Obney and Lagree
[2013] FCCA 1417
•20 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OBNEY & LAGREE | [2013] FCCA 1417 |
| Catchwords: FAMILY LAW – Parenting – whether or not father should be able to relocate to (omitted) with 2 ½ year old child. |
| Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA |
| Waterford & Waterford [2013] FamCA 33 MRR & GR [2010] HCA 4 |
| Applicant: | MR OBNEY |
| Respondent: | MS LAGREE |
| File Number: | DNC 115 of 2012 |
| Judgment of: | Judge Harland |
| Hearing dates: | 22 & 23 July 2013 |
| Date of Last Submission: | 22 & 23 July 2013 |
| Delivered at: | Darwin |
| Delivered on: | 20 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Aust |
| Solicitors for the Applicant: | Bowden McCormack Lawyers & Advisers |
| Counsel for the Respondent: | Ms Bowen |
| Solicitors for the Respondent: | Bowen Lawyers |
ORDERS
That the parents have equal shared parental responsibility for the child X born (omitted) 2010.
That the child live with the father.
That the father be permitted to relocate with the child to (omitted) in New South Wales/Victoria from 22 October 2013.
That until the father relocates with X the orders made on 23 July 2013 shall continue.
That upon the father’s relocation with the child the mother shall spend time with the child at all times as agreed upon by the parties in writing and in default of agreement on the following terms and conditions:
For the first 12 months from the date of these orders:
(a)That the mother provide written notice by email or text message to the father of her intention to spend time with the child no less than 14 days prior to her scheduled visit to the (omitted) area and provide details of her itinerary and proposed residence during her stay;
(b)That the mother be at liberty to visit on four occasions each year for periods of up to 7 days on each occasion;
(c)That the mother shall spend time with the child during each visit on a daily basis for periods from 10.00am to 4.00pm for the first three days and thereafter from 9.00am to 9.00am until conclusion of her visit provided that she shall keep the father informed of the whereabouts of the child;
(d)That upon the father’s relocation and for the purpose of facilitating the relationship between the child and the mother the father shall travel to Darwin or wheresoever the mother lives on one occasion each year for a period of up to 7 days so as to enable the child to spend time with the mother on the following terms and conditions:
(i)The father shall provide written notice by email or text to the mother of his intention to visit Darwin or locale where she lives no less than 14 days prior to his proposed visit and provide to the mother details of his itinerary and proposed residence during his visit;
(ii)The mother shall be at liberty to spend time with the child for periods from 10.00am to 4.00pm for the first day and thereafter from 9.00am to 9.00am on the last day of the father’s visit.
From the conclusion of the first 12 months of these orders until the child’s 5th birthday:
(e)That the mother provide written notice by email or text message to the father of her intention to spend time with the child no less than 14 days prior to her scheduled visit to the (omitted) area and provide details of her itinerary and proposed residence during her stay;
(f)That the mother be at liberty to visit on four occasions each year for periods of up to 10 days on each occasion;
(g)That the mother spend time with the child during each visit on a daily basis for periods of up to 4 hours for the first day and thereafter every day including overnights until the conclusion of her visit provided only that she shall keep the father informed of the whereabouts of the child;
(h)That upon the father’s relocation and for the purpose of facilitating the relationship between the child and the mother the father shall travel to Darwin or wheresoever the mother lives on one occasion each year for a period of up to 7 days so as to enable the child to spend time with the mother on the following terms:
(i)The father shall provide written notice by email or text message to the mother of his intention to visit Darwin or the locale where she lives no less than 14 days prior to his proposed visit and provide to the mother details of his itinerary and proposed residence during his visit;
(ii)The mother shall be at liberty to spend time with the child for periods of up to 4 hours for the first day and thereafter every day including overnights until the conclusion of the father’s visit provided only that the mother shall keep the father advised of the child’s whereabouts and return the child to the father no less than twelve hours prior to his proposed departure.
That upon the father’s relocation with the child the mother shall communicate with the child on the following terms and conditions at all times as agreed between the parties and in default or agreement:
(a)By telephone on request at all reasonable times prior to the child’s bedtime;
(b)By Skype on 2 occasions each week at times agreed between the parties, and failing agreement, on a Wednesday and Sunday evening between the hours of 6.00pm and 7.00pm AEST or ADST as applicable.
That in the event the there is a medical emergency involving the child, each party shall notify the other as soon as practicable or the emergency and provide details of any treating practitioners and/or hospitalisation.
That the mother be restrained and an injunction hereby issued restraining the mother from leaving the child unsupervised during periods that she has the child in her care.
That the parties keep each other advised of their current addresses, telephone numbers and email addresses at all times.
Costs of flights
The father will be responsible for the costs of flights incurred in accordance with order (5)(h).
That in the event the mother is paying child support, the mother will be responsible for the costs of flights for the first visit referred to in orders (5)(b), (5)(f) and (15) and the father will be responsible for the costs of flights for the 3 other visits each year.
