R and P
[2002] FMCAfam 69
•18 April 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & P | [2002] FMCAfam 69 |
| FAMILY LAW – Children – competing residence applications – best interests of the child – one proposal includes great geographic distance between parties – section 68F(2) Family Law Act 1975 (Cth). |
| Applicant: | A S R |
| Respondent: | A P |
| File No: | ZP 3408 of 2001 |
| Delivered on: | 18 April 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 11 & 12 February 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor-Advocate for the Applicant: | Mr D. Dura |
| Solicitors for the Applicant: | Michael Brown Solicitors DX 5038 Liverpool |
| Counsel for the Respondent: | Mr R. Battley |
| Solicitors for the Respondent: | Baker Ryrie Rickards Titmarsh DX 28414 Parramatta |
ORDERS
That all previous orders relating to the child A A R born 19 April 1994 be and are hereby discharged.
That the parties have the responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is in their respective care.
That the parties have joint responsibility for making decisions about the long term care, welfare and development of the child.
That other than provided in order 5 the said child reside with the father.
That the child reside with the mother as follows:
(a)Each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday, commencing the first weekend after these orders that coincides with a weekend that the father is at work.
(b)Each alternate Monday from after school until the start of school Tuesday. This period of residence shall follow each weekend that the child has been in the care of the father.
(c)For the first half of the all school holiday periods in even numbered years and the second half in odd numbered years.
(d)On Christmas Day in odd numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day.
(e)If Mother’s day falls on a weekend that the child would otherwise be in the care of the father, his period of residence is suspended so that the child will be in the care of the mother for the Mother’s Day weekend.
(f)Not on the weekend which includes Father’s Day.
(g)In the event that the father is required to work for a full weekend during a period when the child would otherwise be with him, then he shall ask the mother to care for the child before the father makes arrangements for any other person to mind the child.
(h)At any other time agreed between the parties.
That in addition to Order 4 the child shall live with the father on Christmas Day as follows:
(a)In even numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day
(b)In odd numbered years from 2.00pm Christmas Day to 2.00pm Boxing Day.
Alternate weekend and mid week periods of residence are suspended during school holidays.
In the event that the mother is required to work for a full weekend during a period when the child would otherwise be with her, then she shall ask the father to care for the child before she makes arrangements for any other person to mind the child.
Unless the parties otherwise agree the mother shall collect the child from and return him to school when contact starts or ends at either end of a school day. Otherwise the father shall deliver or cause him to be delivered the child to the mother at her home at the start of residence and the mother shall return or cause him to be returned to the father at his home at the end of her residence.
SCHOOL HOLIDAY CONTACT:
(a)SHALL commence at 9.00am.
(b)SHALL conclude at 2.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
(e)Christmas 2001/2002 is defined as a year ending in an odd number.
(f)Years ending in a zero are defined as years ending in an even number.
(g)If a residence period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday.
After a period of school holiday residence, residence shall resume on the first weekend after school has resumed to the parent who has had the care of the child during the first half of the holidays AND on the second weekend to the parent who has had the care of the child during the second half of the holidays.
Both parties shall notify the other as soon as practicable in the event that the child suffers from any illness, accident or requires hospitalisation whilst he is in their care.
Each party is to notify the other, and keep the other notified of their current residential address and phone number and is to notify the other of any change in residential address and/or phone number within 14 days of the date of such change.
That neither party is to denigrate the other, or allow any other person to do so, in the presence or hearing of the child.
That pursuant to Section 62F(2) of the Family Law Act 1975, the parties attend confidential counselling at a date and time nominated by the Manager of PDR services of the Court.
THAT pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
The party who caused any subpoena to issue shall return the subpoenaed documents within 7 days.
All exhibits to be collected at the expiration of one calendar month unless an appeal is lodged.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 3408 of 2001
| A S R |
Applicant
And
| A P |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings are residence proceedings that relate to the parties’ only child, A A R, who was born on 19 April 1994.
The applications
A S R (“the father”) initiated these proceedings when he filed his application for final orders on 4 October 2001. That application identifies the orders sought by him at the final hearing. They are as follows:
1.
That all previous orders relating to the child A A R born
19 April 1994 be and are hereby discharged.
2.That the child of the relationship reside with the father.
3.That the parties have the responsibility for making decisions about the day to day care, welfare and development of the child whilst the child is in their respective care.
4.That the mother have contact with the child as follows:
(a)For the first three weekends of each calendar month from the conclusion of school on Friday to the commencement of school on the following Monday.
(b)For the first half of the all school holiday periods in even numbered years and the second half in odd numbered years, unless by agreement between the parties.
(c)Any afternoon during the week between the hours of 5.00pm and 7.00pm provided the mother notifies the father of her intention to exercise such contact the day prior.
(d)On Christmas Day in odd numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day.
(e)Not on the weekend which includes Father’s Day.
(f)At any other time as agreed between the parties.
5.That the father have contact with the child on Christmas Day as follows:
(a)In even numbered years from 2.00pm Christmas Eve to 2.00pm Christmas Day
(b)In odd numbered years from 2.00pm Christmas Day to 2.00pm Boxing Day.
6.Neither party is to take the child outside the Sydney Metropolitan area without first obtaining the prior consent of the other party.
7.Either party is to notify the other as practicable in the event that the child suffers from any illness, accident or requires hospitalisation whilst the child is in their care.
8.Each party is to notify the other, and keep the other notified of their current residential address and phone number and is to notify the other of any change in residential address and/or phone number within 14 days of the date of such change.
9.That neither is to denigrate the other, or allow any other person to do so, in the presence or hearing of the child.
Included in the application was an application for interim orders almost identical to those sought on a final basis.
A P (“the mother”) filed her response on 13 November 2001. The orders sought by her are as follows:.
1.That the child of the relationship A A R born on the 19th April 1994 resides with the mother.
2.That the father have contact with the said child in the event that the Court permits the child to reside with the mother in Y:
(a) all block school holidays excluding the Christmas-New Year holidays;
(b) one-half of the Christmas-New year school holidays, being the first half in the year 2002 and even years thereafter, and the second half in the year 2003 and odd years thereafter.
