could not recall matters unfavourable to her, and did not give full details of some incidents in her affidavit, overall I consider her evidence was credible. I consider that her concerns about the father’s unstable mental health, drug and alcohol use and inappropriate behaviour were genuine and, as submitted by her counsel, were supported by documentary evidence.[4]
[4] Exhibits M3, M4, M5 and M11.
The father was self-represented. Although he was very intense and forthright and was intent on proving his claims against the mother, he was respectful to the court, to counsel for the mother, and to the mother during the hearing. His conduct of his case demonstrated that he is intelligent and articulate. However, he was self-focused and portrayed himself as being victimised by the mother and the justice system. Nevertheless, I am of the view that overall his evidence was credible.
Relevant Law
In proceedings for a parenting order, a court may make such parenting order as it thinks proper subject to Part VII, Division 5 of the Act.
Section 60B of the Act sets out the objects of Part VII, and the principles which underlie those objects. They are as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides that when a court is determining whether to make a particular parenting order in respect of a child, the child’s best interests is the paramount consideration.
In determining the child’s best interests, the court is required to consider the matters under s.60CC of the Act.
Section 61DA provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that child abuse or family violence has occurred. The presumption may be rebutted if not in the best interests of the child. If the presumption applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable.
If the court does not make an order for equal time, it is then required to consider whether it is in the child’s best interests, and whether it is reasonably practicable for the child to spend substantial and significant time with each of the parties.
Section 65DAA provides a framework to consider the advantages and disadvantages of the several scenarios which may be in the child’s best interests, including the proposal to relocate.[5]The advantages and disadvantages of that proposal can be balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement.[6]
[5] Sayer & Radcliffe [2012] FamCAFC 209 [53].
[6] Taylor & Barker [2007] FamCA 1246; Starr & Duggan [2009] FamCAFC 115; Heaton & Heaton [2012] FamCAFC 139.
This is a matter involving a relocation of the residence of [X]. These cases are very difficult, which is recognised in the authorities. They have important consequences for children in respect of their relationship with the remaining parent. Issues about travel and expense, to enable them to maintain a meaningful relationship with the remaining parent, often arise. A move can result in a sense of grievance by the parent left behind.
In Sayer & Radcliffe,[7] the Full Court of the Family Court recognised that all relocation decisions are difficult. The Court referred to the guidance and approach taken by the Full Court in decisions such as Starr & Duggan,[8] and Heaton & Heaton.[9] A court is required to clearly follow the legislative pathway applicable to parenting cases and the issue of relocation is not to be treated as a discrete issue in the making of orders, but as one of the proposals for future living arrangements.[10]
[7] [2012] FamCAFC 209.
[8] [2009] FamCAFC 115.
[9] [2012] FamCAFC 139.
[10] Taylor & Barker [2007] FamCA 1246; Starr & Duggan [2009] FamCAFC 115; Heaton & Heaton [2012] FamCAFC 139.
Evidence of Family Consultant Ms J
In the Family Report, Ms J recommended that [X] should live with the mother and spend time with the father at two points during a fortnight, across the weekend and during weekdays. She recommended that [X] spend four or five days per fortnight with him.
She also recommended that the mother be permitted to establish primary residence for [X] in New Zealand when [X] attains five years of age (… 2020). She said that she placed a lot of weight on the fact that the mother would parent better with her family around her. During her oral evidence, Ms J clarified that she intended to recommend that [X] should commence school in New Zealand, which will be at the start of 2020. This brings forward her recommendation for a move by six months.
At the commencement of her cross-examination, Ms J was asked to read the mother’s trial affidavit, the affidavit of Ms I filed 18 October 2018, the affidavits of the maternal grandparents, the father’s trial affidavit, and the hospital records relating to the father.
When Ms J was told that the father said he will move immediately if the relocation is permitted, she said that this would be optimal for [X].
