OLSEN & GOODMAN
[2017] FCCA 2337
•11 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLSEN & GOODMAN | [2017] FCCA 2337 |
| Catchwords: FAMILY LAW – Parenting – one child aged 5 – history of drug use and work as an escort –coercive order sought for mother to relocate with child – right to enjoy Aboriginal culture – primary attachment to the mother – strong attachment to the father – family violence – best interests of child. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), Pt VII |
| Cases cited: Ashby v Slipper [2014] FCAFC 15 D & SV [2003] FamCA 280 McCall & Clark [2009] FamCAFC 92 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] 67 ALJR 170 Oswald & Karrington [2016] FamCAFC 152 Qantas Airways Limited v Gama [2008] 247 ALR 273 U v U (2002) FLC 93 112 |
| Applicant: | MR OLSEN |
| Respondent: | MS GOODMAN |
| File Number: | NCC 1239 of 2016 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 20 & 21 September 2017 |
| Date of Last Submission: | 21 September 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 11 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gorton |
| Solicitors for the Applicant: | Craney Family Solicitors |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | N/A | |
| Counsel for the Independent Children’s Lawyer: | Ms Ticehurst | |
| Solicitors for the Independent Children’s Lawyer: | Slater & Gordon |
ORDERS
All previous orders be discharged.
The parents shall have equal shared parental responsibility for the child X born (omitted) 2012 (“the child”).
The child shall live with the Mother.
Until 25 January 2018, in the event that the Father does not relocate to within 50 kilometres of the Mother’s home, the Father shall spend time with the child as agreed between the parents, but failing agreement as follows:
4.1.For a period of 10 nights each month;
4.2.The Father shall notify the Mother in writing of what times he shall spend time with the child in accordance with Order 4.1, within 7 days of the date of this Order.
From the commencement of the child’s school term in 2018, in the event that the Father continues to reside more than 50 kilometres from the child’s home with the Mother, the child shall spend time with the Father as agreed between the parents, but failing agreement, as follows:
5.1For two weekends each term, from 5.30pm Friday until 3.00pm Sunday, or, should Monday be a public holiday or pupil free day, until 3.00pm Monday, and for the purpose of such weekend time:
5.1.1Such time shall occur on weekends as nominated by the Father to the Mother in writing, no later than the conclusion of school the term prior and shall not be two consecutive weekends.
5.2For up to a further three (3) weekends each school term, from the conclusion of school Friday (or 3.00pm) until the commencement of school Monday (or 9.00am), or until the commencement of school Tuesday (or 9.00am) should Monday be a public holiday or pupil free day, and for the purpose of such weekend time, unless otherwise agreed in writing between the parents:
5.2.1The Father shall be restrained from taking the child more than 60 kilometres from her residence with her Mother, during such periods.
5.2.2Such time (if any) shall occur on such weekends as nominated by the Father to the Mother in writing, no later than the conclusion of school the term prior.
5.2.3Should the Mother so request, the Father must provide to the Mother written documentation to confirm where he proposes to stay with the child, during such weekend time.
5.2.4For one 10 day period provided such 10 day period occurs during school holidays and the Father is not working and further provided that the Father nominates which school holidays in writing to the Mother no later than 30 days prior to the commencement of such time.
5.3From the Term 4 holidays commencing in 2018, each Term 4 school holiday period, as follows:
5.3.1In holidays commencing in even numbered years, from 11.00am the day after school term 4 concludes until 11.00am fourteen (14) days later, and then from 11.00am 11 January until 11.00am 25 January.
5.3.2In holidays commencing in odd numbered years, for a three (3) week period, such time to commence at 11.00am on 2 January and conclude at 11.00am 23 January.
5.3.3During school holidays at the conclusion of Terms 1 and 3, to commence at 11.00am the first day after the term concludes, until 3.00pm the Sunday falling on the midpoint of the holidays.
5.3.4During school holiday periods at the conclusion of Term 2, from 11.00am the first day after the term concludes, until 3.00pm the Saturday prior to Term 3 resuming.
Should the Father relocate so that he resides within 50 kilometres of the Mother’s residence with the child, the child shall spend time with the Father as agreed, but failing agreement as follows:
6.1.Each alternate week, from the conclusion of school Friday (or 3.00pm), until the commencement of school Monday (or 9.00am), such time to commence the first Friday after the Father has relocated.
6.2.Each other alternate week, from the conclusion of school Monday (or 3.00pm) until the commencement of school Tuesday (or 9.00am).
6.3.Upon the child commencing school, during end of Terms 1, Term 2 and Term 3 New South Wales school holidays:
6.3.1.In even numbered years, from the conclusion of school (or 3.00pm) the last day of term until 5.00pm the middle Saturday of the holiday period.
6.3.2.In odd numbered years, from 5.00pm the middle Saturday of the holiday period until the commencement of school (or 9.00am) the first day school resumes the following term.
6.3.3.During such school holiday periods, Orders 6.1 and 6.2 are suspended.
6.4.From the commencement of the Term 4 New South Wales school holidays in 2019 and continuing each Term 4 holiday thereafter:
6.4.1.In even numbered years, from 9.00am the day after the child is last required to attend school for Term 4, until 9.00am 21 days thereafter.
6.4.2.In odd numbered years, from 9.00am the twenty-first (21st) day after the last day of school term time, until 3.00pm the day prior to when the child is first required to attend school for Term 1.
6.5.Each even numbered year, from 9.00am 24 December until 1.00pm 25 December.
6.6.Each odd numbered year, from 12.00pm (noon) 25 December until 5.00pm 26 December.
6.7.Each year, from 9.00am Father’s Day until commencement of school the following morning (or 9.00am should the child not attend school on such day).
6.8.On the child’s birthday, from the conclusion of school (or 3.00pm should the child not attend school on such day) until 6.00pm, but only if the child’s birthday falls on a day that the child is not already spending any time with the Father pursuant to these Orders.
6.9.Such other times as agreed between the parties.
Unless otherwise agreed, the child shall live with the Mother at all other times.
For the avoidance of doubt, for the purpose of these orders school holiday periods commence upon the conclusion of school the last day a child is required to attend school for such term and conclude upon the commencement of school on the first day a child is required to attend school the following term.
Unless otherwise agreed, to effect the child spending time with the Father:
9.1.For the purpose of orders where the Father does not reside within 50 kilometres of the Mother’s home:
9.1.1.At the commencement of time, Father or his nominee shall collect the child from (omitted), save for where the orders provide for the Father to collect the child from school, or, if the child is not at school at the time of the changeover, from the Mother’s residence.