3.That the father have telephone contact twice a week at the father’s convenience such contact to be facilitated by the father telephoning 0.
4.That the father have contact with the child in the event that the mother and the child reside in Sydney.
(a)From 5.00pm Friday to 5.00pm Sunday, each alternate weekend.
(b)Half of all school holidays.
(c)The father have liberal telephone contact.
At the conclusion of the proceedings the mother’s counsel confirmed that the mother made an alternate proposal. It was to the effect that she would remain in Sydney and in those circumstances proposed that the child live with her and have regular contact to his father. This proposal was presented as a proposal in the alternative and secondary to that contained in her response.
The evidence
The father relied on the following evidence:
·His affidavit sworn 25 September 2001, filed 4 October 2001 and his oral testimony;
·His affidavit sworn and filed 7 February 2002;
·Affidavit of C R sworn and filed 7 February 2002. This witness was not cross-examined and I accept her evidence;
·Affidavit of D D B sworn 8 February 2002 and filed in Court. This witness was not cross-examined and I accept her evidence.
The mother relied on her affidavit sworn 8 February 2002, filed
11 February 2002 and her oral testimony.
Both parties tendered documents which became exhibits in the proceedings.
Pursuant to s.62G(2) Family Law Act 1975, on 9 November 2001 a Family Report was ordered. Court Counsellor Michael O’Sullivan conducted the interviews and prepared a report, which report is dated
1 February 2002. The report became an exhibit in the proceedings. The Court Counsellor was cross-examined.
Current orders
On 19 February 1998 the Family Court in Brisbane made an order that A live with the mother. This order was made by consent.
Interim orders were made on 5 November 2001 by this Court after a hearing. The relevant orders made are as follows:
1.That all existing parenting orders are suspended.
2.That the child A A R born 19 April 1994 live with the applicant father.
3.That the respondent mother return the child to the father no later than 5.00pm 7 November 2001.
4.That the respondent mother have contact with the child as follows:
(a)In the event that the respondent mother continues to live at Y;
(b)By telephone each Tuesday and Thursday between 5.00pm and 6.00pm.
(c)For three weeks over the Christmas school holiday period starting at midday on 26 December 2001.
5.In the event that the respondent mother returns to the western suburbs of Sydney:
(a)By telephone each Tuesday and Thursday between 5.00pm and 6.00pm.
(b)From 5.00pm Friday until the start of school Monday each alternate weekend.
(c)From after school Tuesday until the commencement of school Wednesday each alternate week following a weekend when the child has been in the father’s care.
(d)For three weeks over the Christmas school holiday period starting at midday on 26 December 2001.
6.That the father forthwith re-enrol the child:
(a)At B Public School;
(b)At Tai Kwon Do class on Friday.
Issues before the Court
These issues appear to be:
·The parties’ capacity to meet the child’s physical, intellectual and emotional needs;
·Whether this child has a heightened need for stability and security;
·Whether either party has the capacity to meet the child’s physical, intellectual and emotional needs without regular input from the other parent;
·The effect on the child of contact with his father structured around school holidays;
·If the mother were living in Y with the child and the father in Sydney, whether the parties could reasonably maintain regular school holiday contact for the child;
·The nature and extent of family violence;.
Short history
The father was born on 9 July 1972 and is thus 29 years old.
The mother was born on 8 December 1974. She is 27 years old.
They commenced cohabitation in March 1993. A A R (“A”) was born on 19 April 1994. He is their only child and is nearly 8 years old.
After numerous separations the parties separated on a final basis on
7 August 2001. At the separation the mother left the family home and took A with her.
On 5 November 2001 orders were made that the child return from Queensland and live with his father pending the final hearing. This order was given effect to on 7 November 2001.
The father’s circumstances and proposals
The father lives at 40 B Crescent, B. This property is owned by the father, the mother and the father’s mother. It was the family home prior to separation. The father is in full-time employment working as a Social Welfare worker. He is employed by the F and works with people who have intellectual disabilities. He works a fortnightly roster, working a total 76 hours each fortnight. The roster means he works seven days and six nights each fortnight. Night rosters require him to sleep at the unit. On the evenings when he does sleep at the unit, his mother or aunt are at home and care for A. On the other eight evenings, he is at home. Each second weekend the father is rostered to work. Exhibit A is the father’s timesheet for the fortnight starting
30 January 2002. I accept that it comprises the standard structure for his roster. By arrangements with his employer, the father is able to take A to and from school.
The father earns $634 per week. Since A returned from Y he has returned to the school he previously attended, B Public School. B School is a five-minute walking distance from the father’s home. It takes about two minutes to drive this distance. The school is about 20 minutes drive from the father’s place of work. A starts school at 8.50 am and finishes class at 2.30 pm. B Public School comprises 19 classes, each with about 20 to 25 students. A has two particular friends at school, A and C. His close friends who live nearby are J and L. A no longer does Tai Kwan Do, preferring Karate. On the advice of the family medical practitioner, Dr E, the father took A to see Dr J. F.
Dr F is a child psychiatrist practising at Westmead. A attended Dr F on the last day of school 2001. Dr F advises that A will benefit from continuing consultations with him.
C R, the father’s mother, lives in the family home. She works as a nurse at A Rehabilitation Hospital. She works 40 hours per week on a rotating shift. She works Monday, Tuesday and Wednesday evening from approximately 12.30 pm or 2.30 pm to 9.00 pm or 11.00 pm and on Saturday and Sunday between 12.30 pm and 9.00 pm. She does not work Thursdays or Fridays. She has her own room in the house. From time to time she stays at Heckenberg caring for her 79-year-old mother. She takes this opportunity when the father is at home and she is not needed to help care for A. A refers to Ms R as “Nanna C”. During those periods when the parties have lived together, for significant periods they have lived with her. Shared living started prior to A’s enrolment at school. Ms R has suffered three strokes. Her last stroke was approximately 18 months ago. Nonetheless she is in full-time employment and lives day by day without any difficulty. I am satisfied that to the extent that may be required of her, her health does not interfere with her capacity to complement the father’s care of the child. To the extent needed the father’s aunt will provide supplementary baby-sitting. I accept the father’s evidence that the current pattern of care will be maintained.
