Lynch and Gage
[2009] FMCAfam 885
•20 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LYNCH & GAGE | [2009] FMCAfam 885 |
| FAMILY LAW – Parenting – relocation – meaningful relationship with father can be maintained if child relocates – mother’s mental health will suffer if she is not permitted to relocate with the child and this will impact on the child’s meaningful relationship with her mother. |
| Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4) |
| A and A: Relocation approach (2000) FLC 93-035 Godfrey & Sanders [2007] FamCA 102 Champness & Hanson [2009] FamCAFC 96 Marsden & Winch (No.3) [2007] FamCA 1364 |
| Applicant: | MR LYNCH |
| Respondent: | MS GAGE |
| File Number: | AYC 75 of 2009 |
| Judgment of: | Henderson FM |
| Hearing dates: | 16 & 17 July & 4 August 2009 |
| Date of Last Submission: | 4 August 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 20 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Southey |
| Solicitors for the Applicant: | Nevin Lenne & Gross |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Loretta Terrill Family Lawyer |
ORDERS
That the Mother be permitted to remove the child, [X] born in 2004, to [W] forthwith.
The parties have equal shared parental responsibility for the child.
The child live with the Mother.
The Father spend time with the child commencing the first weekend after the child moves to [W]:
(a)For two weekends out of three from 5.30pm Friday to 5.00pm Sunday or such other times as agreed, with the parents or their nominee to meet at [A] or such other venue as agreed;
(b)During each Victorian school term holiday from 12 noon the first Saturday after school ceases until 12 noon on the second Sunday; with the parents or their nominee to meet at [A] or as agreed;
(c)For the Christmas school holiday being the first period in 2009 and each alternate year thereafter and the second period in 2010 and each alternate year thereafter.
(i)
The Father’s time is to commence at 12 noon the Saturday after school ceases in odd numbered years and cease at
12 noon the second Saturday in January and;
(ii)To commence at 12 noon on the second Saturday in January in even numbered years and conclude 12 noon the Saturday before school resumes;
(iii)The parents or their nominee to meet at [A] or as agreed
(d)By agreement on the child’s birthday.
The Father to communicate with the child on no less than three occasions each week by telephone, skype or email
The Mother be at liberty to enrol the child at [S] Primary School, [W] and is to do all acts and things and sign all documents necessary such that the Father may receive copies of the child’s school reports, notices of parent teacher interviews, newsletters, gala days and any other like invitation or notice from the school and to ensure the Father is able to contact the school on any occasion and speak about the child’s progress.
The Mother is to notify the Father of the child’s general practitioner in [W] and ensure the Father can speak to any medical practitioner or specialist concerning the child and access the child’s medical records.
Both parents are to notify the other of any emergency medical treatment, surgery or ongoing medical treatment of the child other than for usual childhood ailments.
Both parents are permitted to take the child on a holiday outside the Commonwealth of Australia on the following conditions:
(a)They provide to the other parent 30 days written notice of their intention to travel;
(b)Details of their destination including contact details; and
(c)Copy of travel itinerary and return ticket.
Both parents are to do all acts and things and sign all documents necessary to obtain a passport for the child and share equally the cost of obtaining that passport.
The Father to retain the child’s passport. The Father to provide the child’s passport to the Mother three (3) weeks prior to her intended departure from Australia.
The parents agree to attend upon Mr Vincent Papaleo and/or attend parenting after separation programme or such other program as recommended by Mr Papaleo.
If the Father moves to [W] then his time with the child:
(a)for the first 12 months after his move to be from:
(i)after school Thursday to the commencement of school Monday in week one; and
(ii)after school Thursday until the commencement of school Friday in week 2.
(b)Thereafter the child to live with the Father from after school Thursday to the commencement of school Wednesday each alternate week
(c)The child to live with the Mother at all other times
IT IS NOTED that publication of this judgment under the pseudonym Lynch & Gage is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
AYC 75 of 2009
| MR LYNCH |
Applicant
And
| MS GAGE |
Respondent
REASONS FOR JUDGMENT
The matter of Lynch and Gage was heard in the Albury Registry on
16 and 17 July 2009 and was ultimately concluded by way of video link on 4 August 2009 with Counsel for the parents appearing in Melbourne and myself in Parramatta.
The issues concerned the parenting arrangements for the parties’ much loved daughter, [X], born in 2004.
The mother’s case is that she wishes to remove herself and most importantly her daughter to [W] to live where the majority of the mother’s family live. The mother wishes to commence employment with the Department of [omitted] and ultimately purchase a home for herself and her daughter in that area. The father’s extended family live in [W] and both parents were born and schooled in [W].
At present the mother resides in a friend’s home in a suburb of Melbourne and the father remains living in Melbourne in the home the parents shared during their relationship.
The parents agree [X] will commence formal education in 2010.
It is the father’s case that the mother be restrained from living with the child other than in a 30 kilometre radius of Melbourne, and that when his daughter commences formal education she live with each parent on a loosely equal time basis. Pending [X] commencing her formal education the current arrangement of [X] spending six nights with her father and eight nights with her mother is to continue.
The current arrangement came about due to orders made by me on
19 February 2009 when I ordered the mother to return the child from [W] by no later than Saturday 7 March 2009. My orders additionally provided that if the mother did not return to live in the Melbourne area, the child was to live with her father. The mother returned with the child to Melbourne.
The orders came about as a consequence of the mother’s unilateral move with [X] to [W] in late December 2008.
This is a relocation matter. The ultimate decision in this matter is made all the more difficult as [X]’s parents are each caring, loving, competent parents who parent their child to a high standard. [X] is closely attached to each of them and there is a strong and positive bond with each parent. Not only that, but the father’s partner, Ms C, is also competent and caring of [X] and [X] has a strong and comfortable relationship with her.
[X] has had the benefit of excellent parenting from all the adults in her life which is a far cry from many of the matters that come before me. Although that is to [X]’s benefit, it makes this decision particularly difficult for me. For whatever decision I make, that is, I accede to the mother request to remove the child to [W], or accede to the father’s request that the child remain living in the Melbourne area, one parent will be bitterly disappointed and hurt by the outcome.
Evidence
The evidence was as follows:
The father was the applicant and I read:
a)His Affidavits sworn on 12 June 2009;
b)Affidavit of the father’s partner, Ms C, sworn 12 June 2009.
The father tendered the following exhibits:
a)Father’s Exhibit 1: Personal Life History Questionnaire completed by the mother with her current psychologist on 3 April 2009.
b)Father’s Exhibit 2: Letter from the Department of [omitted] dated 9 December 2008. This letter confirmed the mother’s offer of employment on 9 December 2008 with the Department of [omitted] based at [W] for a fixed term of six months.
c)Father’s Exhibit 3: Facsimile dated 3 July 2009 from [C] Kindergarten regarding [X]’s enrolment at [C] Kindergarten in [W]. The purpose of this tender was to show that the mother enrolled the child in the name of Gage-Lynch which is not her surname. The mother abandoned her request to hyphenate the child’s name at the hearing. The father’s name had been placed as the third name on the list of people to be contacted in an emergency and the mother wrote on the form:
[X] lives in [W] with Mum, Dad in Melb – every 2nd weekend.
d)Father’s Exhibit 4: Bundle of Documents showing who had delivered and collected the child from her prior day care [T] Child Care before the mother’s unilateral move.
e)Father’s Exhibit 5: Mother’s emails to father dated 8 December 2008 and 10 December 2008 sent prior to her unilateral move to [W].
f)Father’s Exhibit 6: Letter the mother wrote to the father undated but after or just before the mother’s removal of the child to [W], setting out the mother’s new proposal for parenting arrangements.
g)Father’s Exhibit 7: Father’s Minute of Order.
