Lemberg and Lemberg
[2009] FMCAfam 174
•6 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEMBERG & LEMBERG | [2009] FMCAfam 174 |
| FAMILY LAW – Parenting orders – where mother wishes to relocate from Tasmania to Western Australia. |
| Family Law Act 1975, ss.60CC(3), 60CC(2), 60CC, 65DAA(2), 65DAA(1), 61DA, 60CA |
| Taylor & Baker [2007] FAMCA 1246 Bolitho & Cohen (2005) FLC 93-224 Claringbold & James [2007] FAMCA 1032 D & T [2007] FAMCA 1383 Garvey & Eccles [2008] FMCAfam 1218 P & P [2006] FMCAfam 518 A & A: Relocation Approach [2000] FAMCA 751 U & U (2002) 211 CLR 238 |
| Applicant: | MR LEMBERG |
| Respondent: | MS LEMBERG |
| File Number: | HBC 312 of 2008 |
| Judgment of: | Baker FM |
| Hearing dates: | 11, 12 & 13 February, 4 March 2009 |
| Date of Last Submission: | 4 March 2009 |
| Delivered at: | Hobart |
| Delivered on: | 6 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Smith |
| Solicitors for the Applicant: | PWB Lawyers |
| Counsel for the Respondent: | Mr Dixon SC |
| Solicitors for the Respondent: | Wallace Wilkinson & Webster |
ORDERS
All prior parenting orders are discharged.
That the parents are to have equal shared parental responsibility for the child [X] born in 2007 (“the child”).
The child is to live with the mother.
The mother be permitted to relocate with the child to Perth, Western Australia.
The child is to spend time with the father in Western Australia as follows:
(a)For seven consecutive days per month from 8.00am until 5.00pm for nine months of each calendar year.
(b)In 2009 on Christmas Day from 12.00noon until 6.00pm Christmas Day;
(c)In 2011 from 3.00pm on Christmas Day until 6.00pm Boxing Day and in each alternate year thereafter;
(d)For a minimum of four hours on the child’s birthday and on Father’s Day if those special days should coincide with the child living with the mother;
(e)After the expiration of 12 months the time in order 5(a) shall include overnight time and during that period the mother shall be entitled to see the child for at least two hours every second day or at other times to be agreed between the parties;
(f)Such further time as agreed.
That the child spend time with the father in Tasmania as follows:
(a)For seven consecutive days per month from 8.00am until 5.00pm to be taken in no more than three separate months of each calendar year and not in the same months as order 5 (a) above;
(b)Commencing in 2010 from 6.00pm on Christmas Eve until 3.00pm on Christmas Day and in each alternate year thereafter in Tasmania.
(c)Such further time as agreed.
In 2009 for the time referred to in order 5(a), the father spend time with the child in Western Australia in April, May, July, August, September, November, December 2009.
In 2009 for the time referred to in order 6(a), the father spend time with the child in Tasmania in June and October 2009.
That in the event that the father travels to Perth the mother shall facilitate the father spending further time with [X].
From 2010 until the child attends full time school:
(a)the father shall travel 9 months per annum for the time referred to in order 5(a):
(b)the mother shall travel 3 months per annum at 4 month intervals or such other times as may be agreed for the time referred to order 6(a).
That for the purposes of the father spending time with the child in Western Australia pursuant to order 5, the father will book and pay for his return airfares upon providing the mother with at least four weeks notice of the proposed dates of travel.
That for the purposes of the father spending time with the child in Tasmania pursuant to order 6, the mother will book and pay for the return airfares for both herself and the child and provide the father with at least four weeks notice of the proposed dates and times of travel in writing.
The child live with the mother at all other times, including as follows:
(a)In 2009 from Christmas Eve at 6.00pm until 12noon Christmas Day in Perth, Western Australia;
(b)Commencing in 2010 from 3.00pm Christmas Day until 12noon Boxing Day and in each alternate year thereafter, in Tasmania;
(c)Commencing in 2011 from 6.00pm Christmas Eve until 3.00pm Christmas Day and in each alternate year thereafter in Western Australia;
(d)For a minimum of four hours on the child’s birthday and on Mother’s Day if those special occasions should coincide with the father’s time with the child.
The father have liberal communication with the child by telephone and/or webcam (as may be available).
The mother keep the father informed in relation to the child’s health, welfare and development whilst the child is in the mother’s care.
The father keep the mother informed in relation to the child’s health, welfare and development whilst the child is in the father’s care.
The parties shall attend family dispute resolution prior to the child commencing full time school.
IT IS NOTED that publication of this judgment under the pseudonym Lemberg & Lemberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 312 of 2008
| MR LEMBERG |
Applicant
And
| MS LEMBERG |
Respondent
REASONS FOR JUDGMENT
These are proceedings between the parties for parenting orders.
The issue is the application of the wife to relocate, with the child [X] born in 2002, to live in Western Australia.
Background
The mother Ms Lemberg, born in 1975 is 33 years of age. The father Mr Lemberg, born in1969 is 40 years of age.
The parties were both born in Perth, Western Australia and grew up there. They met in the United Kingdom in 1998 and then again when they were in Perth for about 4 months in 1999. The father moved to Hobart in 1999 and the mother also moved to Hobart later in 1999, to pursue the relationship.
The parties commenced cohabitation in early 2000 and married in March 2005. They purchased the matrimonial home at [P] in 2003.
Both parties are [medical professionals]. In 2006 they became partners of the [N] practice, where they both worked.
The parties have one daughter, [X] born in 2007. Since [X]’s birth, the mother has continued in her role as a business partner but has not had face-to-face client work since [X]’s birth.