The mother’s current circumstances and proposals
The mother lives in shared accommodation that is rented by S L. Ms L is 37 years old. Her daughters C, aged 8 and E, aged 6, live with her. The house is a three-bedroom house with a large fenced yard. The adults each have their own room. A sleeps in the same room as Ms L’s daughters. The mother is not working and pays $100 per week board to Ms L. Should she remain in Sydney the mother proposes to move into larger premises with Ms L and her children. She has looked in estate agents’ windows at B, Smithfield and Fairfield. These suburbs are all in close proximity to B Public School. The mother has not inspected any of the homes. Should larger premises be obtained, A would be able to have his own room.
The mother’s preferred option is that she and A live in Y, Queensland and that the father have school holiday face-to-face contact to the child. She would return in May 2002 to live at the home that she had rented from W B in September 2001. The rented premises are at M Avenue, B, a suburb of Y. The home is a three-bedroom weatherboard house with a fenced yard. Last year the rent was $130 per week. It is 50 metres to the beach. A would be returned to F State Public School. The mother enrolled him at this school on 10 September 2001. It is a small school of about 120 students. The classes have about 20 pupils ranging from pre-school to Year 7. She would enrol A in Year 3 in Queensland. At F State Public School, A has the opportunity of one-on-one support from a special teacher twice a week. If living in Queensland, the mother plans to obtain employment. Enquires have revealed that she could work as a carer or housekeeper at A Nursing Home between about 8.00 am and 2.30 pm. A would be able to catch the school bus leaving at about 7.30 am and return home at about 4.00 pm. Thus she would not need before or after school care. She agrees that if she tried, she could find work during school hours in Sydney. If employment was not available as a nurses’ assistant at A Nursing Home, she is hopeful she would be able to obtain some work housekeeping at a nearby resort. The mother has established a relationship with W B. She does not intend to live with him should she return to Y. Mr B did not give evidence.
In the event that the father’s application for residence is successful the mother will continue to live in Sydney.
Chronology of relevant events
When the parties met in early 1993 they were working at the same place. Quickly they commenced a relationship and by July 1993 the mother was excepting A. Shortly thereafter, in about September 1993 they commenced cohabitation. Just before A was born the parties moved into a rented three bedroom home at B.
Towards the end of 1994 the parties moved to Sydney. They lived with the father’s mother and uncle at the father’s current address 40 B Crescent, B. In early 1995 the family moved to Heckenberg, residing with the father’s grandmother. They lived at Heckenberg for about six months. They returned then to the B home. Subsequently when they have lived together the parties and child have lived at B (the family home).
Shortly after returning to B, the parties separated for the first time. At separation, the parties agreed that the mother would have A’s care. The mother had grown up in M and returned there to live with her family. M is approximately 1100 kilometres from Sydney. A was about 18 months old when the parties first separated. This separation continued for about six months. During the separation the mother applied to the Child Support Agency for an administrative assessment of child support and the father was assessed to pay child support in the amount of Three Hundred and Seventy Dollars ($370.00) per month. Contact in M was geographically difficult, which difficulty was compounded by the fact that the father was in full time employment. He was earning about $33,000.00 per annum. Although he sought leave from his employer his application for holiday leave was refused because of staff shortages. Leave would have been made available later. The father waited to travel to M until he had approved leave. As it turned out, the parties reconciled before then. The father, because he was unable to exercise face to face contact, telephoned three or four times a week to speak to the child. The conversations were limited because of the child’s age and comprised little more than “hello, daddy loves you”.
In late 1995 or early 1996 the parties resumed cohabitation when the mother and child returned to live with the father at the family home. Again they separated. At separation the mother left the child with the father for about two weeks whilst she went to M. She then returned from M for a short time before returning to M. Again, during the second period, which lasted two or three weeks, she left the child with the father’s parents. Without demurrer from the father the mother then took the child with her to M. This second separation occurred in late 1996. The parties agreed that contact would not take place in M and that the mother would bring the child to Sydney at the father’s expense. Face to face contact took place about four months into this second separation.
Sometime during 1996 the parties resumed cohabitation. Again the mother returned to live with the father and child at B. They separated for the third time when the mother took the child to Y for a holiday. Her parents had left M and moved to Y. The father had agreed that the mother and child take a two week holiday. Whilst in Y the mother decided to stay. After he had not heard from her for about ten days, the father telephoned her at Y. During this telephone conversation the mother told him she was not returning.
Family law proceedings were then started that were ultimately compromised. In essence the agreed orders, entered on 19 February 1998, provided that the child would live with the mother in Queensland and the father would have contact to him. For the first period of contact, the parties effected contact changeover at Brisbane. The father then had contact for two weeks. In September 1997 the father travelled to Y and stayed for the duration of contact. He travelled again in Christmas 1997 to Y and exercised contact for three weeks. At that time he contemplated moving to Y. He made inquiries about employment, but was unable to find any. Between February 1997 and October 1998 the mother worked house cleaning about six hours a week. During this separation the father rang to speak to the child about six nights per week. He spoke with the mother during most of these calls. This continued throughout 1998 and, by October/November 1998 the parties had agreed to reconcile. The mother and child returned to live with the father at the family home. Also living in the home were the father’s mother and grandmother. In about April or May 2000 the father’s mother left the home.
A started school at B Public School in January 1999. The mother involved herself in A’s schooling. Because A’s academic progress was slow, the mother attended a supported teachers learning development program. Two or three times a week she worked with A in class, helping him with his reading. This support continued until she and A returned to Queensland in 2001.
Once A started school, the mother enrolled at TAFE. She completed an advanced certificate in residential and community services intellectual disability nursing and nurses certificate level 3. These studies lasted four and a half months. Upon completion she started working at A Rehabilitation Hospital in about June 1999. She worked at the hospital as a nurses aide for about 8-9 months. In April 2000 the mother resigned from A Rehabilitation Hospital and started to work as a prostitute. Her hours of work complemented the father’s and he cared for the child whilst she was at work. The mother worked two days a week. She worked evenings, starting at about 5.30pm and finishing at about 2.00am on weekdays or 5.00am on weekends. The father dropped the mother to and from work. The mother changed the brothel that she worked at from one at Fairfield, then about three months later to a place at Granville, then one at St Marys and finally Blacktown. She stopped working as a prostitute on 1 August 2001.
