Northcote and Northcote
[2012] FMCAfam 82
•9 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NORTHCOTE & NORTHCOTE | [2012] FMCAfam 82 |
| FAMILY LAW – Children – parental responsibility – allegations of family violence – allegations of sexual abuse – unacceptable risk – relocation. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAC, 69ZT Family Law Amendment (Shared Parental Responsibility) Act 2006 Evidence Act 1995 (Cth), s.140 |
| M v M (1988) 166 CLR 69 Johnson & Page (2007) FLC 93-344 Morgan & Miles (2007) FLC 93-343 AMS v AIF (1999) 199 CLR 160 A & A: Relocation Approach (2000) FLC 93-035 U v U (2002) 211 CLR 238 KB & TC (2005) FLC 93-224 Taylor & Barker (2007) FLC 93-345 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Vance & Vance [2010] FamCAFC 250 |
| Applicant: | MS NORTHCOTE |
| Respondent: | MR NORTHCOTE |
| File Number: | HBC 643 of 2009 |
| Judgment of: | Baker FM |
| Hearing dates: | 6, 7, 8 and 29 July and 5 December 2011 |
| Date of Last Submission: | 5 December 2011 |
| Delivered at: | Hobart |
| Delivered on: | 9 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson, Mitchell & Allport |
| Counsel for the Respondent: | Mr Tucker |
| Solicitors for the Respondent: | Grant Tucker Barristers & Solicitors |
| Counsel for the Independent Children’s Lawyer: | Ms Mooney |
ORDERS
Ms Northcote (“the mother”) and Mr Northcote (“the father”) have equal shared parental responsibility for the child [X] born [in] 2004 (“[X]”).
The mother is restrained from relocating [X]’s residence to Queensland.
[X] live with the mother.
[X] spend time with and communicate with the father as follows:
(a)During school term periods, each alternate weekend commencing Friday afternoon and concluding on Sunday afternoon, such time to extend to Monday afternoon if that Monday is a public holiday in Southern Tasmania.
(b)For alternating halves of each Easter/April holiday period, commencing with the first half in even-numbered years and the second half in odd-numbered years (and to the intent and effect that [X] will spend the Good Friday – Easter Monday period with his parents in alternate years).
(c)From the first Saturday until the second Saturday of each June and September school holiday periods.
(d)For alternating weeks during each Summer school holiday period, commencing with the first Saturday of the holiday in even-numbered years and commencing with the second Saturday in odd-numbered years (and to the intent and effect that [X] will spend the Christmas Eve/Day period with his parents in alternate years).
(e)By telephone or electronic means including Skype or webcam each Wednesday at 6:30 p.m.
For the purposes of paragraph (4) :
(a)The mother or her agent will deliver [X] to the Launceston Children’s Contact Centre, or if agreed between the parties to the residence of the father’s parents, at the commencement of the father’s time and the father or his agent will deliver [X] to the Hobart Children’s Contact Centre at the conclusion of the father’s time.
(b)The times for changeover will be as directed by the coordinators of each of the Centres or as may be otherwise agreed between the parties.
(c)The father must give the mother not less than 48 hours prior notice by email in the event that he elects not to spend time with [X] in accordance with paragraph (4).
(d)[X] will communicate with the mother by telephone or electronic means including Skype or webcam each Wednesday at 6.30 p.m. when spending time with the father.
The parties communicate by way of communication book or email relating to all issues concerning [X]’s care, welfare and development other than when urgent communication is required, which shall be by telephone.
Each of the father and the mother:
(a)Keep each other informed about school events, extra-curricular activities, sports and special events in which [X] in involved and be permitted to attend such activities.
(b)Be authorised to communicate with the staff of any school attended by [X].
(c)Keep the other informed about invitations extended to [X] to attend birthday parties and other special events that fall at times [X] is living with the other parent, so that that parent has the opportunity to take [X] to such events.
Each of the father and the mother:
(a)Immediately inform the other in the event that [X] is involved in any serious accident or suffers from any serious illness or injury.
(b)Forthwith inform the other parent of any medical practitioner with whom [X] is scheduled to consult with or has consulted with and authorise the other parent to make all reasonable enquiries of such medical practitioner concerning [X]’s health.
(c)Forthwith inform the other of any absence from school by [X] in the event of illness or otherwise.
(d)Keep each other informed of their landline telephone number, mobile telephone number and email address, advising the other of any changes to those contact details within 48 hours of such change occurring.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Northcote & Northcote is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 643 of 2009
| MS NORTHCOTE |
Applicant
And
| MR NORTHCOTE |
Respondent
REASONS FOR JUDGMENT
Introduction
These were proceedings between the applicant, Ms Northcote (“the mother”), and the respondent, Mr Northcote (“the father”), which related to the child, [X] born [in] 2004 (“[X]”). [X] was represented by an Independent Children’s Lawyer (“ICL”).
[X] lives with the mother in Hobart. At the time of the hearing of this matter, he was not spending any time with the father, who lives in Launceston. The parties disputed what time he should spend with the father, and whether that time should occur on a supervised basis.
The mother sought to relocate to Queensland with [X]. The father opposed this, and sought an order that [X] remain living in Tasmania.
The mother alleged that the father had committed acts of family violence against her. On the basis of a disclosure that [X] had made to her, she also alleged that in March 2010 the father had sexually abused [X]. Following this disclosure, [X]’s time with the father ceased.
The father was not prepared to spend supervised time with [X] at the Hobart Children’s Contact Centre, as offered by the mother. He had telephone communication with [X] at Christmas 2010 and saw him at the observation session with a family consultant, Ms M, (“Ms M”) on 30 December 2010.
