Rice and Pettit
[2014] FCCA 56
•12 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RICE & PETTIT | [2014] FCCA 56 |
| Catchwords: FAMILY LAW – Best interests of the child – child conceived when the parties were very young – father files application after the mother withheld the child for holiday time – father primary carer – mother’s application to change the primary care living arrangements of the child – mother lives on (omitted) father lives in (omitted) – mother critical of all aspects of father’s parenting including baseless allegations and strongly held view the father is a drug dealer. |
| Legislation: Family Law Act 1975, Part VII, ss.60 CC, 65DAA |
| Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MR RICE |
| First Respondent: | MS PETTIT |
| File Number: | CSC 422 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 31 October - 1 November & 11 December 2013 |
| Date of Last Submission: | 11 December 2013 |
| Delivered at: | Cairns |
| Delivered on: | 12 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mayes |
| Solicitors for the Applicant: | Greg Pohlmann Family Lawyer |
| Solicitors for the Respondent: | Sinclair Family Law |
| Counsel for the Independent Children's Lawyer: | Mr Victoire |
| Independent Children's Lawyer: | Newman Family Law |
ORDERS
That the mother and father have equal shared parental responsibility for the child X born (omitted) 2004 (“the child”).
That without limiting the parental responsibility of either parent herein, each parent shall keep the other parent informed of and shall promptly consult with the other with respect to any significant parenting issue affecting the said child. For the purpose of these orders a parenting issue is:-
(a)Any medical or health matter concerning the said child and forthwith in the event of any medical or other emergency involving the said child.
(b)Any medical or health issue affecting either parent which may affect the ability of that parent to care for the said child while with him/ her;
(c)Matters relating to the education of the said child, including but not limited to, the choice of school and curriculum together with the provision at the non-residence parent’s expense to the other parent of all school reports, school photographs and all other communications/ newsletters from the said child’s school other than with respect to routine or administrative matters;
(d)Disciplinary matters other than those of a trivial nature;
(e)Matters concerning the social development and sporting activities of the said child;
(f)Matters concerning the religion, faith or culture and custom of the said child;
(g)Any intended change in a surname from which the said child is commonly known to that which appears on the said child’s birth certificates;
(h)Any matters regarding the said child in respect of which parent should be informed or consulted with having regards to the provision of part VII of the Family Law Act 1975 provided that these Orders are authority to all medical and educational expertise/ care providers involved with the said child from time to time to liaise with each parent in relation to the health, welfare and progress of the said child and each parent keep the other informed of the full name, address and contact telephone number of each such medical and education expert/ care provider of the said child.
That the child live with the father.
That the child spend time with the mother at all times as agreed by the parties and failing agreement as follows:-
(i)For the whole of the March/April, June/July and September/ October school holidays.
(ii)For one half of the December/January school holiday period, alternating between the first half and the second half each year. When X is spending time with the mother in the second half of the holidays, the holidays are to be concluded on the last Friday before school resumes.
(iii)For one weekend each school term (subject to the mother giving three weeks’ notice) from Friday to Sunday unless on a long weekend when such time shall include a public holidays or non-school day. The cost of this travel shall be at the expense of the mother.
The child will spend additional time with the mother:-
(iv)At any time the mother is in (omitted), with the mother giving the father reasonable notice of her intention to be in (omitted), such time not to intrude on the father’s school holiday time;
(v)At any time that the father is in the Brisbane area, with the father to give the mother reasonable notice of his intention to be in the Brisbane area.
Telephone and other communication
The parties shall communicate primarily by email, text or, in the case of an emergency, by telephone.
The mother will be at liberty to telephone the child on three occasions each week at times agreed, either by telephone or by Skype, and the father will ensure that the child is available and able to speak with the mother in a quiet, private and uninterrupted environment.
When the child is spending time with the mother, the father will be at liberty to telephone the child on two occasions each week, either by telephone or by Skype, and the mother will ensure that the child is available and able to speak with the father in a quiet, private and uninterrupted environment.
Cost of contact
Except for the provisions of Order 4(iii) herein, the mother will do all acts and things to make and pay for arrangements for the child to travel from (omitted) to her home to spend time with her pursuant to these Orders and the father will do all acts and things to make and pay for travel arrangements for the child to return to (omitted) at the conclusion of the mother’s times as referred to in these Orders.
Education and Schooling
That both parents be at liberty to attend all educational and extra-curricular functions, events and activities in which the child might be involved or which parents are ordinarily invited, subject always to the discretion of the school or organiser of the extra-curricular activity.
Authority given by these Orders
These Orders shall, without more, act as authority to the child’s school to provide each parent (at that parent’s expense) information about the child’s education progress, school related activities, copies of school reports, photographs, photograph order forms, certificates, awards obtained by the child and other school communications ordinarily provided to parents.
These Orders shall, without more act as authority to each of the child’s medical practitioners (including counsellors and psychologists) to provide each parent (at that parent’s expense) information about the child’s medical condition, treatment and copies of medical records and reports (as determined by the medical practitioner).
Each parent will ensure that the schools attended by the child and the child’s usual treating medical practitioner (including counsellors and psychologists) are provided with a copy of these Orders.
The mother is restrained from removing the child from his attendance and enrolment at any school, without the prior written agreement of the father.
Non-denigration
Neither party will denigrate the other party, or the other party’s partner or family members, either directly to or in the presence of or hearing of the child, and will remove the child from the presence or hearing of any other person doing so.
Notification and authorities
That the parties keep the other advised of the child’s residential address and of any changes of that address, within 24 hours of such change, and each parent advise the other of any change in their telephone numbers or email address within 48 hours of such a change.
Each party will keep the other party informed at all times of any health concern or illness or injury suffered by the child, as soon as practicably possible and each party is to notify the other forthwith if the child is admitted to hospital or seriously ill, as a matter of urgency.
The father shall keep the mother advised of the name and contact details of the child’s medical practitioner.
These Orders will act as authority to any medical practitioner or dentist treating the child to provide information to each parent as to the child’s treatment or progress, at the expense of the requesting parent.
The Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Rice & Pettit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 422 of 2012
| MR RICE |
Applicant
And
| MS PETTIT |
Respondent
REASONS FOR JUDGMENT
The applicant in this case is the father, Mr Rice (“the father”) and the respondent is Ms Pettit (“the mother”). An Independent Children's Lawyer (“ICL”), Mr Terry Newman, has been appointed to act for the best interests of the child of this relationship, X, born on (omitted) 2004 (“the child”). At the time of the last day of trial, X is about five days away from his ninth birthday. X has been living with his father for most of his life, and the application by the father is that X remain living with him.
The father proposes orders that see X living with him in (omitted) and spending holiday time with the mother, who, at the time of commencing this application, lived in (omitted). At the commencement of the trial, the mother informed the Court that she and her de facto husband, who have a child called Y, were proposing moving from (omitted) to live on the (omitted) in South East Queensland. The move was proposed primarily on the basis that the mother’s de facto partner grew up near the beach and always wanted to live back near a surf beach. As I understand it, the de facto partner’s parents live on the (omitted).
The father’s proposal is, therefore, that X will spend the whole of the March/April school holidays, the whole of the September school holidays and the first half of all Christmas school holidays in odd numbered years with the mother. In even numbered years, the father sought orders that the child live with the mother for all of the June/July school holidays, the first half of the September school holidays and the second half of the Christmas school holidays.
The mother seeks orders that the child live with her and that X spend time with the father for all of the March/April and September/October school holiday periods in each year, the first half of the December/January school holiday periods in even numbered years and the second half of the December/January school holidays in odd numbered years. The mother proposes telephone and Skype time twice a week. In the event that the father and mother are living in the same locality, the mother proposes that the child live with her and spend time with the father each alternate weekend, from after school Friday to before school Monday, or if Monday is a public holiday or a pupil free day, to before school Tuesday.
The mother also says in her orders sought, that should the parents not reside within the same locality, then the child shall spend one weekend per school term with the father upon the father giving the mother written notice at least 14 days in advance of the chosen weekend. If the parents live in the same locality, the mother proposes that the child X spend one half of all school holidays with each parent. Telephone time at all reasonable times is also proposed, including on the child’s birthday, parents’ birthday, Easter Sunday, Christmas Day, Mother’s Day and Father’s Day.
At the conclusion of the trial, the ICL provided a draft of orders sought. It is proposed by the ICL that X remain living with the father in (omitted) and that if the parties live in the same town, the child will spend time with the mother each alternate weekend, from the conclusion of school Friday until the commencement of school Monday, and if the weekend falls on a school non-attendance day, the weekend shall be extended to include such day and for one half of all school holidays.
In the event the parties do not live in the same town, it is proposed by the ICL that X spend time with the mother for the whole of the March/April, June/July, September/October school holidays, and one half of the December/January school holiday period. Telephone time and Skype time is also provided for twice a week, and an order is sought that the parties communicate primarily by email or text, or in the case of an emergency, by phone. There are a range of other orders sought about school reports, photographs, authorities for medical practitioners and other orders.