During her cross-examination by the mother’s counsel, Ms J was of the view that the mother’s proposal, that [X] spend time with the father on one afternoon and two days, with one overnight per fortnight until she turns four years old, was limited. She agreed that such time would be the safest option to mitigate any risk to [X] in the father’s care. In respect of the proposal for four nights per fortnight when [X] turns five, she said, ‘it is certainly starting to get there.’ She believed that midweek time is important for [X]. Ms J said that she liked the mother’s proposal of increasing [X]’s time on a graduated basis up to four to five nights per fortnight, on the basis that risk factors are mitigated. If the time is going well, there should be an increase of overnight time at the start of 2019 and another overnight when she turns five.
During her cross-examination by the father, Ms J reiterated that if the risk factors of his mental health, drug use, and family violence are in the past, she recommended that [X] spend four to five nights per fortnight with him. She recommended this because of their close relationship and because of [X]’s yearning for more time with him. She reiterated that [X] should start having four nights per fortnight with him at the start of 2019, and this should move to five nights when she turns five.
Ms J was of the view that [X] is safe in the father’s care. She believes that the interaction which she observed between them was a usual interaction for them. She did not observe a correlation, which generally occurs, between authoritarian, harsh parenting and alleged family violence. She said that what she observed was very different to the pattern she would normally see in cases involving family violence.
In Hall & Hall,[11] the Full Court of the Family Court of Australia stated :
… (b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
[11] (1979) FLC 90-713.
Ms J is an experienced family consultant. Her evidence was helpful and I place weight on it. However, any conclusion I reach will be on the basis of all the evidence.
I turn to consider the relevant s.60CC considerations.
Primary considerations
Section 60CC(2) provides:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;…
The term ‘meaningful’ has been considered in a number of judgments. In Mazorski v Albright,[12] Brown J considered the dictionary definitions of ‘meaningful’ and stated:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[13]
[12] (2007) 37 Fam LR 518.
[13] Ibid [26].
In McCall & Clark,[14] the Full Court of the Family Court considered the meaning of the term, and held that a ‘meaningful relationship’ is one that is ‘important, significant and valuable to the child’;[15] that it should be the subject of a qualitative, rather than quantitative, assessment;[16] and that there is no single approach to determining the benefit to a child of a meaningful relationship with their parents.[17] The Full Court went on to hold that the court should adopt a prospective approach to the issue:[18]
… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents.[19]
[14] (2009) FLC 93-405.
[15] Mazorski and Albright (2007) 37 Fam LR 518 [26].
[16] Ibid.
[17] McCall & Clark (2009) FLC 93-405 [118].
[18] Ibid [119].
[19] Ibid [118].
[X] has a close and loving relationship with her mother and with her father. They are both committed parents. I consider that there is benefit for [X] to have a meaningful relationship with both her parents in the future.
The father’s evidence was that he intends to relocate to New Zealand if the mother’s relocation of [X] is permitted. However, in the event that he does not move and stays in Tasmania, I consider that [X] can have a meaningful relationship with him. Skype, telephone communication and physical time will enable them to maintain a meaningful relationship.
As Dessau J noted in M & S,[20] it is inevitable that a long distance relationship, with longer but less frequent time spent together, is different from a relationship where people live closer together with regular face-to-face contact.[21] However, that does not mean that the relationship cannot be meaningful.
Section 60CC(2)(b)
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[20] (2007) FLC 93-313.
[21] Ibid [45].
Section 60CC(2A)
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Family violence is defined in s.4AB(1) as:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
The mother told Ms J that she experienced psychological intimidation and control throughout the relationship, the worst phase being from 2013 until 2016. A police family violence order (‘PFVO’) was made in November 2015 because she thought the father had threatened to kill her dog. The mother said she thinks [X] did not experience most of the family violence, as most of the worst of it occurred before she was born.
The father gave Ms J a long explanation of the contents of the PFVO and said that his comment about the dog was taken out of context, and he did not say that he intended to kill the dog. During the hearing, he conceded that he threatened to have the mother’s dog put down by the relevant authorities.
