Maloney and Maloney
[2011] FMCAfam 51
•28 January 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MALONEY & MALONEY | [2011] FMCAfam 51 |
| FAMILY LAW – Children – parenting plan not child-focussed – whether child should live with father in Tasmania or with mother in Victoria – mother’s involvement in prostitution – travel to Philippines – child’s best interests. |
| Family Law Act 1975 (Cth) ss.60B,60CA, 60CC, 61DA, 65DAA |
| Aldridge & Keaton (2009) FLC 93-421 KB & TC (2005) FLC 93-224 Carpenter and Lunn (2008) FLC 93-377 Champness & Hanson (2009) FLC 93-407 Chappell and Chappell (2008) FLC 93-382 Cilento and Cilento (1980) FLC 90-847 Cowling v Cowling (1998) FLC 92-801 Goode and Goode (2006) FLC 93-286 Griffiths and Griffiths (1981) FLC 91-064 Mills & Watson [2008] FMCAfam 2 MRR v GR (2010) FLC 93-424 Mulvaney & Lane (2009) FLC 93-404 N v N (1997) FLC 92-782 |
| Applicant: | MR MALONEY |
| Respondent: | MS MALONEY |
| File Number: | LNC314 of 2009 |
| Judgment of: | Roberts FM |
| Hearing date: | 3 & 4 November 2010 |
| Date of Last Submission: | 4 November 2010 |
| Delivered at: | Launceston |
| Delivered on: | 28 January 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Crawford |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Ms J Higgins |
| Solicitors for the Respondent: | Coulter Roache |
ORDERS
That orders 1 to 9 inclusive of the orders made on 30 April 2010 are discharged.
MR MALONEY (“the father”) and MS MALONEY (“the mother”) have equal shared parental responsibility for [X] born [in] 2002 (“the child”).
That the child is to live with the father in Tasmania.
That the child spend time with and communicate with the mother as follows:
(a)in Victoria for the entirety of the child’s Tasmanian school holidays at Easter and at the end of each of her first and second school terms;
(b)in Victoria for one half of the child’s Tasmanian long summer school holidays, being:
(i)the first half when those holidays start in an even numbered year;
(ii)the second half when those holidays start in an odd numbered year;
(c)in Victoria for a minimum of two weekends during each of the child’s Tasmanian school terms, as agreed between the father and the mother, but failing agreement the first such weekend during each school term is to be the fourth weekend after the last weekend in the preceding school holiday and the second such weekend is to be the fourth weekend thereafter;
(d)by telephone and email at least three times weekly and on the child’s birthday, Christmas day and Mothers’ day if those days occur when the child is with the father.
That on each occasion that the child is travelling from Tasmania to Victoria for the purpose of spending time with the mother, the father must book and pay for the child’s travel.
That subject to the availability of suitable airline bookings for the unaccompanied travel of the child, the father must ensure that the time of departure for a plane on which the child is travelling in either direction is between 4.00 p.m. and 6.00 p.m.
That the father and the mother are permitted to remove the child from Australia for the purpose of travel to the Philippines during any non-school period while the child is not spending time with the other parent in accordance with these orders, provided that;
(a)
the parent taking the child to the Philippines provides the other parent with a detailed itinerary of the child’s travel at least
21 days prior to the child’s scheduled date of departure; and
(b)the child is returned to Australia in time for any passing into the care of the other parent in accordance with these orders.
That if there has been compliance with sub-paragraph (a) of Order No. 7 hereof the child’s passport is to be provided to the parent taking the child to the Philippines at least 10 days prior to the child’s scheduled date of departure for the Philippines.
That the father and the mother are each hereby restrained from removing the child from Australia unless and until there has been compliance with sub-paragraph (a) of Order No. 7 hereof.
That the father must do all things necessary to ensure that the mother obtains information in relation to the child’s education (including but not limited to school reports, school photographs, order forms and notices).
That the father and the mother must each inform the other fully of any illness or accident suffered by the child and, except in the case of an emergency, must each consult with the other prior to the child receiving medical treatment or undergoing surgery.
That the father and the mother must notify the other of any change of address or telephone number within 48 hours of such change.
IT IS NOTED that publication of this judgment under the pseudonym Maloney & Maloney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC314 of 2009
| MR MALONEY |
Applicant
And
| MS MALONEY |
Respondent
REASONS FOR JUDGMENT
When I heard their competing interim applications on 30 April 2010, I described the parenting plan that the parties had entered into in May 2009 (“the parenting plan”) as “the least child-focussed parenting plan that I have ever encountered” (or words to that effect). I have not changed my mind about that.
Background and applications
Where I refer to any fact in these Reasons, it should be regarded as a finding of fact unless a contrary intention is clear from the context.
