PRINSEN & BLAIR

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRINSEN & BLAIR

[2018] FCCA 2746

Catchwords:
FAMILY LAW – Parenting – where the child is 12 years of age – where the mother unilaterally relocated with the child – where the mother has married and the child has a half sibling – where the parents agree there is no risk of harm in either household – where both parents agree a shared care arrangement is not in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CC, 60CA.

Applicant:

MS PRINSEN

Respondent:

MR BLAIR

File Number:

NCC 1374 of 2017

Judgment of:

Judge Middleton

Hearing date:

15 March 2018

Date of Last Submission:

13 April 2018

Delivered at:

Townsville

Delivered on:

5 October 2018

REPRESENTATION

Counsel for the Applicant:

Ms Carty

Solicitors for the Applicant:

Michelle Harding Lawyer

Counsel for the Respondent:

Ms Bithrey

Solicitors for the Respondent:

East Coast Law

ORDERS

That the mother shall have sole parental responsibility for the child [X] born 2005.
That the child [X] shall live with the mother.
That the child [X] shall spend time with the father as follows:
(a)For a ten (10) day block during each school term, incorporating two weekends either side of week 5, from the Friday 3:00pm of week 4 until Monday at 3:00pm of week 6 of each school term with changeovers to occur at Location A.
(b)For a ten (10) day block at the close of term one, two and three, from the Friday at 3:00pm of the first weekend of the school holiday period to the Monday at 3:00pm on the second week of the school holiday period with changeovers to occur at Location A.
(c)From Christmas day at 2:00pm until 14 January each year at 2:00pm with changeovers to occur at the Location B on those occasions.
(d)Provided the father can travel to the area where the child is living, for a minimum of two (2) hours from 3:00pm to 5:00pm on the child’s birthday should it fall on a school day or four (4) hours from 1:00pm to 5:00pm should it fall on a weekend when the father would not ordinarily be spending time with the child.
(e)Provided the father can travel to the area where the child is living on the fathers birthday if it falls on a weekend or a school holiday when the father does not spend time with the child from 9:00am until 6:30pm or if it falls on a school day that the father does not spend time with the child from 4:30pm until 7:30pm; provided that time for the father is suspended on the mother’s birthday.
(f)On Father’s Day from 9:00am until 4:00pm with changeovers to occur at the Location B on those occasions.
In the event that Mother’s Day falls on a weekend when the father spends time with the child the father’s time is suspended and the mother will spend time with the child between 9:00am and 4:00pm on that day, with changeovers to occur at the Location B on those occasions.
The father is to have liberal telephone communication (which includes face time Skype or other video interaction) with the child as agreed between the parents but on no fewer occasions than twice per week at agreed times with the mother to make the child available to take the fathers call, and for the mother to have the equivalent telephone time when the child is with the father.
In the event that the parent having the care of the child, at the times for telephone communication, is unable to have the child available to receive the calls at the appointed times then that parent shall arrange for the child to telephone the other parent as soon as is reasonable practicable.
Each parent is restrained from denigrating the other parent or any partner of the other parent to the child or to any other person in the presence of the child and must remove the child from the presence of any third party so doing.
The parents must not discuss the Family Law matter in the presence of the child or knowingly permit any other person to do so except to explain to the child the time that she will spend with each parent pursuant to the orders.
The mother shall authorise the Principal of any school attended by the child from time to time to provide to each parent upon issue a copy of each school report, school newsletter, school photograph, report/s on progress and/or performance or behaviour issues at school, any notification to parents of events affecting the child and events to which parents are normally invited, including parent/teacher nights and sporting and social occasions, service of a copy of the sealed orders upon the Principal of the school/s is sufficient compliance with this order.
The father is at liberty to attend parent/teacher interviews and other student focused events held at any school attended by the child.
In the event of any significant occasion or event that either parent wishes the child to attend, such as a birthday, christening or wedding, which is scheduled to occur during a period when the child is otherwise due to be in the care of the other parent, the parent wishing to make that request must do so, in writing, providing three (3) weeks written notice to the other parent. The other parent must not withhold their consent unreasonably in this regard and must respond within three (3) days of the request being made.
These orders will be sufficient authority for any medical practitioner or allied health professionals who may treat the child from time to time to provide the father with information about the child and including any diagnosis and treatment the child may be receiving.
The parents are to speak respectfully to each other in the presence of the child and are to greet each other cordially when they meet.
Each parent is to advise the other parent as soon as possible by the best available means in the event of any of the following occurring:
(a)The child being seriously injured or falling seriously ill;
(b)The child requiring urgent medical treatment from a doctor or ambulance crew;
(c)The child being involved in an accident or admitted to hospital.
Both parents are at liberty to remove the child from Australia for an overseas holiday provided the following orders are complied with;
(a)That prior to written consent of the other parent is obtained and no less than forty-two (42) days prior to the dated proposed departure.
(b)Not less than forty-two (42) days prior to departure from Australia the parent seeking to remove the child (the travelling parent) will provide to the other parent;
(i)Details of flights including dates and times for departure and arrival;
(ii)A copy of the itinerary setting out the travel arrangements for the travelling parent and the child.
Not less than fourteen (14) days prior to departure from Australia the travelling parent will provide to the other parent;
(a)A copy of the ticket purchased or evidence of prepaid return ticket for the child;
(b)Telephone contact details for the child during the period that the child is overseas.
The travelling parent will facilitate the child’s communication with the other parent by telephone at least once per week during the period the child is outside Australia.
The child’s passport is made available for the purposes of the travel and is to be returned to the mother.

