M & K
[2007] FMCAfam 214
•7 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & K | [2007] FMCAfam 214 |
| FAMILY LAW – Relocation – parental responsibility – issues about both parents capacity to care for the child. |
| Family Law Act 1975, ss.60B, 60CC, 65DAA |
| Goode v Goode [2006] FAmCA 1346 Godfrey & Sanders [2007] FamCA 102 H & H [2007] FMCAfam 27 J & R (2007) FMCAfam 181 M & K [2007] FMCAfam 26 M & S [2006] FamCA 1408 R and R: Children’s Wishes (2000) FLC93-000 |
| Applicant: | M |
| Respondent: | K |
| File Number: | WOC119 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 19 March 2007 |
| Date of Last Submission: | 20 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers Lawyers |
| Counsel for the Respondent: | Mr Hansen |
| Solicitors for the Respondent: | Lees Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Macpherson |
| Solicitors for the Independent Children’s Lawyer | Legal Aid Commission of NSW |
ORDERS
Orders for parental responsibility
That the Mother and the Father are to have equal shared parental responsibility for the child C in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:-
(a)the education of the child – both current and future;
(b)the religion of the children;
(c)the health of the children;
(d)any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.
That the Father shall refrain from making critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the child and that the Father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Mother or members of her family in the presence or within the hearing of any of the children.
That the Mother shall refrain from making critical or derogatory remarks about the Father or members of his family in the presence or within the hearing of any of the child and that the Mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the Father or other members of his family in the presence or within the hearing of any of the children
That each parent be entitled to attend all events involving the child including, but not limited to:-
(a)sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation – AND the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.
Orders for day to day care, welfare and development
That the Father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the child lives with or spends time with the Father.
That the Mother shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the child lives with or spends time with the Mother.
Orders for parental communication
That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-
(a)any medical problems or illness suffered by the child, whilst in the care of the Father;
(b)any medication that has been prescribed for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)any social, school or religious functions which the child is to attend;
(e)the residential address of the Father;
(f)the telephone contact number of the Father;
(g)any other matter relevant to the welfare of the child.
That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-
(a)any medical problems of illness suffered by the child, whilst in the care of the Mother;
(b)any medication that has been prescribed for the child;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child;
(d)any social, school or religious functions which the child is to attend;
(e)the residential address of the Mother;
(f)the telephone contact number of the Mother;
(g)any other matter relevant to the welfare of the child.
Orders for dispute resolution
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)enforcement of these Orders; which involve the children, each of the parents will do all things necessary to participate in Family Dispute Resolution with a person authorised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the child or of the parties, each of the parents is to take the following steps:-
(a)the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act;
(b)the Father and the Mother shall each participate in Family Dispute Resolution with a person authorised under the Family Law Act.
Orders for living with each parent
The child shall live with the Father.
Orders for spending time with each parent upon significant occasions
That the child shall live with the Mother as follows:-
A. In the event the Mother continues to live in Queensland
(a)For the whole of the school holidays at the conclusion of Terms 2 and 3;
(b)For one half of the school holidays at the conclusion of Term 1;
(c)For one half the of the Christmas Summer school holidays;
(d)At such other times as the parties agree from time to time;
(e)Upon one weekend during each school term during the year. Such weekend to be nominated by the mother at least four weeks in advance and to be at her option either in N or in Queensland.
B. In the event that the mother relocates to live in the N area:
(a)From the conclusion of school on Friday until the commencement of school on the following Monday (or Tuesday in the event Monday is a holiday or pupil free day) on each alternate weekend
(b)From 9am Mother’s Day until the commencement of school on the Monday morning following Mother’s day;
(c)For the whole of the school holidays at the conclusion of Terms 2 and 3;
(d)For one half of the school holidays at the conclusion of Term 1
(e)For one half the of the Christmas Summer school holidays;
(f)On the birthdays of the child and the Mother for a duration of 2 hours at times to be agreed between the parties if occurring on a school day and for a duration of 4 hours if occurring on a non school day, and in each case if there is no agreement, commencing from 4.00pm;
(g)Christmas Day- at times to be agreed between the parties, but failing agreement between 10.00am and 3.00pm in odd-cumbered years, and 3.00pm-8.00pm on even numbered years.
Orders for communication
That the child shall have the following communication with the Father:-
(a)Regular telephone communication during times the child is in the care of the Mother.
That the child shall have the following communication with the Mother:-
(a)Regular telephone communication during times the child is in the care of the Father.
That for the purpose of communicating information between the parents, the Father and the Mother shall communicate by:
(a) telephone.
