Mills & Watson
[2008] FMCAfam 2
•1 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLS & WATSON | [2008] FMCAfam 2 |
| FAMILY LAW – Parenting – relevance of father’s violence and other inappropriate behaviour – where not in dispute that child should live with mother and father's time with child must be supervised – where child estranged from father – where mother relocated with child from Tasmania to Victoria without father’s knowledge or consent – where mother has re-partnered – where mother, her new partner, the child and the child of the mother and her new partner in a settled and stable environment in Victoria – where father seeks orders compelling mother to relocate with child from Victoria back to Tasmania. FAMILY LAW – Parenting orders – injunctions – power of the court to order a parent to relocate – discussion of Full Court decision in Sampson and Hartnett (No 10) (2007) Fam CA 1365 – whether dicta in Sampson and Hartnett (No 10) (2007) Fam CA 1365 applies to ex-nuptial children, or only to children of a marriage – applicability of Part VII of Family Law Act 1975 to ex-nuptial children generally – discussion of High Court decision in MIMIA & B (No 3) (2004) FLC 93-174 – discussion of meaning and effect of sections 69ZH and 69ZE, and of the diversity jurisdiction in section 69ZJ of the Family Law Act 1975 – discussion of the jurisdictional provisions in Subdivision F of Division 12 of Part VII of the Family Law Act 1975 – applicability of injunction provisions in sections 114(3) and 68B(2) of the Family Law Act 1975, including applicability of these provisions to ex-nuptial children. |
| Family Law Act 1975 (Cth) |
| A & A (Relocation Approach) (2000) FLC 93-035 North SC, “Accrued jurisdiction; questions of discretion and power” (2005) AJFL 178 |
| Applicant: | MR MILLS |
| Respondent: | MS WATSON |
| File Number: | LNM 1687 of 2004 |
| Judgment of: | Walters FM |
| Hearing dates: | 25 – 27 June 2007 |
| Date of Last Submission: | 11 January 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr McGuire |
| Solicitors for the Applicant: | Walsh Day Williams Pty |
| Counsel for the Respondent: | Mr Fitzgerald |
| Solicitors for the Respondent: | Legal Aid Commission of Tasmania |
| Counsel for the Independent Children’s Lawyer: | Mr Walker |
| Solicitors for the Independent Children’s Lawyer: | Verney Walker & Co |
ORDERS
All previous parenting orders be discharged.
The child I born in 2001 (“the child”) live with the mother, MS WATSON (“the mother”).
The mother and the father, MR MILLS (“the father”), have equal shared parental responsibility for the child.
Commencing on a date to be fixed, the father spend time with the child in Tasmania on the following basis:
(a)for two consecutive days (or, during school holidays, for up to four consecutive days) in every sixth weekend;
(b)time shall be spent on a supervised basis to be effected at the Children’s Contact Service operated by Relationships Australia in L (“LCSS”);
(c)time, length of and number of the visits will be determined by the coordinator of the LCSS (“the LCSS coordinator”), from time to time in his or her sole discretion;
(d)the parties will contact the LCSS coordinator at least twenty-one days prior to each scheduled visit to make arrangements for times and dates;
(e)subject to (f) below, the mother bear her and the child’s travel (including, but not limited to, interstate travel) and other costs of and incidental to the father spending time at LCSS pursuant to this paragraph;
(f)the parties shall share equally any fees associated with the use of the LCSS; and
(g)additional holiday time will be subject to the availability of the LCSS on the days preceding or following the weekend.
Commencing on a date to be fixed (which date is to be either three weeks before or three weeks after the date for commencement of the spend time arrangement at LCSS pursuant to paragraph 4 above), the father spend time with the child in Victoria on the following basis:
(a)for two consecutive days (or, during school holidays, for up to four consecutive days) in every sixth weekend;
(b)time shall be spent on a supervised basis to be effected at the Children’s Contact Service operated at B, Victoria (“BCSS”);
(c)time, length of and number of the visits will be determined by the coordinator of the BCSS (“the BCSS coordinator”), from time to time in his or her sole discretion;
(d)the father will advise the mother and the BCSS coordinator not less than twenty-eight days prior to the scheduled time, as to whether he wishes to spend the time contemplated in this paragraph;
(e)subject to (f) below, the father bear his travel (including, but not limited to, interstate travel) and other costs of and incidental to the father spending time at BCSS pursuant to this paragraph;
(f)the parties shall share equally any fees associated with the use of the BCSS; and
(g)additional holiday time will be subject to the availability of the BCSS on the days preceding or following the weekend.
The father spend such further or other time with the child as may be agreed from time to time in consultation with either the LCSS coordinator or the BCSS coordinator.
In the event that either the LCSS or the BCSS is unavailable, the parties will do all such acts and things necessary to locate an alternative supervisory centre, or will request the LCSS or the BCSS to offer the next available time for a visit.
The father will communicate with the child as follows:
(a)by sending letters, cards, gifts and photographs to the child at a post office box to be advised by the mother, and:
(i)the mother will advise as to the post office box number within seven days of the date of this Order;
(ii)the mother has liberty to open any package forwarded by the father and will not be required to pass on any material which in her discretion is offensive or abusive; and
(iii)subject to (ii) above, the mother will pass on the contents of any package to the child within seven days of its receipt;
(b)the mother will facilitate the child sending a package to the father not less than once per calendar month and the father will keep the mother advised as to his postal address from time to time;
(c)by telephone each Wednesday at 7.00 pm, commencing 14 May 2008, on the following basis:
(i)the father will provide the child with a prepaid mobile telephone, the costs of which he will be responsible for;
(ii)the mother will ensure that the telephone is switched on and available to the child at the ordered time; and
(iii)the father will call the mobile at the ordered time.
The father be and is hereby restrained by injunction from forwarding to the child, or to the mother, any material containing religious content.
The father do comply with any treatment or medication prescribed by his Psychiatrist or General Practitioner from time to time.
All parties have liberty to apply, on seven days notice in writing to the other parties, for further orders –
(a)specifying the dates upon which the spend time arrangements described in paragraphs 4 and 5 above are to commence;
(b)specifying the manner in which notice is to be given for any of the purposes specified in the orders made this day; and
(c)otherwise required to effectively implement –
(i)the Judgment of Walters FM handed down on 1 April 2008; and
(ii)any of the orders made this day.
AND THE COURT NOTES THAT:
Pursuant to ss.65DA(2) and 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 are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Mills & Watson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNM 1687 of 2004
| MR MILLS |
Applicant
And
| MS WATSON |
Respondent
REASONS FOR JUDGMENT
Introduction
In essence, this case is about the time that a seven year old girl should spend with her father, and how it should be structured. Although the law now refers to a child “spending time” with a person (usually a parent) with whom the child does not live[1], I shall use – from time to time in these Reasons – the obsolete term “contact”. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
[1] See, for example, section 64B(2) of the Family Law Act 1975
The father lives in D, in north-western Tasmania. The mother now lives near C, in central Victoria. Until December 2005, however, she lived near the father in Tasmania.
The father lives alone. The mother lives with her partner, Mr L, and their daughter, L. I (who is the subject of these proceedings) lives with them.
The father has another child, E, who is now approximately 2 years of age. E's mother is Ms G, with whom the father had a relationship after he separated from the mother. The father's relationship with Ms G ended some six months before E was born. Ms G has remarried, and she and E live (or used to live) in H. The father says that he has contact with E "every couple of months for about four hours at a time".[2] It is not in dispute that an incident occurred during which the father was violent towards Ms G in I's presence.
[2] See paragraph 53 of the father's affidavit sworn 24 November 2006
Nobody suggests that I should cease living with the mother (and Mr L and L). Similarly, it is agreed that the father’s contact with I – in whatever form it may eventually be ordered – must be supervised. To that extent, the case is “seductively simple”.[3] The principal issue in it, however, is significant (and difficult). Among other things, the father seeks orders which would have the effect of requiring the mother to relocate I’s residence from Victoria back to Tasmania, so as to enable the father to have more regular (and thereby, hopefully more meaningful) contact with I. Beyond that broad issue, the Court is required to determine the venue at which contact is to take place, and its frequency.
[3] See mother’s closing submissions (“CSM”), page 7
The father has a mental illness. He argues that he cannot relocate from Tasmania to Victoria (to be closer to I) because of his illness, his need for certainty and routine and the fact that his support networks are in Tasmania.[4]
[4] See the father’s closing submissions (“CSF”), paragraph C1
The mother argues that she should not be compelled to re-establish residence in Tasmania with I, and that the Court should work around (as it were) the fact that the father and I live far apart.
To further complicate matters, I is estranged from the father.
The father hopes that his relationship with I will improve if he is able to spend more time with her. He fears that the relationship will ultimately be strained beyond hope of repair if I remains living in Victoria. Further, the father does not trust the mother to encourage a close and continuing relationship between I and himself.
The above summary comprises no more than a superficial introduction. I shall do my best to identify and resolve the various issues in dispute between the parties elsewhere in these Reasons.
Background
The mother was born in 1967 and is now 41. The father was born in 1973 and is now 34. They started living together in 1998, and separated in October 2002. They never married.
I, the only child of their relationship, was born in 2001. She is now 7.
There is a long history of violent, abusive and controlling behaviour by the father towards the mother throughout the period from shortly after the parties commenced their relationship until the time they separated. In this regard, I accept the mother's description of the father's behaviour contained in paragraphs 30 to 58 of her affidavit sworn 25 January 2007.
