Pace & Wilson
[2009] FMCAfam 367
•31 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PACE & WILSON | [2009] FMCAfam 367 |
| FAMILY LAW – Parenting – interim relocation – limited relationship between child and father. |
| Family Law Act 1975, ss.60B,61DA(2)-(4),60CC |
| Morgan & Miles [2007] FamCA 1230 C & S [1998] FamCA 66 Goode & Goode(No.2) [2007] FamCA 315 Cowling & Cowling [1998] FamCA 19 |
| Applicant: | MR PACE |
| Respondent: | MS WILSON |
| File Number: | TVC 100 of 2009 |
| Judgment of: | Demack FM |
| Hearing date: | 26 March 2009 |
| Date of Last Submission: | 26 March 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 31 March 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Queensland |
| Solicitors for the Respondent: | Eureka Legal Pty Ltd |
ORDERS UNTIL FURTHER ORDER
That the child [X] born in 2004 (“the child”) live with the mother.
That the mother have sole parental responsibility for the long-term care, welfare and development of the child.
That the mother be permitted to relocate from [S] in northern central Queensland to northern New South Wales providing that such a move occurs:
(a)Not earlier than one (1) month from the date of these Orders; and
(b)Not later than two (2) months from the date of these Orders.
That the father spend time with the child at all reasonable times as agreed between the parties and failing agreement:
(a)Whilst the child is in [S]:
(i)At all times that can be arranged and supervised by the Mackay Contact Centre, with the mother to make the child available and the father to bear the costs associated with the Centre’s supervision.
That the mother is to return to Mackay with the child, at intervals of not more than two (2) months, at her own expense.
That if the parties do not agree as to whether supervision is required, then supervision with the Mackay Contact Centre is to continue. Supervision may be ended by written agreement between the parties.
That if time is supervised, the mother is to coordinate her travel to Mackay with the availability of the Mackay Contact Centre.
That the father is to continue to pay the costs of the Mackay Contact Centre.
That when, and if, the parties have agreed that the father’s time with the child does not require supervision by the Mackay Contact Centre then the father is to spend time with and communicate with the child at all reasonable time as agreed, and failing agreement, as follows:
(a)If not school holidays, from 9:00am to 5:00pm for no more than three (3) days in one (1) block;
(b)If school holidays, from 9:00am to 5:00pm from day one (1) to day two (2) and again from day three (3) to day four (4);
(c)With the father to collect the child from the place in Mackay or [S] as nominated by the mother.
That the mother is to provide the father, with not less than fourteen (14) days notice, of her arrival date.
That the father is to advise the mother within ten (10) days of arranged times as to his capacity to take up the time, at the Mackay Contact Centre or otherwise, and if the father is unable to do so, then the mother is not obliged to return to Mackay at the proposed time, nor is the mother obliged to reschedule that bi-monthly visit.
That each parent will keep the other parent informed of any medical treatment received by the child whilst in their care and will supply the other parent with the address and contact details of any treating medical practitioner, hospital or allied health professional. These Orders will act as an authority to any medical practitioner, hospital or allied health professional that treats the child to release any information relating to the child to either parent upon their request and at their expense.
That provision of this Order is authority for the child’s school to communicate and provide information and documents to both parents regarding the child, upon their request and at their expense.
That the parties will provide each other with their telephone contact details and their residential address and will provide the other party with any changes to their details within twenty-four (24) hours of such change.
That the mother is to give the father forty-eight (48) hours prior notice of her leaving Mackay and to advise of her new contact details within twenty-four (24) of arriving in New South Wales and any subsequent updated details after moving to northern New South Wales.
That pursuant to rule 15.09 of the Federal Magistrates Court Rules2001 Mr Richard Jones be appointed a court expert in this matter.
That the parties and the children attend upon Mr Jones on a date and time to be advised for the purposes of the preparation of a family report to be made available to the Court.
That the Federal Magistrates Court of Australia be responsible for payment of the cost of preparation of the family report.
That the interviews for the preparation of a family report be conducted within four (4) weeks of the date of this Order.