For the mother I read:
a)Her Affidavit filed 19 February 2009, 13 July 2009 and 16 July 2009;
b)Affidavit of her mother, Ms G, filed 16 July 2009; and
c)Affidavit of the mother’s current psychologist, Ms B filed 16 July 2009.
The mother tendered the following exhibits:
a)Mother’s Exhibit 1: The Parenting Plan the parties entered into in June 2007. [X] was unable to manage being separated from her mother under the terms of the plan. The parents agreed that [X] should be returned to her mother one night earlier than the plan provided for. It is fairly clear to me that had the mother not removed the child to [W] and sought that as permanent arrangement, the parents would never have come to court. The parents have been able to work out arrangements for their child satisfactorily up to date.
b)Mother’s Exhibit 2: Letter from Department of [omitted] undated received by the Wife’s lawyer on 3 August 2009 setting out the flexibility of the mother’s working arrangement, namely:
Flexible working hours provide the opportunity for ordinary hours of work (an average of 76 hours (excluding meal breaks) to be worked over an average of 10 days per fortnight) to be organised to best meet the employer’s work requirements and the employee’s personal circumstances. In Ms Gage’s case, she works 68.4 hours per fortnight, over 10 days.
c)Mother’s Exhibit 3: The mother’s Work Roster. This is to be read in conjunction with Mother’s Exhibit 2. The mother will work a nine day fortnight and will work from home to make up extra time during the week when she collects [X] from school. The mother contends that working in [W] enables her to deliver and collect the child to and from day care and from next year school and attend her at lunch time if needed. The mother will be able to collect the child at lunch time form crèche on two afternoons a week and take her to kindergarten which is part of preparing [X] for big school in 2010. I am satisfied after hearing the evidence and from this exhibit that the mother has flexible work arrangements in [W] which will enable to her to carry out these important parenting duties as well as providing financially for herself and her daughter.
The Family Report prepared by Ms Meredith Deane, Family Consultant at Albury, dated 26 June 2009, was marked Court Exhibit 1.
All parties and their witnesses were examined and cross examined including the mother’s psychologist who was examined via the telephone.
Suffice to say, this being a relocation case, one of my first obligations is to set out the competing proposals of each of the parties: see A and A: Relocation approach (2000) FLC 93-035.
I must then consider all the evidence and assess those competing proposals having regard to the relevant matters under section 60CC (2), (3) and (4) of the Family Law Act1975 (“the Act”) to come to a decision that I regard is one in the child’s best interests.
At the outset there is nothing contended for other than that the parents should have equal shared parental responsibility for the child. That order will be made by consent.
By consent the parents agree to attend a parenting orders program, or Mr Vince Papaleo psychologist, to further improve their communication and thus their parenting.
It is important that I consider the present living conditions of each of the parents and then set out as I see it the competing proposals.
Chronology
The father is 41, the mother is 39.
The parties commenced cohabitation in 1999.
In 2003 it became clear that the mother had suffered a gambling addiction which caused great upset in the parties’ relationship.
[X] was born in 2004. The mother stayed at home with [X] until about April 2005 when she commenced work two days a week. The father worked full time as he continues to do.
[X] was 9 months old when she commenced crèche two days per week.
It became clear in January 2007 that the mother had relapsed and had been gambling again. This resulted in the complete breakdown of the relationship. The father could no longer trust the mother. The mother felt responsible and guilty for not only what she had done but the breakdown of the relationship. This was a difficult time for each at separation.
At separation the mother was working part time, about three days a week, when [X] was at Crèche otherwise she cared for her.
The parents remained separated under the one roof from January 2007 until physical separation in April 2007. The mother left the home and went to live in [B] with [X].
The mother commenced to take anti depressants by way of referral from her local doctor and had counselling for her gambling addiction from January 2007 until November 2007. The father attended one or two of the support meetings.
The mother commenced to work four days a week from about June 2007.
The parties attended Mediation in July 2007. At this time the father’s proposal had been for the child to spend equal time with him. In hindsight it is clear that [X] would have suffered emotional harm had that arrangement been put in place as the mediated agreement ultimately reached provided for far less time for [X] to be away from her mother than equal time and still she could not cope. This was no doubt because of her age and that her mother, not her father, was her primary carer.
Commensurate with the father’s commitment and understanding of his daughter’s needs he realised that the time set out in the mediated agreement was inappropriate and [X] was returned to her mother on Sunday night every second weekend until the parents could agree [X] was ready to spend four consecutive nights away from her mother.
[X] continued to spend time with her father on Saturday night, Monday night and Tuesday night in the first week and Monday night and Tuesday night in the second week being a total of five nights per fortnight.
In October 2007 the father re-partnered and [X] was introduced to
Ms C in about December 2007. The father obtained a promotion at work and he began to be less available to collect his daughter from day care than he was previously and he relied on his sister to do this.
The parties commenced further mediation in June 2008. The parents were experiencing significant problems with their communication and relationship in 2008. The father wanted more time with the child and the mother resisted this. The father was of the view that the child could well and truly spend four nights in a row with him, the mother was not.
In late 2008 the mother, without the father’s knowledge, applied for jobs in [W]. She believed that living in [W] close to her family, in a position with flexible working hours, a smaller place with easy access to day care, easy travelling time between her home and the child’s day care and her work, would enable her to be a better parent, be more settled and provide a secure home for her child.
From the mother’s evidence she was still experiencing difficulty in coping emotionally with the consequences of her gambling being the separation, in coping financially and in maintaining secure accommodation. The mother said that the father was standing over her and was bullying her into positions regarding [X]’s care and that she felt powerless.
On or around 10 December 2008 the mother told the father she was thinking of applying for a job in [W]. She did not tell him she had been successful in obtaining a position nor did she tell him when she would move to [W]. The father found out the mother was moving because his sister told him the mother had given two weeks notice to her landlord and that she would be moving back to [W]. The mother and the father’s sister have a good relationship.
It is only after the mother had accepted her new position, had decided to move, and made her arrangements to move back to [W] that she told the father. This was on 22 December 2008. She presented the father with a fait accompli.
The mother moved with the child and naturally difficulties arose with the parents negotiating for [X] to spend time with her father over Christmas. Both parents were hurt and angry with each other. The father’s distrust of the mother was further enhanced this being the third time the mother had betrayed him as he saw it: the two separate periods of gambling and then unilaterally removing the child to [W]. One can understand how the father felt at this time: threatened, anxious and reasonably believing that the mother wanted to cut him out of his daughter’s life.
Since the mother returned [X] to Melbourne, [X] has spent six nights with the father and eight nights with her mother each fortnight. According to Ms Deane, [X] is coping with that arrangement quite well.
Current living arrangements
The father’s living arrangements are well settled and give him great comfort, stability and harmony in his life. This bodes well for his time with and relationship with [X]. He lives in the home that he and the mother shared, the home in which [X] was born and is familiar with. He has re-partnered with Ms C who is a loving, supportive woman.
Ms C has an excellent relationship with [X] and assists the father in his daughter’s care.
Ms C gave evidence at the hearing that she has a very flexible work arrangement, somewhat like the mother’s, and is able to collect [X] after school early, drop her at kindergarten and drop in and see her at school.
It was fairly obvious from the father’s cross examination that his work is inflexible particularly since his promotion to a managerial role. The father has far less time available now to attend to the day to day needs of his daughter as he may have had in the past. In whatever scenario [X] will be living on a day to day basis she will be primarily cared for by her mother or Ms C during the week. Her father will be with her in the evenings, early morning and weekends.