The Applicant (“the father”) was born in Australia in 1957 and is aged 53 years. The Respondent (“the mother”) was born in the Philippines in 1977 and is aged 33 years. They were married in the Philippines in 2001 and the mother migrated to Australia later that year, settling in Tasmania with the father.
The parties’ only child [X] (“the child”) was born in 2002 and is currently aged 8 years.
The parties’ separated in 2004 and were divorced in 2005.
The father remarried in late 2006. His current wife will be 26 in February. They have a son (“P”) who is aged 5 years and are expecting another child in late April 2011.
After the father and mother separated in 2004, the mother established a home in Melbourne and moved regularly between Melbourne and Tasmania. By her own admission, she worked as a prostitute in Melbourne at various times between 2005 and 2009 in order to supplement her income from [omitted] work.
Over the next few years the child spent regular time with each of her parents.
On 17 March 2009 the father completed an application for orders that the child lived with him and spend time with the mother during school holidays. He also sought permission to be able to take the child to the Philippines during any school holiday when she was not spending time with her mother.
Because the father was not able to obtain a Section 60I certificate until 18 May, the father did not file that application until 19 May 2009. However, on the next day the father filed an amended application essentially seeking orders in terms of the parenting plan referred to in the next paragraph hereof.
Why the father felt it necessary to file that amended application is a little bit of a mystery to me because the parties entered into the parenting plan on 19 May 2009 which provided as follows:
1. The Child is to spend three (3) weeks alternately with each of the Father and the Mother, commencing with the first three weeks which are to be with the Mother from the date of this agreement.
2. The changeover at the end of one period of three weeks and the commencement of the next period of three weeks is to take place as follows:
(a) When the Child is passing from the Mother to the Father, the Father is to collect the Child in Victoria;
(b) When the child is passing from the Father to the Mother, the Mother is to collect the Child from Tasmania;
(c) The Father is to book and pay for the airfares for the party's (sic) to this agreement and for (the child).
The father then discontinued his application on 16 July 2009.
Because the child was travelling frequently between Tasmania and Victoria and even attending schools in each State for as little as three weeks at a time, it is hardly surprising that the arrangements under the parenting plan broke down.
On 10 March 2010 the father filed a further application seeking orders essentially in the same terms as the parenting plan, and seeking additional orders as follows:
4. That in the event that either parent believes that the child is not coping with the above arrangements and/or is falling behind at school the parents are to participate in joint mediation in order to decide what if any alterations need to be made in the above arrangements in the child’s best interests.
5. That the father and the mother be permitted to remove the child from Australia for the purpose of travel to and from the Philippines overseas during any non-school period and whilst the child is not spending time with the other parent in accordance with this order, provided the child is returned to Australia for passing into the care of the other parent in accordance with this order.
6. That the mother is hereby restrained from causing the child to reside at any place other than in Melbourne or in Tasmania without the written consent of the father or the leave of the Court.
He sought interim orders in similar terms to the final orders that he was seeking.
On 19 April 2010 the mother filed her response seeking (inter alia) orders for the child to live with her and spend half of the Victorian school holidays with the father. Like the father, she sought interim orders in similar terms to the final orders that she was seeking.
After a hearing I made interim and procedural orders on 30 April 2010 which provided for the following:
a)That the father and the mother have shared parental responsibility for the child.
b)That the child live with the mother in Victoria.
c)That the child spend time with and communicate with the father:
i)for the entirety of the Victorian school holidays in June/July 2010 and September/October 2010;
ii)for 1 weekend per month in Tasmania during Victorian school terms;
iii)for a minimum of half of the forthcoming Victorian Christmas school holidays on dates to be agreed or failing agreement as ordered by the Court; and
iv)by telephone and email three times weekly and on the child’s birthday and Fathers’ Day if those days occur when the child is with the mother.
d)That the father and the mother be permitted to remove the child from Australia for the purpose of travel to and from the Philippines during any non-school period while the child is not spending time with the other parent in accordance with the Orders provided that the child is returned to Australia for passing into the care of the other parent in accordance with the Orders.
e)That the handover of the child take place as follows:
i)when the child is passing from the mother to the father the father is to collect the child in Victoria;
ii)when the child is passing from the father to the mother the mother is to collect the child from Tasmania; and
iii)the father is to book and pay for the airfares for the parties and for the child.
f)That the mother do all things necessary to ensure that the father obtains information in relation to the child’s education.
g)That the mother and father inform each other of any medical illness suffered by the child and provide information to each other and consult with the other party prior to the child receiving medical treatment or undergoing surgery except in an emergency.
h)That the mother and father notify the other of any change of address or telephone number within 24 hours of such change.
i)That the child spend time with the father at such other times as may be agreed between the parties.
j)That pursuant to Section 62G(2) of The Family Law Act 1975 a Family Report be prepared.
k)That the matter be otherwise adjourned for mention in Launceston on 5 August 2010.