That this matter be adjourned to 9:30am on 6 July 2009 in the Federal Magistrates Court of Australia at Mackay.
IT IS NOTED that publication of this judgment under the pseudonym Pace & Wilson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
TVC 100 of 2009
| MR PACE |
Applicant
And
| MS WILSON |
Respondent
REASONS FOR JUDGMENT
This interim relocation case concerns one young girl, [X] aged 5 who has a good established relationship with her mother and little, if any, present relationship with her father. The father, having been out of the child’s life from Easter 2006, when [X] was 2 years and 2 months old, until a couple of weeks ago when she was 5 years and 1 month old, approached the mother through solicitors for the first time in October 2008 when [X] was 4 years and 8 months old. The father sought to spend time with and communicate with the child only.
The mother, when she responded through solicitors in January 2009, was on the cusp of following her de facto partner of two years since September 2006, from [S], just south of Mackay, to northern New South Wales where her partner had been transferred for work.
The mother has remained in the Mackay area pending the outcome of the Court hearings. Her response to the father’s application to spend specific time with the child, building up from two afternoons per week after school to every second weekend after four weeks, was to seek to relocate with the child to northern New South Wales and for the father’s time with the child to commence with professional supervision and to remain supervised until no longer required.
It is submitted on the mother’s behalf that this case has features out of the ordinary which would tend to the view that relocation may be contemplated on an interim basis.
It is certainly more often the case than not that on an interim basis the Court will find that a parent should remain or indeed return to the area in which both parties were living and where the child was spending significant time or indeed any time with both parents.
The simple facts of this case are that the father had moved away from the area where the child lived with the mother for a period of time in excess of the years that he had been a fixture in the child’s life and throughout that time had nothing to do with the parenting or any decisions or responsibilities associated either with daily or long-term issues. All of those matters were the sole domain of the mother.
In very recent times the father has had one supervised visit with his daughter: his first communication of any substance since Easter 2006, a period of time which is a month or two short of three years in the life of a child just turned 5.
The not so simple facts revolve around the conflict between the parties during the relationship and post-separation and how it came to be that the father’s time with [X] was so limited.
The conflicts within the material are plenty and include a dispute about family violence during the relationship and who was the perpetrator; disputes about drug use by each of the parents, disputes about who was the primary carer for [X] until separation; disputes as to the date of final separation; disputes as to what happened at a time when there was an incident involving a taxi cab, the incident which then caused a domestic violence order to be made against the father; disputes about how the mother came to be staying in Mildura and how long she was there for; disputes about the events of Easter 2006 when the parties clearly separated for a final time; disputes about whether the father has made any or what effort to spend time with or communicate with the child or to have a relationship in any way with the child; disputes about whether the father has received threats from the extended family of the mother; disputes about whether the mother is obstructing the father’s relationship with the child; disputes about the father’s emotional stability.
This is an interim hearing and as such I am unable to make findings on the untested evidence. The facts which are not in dispute are very limited. The include that the child has lived with the mother with no time at all with the father or indeed any involvement by the father in terms of responsibility, decisions, assistance or interest overtly expressed to the mother by the father from Easter 2006 until one short supervised visit a couple of weeks ago.
It is also not in dispute that both the mother and the father have re‑partnered and have been so for some time, the mother since September 2006 and the father with the young woman who was present at the Easter 2006 event.
I make the following comments about the mother’s material. I acknowledge that the mother has parented [X] without assistance or input from the father since Easter 2006. I acknowledge that the child has had a stepfather in her life since September 2006 and that the stepfather has been transferred for work purposes.
I make the observation that the mother’s affidavit is lacking in detail about where her partner has gone, what work it is, what the plans are for that family for the future. It seems to me that the mother’s affidavit is grossly unsatisfactory in that area. I cannot tell, on an interim basis, whether that unsatisfactory status of the material about where the mother’s partner has gone and for what purpose, is as a result of a deficit in drafting or something which is actually related to the relationship.
I make the following comments about the father’s material. The father fails in his affidavit to set out in any meaningful way why it has been in the best interests of the child for him to re-appear in this child’s life at this juncture, having had no role in her life for so long.