The mother’s view was that [X]’s time with the father would have to await the outcome of any police charges against him and the court’s determination of whether or not unsupervised time with [X] would put [X] at an unacceptable risk of harm.
The father disputed the mother’s allegations at all stages of the proceedings.
Background
The parties began living together in 1998, and were married in 2001. They separated in October 2004 and were divorced in 2007.
Following the parties’ separation, the mother moved with [X] from Launceston to Hobart, where the maternal grandparents were living at that time.
[X] is five years old. He attends [omitted] Primary School where he is in Prep/Grade 1.
The father is 41 years old. He lives in the Launceston region, where he owns a [omitted] business. Since separation he has remarried and separated. He has a relationship with a woman, who lives in Thailand with their baby.
The mother is 36 years old. She lives in Hobart in a house owned by her parents. During the relationship the mother was employed as a [omitted], however she is currently unemployed.
On 9 October 2006 the parties entered into consent orders in respect of [X]. Those orders read as follows:
1. That [X] live with [the mother].
2. That the mother, subject to paragraphs 3 and 4, have sole parental responsibility concerning the child.
3. That the parties have joint parental responsibility in respect of the major long term issues concerning the child.
4. That each party be responsible for the day to day decisions concerning the care of the child when the child is in their respective care.
5. That [the father] spend time with the child each alternate weekend commencing at 9:15 a.m. Saturday and concluding at 4:45 p.m. Sunday but extended to Monday at 4:45 p.m. if a long weekend in the North of the State.
6. That for the purposes of facilitating paragraph 2 above, the father will travel to Hobart for collection of the child from the Hobart Contact Centre, [address omitted] in Tasmania at 9:15 a.m. Saturday and the mother will travel to Launceston for collection of the child at the finalisation of fortnightly contact to collect the child from the Launceston Contact Centre at [address omitted], Launceston (hereinafter referred to as “the Contact Centre Launceston”) in Tasmania at 4:45 p.m. on Sunday.
7. That the father spends time with the child on the child’s birthday each alternate year commencing in 2008.
8. That the father spend time with the child each alternate Christmas holiday period commencing in 2006 for a period of not less than two nights from 10:00 a.m. on the 24th of December, 2006 until 5:00 p.m. on the 26th of December, 2006.
9. That the father spend time with the child each alternate Easter holiday period commencing in 2007 for a period of not less than three nights from and including Good Friday subject to:
(a) the father and child being assessed by Mr J, clinical psychologist; and
(b) Mr J being in agreement that three nights is suitable for [X].
10. For the purpose of contact in paragraphs 5, 7, 8 and 9:
(a) the venue for collection and return of the child will whenever possible be the Contact Centre, Launceston, and in the event the Centre is not available, the residence of
Ms S [address omitted]; and
(b) the mother and the father will reach agreement from time to time about the collection and return times for the child and in default of such agreement, this is to be determined by the Court.
11. That the father have contact with the child on such further and other times as may be agreed between the parties from time to time.
…
By agreement, the parties extended the time [X] spent with the father to include alternate weekends from Friday afternoon until Sunday afternoon.
In September 2006 the mother and [X] consulted Mr J, a psychologist. At the request of the mother’s then solicitor, Mr J prepared an assessment of [X]’s readiness to spend extended blocks of time with the father in Launceston. In that assessment, Mr J diagnosed the mother with Generalised Anxiety Disorder. In March 2007, Mr J began treating the mother for that disorder, and since then has been the mother’s treating psychologist. The mother took anti-depressant medication and medication for anxiety.
In around April 2009, the mother was medically certified as unfit to drive between Launceston and Hobart. From that point, all changeovers took place at the Hobart Children’s Contact Centre.
The mother alleged that on 24 March 2010, [X] disclosed to her that the father had touched him inappropriately. Following the disclosure, the mother reported the incident to the police. The mother annexed to her affidavit a statutory declaration made by her to Tasmania police dated 31 March 2010. [X]’ disclosure was also reported to Child Protection Assessment and Referral Services (“CPAARS”).
The maternal grandmother, Ms E (“Ms E”) and the mother’s step-father, Mr E (“Mr E”) live in [M] in Queensland. The mother’s father, Mr R (“Mr R”), lives in South Queensland. The mother has three brothers, one of whom also lives in South Queensland. She proposed that [X] attend either [omitted] Primary School, or a smaller school, which is 15 minutes drive away.
Proposals
At the commencement of the hearing, the mother proposed that she have sole parental responsibility for [X], that [X] live with her and that she be given permission to relocate with [X] to Queensland. In her Outline of Case she sought:
“orders relating to the terms upon which the child is to spend time with the Respondent father”
On the final day of the hearing, after the evidence of Mr J, Counsel for the mother submitted that there should not be a finding of sexual abuse and that if there was a risk to [X], it was not an unacceptable risk. The mother sought orders that she be permitted to relocate [X]’s residence to Queensland after one year, and that [X] spend time with the father on an unsupervised basis, such time to increase until the date of relocation.
A minute of orders sought by the mother was filed following the hearing. She proposed that:
·She have sole parental responsibility for [X].
·She be permitted to relocate [X]’s residence to Queensland from 15 January 2013.
·[X] spend time with the father over the Christmas school holidays on three occasions, and thereafter each alternate week from Friday at 5:00 p.m. until Sunday at 5:00 p.m.
·[X] spend time with the father during the Easter, June and August school period, and during the Christmas school holidays in 2012.