The ICL proposes that the parties have equal shared parental responsibility, and that position is also adopted by the mother and father.
A brief history
The ICL and the parties have provided the Court with an overview of the relevant chronology. There is not a lot in dispute in terms of the history of the matter and I accept the ICL’s chronology as setting out what are largely agreed facts.
The mother and the father have had a romance which started when the mother was still a school girl. The father was born on (omitted) 1984 and the mother was born on (omitted) 1986. The parties met when the mother was 16 or 17 and the father was 17 or 18. They commenced living together in 2001. The father was 17 and the mother was just on 16. The father was given permission by the mother’s parents to move in and live with the mother whilst the mother was still a school girl. Perhaps not unsurprisingly, after the father moved in to live with the mother X was conceived.
X was born on (omitted) 2004 while the parties were living on the (omitted). The father was aged 20 and the mother just on 18 years. Thereafter, the arrangements of the parties were a little unstable as might be expected with the parties being parents so young. They moved, in around late 2004/early 2005, to live with the maternal grandmother for about three months, then relocated to (omitted).
They shared a house in (omitted). The father commenced working and X went to day care.
In 2005, the parties separated. During this time, the parties appear to have been sharing, in one way or another, the care of X, and, in my view, they were doing the best they could between them, given their limited financial resources and their young ages. They were dealing with issues of finances, accommodation, the new relationship, their young ages and a new baby. These were significant issues and pressures for these very young parents and I am satisfied that they have both been through very troubling times at this stage in their relationship.
In February 2007, the mother handed over care of X to the father. At that stage X was two years and two months old. Essentially, the father has remained then the primary carer of X for the six years since that time up until the time of trial. In 2010, the father notified the mother of his intention to relocate with X from the (omitted) to (omitted). The mother agreed for the father to relocate with X to (omitted) in a letter of 3 March 2010. The father arrived in (omitted) shortly thereafter. When the father moved with X to (omitted), the mother and father agreed that there would be school holiday periods between X and the mother.
Since that time, the father has facilitated holiday time with X and the mother for all the school holiday periods. All of the travelling between (omitted) and (omitted) (where the mother then moved at a point with her then new boyfriend and now de facto partner), a journey of around 1,000 km one way, has been undertaken solely by the father. The mother has not agreed that X can spend holiday time with the father despite many requests for this to occur.
The mother gave birth to a second child on (omitted) 2011, being Y. At the time of trial, the Court was advised that Y had just been diagnosed with autism.
In August 2011, the mother commenced dialogue with the father about wanting X to live with her full-time. The parties attended a Legal Aid conference in October 2011 but there was no agreement that X should change residences and live with the mother . In October 2011, pursuant to their ongoing agreement, the mother and father agreed that X would spend this school holiday period with his mother.
Again in June 2012 in accordance with their agreement, X travelled to spend school holiday time with his mother in (omitted). This holiday turned into a much longer stay than was anticipated or agreed to, because the mother then unilaterally retained X in her home in (omitted) and refused to return him to the father. The mother enrolled X in school in (omitted) without agreement of the father. The mother was untruthful about where she was living and prolonged the process of having documents served upon her.
The father accordingly filed an Initiating Application on 11 July 2012 and ultimately the mother was served with the application which was heard on 20 September 2012. At the time of the holding over, the mother falsely told the father that she was no longer living in (omitted) and refused to give him her address. The mother also enrolled X in school in (omitted) and had X ring the father to tell him that he would no longer be living with the father, and the father could see him on holidays. I will come back to that phone call later in these reasons. An ICL was appointed by the Court following the interim hearing in August at which time orders were made for X to be returned to the father’s care.
The material relied upon by the each of the parties is referred to in their respective case outlines. This matter was heard initially for two days on 31 October 2013 and 1 November 2013 and then adjourned to the next convenient date for all concerned including the Court, which was 11 December 2013. In between the adjourned dates, the mother’s solicitors withdrew and filed a notice of withdrawal on 6 December 2013. The mother, therefore, appeared at the final day of the hearing self-represented.
A Family Report was prepared by Ms L and a short addendum was prepared and filed dealing primarily with the issue of the diagnosis of autism of the mother’s youngest child, Y.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated:
“The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in both in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
The father’s Initiating Application in this matter was filed on 11 July 2012 which is after amendments were made on 7 June 2012 which provide in section 60 CC (2A) that in applying the primary considerations, the Court is to give greater weight to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.
In this matter the father gave evidence, as did the mother and her partner. The Family Report Writer prepared a report with a short Addendum and along with the other witnesses, was cross examined.
In these reasons a statement represents a finding of fact unless indicated otherwise.
Witnesses
The Father
The father gave evidence and was cross-examined. The father has been vigilant in obtaining and maintaining employment in order to be financially independent. He has worked at a variety of occupations for a day or two or in casual work. At the time of trial, he had secured full time work of 40 hours per week. He is also studying (course omitted) in (qualification omitted). When the father travelled with X to (omitted) from (omitted), he typically travelled on to the (omitted) during the period that X was spending holiday time with the mother, in order to progress his studies which were based on the (omitted).
In what has been an unfortunate feature of the mother’s case, the father has been accused by the mother of being a drug user or seller and been the subject of criticism in relation to a variety of issues to do with his parenting. The father denies being involved in any drug dealing and there is not a skerrick of evidence to support this assertion by the mother. The mothers evidence amounted to nothing more a discussion that she once had with the father when he was aged about 17 (and the mother was therefore aged about 15 or 16) that he had once been given something strange by a friend. The mother also made allegations that the father was some sort of social outcast and that the child would therefore be socially isolated living with the father. The mother alleged that the child was socially withdrawn and suffering from living in an isolated environment with the father. The criticisms were made about dental checks, school performance and generally the father’s inability to provide the level of parenting that the mother believed that she could provide. The mother alleged that the father had an anger problem, that he had been domestically violent and that he was a very poor role model given that he had lost his driver’s licence at one stage, and was involved in other criminal matters.
My assessment of the father was that he is a reasonably hard-working young man who has endeavoured to do the best he could to secure his own financial independence and to better himself. He has done this in the last six years whilst he has been the primary carer of young X. The father seems to be a man, who, when he turns his mind to something, focusses on it and achieves his goals. The mother, through her then Counsel, Ms Mayes, tried to make significant mileage out of an incident in which the father left a place of employment where he was doing some casual work. The allegation put to the father was that the father has an anger management problem. Having heard the father’s evidence he gave in relation to the circumstances in which he left that employment, I do not regard that incident as suggesting to me that the father has an anger management problem.
The mother’s case was conducted on the basis that she sought to make much mileage out of an array of negative criticisms of the father’s conduct as a parent, as a worker or citizen.
The father’s financial security was regarded by the mother as evidence of him being a drug dealer. Under cross-examination the father gave evidence that he was financially secure by having savings which have grown over time totalling around $30,000.00. When being challenged about his explanation as to how he saved those funds by Counsel for the mother, the father initially explained he did not produce his bank statements willingly as he did not understand why he had to. After an indication from the Court as to the basis of the request, the father was willing to produce his various bank statements. Those statements indicated the savings pattern deposed to in the father’s evidence and confirmed that he has been putting aside money regularly for years in two accounts. The father said he did this through strict sacrifice and quarantining savings as part of his regular budgeting, even if that meant he went without things during the particular pay period. The father’s philosophy was that once he allocated funds to savings he did not wish to draw on those funds.
Even when the bank statements were produced it was clear from the questions that followed that the mother did not wish to accept that the father had worked long and hard to accumulate the savings, which the father said he hoped would be deposit for a house of his own.
The mother was unshakeable in her belief that somehow the father must be involved in the drug world. On instructions to her Counsel, the global proposition was put to the father, namely, that he was a drug dealer. This proposition was put without any factual basis, just pure speculation by the mother. The father denied that he was involved in any such activity.
In terms of trying to achieve his goal of owning his own home, the father explained to the Court that it is important to him to be able to one day own his own home as he suffered considerable distress during the latter years of his school years, when, due to financial difficulties his own mother informed him that he could no longer live at home because his mother could not afford for him to live with her any more. The father said this caused a huge upheaval in his life having to move out at that age and he pledged to himself that he would one day get his own home. Unlike the mother I do not regard the father’s desire to have his own home and saving funds to do so over a period of years, as evidence of being a drug dealer any more than I would suspect the mother’s own de facto partner who also says he has been saving for a home as his primary goal in life (even above marrying the mother) as being evidence that he is a drug dealer.
In terms of his behaviour, and the mother’s allegations of violence, the father accepted that he punched a wall back in 2005 and says he has never damaged any furniture.
The father was quizzed about an incident back in 2004 were it was alleged he tipped Weet-bix on to X. I accept his evidence that he did not tip Weet-bix on X when X was about two years old (now almost nine years ago) and accept that he got into a food fight with X at the time. The father agreed it was a juvenile thing to do at the time. The father was aged 20 at the time. It seemed to be nothing serious and after their food fight, X was put in the shower. That the mother raises this issue in 2013, years after she has agreed to the father being the primary parent. It further illustrates to the Court that the mother is still, after all this time, holding fast to her unwarranted criticisms of the father.