That in the event the mother is not paying child support the mother will be responsible for the costs of flights for the first and third visit referred to in orders (5)(b), (5)(f) and (15).
That the mother will be responsible for booking and paying for economy fares and the father will reimburse the mother within 72 hours of receiving the invoice.
From the child’s 5th birthday onwards:
That the mother provide written notice by email or text message to the father of her intention to spend time with the child no less than 14 days prior to her and such time may take place in the city where the mother lives.
That the mother spend time with the child as follows:
(a)For the whole of the April school holidays in even numbered years;
(b)For the whole of the September/October school holidays in odd numbered years;
(c)For the first half of the June/July and Christmas school holidays in odd numbered years and the second half of the June/July school holidays in odd numbered years.
Spend time with arrangements in the event the parents and X live in the same city:
That in the event the mother relocates to (omitted) the mother will spend time with the X during school terms as follows:
(a)Until the child’s 5th birthday:
(i)On alternate weekends from 3.00pm on Friday until 6.00pm on Sunday;
(ii)From 3.00pm on Wednesday until 9.00am on Thursday.
(b)From the child’s 5th birthday:
(i)During school terms:
A.On alternate weekends commencing on the first weekend after school starts from after school on Friday until before school on the following Monday;
B.On Wednesdays from after school until before school Thursday.
(ii)That where collection and drop off is not at school the mother shall collect the child from the father’s home at the beginning of her time and the father shall collect the child from the mother’s home at the end of her time.
(iii)During school holidays:
A.During school holiday periods for half of the April, July and September school holidays, such halves to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years;
B.For half of the Christmas school holiday period such half to be agreed between the parties and in the absence of agreement the first half in odd numbered years and the second half in even numbered years.
That each party advise the other party and keep the other party advised of their current address, email address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven days of such change occurring.
That pursuant to section 65DA(2) 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 Obney & Lagree is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNC 115 of 2012
| MR OBNEY |
Applicant
And
| MS LAGREE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the father seeking permission to relocate with the child to (omitted).
The father is MR OBNEY. He was born on (omitted) 1987 and is 26 years old. He is a (occupation omitted) in the (omitted). He has been with the (omitted) for several years.
The respondent mother is Ms Lagree (aka Ms Lagree). She is employed as a (occupation omitted).
There is one child of their relationship X, born (omitted) 2010.
The parties started living together in (omitted) 2009 and separated on 21 March 2011 when X was 3 months old. The father was on (omitted) in (omitted) when they separated and he returned home in April 2011.
In September 2011 the mother returned to work and X started at day care.
This matter was initially listed for final hearing before Federal Magistrate Turner (as she then was) in November 2012. She refused to determine the matter on a final basis and delivered an interim judgment. At that stage the father’s relocation proposal was vague.
Issues in dispute
The issues in dispute are:
a)Whether or not father should be able to relocate to (omitted) with X;
b)If the father is allowed to relocate, when that relocation should take place;
c)If the relocation is allowed to take place, what time X spends with the mother;
d)If the relocation is allowed to take place, who should pay for the costs of contact;
e)If the relocation is allowed can the mother also relocate and if she does, what time X should spend with her;
f)If the relocation is not allowed what time should X spend with her mother.
Legal Principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (“Cth”) (“the Act”). The court must regard the best interests of the child as the paramount consideration: section 60CA. What it means in the individual cases is informed by a number of statutory provisions.
The objects set out in section 60B(1) help clarify what Part VII aims to achieve when it talks about best interests: section 60B(1). There are also principles that underlie these statutory objections: section 60B(2). Section 65D of the Act gives the court the power to make a parenting order which is defined by section 64.
In deciding whether to make a particular parenting order, section 60CA requires that I must consider the matters set out in section 60CC(2) being the primary considerations and section 60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to section 60CC indicates, are consistent with the first two objects of Part VII, as stated in section 60B that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in section 60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child's best interest being treated as paramount.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child of family violence (section 61DA(2)). The presumption may also be rebutted if the court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (section 61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility I am then required by section 65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time, then substantial and significant time with each parent.
For a parenting order to involve the child spending substantial and significant time with a parent, section 65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
In MRR & GR [2010] HCA 4 the High Court found that section 65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that is it reasonably practicable for a child to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the High Court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.12 If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
The High Court also addressed the relationship between section 65DAA(1) and section 61DA(1) at paragraph [15]:
“Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
Whilst that is the paramount consideration it is not the only consideration. In AMS & AIF (1999) 24 Fam LR 756 at [144] His Honour Justice Kirby said:
“…a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.”[footnotes omitted]
The Full Court in Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 mandated that this legislative approach must be followed in all parenting cases.
The jurisprudence (see B & B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-343) is clear in that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.
In Taylor & Barker (2007) 37 Fam LR 461 their Honours Bryant CJ and Finn J said:
“[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.”
