Quigley and Quigley
[2016] FCCA 463
•15 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| QUIGLEY & QUIGLEY | [2016] FCCA 463 |
| Catchwords: FAMILY LAW – Parenting – Child aged 8 living with his father in (omitted) – where the mother relocated to (omitted) in August 2014 for the purposes of obtaining employment – whether the child should live with the mother in (omitted) or with the father in (omitted) – where the mother is the warmer and more nurturing parent and the child is missing his mother – order made that the child live with the mother in (omitted). |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA |
| AMS & AIF (1999) FLC 92-852 Mazorski & Allbright (2007) 37 Fam LR 518 |
| Applicant: | MS QUIGLEY |
| Respondent: | MR QUIGLEY |
| File Number: | NCC 595 of 2015 |
| Judgment of: | Judge Terry |
| Hearing date: | 11 & 12 February 2016 |
| Date of Last Submission: | 15 February 2016 |
| Delivered at: | Newcastle |
| Delivered on: | 15 February 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weightman |
| Solicitors for the Applicant: | Mullane & Lindsay |
| Counsel for the Respondent: | Ms Flintoff |
| Solicitors for the Respondent: | Walker Legal |
ORDERS
The parents have equal shared parental responsibility for the child X born (omitted) 2007.
The child live with the mother
The child shall spend time with the father:
(a)each alternate weekend during school terms from 8.00pm on Friday until 7.00pm on Sunday;
(b)during school school holiday periods:
(i)for half of all school holidays, being the first half of the school holidays commencing in odd numbered years and the second half of the school holidays commencing in even numbered years;
(ii)the first half of school holidays commences at 8.00pm on the last day of the preceding school term and ends at 12.00 noon on the middle day if the school holiday is an odd number of days, and at 9.00am on the first day after the middle midnight if the school holidays are an even number of days;
(iii)the second half of the school holidays commences at the conclusion of the first half and second half concludes at 8.00pm the day before the child is due to return for the commencement of the following school term.
(c)from 8.00pm on 23 December until 7.00pm 26 December in 2017 and each odd numbered year thereafter;
(d)such additional or alternate time as the parties may agree.
In the event that the father will be in the (omitted) area, he is at liberty to spend time with the child during any periods that the mother is working subject to the father providing the mother with no less than 5 days notice of his intention to do so and unless otherwise agreed between the parents in writing, this order shall be implemented by the father collecting the child from the mother’s home at the commencement of the spend time with period and returning the child to the mother’s home at the conclusion of the spend time with period.
If Father’s Day falls on a weekend when the child would otherwise be with the mother then the weekends shall be swapped so that the child shall spend the Father’s Day weekend with the father and the following weekend with the mother.
If Mother’s Day falls on a weekend when the child would otherwise be with the father the weekends shall be swapped so that the child spends the Mother’s Day weekend with the mother and the following weekend with the father.
Despite anything in the above orders the child’s time with the father is suspended from 8.00pm on 23 December 2016 until 8.00pm on 26 December 2016 and each even numbered year thereafter.
Unless otherwise agreed between the parents the child’s time with the father shall be facilitated by the mother, or a nominee known to the child, driving the child to the father in (omitted) at the commencement of the time and the father, or a nominee known to the child, driving the child back to the mother in (omitted) at the conclusion of the time.
Each parent will facilitate the reasonable and uninterrupted communication of the other party with the child by means of telephone, email or Internet based communication during the times that the child lives with or spends time with the first parent.
Unless otherwise agreed by the parents, the child shall communicate with the father by Skype on Sunday evenings on the weekends that the child does not spend with the father in (omitted), failing agreement, between 6.00 pm and 7.00 pm.
The parents shall keep each other informed of their current residential address, home telephone number, mobile telephone number and email address and shall provide to the other not less than 24 hours notice of any change of address or telephone number.
Within 7 days of the date of the orders both parents do all acts and things and sign all documents necessary for the child to be enrolled in and attend at The (omitted) Primary School.
Each parent may obtain from the children’s school(s) copies of newsletters, school reports, order forms for school photographs and any other information usually provided to parents and may attend any event at the school(s) normally attended by parents including parent-teacher interviews, sports days or assemblies regardless of whether or not at the time of these events the children are spending time with them pursuant to these orders.
IT IS NOTED that publication of this judgment under the pseudonym Quigley & Quigley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 595 of 2015
| MS QUIGLEY |
Applicant
And
| MR QUIGLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Ms Quigley and Mr Quigley cannot agree about parenting arrangements for their son X who will be nine in less than a month.
The mother lives in (omitted) and the father lives in (omitted) and they each seek an order that X lives primarily with them. They each propose that he spend alternate weekends and half school holidays with the other parent although the father’s proposal comes with a condition namely that the mother must not be working night shifts when X is with her.
The mother was historically X’s primary carer but he is currently living with the father because the father would not agree to him relocating to (omitted) with the mother after she moved there in August 2014. The mother spends time with X for about two days each week, often during the week in (omitted) but sometimes on weekends in (omitted).