The parties separated in early March 2008 and they continued to live in Tasmania following their separation. On 11 March 2008, the mother took [X] to Perth without the consent of the father. They stayed in Perth for one week and then returned to Hobart.
The mother and [X] moved into a bed and breakfast accommodation at [C], where she remained until 9 June 2008. She then moved to stay with her friends Ms and Mr B in Hobart. In September 2008 she moved to stay with her friends Ms and Mr R.
On 1 April 2008 the husband filed a parenting application seeking final and interim orders.
On 28 April 2008 interim orders were made in the Family Court of Australia. The orders provide that each parent have equal shared parental responsibility for [X], that she live with the mother and spend time with the father between 2.30pm and 5.00pm each Monday, Wednesday, Thursday and Friday and between 1.00pm and 4.00pm each Sunday. An order was made permitting the mother to travel with [X] to Western Australia every 6 weeks for a period of 7 days.
The father continued to reside in the former matrimonial home at [P] and reduced his hours of work so that he could spend time with [X], in accordance with the orders.
The father’s proposal
The father proposes that [X] remain in Hobart and sets out the times he wants to spend with her for periods of 5 hours each day apart from Tuesday, such time increasing on a gradual basis to overnight time, up until when [X] commences full time school. He will agree for the mother to take [X] to Perth for 7 days every 6 weeks. In the event that the Court allows the mother to relocate with [X], he proposes that he spend time with her in Perth each alternate week on Friday and Saturday between 12noon and 6.00pm and for 7 consecutive days in each 4 week cycle with the location alternating between Perth and Hobart. This is to continue for a period of 6 months and after the expiration of 6 months, the time will increase to include overnight time. When I asked the father’s counsel for clarification about the father’s proposal for alternate week time with [X] in Perth he indicated that this proposal would be a burden for the father and suggested it could be included as an option for the father.
The mother’s proposal
The mother seeks to relocate to Perth, Western Australia with [X]. If the father were to relocate to Perth, she proposes that [X] spend regular and frequent time with him. If the father does not relocate, she proposes that she travel to Tasmania with [X] once every three months for one week, so that [X] can spend time with her father. She also proposes that the father travel to Perth once per month for nine months each year to spend one week from 8.00am until 5.00pm each day with [X]. The mother proposes that the father spend such further time with [X] in either Western Australia or Tasmania as may be agreed between the parties. After a period of 12 months she proposes that the father’s overnight time with [X] commence.
Evidence
The father relied on the following:
·His amended application for final orders filed during the hearing,
·his affidavits filed 1 April 2008, 5 May 2008 and 18 December 2008,
·affidavit of Ms D filed 5 December 2008,
·affidavit of Mr S filed 5 December 2008,
·affidavit of Mr K filed 9 December 2008; and
·affidavit of Mr L filed 22 December 2008.
The father was cross-examined by Counsel for the mother however none of the father’s other witnesses were required for cross-examination.
The mother relied on the following:
·Her amended response filed 11 August 2008,
·her affidavits filed 23 April 2008 and filed 3 December 2008,
·affidavit of Ms C filed 23 April 2008,
·affidavit of Ms R filed 3 December 2008;
·affidavit of Ms N filed 4 December 2008,
·affidavit of Ms U filed 4 December 2008,
·affidavit of Ms D filed 4 December 2008,
·affidavit of Mr O filed 5 December 2008; and
·affidavit of Ms K filed 19 December 2008,
The mother and two of her witnesses, Ms K and Ms D were
cross-examined. The other witnesses were not required for cross-examination.
At the end of the hearing, the mother’s Counsel handed up a set of proposed orders sought by the mother.
The family report dated 16 July 2008 was prepared by a Family Consultant, Ms Yvonne Malakoff. She is a psychologist, employed by the Court. She made the following recommendations: -
1. It is recommended that [X] relocate to Western Australia with her mother.
2. It is recommended that [X] spend time with her father on a frequent and regular basis if he is also residing in Perth.
3. If Mr Lemberg remains living in Tasmania it is recommended that:
·Mr Lemberg travel to Perth once a month for up to a week and that he spend time with his daughter each day that he is there.
·Ms Lemberg travel to Tasmania with [X] every four months (with Mr Lemberg not travelling that month) for one week and that Mr Lemberg spend time with his daughter each day that she is in Tasmania.
·It is recommended that [X] communicate with her father by phone and electronic means as much as practicable given her young age.
·It is not possible to recommend when overnight time for [X] with her father would be appropriate, particularly as it is not known whether the current frequent time for [X] with her father will continue. The assessment indicated that the parents will be child focused in relation to the length of time that [X] can spend away from her mother.
Ms Malakoff was cross-examined by Counsel for both parties. At the end of the cross-examination her recommendations and opinions remained as outlined in her report.
The Current Circumstances of the Parties
The Father
At the time of the hearing the father was living at the former matrimonial home in [P], which is a 45 minute drive away from Hobart. The arrangements that have been in place from April 2008 mean that [X] spends time with the father each Monday, Wednesday, Thursday and Friday between 2.30pm and 5.00pm and Sunday between 1.00pm and 4.00pm. The father has been spending time with [X] at the former matrimonial home in [P].
The father and mother are partners in[the N Practice]. The other partners of [the N Practice] are Mr K and Ms K. Since separation, the father has continued to work in the business, altering his work hours to fit around the time he spends with [X].
Both parties are directors of [Lemberg] Pty Ltd. The father retains 31.5% of the company distributions to cover superannuation, GST and other tax liabilities. The company profit is split equally between the parties. The father pays child support of $93.83 per month to the mother.
The father gave evidence that the company profit for the last financial year was $280,000.
