Leighton & Bainum
[2022] FedCFamC2F 1615
Federal Circuit and Family Court of Australia
(DIVISION 2)
Leighton & Bainum [2022] FedCFamC2F 1615
File number(s): MLC 9761 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 24 November 2022 Catchwords: FAMILY LAW – change of parenting application issued 22 months after final orders - Final orders provide for shared care 8/6 plus half holidays - application to reduce time because of proposed relocation to 2/12 plus half holidays - child distressed at idea of moving - allegation Mother feels isolated, ostracised, unsupported and unhappy Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Cases cited: Adamson & Adamson [2014] FLC93-622
AMS v AIF (1999) 199 CLR 160
Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064
Champness & Hanson (2009) FLC 93-407
Cox & Pedrana [2013] FamCAFC 48; (2013) FLC 93-537
Fox v Percy (2003) 214 CLR 118
Franklyn & Franklyn [2019] FamCAFC 256
Goode and Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242; (2014) FLC 93-624
Jurchenko & Foster (2014) FLC 93-598
Loverdos & Bonner (2022) FLC 94-113
Maldera v Orbel (2014) FLC 93-602
McCall & Clark (2009) 41 Fam LR 463, (2009) FLC 93-405
Morden & Coad [2019] FamCAFC 233
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Oswald & Karrington (2016) FLC 93-726
Sayer & Radcliffe [2012] FamCAFC 209
Searson & Searson (2017) FLC 93-788
U & U (2002) FLC 93-112
Ulster & Viney [2016] FamCAFC 133; (2016) FLC 93-722
Wagstaff & Wagstaff (2022) FLC 94-098
Division: Division 2 Family Law Number of paragraphs: 116 Date of hearing: 22 & 23 November 2022 Place: Melbourne Counsel for the Applicant: Mr D Carne Solicitor for the Applicant: Ella Thompson Legal Counsel for the Respondent: Ms A Skinner Solicitor for the Respondent: Dawes & Vary Riordan Pty Ltd ORDERS
MLC 9761 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LEIGHTON
Applicant
AND: MR BAINUM
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
24 November 2022
THE COURT ORDERS THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the child of the relationship X born in 2013 (the child).
Care Arrangements
2.The child live with the mother.
3.The child spend time and communicate with the father during school terms as follows (with such arrangement to resume after school holiday period as if it had continued during the school holidays) and in the same rotation as is currently in place, as follows:
(a)Week 1:
(i)From the conclusion of school or 3:30pm Thursday until the commencement of school or 9:00am Monday each alternate weekend, save if the Monday is a public holiday in which event time shall conclude at the commencement of school on Tuesday; and
Week 2:
(ii)From the conclusion of school or 3:30pm Wednesday until the commencement of school or 9:00am Friday.
(b)At such other times as agreed between the parties.
Special Occasions
Mother’s special occasion time
4.If the child is in the care of the father pursuant to paragraph 3 of these orders, his time is suspended on the following days:
(a)At Christmas as follows:
(i)From 3:00pm 24 December until 3:00pm 25 December in odd numbered years;
(ii)From 3:00pm 25 December until 3:00pm on 26 December in even numbered years.
(b)At Easter as follows:
(i)From 3:30pm on the Thursday prior to Good Friday until 6:00pm Easter Saturday in even numbered years;
(ii)From 6:00pm Easter Saturday to 10:00am on the Tuesday following Easter Monday in odd numbered years.
(c)For the child’s birthday:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If the birthday does not fall on a school day, from 11:00am until 4:00pm.
(d)From 6:00pm on the night prior to the mother’s birthday until 9:00am on the day following the mother’s birthday.
(e)From 6:00pm on Mother’s Day Eve until the commencement of school on the Monday following Mother’s Day.
(f)Such other times that may be agreed between the parties in writing.
Father’s special occasion time
5.If the child is in the care of the mother pursuant to paragraph 2 of these orders, her time is suspended on the following days:
(a)At Christmas as follows:
(i)From 3:00pm 24 December until 3:00pm 25 December in even numbered years.
(ii)From 3:00pm 25 December until 3:00pm on 26 December in odd numbered years.
(b)At Easter as follows:
(i)From 3:30pm on the Thursday prior to Good Friday until 6:00pm Easter Saturday in odd numbered years.
(ii)From 6:00pm Easter Saturday to 10:00am on the Tuesday following Easter Monday in even numbered years.
(c)For the child’s birthday:
(i)If the birthday falls on a school day, from the end of school until 8:00pm.
(ii)If the birthday does not fall on a school day, from 11:00am until 4:00pm.
(d)From 9:00am on the father’s birthday until 9:00am on the day following the father’s birthday.
(e)From 6:00pm on Father’s Day Eve until the commencement of school on the Monday following Father’s Day.
(f)Such other times that may be agreed between the parties in writing.
Holiday time
6.The child will spend holiday time with the father as follows:
(a)During the gazetted school Term 1, 2 and 3 holidays for one week of the school holidays, with such time to commence at 3:30pm on the first Friday of the holidays and conclude at 3:30 pm on the middle Saturday of the holidays.
(b)Subject to paragraphs 4(a) and 5(a) of these Orders, during the gazetted Victorian school long summer holidays at the conclusion of term 4, on a week about basis, as follows:
(i)In long summer holidays commencing in even numbered years, the first week, from 3:00pm on the day that school concludes, and changeover to occur on the same day each week thereafter;
(ii)In long summer holidays commencing in odd numbered years, the second week, from 3:00pm on the day seven nights after the day that school concludes, and changeover to occur on the same day each week thereafter.
7.The child will spend holiday time with the mother as follows:
(a)During the gazetted school Term 1, 2 and 3 holidays for one week of the school holidays, with such time to commence at 3:30pm on the middle Saturday of the holidays and conclude at the commencement of the next school term.
(b)Subject to paragraphs 4(a) and 5(a) of these Orders, during the gazetted Victorian school long summer holidays at the conclusion of term 4, on a week about basis, as follows:
(i)In long summer holidays commencing in even numbered years, the second week, from 3:00pm on the day seven nights after the day that school concludes, and changeover to occur on the same day each week thereafter;
(ii)In long summer holidays commencing in odd numbered years, the first week, from 3:00pm on the day that school concludes, and changeover to occur on the same day each week thereafter.
Communication
8.Each party will facilitate the child telephoning the other party at any reasonable time, particularly if the child requests to do so.
9.The father be at liberty to telephone the child from 5:00pm to 5:15pm each Monday and Wednesday (and Fridays during school holidays), when the child is not in the father’s care.
10.The mother be at liberty to telephone the child from 5:00pm to 5:15pm each Friday and Sunday (and Mondays and Wednesdays during school holidays), when the child is not in the mother’s care.
Changeover
11.For the purposes of changeover pursuant to these orders, changeover take place at the child’s school on school days, and at the residence of the parent whose time is concluding on non-school days.
Information
12.Each party will keep the other informed of any significant illness or accident suffered by the child when in his or her care, and as soon as practicable, advise the other of the name and telephone number of each relevant treating medical practitioner or like professional, and authorise such treating medical practitioner or like professional to discuss the illness or accident, treatment and prognosis with the other party.
13.Each party will notify the other immediately if the child is hospitalised.
14.Each party is at liberty to obtain from the child’s school copies of the following documents:
(a)Copies of the child’s school reports.
(b)School newsletters.
(c)Order forms for the child’s school photos.
(d)Notices of school functions such as parent teacher interviews, concerts, fetes and sports days.
15.Each party is at liberty to attend any of the child’s school and extra-curricular functions (such as parent-teacher nights, school sports days, drama evenings, music concerts and fetes) at which parents are usually in attendance.
16.Each party will keep the other advised of their residential address and mobile telephone number and advise the other party of any change within 24 hours.
Extended travel and passports
17.Both parents be permitted to travel with the child for a period of up to three weeks with such proposal for holiday time to be provided to the other party not less than sixty days prior to the proposed holiday.
18.Any holiday time taken in accordance with paragraph 17 which encroaches on the other parent’s time with the child shall have an equivalent amount of make-up time.
19.Each party provide the other with at least 14 days’ notice in advance of any interstate holiday plans for the child, together with contact details for the child whilst on holiday.
20.If either party wishes to take the child out of Australia, they are required to provide the other party, details of any proposed overseas trip (including a copy of the itinerary, a copy of the child’s return air fares, details of the accommodation, contact phone numbers etc) 45 days in advance of such proposed travel and obtain the written consent of the other party prior to such travel occurring.
21.That the parties do all such things and sign all such documents, including any necessary consent forms, as may be required to:
(a)Ensure that the child at all times has a valid Australian passport.
(b)Renew any passport of the child at least 6 months prior to expiry if practicable.
(c)The cost of renewing the passport will be paid equally by the parties.
22.The Mother will retain any passports issued for the child for safekeeping.
23.If the child travels overseas with the Father in accordance with these orders:-
(a)The mother will provide the child’s passport to the father for the purpose of travel at least 14 days prior to the departure date.