The father does not deny much of the behaviour attributed to him during this period, although he seeks to minimise its severity, and its impact on the mother and I. Suffice it to say, at this stage, that I prefer the mother's version of the history of the parties’ cohabitation (from the commencement of cohabitation in 1998 to separation in October 2002) to that of the father. I will make mention, however, of the following passages from the father's affidavit sworn 22 September 2006:[5]
… two weeks before we separated, I hit (the mother) once with a boot. The day before (the mother) left we were having an argument and I hit her in the head with my fist. Before my fist made contact with her, (the mother) passed out. When my fist made contact with her, she was already falling to the ground. I do not remember hitting her very hard. I was in (the mother's) arms at the time and I caught her before (the mother) fell. I regret very much doing this and I have felt a great deal of shame and guilt since. … The next day our relationship ended when (the mother) left and I was charged with common assault.
During our relationship, (the mother) and I had many arguments where we would shout at each other and use abusive language to each other. I would have bursts of temper were I would yell at her and then she would yell back. That time of my life is shrouded with a shadow of gloom: the illness and those abusive times. Many times I would have feelings of betrayal. I felt that (the mother) was being disloyal to me by seeing her parents behind my back. I didn't mind her seeing her parents. I also felt that (the mother) was being unfaithful to me sexually. On one occasion, I got out of bed and I found (the mother) was in the lounge room with my sister who is a lesbian. I thought that my sister had been flirting with her for some time. I felt strangely that (the mother) was being unfaithful with my sister. My sister tried to get (the mother) out of there before and wanted to hit me in the head with a hammer.
[5] See paragraph 2(ee)
The mother and Mr L met in 2003 or early 2004 and started living together in May 2004. Their daughter, L, was born in 2005. L was born prematurely, and the mother spent three months in the R Hospital during the period leading up to or after her birth. L has hydrocephalus, and currently “has regular appointments” at C Hospital in Melbourne.[6]
[6] See mother’s affidavit sworn 25 January 2007, paragraph 151
Mr L had a shop in E, Tasmania before he and the mother relocated to Victoria. At various times in April and May 2004, the father went to Mr L's shop, or otherwise confronted the mother, and arguments and friction ensued.[7] For example, in late April or early May 2004, the father made comments to the mother which can reasonably be inferred as suggesting that the mother's father should not be trusted to care for I. The father appeared to be of the view that I may have been sexually abused by the mother's father. That issue was not pursued at trial, and there is no evidence to suggest that the father's concerns (as expressed at that time) had any rational foundation whatsoever.
[7] See, for example, paragraph 2(f) and (g) of the father's affidavit sworn 22 September 2006
At the end of April 2004, the father failed to return I after a contact period. He alleged that he had certain transport problems. The mother (who was working in Mr L's shop and was unable to leave at short notice) eventually collected I from Ms G's house approximately 5 hours after the contact period was to have concluded.
On 10 May 2004, the mother applied for a restraint order against the father. She recorded herself and I as the persons to be protected. Mr L applied for a restraint order against the father on the same day. Interim restraint orders were made on 11 May 2004, in the Court of Petty Sessions in L.[8]
[8] See annexures to the father's affidavit sworn 24 June 2004
The father had limited contact with I from separation until the early part of 2004. For the first year or so, the contact was supervised by the mother, although occasionally it was unsupervised. After December 2003, the father had overnight contact on a few occasions. From approximately April or May 2004 until 2 December 2005, he had no contact with I.
In or about August 2004 the father stood outside Mr L's shop and read a passage from the Bible. In his affidavit sworn 22 September 2006, the father describes the incident as follows:
I was photocopying passages of the Bible for a project that I was working on. As I was leaving, I stood across the road from (Mr L's) shop and I read the passage from Matthew 18 which in the 1611 translation of the Bible is clearly a warning against child abuse. (Mr L) came out of the shop and I handed him the photocopy from which I was reading and left. I regret doing that and I was charged with breaching the restraint order, but I was very worried about my daughter. I also heard that Mr L was abused as a child and I feared that he could also be a potential abuser.
There was no suggestion at trial that Mr L is other than a wholly appropriate person to have close and continuous contact with I. Indeed, there was no suggestion that he is other than a caring, loving and responsible step parent (or de facto step parent) for I.
When the father stood outside Mr L's shop reading the passage from the Bible, he was well aware of the existence of the restraint order. During cross examination by Mr Fitzgerald (for the mother), however, he justified his actions, saying that he was simply trying to re-establish contact with I and was "grieving and pining" for her, whilst at the same time "trying to educate those around the warnings against child abuse".[9] He also said that he read the passage aloud in an assertive manner, and confirmed that he may have been using cannabis (perhaps heavily) around that time.
[9] See transcript at page 28
The father offered to read the passage from Matthew Chapter 18 during his cross examination. He then read it aloud in a clear and forceful manner. The effect in court was unsettling, if not chilling. The following is an extract from the transcript:[10]
[10] At page 29
HIS HONOUR: What is in Matthew Chapter 18? ─It's ─ do you want me to read it to you?
Yes, go ahead. You've got the bible there? ─It's a different translation. You really need the 1611 version to get the correct - what are we looking up? Matthew. Matthew 18, "At that time the disciples came to Jesus, saying, 'Who is the greatest in the kingdom of heaven?' and calling to him a child, he put him in the midst of them and said, 'Truly, I say to you, unless you turn and become like children, you will never enter the kingdom of heaven. Whoever humbles himself like this child is the greatest in the kingdom of heaven. Whoever receives one such child in my name receives me, but whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened around his neck and to be drowned in the depth of the sea. Woe to the world for temptations to sin. For it is necessary that temptations come, but woe to the man by whom the temptation comes. And if your hand or your foot causes you to sin, cut it off and throw it away; it is better for you to enter life maimed or lame than with two hands or two feet to be thrown into the eternal fire. And if your eye causes you to sin, pluck it out and throw it away; it is better for you to enter life with one eye than with two eyes to be thrown into the hell of fire. And if your eye causes you to sin, pluck it out and throw it away; it is better for you to enter life with one eye than with two eyes to be thrown into the hell of fire. See that you do not despise one of these little ones; for I tell you that in heaven their angels always behold the face of my Father who is in heaven. What do you think? If a man has a hundred sheep, and one of them has gone astray, does he not leave the 99 on the mountains and go in search of the one that went astray? And if he finds it, truly, I say to you, he rejoices over it more than over the 99 that never went astray. So it is not the will of my father who is in heaven that one of these little ones should perish." I don't need to read all of it, your Honour. That was - that's up to the relevant - - -
That's the passage you were reading? ─ Yes. The rest of it is not relevant,
As indicated above, L was born (in the R Hospital) in March 2005.
Between January and April 2005, the father was imprisoned "owing to driving offence convictions".[11]
[11] See paragraph 2 of the husband's affidavit sworn 7 October 2005
At all relevant times until December 2005, the parties (and Mr L and the children) were living in northern Tasmania. Shortly after Christmas 2005, and following what was clearly a lengthy period of conflict between the parties, the mother “fled from Tasmania to escape the cycle of violence, harassment and abuse at the hands of (the father)”[12]. The mother, I and L travelled to Victoria. Mr L joined them in March 2006.[13] They have lived in Victoria since that time.
[12] See mother’s affidavit sworn 25 January 2007, paragraph 155
[13] See mother’s affidavit sworn 6 September 2006, paragraph 5
The manner in which the mother removed I from Tasmania to Victoria does her little credit. I shall say more about that subject later in these Reasons. Suffice it to say at this stage, however, that there were extant proceedings (relating to the father’s contact with I) before this Court in L at the time. After the mother failed to appear at hearings in February and March 2006, and after the granting of a location order directed to Centrelink for the release of the mother’s address, the mother was eventually (on 13 July 2006) ordered to return I to Tasmania. The actual terms of the order made on 13 July 2006 are as follows:
The mother … is to return the child … to reside on the north-west coast of Tasmania within 28 days of today and following that return she is restrained from removing the child from Tasmania without first obtaining the written consent of the father or an order of a court of competent jurisdiction.
The mother did not comply with the order to return I to Tasmania (which I shall call “the Return Order”) within the 28 day period. Shortly afterwards, her solicitors ceased to act for her. In the following month certain media articles were published dealing with aspects of the case from the mother’s point of view.
On 17 August 2006, the mother filed an application seeking a stay of the Return Order. She also sought an order that the father have no contact with I.
On 13 September 2006, the father filed a contravention application, asserting that the mother had failed to comply with the Return Order within the relevant 28 day period, and that she had (without reasonable excuse) failed to make I available for contact over an extended period of time.
On 4 October 2006, Federal Magistrate Roberts made orders to the following effect:
a)A previous order (made on 7 March 2006) to the effect that the father have supervised contact with I at a contact centre in D each alternate Friday (or otherwise as the contact centre might consider appropriate) was discharged.
b)The Return Order was suspended until further order.
c)I was to have contact with the father at a contact centre on at least 4 occasions during the period from 20 October 2006 to 27 October 2006, and on a further 4 occasions during the period 18 November 2006 to 24 November 2006.
d)The mother was to pay I’s return airfares from Victoria to Tasmania for the purpose of the contact which had been ordered.
e)The father was restrained by injunction from “consuming alcohol to excess or any illicit substances” for a period of 12 hours prior to or during any contact period.
f)The father’s contravention application filed 13 September 2006 was adjourned generally.
g)Neither party was permitted to have I assessed by a psychologist, psychiatrist or other medical or mental health worker for the purposes of these proceedings without the leave of the Court.
h)The proceedings were otherwise adjourned to 14 December 2006.
