Price and Caldwell
[2009] FamCA 946
•5 October 2009
FAMILY COURT OF AUSTRALIA
| PRICE & CALDWELL | [2009] FamCA 946 |
| FAMILY LAW – CHILDREN – Relocation |
| APPLICANT: | Mr Price |
| RESPONDENT: | Ms Caldwell |
| FILE NUMBER: | TVC | 688 | of | 2008 |
| DATE DELIVERED: | 5 October 2009 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Monteith J |
| HEARING DATE: | 8, 9, 10 & 11 Sept 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Mayes |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Queensland |
| COUNSEL FOR THE RESPONDENT: | Mr Honchin |
| SOLICITOR FOR THE RESPONDENT: | Aboriginal & Torres Strait Islander Legal Service (Qld) Ltd |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ruddy Tomlins and Baxter |
Orders
That the child, A, born … January 2007, live with the father in Townsville subject to paragraph 3 hereof.
That the father and the mother have equal shared parental responsibility for the said child.
If the mother relocates to live in Townsville, then the child shall live with the mother and the father on a week about basis, commencing each Friday at 5.00 pm on the week that the father spends time with L.
If the mother remains living in Brisbane, then the child will spend time with the mother as agreed, but failing agreement as follows:
(a)Each of the school holidays except Christmas with the parties to share the costs of travel of the child and accompanying adult equally;
(b)For four weeks of the Christmas school holidays, with the parties to share the costs of travel of the child and accompanying adult equally, with the mother to have the first four weeks in 2009 and every second year thereafter, and the last four weeks in 2010 and every second year thereafter;
(c)Upon giving 14 days notice to the father, in Townsville for up to 14 consecutive days, at the mother’s costs.
Notwithstanding anything else in these orders, but subject to paragraph 4 hereof:-
A. The father is to spend time with the child:
(a)From 9.00 am to 6.00 pm on Father’s Day;
(b)On the child’s birthday for 2 hours at a time to be agreed;
(c)On each of the child’s siblings’ birthdays for 2 hours, at a time to be agreed;
(d)On the father’s birthday for 2 hours at a time to be agreed.
B.The mother is to spend time with the child:
(a)From 9.00 am to 6.00 pm on Mother’s Day;
(b)On the child’s birthday for 2 hours at a time to be agreed;
(c)On the mother’s birthday for 2 hours at a time to be agreed.
Each parent is restrained from denigrating the other in the presence of the child or allowing any other person to do so in the presence of the child.
Each parent will abstain from using any illegal drugs whilst the child is in their care and will not allow the child to remain in the presence of any person using illegal drugs.
Neither parent will use alcohol to excess when the child is in their care, nor allow any person to use alcohol to excess in the presence of the child.
Neither parent will smoke in an enclosed area, including a motor vehicle, or allow any other person to do so when the child is present.
The parents shall consult with each other about decisions to be made in the exercise of their equal shared responsibility.
The parents will ensure that the child communicates regularly with the other parent at all reasonable times by telephone.
If a future dispute arises over the parenting arrangements of the child, both parties will attend mediation prior to commencing any proceedings in a State or Federal Court.
Liberty to apply.
Pursuant to s.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Price & Caldwell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC688 of 2008
| MR PRICE |
Applicant
And
| MS CALDWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an Application seeking parenting orders by the father with respect to the child A, who was born in January 2007. The original Initiating Application was issued on 23 July 2008 in which the father sought final orders that the child live with him and spend time with the mother, and interim orders seeking a Recovery Order, and then similar orders to the final orders. There was then a Directions Order made by Federal Magistrate Coker on 11 August 2008, and on 12 August 2008, the father filed an amended Application in which he sought an order that the mother return to Townsville, that the child live with the mother and the father on a week about basis. On 28 August 2008, the mother filed a Response seeking to relocate to Canberra with the child, so that she could be close to her family, but on 31 August 2008, the mother returned to Townsville with the child without a Recovery Order having been issued. The mother filed an amended Response on 17 October 2008, again seeking that the child live with her in Canberra and then some further orders that I do not need to canvass. That amended Response became Exhibit A in these proceedings. Then there was a further amended Response filed 19 February 2009, in which the mother sought that the child live with her in Brisbane. On 3 April 2009, the father filed a further amended Initiating Application in which he sought that should the mother return to Townsville, the child live with the mother and the father on a week about basis. Finally, I gave leave to the applicant father, during the course of the hearing, to further amend his further amended Initiating Application filed 3 April 2009, in terms of the orders set out in the applicant father’s amended Outline of Case dated 7 September 2009, which provided inter alia that should the mother return to Townsville to live, the child live with the mother and the father on a week about basis and then, for present purposes, it is sufficient to set out paragraphs 5, 6, 7 and 8 of the amended Outline of Case.