(b)The father will return the child’s passport to the mother upon the child returning to the mother’s care following the overseas travel.
Non-denigration
24.That each of the parties, their servants and agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.
25.All extant applications are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Leighton & Bainum has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION
The question I must determine, on this final hearing, is the application of the mother, Ms Leighton (‘the Mother’) to reduce the time Mr Bainum (‘the Father’) spends with their child, 9 year old X (‘the child’). The Mother seeks to change the existing shared care arrangement where the child lives 6 nights with the Father and 8 nights with the Mother, with half school holidays because she wants to move to live closer to her mother and her family. The Mother seeks to change the school term arrangement to the Father spending time with the child to each alternate weekend (Friday PM to Sunday PM) with an evening meal each Wednesday, a ‘2/12’ and weekly evening meal with more than half school holidays. The Father opposes such change. It is common ground between the parents that if the Mother changes her residence and the child’s school, the time she proposes is all that can practically take place between the Father and the child.
The parties’ reached agreement on final orders by consent in the Federal Circuit Court of Australia (as it was then known) on 13 November 2020 (‘the Final Orders’). The Father seeks to maintain the 6/8 status quo as provided in those orders and as has been in place April 2021 (the Final Orders provided for a 5/9 moving to 6/8 in April 2021). The Mother seeks to relocate on the basis of feeling isolated, ostracised, unsupported and unhappy and seeking more family support. She will continue in her current employment. The Mother does not contemplate moving without the child moving with her.
Background
The Mother is aged 47 years and employed in the field of health services. She works hours that accommodate her dropping of and collecting the child to and from school when the child lives with her and longer hours when the child is with the Father. The Father is aged 51 years and a self-employed tradesman. He has some flexibility in his work hours. They did not marry. The parties’ only child together was born in 2013 and is aged 9 years and completing grade 3. The parties separated under the one roof in April 2020, and physically separated on 13 July 2020 at which time the Father moved in with his sister.
The parties commenced cohabitation in 2009 in the Town C area. Town C is a regional city of about 77,000 people. Compared to the state capitals where the bulk of the Australian population lives that is a small city or, if compared to country areas and country towns, a large regional centre or city. The Father has lived all his life in that area and his family live in that area. The Mother moved to Town C in approximately 2002.
THE PROCEEDINGS
The first proceedings
References to ‘the Act’ are references to the Family Law Act 1975 (Cth).
This is the second proceeding between the parties. Previously, shortly after the end of their de facto relationship, but while the parties were separated under the one roof, the Mother had issued proceedings, including seeking sole use of the relationship home in June 2020. The Father moved out of the home and the parties retained a family consultant who prepared a family report. Shortly after the release of that report, and I infer guided by it, the parents consented to final orders on 13 November 2022 that provided for equal shared parental responsibility with the child to live in a shared care 5/9 nights arrangement during school terms with half school holidays with each parent, moving to a 6/8 nights arrangement during school terms with half school holidays. The 6/8 arrangement was put in place in April 2021.
The current proceedings
The Mother issued the current proceedings on 1 September 2022 and the matter came before me during the week of 14 November 2022 but was not reached in a busy list. The apparent urgency of the matter was said to be the need to have the child in her new school from the start of the 2023 school year and the crisis of accommodation for the Mother that the Town C floods had created. The Mother had deposed as follows:
16.As referred to in my previous Affidavit filed on 1 September 2022, I have sold the former matrimonial home, located on [D Street, Town C] and settlement is due to occur on 9 December 2022.
17.I had arranged to rent a property from a work colleague, named … [who] had purchased an investment property located in central [Town C]. [She] said that I could move into the property and rent it on a month-by-month basis until my family law matter was resolved. [She] did not seek that I entered into a formal lease with her.
18.On 15 October 2022, [Town C] experienced major and catastrophic flooding. Many properties were impacted by the floods.
19.[The colleague] contacted me in the days following the floods and advised that the family of the vendor of the investment property had been impacted by the floods and they needed to stay in the property for the next several months. Unfortunately, the investment property would no longer be available for me to move into. I expressed to [Ms E] that I understood, and these were very difficult circumstances for the [Town C] community.
20.This has placed me in a precarious situation. I do not have a rental property to go to, following settlement of the [D Street] property on 9 December 2022.
21.As a result of the floods in [Town C], there is a rental housing crisis. There are very limited rental properties available, and I am not confident that I will be able to find a place to rent.
In that context I determined to treat the matter as urgent and hear the matter in the week after the matter was not reached. The parties were represented by solicitors and counsel who efficiently but robustly prosecuted their client’s cases over two days, 21 and 22 November 2022 at an “in person” hearing. At the conclusion of final addresses I advised the parties I would deliver judgment the following day, res tempore, or oral reasons soon after conclusion of the case. Subsequently the parties were advised judgment would be delivered the following day, that is the day after the day following the end of final submissions. These reasons are shorter than they might otherwise be in those circumstances.
The witnesses were the parents and a different family consultant, Mr K, retained to prepare a family report. The witnesses were cross examined.
Material relied upon
The Mother relied upon:
·Amended Initiating Application filed 15 November 2022;
·Affidavit of the Mother filed 1 September 2022;
·Affidavit of the Mother filed 15 November 2022;
·Outline of Case filed 15 November 2022.
The Father relied upon:
·Amended Response to Initiating Application filed 9 November 2022;
·Affidavit of the Father filed 9 November 2022;
·Outline of Case filed 14 November 2022
Exhibits tendered in the final hearing
·F1: 2020, 2021 and 2022 selected text messages (3 bundles).
·M1: 2020, 2021 and 2022 selected text messages (12 pages).
·C1: Google distances searches at 5:15pm.
The existing 2020 Final Orders
The Final Orders provide for both parenting and property orders. The parenting aspect provides for the parties to have equal shared parental responsibility for the child, for the child to live with the Mother and, in a two week cycle, to spend five nights per fortnight with the Father from Thursday to Monday in one week and Thursday to Friday in the other week as well as one weeknight for dinner. The Final Orders further provided that commencing in term 2 2021, the child spend time with the Father from Thursday to Monday morning in week one, and Wednesday to Friday in week two. There are further provisions for the child to spend relatively equal time with the parents on special occasions and for half of school holidays.
Summary of the Mother’s case
The Mother’s proposal is to relocate with the child to the Town F region in mid-December 2022 and as a consequence, change the child’s school and the current shared care arrangement. The Mother sought an order for equal shared parental responsibility. The Mother entered into a contract of sale for the former matrimonial home which she retained from the parties’ property settlement in September 2022. She proposed to relocate to Town F, approximately 1 hour and 40 minutes from Town C North where the Father resides, and for the child to spend time with the Father from 5pm each alternate Friday until 4pm each Sunday, as well as after school each Wednesday until 6.30PM, as well as two weeks (not half) in the terms 1 and 3 school holidays and on a week about basis for the long summer holidays.
The Mother’s case is that the child has a meaningful relationship with the Father and that her proposal would ensure that meaningful relationship continues, albeit for a shorter period of time. She says she has always supported the Father’s relationship and she would continue to do so. Neither party alleges the child is a risk of harm in either household, however the Mother alleged in outline of case that the Father had engaged in (unspecified) family violence and that there was a risk of this at changeovers from the Father’s verbal aggression. This was not pursued in cross examination or final address.
The Mother acknowledged the child was opposed to the proposed move but that her opposition would settle after some time in the new town. Her case asserted that although the child had a close relationship with both parents she was closer to her Mother and that her relationship with her father would act as a protective factor to ameliorate the negative impacts of the reduction in time she proposed. The Mother asserted that the Father remained angry with her about the parental separation and that he had disparaged her by having told parents of the child’s peers at school of the circumstances of their separation (described as the Mother “cheating” or having an “emotional affair”). The combination of what she said was his anger and the brusque, difficult and aggressive manner of the Father’s communication combined with the gossip about her among school yard parents (as a result of the Father’s disparagement of her), and the attitude of his family to her on the occasional chance meeting, left her feeling isolated, ostracised, unsupported and unhappy. In these circumstances the Mother’s case was she needed a fresh start in Town F, close to the new school she had chosen at Town G, where her retired mother and mother’s partner lived only 20 or so minutes away and were thus able to give her the support she needed. Her brother lives in the nearby inner city and would be more available to take a more active role in the child’s life. She said the Father’s behaviour and communication had impaired the parent’s ability to co-parent harmoniously. She asserted that the current circumstances were impacting on her emotional, mental and physical health which in turn impacts upon the child. This opinion was expressed in those general terms and there was no evidence of an expert or a treating medical practitioner or a counsellor of the extent of that impact on the Mother or her ability to cope with same.
It was common ground that the Mother had commenced the process to relocate by raising her proposal with the Father face to face on 5 July 2022, that is about 20 months after the final orders were made. The Mother immediately arranged for mediation at H Counsellors and the Father refused to attend by 3 August 2022. Knowing that he disagreed with her proposal, she had commenced the process to sell her home within days and had, before 1 September 2022, agreed to an offer to sell her home at a price that she regarded as unlikely to be offered again. The Mother issued proceedings on 1 September 2022 with a first return on 9 September 2022. The formal contract of sale was signed and exchanged between 9 September 2022 and 14 September 2022. Vacant possession is to be given to the purchaser on 9 December 2022, that is the week after next.
