P & P
[2006] FMCAfam 518
•16 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & P | [2006] FMCA fam 518 |
| FAMILY LAW – Child aged 3 – planned relocation of child from D to A – child has lived with mother since separation – mother wishes to live in A – father seeks to restrain mother from leaving D – “meaningful” relationships with both parents – freedom of movement – whether reasonably practicable to restrain mother indefinitely – examination of possibility of father moving – practical considerations – moratorium on relocation considered – Property – few assets to be divided – allocation of debts – consequences of bankruptcy – just and equitable. |
| Family Law Act 1975 – ss.60B, 60CA, 60CC, 61DA, 64B, 65DAA, 75, 79 |
| U & U [2002] FLC 93-112 Lee Steere v Lee Steere (1998) FLC 91-626 Ferraro v Ferraro (1993) FLC 92-335 |
| Applicant: | R J P |
| Respondent: | J O P |
| File No: | DNM475 of 2005 |
| Delivered on: | 16 October 2006 |
| Delivered at: | D |
| Hearing dates: | 28 & 29 September 2006 |
| Judgment of: | Brown FM |
REPRESENTATION
| The Applicant in person: | Mr R P |
| Counsel for the Respondent: | Ms Dibden |
| Solicitors for the Respondent: | Davis Norman |
ORDERS
(1)The parties have e qual shared parental responsibility for the child of the marriage T W P born 22 October 2003 (hereinafter referred to as “the child”).
(2)The child live with the mother.
(3)The mother be permitted to live with the child in A in the state of S A from 1 December 2007 onwards provided the mother and the child move to A prior to 15 January 2008 and the mother advises the father in writing of the date of her departure with the child from D 28 days prior to it occurring.
(4)Until 1 December 2007 the mother is restrained and an injunction issues restraining her from moving the place of residence of the child from an area within the municipal boundaries of the Cities of D and P and the S of L in the N T of Australia.
(5)Prior to the mother’s departure from D, as envisaged by order 3 hereof, the father spend time with the child as follows:
(a)On alternate weekends from 5.00pm on Friday until 5.00pm the following Sunday (or 5.00pm the following Monday in the event that Monday is a public holiday);
(b)Between 4.30pm and 7.30pm on each Wednesday and Friday;
(c)On Father’s Day, the child’s birthday, the father’s birthday and on any other special occasions at times to be agreed between the parties and failing agreement to be for at least three hours between 4.30pm and 7.30pm;
(d)From midday on Christmas Eve 2006 until midday on Christmas Day 2006 and each even ending year thereafter and from midday on Christmas Day 2007 until midday on Boxing Day 2007 and each odd ending year thereafter;
(e)At any other times and on any other conditions as the parties may agree from time to time.
(6)The mother is at liberty to take the child with her on two holidays interstate each year of up to 14 days duration each provided she gives the father 28 days written notice of her intention in this regard and provides him with an itinerary and details by means of which the father will be able to communicate with the child by telephone and during such holiday periods order 5(a) to (c) hereof is suspended. However no such holiday is to coincide with 24, 25 and 26 December without the father’s consent.
(7)In the event the father elects to move to live in A permanently, after the mother and child have moved to live in A pursuant to order 3 hereof, the father shall continue to spend time with the child in accordance with order 5 hereof but upon the child commencing primary school, in addition to the time specified in order 5 hereof, the father will spend time with the child as follows:
(a)For half of each S A school period the halves to be agreed between the parties and failing agreement to be the first half in even ending years and the second half in odd ending years.
(8)In the event that the father does not live in A, after the mother and child have relocated to A pursuant to order 3 hereof, the father shall spend time with the child as follows:
Until the child reaches 5 years of age:
(a)In A for a period of one week on at least 4 occasions each year with the father giving the mother 21 days notice in writing of his intention to spend time with the child;
(b)At any other times and on any other conditions as the parties may agree from time to time.
After the child reaches 5 years of age:
(c)In D or such other location within Australia as the father nominates for half of each S A school holiday period the halves to be agreed between the parties and failing agreement to be the first half in even ending years and the second half in odd ending years;
(d)At any other times and on any other conditions as the parties may agree from time to time.
(9)The parties be equally responsible for the costs of travel involved in the child travelling between A, D or such other location within Australia nominated by the father for the purpose of the child spending time with the father pursuant to order 8(c) hereof.
(10)In the event the mother wishes the child to be accompanied by an adult, for the purpose of the travel provided by order 8(c) hereof, she will be responsible for the cost of the accompanying adult’s airfares and for making all necessary arrangements in respect of same.
(11)The father communicate with the child on his relocation to A pursuant to order 3 hereof as follows:
(a)Liberally by telephone and on no less than two occasions each week, the occasions to be agreed between the parties and failing agreement to be each Tuesday and Sunday at 6.30pm the time to be calculated by reference to the time zone in which the child ordinarily lives;
(b) By email and ordinary post;
(c) On a daily basis by webcam.
(12)Each party keep the other informed of his or her residential address and contact details, including email addresses and landline and mobile telephone numbers at all times and advise the other of any change occurring to these details within 3 days of such change occurring.
(13)In the event that the child is hospitalized or suffers any illness or accident requiring medical treatment when in the care of either of the parties that party shall inform the other parent of such illness or accident as soon as is reasonably practicable and advise the other of the name of the treating doctor or hospital concerned.
(14)If either party travels away with the child from his or her normal place of abode during any school holiday period he or she shall provide the other no less than 7 days prior to the date of departure an itinerary including dates of departure and return, details of any air travel involved and contact details for the child.
(15)The parties be at liberty to attend at the child’s school for the purpose of attending any activity or occasion routinely attended by parents and for the purpose of discussing the child’s academic progress with the relevant teaching staff concerned.
(16)The parties are given liberty to relist this matter before Federal Magistrate Brown, on the giving of 28 days written notice to the other party, in regards to any provision of these orders dealing with the father spending time with the child, in the event that the father elects either to live or not to live in A after
1 December 2007, once the father has decided which course he proposes to take.(17)That the wife transfer forthwith to the husband, at the husband’s expense, the whole of her right, title and interest in the property known as 2 I W, K R, N S W.
(18)That upon the transfer of the property referred to in order 17 hereof the husband shall indemnify the wife and keep her indemnified in respect of the mortgage secured against the aforesaid property and all other outgoings related to it.
(19)In the event the husband or wife fails to execute any required document to give effect to order 17 and 18 hereof pursuant to section 106A of the Family Law Act 1975 the Registrar of the Court at D be authorized to execute any necessary deed, document or instrument in their place.
(20)That pursuant to section 90MT(4) of the Family Law Act 1975 a base amount of $16,000.00 be allocated to the wife in respect of the husband’s superannuation interest in the J H Superannuation Fund and that pursuant to section 90MT(1)(a) whenever a splittable payment becomes payable in respect of that interest the wife is entitled to be paid the amount to be calculated in accordance with the Family Law (Superannuation) Regulations 2001 in respect of that base amount and there is a corresponding reduction in the entitlement of the husband.
(21)The solicitor for the wife serve a copy of order 20 hereof on the Trustee of the J H Superannuation Fund by 27 October 2006 and thereafter the aforesaid Trustee has liberty to re-list this matter before the court in the event that the Trustee is unable to comply with order 20 hereof but otherwise the operative time for the aforementioned splitting order shall be 17 November 2006.
(22)That the trustee of the J H Superannuation Fund, the husband and the wife in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all such documents as may be necessary to calculate the payment entitlement of the wife in accordance with order 19 hereof.
(23)That unless otherwise specified in these orders, each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of each party and superannuation standing in the name of each party as at this date.
(24)The applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT D |
DNM475 of 2005
| R J P |
Applicant
And
| J O P |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a relocation case. As such, it presents no ready or easy solution. R J P “the father” and J O P “the mother” are the parents of T W P, born 22 October 2003.
The parties met in N S W in 1999, where they were both living at the time. They began to live together in early 2000 and were married in L, N S W on 30 November 2001. T was born in N S W.
In October of 2004, the family moved to D, to enable the father to pursue an employment prospect with the construction firm J H Pty Ltd. Less than a year later, in September of 2005, the parties separated in difficult circumstances. Since that time, T has lived predominately with the mother and has spent regular periods of time with the father, although not as much as the father would have wished.
The mother wishes to move to live with T in A, in S A, where her mother, two brothers and other family members live. It is her position that she feels lonely and unhappy living in D, where she has little, if any, emotional support.
The father is opposed to T moving away from the N T, particularly at this young age. It is the father’s position that he has a secure and well paid job in D. He does not believe that he will be able to get a similarly well paid position in S A. Due to his love for T, he wishes to be involved as fully as possible in caring for him, particularly whilst he is young.
It is common ground between the parties that they are currently facing a financial crisis, due to the poor management of their fiscal and investment affairs, during their marriage and afterwards. The father argues that, in these circumstances, for him to change his employment, particularly whilst the mother is out of the paid work force caring for T, would intensify this crisis, to the parties mutual detriment.
Although he opposes T living in A, as an alternative to an immediate relocation, he proposes that T remain living in the D area, until he is about 5 years of age, at which stage the father anticipates that he would be able to have a “decent” telephone conversation with T and be able to maintain his relationship with him during school holiday periods.
The parties have very different backgrounds and temperaments. As a result, they have different views about how best to parent T. The mother is a conscientious and somewhat protective parent. T is her first child. The father is perhaps more laissez faire in his care of T. Ms A F, who wrote a family report for the court to use in this case, described them as “the squiggle and the straight line.”[1] It is an apt description.
[1] See Ms F’s family report at paragraph 17
These differences in personality and the fairly recent trauma of their separation, have exacerbated the tensions between the parties, who currently do not communicate well. The mother describes feeling “powerless” in her relationship with the father. The father, in turn, is frustrated that he is not able to play a more active role in the day to day “nuts and bolts” of parenting T.
The parties separated when T was just under 2 years of age. It is the mother’s case that she provided nearly all of T’s care up to this stage and afterwards. As a result, to use the jargon of social scientists, it is the mother’s position that T’s primary attachment is to her.
The father disputes the mother’s account of the level of his involvement with T’s care, prior to his and the mother’s separation. However, since separation, he has had regular periods of time with T, including periods when T has slept overnight at his home. As a result, it is now common ground between the parties that T has developed a close and loving relationship with his father.