IT IS NOTED:
(A)The father shall provide the mother with a copy of all videos taken of the child as a baby and a toddler, at the mother’s expense.

IT IS NOTED that publication of this judgment under the pseudonym Prinsen & Blair is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WAUCHOPE

NCC 1374 of 2017

MS PRINSEN

Applicant

And

MR BLAIR

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting application involving parenting orders being sought for one child, [X] born 2005.
The applicant mother was born 1974 and the respondent father was born on 1969.
The child currently lives in a shared care arrangement changing over every 10 days.
The parents were in a relationship from approximately 1996 until 14 June 2007. The father says that parties separated on a final basis on 17 August 2008. Nothing turns on this dispute.
The child has a half-sister [C] who was born 2009.
It is not in contest that the child and her half-sister are extremely close with the child telling the family consultant that the half-sister is her best friend.
The child has been living in a shared care arrangement since 2010.
The parties lived in the Town C district until December 2016 when the mother unilaterally relocated the child's residence, when the child lives with her, to Town A on the north coast of New South Wales. The distance between the parent’s homes was approximately two hours.
Both the parents agree that the equal time arrangement is no longer in the best interests of the child.

The Material

The mother relied upon:
a.   Initiating application filed 11 May 2017;
b.   Affidavit of the mother filed 10 November 2017;
c.   Affidavit of Mr D (the applicant's husband), filed 11 October 2017; and
d.   Family report released on 2 November 2017.
The father relied upon the following:
a.   Response to initiating application filed 14 July 2017;
b.   Affidavit of the father affirmed 10 November 2017; and
c.   Affidavit of Ms M Blair (the paternal grandmother) affirmed on 6 November 2017.

The Competing Proposals

The father sought the orders as set out in the response to initiating application filed on 14 July 2017.
In summary the father sought an order for sole parental responsibility, that the child live with him, that he be responsible for the major decisions with respect to the child's education, that the parties otherwise have equal shared parental responsibility for the child, that the child spend time with the mother during the New South Wales gazetted school term every third weekend from 5:00pm Friday to 5:00pm Sunday and for one half of all New South Wales gazetted school holidays being the first half in 2017 and each odd numbered year thereafter in the second half in 2018 and each even-numbered year thereafter, and the father sought other ancillary orders.
The mother sought orders in accordance with the minute of order attached to her case outline filed on 21 November 2017.
In summary, the mother sought an order for sole parental responsibility, that the child live with her, that the child spend time with the father for a 10 day block during each school term incorporating two weekends, for a 10 day block at the close of term one, two and three and from Christmas Day at 2:00pm until 14 January each year. The mother sought further ancillary orders.