Slowly the parties relationship finally failed. By August 2001 the mother decided it was over. On 7 August 2001 whilst the husband was at work the mother packed some of her and the child’s belongings and left the home. They moved into a refuge. Later that same evening the mother spoke to the father by telephone. He agreed that it was time for them to separate. Two days later the mother gave the father the telephone number for the refuge, inviting him to make contact with her and the child. They were able to agree that contact should take place and the first occasion of post separation contact occurred on 12 August 2001. After the father dropped the mother and child back at the railway station at Fairfield, she discovered when she alighted at Pendle Hill that the father had driven to Pendle Hill. He asked to see A again.
The mother and child remained in the refuge for one week. They then moved in with friends, S Leicester and P G and their two daughters. This house is at 8 B Street, B a few houses away from the family home.
Between 7 August 2001 and 21 August 2001 the mother kept A out of school. She claims that she was concerned that the father would take A from her and that his education would be neglected. Whilst A was not attending school, the mother obtained work from the school that A did at home.
On 16 August 2001 the parties attended counselling with Centrecare. In the early afternoon that same day the mother received a call from Ms Leicester. She returned to their home and discovered that the father was there. The father pressed her for a commitment concerning contact to A in much greater detail than she wished to discuss. The mother attempted to avoid the father’s demands saying “let’s wait for conciliation”. Coincidentally A arrived home. He was delighted to see his father and very happy at the prospect of going home with his father. A violent incident then took place between the father and P G. The mother alleges that unprovoked the father walked up to Mr G and threatened to kill him. The father denies the allegation and says that he asked Mr G “why were you driving the car like a fucking idiot”. Mr G then grabbed the father’s shirt and the father punched Mr G. The father was questioned closely about this incident during cross-examination. I was satisfied that I should accept his evidence. Thus I am satisfied that he did hit Mr G, punching him once after he had been grabbed. Unfortunately A saw the fight and was distressed by it. He cried for his father to stop and was taken inside by the mother. The planned contact visit did not take place because the child was too distressed. Some time later that day the police attended and the mother gave a statement. Mr G went to hospital. The extent of his injuries, if any, are not know. Later, during a subsequent contact period, the child asked his father about the incident.
By 20 August 2001 the child had settled down about the incident. Coincidentally the parties came upon one another at a shopping mall. Mr G and his family were also present. A and his father related warmly. The parties had a simple conversation. Living so close to one another, it seems that impromptu contact was able to occur quite easily. For example on 21 August 2001 the parties ran into one another and made arrangements for the child to see the father later that day. The relations were apparently cordial between the parents and they had further discussions concerning the child over the next two days.
Further contact took place on 25 August 2001 at the father’s home. Again the mother remained during the contact. They discussed separation issues and made arrangements for the mother to call the father on Thursday. After she had arrived home the mother telephoned the father and him that she would not be taking A to the house any more because she felt threatened and uncomfortable by the father. She requested that he meet her at McDonalds Stockland the following day. During the conversation the father yelled at the mother, although he ultimately agreed to attend McDonalds saying “I’ll have to if I want to see my son”. In the event he did not turn up at McDonalds.
Contact next took place on 31 August 2001 when A stayed overnight with the father. At the end of the contact visit the mother collected the child from the father at his work the next day. They made further arrangements for overnight contact to occur on 3 September 2001. Because A wanted to go on contact on 4 September 2001 the mother arranged that he telephone his father and changed the arrangements accordingly.
Curiously, although she complained on 25 August 2001 that she felt threatened and told the father that she felt uncomfortable with him she is critical that on 4 September 2001 he refused her request to enter his house during contact. The father relented and the mother entered the home to collect some more belongings. I accept her evidence that whilst in the home the father told her that should she ever stop contact “you won’t wake up”. They then argued and the father told the mother to leave the home. He refused to allow her or A to take the possessions the mother had packed.
The next day the mother sought legal advice. Without prior notice to the father the mother then made arrangements to leave with the child for Queensland. She did not seek his consent to remove the child.
Before she departed for Queensland, the mother attended the family home and over the objections of the applicant’s mother removed further belongings. The police were called during this incident.
On 9 September 2001 the mother and child took an evening flight to Y. On the Friday prior to this Sunday flight, at the mother’s request her father contacted Farnborough School and made arrangements for A’s enrolment. A started school the morning after he arrived at Y. The mother obtained further legal advice on 12 September 2001.
It was not until 23 September 2001 that the father was told where the child was. This information was relayed to him during a telephone call placed by the respondent’s mother. The delay in advising the father as to the child’s whereabouts was explained by the mother as partly because she was trying to get legal aid so that she could obtain a residence order without telling the father.
On 4 October 2001 the father made application for interim and final parenting orders. The application for interim orders was heard on
5 November 2001. The mother was represented although did not appear personally. In accordance with the interim residence order and injunctions made in favour of the father the mother returned the child to him on 7 November 2001. Although A was delighted to see his father he was angry and upset at separation from his mother. His unhappiness and confusion was manifest for about six weeks after his return to Sydney.
In accordance with the interim orders the father tried to re-enrol A in Tai Kwon Do. Although he had previously enjoyed Tai Kwon Do, A yelled and screamed saying “Mummy said I don’t have to go”. Reasonably, rather than force the issue further with the child the father looked for alternate activities that he may enjoy. The contact orders were implemented with weekend contact commencing on 9 November 2001. In addition to the ordered contact, the mother resumed attending A’s school for reading as well as often at the end of the day to see A before he was collected to go home.
The mother’s Christmas holiday contact commenced on 26 December 2001. At contact changeover the parties agreed that the father could have telephone contact on Tuesdays or Thursdays, which contact would be exercised by A calling the father. When he did not receive a telephone call he made one or two calls to A to the maternal grandparent’s home. The mother had taken A to Y on 29 December 2000. They returned to Sydney on 12 January 2002 and Christmas holiday contact concluded on 14 January 2002.
