Owen and Owen
[2011] FMCAfam 998
•22 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OWEN & OWEN | [2011] FMCAfam 998 |
| FAMILY LAW – Parenting orders – father and child relocated from Darwin to Melbourne – interim orders for child to reside with father in Melbourne – competing residence applications – child and father in a co-dependent relationship – application of mother acceded to. |
| Family Law Act 1975, ss.60CC, 65DAB |
| Applicant: | MS OWEN |
| Respondent: | MR OWEN |
| File Number: | DNC 25 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing dates: | 22 August, 7 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Marchetti |
| Solicitors for the Applicant: | Holtham & Associates |
| Counsel for the Respondent: | Mr Meier |
| Solicitors for the Respondent: | Meier Denison Guymer Pty Ltd |
ORDERS
That each of the mother and father have equal shared parental responsibility for the child [X] born [in] 1999.
That the child live with the mother from 10am on 1 October 2011.
That the child spend time and communicate with the father as follows:
(a)for five days in the Northern Territory school term vacations of term holidays 1 and 3;
(b)for one half of the Northern Territory school term holidays for term 2 and being the mid-year four week approximately period;
(c)for one half of the Christmas and January Northern Territory school vacation being the second half in 2011/2012 and each alternate year thereafter and the first half in 2012/2013 and each alternate year thereafter with the first half to commence on the day immediately following the last day of school and the second half to end at least 72 hours prior to the commencement of the new school year;
(d)by telephone at all reasonable times with all calls to be instigated by the father and/or the child;
(e)by electronic means to include SMS, email and Facebook (but only for so long as the child is comfortable with that); and
(f)otherwise as agreed between the parties to include any occasions, upon reasonable written notice, and for a short period, when the father is in Darwin and/or the mother and child are in Melbourne.
That each of the parties keep the other informed within seven days thereof of any change to their residential address and within 24 hours thereof of any change in their and/or the child’s telephone numbers or email addresses.
That the mother provide the necessary authority to the child’s school to enable the father to speak to the principal and the teachers, to obtain copies of all school reports and newsletters, to purchase at his expense copies of school photographs and to be notified of any upcoming school events.
That the mother provide to the father within 90 days hereof written information as to the names, addresses and telephone numbers of the child’s medical practitioners.
That the mother provide the necessary authority to the child’s medical practitioners to enable the father to speak to the medical practitioners and to obtain copies of any medical certificates and reports.
That the parties do not denigrate each other to the child or in the presence or hearing of the child at any time and take steps to remove the child from the presence of any other persons denigrating the other party.
That each of the mother and father advise the other in writing of any proposed travel for [X] outside the Commonwealth of Australia and such notice to be at least 60 days before the proposed departure date. Details of flights, accommodation and a contact phone number are to be provided.
IT IS NOTED that publication of this judgment under the pseudonym Owen & Owen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DNC 25 of 2011
| MS OWEN |
Applicant
And
| MR OWEN |
Respondent
REASONS FOR JUDGMENT
On 28 January 2011, the applicant mother filed an application in the Darwin Registry of this Court seeking that the parties’ child [X] born [in] 1999 live with her and spend time and communicate with the father. She sought other ancillary parenting orders. At the time the child was living with the respondent father. The father opposed the making of parenting orders as sought by the mother in that he urged upon the Court in his response filed 25 March 2011 that [X] should continue to reside with him. At the time the mother was living in Darwin and the father and child in Melbourne. On 6 May 2011, Turner FM made interim orders in the Darwin Registry of this Court providing for [X] to continue residing with her father in Melbourne and for the mother to have communication of various types with the child. The proceedings were adjourned and transferred to the Melbourne Registry of this Court.
Statements of fact in these reasons are to be taken as findings of fact on the balance of probabilities.