Their Honours went on to say:
“[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.”
In Morgan & Miles [2007] FamCA 1230; (2007) FLC 93-343, Boland J. heard an appeal as a single Judge pursuant to s.94AAA(3) of the Act. At paragraphs [79] to [81], Her Honour identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside.
History of X’s care
For the first 3 months of X’s life her mother was her sole carer. When the father returned from (omitted) when X was 3 months old, the parents implemented an informal shared care arrangement. The mother asserts that she continued to be X’s primary carer. I do not accept her evidence of this point.
Interim orders were made on 5 April 2012 which provided for the parties to have equal shared parental responsibility and an equal shared care arrangement.
The interim orders made on 5 April 2012 were suspended on 18 June 2012. The reasons for this are set out in the interim decision of Turner FM (as she then was) Obney & Lagree [2012] FMCAfam 619. The transcript of that interim hearing is on the court file. The mother was cross-examined.
The orders made on 18 June 2012 provided for X to live with her father and spend time with her mother on Mondays, Wednesdays and Fridays from 3.00pm to 6.00pm and each Sunday from 10.00am to 4.00pm.
On 22 November 2012, further orders were made providing for the mother to spend time with X on Wednesdays from 3.00pm to 6.00pm and on Sundays from 10.00am to 4.00pm. The mother was also able to spend time with X when she was at day care on Tuesdays and Thursdays.
The Father’s evidence
The father relied on two affidavits of his, sworn on 12 November 2012 and 16 July 2013, the affidavit of his partner Ms S sworn 12 November 2012 and his case outline. He also relied on the two family reports.
In the first affidavit the father refers to the extended family he has in the (omitted) area. His parents and maternal grandparents live in (omitted), Victoria. His brother and his wife live in (omitted). He has several aunts, uncles, cousins and his paternal grandmother living in (omitted) and (omitted). His partner’s family live in (omitted). The father says he is close with his family and he misses them. He says X is close to his parents. She is particularly fond of her grandfather who she calls ‘(omitted). His parents have visited him in Darwin and were in court at the hearing. This evidence is unchallenged.
The father says that before he found out that the mother had been leaving X unsupervised they had a flexible shared care arrangement.
Annexure “B” of that affidavit consists of Facebook posts which the mother was cross-examined about. I discuss this later in the judgment.
The father says that since he found out that the mother left X unsupervised, he has not been able to trust the mother. He says he feels angry towards her. He has been seeing a counsellor to work on his trust issues. He is enrolled in the ‘For the Kids’ course at (omitted).
In his affidavit of 16 July 2013 the father says that he was still very angry when he swore his last affidavit and said he was seeking sole parental responsibility. He says he has worked with his counsellor and now believes that it would not be in X’s best interests for his mother to be excluded from the decision making. He says it is important for X to have a meaningful relationship with her mother and that they will learn to make decisions together. It is to the father’s credit that he is candid about these issues.
In January 2012 the father was due to take up a posting in (omitted). Due to the relationship breakdown he sought a (omitted) posting in Darwin. A three year Darwin posting became available and he took up that post.
Turner FM (as she then was) would not consider the father’s application to relocate in November 2012 as he did not have a specific proposal. The father said he was reluctant to apply for a posting without knowing whether he would be able to go or not.
He has now secured a posting to (omitted) which is just outside of (omitted). He sought that posting because it is close to his extended family. The father’s posting starts in January 2014 but he is required to attend a course there which starts in late October 2013.
The posting will advance his career but also will not require him to travel. He will be an (omitted). His speciality is (omitted).
Annexure “F” to the father’s affidavit is a letter from the (omitted) of the father’s (omitted) which confirms the posting to the (omitted) area. It further confirms that it will advance the father’s career as well as giving him family support. The father’s initial request to stay in Darwin to sort out his family issues is also annexed. In that letter he says he is willing to be posted to another unit and to take a reduction in (omitted) or pay group to enable him to stay.
The father says that he and the mother have difficulty communicating. He says the mother blames him for bringing the urgent application which resulted in her overnight time being suspended. Annexure “A” to the father’s affidavit sworn on 16 July 2013 is a series of text messages between the parents. In those messages she complains about the father not allowing her to have overnights with X. Her complaints are unreasonable given the history of this case.
Annexure “G” is an email from the father’s lawyer dated 25 June 2013 referring to the family report which had just been released and asking for details of the mother’s living and work arrangements so that he would consider the family report recommendations. There is a response from the mother’s lawyer which did not answer those queries but simply asked if the father intended to follow the recommendations with respect to X spending overnights with her mother. If these queries had been answered the mother would have been able to start spending overnights with X. The parties handed up consent orders with respect to interim arrangements, including overnight time pending my decision.
My impression of the father is that at times he can be rigid and inflexible. An example of this is when he refused to hand over X to the mother at day-care because according to his watch it was not quite 3.00pm. The father was cross-examined about this incident. He says that he regrets taking that attitude.