The father acknowledged that on one occasion, he threw a cushion at the mother. He acknowledged that he punched a door, breaking his knuckle on that occasion. He admitted that he kicked the mother’s car door when he was trying to get his dog back. He admitted that he broke a kitchen window on one occasion. He denied that he threw objects at her or near her.
The father told Ms J that over the course of the relationship, he was a victim of verbal and psychological family violence. He told her that the mother was once physically threatening and harassing, invading his space. He told her that on that occasion he ran from the mother and she chased him. He said that generally the abuse consisted of heated arguments. Ms J agreed with counsel for the mother that the father was preoccupied with his own well-being. He developed a feeling of being a victim of family violence, a victim of the court, a victim of the interview for the Family Report, and a victim of the police.
During her cross-examination, the mother admitted that during arguments in 2013 and 2014, the father would walk away and she would follow him around the house arguing with him. She admitted that on one occasion she followed him to his friend’s home and demanded that he return to the house.
The mother admitted that in around late 2016, she telephoned the father and abused him about his relationship with a woman called Ms K, calling her a slut and a whore. She admitted that at Town L, when she had [X] in her arms, she screamed at the father and said, ‘you are never going to introduce Ms K to [X]’ and ‘[X] is not going to grow up knowing that slut.’
The mother admitted that soon after this incident, she stood in the doorway at a government building in Town F, where the father and Ms K were coming out. She asked Ms K to leave and the father then asked her to go to her car. She was crying and telling the father she did not want to break up. [X] was in the back of the car.
At times, the mother did not give the full details of incidents, which gave a negative impression of the father. One example was when she deposed that in early 2014, the parties had an argument about a block of land and where they were going to live. She went to leave the house and took both dogs with her. The father did not want her to take one of the dogs, M, but she took both of them. She drove away from the house and the father followed her, drove very fast and overtook her. She pulled over and he demanded that she give him M. She refused, so he kicked the driver’s door and screamed at her to let the dog out of the car. She did that and he then drove off with M.
In her affidavit, she did not state, as she admitted in cross-examination, that at the house when she had put both dogs in the car, the father had taken M out of the car. She agreed that he told her that M was his dog and if she wanted to take the other dog, N, that was fine, but she was not to take M. She agreed that he was very clear about this and agreed that he went back inside the house with M. She agreed that she sneaked inside the house, and without the father knowing, took M back to the car and then drove out of the driveway. The father then drove after her and blocked her. She agreed that she locked all the doors of the car so he could not get M out. She agreed that he asked her to open the door, otherwise he was going to dent her car. She said that when he started kicking her door and yelling at her, she unlocked it and he took M.
Another example was when she complained that the father drove a car when unlicensed and also drove an unregistered car. Yet, she failed to disclose that she had driven [X] in an unregistered car on one occasion, although the father had offered to drive [X] home.
Ms H, the father’s partner, has never seen or experienced any violent or intimidating behaviour from the father towards her or anyone else.
Whilst the parties’ relationship was conflictual and family violence incidents occurred, I do not consider that there is a need to protect [X] from exposure to family violence. The co-parenting relationship has improved and the changeovers are working.
There is no doubt from the evidence that the parties had a volatile relationship with many arguments. I accept the mother’s evidence that at times during the relationship, the father caused her to be fearful, due to his threatening and violent behaviour.
The mother has at times behaved badly, and during her cross-examination conceded that she was ashamed by her behaviour. However, I am not persuaded that she has caused the father to be fearful.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Although Ms J wrote that it appears evident that [X] knows and loves her father and wants to spend more time with him, [X] is too young for her views to be given weight.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Ms J wrote that the mother demonstrated a child focused, calm and responsive parenting style with [X]. Their interactions were positive, smooth and spontaneous. Their relationship appeared close, warm and comfortable and highly satisfying to both.