The father’s brother, Mr L, resides in Hobart with his partner. He has 7 children with his former wife. The father’s mother and sister reside in Perth.
The father’s evidence was that he intends to remain living in Tasmania and to continue to be a partner in [the N Practice]. He said that his income in Perth as a locum or employed [omitted] would not match the income he receives from the partnership and he would not have the same flexibility that he has now to spend time with [X]. He wants [X] to remain in Hobart so that she has the benefit of having two parents being able to look after her. He said that [X] has the benefit of her Uncle [Mr L], and his partner and the support of her cousins and the father’s friends in Hobart. If [X] remained in Hobart, the father would support regular trips of the mother back to Perth with [X] and would be prepared to forgo his time with her during those periods.
Mr K, one of the partners of [the N Practice], gave evidence on behalf of the father and indicated that if the mother remains in Hobart he and his wife would be willing to consider working with her as a partner of the business or an employee. Their ability to offer the work as an employee is dependent on them renewing contracts with [C] Hospital.
The Mother
The mother currently lives with friends. After separating from the father she moved into bed and breakfast accommodation. In June 2008 she moved to live with friends in Hobart. Since moving from Hobart, she has transported [X] to [P] to enable her to spend time with the father at the former matrimonial home. The time of travel is approximately 50 minutes each way but it can take up to an hour if the traffic is heavy. The mother waits in the area until the father’s time with [X] has finished.
The mother pays for [X]’s nappies, food, medical bills, private health insurance and accommodation costs of $100.00 per week for board. The mother has been and is financially assisted by her family. She receives $93.83 child support per month from the father.
The mother has some health problems. She has Coeliac Disease, which is an intolerance to gluten. The mother has been breastfeeding [X] and wishes to continue breastfeeding so that [X] is protected as much as possible from the chance of getting Coeliac Disease. The mother also has been diagnosed with Raynauds disease, which causes restriction of the arteries leading to the fingers and toes and is more severe in colder conditions.
The mother’s sister, Ms T, who is 29 years of age, is seriously ill with cancer of the small intestine as a result of undiagnosed Coeliac Disease. She has also been diagnosed with ovarian cancer and in August 2008 she suffered a relapse of ovarian cancer. Her prognosis is not good and she is on her third round of radiotherapy. Recently, she has undergone a biopsy and ultrasound as a result of a lump being discovered in her breast.
The mother has experienced a severe loss of weight of over
7 kilograms since separation. In October 2008, she was diagnosed with chicken pox. She has been consulting a psychologist in Perth.
Since the interim orders were made in April 2008, the mother has been travelling to Perth with [X] every 6 weeks for a period of 7 days.
The mother’s extended family, including her parents, her twin sister
Ms C and her husband and children and her sister Ms T, all reside in Perth. The father’s mother and sister also reside in Perth and have spent time with [X] when the mother is in Perth.
The mother gave evidence that if she moves to Perth she will have accommodation. Her twin sister Ms C, and her husband will provide her with a comfortable three bedroom home for $200.00 per week. The house is close to her sister’s residence and a primary school. The mother intends to return to work as a [omitted] on a gradual part-time basis.
The evidence of Ms N was that there are opportunities in Perth for [profession omitted] in the public sector and there are flexible work place options available, such as work on a part-time basis.
The evidence of Mr O was that there is a shortage of [profession omitted] in Perth in the private sector.
The mother gave evidence that there are two universities in Perth which have [profession omitted] students. She believed that there is work available from March 2009 and that she would be able to obtain work of two to three hour blocks. There are also jobs available for community [profession omitted] in locations around the metropolitan area of Perth. There are two major teaching hospitals within 15 minutes by the train from where she will be living. If she works approximately 6 to 9 hours per week she will earn approximately $590.00 gross. She indicated that she has looked at opportunities in Hobart and has contacted [S] Hospital but there are no work options of two to three hour blocks. She has looked for part-time work but found nothing suitable.
Relevant Law
This is a parenting case.
Section 60CA of the Family Law Act 1975 provides:
“In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration”.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The court is also required to consider s.61DA which provides the presumption, that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if not in the best interests of the child. If the presumption of equal shared parental responsibility applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable or failing such an order being made, whether it is in the child’s best interests and is reasonably practicable to spend substantial and significant time with each of the parties.
This application raises a potential relocation of residence for the child [X] from Tasmanian to Western Australia. In Morgan & Miles[1] Boland J, sitting as the Full Court, considered the relevant principles applicable to relocation cases, prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Her Honour referred to cases including AMS v AIF[2], A & A: Relocation Approach,[3] U v U[4] and Bolitho & Cohen[5]. Her Honour then referred to the legislative framework introduced by the amending Act and concluded:
[1] [2007]famCA 1230
[2] [1999] CLR
[3] [2000]FAMCA 751
[4] (2002) 211 CLR 238
[5] (2005)FLC 93-224
“It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
-that a parent wishing to move does not need to demonstrate ‘compelling’ reasons;
-that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement”,
remain valid.
-What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s.60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes (sic) a requirement that matters under s.60CC or s.65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s.60CC factors, and then applying those findings to a consideration of the criteria of s.65DAA to craft appropriate orders.” [6]
[6] paragraphs 80 and 81
The Full Court in Taylor & Barker[7] referred to the same logical approach which should be followed in relocation cases and decided that s.60CC should be considered first, followed by s.61DA and s.65DAA and stated:
“…it would seem only logical that the Court make findings regarding the matters contained in those sub-sections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.”