“5.Should the mother decide not to relocate back to Townsville, then the child [A] live with the father and spend time with the mother as follows:
(a)Until the child commences prep year
i.for four (4) weeks following each six (6) week period with the father; and
ii.For Christmas during odd numbered years for a two week period commencing 20 December; and
iii.At all other times as agreed between the parties.
(b)After the child commences prep year
i.In odd numbered years for the Easter school holiday period, the September/October school holiday period and the first 4 weeks of the Christmas school holiday periods;
ii.In even numbered years for the June/July school holiday period, the first week of the September October school holiday period and the second half of the Christmas school holiday period.
6.If the child is living with the father in accordance with Paragraph 5 of this Order, up until the child commences prep year, the father is to spend block holiday time with the child for Christmas during even numbered years for a two week period commencing 20 December.
7.In the alternative, should this court allow the mother to relocate with the child to Brisbane the father to spend time with the child as follows:
a. Until the child commences prep year:
i.for (2) weeks following each four (4) week period with the mother; and
ii.For Christmas during odd numbered years for a two week period
iii.commencing 20 December ; [sic]
iv.At all other times as agreed between the parties.
b.After the child commences prep year:
i.For the Easter school holiday period, the September October school holiday period and the first 4 weeks of the Christmas school holiday periods during odd numbered years;
ii.For the June July school holiday period, the first week of the September October school holiday period and the second half of the Christmas school holiday period during even numbered years;
8.If the child is living with the mother in accordance with Paragraph 7 of this Order, up until the child commences prep year, the mother is to spend block holiday time with the child for Christmas during even numbered years for a two week period commencing 20 December.”
As I have said, the mother in her further amended Response on 19 February 2009 sought that the child live with her in Brisbane and then by paragraphs 6 and 7, set out provisions in relation to the father spending time with the child. I set them out hereunder:
“6.If the mother is permitted to relocate with the child to Brisbane then the father spend time with and communicate with the child, until the child commences pre-school and/or prepatory [sic] schooling, at all reasonable times as agreed between the parties, and failing agreement, as follows:
(a)At any time the father is visiting Brisbane for a period of up to 14 days, providing 14 days notice is given to the mother and the mother has not made any pre-existing travel arrangements to attend Canberra, or the mother’s family is not travelling to Brisbane to spend time with the mother and the child; and
(b)At any time the mother is visiting Townsville for a period of up to 14 days, providing 14 days notice is given to the father and the father does not have any pre-existing arrangements which would prevent the father spending time with the child; and
(c)The mother will travel to Townsville on two occasions per year with the child for a period of 14 to 21 days. The first occasion will coincide with the father’s birthday each year, and every second year will include the child’s birthday commencing in 2011. The mother will be solely responsible for the costs of her and the child’s return travel to Townsville. The mother will give notice of not less than 14 days of her travel dates to the father. The second occasion will coincide with the June/July school holiday period in each year; and
(d)The mother will allow the father to collect the child from Brisbane on a further two occasions per year for a period of 7 to 14 days, providing that notice of 14 days is given to the mother and the father is solely responsible for all travel costs of his and the child’s travel. These occasions must exclude the child’s birthday, the mother’s birthday, mother’s day, and Christmas Day (except every third year commencing in 2012), and any pre-existing arrangement the mother’s family have made to visit the mother and child, or the mother to visit her family in Canberra; and
(e)The mother will ensure the child spends time with any paternal family member if visiting Brisbane, if reasonably practical.; and [sic]
7.If the mother is permitted to relocate with the child to Brisbane then the father spend time with and communicate with the child, when the child commences pre-school and/or prepatory [sic] schooling, at all reasonable times as agreed between the parties; and failing agreement, as follows:
(a)For one half of the Christmas School holiday period each year commencing with the father to have the first half of the school holiday period in 2012 and every third year thereafter, and the mother to have the second half of the school holiday period commencing in 2012 and every third year thereafter, and the father to have the second half of the period in each other year commencing in 2013, with the mother and the father to be equally responsible for the costs of travel for the child and parent travelling with the child (if applicable); and
(b)Two of the other school holiday periods with the mother and the father to be equally responsible for the costs of travel for the child and parent travelling with the child (if applicable); and
(c)Any period the father is visiting Brisbane for a period up to 14 days providing that 14 days notice is given to the mother and the time of the visits’ [sic] the father ensures the child attends any schooling and curricular activities (and this period excludes Mother’s Day, the Mother’s Birthday, the child’s birthday, and Christmas Day except every three years commencing in 2012).”