In 2007 there were Department of Child Safety investigations into the care of X whilst he was in the father’s care and I am satisfied with the father’s explanations as to the inquiries that took place.
The mother makes criticisms now of the father then having X sleep on a mattress. At the time, the father then aged around 20 or 21, was stressed financially and he admits that until he got all his furniture, he had a mattress on the floor for X. The Department of Child Safety report which has been subpoenaed, notes that at the same time as X slept on a mattress on the floor, the father was sleeping on a doona or blanket on the carpet. The father said he was obviously very poor, and “pretty much I slept on the carpet.” The Court notes that this situation occurred when the father was the primary carer of X and the mother was not offering any financial support. Given that she was not providing a home at this time for X, her criticisms of this state of affairs seem to be quite misplaced.
During 2007 when the Department investigated concerns reported about the father, he was accused of hitting and yelling at X, the father admitted that from time to time he did yell at the child. The father candidly admitted that he needed some further techniques to deal with X’s tantrums which he found difficult to manage at times.
The Department of Child Safety report confirms; “the Police and Child Safety officers that attended at the father’s home in May 2007 noted that the child presented as healthy at the time of interview, that the child was content with staff and at times was seen to be affectionate to the father by way of cuddling him. There was no apparent bruising, although the father said the child had a swollen cheek at times, and this was from a medical condition at birth. The cheek was observed by the Child Safety officers and Police and no apparent injuries or swelling were present.” [1]
[1] Tab 3 of the ICL tender bundle.
The child was, at that time, being taken by the father one day a week for a playgroup. The father explained his disciplinary methods, which were acceptable. The report notes:
“Child slept on mattress on a piece of carpet while father sleeps on quilt.”
The Departmental records noted that there was electricity on in the room and that the contents of the fridge consisted of milk, eggs, dim sims, fruit and was adequately filled. Clothes were observed to be hanging on rafters with coat hangers.
The father denied ever taking drugs or having alcohol and stated he used substances in the past but no longer did this. (The father gave evidence at this trial that it was the mother and the mother’s sister that suggested to him that he engage in smoking marijuana with them and that ultimately he agreed to do this on an occasion). The Department noted that the fathers Centrelink money was spent on food, that the father was looking for another home, but had been unable to find one due to financial difficulty. It was suggested by the Department to the father that he put his name down for public housing, which the father said he was not previously aware of but he that he would do so now. The father told the Department he would welcome some support with his parenting and the more he can do now, the better it is for X. He stated the most important thing for X at the moment was the support of family, discipline, a good environment, happy people around him and someone to look up to.
The father was noted by the Department as having friends and the father stated that it was hurtful having things said about his alleged poor parenting. He stated that his living arrangements had in fact improved and that this time last year the father had been sleeping in a car.
I am satisfied that the father has responded appropriately to the concerns raised by the Department and that he indicated a willingness to work with the Department. Whilst the Department noted that a risk had been substantiated, the Department also noted that the father was able as a parent to address the concerns and willing to work with the Department and the child was not removed from his care.
I am satisfied that the father has tried his hardest to manage being a young single father in caring and providing for X. The Department noted back in 2007 that the father was willing to accept any help and that he did so.
I consider the father to be an honest witness. There is no evidence whatsoever that the father is selling drugs. I regard the cavalier manner in which the mother has raised this baseless allegation and held firm to that belief, is a poor reflection on the mother’s attitude toward the father.
The father has been described by the Report Writer as being somewhat resentful that he has had to come to Court to defend himself. Given the litany of complaints and unfounded allegations made by the mother, I do not consider this position unreasonable. I accept that the father is a competent father, who, like the mother, has matured since X was born. I am satisfied that the father has managed to struggle through some very difficult times, and he has been prepared to try and do his best to ensure that X has a roof over his head and is fed, that he is safe and loved and educated, albeit he has not been a perfect parent during this process.
The father has taken up volunteer work at the (omitted). It is more of a hobby than a passion. Ms L, the Report Writer, suggested in her initial report that it was important for the father to be a good role model and do things such as voluntary work. The father gave evidence of his voluntary work at (omitted) which he has been doing for some time. Clearly the Report Writer was not aware of this. I did note however that the Report Writer did not also make the same suggestion that the mother should engage in voluntary work to be a good role model.
The father has an ambition to work as a (occupation omitted). He has a business plan ready for that eventuality, and in the meantime, as I said, he is doing that and voluntary work at (omitted). There is nothing about the father’s life that caused me to consider him to be any kind of social outcast or not to have any friends as alleged by the mother and her de facto partner. I note that this is further speculation by the mother and that she has never visited X at his home in (omitted).
The evidence that the mother relied upon to suggest that somehow X was not socially adept, amounted to him not immediately mixing with children in the park in (omitted) when he was down there on holiday visits. The mother’s partner, Mr A, assumed that X would or should be able to mix freely with these children that he only sees a few times a year. I consider that the mother and Mr A showed a lack of insight into understanding why X might be shy on meeting other children in the park and that it was quite naive to suggest that this was evidence of X living the life of a social outcast in (omitted) as was suggested. It is certainly the case that the mother and Mr A have been quick to jump to conclusions about what they speculate might be happening in X’s life in (omitted) though it is noticeable as I have already said that not one visit has ever been made by the mother to (omitted) to spend time with X.
X and the father have lived together now for many years, since at least 2007. I was also left with a strong impression the father and X are a tightknit pair and that the father had a very good knowledge of X’s friends, his likes and dislikes; strengths and weaknesses. I consider he was generally child focused. I am also satisfied that the father is enabling X to have plenty of opportunities to mix with the children in his various activities and that the father makes a point of providing one on one attention to X along with opportunities for X to enjoy an outdoor life in (omitted). I also consider that the father is trying his hardest to achieve his own goals and better himself both financially and personally and that he is determined to provide a happy and secure home life for X.
The Mother
The mother presents as someone who is deeply resentful of the father and who is oblivious to his good efforts at parenting over these past years. The mother stated that she wished the child to live with her because she could provide more stability, she was financially stronger than the father and that it would be better for X to be living with her. I had a strong impression that the mother has suffered a lot of sadness in the situation she found herself in, having a child at such a young age and ultimately agreeing that the child should live with the father. It is very clear to me that the mother had deep regrets about how that part of her life unfolded and that she perceives she has lost X. In this context she admitted to me, words to the effect, that she would never stop trying to get X back.
It is also evident, listening to the mother’s evidence and the narrative that she offers to the Court, that the mother has justified her position in not having X living with her through demonising the father and accusing him of all manner of crimes and poor parenting. The mother made complaints about lack of dental work for X, lack of proper supervision with homework, the father having a poor record with traffic fines, the father having an anger issue based on an incident in 2005 when the father aged 19 had left a particular job after an altercation with another employee. The mother alleges that the father is a drug dealer as I have already referred to and provides absolutely no factual foundation for this belief. The mother simply believes she is a superior parent, that she will be able to provide better education through a private school, financial security and stability for X.
The mother also criticised the father about not having X taken to a private dentist as opposed to X attending the dentist through the dental van at school. I sensed some sort of false snobbery on the mother’s part and a sense of superiority which was quite unjustified. I have no doubt she loves X dearly and that X loves spending time with his mother but her unfounded criticism of the father did her no credit. The mother does not have an income of her own and the only reason she is now suggesting that X should go to a “private dentist” is because the mother is relying on the income of her current de facto partner. The same can be said of the mother’s criticisms of the child’s schooling and her current plan to enrol X in a private school in (omitted). It is not the mother’s wealth which permits this, it is the mother asking for assistance from her current de facto partner.
In terms of the mother’s now second child, Y, I had a strong impression that the mother really had little idea of what lay ahead of her, having a child diagnosed with autism or even parenting two children rather than one. I am sure that the mother will dedicate herself to raising Y, however the diagnosis of autism will certainly mean that the task of mothering is degrees more difficult and demanding than raising a child without autism. The mother minimised Y’s autism and the likely consequences of that condition in terms of the parenting required and the effects upon her household and for X. When querying with the mother at one stage about using a Skype connection rather than a phone connection to keep in touch with X, the mother was asked whether it will be very hard to get Y to talk on the phone. The mother replied, “No. Y is very talkative on the phone. He doesn’t actually speak words though… He babbles.”
I understand however that the mother has only had the diagnosis for a couple of months prior to the trial and that it is going to take both the mother and Y’s father some time to come to grips with this diagnosis.
The mother’s partner is working in (omitted) as a fly in fly out worker. The mother is essentially being a single parent for four days at a time whilst her partner works on his four days on four days off rotation. I had a strong impression that the mother had not really contemplated the parenting that would be required to look after both Y and X as a single parent. The mother did not appear to have much insight, nor had she contemplated the dynamics involved in the significant transition for X to move permanently from a household with his father to the mother’s household. This would involve a transition to a new family circle and for X to live with a mother figure in the home and living with a sibling who may have significant behavioural difficulties. It also involves X living away from (omitted) where X has lived and attended school for three years and no longer being under the primary care of his father, with whom he has lived for many years, since 2007.
