Latton & Pell - [2007] FMCAfam 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LATTON & PELL

[2007] FMCAfam 1103

FAMILY LAW – Arrangements for care of child aged 2 years and nine months – best interests – mother wishes to live with child in P – mother previously resident in Australia – child spending weekends with father – mother recently relocated child to P without father’s consent – father seeks orders to compel mother to return to Adelaide to live with the child – meaningful relationship.

Family Law Act 1975 (Cth) ss.60CC

D & SV (2003) FLC 93,197
B and B: Family Law Reform Act 1995 (1997) FLC 92-755

Applicant:

MR LATTON

Respondent:

MS PELL

File number:

ADC 3922 of 2007

Judgment of:

Brown FM

Hearing date:

20 August 2007

Date of last submission:

20 August 2007

Delivered at:

Adelaide

Delivered on:

22 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr Tinning

Solicitors for the Applicant:

Denise Rieniets & Associates

Counsel for the Respondent:

Mr Childs

Solicitors for the Respondent:

Voumard Lawyers

ORDERS

UNTIL FURTHER ORDER THE COURT ORDERS:

The parties have equal shared parental responsibility for the child J born in November 2004.
The said child live with the mother in P.
The said child spend time with the father on alternate weekends from 4:00pm Friday until 4:00pm Sunday and on any other occasion as may be agreed from time to time.
The parties collect the said child from the premises of the Shell service station at W at the commencement and conclusion of the period to spend time with the said child or such other place as agreed between the parties.
The said child spend time with his paternal family from Christmas Eve until Boxing Day unless the parties agree otherwise.
This matter be listed for final hearing before Federal Magistrate Brown on 12 and 13 February 2008 at 10.00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant pay the hearing fee or file a remission certificate in respect thereof within 28 days of today’s date.
Both parties file and serve all affidavit evidence they propose to rely on at trial on or before close of Registry filing on 15 January 2008.
That pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Co-ordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 14 December 2007.
The Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 3922 of 2007

MR LATTON

Applicant

And

MS PELL

Respondent

REASONS FOR JUDGMENT

This morning I have to deal with the matter of Latton and Pell. The proceedings concern an application which was commenced on 20 July 2007. It was made returnable on 20 August. It came before me in a busy duty list. On that day, I think I had thirty-eight matters before me, and I heard submissions from the respective counsel of each of the parties, which concluded a bit before lunchtime on 20 August.
At that stage, I still had seven further interim hearings which I had to deal with, I think, from recollection. Because of the importance of the matter to the parties concerned, I elected not to deliver reasons on that busy Monday, and I adjourned the matter until today. I have considered the matter in the intervening period. It now falls to me to deliver the reasons for judgment in the matter which, again through necessity, will have to be delivered orally.
Mr Latton and Ms Pell are the parents of J, who was born in November 2004. The proceedings today are concerned with arrangements for J's care pending final hearing, which will be in February of 2008, some six months away.
In particular, Ms Pell wishes to continue to live in P with J, where she has lived since around the beginning or middle of July this year. Previously she and J lived in a southern suburb of Adelaide.
Mr Latton lives in A, also a southern suburb of Adelaide. At this stage, he agrees J should continue to live predominantly with the mother, but in the longer term he wishes J to live with both his parents in what is commonly called a shared care arrangement. For that reason, he wishes J's place of residence to be reinstated to one within the Adelaide metropolitan area.
Ms Pell grew up in P, and sees considerable benefits to herself and J if she remains living there. From the father's perspective, if J is not living in close proximity to where he lives, J is likely to be deprived of the opportunity to have a meaningful relationship with him which, from the father's point of view, will have long‑term implications for J's wellbeing. Clearly, also, the father's proposals have implications for the mother's entitlement to live how and where she chooses.
Essentially, the father wishes to compel the mother to live in Adelaide at this stage, as there is no suggestion that the mother would willingly live apart from J for any lengthy period of time. In the interim, the father wishes J to live with him on alternate weekends. He makes this concession through his counsel Mr Tinning, although in his application it is his position that, on both an interim and a final basis, J should live equally with both his parents.
The mother proposes that the father should spend time with J between 4:00pm Friday to 4:30pm the following Sunday on alternate weekends, subject clearly to the proviso that he continue to live with her in P and be exchanged between the parties at the Shell petrol station in W. I think I can take some judicial knowledge of a web site called ‘whereisit.com’, which enables one to calculate the distance between points in Australia, and the site also gives estimations of the driving time between those two points.
Whereisit.com indicates that it is 245.77 kilometres between A and P, and it is estimated that the distance takes about two hours and 59 minutes to drive. The site also reveals that it is 118.11 kilometres between A and W, which is estimated to take an hour and 33 minutes to drive and, further, that it is 127.66 kilometres from P to W, and that takes an hour and 26 minutes to drive.
I do not think that these times or calculations will come as any surprise to the parties, because I recall being told by counsel for one of the parties that it is about a three‑hour drive between Adelaide and P.
By way of background, the parties themselves had a brief relationship with one another. It seems they have known each other since around 2001, but began to live together at some time in 2004. They separated finally on 31 December 2005. From the mother's perception, the parties had had an earlier separation. In any event, they finally separated when J was just over one year of age. It is common ground that he has lived predominantly with his mother since that time.
The parties met when they were both working at a supermarket. The father is now employed as the produce manager at the in H branch of the supermarket. He works on a full‑time basis. The mother has recently stopped working, and I will come back to that issue in a moment.
It is the mother's position that the relationship between the parties failed as a result of the father's heavy dependence on both alcohol and cannabis. The father concedes that he has had past problems with alcohol.
To a certain extent, he is compelled to make that concession, because it is again common ground between the parties that he entered the

