MALBURG & WHITLOCK
[2019] FCCA 2763
•1 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALBURG & WHITLOCK | [2019] FCCA 2763 |
| Catchwords: FAMILY LAW – Parenting arrangements – interim or interlocutory hearing – whereby the mother has relocated from Hobart to Launceston – whereby the father has interfered in the mother’s ability to spend time and communicate with the child – relocation jurisprudence – reasons for moving – importance of child maintaining important and significant relationships – whereby past care arrangements are relevant and significant but are not determinative of the issue – child’s best interests. |
| Legislation: Family Law Act 1975, ss.60CA, 60B, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 Cowling & Cowling [1998] FamCA 19 Mazorski & Albright [2007] FamCA 520 Burton & Churchin & Anor [2013] FamCAFC 180 MRR & GR [2010] HCA 4 |
| Applicant: | MR MALBURG |
| Respondent: | MS WHITLOCK |
| File Number: | HBC 264 of 2019 |
| Judgment of: | Judge Harman |
| Hearing date: | 1 May 2019 |
| Date of Last Submission: | 1 May 2019 |
| Delivered at: | Hobart |
| Delivered on: | 1 May 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Davies |
| Solicitors for the Applicant: | Baker Wilson Davies Lawyers |
| Counsel for the Respondent: | Ms Mooney of Counsel |
| Solicitors for the Respondent: | Bishops Barristers & Solicitors |
ORDERS
All prior hearing orders with respect to the child X born … 2012 be suspended.
X’s parents, Mr Malburg and Ms Whitlock, shall have equal shared parental responsibility for the child.
X shall live with the mother.
X shall spend time with the father:
(a)Each alternate weekend from 5:30pm Friday until 5:30pm Sunday;
(b)One half of each short mid-term school holiday period agreed between the parents, or, failing agreement, from 11:00am on the first Saturday until 5:30pm on the middle Saturday;
(c)One half of each Christmas and New Year school holiday period as agreed between the parents, or, failing agreement, for the forthcoming Christmas school holidays commencing December 2019, from 11:00am Boxing Day until 5:30pm 19 January 2020.
For the purpose of the time spent by X with the father the parties shall meet at the main park at Suburb A at the commencement and conclusion of each period where X shall be exchanged between her parents.
Each parent shall be entitled to telephone or use other electronic means to communicate with X at all reasonable times and with reasonable frequency whilst X is in the care of the other parent.
Notwithstanding the above order with respect to equal shared parental responsibility, the mother shall be at liberty to enrol X at Suburb D Primary School without the consent of the father, but provided that the details of each parent shall be provided to and recorded by the school as both a parent and emergency contact person and so that each parent is able to obtain newsletters, reports or other information from the school and to be advised of and attend functions or events at the school at which parents are invited or encouraged to attend.
Pursuant to section 13C of the Family Law Act 1975 the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Legal Aid Commission Early Intervention Unit for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and, subject to the assessment of suitability, each party shall then attend at such times, dates and places as may be advised to participate in and complete Family Dispute Resolution prior to the next Court event.
Pursuant to section 13C of the Family Law Act1975, the father shall forthwith and within 7 days contact the intake officer of Relationships Australia Hobart and the mother shall forthwith and within 7 days contact the intake officer of Catholic Care Launceston, for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for family counselling services offered by that organisation and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such program.
Adjourn the proceedings for further mention and directions to 30 September 2019 at 9:30am
THE COURT NOTES THAT:
A.The purpose of the adjournment is to enable the parties to participate in Family Dispute Resolution and Family Counselling with a view to improving their communication with each other and seeking to resolve some or all of the issues extant between them.
B.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Malburg & Whitlock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
HBC 264 of 2019
| MR MALBURG |
Applicant
And
| MS WHITLOCK |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to the future care arrangements of a young child, X, born … 2012.
It is germane to observe, from the outset, that young X has, certainly in 2019, experienced trauma after trauma.
It is regrettable that these proceedings are before the Court. The parents have been unable to resolve the controversies that arise between them.