I had a lasting impression that the mother’s deeply held sadness and regret at agreeing that X would live with his father as his primary carer years ago (no doubt for good reason at the time) has clouded her judgement about the father’s actual parenting capacity and his obvious devotion to raising X in very difficult times when the parties were both young and experiencing all sorts of pressures including financial.
It was the mother’s position at trial that she and her de facto partner wish to move to Brisbane as she described it. After listening to the mothers evidence it was clear she was not in fact moving to Brisbane at all, but rather was moving to the (omitted). The mother had very little idea geographically where Brisbane was in relation to the (omitted) or the (omitted) or where the (omitted) or (omitted) were. The mother gave false evidence that she would be living near the Brisbane airport. The mother was in fact planning to move to (omitted) on the (omitted). The (omitted) is about an hour or so north of Brisbane. I found her explanation that living and hour and a half away from the airport in Brisbane meant that she was living close to the airport as being disingenuous. The mother would not admit her either deliberately misleading or mistaken evidence that she was going to live close to the airport, but rather tried to justify her statement. This did her no credit.
I am quite satisfied that the mother is a loving and attentive parent to X when he spends time with her and that she ensures he has quality time with her during their holiday.
Mr A
Mr A is an easy going, amicable young man, who is working hard on a fly in, fly out basis and earning a regular income as a fly in, fly out worker on a four day rotation, likely higher than he has earned previously. He agreed that many jobs have been lost in that sector due to (omitted). His primary goal appears to be to save money for a house. Interestingly, this is the same goal as the father has and on which the father has been very focussed. Mr A struck me as being a very new parent and a person who at this point in his life has had little to no other experience in raising children. His work commitments result in him being absent from home as many days as he is at home, working on a four days off, four days on roster, which involves arduous travel on the first day off and the last day off.
The proposed move to the (omitted) is done for lifestyle reasons of enjoying living next to the surf and taking the children to the beach regularly. Whilst I accept that X has a close relationship with Mr A, of course, this is not the same longstanding and loving relationship he has with his primary carer or the mother. I was also left with a strong impression that in relation to Y, who is only 2 ½ years old, Mr A does not really understand the enormity of the task ahead of him parenting a child with autism. Mr A is placing significant weight on receiving assistance from his own mother who he says has worked with autistic children in her role as a (omitted) or something similar. His parents did not live on the (omitted) but he is nonetheless expecting his mother to be of significant assistance and which would involve her travelling to and from the (omitted) to do so.
Mr A said of his relationship with the mother and on the topic of marriage, that “I’d love to a buy house first and then concentrate on getting married. It’s eluded me for so many years to own my own house so I’d really like to get that done first then get married after that”. Mr A said that the mother had not discussed paying X’s school fees with him in the event that X lived with the mother and himself, but that he was happy to “help”.He said the mother had spoken to him about airfares for X.
Mr A told the Report Writer that the mother was not taking X away from the father in bringing her application to have X live with her and on further querying, it was stated by Mr A that he had been told by the mother that X had only lived with his father for the last three years. This is entirely inaccurate. As I have said elsewhere, I have had a strong impression that the mother has recast the factual history in this matter and that she has developed a version of events which is inaccurate and which includes a narrative that the child has only lived with the father since 2010 when the father moved to (omitted) with X, rather than what is factually correct which is that the father has been the primary carer of X since about 2007.
I was not convinced that Mr A had any understanding of what he was being asked to do in terms of paying for private school fees for X and whilst he said he would help with airfares for X to fly to and from Brisbane to (omitted), there was no certainty as to the dollar amount or level of assistance that would be offered by Mr A.
Mr A believed that if X lived with himself and the mother that they could provide a better environment for X; X would have a family environment and have the opportunity to strengthen his relationship with Y. Like the mother, Mr A has not been to (omitted) in the past three years to spend time with X. His evidence does not acknowledge X’s current life in (omitted) and family life in (omitted), nor the father’s financial security. Mr A did not candidly admit that his and the mother’s efforts at saving had been modest given his salary over the past three years. Mr A has a good relationship with X.
Section 60CC(3) factors
I will now turn to a discussion of the relevant additional considerations as set out in section S60 CC (3).
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The child’s views were obtained by the Report Writer, Ms L and X obviously loves both parents. He was described by the father as:
Adventurous, cheeky, funny, energetic and bubbly. He is clever, too clever and curious.
When offered three wishes, X’s first wish was to live with mum in a house in (omitted), a (omitted) and a cat in (omitted). When given a hypothetical scenario of living on a deserted island, X said he would like both parents and Mr A to live on the island with him. The Report Writer said that she restricted X’s options to three people. X obviously has a passion for his pet rats and spoke about his rats to the writer.
When asked about his wishes, X disclosed:
“I would like to live with mum, but I can't. The decider (Court) says I have to stay with dad. Mum tried to keep me. In my heart I want to live with mum. I know dad would be sad.”
In taking account of X’s views, I take account of him being eight at the time and turning nine in some days’ time. He was eight when the report was done early in 2013.
At his age I understand that X would have a good experience of spending fun holiday times with his mother and that it is not unexpected therefore for him to say that he would like to live with his mother. This is something that has never happened for X and the prospect of doing so, given his good and loving relationship with his mother, would no doubt be an exciting prospect. I note in expressing his views that X appears to be torn between both parents, in that when saying he would like to live with his mother, this was qualified by noting that the Court says he has to live with father and that his father would be sad if he lived with his mother.
This view confirms to the Court that X is a much loved child who very much loves each of his parents. I have taken account of his views, his age and noted these views in the context of the circumstances in which X has spent time with his mother to date, and that at 8 years old, he may not be of an age where the full ramifications of living with his mother and the subsequent moves are understood by X.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
In relation to X’s relationship with his half-brother Y, I note that the mother and her de facto partner, Mr A, each expressed a view that if X lived with them he would be able to strengthen his relationship with Y. Whilst this is an admirable view, I’m not sure that either the mother or Mr A really accept the accompanying challenges that likely exist in terms of X and Y developing a relationship given the diagnosis of autism for Y and what that really means in a practical sense.
During the course of this trial and after noting the concerns in the Family Report as to the impact upon the mother’s family circle of the diagnosis of autism made in relation to Y, and after being queried during cross-examination, it was clear to the Court that the mother, who candidly admitted that she had not read any textbooks on the topic of autism since Y’s diagnosis some two or three months earlier, said it was all very new to her. Although the mother said she had looked up several things online it seemed apparent from her answers that she considered there was little else involved other than having Y attend speech therapy and that it, “just affects his communication and his social skills.” During the break in between Court dates, the mother obtained and filed an Affidavit from the paediatric specialist, Dr R. This was requested by her solicitor at the time on the basis that the issue of this diagnosis appears to be a factor in terms of the mother’s capacity to care for a child with autism as well as being the primary carer of her eight year old son.
The mother requested that the treating specialist provide a report for production to the Court touching on the issues of the mother’s capacity to care for Y as well as X on a full-time basis. Dr R accordingly provided a letter for the mother, as seen in the Affidavit filed in the midst of the break between Court dates on 22 November 2013. The Affidavit stated in essence that Y is at this stage somewhere around the middle in terms of his diagnosis on the autism spectrum, though it is also stated that whilst not at the extreme end just where he does fit on the autism spectrum is difficult to be specific as most of the assessments are not all that precise.
Dr R stated that at present, Y was in day care five days a week and that he has responded positively to his attendance and is attempting to communicate, albeit that this occurs only via pointing. Dr R said he was impressed with the mother and father (Mr A) as being very capable and said that he was sure there were no issues about this couple also caring for Y’s elder brother X as well. This view is subjective and based on what the mother has advised Dr R is required in this litigation.
I note that Y’s communication remains a significant issue in that he is using pointing to communicate rather than speech and I note in the letter of 28 August 2013 (also attached to Dr R's Affidavit) that the behaviours exhibited by Y in August 2013 had been noted as being particularly concerning to the staff at day care, which included; poor socialising skills, delayed speech, fascination with opening and closing doors, love of routine and melt downs if these are upset in any way (e.g. must have doughnuts with each visit to (omitted) shopping centre), lack of affection, limited eye contact, lack of creative or imaginative type play with toys (e.g. cars), dislike of particular clothing and problematic in diet including refusal to eat meat, vegetables or chicken, tending to only eat products like chips or bread. A formal hearing test was also ordered at the time of the diagnosis of autism spectrum disorder, which was made only in August 2013.
Notwithstanding that Y’s treating paediatrician’s opinion is that the mother and her partner can manage raising two children including Y, the Court had had the opportunity of making it’s own assessment of each of the mother and her partner and is able to consider this evidence, Dr R’s opinion and all of the other additional considerations in forming its own view as to the mother’s overall parenting capacity and what living arrangements are in X’s best interests. The mother has not been the primary carer of X and at present, she has Y in day care 5 days a week, so the assessment of the paediatrician needs to be seen in that context.