In response to the suggestion that the sale had created a crisis to assist her case to move she asserted in cross examination that she had decided to “downsize” her large 4 bedroom home to a smaller property regardless of whether she relocated or not and she would be able to stay with her mother from settlement to the start of the next school year and that the parents had week about during the summer school holidays. She would have about $600,000 from the sale of her home after settlement, less legal fees in the proceedings of about $50,000, and conceded she would be able to buy a home in the Town C area if her application was not successful.
The Mother had chosen Town G Primary School because it had been recommended to her, the child of a family friend attended and it was only 20 minutes from where she proposed to live in Town E. Town G Primary School is on the Region J fringe of the greater Melbourne area and the proposed residential suburb is a further 20 minutes or so away from Town C and the proposed primary school.
The proposed Town G Primary school is about an hour and a half to an hour and three quarters from the Father’s home in North Town C. The Mother does not yet have accommodation in Town E. The suburb where her mother lives in a further 20 to 25 minutes from the suburb where the Mother proposes to live and about the same to the proposed school. The Mother proposes that the parties meet at a roughly mid-way town about 50 minutes from the Father’s home and I infer roughly the same from the proposed school for the Friday and Sunday evening changeovers.
The Mother’s case included the assertion that she was, prior to the parent’s separation, the primary carer of the child as the Father worked long hours and she worked shorter hours that accommodated her care of the child. The Mother asserted that post separation and the Final Orders she had continued to bear the responsibility or burden, as a working single parent, of the organisation and attendance to schooling, medical and extra-curricular activities for the child and that at times the Father did not respond to requests for information.
The Mother’s case also asserted that the communication between the parties included text messages and that this was a source of further conflict. At paragraph 40 of her Affidavit filed 15 November 2022, she pointed to five instances in 2022 of what she said were examples of the Father’s conflictual communication style.
The Mother said she had felt pressured to consent on the day to the Final Orders, but did not provide details of what the pressure was or from whom, that she had expected communication between the parents to get better but it had not, and that the Father remained angry with her about the breakdown of their relationship.
There was a distinct difference in the tone of the Mother’s evidence in her affidavit of evidence in chief compared to her evidence in cross examination. The affidavit concentrated on the problems or defects in the Father’s personality and parenting. In cross examination the Mother agreed the Father was a fine parent and that he was always available to care for the child when she needed his assistance due to the child being ill or other reason. She agreed that the Father had always accommodated her requests to vary time when needed.
The Mother asserted that the Father contributed half of some of the child’s expenses but did not pay periodic child support due to a low taxable income in his self-employment and that she was responsible for the bulk of the child’s expenses. What child support should be, given the almost equal shared care arrangement and the parties’ respective incomes, was not explored in evidence or pressed in the hearing.
I accept that the Mother does not have to prove that she has a good reason for wanting to relocate but in this case she says she does. Implicit in the Mother’s case was that her proposed change of the child’s arrangements would assist her get on with life because the Father would have less involvement in the child’s life and hence less need for the parents to communicate and this would assist her wellbeing and happiness.
Save for the general assertion that her mother would be able to provide more assistance with her proposal, how and to what extent her mother would assist her was not in evidence or explored in the case.
The Mother’s case was that she would continue in her current employment, and I infer secure employment, that involved significant travel but was centred around a facility in the Town C area.
Implicit in the Mother’s case was that the consequence of her proposal was that she would distance herself and the child from the Father, reduce the need for communication and contact with the Father, be more readily able to obtain support from her mother and hence no longer feel isolated, ostracised, unsupported and unhappy and as a consequence be a better parent.
Summary of the Father’s case and witnesses
The Father sought that I dismiss the Mother’s application and initially sought an order restraining the Mother from relocating with the child from the Town C region. He sought the continuation of an order for equal shared parental responsibility. In final address it was conceded that if the Mother’s application was not successful, as a consequence of the time the Father sought with the child and the place of the child’s school, where it was not contemplated by either parent that the Mother would move without the child or fail to follow court orders, that the effect of the orders sought by the Father was that the Mother would be compelled to live in the Town C area or at least within a practical, for the child, travel distance from the child’s existing school. Hence the injunction sought in the Father’s response was conceded to be superfluous or unnecessary and was not pressed.
The Father’s outline of case filed 14 November 2022 sought an adjournment of the final hearing listed that week so as to obtain a psychological report of the parties or at least the Mother. When the case was first called over it was indicated that the Father’s counsel would press that application. The context to the application was the dispute as to the nature of the Father’s post separation behaviour and its impact on the mother and also the observations of the family report. The family report interviews took place on 29 September 2022 and the “private” family report was dated 6 October 2022, and I infer was released to the parties soon after. The family report opined as follows:
[59]Notwithstanding [the Mother]’s counselling in the post-separation period, she has not provided a psychological evaluation or report concerning her mental health. How much [the Father]’s alleged behaviour has impacted [the Mother]’s adjustment to the separation is difficult to determine objectively and, by its nature, is usually a subjective experience. If the matter proceeds, the Court may wish to consider a psychological or psychiatric evaluation of the parties to determine their personality functioning, mental health difficulties, and the impact of these factors on their parenting capacity.
The adjournment application was opposed by the Mother and ultimately not pressed by the Father but the psychological assessment as contemplated by the family report writer was not obtained and no such evidence was before me.
The Father’s case and evidence was that the current arrangement of the 6/8 during school term and equal school holidays was working well and should be maintained. His case was that the proposed distance between the parents and the reduction in his time would seriously compromise his relationship with the child. The Father denied being aggressive or brusque at changeovers and not being cooperative in communication.
The Father’s case included that he was available to care for the child if the Mother wished to move without the child (stated to the report writer) but there was no suggestion she would even contemplate doing so.
The Father’s case boiled down to the assertion that a 6/8 nights (6 with him and 8 with the Mother) with half school holidays in the Town C area was in the child’s best interests and that this arrangement, given the Mother would not contemplate moving without the child, would necessarily compel the Mother to live in the Town C area even though she wanted to live somewhere else. Implicit in the Father’s case was that the Mother should not feel isolated, ostracised, unsupported and unhappy and that she had long lived a happy enough life in Town C and would continue to do so. Implicit in the Father’s case was a recognition of the Mother’s excellent parenting and her likely preparedness to put the child’s welfare ahead of her own happiness.
The Father’s case was that, by and large, communication mostly worked well the parents, that the child’s strong views should be given substantial weight and that with the Mother’s proposal the child would lose the continuity and existing day-to-day intimacy between himself and the Mother.
Evidence of Mr K
The parties attended Family Report appointments with Mr K on 29 September 2022 and he prepared a report dated 6 October 2022. He was cross examined by each counsel.
His observations included the following:
Interview with [the Father]
[13][The Father]’s logic and approach to problem-solving were somewhat reductive, which was apparent when discussing the estranged relationship with his children from a previous relationship. He was unable to articulate his reasoning for not informing his children of [the child]’s existence or vice versa. There was a tendency towards denial and avoidance when confronted with issues requiring a more integrated and sophisticated emotional response. Consequently, he appears to have struggled in the post-separation period. Albeit, he described becoming more accepting in recent times.
[17][The Father] informed the writer he didn't want to separate and was willing to make changes to save the relationship. However, it became clear that [the Mother] had psychologically and emotionally left the relationship, they were sleeping in separate rooms, and she wanted him to leave the house. He was initially reluctant to move out, but his lawyer advised against staying after [the Mother] had implied a negative inference in her affidavit concerning [the child] sleeping in his bed. They entered into a 9/5 arrangement, and [the Father] resolved to put all his energies and focus into his relationship with [the child]. In November 2020, they settled on an 8/6 structure for their Final Orders.
[19]Concerning paragraph 48, [the Father] described witnessing the incident and hearing his sisters say hello to [the Mother]. Further, his sisters met with [the Mother] for coffee after she complained about a lack of respect. [The Father] notes his sisters had told [the Mother] that their relationship could not be maintained at its previous levels. However, they offered continued support and help for [the Mother] with [the child].
…
[21]Concerning paragraph 58, [the Father] acknowledged that [the child] sleeps in his bed. Her bedroom is on the opposite side of the house, and she frequently complains of feeling anxious and scared at night. [The Father] notes that [the child] co-slept with the parties during the marriage and continues to co-sleep with [the Mother] in the post-separation period.
[22]Concerning paragraphs 60, 61 and 62, [the Father] described a friendship with the maternal uncle, who had indicated he was aware of the circumstances precipitating the end of the marriage. He acknowledged confiding with the parents of [the child]'s school friend about the relationship breakdown. However, the parent in question then disclosed the information to the other parents at school. [The Father] explained it was never his intention to undermine [the Mother] or for the details to become public. In general, [the Father] described [the child]'s [Town C] school community as close-knit. There is significant gossip between the children's mothers at school drop-offs and pickups, and people have formed their own opinions.