It is the mother’s position that she is currently deeply unhappy in D, where she has lived for only a comparatively brief period of time and where she has no close friends or family. She feels disempowered in her relationship with Mr P. She believes that her unhappiness is likely to be alleviated in A, where she will be able to live the life of her own choosing, supported by those whom she loves and feels close to. She fears that her unhappiness may deepen significantly, if she is compelled to live in D, against her wishes, for any significant period. As T’s primary carer, she believes that her happiness is likely to have significant implications for T’s emotional wellbeing and her capacity to parent him to the full extent of her abilities.
Australia is a free and democratic society, which prizes the rights of its citizens to live where and how they choose. At the same time, children have a right to maintain and develop relationships, within their families, which are likely to be significant to them, both in the short and long term. It is the father’s position that, T’s entitlement to have a close and fulfilling paternal relationship with him, will be seriously compromised, if T goes to live in A at an early stage in the process of his emotional and cognitive maturation and this, in turn, may possibly have long term ramifications for T’s sense of identity and psychological wellbeing as an adult.
As has already been indicated, although Mr P is opposed to any relocation of T from D, as a compromise between the competing considerations of Ms P’s entitlement to freedom of movement and T’s entitlement to maintain a relationship with him, he proposes that the mother be restrained from moving T’s place of residence, from D, until T has reached the age of about 4 or 5 years. At this stage, his paternal relationship will be more consolidated. More importantly, T’s verbal and cognitive skills will be more developed and so T himself will be more able to maintain his relationship with his father, if Mr P remains living in D and T is in A.
It is also not beyond the bounds of possibility that, in such a period, the father will be able to obtain suitable employment for himself in S A and so will be able to move, in tandem with the mother and T, to A. Although this is most certainly not the father’s preference at this stage. Another benefit of such a moratorium may be that it will provide time for the party’s financial affairs to be placed on a more secure footing.
Although it is not currently his position, in the legal proceedings before the court, in the long term, the father aspires to an outcome whereby the parties have an equal parental input into T’s care and he spends roughly equal periods of time in each of their respective households. This is a common aspiration of parents following relationship breakdown and one which has received affirmation in recent significant amendments to the Family Law Act 1975.
The determination of this matter takes place at a time of changing views about gender roles and family responsibilities. Increasingly, fathers wish to play a more active role in the parenting of their children. At the same time, more and more mothers are becoming involved in the paid work force. Increasingly there are conflicts between the demands of employment and family life. These are some of the factors which underpin the concept of shared parenting, after relationship break down.
Accordingly, the tension in this case is readily apparent. It is a tension which is exacerbated by T’s infancy and verbal and developmental immaturity. Should the court regard the emotional wellbeing of the mother, as T’s current principal provider of care, as being pivotal to the service of T’s best interests or rather consider the consequences of the severing of his actual and potential relationship with his father, who wishes to play a significant role in parenting T in future, as being more central to T’s wellbeing?
Because the primary emphasis, in children’s cases, is on the best interests of the child concerned,[2] it is usual for an independent expert’s report to be commissioned by the court, to investigate how the best outcome for the child concerned may be achieved. As has already been indicated, in this case, such a report was prepared by Ms F, a social worker. In her report, dated 15 August 2006, Ms F provided the following evaluation:
“T is a young child who has been able to develop a good relationship with his father regardless of the amount of care Mr P may or may not have provided when the child was younger. This child has parents with vastly different personalities and attitudes to life and to the raising of a child. What they both want, however, is for T to have opportunities in his life and to be safe. While the parents had a ‘wonderful’ relationship prior to the birth of the child, they appear to have wanted to adjust to parenthood in different ways, dictated by their individual personalities. T could benefit from this difference or he could suffer as a result of it. That is up to the parents. However, he does deserve an opportunity to have a good relationship with them both in these early stages of development, and both parents remaining in D would be the best way to provide this chance.”[3]
[2] See Family Law Act 1975 at section 60CA
[3] See Ms F’s family report at paragraph 52
These proceedings are directed to resolving this dispute between the parties. When parents, who no longer live together, ask the court to determine where their children should live, it is the best interests of the children concerned which are paramount. The court must decide which of the parties’ competing proposals is most likely to advance the best interests of the children concerned. It is also open to the court to consider other outcomes, which it considers likely to achieve this goal, independent of the positions of the parties themselves. However, at the same time, the court cannot overlook the legitimate expectations of a parent as to where he or she wishes to live in future.
There is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a rubik’s cube to reach a perfect result. Both parties wish to play as large a role as possible in T’s life, as he grows to maturity. At the same time, Ms P wishes to live in A, where her family are and where she feels she will be emotionally nurtured and supported. She believes that her personal happiness will be best served in A, as opposed to D, where she feels unhappy and trapped. Mr P cannot easily leave D, where he is enmeshed by work responsibilities and were he feels happy and well settled.
If I make the orders the father wishes, T will continue to see him regularly, but the mother will be unhappy and frustrated at this outcome. She is likely to feel bitterly disposed towards Mr P. Her level of frustration and unhappiness may have implications for her future psychological health and her capacity to parent T to the full extent of her potential.
If I make the orders the mother wishes, T will loose the opportunity to have regular interaction with his father, because he will be living far away from him and the father will be upset and sad at the separation. In addition, arrangements for T to spend time with his father are likely to be limited and difficult. The parties’ currently disastrous financial situation will stand in the way of T being able to spend frequent periods of time with his father. There may well be difficulties in T maintaining a relationship with his father, through the telephone or other electronic means, given his level of language skills. As a result of these factors, T may feel that his father is not an integral part of his life and, as a result, the paternal relationship between T and his father may not be as warm and spontaneous, as it might otherwise have been.
Regardless of the outcome in this case, one or other of the parties will feel hard done by. In either case, the consequences of the problem and its resolution may well be a source of continuing bitterness between the parties, one of whom will almost certainly feel harshly treated. I say this at the outset because I think it right to acknowledge and express my regret for the inevitable distress the resolution of this problem will bring, whatever the outcome. I hope that the parents will each cope with the situation as well as possible, so that the difficulties for T will be minimised and his relationships with each of his parents maintained, as well as the circumstances permit.
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
In U & U[4] Hayne J said:
“What have come to be known as “relocation cases” present difficult questions. Much of that difficulty stems from the fact that to take a child from the place where one of the parent’s lives (and, in some cases, works) to some distant place will, if the other parent does not move, necessarily affect the way in which the child’s relationship with that other parent can be maintained and allowed to develop. It follows that the needs and the wishes of each parent and the needs of the child (and, if of sufficient age, the child’s wishes) all bear upon the question to be considered by the Family Court. In the end, as the Family Law Act 1975 (Cth) (“the Act”) makes plain, the Family Court “must regard the best interests of the child as the paramount consideration”, but that does not deny the fact that there are at least three persons who will be affected by the order that will be made: two adults and the child. And very often, of course, there will be other relatives of the child whose contact with the child will be curtailed if the child lives in one place rather than another.”
[4] U & U [2002] FLC 93-112 at 89,102
In their respective cases, the parties have concentrated on issues to do with T’s care and the fundamental issue of relocation. However, concurrently with their competing applications regarding T, the parties also seek orders, from the court, in respect of the division of their matrimonial property. As has already been indicated, consideration of these financial issues is intertwined with the issues to do with T. The parties’ differing views as to who of them is to be regarded as primarily responsible for their current state of financial crisis and the implications of that crisis have made the dispute between them regarding T’s care more intractable and problematic.
The pool of property available to be divided between the parties is limited and chiefly consists of their future entitlements to superannuation and their interest in their former matrimonial home, situated at 2 I W, K R, N S W. At this juncture, it seems highly likely that the parties do not have any equity in the property and are likely to owe a significant sum to the property’s mortgagee.
The parties borrowed a large sum of money to construct the K R property and during their marriage extended the amount of the mortgage secured against the property, on several occasions, to pay off other of their debts. When the parties moved to D, the property was tenanted. However, there was a short fall between the amount of rent received and the recurrent amount required to pay the necessary mortgage instalments.
It is the mother’s position that the father was financially irresponsible, during their marriage and afterwards, and has failed to attend properly to the management of their various debts, rather preferring to extend their level of financial commitment by buying unnecessary consumer items for himself.
It is the father’s position that he left financial matters to the mother during the parties’ marriage and merely provided his wages to the mother, which she distributed as she saw fit. It is his position that the parties mutually lived well and almost certainly beyond their means, during the course of their marriage. It seems to be his position that the parties never recovered from a large tax bill, which he received during the parties’ marriage and which related to a building business he operated and which was the family’s chief source of income. As a result, it is his position that the parties’ various debts must be regarded as joint matrimonial debts.
Since the parties separated, only the rent from the K R property has been allocated to payment of the mortgage secured against it. The relevant mortgagee is agitating for payment of the arrears outstanding and is threatening to foreclose on the property. These difficulties have coincided with a significant drop in property values in the area of N S W, where the property is situated. The father fears that, if the property is sold pursuant to a mortgagee sale, it will result in a massive financial loss for the parties and the mortgagee will inevitably pursue him for the shortfall. In which eventuality, he will have no alternative but to enter bankruptcy.
It is the father’s position that he has insufficient financial resources to pay the arrears currently outstanding on the mortgage. The mother is sceptical about this assertion. She is currently not in the paid work force and is in receipt of social security, as her major source of income. It is certainly the position that she cannot make any significant contributions towards the payment of the mortgage arrears.
There is a significant level of controversy between the parties as to how the mortgage on the K R property reached its current parlous position. It is the mother’s position that the father has selfishly and capriciously elected not to pay the recurrent short fall. On the other hand, it is the father’s position that he has not had sufficient financial resources to make the required payments concerned.
In addition, at an early stage after the parties separation, it is the father’s position that he realised that financial necessity dictated that the property be sold, as expeditiously as possible. He asserts that he requested that the mother execute the necessary documents, to place the property on the market, but was rebuffed, either by the mother herself or her legal advisors. In those circumstances, he argues that the mother must assume some responsibility for the currently disastrous situation, so far as the K R property is concerned.
The mother is horrified at the prospect of bankruptcy looming over both her and the father. She seeks to be released from liability in respect of the K R property and for the father to indemnify her against any losses which may result from it. It is the father’s position that the greatest likelihood of him being able to work through his, and so the parties’ likely bankruptcy, is if he remains working in D, where he can command a large salary in the construction industry. Clearly, these financial issues have ramifications for the father being able to maintain a “meaningful” relationship with T in the future, particularly if he lives in A and the father remains living in D.
