Mazorski & Albright
[2007] FamCA 520
•31 May 2007
FAMILY COURT OF AUSTRALIA
| MAZORSKI & ALBRIGHT | [2007] FamCA 520 |
| FAMILY LAW - PARENTING – Relocation – Southern New South Wales to Queensland – Relevance of Family Law (Shared Parenting Responsibility) Act 2006 |
| Family Law Act 1975 s.60B, s.60B(1). S.60B(2), s.60B(2)(b), s.60CC, s.60CC(1), s.60CC(2), s.60CC(2)(a), s.60CC(3), s.60CC(4) and (4A), s.61C(1), s.61DA, s.65DAA, s.65DAA(1), s.65DAA(2), s.68F(2) |
AMS v AIF (1999) FMC 92-852
A & A: Relocation Approach (2000) FLC 93-035
U & U (2002) FLC 93-112
Bolitho & Cohen (2005) FLC 93-224
Goode & Goode (2006) FLC 93-286
W v S [2006] FamCA 1094
Walls v Robinson (2006) FLC 93-251
C v T [2006] FamCA 1198
M & W [2006] FamCA 1414
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
| FATHER: | Mr Mazorski |
| MOTHER: | Ms Albright |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 2 | of | 2005 |
| DATE: | 31 May 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 27, 28, 29 November 2006 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr O’Shannessy |
| SOLICITOR FOR THE FATHER: | Harris Lieberman Boyd |
| COUNSEL FOR THE MOTHER: | Ms Wheeler |
| SOLICITOR FOR THE MOTHER: | Septimus Jones & Lee |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL | Ms Boymal |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR | Victoria Legal Aid |
Orders
That all previous parenting orders and injunctions in relation to the child, daughter, born in June, 2004 be discharged.
That the mother and father have equal shared parental responsibility for the child.
That the mother and father each have responsibility for making decisions about the child’s day to day care, welfare and development when the child is in her or his respective care.
That the child live with the mother.
That the mother be permitted to relocate the child’s residence to S [a rural Queensland city] as and from 1 March, 2007.
That until the child’s relocation to S, she spend time with the father as follows :
(a)as provided in paragraphs (2)(c), (d) and (e) of the orders made herein on 29 November, 2006;
(b)in the first three consecutive weeks out of each four week period, commencing on 2 January, 2007 :
(i)from 4:30 pm. Tuesday until 8:00 am. Wednesday;
(ii)from 4:30 pm. Thursday until 8:00 am. the following Friday; and
(iii)from 9:00 am. Saturday until 5:00 pm. Sunday on the first and third weekends;
(c)as otherwise agreed between the parties.
That upon the child’s relocation to S until such time as the child turns four in June, 2008, she spend time with the father as follows :
(a)in the course of the week commencing on the second Friday in each calendar month :
(i)from 5:00 pm. Friday until 12:00 noon Sunday;
(ii)from 4:00 pm. Tuesday until 8:00 am. Wednesday; and
(iii)from 4:00 pm. Thursday until 8:00 am. Friday;
such time to be in L on nine months of each year and in S on three months of each year and in the event the parties cannot agree on the months in S, they shall be June, October and February in each year;
(b)as otherwise agreed between the parties.
That from the time the child turns four in June, 2008 until she commences school, she spend time with the father as follows :
(a)in the course of the week commencing on the second Friday in each calendar month :
(i)from 5:00 pm. Friday until 4:00 pm. Tuesday; and
(ii)from 4:00 pm. Thursday until 8:00 am. Friday;
such time to be in L on nine months of each year and in S on three months of each year and in the event the parties cannot agree on the months in S, they shall be June, October and February in each year;
(b)as otherwise agreed between the parties.
That from the time the child commences school, she spend time with the father as follows :
(a)for ten days in each school term holiday period at times to be agreed, and failing agreement, to commence on the first Saturday of the school holiday period and conclude on the second Monday of the school holiday period, the mother to deliver the child to and collect her from L [a rural NSW city];
(b)at times to be agreed, in S, during school terms;
(c)for one half of the Christmas school holiday period at times to be agreed and failing agreement to commence at 5:00 pm. Christmas Eve in even numbered years and 5:00 pm. Christmas Day in odd numbered years, the mother to deliver the child to and collect her from L.
That in addition to the time spent with the child pursuant to the provisions of paragraphs (6), (7), (8) and (9) hereof, the father and the child communicate as follows :
(a)by webcam through the internet at a time to be agreed and, failing agreement, between 6:15 and 6:45 pm. (Queensland time) on each Wednesday, the connection to be initiated by the father and the mother shall do all things reasonably necessary to ensure the child’s access in S to all necessary hardware and software and to facilitate such communication; PROVIDED THAT this paragraph shall be suspended once the child commences school during those parts of the school holiday periods in which the child is with the mother;
(b)by telephone at reasonable times and for reasonable periods, including (but not limited to) :
(i)the child’s birthday (if she is not with the father);
(ii)the father’s birthday (if she is not with the father);
(iii)Father’s Day (if she is not with the father); and
(iv)Christmas Day (if she is not with the father); and on those days the mother shall ensure the phone call is initiated at 8:00 am. (Queensland time);
(c)by written correspondence; and
‘(d) by email and text messages once the child is able to communicate by such means.
That the mother be responsible for the costs necessary to ensure the child spends time with the father in L at the times specified in these orders.
That the father be responsible for the costs necessary to ensure the child spends time with the father in S at the times specified in these orders.
That the mother establish and keep the father advised of an email address for the child.
That the mother and father each keep the other advised of his or her current residential address, postal address (if different to the residential address), email address and contact telephone numbers.
That the mother keep the father informed of the names of the child’s treating medical practitioners and provide all necessary authorities to such medical practitioners to enable the father to obtain information in relation to the child’s health from them.
That the mother and father each keep the other informed of any serious illness or accident suffered by the child during a period in his or her care and advise the other as soon as practicable of each treating medical practitioner or like professional, and authorise each of them to speak with the other parent.
That at least once in each two-month period the mother provide the father with a recent photograph of the child.
That the parties continue to use a communication book exchanged at changeovers.
That upon the child commencing school the mother forthwith authorise the principal of the school attended by her to provide to the father, at his expense (if any) copies of the following documents :
(a)school reports for the child;
(b)order forms for school photographs;
and the father be at liberty to attend the child’s school for parent/teacher interviews, sports days, concerts and other functions routinely attended by parents.
That in the event the mother seeks to relocate the child’s residence from S she give the father no less than two months notice in writing of the proposed move.
That the period in which a party can file a Notice of Appeal against orders made this day be extended to expire one month from the date on which the reasons for judgment are published.
That the independent children’s lawyer be discharged one month after the date on which reasons for judgment are published or, in the event a Notice of Appeal is filed, upon determination of that appeal.
That all extant applications be otherwise dismissed.
IT IS DIRECTED
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.65DA(2) and s.62B of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
| FAMILY COURT OF AUSTRALIA AT ALBURY |
FILE NUMBER: MLF 2 OF 2005
| Mr Mazorski |
Father
And
| Ms Albright |
Mother
REASONS FOR JUDGMENT
The parties have a daughter, conceived during a casual intimate relationship in about September 2003. The child was born in June, 2004. At no time have her parents lived together and their relationship since her birth has been marked by mistrust and poor communication. The mother wished to move the child’s residence from L [a rural NSW city] to S [a rural Queensland city], a move opposed by the father but supported by the independent children’s lawyer. The father proposed that the child live with the mother within a 50 kilometre radius of L and that he spend substantial and significant time with her until she commences school, at which time her future care arrangements should be reviewed. The Court was asked to determine which of the competing proposals is in the child’s best interests.
The trial concluded in late November 2006 and the parties’ circumstances (particularly those of the mother) were such that I found it appropriate to make orders on 19 December 2006, that allowing plans to be made for the new year. The parties were advised that reasons for judgment would be published later and the period in which a party could appeal extended to one month from that date of publication. These, then, are my reasons.
LEGAL PRINCIPLES
The provisions in the Family Law Act1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
In AMS v AIF (1999) FMC 92-852 the High Court (Gleeson CJ, Gordron, McHugh, Gummow, Kirby and Hayne JJ, Callinan J dissenting) considered the issue of relocation. In the case which was the subject of appeal both parents sought residence of a child and the mother sought to be released from an undertaking not to remove the child from Perth without the father’s consent to enable her to return to the Northern Territory with the child. The orders of the trial judge provided that the child live with the mother but the court dismissed her application to be released from her undertaking and granted an injunction restraining her from changing the child’s principal residence from Perth. On appeal, the Full Court of the Supreme Court of Western Australia refused to set aside the restraint upon the mother changing the child’s principal place of residence. The High Court allowed her appeal. The majority held that to impose upon a residence parent the obligation to demonstrate compelling reasons to justify relocation of a child’s residence was to take an erroneous approach to the exercise of the discretion. In his judgment, Kirby J set out nine general principals governing such cases, as follows (footnotes deleted):
142.First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different Necessarily, the facts of each case are unique. Those facts call forth a ``careful and delicate analysis'' which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach.