The Issues

The parties agreed at the close of the case that there were no issues in terms of risk of harm in either parents care and also that both parents appear to be able to adequately meet the needs of the child and facilitate her optimal development.
The parties also agree that the shared care arrangement that has been in place for some considerable period of time, a proximally eight years at the time of trial, is no longer meeting the child's needs. Due to the distance that she must travel.
The mother prefers to home school the child, and the father prefers that the child attend formal schooling. Ultimately the decision as to how the child is schooled will be determined by where the child lives.
Both parties agree that an order for equal shared parental responsibility is not an order that is in the best interests of the child. Accordingly the issue as to which parent has sole parental responsibility rests with where the child resides.
In those circumstances, the only real issue to be determined is where the child will live. The spend time with arrangements proposed by both parents would be appropriate orders having regard to the child's living arrangements.
As the mother home schools the child she can arrange for the child to have one 10 day period with the father each term, together with half of the school holidays.
If the child lives with the father the child will be going to formal school and in those circumstances the father proposes that the child spends time with her mother one weekend out of every three during the school term and for one half of all school holiday periods.

The Evidence

The Mother

The mother's affidavit evidence set out allegations of family violence including that the father made derogatory comments to the mother threatened to harm her and threw rocks at her.
The mother says that the father is very controlling in terms of arrangements for [X].
The mother gives evidence that [X] has been diagnosed in 2013 with Asperger’s Syndrome, A2 Asperger’s on the autism spectrum. The child also has a curvature of the spine although this does not affect her greatly.
The mother says that the child is lactose intolerant and the father does not comply with the eating regime. Furthermore the mother says that the father does not discuss medical issues that might occur in the father's home with her.
It is the mother's evidence that the child is home schooled and that she is doing very well. The mother says the child was bullied at school when she went there and she has decided to home school the child. This decision has caused much conflict between the parents.
It is the mother’s evidence the father refuses to properly engage with the home schooling program and for example would not allow the child to attend extracurricular activities relevant to the home school program when the child was in his care notwithstanding that the child attended those activities when the child was in the mother's care.
The mother provides evidence of the extracurricular activities that the child does in the Town A area and they are significant and, also on face value, of value to the child.
The mother gives evidence that the child identifies as an Aboriginal person and that she includes learning about Australian Aboriginal history via the home school program and also enriches those lessons with a variety of texts and DVDs, she visit museums and attends talks, shows and art programs. Furthermore for the past three years the child has been taken to the NAIDOC celebrations in Town B .
When the mother was cross examined she did not impress me in the manner in which she gave her answers. She seemed quite aloof and at times almost dismissive of questions being asked of her.
The mother conceded in cross-examination that it was the child that had told the father that she had moved to Town A. That is the mother did not consult the father about that.
The mother conceded that the child was safe in the father's care and agreed that the child tells both her and the father what the child thinks they want to hear.
The mother conceded that the child has a very nice bond with her father and that it was a very high quality relationship. The mother conceded that the father has been heavily involved in the raising of [X].
In my view the mother showed a little lack of insight when she said that she did not believe that the move to Town A would have an impact on the child.
The mother conceded that the paternal family all of whom live in the Town C area are a good influence on [X] but for the paternal uncle.
The mother indicated that she felt pressured into agreeing to the shared care arrangement but also conceded that she had not taken any steps to set it aside until commencing these proceedings.
The mother was clear when she said that she would not be returning to the Town C area and indeed although questions were asked of the mother about that the father was not seeking a coercive order.
Overall after having watched the mother give evidence I was left with concerns that the child’s relationship with the father might suffer if the child lived predominantly in her mother's care.