The mother relies upon affidavits sworn by her on 28 January 2011, 23 February 2011, 29 March 2011 and 18 August 2011. She relies also on an affidavit sworn by her de facto, Mr D, on 18 August 2011. The father relies upon affidavits sworn by him on 15 March 2011 and 14 August 2011. He also relies upon a report by Dr J, psychiatrist and being exhibit ‘C01’ and affidavits sworn by his mother Ms O and his de facto Ms G both of whom were cross-examined by Counsel for the mother.
History
The father was born [in] 1967 and is aged forty-four years. He is currently working in a labouring capacity for a [omitted] company. He resides with Ms G with whom he has resided for some four months. The mother was born [in] 1973 and is aged thirty-eight years. She is a [occupation omitted]. She resides with Mr D with whom she has resided for approximately eight months. Mr D’s evidence is unchallenged. He and [X] have a loving relationship and a good rapport. He supports her residing in their household. He intends to marry the mother and have children with her. [X] has a good relationship with his father, mother and stepfather and those persons have participated in her life during the times she has spent with her mother.
The mother and father commenced their cohabitation in March 1994 in Victoria. They married [in] 2008 in Victoria and separated on 9 September 2010 when the mother left the family home. She had told the father of her intention to leave the preceding month. At the time of separation the parties and their daughter were living in Darwin, they having moved to live there in 2004. Thus at the time of separation they had resided in Darwin for approximately six years and being the years between [X]’s fifth and eleventh birthdays. [X] is now twelve years of age.
Whilst the parties resided together, the mother was the child’s primary care giver and primary attachment figure. Whilst the parties were residing in Victoria and in December 2000, shortly before [X]’s second birthday, the father was jailed for a number of offences. He was released after four months and the parties then moved to Darwin to give the father an opportunity to change his life. [X] commenced to attend at primary school (in preparatory class) and was in her final year of primary school in Darwin at [S] before being removed from the school by her father on 10 November 2010.
The father’s extensive criminal history should be noted here. Although it ceased in 2006 (albeit the mother alleges it continues in the form of shoplifting, a matter on which I can make no finding), he was in 2010 charged in relation to an offence committed in 2006. His affidavit evidence was that he received a $1,000 fine. He omitted to say that he also received a four-month suspended sentence. When put to him at trial his explanation for such omission was not plausible. I find it was deliberate.
When the mother left the home she did not take the child with her. She did not have suitable accommodation and went to stay with a friend. The father was devastated by the separation and requested of the mother that she leave [X] with him. The parties attempted to mediate a resolution of their difficulties without success. The father told the mother that he wished for [X] to move with him to Melbourne. The mother spoke to the child who confirmed that she wished to go to Melbourne to see her maternal uncle’s children.
Shortly after the mother left the former matrimonial home and on 17 September 2010, the father took the child to Cairns. He remained there until 10 October 2010 whereupon he returned to Darwin with [X]. The father had communicated his intention to travel to Cairns to the mother but only advised her on the night before, of his intended departure the next morning. The purpose of the trip was I find, a break for the father, for him to spend time with his family in Cairns and with [X]. Its duration was to be one week. The father however had determined unilaterally on a longer period of time and before his departure, without informing the mother, and had arranged to enrol [X] in a school in Cairns. In fact, [X] attended school in Cairns for approximately one week. In that period of time, the mother attempted to communicate regularly with [X]. Her communication was very limited however as a result of the father’s actions. He deliberately restricted and hindered communication between the child and her mother. At trial he gave inaccurate evidence about the level of telephone contact had, claiming it to be greater than actuality.
The father’s evidence that [X] on ‘quite a few occasions’ texted and phoned her mother from his phone whilst in Cairns was false as evidenced by the subpoenaed documents. He did not discuss schools in Cairns with the mother even though on his evidence he and [X] were going to Cairns for approximately six weeks for he and [X] to give the mother ‘some space, or her time that she needed.’ He gave contradictory evidence about the purpose and length of the trip and I find that he intended to stay in Cairns for a much longer period than agreed with the mother and to that end he had planned [X]’s enrolment in a primary school there. These plans predated the first parenting agreement. At no time did he consult or inform the mother. From the moment of separation he was acting to secure the residence of [X] with him and to achieve that end he was quite dishonest in his dealings with the mother and did not put to the forefront the best interests of the child. The interests served were his own.