143. Secondly, unless legislation provides otherwise no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the ``welfare'' (or ``best interests'') of the child should be the paramount consideration. It may provide a list of considerations or ``principles'' to be applied in the exercise of the court's powers . However, the ``paramount'' consideration is not the same as the ``sole'' or ``only'' consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144. Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule.
145.Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146.Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women . To avoid unnecessary derogations from women's equality or the ``feminisation of poverty'' resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz , it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147. Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149.Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court's discretion.
150.Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
Since this decision the legislation has again been amended and the court must prioritise the primary considerations.
In A & A: Relocation Approach (2000) FLC 93-035, decided soon after AMS v AIF, the Full Court (Nicholson CJ, Ellis and Coleman JJ) considered the principles applicable in determining a parenting case which involves a proposal to relocate the residence of a child. It held that the best interests of the child remain the paramount consideration, albeit not the sole consideration. The court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation. It is necessary for the court to evaluate each of the proposals advanced by the parties. The Full Court held that that evaluation must assess the advantages and disadvantages for the child’s best interests for each proposal and consider each relevant s.68F(2) factor, that section being the predecessor of ss.60CC(2) and (3). When evaluating the proposals the court must have regard to the fact that neither party bears an onus (the court must have regard to the whole of the evidence relevant to the best interest of the child) and the importance of a party’s right to freedom of movement. If the court considers that the arrangements proposed by one or another parent are not adequate it may be necessary for the court to order a regime which would best meet the right of the child to know and have physical contact with both parents.
The High Court again considered the issue in U & U [2002] FLC 93-112, reaffirming that the “overarching issue” in relocation was to ensure that any parenting order was in the best interest of the child. The High Court ( Gleeson CJ, McHugh. Gummow, Hayne and Callinan JJ: Gaudry and Kirby JJ dissenting) confirmed that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interest of the child.
In Bolitho & Cohen (2005) FLC 93-224 the Full Court (Bryant CJ, May and Boland JJ) noted (at 79,699), that it discerned that the decision in U v U had ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A: relocation approach.
These, and a number of other cases cited by counsel, are all decisions made before the substantial amendments to the Family Law Act1975 which came into effect on 1 July 2006. There is no express reference to relocation cases in the amended provisions. A provision specifically relating to relocation cases had been considered and was recommended by the House of Representatives Standing Committee on Legal and Constitutional Affairs which considered the exposure draft of the Bill. The recommended provision (that the court be satisfied on reasonable grounds that any relocation which would substantially affect a child’s ability to reside or spend time with the other parent or extended family be in the child’s best interests) would have effectively placed an onus of proof on the moving party, which would have been a significant change to the law as expressed by the High Court in AMS v AIF and U v U. No such proposal was adopted.
The only specific reference in the amended legislation to one parent moving away from another is contained in s. 4 which defines “major long term issues” to include (at (e)) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent. A coda to that sub-paragraph notes that a decision by a parent to form a relationship with a new partner is not, of itself, a major long term issue in relation to the child however it will involve a major long term issue if, for example, the relationship involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Nevertheless, amendments to that part of the Act dealing with applications for parenting orders could be said to place far more emphasis on the importance of substantial parental involvement in their children’s lives, as noted by the Full Court in Goode & Goode (2006) FLC 93-286. For example, s.60B(1)(a) now provides that an object of Part VII of the Act is to ensure that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child. This object is consistent with the introduction of the presumption in favour of equal shared parental responsibility, and is more specific about that meaningful involvement than was its predecessor.
The principles underlying the objects set out in s. 60B(2) are very similar to those they replaced, although s.60B(2)(b) is more specific about the right of children to spend time and communicate on a regular basis with parents and other significant people, such as grandparents and other relatives.
Before me no counsel submitted that the legislative changes have introduced an onus on the party seeking to relocate a child’s residence, or that the ultimate test is other than the best interests of the child. There is no doubt that the objects and principles, primary considerations (and a number of the additional considerations) and various statutory provisions relating to the presumption of equal shared responsibility, and the consequences of the presumption’s application, require the court to focus on the importance of maintaining a meaningful relationship between a child and both parents, and on the importance of a child spending substantial and significant time with a parent in order to achieve that aim.
In W v S [2006] FamCA 1094 Faulks DCJ considered an application by a mother to relocate a child’s residence from ACT to NSW. Faulks DCJ outlined what he saw as the proper approach to be undertaken in relation to relocation cases under the amending legislation. In His Honour’s view, the approach to be followed in dealing with “children’s matters” had become more complicated as a result of the amending legislation; he made clear his view (at para 24) that:
…the law has changed enough it seems to me to warrant a departure from the well trodden path that he so skilfully documented and signposted.
His Honour was referring there to a decision by Carmody J in Walls v Robinson (2006) FLC 93-251 where his Honour carefully analysed a raft of decisions relating to relocation cases. Having considered Carmody J’s findings about the desirability of maximising contract between a child and both parents, and his discussion of whether the relationship with a contact parent can still be maintained at a “good and functional level”, Faulks DCJ went on to consider the relevance of that decision to the definition of “meaningful relationship” contained in s.60CC(2)(a). At para 27, after noting that the term “meaningful relationship” must necessarily be a relative one, his Honour said:
Nevertheless, it is a word deliberately inserted by the legislature and it is a word inserted after (emphasis in the original) his Honour’s decision had been made. Although it is somewhat naive to express it so (except in a legal sense) the legislature could be taken to have had notice of the way in which the law had been interpreted previously. It could therefore be assumed that the word “meaningful” means something other than his Honour’s phrase of “good and functional” otherwise those words might reasonably have been used instead of “meaningful”. This bears upon my decision in this matter.
With respect to Faulks DCJ, I cannot agree with that analysis. I can find no authority to support the proposition that the legislature should be deemed to have notice of a (or indeed all) decisions of trial judges in which legislative provisions are discussed and should be deemed to have intended that knowledge to inform its choice of words in a Bill. Clearly, if legislation is drawn, and stated to be drawn (as it sometimes is), to overcome a particular judicial finding or implement a judicial recommendation made in a judgment, the situation would be different. However, I can find no reference to Carmody J’s finding (about a good and functional relationship in Wall v Robinson) being relevant to the definition of “meaningful relationship” in the second reading speech, the recommendations of the House of Representatives Standing Committee on Legal and Constitutional affairs which considered the exposure draft of the bill or the explanatory memorandum or revised explanatory memorandum which accompanied it.
In C v T [2006] FamCA 1198 Strickland J determined a case involving a proposed relocation from Australia to the United Kingdom. His Honour found, at para. 116, that the changes brought about by the Family Law (Shared Parental Responsibility) Act 2006 did not alter the approach to be taken to these cases and that the assessment of the competing proposals of the parties must still be carried out by reference to Part VII of the Family Law Act 1975. However, his Honour noted that the object, principles and factors to be taken into account in determining what is in a child’s best interest, and the presumption of equal shared parental responsibility, may very well effect the outcome in individual cases. In summary, his Honour found (at para 223) that:
It is imperative that these objects, principles and considerations (in s.60B) be given appropriate weight, but they do not raise a presumption against relocation, and the best interests of the child remains as the paramount consideration.
In a subsequent judgment, M & W [2006] FamCA 1414, Faulks DCJ referred briefly to the definition of “meaningful relationship” saying (at para 35):
The question of what constitutes in the circumstances a meaningful relationship is one not defined by the Act. The definition of substantial time with a parent is one that relates to significant times, rather than to the amount of time, and does not provide any particular assistance in determining what a meaningful relationship is.
In H v M [2006] FamCA 1071 Strickland J touched on the meaning of “a meaningful relationship” when he said, at para 101:
“There is no issue here that a meaningful relationship with a mother and the father will benefit the child. The child will of course live with the mother and spend time with the father, and although the dispute centres around the extent of the time that the child should spend with the father, that alone does not determine whether there will be a meaningful relationship or not. Other important factors include how the time is spent and the input of the parent during that time.”
The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new section 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
At para. 128 discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The Government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
When considering s.65DAA, the explanatory memorandum states:
196Sub-section 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s.60CA by item 9.