·The mother or her agent deliver [X] to the Launceston Children’s Contact Centre or to the residence of the father’s parents at the commencement of time and the father or his agent deliver [X] to the Hobart Children’s Contact Centre at the conclusion of time.
·Following the mother’s relocation to Queensland, [X] spend time with the father for periods of up to seven consecutive days in each April, July and October Queensland school holiday period and for one half of the Queensland Christmas school holiday period.
·[X] have regular telephone, email and internet (including Facebook and Skype) communication with the father, and spend time with the father in Queensland at times and locations to be agreed.
·The parties be equally responsible for [X]’s travel costs between Tasmania and Queensland.
·That the parties keep each other informed, amongst other things, about all developments concerning [X] care.
The father sought orders to the effect that:
·The parties have equal shared parental responsibility for [X].
·[X] remain living in Tasmania.
·[X] live with the mother.
·[X] spend time with the father each alternate weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. extending to Monday at 6:00 p.m. if a long weekend, and one half of all school holiday periods.
·The parties equally share travel between Launceston and Hobart.
The ICL sought orders that:
·The parties have equal shared parental responsibility for [X].
·The mother not be permitted to relocate [X]’s residence to Queensland.
·[X] live with the mother.
·[X] spend alternate weekend time with the father in accordance with the father’s proposals.
·If [X] remains in Tasmania, the parties equally share travel between Launceston and Hobart.
Issues
The central issues in these proceedings were:
·Whether there is an unacceptable risk to [X] if he spends unsupervised time with the father, and;
·Whether the mother should be permitted to relocate [X]’ residence to Queensland.
Evidence
The mother relied upon the following documents:
·Her Affidavit filed 19 July 2010.
·Affidavit of Mr E filed 16 June 2011.
·Affidavit of Ms E filed 16 June 2011.
·Affidavit of Mr J filed 29 June 2011.
·Outline of Case.
The mother, Mr E and Ms E were cross-examined.
Mr J prepared a report dated 10 January 2010, which was annexed to his affidavit together with his letter to the mother’s solicitors dated 29 March 2010. Mr J was cross-examined.
The father relied upon the following documents:
·His affidavit filed 16 August 2010.
·Outline of Case.
The father was cross-examined.
The ICL relied upon the following documents:
·Consent Orders dated 9 October 2006.
·Family Report dated 7 January 2011.
·Children and Parents Issues Assessment dated 2 October 2009.
·Affidavit of Ms C filed 15 October 2010.
·Child Protection subpoenaed documents.
·Tasmania Police subpoenaed documents.
·Hobart Children’s Contact Service subpoenaed documents.
The Tasmania police subpoenaed documents included DVD records of an interview conducted with [X] on 31 March 2010 and with the father in October 2010. Both of these recordings were viewed in court.
Ms M prepared a Children and Parent Issues Assessment dated 2 October 2009 and a Family Report dated 7 January 2011.
Ms M was of the view that if the Court finds that [X] is at significant risk of sexual abuse by spending unsupervised time with the father, the mother should be permitted to relocate with [X]. She recommended that [X] have telephone, electronic and postal communication with the father and supervised face-to-face time twice each year. She also recommended that the mother have sole parental responsibility for [X].
If the Court finds that [X] is not at risk of sexual abuse, Ms M recommended that [X] live with the mother in Tasmania and spend time with the father each alternate weekend and half the school holidays. [X] should also have telephone or Skype communication with the father once each week. She recommended that the parents have equal shared parental responsibility.
Ms M was cross-examined. During her cross-examination she said that if [X] remained in Tasmania until his relationship with his father is rebuilt and is robust enough to be maintained by regular holiday visits and those arrangements were in place for at least one year, the relocation could occur, on the basis of those arrangements working smoothly for one year. She said that she would then have more confidence that the arrangements could be sustained from interstate. Apart from this suggestion and expression of confidence about the arrangements for [X]’s time with the father being maintained, I place weight upon Ms M’s recommendations and views. I address this further in these reasons.
Relevant Law
These were child-related proceedings. Pursuant to s.69ZT of the Act, the provisions of the Evidence Act 1995 (Cth) do not apply unless the Court determines that it is appropriate pursuant to the provision contained in s.69ZT.
Section 60CA of the Family Law Act 1975 (“the Act”) provides:
In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Act. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in s.60B(2).
The s.60CC(2) primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
“Abuse” is defined in s.4 as:
in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.
Family violence is defined in s.4 as:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of that persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
In this matter, the mother has alleged that the father has sexually abused [X]. The principles to be applied in a matter involving allegations of sexual abuse are set out in M v M[1]. At 23-25 the High Court held:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with regard to factors mentioned in Briginshaw v Briginshaw…
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations…In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[1] (1988) 166 CLR 69
In Johnson & Page[2], the Full Court of the Family Court outlined the following summary of the principles prepared by the Hon. John Fogarty A.M. emerging from M & M[3]:
[2] (2007) FLC 93-344
[3] Op Cit
1. The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
The Full Court generally agreed with this summary. The Court noted that rather than referring to the “Briginshaw test,” it was now more appropriate to refer to s.140 of the Evidence Act 1995 (Cth).
Approach to be taken in relocation cases
The mother seeks an order that she be permitted to relocate [X]’ residence from Tasmania to Queensland.