On 14 December 2006, Federal Magistrate Roberts made orders to the following effect:
a)The matter was given a trial date – being 30 January 2007.
b)Until further order, the father was to have contact with I at a contact centre on at least 4 occasions during January 2007.
c)The mother was required to pay I’s travel costs from Victoria to Tasmania for the purposes of the contact.
d)The father was to pay any costs imposed by the contact centre.
The trial did not proceed on 30 January 2007. Instead, and following preliminary argument regarding admissibility of certain material, the mother’s Counsel (Mr Fitzgerald) submitted that Federal Magistrate Roberts should disqualify himself on the ground of apprehended bias. That application was successful.
In his Reasons dealing with the disqualification issue[14], his Honour said:
… (It) is clear that the mother did not comply with an order that I made in March last year (2006) to return the child to Tasmania. It is also clear that the media – the print media at least – have been involved.
… I cannot help but come to (the conclusion) that the reports in the Press were biased. I say that because it is my view that:
· firstly, they did not give a balanced report of the proceedings;
· secondly, they have tended to give only one side of the story (which relates also to the balance); and
· thirdly, they tended to sensationalise certain aspects of the case.[15]
[14] See Mills & Watson [2007] FMCAfam 40
[15] See paragraphs 15 & 16
His Honour continued:
… (The) reporting of this matter in the Press was biased, sensational and inaccurate. No other purpose could have been sought by the mother than to influence the course of this matter before the Court. There was no appeal made by the mother and the reports make clear reference to a decision made by me back in March last year (2006) based on evidence before me at that time.
While I acknowledge the concession by Mr Fitzgerald that I am not biased and that I could in fact put those matters aside, the question is whether a fair-minded lay person would think that I could simply put all these matters aside and not be affected by it in my reasoning process …
When I consider the matter carefully – and I have given it some very careful thought – I conclude that a fair-minded person would be likely to have concerns that I might not be able to bring a completely impartial mind to the matter. In my view, if that seed of doubt is there, I must disqualify myself.
It is my very clear view that the irresponsible and sensational reporting of this matter in the media has caused this outcome …
As a result of Federal Magistrate Roberts’ decision to disqualify himself, the proceedings were eventually listed before me. After the making of various procedural orders, it was listed for trial (in L) on 25 June 2007, with an estimated hearing time of 3 days. The trial commenced on that day and was concluded within the allocated time, although both the father and the mother were required to file their closing submissions in writing.
I became aware of the Full Court’s decision in Sampson & Hartnett (No 10) [2007] FamCA 1365 in early December 2007. Having regard to the Full Court’s discussion of the question of whether a court exercising jurisdiction under the Family Law Act 1975 (“FLA”) has power to make a mandatory injunction requiring a party to relocate (in order to promote the best interests of a child), I arranged for a copy of the decision to be provided to the solicitors for all parties. The matter was then mentioned (by telephone) on 19 December 2007, at which time I made the following orders:
a)All parties do file and serve any further submissions that they may be minded to make by 4.00 p.m. on 14 January 2008.
b)All parties do file and serve any submissions in reply by 4.00 p.m. on 18 January 2008.
I have received further submissions from the parties in accordance with the Orders of 19 December 2007.
The father’s proposal
In general terms, the father seeks orders to the following effect:
a)The parties have equal shared parental responsibility for I.
b)I is to live with the mother.
c)The father is to have the following contact with I:
i)At least once per week (for a minimum of 2 hours – such contact to be supervised).
ii)Telephone contact each Wednesday at 7.00 p.m., with the father to initiate such calls and the mother to make her telephone and I available to take the calls.
iii)By letter, email and package on a reasonable basis (with the mother to ensure that I receives whatever is sent by the father, and encourages I to respond).
iv)For undefined periods (to be agreed between the parties) on I’s birthday, at Christmas and on Father’s Day.
d)The mother relocate I to reside in northern Tasmania, and not thereafter remove her from Tasmania without the express written consent of the father or an order of a court of competent jurisdiction.
e)The father’s contact be subject to an injunction restraining him from using illicit drugs for a period of 12 hours prior to the commencement of contact, and during all contact periods.
f)The parties be restrained by injunction from denigrating each other to or in the presence of I.
Clearly, the seminal dispute in this case relates to the question of whether the mother can, or should, be ordered to “relocate I to reside in northern Tasmania”. If I does not live in relatively close proximity to the father’s home, then his proposed contact arrangements would be unworkable.
The mother’s proposal
The mother’s proposals are set out on pages 1-7 of CSM. They are detailed, and expressed as alternatives.
In general terms, the mother’s primary proposal includes orders to the following effect:
a)The mother have sole parental responsibility for I.
b)I is to live with the mother in Victoria.
c)The father is to have the following contact with I in Tasmania:
i)For 2 consecutive days on every eighth weekend during the school term.
ii)When weekends fall in school holidays, for up to 4 consecutive days.
iii)The contact referred to in i) and ii) above is to be supervised at a contact centre in either L or D, and is to be for a period of 2 hours on each occasion.
iv)The mother is to pay her own and I’s travel and other costs associated with the contact – save for any fees associated with the use of the contact service (which fees are to be paid by the parties in equal shares).
d)The father is to have the following contact with I in Victoria:
i)On every eighth weekend for 2 consecutive days or (during school holidays) for up to 4 consecutive days – to be coordinated on the basis that this contact occurs 4 weeks after the father exercises contact in Tasmania.
ii)The contact referred to in i) above is to occur on a supervised basis at B Contact Service, and each contact period is to occupy 2 hours.
iii)The father is to pay his travel and other costs of and incidental to the contact in Victoria – save for the fees associated with the use of the contact service, which fees are to be paid by the parties in equal shares.
e)The father is to have such further or other contact as may be agreed from time to time in consultation with the coordinator of the relevant contact services in L, D of B.
f)The father is to have further contact with I as follows:
i)Subject to various conditions, by sending letters, cards, gifts and photographs to I to a post office box to be advised by the mother.
ii)The mother is to facilitate I sending a package to the father not less than once each calendar month.
iii)The father is to have telephone contact with I each Wednesday at 7.00 p.m. (which telephone contact is to be subject to certain conditions).
g)The father be restrained by injunction from forwarding to I (or to the mother) any material “containing discontent”.
h)The father’s face to face contact with I (at the nominated contact centre in either Tasmania or Victoria) is to be subject to the following conditions:
i)The father is to comply with any treatment or medication regime prescribed by his mental health practitioner from time to time.
ii)The father’s mental health practitioner is to be at liberty to liaise with the coordinator of the relevant contact service (to keep the contact service informed about the father’s overall mental state).
iii)If the father fails to comply with all the reasonable directions, treatment and medication regimes prescribed by his mental health practitioner, then the practitioner may advise the contact service of that failure.
iv)If the contact service becomes aware of the father failing to comply with his treatment and/or medication regime, or if it is concerned that the father may not have complied, then the contact centre is to be at liberty to terminate relevant contact sessions (and the orders providing for face to face contact between I and the father are to be suspended “until further notice or order of the Court”).
In the alternative to the face to face contact arrangements described in the preceding paragraph, the mother proposes that there be no specific contact orders. Instead, she will:
a)ensure that any gifts “and the like” are passed on to I;
b)encourage I to contact the father from time to time; and
c)“promote the father in a positive image and ensure any heritage link is maintained”, including encouraging I to refer to him as “father” (in contradistinction to the mother’s partner, Mr L, who is to be referred to as “Mr L”).
The mother’s least preferred alternative recognises the possibility of the Court ordering her to return I to Tasmania. In such an event, the mother’s proposes orders to the following effect:
a)The father is to pay to the mother (within 28 days) the equivalent of 6 months rental on the mother’s current rental property.
b)The father is to pay to the mother (within 14 days) half of the costs associated with I’s relocation to Tasmania (including furniture removal costs).
c)Any contact between the father and I is to occur at the L Contact Centre.
d)The father is to comply with various specified conditions.
e)Various injunctions are to be put in place for the personal protection of the mother and I, including what is colloquially referred to as a “non-molestation order”.
f)In broad terms, if the father fails to comply with the conditions imposed on him, or breaches the non-molestation order, then the mother is to be at liberty to take I back to Victoria to live.
g)There is to be an automatic review of the contact arrangements after a period of 9 months (and the proceedings are to be adjourned for that purpose).
The general thrust of the orders sought by the mother in the event that the Court is minded to order that I be returned to Tasmania is to ensure that the father is kept on a very short leash (as it were). If he does not meet the conditions imposed on him, then the mother is to be at liberty to take I to live in Victoria.
I reiterate that the orders sought by the mother are more detailed than the summary that I have provided in the preceding paragraphs.
The Independent Children’s Lawyer’s proposals
During his closing address, Mr Walker (for the ICL) supported the making of orders which would have the effect of ensuring that I returns to Tasmania to live. He recognised that such orders would involve the mother (and Mr L) having to return to Tasmania to live.
Among other things, Mr Walker emphasised the need for I to re-establish her relationship with her father. He described the current relationship as being “fractured and tenuous”.[16]
[16] See transcript page 268
Overall, Mr Walker submitted that “one last effort” should be made to promote a meaningful relationship between I and her father.
Mr Walker also submitted that there should be “…a monitoring and a review of (the) situation from time to time” and that there should be restraints on “…denigration, violence and abuse, use of illicit substances (and) removal from Tasmania”. He also submitted that “…contact needs to be conditional on (the father) taking his medication”. He argued that:
a)the father should be directed to attend a regular psychiatric review;
b)the parties should be directed to attend an appropriate counselling program (such as Relationships Australia Parents in Contact); and
c)there should be an order that all counsellors and psychiatrists be authorised to provide the ICL with relevant information and reports.