At the time of the father and child’s departure to Cairns, the parties had signed a parenting agreement written out by the mother at approximately 2am in the morning on 7 September 2010 at the direction of the father and whilst the father was crying and in distress and she herself was also crying. The mother claims that she signed such agreement, and a subsequent one – under duress. The occasion of the drawing up of the second parenting agreement was the 18th of October 2010, after the father’s return from Cairns. The parties were in the former matrimonial home with the father again directing the terms of the agreement to the mother, who wrote same down. They included that he be permitted to relocate with [X] to Melbourne. The mother described the father as ‘standing over me on the kitchen table while I was writing that’. The father denied that allegation. I accept the evidence of the mother as to this matter. At the time she was endeavouring to cope with the father’s emotional distress and was unable to resist his demands by reason of her gentle and conciliatory nature, and the father imposing his very high level of distress upon her. She immediately regretted signing such agreements and obtained advice, prior to the father’s departure from Darwin that the documents she had signed were not binding. The father however had in fact obtained legal advice before dictating the terms of the first agreement to the mother. He was determined to take the child away from the mother, something which he knew would hurt her. He did not consider at all the child’s best interests and as he himself said in evidence he gave no thought to ongoing time spent with between the mother and child. He behaved in a manipulative and strategic way believing the possession of the child would ensure the mother’s return to him, at least for the period immediately after the separation. I find no regard should be had (when looking to s.65DAB of the Family Law Act 1975 (Cth) (the Act) to the terms of that parenting plan now and of course interim orders have intervened.
The father and child left for Melbourne before the end of the school year in Darwin. They left on 10 November 2011 with the school year not finishing until 18 December 2010. The mother was not told of the departure date and did not find out about it until 12 November 2010. I accept that she intended for [X] to finish the school year in Darwin, understood that was the agreement between herself and the father, and intended to further discuss with the father [X]’s living arrangements. She anticipated that by that time she would have – and in fact did have – appropriate accommodation for the child. She had advised the father two nights before he left Darwin that she had accommodation and required the furniture they had agreed she could have. At that time, the father told her that he and [X] were moving to [omitted] which is some fifteen to twenty minutes from Darwin township. That was a lie, which the father admits. The mother was given no opportunity to further discuss with the father [X]’s living arrangements. The mother was hopeful at that time, that the parties could negotiate an arrangement which accommodated the parties and their child’s wishes, needs and circumstances. She was wrong.
The mother discovered the father’s relocation of [X] from Darwin to Melbourne on 12 November 2010. In the period between that time and her instituting proceedings in January 2011, she attempted to speak with her daughter, mostly unsuccessfully as a result of the father’s lack of willingness to foster that communication, negotiate with the father and sought legal advice. She did not know the whereabouts of her daughter in the second half of January 2011 and became extremely agitated and concerned for the welfare of her daughter.
Upon arriving in Melbourne, the father did two things fairly immediately. Firstly, on arrival he visited Ms G. He had met Ms G through an internet dating service in late October 2010, and thereafter incessantly communicated with her whilst still telling his daughter that he loved the mother and was deeply distressed at her breaking up of the family unit and wished for its reunification. Secondly, he enrolled [X] in the [K] School near to where his mother lived. His evidence was that schooling was important for [X] and that he needed to enrol her immediately. At that stage, he had moved [X] from her school in Darwin to a new school in Cairns, back to the Darwin school for a four-week period and then enrolled her in [K] School for the last few weeks of term. He in fact gave little thought to her education and how best it could have been promoted.