Ms J wrote that she observed the father supporting [X]’s interests and play. He demonstrated a responsive parenting style and spoke with [X] in a warm, child focused, and developmentally appropriate manner. They appeared to have a warm and satisfying relationship. [X] appeared immersed in her time with him and wanted more time with him.
The mother deposed that [X] loves her father and is excited to see him. She deposed that [X] is quite happy and comfortable when spending time with him. She talks about him often.
Ms J concluded that [X] impressed as a much loved child, and the focus of her parents’ attention. [X]’s primary attachment relationship is with the mother and she has quickly grown to anticipate and enjoy the time she spends with her father. [X] knows her father, loves him and wants to continue to spend time with him. She was of the view that his positive parenting approach will have contributed to this.
[X] has a close relationship with her maternal grandparents, who have been regular visitors to the mother’s home. The mother and [X] have regularly visited them in New Zealand. They have been there in October 2015, January 2016, November 2016, October 2017 and May 2018. [X] has met numerous cousins there.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The father asserted that after separation the mother unnecessarily restricted his time with [X] to short periods of day time. His position was that she was being spiteful and was attempting to alienate [X] from him.
The mother justified her actions because she believed that the father was unwell for around one year after separation, and she was acting protectively.
After the PFVO was made in November 2015, the father was no longer able to come to the mother’s home or the clinic, so his visits with [X] occurred at the Town O jetty, or at a café or at the library. The mother arranged regular swimming visits and regular times for the father to see [X] when she worked on Saturday mornings.
The father asserted that during a telephone conversation on the night of the incident at Town L in around late 2016, when the mother abused him about his girlfriend Ms K, she told him that his time with [X] would then have to be supervised. The mother conceded that she required time to be supervised at about the time of this incident. Prior to this incident, the father had been having periods of unsupervised time with [X] two or three times per week for up to an hour.
The mother filed her parenting application in September 2017. The father provided a report from his psychologist in January 2018. An agreement was then reached for him to spend time with [X] every Wednesday and one day on each weekend.
At the end of July 2018, the parties agreed for [X] to commence overnight time with the father over a two to three month period, gradually increasing to two nights in January 2019.
The mother admitted that at the time of the Town L incident, she was heartbroken about their separation, and devastated that the father had a second relationship soon after their separation. She admitted that she ceased unsupervised time partly out of spite and partly for protective reasons. She admitted that she regretted doing this and that this was not ‘in the best interests of maintaining [X]’s relationship with you.’ This action of the mother led to further conflict between the parties, and to the father’s distress about his restricted time with [X]. There were many heated arguments about his time with [X].
Although the mother acted partly out of spite and was putting her interests above those of [X] by doing so, I do not consider that she was attempting to alienate [X] from the father. She has subsequently agreed to overnight time and a gradual increase in time. [X]’s relationship with the father is very close. I consider that the mother has the capacity to promote and facilitate the relationship.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother has maintained [X], and the father is currently paying child support to her.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The likely adverse effect of [X] living in Hobart is that the mother, the parent with whom [X] is primarily attached, will not have the emotional support that she has in New Zealand, where her family live. Ms J agreed that it is an advantage for a parent to have family support when parenting a young child. She was of the view that the mother would parent better with her family around her.
The mother’s parents gave evidence. They are both supportive of their daughter’s proposed move to New Zealand. They gave evidence of the trips they have made to Tasmania to assist her. They confirmed their willingness to support her with [X] if they move.
Ms I, the mother’s treating psychologist, gave evidence that her treatment of the mother consisted of a cognitive behavioural approach to general coping, focusing on managing stress and low mood, as well as interpersonal therapy for managing interactions with the father, and personal and professional relationships.
Ms I was of the opinion that the mother’s mental health had improved since 8 February 2017, due to her efforts at implementing healthy coping strategies and reducing her stress.