9.1.2.At the conclusion of time, the Father or his nominee shall deliver the child to the Mother or her nominee at (omitted), or where the orders provide for the Father to deliver the child to school or day care, at school or day care, or if the child is not to commence school or day care at the time of the changeover, to the Mother’s residence.
9.2.For the purpose of orders made should the Father reside within 50 kilometres of the Mother:
9.2.1.At the commencement of time, the Father or his nominee shall collect the child from day care or school or, if the child does not attend on day care, pre-school or school on such day, from the Mother’s residence.
9.2.2.At the conclusion of time, the Father or his nominee shall deliver the child to day care or school, or, if the child does not attend day care or school the Mother or her nominee shall collect the child from the Father’s residence at the conclusion of time.
Each parent shall have telephone or skype communication with the child as agreed between the parents but failing agreement, between 6.30 pm and 7.30 pm each evening, and for the purpose of such call:
10.1 The parent with whom the child is not with shall initiate the call.
10.2.The parent with whom the child is with shall do all acts and things to facilitate the call, and give the child privacy during the call.
Both parties shall provide to the other notification within seven days of any change of contact telephone number or address and the details of any new contact telephone number or address, and keep the other informed of any current landline and mobile phone numbers.
Each party must ensure that the other party is kept informed as soon as is reasonably practicable of:
12.1.Any medical problems or illness suffered by the child;
12.2.Any medication that has been prescribed for the child;
12.3.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, or counsellor regarding the child, and for such purpose, each party is permitted to make such appointments.
These Orders represent sufficient authority for each party to obtain any medical information in relation to the child as held by any treating medical practitioner or practitioners.
These Orders represent sufficient authority for each party to:
14.1.Obtain from any day care or school attended by the child, reports, photographs or any other notices relating to the child;
14.2.Subject to the direction of the school or day care, attend the school or day care of the child at all reasonable times.
Each party is restrained by way of injunction from denigrating the other in the presence or hearing of the child and will remove the child from the presence of any third party denigrating the other party.
Each parent shall do all acts and things to enrol in a parenting after separation course within twenty eight (28) days of the date of these orders, and complete such course, and upon completion, forward a copy of their certificate to the other parent.
Each parent shall be restrained from using illegal drugs during periods of time that the child is in their care, and twelve (12) hours prior thereto.
IT IS NOTED that publication of this judgment under the pseudonym Olsen & Goodman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1239 of 2016
| MR OLSEN |
Applicant
And
| MS GOODMAN |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is a parenting matter concerning a child X born (omitted) 2012, aged 5 at the time of trial.
The father, aged 35, commenced proceedings on 27 August 2015. The mother is aged 26.
The parents commenced cohabitation in (omitted) 2011, married on (omitted) 2012 and separated on a final basis on 30 June 2014.
At the time of separation the family lived in Western Australia. The mother did not work and the father worked as a fly in fly out worker that required him to be absent for a period of two weeks at a time.
The Family Court of Western Australia made Orders on 17 October 2014 that effectively provided for the child to live with the mother for two weeks and the father for one week and prevented either party from relocating from Western Australia until 31 December 2016.
Orders were working well until approximately June 2015. At that time the father became concerned about the mother’s behaviour.
It transpired that the mother had been using drugs and was working as a prostitute.
The father took protective steps and retained the child in August 2015.
Both the paternal grandparents and the maternal grandmother and maternal aunt assisted the father by providing evidence in seeking that the child reside in New South Wales so that the child was safe and the mother could deal with and resolve her drug dependence.
The Family Court of Western Australia heard the interim application on 22 December 2015 and made orders on 24 December 2015.
At that time the child had not seen the mother since 1 August 2015, save for supervised time in November 2015.
At the time of the interim hearing the mother tendered a proposed minute and the court accepted the mother’s proposal.
The interim orders provided that the child live with her parents:
1.While the father is away at work with the mother provided that she live with her mother at (omitted), New South Wales;
2.When the father is not at work, with the father in (omitted), New South Wales;
3.If the father stopped working, with each parent on a week-about basis.
The court made other supplementary orders.
The child and mother have remained living in (omitted) since early January 2016. In early April 2016 the matter was transferred to the Newcastle registry.
The father continued to work in Western Australia until 31 March 2017, flying to and from (omitted) to spend time with the child.
The father now works near (omitted), approximately eight and a half hours drive from his residence at (omitted) (near (omitted)).
The father works two weeks in (employment omitted) away and two weeks off back in (omitted) spending time with the child.
Orders were made in June 2016 dispensing with the requirement for the mother to live with her mother.
Both the father and Independent Children’s Lawyer have representation, the mother is self-represented.
Orders sought
The father sought the following orders:
1.That the parties have equal shared parental responsibility for the child X born (omitted) 2012.
2.Provided the mother relocates her place of residence to an area within 20 minutes of the father’s present address at (omitted), NSW by not later than 30 November 2017, and except as otherwise provided for in these orders, the child live with the father and mother as follows:
a)While the father is at work ,with the mother;
b)When the father is not at work, with the father;
c)If the father ceases work, then with each party on a week about basis or as otherwise agreed.
3.In the event that the mother refuses or fails to relocate her address pursuant to order 2 above, then the child will live with the father and spend time with the mother as agreed between the parties but failing agreement as follows:
a)During the school term, each alternate weekend from 6.00pm Friday until 5.00pm Sunday.
b)For half of the New South Wales school holidays in Term 1, 2 and 3, from 5.00pm on the last day of the school term until 5.00pm on the 7th day of that school holiday period.
c)For 14 days during each Christmas school holiday period as follows:
(i)From 5.00pm on Christmas Eve in school holiday period which commences in a year ended in an even number until 5.00pm on the 14th day thereafter; and
(ii)From 5.00pm on 2nd January in each school holiday period which commences in a year ending in an odd number until 5.00pm on the 14th day thereafter.
4.The child is to be enrolled to commence school in 2018 in a public school agreed to by the parents, and failing agreement, in the public school closest to the mother’s place of residence in the (omitted)/(omitted) region in accordance with Order 2.
5.In the event that Mother’s Day does not fall on a day during which the child is in the mother’s care pursuant to these orders, the mother is to spend time with the child from 5.00pm on the Saturday of that weekend until 5.00pm on Mother’s Day.
6.In the event Father’s Day does not fall on a day which the child is in the father’s care pursuant to these orders, the father is to spend time with the child from 5.00pm on the Saturday of that weekend until 5.00pm on Father’s Day.
7.Each parent can spend two hours with the child on her birthday each year, by agreement between the parties, and failing agreement from 5.00pm to 7.00pm on such day with the parent who would not otherwise have the care of the child on that day pursuant to these orders.
