Moller & Astle

[2008] FamCA 1252

FAMILY COURT OF AUSTRALIA

MOLLER & ASTLE [2008] FamCA 1252

FAMILY LAW – CHILDREN – With whom a child should live – Whether substantial or significant time should be spent with one parent in light of agreement about joint parental responsibility – Whether one parent is more likely to have the benefit of a meaningful relationship with their child if the child principally resides with the other parent

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

APPLICANT: Mr Moller

RESPONDENT: Ms Astle

FILE NUMBER: CAF 56 of 2006

DATE DELIVERED: 29 January 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 22 – 24 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Harris

SOLICITOR FOR THE APPLICANT: Mr Friesen

COUNSEL FOR THE RESPONDENT: Mr Schonell

SOLICITOR FOR THE RESPONDENT: Ms Crane

Orders

1. Subject to Order 2 hereof, the mother and the father have equal shared parental responsibility in relation to their son, …, born … September 2002 (“the child”).

2. The mother and the father have sole responsibility for making decisions about the day to day care, welfare and development of their son at times he is in their respective care.

3. The child will live primarily with the mother.

4. The child will spend time with, and communicate with, the father as follows:

   (a)all of the April and September/October school vacation periods in each year;

   (b)alternate halves of the remaining school vacation periods in each, being the second half in even numbered years and the first half in odd numbered years;

   (c)the father be entitled to spend up to two (2) blocks of seven (7) days with the child during the school term in the region where the child attend school provided that the father ensures that the child attends all his usual school and extra curricular activities and that the father provides to the mother not less than 21 days notice of his intention to exercise this provision and such time is not be the seven (7) days immediately before or after any school holiday period.

   (d)telephone and e-mail communication at all reasonable times, including on Tuesday’s and Friday’s between 6pm and 7pm; and

   (e)communication via SKYPE on one occasion each week, once such facility is set up by the parties;

   i)The mother and the father shall set up and install SKYPE within 21 days of the making of these orders by the Court.

5. For the purposes of giving effect to these orders;

   (a)Christmas school holidays shall be deemed to conclude on the Friday immediately prior to the commencement of the new school year;

   (b)Subject to the order hereafter in relation to the child’s travelling unaccompanied until he reaches the age of 6, the parent into whose care the child is to go pursuant to these orders is to pay for and be responsible for the collection of the child from the other parent;

   (c)All changeovers shall take place at the Brisbane, Canberra or Coolangatta airports, (in the last mentioned case if a direct flight from Canberra is available);

   (i)As and from his sixth birthday, the child will travel by aeroplane as an unaccompanied minor unless the parents otherwise agree.

   (ii)Until the child turns six, unless his parents otherwise agree, the child will travel accompanied on his flights between Canberra and Brisbane and Brisbane and Canberra.  The cost of the accompanying persons travel in the period until he turns six will be born by the father.

   (iii)If the child is accompanied on his flights then the parents will ensure that they are not together present at the handover (unless they otherwise agree in advance).

6. The mother and the father keep each other informed, in a timely manner, on issues involving the child’s health, education and development and that each party hereby authorises the other party to discuss with, and obtain information from, any health professional or school attended by the child.

7. All extant applications be dismissed.

8. By consent, the father and the mother be restrained from providing any affidavit or document created for these proceedings, including documents produced subpoena and a copy of any judgment to any person, other than his or her legal advisors without the consent of the other party or an order of this Court.

9. By consent, (this order was made in Court on Thursday the 24^th January 2008) the father shall return the child to the mother’s care at Brisbane airport on Saturday 26^th January 2008 by 5pm New South Wales time.

   (a)In the event that the flight time will have the child at Brisbane at an earlier time the father shall advise the mother by e-mail.

10. All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as possible.

11. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

12. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment under the pseudonym Moller & Astle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 56 of 2006

MR MOLLER

Applicant

And

MS ASTLE

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This matter was essentially about whether the parties’ child, a son born in September 2002, would live principally with his mother in the north coast area of New South Wales (NSW), or with his father and his father's new partner in southern NSW.