Orders for transportation:-
That for the purposes of the facilitation of these Orders
(a)The Mother shall be responsible for booking and payment of the Child’s airfare from Sydney to Brisbane. The Mother is to provide written evidence of the payment and booking to the father at least six weeks prior to any period of travel.
(b)Upon receipt of above, the Father shall be responsible for booking and payment of the Child’s airfare from Brisbane to Sydney. The Father is to provide written evidence of payment and booking of the return flight to the Mother at least four weeks prior to date of travel to Brisbane.
(c)The Mother shall be responsible for the delivery and collection of the Child at Brisbane airport.
(d)The Father shall be responsible for the delivery and collection of the Child at Sydney airport.
Additional orders
That Order 12B of these Orders shall be suspended during school holiday periods AND for the purposes of ascertaining the dates of resumption of Order 12B following the conclusion of the school holiday period, the weekends shall notionally be counted through the holiday school periods.
Both parents are restrained from:
(a)Consuming any prohibited drugs, including but not limited to marijuana and amphetamines for twenty four hours prior to and during any period in which the child is in their care.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC119 of 2007
| M |
Applicant
And
| K |
Respondent
REASONS FOR JUDGMENT
Background
This case is about C born 22 October 1996, who is ten years old. C’s mother was treated as the applicant in this case. She asks the Court to make an order that C lives with her in Queensland. To that extent, her application was treated by the parties, and the Court, as a relocation application. C currently lives with his Father at in New South Wales. Strictly speaking this case should be described as a parenting case, where the proposal of one of the parties involves relocation. Notwithstanding this, and because the parties described the case as a relocation case and understand it as such, I will also adopt the description “relocation case” in these reasons
C’s mother, Ms M gave evidence about the many benefits that she saw in C living with her in Queensland. In the three affidavits she filed (filed on 10 January 2006, 7 September 2006 and 8 February 2007) she gave evidence about the benefits she perceives to C of living with her and his sister V in Queensland, as well as what she considered to be the lifestyle, employment and other economic advantages of living in Queensland. I should note that Ms M did not use those precise words- they are my summary of her overall evidence in this regard. It was also apparent from the mother’s evidence that she had real concerns about C’s father’s ability to adequately parent him. It was also apparent that C’s mother and father do not get along well and have not got along well for many years, since they separated in October 2000.
C’s father is Mr K. He seeks orders that C live with him and remain in the same geographical area that he has spent most of his life. In the father’s affidavits (filed 3 February 2006, 5 October 2006 and 7 March 2007) the father says that he has been caring for C since February 2006 and that C is in good health, is progressing well at school and has a good relationship with his father, his older brother with whom he lives, and with the paternal grandparents in whose house he also lives The father expresses concern about the mother’s disorganised lifestyle and the constant changes that occurred during the time that she was looking after C.
At the hearing, C’s mother was represented by her barrister,
Mr Alexander, and C’s father was represented by his solicitor,
Mr Hansen. C himself was represented by an Independent Children’s Lawyer, Mr Ryan who briefed a barrister, Mr Macpherson, to appear at the hearing.An important piece of evidence was the Family Report dated 9 August 2006 which was prepared by Ms O a Family Consultant employed by the Family Court of Australia. Ms O had the benefit of interviewing C, his parents and his brother and sister. She also had the benefit of reading much of the material filed in this case as well as being able to observe C interacting with his parents and sister and brother.
It was common ground that there is a considerable geographical distance between N, in New South Wales and B, in Queensland. It was acknowledged by all parties to this case that the only realistic options in this case were as follows:
a)C continues to live with his father in N and spend time with his mother in B if she chooses to move there, or in the N area (the geographical area in the vicinity of N).
b)That C lives with his mother in B, Queensland and spends time with his father either in B or in the N area.
I note that it was never put to me, either as an option advanced by either parent or the Independent Children’s Lawyer, or as an option that I should consider independently of this, that the father should relocate to B or to that vicinity. It was obvious that this option, although theoretically possible, was never practicably realistic. This was because the father, and through him C of course, had available to him stable housing and accommodation and an extensive support provided by his parents at N. These very important considerations could not be replicated if the father moved to B. Hence, this option, as obvious as it might theoretically be, was never seriously advanced by any of the parties to this litigation, and was therefore never seriously considered by me as being a realistic option. The choices about where C would live were very clear. Either with his mother in B, or with his Father in N.
Notwithstanding the starkness of these choices, within each option there was a range of possibilities as regards how much time C would spend with his other parent. The legal issue can be simply stated as: what would be in C’s best interests?