O Detoxification Unit in May 2007. He was in the detoxification unit for some time in regard to alcohol use. It is now his position that he has been alcohol‑free for about eight weeks.
It is also common ground between the parties that since they separated they have had a verbal agreement with one another that the father should spend time with J on alternate weekends from Friday afternoon to Sunday afternoon.
J is a child with special needs. He was born without a thyroid gland and, as I understand things, has to have medication to make up the deficiency which has resulted. It seems that, as a result of these difficulties, there are implications for J's cognitive development.
It is likely that he will have difficulties with his speech; that his development will be delayed, and that he may experience fatigue and other problems, particularly pain in his joints, and muscle cramping. Because of the delays in his cognitive development, it is necessary for him to have assistance with developing language skills, and he requires speech therapy.
Up until fairly recently, the mother has been working on a full‑time basis. Necessarily, J has been in child care. It is the mother's position that, because of J's special needs, he did not cope particularly well at child care. As a result, J was referred to a service called ID to have extra support.
Necessarily, J has had involvement from a number of therapists. Over time, after consulting with these various therapists, the mother came to the view that it would be in J's best interests for her to stop working and become J's full‑time carer. Because of his various difficulties, it is likely to be in J's best interests if he has therapy and undergoes a regular course of exercises to help with his development.
It is the mother's position that, if she is not working, she will be more available to J to help him. Recently, therefore, the mother has stopped working. As I have already indicated, she grew up in P where she has a number of friends and where members of her family live. It is her position that she has been thinking about moving back to P from May onwards.
From the mother's perspective, P will provide her with an opportunity to have cheaper accommodation for herself and J. As can readily be imagined, because of her connections with P, she is well aware of the benefits of living in what she describes as a small community. It is also her view that J will still be able to access appropriate medical treatment, both in P and Adelaide. She will be able to travel to Adelaide when necessary.
It seems clear that the parties do not have perhaps the easiest relationship. It is the mother's position, which the father does not refute, that when the father was in the detoxification unit the mother still arranged for him to spend time with J. It is the mother's position that she has difficulties discussing issues to do with J's care with the father. In the past she has proposed the use of a communication book between the parties, but from her perspective the father has been reluctant to use it.
Clearly, the issue of the mother moving J to P was likely to be a controversial one. It is common ground between the parties that on 6 July 2007 the mother wrote to the father regarding her desire to return to P. It is the mother's position that she did not receive any response and she wrote a further letter on 9 July 2007 which clearly indicated that, by the time Mr Latton received the letter, she would be gone.
The mother proposed in her correspondence with the father that he would be able to see J on the same basis as previously - that is, on alternate weekends. However, obviously, the father would have to travel further potentially, and it was the mother's proposal that the parties meet halfway at W.
That, essentially, is the background to the father's application which he brought very promptly after it became clear that the mother and J had moved to P. As I have already indicated, the matter has also been dealt with expeditiously by the court and, indeed, by Ms Pell, who filed her response to the application on 9 August 2007.
I am deciding this matter on an interim basis today. What that means is that on Monday I did not see either of the parties in the witness box. Accordingly, it is very difficult for me to form a view as to what sort of people and, perhaps more importantly, what sort of parents they are. I did not see either of the parties being cross‑examined by the lawyer for the other party and perhaps being asked questions they might have found difficult to answer.
On Monday, my time was limited. It was not possible for me to have a long hearing about all the complicated issues that have been raised in this case. Also, on Monday, I did not have any independent expert evidence from a psychologist or a social worker or, indeed, any medical personnel regarding J's special needs.
The orders I am going to make today are going to be in place for about six months or so, when there can be an exhaustive hearing of all the complicated issues that are raised. Issues to do with relocation - that is, cases where one parent wants to move away with a child from the other parent concerned - are very complicated. They are very complicated because the court is called upon to balance the interests of parties which may be impossible to reconcile.
On the one hand, children have an entitlement to have a relationship with both their parents. On the other hand, we live in a free country. Its citizens are free to live how and where they choose. We live in a free country which is also highly mobile - that is, people frequently move. Australia is a very big country. It is very difficult to balance the entitlements of a child to have a relationship with both his or her parents with a citizen's right to live where he or she wants to live.