In her trial affidavit the mother said that if the Court considered that it was in X’s best interest to remain in (omitted) she would quit her job and move back to (omitted). She proposed that in that event X live with her and spend alternate weekends and Wednesdays after school with the father, which was the position before she left (omitted). The mother said that the travel she was currently doing to spend time with X was unsustainable and that she did not believe that X would cope if he only saw her on alternate weekends.
The father responded to this by saying that if the mother returned to (omitted) the parents should have week about shared care. However neither parent included these alternative proposals in their Minute of Orders sought and I raised with counsel during the hearing the issue of how I should treat these proposals.
The mother saying that she will return to (omitted) if X cannot live with her in (omitted) is analogous to a parent saying that they will not relocate unless they can take a child with them and in the High Court case of AMS & AIF Hayne J said that this meant that there were three competing proposals on the table. He said as follows:
The complexity and difficulty of the inquiries which must be made is increased when, as was the case here, a parent's wish to move is expressed conditionally - I will go unless I cannot then have custody. It is more complex and difficult because there are then three competing possibilities for consideration. [1]
[1] AMS & AIF (1999) FLC 92-852
However in the recent Full Court decision of Heaton & Heaton, a case in which the mother wished to relocate from Sydney to (omitted) but said that she would not do so if she could not take the children, the Full Court said as follows:
Although the mother’s fall-back position of remaining in Sydney to stay with the children required consideration we consider that [..] elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.[2]
[2] Heaton & Heaton [2012] FamCAFC 139
The primary applications the parties asked me to consider were the alternatives of the child living with the mother in (omitted) or the father in (omitted). Only if I found that it was not in the child’s best interests to live with her in (omitted) did the mother ask me to consider making an order that the child live with her in (omitted).
The two proposals the mother put forward were not of equal importance and neither party sought orders along the lines of their alternative proposals in their amended application or minute of orders sought respectively. In my view the task I need to undertake is to consider the parties’ primary proposals and determine whether it is in X’s best interests to live with the mother in (omitted) or the father in (omitted). If I conclude that the father’s proposal is to be preferred over the child moving to (omitted) I will then need to consider the mother’s alternative proposal about arrangements for X if she returns to live in (omitted).
The parents agreed that they should have equal shared parental responsibility for X.
In Australia people have a right of freedom of movement. It is enshrined in our Constitution. People have a right to move and when a parent wants to move or in fact moves after separation the Court has to consider the proposals of the parties and determine which proposal is on balance in the child’s best interests, and I say on balance advisedly because often no outcome is perfect for the child.
Relocation cases frequently involve, as this one does, two good parents, parents who do not have problems with drugs, alcohol, mental health or parenting capacity and who are not violent, and the Court has to make a very difficult decision about where the child should live in the face of one parent wanting to exercise their right of freedom of movement.
The Evidence
The mother relied on her affidavit and on the affidavits of her friends Ms L and Ms T, who she said could assist her with the care of X if he lived with her in (omitted).
The father relied on his affidavit and the affidavit of his partner Ms G.
A family report was prepared by Mr P, a Regulation 7 family consultant.
The family report was useful as were Mr P’s answers during cross-examination and I will refer to his evidence during the course of this judgment. However Mr P did not make any recommendation about where X should live. He pointed out during cross-examination that he had found the matter very difficult and I agree that it is. I have two basically good parents and I can understand why Mr P felt unable to make a recommendation.
The mother, father, Ms G and Mr P were cross-examined. The mother’s witnesses were not required.
Background
The father was born in (country omitted) but came to Australia when he was five or six. The mother is (nationality omitted) and she met the father in 2004 and came to Australia in (omitted) 2005. The parties married in (omitted) 2005.
The father is a long term resident of (omitted) and after their marriage the parties lived in (omitted). They have one child, X, who was born on (omitted) 2007.
The mother was X’s primary carer after his birth. The father was the primary income earner and he conceded that he worked long hours during the relationship, indeed his affidavit was replete with complaints about the mother’s failure to assist him by obtaining more extensive employment.
The parties separated in March 2011 when X was four. After separation X lived with the mother and the parties agreed that he would spend time with the father each Sunday which fitted in with the father’s work.
Late in 2011 the father commenced a relationship with Ms G.
In October 2012 the parties attended mediation and agreed that X would start spending time with the father each alternate weekend from after school on Friday to before school on Monday and for two hours after school each Wednesday.
In the father’s affidavit he suggested that at some point between March 2011 and October 2012 some overnights were introduced on the weekend. That claim was not explored in cross-examination and I cannot make a finding about it but in any event in October 2012 the alternate weekends and the time after school on Wednesday commenced and from then on happened uneventfully.