The dilemma in this case of course is that C’s mother, early in 2006, unilaterally, and voluntarily, moved herself away from the area in which C has lived for most of his life. Since then it could hardly be said that her time with him amounts to substantial and significant time as defined in s.65DAA of the Family Law Act.
Applicable law – relocation
In J & R (2007) FMCAfam 181, M & K [2007] FMCAfam 26 and H & H [2007] FMCAfam 27, I discussed at some length what I understood to be the applicable law in relation to relocation. I will not repeat in these reasons what I set out in those cases, but I incorporate those passages subject to the matters set out below.
There have been some later Family Court cases to which I was not referred in the matters referred to above. For example in M & S [2006] FamCA 1408 Justice Dessau made orders permitting a mother to relocate the residence of an eight year old child to the United Kingdom until 21 December 2008. The mother’s application to relocate was for a finite period of time – three years. Prior to the litigation the child was not spending either equal time or substantial and significant time with the father. As Dessau J observed, and based on what the Full Court in Goode v Goode [2006] FAmCA 1346 stated at paragraph 65 of its decision, the issue before her was “at large and to be determined in accordance with the child’s best interests”. In this case, of course, C is spending neither equal nor substantial and significant time with his mother, since February 2006. Dessau J at paragraphs 38 and 39 of her reasons expressly rejected a submission that the post 1 July 2006 amendments to the Family Law Act effectively cast an onus of proof on the applicant for relocation. As Dessau J states at paragraph 39: “the legislation has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.”
The discussion by Dessau J of what constitutes a meaningful relationship at paragraph 45 is relevant in the present case.
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful. The likely impact of the relocation on O’s relationship with her father is integral to my decision in this case. It is important for her overall well-being and healthy development that she is able to enjoy their relationship, to experience his input into her upbringing, and to develop her own sense of identity through him and the paternal family.
In the present case, of course, the evidence will indicate that C enjoys a meaningful relationship with his mother even though he lives in N in New South Wales, and she lives near B in Queensland. Dessau J is clearly of the view that even long distance relationships can be meaningful relationships.
In Godfrey & Sanders [2007] FamCA 102, Kay J sitting as a Full Court constituted by a single judge pursuant to s 94AAA(3) of the Family Law Act, allowed a relocation from country Victoria to Brisbane, conditional on the provision of funds to pay for travel. Kay J provided to each of the parties to the appeal a copy of the decision of Dessau J in M & S[1]. At the appeal the father was not legally represented and neither counsel for the wife nor the Independent Children’s Lawyer made submissions that the law was other than as expressed by Dessau J. Kay J concluded at paragraph 32:
Without the benefit of a reasoned contradictory argument, I see no reason to depart from the conclusions reached by Dessau J that whilst the various provisions of the Act, as amended, emphasise the importance of maintaining an appropriate relationship between a child and its parents, the best interests of the child remain the paramount consideration.
[1] [2006] FamCA 1408
Kay J permitted the relocation. He found that the evidence indicated that the children already had a meaningful relationship with their father, and that this was likely to be maintained even after relocation provided arrangements could be made to ensure regular visits of adequate duration. Kay J seems to have had no difficulty in concluding that if the children spent time with their father during school holiday periods, there would still be a meaningful relationship. Kay J observes 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.
Both of these cases emphasise that ultimately relocation cases are determined by reference to the best interests of the child. That, of course, is determined by reference to the legislation and, in particular, s.60CC of the Act. On the facts of those cases the Court found that relocation was consistent with the best interests of the children. On the facts of the present case, however, the same principles when applied to different facts can, and indeed do, point to a different result. Relocation is not in the best interests of C, for the reasons set out below.
Issues and application of the law to the facts
Before identifying and discussing the specific issues in respect of which I need to make findings in order to ascertain what is in the best interests of C I will briefly provide some further detail about C’s family. C’s father is forty years old and his mother thirty nine years old. They started living together in 1986 just a few months after they first met. C’s brother J K was born on 7 May 1988, C’s parents married on 26 August 1989 and C’s sister V was born on 2 May 1990. In 1993 the family moved to N, where the Father opened a mechanical workshop which did not go very well and closed in 1996. C was born 22 October 1996 and in 1997 the whole family moved to Queensland, but that did not last very long and a short time later they moved back to the N area. C’s parents experienced problems in their relationship and finally separated in October 2000. C’s mother took him and V and moved out of the home. J, C’s brother remained living with the Father. On 2 February 2001 parenting orders were made on a final basis in the Local Court at N which provided for C and V to live with the mother and J to live with the Father. Later in 2001 C’s mother appears to have experienced difficulties in her relationship with another man who she claims bashed her in the presence of the children. As a result of this she moved with V and C to Queensland and did not return to the N area until February 2002.
