R & W
[2007] FMCAfam 868
•2 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & W | [2007] FMCAfam 868 |
| FAMILY LAW – Parenting orders – interim – mother relocated to New South Wales – child left in Western Australia with father – disputed cohabitation – parties’ financial positions – risk of harm from neglect – mother’s relocation because of new relationship – other factors considered. |
| Family Law Act 1975 (Cth), ss.60B, 60CC(2) (3), (4) & (4A), and 65DAA(1)(b) Federal Magistrates Act 1999 (Cth), ss.3 and 42 Federal Magistrates Court Rules 2001 (Cth), r.1.03 |
| B & B [2007] FMCAfam 82 P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 |
| Applicant: | A R |
| Respondent: | J W |
| File Number: | NCC 2418 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 27 September 2007 |
| Date of Last Submission: | 27 September 2007 |
| Delivered at: | Darwin (by telephone) |
| Delivered on: | 2 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Manning |
| Solicitors for the Applicant: | Merrick Spicer & Associates |
| Counsel for the Respondent: | Mr Byrnes |
| Solicitors for the Respondent: | Byrnes Lawyers |
ORDERS
The child J W born 2005 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.
Liberty is granted to the Legal Aid Commission to appoint an agent in Western Australia.
The child J W born 2005 live with the father.
J spend time with the mother as follows:
7.1If the mother resides within 50 kilometres of the father then from 6.00pm Friday until 6.00pm Monday each week;
7.2If the mother does not reside within 50 kilometres of the father then:
7.2.1For a period of five days in every four weeks from 9.00am Monday until 9.00am on the Saturday with the first such occasion to be the second Monday following the making of these Orders and thereafter every four weeks with the mother spending such time with J in Western Australia;
7.2.2The first period of time the mother spends with J shall be graduated such that the mother shall spend a period of three hours with J on the Monday from 9.00am until 12.00 noon, a period of five hours with J from 9.00am until 2.00om on the Tuesday, a period of seven hours with J from 9.00am until 4.00pm on the Wednesday and from 9.00am on Thursday until 9.00am on the Friday.
7.3The mother is to collect J from the father's residence at the commencement of each period she spends time with the child and is to return J to the same address at the conclusion of such periods.
7.4During periods when the mother is not spending time with J she shall communicate with him by telephoning him between 6.00pm and 7.00pm three times per week.
The matter is adjourned to 9.30am 22 November 2007 for a directions hearing.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
NCC 2418 of 2007
| A R |
Applicant
And
| J W |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant Mother, A R[1], seeks parenting orders concerning the Child of her marriage with the Respondent Father, J Wr.[2] J W, born 9 May 2005 is the child of the marriage.[3]
[1] “Mother”.
[2] “Father”.
[3] “Child”.
Mother and Father commenced cohabitation in or about January 2004.[4] There is a dispute as to how long co-habitation lasted.
[4] Mother’s Affidavit, sworn 15 May 2007, para. 3 (“Mother’s First Affidavit”); Father’s Affidavit sworn 28 May 2007 para. 15 (“Father’s First Affidavit”).
The Mother remained in Western Australia until 7 April 2007. She then returned to her home state of New South Wales.[5] She did so to continue a relationship she had commenced with a man[6] when on holidays in New South Wales in March 2007 (having previously had a relationship with him at some time prior to coming to Western Australia in January 2004), and by whom she has now become pregnant.[7]
[5] Mother’s First Affidavit, para. 9; Father’s First Affidavit, para. 50.
[6] “Current Partner”.
[7] Mother’s Affidavit, sworn 7 September 2007, Annexure A, para. 10 (“Mother’s Second Affidavit”); Father’s First Affidavit, paras. 44-46.
The Mother left the Child in Western Australia when she returned to New South Wales, telling the Father that she would ask for the Child to be sent to her later. The Father has refused to send the Child to New South Wales and there is a dispute as to whether he agreed to do so.[8]
[8] Mother’s First Affidavit, para. 9; Father’s First Affidavit, paras. 49 and 51.
The matter was heard in Newcastle on 27 September 2007. At that time the Court made orders as follows:
1. The child J W born 2005 is to be separately represented, and the Legal Aid Commission New South Wales is requested to arrange such representation.
2. Both parties must provide to the Legal Aid Commission New South Wales copies of any relevant orders and reports forthwith.
3. Both parties must provide the Legal Aid Commission New South Wales with copies of any applications and affidavits on which the party relies forthwith.
4. The Registry Manager is requested to forward a copy of these orders promptly to the Senior Solicitor, Family Law Litigation, of the Legal Aid Commission New South Wales of these orders.