The father says he will receive (omitted) in (omitted) and has made enquiries to several day-care centres and there are vacancies. He says X would spend one day a week with her grandparents in (omitted) which is 30 kilometres from (omitted).
The most recent incident which concerned the father took place on the weekend before the hearing. The mother arrived to collect X in a single cab utility. The father raised his concern with the mother that children are not allowed to travel in those types of vehicles “She assured me that, yes, she could, and surely she wouldn’t be that silly to do something like that.” The father says he tried to trust her in that instance. After the mother and child left he looked up the regulations and found that it is illegal to carry a child in a single cab utility. He collected X from the mother's home that afternoon to prevent X being driven in the utility. The mother’s reaction was defensive, perhaps understandably, but it is commonly known that children needing car seats cannot legally travel in the front seat.
It was suggested to the father in cross-examination that he makes communication difficult to be amicable between himself and the mother by ignoring the messages rather than responding to them. The mother's counsel then went on to refer to (omitted). The mother first made a request to spend time with X on (omitted) was at 5.14pm the day before. The father replied at 5.41pm offering the mother time with X from 2.00pm to 5.00pm. The mother responded at 5.42pm that a half day would be nice. The father responded at 5.52pm that he has already made plans and that if she had asked earlier he could be more for flexible. The mother responded at 6.00pm calling the father pathetic and selfish.
It is simply not open on the evidence for the mother's Counsel to suggest that the father had been unreasonable in his responses. It is incumbent on Counsel to ensure that the questions they ask in cross-examination accurately reflect the evidence. Looking at the totality of the messages was unreasonable of the mother to make a request so late the day before and then to be abusive in further messages when she did not get what she wanted. The father pointed out when giving evidence that as a (omitted) of the (omitted), (omitted) is a significant day for him.
It is clear from other messages that the mother expects an answer very shortly after she sends a text. It is also clear that the father finds that annoying and says that sometimes he is in the middle of playing with X or doing something else and he will not always respond straight away which in turn frustrates the mother. The mother’s expectation is unreasonable and unrealistic.
The mother's Counsel also spent time cross-examining the father about his posting to Darwin. At the end of 2011 the father was due to be posted to (omitted) but because of his family circumstances he asked to remain in Darwin and asked for a (omitted) posting for the 12 months. There was no available (omitted) position however the member who had (omitted) was supposed to take up a (omitted) post with the (omitted) and the father was floated into that position as a three-year posting. That posting expires in January 2015. The father gives evidence if he leaves it, he could be posted anywhere in Australia. His preference is to go to the (omitted) as an (omitted) in (omitted).
The father was cross-examined about his proposed order that the mother’s time is suspended if X is home ill with a medical certificate. It is clear from the tenor of his evidence and that his position is that if X is very unwell and needs bed rest he does not think it is in her best interests to move between houses. If it was a minor illness such as foot and mouth he would have no difficulty in X going to her mother’s. He also said that if X was unwell at her mother's place he would be agreeable to X staying longer so that she wouldn't be disturbed. I do not think it is appropriate to make such an order as there is no evidence to suggest that the mother is not able to look after X when she ill. Furthermore, assuming she remains living in Darwin, she will only be seeing X for limited periods throughout the year and some expense to the parties. It is important that X be able to spend that time with her mother even if she is unwell.
The father was also cross-examined about his proposed orders in relation to the time the mother would spend with X in (omitted). The times he proposed were restricted to four hours a day on the first three days. His reasoning for this is that it would be a big shock for X after not seeing her mother for some period of time. The father is concerned about changes to X’s routine. After the first three days the mother would see X every second day. He said the reason for this is to be able to maintain X’s home routine to some extent.
The father proposes to pay for one return flight or one-way flights for the mother each year. He is entitled to one free flight a year from the (omitted) if he is living in (omitted). He is entitled to three flights a year whilst living in Darwin.
The father seeks to relocate in order to advance his career and also to be close to his extended family. He says he has wanted a position with the (omitted) for some time now. It is also a position where he will not be required to travel regularly. He may have to spend 10 days a year in the field. The father says that it was never intended by the (omitted) that he would remain in Darwin for three years.
It was put to the father that if he was to stay in Darwin until X is 4 years old he would seek a posting to enable him to do that. The father agreed that he would do what he could to stay in Darwin. The father would like to remain in the (omitted) for 15 years continuous service. He said that if he had to leave the (omitted) he would look at obtaining other work. At one point he considered the (omitted). For the first 6 months at the (omitted) at (omitted), the father will be (omitted) in (omitted) skills. Thereafter he will (omitted) which is (omitted). The father gave evidence that he has already deferred this course twice. It is a career promotion course.
The father says that X skypes with her paternal grandparents for up to an hour each Sunday. He says she interacts well with her grandparents using skype.