The Family Report ordered on 30 April was released to the parties on 27 July 2010 (“the Family Report”).
On 5 August 2010 the matter was set down for final hearing on
3 November 2010.
At the final hearing the father was seeking orders as follows:
(1) That paragraphs 1-9 inclusive of the orders made on 30 April 2010 be discharged.
(2) That (the father) and (the mother) have shared parental responsibility for (the child).
(3) That the child live with the father in Tasmania
(4) That the child spend time with and communicate with the mother:
(a) for the entirety of the Tasmanian school holidays at Easter and at the end of each school term excluding the holidays at the end of the final school term for the calendar year:
(b) for one weekend per month in Victoria during Tasmanian school terms, the first weekend during each school term to be the fourth weekend after the last weekend in the preceding school holidays during which the child spent time with the mother, and each fourth weekend thereafter during the school term, but excluding the final weekend of the school term;
(c) for one half of each Christmas-New Year school holidays being the first half of the 2010-2011 holidays, the second half of the 2011-2012 school holidays and alternating thereafter; and
(d) by telephone and email three times weekly and on the child's birthday and Mother's day if those days occur when the child is with the father.
(5) That on each occasion that the child is travelling from Tasmania to the mainland of Australia for the purposes of spending time with the mother, the mother pay the travel expenses of the child; and that the father pay the travel expenses of the child from Melbourne to Tasmania.
(6) That each party responsible for paying the travelling expenses make the bookings for air travel and pay for the same.
(7) That the time of departure for a plane on which the child is travelling from Tasmania to the mainland be after 5.00pm and for departure from Melbourne to Launceston be such time between 2.00pm and 6.00pm as the father shall appoint.
(8)(a) That the father and the mother be permitted to remove the child from Australia for the purpose of travel to and from the Philippines during any non-school period while the child is not spending time with the other parent in accordance with these orders provided that the child is returned to Australia for passing into the care of the other parent in accordance with these orders.
(8)(b) That the child’s passport pass from one parent to the other when the other parent is next to spend time with the child during a school holiday.
(9) That the father do all things necessary to ensure that the mother obtains information in relation to the child's education (including but not limited to school reports, school photographs, order forms and notices).
(10) That the mother and father inform each other of any medical illness suffered by the child and provide information with each other and consult with the other party prior to the child receiving medical treatment or undergoing surgery except in an emergency.
(11) That the mother and father notify the other of any change of address, telephone number and of any change within 24 hours of such change.
The orders sought by the mother at the final hearing were:
1. That the Order of the Court made on 30 April 2010 be discharged.
2. That the father and mother have equal shared parental responsibility for the child.
3. That the child live with the mother
4. That the child spend time with and communicate with the father:-
(a) for two weekends in each Victorian school term;
(b) for each of the Victorian school term holidays
(c) for one half of the Victorian summer school term holidays at times to be agreed between the parties but failing agreement:-
(i) for the second half of the summer school holidays in even numbered years; and
(ii) for the first half of the summer school holidays in odd numbered years.
5. That the father make arrangements for and pay the expenses of the child and the mother or other adult person travelling with the child to travel from Melbourne to Launceston and return on each occasion that the child spends time with the father.
6. That the time for the departure of the child from Melbourne when travelling to Launceston to spend time with the father be not before 5.00 pm and the time for the departure of the child from Launceston to travel to Melbourne to return to the mother be not later than 6.00 pm.
7. That the mother permit the father to communicate with the child by telephone on the child’s birthday, Fathers’ Day, Christmas Day and between 6.00 pm and 7.00 pm on Tuesdays and Sundays when the child is not spending time with the father.
8. That the father permit the mother to communicate with the child by telephone on the child’s birthday, Mothers’ Day, Christmas Day and between 6.00 pm and 7.00 pm on Wednesdays and Saturdays when the child is not spending time with the mother.
9. That the mother do all things necessary to ensure that the father obtains information in relation to the child’s education (including but not limited to school reports and photographs) and any serious medical illness suffered by the child.
10. That the father and the mother notify the other of any change of address or telephone number within twenty-four hours of such change.
11. That the father and the mother be restrained from removing the child or permitting the child to be removed from Australia unless they provide the other with written confirmation of travel and accommodation arrangements for the time it is intended to take the child from Australia not later than twenty eight days prior to the intended departure date.
12. That :-
(a) in the event of the father taking the child out of Australia, the mother deliver the child’s passport to the father immediately on the father complying with order 11; and.
(b) the father return the child’s passport to the mother within fourteen days of the child’s return to Australia.
13. Such further orders as the Court considers appropriate
The parties competing applications were heard on 3 and 4 November 2010.
Documents relied upon
The father relied upon his trial affidavit filed 18 October 2010 and a financial statement filed on the same day, in addition to affidavits by his wife, the child’s Tasmanian day-carer and a former partner of the mother, Mr T.