The father’s evidence as to [X]’s emotional state (upon leaving Darwin and her mother) was also inconsistent. In his affidavit sworn 15 March 2011, he described [X] as being ‘very upset and confused’. In cross-examination, he said repeatedly she was not upset or confused but matter of fact. Simply ‘pack our stuff and head to Melbourne.’ His evidence was implausible. He was firmly of the view that the mother had left both he and their daughter and he conveyed this sense of betrayal of the family unit by the mother to their daughter.
[X] next saw her mother in Darwin (her mother travelled to Melbourne for two single nights) when she returned to Darwin for her grade six farewell in December. On that occasion she stayed with her mother for two nights. Her mother at that time was still endeavouring by negotiated means to secure the return of her daughter to Darwin and to a residence with her. To her detriment and that of the welfare of [X] she attempted reasoning with the father for a period well beyond that which she should have. Following 8 December 2010, [X] did not again see her mother until 8 April for school holidays. The father kept her for the entirety of the long summer school vacation saying that was his interpretation of the parenting plan. The plan was not clear, did not obviously afford that interpretation and could never have been in [X]’s best interests. He also limited her communication with her mother. After April there was a further three-month period in which [X] did not see her mother. The father describes this simply as the consequence of the geographical distance he had placed between them. He then proposed that no contact, save approximately two odd nights, occur between the July school holidays and the Christmas holidays as he had the benefit of earlier interim orders providing for him to have [X] for the entire September school holidays. His response to the lengthy absences between mother and child and the impact that might have had upon [X] lacked insight, save that he ultimately conceded such absences did not nurture and support the relationship. He said ‘…I did not take into any consideration the visitation rights that [Ms Owen] and [X] would have when I moved to Melbourne. We moved to Melbourne for a change of life. Our lives…have been interrupted, and we need to move on…’
When the matter proceeded before FM Turner in Darwin in March of this year:
a)a s.11F of the Act report was before the Court prepared by Mr V in late March 2011. The father told that family consultant that he had gone with [X] to Cairns for about four weeks to ‘cool off’, evidence contrary to what he at trial asserted. The mother’s evidence remained consistent – she was disappointed with, and had not agreed to the father’s plans;
b)Mr V said in his report:
‘[X] appears to have been caught up in some measure with the father’s sense of ‘flight’ from the mother, although she has not experienced the range of emotional instability he acknowledges being through.’
c)the parties agreed upon, amongst others, the following pertinent facts:
i)that until the date of separation the mother was the primary carer for the child and that since separation the father had been;
ii)that the father left Darwin in November 2010 without informing the mother; and
iii)that [X] had a meaningful relationship with both her parents.
d)FM Turner found in her consideration of the father’s willingness and ability to facilitate and encourage a close and continuing relationship between [X] and her mother the following:
“The father
86.Since relocation the father acknowledges that there have been several occasions he has not demonstrated fully a willingness and ability to facilitate and encourage a close relationship between [X] and the mother.
87.Some examples that illustrate this lack of willingness are:-
a)The father relocated earlier than agreed, living in Cairns with [X] for four weeks without informing the mother as to his intentions;
b)The father had not provided the mother with full details as to [X]’s schooling, including the password to the school website;
c)The father did not provide full details to the mother as to their living arrangements in Melbourne, including the address or landline number for his girlfriend [Ms G];
d)The father has not provided to the mother email addresses for either the father or the child;
e)The father had not signed the child’s passport when he was aware that the child was holidaying with the mother in Bali in April 2011, and that the child was looking forward to the holiday;
f)The father did not facilitate time between the mother and [X] for Christmas in 2010
g)The father did not facilitate telephone communication with the mother.
88.In submissions the father’s legal representative made no attempt to downplay the father’s tardiness in adhering to arrangements, submitting that “there was no good answer” as to why he didn’t tell the mother he was relocating earlier then anticipated, that the father “does not come to court with clean hands” and that he “has broken promises”.
89.The father agrees he has not handled the situation well and regrets the decisions he has made but will ensure that he will do better in the future.