8.That in order to facilitate time with the child prescribed under these orders, the mother or her agent will collect the child from the father’s residence at the commencement of each period of time with her, and the father or his agent will collect the child from the mother’s place of residence at the commencement of each period of time the child is to spend in his care.
9.Any agreed variation to the location, date and times of a changeover, or telephone communication, or school holiday time, will only occur if such variation is evidenced in writing detailing the changes and signed by both of the parties.
10.Each party shall be permitted to communicate with the child by telephone (including Skype or Facebook video) once each day the child does not spend time with that party, between 6.30pm and 7.30pm with the parent in whose care the child is on that day to instigate the communication with the other parent.
11.Each parent is to maintain a full set of clothing and footwear for the child (including school uniforms, sports uniforms and footwear) at their own residence to minimise the items needed to be exchanged to allow the child to spend time with each parent pursuant to these orders.
12.Each party will keep the other informed of their current address, and mobile telephone number and at least one email address at which he or she is contactable, and advise the other of any proposed change to such details at least fourteen (14) days prior to such change occurring.
13.Each party is restrained from denigrating the other party to or in the presence of the child.
14.Each party shall advise the other of any hospitalisation of them or the child as soon as is practicable.
15.Each party shall provide such requisite consents and/or authorities to allow the provision to the other parent of any medical reports relating to the child (at the expense if any of the parent requesting the information).
16.Each party shall send any prescribed medications and or scripts for medication with the child when the child is to stay in the care of the other parent and each parent will ensure that the child is given and prescribed medication in accordance with medication instructions.
17.That both parties shall ensure that the other is listed as an alternate contact with the child’s school and medical practitioners.
18.That each party shall provide such requisite consents and/or authorities required by any school the child may from time to time attend, to enable the other parent to receive reports, school photographs or any other notices relating to the child at the expense of the parent requesting the information, and to permit both parents to attend the school of the child for the purpose of attending special events involving the child and/or to speak to the teachers of the child concerning the academic performance of the child.
The mother sought the following orders:
1.The paternal mother (sic) Ms Goodman reside in (omitted).
2.The primary living location for X be with her paternal mother (sic) in (omitted).
3.X have shared care between the paternal parents (sic), based on the current FIFO work roster 2 on 2 off of the paternal father Mr Olsen.
4.If the mother decides to move from the (omitted) region, the distance that relocating is between (omitted) and (omitted).
5.X attend schooling, which she is currently enrolled in, (omitted) preschool in (omitted).
6.Upon transitioning to primary school X attend (omitted) Primary School in (omitted), which she is enrolled in for the year 2018.
7.If the paternal mother moves from her current residence (omitted), upon moving X will be enrolled in the closest school to the residence.
8.If the Paternal Mother moves from the (omitted) Region, X be enrolled into a new school, within a two week period to ensure her school isn’t disrupted.
9.School fees be split 50/50 between both parental parents.
10.When X attends Primary School in 2018, the Roster of 2/2 no longer will be in effect.
11.The paternal father has custody, on his rostered weekend off, where X can travel from the Friday after school, til the Sunday lunch time, where changeover take place.
12.The changeover destination remains at (omitted) .
13.If upon moving the changeover point be discussed between the paternal parents (sic) of the half way point.
14.When rostered off from work, the paternal father has rights to travel to (omitted) and spend time with X, where if accommodation is found whilst in (omitted) X is to stay with the paternal father, as long as she attend school.
15.School holidays custody is given to the paternal Father.
16.If the Family of the paternal father wish to have time with X whilst the father is away at work during the holiday periods, have the request in written writing to the paternal mother (sic).
17.Whilst X is in the care of either party, X be allowed to travel to different states within Australia for holidays or weekends away, providing the other party that at the time doesn’t have X is informed of her whereabouts that it does not interfere with changeover time or schooling.
18.If the care of X wished to be extended for time with either party, it must be agreed to within writing prior to initial changeover with the other party.
19.Upon the request of X travelling outside Australia or where a passport is required with either paternal parent (sic), or family member, permission is needed, with proof of return tickets or information prior to departure.
20.Phone calls/skype/telephone time between 7.00pm – 7.30pm each night.
21.When X wishes to start a sporting activity, the payment be split 50/50 between parental parents. This includes swimming lessons.
22.If X needs education support the payment be split 50/50.
23.If health issues/medical arise for X that are not covered by Medicare, the payment be split 50/50.
The Independent Children’s Lawyer sought the following orders:
1.All previous orders be discharged.
2.The parents shall have equal shared parental responsibility for the child X born (omitted) 2012, (“the child”), subject to Order 3.
3.Should the Court Order that the child shall live with the mother as restricted by Order 5, the mother shall consult with the father with respect to the school X shall attend from 2018, but in the event that the parents cannot agree on a school by 1 December 2017, the mother shall be authorised to determine this issue.
4.The child shall live with the mother.
5.The mother shall be restrained from moving the child’s residence more than a 50 km radius from the home of her parents (currently at (omitted)), unless otherwise expressly agreed to by the father, in writing.
6.Until 25 January 2018, in the event that the father does not relocate to within 50 km of the mother’s home, the father shall spend time with the child as agreed between the parents, but failing agreement as follows:
6.1Each calendar month, for one period of 6 nights and one period of 3 nights;
6.2The father shall notify the mother in writing of what times he shall spend time with the child as per 6.1, within 7 days of the date of this Order.
6.3A minimum of three nights must exist between each nominated visit.
7.From the commencement of the child’s school term in 2018, in the event that the father continues to reside more than 50 km from the child’s home with the mother, the child shall spend time with the father as agreed between the parents, but failing agreement, as follows:
7.1For two weekends each term, from 5.30 pm Friday until 3 pm Sunday, or, should Monday be a public holiday or pupil free day, until 3 pm Monday, and for the purpose of such weekend time:
7.1.1.Such time shall occur on weekends as nominated by the father to the mother in writing, no later than the conclusion of school the term prior.
7.2For up to a further 3 weekends each school term, from the conclusion of school Friday (or 3 pm) until the commencement of school Monday (or 9 am), or until the commencement of school Tuesday (or 9 am) should Monday be a public holiday or pupil free day, and for the purpose of such weekend time, unless otherwise agreed in writing between the parents:
7.2.1The father shall be restrained from taking the child more than 60km from her residence with her mother, during such periods.
7.2.2Such time (if any) shall occur on such weekends as nominated by the father to the mother in writing, no later than the conclusion of school the term prior.
7.2.3Should the mother so request, the father must provide to the mother written documentation to confirm where he proposes to stay with the child, during such weekend time.