The mother has a degree in (qualifications omitted). She looked for work after separation but she was unable to find work in that area in (omitted). She applied for jobs in (industries omitted) but was unable to find fulltime work in (omitted) in those capacities either. Eventually she sought employment in (omitted) and in July 2014 she was offered a job as an (occupation omitted) at the (omitted).
(omitted) had other attractions for the mother. It is a larger centre and it has a small (nationality omitted) community. The mother has no family in Australia and the opportunity to interact with (nationality omitted) people is important to her.
The mother told the father about the employment offer and assumed that he would not have any difficulty about X moving to (omitted) with her because she had always been his primary carer and indeed the father did initially agree to this.
The parents agreed that it would be best if X finished Term 3 in (omitted) and commenced living in (omitted) with the mother at the beginning of Term 4. They subsequently agreed that it would be best if X stayed in (omitted) until the end of 2014 school year.
The mother identified The (omitted) Primary School as a suitable primary school for X to attend in 2015 and the father agreed to the mother taking X to several orientation days at this school in Term 4 2014. However in the latter part of 2014 the father and his partner began suggesting that perhaps X should remain with them in (omitted) for the time being and move to (omitted) for high school and on 7 January 2015 the father told the mother that he would not agree to X living with her in (omitted).
The mother then commenced proceedings in this Court.
X has continued to live with the father pending the hearing of the matter.
The mother works shifts at the (omitted) and only has one weekend off a month but she has days off during the week. Since she relocated she has been going to (omitted) to spend time with X on her days off during the week and has stayed either at a hotel or with friends. In addition X has spent time with her in (omitted) on her weekends off.
There is no order governing this, rather a practice has developed of the mother letting the father know when she has days off and then going to (omitted) and spending the time with X. This has occasionally caused a little bit of angst between the parties but by and large it has worked pretty well.
The parties have also agreed to X spending time with the mother in (omitted) during the school holidays and the father, and this is greatly to his credit because some people who would not have agreed to this, agreed to the mother taking X to (country omitted) with her for 14 days in late October early November 2015 when the maternal grandfather was ill. Indeed not only did he agree to it, he and Ms G offered to pay X’s fare, and they are to be hugely commended for that.
So pending the hearing X has continued to live with the father in (omitted) and has continued to attend the same school and the mother has continued to live in (omitted) and spend all the time she can with X and I must decide what is to happen in the longer term.
The parties’ circumstances
The father is 43. He lives with Ms G, their children Y, born on (omitted) 2013 and who has just turned three and Z born on (omitted) 2014 and who is about to turn two and Ms G’s daughter A who is about 13.
The father owns a (business omitted) in (omitted) and he works in the (business omitted) six days a week. Ms G is employed as a (occupation omitted) in (omitted).
Ms G finishes work at about 5.00pm and she and the father juggle the care of the children. Y and Z attend some sort of day care and I will discuss later the arrangements for X and A.
X is in Year 3 at (omitted) Primary School in (omitted).
The father enjoys living in (omitted). He has lived there for about 30 years, he has a business there and is settled there with his family. It was not suggested to him, nor could be it be reasonably suggested, that he should consider moving to (omitted).
The mother is 35. She became an Australian citizen in 2010. She works at the (employer omitted) and lives in (omitted) which is about 15 minutes from her work and close to The (omitted) Primary School where she would enrol X if he lived with her in (omitted).
It is a requirement of the mother’s job that she works either day shifts, which vary but look like they are from about 7 or 8 am until a little after 5 pm and an afternoon or evening shift which again can vary but it is something like from 2 or 3pm until 11pm or up to 1 am the next morning.
The mother’s roster comes out once a week. She has one weekend off a month and otherwise her days off are during the week.
The mother has not re-partnered.
The mother is renting in (omitted) and she could rent in (omitted). It was not suggested to her in cross-examination that she could get fulltime work in her area of expertise in (omitted) but the father’s counsel did suggest that there were suitable jobs available in (omitted) which is about 30 minutes from (omitted) or (omitted) which is about an hour away.
The child’s best interests
Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and to determine X’s best interests I must have regard to the matters in s. 60CC(2) and (3) of the Family Law Act.
S.60CC(2) contains the primary considerations which are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There is no abuse, neglect or family violence in this matter.
X currently has a relationship with both his parents which is significant, important and valuable to him[3] and he will not lose that whether he lives primarily with the father in (omitted) or primarily with the mother in (omitted).
[3] Mazorski & Allbright [2007] 37FamLR518
The things each parent can do with him will be different depending on where he lives but he will still be able to have a relationship with each of them which is important, valuable and meaningful to him.
The father suggested in his affidavit that the mother was seeking to alienate X from him. The way this Court uses the word alienate is different to the way the word may be used in the community, and there was absolutely no evidence that the mother was attempting or had ever attempted to alienate X from the father or Ms G in the way this Court understands the word.