The issue of the symptoms of Y including his inability to speak, make eye contact, show affection and becoming upset with a disruption to his routine will undoubtedly present challenges to the way X can communicate and spend time with his younger brother Y, as opposed to what would be possible without these limitations. Neither the mother nor Mr A appeared to acknowledge any possible issues in this regard or that they as parents likely would have extra demands upon them in parenting Y.
Nonetheless in terms of X’s relationship with Y, I have noted that during her observations in a home visit, the Report Writer noted that interaction between X and Y was indicative of a rather close sibling bond and despite the age differences between X and Y, and Y’s communication difficulties, I am satisfied that X spending time with his half-brother is in his long term best interests.
In terms of X’s relationship with each of the mother and father, I am satisfied that if it was possible, X would wish to live with both his mother, his father and Mr A as explained by him when given the hypothetical scenario of living on a deserted island.
There is no doubt that X has a strong bond with his mother as observed by the Report Writer who noted spontaneous displays of affection by X towards his mother and noted that X positioned himself so that he could be cuddled by his mother and he appeared to get pleasure from her affection. Similarly, the Report Writer noted that the father and X have a strong bond that is evidenced by reciprocal smiles and physical closeness.
In terms of X’s relationship with Mr A, the Report Writer noted that X and Mr A have a warm bond and appeared comfortable in each other’s company.
X is a fortunate child in that he is surrounded by two loving parents and his mother’s de facto partner, with whom he has an enjoyable relationship.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
To participate in making decisions about major, long term issues in relation to the child; and
(ii) To spend time with the child; and
(iii) To communicate with the child.
The Court notes that the mother has been content since at least 2007 for the father to make significant decisions in relation to X. The Court also notes that whilst the mother has made allegations that X needs dental work (having taken him for an assessment during school holidays and whilst he was held over) that the mother has never actually implemented any of the alleged work that needed to be done. Whilst the mother has complained about issues to do with X’s alleged poor schooling, the mother has not actually done anything about this. She has not raised it with the school or X’s teachers and the Court considers that the mother’s views were nothing more than misplaced criticisms. As the evidence has unfolded during the trial, the Court accepts that X is not behind in his schooling and the mother has admitted as much.
The mother has had every opportunity to bring an application to this Court over many years if she in fact had legitimate issues in relation to the father’s parenting. However, the mother has never instigated any proceedings. Overall, the Court is of the view that the mother has failed to participate in significant long-term decisions to do with X and she has been content to leave these to the father.
In terms of financial support for X, in what appears to be a totally contradictory position, the mother has not provided any financial support for X, yet now comes to the Court suggesting that she has the financial strength to not only have X live with her, but to pay for private tutoring, private schooling, a private dentist and at least half the cost of air fares from either (omitted) or Brisbane to (omitted). In truth, the mother’s income is family allowance. The mother is in a de facto relationship with a partner who earns an income which has been building up over the last two or three years from $1,500.00 to about $3,000.00 a week. That is not the mother’s income though, it is the income that the mother is relying upon to now make assertions that she will pay significant sums in the future, as seen in her evidence and assertions. I have referred elsewhere to the mother’s complaint that she wants to spend more time with X, but she has failed to travel to (omitted) to enable this to occur. I am satisfied that the father has fully participated in making decisions in relation to schooling, health and education and other long term decisions. He has also spent considerable time raising X on a solo basis. The Court is not satisfied as can be seen elsewhere in these reasons that the mother’s proposals are financially sustainable.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The Court notes that the mother does not and has not paid any financial contribution on a weekly basis to the ongoing costs of raising X since at least 2007. This means that the significant financial burden in raising X which would include money for clothes, food, haircuts, outings, school requirements and so on are all funded by the father.
Overall, I am satisfied that the father has taken on the major commitment in terms of parental responsibility in raising X and has been the sole provider for X’s day to day financial needs and that the mother has been content to leave this cost to the father.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposals contemplated by the mother amount to significant changes for X. Importantly, the mother proposes a significant separation from the father for X in that X will instead of living with the father, only spend holiday periods with him. I note that whilst X has been living with the father, that the father has facilitated time for each and every holiday period and the mother has refused to allow the father to have a holiday period of his own with X. Now that the mother is before the Court she proposes giving the father holidays which is something she has never agreed to in the past when the position has been reversed.
The mother proposes X live in a family circle consisting of herself, her partner, Mr A, who is to be the father figure in the household and their young son Y who has just been diagnosed with autism. This is a significant change for X who has lived since at least 2007 in a family unit of two people, namely himself and his father. I note in the Family Report X’s irritation at the inability of Y to play appropriately with X’s possessions and in particular, his much loved pet rats. Whilst this is a typical response of a sibling to the intrusions of another sibling, these and other changes in terms of sharing the affections of his mother with his sibling are proposed for X by the mother. Reading the mothers material and hearing her give evidence, it is clear to me that the mother makes a significant effort whilst X is spending time with her on the holidays to have some one-on-one time with X and obviously this is because it is a special and fun time occurring a few times a year. The mother has not been the primary carer of X since at least 2007. Prior to that, the evidence is that the mother and father, as young as they were, did a good deal of sharing the care of X. To that extent, the mother is an untested primary parent of X. The prospect of living in the mother’s home on a permanent basis will involve X accepting that every day cannot be like the holidays and he will have a great deal of accommodating and sharing to do whilst living with the mother. These are significant changes for X.
There are other significant changes ahead for X on the mother’s proposal and that is that he will leave his school and school friends and his friends in the community in (omitted). The father has given evidence of X’s involvement in community organisations and the life they lead together, doing outdoor activities in and around (omitted). The father does not have the responsibility of raising another child and is in a position to provide X with significant one-on-one parenting. In the mother’s household the primary parenting role for both children will be performed by the mother. Her partner will be coming and going from the family household on a four day rotational turnaround, the mother studying and Y going to day care five days a week, and for much of the time Y, the mother and X will be living without the mother’s partner. I consider that the new household itself will represent a significant change for X. This is along with him coping with the loss of his school friends, starting a new school and learning to live in either (omitted), then (omitted) or the (omitted) (or both if as the mother says things don’t work out in (omitted), they will move to the (omitted)). The prospect of X moving to (omitted) and onto (omitted) represents two significant changes for X. The possibility of him then moving on to the (omitted) is a further significant change. The Court does not accept that the mother’s proposals offer X more stability than those of the father, which have X remaining in his current living circumstances, attending his school with his friends of long standing in his familiar environment in far North Queensland.
On the mother’s proposal, X will need to make the rather seismic shift of no longer living with his father with whom he has lived for the last six years at least, in what I regard as quite intimate circumstances of being just the father and X. Whilst the Court is aware of X’s wish to have the opportunity to live with the mother I do not consider that X is old enough to understand that necessarily, that means he will be spending significantly less time with the father. This would not be necessary if the mother decided to move to (omitted) however she is not prepared to do that for her own reasons. The father is not prepared to move to (omitted) as he says he has carved out a life in (omitted) and he has work and friends and business plans in (omitted). It seems even if the father did relocate to (omitted), he would then have to relocate to (omitted) and then possibly follow the mother to the (omitted). This is not really feasible.
The impact on X of the father’s proposal will be that he will remain living in an environment in which he is stable and familiar, he will remain living with and be well cared for by his father, educated at the same school and he will continue to spend wonderful holiday periods with his much loved mother and his younger half sibling Y. Importantly, if X remains living with the father the Court is assured that he will continue to have a happy and long lasting relationship with his mother. If X lives with the mother the Court does not accept that he will have a long lasting relationship with the father, given the degree of criticisms and demeaning comments made by the mother and to some extent her partner towards the father. It is very clear to the Court that the father is not well regarded in the household of the mother and it is of significant concern to place X on a permanent basis in a household where such derogatory views are held about the father. It is likely that in the passage of time X’s current strong and loving relationship with his father will be diminished and affected considerably on a long term basis. This is a significant concern for the Court about the mother’s proposal.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
During her evidence the mother was loathe to admit that if she lived on the (omitted), where she and her de facto intend to move, that following the flights for X to or from (omitted), it would also involve a further journey from the (omitted) to Brisbane taking around an hour and a half to travel between the mother’s home and the airport.
I had the impression that the mother really had very little idea where she would truly be living in the event of their relocation from (omitted) to the (omitted) or elsewhere and that she had not really turned her mind to the practical difficulties associated with an hour and a half journey by car, followed by a flight to (omitted) each time X is to travel to and from (omitted).
The mother mentioned during her evidence that she and her partner might also move to the (omitted) and again I had the impression that the mother really did not realise that the (omitted) was another hour at least away from Brisbane. The mother and her de facto were somewhat undecided about where they would actually be living and that there was a degree of uncertainty about their living arrangements. The mother has been critical of the father saying that if X lived with her she would provide stability. Without criticising the mother and her partner for wishing to live beside the beach and have a beach lifestyle which they are perfectly entitled to do, I am somewhat sceptical of their joint plan and whether the mother appreciates the ripple effect in terms of distance and travelling and cost which she proposes and which will be a necessity to ensure that contact continues between the father and X.