5. Liberty is granted to the Legal Aid Commission to appoint an agent in Western Australia.
6. The child J W born 2005 live with the father.
7. J spend time with the mother as follows:
7.1 If the mother resides within 50 kilometres of the father then from 6.00pm Friday until 6.00pm Monday each week;
7.2 IF the mother does not reside within 50 kilometres of the father then:
7.2.1 For a period of five days in every four weeks from 9.00am Monday until 9.00am on the Saturday with the first such occasion to be the second Monday following the making of these Orders and thereafter every four weeks with the mother spending such time with J in Western Australia;
7.2.2 The first period of time the mother spends with J shall be graduated such that the mother shall spend a period of three hours with J on the Monday from 9.00am until 12.00 noon, a period of five hours with J from 9.00am until 2.00om on the Tuesday, a period of seven hours with J from 9.00am until 4.00pm on the Wednesday and from 9.00am on Thursday until 9.00am on the Friday.
7.3 The mother is to collect J from the father's residence at the commencement of each period she spends time with the child and is to return J to the same address at the conclusion of such periods.
7.4 During periods when the mother is not spending time with J she shall communicate with him by telephoning him between 6.00pm and 7.00pm three times per week.
8. The matter is adjourned to 9.30am 22 November 2007 for a directions hearing.
The Court told the parties that it would deliver reasons for judgment at a later date.[9] These are those reasons.
The Law
[9] The delivery or publication of reasons for judgment at a later date is a course open to this Court. The Court is to act as informally and expeditiously as possible: Federal Magistrates Act 1999 (Cth), ss.3 and 42, (“FM Act”); Federal Magistrates Court Rules 2001 (Cth) r.1.03 (“FMC Rules”), and the FMC Rules expressly provide for the Court to give any judgment or make any order at any stage in a proceeding: r.16.01; and to use stream lined procedures: r.1.03. The Court, whilst not expressly a superior court is not an inferior court either, exercising powers in relation to concurrent jurisdiction with the Family Court in many aspects of the Family Law Act 1975 (Cth) (“FL Act”), and with the Federal Court in many areas (including, for example, workplace relations and bankruptcy), and to the exclusion of the Federal Court in many aspects of migration law, where this Court now exercises the original jurisdiction of the High Court with the power to issue prerogative relief. The combination of powers and jurisdiction make it clear that the Court is neither superior nor inferior (in the traditional nomenclature), but rather the lowest level Ch III Court under the Constitution, and one with power to make orders and deliver judgment separately.
Principles to be applied and procedure to be followed
The judgment of the Full Court of the Family Court of Australia in Goode & Goode[10] concerned interim parenting orders. The Full Court of the Family Court of Australia in Hungerford & Tank,[11] a case concerning final orders, said that the failure to follow the steps identified in Goode was an error of law. The steps identified in Goode are as follows:
[10] (2006) 206 FLR 212; [2006] FamCA 1346 (“Goode”).
[11] [2007] FamCA 637 at para. 62 per Warnick, May and Boland JJ.
“(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”[12]
[12] Goode, FLR at 235-236 per Bryant CJ, Finn and Boland JJ; FamCA at para. 82 per Bryant CJ, Finn and Boland JJ. See also B & B [2007] FMCAfam 82 at paras. 2-5 per Wilson FM (“B & B”).
Equal Shared Parental Responsibility
The FL Act presumes that there will be equal shared parental responsibility. The parties agree on this, and the presumption applies in this case.
Time Spent
The Court must consider whether the Child spends equal time with each parent, that being presumed to be in the best interests of the Child.[13] Equal time with each parent is qualified by a requirement that it be reasonably practical.[14] In this case it is not reasonably practicable for the Child to spend equal time with each parent because the parents now live on opposite sides of the continent.
[13] FL Act, s.65DAA(1)(b).
[14] FL Act, s.65DAA(1)(b).
The question therefore becomes with which parent should the Child live, and then whether the non-live with parent should spend substantial and significant time with the child, and, if so, how much substantial and significant time, or other time. To determine that question it is necessary to have regard to the relevant primary and secondary considerations in, and underlying objects of, the FL Act.[15]
Primary Considerations – section 60CC(2)
[15] FL Act, ss.60CC(2), (3), (4) & (4A) and 60B.
Benefit to the Child of having a meaningful relationship with both parents – section 60CC(2)(a)
The emphasis here must be on the benefit to the Child, not any ongoing dispute between the parents.[16]
[16] P. Parkinson, ‘Decision-making about the best interests of the child: The impact of the two tiers’ (2006) 20 AJFL 179 at 184.
There is no dispute that the Child ought to have the benefit of a meaningful relationship with both parents. The question is how that is best achieved with the parents being a continent apart. The geographical separation makes it very difficult, especially with the Child being so young, for substantial and significant time to be afforded to the non-live with parent.
Risk of Harm to the Child – section 60CC(2)(b)
There is no evidence that the Child will suffer harm or abuse, if the Child lives with either the Mother or the Father.
The Court is concerned that in view of the Mother’s financial situation there may be some prospect of the Child suffering neglect, in a very general sense, if the Child lives with the Mother. The Mother’s present financial position is parlous. Her Centrelink payment is her sole source of income. After repayment of a debt she owes to Centrelink and her rent she says she survives on the remainder of her Centrelink payment, a sum of $80 per fortnight. The Mother says that if the Child lives with her she will receive an additional $260 per fortnight.[17] Essentially, the Mother will be required to provide for all of her and the Child’s needs (except rent) on $340 a fortnight, or $170 a week. Thus, it may be that the Mother’s financial position will be improved marginally if the Child lives with her but her financial position would still be such as to not be in the best interests of the Child, especially when compared to the Father’s financial position discussed below, for the Child to live with her on an interim basis.