Mr Walker suggested that the ICL’s appointment be extended for 12 months and that there otherwise be a general liberty to apply.
In his supplementary submissions (filed pursuant to the orders made on 19 December 2007) – which submissions I shall call SSICL – Mr Walker recognised that any order requiring the mother to return to Tasmania to live is coercive in nature and should only be made in a rare case. Nevertheless, Mr Walker submitted that the Court has power to order that I be returned to live in Tasmania and that the parties’ competing applications should, in reality, be treated as an application on the part of the mother for orders designed to enable her to change I’s principal place of residence from Tasmania to Victoria.
The ICL’s proposal is summarised in the following paragraphs from SSICL:
At trial I submitted that the child should return and the attempt be continued to re-establish her relationship with the father. I am still of the view… that, on balance, the best interests of the child are met by her residing in Tasmania and re-establishing a relationship with her father. But that is not by any means a dogmatic assertion. It involves uncertainty and some disruption to the lives of the mother and her partner.
What seems certain is that the child living in Victoria spells the end of any relationship with her father… In my submission, to make an order which in effect spells the end of a parental relationship is a rare event and should only be done in rare and serious circumstances.
The Law
Applications concerning children (or, more accurately, applications for parenting orders) are dealt with in Part VII of the FLA. Much of Part VII reflects comprehensive amendments to the pre-existing law, which amendments came into effect on 1 July 2006.
The Full Court carefully analysed the structure and effect of a significant portion of Part VII in Goode (2006) FLC 93-286. It began by identifying the types of orders that fall within the category of "parenting orders", and by referring to section 64B (which includes, among other things, a list of the matters with which a parenting order may deal). For example, orders allocating parental responsibility for a child, specifying the person with whom a child is to live or defining the time a child is to spend (or the communication a child is to have) with a person, are all parenting orders.
Parenting orders dealing with the allocation of parental responsibility for a child can also deal with "the allocation of responsibility for making decisions about major long-term issues in relation to the child”[17]. Such issues include (but are not limited to) important questions regarding a child's education, religious and cultural upbringing and health. A proposed change to a child's name, or proposed changes to a child's living arrangements which would make it significantly more difficult for the child to spend time with one of his or her parents, are also regarded as major long-term issues. But a parent's decision to form a relationship with a new partner is not, of itself, a major long-term issue in relation to a child ─ although such a decision could involve a major long-term issue if the new relationship requires the parent to move to another place (thereby making it more difficult for the child to spend time with the other parent).[18]
[17] See section 64B(3)
[18] See the definition of "major long-term issues" in section 4(1)
If a parenting order provides that parents (or others) are to share parental responsibility for a child, and if the exercise of that responsibility involves the making of a decision about a major long-term issue regarding a child, then the relevant decision must be made jointly. Further, an order for shared parental responsibility requires those in whose favour the order has been made to consult with each other in relation to any relevant major long-term issue, and to make a genuine effort to come to a joint decision.[19] Such consultation is not required in relation to issues that are not major long-term issues, and a parent with whom a child is spending time will not normally need to discuss minor matters (such as what a child eats or wears) with the other parent.[20]
[19] See section 65DAC; see also Pender & Haywood [2007] FamCA 1526, at paragraph 56
[20] See section 65DAE
As has long been the case, the child’s best interests remain the paramount consideration in the making of parenting orders. That principle is set out in section 60CA:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The objects of Part VII, and the principles underlying it, are set out in section 60B. They are important.
The objects of Part VII are:[21]
[21] See section 60B(1)
… to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of the children.
The principles underlying these objects are:[22]
[22] See section 60B(2)
… that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Aboriginal or Torres Strait Islander children not only have a right to enjoy their culture, but they also have the right to:
a)“maintain a connection” with and “develop a positive appreciation” of it; and
b)be provided with “the support, opportunity and encouragement necessary to explore the full extent of that culture” (consistent with the child's age and developmental level, and the child's views).[23]
[23] See section 60B(3)
Given that all the expressed objects of Part VII are directed towards ensuring that a child’s best interests are met, and given that the court must always regard the child's best interests as the paramount consideration in deciding whether to make a particular parenting order, the question of how a court determines what is or may be in a child's best interests is crucial. The subject is dealt with in section 60CC, which directs the court to consider a relatively lengthy list of factors before determining what is in a child's best interests.[24] The list is divided into two parts, the first comprising "primary considerations", and the second comprising "additional considerations".
[24] If the court is considering whether to make an order with the consent of all parties, it is not required to have regard to all or any of the listed factors (although it may do so if it wishes) ─ see section 60CC(5)
The primary considerations are set out in section 60CC(2). They are:
a)the benefit to the child of having a meaningful relationship with both of the his or her 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.
The additional considerations are set out in section 60CC(3). They include:[25]
[25] This list is not intended to be comprehensive. It is simply a summary of the factors in section 60CC(3). The actual factors set out in section 60CC(3) ─ or, more accurately, those of them that are relevant ─ will be considered later in these Reasons.
a)any views expressed by the child, and any factors that the court thinks are relevant in determining the weight that should be given to those views;
b)the nature of the child’s relationship with each of his or her parents and other relevant people (including grandparents and other relatives);
c)the willingness and ability of each parent to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
d)the likely effect of any changes in the child's circumstances (including as a result of any separation from a parent, sibling or grandparent with whom the child may have been living);
e)the practical difficulty and expense of a child spending time with and communicating with a parent (and the effect of such difficulty and expense on the child's right to maintain personal relations and direct contact with both parents on a regular basis);
f)the capacity of each of the parents, and of any other relevant person, to provide for the child's needs (including his or her emotional and intellectual needs);
g)the child's maturity, sex, lifestyle and background (including the child's culture and traditions);
h)in the case of an Aboriginal or Torres Strait Islander child, the child’s right to enjoy his or her indigenous culture;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents;
j)any relevant family violence, or family violence order;
k)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"; and
l)any other fact or circumstance that the court considers relevant.
Section 60CC(4) elaborates upon two of the factors referred to above ─ namely, the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent and the attitude to the child (and to the responsibilities of parenthood) demonstrated by each of the parents. It requires the court to focus upon each party’s "track record" as a parent. Particular regard must be had to events that have happened (and circumstances that have existed) since the parties separated.[26] One of the matters that the court is obliged to consider is the extent to which each parent has fulfilled, or failed to fulfil, his or her obligation to maintain the child.[27]
[26] See section 60CC(4A)
[27] See section 60CC(4)(c)
The Full Court in Goode summarised the above process as follows:[28]
… in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration … and the framework in which best interests are to be determined comprises the factors in sections 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.
[28] See paragraph 10
Notwithstanding the Full Court's reference to a "framework", and to the context in which the factors comprising that framework are to be considered, a trial judge who is obliged to determine competing applications for parenting orders does not start with a blank sheet of paper.[29] Relevantly, certain conditional presumptions (relating to parental responsibility) may apply. Generally speaking, however, and subject to those presumptions, the court may make such parenting order as it thinks proper.[30]
[29] See, in a different context, McLeay (1996) FLC 92-667 at 82,901
[30] See section 65D(1)
When making a parenting order, the court must apply a presumption that it is in the child's best interests for his or her parents to have equal shared parental responsibility.[31] Such a presumption, although clearly important, says nothing about the amount of time that the child should spend with each parent.
[31] See section 61DA
The presumption relating to equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent (or somebody living with a parent) has abused the child (or another relevant child), or has engaged in family violence.[32] In interim proceedings, the application of the presumption is less strict: it does not apply if the court considers that "it would not be appropriate in the circumstances" for it to be applied.[33]
[32] See section 61DA(2) and the definition of "family violence" in section 4(1)
[33] See section 61DA(3); it is important to note, however, that the Full Court in Goode (at paragraph 78) held that the discretion in section 61DA(3) should not be exercised "in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult."
In circumstances where the presumption relating to equal shared parental responsibility would otherwise apply, it may be rebutted "by evidence that satisfies the court that that it would not be in the best interests of the child" for the parents to have equal shared parental responsibility.[34]
[34] See section 61DA(4)
Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise[35]), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable[36] and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect.[37] If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time"[38] with each parent would be both reasonably practicable[39] and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.[40]
[35] See, for example, Goode at paragraphs 46 and 47, and Pender & Haywood [2007] FamCA 1526 at paragraph 44
[36] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[37] See section 65DAA(1)
[38] "Substantial and significant time" is defined in section 65DAA(3)
[39] How a court determines "reasonable practicality" is the subject of section 65DAA(5)
[40] See section 65DAA(2); see also Goode at paragraphs 43 and 44
The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said[41]:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
[41] See paragraph 62
The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".[42]
[42] See paragraph 63
Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.[43]
[43]The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[44] or
[44] But see subparagraph (k) below
ii)impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent – unless (in turn) substantial and significant time would also be either:
i)contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC;[45] or
ii)impracticable.
i)Bear in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).[46]
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).[47]
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect ─ although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration",[48] and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”.[49]
[45] But see subparagraph (k) below
[46] See Taylor & Barker at paragraph 74
[47] See Goode at paragraph 65.8
[48] See Goode at paragraph 65.11
[49] See Goode at paragraph 65.9
Power of court to direct/order a parent to relocate
One of the orders sought by the father requires the mother to relocate I to reside in northern Tasmania (and then not remove her from Tasmania without the father’s consent or an appropriate order of a court of competent jurisdiction). On the first day of the trial (25 June 2007), Mr Fitzgerald argued that the Court does not have power to make such an order. He submitted that the order amounts to “an enforced relocation from Victoria to Tasmania”, that it is not a “parenting order” and that it is an “impermissible restraint on the mother’s freedom of movement”.