On 10 January 2006 the proceedings that are before me now were commenced in the Local Court when the mother filed and application seeking permission to relocate with C to Queensland. The Father opposed her application and on 13 January 2006 the Mother gave an undertaking to the Local Court not to relocate with C. On 10 February 2006 an order was made pending further order that C live with his father. The mother then returned to Queensland. C’s mother gave evidence that she moved back to N early in December 2006 with the intention of returning to live there permanently, but in effect decided to return back to Queensland two weeks later because things did not work out.
It would be fair to say that both parents raised quite serious issues about the nature of their relationship with C; their willingness and ability to facilitate a close and continuing relationship between C and the other parent; their capacity to provide for C’s needs and their attitude towards the responsibilities of parenthood. The above is of course a broad summary statement of the concerns raised by each parent, articulated by reference to s.60CC of the Family Law Act. When one looks at the specific issues raised by the parents that give rise to the concerns raised above, there are concerns about the mental health of the father, consumption of drugs and alcohol by both parents, family violence, an inability to provide stability for C as well as poor role modeling. In order to provide a structure to examine each of the concerns and the evidence that was advanced to support them, I propose to follow the structure set out in s.60CC of the Family Law Act.
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child’s parents
It is clear from the evidence of each parent as well as the expert evidence contained in the Family Report, that C has a meaningful relationship with both his mother and father. Indeed, to a certain extent the parents themselves acknowledged the meaningful relationship he has with the other. This meaningful relationship continues whether C lives with his father or his mother. On either proposal he will have the opportunity to spend time with the other parent during school holidays, and possibly during school term, and having regard to his age and maturity he will have the capacity to communicate with the other parent in between physical visits. The only possible disruption to the meaningful relationship that exists at the present time is the mother’s proposal to relocate with C to B.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Section 60CC(2)(b) requires me to protect C from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. It is clear both from the mother’s evidence and the Family Report, that C was exposed to violence perpetrated on his mother by her then partner after separation and which, according to her, caused her to flee New South Wales and move to Queensland. It was incumbent on the mother to fully explain the precise circumstances of her departure from New South Wales as a result of this violence by her partner. It is by no means clear to me why she had to move to Queensland and not, for example, to another safe destination, or take other steps to obtain protection. In any event, there is no other serious suggestion by either parent that C was exposed to violence attributable to them, or in their presence.
The risk of abuse or neglect whilst C is in the care of ether parent, does however need to be considered. For example, the mother raised concerns about the father’s mental health, possibly attributable to substance abuse. As the Family Consultant reported in paragraph 24 of the Family Report the father appeared to minimise the impact of these issues and stated that he no longer uses cannabis and drinks minimally. The father states that his mental health is currently good, having previously had a stress related break down in 2005. The Family Consultant said that the Father appeared keen to avoid discussing these issues in detail. These comments in my opinion fairly summarise the evidence given by the father on this issue.
The documents produced on subpoena by the IA Health Service (Exhibit A3) indicate that the father was admitted to a hospital on 14 September 2005 and discharged on 22 September 2005. He was admitted in relation to mental health issues. The documents indicate that he appeared to be suffering from some form of paranoid episode. The impression formed from reading the subpoenaed material is that he was suffering from depression and a personality disorder. He gave a record of smoking marijuana and the impression of this formed from reading the documents is that this continued until comparatively recently before his admission.
At the hearing the father was extensively cross examined by
Mr Alexander on the topic of his mental health and marijuana use as well as his admission to hospital. The father was evasive in some of the questions and sought to distance himself from comments by him which are contained in the hospital notes in the subpoenaed documents. They contained admissions about smoking marijuana. The husband’s firm evidence is that he has not had any issues with his mental health since that admission to hospital in 2005 and he no longer smokes marijuana. His evidence is that he doesn’t take any medication because there is no need to, as there are no concerns about his medical health. There really is no evidence to the contrary. I accept his evidence in this regard. As there was really no other serious attempt on behalf of the mother to suggest that there might be other reasons why C would be abused or neglected in the father’s household, in any way attributable to the father, I find that there are no grounds to be concerned about C’s safety in regards to abuse or neglect in his father’s household. Indeed, on the contrary, I find that extended paternal family consisting of the paternal grandparents and C’s brother J, all of whom have a good relationship with C, provide an extended safety net and support system for the father. All of this leads me to have no concerns about whether C needs to be protected from physical or physiological harm as a result of abuse neglect or family violence.The father expressed concerns about various aspects of the mother’s lifestyle that would suggest C needed to be protected from abuse or neglect while in her care. He was particularly critical of her drug and alcohol consumption. The Family Consultant at paragraph 41 of the Family Report records her own concerns about the mother’s “instability of residence and lifestyle”, the “changes of school and home whilst in her care” experienced by C and the mother’s own acknowledgement of “a history of some amphetamine and alcohol use.”