The father gave his evidence in a straightforward and forthright manner.
The father’s de facto partner Ms S was also cross-examined. She currently works part-time as a (omitted) and is studying (omitted). She says if the father is allowed to relocate she will enquire about transferring her position with her employer. She says if she is unable to obtain a transfer she will be able to obtain work in disability care work where she has three years experience. She did not think she will have any trouble obtaining work. She is studying (omitted) externally so this study will not be affected by a move. She also gave her evidence in a straightforward manner.
The Mother’s evidence
The mother relied on the affidavits set out in her case outline and the case outline.
In the mother’s affidavit filed 19 July 2013, the mother complains that the father put his career ahead of his parental responsibilities by refusing to return home from (omitted). As the mother says herself this is only her belief. She does not set out any actual conversations. The father was not cross-examined about this. The mother assumes the father had a choice.
The mother says that she was the primary carer on 18 June 2012. The father spent 3 weeks with X when he travelled to (omitted) to spend time with his extended family.
The mother says she was shocked to receive the father’s urgent application to restrain the mother from taking X out of the Northern Territory. At paragraph [14] of her affidavit she says “I have changed my plans about going to Sydney, until such time as the Father is posted to Sydney, My priority is to be present in X’s life.”
In around November 2011 the mother told the father she wanted to relocate to Sydney. The mother planned to leave before 10 April 2012. She says the agreement was for the father to follow with X once he arranged a positing.
At paragraphs [60] to [76] the mother addresses her supervision of X and her lack of supervision at times. She says when she was on maternity leave she would take X with her when she went shopping but that there were short periods when she went to the shops to get X’s formula whilst X was in her cot asleep. She says she was away for no more than 10 minutes at a time. She does not give any indication of how often she did this.
She says she would also take the dogs for a run while X was asleep. She says she did this “on no more than half a dozen of times” and that she always made sure that she was back within 20 minutes. She says most of the time she took X with her.
The mother says that when she was living in (omitted) she would ask her next door neighbour Ms L to keep an eye on X whilst she went to the shops.
She says there were “a couple of occasions” where she left X unsupervised whilst she was sleeping. The mother went to the shops. She says she was away “for no more than 20 minutes”.
On 18 May 2012 the mother left X at home asleep whilst she went to the gym. She was living at Mr S’s place. She says she was home within 45 minutes. She says that Mr S told her it was not right to leave a child unattended. Although not explicitly stated, this paragraph suggests that the mother left X unattended for this period and did not ask Mr S to babysit X.
On the 19 May 2012 the mother again left X at home whilst she went to the gym. She says she saw Mr H’s car parked outside the house and thought that Mr H and Mr S were at home. She did not ask them to look after X. She says that while she was out she saw Mr S driving his car. She rang him. He offered to look after X. She returned home after about 45 minutes.
The mother says that at the time she did not think there was anything wrong with leaving X unsupervised while she was asleep. She says she now understands that X was at risk of harm and that she deeply regrets her actions. She says she will never leave X unsupervised again.
The mother has completed the (omitted) and the (omitted) parenting courses. She is also attending counselling with CatholicCare NT.
The mother has a bedroom set up for X. The father did not know this until she brought photos to the hearing.
The mother wants an equal shared time arrangement put in place.
The mother was cross-examined about the latest Sunday visit when she arrived in a Ford (omitted) with a car seat in the front for X. Her reaction to the father raising concern about the appropriateness of the vehicle was defensive, which is perhaps understandable but shows her immaturity.
In her affidavit the mother claimed to be a child's primary carer until 18 June 2012 even though there was an equal shared care arrangement.
The mother says she now has a strong network of friends in Darwin and does not want to relocate. She opposes the relocation and raises difficulties about the affordability of flights and accommodation. Neither party has provided any detail about the costs of flights etc. Understandably the mother does not want to take up the parental grandparents’ offer of accommodation at their home in the (omitted) area.
The mother was cross-examined about her living arrangements and her network of friends. She has known most of her friends in Darwin for 2 to 3 years. It was pointed out to her that she was going to leave her friends in April 2012 when she was proposing to move to Sydney. I accept that the mother does not want to leave Darwin having developed a support network of friends.
The mother was also cross-examined about her Facebook usage. She claimed that she never refers to the father on Facebook in her statuses. She was shown copies of some of her Facebook entries which clearly refer to the father although the mother says not by name. However it would be clear to her friends exactly who she was referring to. In the Facebook status to 9 April 2013 said in part “you're the one who left, and now your [sic] playing the ‘care’ card, you won't let me have overnights… Pfft wanker!” The mother is fully aware that overnight was suspended because of her placing X at acceptable risk by leaving her unattended on multiple occasions. Yet it is clear from her Facebook status updates that she blames the father rather than taking responsibility for her own actions despite her protestation during cross-examination that she is not saying it is his fault.