Relevant law
The relevant law is that contained in the recent decision by the Full Court of the Family Court A v A: Relocation Approach[1]. In that decision the Full Court reviews the recent authorities of AMS v AIF[2] and provides an application of the manner in which judicial officers should approach the adjudication of these matters. The Full Court held[3]:
[1] (2000) FLC 93-035
[2] (1999) FLC 92-852
[3] at paragraph 108 from 87,551 to 87,553
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."
Section 68f(2) Determining the bests interests of the child
Wishes
Both parents gave evidence concerning statements made by A that it was said revealed his wishes as to residence. In the period immediately following his return to Sydney A was unhappy and unsettled. He told the father that he wanted to go back to his mother in Y. As the weeks passed, his behaviour improved and the tenor of his comments changed. He asked simple questions that touched upon his possessions, in essence asking would his mother return them if A continued to live with his father. Paragraphs 55 and 56 of the father’s February affidavit reveal a child who is comfortable with the notion of living with his father whilst concerned to simultaneously maintain his relationship with his mother. I was impressed with the father’s evidence that touched upon A’s wishes. He readily conceded A’s attachment to his mother and recognised the child’s confusion. He emphasised that A’s expression or wish to live with him recounted in paragraph 56 of his affidavit could have been an attempt by the child to please his father. More relevantly, the comment was made just prior to the commencement of a block period of holiday time with the mother when A was anxious that he might not return from Queensland. The father believes that A is not only confused about his feelings as to with whom he should live, but is also scared of choosing one parent for fear of hurting the other. I accept that this is so.
The mother asserts that A wishes to live with her. She says that A can make informed decisions and that he should have some say in the outcome of these proceedings. When pressed, she conceded that whilst early in the separation he had told her he wanted to live with her, more recently he has said that he wants his parents to live together. Many times she told A that she was trying to get him back. She did not seem to recognise that comments such as this in all likelihood reinforced with A the strength of her determination that he live with her.
By comparison, in a more neutral setting with the court counsellor A was able to discuss his wishes. Although aware of the tensions between his parents vis his residence the counsellor was satisfied that A was able to express his own opinions. A told the counsellor he wanted to “live with both parents together in our old house” or “live with mummy here in Sydney and get to see daddy often, if we would live here”[4]. Should his mother return to live in Queensland he expressed a clear preference to live with his father. He was aware that the latter opinion would distress his mother. The mother’s evidence that “A was angry that he had to give up everything in his life in Y – his animals, his school, his friends and his family”[5] is inconsistent with the child’s preference to live in Sydney. Her statement trivialises the depth of the child’s attachment to his father and environment in Sydney.
[4] Family Report page 8
[5] Family Report page 9
I am satisfied that A wishes to live with both of his parents in the family home. This reflects his strong attachment to both of them, to his home and social environment. He is familiar with Y and the environment it offers. If it had a strong pull for him this should have been reflected in his discussion with the court counsellor. Unlike a situation where a child might need to consider moving to an unfamiliar place, A has had the opportunity to consider his response to alternative environments. I am satisfied that he prefers to live at B. His comments in the structured and neutral setting with the court counsellor have more weight than those made to his parents in the early months of separation and the emotional time of removal to Queensland and return to Sydney. They are more likely to be a reflection of his own opinions because the circumstances are less emotionally charged by the influence of circumstance or either parent.
The other striking feature of A’s discussion as to his wishes is the importance he places on his relationship with both of his parents. A, I am satisfied, wants a close and regular relationship with both of his parents. Because he expresses alternate outcomes, living with his mother in Sydney or living with his father should his mother go to Y I am not satisfied that A has a clear preference to live with one or other of his parents. His wish to live in Sydney and have close and regular contact to both parents must be given considerable weight.
Nature of the child’s relationship
Both parents love A deeply and he loves both of them. The father’s positive attitude to the child’s attachment to the mother was manifest in his evidence. He readily acknowledged A’s love of his mother, indeed as he did to the court counsellor. Although she ultimately made a similar concession, the mother’s acknowledgment of the mutual love the child and father share was not as readily forthcoming. The comparative difference in their approach to this important issue can be seen in the father’s open acknowledgment of it to the court counsellor in the mother’s presence and her lack of acknowledgment in similar terms in reply[6]. This was reflected even more clearly in the manner in which the parties approached their oral testimony.
[6] Family Report page 11
I agree with the court counsellor that A’s primary attachment is to his mother. Until November 2001 he had always lived with her and until he started school she was primarily responsible for his day to day care. During prior periods of separation she cared for the child to the exclusion of the father. During the observation session with the court counsellor[7] the counsellor observed comfortable and happy engagement between the child and the mother. A and the mother engaged easily and she was able to direct and encourage his play as well as calm him down.
[7] Family Report page 7
Since late 1998, the parties have shared responsibility for A’s day to day care. The father’s involvement increased once the child started school and the mother undertook studies then entered the paid workforce. I am satisfied that the father and child are deeply attached to each other. This is apparent from the observations made by the court counsellor. During the observation session the father and child engaged each other easily “and developed a relaxed rapport”[8]. They played games happily and A laughed loudly at his father’s play. Just as the mother demonstrated, so too the father was able to settle A’s exuberance using firm direction and diverting him to another activity. The interaction makes it clear that A is used to receiving guidance, having limits set and good communication with his father.
[8] Family Report page6
A’s relationship with both parents is essential to his sense of wellbeing, happiness and security. He needs, I am satisfied, regular and significant interaction with both of them. Although he is primarily attached to his mother, his attachment to his father is deep and committed. It is apparent that there is little to distinguish the quality and importance of the child’s relationship with each of his parents. Inevitably these relationships will be diminished if there are gaps of months between parent and child contact.
A specifically mentioned his paternal grandmother to the court counsellor. He has lived with his paternal grandmother on and off since the parties last reconciled. His paternal grandmother is involved in his care and I am satisfied she and the child share an important and close relationship. A’s particular reference to her makes it likely that after his parents, this is the relationship that he most values. It too will suffer if there are absences of months apart for contact.