The mother’s evidence in cross examination certainly confirmed what the Family Consultant referred to as her “instability of residence and lifestyle”. Since separation she has moved from the N area to Queensland and back at least twice and has changed residences several times within each of those areas For example, she has lived at C, then M, then at GP, and is currently residing near B. In her own evidence she acknowledges that C has changed schools several times, all within short periods of time. The most recent example of this instability of residence and lifestyle is found in the mother’s affidavit filed 8 February 2007. At paragraph 2 of that affidavit the mother states:
As from 5 December 2006 it was my intention to take up permanent residence in N. I was to be staying at a friends place at 1/101 Moss St, N 2541.
However, at paragraph 6 of the same affidavit she states:
I found that my move to N just did not work. I remained there for a period of approximately two weeks. I found that I had no close friends who could support me and I was away from my family.
It is difficult to know what, exactly, to make of this evidence. One possible inference is that the move back to N did not succeed because she could not obtain the support from friends that she had anticipated, or hoped for. Another possible inference is that the move was poorly planned in that the mother did not consider in advance the issues that caused her to go back to Queensland. It is odd that she asserts “and I was away from my family” when the move back to N brought her back into close contact with both of her sons. Whatever the proper inference to be drawn, this evidence certainly assists me to come to the conclusion that the Family Consultant’s description of the mother referred to above is indeed correct.
It also became apparent in her cross examination that she has been without her driver’s licence for several years, such a loss of licence initially being for DUI and then driving whilst disqualified. Her evidence is that she can only drive a car again in “about two years” time. She was charged with a low range PCA on 5 March 2001 and mid range PCA on 11 October 2004. Her drink driving indicates that the mother has a problem with controlling her intake of alcohol. Her driving whilst unlicensed demonstrates her willingness to engage in illegal behaviour as well as to take risks.
Her cross examination indicated that on 10 January 2005 she was charged with possessing a prohibited drug which she admits was an amphetamine. She was fined for that. On 29 August 2005 she was charged with driving whilst disqualified and was banned from driving until 17 March 2008. On 17 November 2005 she was charged with behaving in an offensive manner in or near a public place or school, a charge that the mother does not deny.
She was also examined in relation to an amphetamine related offence in Queensland. She admitted, initially, that yes, she had been charged once last year. When pressed about when, precisely, this took place she said initially that she was unsure, but then acknowledged it was probably December 2006. I find it somewhat hard to believe that on
19 March 2007 her recollection about this offence was so imprecise. She agrees that she was convicted but could not recall the sentence imposed. Her evidence about how much she had in her possession was that she was carrying “an empty bag.”She also admitted in cross examination that she did inject speed, but only a few times and that was a few years ago. When further cross examined about the amphetamine charge dating from January 2005, her evidence was that she just had it in her handbag and did not know what she was going to do with it. She acknowledged getting it from a friend but denied he was giving it to her to use. Further examination about the second amphetamine charge indicates that, in fact, it might have been an event that took place at the beginning of this year, or, in other words when she returned to Queensland after the period she spent in N in December 2006.
She admitted in cross examination that the second offence occurred when she was driving a motor vehicle. There was also an admission in cross examination that the person who had provided her the amphetamines has met the children and had contact with them. Notwithstanding all of this evidence, she denies that she actually takes amphetamines The mother’s explanation for having been charged not just once but twice in two years for possession of amphetamines is that it was “unfortunate.”
There is evidence that leads me to be concerned about the mother’s consumption of alcohol and prohibited drugs in the last two years and in fact in the few months leading up to the hearing of this matter. The combination of consumption of alcohol and prohibited drugs, that seems in the light of the mother to be so closely associated with irresponsible, illegal and risk taking behaviour leads me to have real concerns about the risk for C of being abused or neglected whilst in her care.