[23]Notwithstanding the allegations, [the Father] notes that [the Mother] has a large circle of friends in the [Town C] area, where she has resided for approximately 20 years. [The Father] informed the writer he has experienced similar ignoring and rejection by [the Mother]'s friends and acquaintances when he has come across them in the community. However, he believes that [the Mother]'s expectations that family and friends should behave as if nothing has changed are unrealistic and naive. [The Father] deposes that he has generally kept his communication with [the Mother] on a civil and businesslike footing.
[24][The Father] explained that, more recently, he felt he was recovering from the shock and dislocation of the separation. He has begun to feel more optimistic about his circumstances, particularly his increased parenting role with [the child]. In this context, [the Father] gave a detailed overview of the deep and enduring relationships that [the child] has with extended family, friends, and sporting and community affiliations in the [Town C] area that are intrinsically connected to him and his family.
[25][The Father] is categorically opposed to [the Mother]'s proposal for relocation. He believes that [the child] will be significantly psychologically and emotionally disadvantaged by the proposed reduction in their time together and the removal from her extended family, friendships and community.
Interview with [the Mother]
…
[27][The Mother] gave a similar description of the early relationship to that of [the Father]; [the Father]’s approach to the relationship was intense and passionate, it was happy and harmonious, and they were both work-focused. However, in the years prior to the birth of [the child], [the Mother] began to experience [the Father] as "possessive and obsessive", and she attempted to leave the relationship on two occasions. [The Mother] stated, "[the Father] is intense. I didn't feel the relationship was equal. I felt like I was drowning". She described [the Father] as a somewhat driven individual with fixed ideas and lacking in flexibility.
[28]By way of example, [the Father] avoided pursuing a relationship with his children from a previous relationship and refused to inform them of [the child]'s existence until 2019. He was resistant to information of difference around this and other issues. He rejected [the Mother]'s attempts to persuade him and change his mind. [The Mother] explained, “I was the one that had to tell [the child] about his kids. [The child] thinks the kids don 't want to have a relationship with her because of the way he managed it”.
…
[31][The Mother] described the relationship deteriorating throughout 2019. She had undergone [an operation] and was anxious that [the Father] would not step up to his responsibilities while she was incapacitated and in recovery. Her fears concerning [the Father]'s lack of support were confirmed by his behaviour after discharge from the hospital, and the maternal grandmother moved in to provide parenting support for [the child]. [The Mother] stated, "I just felt let down. I knew it was over; mum came up and helped''.
[32][The Mother] described the above events as the context for their deteriorating relationship. She subsequently made contact with an ex-boyfriend on social media, and they began a texting relationship after meeting at a funeral. [The Mother] expressed a deep sense of regret and embarrassment concerning the text messages, the circumstances in which the relationship ended, and the hurt it had caused [the Father].
…
[34][The Mother] believes that the 8/6 structure is counterintuitive to [the child]'s psychological and emotional needs. She is of the view that the arrangement is not representative of the primary caregiver role she continues to provide around the emotional, organisational, and practical support she gives to [the child] in the post-separation period. Further, she is concerned that [the Father]’s intense personality has led to a somewhat intrusive parenting approach. [The Mother] believes that [the Father] has become emotionally dependent on his relationship with [the child] in ameliorating his adjustment to the separation.
[35][The Mother] reiterated the allegations concerning [the Father]'s alleged post-separation undermining of her relationships with family and friends in the community. She described experiencing a general hostility from [the Father] towards her in the post-separation period. [The Mother] believes this behaviour has undermined the integrity of the shared care arrangement and is evidence of [the Father]'s poor adjustment in the post-separation period.
[36]By way of example, she described the paternal family ignoring and excluding her in public, causing [the child] to be confused and anxious. She alludes to numerous instances of [the Father] being curt or openly hostile towards her when communicating around parenting matters. Further, she alleges [the Father] has actively undermined her reputation with friends and acquaintances in the community. [The Mother] described [the Father]'s behaviour as causing her considerable distress and mental anguish. Her mental health has been significantly impacted by his alleged behaviours, which has made it difficult for her to continue living in [Town C]. [The Mother] has sought counselling to assist in managing her interactions with [the Father] but now experiences feelings of anxiety when out in the community. She is concerned about the impact of her mental health on her parenting capacity with [the child].
[37][The Mother] explained that she is seeking to relocate to [Town E] to be closer to the support of extended family in the [outer] suburbs of Melbourne. She reports feeling isolated and unsupported in her current circumstances, and her friendship group has changed significantly due to the separation. [The Mother] relies heavily on the maternal grandparents for childcare during holiday periods and when she is required to work in the Melbourne area.
..
[39][The Mother] acknowledged that [the Father] would experience a period of adjustment after relocation. However, she is of the view that [the child] is psychologically and emotionally resilient and, with the right support, will make a successful adjustment to the move. She was somewhat vague and noncommittal concerning the move's potential impact on [the Father]'s relationship with [the child].
[40][The Mother] notes that, notwithstanding the current arrangements, which have been in place since November 2020, she has been the primary caregiver to [the child]. Despite the existing structure, [the Mother] deposes that she is still the parent responsible for [the child]'s psychological and emotional support. She experiences [the Father]'s alleged hostility and aggression towards her as intolerable and a drain on her mental health. [The Mother] perceives the relocation as intrinsic to her mental health and well-being, which, in turn, impacts her parenting capacity with [the child].
...
Interview with [the child] (aged nine)
…
[42][The child] attends [X] primary school and is in grade three; she gets on well with her teacher, and her peer relationships appear stable and positive, notwithstanding she has had difficulties with one particular child this year. [The child] plays extracurricular [sports] and has been involved with [sports] in the past.
[43]The child]'s memories of family life were largely positive. She reports her mother did most of the parenting, her father worked long hours, and her parents rarely argued. She became aware of her parent's separation after reading a note she found on the kitchen table. Her father has said little about the breakup, and her mother later explained that it was about adult issues and problems.
[44]Concerning her understanding of the separation, she stated, "I spoke with mum about the separation. She is the one I can talk to more easily. It's easier to talk about my feelings with mum". [the child] notes that she still relies on her mother for emotional support and the practical day-to-day care and organisation of her life. By way of example, her mother is still responsible for liaising with the school, her medical needs, doctor's appointments, and the organisational requirements around her extracurricular and social activities.
[45]Concerning her relationship with [the Father], [the child] reports that she often worries about hurting her father's feelings. [The child] explained, "Dad's feelings get hurt more easily. Mum is better at looking after her own emotions. I can kinda read dad's emotions. I can tell when he 's angry or sad''. [The child] perceived her father as the parent most impacted by the separation and noted that [the Father] had been angry with her mother about the "split up".
[46][The child] explained, "It was hard early on. It felt weird going to dads in the beginning. It felt more like home at mum's; it's not so bad now". [The child] indicated that her father had been significantly unhappy during the post-separation period and stated, "I've seen dad unhappy a lot. I feel like I need to make him happy by spending time with him and playing with him. Mum doesn't make me feel like I have to make her happy. I think dad is still angry with mum".
[47]However, [the child] indicated that her sense of stability in the relationship with her mother had been impacted by the relocation proposal. [The child] explained, "I feel stuck in the middle. Mum is always talking about moving; it upsets me a lot. I will miss my friends, my dad, and the house we live in". [The child] began crying and appeared distressed and upset after expressing her opposition to the relocation. She could see no positive outcomes from the move and was adamant in her opposition to the relocation. [The child] informed the writer that her mother talks about the move to [Town E] frequently, and she feels constantly upset by the prospect. [The child] stated, "I don't want to move; the moving thing is on my mind all the time. I've told mum I don't want to move".
Observations of the Parties with [the child]
..
[49]The observations of the parties with [the child] were unremarkable. [The child] moved between her parents without any sign of anxiety or apprehension and was relaxed and at ease in their care. Both parties were sensitive to [the child]’s fatigue and potential triangulation in the dispute.
EVALUATION
[50][The Mother]'s proposal to relocate to [Town E] is predicated on her lived experience in [Town C] in the post-separation period and the need to be closer to family support. She reports feeling pressured into the current arrangement, which she believes does not reflect the parenting input of the parties during the relationship. [The Mother] described the communication and cooperation between the parties as poor. She is of the view the current shared care arrangement is not in [the child]'s best interest. [The Mother] alleges that [the Father] has undermined her standing in the community and that he has behaved in a hostile and aggressive manner towards her. She perceives herself as having been left with fewer supports and social resources due to his behaviour, and her mental health has deteriorated correspondingly.
[51]In the alternative, [the Father] acknowledges struggling to adjust in the early days of the separation, but not to the extent described by [the Mother]. He categorically denies the allegations of undermining and aggressive behaviour toward [the Mother]. He is of the view that [the Mother] has developed unrealistic expectations concerning her relationship with his family and friends. He has significantly increased his parenting input with [the child] in the post-separation period. He believes she will be psychologically and emotionally harmed by a diminution in their relationship and her removal from extended family, friends, and social networks.