The mother relied upon her affidavits filed 19 April, 20 October and 2 November 2010, in addition to an affidavit from her partner, Mr C (“the mother’s partner”).
The Family Report was also admitted into evidence.
Legal principles
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[1]
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles which underlie those objects. It provides:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In determining what is in a child’s best interests I must consider the matters set out in s.60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The court must also take into account those of the “additional considerations” set out in s.60CC(3) that are relevant.
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. That debate may continue from time to time. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. Indeed, I am fortified in that view by the judgment of May and Thackray JJ in Mulvaney & Lane,[2] in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.
[2] (2009) FLC 93-404. Also see Aldridge & Keaton (2009) FLC 93-421 and Champness & Hanson (2009) FLC 93-407
Section 61da provides a presumption that it is in the best interests of the children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence. Sub-section (4) provides that the presumption “may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child”.
However, if the presumption does not apply, it does not automatically follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
Sub-section 65DAA(1) provides that if a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
If an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that would be reasonably practicable. See sub-sections 65DAA(2) and (3).
It is clear that the court is not restricted to the proposals put forward by the parties. See KB & TC[3].
[3] (2005) FLC 93-224
Terminology
In a 2008 decision[4], FM Walters said:
Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live, I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[4] Mills & Watson [2008] FMCAfam 2
In both Carpenter and Lunn[5] and Chappell and Chappell[6] slightly differently constituted Full Courts of the Family Court had expressed similar views when they said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[5] (2008) FLC 93-377, Finn, Boland & Thackray JJ on 19 August 2008
[6] (2008) FLC 93-382, Warnick, Boland and Thackray JJ on 15 September 2008
In my view, those comments make grammatical and legal common sense, which I also intend to apply.
Issues
It is common ground between the parties that they should share parental responsibility for the child equally, and in my opinion there is nothing that would rebut the presumption that equal shared parental responsibility should apply. However, because the parents live in different States of Australia, it is not open to me to find that it is reasonably practicable for the child to spend equal time or substantial and significant time with each of her parents. Accordingly, it is not open to me to consider making orders as described in sub-sections 65DAA(1) and (2).[7]
[7] See the High Court decision in MRR v GR (2010) FLC 93-424
Clearly, the major issues left for the me to consider are:
·with whom the child should live; and
·how much contact she should have with the other parent (and the terms and conditions of that contact).
During the hearing it became clear that two other issues were also in dispute. They are:
·who should pay for the child’s travel between parents (irrespective of where the child lives); and
·whether or not the father should provide flight details to the mother when he takes the child to the Philippines.
Because the child’s best interests are paramount in relation to any parenting orders that I make, it is necessary for me to consider the evidence and its relationship to those issues in the light of section 60CC of the Act. However, before doing so, I will comment upon the issue of credit.
Credit
In his closing submissions, counsel for the father, Mr Crawford said:
I submit that my client was a very credible witness; gave straightforward answers. There were a couple of times when your Honour had to remind him, or tell him, to answer the question. But the mother, on the other hand, was a very poor witness. She took refuge in not being able to remember. She took refuge by not answering at all to some questions, and it was obvious at times that she was not telling the truth. In my submission, her evidence should not be accepted, unless it is corroborated elsewhere.[8]
[8] Transcript 4 November 2010, page 151.
Mr Crawford’s assessment of the veracity of the parties does do accord with my own.
I do not consider that the father was truthful at all times. For example, it is my opinion that his account of how he met the mother in the Philippines and when he first became aware of her prostitution activities defied belief.[9] I conclude that:
a)the father knew about her activities from the time when he first met her working in a bar in the Philippines; and
b)when she told him that she would be working in “a parlour”, he knew exactly what she meant and further, he did not object to what she was doing.
[9] Transcript 3 November 2010, pages 45, 46 and 78.
I also have considerable doubts about the father’s claim that there were noticeable changes in the child’s weight as she moved back and forth between the parents’ households. In his affidavit he had said the following in relation to a visit between 17 September and 3 October 2010:
I noticed that she was skinny on arrival but she put on weight before her return.[10]
[10] Paragraph 102.
When the mother’s counsel put it to him that his criticism of the mother that she was not feeding the child properly, his response was:
It’s been going on for four years. Every time she arrives, she’s skinny, and every time she goes back after three weeks, or whatever, she’s put on weight. It’s not just one instance; it’s been going on for four years.
I note that the father used the words “every time” twice in that response to counsel’s question. However, his wife appears to have been more measured in her comments about the child’s weight. She said that “on occasions she came into our care the shape of her ribs was visible” and “sometimes she has lost weight since her previous stay” (my emphasis). These comments were made in relation to the child being “a picky eater”.[11]
[11] Paragraph 3 of her affidavit filed 19 April 2010.