[17] Mother’s Second Affidavit, Annexure A, paras. 11 and 14; Transcript at pp. 5-6.
By contrast the Father has an income of not less than $65,000 a year (or $2500 a fortnight) and perhaps as much as $80,000 per year (or in excess of $3000 a fortnight).[18]
[18] Mother’s Second Affidavit, Annexure A, paras. 12-13.
In the circumstances there is, at the margins, a minor prospect of the Child being neglected if the Mother gets into financial difficulty. There was some hearsay evidence from the Mother that the Father has recently had a judgment of $26,500 obtained against him by a former business partner, and that he also owes a bank and a finance company $11,000 and $4,500 respectively.[19] The Father admits he is involved in a business dispute that is proceeding through the courts, but that apart says his only “debt” is to a finance company (Esanda) for which he makes periodic payments as and when they fall due.[20] Given the Father’s income, debts of that magnitude might, in any event, be easily financed, subject to other commitments.
[19] Mother’s Second Affidavit, Annexure A, para. 9(c) and (d).
[20] Father’s First Affidavit, para. 66.
The Court therefore considers that there is no present evidence of harm, abuse or neglect, but that the respective financial positions of the parties mean that if there is any possible future neglect, it is more likely that it will occur if the Child lives with the Mother.
The Court stresses that its view about neglect arising from the Mother’s financial position deals with future possibility, and relates only to neglect in the most general sense.
Of more concern is the availability of persons to assist in the care of the Child and to ensure that the Child is not neglected. The Mother gave evidence of a significant number of relatives (parents, grandparents, current boyfriend’s parents, uncles, aunts and cousins) in the “area surrounding T” with whom she “keep[s] in touch”.[21] Significantly, however, not a single one of them gave evidence, and from neither relatives nor the Mother was there evidence of their preparedness to assist the Mother, or what they might do to assist. Further there was evidence from the Mother that her Current Partner, will soon be moving into the house she presently occupies.[22] The Mother’s evidence was that her Current Partner is a truck driver who works locally near where the Mother now lives in New South Wales.[23] There was no evidence however from her Current Partner, either at all, or as to his willingness and capacity to assist her with the care of the Child.
[21] Mother’s Second Affidavit, Annexure A, para. 9.
[22] Mother’s Second Affidavit, Annexure A, para. 10.
[23] Mother’s Second Affidavit, Annexure A, para. 10.
In the circumstances there is no evidence that the Mother has appropriate support mechanisms in place to assist her with the care of the Child, and to prevent neglect.
By contrast, the Father and the Father’s Mother both gave evidence about the current care arrangements for the Child. Those arrangements are:
a)that the Child is in day care two days per week from 10:30 am to 3:00 pm;
b)the Father’s Mother takes the Child to and picks him up from day care;
c)when the Father is at work (from 6:00 am to 3:00 pm Monday to Friday and 6:00 pm until 10:00 am on Saturdays) and the Child is not in day care, the Father’s Mother cares for the Child; and
d)when the Father is not at work he cares for the Child.[24]
[24] See generally Father’s Affidavit, sworn 26 September 2007, (“Father’s Second Affidavit”) paras. 23-25 Father’s Mother’s Affidavit, para. 21.
The Father’s Mother no longer works and is able and available to assist the Father to care for the Child.[25] Apart from being a mother and grandmother, the Father’s Mother:
a)is a trained day care mother;
b)worked in home care for a period of two years;
c)has completed certificates in Family Day Care First Aid and Family Day Care Infectious Diseases; and
d)is a registered family day care giver.[26]
[25] Father’s Mother’s Affidavit, para. 21; Father’s Second Affidavit, para. 23.
[26] Father’s Mother’s Affidavit, para. 25.
The Father’s Mother deposes to her close, loving and affectionate reciprocal relationship with the Child.[27]
[27] Father’s Mother’s Affidavit, para. 26.
The Mother alleges that:
a)the Father’s Mother fed the Child solids at age 2.5 months, when a doctor had told the Mother not to feed the Child solids until 4 months, and despite asking the Father’s Mother not to do so, that she continued to feed the Child solids;[28]
b)the Father’s Mother said that if her children did not settle that she would “dunk their dummy in sherry brandy” so that they would settle;[29] and
c)a doctor had told the Mother that the Child should not be fed foods containing nuts until the Child was 7 months old, but when the Mother mentioned this to the Father’s Mother when the Child was about 7 months old, and said that she was going to try the Child on nuts, the Father’s Mother said that she had already done that “ages ago”.[30]
[28] Mother’s Second Affidavit, Annexure A, para. 7(a).
[29] Mother’s Second Affidavit, Annexure A, para. 7(b).