The parents have cooperated very well since separation to ensure that X spends time with each of them. There has been no occasion where X has been withheld. They reached an agreement immediately after separation about the time X would spend with his father which suited the father. They agreed after mediation to extend that time
When the father lost his licence for drink driving in July 2013 the mother helped out by taking X to his (business omitted) so that the father could continue to have the Wednesday afternoon time which he initially said he would not be able to have while he did not have a licence. The mother went the extra mile to make sure that X spent time with the father.
There was no evidence of the mother denigrating the father or Ms G to X. She told Mr P that she thought the father was a good father. She is likely to comply with orders because the evidence is that she values the father’s relationship with the child. She may not value it to the extent he would like her to value that is be willing to move back to (omitted) unless she is forced to do so but that is something different. There is not the slightest evidence that if X lives with the mother in (omitted) he will be at risk of losing his relationship with the father.
The mother has waited patiently for the final hearing of this matter and not all parents do that. Sometimes they take the law into their own hands and withhold a child. The mother has not. She has simply waited patiently for the final hearing to come around.
The father has also facilitated time between X and the mother while X has been living with him. I have some concerns about the attitude of the father and Ms G to the mother and I will refer to that again later but I do not consider, given the strength of X’s relationship with the mother, that anything the father and Ms G do or say is likely to undermine X’s relationship with the mother. The greater risk is that it will undermine X’s relationship with the father and Ms G, so I hope that the end of these proceedings will see the end of the father and Ms G being negative about the mother.
The primary considerations therefore do not assist me. There are no family violence or abuse issues and X can have a meaningful relationship with both his parents no matter wherever he lives.
I then have to turn to the additional considerations in s. 60CC(3) and the first of these is any views of the child and the weight I should give to the views.
Each party gave some subjective evidence about the child’s views. The mother said that the child wanted to live with her in (omitted). The father and Ms G both said that the child talked about missing his mum but did not concede that he wanted to live with her in (omitted) and Ms G said that the child did not want to leave his current school.
I cannot place a lot of weight on the subjective views of the parents. Parents have a tendency to say things because it aids their case or to hear what they want to hear and I have no independent evidence from Mr P on this topic because X did not express a view to him.
However I do have a little bit of window in to what X’s views might be in the counselling notes.
The father and Ms G, to their credit again, arranged for X to see a school counsellor in about March 2015 because they were concerned about him and there is reference in the counsellor’s notes to what X wants.
On 17 July 2015 the counsellor contacted the father and informed him that X was telling her that he missed his mum and felt sad a lot but did not want to tell his father this because he was scared of hurting his father’s feelings.
There is also a note which appears to be made on 27 August, although I am not necessarily sure that this is the case and I consider it possible that this also relates to 17 July 2015, where X is reported to have said to the counsellor “I want to live with mum.”
X saw the counsellor on 18 November 2015 after he came back from (country omitted) and said that he was looking forward to his mother visiting him soon. He said that he was missing his mum even though he had just come back from (country omitted) with her.
Mr P suggested that not too much weight could be placed on all of this. He said the views the child expressed might depend on whether he had seen the mother directly before he saw the counsellor. Ms G said something similar in cross-examination. She also said that the views might have been transitory and children do express transitory views.
However I consider it significant that X expressed the same view to the counsellor on a number of occasions. There is a theme of X wanting to spend more time with his mother and on one occasion a clear statement that he wanted to live with her.
Children’s views however are only consideration I have to take into account. X, as the father rightly pointed out, cannot envisage what it would be like if he lived with his mum and did not see his dad so frequently. He is only a child. His views are relevant and I have to take them into account but they do not determine the case.
One other aspect of views I need to cover here is that the father suggested in his affidavit and Ms G said the same thing in hers, that X had asked to spend equal time with his parents in 2014.
When the father was cross-examined about this it became clear that this was not exactly what X had said. In cross-examination the father said that X had asked to spend more time with him and that he and Ms G then raised equal time with X. It is not accurate to say that X has at any point asked for equal time but it was certainly the father’s evidence that in 2014 he asked for more time with him.
The next additional consideration is the nature of the relationship of the child with each of his parents and any other relevant person.
X has a very strong relationship with his mother. There is no doubt that she was in the past, and judging by what he is saying to the counsellor probably still is, his primary attachment figure.
X lived primarily with his mother until she went to (omitted). She is a warm and loving parent. The father conceded that X was strongly attached to her. Mr P commented that from his observation of the mother she was warm and nurturing and that was borne out by the evidence.
X also has a good relationship with his father. In cross-examination Mr P said that it was a functional relationship. That is perhaps a rather brusque way of putting it because the father is on any view a caring father and Mr P described him as having a warm and relaxed interaction with X at the observation session. However, and I will go into this more in the parenting capacity section, there is evidence that the father does not have the same warm and nurturing relationship with his son as the mother does.
Ms G interacted positively with X at the family report interviews and X made no complaint about her.