The father has a secure and stable job and has received a promotion. The father is living in his own home and is in a secure and stable relationship with Ms C who is a great asset in assisting him to spend time with his child. The father shares a wonderful relationship with his daughter and his life is progressing as well as anyone could wish their life to progress.
Contrast this with the mother’s position.
The mother is marking time. The mother has not re-partnered, is living apart from the support of her family, is a sole parent for her daughter, and has been her daughter’s primary carer since birth. The six nights a fortnight the child has been spending with her father since February 2009 would not have interfered with nor changed the fact that at the age of four and a half [X] remains primarily attached to her mother. [X] has always lived with her mother. What this time has done is strengthen her significant bond and attachment to her father.
The mother was renting at [B] before she determined to move to [W].
I accept her evidence that she was experiencing difficulty in making rental payments and all other necessary payments. The mother had difficulty commuting from her work to her child’s day care centre and was without other support in the Melbourne area, her family support being in [W]. Since the mother returned to Melbourne, she has been living with a friend and has moved twice as has [X].
In [W] the mother has a job with flexible work hours which can accommodate caring for a child, provide her with a stable income and a permanent full time position once the initial six months is over. Her family is close as is the paternal family all of which is to [X]’s benefit. In these circumstances the mother sees herself being in a position to buy a home in [W] which will provide stable and secure accommodation for herself and her child. None of these benefits are available to the mother and [X] if they remain living in Melbourne.
The mother’s current living arrangements are far from stable or secure and are in a state of flux. That may continue for some time in Melbourne as the mother is yet to determine where she will live if she is to remain in Melbourne. Her best estimate is that due to housing cost, work and family support it will be on the northern side of Melbourne which is the other side of Melbourne to the father.
Thus there is a stark contrast in the mother’s living arrangements and the impact of this uncertainty on her capacity and availability to parent her child to the best of her ability which is not an issue with the father due to his stable and well settled living arrangements.
Competing proposals
The parties competing proposals are this:
a)The father says that the mother be restrained from moving with his daughter more than 30 kilometres from the Melbourne area and that [X] continues to spend six days a fortnight in his care until she commences second term of her first year of school when there be an equal time regime. Otherwise the parties are agreed on other issues for their daughter.
b)The mother’s case is that she be permitted to relocate to [W] with the child and that the father spends as much time with his daughter that he possibly can. That this time to be no less than three weekends each calendar month, school holidays and any other time he can come to [W] or when she can attend Melbourne with the child.
The options that arise from these competing proposals are these:
a)The mother be permitted to relocate the child to [W] and the consequent orders that I would make for the child to spend time with her father.
b)I refuse the mother’s application to relocate the child’s residence to [W] and the mother remain in an area not less than 30 kilometres from Melbourne and the orders I put in place for the child to spend time with each of her parents.
c)I grant the mother leave to relocate to [W] and the father ultimately remove himself to [W] to be closer to his child, and the orders I put in place for the child to spend time with her parents in those circumstances.
There is no issue that if I do not allow the mother to live with the child in [W] the mother will remain in Melbourne with the child.
The Father’s Evidence
Much was sought to be made in cross examination of the father failing to support the mother when he found out that she had a gambling problem on the first and second occasion. I do not accept that the father failed to support the mother.
The parties’ relationship continued after the mother admitted her first problem with gambling. The relationship was over when the father found out about the second period of gambling because, as he said, his trust and faith in the mother had gone.
The father said that as [X] was born shortly after the first incident of the mother’s gambling he and the mother were able to focus on [X] and therefore that issue and other matters blended into the background somewhat.
However, about two years after [X]’s birth, the relationship between he and the mother began to significantly deteriorate. The parents each describe an unhappy and unfulfilling relationship. The father said there were screaming matches between he and the mother.
The father said that the mother’s second episode of gambling had surfaced in early 2007 but when he looked at the banking records it actually went back to 2006.
The mother’s Counsel sought to criticise the father for only attending two counselling sessions with the mother for her gambling. I do not criticise him. His relationship with the mother was over. The mother was attending counselling and remained in the home. I am not sure that the criticism of the father was justified.
The father said he was very angry when he found out about the whole situation. The father agreed he had told the mother she had been stealing money from their account. He agreed that maybe he had said at one point:
Other people would put you out on your arse…
The father said:
I was prepared to support [Ms Gage] because she was vulnerable, suicidal and I thought of our daughter. I was prepared to support her in the home until she finished her counselling and had stability again.
The father was placed in the difficult situation. He was concerned for his daughter and the mother’s emotional health at this time, which was poor. The mother’s own mother gave evidence of her deep held concerns for her daughter’s emotional health. On the other hand [X] was emotionally attached to her mother and needed her mother to be well.
I find it is unfair to criticise the father for the events that unfolded.
The mother had an illness. Gambling is an illness. The father agreed that the mother is the child’s primary carer. He has always worked and the child has been cared for by her mother and arrangements have been made for her care by her mother. I do not criticise the father for the manner in which he dealt with the mother on both occasions.
Much of the mother’s complaints were that the father would say to her “you stole our money”, if she asked for money he would say “why should you have that, you are nothing but a thief”. These comments, although hurtful, may not be unexpected after the father found out about the second gambling problem.
The mother said she felt terribly guilty on both occasions but more so on the second occasion. The mother would have suffered real and debilitating emotional and physiological anguish and turmoil from the effects of gambling, concealing the gambling from her partner and the ultimate dissolution of her relationship with the father. I am not sure that the mother’s recollection of these events should be relied upon in these circumstances as she would not have been operating from a stable perspective.
The father agreed when the mother left the home in April 2007 and moved to [B] she did not have a car and things were difficult for the mother at that time.
From the father’s point of view he was supportive of the mother and I take this issue no further as it is not relevant. Further the mother’s recollection now of what happened at that time would have been clouded with her guilt and feelings of letting herself, her partner and her daughter down.
Similarly I make no issue of the father having to sometimes rely upon his sister to assist him in collecting and delivering [X] to and from crèche or that he would now rely upon his partner to do so. Those types of arrangements are normal for working parents.
However, from the evidence, it is also clear that the mother’s work arrangements in [W] will provide the mother with far more flexibility in being available to [X] before, during and after school than the father’s working arrangements will ever be. He can not even avail himself of one day a month off work.
The father said:
I want the mother to be within 30 minutes of my place so we can share [X]’s time at school.
I have no power to order the mother to live anywhere. I can only cause the mother to live in a certain distance from the father’s home by injunction and restraint regarding where the child lives.
The difficulty with [X] attending a school being equidistant from both of her parent’s home is that she will not attend a school with children in her local area. The advantages of going to school in her local area and joining a local activity such ballet or sport on the weekend will be denied to this child as both parents wish that [X] attend a school equidistant from their homes, so that each parent can be involved in her school. From the evidence the parent’s homes are likely to be on the other side of Melbourne to each other.
No matter where [X] lives her father cannot be involved in her school day to day due to his work commitments. He said so. That involvement will be left to his partner Ms C. At one level there is no issue in Ms C being involved, but it is not the father being involved with the child. Certainly the child would spend the night with her father and that is a wonderful thing, but the involvement in the school will simply not be there as the father will not be delivering and collecting her. It will be his partner or it will be from after school care, not school.
The child remaining in Melbourne would not result in the father being more available to her before and after school. His availability is outside working hours which are 8am to 5pm or 5.30pm. The father stated that Ms C would be able to pick her early on some days. The earliest the father said he could leave work on a Friday was 4pm perhaps once a month.
The father said he had not considered moving to [W] but could see that this may have real benefits for his daughter. He stated that if I made an order that [X] move to [W] he would consider moving, particularly if [X] was missing him as one of the father’s biggest concerns is that his daughter will miss him.