These various issues, regarding T and the division and allocation of the parties’ assets and liabilities, are necessarily complex. The level of complexity is intensified by the fact that the Commonwealth Parliament has recently passed the provisions of the Family Law Amendment (Shared Parental Responsibility) Act2006. Accordingly, the law relating to arrangements for the parenting of children is not well settled, particularly in regards to the issue of parental relocation. These proceedings are designed to resolve these complex issues between the parties.
The competing applications and the history of the litigation
The father commenced these proceedings on 3 November 2005. At that stage, he was legally represented. He sought the following orders on both an interim and final basis:
1. That the father and the mother shall have joint responsibility for the long-term care, welfare and development of the child of the parties T W P who was born on 22 October 2003.
2. That each of the parents in whose care the child is, shall have responsibility for the day-to-day care, welfare and development of the child during the time the child is in that care.
3. That the child shall reside with the father from about 11am on the first Saturday of each fortnightly cycle, until about 11am on the next Saturday of that cycle, and with the mother from about 11am on the second Saturday of that cycle until about 11am on the following Saturday, and thereafter with each of the parents for the same period in each subsequent fortnightly cycle, unless and until the parents agree to the contrary.
4. That the interim orders be dealt with on an urgent basis.
In a formal sense, the father has not subsequently amended this application, though the orders sought in it, no longer represent his position.
The mother responded to this application on 23 November 2005. Her position was that, on a final basis, T should live with her in S A and the father should have “contact” with him at times to be agreed between the parties. At that stage, the mother raised considerable concerns about the father’s drinking and alleged that there had been no “bonding” between T and the father. Accordingly, at this very early stage, the respective positions of the parties were polarised in the extreme.
On 29 November 2005, I made interim orders that T should live with the mother and have contact with his father on each Tuesday, Thursday and Sunday, as well as on Christmas Day, during daylight hours only. Due to the apparent high level of conflict between the parties, I further ordered that T be exchanged between the parties, at the premises of Centacare, the Commonwealth Government funded contact service based in D.
Given the polarised views of the parties, regarding the nature of their respective relationships with T, and the obvious evidentiary difficulty of resolving these issues at an interim stage, after some discussion with the parties’ then legal advisors, I ordered that a family assessment be prepared to examine the nature of T’s relationship with each of his parents; the parenting capacity of each party; and the insight each parent had into the responsibilities of being a parent.
Ultimately the parties agreed that this family assessment should be prepared by Ms K, an experienced psychologist. Ms K’s report was received by the parties towards the end of January 2006. As has previously been indicated, the thrust of Ms K’s report was not concerned with the issue of the mother’s wish to relocate with T to A but rather was concerned with the nature of T’s relationship with each of his parents and whether the level of care he received from them, but particularly the father, was likely to compromise his safety.
Ms K was concerned about the father’s understanding of some aspects of child development and the high level of expectation Mr P apparently placed on T, which expectations T could not then achieve. In addition, Ms K was concerned that the father may not be able to be “emotionally responsive” to T’s needs. In her report, Ms K provided the following opinion:
“Whilst of the opinion that Ms P has probably minimized Mr P’s involvement with T and Mr P has exaggerated his, Ms P’s narrative appeared to be more credible and internally consistent than that of Mr P. She has obviously been the prime caretaker of T and his attachment relationship with her is important to protect. As she is willing to provide fulltime care for T, there does not appear to be any reasons as to why she should not be permitted to continue with this arrangement.”[5]
On the other hand, Ms K opined as follows:
“As Mr P is now back working long hours, six days per week he is thus not available to care for his son during the working day. ..
Having stated the above, it is important that Mr P has regular contact with his son in order to establish and maintain an attachment bond.”[6]
[5] See Ms K’s report at paragraph 35
[6] See Ms K’s report at paragraphs 37 - 38
As a result of these matters, Ms K recommended that T should see his father for a few hours, on most evening of the week, as well as for a longer period on Sunday. At that stage, she did not recommend that T have overnight stays with the father but suggested that they should occur after a “weaning in period”.
On 24 January 2006, the parties were able to agree on some interim orders, along the lines suggested by Ms K, although they were then not able to agree on the contentious issue of overnight contact. At this stage, the parties competing final applications were fixed for hearing on 28 and 29 September 2006.
On 11 April 2006, it was ordered that a family report be prepared to assist the court on the final hearing of the matter. On this occasion, it was also ordered that the father have contact with T, on each weekend between 4.00pm Saturday until 4.00pm the following Sunday, as well as for a few hours on two occasions each week, between the time the father left his work and 7.30pm. These orders have continued up until the present time.
Ms K has not revisited the family, since she saw them in mid January of 2006. As has previously been indicated, the family report, ordered by the court on 11 April 2006, was prepared by Ms F. Ms F did not give additional oral evidence before the court on the final hearing of the matter, because she was in C at the time of the final hearing. Up to this stage, neither party had sought any orders in respect of the division of their matrimonial property.
On 9 May 2006, the wife filed an amended response in which she sought such property orders. In particular, on an interim basis, she sought orders that the father pay all the necessary mortgage payments in respect of the K R property. The father did not formally respond to this application but did file an affidavit, on 6 June 2006, setting out what he asserted was his financial position at the time. He deposed that he was then insolvent and the parties’ had no equity in the property. He did not oppose the property being immediately sold. On 8 June 2006, I made the following orders:
1. That the parties do all necessary things and execute all necessary documents to place the property known and situate at 2 I W, K R, N S W on the market for sale by private treaty.
2. That in order to give effect to order 1 hereof the wife be at liberty to place the property in the hands of an agent to be appointed by her for sale at a price to be nominated by her.
3. That in the event the husband fails to execute any required documents to give effect to order 1 hereof pursuant to section 106A of the Family Law Act the Registrar of the Court at D be authorized to execute any necessary deed or instrument in his stead.
4. That in the event that there is either a deficit of funds or a surplus of funds following the sale the issue of how such deficit or surplus is to be apportioned between the parties be determined at the hearing of the parties final applications on 28 September 2006 unless agreed between the parties prior.
5. That the husband file and serve an amended response and a Statement of his Financial Circumstances by 14 September 2006.
It is common ground between the parties that the K R property has not been sold. Although authorised to place the property on the market, the mother has elected to await the outcomes of these proceedings. She is fearful that she may be left with some personal liability in respect of the short fall on the mortgage secured against the property, which she is unwilling to assume. It seems that the position in respect of the mortgage has gone from bad to worse.
Ms F’s report was released to the parties on 15 August 2006. Unfortunately, it was only at a late stage that it was ascertained that she would not be in Australia, when the final hearing had been scheduled. Neither party wished to delay the hearing of the matter.
The father’s previous solicitor has withdrawn from the proceedings and the father has acted on his own behalf during the final hearing. He has prepared his own affidavit material. Mr P has not formally set out the final orders he seeks in the matter. In particular, he has not set out any orders, which he proposes in respect of the property issues. It seems to be his position that these issues are hopeless and nothing can be done to avoid his bankruptcy and almost certainly the bankruptcy of the mother. He is however prepared to assign his entitlements in the J H superannuation scheme, to the mother, but asserts that he has no other assets, of any significant value, available to him.
In regards to orders so far as T is concerned, as has previously been indicated, the father is vehemently opposed to any immediate relocation of T to S A. It seems to be his position that T should remain living with the mother in D, until at least October 2008 and, during that period, he should spend time with the father on alternate weekends from 5.00pm on Friday until 5.00pm the following Sunday, as well as between 4.30pm and 7.30pm on each Wednesday and Friday.
The father would also wish to be able to take T on a two week holiday each year, during the Christmas holiday period. However, he concedes that T should spend time with each of his parents on Christmas Day itself. When T commences pre-school, the father concedes that it may be disruptive, to T’s routine, if he continues to see his father on each Wednesday and Friday and, on this basis, he would have no objection to the discharge of this aspect of his proposed orders, at that stage.
In support of his position, the father relies on the following affidavits:
·Seven affidavits of himself filed variously on 27 and 28 September 2006;
·A statement of his financial circumstances filed on 26 September 2006;
·An affidavit of A D McK filed 27 September 2006;
·An affidavit of M H and T H filed 27 September 2006;
·An affidavit of J M F filed 27 September 2006.
In a minute of proposed orders filed with the court on 14 September 2006, the mother indicated that she seeks the following orders:
1. That the child T P born 22nd October 2003 live with the respondent wife.
2. That the said child be permitted to relocate with the respondent wife to the State of S A.
3. That the applicant husband spend time with and communicate with the child at all times agreed but failing agreement as follows:
a.Until the child reaches five years of age:
i. For a period of one week on at least four occasions each year with the husband giving the wife 21 days notice in writing of his intention to spend time with the child.
ii. Reasonable in person time with the child upon the husband giving the wife notice of his intention to travel to S A.
iii. Liberal communication by telephone.
iv. Daily communication by webcam.
v. Communications by email and ordinary post.
b.When the child reaches five years of age:
i. For half of all school holiday periods.
ii. Reasonable in person time with the child upon the husband giving the wife notice of his intention to travel to S A.
iii. Liberal communication by telephone.
iv. Daily communication by webcam.
v. Communications by email and ordinary post.
4. That the husband be responsible for all sums outstanding on the parties mortgage in respect of the property situated at K R, N S W.
5. That the husband transfer all of his right title and interest in any superannuation policies standing in his name to the wife.
6. Further/other orders as the court deems appropriate.
In support of her position, the wife relies on the following documents:
·An affidavit of herself filed 14 September 2006;
·A statement of her financial circumstances filed on 12 September 2006;
·An affidavit of her mother, C D C filed 14 September 2006.
In addition, the mother arranged for Ms K to give additional oral evidence in the proceedings. She was called as the court’s witness. Of these various witnesses, only the parties themselves and Ms K provided oral evidence in the proceedings and were subjected to cross examination.
The evidence
In a technical sense, the father’s case was not particularly well prepared. He is not a trained lawyer. He left school at an early stage. It was my impression that he is not a person who is particularly comfortable with written expression. Many of his affidavits had attached to them documents, which he asserted were important to his case, as well as some hand written statements from people who are his friends and who wrote as to his good character and his love of T. Notwithstanding these deficits in legal skills and preparation, the father is clearly an intelligent person, who was more than capable of putting his case across.