[7] [2007] FAMCA1246
The Full Court further stated:
“the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate and discrete issue, but rather as just one of the proposals of the child’s future living arrangements, in so far as that approach is possible”[8]
[8] at paragraph 53
The court is not confined to a choice between the proposals of the parties, as the best interests of the child may not be best served by these proposals. A trial judge is entitled to look beyond the proposals of the parties in making an order, if open on the evidence.[9]
[9] Bolitho & Cohen [2005]FLC 93-224 at paras 83-85
The primary considerations cannot be considered without reference to the additional considerations. Bennett J, has said:
“I interpret s.60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parents and [the child] by reference to additional considerations. It is a prospective enquiry. I am therefore required to evaluate the extent which a meaningful or significant relationship with both of A’s parents is going to be beneficial and of advantage to [the child] into the future.[10]
[10] Claringbold & James [2007]FAMCA 1032 at 226
In accordance with the logical approach referred to in Morgan & Miles and Taylor & Barker[11], I shall firstly consider matters set out in sub-section 60CC(2) being the primary considerations and the additional considerations in s.60CC(3).
Section 60CC(2)
Section 60CC(2) provides
[11] at paragraph 62
“The primary considerations are:
(a) the benefit of the child having a meaningful relationship with both of the child’s parents;
(b) the need to protect the child from physical of psychological hard from being subjected to, or exposed to, abuse, neglect, or family violence.”
Section 60CC(2)(a) provides that it is a primary consideration for the children to have the benefit of a meaningful relationship with their parents. Pursuant to section 60B(1)(a), the Court is required to ensure that the best interests of the children are met by ensuring that the children have the benefit of their parents having meaningful involvement in their lives. Following what Cronin J said in D & T[12], there seems to be no difference between a meaningful involvement and a meaningful relationship.[13] I am required to consider whether the proposals of the parties enable [X] to have the benefit of a meaningful relationship with both parents.
[12] [2007] FAMCA 1383
[13] D & T at para 164
Cronin J went on to say:
“In a case such as this, it is therefore important to examine not so much whether the relationship will change but rather whether the proposals will enable the children to have a significant, purposeful and constructive benefit from their association with their father. Will he still be able to influence and direct their development? Will he be able to show them how to live responsibly? Will he still be able to teach them things that we all expect of parents? Will the children be able to look up to and admire him as the person from whom they should seek both solace and guidance?
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child…[14]”
[14] [2007] FAMCA 1383 at 169-172
Counsel for the father relied on the decision of Garvey & Eccles[15] and referred to paragraphs 35 and 36 where Altobelli FM distinguished the facts of Godfrey v Sanders, in which Kay J found that any post relocation diminution of relationship was not, on those facts, significant. Altobelli FM commented:
“I very much doubt if his Honour meant his comments to apply generally. The children in the case were 11 and 7. But if the children were very much younger, for example, relocation might have caused a greater diminution in the quality of the relationship between them and the non relocating parent…”
[15] [2008] FMCAfam1218
Altobelli FM also raised doubts as to use of virtual visitation such as webcam and email as enabling a parent and child to have a meaningful post-relocation relationship. At paragraphs 100, 102, 104 and 105, Altobelli FM distinguished the decision of Dessau J in M & S, where the children were 8 years of age and who had already had quite extensive experience of electronic communication. Altobelli FM referred to a passage from P & P[16], which Counsel for the father relied on as follows:
“the practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered ‘meaningful’ in the context of a parenting order, is provided by s.65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows a parent to be involved in the child’s daily routine and occasions of particular significance both to parent and child”.
[16] [2006]FMCAfam518 at p. 257 and 258
Altobelli FM stated after considering a number of decisions:
“Having regard to all of these authorities it is clear to me that the concept of meaningful relationship, and indeed meaningful involvement, the term used in s.60B(1)(a) is primarily qualitative but its meaning and application in a particular case is influenced by quantitative factors. Each case will be determined by reference to its specific facts.”
I should therefore examine whether the proposals of the parties enable [X] to have the benefit of a meaningful relationship with both parents. In the words of Cronin J, will [X] be able to have a significant, purposeful and constructive benefit from her association with her parents?[17]
[17] para 169
The father’s case is that [X] cannot have a meaningful relationship with both her parents if the mother relocates to Perth with her and the father remains in Hobart. His case is that social science research indicates, that given [X]’s age, she would have difficulty developing and maintaining healthy attachments to either parent should she not see them on a regular and frequent basis.
Counsel for the father, during cross-examination of Ms Malakoff, referred to an article by Tom Altobelli “Rethinking Contact Arrangements Involving Young Children”[18]. The article refers to a series of articles published in the United States and outlines the debate about different theories of attachment. Counsel for the father referred to research done by Kelly and Lamb, two of the authors, and their view that infants form attachment bonds with both parents, which is contrary to views of other authors that infants form a single relationship before all others.
[18] [2004] 19 AJFL 29
The learned author attempted to identify common ground between the different authors:
“All the authors accept that attachment to parents is a critical factor in child development and decision making about parenting, even if there is no single interpretation of attachment theory that is universally adopted by child development experts. It is common ground that time spent interacting is not the only factor in development of attachments. Moreover, they agree that father-child and mother-child interaction are independent. The collective view of these authors is that high levels of parental conflict coupled with low levels of parental communication predicate against overnight contact. Furthermore neither view suggests that attachment theory should be applied quite irrespective of the needs of the particular family system in question” [19]
[19] para 4
In answer to Counsel for the father’s question, whether she is aware of attachment theory, Ms Malakoff answered by stating:
“Research in respect of attachment in relation to [X] is meaningless, as she is young and has been in the primary care of her mother since birth and her single one attachment is with her mother and that is her reality now. That may change as she becomes older depending on the amount and quality of her time spent with her father”[20]
[20] oral evidence of Ms Malakoff
Ms Malakoff said that if [X] moves to Perth it will be more difficult for the father and [X] to form a strong attachment. The father’s time with [X] will change and it will take more effort by both parents to ensure that [X] has the opportunity to develop a secure, meaningful relationship with her father. Ms Malakoff was of the view that the mother will do everything she can to ensure [X] maintains some connection with her father, to talk to her about her father and to show her pictures. She was of the view that the mother will take [X] to see the father’s relatives in Perth, so that she would be accustomed to them and their environment. This would mean that when the father travels to Perth to see [X], it could happen in a familiar environment and in a way that would easier for her to cope with.