In Morgan & Miles[4] Boland J, sitting as the Full Court, considered the relevant principles applicable to relocation cases, prior to the Family Law Amendment (Shared Parental Responsibility) Act 2006. Her Honour referred to cases including AMS v AIF[5], A & A: Relocation Approach,[6] U v U[7] and KB & TC[8]. Her Honour then referred to the legislative framework introduced by the amending Act and concluded:
80. It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate ‘compelling’ reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the ‘right’ of the proposed relocating parent’s freedom of movement”,
[4] (2007) FLC 93-343
[5] (1999) 199 CLR 160
[6] (2000) FLC 93-035
[7] (2002) 211 CLR 238
[8] (2005) FLC 93-224
remain valid.
81. What the legislation now requires is:
- consideration of the competing proposals against the criteria now in s 60CC informed by s.60B;
- if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes (sic) a requirement that matters under s.60CC or s.65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s.60CC factors, and then applying those findings to a consideration of the criteria of s.65DAA to craft appropriate orders.[9]
[9] Op Cit at 80 and 81
In Taylor & Barker[10] the Full Court of the Family Court referred to the same approach to be followed in relocation cases, and held that a consideration of what is in the best interests of the child, as set out in s.60CC of the Act, should be done first, followed by a determination about parental responsibility, pursuant to s.61DA and s.65DAA:
…it would seem only logical that the Court make findings regarding the matters contained in [the s.60CC] sub-sections (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.[11]
The Full Court further held:
the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate and discrete issue, but rather as just one of the proposals of the child’s future living arrangements, in so far as that approach is possible.
[10] (2007) FLC 93-345
[11] Ibid at 62
I turn now to a consideration of the primary and additional considerations pursuant to s.60CC of the Act.
Best interests of [X]
Section 60CC(2)(a)
Section 60CC(2)(a) provides that when considering the best interests of a child, the Court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
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
The term “meaningful” is not defined in the legislation but it has been the subject of a number of judgments. In Mazorski v Albright[12], Brown J considered the dictionary definitions of “meaningful” and then went on to say:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[13]
[12] (2007) 37 Fam LR 518
[13] Ibid at 526-527
In McCall & Clark[14], the Full Court of the Family Court accepted this description and said that the preferred approach to this consideration is to consider the prospective benefit to the child of having a meaningful relationship with his parents.
[14] (2009) FLC 93-405
[X] and the mother have a close and loving relationship. The mother has been his primary carer all his life.
The father has demonstrated that he is a committed parent. The relationship between he and [X] has continued to be close, notwithstanding that they spent no time together over a period of nine months. I consider that the evidence indicated that there is a benefit to [X] having a meaningful relationship with both his parents.
Whether the benefit of a meaningful relationship between [X] and both his parents can be provided, will depend upon the willingness of each of the parties to maintain that relationship and whether the time spent by each parent with [X] can ensure the maintenance of that relationship.
The father’s case was that [X] will not be able to have a meaningful relationship with him if [X] relocates to Queensland, due to the mother’s negative attitude towards him and her inability to see the benefit to [X] of having a relationship with him.
S60CC(2)(b)
Section 60CC(2)(b) provides that when determining the best interests of a child, the Court is required to consider, “the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse neglect or family violence.”
The need to protect a child from the risk of harm must be balanced against the consideration that it is in the child’s best interests to have a meaningful relationship with both parents and in light of the relevant s.60CC(3) considerations.
Ms M interviewed the mother on 12 November 2010 and discussed the sexual abuse disclosure with her. In her statutory declaration, the mother outlined that she had tickled [X]’s bottom to cheer him up while she was trying to settle him for bed. She reported that [X] asked her to stop tickling him. He then told her that his father does not stop tickling his private parts, his “doodle”, when [X] asks him to. She said that [X] demonstrated that his father tickles/fondles his penis. She said that [X] told her the tickling made him feel sad. The mother told Ms M that on the following day she spoke to school staff and the child protection authorities about [X]’s disclosures. She then arranged for [X] to be interviewed by Mr J and she said that he made disclosures of sexual abuse to him. [X] was interviewed by police the following week.
Ms M asked the mother to comment on what her reaction would be if her concerns about sexual abuse were not supported by the court. The mother said that she would find it difficult to understand why [X], a young child, would not be believed. However, she said that if it were determined that [X] should spend time with his father then they would need to “sit down with a psychologist, to help [X] with his anxiety about being with his father.”
Ms M said that she formed the impression that the mother believed what [X] had told her about the father touching his penis. Ms M said that the mother saw the father as unhygienic and said that nothing would surprise her about his behaviour. Similarly, Ms M agreed that the father has a low opinion of the mother and has expressed impatience and frustration about her.
The father described the allegation of abuse as the “ultimate insult.” He reported that he had tickled the inner top of [X] legs to get his attention. He told Ms M that he believes that the mother manipulated [X] to repeat statements about the alleged touching.
The father denied doing anything inappropriate. Tickling of [X] was used by both parents to distract him.
Ms M was of the view that the mother’s attitude towards the father and the context of the disclosure required consideration. She said that the mother views the father’s behaviour through a lens of negativity and suspicion. She therefore tends to believe the worst possible scenario in relation to his behaviour. Ms M said it was possible that [X] may have made negative statements about his father to deflect his mother’s agitation about him not settling for bed.
Ms M said that, in the police interview, [X] repeated that his penis was touched by his father. In her opinion, this repetition by [X] did not make that statement more credible. She said that it was possible that [X] was influenced, however she thought that the more likely scenario was that [X] had been tickled by the father in his genital region in the same way the mother had tickled [X]’s bottom. Her impression was that [X] did not interpret what occurred as abusive, and that he would have added the negativity around the incident, in light of subsequent questioning. Although [X] said that the incident had made him feel sad, Ms M said that he did not act like it made him feel sad. Ms M did not believe that there was sufficient information to draw the conclusion that the father tickled [X]’s penis with sexual intent.