I conclude that the father was deliberately exaggerating in an effort to raise doubts about the care of the child by the mother. It is important to note that, notwithstanding his claim that “it’s been going on for four years”, he was quite prepared to enter into an agreement in May 2009 for the child to travel back and forth between the parties every three weeks. In my opinion, that would have been most unlikely if he had genuine concerns that the child was not being fed properly in her mother’s care.
I accept the mother’s explanation that the child has become thinner as she has grown.[12]
[12] Paragraph 6.7 of her affidavit filed 2 November 2010.
I also conclude that, when the father read the Family Report, and in particular the statement by the family consultant that neither parent “raised concerns about the other parent’s lifestyle including employment commitments”, it is likely that he decided to obtain some more damaging evidence against the mother. He went looking for
Mr T (via the internet), who gave him that evidence.
I was not impressed by the evidence of Mr T. It was clear to me that he was less than candid about his relationship with the mother. He knew about her prostitution; photographed her in her “brothel outfit” and even drove her to and from work. I conclude that he was quite comfortable with the mother’s employment in the sex industry and it does him no credit to appear critical of her now in relation to that employment.
Mr T’s failure to mention that the mother had obtained an intervention order against him was also significant and I find the mother’s account of the incident that led to her obtaining that order far more believable.[13]
[13] Paragraphs 25 to 28 of Mr T’s affidavit and paragraph 7.4 of the mother’s affidavit filed 2 November 2010.
In general, I found the mother’s evidence to be honest but she was also prone to some exaggeration. For example, she told the family consultant that the father had “never” paid any child support, yet when she was cross-examined, she made it quite clear that she really had no proper knowledge of how much child support the father had paid over the years.[14] When questioned further, she conceded that he had “helped out” in relation to his daughter’s needs.
[14] Transcript 4 November 2010 at pages 123 and 124.
I venture to suggest that the parties’ exaggerations are probably the result of our adversarial court system in which parties often misguidedly perceive that there is a need to belittle the case of the other in order to succeed.
Section 60CC - Primary considerations
The benefit to the child of having meaningful relationships with both parents
There is no doubt that the child has a warm and loving relationship with both parents. Clearly, that must continue but the physical distance between them means that she can live predominantly with only one of them.
I accept the evidence of the family consultant in the Family Report:
(The child) is the child of two loving parents who undoubtedly want the best for her. The difficulty in this situation is that since their marital separation, the pathways chosen by (the parents) have diverged irreconcilably. (The father’s) life is based in Tasmania and (the mother’s) life is based in Melbourne Victoria. (The child) realistically cannot live between both worlds without significant risk to the continuity of her academic and social development which could have significant emotional consequences.[15]
[15] Paragraph 43
She went on to say:
(The child) seemed to have good emotional relationships with both parents and their respective partners and her brother, with no strong preference indicated. This suggests that beneficially she can live mainly with one parent and her relationship with the other parent could be sustained by spending time and communicating with them as often as is practical and conducive to her schooling and social development.[16]
[16] Paragraph 44
I conclude therefore that, if a regime is put in place to ensure that there is proper contact with the “absent parent”, she will be able to maintain meaningful relationships with both parents.
The need to protect the child from harm from abuse, neglect or family violence
There is no suggestion that the child has been the subject of any abuse or neglect by either of the parents. However, the evidence is that on two occasions the father’s wife smacked the child as a form of discipline.
The definition of “abuse” in relation to a child under section 4 of the Act provides, inter alia, abuse is “an assault … of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs”. As there is no suggestion that the father’s wife committed any offence in administering what she described as “light smacks”,[17] I do not consider that to have been “abuse” within the meaning of section 60CC.
[17] Transcript 4 November 2010, page 89.
The definition of “family violence” under section 4 of the Act provides:
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
In my view, the notation makes it clear that the fear or apprehension must be objectively reasonable and not subjective. I accept that the father is firm in his views about many things and that at times he may have appeared somewhat dominant in his dealings with the mother. For example, the family consultant referred to the mother’s “assertion of being subject to (the father’s) control regarding arrangements for (the child) over the years due to her lack of knowledge of Australian family law and custom”.[18] However, I do not consider that such conduct fits the definition of family violence.
[18] Paragraph 23 of the Family Report
Although there has been family violence within the mother’s household in Melbourne, I am satisfied that the mother has taken appropriate action to protect the child from it. For example, she obtained an intervention order against Mr T.
Although further reference was made in the affidavits to concerns that the father and his wife had about some of the mother’s previous relationships, and in particular to possible violence towards her by other men, I do not need to make any findings about that because those relationships are no longer in existence.