The Post-Separation Relationship and Arrangements
[52]Parental adjustment to separation is similar to the paradigm of grief and loss. The parties transition through a series of stages that are non-linear, usually uneven, and do not mirror each other's experiences. In most cases, the party that leaves the relationship has mentally prepared for and rehearsed the emotional upheaval that the separation precipitates. The adjustment process is well underway before the physical separation occurs.
[53]The party left lags behind in the process, and the various stages of disorientation, grief, denial, anger, resignation, and later acceptance; occur out of sync with the other party's adjustment. This differential in adjustment often accounts for the early friction, anger, and high expressed emotion commonly associated with the post-separation period. The process can be impacted by the individual's personality structure, mental health difficulties, or other external variables outside their control.
[54]Prima facie, [the Father] displays a somewhat rigid and reductive approach to problem-solving, particularly around issues concerning emotional, interpersonal and psychological aspects of his relationships. His early responses to the separation have been terse, blaming and lacking insight into his role in the relationship breakdown. He has struggled to manage his emotions and sought solace and support through personal disclosures to others concerning [the Mother]'s behaviour. He displayed little insight into the impact of this behaviour on [the Mother]'s relationships in the community and her interpersonal functioning.
[55]By his own account, [the Father] has struggled with his adjustment to the separation. He is perceived by [the child] as the parent most vulnerable and angry about the breakdown of the marriage. [The child]'s narrative suggests a porous boundary between father and child, and her focus on his happiness and mood is a somewhat inappropriate burden for a child of this age.
[56]While the above issues do not reach the clinical levels of a maladaptive adjustment or family violence dynamic, they do call into question the appropriateness of the current arrangement. The 8/6 structure, to all intents and purposes, is a shared care arrangement, and the writer holds some concern about [the Father]'s capacity to communicate and cooperate effectively in this context.
[57]The research and literature on shared care describe the prerequisite conditions for optimal outcomes with this type of arrangement as; a high level of constructive communication and problem-solving, alignment of parenting values, and the ability of both parties to keep their disputes encapsulated. The goal is to provide a relatively seamless transition between households that enables the child to engage in their social, school and community relationships, uninterrupted and in the absence of parental conflict.
[58]The conditions described above have not been apparent in the post-separation context to date. In the event that the Court does not permit the relocation, it is the writer's view that a 9/5 arrangement would more accurately reflect [the child]'s primary attachment relationship with her mother, more clearly define the parenting roles, and be a more intuitive fit with her psychological and emotional needs at this current juncture in the post-separation period. However, a shared care arrangement should not be ruled out in the future if the post-separation context settles.
[The Mother]’s Mental Health Difficulties
[59]Notwithstanding [the Mother]'s counselling in the post-separation period, she has not provided a psychological evaluation or report concerning her mental health. How much [the Father]'s alleged behaviour has impacted [the Mother]'s adjustment to the separation is difficult to determine objectively and, by its nature, is usually a subjective experience. If the matter proceeds, the Court may wish to consider a psychological or psychiatric evaluation of the parties to determine their personality functioning, mental health difficulties, and the impact of these factors on their parenting capacity.
The Impact of the Relocation on [the Father’s] Relationship with [the child]
[60]The Father]'s belief that the relocation will significantly diminish his relationship with [the child] and that [the child] will be psychologically and emotionally disadvantaged is somewhat borne out in the research and literature in this area. Children in this cohort tend to do worse on a variety of psychosocial measures into adulthood than children whose parents stay closely located after separation. Depression, anxiety, and poorer educational and physical health outcomes are identified in the meta-analytical studies of children in this category.
[61]Under [the Mother]'s proposal, [the Father]'s access to [the child]'s social, educational, and recreational lives would be significantly diminished from its current levels. He would lose the continuity and day-to-day intimacy with the child he currently enjoys. The subsequent reduction in his contact and proximity to [the child] would increase his risk of becoming peripheral in her life. Her friendships, social and sporting connections would inevitably become centred on the [Town E] area and her mother's life in general.
Resilience Factors to Relocation
[62]Resilience factors to the diminution of the relationship with the non-moving parent are identified as; the child's developmental stage at the time of relocation, the level of attachment formation to the non-moving parent, commitment of the moving parent to maintaining the relationship, and the frequency and duration of the time spent with the non-moving parent after relocation.
[The child]’s Development Age and Stage
[63][The child] is at an age and stage of cognitive development that enables her to maintain a construct of the relationship with her father over space and time. This capacity can be further enhanced by telephone, FaceTime and regular midweek contact.
Attachment Formation to the Parties
[64]The interviews and observations reveal that [the child] has a secure attachment with both parties. She was able to move between them without any sign of anxiety or apprehension and was relaxed and at ease in the company of both parents. [The child]'s attachment profile with [the Father] would act as a protective factor in ameliorating the potential negative impacts of a reduction in his time.
[65]The history of the relationship identifies [the Mother] as the primary attachment figure for [the child]. This relationship would provide a psychological and emotional scaffold around [the child]’s adjustment to the relocation. Given [the child]'s attachment profile with her parents, it is unlikely that her resistance to the move would be maintained at its current levels when she was settled and established in her new environment.
Commitment of the Moving Parent to Maintaining [the child]’s Relationships
[66][The Father] has enjoyed substantial time with [the child] from the outset of the separation. There is nothing in the interviews or affidavit material to suggest that [the Mother] has engaged in restrictive gatekeeping practices. She has supported [the Father]'s relationship with [the child] in the post-separation period. Her motivations for moving appear to be existential in nature concerning a change in her friendships, a sense of alienation in the [Town C] area, and closer proximity to extended family supports.
The Frequency and Duration of the Time Spent with the Non-Moving Parent
[67]The research and literature show that children do better on various emotional and psychological measures into adulthood, where they have successfully maintained a secure and nurturing relationship with both parents. Substantial time is usually required if both parents are to maintain and develop their relationships with the child. This is more likely to occur when parents stay closely located after separation.
[68]Notwithstanding the extra holiday time offered by [the Mother], her proposal represents a significant reduction in time and proximity for [the Father]. Given that the travel time from [Town C] to [Town E] is approximately one hour and 30 minutes (in light traffic) extending [the Father]'s weekend time to the commencement of school on Monday would be feasible. The fatigue issue for [the child] would be minor, given it would only occur once a fortnight. Further, mid-week catch-up time could be considered given [the Father]'s work flexibility.
[69]In conclusion, the relocation of children is amongst the most difficult and complex issues addressed in the family law context. The dilemmas go beyond the usual family law parameters and encompass existential matters concerning freedom of movement and the right of the parties to exercise autonomy over their lives. Only the Court has the forensic capacity and mandate to address the full range of issues in their entirety. The analysis and recommendations in this report seek to provide a psychological framework for the Court's decision-making around the parties' proposals which is reflected in the dual recommendations below.
RECOMMENDATIONS
The writer respectfully recommends the following:
1.In the Event the Court Rejects the Relocation:
a)The parties have equal shared parental responsibility.
b)[The child] to live with [the Mother].
c)[The Father] to spend time with [the child] each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, and each alternate Wednesday from the conclusion of school until the commencement of school on Friday. [a 3+2 or 5/9 arrangement]
d)[The Father] to spend holiday time with [the child] for half of all school holidays with the long summer break taken on a week-about basis.
e)The terms and conditions of the Orders dated 13 November 2020 to otherwise remain in full force and effect.
2.In the Event the Court Permits the Relocation:
a)The parties have equal shared parental responsibility.
b)[The child] to live with [the Mother].
c)[The Father] to spend time with [the child] each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, and each Wednesday, in [Town E], from the conclusion of school until 7.30 pm.
d)[The Father] to spend holiday time with [the child] as follows:
i. In terms one and three, for two consecutive weeks.
ii. In term two, for seven consecutive nights.
iii. In the long summer break, on a week about basis.
e)The Orders from 13 November 2020 to otherwise remain in full force and effect.
…
Neither party pressed for the 5/9 arrangement in the Town C area but they conceded it was open to me to impose that on them if I found that was in the child’s best interests.
The most important aspect of a family report is the expert observations about the child, the child/parent relationship and the parties’ personalities. The convention is that as well as providing that evidence the report writer makes “recommendations” based upon his or her observations. The report writer did not opine as to the ultimate question.
In cross examination the report writer asserted that the Father’s attitude of anger or resentment of the Mother ending the relationship and the manner how that came about was not chronic or maladaptive and within the, to social scientists, normal or usual process of those feeling resolving within a 2 to 5 year time frame. In cross examination the report writer also described the interaction between the Mother and the child of the frequent discussion of the “move” that distressed the child as “porous”. The porous nature of the Father’s relationship with the child was of concern to the report writer, and I infer so was the porous nature of that aspect of the Mother’s relationship, but to a lesser degree.