I do not accept the criticism that the father makes in his affidavit at para.18 that during 2005 the child was left by the mother effectively unsupervised whilst the mother’s stepfather was at home with the child. The father sets out that lack of supervision as being a reason for why he was frustrated and an argument later ensued. I do not accept the father’s criticism that an adult asleep in a house whilst a child is there at times when the child would be expected to be asleep, is effective unsupervision; indeed, that is what happens in every household, adults sleep when the child sleeps.
I prefer the mother’s versions of events with respect to the incident described in para.18 by the father with respect to the taxi. The mother’s version of events is sufficiently close in detail to the application for a domestic violence order which was completed very soon after that event and which caused a State Magistrate to be satisfied on the basis that the Court is required to be satisfied for the making of a domestic violence order. Regardless of whether an order is made by consent without admissions, the Court is still required to make the findings of fact which are there set out in the body of the order.
Further, with respect to the father’s material, the father’s own version of events on that day contained within para.18, paint him in a very poor light for which he displays no insight. Even on his version of events he took the child from the mother’s arms without discussion and in a unilateral attempt to deprive the child of a relationship with the mother.
In terms of the events of Easter 2006 the father’s version of events with respect to what happened then is, it seems to me, garbled. He has relied also upon an affidavit by his partner now who was very newly in a relationship with him at that time and the affidavit by Ms K likewise is of little assistance to the father insofar as it contains within itself, its own inconsistencies.
The father says that he contested the assault occasioning bodily harm charge, he also says the charge was dismissed and that there was no evidence offered by the police. Ms K says that she indeed gave evidence about her recollections as did, to her knowledge, Mr/Ms R, Ms J, Ms L and some police. She remembers going to Court as a witness. She says the charges did not stand up. She says that the father pleaded guilty to a breach of the protection orders. The father says that he pleaded not guilty to the breach of the protection orders. Ms K says that she was not asked for a statement by the police as she was only 16, yet she tells the Court that she gave evidence, which can only mean that she gave evidence for the defence, which means that the police matter was indeed proceeded with and it was not a matter of there being no evidence to offer.
It seems to me that the evidence which has been provided by the father and his partner is garbled and is of very little assistance to the Court. The simple fact of the matter is that records would be available to be subpoenaed about this issue and it was a simple application for the subpoena which needs to be attended to.
I make the further comments with respect to the father’s material. His explanation as to laying low for the period of time that he was living on the Tablelands, being, he says, due to threats from the family of the mother, but I note not from the mother herself, does not counter the argument that the child was safe, properly cared for and her needs being attended to by the mother throughout this time. The father places no evidence before the Court from the paternal grandmother who is said to have spent some time with the child.
I turn now to the law. This is an interim hearing and an interim hearing only, as I said earlier, I cannot make findings of fact where the evidence is in conflict between the mother and the father. It seems to me I can take notice where one party’s material within itself and the material upon which one party relies has inconsistencies.
The best interests of [X] must be paramount in my considerations. I am mindful of the objects and principles of Pt.VII of the Act, as set out in s.60B. This is of course, a competing application. The father seeks to spend time with the child unsupervised, with the relationship to build up quite quickly to them being every second weekend. The mother seeks, in her response, to have the opportunity to move with the child, even on an interim basis, to northern New South Wales.
The solicitor for the father helpfully provided to the Court a decision of a single Judge of the Family Court sitting on an appeal from a Federal Magistrate. The matter of Morgan & Miles [2007] FamCA 1230 where Boland J helpfully has set out matters which need to be attended to on an interim relocation case post the amendments of the Family Law Act in the Shared Parental Responsibility Act in 2006.
Boland J, sitting in appeal, is certainly authoritative for this Court and her Honour sets out in a very full and helpful way, the steps that the Court must go through in determining on an interim basis a relocation. She says from para.58 onwards:
The principles to be applied at a final hearing in “relocation” applications are for the amendments made to the Act by the Family Law Reform Act 1995 were considered by the High Court and the Full Court in a number of cases including B & B: Family Law Reform Act 1995 (1997) FLC 92-755; AMS & AIF [1999] HCA 26…
… and A & A: Relocation Approach [2000] FamCA 751
and others which are well known.