2. The trial was conducted in accordance with the less adversarial trial process, and a number of issues were identified for the finalisation of the trial which occurred on 22, 23 and 24 January 2008.  The issues as identified by me in conjunction with the parties and their lawyers appear in the Orders and Directions made by me in Chambers on 12 December 2007.[i]

3. The parties were substantially in agreement about the sorts of orders that should be made about the child except, of course, about where he should principally live.  This template of orders, in effect, provided that the child would live principally with one or the other parent and allowed for him to spend periods of school holidays with the each parent.  In addition, the father sought (and said he would utilise, if the child were living with his mother) block periods of up to seven days during each school term when the parent with whom the child would not be principally living would travel to the locality of the other parent and spend that time with the child.

4. The mother's position is that while she wanted to have that facility available to her, it would be unlikely that she would be able to use it because of financial restraints.

5. Communication by telephone, e-mail and SKYPE was also agreed. 

6. In the period leading up to the finalisation of the trial the parties, in effect, shared the care of the child, with the child’s moving between their respective houses every three weeks.

BACKGROUND

1. The father was born in July 1956 and was about 51 years old at the time of the hearing.  The mother was born in August 1970, and was aged about 37 years at the time of the hearing.  The parties began to live together in about November 2000, having met in October 2000.

2. They separated in about May 2005, and the mother remained in the southern area of NSW.  The parties attended Relationships Australia in August 2005 and signed a memorandum of understanding.

3. In January 2006, the father, whose occupation included taking adventure skiing trips to Japan, left for about three months in Japan.  During his absence and without prior notice to him, in effect, the mother relocated with the child to the north coast of NSW.  The mother left a message on his answering machine on the day that she left and sent him an e-mail.

4. In February 2006, the father commenced proceedings for the return of the child, and on 14 March 2006 consent orders were made about the child on an interim basis.

5. The mother had commenced a relationship with Dr B.  She commenced this relationship in or about June or July 2005 and some time shortly thereafter she became pregnant.  After separation from the father and her relocation to the north coast in May 2006, J was born.  The father has also remarried since separation to Mrs Moller.

6. Towards the end of 2007, the parties attended upon a single expert, Dr M, who produced a report for the Court in the proceedings and they also attended for Family Court interviews with Ms W, a Family Consultant of the Family Court.

7. At the continuation of the Less Adversarial Trial in November 2007, the mother asserted that she would obtain further evidence from a Dr H in the event she obtained an appointment for a consultation with a Dr C who had previously treated her, and his report became evidence in the proceedings.

CREDIT & FINDINGS

1. This is a case in which each of the parents has significant things to offer to his or her son.  Regrettably, the animosity each bears towards the other parent is patent, and this has affected their ability to cooperate in the child’s parenting.  However, they share many joint aspirations for him, and his mother is very enthusiastic about the outdoor skills and life skills that the child can learn from his father.  The child’s father is somewhat less fulsome in his enthusiasm for what the child’s mother might provide for him, but nevertheless agrees that if she is not affected by what he perceives to be her moods she is able to and does provide good care, love and affection for the child.

2. The evidence would suggest that the child has been affected by the antipathy of his parents.  There is much evidence from the father about things that the child said to him and to his new wife which may be explained by the strained relationship between the parties.  Perhaps, predictably, this is not the way in which these comments have been interpreted by the father or by his new wife.  Indeed, in various ways and at various times, the father described the mother in quite vitriolic terms, including the assertion that he felt that she could seriously injure the child.  Additionally, the child’s behaviour at handover at the airport when passing from his father to his mother was problematic on a number of occasions, although these problems appear to have ceased in the middle of 2007.  No such problems existed when the mother's sister, the child’s aunt, who was a witness in the proceedings, effected the handover.

3. The parties essentially are able at this point to communicate only by e-mail.  The child does talk to the parent with whom he is not living from time to time quite regularly, and although there have been a number of incidents associated with these telephone calls, at the time of the finalisation of the hearing, there does not appear to be any significant difficulty.

4. The father essentially had been responsible for the payment of transportation expenses for the child, although it is fair to remark that he was able to obtain some relief from child support as a consequence.  The father had spent significant effort in endeavouring to show that the mother was affected by mental illnesses, which included bipolar disorder and borderline personality disorder.  Neither of those asserted diagnoses was proved on the evidence to be correct.

5. The mother, I suspect, in a reciprocal action, made accusation about the mental health of the father.  Although Dr M found that the father may well have been the subject of situation or reactive depression, there was no evidence of any relevant mental illness on the part of the father.

6. The mother's case involved allegations that the father was not deliberately, but nevertheless consistently, exposing the child to his antipathy towards the mother, and that this was reflected in the child’s behaviour towards her, and in his utterances and his views about where he wanted to live.