The parties to the proceedings are X’s parents, her father, the applicant, and her mother, the respondent.
Material considered in dealing with the proceedings
I have read the material that the parties have identified, as would be apparent from the transcript, comprising their Application and Response respectively, a brief case outline by counsel for the mother, the notices of risk and the affidavits that have been filed by them.
Evidence
A chronology of events is relatively easy to construct and represents, by and large, agreed fact as between the parties.
As the Full Court discussed in Goode & Goode [2006] FamCA 1346 and subsequently Marvel & Marvel (No.2) [2010] FamCAFC 101, it is important for the Court, at an interim hearing, to focus upon the agreed facts as between the parents as being the most reliable basis upon which findings can be made.
As discussed at paragraph 68 of Goode & Goode [2006] FamCA 1346, absent agreement or irresistible corroboration, it may well be fraught with difficulty, if not danger, to proceed to make concluded findings of fact at an interim or interlocutory hearing, when the evidence is prepared hurriedly, is not able to be challenged by cross-examination and the evidence is untested. Accordingly, the agreed facts are particularly illuminating in this case.
The parties separated in February 2012. At that point in time, X was 13 months of age.
The parties entered into consent orders in August 2013. Those orders provided for a shared care arrangement between the parents and invested the parents with equal shared parental responsibility.
Those arrangements continued until 2017, when the parties negotiated a parenting plan. I will refer to the document in those terms as it is the language used by the parties. The document referred to is neither executed nor dated by the parties. In the absence of execution and dating the document is not a parenting plan but an inadmissible document relating and evidencing the conclusion of settlement negotiations. However, the Court is advised that the document was, in fact, signed and dated, and the signed copy is simply not available at present.
Irrespective of whether the document represents a parenting plan as defined under the Family Law Act 1975 or not, the parties are certainly in agreement that from that time they then commenced to practice the arrangements referred to therein in relation to X’s care. Those negotiations occurred in the early part of 2017 and they were contemporaneous with X commencing her formal education.
From early 2017 the arrangement changed so that X was predominantly cared for by her mother and, importantly, the mother’s partner. X also lived with the child of that relationship, young E, who was born on … 2015 and who has recently turned four. X continued to live with her mother and attended Suburb B Primary School in 2018 and until the early part of 2019.
X’s parents would appear to have lived about 30 to 40 minutes apart from each other until recently, the mother living south of Hobart and the father on the Region C. The father’s address is not disclosed to the Court nor, would it seem, to the mother. The father raises certain matters wherein he suggests that there would be difficulty in such a disclosure being made.
The mother moved from her accommodation in Hobart to accommodation in Launceston in the latter part of March 2019. That fact would appear to have been disclosed to the father as an actuality rather than as a proposed move. The move was disclosed by the child when she was in the father’s care for what was to be a weekend period of time commencing 22 March. As a consequence of that disclosure, the father has retained the child in his care.
The mother addresses those circumstances in some detail in her affidavit material. She describes that she first became aware that the child would not return to her care on Sunday, 24 March when she received a text message, (paragraph 42 of her affidavit):
Dear, Ms Whitlock. I have cause to believe you are moving to Launceston without consideration for X.
Whether the father was in a position to make such a statement or assumption may be a matter for challenge, but it is the text of the message which continued:
I do not give you consent to move X to another school, [although, ironically, the child has moved to another school as the father has discontinued X’s enrolment at Suburb B]. Therefore, I will not be handing X over until this situation has been resolved.
That arrangement has been the reality for X since 22 March, 2019 when the child left the mother’s care to commence what was to be a weekend period of time. The child has not seen the mother, her stepfather or her brother since. There is controversy as between the parents as to how frequently X has spoken to her mother by telephone. The mother asserts three occasions. The father suggests that it is far more frequently.
The child has now been enrolled at a school in Hobart and commenced attending that school on Monday of this week, corresponding with the father’s return to the country from Country F where he had holidayed for the preceding week, X having been cared for by paternal family members during his absence. The mother, it would seem, was not aware of that arrangement or circumstance until it was raised in court this Monday.