In determining what is the appropriate outcome in this case today, I have to be satisfied that whatever order I make is in the child concerned's best interests. That is the paramount consideration. Whatever I do today, I have to be satisfied that it is likely on balance to be in J's best interests.
How I determine what is likely to be in J's best interests is by considering a list of matters which is contained in section 60CC of the Family Law Act. The Family Law Act has recently been significantly amended by a piece of legislation called the Shared Parental Responsibility Act.
The considerations in section 60CC are divided into what are called primary considerations and what are called additional considerations. The primary considerations are, obviously, more important. There are two primary considerations, and quite a number of more additional considerations.
The two primary considerations are that, in determining what is the best outcome for a child, the court must have regard to the benefits to the child of having a meaningful relationship with both his or her parents and, secondly, the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In this case, I do not think there is any suggestion that either party would willingly expose J to any chance of him being harmed. Although the parties, I think, have criticisms of one another, particularly the mother of the father and his past behaviour, this is not a case where there are issues of family violence or it is suggested that either would neglect or abuse J. Accordingly, the consideration of meaningful relationships with both his parents, from J's perspective, assumes great significance in this case.
I now turn to the additional considerations. The first of these is any views expressed by the child. Obviously J is too young to have any concluded view about what he would prefer at this stage.
I have to consider the nature of the relationship between the child concerned and each of his parents. I also have to think of others who are involved in J's care. The only affidavits I have read have been from the parties themselves, but I am aware that each of the parties is here with relatives.
The parties themselves are fairly young people. I do not mean that in any disrespectful way, and my apprehension is that many others have been involved with the care of this little boy and that he is the centre of a web of familial ties and he is much loved by very many people. I have no doubt about that. He is fortunate to be a much loved little boy.
I also suspect that the proceedings from both parties' perspective have been fairly hastily prepared and that when, if necessary, the matter comes to final hearing, there will be affidavits from other people who are interested in this matter and perhaps have very strong views about it.
But on balance, it seems to me more likely that at this stage of his development J's most significant relationship is with his mother. I say that because when the parties separated, when J was a little boy, a little over one as I have said, it seems that although the mother used child care - and, no doubt, others - she is to be regarded, I think, as J's primary carer. As a result of those matters, I think it is likely that her state of wellbeing and satisfaction with life are likely to be important factors for J's ongoing wellbeing.
I have to consider the willingness and ability of each of J's parents to facilitate and encourage the other in having a relationship with J. Ideally, parenting should be a partnership, whereby one parent includes the other parent in all decisions and care of the child concerned. After relationships end, when children are involved, very often one parent feels that he or she is excluded and is left in a subsidiary role. This consideration is a new consideration which was inserted into the legislation.
The father is critical of the mother in regard to her view of him and her willingness to encourage a relationship between him and J, as evidenced by, I think, what he describes is a unilateral or independent decision to move J to P. From her perspective, the mother points to the fact that in difficult circumstances, when she had reservations about whether it was appropriate, she was willing to bring J to the detox unit to spend time with his father.
It seems likely that, notwithstanding the difficulties between the parties over the last 18 months or so, the father has been able to develop a significant relationship with J and, indeed, other members of his family have also developed a significant relationship with J.
So although the mother can perhaps be criticised for what she has done of late, overall it does not seem to me that she is contemptuous of the father's role in J's life and, indeed, although it is not what the father would want, she has some proposals for J remaining actively involved in the father's life.
The impression I have is that the mother would have preferred for this move to have been arranged cooperatively and consensually. She did attempt to negotiate the matter. Perhaps it is not surprising that this issue in all the circumstances could not be resolved.
I have to consider the likely effect of any changes in J's circumstances on J. This is a significant consideration. It is the father's position, clearly, that the mother, without any thought for him and J's relationship with him, has engineered a very great change in J's circumstances that has implications not only for J's paternal relationship but also in terms of his relationship with his paternal grandparents and other significant relatives.
On the other hand, it is the mother's position that, if at this stage she has to come back to live in Adelaide, it will be very difficult for her and for J. She will have to find accommodation for herself in the longer term. It also may be the position that she will have to resume work, and that may have implications for J's care. I suspect at this stage - and I am not critical of the mother in this regard - that she perhaps has not focused her mind on what she would regard as an unpalatable outcome from this case.