The Father

The father gave evidence that he suffered a workplace accident which resulted in substantial lower back injuries seven months before the child was born in 2005.
His evidence is that he has been on a disability pension and requires assistance with his day-to-day functioning since that time.
Indeed the paternal grandmother is currently the father's carer.
It was the fathers evidence that as a result of the accident he was at home at all times and due to the fact that he found it difficult to sleep he was the parent predominately up during the night when the child was young.
The father makes concessions in relation to family violence in his affidavit material in that in 1998 he says during an argument, a glass smashed inadvertently and a piece of the glass cut the mother. The father denies that he intended to both break the glass and cause harm to the mother.
The father concedes however that both parties were verbally abusive to each other on occasions and he says that at one stage the mother punched him in the right forearm and kicked a full wine cask at his head and called him a fucking arsehole.
The father concedes that changeovers for the care of [X] have on occasions been hostile but the father denies that he ever threw rocks at the mother's car.
The father does concede however that he has raised his voice at times and on one occasion raised his voice at the mother's current husband.
It is the father's evidence that he has a very strong and loving relationship with the child.
The father’s evidence in relation to the child's schooling is that the child likes attending the formal school and he states that he does not like the idea of home schooling at all.
It is the father's concern that home schooling will hinder the childs social development and her ability to interact with other people on a daily basis.
The father confirms that [X] has been diagnosed with Asperger’s Syndrome and Spina Bifida Occulta, curvature of the spine.
The father says that if the child inadvertently has food with lactose products in it when she is with him he has lacteeze, a chewable tablet that he provides to the child.
The father says that both he and the mother have differing views in relation to treatment for the child. The father takes the child to the doctor and dentist and the father says the mother suggests that if the child is given a healthy lifestyle than the natural immune systems will be able to fight off such illnesses and if the child cannot fight off a disease and they quote “pass on to the next plane of existence” that is meant to be and the mother would see the child in the next life.
The mother was not cross-examined in relation to this aspect of the father's evidence and in any event the child has had no major illnesses in her life and both parents have been able to meet the needs of the child.
The father gives evidence that he was not informed about the relocation of the mother and that the child told him before the mother did.
The father says that when the child is with him they engage in a wide range of activities from (omitted) with family and friends to play dates and sleepovers with friends and family, (recreational activities omitted).
The father still has the child enrolled in Town D out of school hour’s program where she completes activity such as literacy and numeracy science and technology, creative arts, cooking, drama and sports.
The father concedes that the child has told him that the travelling between the parents homes has become too much.
The father gives evidence that the child told him that she had run away from the mother's home. The mother was not cross-examined on this aspect of the father's evidence.
The father says the mother does not like to discuss parenting matters with him freely.
Under cross-examination the father conceded that the child's half-sister was her best friend and he had no doubt about that. He also said that he knows the child would miss her half-sister if she was predominantly in his care.
The father under cross-examination indicated that the disability pension that he receives is a pension from his own compensation payout and that he intends to apply for a disability support pension once Centrelink tells him that he can. The father currently is in a preclusion period as a result of his compensation payout and he does not know when the preclusion period is to end.

The father agreed that the mother believes that the maternal grandfather, maternal aunt and maternal uncle all pose a risk to the child. He furthermore agreed that the mother had asked him not to expose the child to those people.
He agreed however that he does continue to expose the child to those persons because he does not see them as a risk and he conceded that the mother would be disappointed in his decision to expose the child to her family.
The father conceded that the child goes to (recreational activities omitted) in Town E, attends swimming and also attends (recreational activity omitted) all whilst in Town A living with the mother.
The father said that none of those extracurricular activities are done whilst the child is in his care.
The father conceded that the transitioning between the two homes was difficult for the child. In those circumstances he agreed that the child needs to live predominantly in one household.
The father also agreed that his household and the mother's household are two very different homes.
The father stated that the child would have no difficulty communicating by email, Skype and telephone. The father stated that the child has a home phone now.
The father agreed that his proposal would see the child transitioning six times per term, whereas the mother's proposal would see the child transitioning twice per term.
The father impressed as a witness who was thoughtful and attempting to do the best he could for the child. He appeared to be thoughtful in his answers and to give real consideration to the mother's proposal.
Ultimately I formed the impression that he was a man that was struggling with having to make a difficult situation in circumstances where he was put in that situation by the mother's unilateral relocation.
At the end of the mother and father's evidence I had two questions in my mind and that was how significant is the changeover problem and how significant is the child's relationship with her half-sister.