The proceedings were listed for possible interim hearing on Monday. The matter needed to be adjourned as the father had not then returned from the holiday. The matter proceeds today on the basis of the above material and submissions.
Another factor which must be alluded to, although it is with some hesitation in light of the distress that it may well cause, is that upon which the mother’s relocation to Launceston was prefaced. The mother’s move followed or precipitated by a diagnosis applicable to her partner, her husband. At the end of January, 2019 the mother’s partner was diagnosed with cancer. He underwent surgery in relation to that, an incredibly invasive surgery it would seem from the brief description of it.
The mother’s partner’s family reside in and about Launceston and it is for that reason that they have relocated there. The mother’s partner has been absent employment, it would seem, until recently. The Court is now advised he has returned or is in the process of returning to work, again, in the Launceston area.
Those circumstances have some relevance in relation to a criticism of the mother, appropriately raised perhaps, that young X has had a record of full school absence from the commencement of term 1, 2019 shortly after 31 January 2019 and until 22 March. A school attendance record is tendered exhibit A2, together with a photo of the child in the uniform of the new school that she is attending, exhibit A1. The mother also tenders a document, exhibit R1.
The child’s school attendance, one would think, might be readily explained by the difficulties that were being faced by the child’s family of residence at that point in time.
Beyond that, there are other criticisms raised of the mother. It would not seem that any of them are of any great moment or significance.
The mother is criticised for having had an instability of housing. There is no real evidence before the Court as to child support arrangements. They may have had some impact. They may not. The evidence is simply absent. Certainly, the mother is dependent upon the rental market for accommodation. It is well-known, even on the mainland, that rental accommodation in Tasmania, particularly in the Hobart area, is hard to come by, as discussed, for example, on Monday of this week when that issue was raised in the local media, The Mercury. The number of accommodations available for rental has reduced by 67 per cent in the period from 2015 to the present. Rental accommodation as a proportion of average weekly income is at its least affordable in Tasmania, whilst perhaps the mainland has far more expensive accommodation but rental is cheaper.
One could not be critical of a person who is in limited employment, with the mother having been dependent upon her partner’s income until quite recently, and he now being absent or having been absent from employment for some little time and, thus, subject to instability of housing. Housing insecurity would be expected. Certainly, the father is in more stable accommodation, having built a home on the Region C of Hobart.
The mother does not have a drivers licence. That might create some degree of difficulty, particularly now that the mother is living in Launceston and would need to travel either to collect the child to spend time with her or to deliver the child for the father to spend time with her. It does not mean it cannot be overcome.
However, there are no real criticisms of any moment of either of these parents. They are capable and loving towards their child. That perhaps, again, beggars the question why the parties are before this Court, why any parent – either mother or father – would place this child, whom they profess to love, in the circumstance of their arrangements being determined by a complete stranger, a judge of this Court, rather than by the parents themselves who love and know this child well. It also begs the question of why the child, since 22 March, has not physically spent time with her mother, stepfather or brother if they are, as is conceded, significant and important relationships of this child. If that is so then you would think that those relationships would be fostered.
I do not propose to canvass the evidence in any great detail, other than to raise further aspects of the evidence in discussion of the legislative provisions to which I am shown.
Legislative provisions
I am conscious that there must also be some degree of discussion as to what is often referred to as jurisprudence related to relocation.
Certainly, the mother has relocated herself. On her proposal the child would be relocated.
As observed by various justices of the High Court, including Hayne and Kirby JJ most notably, a relocation case is a misnomer. There is no such thing. It is a parenting case that involves a proposal or, in this case, an actuality of a parent relocating. As discussed by Kirby J in AMS & AIF (1999) FLC 92-852, relocation is far from unusual. Relocation is increasingly common as discussed in that authority, albeit decided some little time ago.
The parties’ proposals must be identified from the outset. The mother proposes that the arrangements that have been in place between these parties in relation to their shared care of X would, by and large, and with a substantial increase in travel, continue. The mother’s proposal is, as the parties have practiced since February 2017, that the child would live with her mother and spend alternate weekend and half school holidays with her father.