7. I found the mother's evidence (in the witness-box particularly) to be forthright.  She acknowledged when she had made errors, (and there were a number of these), and she accepted that her behaviour in a number of respects was inappropriate.  Although the father asserted that she was a chronic liar, I do not find this to be so.  There were certainly instances where she lied to the father and others but generally I accepted the evidence she gave me in Court, particularly about her relationship with the child.

8. The father's evidence appeared to be responsive and straightforward.  I formed the impression, however, that he was a person who liked to be in control of the situation and that he was very careful about what he said and what he did.  He was intelligent, perceptive, quick on the uptake and difficult to read.  I do not feel the same level of confidence with the father that his evidence was completely straightforward.  However, little turns on this in the course of the proceedings as it transpires.  The child’s mother, in particular, was quite glowing in her praise of the things that the father did with the child, and I have no doubt that her expression of these views was genuine and sincere.  She expressed only a concern that he would not encourage in the child a positive view of his mother.  I suspect in the light of the father's attitude to the mother that this was probably a justified concern on her part.

9. The father expressed his concerns that the mother's mental state, in particular, might bring about harm for the child.  Considerable effort was placed in the course of cross-examination and in the preparation of evidence for the finalisation of hearing to refer to suicidal thoughts that the mother had had in the past.  Whether she had suicidal thoughts more often than the two occasions that were particularly stipulated was not ultimately the subject of evidence on my direction.  Nevertheless, to some extent this is irrelevant to these proceedings in that I accept unequivocally the evidence of the mother on 23 January 2008 at about 12.40 pm that she would never kill herself.

10. Interestingly, as the hearing proceeded, the process involved a significant examination of the mother's past, of her conduct, and of her mental health.  The father was not subjected to a similar scrutiny and this approach is consistent with the mother's praise of the father while expressing significant concern and hurt that he might be indirectly turning the child against her.  Again, it was to her credit that she conceded that there was no direct or deliberate attempt on the part of the father to do this.

THE LAW

1. The law that I am obliged to take into account in determining matters before the Court is contained in Part VII of the Family Law Act 1975 (Cth). In the most recent amendments to the Act, the principles and objects of Part VII of the Act are relevantly provided in s 60B(1):

   The objects of this Part are to ensure that the best interests of the 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 the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

2. Section 60B(2) reads:

   The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

   (a)children have the right to know and be cared for by both their parents regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with both of 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).

3. Section 60B(3) is irrelevant for these purposes.

4. In determining what constitutes the best interests of the child, I am obliged to take account of the matters set out under section 60CC. I am obliged to do this because in making any particular parenting order the Court must regard the best interests of the child as the paramount consideration, which is the effect of section 60CA.

5. In this matter, it was agreed between the parents that they would share equally parental responsibility in relation to the child, and this brings into effect some other provisions of the Act to which I will now briefly refer.

Presumption of equal shared parental responsibility and equal time

1. Under s 61DA of the Family Law Act 1975 (Cth), there is a presumption that it is in the best interests of the child to have an equal shared parental responsibility for the child.[1] In this case, both parents are agreed that that should be so. Therefore I am not obliged to consider the matters that would ordinarily rebut that presumption. Once that presumption is in place, or in this case once the order is in place, I am obliged to consider, in accordance with section 65DAA of the Family Law Act 1975 (Cth), if the child is spending equal time with each of his parents would be in the best interests of the child.[2] Further, I must consider whether his spending equal time with each of his parents is reasonably practicable,[3] and if it is, to consider making an order to provide for the child to spend equal time with each of the parents.[4] 

   [1] Family Law Act 1975 (Cth) s 61DA(1).

   [2] Family Law Act 1975 (Cth) s 65DAA(1)(a).

   [3] Family Law Act 1975 (Cth) s 65DAA(1)(b).

   [4] Family Law Act 1975 (Cth) s 65DAA(1)(c).

2. In this matter, neither of the parents seeks that the child would spend equal time with him or her. This is notwithstanding the fact that they have had a substantially shared parenting arrangement to this point. That in itself, in my opinion, is enough to rebut the proposition that this might be an appropriate order in this case. Even if it were my thoughts that the child should spend equal time with his parents, I accept in the terms as outlined in s 65DAA(5) that it would not be practicable for him to do so. I will return to that matter in due course.