[30] Mother’s Second Affidavit, Annexure A, para. 8.
The Father’s Mother has responded to the above claims by denying each of the allegations. On the basis of the evidence of assertion and denial it is not possible to make any findings of fact for the purposes of this interim hearing, save to observe that these allegations relate to events preceding December 2005, and that there are no later allegations made by the Mother against the Father’s Mother.
The Mother makes various allegations about the Father’s drug and alcohol consumption, as follows:
a)when she first met the Father he was working full time as a truck driver (this was prior to January 2004 and before the Father and Mother moved to Western Australia) and that he “used to regularly take amphetamines while driving the trucks to help him stay awake”;[31]
b)that after the move to Western Australia, and as a consequence of a business partnership in a scuba diving school disintegrating,[32] the Father “would drink half a carton of beer every night and also smoked a lot of marijuana at the same time”; [33] and
c)that the Father still uses drugs and consumes alcohol,[34]
and the Mother also says that the disintegration of the business partnership involved the business partner threatening the Father with guns.[35]
[31] Mother’s First Affidavit, para. 3.
[32] Mother’s First Affidavit, para. 5.
[33] Mother’s First Affidavit, para. 6; Mother’s Second Affidavit, para. 20.
[34] Mother’s First Affidavit, para. 16.
[35] Mother’s First Affidavit, para. 5.
The Father responds by saying that he:
a)“emphatically” denies taking amphetamines while working as a truck driver, and points out, as did the Mother, that during this period he also worked as a scuba diving instructor and that it is “extremely dangerous” to scuba dive whilst having any illegal drugs in the body;[36]
b)denies that any threats were made involving guns;[37]
c)“emphatically” denies drinking to excess and smoking large amounts of marijuana, and goes on to point out that after his involvement with the scuba diving shop he obtained his current employment and has been promoted to the position of plant manager in charge of six subcontract drivers, two company drivers, seven trucks, and is responsible for control of the docking and loading of those trucks as well as the relevant staff;[38] and
d)concedes that he did “occasionally” use marijuana during the period of time that he and the Mother cohabited, but says that his consumption of marijuana was no more extensive than that of the Mother.[39]
[36] Father’s First Affidavit, para. 53.
[37] Father’s First Affidavit, para. 63.
[38] Father’s First Affidavit, para. 64.
[39] Father’s First Affidavit, para. 65.
Although the Mother reiterates that she saw the Father drink and smoke marijuana, and says that the Father admits this, as set out above,[40] she does not deny the Father’s assertion that she too used marijuana during the period of cohabitation.[41]
[40] See para. 27(d) above.
[41] Mother’s Second Affidavit, para. 20.
The Court is not able to draw any conclusion for final purposes with respect to the question of the alleged drug use by the Father and Mother, and the Father’s alcohol consumption. However, the Father’s current employment, and his current living arrangements (with the Father’s Mother and his step father) incline the Court to the view, that at least for interim purposes, there is no significant risk to the Child from exposure to drug and alcohol consumption if the Child is in the care of the Father or the Father’s Mother. The Court also notes in this regard that the Mother did not seek orders restraining the Father from consuming alcohol or drugs during any time that the Father spends with the Child, but that the Father was prepared, of his own volition through Counsel, to indicate to the Court that he would be prepared to accede to any testing regime the Court deemed appropriate.[42]
[42] Transcript at 13.
The present state of the evidence in relation to drug and alcohol consumption is such that it is not necessary for the Court to place limits on either parent’s conduct, it not having been demonstrated that any limits are necessary for the welfare of the Child.[43] In making that determination the Court is cognisant that illicit drug use is frowned upon as it can impair parenting capacity and impact upon the best interest of a child.[44]
[43] MDT & KPR [2007] FMCAfam 867 at paras. 35-37 per Lucev FM (“MDT”), citing L v T (1999) FLC 92-875 at pp.87, 392; [1999] FamCA 1699.
[44] MDT at para. 35 per Lucev FM citing T & N (2003) FLC 93-172 at pp. 78, 761; [2003] FamCA 1129 per Moore J.
The Mother now seeks interim orders for the Child to live with her in New South Wales, and for the Father to spend time with the Child in New South Wales. In the alternative, the Mother says that if the Child was to live with the Father in Western Australia, then the Child should be sent to New South Wales to spend time with her.
The Father also seeks interim orders but that the Child live with him in Western Australia, and that the Mother spend time with the Child in Western Australia.
Overall, the Court does not consider that the Child would be at any, or any significant, risk of harm or abuse if the Child were to live with, or spend substantial and significant time with either the Mother or the Father on an interim basis. There is however less risk of neglect if the Child lives with the Father on an interim basis, by reason of the Father’s superior financial position and the seemingly better care and support arrangements in place for the Child when living with the Father.
Other considerations – section 60CC(3)
Views expressed by the Child – section 60CC(3)(a)
The Child has just turned two. Consequently, no views have been expressed or sought to be obtained from the Child.