7.3From the Term 4 holidays commencing in 2018, each Term 4 school holiday period, as follows:
7.3.1In holidays commencing in even numbered years, from 11 am the day after school term 4 concludes until 11 am 14 days later, and then from 11 am 11 January until 11 am 25 January.
7.3.2In holidays commencing in odd numbered years, for a three week period, such time to commence at 11 am on 2 January and conclude at 11 am 23 January.
7.4During school holidays at the conclusion of Terms 1 and 3, to commence at 11 am the first day after the term concludes, until 3 pm the Sunday falling on the midpoint of the holidays.
7.5During school holiday periods at the conclusion of Term 2, from 11 am the first day after the term concludes, until 3 pm the Saturday prior to Term 3 resuming.
8Should the father relocate so that he resides within 50 km of the mother’s residence with the child, the child shall spend time with the father as agreed, but failing agreement as follows:
8.1.Each alternate week, from the conclusion of school Friday (or 3pm), until the commencement of school Monday (or 9 am), such time to commence the first Friday after the father has relocated.
8.2.Each other alternate week, from the conclusion of school Monday (or 3 pm) until the commencement of school Tuesday (or 9 am).
8.3.Upon the child commencing school, during end of Terms 1, Term 2 and Term 3 NSW school holidays:
8.3.1.In even numbered years, from the conclusion of school (or 3pm) the last day of term until 5 pm the middle Saturday of the holiday period.
8.3.2.In odd numbered years, from 5 pm the middle Saturday of the holiday period until the commencement of school (or 9 am) the first day school resumes the following term.
8.3.3.During such school holiday periods, Orders 8.1 and 8.2 are suspended.
8.4.Upon the child commencing school, during the Term 4 NSW school holidays:
8.4.1.In even numbered years, from 9 am the day after the child is last required to attend school for Term 4, until 9 am 21 days thereafter.
8.4.2.In odd numbered years, from 9 am the 21st day (3 weeks) after the last day of school term time, until 3 pm the day prior to when the child is first required to attend school for Term 1.
8.4.3.During such school holiday periods, Orders 8.1 and 8.2 are suspended.
8.5Each even numbered year, from 9 am 24 December until 1 pm 25 December.
8.6Each odd numbered year, from 12 noon 25 December until 5 pm 26 December.
8.7Each year, from 9 am Father’s Day until commencement of school the following morning (or 9 am should the child not attend school on such day).
8.8On the child’s birthday, from the conclusion of school (or 3 pm should the child not attend school on such day) until 6 pm, but only if the child’s birthday falls on a day that the child is not already spending any time with the father pursuant to these Orders.
8.9Such other times as agreed between the parties.
9.Unless otherwise agreed, order 8 shall be suspended, and the child shall live with the mother on the following occasions:
9.1.Each odd numbered year from 9 am 24 December until 1 pm 25 December.
9.2.Each even numbered year from 1 pm 25 December until 5 pm 26 December.
9.3.Each year, from 9 am Mother’s Day until commencement of school the following morning (or 9 am should the child not attend school on such day).
9.4.On the child’s birthday, from the conclusion of school (or 3 pm should the child not attend school on such day) until 6 pm, but only if the child’s birthday falls on a day that the child is not already living with the mother pursuant to these Orders.
10.For the avoidance of doubt, for the purpose of these orders school holiday periods commence upon the conclusion of school the last day a child is required to attend school for such term and conclude upon the commencement of school on the first day a child is required to attend school the following term.
11.Unless otherwise agreed, to effect the child spending time with the father:
11.1.For the purpose of Order 6 and 7 (when the father does not reside within 50 km of the mother’s home),
11.1.1.At the commencement of time, the father or his nominee shall collect the child from (omitted), save for the purpose of 7.2, the father shall collect the child from school, or, if the child is not at school at the time of the changeover, from the mother’s residence.
11.1.2.At the conclusion of time, the father or his nominee shall deliver the child to the mother or her nominee at (omitted), or for Order 7.2, the father shall deliver the child to school or day care, or if the child is not to commence school or day care at the time of the changeover, to the mother’s residence.
11.2.For the purpose of Orders 8 and 9 (the father resides within 50 km of the mother)
11.2.1.At the commencement of time, the father or his nominee shall collect the child from day care or school or, if the child does not attend on day care, pre school or school on such day, from the mother’s residence.
11.2.2.At the conclusion of time, the father or his nominee shall deliver the child to day care or school, or, if the child does not attend day care or school the mother or her nominee shall collect the child from the father’s residence at the conclusion of time.
12.Each parent shall have telephone or skype communication with the child as agreed between the parents but failing agreement, between 6.30 pm and 7.30 pm each evening, and for the purpose of such call:
12.1.The parent with whom the child is not with shall initiate the call.
12.2.The parent with whom the child is with, shall do all acts and things to facilitate the call, and give the child privacy during the call.
13.That both parties will provide to the other notification within seven days of any change of contact telephone number or address and the details of any new contact telephone number or address, and keep the other informed of any current landline and mobile phone numbers.
14.Notwithstanding Order 1, that each party must ensure that the other party is kept informed as soon as is reasonably practicable of:
14.1.Any medical problems or illness suffered by the child;
14.2.Any medication that has been prescribed for the child;
14.3.Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, or counsellor regarding the child, and for such purpose, each party is permitted to make such appointments.
15.These Orders represent sufficient authority for each party to obtain any medical information in relation to the child as held by any treating medical practitioner or practitioners.
16.These Orders represent sufficient authority for each party to:
16.1.Obtain from any day care or school attended by the child, reports, photographs or any other notices relating to the child;
16.2.Subject to the direction of the school or day care, attend the school or day care of the child at all reasonable times.
17.Each party be restrained from denigrating the other in the presence or hearing of the child and will remove the child from the presence of any third party denigrating the other party.
18.Each parent shall do all acts and things to enrol in a parenting after separation course within 28 days of the date of these orders, and complete such course, and upon completion, forward a copy of their certificate to the other parent.
19.Each parent shall be restrained from using illegal drugs during periods of time that the child is in their care, and 12 hours prior thereto.
The issues
The issues are:
1.Whether the mother should be ordered to move to (omitted).
2.With whom the child should live in the event the mother is not required to move.
3.How much time should the child spend with the parent she does not live with, taking into account where the parents are currently living, the fact that the child commences school in 2018 and if either parent voluntarily moves.
4.Whether the mother poses a risk to the child due to a risk that she might relapse into drug use or working as an escort.