During the course of the trial, I gave leave to the respondent mother to amend paragraph 8 of the further amended Response of 19 February 2008 in the following terms:
“8.If the mother is not permitted to relocate with the child to Brisbane, then if the mother relocates to Townsville, then the child shall live with the mother in Townsville and spend time with the father at all reasonable times as can be agreed as follows:
(a)In week one from Thursday 9.00am to Saturday 5.00pm; and
(b)In week two from Friday 9.00am to Sunday 5.00pm; and
(c)Every Father’s Day from 9.00am to 5.00pm; and
(d)The Father’s birthday in each year from 9.00am to 5.00pm; and
(e)For one half of the child’s birthday; and
(f)For one half of Christmas Day in each year if the mother does not travel out of Townsville with the child alternating each year with the mother to have the first half in 2009 and each alternate year, and the father to have the first half in 2010 and each alternate year; and if the mother does travel out of Townsville for the Christmas Day period then the father will spend time with the child for the full day the following year;
(g)For one occasion per year per parent, each parent have the opportunity to spend a holiday of four weeks duration with the child upon the giving of not less that [sic] one month’s notice to the other parent of their intention to do so, provided however that the holiday time does not include Mother’s Day, Father’s day, the parent’s [sic] birthdays, the child’s birthday.”
and I gave leave to insert paragraph 8A in the following terms:
“8A.If the mother is not permitted to relocate with the child to Brisbane, then until such time (if ever) that the mother relocates to Townsville, then the child shall live with the father in Townsville and spend time with the mother as agreed, and failing agreement, as follows:-
(h)Each of the school holidays except Christmas, with the parties to share the costs equally;
(i)For four weeks of Christmas school holidays with the parties to share costs equally, with the mother to have the first four weeks in 2009 and every second year thereafter, and the last four weeks in 2010 and every second year thereafter;
(j)Upon giving 14 days notice to the father, in Townsville for up to 14 consecutive days at the mother’s cost.”
Finally, at the conclusion of the trial, the Independent Children's Lawyer handed up Terms of Orders recommended by the Independent Children's Lawyer, which became Exhibit ICL-1 in these proceedings. Save for one minor amendment, they were the orders that I made in these proceedings. I made the orders at the conclusion of the trial on 11 September 2009 and indicated that I would give reasons for making those orders thereafter. These are my reasons.
Background
For present purposes, it is sufficient for me to adopt the Chronology that is set out in the amended Outline of Case of the applicant father.