I accept the evidence that in the past the father has been primarily responsible for ensuring that X spends his holiday time with the mother and this has involved the father either catching the train or driving down to (omitted) and collecting him on the return journey. The mother has not taken on the responsibility to ensure that this occurs up to this point. In terms of her plans for X to fly up to (omitted) and back again, I have no confidence that the mother has the financial capacity to ensure that this occurs. The mother’s actual plan is to ask her de facto partner to pay for the airfares and this is not an arrangement which the Court has any confidence in, as it is dependent upon the good grace of the mother’s partner, his financial ability to do so and his continued employment. The mother and her partner are now parents of their young son Y and they have the obligation to pay living costs associated with both themselves and their son and to hopefully save for a home which Mr A says is his primary goal. Although the mother and Mr A both assert that they are in a financially stronger position than the father, the evidence is really that Mr A has an income and the mother does not. Mr A has been working for three years in a fly in fly out situation and over that period Mr A and the mother have accumulated savings of $12,000.00. Without being critical of this, it ill behoves the mother and Mr A to suggest that the father cannot provide appropriately for X when the earnings of Mr A have been in the vicinity of $1,500.00, $2,100.00 or $3,000.00 per week and their respective savings have been $4,000.00 a year. The rest of his earnings have been spent. It is difficult to accept the mother’s proposition that she will be married as soon as they save for a house and that will occur in the not too distant future. The mother hopes that by the middle of next year they will have sufficient funds to pay for a house costing around $450,000.00 to $500,000.00 and to borrow around $400,000.00 or $450,000.00 and have a deposit saved. The deposit would be approximately $50,000.00 and on the current trends of their saving $4,000.00 a year, that will take over 10 years.
The mother also proposes that she will place X in a private school in (omitted) or wherever they are going to live. The mother estimates that this will cost about $3,000.00 a year. On their current savings, that will leave them $1,000.00 a year toward their savings.
The mother also suggests that she will be using a private dentist, that she will be organising tutoring and that she will be paying for one half of the cost of travel which cost alone will be a minimum of $1,800.00 each year based on the cost of travel from (omitted) to (omitted) (and not (omitted) to Brisbane, which will be necessary if and when the mother moves to either (omitted) on the (omitted) or to the (omitted)).
In addition to getting to Brisbane as I have said elsewhere in this judgment, there will be road travel of over an hour and longer with traffic delays at peak times in either direction; north to the (omitted) or south to the (omitted).
If the mother’s plan of paying for private schooling for X at $3,000.00 a year, together with paying one half the cost of air travel estimated at $1,800.00 to cover her share of flights for a year, those two items alone totalling $4,800.00 exceed the amount that the mother and her partner have been able to save each year.
The mother proposes as I have said paying for private tutoring for X saying to the Court that if X lived with her, he would do better than he was currently doing because, “I would have a tutor for him.” Disregarding for a moment whether or not tutoring is even required, it is the mother’s plan based on quotations she obtained from a company known as (omitted) (the qualifications of the tutor are completely unknown) and the estimated hours of tutoring that the mother was indicating to the Court that she would be undertaking was 100 hours of tutoring for a total cost of $8,300.00 (consisting of $4,500.00 for 25 hours of maths and $3,800.00 for 75 hours of reading). The mother put forward a quote of $168.00 per week. These costs are entirely beyond anything the mother could afford herself. On the current income and expenditure of herself and her de facto partner, noting the amount of savings each year of some $4,000.00 which is going to be insufficient to pay for even airfares and private school fees, it is difficult to accept that the mother and her partner are going to seriously consider paying another $8,300.00 per year for tutoring. On the mother’s case she also intends to pay for a private dentist. The real costs of what the mother is proposing is not affordable for the mother either on her own or with the financial assistance of her partner.
The mother has not factored in to her cost of travel that it may be that X needs an accompanying person on the flights for a year or two until he becomes older.
When X lives with the father I note that the father has always made arrangements for X to remain in contact with the mother during the school holiday periods and that he has borne both the burden of travel and the cost almost exclusively. I am satisfied that if X remains living with the father that there will not be any financial impediment to him maintaining a relationship with the mother. I am not confident that the mother’s proposed plans for travel, like some of her other plans, are really soundly based nor am I confident that her plans are financially sustainable, particularly when the move to Brisbane make any road trip significantly longer, it being just on 2,000km from (omitted) to Brisbane. Whilst the mother does not propose a road trip, if she does not have funds for an airfare, this needs to be considered. As I have said, the father has done all of the travelling to and from (omitted) to date.
During cross-examination the mother was asked whether or not she had contemplated moving to (omitted), given that her de facto partner could fly in fly out from (omitted) and it was suggested the mother, X and Y could build a life in (omitted) which could include very regular time with X. The mother discounted this suggestion and said that she had family in Brisbane. In fact she has a grandmother in Brisbane. Her de facto partner’s parents do not live on the (omitted) but it seems live on the (omitted). The mother was very clear in her view that she would not be relocating to (omitted). In some respects this resistance to moving closer to X given her current circumstances and that of her de facto partner is difficult to rationalise given the mother’s assertions that she will never give up trying to get X back. The mother and her partner are clearly contemplating relocating and the mother admitted that they are undecided as to where they will ultimately live. At one point the mother gave evidence that they would try living at the (omitted), but if that didn’t work out they would move to the (omitted). When it was pointed out that that would mean yet another change of school for X, the mother would only add that she did not really want to do that.
One of the mother’s reasons for not wishing to move to (omitted) was that if she moved to Brisbane would be closer to her family however her evidence was remarkably vague about where it is that her family members actually live. There was little understanding on the mother’s part of the distances from the northern suburbs in Brisbane to the southern suburbs, or the distances from Brisbane to the (omitted) or the (omitted).
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that the father is a loving father who has been a single parent for making years, who has been providing for the needs of X for many years now. I am satisfied he is able to provide for X’s safety and well-being, his physical requirements, medical, emotional and educational needs. I am also satisfied that the father has shown a good understanding of X’s strengths, frailties and understands why X would wish to live with his mother at some point in his life. The father is not the father that the mother portrays in her affidavit material; that is a father who is struggling in all respects. I consider the father is child focused and that he has X’s best interests at heart, including accepting unreservedly the important role of the mother in X’s life and the evidence shows the steps constantly taken by the father over many years now to promote and nurture that relationship.
The mother is a loving mother and she has undoubtedly had some wonderful holiday experiences with X. I have an impression that she goes out of her way when X stays to make sure that he has an enjoyable time at the movies and other child appropriate experiences.
In terms of being able to provide for X’s emotional needs, I am critical of the mother for her unilateral holding over of X and the manner in which the mother secretly engaged in this holding over, which was contrary to all agreements she made with the father. When X was sent to the mother for a holiday in (omitted) in June 2012 she already knew at that stage that she was going to hold X over. The mother made it difficult for the father to serve his documents which sought orders for her to return X to what had been a long-standing arrangement where he lived with his father in (omitted) and attended school in (omitted).
The mother even involved X directly into her secret plans by asking X on 5 July 2012 to speak directly with the father by phone and during that conversation X said to the father, “I am living with mum now. This is my home now. Things will be the same, but visit you on school holidays. If I come and see you, you have to send me back to mums.”
I consider that the mother exercised very poor parenting judgement engaging X directly in the midst of this parental conflict and dispute and that the mother showed no regard for the pressure she placed upon X in essentially having him broker the new living arrangements with the father.
The mothers unilateral holding over was done according to the mother on the basis that, “I told Mr Rice that I had decided that he was no longer going to dictate where X was going to live.” The mother said that she understood that because there were no orders in place, she had every right to withhold X. Whilst the mother acknowledged that in retrospect it was a terrible decision and that she should have bought an application to the Court, I nonetheless consider that the mother’s conduct in holding X over contrary to the long-standing arrangement she had in place with the father was extremely opportunistic and designed to simply take matters into her own hands regardless of the consequences upon X. She made a significant and intended permanent change to X’s life by simply uprooting him on the premise of having him for a holiday and then removing him from his school in (omitted) and enrolling in another school, removing him from the home he had been living in for four years without notice to X and without time for X to say any farewells. The mother expected X to simply fit in to a new home, a new city, a new school and cease living with his father by introducing a swift and abrupt change in the manner which she did. I consider that the mother placed her own desire to simply reclaim X above X’s emotional well-being. She also showed callous disregard for the loving relationship that is obviously in existence between X and his father. In engaging X as a spokesperson by having X announce to the father that he is now living with his mother and would be spending time with his father, was to overload X with adult issues and place him in an intolerable position between the two people he loves most in the world being his mother and father. Clearly, the mother had secret discussions with X on this topic, without the father’s view being acknowledged. I am most critical of the mother for engaging in this conduct and I consider it reflects very poorly on her capacity as a parent, on her parental responsibility and attitude towards parenting.