Whilst there is recent evidence from which I may conclude that the mother continues to be engaged in the unacceptable behaviour referred to above, there is no such evidence in relation to the father. There is evidence that he was a regular user of cannabis as recently as the period immediately before his admission to hospital in late 2005. There is no evidence, however, of recent or continued usage and there is certainly no evidence of abuse or neglect of C during the period in which he has been in his father’s care. Indeed, there is no complaint from the mother in this regard. Accordingly, I find that the mother’s proposal involves greater risk to C in exposure to abuse or neglect whilst in her care.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Section 60CC(3)(a) requires me to take into account the views expressed by C and the weight to be given to such views given his level of maturity and understanding. The evidence given about the views expressed by C contained in the affidavits of the mother and the father are conflicting and I draw no conclusion from that evidence. Exhibit ICL 1, a letter from the Independent Children’s Lawyer to his mother’s solicitor is, I accept, evidence of the expression of C’s views to his lawyer that he wishes to continue to live with his father. This is consistent with the observations of the Family Consultant contained in paragraph 44 of the Family Report:
C’s views combined with the loss he would experience in relocating to Queensland need to be given weight. Although the parents argue that he wants different things, his views were consistent throughout the assessment and also with what he advised the Independent Children’s Lawyer. C also reported that he has told both parents of his desire to remain living with his father at this time. A failure to respect his views may create difficulties for him in the future, in terms of his own sense of agency and decision making. It may also make him more curious about life with his father and brother and resentful that he was unable to remain living with them.
Mr Alexander, the mother’s counsel, submitted that C’s views should not, having regard to his age, be given persuasive weight. The expression of C’s views is but one of the additional considerations I take into account in this case. It will not be determinative on its own. The Full Court in R and R: Children’s Wishes (2000) FLC93-000 stated at paragraph 44 that, inter alia, what is required is that children’s views should be given “appropriate and careful consideration and not simply treated as a factor in the determination of the child's best interests without giving them further significance.” These comments were made in the context of a different iteration of the statutory list of what factors are considered in determining a child’s best interests. They nonetheless carry much weight. At paragraph 54 the Full Court reminded me that “ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.” In this case I cannot ignore C’s views as expressed to the Family Consultant and Independent Children’s Lawyer. However, as I indicated above, those views are but one of the additional considerations I need to take into account, albeit a weighty one.
Section 60CC3(b) The nature of the relationship of the child with each of the child’s parents; and other persons
Pursuant to s.60CC3(b) I am required to take into account the nature of C’s relationship with each of his parents and other persons It is clear that C has a good relationship with both his mother and father. He clearly also has a good relationship with his sister V and brother J and, according to the Family Consultant, the paternal grandmother reports being involved with C on a daily basis and assisting in any way she can. This is consistent with evidence the father gave. I infer from that that C has a good relationship with his grandmother. The two proposals compete with each other and, in fact, the dilemma is adequately summed up at paragraph 30 of the Family Report which stated that C appeared “resigned to the fact that whom ever he lives with, he will miss the other parent and siblings.” What is in C’s best interests having regard to this particular additional consideration coincides with the least detrimental alternative to him. The best outcome for C is that his mother and sister return to the N region. The mother is free to do so. If she chooses not to, however, to remove C from the safe, extended network of relationships he has with his father, brother and grandparents is not in his best interests.
Section 60CC(3)(c) 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
Section 60CC(3)(c) requires me to consider 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. The Family Consultant observes, and I think it is fair to conclude, that both parents readily acknowledge that the relationship between them is strained and the communication is extremely difficult. Both parents are proposing that should C live with them, and that he would spend school holidays with the other parent. The Family Consultant expresses no concerns in the Family Report about either parent’s willingness and ability to facilitate this
In her affidavit filed 8 February 2007 the mother gives evidence about her return to N in December 2006 and the attempts she made to spend time with C during that period. I do have concerns about how the father handled this During the two week period that she was there the mother said she only spent four hours with C. She asserts that the Father distracted C from his mother’s attention by giving him a motorbike and a new puppy. She says that the father insisted that his schooling could not be interrupted by his mother even though it was in the last week of term. The father was cross examined on this both by the wife’s counsel, Mr Alexander, and by the Independent Children Lawyer’s counsel, Mr Macpherson. His evidence was that he consulted C about spending time with is mother and C expressed a preference to go motor bike riding. The Father’s evidence was that he didn’t know where the mother was staying and, as far as he knew, she was only down for a visit. He also gave evidence about threats made to him by the mother.