In the past, there has clearly been a high level of tension between the parties. The issues that confront them are complex ones, which have the potential to elicit strong emotional reactions. In these circumstances, it was regrettable that the father was called upon to cross-examine the mother. However, to his great credit, he was polite both to her and to the court. For this I was grateful.
Neither party struck me as being particularly adept in terms of financial management. This was reflected in the almost complete absence of any documents relating to their financial affairs, particularly their debts, being tendered before the court. The father, in particular, seemed ignorant of these matters, especially the fine detail. This made the unravelling of the parties’ financial affairs, in the face of the mounting wave of debt confronting them, particularly difficult. I do not think that this was as a result of any disingenuity on either of their parts, rather it is a reflection of their mutual financial ineptitude.
I do not think that this is a case which turns on credit. In my assessment, both parties are decent and honest citizens, who clearly both love T. I accept that both parties have adopted the respective positions which they have done in these proceedings, because they believe respectively their’s is the outcome likely to achieve the service of T’s best interests in future. Certainly I do not think the mother wishes to move to A out of any feeling of spite she may feel for the father or a desire to curtail his involvement in T’s life in future. Similarly, I believe the father wishes T to remain living in proximity to him because he believes that this will be the best outcome for T and not because he wishes to frustrate the mother’s ambitions or plans.
However, the parties are quite different people by way of temperament and disposition. As a result, they have a very different approach to the responsibilities of being a parent and different emphases on what is important in life. The father prides himself on speaking his mind, in a blunt or plain fashion. He describes himself as “not the most sensitive of blokes”. He acknowledges that his sense of humour may be regarded, by some, as unusual. His is not a personality, which in any way could be described as deferential.
The father describes his adolescence as being a “tough” one. He was big for his age and was apparently picked on because of his size. He left school at 15 and began working as a builder’s labourer, on building sites in T. He grew up in the “school of hard knocks”. It is to the father’s great credit and a mark of his innate intelligence that he has progressed to hold very senior positions, in the construction industry, without any formal qualifications and by dint of hard work.
The mother seems to have a quieter and more reflective disposition. Undoubtedly, the father was very frustrated that he could not see T more often and on the terms of his choosing, in the period after the parties separated. Given the father’s manner, I can well understand why the mother would find him frightening and would be overawed by him. These were not happy circumstances, for the parties to commence the current litigation, only a short period after they had separated. The advent of the litigation seems to have severely polarised their respective positions in regards to T.
More recently, this degree of polarisation seems to have significantly reduced. The parties have moderated their criticisms of one another. The father concedes that the mother has and continues to provide an excellent standard of care for T. In his expression, T is a “fortunate little boy to be surrounded by such love”. The mother also concedes that T loves his dad and his dad loves T. She acknowledges that T has a lot to gain from having a relationship with his father in future.
Again, to their mutual credit, both parties indicated a hope that they would be able to meet “half way” in respect of their future aspirations for T and their views as to how he should be brought up and cared for. The father is a person who loves the outdoors. His passions are hunting, motor bikes, and shooting. He would like to take part in these various activities with T.
The mother struck me as a tender and solicitous parent, in contrast to the father’s more “rough-and-ready” manner in respect of parenting. Notwithstanding the gulf in the parties’ respective approaches to parenting, I am satisfied that both of them have a great deal to offer T in future. This was a fact which the parties themselves recognised.
These differences in attitude towards parenting are encapsulated by Ms F, in her family report, as follows:
“Another issue is the difference in parenting styles to which T would be subjected. Mrs P believes in ‘regimentation’ which includes strict times for activities, bed, meals etc whereas Mr P believes he is more of the ‘free spirit’. Mrs P is very protective and does not want to expose T to any perceived harm, whereas Mr P believes T should experiment and take normal risks as a way to learn.”[7]
[7] See Ms F’s family report at paragraph 18
In my estimation, both parties attempted to tell the truth about their relationship with one another and provide an honest account of how their respective relationships with T have unfolded and developed. There are significant differences in those accounts. I do not think one of the parties is telling the truth about these matters and the other is not. Rarely are human relationships measured in such absolutes. Rather, the parties have each followed the natural human tendency to reconstruct what occurred during their relationship, from their own particular perspective now. These human tendencies are exacerbated by the adversarial nature of these proceedings.
Like Ms K, I am satisfied that the father has exaggerated the significant of his involvement in T’s life, in its earliest stages. He was the family’s main breadwinner and was necessarily busy at his work, which was demanding and at times required long hours. For her part, the mother has tended to discount the father’s role in T’s life. In its latter stages, there is no doubt that the relationship between the parties was deeply unhappy. Notwithstanding these matters, I accept the father did have a loving and interested relationship with T from the beginning, although he was often involved with his work and some of his other interests. It is also I think clear that the father was not particularly sensitive to the mother’s emotional needs, in this difficult period of their respective lives.
It is a common phenomenon for parents, particularly fathers, who have been involved in the paid workforce, to wish to reappraise their parental role, in the light of relationship failure and make up for lost parenting time. The father has a son C, from a previous relationship. C is now aged about 20. The father was not extensively involved in parenting C, when he was younger. This is now a significant source of regret to the father. He does not wish to repeat what occurred between him and C with T.
In the context of this case, what matters is the relationship between the father and T now and what are the implications for that relationship in the light of both parties’ current applications. In this context, Ms F’s report assumes great significance, as she is the expert who has most recently visited the family and assessed the nature of the relationships between its important members.
In this context, it is highly regrettable that Ms F was not available to expand upon her report and to be cross examined about any matters which are contentious arising from it. In spite of these difficulties, I found Ms F’s report to be thoughtful and well considered, particularly so far as her view regarding the current nature of the relationship between T and his father. In any event, it does not appear to be the mother’s position that she challenges this aspect of Ms F’s report.
In this regard, when Ms F was observing the parties and T, for her report, she noted that T greeted his father with delight. When his father arrived for the interviews, T ran to him, climbed upon his knee and promptly fell comfortably asleep. Later, T was asked to accompany his father, whilst Ms F interviewed the mother. About an hour later Mr P returned with T, who was able to joyfully reunite with his mother. This caused Ms F to opine as follows:
“It would therefore seem that over the past months T has been able to develop a good relationship with his father to the point where he is happy to go off with him and leave his mother. Nevertheless he was happy to find mother when he returned after lunch, and I formed the impression he was glad to be back in her presence. …
With an increase in time spent with his father, T has developed a good relationship with Mr P, amply demonstrated by his climbing up onto him and going to sleep.”[8]
[8] See Ms F’s family report at paragraphs 44 and 46
I accept Ms F’s evidence, which is supported by the mother, that T does have a close and significant relationship with his father. I also propose to accept Ms F’s report into evidence. I appreciate that its recommendations and conclusions have not been subjected to any rigorous scrutiny or cross-examination.
However, in reaching this conclusion, I bear in mind the provisions of section 69ZT of the Family Law Act 1975. Neither party objected to Ms F’s report being before the court. I found it helpful because, as I say, it was the most recent independent examination of the relationship between T and each of his parents. Ms F does not appear to be a family consultant and accordingly the provisions of section 69ZU of the Act do not apply.
Counsel for the mother wished to cross-examine Ms K about the contents of her first report. Ms K is a very experienced psychologist, who has been in private practice, in D, since 1990. The main focus of her practice is on the nature of the relationships between children and their parents. She has extensive experience of working with children, in the field of child protection. In the past fifteen years or so, she has written at least fifty family reports for this court and the Family Court.
The main focus of Ms K’s report, from January of 2006, was on the nature of the relationship between T and each of his parents, particularly on the appropriate level of interaction between T and his father, in the light of the mother’s apparently serious concerns and her formal indication that she sought that all contact, between T and Mr P, be supervised. Ms K has not been able to revisit the family since her report and particularly has not been able to assess the current nature of the relationship between T and his parents. In addition, her report of January 2006, did not specifically address the issue of relocation, although she was aware that this was a significant matter, so far as the parties were individually concerned.
Notwithstanding these limitations on her report, I found Ms K’s evidence to be very helpful indeed. She provided useful evidence regarding the consequences for T, in so far as his relationship with his father was concerned, if he moved permanently away from his father at this stage. Ms K also provided evidence as to the optimal arrangements for T to maintain his relationship with his father in these difficult and changed circumstances.
In these reasons for judgment, findings are made on the balance of probabilities, from my observations of the demeanour of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
a)Chronology and background
The father was born in L, T on 13 April 1963. Many members of his family, particularly his parents, still live in T. He left school after completing Year 10. He has worked in the construction industry for all of his working life. He has a son, C, now aged in his early twenties. The father separated from his first wife, when C was two and moved to S. Accordingly, the father’s relationship with C was interrupted, although I accept the two are now reconciled. The father operated his own construction business in D for a number of years, in the early to mid 1980’s. It was apparently a success. Later he returned to S, where the parties met.
The mother was born in C, I on 20 May 1965. She came to live in Australia at the age of four. She grew up in S, with her parents and brothers. She left school after completing Year 12. She has a background of working in administration and as a personal assistant. At times she had to work long hours. The mother has not been previously married. T is her first child. In future, the mother’s preference would be to work in a less stressful work environment.
The mother’s two brothers live in A with their families. The mother’s own mother, Mrs C C, herself moved to A, from S, to be nearer her sons and grandchildren. In addition, Mrs C’s three brothers, one sister and their respective children and grandchildren also live in A. I accept Mrs C’s evidence that she shares a close relationship with all her children and the family is a close and interconnected one.
The mother herself has never lived in A for any lengthy period of time. She has however visited on five occasions in order to spend time with her mother and other relatives. She was impressed by A and anticipates it will be a pleasant place for her to live with T in future.
The main appeal of A, so far as the mother is concerned, is that it will enable her to be close to her mother and other family members; she anticipates that property rental rates will be considerably cheaper in A than D; and she believes that A is likely to offer T more educational and recreational opportunities, in the long run, as it is a larger population centre, than D. However, the mother has no close friends, of her own age, in A.