Dr H

Dr H provided a family report dated 2 November 2017.
Dr H set out the risk factors that the mother alleged in paragraphs 26 through 29, namely family violence, child safety and well-being, alcohol and substance use, and mental health.
It is significant to note that the closing submissions of the mother was that “the court will accept the evaluation of the family consultant that the child is not at risk of harm in either parent's care and that each parent appears able to adequately protect the child appropriately and facilitate an optimal development”.[1]
[1] page 5 of the written submissions filed 6 April 2018
Dr H says in her report that the mother informed her that she does not wish to interact with the father at all if possible. The mother explained to her that she is a very different person now then who she was when she lived with the father and is concerned that whenever they interact they fall into old patterns.
As a result, the mother informed Dr H that she does not attend changeovers alone and has not done so for a very long time. The mother informed Dr H that the father does not have her mobile phone number or her email address and she wishes for that to remain that way into the future.[2]
[2] paragraph 76 family report
Dr H was of the opinion that if the child was to live primarily with the father that her relationship with her sibling would be impacted in a negative way and that the child would find that situation distressing.[3]
[3] paragraph 112 family report
Dr H considered the parents proposals and said that providing the child with ten consecutive days with the father is more in line with her current shared care experience and more reflective of her expressed desire to have extended time with each parent rather than only weekend time.
Dr H noted that it reduces the number of times that the child would be required to change between homes which the parents acknowledge was becoming increasingly difficult for her.[4]
[4] paragraph 115 family report
In relation to the father's proposal Dr H opined that the requirement for numerous changeovers during the school term would “likely cause the child considerable stress over time.”[5]
[5] paragraph 116 family report
In relation to the child’s sibling relationship Dr H was of the opinion that the relationship provided an additional source of social learning for the child and that limiting the children's time together will reduce the opportunities and may also result in the children experiencing envy of the different experiences the other child will be provided. Dr H was of the opinion that that outcome could result in unnecessary conflict and sibling rivalry.[6]
[6] paragraph 116 family report
Dr H was of the opinion that the child would have greater opportunities to engage with extended family if the father's proposal was adopted. Ultimately Dr H was of the view that both proposals had some merit.[7]
[7] paragraph 117 family report
Dr H ultimately concluded in her report that even if the mother was to relocate back to the Town C district in view of the child's difficulties with transitions the mother's proposal may still be the best outcome for the child however noted that if the mother lived in the Town C district and that closer proximity could have an extra benefit in that the father could spend additional time at extracurricular activities.
Dr H also noted that the distance between the two homes would not be a barrier to increased opportunity for incidental less formal times should the parents agree to this.[8]
[8] paragraph 118 family report
Dr H gave evidence during cross-examination that the child's diagnosis of Asperger’s Syndrome made her more vulnerable in that she was less flexible and did not cope well with much change.
Her evidence was that if the child was to live with the father it would be very difficult for her to manage as it would be a significant change to her in terms of her living arrangements and no longer living with her half sibling, and also the fact that she would no longer be home schooled and would attend more formal schooling.
In relation to the proposal for the child to attend school Dr H was of the view that it would be a disadvantage to the child because she would lose the one-on-one time that home schooling provides.
Dr H was of the opinion that the child, as a 12-year-old and obviously getting older, could endure longer periods of time away from one parent.
When cross-examined by the father's Council it was put to her that she could not identify a factor which puts the mother's proposal ahead of the father's and Dr H said she could and that is the reduced changeover and living with a sibling swings the balance.
In relation to the mother's negative views of the father it was put to Dr H that might cause some concern about the mother's ability to continue to facilitate a meaningful relationship between the child and her father and Dr H said no not necessarily “despite their views, they have been able to facilitate a meaningful relationship for quite some time now.”
Dr H conceded that she has no reservations that the father would facilitate the relationship between the child mother.

The Law

As this is an application where both parents seek parenting orders for a child part VII of the Family Law Act is relevant.
Guided by the objects and principles in section 60B and having considered the matters set out in section 60CC I must make orders that are in the best interest of the child.
It is the child's best interests pursuant to section 60CA that is my paramount concern.
Both parents seek an order for sole parental responsibility and having regard to the evidence in this matter on any view the level of communication and trust between the parents is such that an order for equal shared parental responsibility could not be in the best interests of the child.
In those circumstances where I do not propose to make an order for equal shared parental responsibility the provisions of section 65DAA are not triggered and I am otherwise empowered to make such parenting order as I think proper.[9]
[9] S65D Family Law Act 1975

Primary Considerations

On any view of the evidence this child will benefit from having a meaningful relationship with both of her parents. One of the matters that is beginning to impact upon the child's ability to have a fulfilling and meaningful relationship is the difficulty the child is experiencing in transitioning between the two homes.
Indeed it was this issue that has brought this matter to the court seeking a final determination. It is not surprising having regard to the living arrangements that this child has been experiencing that neither parent could bring themselves to settle this dispute and neither parent should be held in a negative light as a result of that difficulty.
At the close of the evidence it was the position of both parents that the child was not at risk in either parent's home.
In those circumstances my task is to craft orders that will best meet the child's needs having regard to her family experience in both homes and the difficulty she has with transitioning between the two homes.