She says that the principles include the following:
The best interests of the child are the paramount but not sole consideration.
The applicant is not required to demonstrate “compelling reasons” for the proposed relocation.
A court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act, and may subject to procedural fairness considerations, formulate its own proposals in the best interests of the child.
The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue of where the child or children should live - the relocation issue is not a separate issue.
That the objects and principles in s 60B (as it was then) informed or guided a court in applying the relevant criteria to “best interests” (then determined having regard to s 68F (2) factors).
A court will take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
I accept that they are the principles with respect to relocation that I must apply. Boland J also then looked at whether the amendments made during the Shared Parental Responsibility Act in 2006 changed what needed to be looked at with respect to it and a relocation on an interim basis. She says at para.61:
Cases before the introduction of the amending Act where trial Judges were required to determine interim parenting arrangements where one party sought to relocate or had unilaterally relocated shortly before the hearing, focused on maintaining stability for a child pending a final hearing on the basis of the well known principles in Cowling & Cowling
and the cases which followed thereafter.
Boland J sets out then the matters which the Full Court of the Family Court discussed in the matter of Goode. I do not need to repeat what Boland J has set out; the matters contained in Goode are well known to this Court.
What she says though includes that of significance, this is from para.65 of her judgment:
Of significance is the introduction of s 61DA which provides a presumption that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse of family violence and may be rebutted if not in the best interests of the child. The effect of an order which provides for shared parental responsibility is to require parents to jointly make a decision about a major long term issue for the child (s 61DAC). Major long term issues include matters such as the child’s education, religious and cultural upbringing, health, name and “changes to the child’s living arrangements that make it significantly more difficult for a child to spend time with a parent”
and Her Honour highlighted that particular part.
Boland J then turned her mind to whether the Act now requires different principles to be applied in determining a parenting application when one party wishes to relocate. She says, at para.73:
It is also undisputed that in determining a parenting case where one party wishes to relocate the child’s best interests remain the paramount but not sole consideration. The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominantly at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
At para.79 Boland J sets out the structure of such a discretion being considered. She says the Court:
Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute;
Make orders having regard to the child’s best interests as the paramount, but not the sole consideration;
Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child;
If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child;
In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing;
When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects of parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made;
Will carefully weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
and then Her Honour sets out the different options which are available with respect to with whom the child would live and how they would communicate and spend time with the other.
The final bullet point that Her Honour points out is:
Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing laws should provide general guidance.
And the earlier core principles are:
That the child’s best interests remain the paramount but not sole consideration;
That a parent wishing to move does not need to demonstrate compelling reasons;
That a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests and the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement; these all remain valid considerations.
Boland J turned her mind to the effect of the legislation amendments of 2006 in dealing with an interim application. She says at para.82:
It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require a mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
Boland J then notes that the principles in Cowling have been attended to in the matter of Goode. At para.85 she sets out the paragraphs within Goode from 71 through to 73 which are very familiar to this Court. She concludes that the legislation including the matters referred to in Goode do require consideration of the best interests, the ss.61D and 65DAA in dealing with all interim applications for parenting orders including applications involving a relocation or where an unauthorised relocation has occurred.
At paragraph 88 Boland J says:
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.
It further appears to Boland J
The comments of Warnick J in C & S remain apt and relevant to the determination of these cases”.
I accept Boland J’s exposition of the law.
I turn to the matter of equal shared parental responsibility. Section 61DA(3) provides that when making an interim order the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order. At s.61DA(4) it says that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests for the child’s parents to have equal shared parental responsibility for the child and of course there is also the statutory rebuttal provided within s.61DA(2) which provides for if there has been abuse or family violence, that the presumption may be rebutted.