Section 60CC - Relevant additional considerations
The child’s views
The family consultant reported as follows:
When asked what it might be like to stay living with her father in Tasmania, (the child) promptly identified that she would “miss Mummy”. When asked what it might be like to stay living with her mother, (she) said with a heavy tone that she would have to “keep flying”. She added that she wished her parents were in the same place. [19]
[19] Paragraph 40 of the Family Report
The child’s relationships with the parents and other people
There is no doubt that the child has warm and loving relationships with both of her parents. She also has very close and loving relationships with her father’s current wife and her half brother.
The mother also has three daughters living in the Philippines but it is quite clear that the child has little or no relationship at all with those half-siblings.
I am also satisfied that the child has a close and comfortable relationship with the mother’s partner. In this regard, the family consultant reported:
Unexpectedly (the child) encountered (the mother’s partner) as (the mother) was temporarily elsewhere. The reciprocated greeting between (the child) and (the mother’s partner) was remarkably warm and bright. They clearly really like each other.[20]
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
[20] Paragraph 36 of the Family Report.
The father’s counsel suggests that that there are “considerable grounds for concern about the mother’s approach to this issue”[21] and he refers to the father’s evidence about difficulties in arranging to spend time, telephone calls and the like. I do not propose to refer to them all, but I do not see them in the same light as the father.
[21] Father’s Case Outline, page 4.
For example:
·I accept that the father had difficulty speaking to the child by telephone from the Philippines but I also accept that the mother would have facilitated those telephone calls if the father had simply sent to text message to her that he was about to call. In this regard, I accept that the mother has caller identification on her telephone and that she does not normally accept telephone calls that do not identify the caller. I am aware that caller identification does not normally identify the caller when the call originates from overseas.
·The father was very upset that the child could not spend a week with him at the time of his mother’s funeral. His reason appears to have been that it is a custom in the Philippines “to mourn and stay around the body for 7 days before the burial”, (notwithstanding that his mother was not a Filipino). The mother’s attitude was that such was not her custom and, while the child should spend sufficient time in Tasmania to attend the funeral, she should then return to Melbourne so she would not miss school. In my view, both parties’ attitudes were understandable, but the mother’s did not mean that she was unwilling to facilitate contact.
·The father was also upset that the mother would not provide him with the child’s passport. However, the mother’s reluctance to do so was clearly tied to her request to be provided with details of the child’s travel. A number of items of correspondence between the mother's solicitors and the father give an indication that the mother would have provided the passport if he had provided travel information. In my view, that is not evidence of an unreasonable attitude.
I also note that the mother permitted the child to spend time with the father and his family in Victoria at various times that were not mandated by the orders of 30 April 2010.
The very fact that the parties were misguidedly willing to enter into an agreement for the child to spend alternate three weekly periods in the household of the other suggests clearly to me that they are both very willing to promote the child’s relationship with the other.
The capacity of the parents to provide for the child’s needs
I have a very real concern about the father’s inability to see the inappropriateness of a parenting plan which had the child travelling back and forth between the parents on a three weekly cycle, attending schools in different States and effectively missing out on school holidays between school terms. Clearly, that parenting plan was more about the parent’s needs than those of the child.[22] Notwithstanding that he heard my comments at the interim hearing, the father still maintained his view that the parenting plan was in the child’s interests when he attended for the interviews for the Family Report more than two months later. In this regard, the family consultant reported as follows:
(The father) aired his strong and abiding opinion that (the child) could easily have continued the recently-terminated equal time shared living arrangement throughout her entire school career, if “do-gooders” had not interfered. The impression of (the father) was gained that he bases his views of (the child’s) interests upon the importance of her school work. It seemed that (the father) also believes strongly in children being active with a busy routine. Perhaps with some irritation, he dismissed attempts to explore with him (the child’s) need to rest from school work during school holidays. He appeared singular in his views that (the child) previously had been progressing well at school, at least in Tasmania, and that she has had “no problem at all” coping with the interstate transitions between her parents. He emphasised that (the child) has been used to this arrangement since a very early age.
[22] A view endorsed by the family consultant – see Transcript 3 November 2010 at page 18.
In my opinion, from the outset the father demonstrated a remarkable lack of insight into the harm that the parenting plan could do, and he was not prepared to even entertain such a concept when a person trained in social science attempted to explore that with him. In this regard, the family consultant went on to say:
(The father) dismissed as “a load of crap” and “bull shit”, attempts to explore with him the effect upon (the child’s) social development of the equal time living arrangement which he had robustly advocated (not that it is currently under consideration).[23]
[23] Paragraph 15 of the Family Report
I note that the family consultant agreed with the mother’s counsel that the mother appeared to have had a greater insight into the effects on the child of operation of the parenting plan.[24]
[24] Transcript 3 November 2010, page 21
I also have a concern that, after I made interim orders on 30 April 2010 that meant that the child would continue living in Victoria, the father was unable to see that it was inappropriate for the child to be sent to school in Tasmania during the Victorian school holidays.