Substantial or significant time

1. However, if I determine that it is not reasonably practicable for the child to spend equal time with each of his parents, then I am obliged to consider whether it would be appropriate for the child (in view of what is in his best interests) to spend substantial and significant time with each of his parents[5] and to consider whether that is reasonably practicable,[6] and if it is, to consider making an order for the child to spend substantial, significant time with each of his parents.[7]

   [5] Family Law Act 1975 (Cth) s 65DAA(2)(c).

   [6] Family Law Act 1975 (Cth) s 65DAA(2)(d).

   [7] Family Law Act 1975 (Cth) s 65DAA(2)(e).

2. Section 65DAA(3) provides part of a statutory definition of “substantial and significant time”, and provides that it will only be substantial and significant time if:

   (a)the time the child spends with the parent includes both:

   (i)days that fall on weekends and holidays; and

   (ii)days that do not fall on weekends and holidays; and

   (b)the time that the child spends with the parent allows the parent to be involved in:

   (i)the child's daily routine; and

   (ii)occasions and events that are of particular significance for the child;

   (c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

1. Section 65DAA(4) provides:

   [s 65DAA(3)] does not limit the other matters to which a Court can have regard in determining whether the time the child spends with the parent should be substantial and significant.

2. These matters do not limit the arrangements about the time that the child would spend with his parents by time.  They do stipulate a number of matters that ought to fall within the time the child spends with the parent with whom he is not principally living.  In this particular case, because of the order template, the parents are substantially agreed the child would spend holiday time with each of his parents.  He would, particularly if he were to live principally with his mother, spend time also with his father during school time during the term and would spend some of the holidays, significant holidays in the year, with each of his parents in accordance with the orders that are made. 

3. In my opinion, these proposed orders would constitute in reasonable terms a substantial and significant time to spend with each of his parents. It would, therefore, fall to me to determine whether in the circumstances, in accordance with s 65DAA(5), whether it would be reasonably practicable for him to do so.

4. In coming to that conclusion for such a determination, s 65DAA(5) stipulates that I must have regard to:

   (a)      how far apart the parents live from each other; and

   (b)the parents' current and future capacity to implement an arrangement for the child spending equal time or substantial and significant time, with each of the parents; and

   (c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact an arrangement of that kind would have on the child; and

   (e)such other matters as the Court considers relevant.

Reasonable practicality

1. In this case, the parents live about as far apart from each other as they reasonably could within one State.  The difficulties in their travelling from one place to the other have been highlighted by some of the problems that have occurred in relation to the handing over of the child in the past.  However, it remains open to the parents to have the child fly from Canberra to Brisbane, or possibly to Coolangatta (once an airline re-establishes the link between Canberra and Coolangatta), and for the other parent to drive the child in one case to Canberra and in the other case to Brisbane or to Coolangatta, and collect him from those places in return.  Up till now, one of the parents, or some other responsible person, has accompanied the child on all of his trips and, in essence, that arrangement will continue as between the parents until he turns six on my order in accordance with the orders that I make this day.

2. This was a matter of some dispute between the parties, and the mother felt that the child could presently travel unaccompanied by air.  I was not entirely satisfied that this was so at the present time, although neither party was able to present any really conclusive evidence, or even any substantive observational evidence about the child’s capacity.  In essence, the father agreed that from the age of six the matter could be reviewed.  In those circumstances, it seems to me that that is an appropriate time for him to at least consider with his parents whether he is able to travel on an unaccompanied basis.

3. The parents are capable of carrying out the proposed arrangements about the child’s substantial and significant time, subject to the question of costs and also subject, in the mother's case, to a substantial inability on her part to be able to travel to be available for time with the child during school term. I will return to that when I consider other matters under section 60CC below.

4. At present, the parties have difficulty in communicating with each other.  This has been the case for some time, and their only effective means of communication at present is by e-mail.  This substantially limits their ability to work together for the best interests of the child, and I raised the matter with the parents in the Court.  Nevertheless, this is a matter which will, while it will have an effect on the child’s best interest in the future, would not affect the arrangements that are otherwise in place in this matter except to put additional stress on each of the parents about the things that happen during the time that the child is with each of them.

5. It is unclear at this point how the child will react to being separated from either parent for a longer period than he has presently had to undertake.  He has been separated from his mother for one period of five weeks, and under the proposals put forward by his father, if he were living with his mother he would be separated from his father for up to seven weeks, being one half of essentially the school term possibly during the course of each year.