The mother said that tickling was a regular play activity with [X]. She agreed with what the father said in his interview with the police; that it was a way to calm him down and to distract him when he was focused on something. The mother tickled him on his bottom to make him happy to go to bed on the night he made the allegation to her.
When questioned by the ICL, the mother said that face-to-face time for [X] with the father should not occur because of the father’s poor parenting and the sexual abuse. She agreed that her position was that time for [X] with the father should not happen, even if the abuse had not happened, due to the nature of the father’s parenting of [X]. When asked whether there was a good chance that there was some explanation for tickling rather than a sexual connotation, she said that she was unsure. She agreed that her judgment on the issue might be clouded because of what she has experienced about the father. She agreed that it would be best to rely on the experts, Mr J and Ms M. She said that she was possibly prepared to accept Ms M’s view that there might be a non-sexual intent to the tickling.
Since March 2010, Mr J has met with [X] on half a dozen occasions and on two occasions in the five weeks prior to the hearing. Mr J read the Family Report and viewed the subpoenaed police DVD of the interview with [X]. He did not believe that there is an unacceptable risk to [X] in spending unsupervised time with his father. He was aware that since the matter was last before the Court around five months ago, there have been two supervised visits between [X] and the father at the Contact Centre. The purpose of these visits was to break the ice between them, with the intention of moving to unsupervised time. He had given an opinion that supervised time should continue until he had an opportunity to assess [X]. After his assessment was made, there was no issue of the time moving to unsupervised time. He was not aware that the sessions did not move to unsupervised time. He did not provide any recommendation that this should not happen.
Mr J said that around three weeks after the allegation was made in March 2010, he communicated his view to the mother that there was be no unacceptable risk of sexual abuse to [X] by having unsupervised time with the father. He saw nothing in his professional capacity as a psychologist that should concern the mother. He made that clear to her. Mr J was aware that the mother has an ongoing belief that [X] would be at risk in the father’s unsupervised care. He agreed that it is not in [X]’s best interests for her to hold this belief, if that is not supported by the evidence.
After Mr J gave evidence, the mother’s Counsel sought instructions from the mother. She still sought the Court’s permission to relocate with [X] to Queensland, but she proposed that the relocation be deferred for a period of 12 months. During that period [X]’s time with the father could progress to the arrangements that existed before March 2010, with alternate weekend time, building up to block periods. Towards the second half of the 12 month period there could be periods of time of up to seven consecutive days during holiday periods.
During his closing address, Counsel for the mother submitted that the Court should make no finding of sexual abuse and that if there was found to be a risk, it was at the low end of threshold and need not concern the Court.
I accept the father’s evidence that there was no sexual intent from him by tickling [X] in the genital region. I accept the opinions of the expert witnesses, Ms M and Mr J about this issue. Having regard to all the evidence, I do not consider that there is an unacceptable risk of sexual abuse to [X] by spending unsupervised time with the father.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
[X] has expressed some views by showing reluctance to spend time with the father at changeover and distress occasionally. The mother said that she is anxious when [X] spends time with the father. She was clear that she does not promote the relationship between the father and [X] and sees no value in it.
Ms M said that the Court should proceed with caution in interpreting clingy behaviour by [X] to his mother to mean that he does not want to see his father. She explained that this behaviour could be the result of a combination of a number of factors. She said that a parent who suffers from depression may not be as available to a child compared to a parent who is not suffering from depression. Depression can result in non-responsive parenting and can affect a child’s attachment because it affects the parent’s ability to carry out the day-to-day tasks of parenting. She said that there is an increased risk of children suffering from behavioural problems as a result of their early experiences. A child who has attachment problems often demonstrates clingy behaviour, because the child has not experienced the parent being reliably available. The child does not learn basic trust that the parent is available to meet his or her needs. The behaviour could be partly to do with his experiences with the father, or his early experiences and attachment to his mother. It may also be that [X] is picking up on his mother’s anxiety about him spending time with the father.
I am not satisfied that [X]’s expressed views are determinative of his views towards the father. I place weight on the evidence of Ms M of their interactions. Despite not having seen each other in around nine months, she said that they exhibited a healthy, happy and close relationship.
Section 60CC(3)(b)
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
[X] has a close relationship with the mother, to whom he has his primary attachment.
[X] has managed to maintain a happy and loving relationship with the father, although it has not been tested by any lengthy periods of time together. Ms M observed a warm relationship between them even though they had not seen each other for nine months.
The father’s parents live in Launceston. [X] has a relationship with them and he has a relationship with the paternal grandparents.
Section 60CC(3)(c)
the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother does not have a willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father.
During cross-examination, the mother was asked whether she wanted [X] to have a relationship with the father. She believes that it is in [X]’s best interests not to have any relationship or contact with his father. She agreed that in October 2009, before the sexual abuse allegation had been made, she did not want [X] to have a relationship with his father. She agreed that she told Ms M in October 2009 that [X]’s emotional and behavioural problems were largely related to the disruption to his routine by seeing his father. She agreed that she thought that this would improve if [X] did not see the father. She agreed that she does not think the father is much of a role model for [X]. She has been anxious about [X]’s visits with the father from the first time they occurred.
The mother did not agree that the father was a committed parent, which was demonstrated by him doing the travelling from Hobart to Launceston and return each alternate weekend. She could not see any positive factors in [X] having a relationship with his father, apart from spending time with the father’s parents.