The father has no difficulty with the school the mother has chosen for the child to attend in [W].
The mother remaining in Melbourne will compromise the flexible work arrangements which are available to her in [W] and not in Melbourne. Thus from [X]’s perspective neither parent will have much flexibility in their work if they each remain in Melbourne. The parents are yet to agree on a school for [X] to attend if she remains in Melbourne. However, consistent with their ability to arrange issues in the past, I do not foresee that would be a difficulty for them.
[X] remaining in Melbourne means she attends before and after school care each day. With her father from 8.00am to as late as 5.30pm as each parent would have a distance to travel. The father’s work is inflexible and his hours are longer than the mother’s. Thus for [X] the situation would be that she attended a school outside of the area she lives, away from her neighbourhood friends and could only sometimes be picked up early from after school care by her mother or Ms C, the father’s work not permitting him to do so.
With the child and mother living in [W], [X] will rarely attend before and after school as her grandmother is able to assist in her care. [X] will attend a school with neighbourhood children and she will be spending significant time with at least one parent every day.
In Melbourne [X]’s time with both parents will be far more limited during the working week due to distance, traffic and time none of which is an issue in [W].
I am satisfied from the evidence that the trip for the father to and from Melbourne and [W] each way would be three hours on a bad day and about two and a half hours on a good day.
The father has a connection with [W]. He and the mother both attended school in [W] and met each other there. Most of the father’s extended family lives in [W] although his closest sister lives in Melbourne.
The father said his relationship with his daughter was very strong and it was a joy. It was noted in the Family Report by Ms Deane that they have a strong and enduring bond with each other.
The father made complaints that the child should have been made available to him on 27 February 2009 at 9am. The mother was in [W] at this time, a three hour trip to Melbourne. This would have meant that the child would have to have been placed in a car at six o’clock in the morning to get to [W] by nine o’clock. I find that was a fairly unreasonable attitude of the father at that time as this was not in his daughters best interests. On the other hand, this was at the same time that the mother had unilaterally moved herself to [W] and yet again betrayed the father’s trust in her.
The parents experienced a very difficult changeover of [X] on 1 March 2009. Each sought to blame the other. I am not sure that the evidence supports either position. It is clear [X] was experiencing severe emotional distress at that time for a multitude of reasons. They are possibly that she was not spending her usual time with her father and Ms C; she knew her mother was upset at having to move back to Melbourne; or she had picked up on her parent’s anger, hurt and distrust of each other.
The mother said to Ms Deanne she was not in a good emotional place at that time and that [X] had picked up on this. From the mother’s position she knew she had to return to Melbourne, a place she did not want to live, give up a job she had just obtained and rehouse herself and her child. I am not sure that anyone can be blamed for [X]’s behaviour on 1 March 2009. Rather it was the situation the child found herself in, in great part due to the mother’s unilateral action.
Both parents agree that [X] is a good traveller as she has done this trip since she was little. The parents have lived in Melbourne and travelled back to [W] frequently to visit their extended families.
The father said that he could see there were benefits for the mother living in [W]. The mother would have the support of her family members. The mother had less travel to work and was more available to collect her child because she would be closer to her school, there is less distance in a country town and cheaper housing and the mother could afford to buy a home. The father said those benefits would also flow over to [X] and [X] would be able to see both sides of her family, his and the mother’s, more regularly.
Again this demonstrates the father to be a parent very well attuned to the needs of the child and able to make concessions.
The father agreed that he and the mother would have to resolve a lot of issues between them. Although these parents are excellent people, their level of communication is very poor and they have at times acted poorly in front of their child. That is a very much contraindicated in care arrangements which come close to equal time, a position the father contends for.
The father’s main concern is that he would like a continuous block of time with [X]. He said his daughter asks him how many sleeps she has with him and how many she has with her mother. [X] gets confused with too much to-ing and fro-ing so the father believed a block of time would be better for his daughter.
In his evidence the father agreed that [X]’s first year of school would be a big year of school. However he believed she could adjust to that major change and an arrangement of equal time in one block with each parent.
The father has a fear that due to the distance between he and his daughter in [W] this will create a gap in their relationship and their relationship would be negatively impacted upon.
The father is also concerned that the move will change [X]’s routine, a routine he says she loves. However, in reality [X]’s routine will be changed next year when she attends big school regardless of where she lives.
Evidence of Ms C
Ms C was cross examined. She came across as a caring and loving woman who was much attached to this child, wants a good relationship with the mother and will support the father in any endeavour regarding [X].
I find that the mother does not have such a positive attitude towards
Ms C as Ms C has to her. The mother should be thrilled and happy that her daughter is spending time with such a delightful woman.
It is clear that the father and Ms C introduced their relationship to [X] gently and introduced the father and Ms C sleeping in the same bed gently. It was most appropriate. It was [X] who said to Ms C “You can sleep with Daddy”.
[X] told Ms C that her mother says bad things about her but Ms C does not take that to heart. Ms C said that she and the father plan to marry and plan to have children two or three years down the track.
The Mother’s Evidence
The mother’s evidence was that when she and [X] returned to Melbourne they had lived with friends in [N] from January to May 2009. In June a home became available until August and she jumped at the opportunity for her and [X] to have their own home.
The mother admitted that she has cried in front of her daughter and has been emotionally upset in front of her. She agreed she has had a difficult time emotionally and financially since separation and particularly after I ordered the return to Melbourne. The mother says she tries very hard not to cry in front of her daughter.
The mother agreed that [Mr Lynch] was a very good father and he and [X] had a strong bond. The mother stated “He is a loving Dad to her”.
The mother said that after the second bout of gambling she felt so guilty and that it was her fault. The mother was diagnosed with acute depression at this time. The mother was put on anti-depressants in January 2007. She stopped them in August 2007 but then went back on them in May 2009. She is continuing with them on her doctor’s advice.
There is no doubt the mother is in a stressful situation wondering whether she will be able to remove herself and most importantly her daughter to [W]. However, much of this she has caused by her conduct.
The mother agreed that in hindsight it was not a positive step to have stayed at the home at separation but at the time she believed it was the best thing. Both parents did.
It is fairly clear to me the parenting plan the mother put to the father in June 2007, Mother’s Exhibit 1, was a far more child focused plan than the father’s. This plan indicates her close understanding of and attachment to her child. I do not criticise the father for this but the mother showed by her plan her understanding of the needs of a young child. The father’s parenting plan at separation seeking equal time indicated that it was his needs that were at the fore not what was best for his daughter.
Much was made that the father would not be able to spend time with his daughter on her birthday or attend parent teacher nights if she lives at [W]. I fail to see that a three hour journey at such times would prevent the father from spending time with his daughter. The distance is not so great that a parent is unable to attend a parent teacher night or take a day off work once a year to attend a child’s birthday if it is during the week. I do not see this as a significant factor in my decision.
Interestingly the mother admitted she was upset when the father commenced a relationship with someone else. Yet they had a very unhappy relationship. Both parties agreed their relationship was unhappy and unfulfilling and there is now some acrimony between them. I found this evidence a conundrum. It is my view that after hearing Ms C give evidence the mother should be more than satisfied that Ms C only has [X]’s best interests at heart.
It is fairly clear to me that this upset of the mother’s would have been communicated to [X]. [X] is highly attuned to her mother’s moods and emotion. She is affected by them because she is most attached to her mother, even more so than to her father.
This closeness is shown in [X]’s reactions in clinging to her parents at crèche and the incident on 1 March 2009 at changeover. It is [X]’s mother’s emotional turmoil at those times that, in part, was the cause of [X]’s behaviour.