Initially, in the event the mother is able to move to A with T, she proposes living with her mother in the suburb of F. Thereafter, she will look for suitable accommodation, for her and T, close by. Her researches indicate that a two bedroom townhouse, with an enclosed garden, can be rented for a sum of approximately $170.00 per week. This is the sum she is presently paying for a much smaller flat in D. The mother does not own a motor vehicle. In A, she has been promised the use of a vehicle, by one of her brothers.
In the short to medium term, the mother does not propose returning to the paid workforce. She wishes to be available to care for T, on a fulltime basis. When T commences primary school, the mother hopes to obtain some part-time work, to augment her finances, but intends to remain focused primarily on providing care for T.
It is common ground between the parties that they came to live in D, with T, on 31 October 2004. Accordingly, the mother has not yet lived in D for two years. She has never previously lived in the town. Regardless of the rights and wrongs of the matter, it is clear that the period of the parties’ married life, between October 2004 and the date of their separation was an unhappy one.
The mother was living in a new town and had the primary care of a toddler. It is the mother’s evidence, which I accept, that she has not made any close friends in D. Since the parties separated, the mother has been attending a regular playgroup with T. She met two mothers through this playgroup but they have since left D. The mother categorises D as a town of “transients”.
I accept therefore the mother has no long standing connections with D. She came to the town only because of her relationship with Mr P, who saw economic advantages for the family in the town. With the end of her relationship with the father, Ms P’s reason to be in D, apart obviously from considerations to do with T, came to an end. Quite simply D is not where the mother wants to be. Because of her dissatisfaction with the town, the mother is likely to be blind to the attractions others see in the place. I am not critical of her in this regard. D is a place she associates with unhappiness and dissatisfaction.
In such a frame of mind, it is likely to be difficult for the mother to seek out friends and explore recreational and social opportunities. The mother did not strike me as being a particularly shy person but nor did she strike me as being exceptionally extrovert or confident. This was in marked contrast to how the father appeared to me. In these circumstances, the mother feels she is living in “limbo”, until this case is determined one way or other.
For obvious reasons, it is not a particularly conducive situation in which to put down roots or make plans. The mother has not however provided any comprehensive medical or psychological evidence, regarding whether her mental health is at risk, if she remains living in D. The mother’s position can be summarised by the following extract from her affidavit:
“I separately wish to return to A to live with the support of my mother and extended family. I feel that I am just existing here in D. I do not have any friends. I have no family living here in D. I often feel quite lonely and feel unhappy and sad about what my life has mounted to here. I find iv very difficult to make any plans as I just do not want to be here.”[9]
[9] See mother’s affidavit of evidence at paragraph 66
Having lived in the N T in the past, the father is a great enthusiast for the lifestyle it offers, particularly so far as outdoor activities are concerned. It is the mother’s position that the father preferred to pursue these outdoor activities, in the latter stages of the marriage, in preference to spending time with her and T. Certainly, my impression of the father is of a bluff and outgoing person, who makes friends easily. It is in this context that an advertisement, which the father placed in the personal columns of the N T News on 30 July 2005, must be considered. The advertisement read as follows:
“Woman wanted. Must own gun and shoot, own trail bike and four wheel drive, fish and like outdoors.”
The advertisement provided the father’s mobile phone number.
As I have myself lived in the N T for many years, I think I can take judicial notice of the reach of the circulation of the N T News, within the D community. If ever a newspaper had reached saturation point in its circulation, it is the NT News, which is thoroughly read and digested by many people each day. At the time the advertisement was placed by the father, the mother was working as a receptionist at J H. It is her position that she was deeply humiliated by the advertisement, which was read in her office and could easily be attributed to the father, because of the inclusion of his phone number in it. I accept the mother’s evidence in this regard.
It is the father’s evidence that the advertisement was placed as a joke and is an example of his unconventional and outlandish humour. This may be so. However, in my view, it is evidence of the father’s emotional insensitivity. It was in this context that the father acknowledged that he was not “the most sensitive of blokes.” To his credit, the father publicly apologised to the mother in court for the understandable offence she took from the advertisement. In my view, the advertisement and the parties’ different views of it, amply demonstrate the emotional chasm which exists between them.
It is the father’s evidence that he received several responses to the advertisement. He concedes that it was common knowledge at J H that he had placed the advertisement in the paper. Both from the responses received from his workmates and the people who replied to the ad, the father’s view is that the general consensus was that the ad gave everyone a “good old laugh.” The father met a Ms P C, as a result of the ad. In the father’s words, Ms C is “one of the boys and like a mate”. It is neither necessary nor appropriate for me to make any findings regarding the nature of the relationship between the father and Ms C, other than that the mother was dismayed by it.
The father refutes any suggestion that he was not closely involved with T’s care from the moment of his birth. I accept that Mr P was present at T’s birth. Undoubtedly T’s birth was a life changing occurrence for the father and he loves and cares for T very much. I accept he bonded with T, during the first twelve months of his life.
However, like Ms K, I consider it likely that substantially more of the responsibility for caring for T naturally devolved onto the mother. Although the father took time off work, he remained the family’s primary financial provider. He also seems to me to be somewhat gregarious. As I have already indicated, I find the mother to be an exemplary and caring mother, who was understandably absorbed with T. The father did pursue his other interests, including his social ones, during the marriage, particularly during its latter stages, but he was also able to spend significant amounts with T.
The parties also have very different views about parenting. Too a significant degree, both were first time parents, who came to parenting in their forties, when T was born. The mother was anxious to learn as much about parenting from books on parenting and similar educational material. This was not an approach favoured by the father, whom I suspect does not react well to learned suggestions as to how to approach things he regards as fundamental, such as parenting. Increasingly, during the latter stages of their marriage, when both were unhappy, the parties found it increasingly difficult to compromise about such matters. The mother was apprehensive about T being exposed to some of the father’s interests, particularly shooting and hunting.
In my view, Ms F ably summarises the differences between the parties’ parenting styles, when she wrote as follows:
“It would seem that with his mother T has a more structured lifestyle than when he is with his father. While he does need the routine and consistency provided by the mother, in my opinion he also needs the opportunities his father provides that will allow him to explore his environment and broaden his view of the world. As he gets older he will cope better and better with two different parenting styles. I believe he should be eased into this at a pace suited to a young child.”[10]
[10] See Ms F’s family report at paragraph 45
Notwithstanding the obvious stressors in their relationship, I accept the father’s evidence that the parties’ separation came out of “left field”, so far as the father was concerned and left him feeling “shattered”. The mother moved into a refuge with T. She did not advise the father she was leaving. The mother’s preference was that the father should have only supervised contact with T. It also seems likely that the financial crisis surrounding the parties was beginning to deepen. Undoubtedly, the parties’ separation, and the period which followed it, were difficult and traumatic for all concerned.
In spite of all these difficulties, in the period since September of 2005, the father has been able to maintain and extend his relationship with T. The father has attended a PPP parenting course. He has behaved reliably in regards to spending time with T. To the mother’s great credit, despite her hostility and concerns about some aspects of the father’s insight into parenting, she has been supportive of the father spending time with T. Accordingly, although relations between the parties remain raw and there is a gulf between them regarding their respective attitudes towards parenting and, to some degree, so far as their aspirations for T are concerned, there are some hopeful indications in their parental relationship. As Ms K noted, both the parties are intelligent people, who want the best outcome for T.
The mother confirms Ms F’s assessment that T “has been able to develop a good relationship with his father regardless of the amount of care Mr P may or may not have provided when [T] was younger.” In her affidavit material, the mother deposes as follows:
“I believe that R has been able to develop a good relationship with T and that T enjoys spending time with his father. Whilst I believe that R has made an effort to parent out child, I am still concerned that R will expose our child to danger if he takes our child hunting or fishing. I am worried about R consuming alcohol and drugs whilst T is in his care.”[11]
[11] See mother’s affidavit of evidence at paragraph 30
The father bitterly refutes any suggestion that he has any significant difficulties, so far as the consumption of alcohol or illicit drugs is concerned. He denies he was sacked from employment with a large construction firm in S because of cocaine use. He denies introducing C to the use of marijuana or that he himself uses the drug. In the absence of corroborating evidence, I do not believe that I am able to make any definitive finding about these matters. However, I note that the father has been able to maintain responsible employment over many years. My assessment of the father is that he is of a somewhat convivial disposition. He concedes that he enjoys a beer. His present position is that he is unable to drink alcohol due to the medication he is taking for a skin complaint.
In my assessment, the greatest threats to T’s wellbeing in future come, not from the father’s consumption of alcohol, but from the conflictual parenting relationship of the parties; their different views about parenting; and the parties’ current difficulty in empathising with the position of the other parent concerned. As T grows older, he may potentially have to negotiate moving between two very different households. The father views the mother as being unduly protective of T and hyper vigilant about him as a result. The mother regards the father as being lax about safety issues and dismissive of her concerns about what is developmentally appropriate for T.
All in all, my assessment of the parties’ temperaments and attitudes towards parenting, largely coincides with that of Ms F. She described the parties as follows:
“In summary, Mr P presents as an easy going man who believes children should be given every opportunity to try things in life. He does not believe children should be restricted by rules and can be dismissive of those who have different ideas from his own. He demonstrates a lack of awareness of the feelings of others which can expose them to emotionally stressful interaction with him. Nevertheless, he appears concerned about the welfare of his son and wishes to participate at more than a casual level in his life.”
“In summary, Mrs P presents as a caring but anxious parent who wishes to absolutely protect her son. Her way of doing this is to maintain a stable environment with consistent rules and routines. She remains untrusting of Mr P, his motives and his parenting and is concerned that he will not put the child’s needs above his own. The only way she can see herself moving on in life is through a move to A where she would feel no longer under the influence or watchful eye of her ex partner.”[12]
[12] See Ms F’s family report at paragraphs 29 and 36
As I have already observed, I think the position of both parties have validity. It is a common phenomenon amongst separated parents, particularly when there is a poor relationship between them, for the parent (very often the mother), who provides the children’s residence, to be accused of being unduly protective by the other parent (very often the father), in respect of parenting issues. In turn, the parent who is primarily involved in day to day issues of care for the children concerned, asserts that the other parent is insensitive to the proper emotional and other needs of the children and is putting his or her emotional needs to the fore, rather than those of the children. These difficulties become more pronounced, when children of tender years are involved. All these difficulties are present in this case.