The mother also applied to be a contestant on the Australian version of (omitted) which is a television show which would involve being in Sydney for 11 weeks. This seemed incongruous with her desire to have overnight time, as it would have involved a significant period away from X. She did not appear to appreciate why this would be the problem and simply said in cross-examination that she would have made proper arrangements if she had followed through with it. She withdrew her application to be a contestant.
The mother was cross-examined about the occasions when she left X alone. She previously admitted to the 2012 incidents when she was living with Mr S. There were also earlier incidents when X was a baby. At paragraph [61] and [62] of affidavits in she had to go and get formula and nappies.
The mother was cross-examined about her proposed orders that she seeks. She seeks to have six nights a fortnight straight away. If the father is allowed to relocate she seeks an order for the father to fly X to Darwin every 2 weeks with X spending 2 weeks in Darwin and two weeks in (omitted). The mother was asked if she thought about the impact on X with such an arrangement, she replied that as X would be without her mother she thought he could accommodate it. She was not able to give an answer that focused on X’s needs. Rather her answers were focused on what she perceived as being unfair.
I asked the mother if she had considered relocating as well if the father is allowed to relocate. She says she had not considered relocating as well. She acknowledged that she knew this was a possible outcome.
The mother’s immaturity and lack of insight was apparent when she gave evidence. Her proposals for X to spend time with her do not take into account X’s developmental needs. Her proposals lacked child focus and reflect her own needs.
Her supporting witnesses, Ms E, Ms K. Ms L and Mr M were not required for cross-examination.
I have read those affidavits. The mother lived with Mr M and his partner for 3 months. He is away for work for 2 weeks every 2 weeks. All of the deponents are friends of the mother. They talk in positive terms about their observations of the mother and X. They are not specific in terms of the amount of time they spend together. They are brief and add little in terms of the issues I have to decide. I have no doubt that the mother and X love each other and have a good relationship.
The Family Consultant
The family consultant prepared 2 family reports in these proceedings. The first report dated 20 July 2012. The first report was prepared shortly after the interim hearing when the mother's time was reduced to daytime contact only. Mr V noted that the mother was definite in her view that the child is not too young for a week about shared care arrangement. She also told him that if she had employment and permanent accommodation she would seek to spend more time with X on top of her equal time proposal. She referred to X as being all that she had. She was vague and imprecise and he had trouble establishing what her thinking was.
Mr V noted that the main underlying issue was whether or not X should live mainly with the father or in a week about schedule. He noted that the importance of the father's lack of trust in the mother's parenting capacity and the mother seeking to minimise this as much as possible “simply oblivious to the serious import the court's position about it.”
The father said he would find it extremely difficult to trust the mother. He was convinced that she had lied about how she came to leave X unsupervised and was acutely disappointed in her lack of taking responsibility for it.
The mother raised her plan to relocate to Sydney. She gave the impression that the father's court application had spoiled her plans to move to Sydney and that this was now no longer on the table.
The father referred to his extended family in Victoria. The mother agreed she has no extended family. The family consultant noted that the father presented as “very measured and keen not to overstate his concerns about Ms Lagree’s parenting lapses. His disappointment in Ms Lagree’s performance was palpable, nonetheless. He appeared devoted to X.”
The mother presented as being very proud of her independence and of her parenting. She downplayed her non-supervision of X and sought to validate those instances as acting as responsibly as she could under difficult circumstances.
The family consultant observed X with both parents and noted that she appeared reasonably well bonded to both.
Under the valuation part of the report the family consultant said at paragraph [36]:
“For the foreseeable future (several years), there can only be one parenting outcome for X, namely continuing to live mainly with the father and spending regular daytime hours with her mother. I am not satisfied the mother has taken on board, even in part, the gravity parenting deficit leaving X unsupervised twice. Attempts at justifying the second occasion appeared to be fraught with an acute lack of perspicacity into her own inappropriate attitudes and inappropriate behaviour is evolving from them.”
He went on to say that the mother has not come to terms with her parenting deficits and that she will need to convince the father and perhaps the court that she has changed her parenting behaviours and rebalanced her priorities. He said she would need to attend a parenting course and engage in counselling to address these issues and he would only recommend overnight time after she had done this. The father would also benefit from counselling to address this trust issue with respect to the mother.
Mr V also commented that the parents had moved too hastily to an equal time arrangement in terms of X’s developmental needs given family law research with respect to young children. He expressed the view that X should be primarily with her father and spend fewer of the current shorter periods of time with the mother.
At the time of the preparation for the first report, the relocation proposals were not clear. He said if the mother was to revisit, her plans to relocate to Sydney then her time spent with X would need to be in the city where the father was resident and that it would be some years before X would be able to comfortably spend periods of time with her mother away from the father's residential city.