6. The father's evidence was that the child coped quite reasonably well with being separated from his mother for about five weeks, and under the present arrangements he is separated from each parent for periods of up to three weeks in any event. 

7. In summary on this issue, there are no other matters which, in my opinion, bear upon the question of whether or not it would be appropriate for the child to have substantial and significant time or whether it would be practicable for him to do so.

BEST INTERESTS OF THE CHILD

1. I turn then to consider what matters might, on the evidence before me, be regarded as being in the child’s best interests. In this regard, I draw attention to the matters set out under section 60CC of the Family Law Act 1975 (Cth) as covered in addresses to me by both counsel. In addition, I had the advantage of Ms Harris for the father directing my attention to various matters that had been identified as issues previously, and I will turn to these in substance after I have outlined the relevant matters under the legislation of which I must take account.

2. Importantly, in my opinion, the primary considerations are stipulated to be in s 60CC(2):

   (a)       the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

3. The interesting question that needs to be considered in relation to this legislation, of course, is what is the meaning of a primary consideration?  In this regard "primary" might mean a pre-emptive or more important consideration than any other, or it may mean a consideration for which attention must first be turned.  It is possible in the context of the Family Law Act 1975 (Cth), that each of those considerations has a part in the interpretation of the relevant legislation. However, it does seem that the considerations which I have just quoted are regarded by the legislature as having some significance and certainly factors that must be taken into account in determining the best interests of the child.

4. In addition to those considerations, additional considerations are expressed to be the views expressed by the child and the weight to be given to them in view of his age or other factors, [8] the nature of the relationship of the child with each of his parents and other people,[9] the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between him and the other parent,[10] and the likely effect of any changes in the child’s circumstances, including the effect on him of any separation from either of his parents or from other people,[11] the practical difficulties and expense of the child spending time with and communicating with his parents,[12] and the capacity of each of the child’s parents and any other person to provide for his needs, including his emotional and intellectual needs.[13]

   [8] Family Law Act 1975 (Cth) s 60CC(3)(a).

   [9] Family Law Act 1975 (Cth) s 60CC(3)(b).

   [10] Family Law Act 1975 (Cth) s 60CC(3)(c).

   [11] Family Law Act 1975 (Cth) s 60CC(3)(d).

   [12] Family Law Act 1975 (Cth) s 60CC(3)(e).

   [13] Family Law Act 1975 (Cth) s 60CC(3)(f).

5. The lifestyle and background and culture[14] of the child are not factors which have played a significant part in my determinations, and he is not an Aboriginal child or a Torres Strait Islander which would call into effect that provision.[15].  I am also obliged to take into account the attitude of the parents to the child and to their responsibilities of parenthood demonstrated by their conduct.[16]  I am obliged to take into account family violence[17] and family violence orders,[18] and whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.[19] It is not suggested by anyone that I should make orders that would be postponed in their operation which would call into effect the provisions of s 60CC(3)(l).

   [14] Family Law Act 1975 (Cth) s 60CC(3)(g).

   [15] Family Law Act 1975 (Cth) s 60CC(3)(h).

   [16] Family Law Act 1975 (Cth) s 60CC(3)(i).

   [17] Family Law Act 1975 (Cth) s 60CC(3)(j).

   [18] Family Law Act 1975 (Cth) s 60CC(3)(k).

   [19] Family Law Act 1975 (Cth) s 60CC(3)(l).

6. Finally, the Family Law Act 1975 (Cth) provides that I can take account of any other fact or circumstance that I consider to be appropriate. I should also make mention that s 60CC(4) provides that without limiting the effects of the preceding paragraph and subparagraphs, the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibility as a parent, in particular, the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues about him and to spend time with him and communicate with him, or has facilitated or failed to facilitate the other parent in participating and making decisions about major long-term relations in relation to the child, and spending time with him and communicating with him, or has fulfilled or failed to fulfil the parents' obligation to maintain the child.

7. The effect of those matters is not significant in this case.  The parents have continued to talk to each other from time to time about a number of major long-term issues and decisions.  It would be fair to comment, however, that the mother's decision to move with the child to northern NSW was not one about which she consulted the father at all. Since that time there have been some difficulties from time to time about communication, although precisely how that has occurred and why that has occurred is not entirely clear.