The report writer was provided with most of the tendered bundles of selected text message communication over 2020, 2021 and 2022. I am satisfied that those bundles are reasonably representative of the parties’ communication. The bundles demonstrate that the parties can get terse or snippy with each other and each has the capacity to criticise the other. The style of the Father’s communication about the child’s viewing the Mother’s “dating app” communications is poor, critical, abrupt and terse. The Mother’s style of communication when discussing the child and the Father viewing her “friend’s” public Facebook communication is terse and blaming. Each parent permits the child to have access to his or her mobile phone. The Mother was not aware of the child accessing her “dating apps” until the Father raised it. The Father’s evidence of telling the child she must not access the Mother’s private communications on her phone was compelling and unchallenged. The Father’s evidence was that his communication could and should improve.
The Mother had informed the Father of her view of needing to get the child flu vaccinated and he had raised a legitimate matter for discussion about that. He then waited for the Mother to raise it with him or to investigate that issue. The Mother sent the Father a link to relevant information. Eleven days after initially raising it the Mother again sought the Father’s input telling him she could have the child vaccinated on the morrow, not that she would. The Father did not further respond and the Mother went ahead and had the child vaccinated. The Father saw this as “unilateral” decision making and somehow contending against the benefits of the Mother’s proposal.
I do not regard it so. The Mother consulted the Father. The Father respected the Mother’s views and assumed she would take his views seriously. She did. She made a decision about a routine child hood medical matter. Ultimately the Father’s objection was that he was not able to be present. This is an example of substantial, but not perfect, communication between parents: but of a nature that many not separated busy parents might have.
By and large the text message show civil and cooperative communication about a range of matters between parents who respect each other’s role in the day to day minutia of the child’s life.
The report writer, having been provided with the bulk (but not all) of the three years of selected text messages after the release of the report and shortly before being cross examined, was struck (in cross examination) by the discordance between the description of communication in the Mother’s affidavit (and I infer adopted by her in interview with the report writer) and that shown in the tendered bundles of messages over a three year period. The report writer described the nature of them as remarkably and surprisingly “civil” when compared to the general impression of the Mother’s affidavit assertions and saw different styles of communication with what the Mother described as at times unresponsive being the Father avoiding conflict as the report writer saw was his nature. Prior to hearing this from the report writer I was similarly struck by the disparity. Both parties can, when offended or perceiving criticism from the other, respond in an unnecessarily terse and critical manner.
Being more informed from reliable source documents about the nature of the parties’ communication did not change the report writer’s recommendations or observations.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118, a High Court case concerning the skid marks of a Kombi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
In Adamson & Adamson [2014] FLC93-622 the Full Court approved some significant observations about the utility of credit findings in parenting cases. In this case, neither party pressed that I find the other was lying or disingenuous but each by inference suggested that the other either exaggerating or minimising certain aspects of the case, and in particular the alleged aggression and briskness of the Father of contact and communication with the Father. The Full Court observed as follows:
[87]First, we question the nature of the credit findings and, more importantly, the need for many, if not all, of them to have been made in the first place.
[88]This case involved, as his Honour found, competing co-parenting arrangements where it was effectively conceded by the father that the child would continue to live with her mother. Equally crucial, the proposals for the time that the child should have with her father were not significantly disparate.
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
165.As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
166.To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
167.Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
168.These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of D and K and adverse credit findings in this decision carry the inherent risk that, rather than bringing an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future.
169.Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
Standard of proof
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Although conducted in a civil and efficient manner the nature of proceedings are of the utmost importance to the future of the parents and the welfare of the child and the allegations against the Father are not trivial although not of the nature the raises allegations of risk of harm to the child.
The suggestion of a question mark over the Mother’s preparedness to support the child’s relationship with the Father is a serious question of real consequence to the child.
APPLICABLE LAW
I start with the legislative provisions. I apply and take into account the whole of Part VII of the Act. I take into account the objects of Part VII and apply section 60B, sections 60CA-60CC(3), 61DA, 65DAC and take into account the obligations of section 65DAC. Those provisions are as follows:
Section 60B Objects of Part and principles underlying it
60B(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.
60B(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).
60B(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
60B(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(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).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
…
Section 61DA Presumption of equal shared parental responsibility when making parenting orders.
(1)When making a parenting order in relation to a child, 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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
…
Section 65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Applying the legislation
The Full Court has set out guidance as to the application of the legislation recited above.
The parties addressed the Court in terms of whether the Mother would be “permitted” to move. When counsel did so I understood this to be mere shorthand for describing the case as it was experienced by the parents but that counsel was addressing the substance of the respective cases and compared and advocated the respective proposals of the parties.
The High Court’s observations in AMS v AIF (1999) 199 CLR 160 (AMS v AIF) were in 1999 and those in U & U (2002) FLC 93-112 (U & U) were in 2002 and were in the different legislative setting of the Act as it was prior to the 2006 amendments (Act 46 of 2006). Act 46 of 2006 significantly amended Part VII of the Act and it is unnecessary to recite those amendments and those since. But the amendments included that section 68F (the list of matters that must be considered in determining a child’s best interests) was replaced by the wider section 60CC. The objects and underlying principles Part VII of the Act are now different to what they were in 1999 or 2002.
Prior to Act 46 of 2006 coming into force section 60B provided:
SECTION 60B OBJECT OF PART AND PRINCIPLES UNDERLYING IT
[Object of Part]
1.The object of this part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
[Principles underlying object]
2.The principles underlying these objects are that, except when it is or would be contrary to the child’s best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether the parents are married, separated, had never married or had never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to the care, welfare and development; and
(c)parents 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.
Section 60B now provides as above.
Section 60B(4) was inserted by Act no.189 of 2011. Relevantly the Convention on the Rights of the Child includes the following provisions:
Article 3
1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
…
Article 5
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
Article 7
…
2.States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Article 9
1.States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.
2.In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3.States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
4.Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
Article 12
1.States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[Emphasis added]
In Maldera v Orbel (2014) FLC 93-602 (Maldera v Orbel), a case about people who were not parents being concerned with the welfare of children and the role of section 60B, the Full Court’s observations included the following:
[73]Applying Wacando, in S v Australian Crime Commission (2005) 144 FCR 431 at [22] Mansfield J said “[s]uch a [objects] clause cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear”. And, in Minister for Urban Affairs & Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at page 78, Cole JA said that “… whilst regard may be had to an objects clause to resolve uncertainty or unambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power”.
…
[75]Section 60B has been significantly amended including by the Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) which inserted at the commencement of s 60B the words “The objects of this Part are to ensure that the best interests of children are met by…” These words do no more than reinforce the relationship between s 60B and s 60CC and put beyond doubt that in relation to how a court determines what is in a particular child’s best interests, the facultative provisions are ss 60CA and 60CC and (where it applies) s 65AA. These words do not operate so as to elevate the role of s 60B beyond that envisaged by Wacando. The same must be said about the court’s ability to take into account “any other fact or circumstance” that the court thinks is relevant (s 60CC(3)(m)). Thus, in its current form, s 60B does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operate as an aid to construction of the Part and the Act. It follows that we do not agree that the current s 60B can be used to change the ordinary and clear meaning of s 60CC or that where the s 60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, s 60B may be decisive.
76]The fact that at least one of the s 60B objects (s 60B(1)(b)) is replicated in s 60CC (s 60CC(2)(b)) reinforces the point that only one is facultative.
[77]Our interpretation is consistent with the manner in which subsequent to the 2006 amendments, seminal authorities such as Goode v Goode (2006) FLC 9 3-286 and Aldridge v Keaton have approached Part VII. The point being that the legislative pathway for the determination of applications for parenting orders is, as described in [82] of Goode, that the Court:
•considers the matters in s 60CC that are relevant;
•decides whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies, does not apply or it would be inappropriate to apply the presumption;
•if the presumption does apply, decides whether it is rebutted because application of it would not be in the child’s best interests;
•if the presumption applies and is not rebutted, consider making an order that the child spend equal time with the parents unless as a result of the application of s 60CC it is contrary to the child’s best interests, or impracticable;
•if equal time is found not to be in the child’s best interests, consider making an order that the child spend substantial and significant time with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
•if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders that are in the best interests of the child, as a result of consideration of s 60CC;
•if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
•even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064 Kent J discussed the role of the objects and underlying principles in the Act. After acknowledging the statements of the Full Court in Maldera v Orbel, his Honour made the following observations (citations omitted);
[109]The objects expressed in s 60B(1)(a) and (b) each find obvious reflection in the two “primary considerations” expressed in s 60CC(2) as follows:
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
[110] Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:
15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
…
[112]It follows that s 15AA (and equivalent provisions in State legislation) do not permit a Court to ignore the actual words of a statute and a court is bound to give effect to clear language in a statute even if in the Court’s opinion the result might be anomalous or unfair.
[113]In this context there is ample authority for the general principle that courts are not at liberty to consider any word or sentence in legislation as superfluous or insignificant. Prima facie, all words in a statute must be given some meaning and effect.
[114]That principle has been held to be more compelling if the words or phrases used in the legislation have been added by amendment. In this respect it is instructive that within the amendments referred to (for example compare s 60B(2)(a) with (b)) there is a plain distinction even within the section between “parents” on the one hand, and “other people” on the other.