In 2008 the mother was unhappy with the parenting plan, the father’s new relationship and how things were not moving forward in her life.
The mother was unhappy in March 2009 as she was returning to Melbourne against her will.
[X] reacted to her mother’s unhappiness and stress.
The mother admitted she should have told the father she was booking a holiday to Noosa for her daughter in September 2008 and similarly that she plans to take her to Borneo this year to see the orang-utans. It is not due to any concern that mother would not return, it is that the mother conducts herself, at times, in a high handed manner with matters relating to [X] and cuts the father out of the loop.
After hearing the mother give evidence I am satisfied she understands she must correct that behaviour in the future.
The parents have agreed that the parties are able to take the child out of the country by giving each other 30 days notice; that they will obtain a passport for their daughter; and the father will hold the passport and give it to the mother three weeks before the intended trip.
The mother admitted she had done the wrong thing putting her daughter’s name as [X] Gage-Lynch in the kindergarten she unilaterally enrolled the child in with her move to [W]. This behaviour unnecessarily distressed the father. It would, for the father, replay the lack of trust he has had with the mother during their relationship.
It is fairly clear [X] is protective of the father to her mother. The mother agreed that there might be times when she says “that was good spaghetti I cooked”. [X] will say “My Daddy cooks good spaghetti as well”. There was a time when the father came to get an edger off her, a thirty dollar piece of equipment. Why he would do that, I do not know, but he did. The mother and he had an argument and she shut the door on the father. The mother recalls [X] saying to her “Don’t shut the door on my Dad”.
Thus [X] feels the need to protect her father as the mother’s view of the father and their poor relationship has come through to the child. The child sees the need to promote her father’s good qualities to her mother. This is something that the mother needs to take on board. It also demonstrates the close and attached relationship the child and the father have.
The mother agreed that her unilaterally telling the father she had taken [X] out of the [T] Crèche, was moving to [W] and he would just have to adjust was wrong. The mother agreed that she swore at the father on 22 December 2008 and called him a “fuckwit” but she said the child would not have heard her. The mother then said:
I understand that I cannot make unilateral decisions in the future and I must communicate with the father. That is the legal process, it must be followed and there is mediation to assist us to come to an agreement.
Evidence of Ms B
The mother’s evidence was interrupted by her psychologist Ms B who had prepared an affidavit. Ms B had read Ms Deane’s report as
Ms Deane, the family consultant, had read Ms B’s report.
Ms B said if the mother was ordered to remain in Melbourne it would affect the time it would take for the mother to recover from her symptoms.
Her symptoms are as set out in the Report dated 15 May 2009, attached to her affidavit filed 16 July 2009, commencing at paragraph 6.6:
It is my opinion that Ms Gage’s psychological symptoms represent an Adjustment Disorder with mixed anxiety and depressed mood. Psychological symptoms were described as reactive to the specific set of events surrounding Ms Gage’s current situation, including:
· past and current distressing interactions with Mr Lynch
· suddenly unsettled housing arrangements for her and daughter [X]
· Stressful past and future court proceedings relating to her current situation
· sudden isolation from support networks in [W]
· disrupted workplace environment
· difficult accessing some health care providers
· uncertainty regarding usual income security
The obtained history indicates resilient underlying personality characteristics and a generally adaptive coping style. It may be speculated that Ms Gage’s apparent strength of character and her general psycho-social competencies have prevented the development of a more serious psychological condition, such as major depression or severe anxiety disorder.
In view of the obtained history and clinical assessment of
Ms Gage, her prognosis for recovery from the diagnosed psychological condition is judged to be excellent.Ms B also stated in her report commencing at paragraph 6.3 that:
Ms Gage appears to have been generally satisfied with her general life circumstances until forming a relationship with
Mr Lynch. The relationship was described to be emotionally and sexually abusive. Ms Gage said she experienced Mr Lynch to be “emotionless, loveless and cold” and she described often waking up to Mr Lynch having sexual intercourse with her without her proper consent. She appears to have developed a gambling problem during the prolonged period of alleged emotional and sexual abuse…
It appears that Ms Gage’s substantial distress was further exacerbated following separation, with the emergence of frequent and upsetting recollections of the alleged degrading nature of the relationship.
Ms Gage appears to have left Melbourne in an attempt to reduce her psychological distress. It appears the return to her hometown of [W] was assisting her recovery until she was unexpectedly taken to Court by Mr Lynch and ordered by the Court to return to Melbourne.
In cross examination Ms B said:
She will recover but there is no doubt in my mind that living in Melbourne will prolong her recovery. Her treatment is anti-depressants and psychological treatment with which she is continuing. She requires both modes of treatment.
Ms B had seen the mother on five occasions, the first being on
24 February 2009. These visits were usually for an hour though sometimes they were up to seventy five minutes.
Ms B was asked if moving to [W] would assist the mother to recover. Ms B said:
Yes, I do. Her current condition is enflamed by her current multiple triggers and her lack of a sense of personal control.
This is something that is important to the mother, as it is to any person. The father has control of his life, the mother at present feels she does not.
Ms B continued that the mother will be able to deal with the father and interact at a far higher level when she recovers from her symptoms. Staying Melbourne means her recovery will take longer.
Ms B said the mother has benefited from individual counselling. The mother cannot attend a mediated environment; it would be far too soon for her. The mother has limited ability to regulate her inner emotions for example the flight response in fleeing to [W] when she felt overwhelmed by: events occurring in 2008; her failed relationship; multiple mediations which were not working; her perceived stress with her child being separated from her for too long a time; and her lack of a sufficient income and stable housing.
Ms B agreed once the case was over and the mother was settled it would greatly help her recovery. It is fairly clear Ms B has an important relationship with the mother. It is supportive and understanding. Ms B is in [W]. The mother cannot as easily carry out this psychological counselling if she remains in Melbourne.
The state of flux of the mother’s living arrangements is a problem for her.
Ms B’s evidence was that if the mother moved to [W] her recovery would be at worst twelve months and more likely a period between six and eight months. If the mother stayed in Melbourne it would be more like eighteen months to two years.
The Mother’s evidence resumed
The mother resumed giving her evidence following the interposing of Ms B’s evidence.
The mother demonstrated in the move to [W] that she was focused on herself, because it was clear that she did not even ensure that [X] spoke to her father on the days she would have ordinarily been living with him. It was clear that the child was missing her father at that time.
It became clear the mother has ignored Ms C a couple of times for no good reason that I can see and that must change. Both she and the father have moved on. The mother agreed that her daughter does feel the need at times to remind her how good her dad is. The mother became emotional at this time and said:
Some of these things you are putting to me are very difficult to hear because they do not reflect well on me and my behaviour at that time.
This is consistent with her psychologist reporting that she is still suffering from her Adjustment Disorder with mixed anxiety and depressed mood.
It was put to the mother that she and her mother did not have a close relationship during the relationship. The mother denied this as did the maternal grandmother. She agreed that she did not have a close relationship with her sister. After hearing the grandmother give evidence, that submission cannot be sustained. The mother and her mother have a close and supportive relationship.
The mother must live in [W] to take up this new job as it requires that she be in North East Victoria on a permanent basis.
Evidence of Ms Deane
In the Family Report, marked Court Exhibit 1, commencing at paragraph 21, Ms Deane states that the mother told her that:
…She said that Mr Lynch did not like her mother, and ‘mum hated [Mr Lynch] from the outset’.
… Ms Gage experiences Mr Lynch as controlling, patronising and intimidating. According to Ms Gage, there has been little genuine parental alliance around [X].