[…]
199Section 65DAA(2) – (4) is intended to ensure that the courts consider arrangements that are much more than ‘one weekend a fortnight and half of the holidays’ or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve ‘both’ parents spending both substantial and significant time with their children.
The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 1993) defines ‘meaningful’ as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. ‘Meaning’ is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning).” A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive.” These definitions are repeated and further fleshed out in the Oxford English Dictionary (Second Edition, Clarendon Press, Oxford 1989). It defines “meaning” (“in generalised use”) as “significance”. The examples provided take the matter no further.
The Macquarie Dictionary (Fourth Edition, Macquarie, 2005) defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The father relied on affidavits filed by him on 13 November, 2006 and 24 July, 2006; an affidavit sworn by his brother, Mr AM, filed 20 July, 2006; and an affidavit sworn by Mr AM’s former partner, Ms T, which was filed on 20 July, 2006.
The mother relied on affidavits sworn by her (filed 24 July, 2006, 31 August, 2006 and 2 November, 2006); her fiancé, Mr L (filed 2 November, 2006 and 24 July, 2006); her sister, Mrs C (filed 31 August, 2006); and her mother, Mrs A (filed 24 July, 2006). She did not seek to rely on an affidavit sworn by Ms S (filed 14 February, 2006) or (after most of it was ruled inadmissible) an affidavit sworn by Ms N (filed 24 July, 2006).
In addition, the Court had the benefit of a family report prepared by Ms D on 27 June, 2006. The history each parent gave to Ms D reflects the differences in their life experiences and personalities, differences which have informed their communications and actions since their daughter’s birth.
It was unfortunate Ms D miscalculated the period in which the father did not see the child (late July to December 2005); such mistakes can cause a parent to doubt the expertise of the reporter. However, I am satisfied the mistake did not impact on Ms D’s assessment and I place weight on her evidence, which I find to be cogent and insightful.
The father is 35, the second of three sons. After completing primary and high school in L, he attended university in Sydney; after graduating, he obtained employment in L, where he has remained. He has worked as an Manager with a small goods company for ten years and has no plans to relocate from L.
His younger brother, Mr AM, lives with their father a short distance from his home. The father’s younger brother has a four year old daughter, E, from a relationship with Ms T. The husband’s evidence was of starting a small business with his younger brother some two years ago. His older brother, Mr MM, lives on the NSW South Coast with his wife and two children, aged 3 and 4 months respectively at the time the father swore his affidavit in July, 2006. His mother passed away late in 2005 after a long illness.
The father is presently in a relationship with Ms A, who has two children, aged 6 and 8. When he spoke with Ms D in July 2006 he saw little value in speaking about that relationship, reporting that they had recently argued and he was uncertain about its ongoing nature, however the relationship was still on foot at the time of trial. The evidence made it clear that Ms A spends time with the child. Prior to that, he was in a relationship with a woman called K for about 12 months and the child spent time with her.
The mother is 29, the second of three daughters. After completing high school in L, she deferred a university place and moved to the Victorian snow fields for employment. Over the next five years she and her then partner alternated between managing a chalet and working in their small business in the snow fields during winter, and working in the tourist industry on the north NSW Coast in the summer. When that relationship ended the mother travelled overseas, living and working in Europe for about two years, returning to Australia in late 2002. She had earlier bought a house in L, to which she returned to spend time with her family. By the following September she was pregnant. At that time she was managing a retail business, in L. Her parents and younger sister live in L and her older sister, Mrs C, has lived with her husband (and subsequently two young children) in S for ten years.
The father presented as confident and calm. Much was made by his counsel of his allegedly reasonable and courteous attitude to the mother. While I do not doubt that characterised much (but not all) of their public interaction, the evidence satisfies me that his discourse has not always been so reasonable and respectful. It is what people do and say that matters, not what they say they do and say. Rarely does a court have the capacity to go behind an account of events given by a witness, but in this case the evidence includes a few windows by which to judge more directly.
An inadvertently recorded conversation between the father and his younger brother, on 30 July, 2005 conveys his anger and contempt for the mother. The stapling of a luggage tag into the communication book used by the parties, and questions referrable to the tag, were reasonably interpreted by the mother as a demonstration of the father’s knowledge of her whereabouts and actions when she believed herself not observed. The weekend before the trial the father took the child to the hospital emergency ward, and did not advise the mother. Taken at face value, other evidence suggests the father is still a very naïve and inexperienced parent; if there is another explanation (for example, for a number of statements in the communication book) it may be that he played the part of a naïve and inexperienced parent in order to elicit a response from the mother, whether frustration, anger or sympathy.
The mother presented as forthright, direct and, on occasions, stressed. In the communication book she was sometimes abrupt and, occasionally, rude. She did not hide her frustration with what she saw as the father’s lack of respect for her parenting and his attempts to ensure she and the child remained in L. Whatever her state of mind at the time, her unilateral relocation from L to G [a nearby Victorian town], then S in August 2005 was selfish and adversely affected the father’s relationship with the child, and the parties’ already fragile parental relationship.
The father’s younger brother presented as a loyal brother, understandably keen to bolster the father’s case. I would have had more confidence in his capacity for objective recollection had he been more candid about the recorded conversation of 30 July, 2005.
Ms T presented as anxious, vulnerable and vague. Although both the father’s younger brother and she had sworn that their daughter E lived with the father’s younger brother, her oral evidence was at best confused and, at worst, inconsistent with that, she referring to E being with her when not at day care from Monday to Thursday, not alternate weekends as deposed to by E’s father. E’s parenting is not in issue and the time she spends with each of her parents is not relevant, save that the father deposed to the assistance he would have available from his brother, father and Ms T. Ms T may well assist but I am not satisfied that has been discussed at any length with her.
Objections to much of the evidence of the maternal grandmother were upheld. Cross-examined she was an impressive witness. So, too, were the mother’s sister, Mrs C (who was cross-examined by telephone from Brisbane) and the mother’s fiancé, Mr L.
CHRONOLOGY
By the time the mother found she was pregnant, the parties’ relationship was over. I am satisfied the mother told the father of the pregnancy because she believed it to be important that the child knew and had a relationship with his or her father. In the course of the pregnancy the parties made a no doubt well intentioned but ultimately unsuccessful attempt to renew their intimate relationship. Later in the pregnancy the father provided some financial assistance to the mother and accompanied her to medical appointments and ante-natal classes. When the child was born in June, 2004, the father was present.
The mother and the child remained in hospital for eight days after the child’s birth as a result of medical complications experienced by the mother, and the child’s jaundice which resulted in her being admitted into special care. The father and his mother visited for short periods. Within a few weeks, the child was readmitted to hospital suffering from bronchiolitis. Not long after she returned home, problems began to emerge about the nature and extent of the father’s time with the child. At that time the mother had moved in with her parents and rented out her own home. The father saw the child at the maternal grandparents’ home. The mother or one of her parents was always present, and I accept the maternal grandmother’s evidence of leaving the father to enjoy time alone with the child.
It is probable that the mother reasonably saw the father as wanting to arrange the time he spent with the child to fit his work, sporting and personal schedules and that he was oblivious to her attempts to establish a consistent schedule for the child. Although the father was 32 when the child was born, and his niece, E, must have been about two and lived in close proximity, it is probable he had little experience in dealing with babies and was not swift to comprehend the demands placed on a primary carer. Some of his requests must have been very frustrating; for example, he asked that his time with the child be changed to start at 7:00 pm. rather than 6:00 pm. because of daylight saving. I accept the mother’s evidence that he was loathe to stick to a regular routine of visits and preferred to drop in, sometimes unannounced, and sometimes with family and friends; the father agreed he did bring friends, without telling her he planned to do so.
On 10 August, 2004 the father sent an email saying he would like to spend time with the child at his house; the child was then just over seven weeks old. That did not occur but by September he was feeding and bathing her. Around that time, the child was diagnosed with hip-dysphasia and was fitted with a full body harness which she wore until the condition abated in November 2004. The potential for disagreement between the parties was acknowledged in an email sent by the father to the mother on 20 September, 2004. In it he advised that he did not feel he was getting enough time with the child and wanted to start having her for a few hours here and there. He said he was happy to have her overnight, and happy to go to the court for mediation if that would help them “see each other’s point of view”. The email concluded :
Longer term (or sooner) I think its best for [the child], myself and you that we have shared custody of [the child]. I think it best that [the child] could stay with me a few nights each week and then every other weekend. [The child] is our daughter and needs us both. She will definetly be loved by both her parents and out families.
I’m sorry I have to write it, but I think theres less chance of an argue this way. W’ll chat about it when I see you.
In the witness box the father conceded the request for overnight contact at that time was unrealistic; the child was in a hip harness and was breastfed.