The father handled this incident in December 2006 very poorly. Other aspects of his evidence indicate a willingness to facilitate a close and continuing relationship between C and his mother, but this particular incident casts some doubt on that. This consideration weighs in favour of the mother, but if at the end of the exercise of judgment it turns out that the considerations favour the father’s proposal over the mother’s, I will need to ensure that the orders made provide as little scope as possible for the father to undermine C’s time with his mother.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from 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
One of the most important considerations in this case is the likely effect of any changes in C’s circumstances, including the likely effect of separation from parents and other people with whom he has been living. Whilst it is clear that C’s primary carer was his mother until February 2006, it is equally clear that it has been his father since then. He has strong relationships with each of the important people in his life and I am satisfied that those relationships will remain intact. Paragraph 42 of the Family Report sets out the Family Consultant’s expert evidence in this regard:
A move away from the Shoalhaven, as proposed by Ms M, would represent for C the loss of his father’s regular involvement in his life as well as that of his brother’s C has expressed a desire to remain living with his father, and has explained that this is in part a curiosity borne from never having lived full-time with the paternal family. A move to Queensland would necessitate C spending only block holiday periods with his father and would limit the possibility of Mr K being involved in day to day parenting tasks A move would also involve the loss of extended family, most notably the paternal grandparents who appear to have been largely involved with the children in the past. It would also mean C moving away from a school he enjoys, as well as friendships and a life in a familiar area. C has expressed resistance to such a move and to the associated adjustments he would need to make.
It seems that the Family Consultant believes that the father’s relationship with C, is at least for the time being at this particular point in his life, an important one. The Family Consultant observes that the nature of the relationship between C and his mother had already changed as a result of her decision to move to Queensland, as outlined in paragraph 43.
Ms M’s decision to move to Queensland has involved a separation of her and V from C. This has obviously created sadness and a sense of dislocation. All the parties interviewed acknowledged that C loves his mother and does openly miss her at times. He also appears to miss the close relationship with his sister, and V also seems distressed by the loss of daily contact with him. It is unfortunate for C, as he describes, that wherever he lives he will experience the loss of a loved parent and sibiling.
Accordingly, whilst C’s relationships with both of his parents would remain intact on either proposal, the proposal that causes the least effect in terms of change is the father’s proposal. It keeps C living in the community in which he has lived for most of his life, attending the school which he enjoys, as well as protecting his relationships with his father, brother and grandparents (to a lesser extent). A legitimate criticism that was made of the mother during the period that she cared for C was that he was exposed to changes of residence and schooling. It is important to avoid further change in his life if at all possible. The father’s proposal is the one that is most likely to give effect to that. I find it is that proposal that is in C’s best interests.
I accept that the mother firmly believes that her proposal offers many positive changes to C’s life. Not only would C be living with his mother and sister, but in a place which, the mother believes, offers advantages in terms of education, lifestyle, employment etc. These latter advantages are easy to assert but hard to prove. Not only has the mother failed to establish these perceived advantages, but her own disorganised lifestyle and recent problems with the law actually indicate to me that the advantages she perceives are either illusory, or are rendered nugatory by her own behaviour. Of course there are benefits to C in living with his mother and sister, but these benefits need to be weighed up against all the other factors that are considered in this case. On balance I find that the changes she proposes are not in C’s best interests.
Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
In terms of the practical difficulty and expense of the child spending time and communicating with a parent; both parents propose that C fly from Sydney to Brisbane so that he may spend holiday time with each of the parents It also seems common ground that each will pay half the cost associated with doing this Accordingly, the practical difficulty and expense of C spending time with either parent is not a significant factor in this case.
Section 60CC(3)(f): 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 of the parents have concerns about the capacity of the other to provide for C’s needs In so far as these concerns related to issues of the consumption of alcohol and prohibited drugs as well as illegal behaviour, the evidence has been discussed above. Mr Alexander, on behalf of the mother, submitted that the father’s capacity to provide for C’s needs was very much based on a relationship with C that is activity based. The submission by Mr Alexander is that, having regard to that, and having regard to what he asserted was a lack of insight of the father about his own behaviour, I would have serious concerns about his ability to nurture C and provide for his emotional needs There is some substance to the assertion that the father lacks insight about his own behaviour. That was quite apparent during his cross examination when he failed to understand the relevance about evidence relating to his own mental health, his smoking of marijuana, his own bad driving record and occasional troubles with the law whilst at the same time complaining about not dissimilar behaviours of the mother. The father’s lack of insight was also apparent in the way he handled the mother’s return to N in December 2006. The father was also criticised for the care that he has provided to the oldest son, J, particularly having regard to J’s use of marijuana. The strong submission made on behalf of the mother is that in view of these supposed serious concerns about the father’s ability to nurture C, it is almost inevitable that C will get caught up in the same cycle of futility in which his father and J are caught up i.e. unemployment, consumption of cannabis etc.