In McCall & Clark (2009) 41 Fam LR 463, (2009) FLC 93-405 (McCall), a case where a parent wished to relocate, the Full Court’s observations included:
[54]Also as discussed in Goode, the amending Act introduced changes to the objects provision (s 60B(1) and the principles underpinning the objects (s 60B(2)). The objects and principles in s 60B “provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case” (see Goode at paragraph 10). Section 60B(1)(a) is in the following terms:
(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; … [our emphasis]
…
[108]We think it logical to examine the second major issue raised in this appeal by commencing our discussion with our consideration of s 60B and s 60CC(2)(a). Sections 60B(1)(a), s 60B(2)(a) and (b) and s 60CC(2)(a) provide respectively:
Section 60B
(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;
…
Section 60B(2)
(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);
…
Section 60CC(2)
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; … [our emphasis]
…
[109]The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child's life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
[110]It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
[111]The Macquarie Dictionary defines the adjective “meaningful” as “full of meaning, significant. Significant is defined as “important; of consequence”
[112]The Shorter Oxford English Dictionary defines “meaningful” as “Full of meaning or expression; significant …” “Significant” is defined as “Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential …”
[113]We turn first to the objects clause (s 60B(1)). The purpose of an objects clause is “to indicate the intended purpose of the legislation” (Pearce, D C & Geddes, R S, Statutory Interpretation in Australia, 6th ed, Lexis Nexis, Australia, 2006) The learned authors further note at 4.42… “objects clauses are used as an aid to the construction of words of legislation. Gleeson CJ referred to the legislative declarations of the objects of an Act as giving practical content to abstract terms such as ‘reasonable’, ‘justification’ and ‘satisfactory’ in Russo v Aiello (2003) 215 CLR 643 at 645”.
[114]Section 15AA of the Acts Interpretation Act 1901 (Cth) provides for a purposive construction of a statute.
[115]The phrase “meaningful relationship” in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski and Albright (2007) 37 Fam LR 518 Brown J, after setting out the definition of “meaningful” and “meaning”, said at paragraph 26:
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.
[116]Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey and Sanders (2007) FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J's exposition in M and S (formerly E) (2007) FLC ¶93-313 of the effect of the amending Act and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child's best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child's parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later at paragraph 36 said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[117]Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
…
[119]We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
…
[121]In coming to our conclusions we accept as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[Emphasis added]
As can be observed the Full Court in McCall twice emphasised the part of section 60B referring to ‘meaningful involvement’ but did not emphasise or discuss the phrase ‘to the maximum extent consistent with the best interests of the child’. As explained by the authorities relied upon by Kent J those words must also be taken into account. But they do not govern section 60CC.
In Wagstaff & Wagstaff (2022) FLC 94-098 (Wagstaff), the majority observations included:
[19]As another example, the principle of legality “requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law” (Momcilovic v The Queen (2011) 245 CLR 1 per French CJ at [43]).
[20] The law is not limited to the express words of the statute.
[21] In relation to the present issue Kirby J explained it in AMS v AIF:
193.Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada. It more closely conforms to the language of the Convention on the Rights of the Child. Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.
(Footnotes omitted)
In this case I have endeavoured to apply those principles.
It is uncontested that the child has a close and loving relationship with both parents but that as a consequence of the parties’ different roles, pre separation the Mother was the “primary carer” and that circumstance continues to influence the child’s relationships.
Section 60CC
I turn now to the section 60CC considerations. The parties agree that there is a real benefit to the child of having a meaningful relationship with both of the child's parents. Notwithstanding the concern at the “porous” aspects of child’s relationships, neither party nor the report writer suggested that there was any need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The child’s views, and the significant maturity of the child for a 9 year old, are important and are as recited in the passages extracted above from the family report. I give those views considerable weight because of how that informs me about the immediate importance to the child and the quality of the child’s relationships with her parents. I am cautious to give weight to the child’s views merely because they exist. It may appear to be child-focussed to have the child’s views front and centre but care must be taken to ensure that when seeking and considering those views the burden and responsibility for the parental decisions does not end up on the child. Despite the communications between the parents and the child discussed above I find that the parents have not placed that burden on the child. I also take into account the child’s age and stage of development described in cross examination by the report writer.
I refer to and repeat and take into account the observations of the report writer about nature of the relationship of the child with each of the child's parents. I also take into account the nature of the child’s relationships with other less important, but still significant, persons. The child is well integrated into her school and sporting communities and also connected to the Father’s extended family. Those persons are important to her. The report writer described her as “a Town C girl”. In infer that the child has an appropriate relationship with her maternal grandmother.
Both parents have taken every opportunity to participate in making decisions about major long-term issues in relation to the child to spend time with the child and to communicate with the child. This is so notwithstanding the allegation of the Father has at times failed to reply to significant text messages.
The Mother’s affidavit had an implied criticism of the Father not paying periodic child support but paying half of the child’s expenses. I am unable to make a finding that such circumstance and the 6/8 and half school holidays arrangement is contrary to the ordinary operation of the applicable child support legislation. The matter was not pressed in address or cross examination. Hence I find that each parent supports the child appropriately when the child is with him or her and that the child's parents has fulfilled his or her obligations to maintain the child.
The major issue in the case is the likely effect of any changes in the child's circumstances, including the likely effect of the different proposals of the parents. I do not regard the Mother’s proposal as a separation of the child from a parent. But it is a significant reduction in the ability of the child to spent time with the Father and be involved with the day to day intimate interactions of the child and parent inherent in the now 1½ year old 6/8 school term arrangement.
I refer to and repeat the family report writer’s observations about this change, its impact on the child but also the likelihood that the child’s distress at spending less time with her father and existing connections will settled over time.
I must consider the effect of this proposed change as commanded by section 60CC(3)(d) but as guided by the authorities I must not, in so doing, place on the Mother an onus to justify the proposed move and fail to consider her freedom of movement or the significance of the Mother not being able to live where she wants to. I endeavour to follow that command and the guidelines.
I find that this is a very significant matter. I also consider, but in a general and not determinative way, the evidence of the report writer as to the social science of the meta studies referred to in the passages cited above. In cross examination the report writer advised that the research was from 2008 (well after the 2006 amendments and well after the oft applied observations of the High Court as to freedom of movement of the, usually female, custodial parent) and had thrown up unexpected conclusions. He also said the conclusions and the nature of the research were so very broad and undifferentiated from family to family that only a little weight could be placed on it. I do not ignore, but place only a little weight on, the report writer’s opinions about this research.
I must consider the practical difficulty and expense of a child spending time 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. It is common ground that the child will be distressed if the Mother’s proposal is put into place. But on the Mother’s proposal the child will spent time with her Father each week, two nights, over three days each alternate weekend and time for a meal having been picked up from school each Wednesday. In addition it is likely the Father will continue to phone or text the child daily.
As of the 9 December 2022 the Mother will not have her home but will have about $600,000 (less legal fees of about $50,000) instead. That there would be an impact of the recent floods on the availability of accommodation in Town C was not contested. But the Mother conceded in cross examination that she would, given the approach of the summer holidays where the child lives and will live week about, be able to temporarily stay with her mother and likely find accommodation in the Town C area if she has to. The Mother is a mature and competent person who will with the resources she has marshalled find accommodation in either Town E or Town C as she needs to. In either case she will be able to continue in her current employment.
The report writer observed that the alternate weekends could be from school to school, Friday to Monday. The parents, at least at this stage, agree that the school to school proposal is not practical and the case proceeded on the common ground position that if the Mother’s broad proposal was accepted the alternate weekend could because of the practicality of the travel involved and this particular child, only be Friday evening to Sunday evening. That is a substantial change to the time that the child has enjoyed but, to a modest extent on the Mother’s proposal, the child would actually maintain personal relations and direct contact with the Father and have very substantial personal relations and direct contact with the Mother. On the Father’s proposal the child would maintain personal relations and direct contact with both parents to a very substantial degree. It is preferable, all other things being neutral, that there be a substantial degree of personal relations and direct contact by the child with both her parents.
Implicit in the respective applications for equal shared parental responsibility and the school holiday proposals of each parent is an acknowledgement that the capacity of each of the child's parents to provide for the needs of the child, including her emotional and intellectual needs is at least adequate or is good enough. The extent to which each parent, and the Father more so than the Mother, have aspects of a “porous” emotional connection or relationship with the child is a significant restriction or hindrance to optimally promoting the child’s emotional and intellectual needs. The report observed, and it was my observation of the parties in the witness box, that the Mother is more emotionally and psychologically sophisticated than the Father. Each parent would do well to contemplate the extent to which they involve the child in adult issues.
Notwithstanding that observation each parent is devoted to the child and has much to give the child in different ways. I consider that each parent has an adequate capacity to provide for the needs of the child.
The child is mature for a nine year old. Her lifestyle and background in of a child very embedded in the school and sporting life of a regional city and is very much to the child’s advantage and in her best interests. That lifestyle and background will be able to be substantially replicated on the Mother’s proposal save that the child will have to remake those connections anew in a different community and without the day to day support of both parents.