…She bitterly regrets the years she spent with Mr Lynch, ‘I wasted fourteen years of my life with him’; and ‘he makes me feel like a shit human being all the time’. The only benefit to come from the relationship is [X], with whom she is very devoted.
I formed the view that this is the mother blaming the father for her conduct in the relationship or it may be a symptom of her Adjustment Disorder with mixed anxiety and depressed mood.
At paragraph 28 of the Family Report Ms Deane states:
Ms Gage expressed an annoyance in any expectation that she should need to communicate directly with or develop a relationship with the father’s partner, as her understanding is that Ms C is just the father’s girlfriend.
Ms C is a part of the father’s life. The father is part of [X]’s life. The mother must communicate with Ms C for the benefit of her child.
The mother agreed that she had gained some insight that not having a positive attitude towards Ms C or ignoring her would put the child in a conflicted situation. The mother realised that if she is negative about the father and his partner around the child, that in the long term, this would affect her relationship with the child and this is not her desire.
Ms Deane states in the Family Report commencing at paragraph 34:
…[X] is a much loved and precious child. It is evident that she loves both parents, and she appears to have an attached relationship with each of them. [X] also seems to have developed a warm relationship with the father’s partner, who has formed a strong bond with the child.
Ms Gage and Mr Lynch impressed generally as being caring and very competent parents although with some personal vulnerabilities. The central dynamic within this family is the very serious emotional tension or conflict which exists between the parents, which particularly manifests as an intense emotional dislike by the mother to the father. Children are very sensitive to the emotional environment between their parents, and they generally react poorly when this environment is not good. Reportedly in the past months there have been visible indicators that the child is not managing her experience of the parental dispute and she has displayed upset and distressed behaviours, at changeover and in both parents’ homes.
This is consistent with the mother being unable to protect her child from her own emotional trauma when she was forced to live in Melbourne. This is clarified in paragraph 36:
Children are also very sensitive and attuned to the emotional distress of their attachment figures, and unfortunately it appears for a period of time the mother struggled to protect the child from exposure to her own emotional responses and upsets. When she was compelled to return to Melbourne, Ms Gage was probably concerned about her own grievances, and it might have been difficult for her to distinguish between her own needs and that of the child’s. It also seems probable that the mother has transmitted her feelings about the child’s father, and also the father’s partner directly to the child, potentially without fully realising it.
I find that this is consistent with the evidence. What is positive, as
Ms Deane said commencing at paragraph 37, is:…Ms Gage has obtained professional psychological assistance to help her to manage her apparent emotional vulnerability. Encouragingly the mother has recently gained tools to assist her to protect the child from exposure to adult issues. Further Ms Gage has insight that if she created a negative environment in her household of the father and his partner, that in the long term it would detrimentally affect her relationship with the child which is very much not her desire.
Overall it would appear that life since the parental separation has been very stressful for Ms Gage and much of her distress is a result of the conflictual relationship she feels she has with
Mr Lynch. There is little doubt that parent’s emotional state has an impact on parenting capacity and that a child’s development is enhanced when raised by a confident and contented parent.
Ms Gage firmly believes that she would be happier and more content living in [W], with the added benefit of supportive maternal grandparents. Sole parenting a young child is a demanding parental burden for the most resilient adult. If
Ms Gage struggled to accept remaining living in Melbourne, the child could reside with an unhappy, stressed and angry parent which could be damaging to the development and welfare of the young child…It is clear the father and the maternal grandmother have absolutely no relationship. The maternal grandmother has a very negative attitude to the father as partner for her daughter. However, it was not evidenced to me the maternal grandmother has a poor view of the father as a parent. She does not.
Ms Deane states that the reason [X] defends her father to her mother is that she wants to raise up her father to her mother to say “My father is important to me”. That is a clear lesson I hope the mother has learned from this case. Ms Deane also said that it may be an attempt to put the father in a positive light to the mother by reminding the mother of her father’s good qualities.
The father was crying at this point.
The difficulties the mother is now facing have in some part been caused by her own actions. Further, the child has experienced the mother’s negative view of the father when living with her resulting in [X] feeling she must defend her father. Despite this the child is a happy, healthy, robust, well loved and emotionally secure child.
The father is concerned if the child predominantly lives in [W] she will live in a negative environment due to the mother and grandmother’s negative attitude to him.
After hearing the evidence, I have formed the view that requiring the mother to live in Melbourne will cement any negative attitude towards the father at great emotional cost to [X]. The mother living in [W] will greatly assist the mother to overcome her negative attitude towards the father to [X]’s benefit.
In paragraph 40, Ms Deane states:
Mr Lynch continues to hold the view that the child will benefit most from the ongoing day to day involvement and care of both parents, and his preference is that the child live with each parent in an equal time arrangement. Mr Lynch’s present active role in the parenting of [X] involves spending time with the child before and after school, involvement in school and homework activities, and evening and bedtime rituals. Taking part in children’s daily lives generally adds to the depth and connectedness of relationships. It would seem that the biggest cost to [X] if the relocation were to go ahead, would be the loss of the father’s significant involvement, and in this regard the proposal is difficult to support. As stated [X] appears to love and have attached relationships with both parents, she has spent substantial time with her father since infancy, and she would probably experience reduced time with him as an emotional loss. Potentially [X] could experience a number of feelings associated with reduced time with the father, including sadness, confusion and frustration, which could be displayed by angry and distressed behaviours.
It seems clear that [X], at present, can manage a substantial care arrangement. Ms Deane is of the view that spending equal time “could stretch [X]’s capacity to cope”. Even maintaining the present arrangement of six nights with her father and eight nights with her mother when she attends big school in circumstances where her father is not available to take her to school or collect until 5.30 pm on some afternoons may not be an order in this child’s best interests in the long run, no matter where the mother and father are living.
In Ms Deane’s report it became clear that the gravamen of the issue for [X] is ensuring the mother’s happiness and the positive impact of that upon her parenting capacity on the one hand and on the other maintaining the closeness of the father’s relationship with the child.
The cost to [X] if she is to move is her father’s significant involvement in her life, which is contrasted with a potentially emotionally less available and diminished mother.
The mother has clearly been suffering from being forced to remain in Melbourne. The child has experienced that suffering and it has had a negative impact upon her. The evidence from the mother’s psychologist is that if the mother remains in Melbourne it will be somewhere between eighteen months and two years until she recovers if at all. That, for [X], is a significant period of time.
Ms Deane agreed that [X]’s primary bond was with her mother and her sense of inner worth would be bound up with her living with her mother. This is indicated by the father backing off initially as the parenting plan provided too much time for the child to be away from the mother. It was very important that the primary attachment base remains secure for the child.
Ms Deane stated that if the mother was unhappy, stressed and not coping that would have a direct impact on [X].
I asked Ms Deane whether she had a sense that the mother was just holding up because of the possibility of the move pending this court case and that she may fall apart if she was not allowed to move.
Ms Deane said this was a real possibility.It was put to Ms Deane that [X] may well have a very large burden to carry if the mother is ordered to remain in Melbourne and I accede to the father’s request of equal time. Ms Deane agreed that this was a very large burden for a small child to take on board.
Ms Deane agreed that both parents living in [W] would be a win-win for [X]. The mother’s health would recover far quicker, she would be happier, be stable in her housing, be available to [X] far more easily day to day than if she were living in Melbourne and [X] would have her father’s ongoing involvement in her life on a day to day basis as well.
Ms Deane thought there was no difference between the child seeing her father three weekends out of four or two weekends out of three. [X] would adjust to not seeing her father as much she does now over time, but there would be an initial loss for the child.