Ms G seems to have a somewhat forceful nature and there were a number of references in the father’s evidence to her getting angry. In his affidavit the father said that on one occasion Ms G became furious after being told that X had not had his tea when he arrived home from spending time with the mother. He also referred to Ms G getting very angry on another occasion[4] and when he was asked in cross-examination about the complaint he made in his affidavit about the mother not always returning X’s clothing, he said that the problem he faced was that Ms G became upset with him when clothing was not returned.
[4] Father’s affidavit paragraph 85
Mr P did not observe anything untoward in Ms G’s interaction with X but there was nothing to suggest that she was able to provide him with the same warmth and nurture as the mother.
X has a good relationship with his two young siblings and the sibling bond is important, but as Mr P pointed out there is a significant age difference between the siblings. Y and Z are three and two. X is about to turn nine. X has not grown up with his siblings from his birth or even from both of theirs. He started living with the family in mid-2014.
There was no evidence that X had any difficulties in his relationship with A, but I cannot say anything more about that particular relationship.
I must consider the extent to which each parent has taken the opportunity to spend time with the child and make decisions about the child.
Each parent has always wished to be part of the child’s life and to be part of decision-making about him. The mother has spent every moment she can with X since relocating. The father and Ms G were critical of her for not taking more weekends off but I do not consider that this is a valid criticism.
The father suggested that there were occasions when the mother turned up in (omitted) not out of concern for X but for appearance’s sake. There was not a shred of evidence to support this assertion and it is a manifestation of the father’s unnecessarily negative view of the mother.
I will not assist me to delve in detail into the issue of who did what on the day of the child’s confirmation.
I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil their obligations to maintain the child.
The father complained that the mother did not pay child support between August and December 2014 but on the state of the evidence I cannot make an adverse finding about her in relation to that. She is currently assessed to pay, and does pay, child support.
Ms G and the father both expressed the view in their affidavits that the mother wanted X to live with her so that she could get more money. The father said as follows:
I truly believe that Ms Quigley is motivated to have X live with her because she will be better off financially. Not only would she have to work less, but she would receive maintenance payments and, as a sole parent, she would also receive rental assistance and full family tax benefit.[5]
[5] Father’s affidavit paragraph 114
There is not a shred of evidence to support a finding that the mother is motivated by any child support or monetary considerations in wishing X to live with her in (omitted). These allegations are another manifestation of the negative view the father has of the mother at present.
I must consider the likely effect of any change in the child’s circumstances.
Both parents propose a change. The mother proposes that X live with her in (omitted) which is clearly a change but the father proposes that the child live primarily with him which will be a change from what has been the case for a good part of the child’s life.
I have to decide which change is to be preferred but I cannot do so until I make findings about the remaining s.60CC (3) matters.
I do note that children can adapt to change. They can adapt to a change in primary parent if need be. They can adapt to a change of place. If they have the right parenting they can adapt.
I should refer here also to the alternative proposal put forward by the mother namely that if I was not willing to order that X live with her in (omitted) she would return to live in (omitted).
I am concerned that this might turn out to be a problematic outcome not only for the mother but for X.
The mother moved to (omitted) because she could not find the kind of work she wanted in (omitted). If she again bases herself in (omitted) she will have to look for work outside (omitted), perhaps in (omitted) or in (omitted). She will have to travel at least half an hour each way, perhaps an hour each way, to get to work. Given the industry in which she works she will almost certainly still have to do afternoon and night work and she will still require outside assistance to help her care for X.
The father and Ms G would be close at hand but the relationship between them and the mother is not a particularly good one and I am not convinced that they would readily fall in with a request by the mother that they fit their time with X around her work schedule.
A return to (omitted) would affect the mother’s income. It would no doubt cause some resentment. It would not improve the relationship between the parents which is not particularly good at present. It is hard to see how the mother returning to (omitted) would overall be a good outcome for X.
If I find that X needs to spend a lot of time with his mother this might be a better outcome for him than only seeing his mother each alternate weekend but overall it has the potential to be a problematic outcome for X.
I must consider the practical difficulty and expense of the child spending time with a parent.
The parents live two hours driving distance apart. They can afford to transport X back and forth once each fortnight or once every three weeks. The travel might be a little tedious for X but it is manageable and alternate weekends and half school holidays can happen if the parents continue to live in their current locations. Nothing more than that is practical however. Afternoon time during the week is not practical with that kind of a distance.
I must consider the capacity of each parent to provide for the needs of the child including his emotional and intellectual needs.
The father and Ms G are providing well for X on a day-to-day basis. They feed and clothe him and he is being properly educated.