Ms Malakoff was of the view that if efforts were made over time, perhaps not as early as it might occur if the parents were living in the same state, [X] could build a good relationship with her father. [21]
[21] oral evidence of Ms Malakoff
I accept Ms Malakoff’s opinion as to [X]’s attachment with her mother and her opinion that her mother will make every effort to ensure that [X]’s relationship with her father continues to develop, if she moves to Perth.
I am of the view that [X] has a meaningful relationship with both the father and mother. [X] knows and recognises her father and has spent regular and frequent time with him in a qualitative way since separation. The father described in detail the activities they do together which confirms this [22]. He is a committed and loving father.
[22] father’s trial affidavit para 76-85
I am satisfied that the proposals of each party will enable [X] to have the benefit of a meaningful relationship with each of her parents. Whilst a relocation to Perth will not enable the father to spend time with [X] each day of the week apart from Tuesdays, he will be spending seven consecutive days each month with her from 8.00am until 5.00pm and increasing to overnight time after six or twelve months.
If [X] moves to Perth, I am of the view that the father will remain involved in [X]’s life and their relationship will be worthwhile and advantageous to [X][23]. Virtual visitation alone will not enable [X] to continue to have a meaningful relationship with her father. For [X] to benefit from a meaningful relationship with both parents, the effort by them needs to be undertaken in the way suggested by Ms Malakoff.
I have no doubt that both parents will make this effort.
[23] per Cronin J in D & T at 169-172
The optimal situation for [X] is for both parents to relocate to Perth. This proposal was raised by Ms Malakoff and by the mother. The father said in his affidavit and during cross-examination that he preferred to remain in Hobart and had no intention to move to Perth.
The benefits of [X] having a meaningful relationship with her parents are to be weighed up with all the section 60CC(3) considerations to ascertain what is in [X]’s best interests.
Section 60CC(3) – additional considerations
Relevant Considerations
Section 60CC(3)(a)
[X] is too young to express any views.
Section 60CC(3)(b)
The mother has been the primary carer of [X] since her birth and has been breastfeeding her since her birth. She has not been apart from her for more than several hours at a time. She is [X]’s primary attachment figure. The father agreed during cross-examination that the mother was an excellent and caring mother during the marriage however, he did not have direct evidence since then. Whilst he was not prepared to be positive about the mother’s role, Ms Malakoff said that the father“… foresees that Ms Lemberg will continue to be [X]’s primary carer, particularly in her early years.”
It is clear from the evidence that she is a devoted, loving and caring mother and has a close and loving relationship with [X].
In contrast to the father, the mother was very positive about the father’s relationship with [X]. She said:
“[X] has a very close relationship with her father…[X] loves her father and is clearly happy to visit him…it is my observation and belief that both [X] and [Mr Lemberg] have a great relationship…”[24]
[24] paras 222 and 227 – mother’s trial affidavit
There is no doubt that both parents have a close and loving relationship with [X].
The mother described [X]’s relationship with her sister Ms C, Ms C’s children, her parents, grandparents and the father’s mother. [X] spends time with them whilst in Perth. The father described [X]’s relationship with his brother Mr L and his family. [X] is fortunate to have a large extended family with whom she can develop relationships.
Section 60CC(3)(c)
The father claimed that the mother has failed to facilitate and encourage a close and continuing relationship between [X] and himself since separation.
The father made numerous complaints about the mother and criticised her ability to communicate directly with him on matters concerning [X], her inflexibility in respect of arrangements for [X]’s time with him and her apparent lack of interest in involving him or keeping him informed of [X]’s health or activities.
The father, when cross-examined, was unwilling to be positive about the mother’s role as [X]’s mother since separation. When asked what he was concerned about, he said that he has had concerns about the appearance of [X]. The only example he gave about his concerns was when [X] had a nasty rash on her leg. His concern was that the mother did not tell him about the rash on the handover, notwithstanding that she had sent him an email about it later that day and was taking her to the doctor the following day.
The father said:
“up until very recently, Ms Lemberg has never provided me information as to [X]’s health, medical appointments and development. Initially she did indicate that she had been to medical practitioners about breastfeeding but when questioned by my sister in correspondence she was reluctant to provide details of who that medical practitioner was. I have not obtained any information from Ms Lemberg on these issues unless I specifically request, and then, my requests are often ignored.”[25]
[25] at para 91 of the father’s affidavit
The 48 emails, sent by the mother to the father between 28 April 2008 and 16 January 2009[26] indicate that the father’s assertion that “until very recently, Ms Lemberg has never provided me with information as to [X]’s health, medical appointments and development”, was incorrect.
[26] exhibit ‘1’
Two emails sent by the mother to him about [X]’s nine month health check were shown to the father. He agreed he had received them, but he complained that there was limited information in them about [X]. He was not satisfied that he was given her height and weight and wanted more information.