After hearing submissions in response from Mr McGuire (for the father) and Mr Walker (for the ICL), I ruled that the question of I’s place of residence is a parenting issue in the broadest sense. I also said that –
… if the court should determine at the end of the day that it is in the child’s best interests to have very frequent contact with the father, then the court is entitled to direct the mother to put in place arrangements that will enable that to occur.[50]
[50] See transcript, page 14
I also ruled that, although parties have the right to live wherever they choose within Australia, that right is “subject to court determinations in relation to the best interests of children.”[51]
[51] See transcript, page 14
Mr Fitzgerald revisited this subject in CSM where he argued that “… in reality, the primary purpose, effect and import is, by curial pronouncement to return the mother (as opposed to the child) to Tasmania, because … unlike a recovery order, where the child is returned to a person … the particular order sought cannot be given effect to if the mother refused to comply as it is a nonsense to simply return the child to a geographical location, i.e. the state of Tasmania”.[52] Mr Fitzgerald also reiterated his earlier argument to the effect that the order proposed by the father does not fall within the definition of a “parenting order” in section 64B. Finally, Mr Fitzgerald submitted that the Court must treat the proposed order as “… part of the broad proposal of the father’s application for appropriate ‘supervised time’ orders”, and that “… given the father is not seeking (that) the child primarily live with him nor is there to be a sharing of the time on an equal (or even significant) basis, the father’s proposal must be determined by reference to the factual basis (that) the child and mother are residing in Victoria”.[53]
[52] See CSM, page 9
[53] See CSM, page 9
Mr McGuire did not deal with the Court’s power to make the relevant order (which I shall call “the Relocation Order”) in CSF. Similarly,
Mr Walker did not deal with the subject in his closing address, which was presented on the final day of the trial (27 June 2007).
As indicated above, having become aware of the decision in Sampson & Hartnett (No 10) in early December, I gave all parties an opportunity to make such further submissions as they saw fit regarding the court’s power to make the Relocation Order. Mr Fitzgerald, Mr McGuire and Mr Walker all provided supplementary written submissions, and
Mr Fitzgerald provided further written submissions in reply to those of the other parties. Before dealing with the various submissions, however, it is appropriate that I refer to Sampson & Hartnett (No 10).
Sampson & Hartnett (No 10) [2007] FamCA 1365
Ms Sampson was originally from the Geelong area. She had close family there. Mr Hartnett (and his immediate family) lived in Sydney.
Ms Sampson moved to Sydney 2 or 3 years before she met
Mr Hartnett. They began living together (in Sydney) in mid 2000, and married in mid 2001. Their first child was born in Sydney in April 2003.
Ms Sampson and Mr Hartnett separated in August 2004 – at which time Ms Sampson was pregnant with their second child. After separation, Ms Sampson moved to Geelong with the parties’ first child. Their second child was born a few months later.
Mr Hartnett had a son from a previous marriage, the care of whom he shared with his former wife. At or around the time that Ms Sampson and Mr Hartnett separated (August 2004), Mr Hartnett’s son started to live with him on a full time basis (although he continued to see his mother at regular intervals).
When the matter came to trial (in Sydney), Ms Sampson was living in rented premises in Geelong with the two children. Mr Hartnett was still living in Sydney. The trial took place in May and October 2006. Moore J delivered Reasons for Judgment in February 2007. Her Honour found that “the period since separation (had) been fraught with conflict and continual litigation either related to the children or to property and financial matters”.[54]
[54] See Sampson & Hartnett [2007] FamCA 202, at paragraph 18
One of the orders made by Moore J was as follows:
The children’s residence is to be established in Sydney no later than 1 May 2007.[55]
[55] Order 17
As the majority of Full Court (Bryant CJ and Warnick J) observed, the orders made by Moore J “… did not actually mandate the relocation of the mother herself to Sydney … (but they) would be unworkable if the mother did not relocate”.[56]
[56] See Sampson & Hartnett (No 10), at paragraph 4
One of the issues raised in the appeal was the court’s power to directly or effectively order a parent to relocate.
The majority began their discussion of the relevant principles by observing that “… there is little doubt that the Family Court has power to ‘effectively’ order a parent not to relocate by ordering that parent, who wishes to act as primary parent, not to change the location of the child.”[57] Put another way, the Court has power “… to make orders effectively, though indirectly, restraining the movement of a parent.”[58]
[57] See paragraph 19
[58] See paragraph 25
After discussing a number of authorities[59], the majority said:
In our view, there is nothing in the authorities that establishes that there is no power within the FLA to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power. (Emphasis added)
[59] Including B & B: Family Law Reform Act1995 (1997) FLC 92-755, H v E (1999) FLC 92-845, AMS & AIF (1999) FLC 92-852, A & A (Relocation Approach) (2000) FLC 93-035 and U & U (2002) FLC 93-112
The majority then turned their attention to the current provisions of the FLA. Their Honours found as follows:
a)Notwithstanding the breadth of the language contained in section 64B, an order requiring a parent to live in a particular place is not a “parenting order” as defined in that section.[60]
b)Section 68B (dealing with injunctions in relation to children) is “unlikely to be a source of power to directly restrain the freedom of movement of a parent.”[61] (Emphasis added)
c)Sections such as ss 65DAA, 65D and 60B “… are replete with references to parental obligations and duties. … These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents ‘fulfil their duties, and meet their responsibilities …’ . It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.”[62] (Emphasis added.)
d)Subject to the rules relating to procedural fairness, a court is not bound by the parties’ proposals relating to arrangements for the care of children. Instead of simply choosing between situations already in existence, the court can use a “coercive” order to create a situation which is more likely to be in a child’s best interests.[63]
[60] See paragraph 35
[61] See paragraph 38
[62] See paragraphs 45 & 46
[63] See paragraph 47
The core of the majority’s decision appears in the following three paragraphs:
57. If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic. The person being ordered not to move at least has chosen that location ay some stage and for reasons which one assumes at least once existed. This contrasts with a person who may not wish to go somewhere and therefore the order is much more of an imposition on that person’s freedom.
58. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59. The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent…? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare (in certain situations). On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so. (Emphasis added.)
Having earlier recorded that Moore J had not made findings to the effect that –
a)if the children lived in Sydney, then the mother would more probably than not move there; and/or
b)if the mother chose not to relocate, then the children would be best living with the father,
the majority turned to consider whether the evidence supported her Honour’s decision to, in effect, require the mother to relocate to Sydney. In doing so, the majority said:
74. …A person wishing to relocate will frequently be living in a settled environment awaiting the imprimatur of the court before moving. In other circumstances, where a move has already been made, or is planned, settled arrangements in the new location will be in place or arranged. Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other party’s capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
76. This was a very difficult case…
77. We do not say that the true “effect” of her Honour’s orders was a wrong result. However, it was an extreme one and we think required an unusually stringent inquiry.
78. Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.
The majority found that Moore J failed to adequately address the practicality of Ms Sampson relocating to and remaining in Sydney. For example, there was no, or no adequate, consideration of such factors as:
a)Ms Sampson’s capacity to work (as “measured against” her care of the children);
b)the costs of childcare;
c)the availability of paid employment for Ms Sampson; and
d)Mr Hartnett’s capacity to meet any need that Ms Sampson may have for support.
The majority concluded that the appeal should be allowed, and that the matter should be remitted to Moore J, to enable her Honour to consider the various matters contained in the Judgment.
The other member of the Full Court, Kay J, supported certain “sentiments” expressed in selected decisions of courts in the United States of America and Australia.[64] Those decisions recognise the difficulties associated with ordering a parent to live in a place which is not of his or her choosing. They also recognise that parents often have very valid reasons for wishing to relocate, and that the long term best interests of children are unlikely to be met by compelling both parents to remain in a particular location so that children can continue to have the opportunity to spend time with each of them.
[64] See paragraphs 129 & 131
After observing that the Full Court had “… not been directly asked to determine the issue of the power of the Court to make an order requiring a parent to move from a well established place of residence to a different location so as to place the children in closer proximity to the other parent”,[65] Kay J said:
I have severe doubts that there is power to make such an order or, if the power exists, it would not be exercised other than in the most exceptional circumstances.
[65] See paragraph 121
In Pender & Haywood [2007] FamCA 1526, Boland J summarised the effect of Sampson & Hartnett (No 10) as follows.[66]
The Full Court held that the trial judge fell into appealable error by not considering the practicality of the orders, including the financial capacity of the mother to move to Sydney.
The majority held that the Court did have power, which power could, in an extreme case, be exercised to compel a parent to move in order to facilitate a shared parenting regime, but found in the particular case the orders “were in effect at the extreme end of the discretionary range” and that “strong and well defined support for them was necessary”.
[66] See paragraphs 87 & 88
I turn now to the parties’ supplementary submissions, dealing with the effect of Sampson & Hartnett (No 10).
Mother’s supplementary submissions (“SSM”)
Mr Fitzgerald’s submissions raised three issues:
a)Does the Court have power to revisit the ruling made on 25 June 2007 (the first day of the trial) to the effect that it has power to direct the mother to put in place arrangements that will enable I to be returned to Tasmania?
b)If the Court is not prevented from revisiting its earlier decision, then does the Court have power “to effectively require the mother to relocate”?
c)If the Court does have power to “effectively require the mother to relocate”, then is it appropriate to make such an order?
Can the Court revisit its earlier ruling?