Additional Considerations

The child expressed a very mature fair and balanced view of the equal time arrangement and expressed a desire for it to continue if possible.
Unfortunately it seems that the mother will not move back to the Town C district and in those circumstances an equal time order is not possible.
The child was able to identify positive aspects of life in each parents home and that is perhaps not surprising considering the child has lived on an equal time basis with her parents since she was four years old.
Ultimately I am of the view that [X] will be bothered by either proposal because it will involve a reduction in the time that [X] spends with the non-resident parent and also I am of the view that [X] would not be particular troubled by having to live primarily in either household.
Of course one must remember that [X] is 12 years old, and although she expressed her views in a mature way I am not convinced that she would appropriately understand the importance of her sibling relationship and how if she spent less time with her sibling that might impact upon her.
It is clear that [X] has a very warm affectionate and secure relationship with each parent.
Whilst submissions for the father were made that the extent to which the relationship between [X] and her sibling would be affected is outweighed by other considerations in favour of ensuring that [X] is able to maintain a meaningful relationship with both parents, as I said previously the mother has said that she will not return to the Town C district and in those circumstances I must make orders that take into account both the best opportunity to continue a meaningful relationship and how to properly deal with the sibling relationship.
It is clear on any view that both parents have taken every opportunity to participate in making long-term decisions about the child and to being as fully engaged with the child as they possibly can. In short the evidence in respect of this subsection is without controversy and not determinative.
There was an issue about whether the father was receiving child support from the mother or not. The father does not press for a determination in relation to that issue and in any event again the evidence in relation to this subsection is not determinative.
On either parent's proposal there will be a significant change to the child's living arrangement.
If I accept the father's proposal the child will live predominantly with the father and have the benefit of engaging with paternal family members and re-engaging with her former school. The child indicated that she was fond of the school although also said that she might struggle with the mathematics.
In living with the father her relationship with her mother, stepfather and her sibling would be affected.
The family consultant was at pains to point out that the child sibling relationship was a significant issue in this matter and was of the opinion that if that relationship suffered, it would be most disadvantageous to the child.
The family consultant pointed out how the relationship might suffer, namely, the child be spending less time with her sibling, the child would be engaging in formal school whilst her sibling engages in home school and the child will be living a different experience to her sibling. In the family consultant's view those matters might bring about conflict in the relationship and some sibling rivalry and furthermore in the family consultant's view this would be most disadvantageous to the child.
If I make orders consistent with the mother's proposal then the child will not have the benefit of living with her father on an equal basis. The child will have less opportunity to engage with external family members and of course will not reengage with the school.
The mother's proposal provides the flexibility for the child to be able to spend a ten day period each term with the father. In the family consultant's view that proposal and that length of time is more in keeping with the child's previous lived experience and importantly provides the child with the ability to settle into the father's care, and thereafter enjoy her time with her father.
Obviously, the child will continue to live with her sibling, stepfather and mother and again emphasis is placed on the sibling relationship, in that context.
Of course it cannot be forgotten that if [X] were to return to live with the father she would be returning to a district in which she was born and raised and continues to have regular involvement with under the current regime.
Weighing those proposals I am of the view that the mother's proposal is the least disadvantageous to the child.
It is as a result of the mothers move to Town A that there is now practical difficulty and expense in the implementation of orders no matter what order I make. Thankfully the distance between the parents and the associated difficulty and expense will not however substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
After hearing all of the evidence I am satisfied that both parents have a capacity to meet the needs of the child including the emotional and intellectual needs.
The father would argue that the mother has shown a lack of capacity to meet the child's emotional needs in circumstances where she moved two hours away to Town A.
However as Dr H pointed out the mother moved to Town A as she considered it provided a positive change for the child. That is the mother did not move to Town A due to some whim. She gave thought to how the move to Town A might have a positive effect for the child and formed the view that it was in the child's best interests if the family moved to Town A.