Material
The father relies upon:
a)Amended Initiating Application filed 24 August 2017;
b)His affidavit filed 24 August 2017;
c)Affidavit of Mr T filed 25 August 2017;
The mother relies upon:
a)Response filed 23 August 2017;
b)Case information document filed 23 August 2017;
c)Minute of order filed 23 August 2017;
d)Her affidavit filed 23 August 2017;
e)The Affidavit of the maternal grandmother filed 23 August 2017.
The Independent Children’s Lawyer relies upon:
a)The Family Report prepared by Senior Family Consultant Ms D dated 14 December 2016.
The law
These proceedings fall within Part VII of the Family Law Act 1975 (Cth).
Accordingly, with reference to the objects and principles set out in section 60B and regarding the interests of the child as my paramount consideration, pursuant to section 60CA, I must make orders that I determine are in the best interests of the child.
In determining what is in the best interests of the child, I must consider the matters set out in subsections (2) and (3) of section 60CC.
Both parents seek an order for equal shared parental responsibility. Accordingly, I must have regard to section 61DA. In the event I make an order for equal shared parental responsibility the provisions of section 65DAA are triggered and I must have regard to the matters set out therein.
It is well settled law that I am not bound by either party’s proposal.[1]
Addressing the issues
[1] U v U (2002) FLC 93 112.
Whether the court should order the mother to relocate
The mother does not wish to leave the (omitted) region. The mother gave evidence that she receives support from her family, she gave evidence that was not in dispute that she visits her mother on a daily basis and she lived with her sister until recently and intends to live with her sister again in the near future.
The mother also gave evidence that she has been seeing Dr S, a clinical psychologist on a weekly basis until approximately two months before the trial when she stopped seeing him regularly.
As I understand her evidence he is available for her should she seek further assistance from him.
In those circumstances, the father is seeking a coercive order.
In Oswald & Karrington[2] at paragraphs 16 and 17, their Honours said:
“It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range” and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.
Consequently, as emphasised by the Full Court in D and SV[3] and by the Full Court in Sampson and Hartnett (No 10) (supra)[4], there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.”
[2] [2016] FamCAFC 152.
[3] [2003] FamCA 280.
[4] [2007] FamCA 1365.
The father submits through Counsel that the “rare” and “extreme” factor is that this child has lived in an equal time arrangement since she was 18 months old. Furthermore, the father argues that the child is primarily attached to both parents. It is the father’s case that in the event the mother were ordered to move, the child should live in a shared care arrangement organised around his work commitments.
Post separation and until the father retained the child for approximately 6 months, the child lived predominantly with her mother. During the relationship the child was with her mother at all times whilst the father worked away and with both parents when he did not for periods of up to two weeks at a time.
Currently the child lives in an equal time arrangement spending half of that time in (omitted) and the other half in (omitted). The time is split two weeks with the mother and two weeks with the father, again, subject to the father’s work commitments.
I do not consider those factors amount to “rare” and “extreme” factors sufficient to warrant the exercise of my discretion to make a coercive order.
The father argues that the child is primarily attached to both parents.
The court orders made in October 2014 provided for the child to live with her mother predominantly. The child has always lived with her mother, but for the six month period when the child was moved to New South Wales to live with her paternal grandparents. During that time, she saw her father in accordance with his work commitments up to two weeks at a time. In my view, her relationship with her father did not change during that six month period as she was seeing her father at a time consistent with the orders made in October 2014.
The mother told the Senior Family Consultant Ms D that when the child returned to her care the child was “clingy” and had separation anxiety for approximately three months. The mother told the Senior Family Consultant that the child lost her confidence and her learning was reduced. The mother further said that the child was settled now, enjoyed day care in the (omitted) region and had two close friends there.
At paragraph 81 of the Family Report, the Senior Family Consultant opines:
“It appears the mother may be her closest relationship. It is likely she has spent more time with her given the father’s working arrangements and X was observed to be very engaged with the mother.”
Under cross-examination the Senior Family Consultant Ms D opined:
“The mother is probably the primary attachment figure” and “the child probably missed her mother more at times.”
That evidence satisfies me that the mother is the child’s primary attachment.
Having so found, I am not satisfied that a rare factor exists in this case that the child is primarily attached to both of her parents.
In those circumstances, I am not satisfied that the exercise of my discretion to make a coercive order is warranted.
Whether the mother poses a risk to the child due a risk that she might relapse into drug use or working as an escort.
Section 60CC(2) of the Act sets out the primary considerations. Section 60CC(2A) provides that “in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
It is not in dispute that the mother worked as a prostitute or that she became dependent upon drugs, including methamphetamine.
Furthermore, it is not in dispute that the mother lived with her mother until 10 February 2017 or that she currently lives with her mother again since approximately July 2017.
It is not in dispute that the mother sought counselling on a weekly basis from her clinical psychologist Dr S.
It is the father’s case that the mother poses a risk because she may relapse and begin working as an escort again and take drugs.
The father is not convinced that the mother is not still engaged in drug taking. Exhibit 1 in these proceedings is a photocopy of a “Facebook” conversation alleged to have been between the mother and one of her friends.
The mother admitted in evidence that the message dated 24 July may have occurred in 2017.
The message seems to relate to an upcoming party/celebration and the conversation relates to obtaining drugs.
The mother says that she and her friends often joke about drug use in conversations. If that is so, having regard to the mother’s past, that raises some concern.
The Facebook messages are the only evidence the father can provide to establish that the mother either is using drugs or may relapse into drug use.
Section 140 of the Evidence Act 1995 (Cth) provides:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.”
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[5] four members of the High Court said:
“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.”
[5] [1992] 67 ALJR 170.
Similarly, in Qantas Airways Limited v Gama[6] Branson J (with whom French & Jacobson JJ agreed at [110]) observed at [139] that:
“The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises, adopting the language of the High Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved…”[7]
[6] [2008] 247 ALR 273.
[7] See also Ashby v Slipper [2014] FCAFC 15.
The father seeks a finding that the mother will relapse so as to persuade the court that, in the event I have to decide with whom the child shall live, I would order that the child live with him.
That finding would have a serious consequence for this child in circumstances where I am satisfied that she is primarily attached to her mother and is well settled, based on the evidence that was not in dispute, in the (omitted) region.
It follows, in my view, having regard to the authorities that the evidence the father would need to provide would be evidence of a very persuasive nature.
As I previously said, the father relies on a Facebook conversation that refers to drugs.
The mother provides a report from her treating clinical psychologist that specifically deals with the risks alleged by the father.