90.Since the court proceedings were commenced the father has:-
a)Provided some school details but not the password as promised at the family report interviews;
b)Signed the passport application and provided necessary information for the Bali holiday to occur.
91.I find that at around the time of separation the father has not shown a willingness or ability to facilitate and encourage a close and loving relationship with the mother.”
No additional evidence in these proceedings altered that finding nor did the father cease to acknowledge his earlier lack of support of the relationship between [X] and the mother. The father on the other hand had, and has, no concerns as to the mother’s ability or willingness to nurture and promote his relationship with [X]. She has always done so and accorded it its important place in [X]’s life and the promotion of her wellbeing.
During the currency of this year, the mother discussed with the father [X]’s schooling should she remain in Melbourne. They agreed upon [X] attending [G] School. Subsequently, [X] texted her mother that she had been accepted for [W] School. The father unilaterally determined this enrolment. He claimed that he allowed such enrolment because despite the agreement reached between he and the mother, he asked the child which school she wished to go to and then acted upon her wishes without any reference to the mother. This was yet another example of his failure to adequately provide for the child’s intellectual and emotional needs and to adequately cooperate with the other parent. In Darwin, [X] would have attended [D] School this year however in her relocation to Melbourne it was suggested by the [K] School that she repeat grade 6. Although the mother was unsure as to whether there was a proper basis for such a course, she agreed to it accepting what the father told her the school’s advices were. She was really in no position to do otherwise with the father pressing her, her inability to communicate with the school and with her application pending to seek the return of the child to Darwin.
In the period between the interim hearing and the trial the father has continued, to a lesser degree, to limit the mother’s involvement in the life of the child. Initially he failed to inform both the school in Cairns and the school in [K] of any details pertaining to the mother. He rectified that with respect to [X]’s current school but some considerable time after he should have. He said of this at trial:
‘… in the last couple of weeks that (sic) I have realised that [Ms Owen] needs to play a large part in that…’
In essence the existence of these proceedings has lead him to engage with the mother more and notify others of her parental responsibility, rather than a belief that he should do so for the benefit of the child. The Court could not be satisfied that he would act appropriately as a residence parent with equal shared care responsibility in the future without the backdrop of litigation.
Both parties have applied pressure on [X] telling her of their need to have her reside with them and the unhappiness her absence brings to each of them. The mother has engaged in this process but the father has gone much further, a matter I shall return to when considering the evidence of the family consultant. [X] certainly saw his distress. He shook uncontrollably in front of her on one occasion and on another threatened suicide in front of her. Otherwise he has on an ongoing basis involved her in his emotional response.
The father’s evidence that each morning since separation he has said and says to his daughter ‘who loves you’ to which she replies ‘you do’ and then ‘who else’ to which she replies ‘mummy’ is concerning. It was not a custom prior to separation. His evidence that he has each day then asked his daughter if she has rung her mother, encouraging that course, is a fabrication. Dr W had concerns about this behaviour also in the circumstances of this case. She saw it as another example of the father establishing a dependent kind of relationship between he and [X]. That dependency was also in evidence in the affidavit of the paternal grandmother who likewise did not seem to understand that [X] needed to have a positive and substantial relationship with her mother also.
Dr W prepared a family report dated 19 August 2011. She is a Regulation 7 Family Consultant. She observed [X] to have a close bond with each of her parents. Dr W found the father to lack insight into how important it was for [X] to have a relationship with her mother post separation. She noted that he is now facilitating more contact but observed that to be a consequence of his following court orders rather than an increased insight into the importance of [X] retaining a relationship with her mother.