[X] is primarily attached to her mother. She is her secure base. In that context I put to Ms Deane that the balance for me was the impact upon the relationship between [X] and her mother if the mother is unable to move versus the impact on [X]’s relationship with her father if she does move to [W]. Ms Deanne agreed that was the balance.
Ms Deane was of the view there would be a greater negative impact on [X]’s relationship with her mother if she could not go to [W] than there would be on [X]’s relationship with her father if she did go to [W].
The reason, Ms Deane said, is that this child has a secure, strong attachment to her father and although [X] may miss her father her attachment and relationship with him would be maintained even if she moved to [W]. The impact on [X]’s mother’s emotional health and thus [X]’s relationship with her if the mother remained in Melbourne was at greater risk in this scenario.
Evidence of the maternal grandmother
The maternal grandmother was unaware that the mother had a gambling habit until February 2009. The mother felt so ashamed of her conduct and behaviour she could not share it with her mother. I think she has put some of that shame upon the father, unjustifiably.
The maternal grandmother said:
There was a time when [Ms Gage] was distant and closed to me, but we have always had a strong, ongoing relationship.
It is clear that the maternal grandmother is an important support to the mother.
Submissions
The submissions from the father’s Counsel were that the move to [W] would significantly disrupt the child’s relationship with her father and that this relationship would diminish resulting in a negative impact on the child.
It was submitted that [X] was benefiting now from a substantial care regime between her parents and this regime should be maintained at all costs. Thus the father’s proposal that the mother remain with the child in Melbourne is to be preferred.
That submission although well and forcefully put is not what I must have regard to at law. No parenting regime can be maintained at all costs. I must make an order in the child’s best interests having regard to all the evidence and the relevant matters under sections 60CC(2), (3) and (4) of the Act.
The mother’s proposal was that the move to [W] has far more positives for the mother and [X] than remaining in Melbourne.
Those positives are: secure housing; secure employment; assistance of maternal family; minimal use of before and after school care for [X]; maximising the availability to [X] of at least one parent day to day; ease travel time to school and extracurricular activities; close proximity to the paternal family; and a happy, secure, emotionally well adjusted mother within a possible six months as opposed to a possible two years.
If the mother remains in Melbourne she has yet to finalise where she will live. It may be some distance and travelling time from the father’s home. Her work hours will not be as flexible and she will not be as available to [X] day to day due to travel and distance as she would be in [W].
The father’s work is not flexible. He told the Court he could not take time off, he could not even leave work at 12pm each alternate Friday to collect his daughter from school. Only the mother and Ms C have any flexibility in working. So whether the mother remains living in Melbourne or moves to [W] it will not be the father who will collect [X] from school but the mother or Ms C.
At present the father collects [X] from crèche or Kindy at 5pm or 5.30pm and is able to speak to the Kindy teachers regarding his child. That will not be the situation at big school. [X]’s teacher will have left school well before 5pm or 5.30pm and the father will have no contact with [X]’s school or her teacher in those circumstances. I accept there is a benefit to [X] spending a school night with her father however this does not result in the father having contact with her school or teachers day to day due to his working hours.
The mother is emotionally fragile. She may well be just holding it together. There is a risk, if the mother does not move to [W], that her present fragile emotional state will continue for around two years. There is also a possibility, Ms Deanne agreed, that the mother may fall apart.
The father has seen the negative impact on [X] of the mother’s compromised emotional health in March this year when the mother was ordered to return the child to Melbourne. The mother admitted she was crying in front of the child, was not in a good place, and [X] had picked up on this. [X] was affected by her mother’s emotional downturn and to order the mother to remain in Melbourne in those circumstances puts at risk [X]’s primary attachment figure and her secure base which is her mother.
If the mother’s emotional health deteriorates from where it is now this will have a serious impact on [X]’s own emotional health and the benefit to her of a meaningful relationship with her mother.
If the mother falls apart she will be unable to maintain for some time a proper standard of parenting and her potential high level of parenting capacity will be compromised. Even if the mother does not fall apart but it takes her a full two years to recover her health this will also negatively impact on [X] as her mother’s parenting capacity will continue to be compromised by her current illness.
I find on the evidence that it is probable the mother will fall apart, for a time, if she is unable to live in [W]. I do not say that this would be irreversible however it will significantly add to the likely time needed for the mother’s full recovery of her emotional health. It will be [X] who will bear the brunt of that consequence as her primary attachment, at 4 years of age, is to her mother. [X] will suffer with her mother no matter how much time she spends with her father.
The real risk of compromising the mother’s parenting capacity and emotional availability to the child is of a far more serious compass than the loss [X] will undoubtedly feel if she lives in [W] and does not spend her current time with her father. Her relationship with her father is strong and secure. I do not see anything other than compromising her relationship with her mother that could diminish this strong, positive and beneficial relationship.
Further, the father does not have the emotional issues the mother has to deal with. I accept that initially he will be devastated if his daughter lives in [W], but he has the emotional strength to deal with such an event and protect his daughter from his anguish. His supportive relationship with Ms C, his secure job and home will all assist him to deal with this situation. The mother has none of those resources available to her in Melbourne.
It was put to me by the mother’s Counsel, Ms Wheeler, that if I make an order that the child move to [W] the father will make time to attend at the child’s school for important events. I accept that submission. He will do so. I understand he can not attend each week or even monthly. However, he will be there for sports carnivals, parent-teacher interviews and the like. I am satisfied that the father will make that effort for the benefit of [X].
The Law
Primary considerations
Any order I make can only be an order in the child’s best interests. In order to make such a decision I must have regard to the factors under sections 60CC(2),(3) and (4) of the Family Law Act and weigh those factors up with the evidence and the range of options that arise from the competing proposals which have been previously stated and are:
a)The mother be permitted to relocate the child to [W] and the consequent orders that I would make for the child to spend time with her father.
b)I refuse the mother’s application to relocate the child’s residence to [W] and the mother remain in an area not less than 30 kilometres from Melbourne and the orders I put in place for the child to spend time with each of her parents.
c)I grant the mother leave to relocate to [W] and the father ultimately remove himself to [W] to be closer to his child, and the orders I put in place for the child to spend time with her parents in those circumstances.
There is no issue that if I do not allow the mother to live with the child in [W] and injunct the Mother from causing the child to live other than 30 kilometres from the Melbourne that the mother will remain in Melbourne with the child.
Section 60CC(2) sets out the two primary considerations I must have regard to when making parenting order. The first is 60CC(2) (a):
The benefit to the child of having a meaningful relationship with both of the child's parents.
The child presently benefits from a meaningful relationship with each of her parents.
The benefit to the child of her meaningful relationship with her father is not at risk of not being maintained by her move to [W]. It is a strong and secure relationship. The child will suffer a sense of loss at not spending as much time with her father, but she will recover in time.
There is absolutely no evidence, and the evidence is to the contrary, that the move to [W] would have a negative impact on [X]’s relationship with her father.
The decision of Godfrey & Sanders [2007] FamCA 102 concerned an appeal from a Federal Magistrate’s decision not to allow a mother to relocate with children. Justice Kay heard the appeal which was allowed. He stated at paragraph 36:
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.
Further at paragraph 38:
The Federal Magistrate ought to have weighed very heavily into the equation the desire of the primary caregiver of these children (and indeed their siblings) to move on to a better life than she and Mr Godfrey and the children were presently enjoying.
And at paragraph 44:
In my view the Federal Magistrate erred in this case in failing to adequately explore the possibility of formulating different arrangements for the children to spend time with their father and in reaching a conclusion, contrary to the evidence, that the children would be unable to maintain a meaningful relationship with their father if the mother was permitted to move the children to Brisbane. She further erred in concluding that the maintenance of that meaningful relationship, by continuing the contact at its present level, was necessarily more significant to the welfare of the children than allowing their primary caregiver to get on with her life as she chose and to endeavour to maximise the opportunities for the children to be adequately supported.