The mother agreed that she does not want [X] to have face-to-face time with the father. She said that they would have contact through Skype, Facebook and telephone. She said that [X] would see the father when he is able to protect himself, when he reaches late primary school, or early high school.
She agreed that her attitude to the father is not going to change. She agreed that she will be spending time with her mother and step-father in Queensland. She agreed that if [X] does not see his father for around seven years, it is reasonably likely that they would never have a relationship.
Mr J accepted that the mother has negativity towards the father. He said that [X] would pick up on negativity. He was asked about [X]’s proposed move to Queensland, where he will be in an environment with the mother’s mother and step-father, who have a belief that the father is a paedophile. He was told that the evidence of Ms E and Mr E was that they had no doubt that the father sexually abused [X]. He answered that would be a tough situation and a very difficult one for the father to be promoted in a positive light. Mr J said that it would be particularly destructive to [X]’s relationship with his father for [X] to be in such an environment. He said that [X] is at an age where he cannot process and withstand other people’s beliefs.
Ms M also said that if [X] is cared for by adults who do not like the father and they make that known to [X], this would impact on his attitude towards his father. This would increase if he is not having any positive experiences with the father. Over time he would be likely to mirror these negative attitudes.
There is no evidence to persuade me other than the father has a willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the mother.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The likely beneficial effect of [X] living in Tasmania is that he will continue to spend alternate weekend time with the father. He will also benefit from spending time with the father’s parents.
The likely adverse effect of [X] living in Tasmania is that the mother’s choice of place of residence is restricted. Her evidence was that she wants to move to Queensland so that she will have the support of her family. She said that she feels lonely in Tasmania and believes that she will have a better life in Queensland. She believes she will be able to obtain employment in Queensland.
Ms M agreed that [X] would benefit if both parents have positive mental health and are happy. She said the court would need to balance the positive benefits for [X] if his mother’s happiness and mental health improved with a move to Queensland, against the risk that his relationship with the father would either decline or be non-existent.
The optimal situation for [X] would be for both parents to live in the same city or state. However, the father’s evidence was that he will not move to Queensland as his employment, friends and family are in Tasmania.
The disadvantage of [X] living in Queensland is that he will spend less frequent time with the father. Ms M referred to a range of negative implications for [X] associated with relocation. There would be an adjustment period for him which could result in increased behavioural problems. There are significant risks to the father/son relationship and to his other paternal relationships if relocation occurs, particularly before extended holiday periods with the father are firmly established.
During cross-examination, Ms M said that the mother was reluctant for [X] to spend any holiday time with the father. Ms M’s concern was that if [X] were to relocate with the mother at this time, there was not enough information to be confident that the mother would be willing or able to promote holiday visits. If the mother had not been promoting visits between Hobart and Launceston, Ms M would not be confident that she would be able to promote the visits between Queensland and Launceston. In her experience, it is a lot more difficult for parents to facilitate interstate visits. Children can get sick, they can miss flights or they can be anxious. There can be a number of barriers that can get in the way of facilitating these visits.
As I have indicated, during cross-examination, Ms M further said that if there is no finding of unacceptable risk, [X] should stay in Tasmania at least until his relationship with the father is rebuilt and is robust enough to be maintained by regular holiday visits. She said that after contact had been re-instigated and built up to holiday time, and those arrangements were in place for at least a year, the relocation could occur, on the basis of those arrangements working smoothly for one year. She would then have more confidence that the arrangements could be sustained from interstate. If the father re-established a relationship with [X], she would be reasonably confident that they could maintain a reasonable connection.
I do not share the confidence expressed by Ms M. After hearing the evidence of the mother and her mother and step-father, I am not satisfied that the mother will promote [X]’s time with the father and I do not consider that the arrangements will be sustained from interstate. I do not consider that [X] and the father will have a meaningful relationship if [X] were to live in Queensland.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
There have been difficulties in relation to changeover. The mother has suffered from anxiety and was medically certified unfit to drive. She can now drive, but has not driven long distances.
Subsequent to the hearing, the mother proposed that the changeover occur at the Launceston Children’s Contact Centre or at the father’s parents’ residence at the commencement of time and at the Hobart Children’s Contact Centre at the conclusion of time. This would mean that the parties share the cost and time of the travel.
If [X] lives in Queensland there will be a financial burden on the parents, due to the cost of travel. There was little evidence about the financial circumstances of the parties. The mother is in receipt of government benefits, but believes she can obtain employment in Queensland. The father has a business.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother has failed to consider [X]’s emotional needs by not promoting his relationship with the father. She cannot accept that the father is committed to [X] and can only view him in a negative way.
The mother has been diagnosed with Generalised Anxiety Disorder. She has suffered from depression in the past. Mr J said that although she has improved enormously, there are some problem phobic areas and driving is probably the worst. He agreed that if a parent had suffered from major depression and anxiety since the birth of a child, that person’s parenting capacity would be made more difficult. He said that ADHD is both inherent and a result of the nurture of the child.
Mr J agreed that it would be beneficial for [X] to be parented as often as possible by his father, so that [X] experiences the different parenting styles of his parents. He needs as many resources as possible from both parents scholastically, academically and from the health system generally. If there is consistency of management of [X], he will do much better. He agreed that the use of a communication book would be good for this and for the parents to be able to talk to each other about what was and was not working.
Ms M was of the view that the father has a more active parenting style than the mother and was of the view that it is good for [X] to have outings and time with his grandparents. She believed that there would be a positive impact on his development in getting a breadth of experiences.