Ms I wrote that the mother does not display signs or symptoms consistent with a formal diagnosis of a mental illness, personality disorder, or intellectual disability. Her symptoms are consistent with psychological responses to a stressful situation, however the symptoms do not meet the threshold for a diagnosis of a disorder such as Post-Traumatic Stress Disorder, or Major Depressive Disorder.
Ms I was of the opinion that the mother’s stress reaction is exacerbated by the continued separation from her family supports. Despite regular therapy and multiple professional supports, and her active engagement in healthy coping strategies, her perceived lack of family support has a negative impact on her ability to manage her own mental health. She believes that the mother would continue to struggle with negative thoughts and feelings if she were to continue to reside in Tasmania for an extended period, and she would continue to experience an exacerbation of situational stressors, including those involving the parenting of her child.
The mother has wanted the support of her family for some time. She believes that her distress of not being permitted to relocate [X] will have a negative effect on [X].
The advantage of [X] living in Hobart with the mother is that [X] will have weekly time with her father. The father will be able to continue to live with his partner and continue with his employment at E Employer.
If the mother is permitted to relocate [X]’s residence to New Zealand, the father will need to find employment and accommodation. His stability in terms of his psychological health could be adversely affected, and could affect his parenting capacity.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If [X] remains living with the mother in Hobart, there will be no practical difficulty and expense of [X] spending time with the father.
If the mother is permitted to relocate [X]’s residence to New Zealand, there will be a practical difficulty and expense of her spending time with and communicating with the father, if he does not move. If he moves to New Zealand, [X] will be able to spend substantial and significant time with him.
The mother proposed that until [X] attends full-time school, she pay the father’s cost of travel to New Zealand twice per annum, capped at $1,968 per trip. She proposed that the father can elect to have one of these two trips per annum paid by her, in Tasmania. She will travel with [X] and remain in Tasmania at her cost, if he elects to have a visit in Tasmania.
She also proposed that the father be at liberty to spend time with [X] in New Zealand on more occasions than twice per year at his sole cost. The cost of return airfares from Hobart to Location B varies from $389 to $755, depending on the date and time of travel.[22]
[22] Exhibit M13.
The mother currently earns around $900 per week gross or $47,000 per annum as a part-time health care professional. She believes she will be able to obtain employment in New Zealand. She will have the proceeds of sale of the house in Tasmania to purchase a house in New Zealand. She has the main financial burden of maintaining [X]. She receives child support from the father, who is in arrears of around $2,300. Her financial statement indicated that he is required to pay her $80 per week.
The father earns a similar amount as a casual employee at E Employer. He gave evidence that he has the capacity to earn $900 net per week, if he is able to work a full week. He owns a yacht and pays a mooring fee. He does not pay any board or rent to his partner.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I consider that the mother has the capacity to provide for all of [X]’s needs.
The mother had concerns about the father’s mental health problems, drug and alcohol abuse, homelessness and financial difficulties. He has been to hospital for psychiatric assessment on at least two occasions, the most recent being in June 2017. The progress notes of June 2017 refer to his anger about the system which he blamed for his current life situation.[23]
[23] Exhibit M4.
The father acknowledged to Ms J that he has smoked marijuana on and off over the years and now smokes only on evenings, on and off, to relax after work and to get to sleep. He does not use marijuana around [X]. During his cross-examination, he said that he is not going to stop smoking marijuana, his use of which is intermittent. He sometimes smokes on several consecutive days, and at times he does not smoke for weeks. He drinks alcohol on some nights. When he was younger he was charged with driving under the influence of alcohol.
In January 2018, he agreed to an interim order which prevented him from consuming alcohol and illicit drugs 12 hours prior to, or any time during his time with [X]. The mother deposed that she has seen no indicator since the order was made that he has been under the influence of marijuana or alcohol at changeovers.