Annexure ‘2’ to the mother’s affidavit filed on 23 August 2017 (Affidavit 2) is a letter from Dr S. He says at paragraph 2:
“However, the issues I have been asked to provide opinion concern the following issues pertaining to Ms Goodman. First, whether Ms Goodman’s previous employment as an escort will occur again and whether she will return to her former employment. In my opinion there is minimal to no possibility of this occurring due to her level of insight into the adverse effects this employment and the individuals, be they colleagues, clients, employers or associates, have on her ability to provide responsible parenting and role modelling.
Second, the issue relating to her use of illicit substances, is in full remission (over 12 months) and her involvement in any drug related culture or peers has been removed and any unpredictable exposure to individuals who engage in drug use has consistently resulted in Ms Goodman removing herself from a situation, avoiding social events and persons who use drugs, and most importantly she will not allow any form of drug use, paraphernalia, or discussion in her home whether X is present or not.”
Those comments, and the opinion of Dr S, must be considered having regard to the Facebook messages. Quite clearly, the mother was engaged in a conversation relating to drugs. Importantly, however, the mother gave evidence that shortly after that conversation she no longer had anything to do with the person who she was communicating with.
That decision by the mother to remove herself from involvement with that person is consistent with Dr S’s opinion provided where he says “and any unpredictable exposure to individuals who engage in drug use has consistently resulted in Ms Goodman removing herself from a situation, social events and persons who use drugs.”
There is absolutely no evidence that the mother used drugs. There is no evidence that the mother attended the party referred to in the Facebook messages. There is no evidence from any person to suggest that the mother has used drugs.
Furthermore, the mother has been living with her mother as previously set out in this decision. The maternal grandmother provided evidence in support of the father’s case during the interim hearing in Western Australia. That is, she took protective steps.
During cross-examination of the Senior Family Consultant Ms D stated:
“The maternal grandmother impressed me as having always been involved with the child and prioritising her needs.”
The maternal grandmother was cross-examined by Counsel for the father. Under cross-examination the grandmother admitted that she had seen her daughter under the influence of drugs at a funeral “a couple of years ago.” When asked if she asked the mother whether she had been using drugs, the maternal grandmother said she did and the mother denied the use of those drugs.
Counsel for the father asked the maternal grandmother how she would know if the mother was using again and she said she would know because of “her demeanour, her behaviour and changes in her body.”
Having had the benefit of watching the grandmother give her evidence, I am satisfied that she would always place the child’s interests and needs above those of the mother and furthermore, that she would take protective steps to protect the child from the mother if she saw a need to do so.
In her evidence in chief, the maternal grandmother says that the mother has attended all of her doctor’s appointments and she has “proved that she isn’t taking any drugs or undertaken any of her past employment ventures.” She furthermore says “Ms Goodman has got her life back on track and we are proud of her, she contacts us every day and we see her and X at least 4 to 5 times a week. She tends to all of X’s needs.”
The evidence submitted by the father in support of a finding that the mother poses a risk to the child through either drug use or relapse into drug use has to be considered in light of the evidence of Dr S, the mother and the maternal grandmother. Having considered the evidence I am not satisfied that the mother poses a risk to the child.
Section 60CC(2)(a)
It is not in dispute that this child currently has a meaningful relationship with both of her parents.
In McCall & Clark[8] the Full Court when considering the interpretation of the benefit to a child of a meaningful relationship said:
“[118] (a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
(b) second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
[119] We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.”
[8] [2009] FamCAFC 92.
As previously said, I will not make an order for the mother to move to (omitted). The mother does not wish to move to (omitted) and the father does not wish to move to (omitted). In those circumstances there will be considerable distance, as previously set out, between the parents and this child will be starting school in 2018.
The current arrangement for the child will not work when the child starts school.
As to whether the current equal shared care arrangement is in the child’s best interest, I note the father’s Counsel cross-examined the Senior Family Consultant in relation to this issue.
The Senior Family Consultant was asked:
“If it has been a 50/50 arrangement for approximately 18 months, does that change your recommendation?”
The Senior Family Consultant said:
“I am going by what I saw in December of 2016 and it probably doesn’t.”
It was put to the Senior Family Consultant that if the 50/50 arrangement continued until the child commenced school and thereafter lives with the mother and spends time with the father, what impact would that have on the child? The Senior Family Consultant said:
“She will miss having the regular extended time with her father.”
Counsel for the father said: “The parents want equal time.”
The Senior Family Consultant answered:
“From a developmental perspective with the child starting school, shared care is often difficult at that stage but it may work at some later stage.”
Counsel for the father asked:
“How much later?”
The Senior Family Consultant said:
“Once a child is at school there is a lot more communication required and if they do not have good communication that is not a good outcome, it depends on the parent’s capacity to communicate. This is not a black and white situation. When I saw the child she did superficially cope. She did have moments when she displayed some indictors that she found it quite hard.”
Counsel for the Independent Children’s Lawyer also cross-examined the Senior Family Consultant in relation to the issue of a shared parenting arrangement. The Counsel for the Independent Children’s Lawyer asked:
“If the father moves to (omitted), would your recommendation be for the child to predominantly live with the mother?”
The Senior Family Consultant said:
“Yes. A shared care arrangement is quite a taxing arrangement for a young child.”
Counsel for the Independent Children’s Lawyer asked:
“If the mother stays in (omitted) and the father remains in (omitted), can the child maintain a meaningful relationship with the father?”
The Senior Family Consultant said:
“Yes, the mother needs to support it with skype, regular time and photos of the father in the child’s home.”
The Senior Family Consultant went on to say:
“The child has a solid foundation with regards to her relationship with her father.”
In the event that I make orders that the child live with her mother, I am satisfied that she will continue to have a meaningful relationship with her.
I am satisfied on the evidence that the mother will promote and facilitate in any way she can a meaningful relationship between the child and her father. The mother impressed as a very child-focused woman who not only acknowledged the importance of the child’s relationship with her father but also was appreciative of the father’s involvement in the child’s life.
I am satisfied that the orders I have made will continue to provide a beneficial and meaningful relationship between the child and both of her parents.
With whom the child should live in the event the mother is not required to move
Due to the child’s age she was not asked to express a view.[9]
[9] Family Law Act 1975 (Cth), s 60CC(3)(a).
As previously set out I am satisfied that the child has a strong attachment to both her mother and father. I am satisfied that the mother is the primary attachment for the child.
The evidence establishes, and it is not in dispute, that the child has a strong attachment to the paternal grandparents and to the maternal grandmother and maternal aunt. The child has spent considerable time with all of those people and importantly, all of those people take protective measures for the child and put the child’s needs first.
The child will benefit from spending time with and communicating with the paternal and maternal family members as much as is reasonably possible having regards to the distance between the parties.[10]
[10] Ibid, s 60CC(3)(b).