The conflict between the parties and the adversarial nature of these proceedings causes the parties to view the other, and his or her motives, through a prism of hostility. As the analogy is designed to convey, this tends to have a distorting affect on their perceptions of the evidence. The father may be more laissez faire in his parenting than the mother. However, the fact remains that I do not believe that he would either negligently or willingly expose T to harm. Undoubtedly the mother is very protective of T. This is as a result of her own upbringing and her undoubted love of the child. There are likely to be benefits to T from both types of parenting. It remains my assessment that both parties have much to offer T in the future.
b)The parties’ current circumstances and proposals
The father is happy living in D. He enjoys the lifestyle of the Top End and makes friends easily. He commands a good salary at J H. He currently receives a salary package of approximately $120,000.00 per annum.[13] Of this sum, he receives a gross salary of approximately $95,000.00, the remainder being superannuation contributions. He also has the use of a motor vehicle. After payment of tax, he receives the sum of approximately $6,400.00 per month in cash.
[13] See Exhibit “2”
Apart from tax, the father’s major expenses are his rent of $380.00 per week and child support for T of approximately $250.00 per week. He has other recurrent expenses, regarding credit card debts and loan repayments in respect of his motor vehicle. It remains a considerable bone of contention between the parties that the father is renting a three bedroom home, in a rural setting, whilst the mother is living in a small flat in suburban D. The father also pays a person to assist with gardening and cleaning.
The mother receives a single parent benefit of $308.52 per week and the child support of $250.00, to which reference has already been made. Accordingly, at the present time, there is a gross disparity in the parties’ financial positions. This disparity heightens the mother’s perception that the father is selfishly trying to organise her life and has no understanding of her feelings. No doubt, it heightens her sense of feeling powerless.[14]
[14] See Ms F’s family report at paragraph 33
Initially the father had a fixed term contract with J H. His motivation for taking up the position with the firm was purely financial. He concedes that, in the latter stages of the parties’ marriage, he applied for a number of positions, with large construction firms in Q, W A and as far away as D, V and S A. It is now his position that he feels a sense of loyalty to J H, who have treated him well and would not consider leaving the firm. I find that, if the right position came along, so far as the father was concerned, he would take it, but I do not believe the father is actively seeking an alternative position at the present time.
After an extensive period of being self-employed, n the construction industry, the father is now employed by J H, s a site manager. J H is involved in the construction of large infrastructure projects in Australia, such as dams; major railways and highways; and other large buildings. At present, J H has the contract to construct the additions to the R B for the Australian Government. It is a multi-million dollar project. The father anticipates the company will be involved in constructing the barracks and associated projects in the D area for many years to come, particularly whilst the Government is committed to moving defence resources to the north of Australia. Accordingly he believes he is likely to be able to be employed by J H indefinitely. I accept that this is so.
It is the father’s position that his expertise is highly specialised. J H do not have a branch in S A. It is the father’s position that there are currently no large scale infrastructure projects, available to provide employment for him, in S A. It is therefore the father’s case that, if he moved to S A, inevitably he would be compelled to seek work for a small scale construction firm or to commence his own building operation and, just as inevitably, this would result in a significant drop in his wages. Certainly, he could not seek a transfer with J H. Apart from his assertion of the fact, the father has provided no evidence regarding the dearth of employment opportunities, in the construction industry, in S A and nor has the mother.
Regardless of this lack of evidence, I accept that, for the father to change his employment in the short to medium term, would be neither his preference nor an easy matter to achieve. I accept that it would result in a considerable level of disruption for him and almost certainly a loss of income and security. I accept that the father’s current position suits him and he would not wish to change it. Overall, it is the father’s position that, if his income drops significantly, this will be a significant detriment not only for himself but also for the mother and T, particularly given the parties’ uncertain financial future at the present time. I accept that this is so.
Accordingly, it is the father’s position that it is very difficult for him to consider moving from D at the present time and this most certainly would not be his preference. However, he indicated to Ms K that he would move to S A, if the mother moved there with T.[15] Apparently, he did not repeat this commitment to Ms F in August of this year.
[15] See Ms K’s report at paragraph 22
The father concedes that employment in the construction industry can be both stressful and time consuming, particularly when the project involved reaches a hazardous stage in its construction, such as a large concrete pour. The father has no plans to change his mode of employment. He presented a letter from J H, which indicated that the firm was committed to supporting its employees to achieve a “work/lifestyle balance”. Accordingly, it is the father’s position that his present employer would be able to accommodate his need to spend more time with T in future.
Although I find the sentiments enunciated by J H to be laudable ones, I am concerned that they will be hard to put into practice. I am concerned that the father’s employment will remain time consuming. By implication, the father recognises this by the moderation of his application, which originally sought that T should spend equal periods of time in his and the mother’s care in future. The father recognises that such a proposal, which would necessarily entail him being highly reliant on child care, would not necessarily be in T’s best interests. Having said that, I have no reason to doubt the father’s desire to be as closely involved in T’s care in future or to doubt that Mr P has a high level of commitment towards T.
In this regard, Ms F reported as follows:
“Mr P went on to say he wants to be part of the child’s life, to be involved in the P & C, involved in the first day at school, to go to sports and be involved in coaching.”[16]
However, although I do not doubt the father’s commitment to T and his fervent desire to be as closely involved in T’s life in future, I am concerned how this will work out in practice. On the other hand, there is no doubting the mother’s capacity to make her life and commitments subservient to the needs of T, in every sense of that word.
[16] See Ms F’s family report at paragraph 24
The tenor of the father’s case is that the mother has not given D “a decent go”. He believes that she could make friends and a home for herself in D, if she was so minded to do. It is position that he would provide the mother with additional financial support, to this end, if she requested it. In the past, he has offered to give her the parties’ former family car. The father is also fearful that, in the event he remains living in D and the mother and T move to A, she will not be supportive of his relationship with T and will not inform him of important matters to do with T’s care in future.
I have already alluded to how the mother feels emotionally in D – trapped and alone. In these circumstances, it seems unlikely that Mr P will be the source of any great emotional support for the mother, if she is compelled to remain living in D against her will. It seems highly implausible that the mother will turn to Mr P for such support, as he will be, in effect, the author of her confinement in the town. I also note that Mr P has not as yet been forthcoming with any additional financial support for the mother.
No doubt, as Ms F observes, these factors will intensify the mother’s apprehension that Mr P does not hear her concerns and does not care about her personal feelings. It is hardly likely to be a situation conducive to the parties building a better relationship with one another. Given the father’s somewhat demonstrative and assertive personality, I can understand that the mother would feel she has been bullied by the father in the past and will continue to be so, if she is compelled to remain living in D.
To Ms F, the mother reported as follows:
“Mrs P informed she found her relationship with Mr P quite emotionally abusive. She now copes with him by remaining distant and having as little contact as possible. While he is aware of her address, he does not have her unit number and handover occurs on the footpath of her address. As a result of her feelings of intimidation, Mrs P found the interviews for this report much more stressful than did Mr P. However, she coped well with them and participated appropriately in order to provide as much information as she could about her family”[17]
[17] See Ms F’s family report at paragraph 34
It is my assessment that the mother has been able to encourage T to have a positive relationship with his father, notwithstanding that she has had significant concerns about Mr P’s abilities as a parent. The sub-section also requires that I make some assessment of how the mother will facilitate this important relationship in future, particularly if the proposed relocation takes place. In my assessment, the mother will do her best to be supportive of T having a good relationship with his father in these circumstances.
The father greets the prospect of interacting with T in future, via a webcam, with horror. Obviously, such a medium does not provide a high level of physical intimacy. However, the technology is a marked improvement on telephone communications. I accept the mother’s assurance that, in the event of a relocation, she would encourage and facilitate T maintaining his relationship with his father, via such a medium in future.
There is no evidence before me to indicate anything other than that the father has been reliable in respect of his child support responsibilities for T. In addition, there can be no doubt that he has fully pursued every opportunity available to him to spend time with T. He too has spoken warmly of T’s relationship with his mother and the tenor of his evidence is that he acknowledges the centrality of this relationship to T.
I acknowledge that the possibility of T being relocated to A is likely to subject the parental relationship between the parties to a significant level of pressure. Undoubtedly, the father will be disappointed at such an outcome. In the past, the father has indicated that he, in the event of such an outcome, would move in order to maintain his relationship with T. This is to his credit and indicates the centrality of his relationship to T in his future plans and lifestyle decisions. As previously indicated, the principles set out in section 60B(2)(c) of the Act emphasize parents sharing duties and responsibilities regarding the care of their children. An indefinite restraint on the mother moving away from D may mean she bears too much of the responsibility of ensuring T has a meaningful relationship with both his parents.
At present, it is the father’s position that it is not practicable for him to move. But clearly it is not impossible. It may however involve some reappraisal of his personal priorities in life. In my view, the best prospect of the parties’ being able to move to A in tandem, and so possibly achieving some level of parental cooperation in future, is if some form of moratorium is placed on the mother’s desire to move. However, all of the possible outcomes in this case, are likely to raise significant issues regarding the parties’ future parenting relationship with one another and necessarily their respective facility to encourage T to have a close and loving relationship with the other parent concerned.
d)The likely effect of any change in T’s circumstances, including the likely effect of being separated from one of his parents
Assessing the effects of changes and separations are at the heart of this difficult case. In addition, the court must make some sort of assessment of the likely consequences of a moratorium, both in the short and medium term. Obviously, this cannot be a precise exercise and must involve some form of speculation. The implications for T, of these proceedings, is likely to be profound, whatever is the outcome. These difficulties are compounded by the fact that T is a very young child, whose relationships are not fully formed.
The most important and obvious change, which will flow if T immediately relocates to A, is that it will greatly reduce the level of the father’s involvement in his life. At present, T sees his father frequently. He knows and loves his father. If Mr P remains living in D for the foreseeable future, at best, T will be able to see his father on up to four occasions a year. Inevitably, the current level of relationship between T and his father and the potential for it to be extended, will be greatly diminished. This is the most significant factor which militates against such a relocation.
In my view, there is a significant risk, in the event of relocation, that T’s relationship with his father will dissipate, between the periods of time, when they will be able to be together. Even if this is an overstatement of the case, Ms K concedes that it will be difficult for the relationship between the two, in the short term, to be extended. In the longer term, T may be deprived of the opportunity to have a close and intimate relationship with his father in future because of this early potential disruption to it. I accept that the years of early childhood are significant for the establishment of parental bonds.