That is also the father’s proposal, albeit in reverse. It is suggested that this would not represent any interference with the capacity of young X to maintain her important and significant relationships with the mother, or X’s stepfather and brother. It is, however, a significant qualitative and quantitative variance to the practice of those relationships.
This child has, since the birth of her brother, lived with him. For the first year or two of his life that was for one‑half of the time and, since February 2017, it has been for all of every school week. Accordingly, it is a significant change to the practice of the relationship, although that the relationships would be continued and preserved through that which is proposed by the father.
I am also conscious in that regard, as discussed by the Full Court in Goode & Goode [2006] FamCA 1346 and more recently Marvel& Marvel (No.2) [2010] FamCAFC 101, that past care arrangements are relevant and significant but are not determinative of the issue. Previous authorities, such as Cowling [1998] FamCA 19, Griffiths (1981) FLC 91-064, Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239 are no longer, at least in that regard, good authorities. It is not a case of determining a pre-existing arrangement and then restoring it lest there be a finding of unsuitable risk. It is a matter of taking those arrangements into account to draw from them what can be drawn as to what has or has not, in the past, met the child’s needs and interests.
It must be accepted that the arrangement that had applied in February 2017 till March 2019 was agreed by the parents to meet the child’s needs and interests. In any event, one cannot restore the arrangement that had previously existed. The mother does not propose to relocate to Hobart and return the child to Suburb B School. Indeed, the father does not propose the child continue at that school either. He has already changed the child’s school.
Thus, the child has experienced significant changes, indeed, in many respects, as already outlined, traumas since the beginning of the year. She has had a diagnosis of cancer applied to someone of great significance and importance in her life, her stepfather. She has had the trauma that followed thereafter with intervention and treatment. That has interfered in her school attendance, although other factors might also have come into play. She has then had the change that occurred on 22 March.
It is submitted that the proceedings arise from the mother’s unilateral determination to move. On one view that is so. In reality, the proceedings arise from the father’s unilateral retention of the child, whether the mother had or had not relocated at all. Two wrongs do not make a right, as the proverb says. Indeed, all that is achieved for this child is additional trauma and unhappiness.
That it is suggested that the child has not asked after the mother or expressed that she is missing the mother, her stepfather or sibling is perhaps a criticism of the father. It is lacking insight to suggest that the child would not miss them. They are people that she has lived with all of her life and whom, it is conceded, she has significant relationships with.
The Court must proceed to determine the case by reference to section 60CA, placing as paramount the child’s best interests.
It is not the Court’s role to punish parents who act inappropriately. Each has. The mother certainly could and should have gone about things differently in terms of a facilitated negotiation with the father regarding the child’s change of school and move north. The father could and should have gone about things very differently in retaining the child, particularly when the mother was not proposing any qualitative or quantitative variance to his practice of relationship.
The father might have had some greater consideration, perhaps empathy, for the position that the mother was in, her partner diagnosed with a significant illness and experiencing significant invasive surgery causing him to be absent from work and recuperating following the invasive surgery.
Of course, they are not things that either party has done. The Court must simply pick up the pieces, but do so through the prism of the child’s eyes and the child’s best interests. This little girl has, again, experienced trauma after trauma in the last few months.
I must have regard to the objects and principles in section 60B and which I incorporate herein:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles do not form part of the substantive law to be applied to the facts of the case, but they do guide the philosophical outcome that the Court should endeavour to achieve in making any order. Thus, they are of some assistance in interpreting the provisions of the Act.
The Court must make orders that ensure that children’s best interests are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent that is in their best interests. Each of these parents has a great deal to offer the child. Perhaps some deficiencies on the mother’s part in terms of distraction through her partner’s illness, although that is entirely appropriate and explicable.