[…] 1983 Father born (currently 26 years of age) […] 1984 Mother born (currently 24 years of age) […] February 2003 [J] born (father’s child from previous relationship – currently 6 years of age) […] May 2005 [L] born (father’s child from previous relationship – currently nearly 4 years of age) May 2005 Parties commence relationship […] January 2007 [The child A] born (current two years of age) 18 July 2008 Father commences proceedings 11 August 2008 Directions Order made by Federal Magistrate Coker 12 August 2008 Father files Amended application 28 August 2008 Mother files Response seeking to relocate to Canberra with child to be close to her family 31 August 2008 Mother returns to Townsville with child. Only allows father to have small amounts of supervised time with child for approximately two weeks 1 September 2008 Mother applies for domestic violence order against father 15 September 2008 Mother agrees to father having 6 hours with child four days a week (with longer time on one Sunday). Father’s time still to be supervised. 3 October 2008 Father has overnight time with child for first time since separation 6 October 2008 Mother swears affidavit – no mention of new partner
Mother agrees for father’s time with child to be unsupervised
Early October 2008 Mother and [Mr S] say they commence a relationship 17 October 2008 Mother files response still seeking to relocate to Canberra with child 27 October 2008 Interim orders made by Federal Magistrate Coker 31 December 2008 to 6 January 2009 Father spends time with child. Mother goes away without telling father – expects father to leave child with maternal grandmother of second cild [sic] 18 January 2009 Mother’s new partner relocates to Brisbane 30 January 2009 Protection Order made against the father by consent without admission for twelve months 30 January 2009 to 18 February 2009 Father has block time with child as mother was going out of town for a family emergency 19 February 2009 Mother files Further Amended Response seeking to relocate to Brisbane with child to live with [Mr S] 11 March 2009 First Family Report released 17 March 2009 Mother relocates permanently to Brisbane 17 March 2009 to 7 April 2009 Mother spends block time with child in Brisbane 3 April 2009 Father files Further Amended Application 7 April 2009 Mother returns with child to Townsville for father to spend time with child 15 to 26 April 2009 Father has block time with child 13 May 2009 Trial in the Federal Magistrates Court adjourned. Consent orders made for child to be [sic] spend time with each parent on a two week on / two week off basis with mother to pay travel costs between Brisbane and Townsville 18 August 2009 Second Family Report released
As can be seen from the Chronology, Federal Magistrate Coker made an order by consent on 13 May 2009 when the matter was unable to proceed before him, as a Trial, as follows:
“1.Any previous Orders in relation to with whom the child [A] born […] January 2007 shall live be discharged.
2. The child live with the Father in Townsville as follows:
(a) From 9.00am Friday 15 May 2009 to 5:00pm Sunday 31 May 2009;
(b)From 5.00pm Sunday 14 June 2009 to 5:00pm Sunday 28 June 2009;
(c) From 5.00pm Sunday 12 July 2009 to 5:00pm Sunday 26 July 2009;
(d)From 5:00pm Sunday 9 August 2009 to 5:00pm Sunday 23 August 2009;
(e)From 5:00pm Sunday 6 September 2009 to the end of the trial.
3.The child live with the Mother in Brisbane as follows:
(a)From 5:00pm Sunday 31 May 2009 to 5:00pm Sunday 14 June 2009;
(b)From 5:00pm Sunday 28 June 2009 to 5:00pm Sunday 12 July 2009;
(c)From 5:00pm Sunday 26 July 2009 to 5:00pm Sunday 9 August 2009;
(d)From 5:00pm Sunday 23 August 2009 to 5:00pm Sunday 6 September 2009.
4.The Mother be solely responsible for her travel costs and the child’s (if applicable) with changeovers to occur in Townsville.
5.The child communicate by telephone with the Mother when living with the Father as follows:
(a)Each Monday, Wednesday and Friday at 4:30pm to 5:30pm;
(b)Each Sunday at 4:30pm to 5:30pm on the dates not travelling.
6.The child communicate by telephone with the Father when living with the Mother as follows:
(a)Each Monday, Wednesday and Friday at 4:30pm to 5:30pm;
(b)Each Sunday at 4:30pm to 5:30pm on the dates not travelling.
…”
As can be seen, the mother was to be solely responsible for all of her travel costs and the child’s, with changeovers to occur in Townsville. The effect of the order was that as the child is 2½, and is unable to travel by aircraft unaccompanied, the mother had to travel with the child from Brisbane to Townsville and deliver the child to the father, then return by air to Brisbane, then catch a flight back to Townsville on her own and return with the child to Brisbane. The evidence was that the cheapest airfare was $89 each way and the most expensive was $179 each way. The costs varied according to times and various carriers and the net effect was that there were three fares every fortnight, the child being over 2 years having to pay a full fare, and that the overall cost to the mother from the time that the order was made up to the date of the trial was approximately $2,000. Those fares had been charged to her partner’s, Mr S’s, Mastercard, and his evidence was that he was trying to pay it off at $100 per fortnight.