The problem with Mr Alexander’s submission is that it is not borne out by the evidence. J is working. There is no evidence to indicate that the father is continuing to consume any prohibited substances. There is no evidence of tangible examples of the Father’s incapacity to provide for any of C’s needs. In any event, and to his credit Mr Alexander conceded this, in terms of capacity to meet C’s needs, the mother does not present a “perfect model” either (to adopt the terminology used by Mr Alexander). I find that she does not present a more attractive alternative in terms of capacity to provide for C’s needs She may well be able to nurture him in an emotional sense, but I have ongoing concerns about her involvement in drugs and alcohol and illegal and risk-taking behaviour. Further to this, any concerns that she has about the father’s upbringing with J are certainly matched, it would seem, by the father’s concerns of the mother’s upbringing of V who, at a comparatively young age, is living in a relationship with someone considerably older than her. There was also evidence of the mother’s quite inappropriate use of V as a go-between for the parents - a matter referred to by the Family Consultant at paragraphs 34 and 45 of the Family Report.
Overall I have concerns about the capacity of each parent to meet C’s needs, but on balance, I am satisfied that the father’s capacity is greater than the mother’s Particularly in view of the fact that he has stable accommodation, and the support of his family in the care and upbringing of C.
Paragraphs (g) to (k) of s 60CC(3) raise considerations that are, in my opinion, adequately covered elsewhere in these reasons, or are not relevant on the facts of this case.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Finally, paragraph (l) requires me to consider whether it would be preferable to make an order that would be less likely to lead to the institution of further proceedings in relation to the child. As indicated above, there is evidence on which I can base a finding that the Family Consultant described as “Ms M’s instability of residence and lifestyle”. If I granted the order that the mother sought, I have concerns that the matter would be re-litigated in the future. I am not satisfied that a move to B is a permanent one, or even a long term one. I could not rule out the possibility that if the mother continues her involvement in alcohol, prohibited substances, and illegal and irresponsible behaviour she will get into serious legal trouble which will result in her not being able to care for C.
Section 60CC(4) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent
Finally s.60CC(4) requires me to consider the extent to which each parent has fulfilled or failed to fulfill their responsibilities as parents I think much of the material I referred to above already falls within this sub section, and it needs no further comment.
Conclusions and orders
Mr Alexander’s closing submission to me on behalf of the mother was that C was at a cross road and that having seen both parents in the witness box I would have concerns and that the mother’s proposal for his care would provide for his greater potential. He emphasised the potential for harm in the father’s household. However, and as I indicated above, there is evidence that causes me to find that the concern I have about C in his father’s household is less than the concern I would have in his mother’s household. Indeed, I have far greater concern about C’s well being in his mother’s household. To take up a phrase used by Mr Hansen in his closing submissions for the father, the mother’s position is “far more precarious” than the father who can, at the very least, provide a safety net of established and extended support provided by his family. The discussion of these issues, and the findings I have made about them, clearly indicate that the weight of the primary and additional considerations referred to in s.60CC favour an order that C continue living with his father, and spend time with his mother during school holiday periods
As I have come to the conclusion that C's best interests are in continuing to reside with his father, brother and paternal grandparents at N I now need to give consideration to the precise terms of the orders It is common ground between the parties that C needs to spend time with his mother each school holiday period. The short minutes of orders proposed by the ICL are consistent with the recommendations made in the Family Report, with the exception of paragraph 51 which recommends an additional weekend with the mother each school term provided the parties can afford it. The orders that I make incorporate this recommendation. In addition, however, the Family Consultant gave evidence during her examination that he not be exposed to the consumption of cannabis. I accept her evidence in this regard and will make an order to that effect, applying of course to both households, and expanding more generally to all prohibited substances
I note that the orders proposed by the Independent Children’s Lawyer suggest that the mother be responsible for the collection and return of C, but I think there are a number of issues about this family that indicate towards another approach. Firstly, the level of communication between the parents is so bad that a more specific framework needs to be adopted for these travel arrangements, secondly it is more appropriate for the cost of travel to be shared equally between the parents and the order I make will provide for this
In conclusion, the orders provide that should the mother decide to remain in Queensland she will have the benefit of spending extended time with C during school holidays. However, the orders do not compel her to remain in Queensland, and indeed, the orders contemplate that should she return to live in the N area she will be able to enjoy substantial and significant time with C from Friday after school to Monday before school as well as other special times and school holidays.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 7 June 2007
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