There was evidence that the father was not completely attuned to [X]’s emotional and intellectual needs, but he has demonstrated a clear commitment to [X]. He said in his police interview that the birth of [X] was the turning point in his life.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
[X] has been diagnosed with ADHD. Dr J described [X] as intelligent, active and engaging. He described attention and behavioural difficulties which affect his academic performance. The mother has said that [X] is medicated for “anxiety, hyperactivity and some autistic traits.” The principal of [X]’s school noted an all round improvement in [X] since he started taking medication.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I consider that both parents are committed to [X].
I am concerned about the mother’s attitude to the responsibilities of parenthood because she does not promote [X]’s relationship with his father. She does not see any benefit for [X] to have a relationship with his father.
The father’s commitment has been demonstrated by driving the Midlands Highway for years to collect and return [X], although there has been some inconsistency in the time he has spent with [X].
Ms M said that supervised time would have been better for [X] than not seeing his father at all. She qualified that by saying that she did not know how well supervised time would have worked for [X] over a period of one year, as she thought that [X] would have become bored and it may have reinforced to [X] that there was something wrong with the father. Nevertheless, I consider that the father was not responsible by not spending time with [X].
The father currently pays child support to the mother. Although he conceded that, in the past, meeting his child support payments has been an “issue” for him, he said that he has come to an arrangement with the Child Support Agency. The father is in arrears for roughly $1,000.00 in his child support payments, and is currently paying $200.00 per week to discharge that liability.
Section 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
In 2009 the father was charged with assault of Ms N, his then wife. He pleaded not guilty and the charge was dismissed after evidence was heard in the Magistrates Court in March 2010. The father consented to a police family violence order with no admissions. The order expired on 5 December 2010.
The allegations of violence made by the mother against the father in her affidavit were not particularised by her. She told Ms M that the father pushed her up against a wall and pushed her outside when she was naked. During cross-examination, she said that she did not particularise the allegations because a lot of the abuse was psychological and it occurred over a long period of time.
The mother’s parents described controlling and bullying behaviour by the father and incidents of him swearing and yelling. Ms E said that several weeks after [X]’s birth she saw the father holding [X] up, shaking him. She heard her daughter screaming at the father to give [X] to her. [X] was crying and the father was yelling and screaming. The father accused Ms E of interfering. The incident was not reported to child protection authorities. Ms E did not call an ambulance because it did not cross her mind that shaking a baby was dangerous.
The father denied all the allegations of family violence. He admitted that he had a short fuse and that the relationship between him and the mother was very rocky. He admitted that he has a problem with his temper, although it takes him a lot to get wound up. He admitted that he became frustrated after driving from Launceston to Hobart to spend time with [X] and being told that he was not available. He admitted to venting his anger, about the mother not presenting [X], to the staff at the Contact Centre on many occasions and subsequently apologising to the staff. He said that the mother kept putting hurdles in his path to prevent him spending time with [X] and that frustrated him.
Mr J said that he found the father “to be a quite explosive individual who demonstrates low frustration tolerance.” The father disputed that on the basis that he had hardly ever spoken to Mr J.
The evidence indicated that the father has a short fuse. I consider that it is probable that the father lost his temper and yelled at the mother during the relationship and the parties had numerous arguments and disputes. I accept that shortly after [X]’s birth Ms E witnessed an incident between the parents at a time of stress. I am not persuaded that what the father did amounted to abuse of [X], or caused the mother or Ms E to be fearful for [X]’s safety.
The evidence was not sufficient to persuade me that family violence or abuse as defined in s.4 of the Act occurred.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Parenting orders are never final. Whichever orders I make may lead to further proceedings. If the mother is permitted to relocate, there could be further proceedings if she were not to comply with holiday and other time orders. If the mother is not permitted to relocate, then she may pursue relocation in the future.
Sections 60CC(4) and (4A)
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
These sections overlap to some extent with s.60CC(3)(c) and (i). I have considered the extent to which the parents have fulfilled or failed to fulfil their parental responsibilities. I have considered matters which have occurred since separation.
Conclusion
Parental responsibility
The parties seek parenting orders pursuant to Pt VII of the Act. By virtue of s.61DA(1) I am required to apply a presumption that it is in the best interests of [X] for the mother and the father to have equal shared parental responsibility for him.
Pursuant to s.61DA(2) of the Act, the presumption contained in s.61DA(1) does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or,
(b) family violence.
There is insufficient evidence to persuade me that there are reasonable grounds to believe that family violence or abuse occurred. The statutory presumption in s.61DA applies. In my view, the evidence indicates that it is not in the best interests of [X] to rebut the presumption.
An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires genuine efforts to come to a joint decision.[15]
[15] The Act, s.65DAC
The term “major long-term issues” is defined in s.4(1) as follows:
…issues about the care, welfare and development of the child of a long term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s arrangements that make it significantly more difficult for the child to spend with a parent…
If the parties are incapable of making joint decisions, consulting and attempting to reach agreement in order to do so, it is unlikely to be in the best interests of [X] to make an order for equal shared parental responsibility.
An order for sole parental responsibility in favour of a party means that the other party has no rights, responsibilities or authority in respect of major long-term issues for the child, save as expressly ordered.
The parents exhibit mutual disrespect. The mother has a negative attitude towards the father. They do not generally communicate; however, they have demonstrated a capacity to communicate with each other about long-term issues relating to [X]. The mother said that she consulted the father about [X] being prescribed Ritalin in about February 2010. They talked on the telephone, on the internet and through the Contact Centre. The mother liaised with the father prior to [X] starting school. She telephoned the father to let him know which schools were available and offered for him to come to Hobart to look at a school. They talked about private and public schools. I consider that it is in [X]’ best interests for his parents to be encouraged to improve their communication and to jointly exercise the decision-making responsibility.