As the mother was unemployed and her income was limited to a tax benefit that she got from Centrelink of $60 per week, and Mr S was a member of the Defence Force earning approximately $1,700 per fortnight, these arrangements were clearly unsustainable.
THE EVIDENCE
The mother left the father on 18 July 2008 and she said in evidence, “I moved to Canberra. I left [the father] because I was sick of being controlled, so my parents helped me to move to Canberra.” She conceded she did so without telling the father and without making any arrangements for him to see the child. She said that when she moved to Canberra, she had not considered how he would see the child. She conceded that she had acted impulsively.
She returned to Townsville under threat of a Recovery Order being issued.
When the mother returned to Townsville, she lived with a former workmate for about a month, until October 2008, and then she lived with Ms K until she was evicted by Ms K’s husband, Mr K, on 15 March 2009.
The mother deposes, and it is not challenged, that Mr K sexually assaulted her, that she reported this and it was a result of that, that she was evicted. She then left Townsville for Brisbane. On 17 March 2009, she travelled to Brisbane to stay with Mr S, which she did until 7 April 2009, when she returned to Townsville. She deposes to having considerable difficulties finding accommodation in Townsville, and ultimately returned to Brisbane to live with Mr S pursuant to the arrangements that were put in place by the consent orders made by Federal Magistrate Coker on 13 May 2009.
As appears from the Chronology, the mother met Mr S in approximately October and they commenced a relationship. He is a member of the Australian Defence Force and was, at the time, posted in Townsville.
Although Mr S was then posted in Townsville and had three postings in Townsville as at that time, he had requested a transfer to Brisbane because his mother was suffering from cancer. (She is now in remission.) He was posted to Brisbane in January 2009 and the posting is for two years. The mother and Mr S commenced living together in Brisbane in approximately May 2009.
According to Mr S, his posting is for two years and at the end of that two years, he can request a posting back to Townsville but there is no certainty that it will be granted.
He has rented a three-bedroom apartment and has applied to the Defence Force for his relationship with the mother to be recognised as a de facto relationship and his expectation is that it will be recognised.
He gave evidence that if I made an order that the child A live in Townsville, his relationship with the mother would survive such an order.
The mother gave evidence that the only reason that she wanted to move to Brisbane was because of Mr S, but she conceded that if I ordered that the child live with the father in Townsville, she would move back to Townsville.
She said she would not be thrilled if she had to live in Townsville, she would need to borrow money to do so and there was evidence from Mr S and from her parents to the effect that they had limited financial ability to assist her. But on the evidence, it is fairly clear, in the event that I made such an order, she would do everything in her power to move back to Townsville, but it might take some months for her to do so.
The father, who is 26 years of age, lives at home with his mother and has always done so. He has a very poor work record and at present, works for a manufacturer, delivering products two to two-and-a-half hours a day, five to six days a week, starting at 5.30 am and finishing at about 8.00 am or 8.15 am. He earns approximately $175 a week from his work and receives approximately $500 per week in government benefits. His mother, who is 51 years of age, works in financial services. She works five days a week in administration and, in addition, does her private financial services work. She looks after the children in the mornings until the father arrives home from his work, and is available to provide some assistance in addition to that, during the week, but both the father’s and her evidence was to the effect that the father principally cared for the children throughout the week. The father has formed a new relationship with Ms B who is 19 years of age. She is unemployed and spends much of her day at the residence where the father lives but her evidence was that she is not really involved in looking after the children and gave evidence to the effect that “I don’t see a role for myself in bringing up kids”.
In his comparative short life, the father has had three relationships that have produced children and J, born in February 2003, lives with the father pretty much full time and L, born in May 2005, lives with the father every second week. He has also played, on his evidence, a significant role in bringing up A. All three children lived together from the date of A’s birth until the mother left.
On all the evidence, there is a strong bond between these siblings.
The Law
Section 61DA provides a presumption of equal shared parental responsibility when making parenting orders. There is nothing in the material of such a nature that would make either sub-section 2 or 4 apply. Further, both parties and the Independent Children's Lawyer seek that I should make orders of equal shared parental responsibility.