The mother asserts that A’s relationship with members of her family are equally strong and important to him. This was not apparent from the evidence. None of her family gave evidence as to the nature of their relationship and commitment to the child. I cannot infer it. More importantly A did not mention the maternal family at all during his discussions with the court counsellor. Were they as significant to him as the mother alleged I would have expected at least passing acknowledgment of them by the child. Such relationship that A has with his maternal relatives in recent years has been maintained over long distances and infrequent holiday contact. Moving to Y will give these relationships the opportunity to strengthen. Should the child remain in Sydney the relationships will continue as the parties intended and constructed over recent years.
These factors weigh substantially in favour of the child living in Sydney and having substantial exposure to both parents and paternal grandmother.
Changing the child’s circumstances
This is an important issue in this matter. Although not fulsomely outlined in evidence, it is quite clear that A is a child who has special needs. The father and court counsellor’s evidence make this apparent. A has some learning difficulties which may be related to his sensitivity to change and behavioural difficulties. When he first returned to Sydney A was unhappy and distressed. He acted out his distress and tested his father. A refused and still refuses to wear underpants. This behaviour predates separation. He smeared walls and towels with his faeces. He challenged his father verbally and refused to return to Tai Kwon Do.
This contrasts unfavourably with the mother’s evidence that immediately upon arrival in Y A was settled and responded as if a great weight had been lifted from him. I do not accept her evidence. This could have been readily corroborated, for example by her parents or perhaps A’s school teacher. No corroborative evidence was called. A’s clear desire to live with both of his parents makes it more probable that he missed his father, his friends, his grandmother and school. The mother’s evidence is also inconsistent with the court counsellors opinion that “A will continue to need the familiarity and the support of a secure network with his parents in a stable environment.”[9] I am satisfied that she either gave deliberately misleading evidence about A’s adjustment or, and this is more likely, failed to recognise the effect on the child of changing his familiar environment and disrupting key relationships.
[9] Family Report page 13
Because of his parents numerous separations and the mother’s relocation on each separation A has had a quite unstable childhood. The court counsellor concludes, and I agree with him, that “the allegations of domestic violence and constant changes in accommodation, schooling and social networks, if substantiated, would only contribute to A’s stress and insecurity”.[10] As will be apparent later in these reasons I am not satisfied that the allegations of domestic violence are substantiated. Although the court counsellor was referring to the current situation, his opinion is equally valid in understanding the child’s inability to cope with change over the years. This has taken its toll on A and it is likely as the court counsellor concludes that A fears “ongoing change and continuing instability”.[11]
[10] Family Report page 12
[11] Family Report page 12
The father recognises the child’s sensitivity to change much more than the mother does. This is probably because he is a more settled person. Since the parents first returned to Sydney the father has worked continuously with the same employer. He has also lived, other than for a brief period, in the same home. When giving evidence he presented as a calm and reliable person. His personal security and stability makes it more likely that he values stability and can achieve it for the child to a greater degree than the mother can. Much was made by the Mother’s Counsel that the father needed to rely on others to help him care for A and that as a consequence his plans for the child are inherently unstable. I do not accept this submission for reasons identified later in my judgment.
The mother has not demonstrated the same commitment to stability and consistency that the father has. Although her reasons may well be sound for doing so, she has moved homes on many occasions. If successful in either proposal she will move homes again. Her Y proposal involves changes in school, residence, friendships and fundamentally disrupts A’s relationship with his father. She misunderstands the effect of this in the child by asserting that he would be returning to an environment he is familiar with. Although he has previously lived in Y, his friendships and schooling have been established in Sydney. His recent time in Y was too brief for him to establish meaningful personal connections there.
A has adjusted to a considerable degree to living with his father and having substantial contact with his mother. If she is successful on her alternate proposal he will have to leave his father and live with the mother in her shared rented home. Her plans mean he will then change homes again in the near future. A must adapt to living with people he has never lived with before for any length of time, something I am not confident that he can do. This is so even having regard to the mother’s evidence that A relates well to Ms L and her daughters. A’s comments to his father outlined in his affidavit indicate that A’s friendship with these people is not as well established as the mother claims. The mother’s proposals when compared to the father’s do not promote stability and security. This is so even having regard to the mother’s evidence that she plans to care for A fulltime. I do not accept that this will be so. If she is to live on her own she will have to pay private rental herself. Her entitlements and child support will mean she will live in strained financial circumstances. There will be insufficient money to enable her to see her family, for example. I am satisfied that financial pressures make it more probable that she will resume some form of paid work.
As is apparent I am not satisfied that the court should impose further change on this child unless there are good reasons associated with his welfare for doing so. I am satisfied that there are not. The findings make pursuant to the subsection favour the father’s proposal and have considerable weight..
Practical difficulty and expense of contact
Although in her evidence the mother alleged that the father had agreed to her relocation to Y with the child I do not accept her evidence. In the months following separation and prior to her move to Y the parties had numerous discussions concerning the future care of the child. The mother explained that her decision to relocate to Y was undertaken in the belief that the father wanted her to move to Queensland. She asserted that she was not aware the father wanted the child to stay in Sydney. When pressed she conceded that he wanted A to remain in Sydney at least until he was ready for high school. Her move to Queensland involved significant subterfuge. It is inconsistent with an assertion that the move had the father’s consent. I am satisfied that she knew that he did not agree. Her decision was taken unilaterally and reflects poorly upon her attitude to the responsibility of parenting. It is no answer that she had the benefit of an earlier residence order in circumstances where the parties had reconciled and by their conduct over a number of years impliedly revoked the earlier order.
The only viable means of implementing orders for contact should the mother and child live in Y is for A to travel between Y and Sydney by air. In paragraph 71 of her affidavit the mother reveals that QANTAS flies from Sydney to Brisbane and then Brisbane to Rockhampton. Y is a short drive from Rockhampton. The cost of a return flight for an adult and a child varies. It is between about $700 and just under $1000. There is no suggestion by either party that A could manage this travel unaccompanied. Because of his learning and adjustment difficulties I agree that this is so. Thus the cost of implementing contact is substantial. I have proceeded on the basis that the effort associated with travel would probably be shared. The mother would logically deliver the child to the father in Sydney and he would deliver the child to her at the end of contact in Queensland. On occasion it may be that one does it all. Usually each occasion of contact will involve two adults and one child’s return fare. The air fares alone for four visits a year are about $10,000. Given their modest income this total cost is prohibitive and it is unlikely that the parties could afford to implement contact with the frequency proposed by the mother.