The ruling made on 25 June 2007 was in the context of an application by Mr Fitzgerald to strike out paragraph 4 of the Orders sought in the father’s amended application filed 6 December 2006. That paragraph reads:
The mother be and is hereby ordered to return the child to … Tasmania within 14 days of the date of the making of these Orders.
Paragraph 4 of the Orders sought is clearly intended to be read with paragraph 5, which is as follows:
The mother be and is hereby restrained from removing the child from … Tasmania without an order of the Federal Magistrates Court of Australia.
In response to Mr Fitzgerald’s application, and after having heard submissions from Mr McGuire and Mr Walker, I ruled that “there is no need to strike out paragraph 4 just yet. We will see where the case leads us”.[67] I also said that:
…the position is that, if the Court should determine at the end of the day that it is in the child’s best interests to have very frequent contact with the father, then the Court is entitled to direct the mother to put in place arrangements that will enable that to occur. Whether or not that would require her to return to live in the State of Tasmania, I am not sure, and I will have to determine that on the evidence before me. But it seems to me that the position (that should prevail is the one that) the High Court has identified, being that the parties do indeed have the right to live wherever they want (this is a free country), but that right is subject to court determinations in relation to the best interests of children.
[67] See transcript page 14
The ruling made on 25 June 2007 was clearly interlocutory in nature. In other words, it did not finally determine the rights of the parties in relation to the proceedings. The substantive issues remained to be determined. A judicial officer is only functus officio where he or she has discharged all of his or her judicial functions in a case, including giving a final adjudication.[68] The effect of the Law in this regard is reflected in Rule 16.05 of the Federal Magistrates Court Rules 2001, the relevant parts of which are as follows:
[68] See the discussion in Sangara & Hamwood (2007) FamCA 1353 at paragraphs 32-45
1. The Court may vary or set aside its judgment or order before it has been entered.
2. The Court may vary or set aside its judgment or order after it has been entered if: ... (c) if the order is interlocutory …
3. This rule does not affect the power of the Court to vary or terminate the operation of an order by a further order.
Given that it was interlocutory in nature and that I cannot be regarded as being functus officio in any relevant sense, and having regard to the provisions of Rule 16.05, there is clearly no impediment to a reconsideration of the ruling made on 25 June 2007 – which was, in any event, a preliminary ruling.
I will add that the Federal Magistrates Court, as a Court of limited jurisdiction, must always satisfy itself – before making orders (including interlocutory orders) in proceedings – that it has jurisdiction to make those orders and, of course, that it is appropriate to exercise that jurisdiction by making the relevant orders on the basis of the facts then before it. Further, the Court always has jurisdiction to “…entertain proceedings for the purpose of and up to the point of deciding whether it has jurisdiction to make the orders sought in the proceedings”.[69]
[69] See Yunghanns (1999) 24 Fam LR 400 at paragraph 109
I conclude that there is no reason why I cannot revisit the (interlocutory) ruling made on 25 June 2007. Leaving aside the matters discussed above, there has been no procedural or other unfairness to any party as a result of the orders made on 19 December 2007. I took the opportunity to draw the Full Court’s decision in Sampson & Hartnett (No 10) to the parties’ attention precisely because it deals with the question of a court’s power to make the Relocation Order. At the end of the day, neither the father nor the ICL has suggested that the interlocutory ruling on 25 June 2007 cannot be revisited.
Does the Court have power to order the mother (directly or indirectly) to return to Tasmania?
I have already dealt (relatively briefly) with the fact that there were extant proceedings (relating to the father’s contact with I) before this Court in Launceston when the mother took I to Victoria in late December 2005. It was only after the mother failed to appear at hearings in February and March 2006, and after the granting of a Location Order directed to Centrelink for the release of the mother’s address, that the mother was ordered (on 13 July 2006) to return I to Tasmania. The mother failed to comply with the Return Order, which was eventually suspended on 4 October 2006 – pending the matter proceeding to trial. For reasons already explained, the trial did not proceed on the date originally allocated to it (being 30 January 2007). It began before me on 25 June 2007.
It follows that the question of the Court’s power to make orders designed to ensure that I is returned to live in Tasmania cannot be considered in a vacuum (as it were). The ICL refers to the issue as a “chicken & egg situation”[70]. In other words, the case can be regarded as an application on the part of the mother to remove I from Tasmania to live with her in Victoria (on the one hand), or it can be treated as an application on the part of the father to compel I’s return from Victoria to Tasmania (on the other).
[70] SSICL, page 3
Although proceedings were on foot (and had been on foot for a long time) when the mother took I to Victoria in late December 2005, there were no orders for contact in force at that time. It is not in dispute that the father had not seen I since approximately April 2004. Procedural and other orders were made at various times after the father commenced proceedings in this Court on 8 June 2004 – seeking interim and final orders for contact with I. It was not until 17 November 2005, however, that Federal Magistrate Roberts made an order that the father have contact with I.
The orders of 17 November 2005 state that the father is to have contact with I on one occasion prior to 12 December 2005, at a contact centre, and at a time to be arranged by the ICL. The orders provide for the contact to be supervised by the contract centre staff. The father was also restrained by injunction from “using any illicit substances for a period of 24 hours prior to or during” the contact, and the matter was otherwise adjourned for mention on 12 December 2005.
The father had supervised contact with I (pursuant to the orders of
17 November 2005) on 2 December 2005. The visit is described in a report from the D Contact Service contained in Exhibit ICL1. It occupied two hours, and although I initially “required reassurance and support in order to proceed with the visit”, she later “settled and appeared to become more relaxed in (the father’s) presence”.[71] I was described as being comfortable with the father (at times, at least) during the visit, and (also, at times) willing to engage in conversation and play with him. I hugged the father, and waved to him when he left the centre.[72]
[71] See Exhibit ICL1
[72] See Exhibit ICL1
The 17 November 2005 orders were made by consent. The mother was unrepresented, and appeared on her own behalf on that occasion.
When the matter came before Federal Magistrate Roberts on 12 December 2005, it was adjourned to 6 February 2006. On 20 December 2005, the father filed an amended application seeking interim contact. That application was listed for 6 February 2006.
Overall, it would appear that the Tasmanian proposal better meets the requirements of this factor than does the Victorian proposal. Clearly, more frequent contact visits could be arranged if I were living in Tasmania that if she continues to live in Victoria. Still, I am not persuaded that the frequency of contact visits, alone, should be considered of primary significance in choosing between the two proposals. The fact of the matter is that the father cannot be relied upon to make himself available for all contact visits in Tasmania, irrespective of their frequency. Further, I's capacity to maintain a memory of her relationship with her father should improve as she grows older, and particularly when regard is had to the change in the mother's attitude towards fostering that relationship. I have already recorded that I accept the mother's assurance that she will no longer attempt to undermine the relationship and that she will actively and constructively promote it. The change in the mother's attitude is important because Mr J's comments regarding the frequency of contact visits were reflective of his view to the effect that the mother is unlikely to be supportive of I's relationship with the father.
Facilitation and encouragement of relationship between child and parent
The father argues that the mother has historically (since May 2004) frustrated the relationship between I and the father. He argues that the mother has acted in this way out of self interest. The father refers to the mother's actions in obtaining the restraint order in May 2004, and emphasises the ongoing efforts of the mother to hinder or frustrate contact between father and child throughout the second half of 2005 ─ culminating in the mother "disappearing" with I in December 2005 (whilst proceedings were on foot in this court).
On the other hand, the father refers to the fact that the mother has now given evidence to the effect that she understands and accepts her responsibilities in relation to I's relationship with the father, and that she is willing to discharge those responsibilities. And he goes further: he argues that the court "can be confident in that the mother has made appropriate admissions and concessions in respect of her previous behaviour".[162]
[162] See CSF at page 10
Similarly, Mr Walker submitted that the evidence before the court is that, notwithstanding their previous actions, the mother and Mr L are not likely to sabotage any arrangement that the court may be minded to make.[163]
[163] See transcript page 271 and SSICL (19 December 2007)
As discussed elsewhere in these Reasons, I am of the view that the mother is both willing and able to facilitate and encourage a close and continuing relationship between I and the father. It is true that she has not acted in this way in the past, and that she can be fairly criticised for her actions in obtaining the restraint order in May 2004, and in “disappearing” with I in December 2005. Those actions profoundly damaged I's relationship with her father, and served to impede the future development of that relationship. But, at the end of the day, the real question is whether she and Mr L can be believed when they seek to assure the court that their attitude has changed. The father and the ICL suggest that they should be believed. I also accept that they should be believed. Although they were not without their shortcomings as witnesses, I was impressed by their evidence as it related to their recognition of the importance to I of having a close and continuing relationship with the father. Relevantly, I find that they will not defy court orders, even if they are discomforted by them.
The willingness and ability of the father to facilitate and encourage a close and continuing relationship between I and the mother is of no present relevance. Whichever proposal is adopted, the father will be having no more than supervised contact.
This factor does not favour either proposal.
Effect of changes in child's circumstances
Whatever happens, I will continue to live with the mother (and with
Mr L and L). She will not be separated from them.
According to Mr J, I will cope well wherever she lives, provided that she has the support of her mother. The mother said that I makes friends easily and, although it will be difficult for her, she should be able to change schools (from a school in Victoria to a school in Tasmania) without undue trauma.