At the conclusion of all of the evidence, it became clear that the father, the mother and the report writer ultimately conceded that it would be in the best interests of the child for me to make an order that the child spend equal time with the parents. However, having regard to the fact that the father lives in Townsville and the mother presently lives in Brisbane, it is not practical to make such an order, nor for there to be substantial and significant time. Consequently, I must make such orders as in my discretion are in the best interests of the child as a result of the considerations of one or more of the matters in s 60CC. I set out the Section below:
“SECTION 60CC How a court determines what is in a child’s best interests
Determining child’s best interests
60CC(1) [Determining child’s best interests] Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
60CC(2) [Primary Considerations] The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations are:
60CC(3) [Additional considerations] Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights to maintain personal relations and direct contact with both parents on a regular basis.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
60CC(4) [Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent] Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
60CC(4A) [Where child’s parents have separated] If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Consent orders
60CC(5) [Where the court is considering making an order with consent of the parties] If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3)
Right to enjoy Aboriginal or Torres Strait Islander culture
60CC(6) [Aboriginal child’s or Torres Strait Islander child’s right to enjoy their culture] For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.”
To turn to the primary considerations, there is, as Mr Fellows submitted, no basis for distinguishing between the parenting of either parent. There are no disqualifying factors and each are “good enough” parents.
Some of the actions of the mother have been more personal-focussed rather than child-focussed, her move to Canberra and then Brisbane in the circumstances, but nothing much turns on that in relation to the primary considerations. All of the parties, the father, the mother and the Independent Children's Lawyer accept that there is a great benefit for the child to have a meaningful relationship with both of her parents. Further, there is no need, on the evidence, for me to protect the child from physical or psychological harm, or being exposed to abuse, neglect or family violence. Those considerations were never argued.
To turn to the additional considerations under sub-paragraph 3 –
(a) Is not applicable having regard to the child’s age.
(b) There is a strong attachment by the child to both parents and to her sisters.
(c) On the evidence, I accept that both parents are willing to encourage the relationship of the child with the other parent, although I suspect the father is more supportive of the mother’s relationship, than she is of his.
(d)This is one of the most difficult considerations. As Ms H, the report writer said in evidence, there is going to be negative impacts either way. The child has a strong attachment to the father, the paternal grandmother and to her siblings. She equally has a strong attachment to her mother. The report writer did say in evidence “that I think the greater negative impact would be the loss of contact with the mother – the primary caregiver”.
(e) The practical difficulty and expense of a child spending time is again a matter of considerable significance. The practical difficulty is one of finance and I have dealt with that issue in some detail when dealing with the evidence in this case. If the child were to live with the mother in Brisbane, having regard to the financial circumstances of both the mother and the father, it would be very difficult for her to spend more than a couple of periods a year with the father, the paternal grandmother and her siblings. Equally, if the child were to live with the father in Townsville, the same situation would apply and she would only be able to spend a couple of periods a year with her mother in Brisbane. That is, of course, if the mother continued to reside in Brisbane.
(f)The capacity of the child’s parents and paternal grandparent to provide for the needs of the child including emotional and intellectual needs. As Mr Fellows submitted and which I accept, the father has the “runs on the board” as a carer for all three children.
(g) Both parents are very young and neither is able to hold high-paying jobs. As has already been pointed out, the mother has shown some immaturity and impulsiveness in the past in relation to her relocations, although her circumstances were difficult. Nevertheless, she did not appear to put the child’s best interests first.
(h) Is a matter that I must consider, but it only arises in the most peripheral way. The mother is aboriginal and in her original trial affidavit deposes “My father is aboriginal. I identify as aboriginal. [The father] is not indigenous.” The matter only arose during the trial because I asked a question about it, and her reply was, “I don’t have much knowledge about my aboriginality.” Her father was called as a witness and was not asked about this issue. There is no doubt that the child has a right to enjoy her aboriginal culture, such as it is, but whatever order I make, I think will have little impact on this issue.
(i)I only reiterate that the mother’s impetuous move to Canberra weighs slightly in the balance in this case.
(k)There is a family violence order in existence which is Exhibit 3 in these proceedings, which the mother took out when she returned from Canberra to Townsville, and it was consented to by the father without admission. I do not think it plays any significant role in these proceedings and it was not argued that it did.