In the matter which is before me today there are allegations of domestic violence. The father says that the mother was a perpetrator of violence. The only person who has been an aggrieved person within a domestic violence order has been the mother. The father consented to the domestic violence order without admissions but it does seem to me that the requirement by the Court to make certain findings and the fact that the mother’s material before me has sufficient consistencies with her application for the domestic violence order, and the father’s own version of events on the day that is the principle matter within the domestic violence order, does him no credit in any event; and the fact that the father has been convicted of breaching the domestic violence order, lend the Court to the view that there has been violence between the parties during their relationship and post-separation up until Easter 2006.
The submission was made on behalf of the father that there is no current issues with respect to violence because the mother’s protection has ended in 2007 when the order expired and there has been no further order. That submission has much less weight to it than it might otherwise have because the mother was simply having no contact with the father and there was no reason upon which the mother would need to have any further orders to protect her, the father having had an order and having breached it, and had then left the mother’s life as far as she knew.
There is a further issue though which in this particular case I place more weight on than the allegations of domestic violence. I hasten to add that if I was to base my view only on the family violence it would seem to me that I would rebut the presumption in any event, but I take the matter further. The Act allows me to contemplate the best interests of the child when turning my mind to the presumption of equal shared parental responsibility. How a Court determines what is in a child’s best interests is set out in s.60CC.
Sections 60CC(4) and CC(4)A have the Court turn its mind to the extent to which a parent has fulfilled or failed to fulfil their responsibilities as a parent and the circumstances and events which have occurred since separation. The date of final separation is clearly Easter 2006. There may well have been an earlier separation and it seems to me that there was an earlier separation in 2005, the father continued though to be a fixture in his daughter’s life until Easter 20006.
But since Easter 2006 the father has wholly failed to take on his responsibilities as a parent. He has failed to take and indeed has failed to seek to take any opportunity to participate in major decisions or to spend time with or to communicate with the child. I do not accept on an interim basis that the father making some phone calls to members of the mother’s family which he says resulted in threats which resulted in him no longer attempting in any way has him taking seriously his responsibilities at that stage with respect to parenting and taking his fair share in parenting the child.
He has failed wholly with respect to the matters which are set out in ss.60CC(4) and (4)A. The mother has had that burden and there is nothing before me to indicate that in having that burden the mother has failed to exercise that burden responsibly or properly.
The mother is criticised through submissions by the solicitor for the father as failing to facilitate the father’s time. I do not accept that criticism on an interim basis. The mother says and I accept, at para.36 that
“[Mr Pace] has never called, written nor spoken to her since Easter 2006”.
She then sets out some hearsay evidence with respect to what her mother has said but indeed the father has not had any contact with her and indeed the father does not assert that he had any contact with her. She says, at para.38 that she has shown photos of [Mr Pace] to [X] and explained that he is Dad. It has been difficult to encourage a relationship between [X] and [Mr Pace], [Mr Pace] has simply not been present.
And indeed, the paternal grandmother made some advances to the mother and has spent some time with the child and there is nothing within that which then causes me to be concerned that the mother was deliberately keeping the child away from the father insofar as she was allowing the paternal grandmother to see the child from time to time when contacted about that.
I therefore find on an interim basis, and I am mindful that if I make this finding on an interim basis the Court must disregard it on a final basis, but I find on an interim basis that the presumption is rebutted. I will make an order that the mother have sole parental responsibility.
Having made that finding I move on now to what would be orders which are in the best interests of [X] on an interim basis. The mother seeks that [X]’s time with her father be supervised on the basis that she is concerned that the father may neglect [X] or expose her to harmful environments.
I have difficulty accepting on an interim basis that the orders which are proposed by the father would even on an interim basis, expose the child to neglect or a harmful environment. I am though mindful of the fact that we have 5 year old child who has not seen her father except for one supervised visit in the last couple of weeks, for a three-year period or thereabouts which is more than half of her very young life.
I consider on an interim basis and as a commencement to his relationship with his child, that the father’s time will continue to be supervised professionally. It is the Court’s requirement to ensure that children have a meaningful relationship with both of their parents and at the same time the need to protect her from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The psychological harm which I would be concerned may be visited upon [X] is the reintroduction of a man who was wholly out of her life through no fault of her own, with whom she does not have a relationship, who in her life has been supplanted by a man who has been her stepfather since September 2006, who she has referred to as “dad”, where she has had, as far as the Court is aware, a settled and stable relationship with her mother and stepfather.