The evidence establishes as a fact that both parents have taken every opportunity to spend time with the child, communicate with the child, and make decisions about major long term issues in relation to the child.
The evidence further establishes that on one very important issue, as to whether the child should attend day care or not, the parents could not agree.
It was the father’s view that the child need not attend day care and it was the mother’s view that the child should attend day care.
Ultimately the mother placed the child in day care as she considered it was in the child’s best interests and in forming that view she relied upon comments made by the Senior Family Consultant as to the limited amount of time the child had been spending in day care.[11]
[11] Ibid, s 60CC(3)(c).
Both parents have fulfilled their obligations to maintain the child.[12]
[12] Ibid, s 60CC(3)(ca).
This child has lived predominantly with her mother since she was born. I have previously set out the living arrangements for the child in her very short history.
As previously set out, the Senior Family Consultant is of the view, as am I, that the child is primarily attached to the mother and that she has a closer relationship with the mother. The Senior Family Consultant under cross-examination when asked how the child would cope if she were not living with the mother, said:
“She would find it difficult if she lives with the father.”
As previously set out the mother told the Senior Family Consultant of the child being clingy and suffering separation anxiety when she first returned to her care after the period of six months where she lived with the paternal family. That evidence was not challenged.
The child sees her maternal family four to five times a week. The child has settled into day care at (omitted) and has two friends. I am satisfied that the child is well settled in the (omitted) region.
The child has a strong relationship with her father and with paternal family members. They too act protectively and have the child’s best interests at the forefront of their minds. I am satisfied that the child would be very familiar with the father’s home and the paternal grandparent’s homes and that she would feel safe, secure and stable in that environment.
The father commented to the Senior Family Consultant:
“that he did not want to take X away from the mother as they had a close relationship and X was happy with her, but he wanted her to be safe in the mother’s care.”
He said:
“that the mother is a good mother when she is focused on parenting but he is concerned about when she does not prioritise X.”[13]
[13] Ibid, s 60CC(3)(d).
The father’s evidence caused me some concern. I was concerned that the father at times placed the importance of his work above the importance of the child’s needs. All of the arrangements relating to the child spending time with the father, even during the period of time when the child was removed from the mother, revolves around the father’s work commitments.
I was also concerned that he did not fully understand the emotional needs of the child.
When questioned by the Independent Children’s Lawyer’s Counsel as to acknowledgement that the change to live with the father on a full time basis would be a big change, the father replied:
“She adapts pretty easily.”
The father was adamant that a 50/50 arrangement was in the best interests of the child.
It was the father’s case that the mother should move to (omitted) to facilitate the 50/50 arrangement because that was the area where the father could most likely obtain work. When it was put to him if he would be prepared to move to (omitted) he said:
“It greatly reduces my opportunity for work.”
When the father was asked if his concerns regarding the mother’s drug use had decreased in the last two years, he said:
“No.”
It was put to him that he still proposed for a 50 percent shared care arrangement and he replied:
“So I can keep working.”
The father conceded that at one changeover he angrily referred to the mother’s work as a prostitute in the presence of the child. He indicated that he did not believe the child heard him as the child was already in a car.
The father was taken to the recommendation that he undertake a parenting after separation course. The father indicated that he did not do the course as he had lost his job. His evidence was at the time of trial he still had not enrolled in a parenting after separation course.
The evidence of the father was that he had a four week block period where he could spend time with the child. It was his evidence that the parties fell into dispute and that he reminded the mother that the interim orders provided that the child live with him when he is not at work. He ultimately had the child in his care for four weeks.
The Independent Children’s Lawyer’s Counsel took the Senior Family Consultant to that point and asked her whether that was a child focused request. The Senior Family Consultant stated:
“He should have reconsidered the four week block.”
The Senior Family Consultant went on to say:
“It is not the best thing for a child to not see her mother for a four week period.”
That evidence was given after the Senior Family Consultant had indicated that the mother was probably the primary attachment figure for this child.
The evidence establishes that the mother has done absolutely everything she could to remove herself from drug use and working as an escort. She impressed me as a woman who had fallen into poor life choices and that she had recognised that those life choices posed a risk to the child and thereafter changed her life for the benefit of the child.
It is not in dispute that the reason she brought about those changes is because she had the child removed from her. She honestly gave evidence that initially she was very angry at her mother and sister for assisting the father in removing the child, but she now recognises how important that decision was and has thanked them openly.
The evidence provided by way of annexure to the mother’s affidavit from Dr S also satisfies me that the mother can provide for the needs of the child and that she will remain focused and attentive to those needs.[14]
[14] Ibid, s 60CC(3)(f).
This child also has indigenous heritage. The paternal grandmother identifies as being Aboriginal. It is important that this child’s right to enjoy her Aboriginal culture is not adversely impacted upon due to the orders I make.
The paternal grandmother and the father acknowledge the child’s Aboriginality and want the child to be exposed to the culture.
The evidence established that the father informed the mother of the child’s Aboriginal heritage and the mother has ensured that the child engages in Aboriginal culture and learnings at the day care centre at (omitted). The mother gave evidence that there is a good deal of Aboriginal influence in the (omitted) day care centre.
The mother impressed me as a woman who would ensure that the child’s right to enjoy her Aboriginal culture would not be affected if the child remained living in her care.[15]
[15] Ibid, s 60CC(3)(h).
I am satisfied on the evidence that both parents have proven their responsibility as parents and have demonstrated a positive attitude towards the child.
Obviously the mother failed the child for the period of time that she was using drugs post-separation and until August 2015. The evidence did not establish the period of time that the mother worked as an escort or became dependent upon drugs.
The evidence does establish however that the mother has rehabilitated herself. The father impressed me as a person who understood the importance of the child’s relationship with her mother and who took protective steps at a time when it was needed. As the Senior Family Consultant said:
“Both parents generally wanted to do the right thing for their child, they both impressed as child focused.”[16]
[16] Ibid, s 60CC(3)(i).
Both parents gave evidence of a relationship that was volatile at times, marked by angry arguments and at times physical contact.
There was an incident at the time of separation where the parties became involved in a violent confrontation. The versions of that event differ as between the parties, but on any view it was an incident of family violence.
Having found that there was family violence in the relationship, on that occasion and potentially arguments and behaviours that amounted to family violence during the relationship, I must consider what impact, if any, that family violence had on the child and whether it is likely that there would be family violence in the future that this child might be exposed to.
There was no evidence that could satisfy me that the child was adversely impacted by the family violence.
The Senior Family Consultant did have some concerns based on the child’s responses to her questioning about her exposure to the ongoing parental conflict.