(l)It was argued by Ms Mayes, on behalf of the father, that if I made an order that the child live with the mother in Brisbane, then if the mother’s relationship to Mr S failed, or if he was posted to some other city, then that would lead to the institution of further proceedings. That is possibly true, but it does not carry much weight in my judgment.
(m)Mr Honchin, on behalf of the mother, argued that the issue of the happiness and contentment of the mother was a factor that I should take into account. He said she had no support in Townsville, no family in Townsville, no housing in Townsville and that Mr S was not in Townsville. However, she gave evidence that in the event I made an order that the child live with the father in Townsville, she would relocate to Townsville as soon as possible, and Mr S gave evidence that their relationship would survive in those circumstances and of course, in 18 months time, he is capable of applying for a transfer back to Townsville. I am unable, on the evidence, to determine whether that application would be successful or not.
The Expert Evidence
Ms H, who holds a Bachelor of Social Work from the University of New South Wales, was commissioned by the Independent Children's Lawyer to prepare two Family Reports. The first is dated 11 March 2009 and the last 18 August 2009. In relation to the first report, I set out her assessment and recommendations hereunder:
“F. ASSESSMENT
48.The main issue currently in dispute between the parents is the mother’s wish to relocate to Brisbane. The mother said that availability of family support is the main reason for her wish to relocate to Brisbane. Both her parents live in Canberra. The maternal grandmother has visited the mother in Townsville when the grandmother lived in Darwin. The mother has visited both her parents in Darwin and Canberra whilst living with the father. The maternal grandfather has visited Townsville from Canberra. The issue of distance has not prevented the mother and her family from spending time together in the past. Although the mother spent time assisting her aunt in Brisbane, I gained the impression that this family relationship has not been an active one until recently. There would not appear to be a significant difference in the amount of family support the mother would receive were she residing in Brisbane or Townsville as the maternal grandparents will have to travel from Canberra in any case.
49.The mother appears to have changed her application to relocate from Canberra to Brisbane based on her desire to live with her current boyfriend [Mr S]. I assess the relationship with [Mr S] is of short duration, and it is unknown whether it will progress to be a long term relationship. The mother has had short term relationships since leaving the father. Should the relationship with [Mr S] discontinue, the mother will have little reason to remain in Brisbane, and could wish to relocate again. It is likely [Mr S] will be transferred again if he continues his career in the [Defence Force].
50.The father successfully provides for the needs of his two other children who live with him. [A] now spends time with the father overnight each week. [A] also spends time with her two sisters at the father’s house, and has spent time until recently with [L] at the mother’s house. Should the mother leave her current accommodation, then the only opportunity for the sisters to spend substantial time together will be at the father’s house. [L’s] mother, [Ms E], and the mother of this application, do not have a good relationship, and it is unlikely that the two mothers will sustain a relationship that would promote the sisters spending time together whilst living with their mothers.
51.Both parties have re-partnered, and the relationship between the parents seems to be cooperative and civil. The mother arranged for the father to care for [A] for three weeks recently while she spent time in Brisbane. Changeovers and arrangements for [A] are conducted satisfactorily. The mother’s concerns in relation to harassment of herself by the father have settled.
52.The mother did not raise any current concerns in interview in relation to the father’s criminal, alcohol or drug use. The rape charge was in 2001 and a No True Bill was entered against this charge. The drink driving charges would appear to have occurred at a time when the father admits to abusing alcohol.
53.I assess [A] has a strong attachment to both parents, and the parents have the capacity to care for [A’s] day to day and long term needs. The mother is to be commended for maintaining and supporting the relationship between [A] and [L], and for being open to further contact with [J] for [A’s] sake.
54.I assess it is in [A’s] best interests to remain in Townsville, and to spend time with each parent and with both her sisters. As the time spent with her sisters is most likely to occur at the father’s house, there do not seem to be any current significant reasons against a shared care arrangement between the parents.
G.RECOMMENDATION
On the basis of the information available, should this matter proceed to Court, I recommend arrangements as follows:
(a)The parents have equal shared parental responsibility for [A].
(b)The parents have a shared care arrangement that gives [A] significant time with her father and sisters concurrently on a week about basis, or as agreed between the parents.
(c)Each parent communicate by phone with [A] when she is with the other parent at times agreed.