Although the father’s employers have been flexible in that they have allowed him to take some work time so that he can take A to school during and start late, the evidence does not suggest that he could take substantial periods of unpaid leave so that he could be available for the whole of the mid-year school holidays as well as half of the Christmas/New Year holidays. Thus although A may be in Sydney I am satisfied that he would not be able to spend the entirety of the available school holidays in his father’s company. The orders for contact proposed by the mother would not, in the circumstances of this case, be able to be given full effect.
There are no problems with practical difficulties or expenses of contact inherent in the father’s proposal or the mother’s alternate proposal. These proposals are both predicated upon the parties living in Sydney and in close proximity to each other. The distance between Sydney and Y creates difficulties of expense and frequency of contact, which are materially disadvantageous to the mother’s primary proposal. In terms of this factor, the father’s proposal and mother’s alternate proposal are significantly more advantageous to the child than is the mother’s primary proposal.
The capacity of each parent or of any other person to provide for the child’s needs
This is an important issue in these proceedings. The court counsellor’s evidence is particularly relevant. I accept his findings. His conclusion that both parents are needed to meet the child’s needs is sound. Similarly I agree that both parents need the support of family and friends in their parenting of A. This arises particularly because of A’s special needs. He is an anxious and vulnerable child whose adjustment requires that he is able to predict his environment including his relationships.
I have already made findings about the nature of A’s relationship with his parents and do not repeat them.
The mother did not present evidence from any family or friend. Ultimately I was satisfied that the people from whom she derives personal support are most likely her parents. Other than the few weeks she was in Y, there is no evidence that the mother has ever lived independently with the child. She presented as an agitated and unsettled person when she gave evidence. Whilst she does her best to meet her son’s needs, her capacity to do so without considerable support is limited. That is not to say that she lacks real skills that contribute to A’s wellbeing. For example, her commitment to his education and capacity to meet his daily physical needs. The observations made by the court counsellor during her interaction with A demonstrated a light hearted and enjoyable relationship, from A’s perspective.
The father’s capacity to meet the child’s needs has some features that are similar to the mother’s. He too engaged in happy and friendly play with the child that delighted A. By comparison to the mother I was satisfied that he has a greater insight to the child’s special needs than she has. This insight is demonstrated in a number of respects. These include his consultation with Dr F and his implementation of Dr F’s recommendations. It may be that the father’s capacity to understand A’s needs are enhanced by his professional qualification as a social worker and his years of consistent employment working with people with disabilities. Whatever the source of his knowledge and capacity it demonstrated patience, understanding and parental skills in the way he dealt with A’s distress and behavioural difficulties upon his return from Queensland. His decision not to pursue A’s involvement with Tai Kwon Do was appropriate. So too is his understanding and desire that he and the mother have a consistent approach to A’s parenting. He made this clear during his evidence when he hoped the mother would adopt the same approach to the need for the child to wear underpants that he did. A is at an age where he does need to wear underpants to school. The father’s approach will minimise the opportunity for embarrassment in both the short and long term.
Because A would be so disrupted were he deprived of a relationship on a regular basis with one or other of his parents, the task that would fall upon either of them would increase commensurately. Neither could manage it alone. Even with the assistance of others I am satisfied that they may be tested to the limit. This is a weighty matter that highlights the disadvantages to the child of the mother’s proposal to live in Y.
The father’s reliance on his mother and aunt to compliment his care of the child was criticised by counsel for the mother. I do not share the criticism. This is because A is attached to his paternal grandmother and is comfortable with his aunt. They are not strangers to him and their involvement in his care as it is structured around caring for him in his home is not destabilising. It is because they are significant to him. I am satisfied that Mrs D B has cared for A prior to and subsequent to separation[12] and that in her care A is well behaved and happy[13]. Similarly, during the periods A has lived in Sydney the paternal grandmother has been significantly involved in his care. They have a very close relationship[14]. As a consequence of this I was not concerned that the court counsellor did not observe the child with either Mrs D B or Mrs R.
[12] Paragraph 11 affidavit Mrs Di B
[13] Paragraph 12 affidavit Mrs Di B
[14] Paragraph 11 affidavit K. Raynor
Family violence
I will deal with sub paragraphs (g)(I) and (j) together. There are no current family violence orders. The mother alleges that she is fearful of the father and that he has threatened her. He denies that he has ever hit her and I accept his denial. In arguments prior to and since separation I am satisfied that the father has been verbally aggressive and at times formidable. I am not satisfied that he has been abusive. A has been exposed to the parties arguments, an outcome that is as much the mother’s responsibility as the father’s. She bears no responsibility for the incident that took place between the father and Mr G. After separation the parties engaged in numerous serious discussions about the consequences of separation. Although he agreed that separation was a good idea, the father did not agree that he and the child’s relationship should be disrupted. He and the mother had different approaches to the resolution of their disagreement. That the father determinably maintained his demand for that relationship, at times using foolish and intimidating language does not provide an objective basis on the facts of this case for the mother’s asserted fear of him. It is more likely that she was fearful that on this occasion, unlike earlier separations, the father was not going to agree to her proposals.
Context in this regard is important. The relevant context is that at the end of the failed marriage these parties were unable to agree on the consequences for their child. This led to arguments between them. I accept the husband’s evidence as to the content of those arguments. Thus I am satisfied that for both of them the force of the argument was aberrant and does not reflect either parents usual conduct. They are regretful incidents that do not define the parental relationship nor either parties usual mode of behaviour. I am satisfied that the father does not pose a risk of family violence to the mother or child.
Parental responsibilities demonstrated by the parents
I have already made findings concerning the nature of the parents relationship. I do not repeat them. Both parents are committed to their son’s success and want the best for him.
In different respects, both have made decisions that with the benefit of hindsight may be made differently. In spite of this, I was left with the overwhelming impression that both want to do the best by A. The difference between them is the extent to which each proposes the others involvement in the child’s life. The father has a much greater appreciation of the importance to A of his mother’s involvement than vice versa. This weighs heavily in his favour.