It is important for this child that the parents do not expose her to any further conflict. The parents should acknowledge of each other that they both have the best interests of their daughter at heart and they both will continue to place her needs above that of their own.[17]
[17] Ibid, s 60CC(3)(j).
There was no evidence given by either party that there was a risk of family violence occurring in the other parent’s household. In those circumstances I am satisfied that neither parent poses a risk of exposing the child to family violence in the future.
Based upon those findings, I am satisfied that it is in the best interests of this child to live with her mother.
How much time should the child spend with the parent she does not live with?
Both parents gave evidence that they want the other parent to spend as much time as possible with the child. It was both parents’ view that an equal time arrangement was best for their child.
Unfortunately, the mother is well-established in (omitted) with well-established support that provides protection for the child and she does not want to leave that area to reside closer to the father.
The father says that he cannot move to (omitted) because it would adversely affect his employment opportunities. The father has always travelled to and from his work. The father currently travels eight and a half hours to his place of employment. His employment is such that he remains living on site for two weeks at a time and thereafter returns to his home for a period of two weeks. The father gave evidence that it would be a distance of ten and a half hours for him to travel to his current place of work if he was to live in (omitted).
As to whether an equal time arrangement is in this child’s best interests or not, I am persuaded by the Senior Family Consultant’s evidence that whilst the child “superficially” appeared to be coping with the arrangement, moving into next year she will have a number of new issues to contend with including commencement of pre-school and spending less time with one parent.
The Senior Family Consultant indicated that in order for a shared care arrangement to work, particularly having regard to the child attending school for the first time, there is a lot more communication that is required and if the parents do not have good communication then it would adversely impact on the child.
The evidence establishes that on at least one important issue the parents could not agree and the mother thereafter, keeping in mind the comments of the Senior Family Consultant at her interview, decided to enrol the child in day care for further periods of time.
The evidence also establishes that in circumstances where the father wanted the child for four weeks, the dispute was ultimately resolved by the father referring to the previous interim orders and demanding that the child be in his care for four weeks and this in fact happened.
Based upon those two incidents, I am not convinced that these parents have sufficiently good communication to make a shared parenting arrangement work.
I consider that the father has the capacity to move to (omitted) and retain his current employment if he chooses. The father is used to travelling long periods of time in order to fulfil his work commitments. Indeed, the father travelled from Western Australia to (omitted) in order to spend time with his daughter for in excess of twelve months.
If the father moved to (omitted) it would be in the child’s best interest for her to spend substantial and significant time whilst he was present in (omitted).
It is not in the child’s best interests for the reasons previously outlined for the mother to move to (omitted). The evidence established that a move away from (omitted) would place the mother at a considerable disadvantage and this would in turn have an adverse impact upon the child.
If the parents remain living in their current locations such that the child is required to travel for up to five hours each way in order to spend time with the father this would, in my view, have an adverse impact on the child.
In those circumstances the child can only spend limited amounts of time with the father in the (omitted) area and again, if the father chooses to visit (omitted), the child can spend more time with her father.
If the parents continue to live so far apart then it is important that the mother provide liberal telephone and/or Skype and/or Facetime between the child and the father so as the strong relationship that they currently have continues to develop and is maintained.
The orders I have made take into account all of these factors and the various contingencies as best I can.
Parental responsibility
Section 61DA(1) provides:
“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (2) provides:
“The presumption 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.”
Clearly, in view of the finding that I have made in relation to the parties engaging in family violence, during and at the time of separation, the presumption does not apply.
The question remains, however, whether it is in the child’s best interests for the parents to have equal shared parental responsibility.
As previously outlined, there have been two occasions when the parents have been unable to agree on important issues relevant to the child.
A very important decision needs to be made for this child with regards to her schooling next year. The parents to date have not been able to agree on which school the child should attend. That is not surprising in circumstances where the father was seeking an order for the child to live in the (omitted) area with the mother.
The mother under cross-examination gave evidence that she wanted the father to be fully involved in the decision regarding parenting. In her submissions she said she wanted the father and herself to have an order for equal shared parental responsibility. The mother stated that she is open to any view the father has in relation to schooling, however, if he does not nominate a school then it is likely the child would attend (omitted) School.
Notwithstanding the, at times, poor communication as previously outlined I am satisfied on the evidence that these parents will be able to effectively communicate for the benefit of the child in relation to major long term decisions.
The ability for the father to be involved in decision making for the child is an important factor, in my view, in continuing to facilitate and maintain a meaningful relationship between the child and both parents.
For those reasons, I am of the view it is in the best interests of this child for her parents to have equal shared parental responsibility.
Section 65DAA
As a result of making an order for equal shared parental responsibility, the provisions of section 65DAA apply and must be considered. I must consider both the question whether it is in the best interests of the child to spend equal time with each of the parents and the question whether it is reasonably practicable that the child spend equal time with each of their parents.
I have previously outlined the reasons why I do not believe an equal time order is appropriate or in the best interests of the child.
With regards to whether it is reasonably practicable for the child to spend equal time, I am satisfied on the evidence that the parties level of communication is such that even if they lived within close proximity of each other an equal time arrangement is not reasonably practicable. Obviously, in the current circumstances where parties live so far apart it is not reasonably practicable for the court to make an order for equal time with each of the child’s parents.
Having found that an equal time order is neither in the best interest or reasonably practicable, no matter where the parties are living, then I must turn my mind to consider whether it is in the child’s best interests and reasonably practicable for an order to be made for the child to spend substantial and significant time with each parent.
The evidence establishes that this child has spent equal time with both parents for a considerable period of her life. Whilst I have been persuaded by the Senior Family Consultant that there has been some difficulty with that arrangement and that difficultly will continue into the future, the arrangement has brought about a situation where the child has developed strong, secure attachments with both of her parents.
The evidence establishes that the child will suffer a loss from not spending a lot of time with her father in circumstances where she will be living with her mother.
The difficulty is currently that the parents live four-and-a-half to five hours away from each other. I do not consider it is in the best interests of this child to spend substantial and significant time, as referred to in section 65DAA(3), with the father in those circumstances.
It is also not reasonably practicable having regard to the matters set out in section 65DAA(5) of the Act for the child to spend substantial and significant time with her father if the parties continue to live so far apart.
However, if the father voluntarily moves to the (omitted) region, then I am of the view that a substantial and significant time order is in the best interests of this child and furthermore, that such an order is reasonably practicable.
Accordingly, I have made orders that I consider to be in the best interests of the child taking into account all of these potential factors.
I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of Judge Middleton.
Date: 11 October 2017
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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