However there is evidence that the father does not have the same warm nurturing relationship with the child as the mother does and Mr P said as follows in the family report:
The question arises whether, at an emotional level, the father will be able to contribute more significantly toward X’s psychosocial development than will the mother.[6]
[6] Family Report paragraph 45
Mr P asked each parent what they considered their strengths as a parent to be and said as follows about the mother’s response:
According to Ms Quigley, one of her primary strengths as a parent is that she explains her decisions to X, while stating that when he lived with her she used to read to him on a nightly basis. The mother was of the view that she has provided X with “good values”, whilst describing herself as a caring and affectionate parent. At the same time the mother stated that “ (Mr Quigley) is a good father”. [7]
[7] Family Report paragraph 28
Mr P asked the father what he considered his strengths as a parent were and reported that:
Mr Quigley struggled to provide a response but did indicate that he provided a safe environment for X, and that he always financially provided for X and his siblings.[8]
[8] Family Report paragraph 44
The father told Mr P that it was his belief that he had communication difficulties as a result of his own non-nurturing upbringing.
Mr P reported as follows about his conversation with Ms G:
She acknowledged [the father] needs to be more nurturing in his role with X but felt that overall they had a positive relationship.[9]
[9] Family Report paragraph 45
There is ample evidence to support Mr P’s opinion that the mother can provide X with a more warm and nurturing relationship than can the father.
In broad general terms my findings in relation to the capacity of the father and Ms G to provide for X’s needs is that it is good in terms of the day-to-day care they can provide but there is concern about their capacity to provide him with warmth and nurture.
The mother can also provide well for X in terms of feeding and clothing and educating him and she has the advantage of having a greater capacity to have a warm and nurturing relationship with him.
The concern about the mother’s proposal is whether she will be able to properly care for X on a day-to-day basis given the requirements of her work.
The mother is rostered to do day and evening shifts. She has eight rostered days off a month and she can also get some other time off in lieu but her days off only fall on a weekend once a month. She would not be able to personally get X both to and from school every day and she would not be there to care for him on a number of evenings.
The mother has given considerable thought to how to deal with this issue and has come up with solutions. She has ascertained that before and after school care are available at The (omitted) Primary School and she has a good friend Ms T whose son P is about X’s age and who shares his interest in (hobby omitted) and who is willing to help provide care for X. The mother has other people lined up to assist her with the care of X when needed.
However the mother does not have a partner and if he lived with the mother X would have to be cared for by different people in different places over the course of a week. Sometimes he will be in before school care and sometimes in after school care. Sometimes one person will be caring for him in the evening and on weekends and sometimes another.
The family report writer rightly said that this was not ideal and the father’s counsel questioned whether the mother would be able to sustain the cost of that indefinitely.
The father also raised a concern about X having very long days where he had to get up and go to before school care then school then after school care and possibly have someone else to look after him the in the evening.
However in assessing how seriously I should treat the concern about the impact of the mother’s shift work on her capacity to care for X when it comes to considering which proposal should be preferred it needs to be borne in mind that the father’s capacity to care for X is also impacted on by his work.
The mother and father both work in occupations which require afternoon and evening work. The father is absent from home six afternoons and evenings a week. He has the good fortune to have a partner to assist him but he is not personally present for X on those afternoons or evenings.
At the time of the family report interviews the father was starting work at about 4.00pm and was collecting X from school and then taking him to the (business omitted) when he started work and keeping him there until Ms G finished work. However by the time of the hearing the father was starting work at 2.30pm and working until 9.00pm Monday to Thursday and on Fridays and Saturdays he was working from 1.30pm until 10.00pm.
On weekdays Ms G finishes work at either 5.00pm or 5.30pm and there was some evidence to suggest that the current arrangement for X was that he was going home after school and staying there with A until Ms G finished work.
Therefore given his occupation, the father also has a problem making appropriate care arrangements for X and he is hardly ever there with him during the week. He sees him in the morning before school but he is not there after school and he is not there in the evening. Ms G said in her affidavit that it was difficult for her being left to look after four children in the evening, and that sometimes the older two children, X and A, felt that they were missing out.
The father was concerned that X might have long days away from home if he lived with the mother because of the mother’s shift work but the reality is that the time will be very mixed. One day X might be in after school care and then the mother might pick him up. Another day he might be in before school and after school care, another day he might in after school care and then with a carer in the evening. However there will also be days during the week when he is not in care at all because the mother is not working, and on weekends if the mother is working an afternoon or evening shift she will be home until 1 or 2 o’clock in the afternoon. It is not going to be an endless run of X having 12 hour days where he is in three different kinds of care.
Another aspect of the matter is that given the industry the mother works in, if she returns to (omitted) she will face exactly the same problems providing care for X as she will in (omitted), and the father proposed an equal time arrangement if the mother returned to (omitted).
The mother’s proposal for providing care for X in (omitted) is not ideal and it is possibly not financially sustainable, but the father’s arrangements in (omitted) are also not ideal, and I simply have to make a decision in the end about what I should do for the child.
The next consideration is the child’s maturity, sex and background.
X is (nationality omitted) through the mother and the mother wants him to learn (language omitted) but regardless of whether X lives with her or lives with the father he can keep in touch with his (nationality omitted) heritage so that does not assist me to determine an outcome.
X is almost nine. He is doing okay at school; he is in the middle academically it would appear. The mother’s counsel demonstrated during cross-examination of the father that his results fluctuate. There is nothing to suggest, when you have a look at all the school reports, that he has been doing better academically since living with the father.