Relationship of the Child to parents and other significant persons – section 60CC(3)(b)
The Mother has not seen the Child since she left Western Australia on 7 April 2007. Put differently, the Mother has not seen the Child for the last approximately one-fifth of his short life. She chose to leave him behind when she returned to New South Wales.[45] The Mother asserted that she wanted to return to New South Wales to be close to her family and friends, and in particular her family.[46] She asserts that at the time she returned to New South Wales it was on the basis that the Father agreed to have the Child for a few weeks, and then return the Child to the Mother in New South Wales.[47]
[45] Mother’s First Affidavit, para. 9.
[46] Mother’s First Affidavit, para. 8.
[47] Mother’s First Affidavit, para. 9.
The Father’s version is very different. He says that in March 2007 the Mother returned from a holiday in New South Wales, and told him that:
a)“I love someone else”;[48]
b)“I am moving back to New South Wales”;[49] and
c)“I ran into [Current Partner] and I realised that I love him”.[50]
[48] Father’s First Affidavit, para. 44.
[49] Father’s First Affidavit, para. 44.
[50] Father’s First Affidavit, para. 45.
The Father says that the Current Partner “was a former boyfriend of the Mother”.[51]
[51] Father’s First Affidavit, para. 46.
The Father further says that he told the Mother that he did not want her to go, but that if she was to go, he did not want her to take the Child with her, and that the Mother said that if he did not agree to the Child going with her she would “get him afterwards”.[52]
[52] Father’s First Affidavit, para. 49.
The Father’s First Affidavit, in which the above matters are set out, was sworn on 28 May 2007.
In the Mother’s Second Affidavit, sworn 7 September 2007, she says she is “approximately eight weeks pregnant” and that she has “resumed relationship with a previous partner”,[53] who “is the father of the baby that I am carrying”[54]. The Court notes that the previous partnership must have been when the Mother was quite young, as she came to Western Australia with the Father in 2004, when 18 years and 3 months old, by which time she and the Father had been “going out” for one to two months.[55]
[53] The Current Partner.
[54] Mother’s Second Affidavit, Annexure A, para. 10.
[55] Father’s First Affidavit, paras. 11 and 15; Mother’s First Affidavit, para. 2.
Against that factual background the Court considers that the most likely explanation for the Mother’s return to New South Wales was the resumption of the relationship with the Current Partner. Moreover, on the evidence presently available, the Court considers that the Mother appears to have put a greater priority on the resumption of that relationship than living with the Child in Western Australia, or her living in Western Australia and spending time with the Child, or doing either of those things pending the interim determination of an application for appropriate relocation or live with or time spent orders.
The Mother also asserts that she and the Father had not cohabited since about 2004, when she was about 7 weeks pregnant with the Child,[56] and that:
a)she only spent each Friday and Saturday night with the Father so that the Child could spend time with the Father;[57] and
b)she lived with the Father’s Mother and the Child at the Father’s Mother’s house from 2004 until she left Western Australia, and that the Father did not live with them. [58]
[56] Mother’s First Affidavit, para. 4.
[57] Mother’s Second Affidavit, Annexure A, para. 6.
[58] Mother’s Second Affidavit, Annexure A, paras. 4-6.
The Father says that he, the Mother and, after the birth of the Child, the Child, lived together until the Mother returned to New South Wales. The Father says that initially (until 2005) he and the Mother lived with the Father’s Mother and her husband (the Father’s step-father).[59]
[59] Father’s First Affidavit, para. 17; Father’s Second Affidavit, paras. 9 and 11.
The Father’s Mother confirms that the Father and Mother lived at the Father’s Mother’s house until 2005.[60] There is evidence that the Father and the Mother then lived together at two other properties until the Mother’s return to New South Wales. That evidence is from:
[60] Father’s Mother’s Affidavit, para. 8.
a)the Father, who amongst other things says:
i)he and the Mother “lived together, sharing the same bedroom and storing our various possessions etc at our place of residence”;[61]
[61] Father’s Second Affidavit, para. 10.
ii)he and the Mother “cohabited through the whole of the … period” from 2004 to 2007;[62]
[62] Father’s Second Affidavit, para. 13.
iii)he arranged a birthday party for the Mother in 2006 at the residence they then inhabited, and he paid to fly the Mother’s mother and sister to Western Australia for that party, all of which he says he would not have done had they not been cohabiting;[63] and
[63] Father’s Second Affidavit, para. 14.
iv)that the Mother accepted his proposal of marriage in 2004.[64]
[64] Father’s Second Affidavit, para. 8.
b)the Father’s Mother, who says:
i)that the Father told her of the Mother’s acceptance of his proposal of marriage;[65]
[65] Father’s Mother’s Affidavit, para. 9.
ii)that she saw them cohabiting in various residences, saw them living together, saw their belongings in the residences, shared meals with them, generally socialised on visits to the residences, assisted with gardening at one residence and assisted with the care of the Child at each of the residences;[66] and
[66] Father’s Mother’s Affidavit, paras. 10-15.