At present, necessarily, T has very little understanding of temporal concepts and why people come and go in his life. He is unable to rationalise such matters. More importantly, in spite of the mother’s assertion that T is happy to chatter with his grandmother on the telephone, T’s verbal skills must be limited. In my view, any conversation between Mr P and T, via the telephone, will be extremely limited. T cannot himself use the telephone as yet. At three years of age, his attention span will be limited, as will be his capacity to speak. As I have already indicated, a webcam may be better but it is still a somewhat stilted mechanism, for a parent to communicate with a child of preschool age.
One of the major factors militating against the mother’s proposal for an immediate relocation and in favour of a moratorium of some kind is that such a moratorium will enable T to extend his existing level of relationship with his father and for his verbal and cognitive faculties to become more developed, so that when the time for relocation comes, T’s relationship with his father will be more resilient to the change and will be more easily sustained through the process of communication by webcam and spending regular periods of time with Mr P in future.
However, the major detriment of this outcome can easily be stated – it would represent a significant imposition on the mother’s entitlement to freedom of movement and is likely to make her feel bitter and unhappy. It may constitute a significant blow to any chance of the parties having a cooperative parenting regime with one another. As I have already indicated, if such an arrangement is to come about, I believe it is more likely to arise organically rather than through court fiat.
At a basic level, D is not where the mother wishes to be. As I have outlined, her connections with the city are not strong. If there is a moratorium, inevitably the mother will feel that it has come about at the instigation of the father, who is able to keep her a prisoner in D against her will, without any commensurate loss of freedom or opportunity on his part. This is obviously not a factor, which is likely to lead to the mother becoming better disposed towards the father. In this regard, I do not think that she has any extraordinary stores of magnanimity.
The major advantage of a moratorium, of about twelve months, is that it would allow the relationship between the father and T to solidify and become more established. The mother is more likely to be able to cope with such a moratorium, as opposed to an indefinite restriction on her moving away from D. To continue the analogy, if this was the outcome, although she would be a prisoner in D against her will, at least she would have the benefit of a release date. In addition, it would also provide the father with time to investigate the possibility of himself moving to A.
As the High Court pointed out, the prospect of the father moving to A should not be regarded merely as a theoretical or forensic test of his level of devotion to T. It is a matter which both the court and Mr P himself should actively examine. It would seem to be unreasonable that, on the one hand, it should be open to the father to indefinitely restrain the mother in D, against her will, with no consideration being given, on the other hand, to the possibility of the father pursuing an outcome which although unpalatable to him, may nonetheless be the outcome best calculated to serve T’s interests.
The practical difficulty and expense of T spending time and communicating with his father e)
Considerations grouped under this sub-section loom large in this particular case. It is a very long way between D and A. In the event of a relocation, either the parties or T will inevitably have to travel between the two locations by air. Given T’s age at the present time, it will be very difficult for him to travel frequently between the two cities. It is also likely to be difficult for him to sustain periods of extended separation from his mother to spend time with his father, at least for the next year or so. Accordingly, in the event of an immediate relocation of T to A, there will obviously be significant practical and financial difficulties involved with the father being able to spend time regularly with T, face to face.
These difficulties are likely to be compounded by the current uncertain but parlous financial situation confronting the parties. If Mr P does become bankrupt, he is likely to have less disposable income in future. The mother has a very limited income and certainly it is difficult to see her being able to contribute any significant sums towards either the costs of T flying to D or of Mr P flying to A, on up to four occasions each year, as she proposes. In addition, in an ideal situation, Ms K opines that T should have more frequent opportunities to spend time with his father than once every three or four months. Ms K’s preference, at this stage of T’s development, is that T spend time with his father every six weeks or so.
In my view, these various considerations favour either the mother being restrained from moving T from D or some form of moratorium. Obviously, the considerations under this particular sub-heading are closely related to the primary consideration, as set out in section 60CC(2)(a). The relocation the mother proposes is a radical one. Potentially T will be removed to the opposite end, of a large continent, away from his father. Inevitably it will be difficult for T to have a meaningful relationship with his father in such circumstances.
f)The capacity of the parties to provide for T’s emotional and intellectual needs
i)The attitude to T, and to the responsibilities of parenthood, demonstrated by each of the parties
These criteria are so closely linked that it is convenient to consider them together. The parties’ quite different personalities and past experience of parenting, inform their attitude towards the responsibilities of being a parent. The mother is a protective and solicitous parent. She has made diligent attempts to seek out parenting information. On the other hand, the father asserts that he has learnt about parenting from his own experience with C and from observing and being involved with his own nieces and nephews in the past. He believes that children should be open to all sorts of experiences, rather than be restricted to a particular routine.
Both parties’ approaches have validity. As Ms F observed, T is likely to benefit from both aspects of care available to him from each of his parents. Again, the potential benefit children receive from being involved with their parents, in all manner of situations and circumstances, is one of the underlying rationales of the recent amendments to the Family Law Act 1975.
It seems clear that both parties wish T to have every opportunity to develop to the full extent of his capabilities. Perhaps rather parochially, the father sees great benefits to T from remaining in the N T. At this stage of his development, I think educational considerations, so far as T is concerned, are not likely to be significant in this case.
It is the mother’s position that she will be better placed to provide for T’s needs, particularly his emotional needs, if she is able to move with him to A. In essence, she asserts that if she is happy and well settled, so will T be. Part of this sense of settlement will be provided by the expectation that she, as a parent, is able to pursue her own ambitions and lead a life of her own choosing, untrammelled by her former partner.
In Fragomeli & Fragomeli[59] the Full Court of the Family Court said as follows:
“The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare… a child’s welfare may well be adversely affected if the custodian’s movements are restricted. If the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which might adversely affect the child…”
[59] Fragomeli & Fragomeli (1993) FLC 92-393 at 80,023
These are significant considerations, which favour the mother being able to move T’s place of residence at the time of her choosing, rather than of Mr P’s. I accept the mother is likely to be significantly happier in A than D. Necessarily, this must have some flow on consequences for T’s sense of security and stability.
g)The child’s maturity, sex, background and other characteristics
h)Aboriginality
These considerations do not appear to be strongly relevant in the present case.
Any family violence involving T j)
k)Any family violence order
As I have already indicated, the father has an assertive personality. The mother was described by Ms F as being “anxious and feeling bullied” by Mr P. Undoubtedly, the relationship between the parties has been tense and difficult. However, I do not think that the behaviour, of which the mother complains, can be characterised as being family violence, pursuant to the definition provided by section 4 of the Act. In addition, there are no family violence orders relevant to the proceedings.
l)Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
The rationale behind section 60CC(3)(l) is easy to glean. Litigation, in regards to children, is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, litigation has the potential to perpetuate conflict between parties, which is harmful to the emotional security of the child concerned. Accordingly, it is desirable that courts such as this one make orders that will minimise the prospects of the parties seeking further orders in future.
Unfortunately, the difficult circumstances of the parties make the possibility of further litigation high. Whatever the outcome, one party will feel dissatisfied with the result. If the mother relocates T to A, I am apprehensive that there will be some difficulties in regards to how T will spend time with his father in future. If the mother remains living in D for any lengthy period of time, it is extremely likely that she will wish to revisit the issue of T moving to A with her at some stage in the future. Although it is trite to point it out, the future in this case cannot be predicted, other than that the parties’ relationship is likely to remain problematic for the foreseeable future. The main advantage of the mother’s proposal is that it will provide a clear demarcation point, after which both parties will be able to get on with the remainder of their lives and the father will be able to make the necessary decisions concerning his priorities in life and where he wishes to live in future.
Any other fact or circumstance that the court thinks is relevant m)
Financial considerations loom large in this matter. Given the parties’ straightened financial circumstances, in the event T lives in A and Mr P remains living in D, arrangements for T to spend time with Mr P may potentially be constrained due to the parties’ straightened financial circumstances. Matters are further complicated by reason of the fact that it is uncertain whether either one or both of the parties will be rendered bankrupt in the short to medium term. This outcome is likely to impact significantly upon the amount of surplus cash available to the parties, particularly Mr P.
It would obviously be in both parties’ best interests to avoid bankruptcy, if possible and for the former family home to be preserved and sold later at the best possible price, presuming of course the market improves. For reasons already provided, I have endeavoured to keep the door open, so far as these outcomes are concerned, but the prognosis for achieving these ends is far from clear.
In my view, the uncertainty about the parties’ future financial position is one factor, which marginally favours some form of moratorium on the mother’s proposal to relocate T to A. On the other hand, it is the mother’s position that she will be significantly better off financially in A because the cost of living, particularly so far as rent is concerned, is cheaper in A and she will have all manner of assistance from her family, particularly in respect of the provision to her of a motor vehicle. These are important considerations, which linked to the mother’s overall level of happiness and sense of security in life, favour an immediate relocation.
Conclusions
As these lengthy reasons for judgment indicate, I have not found this to be an easy case to determine. There are strengths and weaknesses in both parties’ proposals, so far as T’s best interests are concerned. In addition, there are pitfalls in the intermediate positions. At the end of the day, it is necessary for the court to focus on how it thinks T’s best interests can be achieved. After 90 odd pages of consideration, the pros and cons of the relocation can be summarised, broad brush, as follows:
Pros:
·Ms P will be happier. There will be no infringement on her right of freedom of movement.
·It is likely Ms P will function better as a parent, if she is living the life of her choosing, close to those whom she holds dear. This is likely to have significant flow on effects for T and his sense of security.
·T will be able to develop relationships with members of his extended family, particularly his maternal grandmother and other relatives.
Cons:
·T’s relationship with his father may lose its potential to reach its maximum level of intimacy, if Mr P remains living in D. At worst, this may result in T not having a fully formed paternal relationship with his father.
·At the age of about three, given T’s likely level of linguistic and intellectual development, arrangements for the father to communicate with T electronically are likely to be difficult.
·Given the parties’ significant financial difficulties and the distance between D and A, it is likely to be difficult for T to spend extended periods of time with his father, sufficiently frequently, for the existing strong nature of the relationship between the two to be maintained and extended.
At the heart of the difficulty, arising from the proposed relocation is that, at the age of not yet three years of age, T may not easily be able to maintain his existing level of relationship with his father, through telephone communications and possibly infrequent blocks of time spent with him in the future. Obviously, these difficulties could be significantly alleviated if Mr P himself moves to A.