It is probable the parties’ relationship worsened and genuine communication was almost non-existent. I accept the maternal grandmother’s evidence of overhearing an argument between the parties about the mother breast feeding the child; while the father agreed to it, he wanted the mother to express milk so he could feed the child himself. His voice was very loud and he was shaking his finger at the mother.
I am satisfied that during the pregnancy the mother discussed with her sister Mrs C, and Mrs C’s husband, Mr C, the possibility of a joint business venture in S, being a small retail business. The mother was interested but thought she should defer all long term decisions until after the baby’s birth.
When the child was about six months old the mother moved back into her own home with her.
In December 2004 the mother and the child visited her sister’s family in S and again discussed the potential for a joint business venture. Communication between the parties worsened, rather than improved. On 10 December the father sent the mother an email in which he said “I would prefer to have [the child] between 10 or 11 am. to 3 or 4 pm on Christmas Day. Can you let me know ASAP if you see a problem with that”. At that time he had never seen the child away from the mother’s home. In a cool response, the mother advised he could see the child between 9:00 and 10:00 am. at her parents’ home. She also advised that from the following week until mediation and agreement he could visit from 5:00 to 6:00 pm. on every Wednesday. That regime operated between Christmas 2004 and late January 2005.
In December 2004 the mother suggested private mediation. That did not occur but the parties attended two sessions of confidential counselling at the Albury registry of this Court in January 2005. Following that, they implemented a regime which involved the father spending time with the child at the maternal grandparents’ home, the paternal grandmother’s home and a contact centre, the latter to build his parenting skills. The parties agreed that in February 2005 he would spend time with the child from 4:30 pm. to 6:00 pm. on each Monday and Wednesday and from 10:00 am. to 2:00 pm. on Saturday, all periods to be at the maternal grandparents’ home. From 28 February he would spend time with the child from 4:30 pm. to 5:45 pm. on Monday at his parents’ home, 3:30 pm. to 4:30 pm. on Wednesday at the L Children’s Contact Service, 4:30 pm. to 5:45 pm. on each alternate Friday at his parents’ home and 10:30 am. to 11:30 am. on each alternate Saturday at his parents’ home.
In early May 2005 the parties again attended confidential counselling at the court. They agreed that the child would spend time with the father at his home, unsupervised, on each Tuesday between 3:30 pm. and 5:15 pm., each alternate Friday from 3:30 pm. until 5:15 pm. and each alternate Sunday from 8:00 am. until 11:00 am. That regime operated until late July 2005, save for a period of three to four weeks in June/July when the mother and the child went to S, returning to L on 14 July.
In S the mother met Mr L. She also agreed with her sister and brother-in-law to proceed with the joint business venture later that year.
Unsupervised contact at the father’s home resumed after 14 July. The mother had not responded to the father’s request for make-up contact for the time he missed when the child was in S and it is clear the tension between the parties worsened. The mother’s evidence was that the child was very unsettled and tired on her return from contact and she saw the father as critical of her capacity to care for the child properly.
On the child’s first birthday the father spent time with her at his home from 9:00 am. to 11:00 am. When she arrived to collect the child the mother was met by a male voice yelling at her to go away. Some five minutes later the door was opened and the child was returned to her.
The mother consulted a psychologist, Ms S, in December 2005 for assistance with aspects of parenting. Based on what she learnt then, the mother said that while she had attributed the child’s behaviour and distress in mid-2005 to her time with her father, she now believed the child was feeding off her parents’ tension, anxiety and stress and it was this, rather than anything that specifically occurred when with her father, that adversely affected the child.
The mother’s evidence was that when she collected the child on 26 July she was met with a barrage of complaints and advice about the child’s allegedly red bottom; the father, his mother and Ms T all joined in. The next day, the father sent her a text message enquiring if she had taken the child to see the doctor about the rash and requesting that he attend the doctor’s appointment with the mother, if she were taking the child. Late that night the mother responded with an angry email. She started by advising that the nappy rash was fine and there was not a sign of it and went on to say that “a baby that has poohed four times in one day will have a red bottom”. She followed that with a complaint about the child usually coming home on Saturday mornings without a nappy change at all. Then, without preamble, she told him that she and the child were relocating to S, and that if he did not agree, she would put in an application to the court as soon as possible. In the email she referred to “a fantastic financial opportunity” with her sister, which she did not intend to pass up as it would set the child and her up for the future. She advised she had tried to get work a number of times in L to fit around family life but was not even getting interviews and that the three hours a week casual work that she then had did not pay the bills. She also referred to unspecified “personal and family reasons”. She said :
We will make every effort to come home when we can or you can also visit her there. Also maintenance will be changed to eg. You pay for our flights or flights on visits and nothing else.
From the reasonably calm, albeit didactic, tenor of the paragraph quoted, the tone then changed. The email concluded :
Also I don’t and won’t tolerate text messages like the one today, insinuating I am not looking after [the child] or her health, as I have said MANY times before you never ask me anything you want to know only expect me to mind read and tell you what you want to know. I also won’t be grunted at or ignored anymore when I drop [the child] off for visits. Saying that I will be contacting the contact centre tomorrow to arrange drop off and pick up to take place there as I will no longer tolerate the way you treat me or subject [the child] to the unhealthy tension. They will be in contact with you to arrange times, so don’t come to my house anymore or I will phone the police. I am sure your going to reply with your disappointment off my decision etc. etc. But all I need to know is if you are going to agree to our relocation or not. If not my lawyer will be in contact with the court proceedings.
In a lengthy email dated 29 July, 2005 the husband made it clear that he was totally opposed to the child leaving L. He advised that if the mother could not forego the opportunity in S, he would happily take fulltime care of the child . Given the tone of her email, his response was measured. While making it clear that he saw no need for changeovers to be at a contact centre, he said he would work with it.
It is probable that by this time the mother was very distressed and, judged by her actions, close to irrational. She had earlier been treated for depression and took Zoloft for a six month period. There is corroboration from her mother of her complaints of the father grunting at her and not verbally responding during changeovers. Her evidence was that if she cancelled a visit for a good reason, she would often be accused of lying, and if contact were not possible, the father would drive by her house to check whether she was there. What happened next corroborated this evidence. I deal with it in some detail as it has resonated on the lives of the parties and the child since.
Contact was to occur on 30 July. The contact service file records that at 5:15 pm. on 29 July the mother rang to advise she had gastro and was cancelling the visit the following day. She asked the centre to ring the father. The note of the conversation with her records “Wednesday will still happen”. The worker rang the father, who responded that the mother “does this all the time” and asked what he could do about it. He was advised to contact his solicitor and told that the Wednesday changeover at 3:30 pm. was to occur.
The husband deposed to what occurred then in paragraphs 31 to 34 of his affidavit filed 24 July, 2006 as follows :
.31.I sent [the mother] a text message just after 8.00am on Saturday 30 July 2005 again requesting that [the mother] tell me how [the child] was. [The mother] replied at about 8.30am stating, “We r both sick with gastro…Nothing serious but unwell…see u wed”. At about 1.00pm I drove past [the mother’s] parents house to visit a friend who lived several doors down from [the mother’s] parents. As I drove past I noticed [the child] out the front of the house so I did a U-turn and observed her walking around outside. I pulled up my car a little way down the street and tried to call [the mother] on her mobile phone. I received no response and the phone went to voicemail. I requested that [the mother] call me immediately. I thought that I had terminated the phone call to [the mother] however I had not. I expressed my frustration to my [younger brother], who was in the car with me at the time. I later became aware that my comments to [my younger brother] had been recorded on [the mother’s] voicemail. I regret that [the mother] heard those comments. I later provided [the mother] with a written apology in relation to my comments.
32.[My younger brother] and I then went to my house and I requested that [he] go back to [the mother’s] parent’s house to enquire of [the child’s] health. I did not want to go to [the mother’s] parent’s house myself due to [the mother’s] threat to call the police if I attended there. I was doubtful that I was being told the truth by [the mother] and I was not certain.
33.[My younger brother] subsequently attended [the mother’s] parent’s house and then [the mother’s] house to make enquiries on my behalf. [My brother’s] account of what occurred that afternoon are contained in his Affidavit filed in these proceedings on 20 July 2006.
34.I attended a business dinner at the [local] Hotel with [a business colleague] in [L] from approximately 5.30pm until about midnight on the evening of 30 July 2005 and I returned home by taxi. I was contacted by the police by telephone between 7.00pm and 8.00pm on the evening of 30 July 2006. I was informed that [the mother] had made a complaint against me. I volunteered to meet with the police officers outside the hotel that evening. I discussed the matter with the police and told them what had occurred that day, including my conversation with [my brother]. I explained how the conversation had been inadvertently overhead by [the mother]. The police indicated that they did not have any further concerns about the matter. I did not hear from the police in relation to the incident again.