In her report dated 8 December 2017, Ms P, the father’s treating psychologist, wrote that the father reported to her multiple life stressors that have significantly impacted his daily life in the past year. These included financial stress, being marginally homeless, living on a partially fitted out boat, relationship difficulties, disturbance by police, unstable employment status, limited meals, and overuse of alcohol. Ms P reported that after the end of his relationship with his ex-partner, he has had an unstable employment status for over a year. He reported that he was working at E Employer and his employer has been supportive of him when unable to work due to stress.
He reported to Ms P that at that time he had stopped smoking marijuana and significantly reduced his alcohol intake. He reported that in 2016 he had frequent suicidal thoughts, but never had a plan or made any attempt to self-harm. Thoughts of his daughter have been protective.
Ms P’s opinion was that it is likely that the father suffered from a Major Depressive illness in the past. At this time he struggled to maintain himself at work on a regular basis, was sad much of the time, was not eating, was drinking too much and felt helpless in his situation. He had sought help from another psychologist. Ms P was of the opinion that the father was experiencing reactive depressive symptoms and anxiety in the context of the ongoing stressors, but did not meet criteria for a Major Depressive Episode, nor was he experiencing an anxiety disorder.
Ms P believed that he would benefit from ongoing psychological intervention to help build his resilience and to manage the reactive depressive symptoms he experiences. She did not see this as a long-term intervention. She recommended that he continue to be seen by a GP to monitor any need for medication.
The father gave evidence that he is not currently having treatment from his psychologist. The last time he saw her was several months ago. He had seen her around 10-15 times, and has seen her several times since December 2017. She told him that he is going well and should make an appointment only if he needs to talk to her.
Mental illness does not, in and of itself, mean that a person is not a capable and loving parent. A court should only act protectively when an individual’s mental illness affects his or her capacity to care for a child, or puts the child at risk of harm.[24] The father’s mental health is only relevant insofar as it affects the best interests of [X].
[24] See Connor & Hulett [2011] FamCA 196 [16].
The mother’s case is that these risk factors have receded and she has improved confidence that the father can parent safely. She has been reassured by the assessment of his capacity to parent by Ms J.
The father does not believe that he could be a risk to [X]. It is evident that he loves her very much, and that she loves him. I accept that he is currently coping well. If [X]’s relocation to New Zealand is permitted, he agrees that an order be made, that in the event he has not within 30 days of the date of his arrival in New Zealand obtained accommodation and/or employment, he should do all acts and things to engage with a clinical psychologist and to follow all reasonable directions of the psychologist. This should reduce the impact on him of any stressors that may occur with a move to New Zealand.
The father’s partner, Ms H, has witnessed [X] spending time with the father. She has observed [X] and him playing, laughing and sharing stories. She has observed him being patient with [X] and being sensitive to her needs.
The mother deposed that [X] has adjusted well to overnight time with her father since August 2018. He has kept her informed of [X]’s progress and how she settled to sleep.
I consider that the father has the capacity to provide for all [X]’s needs.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The mother was born in New Zealand, where her extended family live.
The father’s family live in Tasmania. [X] sees her paternal aunt and great-grandfather with her father. The mother has facilitated time for [X] with the paternal grandmother, the paternal grandfather and the paternal great-grandfather.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
At times, [X] has been exposed to the conflict between the parties, which is not a responsible attitude to parenting.
The mother was irresponsible when she drove [X] in an unregistered car from Town Q to Town F, although the father had offered to drive [X].
Overall, I consider that generally both parents have a responsible attitude to the responsibilities of parenthood. They are both committed and loving parents.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
A PFVO was made against the father for the protection of the mother in November 2015.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It would be preferable to make an order that would least likely lead to the institution of further proceedings. If the father’s mental health remains stable, there should be no need for further litigation.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court thinks is relevant.
Parental Responsibility
The presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that family violence has occurred.
The parties agree that an order for equal shared parental responsibility should be made. Whilst there has been much conflict between the parties since separation, they successfully use a communication book. [X] has a very close and loving relationship with both parents. I consider that it is in [X]’s best interests that both parents are involved in making decisions about her long-term welfare.