What is more significant, perhaps, is the deficiency of not understanding, from the child’s perspective, the last five weeks or so, what has occurred and the events that have occurred in that period. This child not seeing her mother, brother or stepfather, the latter of whom she knows is significantly ill, would have been distressing for this child, and I have no doubt that it would be so. Whether she has articulated that to her father may mean, and I am not convinced that it is so, that there is some lack of closeness in their relationship. She is suggested to not communicate that loss although it is unlikely that she does not grieve the loss of that relationship. This father is a good father to this child. It could simply be that she is fully aware that expressing that loss is not something that will receive a welcome reception, but it is a reality for the child. She would have real concerns as to what was occurring.
Both parents can have a meaningful involvement in this child’s life. It will involve travel if the mother intends to remain in Launceston and the father in Hobart. They will be two and a half hours or so apart from each other. That is not a distance that cannot be traversed. There are many in the Tasmanian population who make such journeys on a regular basis including for work. Accordingly, it is not a practical difficulty to the extent that arrangements simply cannot be put in place. That they have not been put in place in the last five weeks has not been focused at all upon the child’s interests, but upon retention of the child to ensure security of placement.
The child must be protected from harm. There is no harm arising for this child from abuse, neglect or family violence. It can be discounted and need not be further discussed.
The Court must make orders that ensure that children receive adequate and proper parenting. That can, perhaps, be unbundled by reference to the additional considerations. The child will be adequately and properly parented by each of these parents whilst ever she is in their care.
The Court must make orders that ensure the parents fulfil their duties and meet their responsibilities. The starting point for discussion of those duties arises as the corresponding and collateral right of the child and the parents’ duties and responsibilities to ensure those rights are fulfilled. Those rights are created by the principles in subsection (2). They are not absolute and neither enlivened nor practiced when to do so would be contrary to the child’s best interests, but, in this case, absent any significant or serious allegation of abuse, neglect or family violence, that caveat need not trouble the Court further.
Young X has a right to know and be cared for by both of her parents, a right frustrated and denied to her in the last five weeks. She has a right to spend time on a regular basis and communicate, not only with her parents, but with other people of significance to her including her stepfather or, as the American language more appropriately describes, her emotional second father, without wishing to cause any controversy as regards the Court’s jurisprudence fixed upon the duality of parenting.
This child has a right to have the parents share duties and responsibilities regarding her care. Certainly, the mother has disregarded that to some extent by unilaterally changing the child’s school, although that is, again, to be viewed within context. That cannot be considered outside of the facts and circumstances of this case or taken out of the context which gives them meaning.
I cannot begin to imagine what the mother, her partner, young E and young X have gone through emotionally in the period since the end of January. It must have been a difficult time for them. I do not discount that it has been a difficult time for the father. To be told by his child that she is now going to and will be attending a different school at the other end of the state would be distressing for him. However, the difficulties that have arisen in the mother’s household – and it is a household that comprises four people - two adults and two children – have taken priority and precedence, explicably and appropriately so.
If the child’s school attendance has been less than ideal at the beginning of this year, so be it. Children share in the events that happen in the lives of their parents and in their household. The events that have happened in the mother’s household have been nothing short of catastrophic so far this year. Accordingly, I am not critical of the mother to the extent that would occur if she had simply determined for herself, without any reason, that she is moving.
Again, returning to relocation jurisprudence, reasons for moving are often discussed. It is well established law, since the High Court’s decision in AMS & AIF (1999) FLC 92-852, that a parent need not demonstrate a reason for moving. They need not get the Court’s “permission”. It is simply the determination of a parenting dispute in which there is the added parameter of a parent desiring significant change for a child. As the High Court has concluded, however, reasons can give the context. They can be of assistance to the Court in understanding the evidence. This is one such case.
The mother’s desire to move, so that she has the support and assistance of her partner’s family, whilst she is providing him support, is entirely explicable. Indeed, in the circumstances in which the family found itself, it is irresistible that such a move would happen. A lack of empathy demonstrated by the father towards the move demonstrates self‑interest, but parents are entitled to be so self-interested. It is a concern, however, that the child’s needs and interests would appear to have been overshadowed as a consequence.
Parents should agree about future parenting. It is X’s right that it be so. They clearly cannot and, thus, they each disregard that right.
The child is not suggested to have any particular experience of heritage or culture that needs consideration.