[The father’s brother’s] account is in paragraphs 12 to 18 of his affidavit filed 20 July, 2006, as follows :
.12.On Saturday 30 July 2005 [the father] informed me that he wasn’t able to spend time with [the child] that day as [the child’s] mother […] had told him that [the child] was sick. I was aware that [the father] had been unable to spend time with [the child] on other recent occasions due to [the child] being ill.
13.As we were driving past [the mother’s] parent’s house at about 1.30pm that day, [the father] and I saw [the child] outside. [The father] stopped the car a few houses up the street and telephoned [the mother] and left a message on her voicemail. [The father] and I then went to his house.
14.Upon arriving at [the father’s] house, [the father] requested that I go around to [the mother’s] parent’s house on his behalf to see if [the child] was still there and to make enquiries regarding her health. I drove around to [the mother’s] parent’s house shortly after. I knocked on the door once and no-one answered. I then left and drove to [the mother’s] house.
15.Upon arriving at [the mother’s] house I knocked on the door and received no response. I then left. As I was driving out of [the mother’s] court, [she] drove past me and I waved to her. I turned my car around and drove back to [the mother’s] house, parking in the driveway.
16.As I got out of the car, [the mother] was taking [the child] out of the car. We both said, “Hi.” I said, “I am just around here to see how [the child] is. She’s been sick the last three to four times she is supposed to visit.” [The mother] responded, “What, are you here to check up she’s got a shitty nappy?” I responded, “Mum’s dying of cancer. More than anything can [the child] come around to see mum?”. [The mother] then turned and walked inside with [the child]. I then left.
17.The conversation between [the mother] and I was conducted in civil tones and at no point did I raise my voice to [the mother]. I have always made an effort to get along with [the mother] and there had never been any problems between us before.
18.I have read [the mother’s] affidavit filed in these proceedings on 21 December 2005. As to paragraph 27, I deny that there was any cause for [the mother] to feel threatened and intimidated by my behaviour as she has stated. As to paragraph 28 of [the mother’s] Affidavit, I deny that I returned to [the mother’s] house at any time during that day or that evening. I spend the evening at [a] Club in [L] with my mother.”
The mother’s account of what occurred is in paragraphs 39 to 42, as follows :
“.39.On 30 July 2005 [the father] was to have contact with [the child]. As both [the child] and I were unwell on that day, I contacted [the father] to cancel the contact. Later that day, I attended by parent’s home so that they could assist me with [the child’s] care as I was not well. I was standing in the driveway talking to my father when I observed [the father] slowly drive past in his car. I then returned home, following which I received a voice message on my mobile phone from [the father] saying: “[…] I would appreciate a call immediately.” Shortly thereafter, the message continued with what appeared to be a recording of a conversation between [the father] and his brother. I presumed that he had accidentally dialled my number while speaking with his brother. In that conversation, [the father] and his [younger brother] spoke very nastily and aggressively about me. I heard “Fucking bitch, she is nothing but a fucking bitch” ([the brother]) what are you on about? ([the father]) just saw her at her parent’s place, I was driving past again and I saw her, her dad and [the child] in the driveway, she reckons they are sick, I need someone to go around there and catch them out quick before they leave” ([the brother]) What do you care? ([the father]) I don’t fucking care” ([the brother]) what do you want me to say? ([the father]) go and ask to see [the child] and see if they are sick.”
40.Later that day, I observed that [the father’s] [younger brother] was following me in his car, and when we arrived home, [the brother] approached me, demanding to see [the child]. I felt threatened and intimidated by this behaviour. I then attended the [local] Police Station and spoke to two officers to inform them that I was feeling threatened and being hassled. They listened to the message and said that they understood, but said it was a Family Court matter.
41.Later that night, I recognised [the father’s brother’s] car in front of my house on three occasions. On each of these occasions it was parked in my driveway with its spotlights shining on to my home. By that stage, I had become extremely frightened and felt very threatened. I was home alone with [the child], I could hear noises/people in the side paddock and the dog was barking furiously. I telephoned the police and informed them of what occurred. The police arrived shortly thereafter and listened to the conversation between [the father] and his brother and told me that their conduct was a form of intimidation. The Police recommended that I apply for an Apprehended Violence Order (AVO). They then went to speak to [the father] and I went to stay the rest of the night at a friend’s house.
42.On 1 August 2005 I applied for an AVO against [the father]. I obtained an interim Order that day. The final hearing was listed for 22 August 2004. annexed hereto and marked with the letters “KLA1” is a true copy of the application and interim order.
There is another account of this event contained in a bundle of email correspondence the father forwarded to the contact centre at 2:46 pm. on 3 August, 2005, the day on which contact was to commence at 3:30 pm; the whole of the contact centre file was tendered by the father. In the email to the centre the father asked them to ask the mother a number of questions relating to her intention to go to S, make-up contact the following Saturday, time for contact that Friday, the name of the child’s doctor and clinic and details of her health, whether the mother would agree to let him take the child to a kids’ event for three hours on 18 August and the mother’s reasons for using the centre. The email correspondence attached was said to be “for your reference only, as background”; the father noted it was confidential and he did not want it disclosed to the mother. Some of it (for example, an email from him to the mother of 29 July, 2005) was already in evidence, attached to his affidavit. The other emails include an account of what occurred which incorporates a number of SMS messages and an email (subject line “[the child’s] doctor”) sent at 8:58 am. on 30 July. In that email the father asserted that the mother “is unstable and needs counselling” and was using the child as a weapon towards him. He confirmed receipt of the SMS from the mother referred to in paragraph 31 of his affidavit. His account continues :
[Father’s younger brother]: (my brother) and I were driving down past [the mother’s] parents house at 1.30pm to see [my brother’s] girlfriends brother and noticed [the child] playing around in the front yard with [the mother’s] dad. I did a U-turn and we both seen [the child] and [the mother’s Dad]. I pulled up about 4 houses to call [the mother]. I seen [the mother] walk to the front of the driveway and look up and immediately walk away.
I left voicemail message saying, Hi […] its [the father], I would like a call, I don’t mind being told the truth, but I don’t like being lied to. We returned home (3 blocks away) and I asked [my brother] to go back and see [the mother] and see [the child].
[My brother], went straight back around, and [the mother] had already left. [My brother] was not home, he went to drive off and seen [the mother] coming so he returned to her house.He said, Hi […], just here to see if [the child] is Ok,
[The mother] replied, ‘What are you here to see if she’s got a shitty nappy’ [My brother] replied, ‘I beg your pardon’ She said ‘orrr nothing’ [My brother] said, ‘[…], I have never said or thought that’ meaning he didn’t understand what she was on about. [My brother] said can I see [the child], [the mother] replied, yeh but she’s going inside. [My brother] said hi [child]. [The mother] said, my door has always been open. [my brother] replied, ok you door is open. [The mother] has never offered for [my brother] to come around. [My brother] opinion’s is that neither [the mother] not [the child] appeared sick. [My brother] then sent this sms to [the mother]. My mum and I and [E] would love to come and see you and [the child] any time s that suit you let me no when this is ring me any time […] or this number
Following receipt of a text message from the mother in the morning, the father sent, within a few minutes, a disingenuous email to her. The text is repeated in the email forwarded by him to J. Myers on 1 August, 2005 and is as follows :
Hi […], can you please tell me [the child’s] Doctor and the practise they operate from. Is it still Dr […], from [D] Clinic? Can you also let me know if [the child] has been to Doctor this week, five days with the runs (and vomiting?) is a lot for anyone, let alone a child. Has the doctor given you anything for her? Is she getting better?
You advised me she has had the runs on Tuesday and today she has gastro. Wednesday her nappy rash had cleared up (as you advised), so does that mean she got better inbetween?
I am only concerned for [the child], I am not having a go at you, so please dont think that. I just want to know whats going on.
Thank you for your message today, I assume you didn’t get my voicemail last night asking after [the child].
It was within a short time of this that the father put into effect the plan that demonstrated the patent insincerity of his assertion of “not having a go at you”.
The father did not take issue with the mother’s verbatim account of the discussion with his brother, inadvertently recorded on her voicemail. This was probably a prudent course as the evidence established the recording was subsequently played to police, and it seems both parties routinely kept copies of text message, emails and the like which passed between them, some of which were adduced into evidence. However, the father’s brother made no such concession.