iii)denies that, at any stage after 2004, the Mother lived with her, and says that the Mother’s assertion that she did so is a fabrication, and that the Mother lived with the Father, and then the Father with the Child at various residences from 2004.[67]
[67] Father’s Mother’s Affidavit, paras. 17-19.
c)a friend of the Father and Mother, who met them both at the Father’s Mother’s house and who:
i)assisted the Father and Mother to move into two of the residences, including the residence that they were living in when the Child was born;
ii)attended the Child’s first birthday (in 2006) at the Father and Mother’s residence; and
iii)says that the Father and Mother lived together as a couple until the Mother returned to New South Wales.[68]
d)the owner of the last property in which the Father says he and the Mother resided, who says that after renting the property to the Father and Mother in 2006:
i)the Father and Mother commenced living in the property;[69]
ii)the owner and his partner visited the property for dinners and barbeques with the Father and Mother;[70]
iii)the owner loaned a set of party lights to the Father for the Mother’s twenty-first birthday party, attended that party, and met the Mother’s family;[71] and
iv)the Mother lived in the property and did not live with the Father’s Mother.[72]
[68] Affidavit of Peter Baker, sworn 26 September 2007, paras. 3-5 (“Father’s Friend’s Affidavit”).
[69] Affidavit of Adam Abdic, sworn 26 September 2007, para. 4 (“Owner’s Affidavit”).
[70] Owner’s Affidavit, para. 5.
[71] Owner’s Affidavit, para. 6.
[72] Owner’s Affidavit, para. 8.
There is sufficient evidence, from a variety of sources, for the Court to conclude, for interim purposes, that the Mother did cohabit with the Father, at various residences (including the Father’s Mother’s residence) throughout the period from 2004 until the Mother’s return to New South Wales in 2007.[73]
[73] Save for a short period in March 2007 when the Mother returned to New South Wales on holiday: Father’s First Affidavit, paras. 41-43.
The Child, who is almost old, has had a lifelong relationship with two people: his Father and his Father’s Mother. Both attest to the close and loving relationship they have with the Child, and the care and support available for the care of the Child.[74]
[74] See Father’s Second Affidavit, paras. 23-26; Father’s Mother’s Affidavit, paras. 20-26.
For interim purposes there is sufficient evidence for the Court to conclude that the Child’s relationship with his Father is closer than that the Child has with the Mother, and given the time that the Mother has now been in New South Wales, and the prior and on-going relationship the Child has with the Father’s Mother, that the Child’s relationship with the Father’s Mother is probably as close if not closer than the Child’s relationship with the Mother.
Parental facilitation and encouragement of a close and continuing relationship between Child and other parent – section 60CC(3)(c)
In some respects the Mother foreclosed this issue by:
a)asserting that she did not cohabit with the Father for the majority of the time that she spent in Western Australia, whereas, on the evidence available for interim purposes, the Court has been able to conclude that she did cohabit with the Father throughout the period from 2004 until her return to New South Wales in 2007;[75]
b)moving to New South Wales without the Child, albeit that she says that she considered there was an agreement for the Child to be sent on later (a matter the Father disputes);[76]
c)giving no indication that she is prepared to move back to Western Australia, or even come back to Western Australia to see the Child, notwithstanding offers to pay her fares for air travel (which she has rejected on account of illness attributable to her pregnancy) and train travel (to which she has not responded);[77] and
d)making no concession to the age of the Child if the Court orders that the Child live with the Father, because by reason of the orders that she seeks, the Child must travel to her to spend time with her, and she requires that the Father bring the Child to her, and that the Father travel to New South Wales from Western Australia, and return, with the Child to facilitate her time spent with the Child.[78]
[75] See para. 45 above.
[76] Mother’s First Affidavit, para. 9; Father’s First Affidavit, paras. 49-50.
[77] Father’s Second Affidavit, paras. 20-22 and Annexures A-C.
[78] Transcript at 8-9.
It seems that the Mother is not prepared to take steps herself, or to accept means offered to her, to facilitate and encourage her relationship with the Child.
Setting aside the disputed issue of whether there was agreement by the Father to return the child to New South Wales (a matter which the Court cannot determine on the disputed evidence at this interim stage) it seems that the Mother has taken steps to remove herself from a close and continuing relationship with the Child, and failed to respond to or reciprocate steps taken by the Father to facilitate and encourage a close and continuing relationship.
The Court notes that the Mother’s complaint that the telephone is not answered is consistent with the Father’s evidence that he turns the telephone off between 7:00 pm and 7:30 pm whilst preparing the Child for bed. The Court can not criticise the Father for what seems a reasonably sensible course of action, and the orders made by the Court will provide for telephone contact prior to the time at which the Child is ought to be being prepared to go to bed.
The Mother has put herself in a position where she has made it difficult for the Father to facilitate and encourage a close and continuing relationship between the Child and herself. Whilst the Mother’s assertions concerning the Father’s alleged limitation on the Mother speaking to the Child by telephone are noted,[79] so too is the Father’s reasonable explanation. The Court will order telephone contact three times a week with the non live with parent, and if that order is transgressed, appropriate action can be taken.