Dr W saw many good aspects of the father-daughter relationship but her main focus and concern was her conclusion that the father lives through his daughter, getting his own emotional needs met by her instead of it being more properly the other way around. She described the relationship as being a co-dependent enmeshed one, adverse to the promotion of [X]’s long-term emotional welfare and stated that although the father had improved significantly in partially withdrawing from this enmeshment, he still needed to make huge improvements for the relationship to be considered a positive and good one for [X]. In addition, the father had split his dependence between the child and
Ms G, the relationship with Ms G being a quickly and recently formed relationship which concerned the family consultant and more so if the relationship with Ms G was to break down.
Dr W canvassed [X]’s wishes by saying that initially the child expressed a desire to stay in Melbourne. However, she subsequently vacillated in that wish and at core wanted to get away from the conflict between her parents. She concluded that [X] had some of her needs met by her father and others by her mother. [X] herself felt her father needed more looking after than her mother, a fact Dr W found ‘really disturbing’ although she added it was not happening now in such dramatic ways. Nevertheless, she concluded any kind of co-dependent relationship with her father was not good for [X] and that over-rode the expression by the child of a wish to stay in Melbourne with her father. She said of the relationship that [X]
‘understands what her father feels and thinks on a moment to moment basis, and I don’t think that is a positive parenting child relationship.’
Dr W also noted that in the choice of secondary schooling the father again failed to acknowledge the mother’s long term decision-making role, was engaged in undermining her and said of him that ‘he seems to be cutting the mother out and actually going to the child.’ She did not consider the child old enough to make such decisions nor in similar vein decisions as to choosing some aspects of the father and Ms G’s new home in which she was overly involved.
In her report Dr W thought if there was to be a movement of [X] from her father to her mother it should occur at the end of the school year. In evidence she did not continue to hold that view. It could occur then or immediately. The child’s best interests will be served by her returning to Darwin now. The concerns of the family consultant, in particular as set out in paragraphs 51, 52, 53 and 54 of her report will best be met by a cessation of opportunity to further enmesh the father/child relationship which is damaging to [X].
[X] has relatives in Melbourne in the mother’s parents, her brother and his wife and their two children. Her paternal grandmother also resides in Melbourne. In addition, [X] has many friends in Darwin and more recently friends in Melbourne. She was described by the family consultant as a child who could readily adapt to her circumstances. All of her relatives she has lived apart from since her commencement of school in Darwin but she knows them well and clearly over the years she has resided in Darwin she has been able to maintain and nourish these relationships. The father argues they are all available to her now in regular physical proximity but that does not compensate for her loss of regular physical proximity to her mother resulting in her missing her mother nor outweigh the benefits to her of residing with her mother.
The mother now spends 80% of her working hours in the office in Darwin and 20% in [omitted]. This has been her pattern of work since August 2010. I am satisfied that she is available to care for [X] and otherwise make the necessary arrangements should she be unable to do so for brief periods of time. This was her role throughout her relationship with the father. The mother worked, was primarily responsible for [X]’s needs and managed to keep the household intact. The father contributed to that more so in the latter years and in particular after 2007 when he would care for [X] whilst the mother worked. In particular, he cared for [X] just prior to the separation and from 31 July 2010 to 18 August 2010 when the mother with the father’s agreement took on a job that was well renumerated in an effort to improve the family’s finances.
The father’s hours of work also permit him to care adequately for [X] though he needs assistance. He is assisted by his partner Ms G who gets [X] to school in the father’s absence each morning. After school she attends upon the home of her paternal grandmother from where her father collects her.
Ms G currently takes [X] to school in the morning and is otherwise very involved in [X]’s care. She looks after her physical needs well. She described them as having an extremely good relationship. When asked to describe [X]’s relationship with her mother she responded that it was ‘an interesting one’ elaborating that [X] seemed to want to please her mother. She then observed there to be a similar relationship between [X] and her father. Ms G described [X] to be a hurt child, predominantly by her mother but by both her parents. She saw for herself no need to have communication with the mother nor build a relationship as she declined to become ‘a middleman’ for the parties. Ms G agreed with the father’s mother that the mother made no moral input into the child’s life. It was evident she had the best of intentions toward [X] but was not insightful when it came to [X]’s relationship with her mother, its importance, and her mother’s contribution to the child’s wellbeing and development over time. She was not the impartial observer she tried to convey but rather very aligned with the father’s case with a knowledge of the family history gained mostly from him. She simply had not had the advantage of time and reflection to arrive at a balanced view.