The objects and principles do not otherwise assist to any great extent in this case so as to dictate any particular matter.
In turning to section 61DA, I must consider whether the presumption of equal shared parental responsibility applies. These parties and each of them desire that it apply and each seeks an order for equal shared parental responsibility. I propose to make such an order.
That then requires, by reference to section 65DAA, that the Court consider orders for equal and substantial and significant time before any other time arrangement. The parents would appear to agree, appropriately, that such arrangements are impractical and, thus, not in the child’s best interests. These parents would appear to have made that agreement with each other. There is the acknowledgement and acceptance that it was so in February 2017, when they changed their then equal time arrangement so that the mother had a preponderance of time with this child.
That being so, I will consider all arrangements at large, but in the context of the order for equal shared parental responsibility as submitted to by each parent.
In considering section 60CC I must commence with the primary considerations in subsection (2), being the benefit to the child of having a meaningful relationship with both parents (as discussed by the Full Court in Mazorski & Albright [2007] FamCA 520 and confined to parents as required by Burton & Churchin & Anor [2013] FamCAFC 180) as well as the need to protect the child. That need to protect is prioritised by subsection (2A) above all else, although, in this case, it need not be applied.
Thus, the Court is left with the positive consideration of the benefit, to this little girl, of a meaningful relationship with her mother and her father. There is great benefit to her from those relationships. What one might gather from past practice of those relationships is that the parents have previously agreed, and have agreed at all times until 22 March 2019, that this would best be achieved through the child having a preponderance of care provided by the mother.
That agreement between the parents, however, is now history. It does not bind the Court in any event. The benefit for this little girl will be achieved by continuing to spend real and significant time with each parent. The only question is which parent has the preponderance of time. It will be the mother. That is the arrangement that has met this child’s needs perfectly well until the beginning of this year.
The disadvantages of school attendance and the like has arisen in the context of a crisis – a traumatic, catastrophic crisis – in the mother’s household. The child need not be protected from that chaos. It is chaos that affects her family. She is not disadvantaged by being aware of it or being part of it. She is, perhaps, disadvantaged by being aware of it but not able to participate.
I must have regard to the additional considerations commencing with the views of the child. There is no evidence that this child has expressed any view in favour of one proposal or another. In any event, it would not be binding upon this Court. I am conscious of authorities such as Harrison & Woollard (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43 regarding children’s wishes. The Court should place weight upon the child’s views having regard to their maturity and the circumstances in which those views are expressed. Chronological age has little if any meaning. Although, in regard to children’s wishes, the child the subject of that authority was seven years of age, the same age as young X, there is no evidence of the views, and I infer that she would be distressed by the prospect of not practicing her relationship with either of her parents or, importantly, her brother or stepfather. The Full Court has been clear that with respect to additional considerations one can include such others and need not confine consideration to parents (per Aldridge & Keaton (2009) 42 Fam LR 369).
That desire, by this child, to practice those relationships has been horribly and cruelly frustrated. The child will continue to have a relationship with each parent in a pattern with which she is familiar, a pattern that has applied in the past. That is not to restore the arrangement of care, but to acknowledge that it has met the child’s needs well in the past and will continue to do so in the future. The Court’s concern is not with the particular accommodation in which a parent or either parent has resided with the child. That is dealt with authoritatively by the Full Court in Archbold & Archbold (1984) FLC 91-532.
It is the quality of care arrangements and the child’s quality of attachment in relationships that is significant. This child is used to it. She has, for two years of her short life, lived with her mother, stepfather and brother, prior to that having lived in a shared care arrangement but still significantly with those persons. That is not to ignore the significance of this little girl’s relationship also with Mr Malburg’s partner. However, that is a relationship that has been practiced in that fashion.
The desires of each of the parents cannot be fully achieved or realised, but X’s needs can be.
The nature of the relationship of the child with each parent and others is also to be considered. The most significant relationship for this child, beyond her parents, is with her brother, a relationship that will serve her for all of her life and one would think, in due course, beyond the passing of her parents. That significant sibling relationship is also disrupted. Whilst it can be practiced on the basis of the father’s proposal, it is, again, both a qualitative and quantitative variance of the child’s experience.