Weight to be given to considerations about the child’s best interests

1. There are a number of matters which have to be weighed in this matter to determine what would be in the child’s best interests, and in the end it is a matter of balance and judgment on my part as to which of those must have greater significance, either individually or collectively.

2. There are a number of matters in relation to the mother to which I draw attention which bear upon the matters I am to take into account, and some relating to the father as well.  There are also other matters which bear upon both of them together, and I will deal with those after I have dealt with the matters which are individual to each of the parents.

3. The first matter which I regard as being favourable, so far as the mother is concerned, is her attitude towards the father.  Although from time to time his actions have caused her frustration and have caused her to act either impulsively or emotionally, generally speaking she has been very supportive of the father and of his attitude to the child. In particular, she has been significantly praising of him in her evidence before the Court, and I am satisfied that she has a positive attitude towards the father and will do her best to inculcate such an attitude into the child.  In addition, there is a continuing, although obviously inchoate, relationship between the child and his step‑brother, J, which will be of significance to him in the future, but is of probably no greater significance at present than the relationship that he enjoys with his step-mother, but possibly of no lesser significance.

4. If the child were to live with his mother, there would be less opportunity for him to have a meaningful relationship with the father's new wife, the child’s step-mother.  Of course, the reciprocal consequence will occur if, in fact, he is to live principally with his father.  It would be fair to say that it was not a demonstration of an appropriate and responsive attitude to parenting on the part of the mother for her to relocate as she did unilaterally to northern NSW without consulting the father.  This is a matter which does not reflect credit upon her, and it was so conceded in that light by her counsel – and quite properly. 

5. However, in the circumstances it is appropriate for me to acknowledge that I have listened carefully to the mother's explanation about why she did this.  In broad terms, I accept that while she did it quite clearly, in my opinion, to avoid conflict with the father, and to take a course of action which she thought would put in place an arrangement which would be more difficult to undo, I accept that she did so, in the context that she recognised that where the child would subsequently be living would be a matter for determination by the Court.  While in some cases a unilateral relocation is designed without any question to eliminate possibilities open to the Court, in broad terms, I accept the mother's explanation for her moving, although in the long run it is not up to her to justify by good and compelling reasons why she has moved or why she should move.  I am, however, disturbed, that the move in the circumstances that occurred represents a lack of communication or an ability to communicate about things that are essential to the child’s life.

6. So far as the mother is concerned, I accept that she, in her evidence, was forthright, and that she has demonstrated an insight into her own strengths and into her own weaknesses.  In this regard, I think that she has more insight about her strengths and weaknesses than does the father, and that is a factor which operates to enable her, in some respects, to provide a stronger parenting ability perhaps in relation to the child than that which would necessarily flow from the father.

7. On the other side of the ledger, however, it has to be said that in the past the mother has demonstrated from time to time a lack of stability.  In accordance with the diagnoses both of Dr C, a witness called on her behalf, and from Dr M, I find that she exhibits a level of exaggeration and impulsiveness in her behaviour, or perhaps to adopt the words used by Dr C and supported by Dr M, a “degree of histrionic behaviour.”  This was a lynchpin in the submissions put to me by Ms Harris on behalf of the father, and I will return to consider it in more detail in a few moments.

8. The further matter that relates individually to the mother is that if the child were living with his father principally, then it is unlikely, and I accept that it would be unlikely, that the mother would be able to see him during school term time.  This is a combination of factors.  One is her inability physically to get from northern NSW to southern NSW.  Second, there are the emotional consequences of her returning to the small environment from which she left. Third, and significantly, there is a question of the cost of such an arrangement, particularly as she has no other accommodation available to her at the present point.  This would be a significant disadvantage to the child if this were to occur.

9. So far as the father is concerned, I accept that there is a lot of force in the submissions made by Mr Schonell that the father is affected by intractable animosity towards the mother.  This has been reflected, in my opinion, in the behaviour that the child has exhibited during his time with his father and, in particular, his behaviour on handover from father to mother.  This is a difficult matter to analyse, and I do not pretend to be in a position to pass any expert opinion about why it was that the child has behaved as he has.  However, I accept from the evidence of the father, both in his affidavit and from observing his demeanour in Court, that his animosity towards the mother is unrelenting, and that he has followed as a consequence of that animosity, a calculated approach both to these proceedings and possibly his relationship with the child.  This is a negative factor, in so far as the father is concerned, in my consideration about where the child might properly live.