On the other hand, Mr J said that a tranquil, stable home life for I should not be sacrificed simply to ensure that a contact arrangement can be facilitated. Uprooting the mother and Mr L and their children and requiring them to return to Tasmania is a complex, highly disruptive and stressful arrangement. There is no guarantee that it will succeed. As I have found, the likelihood is that the father will eventually seek to reimpose himself upon the mother's life. Further, because he is not good at keeping appointments and because he does not have his own transport, it is likely that frustrations will arise in relation to contact visits and the arrangements surrounding them. I note, in this respect, the evidence relating to the father's failure to attend for at least one contact period (because he forgot, and he did not keep a diary) and his mother's evidence to the effect that he says things are going to happen and then forgets all about them (to the extent that he once came for Christmas, three days late).
Mr J said that the various requirements and conditions that would be necessary to compel the mother and Mr L to relocate back to Tasmania, to ensure their safety and to put in place workable contact arrangements would simply be "a trip wire for further court time and more disruption to the family". I have already found, of course, that the father cannot be trusted to or, alternatively, is unlikely to fully comply with orders designed to protect the mother and safeguard I's best interests. Further, he is not prepared to make the effort required on his part to deal with the attitudinal and other difficulties associated with his mental illness.
I accept that, from a purely practical point of view, the mother and
Mr L could "cope" if the mother were ordered to return to Tasmania. Whether they would be able to "cope" in a way that would not adversely impact on I's best interests, however, is another question. In my opinion, the likely result of such an order would be the destruction of the tranquil, stable home life that I recently enjoys.
Whilst the mother and Mr L may be theoretically able to relocate to Tasmania, the practicality of such a move has not been adequately explored. L requires medical treatment, and the mother said that it is likely that the family would have to live somewhere near (or relatively near) the R Hospital. Although the family is currently in receipt of government benefits, they had hoped to commence a small business near their present home in Victoria. Whether such a business could be found and successfully run in Tasmania was not explored. The Full Court in Sampson & Hartnett (No 10) emphasised that an order such as that manifested in the Tasmanian proposal is extreme and requires an unusually stringent inquiry as to the practicalities associated with the move. Strong and well defined support for such an order is essential. In my opinion, there is no such support for the Tasmanian proposal.
Mr Fitzgerald argues that the court "ought not to engage in a social experiment imposing on the child and her family significant emotional adjustments in the hope same may re-establish a meaningful relationship" between father and daughter.[164] He argues that, before adopting the Tasmanian proposal, the court should be satisfied that there is clear and cogent evidence to the effect that such an experiment will probably succeed. In essence, he argues that the Tasmanian proposal is no more than a gamble, and that it will inevitably fail. He emphasises the father's lack of insight (in the broadest sense) and the other factors to which I have referred elsewhere in these Reasons. I do not agree that the Tasmanian proposal will inevitably fail but, as I have recorded, I find that it will very likely fail.
[164] CSM at page 45
In all the circumstances, I find that this factor favours the Victorian proposal over the Tasmanian proposal.
Practical difficulties and expense associated with contact
Mr McGuire argues that the Victorian proposal is impractical for geographical and financial reasons. He submits that the mother cannot afford to travel to Tasmania as regularly as Mr J would suggest is necessary, and emphasises the evidence to the effect that, because of the father's mental illness, it is not practical to expect him to either relocate to Victoria or to travel there on a regular basis for the purpose of contact.
Mr Walker's argument is similar. He recognises, however, that the mother and Mr L are not likely to sabotage whatever contact arrangements the court may consider appropriate.
Mr Fitzgerald recognises that practical difficulties and expense arise if the Victorian proposal is adopted. Clearly, those difficulties and that expense substantially affects I’s right to have face-to-face contact with the father on a regular basis. Mr Fitzgerald argues, however, that it is unfair and unjust, and not in accordance with the objects and principles set out in s.60B, to require the mother to be solely responsible for ensuring that I has regular contact with the father. For example,
Mr Fitzgerald emphasises that both parents are obliged to fulfil their duties and meet their responsibilities concerning I's care, welfare and development, and that those duties and responsibilities must be "jointly shared".
Mr Fitzgerald points to the underlying reasons behind the mother's decision to "disappear" to Victoria ─ which reasons I have discussed above ─ and submits that, whilst the mother's "error of judgement" must be recognised, the father's role in the events culminating in the mother's decision to leave Tasmania should not be ignored. In practical terms, Mr Fitzgerald submits that the court should recognise that both parties are in receipt of government benefits and that each has a limited means to contribute to the costs associated with the father spending time with I.
Allied to the above argument is Mr Fitzgerald's submission regarding the father's general attitude to his obligations as a parent (including his obligation to make a reasonable effort to involve himself in I's life). Mr Fitzgerald argues that the father seeks "to hide behind his mental illness" in a broad sense. At the same time, he has refused to meaningfully address his inappropriate behaviour by any relevant form of behaviour modification program and it is a fair inference from the evidence before the court that he has no intention of ever doing so. I accept Mr Fitzgerald's submission in this respect. I suspect that, given his evidence regarding the frequency with which he uses cannabis and the fact that he rarely, if ever, has to purchase it, one of the reasons why the father is unwilling to make any real effort to travel to Victoria to see I is because he does not wish to be overly distant from his cannabis supply.
Mr Fitzgerald also argues that the only way that any arrangement for the father to spend time with I might operate effectively (under either the Tasmanian proposal or the Victorian proposal) is for the arrangement to be "handed to the father on a platter". If the father is required to actively participate in an arrangement (for example, by contributing to the costs associated with it), then his commitment "simply melts away". Further, Mr Fitzgerald submits that the father's attitude (as appearing from his evidence in court) is to the effect that he is not prepared to have contact with I other than on his terms, and on the basis that he is not "put out”. He adds that, unless someone "micro-manages" the father's time (for example, by getting him to the contact visits and by meeting all relevant payments), or unless the contact arrangement occurs in very close proximity to the father (to ensure that he is able to get to the contact venue with a minimum of inconvenience to him) "… then the court can have no confidence, despite his professed love for his daughter, that he will follow through with a regular commitment necessary to re-establish his relationship with his daughter". I accept Mr Fitzgerald's submissions in this respect. The father's attitude was accurately described by Ms S, who said that he does not take advice very kindly, that he says that things are going to happen and then forgets all about them, and that he is capable of financially supporting himself but prefers not to "walk on his own two feet".
Overall, this factor probably supports the Tasmanian proposal over the Victorian proposal. After all, consideration of each factor is in the light of the obligation to determine what is in I's best interests. In an ideal world, it would be best for the mother and the father to live in close proximity, so that the regular periods of supervised contact envisaged by Mr J could take place with a minimum of inconvenience and expense to both parties. But the totality of the evidence (and, in particular, the evidence relating to the father's attitude and unreliability) reveals that the court is not dealing with an ideal world. That is why, of course, the court must balance all relevant factors.
Capacity to provide for the child's needs
I have already dealt with the father's psychiatric condition, and his attitude to the responsibilities and duties of parenthood in the broadest sense. I have also dealt with his attitude to contact and his unreliability. Still, I recognise that the father seeks no more than supervised contact.
Mr McGuire makes no criticism of the mother in relation to this factor.[165] Indeed, his submission is as follows:
The mother has made appropriate concessions and admissions as to her prior behaviour and the court should now be confident that she has the capacity to encourage and facilitate the relationship between I and her father.
[165] CSF at page 11
I accept Mr McGuire's submission as set out above. Mr Walker does not argue to the contrary.
For his part, Mr Fitzgerald submits that the mother "… acknowledges that inadvertently her actions may have contributed to the estrangement (of I from the father) and indicates a willingness to attend counselling to overcome this". That argument, of course, understates the position. The mother conceded that (in the past) she has "transparently, deliberately acted to frustrate contact with the father". Still, all counsel accept that the mother has learnt her lesson and is willing to promote and encourage an appropriate relationship between I and the father.
There is no suggestion that the mother is not capable of providing for I's needs, including her emotional and intellectual needs. Nor is there any suggestion that Mr L is not capable of assisting the mother in that task.
I have already referred to the significant difficulties and stresses upon the mother (and her family) if the Tasmanian proposal were to be implemented. I have also referred to likelihood of the father eventually seeking to reimpose himself upon the mother's life. In my opinion, the Tasmanian proposal has the potential to impact directly and adversely on the mother's capacity to provide for I's needs (and, in particular, her emotional needs). At the very least, the mother would be anxious and fearful if she were to return to live in Tasmania (and, in my opinion, she would have every right to be).
In my opinion, this factor supports the Victorian proposal.
Maturity, lifestyle and background of the child and the parties
None of the parties has suggested that this is a relevant factor. In the circumstances, I do not need to give it detailed consideration. I have referred elsewhere in these reasons to the father's lifestyle – involving, as it does, regular and ongoing use of cannabis (against the advice of those who would seek to assist the father to improve his mental health), his apparent lack of respect for court orders and/or his casual attitude to authority[166] (given, for example, his history of driving offences and his acknowledged breach of the restraint order) and the fact that he does not take advice very kindly (to use his mother's words).
[166] See Doctor R’s evidence
That is not to say that the mother cannot be criticised for certain of her actions (for example, the circumstances surrounding the obtaining of the restraint order, her actions in impeding contact and her "disappearance" to Victoria). I have dealt with these matters elsewhere in these Reasons.
Attitude to of the child and to responsibilities of parenthood
I have dealt with this factor elsewhere in these Reasons, and there is no need for me to recast previous statements in a slightly different form.
Mr Fitzgerald argues (correctly) that domestic violence involves a significant failure in parenting ─ in that it involves a failure to protect the child and care for her emotionally. Further, Mr Fitzgerald argues that the father's failure to attempt to confront and deal with his psychiatric illness (in spite of the fact that it adversely impact upon his relationship with I) demonstrates that he puts his own needs or wishes ahead of his responsibilities as a parent.