What is patently clear is that the father’s brother’s attempt to see the mother at her parents’ home, and his subsequent attendance at her own home, had nothing to do with a disinterested wish to enquire about the child’s health. It was an attempt to catch the mother out and to do that the father’s brother was prepared, at his brother’s urging, to go first to the mother’s parents’ home and then to the mother’s home.
On his own account, having observed the child playing in the front of her maternal grandparents’ home, the father did not proceed to his destination (a friend’s house) and make a phone call from there. He did a U turn in order to make further observations. He pulled up in that street. Not content with leaving a voice mail message (on the account in the email on the contact centre file including the words “I don’t mind being told the truth but I don’t like being lied to) he returned home and sent his brother to do his dirty work. When his brother reported that the mother was not at her parents’ home, he directed him to go to her home, which he did. Having failed to find her there, his brother left but on seeing the mother approaching, did another U turn and returned to her house. In my judgment this was a form of harassment and intimidation. It is disingenuous for the father to assert that he abided by the mother’s request he not attend her home or parents’ home, having sent his agent to do just that. I accept the mother’s account of her observations and discussions.
On 1 August, 2005 the mother filed an application for an AVO against the father. Her evidence was of obtaining an order that day and the final hearing being listed for 22 August, 2005. The father’s evidence was of knowing nothing of a complaint until seeing a copy of it attached to an affidavit of the mother filed on 21 December, 2005. His evidence was that enquiries revealed that no interim AVO was ever made. It is probable that is correct although it is also probable the mother believed an interim order was made. By the return date, the mother was in S.
On 3 August the father attended the contact centre for changeover, as arranged. The mother and child did not attend. The contact centre file records that the worker tried in vain to contact the mother. She did contact the maternal grandmother, who said she had not seen her daughter. The father did not see the child again until 10 December, 2005.
The evidence is that on or about 3 August the mother took the child and went to stay with relatives at G. She deposed to feeling unsafe and threatened; retrospectively, she described herself then as “having a breakdown”. I accept her evidence that she felt very frightened. I am satisfied her mother and sister were both very worried about her state at that time. The mother told neither of them where she was and they made no enquiries of her. When she returned, briefly, to L on 19 August to fly to S, it was her mother who took her to the airport. I accept that neither her mother nor sister knew where she was between 3 August and that time; there was probably a tacit understanding that they would not ask. Their focus was on her wellbeing, about which they were very concerned.
From G, the mother made arrangements for the contents of her Lhouse to be packed and put in storage. On 19 August she and the child flew to S and on 13 September, 2005 she, with her sister and brother-in-law, opened the retail business in S called Y Business. The business is operated by C Pty Ltd (which runs their primary business, a service business) and the shop is managed by the mother.
Once in S, the mother did nothing to advise the father where the child was. Her evidence was of now accepting this to be wrong, inconsiderate and selfish and that it had an adverse affect on the child’s relationship with her father. She attributed her conduct to her then desperate state of mind.
Back in L the father desperately tried to find the child. He made enquiries through family and friends, to no avail. He did not know Mrs C’s surname. I accept the maternal grandmother’s evidence that she received only one request for information and that occurred when the father and his mother came to her house; on the father’s evidence, that occurred on 13 August, 2005, when the mother was still in G. After taking advice, the father filed an application in the O Magistrates’ Court on 20 September, 2005 and on 22 September a magistrate made a Commonwealth Information Order. The mother’s address in Queensland was released to his solicitors by order of the Magistrates’ Court on 20 October, 2005. The father’s application and supporting material was served on the mother on 22 November, 2005 and the case was listed for interim hearing in this Court in Melbourne on 5 December. The mother was not present but was legally represented.
On that day Guest J ordered, by consent, that until further order the mother be restrained from causing the child to live outside the city of L. Interim orders provided for the child to spend time with the father on nine days in December (building from three hours on 10 December to seven hours from 24 December). Thereafter, the child was to be delivered to the father from 9:00 am. to 4:00 pm. on Saturday and Sunday in each alternate weekend, and every Wednesday from 3:00 until 6:00 pm. An independent children’s lawyer was appointed at that time.
On 31 January, 2006 Judicial Registrar Ramsden gave the mother permission to attend S with the child for up to two weeks for the purpose of putting her affairs in order and provided for make-up contact on the next available non-contact weekend. The father deposed that his application for an extension of his time with the child was unsuccessful; the order made that day says nothing of that, but does provide for the orders made by Guest J on 5 December, 2005 to otherwise continue in full force and effect until further order. The case was transferred to the Albury registry.
The father deposed to numerous occasions on which the child either did not come for contact or the date was changed at the mother’s request. He said nothing in his own affidavit of the occasions that he sought to change the times fixed in the orders or to change days. The parties started using a communication book in January 2006 and it records frequent requests and counter-requests for changes to dates and times. A few entries over one month illustrate the flavour.
An entry made on 1 February, 2006 records the mother’s advice that they would be leaving “this Friday” for Queensland and returning on 17 February; this was pursuant to the order of Judicial Registrar Ramsden. The mother advised that his make-up weekend (pursuant to the order) would thus be Saturday 18 and Sunday 19 February. The husband responded that he had work commitments in Adelaide from 18 to 21 February and sought, in lieu, the weekend of 4 and 5 March. At the same time (1 February, 2006) he advised that he had a long-standing commitment to walk at F on the weekend of 25 and 26 February, in remembrance of his mother; he asked if he could have the child from 2:00 to 6:00 pm. on Sunday 26 February and make-up the lost Saturday on one of the Easter days, preferably Easter Saturday. In the same email he sought to change the Wednesday times to 3:15 to 6:15 pm.; the request makes it clear that when the 6:00 pm. time was fixed it was done in the context of the child needing time to settle at her mother’s home before going to bed.
In a reply on 2 February the mother advised that she and the child would not be available on the weekend of 4 and 5 March or 18 and 19 March. The time suggested by the father on Sunday 26 February would be fine, so long as the child was awake from her sleep; she said if the child was not going to be ready by 2:00 pm., she would text the father. She advised that at that stage she envisaged going away for Easter but would let him know if that changed.
On 22 February the father confirmed the arrangement for 26 February and advised he would have a look at other make-up dates that would suit them both. On 26 February the mother advised that their plans for the next weekend had been cancelled so if it still suited him, he could have the make-up weekend on 4 and 5 March, an offer accepted on 26 February.
The entries in the communication books reveal the parties’ very different styles. The mother wrote in a direct and sometimes curt way, calling a spade a spade. The father reiterated requests for information previously provided and, whether consciously or unconsciously, often missed her point. Many of his entries conclude with assurances that he only wants to do what is best for the child.
84. One example will illustrate the failure of their minds to meet. By March 2005 the child had a provisional diagnosis of asthma; her wheezing and coughing responded to asthma medication. She was prescribed medication which could be given by a spacer or, if more serious, a nebulizer. The father denied being told of this until May 2005 although I am satisfied he either knew or ought to have known of it from the time the mother took the child to E’s birthday party, later in March 2005, Ms T corroborating the mother’s evidence of having to administer medication through the spacer at the party in circumstances where the father and his mother were in close proximity.
85. The first entry in the communication book is dated 28 January, 2006. After an enquiry as to what the mother considered to be “excessive amounts of sweets and what in general are sweets, do you mean sugar lollies, sugar biscuits, chocolate etc.” the father raised the question of asthma by the following entry :
Can you also tell me what happens when [the child] has an asthma attack and what I should do. If I was to take her to hospital I would need to know any medications she was on. I would of course call you, but just in case I couldn’t get hold of you. Is your contact mobile still your mum’s mobile number?
That night, the mother made the following entry in the book which was to accompany the child. Under the heading Asthma, she wrote :
[The child] will commence wheezing which will worsen over long periods of time, generally not a sudden attack. she will sound like she has a cold. Sudden attacks generally occur if exposed to inappropriate environments. [The child] is on a preventor. Should you require any medication for asthma I will make you aware of it before a visit as I would and have with any other illness.
She completed the entry on 1 February, 2006 before the child went to the father, noting the child’s medication to be “preventor – Seretide, and Ventolin”.
On 1 February the father made an entry asking the mother to let him know what had triggered the child’s asthma in the past. He advised he had never placed her near smokers or smoke so “the asthma attack” must have been from another cause and asked her to let him know when the child has an asthma attack, particularly if it followed time with him so he could work with her to try and identify other trigger factors.
The father had made an appointment to take the child to a paediatrician. It had to be postponed as it fell in the period the mother was returning to Queensland to put her affairs in order. In the communication book entry on 1 February he said he would call the paediatrician to arrange another time and asked the mother to explain to him why she wanted to come to any such assessment, adding “have you seen a paediatrician with [the child] before, for specialised advice on asthma?” Responding to that on 2 February the mother said she thought it should be self explanatory why she should/would be at [the child’s] appointment as, after all, she was the one who knew all of [the child’s] medical history.