On 15 April 2008 the mother’s solicitors wrote to the father’s solicitors indicating that the mother will consent to the father contacting the heath nurse with regard to [X] and agreeing to provide an authority if required.[27]
[27] annexure ‘K’ mothers affidavit filed 23 April 2008
The father stated that on 7 May 2008 the mother sent him an email indicating that she attended the health clinic to check [X]’s weight. He complained that he was not invited to attend that appointment with her and would have liked to have attended. He made this complaint, notwithstanding that he took [X] to the health clinic in October 2008 without informing the mother beforehand and giving the mother a different reason for wanting to spend time with [X].
The father said that on 12 May 2008, he asked for information regarding [X]’s health and other matters and the mother did not respond to that email. This was incorrect, as the mother emailed him on 14 May 2008 and asked him whether he wanted to organise some mediation so that the matters could be discussed further.[28] The father admitted that he did not reply to the mother’s offer of mediation.
[28] exhibit ‘M5’
The father said that communication while [X] is away in Perth has only ever been initiated by him. A number of emails sent from the mother to the father between 22 May 2008 and 16 November 2008 indicate that the mother encouraged the father to telephone and speak to [X] or communicate by webcam. The father admitted that since May 2008 he only telephoned once and did not arrange a webcam.[29]
[29] para 96 – father trial affidavit
The father also complained that at no time since the interim orders were made has the mother offered him additional time with [X]. This was incorrect. During cross-examination, the father admitted that the mother offered him time with [X] on Tuesdays but he didn’t take up the offer as he wanted to see [X] in the morning rather than in the afternoon.
In May 2008, the mother went to Perth with [X] and asked the father whether they could stay a bit longer with her family, and offered him extra time with [X]. The father would not agree for the mother to stay one extra day until the Tuesday, notwithstanding that he does not spend time with [X] on Tuesdays. His reason for that was that the orders state that the mother can go to Perth with [X] for seven days and Tuesday was the eighth day.
Similarly, at Christmas time 2008 the mother asked to stay longer in Perth and offered the father extra time on Boxing Day from 1.00pm until 6.00pm and the following day[30]. The father refused to allow the mother to stay longer but accepted the extra time.
[30] exhibit “M8”
The father said he has doubts that the mother will promote [X]’s relationship with members of his family, notwithstanding that he agreed in cross-examination that the mother has taken [X] to see his mother in Perth and his sister has been present. He could not give any reason for his doubts.
During cross-examination the father found it difficult to make any concessions about the mother’s 7 kilograms loss of weight since separation, and the difficulties she has had since separation.
The father gave a negative impression of the mother. I do not accept his criticisms. I find that the mother is willing and able to facilitate and encourage a close and continuing relationship between the father and [X].
The mother complained about the father not acknowledging her on changeovers, but said that he has started to encourage [X] to say goodbye to her over the last month. I have no concern that the father is not willing and able to facilitate a close and continuing relationship between [X] and her mother.
Section 60CC(3)(d)
The likely beneficial effect of [X] remaining in Tasmania is that she will be able to spend regular time with her father on a frequent basis without long intervals between that time. She will also benefit from spending time with the father’s brother, Mr L and his family.
The likely adverse effect of [X] staying in Tasmania is that her primary carer’s parenting will be affected, due to her being isolated in Tasmania and without her family support. Ms Malakoff said “there is much research to support that the health and wellbeing of the parent is positively related to the quality of their parenting…” She was of the view that it is in the best interests of [X] for her primary care giver to be in “optimal health, happiness and able to cope in the best way she can…”[31] .
[31] Oral evidence of Ms Malakoff
A disadvantage for [X] staying in Tasmania is that the mother’s ability to breastfeed is negatively affected by stress. The mother had abundant breast milk supplies when in Western Australia. She suffers stress and tiredness in Tasmania.
Ms U, who is a lactation consultant, gave evidence that the importance of family support for the woman who is breastfeeding her baby abounds in the medical literature and is important both psychologically and physically. She said the “let-down” of milk from the breast is a complex neural-hormonal process which is profoundly affected by stress. She also referred to a study which reported that longer breastfeeding is associated with a reduced risk of developing Coeliac Disease.
The likely beneficial effect of [X] relocating to Perth with her mother is that the mother’s parenting capacity will be enhanced. Ms Malakoff said:
“The most effective protection for a child’s wellbeing is that they have a secure attachment to their primary caregiver and receive quality parenting from that person… Although it would be difficult to quantify to what degree, the assessment strongly supports that Ms Lemberg’s parenting would be enhanced if she were permitted to relocate with [X]”[32]
[32] para 40 – family report
Evidence was given by the mother’s treating psychologist, Ms D, about the mother’s mental health. I take into account Ms D’s evidence as to her observations of the mother and her opinion as to her prognosis.
The mother consulted Ms D in March 2008 when she was showing strong symptoms of stress and continued to consult her until October 2008. Ms D was of the view that the mother does not suffer from a psychological or psychiatric illness and has symptoms of situational depression – not endogenous. She set out in detail the factors or stressors that she observed and were described by the mother that may have an impact on her emotional health[33].
[33] para 3 – affidavit of Ms D
She described the symptoms exhibited and reported in respect of the mothers current mental health:
“During her counselling sessions with me Ms Lemberg has both exhibited and reported strong behavioural symptoms; symptoms of sadness and grief, such as tearfulness about feeling alone and isolated; expressions of frustration at being trapped in her situation and, more recently, symptoms of situational depression such as expressing feelings of hopelessness.[34]
[34] para 4 – affidavit of Ms D
Ms D’s prognosis for the mother’s mental health is that if the situation stays as it is with the mother living in Tasmania, there will be continuing deterioration of her mental health and therefore in the quality of parenting she is able to deliver.