The extent to which the parents have failed to take the opportunity to participate in decision-making and spend time with and communicate with the child is not particularly relevant.
What is relevant is the corollary previously contained in section 60CC(4), the extent to which each parent has interfered with the child’s ability to do so.
The mother did not consult the father about the move. She may have raised it with him, but she did not seek to negotiate the change of arrangement, although, again, when that is viewed in context, it is somewhat explicable. The mother was not proposing any change in the father’s practice of the relationship. She was proposing a change in her place of residence with X and the school that the child attended. She has consistently endeavoured to continue the alternate weekend and school holiday arrangement that had been in place since February 2017. That is a credit to her.
It was her proposal that she would undertake the majority of travel. In the circumstances of the case, and as the parties have not been able to reach agreement, the Court must impose a solution. I intend to have the parties share that travel. That would be beneficial for X. Rather than one very long trip with an inexperienced driver, as the mother is or will become on her being licensed, she will have two shorter trips, one with each parent. That will allow the child the opportunity to get out of the car, stretch, use a bathroom, have something to eat, etcetera. That is child focused, rather than punitive.
I accept the mother’s concession that she would undertake the travel if it accommodated the father and her move to Launceston. However, the child’s interests would be better served by the parents, who have equal shared parental responsibility, actively undertaking that responsibility by sharing travel. Accordingly, the roughly midway point of Suburb A will suffice. It is well equipped with places that serve drinks and beverages, a park, and other facilities.
The father, similarly, has interfered in the mother’s ability to spend time and communicate with the child, on any version of the evidence. The only proposal that was clear in the evidence as regards the mother spending time with the child, is a proposal for Easter, four weeks after the child left the mother’s care, and that to occur at a park in Hobart in the father’s presence and under his supervision. Why that would be so other than to assure, as the father made very clear in his message, that the mother did not seek to retain the child in her care, is unclear. It is also a visit that would have occurred immediately before the child went to spend a week with grandparents rather than her mother.
Accordingly, to the extent that there is criticism, each can be validly criticised, but the Court does not make decisions either on the basis of retribution or misericordia. Decisions are made by reference to the child’s best interests. Neither of those actions was entirely in the child’s best interests, although, as already discussed, the chaos arising from the trauma in the mother’s household has, at least, given explanation for the mother’s actions.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child, that is simply not addressed in the evidence.
The likely effect of any change including separation from either parent or any other child or person with whom the child has been living is relevant. It cannot be repeated often enough. This child has important and significant relationships with people other than her parents, particularly her brother and her stepfather, also her stepmother. She has lived with the stepfather and her brother E. That reality was brought to a shuddering halt, without notice to the child and without notice to the mother, certainly without notice to E.
E’s best interests are not the Court’s consideration for the purpose of determining the orders to be made, but his interests are relevant. He is the brother of X, the subject child. It is suggested, in the mother’s case, that that child has been highly distressed by his sister’s removal from the household and asks after her repeatedly. That would not appear to have been a factor considered in the last five weeks. That certainly supports the child’s return to the mother’s household.
As regards practical difficulty and expense, I incorporate section 65DAA(5). The parents will live a distance apart. The father does not propose that he move to Launceston and the mother does not propose to return to Hobart. Certainly, whilst I am conscious, as the High Court has discussed at length in U & U [2002] FLC 93-112 and MRR & GR [2010] HCA 4, that one must consider all proposals, the parties have not addressed, through evidence, whether that is possible or would be possible, but each has been clear that it is not a consideration for them. Thus, it cannot be taken further. Neither party seeks an order, for example, that the mother be required to return herself to Hobart. The father simply seeks, on an interim and final basis, the same relief, that the child live with him simpliciter.
I must have regard to the distance, two and a half hours or so by car. The parents’ capacity to implement arrangements with respect to equal or substantial and significant time is, as these reasons commenced, problematic in light of the distance if nothing else. It is also not an arrangement that recent practice has approached. The parties have engaged in a more traditional arrangement, if it might be so described, of alternate weekend and school holiday time, although still falling, per Full Court authority, within the description of substantial and significant time. That is what each now proposes. From the mother’s perspective it would be a return to the arrangement that was followed, on the father’s proposal, a reversal.