[The child] next had contact with her father on 22 February, 2006. When the communication book was returned, it included an entry by
Dr V. By then the mother knew that the father had taken the child to the paediatrician, as Dr V had contacted her. His entry recorded that he saw the child at his rooms for review of her asthma and he would try to call the mother in the next couple of days. He gave her his phone number and advised that all letters would be copied to her.
The mother has demonstrated the capacity to provide for the child’s needs. She has done so since birth and the child is thriving. The father’s capacity to care for the child is improving but the evidence suggests that he still has some way to go before understanding the needs of a developing child, presenting as naive about many aspects of children’s care and development.
I have earlier referred to a number of examples. Another illustration is the proposal he put forward when the case opened. In circumstances when he sought to have regular and frequent contact with the child, and a week and week about arrangement once she starts school, he sought an order that the mother and the child live within a 50km radius of L. As he was cross-examined about this one could literally see some of the potential difficulties dawning on him; his demeanour went from incomprehension to puzzlement and then, slowly, to realisation. When he eventually said that he had been thinking of the 50km limit until the child started school, the answer was most unconvincing.
Sometimes it was difficult to tell whether the father was naïve and inexperienced, or simply keen not to do as the mother wanted. I have already considered examples relating to the child’s health and diet. Another is his response to the mother’s request for a photograph of him with the child when she and the child moved back to S in August 2006. The father did not provide the requested photograph. His explanation for his refusal (at the time, and up to trial) was that there was need for him to accede to the request, because the mother already had photographs of him with the child, when she was a baby. Again, one could see understanding dawning on his face as counsel endeavoured to explain that the child would not recognise herself in a photograph taken when she was tiny; for her to have a photograph that reminded her of her relationship with her father, it needed to be more recent. His lack of understanding of this may have been behind his refusal to accede to the mother’s request; it may also have been a simple reluctance to give her something she sought. Either way, it is not indicative of a sensitive understanding of a young child’s developmental stage. The mother’s request, on the other hand, was sensible and child-focussed.
There is no doubt that the mother’s unilateral departure for G and then S, and the resultant break in any contact whatsoever between the father and the child, was selfish and irresponsible. At that time no court orders were in place and the parties had parental responsibility pursuant to the forerunner to the present s.61C(1). In Goode & Goode the Full Court considered the difference between “parental responsibility” where no order has been made by a court and an order for equal shared responsibility pursuant to s.61DA(1) of the Act. The Full Court (Bryant CJ, Finn and Boland JJ) considered the description of the concomitance of parental responsibility described in B v B: Family Law Reform Act 1995 (1997) FLC 92-755 to still be correct where no order has been made by a court, the Full Court confirming that where no contrary order has been made, parents may exercise parental responsibility independently or jointly. This is so whether the parties were married, living together, never lived together or separated so long as there was no contrary order in force. However, once a court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, major decisions for the long term care and welfare of children must be made jointly, unless the court otherwise provides.
Those findings might provide some comfort to the mother in terms of decision she made about the child’s living arrangements and health prior to her departure for G, and I am not critical of her for them. However, she must accept responsibility for disrupting the child’s relationship with her father, and for acting in a way that was both disrespectful of his role as the child’s father and contrary to the child’s best interests.
The father’s submission was that the mother’s allegations that, prior to her departure, he had been demanding, harassing, controlling and belittling was an ambit claim raised by her for strategic gain. I reject that submission. For reasons set out earlier, I am not satisfied that the picture the father painted of himself in the communication book and in his evidence, was a reliable one. I am satisfied that he was much angrier with the mother than he is prepared to concede and I accept the mother’s evidence of his lack of civility towards her. That does not justify her conduct, but it does put it into a context.
Ms D was cross-examined about the mother’s unilateral relocation and its relevance to her capacity to foster the child’s relationship with her father in the future. Ms D made it clear that, in her opinion, the relocation was of concern; she saw it as a mistake and poor behaviour. Nevertheless, she formed the view that the mother would support the father’s relationship with the child; in her opinion, the mother genuinely wants to nurture and support that relationship. She said that the mother spoke very firmly and in a committed way about fostering the relationship; whilst she spoke about her concerns regarding communication, and what she saw as the father not valuing her parenting, she also spoke of the value of his relationship with his daughter. With Ms D the mother’s focus was not on the father’s deficiencies in parenting.
Notwithstanding his alleged commitment to his relationship with the child, the father was adamant when he saw Ms D that he was not prepared to travel to S to see the child. Ms D noted that the father reported that he was not prepared to travel to S for contact with the child and, during the interview, indicated very strongly that he had no intention of spending any of his annual recreational leave in S. Ms D noted in the report that it was unclear whether this response was strategic or whether he was genuinely not prepared to use annual leave for contact with the child in S. She said that if the father were not prepared to do that it would have significant impact on the quantity of contact and the child’s relationship with the father (if relocation were permitted), and raised questions about the father’s motivation.
In evidence in chief the father said that Ms D’s report of those conversations was not correct. He said that he explained that a lot of time would be consumed in travel and he would not be having that time with the child but that “I said of course I would spend my annual leave with [the child]”. I have more confidence in Ms D’s recollection of the father’s statements and state of mind when she saw him. Whatever he now recalls saying, it is probable he was much more negative about the prospect of travel to S than he recalls. Although the interim orders provided for him to have contact with the child in S by arrangement, he had not sought to do that.
Much was made of the mother’s evidence of purchasing a house in S. In one affidavit she said she had bought a home in there; in another she deposed to having an opportunity to purchase a house there. The house in question is an investment property owned by her sister and brother-in-law. A standard form contract was filled out providing for the sale by them to the mother for $190,000. It was not dated and the mother’s evidence was of stopping the purchase because she got cold feet. She is living in the home and I do not doubt could and would make arrangements to go ahead with the purchase if allowed to live in S with the child. I do not find she intended to mislead the court when she spoke of purchasing, or having purchased, a house there.
Mr L works for an exploration company, in a secure and well paid position. He has taken on financial responsibility for the mother and, to the extent necessary, for the child. The mother’s relationship with him has been sustained through many comings and goings and I accept both are committed to it.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is at the heart of this case. A primary consideration is the benefit to the child of having a meaningful relationship with both of her parents. This is also stressed in s.60B(1) of the Act. The father’s contention is that to allow the child to live with her mother in S will impact on her relationship with him, to its detriment.
Ms D’s opinion was that the mother does not appear to want to relocate out of any sense of revenge or intention to harm the father, and I find that to be the case. Since being in S she has attempted to offer positive reminders of the father to the child, and complied with orders for the child to spend time with the father. I am satisfied that she has been making a genuine attempt to ensure the relationship is maintained, and I am satisfied she is likely to continue to do so. The father’s evidence was that the child now slips easily into a routine with him and that changeovers have been improving; he described the changeover on the Saturday before the trial as “really good”. He said that he and the mother have been talking about the need to build their relationship, in order to foster the child’s wellbeing. His evidence was that the mother has complied with orders for him to see the child in L, and it was his belief that she would comply with orders in the future.
Ms D acknowledged that frequent interaction with the father was important to the child and unless they were reasonably close, it would be hard to maintain a sense for her of her father. She said that once children are two they have a better capacity, in terms of memory and cognition, but there was no consensus as to what was necessary to maintain a meaningful relationship. Ms D’s evidence was that there is a view that a minimum of monthly time is required; that once a relationship is established, and as long as there are positive reminders, monthly contact can maintain a relationship. She said that research shows that from two years old children develop emotionally and cognitively and at two and a half to three years a child has the capacity to retain a memory.
Ms D made it clear that ideally, and for the father to be part of the child’s daily life, regular and frequent contact, including weekly contact, would be best. However, her evidence was that a monthly time with her father, plus other interaction, would maintain their relationship. She referred to many variables including the child’s temperament, the mother’s attitude, the way the father presented to the child, the child’s capacity to travel and the financial viability of the travel.
Considering the mother’s position, Ms D wrote:
61.The mother reported a level of happiness and contentment with her life in contemplation of her relocation that had been missing previously; she had experienced difficulties and was unhappy with her life in [L]. She has formed a relationship with a man who resides in [S], which in spite of the significant distance, has continued for almost twelve months. Socially she feels disengaged from her old friends in [L], most of who have partners. The mother is the child’s secure base attachment figure and the impact on the quality of care provided by a happy mother compared to an unhappy mother requires contemplation. The mother presents as a very loving and capable parent, however the impact upon her emotional wellbeing if she were not permitted to relocate is difficult for the writer to predict.