A concern was expressed in X’s last report about him isolating himself in the playground. It is hard to know what to make of that. It could be related to missing the mother. It could be to do with Pokémon cards as Ms G suggested. It could be for some reason nobody knows about. I cannot place too much weight on the fact that this is happening because it is impossible to know why it is happening.
The other issue particular to X is that he is (religion omitted) through the mother but Ms G is also (religion omitted) and she supports that. The father is not religious but he is content for the child to be brought up in the (religion omitted) religion.
I must have regard to the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The mother is not to be criticised for wanting to move. It does not mean that she is not thinking of X. Parents sometimes have to make sacrifices for their children but parents also need to be settled and happy and to have employment opportunities. The fact that a parent wants to move does not mean that they are showing a bad attitude to their child.
Mr P commented on this in his report and said as follows:
It is the view of the family consultant that the mother’s move to (omitted) from (omitted) was conducted in a measured way not only in consultation with the father, but, importantly, with a view to increasing Ms Quigley’s fulltime work opportunities thus providing X with an enhanced lifestyle.[10]
[10] Family Report paragraph 16
There was a suggestion by Ms G in a text message sent in 2014 that the mother had decided to move after the father and Ms G suggested equal time, but the mother rejected that suggestion then and it was not raised as an issue at trial.
I have some concerns, and this issue was referred to by the mother’s counsel in submissions, about the father’s actions around the relocation.
I can understand the father not wanting his son to leave (omitted). The father places a high level of importance on work and he works hard but he also loves his son and he wants to spend time with him and it is difficult for a parent to see their child just go off out of the locality where they are living.
But the reality of what happened was that the father initially agreed to X moving to (omitted) with the mother. He agreed to X spending orientation days at a new school. X as well as the mother expected the move to occur by the beginning of the 2015 school year and then four or five months after the father agreed to it he said no, and that must have been confusing and difficult for X.
On the other hand nothing is ever black and white in these cases, and as I have pointed out the father and Ms G are to be hugely congratulated for paying for X’s trip to (country omitted). That showed a very child focused attitude. There are many people who would not have let a child out of the country in the middle of court proceedings.
Family violence and family violence orders are not relevant.
The next consideration is whether the court should make the order least likely to lead to further proceedings.
The orders sought by the father are the orders most likely to lead to further proceedings. They are likely to be followed by the mother returning to (omitted) and if she cannot settle there or get work there this could lead to further court proceedings or to problems with implementation of the orders. However this is not by itself a deciding factor in the case.
I then have to consider any other relevant matter.
I am concerned about some of things the father and Ms G said about the mother in their affidavits. They strongly tried to present her as a selfish and self-focused person.
The father twice said that the mother was doing certain things such as attending school events for the sake of appearances. He asserted that she placed her own needs over X’s by moving to (omitted) even though the father told her originally that X could go with her. He attributed child support motives to the mother wanting the child to live with her in (omitted).
When I read a paragraph like the following in an affidavit it causes me a fair amount of concern:
I have always believed Ms Quigley will try her best to work the least amount possible. When we were together she refused to work fulltime so I couldn’t leave one of my jobs and spend more time with both of them because it suited her to spend our money, filling her days with beauty appointments, having coffee with friends, going to the gym etcetera all the while contributing very little to our emotional and physical relationship.[11]
[11]Father’s affidavit paragraph 113
That is just appalling. It is very unfair and it demonstrates that in the father’s eyes the mother just can’t win. He complained bitterly that she did not work during the marriage, then she got work in (omitted) and he complained to her about her childcare arrangements and then she got fulltime work in (omitted) and he complained that she was prioritising her work over X.
Ms G’s affidavit sadly is also replete with criticisms of the mother.
To his credit the father said in cross-examination on the second day of the hearing that he realised after reading his affidavit again overnight how bad it was in terms of its criticism of the mother. It is to his credit that he recognised that and perhaps it means that there is hope for the future and that once the proceedings are over and people have no need to stack things up in an effort to try to win that this denigration will stop.
Parental responsibility
The parents agreed that they should have equal shared parental responsibility and it is appropriate to order that when I have two good parents. These parents have been able to resolve most things about X themselves. The move to (omitted) has been too big a hurdle for them to jump over but mostly they have been able to reach agreement.
Conclusion
As I intend to make an order for equal shared parental responsibility I am required by s. 65DAA of the Family Law Act to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Mr P expressed the view in answer to a question during cross-examination that equal time might be appropriate and in X’s best interests if the parents both lived in (omitted).
I can understand why he said that. I have two good parents, they both love their child and they both have something different to offer him.
However for two reasons I am not necessarily convinced that equal time would work. One is the compelling evidence about the child’s stronger emotional bond with his mother and the other is a concern about the parents’ capacity to cooperate and resolve issues about little things such as shoes and clothing left behind. There is a fair amount in the affidavits which suggests that these issues have caused people to get very upset and that they have had trouble dealing with them. A communication book has helped to an extent but will not help if quick decisions are required.