Consideration
The parties agree that it is in [X]’s best interests that they have equal shared parental responsibility for her and the Court finds no evidence to rebut the presumption as set out in the legislation. However, a consideration of her spending equal time with both parents has been limited by it being not reasonably practical given the father’s relocation to Melbourne. The father will not return to Darwin. The mother will remain living in Darwin. Thus [X] must spend considerably less time with one parent, than the other.
In deciding which parenting orders to make, the Court must regard the best interests of the child as the paramount consideration (s.60CA of the Act). How a court determines those best interests is set out in s.60CC of the Act. It is clearly beneficial for [X] to have a meaningful relationship with both of her parents, a fact with which they agree. The mother will best promote this within the constraint of enormous geographical distance between the parties’ homes. The evidence establishes that there is not a need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
When considering the matters as set out in s.60CC(3) and s.60CC(4) and s.60CC(4A), the following as to each sub-paragraph of s.60CC(3) is concluded on the evidence:
(a) any views expressed by the child and any factors (such as
the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child expressed a view to reside in Melbourne with her father. She has not sufficient maturity and her father has over-involved her in adult decisions for her views to be given critical weight.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The child has a meaningful relationship with her parents and a good relationship with each of the parties’ de facto spouses. She also has the company of grandparents and cousins in Melbourne which she enjoys.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I have considered this along with s.60CC(4) and s.60CC(4A) and as demonstrated in these reasons the father has not exhibited the necessary willingness and ability. The mother has. The father continues to lack insight into the importance of the mother’s role.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
[X] will be sad to leave her father’s residence as she was sad to leave her mother’s presence. Her separation from relatives will be less fraught as she can continue those relationships in the manner she did prior to leaving Darwin.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The father removed the child from the proximity of both her parents in Darwin to reside with him in Melbourne. No matter with which parent [X] lives, she will be significantly limited in the time she is able to spend with the other parent.
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother’s capacity is superior to the father’s. She has always acted with the child’s best interests foremost.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The child is not of sufficient maturity to give an expression of her wishes any considerable weight especially when coupled with the co-dependency elements of her relationship with her father.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not an issue in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
As to the financial aspects of parenthood, the mother has not paid child support for [X] in the currency of this year. She has paid for airfares – not all as agreed – and for the cost of [X]’s phone calls to enable the child to telephone her mother. In addition, she has been required to repay a bill to Telstra of $2,000 incurred by the father. The father was initially assisted in his support of the child by his mother providing accommodation. Both parties are attuned to catering well for [X]’s physical needs. The father has, in his relating to [X], not always understood his responsibilities as a parent and in particular his reliance on her has been detrimental to her welfare.
(j)any family violence involving the child or a member of the child’s family;
Not an issue in this case.
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Not an issue in this case.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
[X] needs stability of location, home and peer friendships whilst she proceeds through secondary school. Reuniting her with her long-term primary carer who is not accepting of the father’s care of the child brought about in the manner in which it was (with a practical result that one parent cannot fully share in [X]’s life) should provide ongoing stability for [X] and an absence of ongoing litigation. The father does not resile from the tyranny of distance he placed between the parties without real reason or considered thought, at the time saying simply one parent will be very happy and one very sad.
(m)any other fact or circumstance that the court thinks is relevant.
The reasons cover the relevant facts and circumstances. Matters of cost of airfares are for child support assessment and departure from that regime.
[X]’s best interests are promoted being in the primary care of her mother. I shall order that [X] live with her mother and that she spend time and communicate with her father in a manner that is circumscribed by the location of the parties’ respective residences.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Date: 22 September 2011
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