Mr Fitzgerald also points to the fact that the father pays minimum child support and that he has failed to attempt to prioritise his finances to enable him to have contact with I. By way of contrast, the mother has (more recently, at least) recognised the need to promote a close relationship between I and the father, and she has been prepared to meet ─ almost exclusively ─ the costs associated with doing so.
Mr J has observed that, although the mother and Mr L recognise and are sensitive to I's psychological needs, their negative portrayal of the father in the past, and the "disappearance" from Tasmania have caused I unnecessary anxiety and distress. In this regard, Mr J has recommended that the mother undergo appropriate counselling to help her separate her own anxiety associated with contact from what should be recognised as I's best interests. All parties recognise, however, that the mother now has the capacity to encourage and facilitate I's relationship with the father.
The bottom line in relation to this factor is that the mother can be trusted to accept all the responsibilities associated with parenting I (including the responsibility to promote a close and loving relationship between I and the father), irrespective of the mother's attitude or actions in the past. That is the case whether the Tasmanian proposal or the Victorian proposal is adopted. But the fact that the mother can be trusted in this respect suggests that the Victorian proposal is far more workable than (for example) Mr J was prepared to accept.
In all the circumstances, that this factor tends to favour the Victorian proposal.
Family violence
Mr McGuire argues that the father has made appropriate admissions as to his prior history of violence associated with his mental illness. I do not agree. In my opinion, and as expressed above, the father has minimised his history of violence and intimidation towards the mother. Nor do I agree with Mr McGuire's submission to the effect that the father has addressed and continues to address his mental illness in an appropriate fashion. In my view, the father has done precious little to confront and deal with this problem.
In relation to this subject of domestic violence generally, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in s.60CC of the Family Law Act.
As I have already recorded, in Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) if also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
I completely agree with the comments made by Butler-Sloss P and Wall J in the passages cited in the previous three paragraphs.
Turning from the general to the specific, the father in the present case has so far failed or refused to take any effective steps to “correct the deficiency in (his) character”. The evidence appears to be that he is not likely to change in the foreseeable future.
The father has certainly done nothing to “demonstrate that he is a fit person to exercise unsupervised contact”. In my opinion, he has done nothing to demonstrate that he is “not going to destabilise (the mother's) family”. Instead, he seems resentful of the mother. He appears to feel victimised, but seems incapable of understanding that others are entitled to expect that he should play his role in re-establishing his relationship with I. That role is likely to require significant effort (including self-discipline) on his part.
There is no need for me to repeat other comments that I have made elsewhere in these Reasons regarding the father's behaviour and attitude. In my opinion, this factor supports the Victorian proposal.
Orders least likely to lead to the institution of further proceedings
Mr Fitzgerald argues that the Tasmanian proposal is the one that is most likely to lead to the institution of further proceedings in relation to I. I agree with him. As Mr J said, the conditions which would necessarily be imposed on the father (and the other requirements necessarily inherent within the Tasmanian proposal) comprise “trip wires” which will almost certainly lead to further litigation.
As I have found, the likelihood is that the father will eventually seek to reimpose himself upon the mother's life. Further, for reasons that I have explained, it is likely that frustrations will arise in relation to contact visits and the arrangements surrounding them. I refer again, in this respect, to the evidence relating to the father's failure to attend for at least one contact period (because he forgot, and he did not keep a diary) and his mother's evidence to the effect that he says that things are going to happen and then forgets all about them.
Clearly, this factor supports the Victorian proposal.
Conclusion as to most satisfactory proposal
In my opinion, and
a)bearing in mind that I’s best interests remain the overriding consideration;
b)taking into account of the objects and principles set out in s.60B; and
c)having regard to my discussion of the section 60CC factors above,
I conclude that the Victorian proposal is more likely to be in I's best interests than the Tasmanian proposal.
Even if I were to treat the proceedings before me as a "relocation" case, I would reach the same conclusion. In this regard, I comment as follows:
a)I's best interests remain the overriding consideration;
b)I have not required the mother to demonstrate "compelling reasons" for her relocation to Victoria;
c)I have evaluated the two broad proposals advanced by the parties;
d)I have not considered myself wholly bound by those proposals;
e)there has been no need for me to separate the notional issue of relocation from the question of with whom I is to live (because it has been conceded that I should continue to live with the mother, whether in Victoria or in Tasmania);
f)in evaluating the relevant proposals, I have done my best to weigh the evidence and submissions as to how each proposal holds advantages or disadvantages for I's best interests;
g)I have done my best to follow the necessary legislative pathway, and I have borne in mind the objects and principles set out in s.60B;
h)in the course of these Reasons, I have considered the mother's explanation for relocating to Victoria with I, and I have commented on that subject;
i)I recognise that the mother’s freedom of movement is an important consideration, but I also recognise that her right in that respect must, if necessary, give way to I's best interests; and
j)I recognise that neither party bears any relevant onus of establishing that one proposal better promotes I's best interests than does the other.
Equal shared parental responsibility
I have dealt with this subject under the heading "Concessions" above. Although no relevant presumption applies, I am obliged to consider whether I should order that the parties have equal shared parental responsibility for I. The mother opposes such an order. The father and the ICL seek it.
During the course of her evidence, however, the mother said that she is prepared to work towards discussing I's issues with the father. She also said that it would be good for I to have both parents involved in such matters, and that she would agree to the father having a role in the long-term decision-making for I.
I recognise that there has not been a positive relationship between the parties since (at least) May 2004. Indeed, the relationship has been conflictual, and significantly so. Whilst the father trusts the mother's parenting abilities, the mother has little trust in the father's ability to care for I on an unsupervised basis.
Clearly, the parties have been unable to communicate about I since approximately May 2004. Each now appears to accept, however, that the other has something positive and worthwhile to offer I.
The mother's actions in the past (for which she has been criticised in these Reasons) reveal that she has not always adopted a child focused approach in dealing with issues as they have arisen. Similarly, the father's actions and attitudes (for which he has also been criticised in these Reasons) reveal that he, too, has not always adopted a child focused approach. Of significance, however, is the fact that the mother has now adopted such an approach (whereas the father appears reluctant to do so).
I's major long-term issues include matters relating to her education, religious and cultural upbringing and health (together with her living arrangements, to the extent that changes to the same might impact on the time that I spends with the father). Her name is also regarded as a major long-term issue.
In my opinion, and having regard to the concessions made by the mother, it is in I's best interests that I order that the parties have equal shared parental responsibility for her. There is no reason why the father should be denied input into the sorts of issues referred to in the previous paragraph. The fact that the mother must consult the father in relation to these matters will, hopefully, ensure that she will not again see fit to take the sorts of actions that have formed the subject of adverse comments elsewhere in these Reasons.
I will not pretend that I do not have some discomfort with the making of an order for equal shared parental responsibility. I recognise that there is a possibility that it will not work, and that the father will use the mother's attempt to discuss matters with him (directly or indirectly) to abuse or intimidate her. But the mother said that she is prepared to give the arrangement an opportunity to work. The mechanics of the consultation between the parties (which is a necessary component of equal shared parental responsibility) should form the subject of discussion between the parties’ legal representatives. In my opinion, however, direct consultation between the parties is unlikely to be successful.
Conclusion
I have borne firmly in mind, throughout my consideration of the parties’ competing applications, the various factors and considerations referred to under the heading of "The Law" above. I have also borne in mind the other legislative provisions or authorities referred to in these Reasons. I have imposed no legal or other onus on any party, and have applied no presumptions of any sort (beyond those that the law requires me to consider and apply). I have deduced from the evidence, and from my assessment of the parties and the witnesses, the essence of the competing proposals ─ and I decide, having considered all the factors that I believe to be relevant, that the Victorian proposal is more likely to advance I's best interests (which comprise the paramount consideration in these proceedings) than the Tasmanian proposal.
Given that, in my opinion, the father should have as much contact with I as is possible (and practicable) in all the circumstances, I propose to make orders more or less in accordance with the mother's primary proposal (involving, as it does, the father having contact with I in Tasmania and in Victoria on an alternating basis).
Although I am not persuaded by Mr J's “all or nothing” approach (as it were), and although I am not persuaded that contact is effectively a waste of time if it does not take place on a weekly or fortnightly basis, I confirm that it is in I's best interests to have as much contact with the father as is practicable. Thus, I propose to order that the father have contact with I in Tasmania for two consecutive days on every sixth weekend, and that the father is to have contact with I in Victoria on a similar basis, with the contact periods to be co-ordinated (such that the father has the opportunity of having contact with I every third weekend).
I accept that the above arrangement imposes a significant cost burden on the parties (or, perhaps more accurately, on the mother ─ as the father does not appear to be willing to accept responsibility for his share of the interstate travel costs associated with contact). I propose to order that the mother be responsible for the costs associated with bringing I to Tasmania every sixth weekend. I will order that the father be responsible for the costs associated with his travel to Victoria every sixth weekend. If the father is unwilling or unable to meet those costs, or if he is unwilling or he feels unable to leave his place of residence for a short period in order to enable his daughter to have contact with him, then the contact in Victoria (or some of it) may have to be foregone.
As I have explained above, I propose to order that the parties have equal shared parental responsibility for I, and that I is to otherwise live with the mother. There will be no order to the effect that the mother must relocate back to Tasmania.
I will now hear counsel as to the orders that are necessary to give effect to these Reasons.
I certify that the preceding three hundred and sixty-one (361) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette. De La Motte
Date: 1 April 2008
See, for example, Hungerford & Tank (2007) FamCA 637 and M & S (2006) FamCA 1408 at
paragraph 36
16
4
1