Ms R, whose evidence was unchallenged, described her observations of the negative and concerning changes in the mother’s demeanour, amount of energy, organisational skills and weight loss since separation, compared to when she knew her during her marriage. She described the support she has provided to the mother and the mother’s dependence on her and her husband.
Since the separation, the mother wishes to be close to her family and to rely on their support. She has no family in Tasmania. I accept that the mother is genuine. Her health has deteriorated since separation. The mother’s health and wellbeing is relevant in respect of her ability to provide quality parenting for [X].
[X] will also benefit from the move to Perth by having better opportunities to form relationships with her many maternal and some paternal relatives. Her relationships with her young cousins would be beneficial for her given she is an only child.[35]
[35] para 41 – family report
The mother will also have accommodation close to her family and she will be able to obtain part-time employment in two to three hour blocks.
The disadvantage of [X] moving to Perth is that the father will not be able to spend the regular and frequent time with her that he is currently enjoying. Ms Malakoff considered that it will be more difficult for the father and [X] to form a strong attachment if she has less opportunity to spend time with him. At paragraph 38 Ms Malakoff said:
“[X] is in an important stage of attachment formation that will continue over the next two years. She is likely to form strong attachments to caregivers that are responsive to her needs who she sees frequently. After about three years, when children’s memory skills are better, they are able to maintain existing relationships with less frequent time. Children are also better able to maintain a connection with the absent parent through phone and other communication. [X] will have far less opportunity to spend time with her father during these formative years if they live in different states.”[36]
[36] family report
She also was of the opinion that it is [X]’s best interests to remain in the primary care of her mother and to spend frequent and regular short periods of time with her father. At paragraph 39 she said:
“The assessment strongly indicates that it is in [X]’s interests to remain in the primary care of her mother and to spend frequent and regular short periods of time with her father. It is the consultant’s understanding that neither parent can be ordered to live in a particular state. However, Ms Lemberg would not leave Tasmania if [X] were not able to leave with her. Thus the court can best ensure that [X] lives with her mother and is readily available to spend time with her father is if an order is made that [X] must remain here. However, there are broader and more significant considerations regarding whether such an order would be in [X]’s best interests”. [37]
[37] family report
Counsel for the father submitted that Ms Malakoff did not assess the qualitative aspect of [X]’s relationship with her father and how it would be affected if she went to Perth. I do not accept this submission.
Ms Malakoff has stated that for a child of [X]’s age, it is of benefit for her to have frequent and regular time with her father. The quality of their relationship is affected by this quantitative factor. Ms Malakoff addressed this in paragraphs 38 and 39 of her report and in her oral evidence.
Ms Malakoff was of the opinion that the optimal situation for [X] would be for both parents to live in Perth. Ms Malakoff identified as an issue in dispute the practicality of the father relocating to Perth given that he has established himself here professionally and psychologically. The father reported to Ms Malakoff that it would be a big financial burden for him to relocate and that he would not be able to re-establish himself professionally at the same level as he is now. He said that he was unsure about whether he would also move if the mother is permitted to relocate. He indicated that he foresees that the mother will continue to be [X]’s primary carer, particularly in her early years.[38]
[38] para 21 – family report
The father was asked during cross-examination whether he intends to move to Perth. His answer was that he preferred to remain in Hobart and his intention was to stay in Hobart. One of the reasons he gave for his preference to stay in Hobart was for financial reasons. He stated that, if he were an employee in Perth, he would have to work after hours with [workplace omitted] and this would limit his time with his daughter. He said that his aim is to reduce his work hours to spend more time with [X].
Section 60CC(3)(e)
This is a significant matter, due to the distance between Hobart and Perth. I accept the evidence of the father that he will not move to Perth. If the mother moves to Perth with [X], the practical difficulty of [X]’s right to maintain personal relations and direct contact with both parents on a regular basis, can be overcome by regular air travel.
The father’s income will be in the region of $280,000 per annum.
He agreed that he can afford to travel regularly to Perth. He agreed that if he travelled there once every four weeks to spend one week with [X], he would be taking off work the same amount of time as he is now to spend time with her. He stated that his work is flexible, the difficulty he has is more the disruption. He agreed that there are job opportunities for him in Perth but they are not similar to what he has in Hobart.
The mother said that she will be able to afford the cost of airfares from Western Australia to Tasmania. She does not intend to return to full time employment whilst [X] is young, however she is hopeful that she will receive a payment in respect of the current property proceedings and she will invest some of this or set aside a proportion for the purpose of paying airfares.
Section 60CC(3)(f)
Both parents have the capacity to provide for the needs of [X] including emotional and intellectual needs. Ms Malakoff stated:
“Both Mr Lemberg and Ms Lemberg are intelligent people with good self control. They are able to understand their young daughter’s developmental needs and to put aside their ill feelings towards each other to facilitate smooth changeovers and visits…”[39]
[39] para 35 – family report
Section 60CC(3)(g)
Both parents are mature and intelligent people. [X] is a happy and healthy toddler. She appears to be meeting her developmental milestones [40]
[40] para 29 – family report
Section 60CC(3)(i)
The father’s case is that the mother has shown a lack of responsibility to parenthood by unilaterally removing [X] from Tasmania between
11 March and 18 March 2008. The mother did not discuss with the father her intention to go to Perth for one week to be with her family. She left a message on his answering machine saying that she was going for a holiday in Perth. She also said she would fax return flight details to the father’s work place, which she did on 12 March 2008. The mother returned to Hobart on 18 March 2008. The parties, through their lawyers, undertook negotiations in respect of the father’s time with [X]. He commenced spending time with her on 1 April 2008 and interim orders were made on 28 April 2008.