When the mother had X in her care it is also apparent that she took him to various places in order to gather evidence to justify her unilateral holding over and changing X’s residence from the father’s to her own. There is nothing about the education of X that would suggest he is in need of tutoring and nothing to suggest that his education is not being promoted and supported by the father. The mother ultimately admitted that this was the case at the end of her cross-examination. I do not regard the fact that the mother obtained a quote from a private dentist to do some dental work as evidence that the father is a neglectful parent. The father has attended to X’s dental requirements and X regularly attends at the school dentist.
The mother’s and her partner’s complaints that X is not leading a social enough life are not supported by the facts and are baseless allegations. It was only at the very end of the cross-examination that the mother finally had to admit that the father has been doing a good job of parenting X and that he loves X very much. This concession ought to have been made much earlier.
An issue of great concern to the Court overall in terms of the mothers capacity to parent is her failure to accept and value the father’s role in X’s life and importantly, X’s loving relationship with the father.
The mother has it seems held on to resentment toward the father for the way in which the parenting arrangements unfolded at a time when the mother was very young and likewise so was the father. The mother has deep regrets about her not parenting X as she might otherwise have done if the parties had stayed together and if she had not been so young at the time of X’s birth. The Court is not determining the parenting arrangements for X based on the mother’s regrets. In the years that have unfolded since 2007, the mother has continued to agree that X could live with the father, including agreeing that the father could relocate to (omitted) with X. There is however no sign in the mother’s material or in her oral evidence or attitudes shown that she appreciates at all, the hurdles that the father faced in being a solo parent for all these years and the efforts he has gone to provide for X. The mother expresses criticisms rather than gratitude and the Court finds this attitude very perplexing and is concerned about the mothers strongly held negative views about the father and the long-term effect this will have on the relationship between X and the father. In the event that the mother has significant influence over X, which will occur if X is living primarily with the mother, the effect of the mother’s strongly held views will likely undermine X’s current strong relationship he has with his father.
There has been evidence throughout the trial also of the mother over involving X in her quest to have him live with her going back some years, including when X started to believe that it was going to be “dangerous” for him to live in (omitted). This conduct on the part of the mother is seen more recently in her decision to unilaterally withhold X contrary to arrangements with the father and to enrol him in school in (omitted) without reference to the father. Whilst I have no doubt that this mother loves X deeply I consider she has made some very poor decisions in relation to X.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant-
I have nothing to add under this section.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that the father has attended to all of the responsibilities of parenthood including providing shelter, food, safety, social life, appropriate education and stability for X. The father said back in 2007 when he was interviewed by the Department of Child Safety that he does not drink or take drugs and there is no evidence that his parenting has been affected by either of these substances. Historically whilst there was a finding by the Department that the concerns were substantiated back in 2007, a decision was nonetheless made that X was not a child in need of protection. This was because the father was a parent willing but not presently able to meet all of the care and protective needs of X and that the father was willing to engage with appropriate services to provide him with the education and knowledge he needs in order to provide the best care he can for this child. It is the Court’s impression that the father adopted the recommendations and referrals offered by the Department and that his parenting improved as a result and from that time on, he has continued to grow as a parent.
I am also satisfied that the father has done this under extreme pressure over many years and that at times he has put X’s interests above his own and struggled financially and personally to do this.
During the course of the trial the mother made complaints about matters of dental health and education; however it was very clear that she had not pursued any serious concerns about the child’s education even though she had the ability to contact the school and discuss any alleged issues. There were assertions which are not borne out by the evidence by both the mother and her partner that X was having trouble at school or having difficulty reading, however ultimately these “concerns” have not been supported by the evidence. In fact ultimately the mother admitted that X was doing well enough at school and his reading had improved.
The mother launched into a litany of complaints about the father in her Affidavit material and after it was apparent through cross-examination that none of these issues were of any great concern (in fact most of them were exaggerated by the mother) only then did the mother finally admit that the father loved X and he was a good father. I have a strong impression that the mother justifies why she has not been mothering X for many years by laying the blame for this with the father and suggests that effectively X was taken from her and that the father has been dictating the arrangements.
This is not the case. The mother has really rewritten the history of X’s arrangements and it is time for the mother to accept that for many years now the father has been developing his parenting skills through hands on experience and that X and the father have been a happy family unit for years and that the father has been, by agreement with the mother, the primary parent. It is clear to the Court that the time that X has spent with his mother which has been not inconsiderable consisting of most of the school holidays each year, has been time that X has cherished. It has been sufficient time to enable the mother and X to maintain a loving and close relationship. The mother ought to accept that this would not have occurred had the father being critical of her as the mother or attempted in any way to undermine her role as the mother. The Court is confident that whilst X lives with the father he will always have a positive, close and loving relationship with the mother and through her with Y and whilst they are together, with Mr A.
Given the mother’s barrage of criticisms about the father, many of them going back to the days when the mother and father were in their teens, and given that the Court does not accept the myriad of complaints made about the father’s parenting, the Court has no confidence that the father’s relationship with X will remain intact in the event that X lives primarily with the mother. The mother has shown that she is prepared to act quite ruthlessly by holding over X contrary to the long-standing agreement with the father, not for any real concern about X’s welfare but rather, because the mother has decided that it is time for X to live with her. The Court cannot be sure that the mother would in any way genuinely encourage a relationship between X and the father given her attitude toward the father and her willingness to engage X to achieve the ends that she sought. The mother’s decision to place X in the middle of the conflict between herself and the father gives the Court great concern about the lengths the mother is prepared to go to to have X live with her, despite the emotional damage that might be being caused in the process.
Whilst the mother has stated how heartbroken she is not to have been raising X for many years now, it is also true that she has never brought an Application for changing X’s residence. She is not in the Court today as an applicant, the mother is here as a respondent initially to an order for the return of X. If there were really such pressing issues with the father’s parenting, the mother failed to ever bring these matters to the attention of the Court and seek orders. I note also that the mother makes her own choice even now about the location in which she chooses to live and that she is intending on moving further away from where X lives and does not contemplate relocating to (omitted) in any circumstances.
In terms of attitude towards parenting I am satisfied the mother has been quite prepared to leave the parenting to the father and to spend holiday time with X and that the mother has been content enough to do this since around 2007 when she handed the care of X over to the father. To this extent I am satisfied that the mother has left the bulk of the parenting on a day-to-day basis including organisation of schools medical issues, a social life and his overall wellbeing squarely in the hands of the father. That does not diminish the rewarding and loving times that X spends with the mother. As I have said his current relationship with the mother is evidence that this relationship has been nurtured and encouraged by the father.
In addition to what I have said elsewhere in these reasons in regard to the mother’s demonstrated attitude toward parenting, I consider that it is hypocritical of the mother to assert that she is a superior parent to the father. Never was this more apparent than when the mother was asked by Mr Victoire of Counsel for the ICL that if the father is a good parent and X enjoys living in the environment in (omitted), why is it that an order should be made changing the living arrangements of X? The mother replied, “well firstly Mr Rice – I feel that Mr A and I are better role models for X. We don’t lose our licences. We can hold down our jobs. I would have more time with X as I would be working only in the times that X would be at school so I would have more time for X than Mr Rice does. There wouldn’t be any after-school care or anything like that. X is very close to Y, I would love to see the relationship blossom. We – we are in a better financial position than Mr Rice.” And later, “together Mr A and I earn more money than Mr Rice.” The mother was untruthful in her evidence that, “we don’t lose our licences.” The evidence of her current partner was that about five years ago he had a speeding fine and lost his licence.
In terms of being better role models, the mother omitted to tell the Court that her partner Mr A has been involved in criminal activities. Mr A was asked about his criminal history and said that probably about 10 years ago when he was about 19 years old he was charged with unlawful wounding and that basically he was a get-away driver assisting others who got into some sort of scuffle, some of whom ended up with a wounding charge. Mr A said there was a fight and that basically he was the get-away driver. Mr A said he has an unlawful wounding charge; there was no conviction recorded and he served community service.
In relation to the mother suggesting they are better off financially, this really refers to money earned by the mother’s partner. I have already made reference to the income of Mr A and the limited amount of savings that have been made over a three year period on that income. The father whilst he may not have as high an income, has various ways of earning an income and business plans to commence his own business and funds in the bank. Instead of being congratulated for saving money over some years and for his work ethic, the mother chose to accuse the father of being a drug dealer.
I am quite satisfied that the father is and can provide financially for X on a day-to-day basis and that he is not living in a situation of poverty such that the Court would consider it was necessary to change his living arrangements because his basic needs are not being met. If the mother thought that the father was in financial difficulties, it would have been prudent for her to offer to pay some of the costs of raising X which she has not done. The mother does not contribute child support towards X.