Both parents are devoted to the child, and to the responsibilities of parenthood, and have demonstrated that to each other, to the child and to the court. That devotion is very much to the child’s benefit. One of the responsibilities of parenthood is the how the other parent’s relationship with the child is promoted. The Father does not contemplate reducing the Mother’s time or day to day involvement with the child. The Mother contemplates and seeks a substantial reduction in the Father’s time with the child but because of what, to her, are good reasons. The Mother’s position (she does not need to demonstrate or prove “good” reason) is not a whim but, to her, a thought through proposal.
No family violence issue involving the child or a member of the child's family was pressed in the case, notwithstanding the Mother says, and the Father denies, she experiences the Father’s style of communication as aggressive. Having regard to the largely civil but not perfect text message communication I do not find that there has been or will be family violence between these parties. Despite at times personal irritation with the others personality each parent fundamentally respects the other’s role as a parent notwithstanding the Mother sees her role as significantly more important than the Father’s. I do not find that is so. Each parent’s different role in this child’s life are very important to the child and should remain important to her.
Both parties seek a “final” not an interim order, and despite their recent experience both find it preferable for orders that would be least likely to lead to the institution of further proceedings in relation to the child. With this consideration in mind I have considered (after raising it with the parties), if the Mother’s proposal better advances the best interests of the child, whether the Father should have the option of a some stage, given he would be doing the travel, of moving to a school to school, Friday to Monday, weekend if the Mother had sufficient notice. On reflection I am concerned at the potential for dispute between the parties as to when the circumstances of the child and the parents would make this practical or “doable”. The parents agree it is not at this time, and I infer the foreseeable future, not practical or in the child’s interests.
I must consider any other fact or circumstance that is relevant. At this point and throughout all the section 60CC factors, I consider the seriousness and impact of orders that, in the circumstances, will compel the Mother to live where she doesn’t want to. This will impact on her happiness and likely impact on the child. However I am not satisfied, on the evidence, that if the Mother’s proposal is not accepted that her mental health will be compromised. The evidence is that the Mother is an emotionally and intellectually sophisticated professional woman and this is in part demonstrated by her employment but also her demeanour in the witness box. There is no evidence of a history or current circumstance of any vulnerability of her mental health. The likely unhappiness of the Mother if compelled by the effect of the orders to live where she doesn’t want to is a matter of considerable importance.
However, there is no evidence that the Mother would not, as parents do, for the sake of the child, just get on with life. But the Mother’s unhappiness will also impact of the parental relationship and hence on the child.
If the Mother’s proposal is accepted the Father and separately the child, at least initially, will be profoundly unhappy. The Father’s unhappiness at the child living a distance from where he wants her to live and the resultant reduction in the time with her and the involvement in her day to day life is on the evidence, inevitable. Because the Mother has long ago moved on from the grief of the breakdown of the relationship and the Father is still, on the evidence of the report writer, working through that, I find that the Father will be profoundly unhappy for a considerable time if I accept the Mother’s proposal. That profound unhappiness will impact on the Father’s parenting of the child and on the parental relationship for at least a long time.
If the Mother’s proposal is accepted the child will be profoundly unhappy, at least for a time, and the nature of her relationship with her Father will change and be a less strong and involved and supportive one. I accept the report writer’s evidence that the child is likely to settle and that a relationship with her Father will continue, but it will be of a different quality. Section 60CC does not command that an optimal relationship be pursued or maintained, but that a meaningful one be considered. Nor does it command that the inquiry is which orders will most likely maintain a beneficial relationship. But the current nature of the child’s relationships with each of her parents and the effect of a change or reduction of that relationship must be considered.
The Final Orders indicate what arrangements the parties then advanced as in the child’s best interests. The Mother’s desire to live somewhere else is a material change that permits the child’s arrangements to be considered afresh (see Searson & Searson (2017) FLC 93-788). The history of the child’s significant time with each parent since separation and the nature of her close relationship with each parent demonstrate that, floods notwithstanding, a 6/8 arrangement during school term is workable and has been very much in the child’s best interests.
The fundamental disadvantage of the Father’s proposal is that it compels one parent to live where she doesn’t want to. The Mother’s concern at gossip in the school community is not trifling. But I do not find on the evidence that all of the school community has, or will continue to, think poorly of the Mother as a result of the Father’s unguarded but careless “blabbing” in response to a busy body that he hardly knew. Many will not be interested or care at all. Some may think poorly of the gossiper or of the Father. Both parties, but the Mother more so, are embarrassed by their perception of the gossip. A community of school or sporting parents is usually an important part of life when children are in primary school. But the school is of a substantial size (usually 4 prep grades) and a large cohort of the parents will have suffered the slings and arrows of separation.
That the Father could or should also move to Town E was not explored and on the Mother’s case would destroy or at least water down or reduce the benefit to her of her proposal, that is less contact and involvement with the Father and a new community without him. I am not satisfied that the Mother’s proposal would achieve less contact with the Father. The current changeovers are largely school to school. The Mother’s proposal has parent to parent changeovers. The advantage of the Father’s proposal include that the known and workable arrangements would continue to promote and protect the child’s relationships with each of her parents and also, but less importantly, promote her established and important connections with her school and sporting community.
The fundamental disadvantage for the child of the Mother’s proposal is the child’s significant distress and more importantly the matters described above at [61] of the family report. It is not only the Father that would lose that continuity and day to day intimacy currently enjoyed, the child will also.
I also have considered whether the Father’s time should be reduced to a 5/9 from the 6/8 as recommended by the report writer. I acknowledge his views. Neither parent sought that change although it was conceded that such a change was open to me. I place some weight on the substantial process the parties went through to get the Final Orders of 2020 that included appearances at court and a family report. I am not prepared to go behind the orders on the evidence I have. The parties carefully ended up with those orders. By and large they have worked notwithstanding parental communication and the protection of the child from adult issues has not been optimal. I am not satisfied that the Mother’s description of the parties’ interaction or communication is, objectively, as generally described by her.
I do not need to consider the presumption of section 61DA because the parties seek an order for equal shared parental responsibility and hence I find that the parties regard themselves as being able to comply with the joint consultative provisions of section 65DAC. As a result I must then consider section 65DAA(1) and then (2). I must not only consider equal time and then substantial and significant time but consider that seriously and not merely in passing.
Neither parent seeks equal time although the orders that each seek provide for roughly equal school holiday time which is a substantial part of the child’s life. The orders the Father seeks are close to, but not for, equal time. In the circumstances where the parties have previously not made an order for equal time but made final orders and where neither party seeks an order for equal time I will not further consider equal time or whether it is practical.
I must however consider substantial and significant time and consider it seriously. The Mother’s proposal includes days that fall on weekends and holidays and occasions but not days that do not fall on weekends or holidays. The Mother’s proposal does not allow the Father to be involved in the child’s daily routine. The orders the Father proposes are substantial and significant time and importantly allow both parents to be involved in the child’s daily routine. I refer to and repeat the report writer’s observations about the importance of the intimacy of involvement in the day-to-day routine, and I accept those observations.
I must consider the child spending substantial and significant time with each of the child’s parents if it is reasonably practicable. It is not reasonably practicable if the Mother lives in Town E. It is reasonably practicable, as the parties have demonstrated over the last two years, for substantial and significant time to occur if both parents live in the Town C area.
I have considered whether the recent floods mean that it is not reasonably practicable for the Mother to live in the Town C area and hence it is not reasonably practicable for substantial and significant time. Notwithstanding the impact of those floods I am satisfied in all the circumstances that the Mother will be able to find suitable accommodation. I am satisfied that it is reasonably practicable for the child spend substantial and significant time with each parent and I find so after considering all the matters at section 65DAA(5) and also considering the fact that the Mother’s strong preference is not to live in the Town C area but to live somewhere else. The Mother will continue in the same employment whether the Father’s proposal is accepted or whether the Mother’s proposal is accepted.
I do not find that substantial and significant time is contrary to the child’s best interests after considering all of the matters described under section 60CC as set out above.
Having considered all of the evidence and the parties’ demeanour when being cross examined, I find that the Father’s proposal is in the child’s best interests. I find that the Mother’s proposal is contrary to the child’s best interests in all the circumstances. I do so taking account of the importance and seriousness of each parent usually having the freedom to choose where he or she lives. In this case on all of the evidence and for the reasons set out above I find that the interference with that right (that the effect of the orders the Father seeks necessarily imposes) is in the child’s best interests.
In the circumstances of both parents and the Mother in particular needing to make important decisions in the immediate future I have chosen to deliver these reasons two days after the conclusion of the hearing rather than after a longer period of reflection and time in writing reasons. Accordingly, these reasons may lack some felicity and clarity of expression but I have endeavoured take into account all of the evidence, the parties’ cases and the applicable law. Accordingly I will make afresh the previous orders.
I express my gratitude to the solicitors and counsel involved for the mature and efficient yet robust advancement of their respective clients cases.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 24 November 2022
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