The pros and cons of a moratorium can be broadly summarised as follows:
Pros:
·T will have a further period of time in which he will be able to extend is relationship with his father.
·If T is relocated at a more mature age, he will have extended linguistic and cognitive abilities, which will enable him to maintain his relationship with the father more easily through telephone communication and spending block periods of time with him.
·The situation in regards to the parties’ financial affairs may be clearer and the issue of the father’s potential bankruptcy may be resolved.
·A moratorium will give the father time to make inquires regarding the availability of suitable employment for him in A (or S A generally) and so he will be able to make an informed decision about whether he is prepared to move to be closer to T.
Cons:
·Although not absolute, such a moratorium would still be a significant infringement on the mother’s entitlement to freedom of movement.
·The situation is highly artificial and essentially the mother would be compelled to put her life “on hold”.
·The mother may continue to feel unhappy and frustrated and this may adversely impact upon T.
Obviously, the strengths and weaknesses of these respective pros and cons, waxes and wanes in proportion to the length of the moratorium envisaged. The longer the moratorium, the greater is the extent of its unpalatability, so far as the mother is concerned. The shorter it is, the less benefits it is likely to impart to T, so far as the level of meaning in his relationship with his father is concerned.
The main thrust of the enquiry in this case remains which possible outcome will serve T’s best interests. However that inquiry does not occur in a vacuum, divorced from the parties’ legitimate expectations as to how and where they will live in future. Indeed, expectations of these sorts, may of themselves, have implications for the best interests of the child concerned. A settled and happy parent is likely to be a parent who is functioning at the upper range of his or her capacity as a parent and obviously, this a factor of prime importance to the child involved, particularly if that parent is the one predominantly involved in caring for the child.
The recent amendments to the Family Law Act 1975 are significant ones and far reaching. However, in my view, they do not enshrine a principle that separated parents are obliged to remain living indefinitely, in close proximity to one another, to ensure that their children maintain an optimal level of relationship with them both. Practical considerations may make such an outcome unworkable, particularly if it results in the practical negation of a person’s rights, as a citizen, to live how and where he or she chooses. A result which may also have possible and perhaps unforeseen consequences for the welfare of the child concerned.
In the past, it has been said that a person, who has been found to be the most appropriate parent to provide a home for the child concerned, need not provide “compelling” reasons as to why he or she wishes to move with that child. This is so that cases are not artificially dissected into discrete components regarding with whom of a child’s parents a child should predominantly live and thereafter a further issue as to whether or not a relocation should be “permitted”.
In this case, given Ms P’s emotional response to D and her lack of connection and support in the city, which stem from her comparatively brief stay in it, I would contend that her reasons for wishing to move from D are compelling, particularly when Mr P himself does not have deep roots in D. Apart from T and his important relationship with his father, the mother has no reason to be in D. For his part, the father does not challenge that the mother is currently better placed than him to provide for T’s needs, on a day to day basis. Given his commitment to his fulltime employment, he would be hard placed to argue otherwise.
However, at the same time, given the paramountcy of T’s best interests in determining the appropriate outcome of the case, I cannot overlook the imperative of him having a “meaningful relationship with his father, both now and in the future. Parental relationships draw their meaning from the extent, frequency and context of interactions between the parent and child concerned. Given T’s age at present, it is difficult to see that he will derive a significant level of meaning, from his relationship with his father, if T moves to A and the father remains living in D.
I am concerned that the mother’s proposals for block periods of time, augmented by telephone and webcam communications, given the current logistical and financial impediments between the parties, are not sufficient to accord the requisite level of meaning, to which T is entitled, in his relationships with both his parents. The major factors in leading me to this conclusion are T’s age at present and his significant and close relationship with his father, which has developed, notwithstanding the difficult circumstances between the parties, particularly in the period immediately following their separation.
I am concerned that T will simply not have a meaningful relationship with his father, if the relocation occurs immediately. That is not to say that meaning cannot be reformed at a later stage, as the parental relationship between the two unfolds. This has been the father’s experience with C. However, at the same time, I acknowledge that the early years in a child’s development are likely to be both precious to the parent involved and influential, in developmental terms, for the child concerned.
Although, I have grave concerns about the relocation occurring at the present time, given T’s emotional and cognitive immaturity, I also believe that it would be unreasonable to restrict the mother indefinitely to D. It is open to the father to move. I accept that he has secure and well paid employment in D. However, he is not without fault so far as the parties’ current financial crisis is concerned. I can understand why he would wish to remain in his current position but, at the end of the day, it will be necessary for him to consider how he wishes to balance his career and financial aspirations against his desire to be as closely involved in T’s parenting and life as possible. It is not reasonable for him to expect the mother to sacrifice all her future aspirations, both personal and emotional, when he is not prepared to do the same. In a fundamental way it would mean that the parties were not jointly sharing duties and responsibilities concerning T.
I appreciate that, from both parties’ points of view, no less than from T’s, there is much to consider in the relocation. I do not think that the father has closely considered his options in this regard. As recently as the middle of last year, he was prepared to consider working overseas. Accordingly, I do not think his future career prospects are inextricably linked with those of J H. These various matters lead me to the conclusion that T should continue to live with the mother but that there should be a moratorium, of about a year, on her relocating T away from D.
I have come to the conclusion that, although not without its difficulties, such a result will be the best outcome for T and, at the same time, will not represent a complete denial of the mother’s legitimate expectations as to where and how she wishes to lead her life in future. After all, there is no challenge in this case to her status as T’s primary provider of care and nurture. As such, her personal level of happiness and security is likely to have significant implications for T’s own emotional wellbeing in future.
Clearly, the father has much to offer T in future. However, to compel the mother to live in D indefinitely, effectively so that T may have the most meaningful relationship possible with his father, has the potential to cause some detriment to T. It would also mean that the burden of ensuring this optimal level of meaning is provided to T, in his parental relationships, arises solely as a result of the mother’s sacrifice and at the price of the denial of her personal aspirations. Over the period of the next year, the father may reappraise his priorities and consider his options. It is open to the father to move to A so that, by his actions, the relationship between him and T is imbued, in future, with the optimal level of meaning envisaged by the applicable legislation.
As Gummow and Callinan JJ pointed out in U v U “maternity and paternity always have an impact upon the wishes and mobility of parents; obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement having been incurred.”[60] In this case it is not valid to expect the mother alone to be the parent who suffers restriction on her personal choices so that T may have the most meaningful relationship with both his parents. I must not assume that the father himself cannot, in the not so distant future, move to A, as he previously said to Ms K he would. I must also not compel the mother to subordinate her wishes to those of the father, and so allow him to pursue his life and work in the place of his choosing, ostensibly so that T’s best interests are served.
[60] U v U (supra) at 89,091
In U v U, Hayne J said as follows:
“If effect is to be given to those principles, [the principles underlying Pt VII of the Act] it must not be assumed that one parent (the father) cannot move and the that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in the place of his choosing. It is the interests of the child which are paramount, not the interests or needs of his parents, let alone the interests of one of them.”[61]
[61] U v U (supra) at p 89,103
These comments appear apposite in the present case. Apart from financial reasons, there are no compelling reasons why Mr P should remain living in D. However, for understandable reasons, he wishes to remaining living in the city where he is happy and settled. To make the mother remain living in D indefinitely will certainly result in the mother’s ambitions being rendered subordinate to those of the father. In addition, there will be no such restriction on the father. The burdens of paternity will not restrict him from exploring employment opportunities in future in any other portion of the world, as he was doing as recently as the middle of last year. On the basis of the evidence led before me, I am not convinced that the outcome proposed by the father will necessarily lead, in the long term, to the service of T’s best interests.
However, given T’s age at present and the level of vulnerability this lends to his paternal relationship, it would not be, in my view, in T’s best interests for the relocation to occur immediately. It would be in T’s best interests for the father to be given time to explore the options available to him in A. At the end of the year, he may consider that it is not viable for him to move to A. That will be a question for him to consider closely in the intervening period. The father cannot be compelled by the court to move to A to ensure that, at this stage in the future, T has the maximum benefit of his father’s involvement in his life. However by his efforts to secure an injunction preventing the mother permanently moving T from D this is what he wants to do, so far as she is concerned now. Not give her a choice.
The best outcome for T is that he has the maximum involvement of both his parents in his life in future and he has a happy and secure mother. In my view the best way for this to occur is if T is living in A with his mother and the father has an opportunity to consider the option of moving to A himself. These factors favour a moratorium of around a year, which I accept is the maximum period of time which the mother believes she can withstand. For reasons of convenience, I propose to make the date up until which the mother is restrained from removing T from D and it environs, be 1 December 2007. During that period the arrangements for T to spend time with his father should remain as they currently stand.
Although at this juncture it is not clear whether in future the possibility of T spending equal or substantial time with both his parents, which follow from the presumption created by section 61DA, is applicable in this case, it is appropriate that the parties have equal shared parental responsibility for T.
Pursuant to the provisions of section 65DAC, the effect of the order for equal shared parental responsibility is that the parties are required to make joint decisions about major long term issues to do with T. Such long term issues include matters to do with T’s education (both current and future); his religious and cultural upbringing; his health; and any changes in his living arrangements which may make it significantly more difficult for T to be able to spend time with one or other of his parents.
Pursuant to the provisions of section 65DAE, the parties do not have to consult about issues that are not major long term ones and accordingly it is not necessary for the court to make orders in respect of T’s care, welfare and development, which arise on a day to day basis.
It is, of course, uncertain whether or not the father will elect to move to live in A at some time in 2008, after the mother and T have moved there. Accordingly there exists a significant level of uncertainty about the appropriate arrangements for T to spend time with his father in this eventuality. For obvious reasons, the parties naturally concentrated on the issue in this case which was pre-eminent for them each – the question of the relocation. As a result neither gave careful thought to the specific orders they would each seek in the eventuality of them both living in the A area. In addition the father did not give much thought to the orders he would seek in the event the mother was successful in her application to move T’s place of residence away from D to A.
I will make orders which will deal with both eventualities – that is the father living in A himself in future and the father living away from A. However, I will grant the parties liberty to re-list the matter before me, if it is necessary for these orders to be re-formulated, once the father has decided which option he wishes to pursue in future.
I have already dealt with the appropriate orders in respect of the division of the parties’ property.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and thirty-five (335) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C W
Date: 16 October 2006
and Clauson v Clauson (1995) FLC 92-595
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