There is no dispute that [X] should continue to live with the mother. I do not consider that it is in [X]’s best interests to live with each parent on an equal basis. She has been happily living primarily with her mother since separation and has a stable base. I do not consider that such an arrangement would be reasonably practicable, even if the parties live in the same city, due to the impact such an arrangement would have on [X].
I am of the view that it is in [X]’s best interests that she live with the mother and spend substantial and significant time with the father, so that both parents are involved in her daily routine and can participate in events of significance to her and them. Such time can occur when both parents live in the same city.
I consider that it is in [X]’s best interests to spend time with the father on four nights per fortnight until she turns five years old, when such time should increase to five nights per fortnight. I consider the time should occur each Tuesday from 3:00 p.m. until 8:00 a.m. Wednesday and each alternate weekend from 5:00 p.m. Friday until 5:00 p.m. Sunday. Time on weekends should increase to Monday when [X] turns five, or such other night as agreed.
In respect of Christmas and Easter, I will make orders at the times proposed by the mother, to enable each party to have lunch with [X] each alternate year. Time should also occur on [X]’s birthday, Father’s Day and Mother’s Day.
As with most relocation cases, this is a difficult decision. I have weighed up the advantages and disadvantages of [X] living with the mother in Hobart and living with her in New Zealand. I consider the benefits of [X] living with her in New Zealand outweigh the benefits of her living with her in Hobart. The mother’s family live in New Zealand, where she will have the benefit of their support. I consider that the mother will better meet [X]’s needs where she feels supported.
I consider that the mother has a willingness and ability to encourage a close relationship between [X] and the father. This has been proved by the evidence of a close relationship between them, notwithstanding the difficulties which occurred after separation.
Having regard to the evidence and the principles relevant to my determination, I find that it is in [X]’s best interests for her to move with the mother to New Zealand.
The father has indicated that if the court permits [X]’s relocation, he will move to New Zealand, so that he can continue to spend regular and frequent time with [X]. The mother’s proposal to pay to the father the sum of $20,000 towards his relocation costs is appropriate.
The issue then becomes when the move should occur, in early 2019 or one year later in 2020, when [X] will commence school. The mother has been wanting to move for some time. The father has been spending overnight time with [X] since August 2018 and an increase in time was commenced in December 2018. [X] and the father have a close relationship and this is not a matter where their relationship needs to be established before a move occurs. I am not persuaded that the move should be delayed any longer than 60 days from the date of this judgment.
In respect of [X]’s commencement of time with the father in New Zealand, I consider that time should continue as I intend to order, on four nights per fortnight, if the father has accommodation. It is the father’s responsibility to find suitable accommodation for overnight time. Until he obtains accommodation, the time can occur during the day, from 9:00 a.m. until 5:00 p.m. each day over four days.
The mother sought an order that she be permitted to enrol [X] at the C School in Suburb D, Location B. This proposal was not opposed. I will make this order.
Time for [X] with the father until she attends full-time school, in the event he does not relocate to New Zealand
Orders are sought by the mother for [X]’s time with the father until she attends school full-time if he does not move, to avoid further litigation. The father intends to relocate to New Zealand if the mother is permitted to move [X] there. He told the Family Consultant that, if he did not relocate, he would try to fly to New Zealand as many times as is possible, but this would not be easy.
[X] commences Kindergarten in February 2020 at the C School. She will have two years in Kindergarten.[25]
[25] Exhibit M12.
The mother proposed a mix of day time and night time for [X] with the father, with a total of four overnights over nine days in New Zealand, twice per annum. She proposed that the father can elect to have one of these two trips per annum in Tasmania. She will travel with [X] and remain in Tasmania at her cost, if the father elects to have a visit in Tasmania.
She also proposed that the father be at liberty to spend time with [X] in New Zealand on more occasions than twice per year at the father’s sole cost.
The father proposed that if he is unable to relocate, [X] spend all her school holidays with him in Tasmania and the mother pay all the costs of associated airfares.