I accept there may be a diminution in the quality of [X]’s relationship with her father if she moves to [W] and such a move may not provide for the optimal relationship. However, the evidence is clear that her relationship with her father will still be a meaningful and beneficial one to her.
If the child is moved to [W] by her mother, her relationship with her mother can only improve as her mother’s mental and emotional health will improve on the objective evidence in perhaps six months.
If the mother is ordered to remain in Melbourne there is a real risk that [X]’s relationship with her mother, her primary carer, will be significantly negatively impacted upon because the mother’s mental health may not recover at best for eighteen months to two years.
Further there is evidence that the mother may just be holding it together at the moment awaiting the outcome of this case. I have found it is probable she will fall apart for a time if she cannot live in [W] with the child. That scenario is a real risk to the benefit for [X] of a meaningful relationship with her mother as her mother’s parenting capacity would be compromised due to her sustained poor emotional health.
If that was the scenario then not only would [X]’s relationship with her mother be at risk, but there would also be a risk to her relationship with her father and capacity to form relationships in the future.
The parents have already seen [X] acting out at changeover when her mother was in a bad mental and emotional state. That is not good for this child’s relationship with any of the significant adults in her life.
Section 60CC(2)(b) is as follows:
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is not a relevant factor in this matter.
Additional considerations
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. This is not relevant. The child is too young.
The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child). [X] is primarily attached to her mother. Her secondary attachment is to her father and it is a significant and strong attachment. [X] has an attachment to her maternal grandmother and Ms C, her father’s partner.
The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent. Despite the parent’s own poor personal relationship and acrimony the child has a strong relationship with each parent which could only occur because each of the parents have encouraged the child to have that relationship and, even at difficult times, ensured it occurred.
The mother’s unilateral move to [W] may be seen in one light as her trying to sever that relationship. However, her psychologist said this was part of the mother’s condition and anxiety disorder – the fleeing mechanism. The fleeing mechanism came into play when the mother felt overburdened by the mediations which had not worked and which, her psychologist said, she was not well enough to attend in any event, and also by the father’s new relationship.
Apart from that event which I prefer to see in this light I find that both parents have this capacity to a high degree.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living. The child will be affected by the separation from her father and Ms C which now occurs on a weekly basis. This will result in some negative impact upon her. However, there would be a greater impact on the child’s living circumstances by ordering her to remain in Melbourne. Namely her mother falling apart for some period and or not recovering from her illness for up to two years. The parents have already seen the effect on [X] in March this year when her mother was, to use her words, “not in a good place”.
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. There is a difficulty and expense if the child moves to [W]. It is a three hour trip. The parents have done that trip during the relationship when visiting their parents. They are well able to carry it out and each agree [X] is a good traveller.
The capacity of each of the child's parents; and 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. Both these parents have a high capacity to provide for this child’s intellectual, emotional and financial needs.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents. Both parents take their parenting role seriously and have always exercised to the utmost their time with their child and are able to put her needs first in most decisions they have made.
Section 60CC(4). Both parents have facilitated their time with the child and have taken their responsibilities appropriately.
It is agreed that the win-win for this child is the mother moving to [W] where her mental health is likely to recover in six to eight months, at worst twelve months, and her father also moving to [W] to enable him to continue to be involved in his daughter’s life day to day.
Weighing up the competing Proposals
The mother’s proposal to remove herself and the child to [W] will ensure the mother’s continued emotional stability and quickest recovery from her present illness. This move will provide the mother with the control of her life which is so important to her recovering emotional health including secure housing which the mother can afford. [X] will have her mother available to her before and after school and during the day. [X] will have her extended maternal and paternal family in [W].
The negative is that [X] will be separated from her father and she will not spend the time with him that she is used to and in which she has flourished. That is something that will for a time be a negative to her. However, as Ms Deane said, she will recover from that loss of time and the strength of her relationship with her father and her father’s underlying emotional strength will ensure that this child’s meaningful relationship with her father and the benefit of that relationship will be maintained over distance.
The father’s proposal that the mother remains in Melbourne with the child poses the most serious risk to this child’s well being into the future. With the mother remaining in Melbourne she may recover, at best in eighteen months, at worst two years or never if she completely falls apart. The mother having to return to Melbourne in early 2009 caused [X] to suffer emotional distress exhibited at changeovers and in her general behaviour. We have seen the impact on [X] of her mother not coping well which is a negative for [X]’s own emotional stability. Such a scenario will not only have a negative impact on [X]’s relationship with her mother, her primary carer, but may well can flow through to her significant relationship with her father, Ms C, her extended family and relationships in the future.
The benefit of the father’s proposal is that [X] will continue to spend significant and substantial time with her father.
However her father’s claim that this will extend to his involvement in her schooling is not realistic upon analysis. Due to his work commitments and hours of work he will not be taking her to school or collecting her from school. At best he will take her to before school care and collect her from after school care or Ms C will do so. The father must rely upon before and after school care from 8am to 5.30pm in his care arrangements for the child. This is not a criticisms but a reality. For a young child in her first year of big school this is a taxing timetable.
Similarly everyone remaining in Melbourne will result in the mother being unable to pick the child up and take her to school as opposed to before and after school care due to the distances involved in Melbourne. [X]’s mother will also be reliant upon before and after school care each day. This will not be the case every day in [W] as the mother’s job and the child’s school are close and the distance is small. The mother can work from home to work around [X]’s school day and is able to work a nine day fortnight.
Meaningful relationship
The benefit to a child of a meaningful relationship with a parent although a primary consideration is not the only consideration: see Champness & Hanson [2009] FamCAFC 96 at paragraph 102 citing the decision of Marsden & Winch (No. 3) [2007] FamCA 1364:
“whilst the primary considerations should be accorded a particular importance in determining what order will best promote the interests of the child they cannot determine the outcome in every case . Not only must the additional considerations be taken into account but the two primary considerations may themselves tend in different directions “
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions.
Again at paragraph 103:
The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors.
The best option is both parents living in [W]. However, just as I cannot order where the mother is to live I cannot order where the father is to live.
Thus the benefits to [X] of her mother being ordered to remain in Melbourne are in essence that she and her father will continue their nights together and [X] will suffer no loss in reduced time with her father.
However the Act talks of the benefit of a meaningful relationship with both parents not just one parent. The consequences of such an order for the benefit to [X] of a meaningful relationship with her mother are potentially catastrophic if the worst case scenario prevails and the mother falls apart and does not recover. Even on the best scenario her emotional health is not likely to recover for up to two years and the cost of that will be borne by [X]. That is the gravamen of the issue.
Findings
On the balance, and this is a fine balance, I find that the loss of time [X] now enjoys with her father at this stage is not as significant to her welfare as are the consequences to her relationship with her mother if I do not permit the move to [W].
I have found on the evidence that the move to [W] will not diminish the benefit to [X] of her present meaningful relationship with her father. Their relationship is too strong for that to occur.
That is not the case for the benefit to [X] of maintaining her meaningful relationship with her mother if she is ordered to remain in Melbourne.
That is the balance this matter has come down to. Factoring in the probability of the mother’s mental health not recovering for eighteen months to two years and/or the mother completely losing it and the consequent emotional impact on [X] is a far greater risk to the child than the loss the she will suffer from not spending the time with her father that she is used to.
On all the evidence I find that the order that is in this child’s best interest is that the Mother be permitted to move the child to [W].
Therefore, I make the Orders as set out at the commencement of this decision.
I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: A. Morris
Date: 20 August 2009
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