I have no concerns in relation to the child’s physical needs in either parent’s household (and reject any suggestion that she is underfed when she is with her mother). I am also of the view that her educational needs will be adequately met in either household.
The attitudes of the parents to the child and to parental responsibilities
I have no doubt that the father takes most of his responsibilities as a parent very seriously, especially in relation to the child’s education.
One of the interim orders that I made on 30 April 2010 provided that either parent could travel with the child to the Philippines during any non-school period provided that the child was not spending time with the other parent in accordance with the orders. The father is of the view that gave him the right to take the child without providing the mother with details of her travel. She thought otherwise and would not release the child’s passport to him until he provided details of her travel. As it turns out, the father’s refusal to provide the travel details and the mother’s consequent retention of the passport resulted in the child not going.
Another of the interim orders that I made gave the parties shared parental responsibility for the child and that order carried with it a responsibility to keep the other properly informed of matters pertaining to the welfare of the child. In my view, that includes keeping the mother properly informed of the child’s travel to the Philippines and the father’s explanation for not doing so was less than satisfactory.
The father said that for security purposes he did not want any Filipinos, either in Australia or the Philippines to know the details of his arrival. I asked him what constitutes the threat and his response was:
Ambush. I’ve lived through one ambush we had in [omitted] once with buying – attempting to buy [omitted]. It’s like if (the mother) might mention or to someone that – in the Philippines – that I’m travelling there, there might be one of her family members because, I suppose, like a lot of families around the world – but in the Philippines you can often have, like, she might have a brother or an uncle or someone that doesn’t like me because we were married and then now we’re not married. So if the information goes to the wrong person or they might even just talk and say – because there’s lots of kidnapping in the Philippines – they might say, there’s a foreigner turning up and he buys lots of [omitted] and his daughter is there. Like, you’ve got to be very careful not - you know, for yourself as far as ambush, robbery and kidnapping. … [25]
[25] Transcript 3 November 2010, page 76
I have some doubts about the veracity of that explanation. However, it is my opinion that the father has a parental responsibility to keep the mother informed of full details in relation to the child’s travel, and if the child’s safety is compromised by providing those details, then I conclude that he is being irresponsible taking her into that situation.
The mother has three other daughters living in the Philippines, who are 14, 13 and 9 years old. The 13 year old has always lived with her father but the other two live with the mother’s parents, and the older of them is registered as being a child of the mother’s parents. The mother says that she would like to have those two children join her in Australia. However, the only evidence available to me suggests that the mother has done very little at all in the nine years that she has lived in Australia to complete the immigration formalities necessary to achieve that objective. That must surely raise some concerns in my mind about the mother’s attitude to her parental responsibilities.
I also have some concerns about the mother’s lifestyle, particularly between 2005 and 2009 when she admits to having engaged in prostitution. I accept that the child was always properly looked after by others when the mother was so engaged. However, one should not underestimate the perceptiveness of children, and I say this in the light of other lifestyle issues involving the mother which I mention immediately below.
·Exhibit “F2” is a photograph of a large sticker that was on the rear window of the car that the mother drove for three to four years until quite recently. It showed a [omitted], which was also a caricature of a [omitted]. Underneath that in very large writing were the words “[omitted]”, and underneath that again in smaller writing were the words “[omitted]”.
·In addition to this, the evidence is that the mother has posted a suggestive photograph of herself on her Twitter page under the username “[omitted]” with a “bio” description “[omitted]”.[26]
·That same photograph was posted by her on an internet dating site, accompanied by the words “Sex …. 32. Where?”.[27]
[26] Exhibit “F10”
[27] Annexure “B” to the affidavit of Mr T
While I note that in N v N Mullane J said that prostitution may well be legal and that “Australian society may well be more tolerant of the sex industry than in past times”, [28] that does not mean that it is widely accepted by society or that it is in any way acceptable for children to be exposed to it.
[28] (1997) FLC 92-782 at page 84,644
The mother says that the sticker on her car was simply something that she obtained from a market, and that it was just a “logo” and “art”.[29] However, it is a sticker that the child would probably have seen on a daily basis when she was living in her mother’s household, and when the father’s counsel asked her “Didn’t you stop and think that that’s not a good thing for a seven year old girl to be travelling around in a car, with a mother who is a [omitted]? Did you stop and think?”, her response was:
It – because it’s been there for – I didn’t think. It’s been there, it’s just nothing.[30]
[29] Transcript 4 November 2010, pages 127 and 128
[30] Transcript 4 November 2010, page 128
The mother’s evidence was contradictory about whether her computer needed a password. At one point during her cross-examination she said that she changed her password two months previously, yet she later stated that the child was able to use her laptop when it was open and that it was “automatic”.