Whilst the father disagrees that it is in the child's best interests I cannot find that the mother lacks capacity to meet the child's emotional needs in those circumstances. She gave careful consideration, it seems, to the move prior to doing so.
Whilst it is true that the child suffers from Asperger’s Syndrome the evidence does not point to one parent being more readily able to accommodate [X]'s needs in that respect. There is nothing else of significance that relates to the maturity, sex, lifestyle and background of the child or either of the child's parents that is determinative in this matter.
The child does identify as an aboriginal. The evidence establishes and I find that the mother has engaged the child appropriately with her indigenous culture and I am satisfied that she will continue to do so into the future.
Equally so the father ensured that the child attended NAIDOC celebrations organised by the school and other special occasions that were designed for students who identified as Aboriginal.
As a result I am satisfied that both parents have effectively considered the need to engage the child in her culture and have both provided the child with an opportunity to be so engaged.
I am satisfied on the evidence that both parents have shown an excellent attitude towards the child and to their responsibilities as parents. As I have said earlier the father does not agree with the mothers move to Town A and that is completely understandable in the circumstances however I am satisfied that the mother gave careful consideration to how the move might affect the child in a positive way prior to moving. That said I am not satisfied that I could make any finding against the mother as a result of her unilateral move some two hours away.
Both parents give evidence of some family violence in the home when the parents were together. In those circumstances I am satisfied that there was family violence during the relationship.
There is no persuasive evidence before me that would cause me to make a finding that the child is likely to be exposed to family violence in either home and accordingly I make no finding in that regard.
When one considers the number of changeovers as between the father's proposal and the mother's proposal in the context of [X]'s reported difficulties with transitioning between the homes I am satisfied that the orders that I have made are orders that are least likely to lead to the institution of further proceedings in relation to the child and that they are orders that are in the best interests of the child.
The orders I have made take into account the number of transitions and limit the number of transitions. By doing this I am of the view that the child will settle into the new regime sooner and as a result neither parent will see a need to change the orders.
The father through his submissions says that there is nothing to prevent the mother from returning to the Town C district. The mother has said that she will not but more importantly even if she did that of itself would not address the issue that the child currently has and that is the difficulty in transitioning between the homes.
Both parents were of the view that the child needs one primary residence.
In those circumstances even if the parties lived in close proximity the child would need to live with one parent. In circumstances where the father would engage the child in formal schooling the child could only then spend weekend time with her mother if she were living with the father.
As the family consultant pointed out if the child spent weekend time with the mother she would have very little time to enjoy her time with the mother because she would need to settle into the mother's home again and this takes some time due to her vulnerabilities. As a result she would be left with little time to enjoy being with the mother before going back to the father's home.
It is for that reason that the family consultant was of the opinion, and I must agree with her, that even if the parents lived in close proximity to each other the mother's proposal would still have the most merit.
The reason I say that is because it takes into account the child's difficulties with transition by allowing the child to have a ten day period in the father's home each term. That provides the child time to settle into the father's home and then to enjoy a significant amount of time with the father before transitioning back to the mother's home.

Parental Responsibility

Both parents seek an order for sole parental responsibility. Both parents are intelligent people that recognise that there is a fundamental difficulty with their communication such that it impacts upon the child.
Having watched both parents give evidence I am of the view that an order for equal shared parental responsibility is not in the child's best interests and the presumption does not apply due to the finding I have made that there was family violence in this relationship.
Above all else this child needs stability and certainty and making an order for the parents to have equal shared parental responsibility would in my view cause instability and uncertainty and potentially place the child in the middle of conflict once again.

For these reasons I am satisfied that the orders I have made are in the best interests of the child.

I certify that the preceding one hundred and forty five (145) paragraphs are a true copy of the reasons for judgment of Judge Middleton

Date: 5 October 2018

[2018] FCCA 2746

5 October 2018

Key Legal Topics

Areas of Law

Family Law