[79] Mother’s First Affidavit, para. 12.
Likely effect of changes in Child’s circumstances – section 60CC(3)(d)
The Child has lived in Western Australia all his life, except for a holiday with the Mother in New South Wales in 2007.
By reason of the Court’s findings on the cohabitation, the Child has lived with the Father all of his life, save for the abovementioned holiday period in New South Wales. He has also lived with the Father’s Mother for a substantial part of his life, and for that part of his life (as well as presently) in the Father’s Mother’s home, the first time with the Father and Mother, and on the second and current occasion, with the Father.[80]
[80] Father’s Mother’s Affidavit, paras. 8 and 20.
The Child has been in child care (for varying periods for two to three days a week, currently two days) since 2007.[81]
[81] Father’s First Affidavit, paras. 85-86; Father’s Second Affidavit, paras. 23-25.
In short, the Child has a settled domestic and caring regime in a physical environment with which he is familiar.
By contrast, the Mother proposes to take the Child to:
a)an environment with which he is not familiar, other than for a holiday visit of two weeks in 2007;
b)to be with people that he has not seen or been with for any extended period of time (again, other than the two weeks in 2007), and in respect of whom, the Mother has given no evidence about how they might be involved in the care of the Child; and
c)the Mother herself makes no suggestions as to the future care of the Child other than to say that she proposes that she be the Child’s “primary supervisor”,[82] without giving any detail as to who might be the secondary supervisor or supervisors, or what other arrangements might be made for the future supervision of the Child.
[82] Mother’s Second Affidavit, para. 13.
The Court takes the view that the orders sought by the Mother are likely to have a significant unsettling effect on a two year old child, and save for the fact that the Child may be with the Mother all the time, are insufficiently detailed to allow the Court to make any finding that the Child might be going to a proper and settled care arrangement in New South Wales.
In all the circumstances, for interim purposes, the likely effect of changes in the Child’s circumstances under the Mother’s proposed orders are such that it is not in the best interest of the Child that the Child’s present living and care arrangements be changed, save that the Mother be able to spend time with the Child if she comes to Western Australia.
Practical difficulty and expense of Child spending time and communicating with parents – section 60CC(e)
There is a practical difficulty and considerable expense in the Child spending time and communicating with each of the parents so long as one lives in Western Australia and the other in New South Wales. Realistically, that situation does not appear to be one which will change in the foreseeable future.
The Court notes that the Mother’s current financial resources make it very difficult for her to travel to see the Child,[83] but equally, she has not taken up an offer of financial assistance which will allow her to travel, by train, to Western Australia to see the Child.[84] For the Father it is very difficult for him to spend time with the Child because of his employment. The Father would be required to give up well remunerated employment in which he has recently been promoted. Moreover, the Court notes, that it is that remunerative employment of the Father which presently provides for the needs of the Child.[85]
[83] Mother’s Second Affidavit, Annexure A, para. 11.
[84] Father’s Second Affidavit, para. 22 and Annexure C.
[85] Father’s Second Affidavit, para. 27.
Communication by telephone should pose no difficulty, and the Court will make appropriate orders for telephone communication for the non live with parent.
Practically, whichever parent the Court decides the Child ought to live with, it will result in the non live with parent not spending significant time with the Child, on an interim basis.
This is a factor which, in terms of practical difficulty and expense might ordinarily be neutral, but the fact that the Father might have to give up existing remunerative employment upon which the Child depends presently for its needs, is a factor which, at least for interim purposes, means that it is in the Child’s best interests that the Child continue to live with the Father.
Capacity to provide for the needs of the Child – section 60CC(3)(f)
On the available evidence it is apparent that the Father has a greater financial capacity to support the needs of the Child. In relation to housing it seems that both parents have housing with appropriate facilities available to them, but the Father’s housing arrangement means that the Child will remain in a familiar environment, and a family environment with the Father having assistance available from the Father’s Mother. It is not possible on the evidence presented to the Court, for reasons otherwise outlined above,[86] for the Court to conclude that the Mother has family support available, or, at the very least, the degree and level of family support that is available to the Father.
[86] See paras. 19-20 above.
In terms of the day to day care of the Child there is a dispute as to the degree to which the Father was involved in the care of the Child prior to the Mother leaving Western Australia. The Mother asserts that the Father was not as involved in the parenting of the Child as the Father asserts.[87] The Mother asserts that the Father was only ever actively involved with the care of the Child when she stayed over at the Father’s residence on Friday and Saturday nights. This was part of her case that she did not cohabit with the Father. The Court has already found that on the available evidence for interim purposes there was cohabitation for the period that the Mother was in Western Australia. Therefore, the Father’s involvement must have been more than is asserted by the Mother, if for no other reason than there was cohabitation for five days a week, rather than visitation for two days a week. Further, the Father gives evidence concerning his care of the Child in some detail, including the changing of nappies, bathing, washing, clothing, feeding, preparing meals and general care for the first twelve months of the Child’s life. Thereafter, as a consequence of a change in his business and employment arrangements, the Father concedes that he was not as involved as he was previously, but does indicate that he did carry out certain functions in the time that was available after work.[88] During the period from the Child being about twelve months of age until the Mother left in 2007 she was the primary carer for the Child. That is not disputed.[89] Since the Mother left Western Australia in 2007 the Father has assumed the role of primary carer for the Child, obviously with considerable assistance from his Mother.[90]
[87] Mother’s Second Affidavit, Annexure A, para. 6.