10. On a more positive note, the father's relationship with Mrs Moller has brought positive factors to the child’s upbringing, and his relationship with his step-mother is a good and appropriate one, and one which deserves to be encouraged in the future.  She gave her evidence in a guarded way, but nevertheless I formed the impression that she was fond of the child and would take an appropriate approach in dealing with him, without (deliberately) excluding the mother from his affections.

11. If the child were to live with his father there would be less chance of a substantial relationship with his step-brother J, and given the limitations on the time that the mother could spend with the child in southern NSW, it seems likely that the deprivation of his relationship with J would be more significant in terms of time than would his deprivation of a relationship with his step-mother if he were living principally with his mother. 

12. Again on a positive matter, the father's ability to inculcate in the child a love of the outdoor lifestyle and to carry on outdoor activities with him is a clear and positive advantage recognised by the mother, and clearly also recognised by the father, and one to which the father is committed and has demonstrated a sense of commitment in the past.  Again of a negative element with the father, in my opinion, is the lack of insight into his own behaviour, and a certain level of arrogance which was observable in his evidence before the Court and his conduct in the Court which I could observe over the time that the matter was before me.

13. Taking those matters, therefore, before I turn to the matters common to both, I make the following comments, particularly my reference to s 60CC(2)(a). If I am to accord particular or primary significance to the child’s having a meaningful relationship with both parents, it seems to me that from the factors I have identified above, it is more likely that this is something that would occur if he were living principally with his mother rather than with his father. Nevertheless, the other factors which I am obliged to take into account substantially reflect in favour of the father rather than against him, and the significance of the word "primary" is something which is now, in my opinion, of particular significance.

14. I should perhaps mention in passing that this is not a matter in which either parent would consider moving to be closer to the other parent.  This is not, therefore, a classic relocation case but, rather, a matter of determining where in physical and geographical terms the child will be best off living.  I accept that it is reasonable on the part of each of the parents to be unconvinced that he or she should move to the locality of the other parent, and no criticism is implied of either in coming to that decision.

15. I turn to a number of matters which are of more general concern, and about which findings need to be made for me to make a final decision.  The father made much of the mental health of the mother.  I am unconcerned, and unconvinced, that at the present time there is a problem with the mother's mental health which would impact upon her ability properly to care for the child.  In this regard I am comforted by a number of factors from the father's own evidence.  The first of these is that, notwithstanding the father's expressed concerns, he had spent and continues to spend time in Japan, leaving the child in the unsupervised care of his mother.  This was so at or about the time of separation for a period of three months, and I find it difficult to accept that the father genuinely has concerns about the mother's care, bearing in mind the circumstances of the separation, the fact that he would have been clearly apprised of the fact that she was in an emotional state at that point, and was still able to be satisfied that the child’s best interests lay in leaving him with his mother while he went to Japan.

1. In addition, I note that although during the course of the time leading up to the finalisation of the hearing in this matter the father had sought orders which would have required the mother to be strictly supervised during times that the child was with her for no apparent reason and given that the evidence was that there be no change in matters between that time and the time of the finalisation period, the father changed the orders sought to provide substantial periods of time where the child would be with his mother on an unsupervised basis.  Again, it seems to me that the father is corroborating the view that I have formed that there is no immediate problem so far as the mother's mental health is concerned.

2. In this regard, it is clear that there has been no recent episode which would give rise to any concern in the mother's health, either mental or physical.  This is certainly the case since the middle of last year, and possibly for a period of up to 18 months.  The mother's evidence, which in this regard I accept, is that she has not required or needed any assistance during that period, and that therefore has remained healthy.

3. The conclusions that were reached by Dr M, and to some extent by Dr C, suggest that the mother's personality is one prone to histrionic behaviour which would be demonstrated perhaps by impulsiveness.  In this regard, it was submitted to me that the mother's behaviour in health constituted chronic vulnerability which was subject to triggers which would be events that may cause her to lapse into impulsive or erratic behaviour.  It was suggested that such triggers could include the deprivation, either by her or from her, of one of her children.  I pointed out to Ms Harris at the time when this was put to me, that this really operates curiously as some sort of submission contrary to the father.  This is because it means that if, in fact, I were to make a determination that meant that the child was not living with his mother that may, in fact, impact upon her ability to care properly for him.  I do not necessarily, however, accept that this would constitute such a trigger and I do not make a finding of that sort.