I also think that, in determining this issue, I have to look at the time frame in which the matter will come on for final hearing. It is going to be about six months. I have to consider what implications a move back to Adelaide in that time frame may have for J and for his mother who, I have found, is his principal provider of care. I also have to consider whether there will be any unacceptable prejudice to the father's position if that issue of relocation is put off until February.
That consideration, I think, becomes more relevant when I turn to the next consideration, which is the practical difficulty and expense of J spending time with and communicating with his father and whether that difficulty and expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
On Monday, there was some discussion between me and the respective counsel regarding the distance between Adelaide and P, and whether this could be regarded as being a true relocation case. In this respect Ms Dickson reminded me of the case of D and SV[1]. It is a decision of the Full Court of the Family Court.
[1] D and SV (2003) FLC 93,137
A case from Victoria, where the mother of three children, aged 13, 11 and nine, wanted to move from one of the suburbs of Melbourne to a place near Geelong. The distance was 115 kilometres, which is significantly less than the distance in this case. In the case the Full Court referred to the earlier case of B and B[2], and noted that movement of people in Australia was very common; that it was common for families to move from suburb to suburb, from state to state, and from city to town within a state, for very many reasons.
[2] B and B: Family Law Reform Act 1995 (1997) FLC 92,755
The Full Court also noted that, on relationship failure, relocation of one or other of the parties who had previously been involved with one another was very often inevitable, and relationship failure of itself unavoidably had consequences for the level of involvement one parent would have with the child or children concerned.
There is as yet no principle that separated parents are required to live in close proximity with one another following relationship failure. In B and B, the court noted that, given that Australia is a highly mobile society and a large country, what was characterised as the tyranny of distance developed by degree.
The court in D v SV queried whether the distance involved in that case made it a relocation case. They cautioned that, where the move of one parent with the child concerned was over a relatively short distance, caution should be shown in the making of orders that restricted the residence parent's freedom of movement.
In this case, at this stage - the interim stage - the father does not seriously argue that it would be in J's best interests for the shared care arrangement, which he seeks in the longer term, should come about now. His concerns are more centred on the future, as J develops.
At this stage, although the mother's proposals are not the most ideal, J will be able to maintain a relationship with his father similar to that which has existed up to this stage. It is the father's position, put forcefully by his counsel Mr Tinning, that he having to drive up to 300 kilometres a fortnight - that is, to W and back one way, and then again on the Sunday - is unsustainable.
The mother has a more optimistic view, and argues that it is not unknown for parents who live in large metropolitan centres, such as Sydney and Melbourne, to drive long distances each week in difficult circumstances. I think it is significant that the mother has been able, with the father, to ensure in the fairly short period of time since she has been in P that J has been able to spend time with his father.
I have to consider the capacity of each of J's parents to provide for his needs, including his emotional and intellectual needs and the attitude each has shown to the responsibilities of being a parent. Although I haven't seen the mother in the witness box, it seems that she is a devoted parent. She has been prepared to give up her work so that J may have a better level of care. There is nothing to indicate that she has anything other than his best interests to heart.
The father concedes he has had some difficulties with alcohol. The mother has very significant criticisms of the father regarding how his parenting capacities were reduced by his alcohol dependency. I am not in a position to resolve those issues today definitively, one way or the other.