62.Since leaving high school, the mother has spent little time in [L]. Years spent in the snow fields, [north NSW coast], travelling overseas before returning to [L] in late 2002. It does not seem out of character for the mother to want to embark on a new adventure and business opportunity as it would seem part of her nature. The mother informed the writer she envisaged residing in [S] for at least five years; however at this time, it would be difficult to predict if she would remain there. It is quite possible the mother would return to the [L] area at a later stage of the child’s life, it is also quite possible that the mother would relocate elsewhere at a later date. However the writer does not believe that the mother presents as unstable or transient, that any future moves, if they were to occur, would be well considered and planned.
The maternal grandmother compellingly described her daughter’s presentation in the periods she is in L; she showers early, gets into her pyjamas and sits in her room, and often talks for lengthy periods on the phone.
Ms D’s evidence was that it was hard to know how the mother would manage her disappointment if she could not relocate with the child. She said that it would certainly stress the relationship, and the mother would also be stressed by her inability to assist with her older nephew’s care in S and provide support to her sister, as well. Ms D said that she was aware that the mother was experiencing symptoms of depression when she moved to live at her mother’s home after the child’s birth and if someone has experienced depression, it is more likely that they will experience it again. Nevertheless, the mother was a stable person who, she believed, will consider and plan any future moves.
Ms D’s oral evidence (despite her comment in paragraph 63 of her report) was that she was confident that the mother would maintain motivation if orders stipulated the time that the child was to spend with her father. She said that there was always a risk that the father might become less proactive if the child were not in L.
I am satisfied that the mother had intended to come back to L over the Christmas period in 2005, although not to return permanently. Court orders were made prior to her being able to put that intention into effect.
The court must also consider the loss of time with other members of the paternal family, including the paternal grandfather, uncle and cousins. If the child were to return to L each month, she would be able to have a few days with her father, and in that period she could spend time with these relatives. Necessarily this would be less time than would be available were she to live in L, and once she starts school other constraints will operate.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Travel between Southern NSW and Queensland is expensive and time consuming. When she first raised the move, the mother also raised the potential for the father to pay the costs of travel instead of child support. Were the father to spend significant sums on travel to ensure that he has time with the child, that would no doubt provide a ground for departure in any review of his obligations.
The mother has been paying for all travel between Queensland and Southern NSW to date. She is clearly a competent and energetic woman and there is no reason to believe that she will not succeed in the business venture in S if she is able to continue with it. I accept that she sees the relocation as providing long term financial security and prosperity for her and the child, and an opportunity not to rely only on child support and government support in the long term. She has sold her L house to fund legal costs and is living with her mother in L when here. I am satisfied that the mother, with the assistance of Mr L, would find the money to meet whatever orders the court made about financial responsibility for travel.
Save in the very short term, it would be impracticable for the child to travel between Queensland and Southern NSW more than once per month. Once in L, she could stay for some time, possibly breaking the period with her father (with periods back with her mother) until she is a little older. Until she starts school it is feasible to take a week out of a month, in terms of the mother’s obligations in S; any longer periods would be impracticable.
The mother’s evidence was that the child was coping well with the travel and the breaks in seeing her father and had recently spoken with him on the phone, laughing and “saying words”. She spoke of the option of using the internet to maintain contact later on.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Prior to the institution of legal proceedings the parties had struggled to implement a contact regime and they have been embroiled in litigation since September 2005, the mother’s unilateral departure necessitating recourse to the court. The child has been the subject of litigation for more than half her life.
Speaking of the good contact changeover on the weekend prior to trial, the father attributed it to a better relationship between the parents, saying that he thought that the child had been aware of tension between them in the past. It is of note that those comments were made in respect of a changeover at the end of a three week period in which he had not seen his daughter. That bodes well for future changeovers, whatever the residence arrangements. Whatever the outcome, an end to litigation may allow the parties to concentrate on improving their parental relationship rather than maintaining a focus on negatives, a focus that adversarial proceedings can encourage.
The maternal grandmother described the father’s refusal to engage with her at changeover, or to engage with the mother. It is to be hoped that is changing.
While this case is not about Mrs C’ son’s best interests, the court cannot ignore the effect his illness has had on the mother and her family and her legitimate and genuine desire to play a supportive role in the mother’s sister’s family.
PRIMARY CONSIDERATIONS
When determining what is in the child’s best interests the primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no doubt that it is in the child’s best interests to have an ongoing, strong and significant relationship with both of her parents. The father’s submission is that that can only be achieved if the child lives in the L area. The mother submitted that the child’s relationship with her father could be maintained and strengthened despite living in S, and that events in the months leading up to the trial demonstrated that, and her commitment to fostering that meaningful relationship.
Although I have been critical of aspects of the father’s behaviour, and found that, on occasions, he acted in ways that were reasonably perceived by the mother to be harassing and intimidatory, this is not a case where the court must consider the balance between the two primary considerations. The focus is squarely on the maintenance of the child’s relationship with her father.
I have found that the mother’s conduct in unilaterally leaving L and denying the father knowledge of or time with his daughter for many months was irresponsible parenting. In that regard she did not facilitate his relationship with his daughter. However, I am satisfied that in other behaviour, before and after that period she did attempt to facilitate the relationship and satisfied, too, that the father’s claims to the contrary were exaggerated.
Applications for relocation such as this, based on genuine motives, can be heartbreaking, as one party almost invariably feels devastated by the outcome and is left with a sense of injustice. Nevertheless, the court’s focus must be on the best interests of the child in question.
In this case I am satisfied that the factors which support an order allowing the child’s relocation to S outweigh those which militate against it. I am satisfied the mother’s reasons for the move are genuine and that she is not motivated by a desire to exclude the father or limit his role in the child’s life.
To the contrary, I am satisfied she will foster that relationship. The mother is in a committed relationship with a new partner, who is able and willing to give her both emotional and financial support. That, in turn, impacts on her sense of self and security and thus on her parenting. She is playing an important role in the life of her sister’s family and, despite her younger nephew’s illness, that family environment is also supportive and enriching for the child.
The child’s relationship with her father deepened in the months leading up to the trial and the parties’ communication improved. In that period I am satisfied the mother acted proactively and constructively to ensure that the child maintains a clear picture of her father, his role in her life and his importance to her. She has complied with all orders for travel, for which she has paid.
Whilst enjoying his time with the child in L, the father has not been as proactive, not taking up the opportunity to spend more time with the child in S, even for a weekend here or there, and not responding to practical requests like the request for a recent photograph. Assuming the evidence he gave about his willingness to use some of his holidays to travel to S was indicative of his position now, that is a positive indication of his commitment to fostering the meaningful relationship he says he wishes to have with his daughter. I act on the basis that he meant what he said, and had changed his position, since the family report was prepared.
Balancing all factors, I am satisfied that the mother should be able to relocate the child’s residence to S. Having regard to the evidence that the child will be able to manage the gaps between seeing her father better as she gets older, there is substance in the proposal advanced by the father that, if she is to be allowed to move, that not occur until after March 2007. That will allow her to spend more time with her father in the short term and to build on the improvements in their relationship. She can have a series of overnight periods with him, returning to spend time with her mother, or nights in between.
Once the child moves to live in S, and until she turns four, orders will provide for her to spend a number of periods with her father in the course of a week, in each month. Once she is four, and until she goes to school, the periods will be extended so that she is with her father from Friday afternoon until Tuesday afternoon, and then again from Thursday afternoon until Friday morning for nine months of the year, that contact will be in L. In the remaining three months, it will be in S.
Once the child starts school, orders will provide for her to spend ten days with her father in each school term holiday period, half of the Christmas holiday period and at times to be agreed, in S during school terms. Orders will also provide for the child and the father to communicate by webcam, by telephone, by written correspondence and by email and text messages once the child is able to communicate that way.
I am satisfied that the mother should be responsible for the costs necessary for the child to spend time with her father in Southern NSW and that he should be responsible for the costs necessary to ensure that he spends time with the child in Queensland. As noted earlier, if these costs are considerable, they may be relevant to a review of his child support. His financial position is such that he can afford to meet his share of those costs and I am satisfied that the mother will be able to do so, too, given the financial security she should achieve through the business, as well as her relationship with Mr L.
Orders will provide for the parties to keep each other informed of significant matters in the child’s life and for the father to have an ongoing involvement in the child’s schooling, once that commences. Orders will also ensure that the father is given notice of any intention to seek to relocate the child’s residence from S.
I certify that the preceding
164 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.
Dated the day of 2007.
…………………………………………
Associate.
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as MAZORSKI & ALBRIGHT
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