4. I do accept that the mother is prone to exaggeration and I believe that she has in the past made decisions which were impulsive and which did not always operate appropriately in favour of the child.  For example, her behaviour in going to the northern coast of NSW was to some extent impulsive, although I believe it was something that had certainly been contemplated for some time before.  I accept also that her behaviour in destroying a photo album that had been sent to her by the father was an example of frustration turning into actions which, in the circumstances, as she acknowledged, were inappropriate.  I confirm also that I accept that she lied about saying to the child in the presence of his father by telephone that there was bribery involved in what the father was doing. I accept further that she has, to some extent, without taking particular thought to the consequences, enrolled the child at school without making sure that his surname as it appears on his birth certificate was recorded appropriately.  To some extent, however, I accept her explanation in relation to this last matter. 

5. These are factors which do not operate in her favour, but which are not crucial, in my opinion, with the exception of her move to the north coast, perhaps, to her behaviour and to her attitude towards the responsibilities of parenthood.

6. So far as the father is concerned, the mother acknowledges, both personally and through counsel, that she does not believe that the father is deliberately acting to turn the child against her.  However, having observed his demeanour and conduct in the witness-box, I believe that the father has certainly taken steps which, subconsciously perhaps, but which have, in the end, brought about a situation where the child has, to some extent, regarded his mother as one of the, and I quote from him "bad guys."  This is something which does not reflect credit upon him, and it is interesting to see that when it was put to him that the diagnosis of Dr E, a person qualified in mental illness to whom the father had gone with a list of symptoms that he said the mother suffered from, that that diagnosis must necessarily be flawed because Dr E had never seen the mother or the father, responded with words to the effect of "only if I lied."  This demonstrates, on his part, a level of quite significant arrogance about his view about what is best for the child and, in my opinion, demonstrates that he may not be prepared to be as cooperative as would be appropriate in the future.

7. In addition, the father's behaviour in relation to a mark on the child’s back which apparently involved some capillary damage, which he thought was in some way indicative of an assault by the mother, did not reflect favourably upon him. 

CONCLUSION

1. Ultimately, however, it seems to me that the factors that relate to the child’s best interests are relatively evenly balanced, and the two matters that, in my opinion, are most significant to my final determination are the primacy that I am obliged to give to the establishment of a meaningful relationship for the child with each of his parents, and the fact that it is more likely than not that if the child were living with his mother, that she is likely to be more stable than if he were living primarily with his father.

2. In my opinion, if the child were living primarily with his mother it is more likely that he would continue to have a meaningful relationship with his father than if he were living primarily with his father.  This is partly brought about by the father's willingness, and this is a matter to his credit, not criticism, to travel to spend time with the child during the school term on the north coast.  It is also due to the fact that the mother is unable to perform a similar function in reverse.  This means that if the child is living principally with his mother he is likely to have more time with his father, and that time is likely to be substantial and significant in accordance with the findings that I have made previously.  If he were living principally with his father he would not be able to share the same substantial and significant events with his mother.

3. In all of the circumstances, given that I do not find that the mother's mental illness is likely to affect her ability properly to care for the child at the present time, or for the foreseeable future, on the evidence before me it seems that the order that I should make is that he should live principally with his mother, and accordingly, in accordance, with the template that had previously been agreed, I make the following orders.

I certify that the preceding seventy five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.  

Legal Associate: 

Date:  27 May 2009

[i] List of Issues identified by Deputy Chief Justice Faulks in Chambers, 12 December 2007

1.The mother’s mental health and its capacity to impact upon her ability to provide appropriate parenting for the child.

2.The potential for emotional abuse by the child of the mother as a result of what the father asserts is her mental incapacity.

3.The impact on the child of the conduct of the mother caused by whatever reason.

4.Questions about the cost and the timing of transport between where the mother is living and where the father is living.

5.The effect on the child of prolonged absences from either parent.

6.The effect on the child's relationship with his sibling J of his being absent from J; and the time and frequency of such absences.

7.The inappropriate involvement by each of the parties of the child in the proceedings before the Court.

8.The inability on the part of either parent to foster a proper relationship between the child and the other parent.

9.The father’s mental health and its impact upon his ability to foster a proper relationship between the child and his mother.

10.The ability (or inability) of each of the parties to provide a positive view about the other parent to the child.

11.The inability on the part of either or both of the parents to refrain from denigration of the other parent in the presence of the child.

12.Communication, or a lack of it, between the parents and its effect upon the child.