The mother explained that she went to Perth because she was distraught about the separation and was desperate to be with her family. When she arrived at the Hobart airport on 18 March 2008 the father was there with several friends. The mother did not allow the father to cuddle [X]. The mother said that she was surprised to see the father at the airport and wished she had done things differently and regretted the way she acted.
The mother should have discussed with the father her desire to go to Perth for one week with [X] however, the parties had just separated and the mother was wanting support from her family. She returned to Tasmania at the end of the week. The mother was repentant about her behaviour at the airport, which was a single instance and I am confident she would not do this again.
Apart from when the mother was sick with chicken pox between
16 October and 6 November, the father was not prepared to assist the mother in the amount of travel she has been required to do since the interim orders were made in April, notwithstanding the effect the travel was having on the mother and her care of [X]. She travels up to
two hours per day five day’s per week.[41]
[41] para 37-46 – mother’s affidavit
The father did not consider [X]’s needs when he unilaterally locked her and the mother out of the matrimonial home on 26 March 2008. The father said:
“I have recently changed the locks at home because of
[Ms Lemberg’s] erratic behaviour as evidenced by her unilaterally removing [X] from the state of Tasmania without my consent. After changing the locks I left a note for Ms Lemberg at the home stating ‘[Ms Lemberg] if you need anything – within reason, please let me know and I will avail it to you – [Mr Lemberg].’ Further, my solicitors have reiterated this advice but have not received a response. [Ms Lemberg] has made it clear that the relationship is over and that she wants to live separately from me. I therefore see no reason why she needs to attend the home other than for changeover purposes…”[42]
[42] para 30 and 31 – fathers affidavit filed 1.04.08
The mother was prevented from having access to the home to collect [X]’s baby items. It took the father two weeks to provide the mother with the necessary baby items. It was not until June 2008 that other items of clothing were returned to the mother.[43]
[43] exhibit “M2” – email dated 5.06.08
Whilst the parties have had some difficulties since separation, I am confident that both parents have a responsible attitude to [X] and the responsibilities of parenthood.
Section 60CC(3)(l)
Whilst parenting proceedings are never final and that the father’s time with [X] will need to change in accordance with her developmental stages, I have confidence that the parties will be able to negotiate and agree to the changes in time [X] spends with the father. I will order that the parties attend dispute resolution when [X] attains an age when she can attend full time school.
Section 60CC(4) and (4)(A)
I have considered the extent to which the parents have fulfilled or failed to fulfil their parental responsibilities. I have referred to events that have happened since separation. However, I have no concerns about either parent failing to fulfil their parental responsibilities in the future and facilitating a relationship between the other party and [X].
Conclusion
Both parents are seeking an order for equal shared parental responsibility. I am of the view that it is in [X]’s best interests for such an order to be made.
As I will make an order for equal shared parental responsibility I am required by section 65DAA(1) and sections 65DAA(2) to consider whether [X] spending equal time with each of the parents is in her best interests or failing such an order being made, whether it is in [X]’s best interests to spend substantial and significant time with each parent. Significant and substantial time includes weekends, holidays and periods during the week, so that parents can be involved in events of particular significance to the child and the parents.
Having regard to all of the evidence, I am of the view that it is in [X]’s best interests to live with the mother in Perth. I am satisfied that [X] will have a “significant, purposeful and constructive relationship”[44] with each parent should she live with the mother. [X] has a close and loving relationship with both parents, however the mother is the primary carer and [X] has a single attachment with her. [X] will continue to be in the primary care of her mother and the mother will have the benefit of the support of her extended family in Perth. If the mother lives in Perth, this will best ensure quality parenting from her. The evidence indicates that her parenting capacity will be enhanced and this will promote [X]’s best interests. I am confident the mother will promote [X]’s relationship with the father and with members of his family in Perth. The mother and [X] will have suitable accommodation in Perth and the mother will be likely to obtain part-time employment to provide for [X]’s needs.
[44] per Cronin J in D & T
I am of the view that equal time for [X] with each parent would not be in her best interests. As the parents will be residing in different states it is not reasonably practicable for [X] to spend equal time with each of them.
As [X] is not of the age to have school holidays, the time the father spends with [X] arguably does not amount to substantial and significant time pursuant to section 65DAA(3). The father will be able to spend seven consecutive days with [X] each month. There is also an opportunity to spend extra time with [X] in Western Australia and Tasmania as agreed. The father sought time on each alternate weekend with [X] in Perth, but as Counsel for the father indicated, this would a burden for the father to travel every second weekend. I do not intend to make such an order. I will make an order that the mother facilitate extra time for the father with [X], if he travels to Perth. I am confident the parties will be able to negotiate further time in accordance with [X]’s developmental stage and needs.
As the father can afford the cost of travel and his work is flexible, and given [X]’s age, I am of the view that it is in [X]’s best interests that the father does the majority of the travelling. I consider that the mother’s proposal of the father travelling for nine months per annum to Perth and the mother travelling three months per annum is in [X]’s best interests.
In respect of the father’s overnight time, I am of the view that it is in [X] best interests for this to commence in 12 months time rather than in 6 months time. The mother wants to breastfeed [X] for as long as possible to try and protect [X] from developing Coeliac Disease and has indicated that she will cease night time breastfeeding in 12 months.
In respect of [X]’s birthday as well as Father’s and Mother’s Day, the parties are agreeable for each party to spend a minium of four hours on that day if [X] is with the other party.
The orders I make will be final orders. Both parties recognise that the orders will need to be reviewed when [X] attains an age when she will attend full time school and the parties will then attend dispute resolution to arrange the father’s time with [X].
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 6 March 2009
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