The parents’ capacity to communicate is poor. They will be assisted in that regard by family counselling services and attendance at family dispute resolution. Orders will be made under Part II of the Act, to compel such attendance, although it is a matter for the parties as to what they learn from it. The Court can intervene if they refuse intervention. It cannot guarantee the outcome.
The most important aspect of practicality is the impact of the arrangement on the child. On one view, as the father submits, the child will now change schools again. Indeed, she will. She has already changed schools. The father’s evidence, as pointed to by counsel for the mother, is that whilst the father indicates that he is able to and could have continued the child’s enrolment at the Suburb B Public School he chose not to do so. The mother suggests that the father has not been involved in that school previously. The father suggests he was precluded in some fashion from doing so. Whether the mother is correct or the father, what is indisputable is that it simply has not occurred. If it was a matter of such great moment, there has been two years to take some action about it.
Accordingly, if this little girl is now to commence school in Launceston, she will have another change, but it is a change upon an earlier change, and this little girl is, today attending her third day at the school at which she has been enrolled by her father. She will not have had any significant time to form friendships and peer relationships. Accordingly, that is not a significant change that will impact upon this child.
The more significant impact on this child of the changed arrangement is that which has already occurred - the qualitative and quantitative variance of her practice of relationship with her mother, stepfather and brother. That is not to prioritise the mother’s relationship with X over the father’s, but is simply to accept the reality that this is the arrangement that has applied in this child’s life for more than two years, now terminated entirely for five weeks and to be resumed forthwith.
The Court must have regard to the ability of the parents to meet the child’s emotional and educational needs. There is complaint that the mother has failed to meet the child’s educational needs, but that is confined to the first five or six weeks of this school year. That is a matter corresponding with the period of diagnosis of the stepfather’s illness. Why that would need to be pointed to as a significant criticism of the mother in those circumstances, and whether aware of at the time or aware of it today, is unclear. One would expect that it would be a catastrophic period in the mother’s household and, thus, it would have some impact on the child. X’s school report, exhibit R1, does not suggest that she experienced any significant disadvantage as a consequence.
The capacity of the parents to meet this child’s emotional needs favours the mother’s case. The complete absence of time between the mother, brother and stepfather with X is not a credit to the father. I accept and understand that he would have felt that the mother would have used self-help at the earliest opportunity. The father would know and understand that the mother retaining the child is possible because that is exactly what he did, although he did not negotiate a period of time to commence on 22 March for that purpose. He simply formed that intent once told by the child that the move was afoot.
However, that is, again, entire self-interest and self-focused, not a focus on this child. To suggest that because she has not asked after her mother, stepfather or brother suggests that it may not have caused her some degree of distress significantly lacks insight. The child, knowing her stepfather is ill, knowing that her mother would be distressed, and her brother with whom she has lived since his birth is now absent her life, would cause this child disquiet. That favours the mother’s case.
Maturity, sex, lifestyle and background of the parents is not particularly relevant, nor is Aboriginality or either parent identifying as such. The attitude of the parents is already addressed by the above comments.
Family violence is not raised in any significant fashion. The father complains that the mother is hostile towards him and his partner and that is why he does not wish to disclose his address. However, the evidence that is led does not go so far as to support a finding, even on an acceptance of the evidence on its face as more probably correct than not, that such concerns are of great moment or that family violence has occurred.
There is no family violence order.
As to whether it is preferable to make orders that will avoid future proceedings, the best that can be done in that regard is to make orders that are clear and certain. I will make orders under Part II of the Act, to engage the parents in therapeutic assistance. It is a matter for them to take it up in the spirit that will be required to take it up in terms of the Court’s order.
For those reasons, however, I make orders as follows.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 27 September 2019
Key Legal Topics
Areas of Law
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Family Law
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Procedural Fairness
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Jurisdiction
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Remedies
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