I get the impression that the mother is somewhat careless about the child’s exposure to the sexual side of the mother’s life and, at her age, the child must surely be wondering about, and asking questions about what she observes around her.
In the light of the above, I am left with the clear impression that the mother’s attitude to parental responsibility is somewhat below the Australian societal norm.
The likely effect of any change in the child’s circumstances
Change is inevitable in any child’s life but, when change is too frequent, it can have long lasting negative psychological effects upon the child. That is exactly the reason why I formed the view that the parenting plan was the least child-focussed parenting plan that I had ever encountered.
In this regard, the family consultant reported:
(The child) realistically cannot live between both worlds without significant risk to the continuity of her academic and social development which could have significant emotional consequences. It is unknown what actual effects, positive and/or negative, her (debated) previous history of shared care for long periods during her most formative years already will have for her development in the longer term. Such effects, whatever they might be, may emerge only in her adolescent and adult years. (Her) presentation during the assessment did not give an unequivocal impression that she has flourished developmentally to date. At the least, the transitions and travel may have been emotionally onerous for her.[31]
[31] Paragraph 43 of the Family Report
The importance of stability in a child’s life has long been recognised by courts, and the decision in Cowling v Cowling[32] is one that is well known. While the overall importance of Cowling may have been diminished by the decision in Goode and Goode,[33] their Honours in that later case still recognised that stability could be the factor that might ultimately determine what is in the child’s best interests.[34]
[32] (1998) FLC 92-801. Also see Cilento and Cilento (1980) FLC 90-847 and Griffiths and Griffiths (1981) FLC 91-064
[33] (2006) FLC 93-286
[34] See paragraph 73 of Goode
When the mother was cross-examined, it became apparent that her situation was likely to change very soon after the hearing. Her evidence was that her landlord had given her notice to vacate the house that she was renting. However, she was hopeful that she could remain in that house until the end of the school term. She gave somewhat conflicting evidence about her options for housing but, from her evidence and that of her partner, it was a real possibility that they would be moving into a house that her partner owns near Geelong. That is a move of more than 100 kilometres from where the mother was living at the time of the hearing, and it would mean that the child would have to attend a different school from that which she has been attending.
Even if the mother does not move into that property more than
100 kilometres away, it is clear that she must find new accommodation. Consequently, the possibility still exists that the child will have to attend a different school.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Whether the child lives in Victoria or in Tasmania, she will have to travel regularly between the two States. Naturally, that will result in a cost to the parties. However, I note that the parties have agreed that they will avail themselves of a service for unaccompanied travel by children provided by a particular airline, which will result in a reduction in the cost from that which they had been paying. Prior to the hearing, the child travelled between Victoria and Tasmania accompanied by one of her parents.
The father’s proposal is that the mother should pay the child’s airfares from Tasmania to Victoria, and he should pay the airfares when the child is travelling from Tasmania to Victoria. The mother’s proposal is that the father should pay all the airfares both ways.
Mother has an income of $496 per week ($25,792 per annum) from her employment as a [omitted].
The father has two businesses - one is [omitted] (“the Tasmanian business”) and the other involves [omitted] (“the Filipino business”). The Tasmanian business made a profit of slightly more than $17,000 in the 2010 tax year. However, in answer to a question from me, the father conceded that the Filipino business had never made a profit. Indeed, I note that in 2010 it made a loss of nearly $17,000 and the expenditure claimed for tax purposes included total travelling expenses of nearly $18,000. One must wonder about the financial sense in travelling to the Philippines four times a year to keep that business going, especially as in 2009 the net loss exceeded $45,000.
I cannot help but conclude that the father is much better off financially than the mother. Indeed, it would appear that he could improve his financial position dramatically by ceasing his Filipino business.
I therefore conclude that he is in a better position financially to meet the costs of the child’s airfares.
Any family violence and family violence orders
I have referred to the family violence between Mr T and the mother above, and to the order that she obtained against him. I do not believe that it is necessary to refer to that again.
Conclusions
The family consultant said:
It would be most beneficial for (the child) if she can be settled in a lifestyle conducive to her welfare and development and with the parent who is both available and who can anticipate and appropriately respond to all of her needs both contemporary and developmental.[35]
[35] Paragraph 44 of the Family Report
That statement encapsulates the dilemma for the court, because I find that while the father offers a more settled lifestyle for the child than the mother, I have some concerns about his ability to fully appreciate her emotional needs. However, when I weigh up the options, taking account of the assistance that will be provided to him by his wife who has a very loving relationship with child, I conclude that this particular child’s welfare is better served by living with her father and having regular and substantial contact with her mother.
It was the father’s evidence that he has maintained the child’s enrolment at school in Tasmania and that she is very happy at that school. I conclude that she should continue at that school this year.
I will make orders that take account of what I have set out above.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 28/1/11
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