(d)The parents spend half of the agreed holiday times with [A], to coincide with holiday time spent with [A’s] two sisters.”
In her final report, I set out her recommendations hereunder:
“G. RECOMMENDATION
On the basis of the information available, should this matter proceed to Court, I recommend arrangements as follows:
(a)The parents have equal shared parental responsibility for [A].
(b)Should the court allow the mother to relocate to Brisbane, that [A] spend the majority of the school holiday time with her father in Townsville, to coincide with time spent by her sisters at the father’s house, with some block holiday time to the mother.
(c)Should the mother be allowed to relocate to Brisbane, that the mother return to live in Townsville in eighteen months time, or when her partner gains a posting to Townsville, whichever occurs first.
(d)Should the court not allow the mother to relocate to Brisbane, that the parents have a shared care arrangement that gives [A] significant time with her father of five nights per fortnight, broken into two block periods to enable [A] individual time with her father, and time with her two sisters at the father’s house, or as agreed between the parents.
(e)Each parent communicate by phone with [A] when she is with the other parent at times agreed.
(f)If living in Townsville, that [A] spend special days with all appropriate close family, otherwise communication by phone on special days to be organised by the parents.”
It will be seen that the report writer in (c), recommends that I should make a coercive order requiring the mother to relocate to Townsville in 18 months time or when her partner gains a posting to Townsville, whichever occurs first.
The issue of the Court making coercive orders has been dealt with by the Full Court on two occasions in recent times, firstly Sampson and Hartnett (No. 10) (2002) FLC – 93-350 and Porter v Byrne [2009] FamCAFC 8.
In Sampson and Hartnett, in the majority judgment of Bryant CJ and Warnick J, at paragraph 58, their Honours said:
“However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.”
In Porter and Byrne, a decision of the Full Court constituted by Warnick J sitting alone, he cites with approval Sampson and Hartnett, where he sets out paragraph 75-78 of that judgment. I set it out hereunder:
“[75] To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstances of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
[76] This was a very difficult case. Had there been a well-developed relationship between the father and children, orders as commonly seen and as discussed at the outset, directed to the location of the children, not the parents, might have been made. The reason for an under-developed relationship between father and children rested with the mother’s attitude. Her Honour concluded (and no challenge has been made to the finding) that both parents ought be involved in the children’s day to day lives. This would only be possible if both lived in the same area. Neither parent offered to move.
[77] We do not say that the true “effect” of her Honour’s orders was a wrong result. However, it was an extreme one and we think required an unusually stringent enquiry. While her Honour’s consideration was thorough and in one aspect of necessary enquiry she received little assistance, there are two respects in which, in our view, the proper level of enquiry was not achieved.
[78] Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.”
In the circumstances of this case, I consider it would be quite inappropriate to make an order in those terms.
Whilst I am still on these recommendations, I should point out that in relation to (d), the report writer in her evidence ultimately conceded that shared care, 7‑days about, would work.
Conclusion
If I were to make an order as contended for by the mother, namely that she be allowed to relocate with the child to Brisbane, then she would remain in Brisbane for an indefinite period of time and the child’s relationship with her father, her siblings and her paternal grandmother would be seriously adversely affected. There would be no possibility of shared care and the child would only be able to see her father, her siblings and her paternal grandmother, at best on a few occasions during the year. The mother’s evidence was that she could possibly put $1,000 a year towards such travel.
On the other hand, if I order that the child live with the father in Townsville, the mother has sworn that she will return to Townsville at the earliest possible opportunity. Certainly, there are considerable difficulties in her returning. She will need to borrow money from her parents who have limited resources and will need further assistance from Mr S. She may have to sell her car. Nevertheless, I am persuaded that she will return to Townsville.
She made it clear that she did not want to lose her relationship with Mr S but he made it clear that the relationship would survive such an order. There is no doubt that on all of the evidence, it is in the child’s best interests for there to be shared care between the parents. This is only possible if the child lives in Townsville. The father is anchored to Townsville by reason of his residence with his mother, and the fact that he has the care of two other children who are siblings of A and live in Townsville.
In all the circumstances of this case, I have concluded that it is in the best interests of this child to make the orders that I have already pronounced.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Monteith
Associate:
Date: 5/10/09
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