The second family report dated 21 June 2013. The father was now seeking to relocate to (omitted) in January 2014. Whether or not the relocation is permitted the father thought that X should remain living primarily with him. He told the family consultant that he thought overnights could only take place once the child is old enough to take protective measures such as being able to call him if she needed to. The mother wanted X to spend four days a week with her including overnights. She proposed that if the father relocated, X resided with her and that she would only look at X relocating in the future if she wanted to and that will be at least when X was more than 4 years old. The mother rejected relocating herself.
The underlying ongoing issue was the father's perception that the mother had not progressed in her parenting capacity and re-evaluating her priorities and the mother's belief that she had made a great deal of progress.
Mr V felt that in X’s particular circumstances she had spent time with both parents and most probably developed a focal attachment to both of them.
He observed that the father presented as still being palpably disappointed in the mother's parenting shortfalls. The mother presented as “almost was remorseful about her past parenting lapses and highly confident that they were things of the past.”
Ms T presented as being attuned to X’s needs and having a broad and comprehensive perspective on X’s developmental needs and the complications arising out of her parental relationships.
X engaged warmly with all three adults and appeared to have a well formed focal attachment to each parent but particularly to her father.
Mr V concluded that the usual challenges with relocation of a child as young as X, does not apply in this case because of her particular history. All three adults indicated that X has been considerably emotionally confused. The family consultant is of the view that whilst some of the swapping arrangements would contribute to this, it was more likely that she is absorbing “acute emotional intensity Ms Lagree exudes about her.” The mother interprets this behaviour as X yearning and needing to spend more time with her but it is more likely that because of her limited emotional cognitive development and the intensity of the mother’s strong emotions, it may be difficult for X to manage.
He recommended normalising of the mother's time with X which would involve reducing the amount of swap over and introducing overnight. He expressed the opinion that the father should be able to relocate with X as X has sufficient focal attachment to her mother to be able to cope with long periods apart from her and that the overnight visits would consolidate this attachment. He also said that both parties would be assisted by attending a parenting orders program. He was against any suggestion of X living primarily with her mother and father relocating without X. He was concerned that this would be damaging to X’s social and emotional development.
It was apparent by the time of the hearing that the father wished to relocate in October 2013 not January 2014 because of training he has to undertake. During cross-examination he said that spending overnights until October 2013 would be satisfactory although clearly not as beneficial as the overnights taking place until January 2014.
He said that the mother's proposal of a 2 week about arrangement involving flying interstate is unsustainable and she would be moving into pre-school, also an equal time arrangement involving interstate flights would not be developmentally healthy for X.
He was asked about the proposals for the mother to spend time with X in (omitted). He said that over time and in a way that works for the child, rather than parents, time would be built up so that X would be spending the majority of the days and overnights with her mother during visits. He said there may need to be a longer introductory period rather than a shorter introductory period initially. He was also told that the father is concerned about X maintaining her routine. He said that the child can adjust to routines as long as they are healthy and positive routines. If the routines are radically different then that can become confusing and emotionally destabilising to the child.
Mr V acknowledged that the father's career opportunity feeds into the home environment and the father's frame of mind. It is not an act of choice between the father's career and X spending time with the mother. It is a much more nuanced and subtle thing than that.
He was asked about the mother’s notion that X could relocate after age 4 if she wanted to. He agreed with me that X would not know what this means and it is not something one would give weight to. This is another example of the mother’s immaturity.
At the conclusion of the evidence I suggested that both parties review their proposed orders particularly with respect to what will happen with school holidays when X is older.
Before submissions began Ms Aust provided further instructions from the father. The course the father is due to attend starts on 6 November 2013 and runs until 10 December 2013. The father wishes to be able to move in mid October so that the family can drive to Victoria and settle X into day-care before the course begins. The father also had amended proposed orders which reflected to a large extent the oral evidence. The mother did not change her proposed orders.
The father’s Counsel asserts that an equal time arrangement even if the father were to remain living in Darwin is not reasonably practicable because of the child’s primary attachment to the father and of the mother’s past failings in caring for X and the difficulty the parents having communicating with each other. She further submits that the child will continue to have a meaningful relationship with both parents under his proposal.
With respect to the expense of X spending time with her mother, the father proposed that he is prepared to pay for one return airfare a year and that he would fly X to Darwin once a year at his expense.
The mother’s Counsel submitted that the mother’s proposal was for the relocation to be refused and X to spend equal time with each parent in Darwin. The mother also maintained her position that if the relocation is allowed, X could spend equal time with each parent in 2 week blocks in Darwin and (omitted). The mother said she was willing to consent to an order that she not leave X unattended.
During the course of the mother’s submissions, the father offered to enter into a child-support agreement whereby the mother would not have to pay child support to him. She is currently assessed to pay approximately $226 a month which the mother could use towards flights and accommodation expenses. No evidence was placed before the court about the costs of flights or other expenses.