[88]Father’s First Affidavit, at paras. 33-37.
[89] Father’s First Affidavit, para. 37.
[90] Father’s First Affidavit, paras. 78-88; Father’s Second Affidavit, paras. 23-26.
The Court notes that the Mother’s pregnancy prevents her from travelling by air,[91] and also prevents her from looking for work.[92] It might be open to question how she might then cope with a two year child who she has not had to care for almost seven months.
[91] Mother’s Second Affidavit, para. 14.
[92] Mother’s Second Affidavit, Annexure A, para 11
In all the circumstances, and for interim purposes, the Court considers that both parents have the capacity to provide for the needs of the Child. The Father clearly has a greater capacity in relation to the Child’s financial needs and the current housing and child care arrangements with the Father are probably better for the Child than they would be were the Child to live with the Mother. If the Child were to live with the Mother the Child might have the advantage of spending all of the Child’s time with the Mother, but that gives rise to concerns about the lack of support (on the evidence) available to the Mother. On the evidence the quality of family support available to the Father is presently better than that is available to the Mother. It seems that both parents are capable of providing for the Child’s general day to day physical and emotional needs, subject to the comments above concerning financial, housing and family support consideration.
This factor favours the Child living with the Father on an interim basis.
Maturity, sex, lifestyle and background of Child and Parents – section 60CC(3)(g)
These issues are sufficiently discussed in detail in other parts of these reasons for judgment. Suffice to say, for present interim purposes, that on the available material the Court considers that:
a)the Father is more mature and responsible than the Mother;
b)the Father’s lifestyle is more settled than the Mother’s,
and mean that this factor favours the Child living with the Father, at least on an interim basis.
Aboriginal and Torres Strait Islander Child – section 60CC(3)(h)
On the evidence not applicable in this case.
Attitude to the Child and parental responsibilities – section 60CC(3)(i), (4) and (4A)
These issues are otherwise discussed in detail in other parts of these reasons for judgment.[93]
Family Violence or Family Violence Orders involving the Children or a member of the family– section 60CC(3)(j) and (k)
[93] See in particular, paras. 35-41, 46-47 and 48-52 above.
On the evidence not applicable in this case.
Order less likely to lead to further proceedings – section 60CC(3)(l)
As these are interim proceedings, and as the matter is listed for further directions on 22 November 2007, this factor does not warrant further consideration.
Consideration
Having considered the evidence in relation to each of the relevant factors, the Court considers that:
a)on the primary factors there is little difference between the parents, save that there is a slightly greater risk of neglect, arising from the Mother’s financial circumstances, if the Child were to live with the Mother;
b)the Child presently has a closer relationship to his Father than his Mother, and his relationship with his Father’s Mother is probably presently as significant as his relationship with his Mother;
c)his Mother apart, there is no evidence that the Child has a significant relationship with any relative on the Mother’s side of the family;
d)the Mother has placed her relationship with her Current Partner ahead of her relationship with the Child;
e)the Mother has taken steps to remove herself from a close and continuing relationship with the Child, and has not responded to or reciprocated steps taken by the Father to facilitate and encourage a close and continuing relationship with the Child;
f)the likely effect of a change in the Child’s circumstances were the orders sought by the Mother to be granted (that is, that the Child go and live with her in New South Wales) would be significantly unsettling to the Child, and not in the best interests of the Child, at least for interim purposes;
g)there is practical difficulty and expense in the Child spending time and communicating with the parents, and in particular by reason of the fact that the Child must live with one parent, either in Western Australia or New South Wales, and it is more practical for the Child to continue to live with the Father than with the Mother;
h)the Father has greater capacity to provide for the needs of the Child overall; and
i)the Father is more mature and has a more settled lifestyle than the Mother,
and for those reasons the Court considers it appropriate that the Child continue to live with the Father until the Court is in a position to make a final determination as to where the Child ought to live.
The effect of the Court’s view expressed above is that the Mother will only be able to spend time with the Child on an interim basis if she resides in Western Australia or travels to Western Australia for that purpose. There will be orders to facilitate the Mother spending time with the Child in Western Australia. There will also be orders allowing the Mother to have telephone communication at an appropriate time with the Child on three occasions each week. The orders do not specifically provide for the Child to spend time with the Mother at other times agreed between the Mother and Father, but there is nothing to preclude that from occurring by arrangement between the Mother and Father.
Orders
Orders were made accordingly, together with orders that the Child be represented by an Independent Children’s Lawyer.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 2 November 2007
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