[X] is turning four years old in May 2019. She commences school in February 2020. On the father’s proposal, [X] will need to travel to Tasmania four times per annum. She will be separated from her primary carer for long periods. [X] would not spend any holiday time with the mother on this proposal. I do not consider that this proposal for [X]’s time with the father is in her best interests.
I consider that it is not in [X]’s best interests to spend only four overnights with the father over a nine day period twice per annum. [X] has been spending overnight time with the father since August 2018. She will be spending four nights per fortnight with him until she leaves Tasmania.
I consider that until 23 May 2020, it is in [X]’s best interests to spend eight overnights with the father during his time with her in New Zealand or in Tasmania, with two lots of four nights, and one night in the middle of the time with the mother. This will enable [X] to see her, rather than spending eight consecutive nights away from her. After 23 May 2020, the time should increase to 10 overnights, with two lots of five nights and one night in the middle for [X] with the mother. This time can also take place on more occasions than twice per year in New Zealand, in accordance with the mother’s proposal.
Having regard to the financial circumstances of the parties, I consider it is reasonable that the mother pay the costs proposed by her for the father’s travel to New Zealand twice per annum. If the father elects for a visit to occur in Tasmania, it is reasonable that she pay her travel costs and it is also reasonable that she pay [X]’s travel costs.
For the other time in New Zealand, I consider the father should pay his own travel costs.
I consider that the notice provisions proposed by the mother are too long and consider that they should be halved, apart from the period of 30 days when the father is to spend time in New Zealand at his sole cost.
I consider that Skype and telephone communication between [X] and the father should occur on three occasions per week and on special days, such as Christmas and birthdays, at times to be agreed. I do not consider that such time should occur only twice per week. I consider that the mother’s proposal to send the father one or two videos of [X] on a weekly basis is appropriate.
I also consider that prior to [X] attending full-time school, the parties should attend a community-based mediation in New Zealand, to r[X]w the time arrangements for the future. The mother deposed that she is open to bringing [X] to Tasmania during school holiday periods to spend time with the father and she will remain in Tasmania during that time.
Injunctive orders sought by the mother
The mother gave evidence that she is concerned about [X] sailing with the father on his boat because there is no safety netting, and if [X] were to slip, she could fall off the boat. The mother has been advised that it would be safer if there was a third party on the boat with the father.
The father’s evidence was that the boat is registered and seaworthy. He has a current boat licence and has more than 10 years’ experience working with and around boats. He has the appropriate safety equipment. He gave evidence that the boat is insured with Insurer R and its rigging is relatively new. He said there are three wires around the stanchions and the fence is well above [X]’s head. If he takes [X] for a sail, he will put a harness on her to tether her. He would not take [X] out in unsafe weather conditions and would not take her ocean sailing.
I am not persuaded that an order should be made restraining the father from taking [X] sailing on the boat. I accept the father’s evidence that he has the appropriate safety equipment, and that he would not put [X] at risk of harm.
I will make an order that [X] not stay overnight on the boat, to which the father agreed.
The mother proposed an order that the father not consume alcohol to the point where his capacity to parent [X] is impacted; not to consume prescription drugs contrary to any prescription; and not to consume illicit drugs at any time whilst [X] is in his care. Although the mother gave evidence that there was no indication since the restraint order was made in January 2018 that the father has been under the influence of marijuana or alcohol at changeovers, I consider that it is appropriate that such an order should be made for [X]’s welfare.
The mother sought a mutual non-denigration order. I consider that such an order should also be made.
The mother sought an order that the parties ensure that a vegan diet is maintained for [X]. This did not seem to be an issue and there was little evidence about it. I do not intend to make an order.
In conclusion, I consider the orders which I intend to make are in [X]’s best interests and enable her to have a meaningful relationship with both her parents.
I certify that the preceding one hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of Judge Baker
Date: 13 February 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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