However substantial and significant time would certainly be in X’s best interests if the parents lived close enough for that to occur. He is nine, he loves both parents and they both have something different to offer and he has siblings in the father’s household. Something like an extended weekend would certainly be in X’s best interests.
However in MRR & GR the High Court said as follows, and while this quote refers to equal time it is also applicable to a situation where substantial and significant time is being sought :
Section 65DAA (1) of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each parent and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given, under paragraph (c) to the making of an order.
The High Court went on to say:
Section 65DAA (1) is concerned with the reality of the situation of the parents and children not whether it is desirable that there be equal time.[12]
[12] MRR & GR (2010) 42 Fam LR 531
S.65DAA (5) of the Family Law Act sets out the matters I must take into account in order to determine whether substantial and significant time is reasonably practicable and the first matter is the distance the parents live apart.
The parties live in (omitted) and (omitted) respectively and in those circumstances it is not reasonably practicable for X to spend substantial and significant time, let alone equal time, with each of his parents.
I therefore have to consider which of the alternative proposals the parties put forward, living with dad in (omitted) or mum in (omitted), should be preferred.
The father’s proposal offers a continuation of X living in the same place he has lived in all his life up until now. He is doing okay at the school and he is familiar with the school. Some concerns have been expressed recently about him being a bit isolated in the playground but I cannot draw anything from that because I do not know why that is happening. The father and Ms G are managing the child’s day-to-day care well and he is part of a family unit with siblings.
The father therefore has a lot to offer X but the evidence supports Mr P’s concern that the father is more a functional parent than a warm and nurturing parent and there is absolutely no doubt that X is missing his mother a lot.
The mother’s proposal is not perfect either however and Mr P articulated the dilemma as follows:
What needs to be weighed up is whether the seemingly more nurturing approach to her parenting responsibilities by the mother will have a greater and more significant impact on X than the consistent environment provided by the father and his partner. It is the view of the family consultant that, in all likelihood, the mother will offer X a more insightful approach in the development of the parent child relationship, but, at the same time, it remains significantly unknown as to whether the mother’s shift work responsibilities will impact not only upon the time that Ms Quigley spends with X but the emotional wellbeing that this may have upon the subject child.[13]
[13] Family Report paragraph 57
In other words Mr P recognised, in my view correctly, that the mother was the more nurturing warmer parent, but he was concerned about the impact on X of the care arrangements that would need to be made if X lived with her and he could not come to a conclusion about which way the chips should fall.
The mother’s care arrangements may prove unsustainable financially but the mother has put considerable thought into how she can ensure that X has appropriate care and I am satisfied that she will do her best to make sure that he is properly cared for. I am also not convinced that the situation with the amount of time the mother can spend with X because of her work is quite as dire when you dig down into it as it might appear if you just say well the mother is working afternoon and evening shifts as well as day shifts.
Most importantly of all X wants to spend more time with his mother and if his wishes are ignored there is a high risk that it will have an unfortunate emotional impact on him.
The mother is a warm and nurturing parent. If X moves to (omitted) to live with her he will experience a change. He may well miss seeing the father more frequently and he may well miss seeing his little siblings more frequently but the mother is capable of helping him adjust to the change and in my view the order I should make is that the child live with the mother in (omitted).
I am conscious of the fact that an advantage of acceding to the father’s proposal that the child live with him in (omitted) is that it would draw the mother back to (omitted) and make substantial and significant time workable. It would also mean that both parents could regularly attend the child’s social, school and extracurricular activities and church events
However while it would make substantial and significant time workable on the surface I am not convinced that it would necessarily work for the mother. I am concerned that the father would continue to criticise her for the care arrangements she made for the child and concerned that it might ultimately result in further court proceedings if the mother did not settle in (omitted).
I am therefore not satisfied on balance that an outcome which saw the mother forced back to (omitted) would be overall a good outcome for X.
X has a strong attachment to his mother. She is a loving and nurturing parent and I intend to make an order that X live with her.
I understand that this outcome will be disappointing for the father. I dislike disappointing parents but I have to make a decision when parents cannot agree and the father should bear in mind that he will still be a very important part of his son’s life.
I would also point out that my experience in these matters is that children sometimes change residence as they get older. I cannot guarantee that it is going to happen in this case but I have seen it happen time and time again. Children get to high school age and they decide they want to try living with the parent they have not been living with up to that point. I hope if that situation arises the parents are able to handle it sensitively but I have to make a decision today and the order I am going to make is that X live with the mother.
Everyone in the case agreed that alternate weekend time rather than time on three out of four weekends was sensible. The father said that he could not meet the mother halfway or collect the child on Fridays and I intend to order that the mother drive the child up to (omitted) on Friday and the father return him to (omitted) on Sunday.
I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 23 March 2016
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