Application of legal principles to the facts of this case
The Primary Considerations
There is no doubt that X enjoys a meaningful relationship with both her parents. She will continue to enjoy that relationship even though by reason of the orders I make she will not see her mother as regularly. I accept Mr V’s evidence that X is focally attached to both her parents.
Section 60C(2)(b) is relevant because X has been placed at risk of harm due to her mother’s neglect. Whilst the mother regrets these actions and has taken steps to address this by attending parenting courses and receiving counselling, her judgment is still of some concern such as the recent incident concerning the car seat in the front seat.
Relevant Additional Considerations
In this matter I consider the following relevant additional considerations. X is too young to express a view.
Section 60CC(b) nature of the child’s relationship with each parent and significant others including grandparents
The evidence suggests that she has a good relationship with both her parents. She is clearly loved by both although the mother at times has not put X’s interests ahead of her own. The mother is immature and has not always exercised good judgment but I am satisfied that she loves X and has her best interests at heart.
The father’s proposal will mean that X will be able to enjoy more time with her grandparents and extended paternal family. This will be to her benefit. I am satisfied that X enjoys spending time with her grandparents.
Section 60CC(3)(c) – the extent to which each parent has taken or failed to taken the opportunity to participate in making decisions, spending time and communicating with the child
I find that both parents have taken up the opportunities they have been given to participating in decision-making for X’s welfare and to spend time with her.
Section 60CC(3)(ca) – the extent each parent has fulfilled or failed to fulfil their obligations to maintain the child
The mother pays child support in accordance with a child support assessment. The father is otherwise financially responsible for X.
The father has offered to forgo child support so that the mother can use that towards expenses of spending time with X. I cannot make an order to this effect and the parties would need to enter into a binding child support agreement.
I have addressed this in the orders with respect to payments of flights.
Section 60CC(3)(d) – Likely effect of changes in child’s circumstances
The orders I propose to make constitute a major change in circumstances for X. She will be moving to another state and not be able to see her mother as frequently. However she will have the benefit of spending more time with her extended family and will also benefit through her father having a stable posting which will involve minimal travel obligations for the father.
Section 60CC(3)(e) – The practical difficulties and expense of a child spending time
The father earns a greater income than the mother. There will be expenses for the mother in travelling to (omitted) to spend time with X. She will have flight and accommodation expenses. This will lessen once X is old enough to travel but will still involve flight expenses unless the mother chooses to relocate herself.
Section 60CC(3)(f) – The capacity of the parents and any other person (including grandparents) to provide for the needs of the child including emotional and intellectual needs
I have no concerns about the father’s ability to provide for X’s emotional and intellectual needs. The mother has some parenting deficiencies and lacks insight but she has sought assistance through counselling and parenting courses.
Section 60CC(3)(i) – the attitude to the child and the responsibilities of parenthood demonstrated by each parent
The father has demonstrated that he has a sound understanding of his responsibilities and takes them very seriously. The mother has not always understood her responsibilities. The comments I made in the previous paragraph with respect to the mother also applies here.
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family
There are no issues of family violence.
Section 60CC(3)(l) - whether it is preferable to make an order which would be the least likely to lead to further proceedings
With a child of this age there is always the potential for further proceedings. The orders I am making address the circumstances where the mother may choose to live in the same town as the father and X. I accept that the mother does not want to relocate but she does not have the same ties in terms of family and the nature of employment that makes it unrealistic for her to relocate. It is significant that at one stage she was seeking to relocate to Sydney which is closer to (omitted).
The evidence of the family consultant was clear. Even if the parties live in the same city, it is not in X’s best interests for her to live in an equal shared care arrangement. I have included orders which address the time the mother should spend with X if she lives in the same city as the father and X. If the mother decides to relocate she will not need to commence further proceedings.
Parental Responsibility
Both parties seek an order for equal shared parental responsibility. Although the parents have difficulty communicating at times, I find that it is in X’s best interests for both parents to have input into the major decisions concerning X’s care, welfare and development
Equal or substantial and significant time
I am comfortably satisfied that it is not in X’s best interests for there to be an equal time arrangement regardless of whether or not the parents and X live in the same town. The two parents have very different parenting styles and do not communicate well. X is very young and needs the stability of a primary home. The mother’s proposal for equal time, particularly her 2 week about proposal reveals her lack of insight into X’s developmental needs. It is also indicative of the mother being unable to distinguish X’s needs from her own.
Conclusion
For the reasons discussed above, I am of the view that the orders I make at the beginning of this judgment are in X’s best interests.
The parties agreed to interim orders providing for the mother to spend overnights with X.
I am satisfied that the father understands the importance of the mother in X’s life and will ensure that X maintains her relationship with her mother. If the mother obtains Skype facilities it is apparent from the father’s and his parent’s evidence that X is used to and enjoys this type of interaction. It is not a substitute for face to face time but can supplement it.
I will allow the father to relocate from 22 October 2013. This will allow him to start the course he needs to start in November 2013.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 20 September 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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