What concerns me in this case is what are the implications for J if, in the next six months, the mother has to move herself from P and come back to Adelaide. I am concerned that, given J's special needs, given the degree of his relationship with his mother, given that she is his primary carer and she has made this decision to move J because she believes that it will be in his best interest, in the short term to bring the mother and J back to live in Adelaide is not likely to be an outcome in J’s interests.
It would be an outcome which could be achieved only at the price of imposing restrictions on the mother’s freedom of movement. In actual terms the father does not want to be the parent primarily responsible for providing care for J nor does he seek shared care at this stage. Rather he wishes the maintenance of the status quo with the convenience it offers him to spend week end time with J.
In the time frame until the final hearing, I have to consider whether J can have a meaningful relationship with his father if J continues to live in P. It may not be the optimal arrangement, but I am satisfied that J can have some level of meaningful relationship with his father, which is commensurate with what has existed up until this stage if this is the outcome.
The issue of whether the relationship should be developed to a shared care arrangement, which can only come about at the cost of depriving the mother of her right to live how and where she chooses, I think that is an issue which is best left to the final hearing of the matter.
In this case, I am satisfied that the parties should have equal shared parental responsibility for J. The presumption created by section 61DA is not rebutted. I then have to consider an order for equal time and, failing that, an order for substantial and significant time.
I have to consider whether both outcomes are likely to be in J's best interests and also to be reasonably practicable. The father does not, as I have indicated, strongly push for an equal care arrangement at this time. Given J’s age, I do not think it would be in his best interests. It would also not be practicable.
The mother’s proposal of time on weekends cannot be regarded as substantial and significant time. The father, at this point does not seek more time. To compel the mother to return to Adelaide so that the father can spend substantial and significant time is an outcome which would make the mother unhappy. I think it is axiomatic that it would have implications for J’s well being. As such, at this stage, I do not think substantial and significant time is reasonably practicable.
For all those reasons, I have come to the conclusion that I should essentially make orders in terms of the mother's application, until this matter can be heard on a final basis. For those reasons, I propose fixing the matter for final hearing on 12 and 13 February 2008. I will direct that each party file and serve all affidavits of evidence on which they propose to rely by 15 January 2008. I will direct that the applicant pay the hearing fee, or obtain a remission of the hearing fee, within 28 days of today's date. Pursuant to section 62G of the Family Law Act, I believe this is an appropriate case for the preparation of a family report and I will direct that such a report be prepared and released to the parties on or before 14 December 2007.
Neither party, I think, has alluded specifically to the issue of Christmas this year but, subject to anything the parties want to say, I think at this stage that J should spend time with his paternal family, as the mother proposes for 2008 - that is, from Christmas Eve to Boxing Day.
I appreciate that is likely to be a sensitive and difficult issue for the parties, but I think it is probably better that no‑one is perhaps driving on Christmas Day. The parties may have a different view about that. Christmas is likely to be more important, I suspect, to others - the adults - who surround J than perhaps J himself.
I also propose at this stage that the child be exchanged between the parties at the Shell petrol station in W, unless the parties agree on some other location.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 22 August 2007