The Court will not countenance at this stage the father’s time being anything other than supervised on an interim basis unless there is an agreement between the parents that having had some supervised time, it is then safe and fine for the child to be spending unsupervised time with the father.
I turn now to whether the mother may, on an interim basis, leave the area in which she lives. I am mindful of Boland J’s views contained within the decision that I have just incorporated earlier into these reasons, that it is highly desirable except in cases of emergency, that the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing and that these are the types of cases in which the child’s present stability may be extremely relevant on an interim basis.
I take on board what Boland J says and I turn my mind to what is that will create the child’s present stability. The stability in [X]’s life has been living in a household with her mother and her stepfather and not seeing her father. That has been the situation in her life for half of her life since September 2006. The mother seeks for her to be able to follow her partner who has been a stepfather to [X] so that the stability in [X]’s life can be continued.
Stability in terms of a child’s life, it seems to me, comes from something more than the physical environment in which they live. Stability derives for a child who is 5, from their primary carers and their primary carers being in a position to provide what is needed for that child.
If I look at the s.60CC(3) factors the ones which it seems to me are particularly relevant are s.60CC(3)B, the nature of the relationship of the child with each of her parents and other persons; the likely effect of any change in her circumstances and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
Presently [X]’s relationship with her mother and stepfather is thwarted by the fact that her stepfather has relocated to northern New South Wales and her mother seeks to follow that relationship. Her relationship with her father is extraordinarily limited by the circumstances post-Easter 2006. There are other family of both the father and the mother in the Mackay area but I consider for the purposes of this interim application that the relationships upon which it is most important for [X]’s benefit to be focusing are the relationship which [X] has with her mother, her stepfather and the relationship which is yet to develop with her father.
In terms of the attitude of the parents to the child and to the responsibilities of parenthood, I have earlier made a number of comments about that. It is clear that it is my view on an interim basis that it is only the mother who has taken the responsibilities of parenthood seriously and properly since Easter 2006 and the father for his own reasons chose to not take any proper advice, to take the advice of those who were not lawyers, to not make any move to actually make himself known to the mother in a way which was appropriate and lawful but rather sought instead to simply remove himself. Whether that is to do with genuine matters of fear or immaturity or some other reason of the father, the reality for [X] whose best interests I consider to be my paramount consideration and who I am obliged to have as my paramount consideration, the reality for [X] is that she does not presently have a relationship with her father.
There are other factors which of course the Court must take into account and they include the practical difficulty and expense of [X] spending time with her father. In the event that the mother remains in the [S] area there will be still some difficulty and expense as the father is in the Mackay area as I understand it, and the mother in [S]. The proposal that the mother has that the time be spent supervised at the Mackay contact centre contains within itself inherent expense and management issues in terms of the available of the centre.
The mother says in her affidavit material that she will, if allowed to move to northern New South Wales, she will have on her own expense, returning to the Mackay area at least six times per annum to allow [X] to have a relationship with her father. That clearly is put forward on the understanding that having removed herself from the area where the father lives, the burden of the cost and the travel would fall on her.
I am mindful of the fact that the decision with respect to the time that the father spends with the child and the mother’s proposed relocation are not separate issues. It is all one and the same issue. The father is not seeking for the child to live with him, he seeks to re-establish a relationship with the child.
On an interim basis I find that the stability for the child and all of the factors under s.60CC from (2), (3) through to (4) and (4)A will be met by the child continuing to live in the mother’s care and also in the stepfather’s care. The mother will therefore be able to move to northern New South Wales on an interim basis.
I make the following orders.
ORDERS DELIVERED
The matter is otherwise adjourned for further mention in the Federal Magistrates Court sitting at Mackay on 6 July 2009 in the 9.30 list.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for judgment of Demack FM
Deputy Associate: A Goodridge
Date: 22 April 2009
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