Further proceedings
Parenting proceedings are never final in the sense that children and their circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, court should make parenting orders that minimise prospects for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties moving on with their lives.
Because of the practical difficulty and expense associated with contact should the mother live in Queensland, there is a real likelihood that contact orders would not be fully implemented. Consequently there may be further litigation in the nature of contravention of parenting orders. This is more likely to be so than if the parties are living in close proximity to one another in Sydney. To the extent possible I am satisfied the court should make orders that would be least likely to involve these parties and child in future litigation. This factor weighs against the mother’s primary application.
Evaluation of proposals of the parties
I am conscious of the mother’s right to freedom of movement and I take into account the emotional support and sense of security which she believes she would gain from living in close proximity to her parents. In no sense does she have to justify her desire to move to Queensland. There is no onus she must meet. The only issue is the childs best interests. I have sympathy for her and the situation in which she finds herself. Just as the father requires, so too her capacity to parent A requires that she is supported in a practical and personal sense from those with whom she has close relationships. Most likely her parents.
For the mother to be in a position to effectively meet A’s needs, she needs to live nearby her parents. At present and for the foreseeable future they will be living in Y. In order to give effect to the mother’s primary application for residence I must make orders that conflict with the child’s wishes for regular and easy contact with both parents. This is an important matter which weighs substantially against the mother’s primary application. Comparable weight must be given to this child’s special needs, that make more important for him than perhaps many other children, for stability and security.
When evaluated comparably, neither of the mother’s proposals for residence offer the child the level of security that the father’s proposals do. I am concerned about A’s ability to cope with the changes that are involved in either of the mother’s proposals. Whilst inevitably children have to cope with changes in their lives as they grow up I cannot see that it is in a child’s best interests to force change unnecessarily, particularly at a time when the child is highly unlikely to cope with it.
Integral to the decision I have taken is my finding that A wants and needs regular, free and easy contact to both of his parents. This is not possible if the child lives in Y. It is only achievable if child and both parents live nearby. This outcome is available on the mother’s alternate proposal and the father’s residence application. Of equal importance is the importance that both parents need the other to be involved in the childs life regularly and substantially if between them his needs are to be met. Neither of them can parent him effectively without the other. Were the mother’s proposals for residence effected on the basis that she and the child were living in Y face to face contact to the father will be limited to school holidays. The father is in full time employment and although the mother’s orders propose that the father could have contact for periods more extensive than four weeks in total in a year, unless he makes special arrangements with his employers the child would be present in Sydney, but the father would be at work for significant parts of ordered contact. Block periods of contact are a poor substitute in the circumstances of this case for the regular contact this child needs to both parents. Even if contact were to occur as ordered I am satisfied that A’s relationship with his father would be disrupted and change in a way which is not in the child’s interest.
In the sixth months since separation the mother has not made firm plans such that I could have any reasonable confidence that in Sydney she will create a settled and secure environment for A. In the immediate period post separation many people are unable to establish a settled living arrangement for some time. I take into account that the mother’s plans to live in Y have been disrupted. Should she remain in Sydney I am satisfied that she will most likely continue to live in shared accommodation with Ms L and her children. Whether or not they are able to secure constant accommodation is unclear on the evidence. The mother’s inquiries made of local real estate agents do not give me confidence that she will be able to do so. A needs more one on one parenting than this style of living offers. Many children may thrive in a communal setting, A is not one of them. Perhaps the mother recognises that she needs, now that she is separated, her parents support to be able to effectively parent A. I am satisfied that she does. Achieving this, however, comes at too high a cost to A because of the disruption in entails.
In his father’s care A will be able to continue to live in his home and the essential structure of his daily life will continue. That is, leaving to and from his home for the same school; cared for substantially by his father; exercising contact to his mother; and babysat by his grandmother or Aunty Dallas. Other than the inclusion of his aunt, these are the people to whom A is most attached and who have been substantially involved in his care over an extended period of time.
The father, more than the mother does, recognises A’s need for stability and expert support. His decision to take A to a child psychiatrist is a sensible one. He has shown in the way he has dealt with A’s behavioural difficulties, intuitive and sensitive parenting that is attuned to A’s current and future needs. On balance I am satisfied that he is better equipped, taking into account the whole of his circumstances, to meet A’s future intellectual, physical and psychological needs than the mother is.
A is deeply attached to his mother and needs her involvement in a substantial way in his life. Just as the parties have in the past, so to it is likely that they will in the future, structure their work commitments in a fashion that is complimentary to each other’s availability to care for A. The father works alternate weekends during which time A should be in the care of his mother. If there are other block periods where either party must work then before arrangements are made for a further person to care for A the other parent must be given the opportunity to do so. The orders I have made presuppose that the parties will, as they indicated in their evidence they would, continue to live in close proximity to one another and that A will continue to attend the same school.
The orders are structured as residence/residence orders. This is because both parties will be substantially involved in the child’s life and the residence-contact dichotomy is inappropriate. In his application the father proposed that the mother have contact with the child for three weekends each month and each afternoon after school should she require it. Ultimately, I was not persuaded that that form of shared residence would be successful from the child’s perspective. Fundamentally it is too disruptive. The mother’s structure of alternate weekend contact is more consistent with the emphasis placed upon stability. However, the length of the weekend has been extended to include the Sunday evening. Thus A will have the opportunity to immerse himself more substantially in his mother’s life when he is with his mother. Two weeks between contact is too long for this child. Following a weekend when A has been in his father’s care, he will live with his mother from after school until the following morning. The balance I have struck is a fine one. It emphasises A’s wishes to have both parents involved in his life, their capacity to meet his needs on a continuing basis and his need for stability.
The parties are ordered to attend a post-separation parenting program. They must work to regain the capacity to communicate with each other. Both have significant changes to make if that is to be achieved. It is important, from their sons perspective that they make the effort to do so.
I am entirely satisfied that the orders I will make are orders that are in the best interests of the child. For these reasons I make the orders identified at the commencement of the judgment.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 18 April 2002
0
0
0