I consider that the father should be involved in making decisions concerning [X]’s long-term welfare. The use of a communication book, as recommended by Mr J, will assist the parties. I agree with the submission of the ICL that, given the mother’s assessment of the father’s lack of worth in [X]’s life, an order for sole parental responsibility in favour of the mother would mean that [X] would become aware that his father was not involved in making decisions for him. This would not be in his best interests. In my view, [X] should be aware as he becomes older that both parents are responsible for making decisions about his long-term welfare.
Live with and spend time with
As there is to be an order for equal shared parental responsibility I must apply the provisions of s.65DAA of the Act, as explained by the High Court in the case of MRR v GR.[16] I am required to consider whether it would be [X]’s best interests to spend equal time with the parties, and whether it would be reasonably practicable for him to do so.
[16] (2010) 240 CLR 461
I have had regard to the competing proposals of the parties. There is no contest between the parties that [X] is to live with the mother, with whom he is primarily attached. He has lived with her since separation and it is not in [X]’s best interests to spend equal time with each parent. It is not practicable for that to occur due to the distance between the parties’ residences, whether in Tasmania or Queensland.
What amounts to substantial and significant time is set out in s.65DAA(3) of the Act. It includes time that does fall on weekends and holidays and time that not fall on weekends or holidays, and enables the parent to be involved in the child’s routine and events of significance to the child. I consider the evidence indicated that such time for [X] to spend with the father is in his best interests. However, given the distance between the parties’ residences, whether in Tasmania or Queensland, substantial and significant time is not practicable. The father proposed that [X] spend time with him each alternate weekend from Friday at 6:00 p.m., extending to Monday if a public holiday, school holiday and time on special days. This time is arguably not substantial and significant time, as it does not involve time that does not fall on weekends or holidays.[17] However, bearing in mind the practical difficulties, I consider that this time is in [X]’s best interests. It is reasonably practicable for this time to occur if [X] lives in Tasmania, but not if he lives in Queensland.
[17] Vance & Vance [2010] FamCAFC 250 at 56
The mother proposed that over the next twelve months [X] and the father spend time with each other each alternate weekend and during school holidays, before she and [X] relocate to Queensland at the start of 2013.
The evidence indicated that the mother has not promoted the relationship between [X] and the father. The mother can see no benefit of a relationship between [X] and the father. If she moves to Queensland [X] will be in an environment in which his grandparents believe the father is a paedophile.
The mother’s negative attitude towards the father is of much concern and is a significant factor in this matter. The mother was aware of
Mr J’s opinion that unsupervised time was not an issue for him from around April 2010. Until this hearing, she was not prepared to consider that there was a possibility that there was no sexual connotation to the tickling of [X] by the father. I am not satisfied that the mother has the ability to change her negative views about the father.
I am concerned that the mother will not facilitate or promote a relationship between [X] and the father, if she relocates to Queensland with [X]. I have reached that view, notwithstanding that the mother has proposed that [X]’s time with the father return to unsupervised alternate weekend and school holiday time for a period of twelve months until the relocation.
The mother has a right of freedom of movement. She does not need to demonstrate compelling reasons for a move. However her right must be balanced against [X]’s best interests. The mother’s desire to move to Queensland is because her parents live there and she will have support from them. She said that she is lonely in Tasmania and that her employment opportunities as a [omitted] are better in Queensland.
The mother worked at [omitted] until 2009. She is in receipt of government benefits. She said that she has approached an employment agency, which provides staff for [omitted] in the [M] area. She believes that employment would be available to her. There was no evidence of the availability or otherwise of employment for her in Tasmania.
Mr J gave evidence that the mother has suffered from depression, but she is no longer depressed and her anxiety disorder has significantly decreased. He was confident that her phobic responses will continue to improve. He said that a move to Queensland will improve the situation for her in respect of familial and social support. I accept that it is probable that she will be happier having the support of her parents, but this must be weighed with her attitude towards the father and her view that there is no benefit to [X] in spending time with him.
Ms M’s view was that if [X] spends time with the father over the next twelve months to strengthen the relationship, their relationship could reasonably be maintained if [X] lives in Queensland. I accept that could occur if the mother was capable of promoting the relationship. As I have already indicated, I consider that her attitude to the father is negative and unlikely to change. Her mother and step-father believe the father is a paedophile and that [X] is at risk in his care. I am not satisfied that the relationship will be promoted by the mother if [X] lives in Queensland.
I have weighed [X]’s best interests with the right of the mother’s freedom of movement, which is significant but is constrained by the responsibilities of parenthood. I have reached the conclusion that it is in [X]’s best interests for him to live in Tasmania with the mother. This will enable [X] to have the benefit of having a meaningful relationship with both of his parents. I am of the view that his involvement with both parents would not be meaningful to the maximum extent consistent with [X]’s best interests if he were to live in Queensland with the mother.
[X] will spend time with the father each alternate weekend and for the first half of the school holidays, as proposed by the father.
I consider that it is appropriate for both parents to share travel between Launceston and Hobart and will make the order sought by the mother in respect of travel. Whilst she proposed this order continue for twelve months, I consider that the parties should share the travel equally in the future. The mother moved from Launceston to Hobart. She is no longer certified as unfit to drive. The father has been solely responsible for the travel since 2009. It is just and equitable that they share it.
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Baker FM
Date: 9 February 2012
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