The mother, who has her child Y in full-time day care, has plans to study however at the point of the trial she is in no position to assert that she has any degree of financial superiority over the father even if this was a relevant consideration. She is wholly dependent on her de facto partner other than receiving family allowance benefits. I must say I consider this suggestion by the mother to be extremely superficial. What the mother has done in her quest to have X live with her is to rely on the income of her partner to suggest that she will pay for various expenses, some of which she has not even discussed with the de facto partner according to his evidence. I have referred elsewhere in these reasons to the mother not being able to afford most of the proposals she has put forward and even with the income of her de facto partner, there is no sustainability about the mother’s financial proposals.
I do not accept the mothers assertions that she will always be home in the future after school and that this is a positive benefit for X. The mother is presently studying to obtain work and I consider this to be simply an assertion about what might or might not happen in the future. I consider that each of these parties are still young parents and they are each sorting out their lives and embarking on new areas of work or business and that neither of them can really say with any confidence what their day-to-day arrangements will be in a year or two’s time. This is particularly so for the mother as she will be attempting to work and also provide for Y and his special requirements and I consider that it is, as I have said, nothing more than speculation about what the after-school arrangements will be in the future.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; and
S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
(v) any other relevant matter.
Family violence has not been a significant issue in this matter. There appears to be a single incident after the mother and father broke up back in 2005. The Police records show that the mother reported:
“Her ex-boyfriend was intoxicated and threatening to harm her and that the aggrieved said she broke up with the respondent today after a four-year relationship and the respondent is taking it hard. She stated he came home drinking and started threatening her and started punching trees. The aggrieved stated that she and the respondent have a son X who was asleep in his bedroom at the time of the incident.”
The Police detained the respondent and he was transported to the watch house where a Domestic Violence Order was sought. The father at this trial admitted that he punched a tree. The Police note there was no threats made to harm the child. The father denied that he threatened the mother but admitted he did yell at her and explained to the Court that at a difficult time in their relationship in 2005, he came home to find another male’s car in the driveway. He became angry, and locked himself in the bathroom. Ultimately, the male left and the father stayed in the bathroom and drank vodka and then went outside and punched the trees. The father admits to yelling at the mother and telling her he was very upset. He says there were a lot of financial stresses they were each under at the time that were causing them lots of worries and he was yelling at the mother about money as well. The father said this all occurred after he had worked a 13 hour day.
It also appears that at the end of 2005 the mother and child relocated back to the (omitted) where the parties resumed their relationship but not cohabitation. It appears as though there was a Domestic Violence Order taken out however there is no actual Domestic Violence Order in the material. The mother’s evidence is that a 12 month Bond was made against the father and the father’s evidence was that he did not attend court and did not ever know what the outcome was.
I do not consider that family violence is a significant factor in 2014 in X’s living arrangements. It has been a one-off incident at a time when the relationship broke down and as I said, in 2005 the father was 19 years old and the mother around 17 years old.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The mother’s future arrangements are very fluid and uncertain. The father has a set plan and he can offer significant stability for X in the future as he has done in the past. The mother’s life is still unfolding with her new partner and that their relationship is not yet at a point where they wish to make it a permanent relationship. They have the pressure of a new child and they are deciding where they would like to live and taking into account their own preferences in terms of wanting to be closer to their respective families or the beach as the case may be.
This being the case I consider it likely that the mother’s living arrangements may continue to change in the foreseeable future and these changes will be significant for X. It’s possible that the uncertainties which lay ahead for the mother may lead to the institution of further proceedings in the event that X is not coping with what is ahead of him in terms of future continuing changes in living with the mother.
In making orders for X to remain living with his father there will be less likelihood of further proceedings as I am confident that the father will negotiate with the mother sensible arrangements about having X attend for holiday times wherever the mother and her new partner choose to live.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant
In the orders that the Court makes I consider that it is imperative that X be able to enjoy some holiday periods with the father which the mother has never agreed to in the past. Wherever the mother is living and whether X lives with the mother or father, X is entitled to enjoy not just school days and weekends with the father, he is entitled to enjoy holiday periods with each parent, as typically families engage in holiday activities in longer periods of school holidays than is possible on the weekends. I consider that it would be in X’s best interests to have the opportunity to enjoy such times with his father and also as the father has been wishing for some years, to take X to visit his own family during the holidays.
60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied that it is of considerable benefit to X to have a relationship with both of his parents. All of the material including the Family Report suggests that X has a close and loving relationship with each of his parents and they with him. I am satisfied that the orders this Court makes ought to reflect that loving and close relationship as best it can, given the distances that will inevitably be in play between where the father and mother live.
In terms of protecting X from physical or psychological harm or being exposed to abuse and neglect or family violence, I do not consider that X is at any risk of child abuse or neglect or family violence in the home of either parent. Essentially each of these parents are good parents and each could provide for X in terms of day-to-day needs.
A factor which has emerged during the course of this trial and after hearing the mother and her partner being cross-examined and which is not acknowledged at all in the Family Report, is the demeaning attitude of the mother and to some extent her partner towards the father and his role in the life of X. The mother has accused the father of being a drug dealer and she has falsely accused him of being an inferior parent and criticised him in relation to being unable to provide for the health and education needs of X, criticisms the Court has not accepted.
Another issue that the Family Report Writer does not acknowledge is the mother’s conduct in abruptly severing the relationship between X and the father and that the mother did this contrary to a long-standing agreement with the father. The Family Report Writer makes no mention of this holding over and the mother’s sense of entitlement which led to her doing this. The Family Report Writer is not aware of the evidence that many of the issues raised by the mother and in particular issues of health and education have not been upheld by the Court as valid concerns. The mother’s “concerns” were not borne out by the facts. The conclusion therefore by the Family Report Writer Ms L that, “the writer gained the impression Ms Pettit’s style of parenting is of a higher order: she promotes an environment whereby X’s cognitive skills are nurtured and his sense of competence and self-fulfilment is fostered. This also promotes a sense of love and belongingness for X” is not accepted by the Court as it does not accord with the findings of the Court.
The Report Writer, whilst alleging that the mother is concerned with the child’s education is not aware that the mother cannot afford the tutoring and nor does she seem to be aware that the mother has acknowledged that X is now doing well at school. I have heard the mother’s evidence as to why it is that she is a superior parent and that largely revolved around herself and her partner Mr A earning more money, being better role models and not losing their licences. I have already referred in these reasons to Mr A’s criminal history as recorded in police records and his loss of licence. I have already referred to the mother’s proposed provision of private education, private dental care and private tutoring as being beyond even the financial means of her de facto partner, noting that all of these issues are beyond anything the mother could afford. The Report Writer seems to have been impressed by the mother’s proposals for further education in tutoring; however the Court is aware that these proposals are unsustainable.
In addition there is no evidence that X needs tutoring and the Court considers that these attempts by the mother to suggest that X would have a completely different life with her in (omitted) and now in either the (omitted) or the (omitted) are not validated. The Report Writer also in her report does not seem to acknowledge that the mother’s plan is to move to the (omitted) or the (omitted); both are fluid and uncertain. The Report Writer also does not seem to be aware that the proposals for the mother to pay one half of airfares from either of these destinations is not financially sustainable at all by the mother and will be dependent upon the mother’s partner earning sufficient funds to pay for this cost, in addition to the costs of raising his own family and buying the proposed new family home.
Not only do I consider that the mother does not have parenting skills of a higher order than the father as originally suggested by the mother, the Court has genuine concerns of the mother’s long held resentment of the father and of her inaccurate recounting and perceptions of the history of this matter and how it was that X came to be living with the father.
This Court does not accept that the father dictated all the terms of the parenting arrangements and that the mother has been powerless to do anything about it for years. Under cross-examination the mother admitted that she has never asked for any more time with X other than that provided by the father and she admitted she has never ever travelled to (omitted) to spend time with X.
Section 61DA - the presumption of Equal Shared Parental Responsibility
In this matter each of the parties including the ICL request an order for equal shared parental responsibility. I am satisfied that the presumption of equal shared parental responsibility applies given that there is no evidence of child abuse or family violence that would suggest to the Court that the presumption ought not to apply. I am satisfied that these parties have the requisite capacity and ability to communicate with each other about issues to do with the long-term decisions that need to be made about X. I am also satisfied that it is in X’s best interests that each of his parents, who I consider have much to offer X, be involved in making joint long term decisions for X in the future. I therefore intend to make an order for equal shared parental responsibility.
If the Court makes an order for equal shared parental responsibility the Court is required to consider whether it is in the best interests of the child and reasonably practicable for an equal time arrangement. In this matter the parents live approximately 1,000 km apart and the mother is intending moving to a location which will make that 2,000 km apart. Clearly, it is impracticable for this child to live on an equal time arrangement given the distance between the father and mother’s households. The father has indicated that he is not able to move to (omitted) or the (omitted) and as I have said, the mother’s plans are quite fluid and the mother may end up living on the (omitted) or the (omitted). The mother has indicated that she is not going to live in (omitted).
In turning to consider whether an order should be made for significant and substantial time, the same considerations apply. In essence, the difficulties associated with travel ultimately dictate the time that X can spend with the non-primary parent.
In turning then to what orders are in the best interests of X, at the commencement of the trial the ICL provided a case outline that indicated basic support for the proposal of the Report Writer of 30 April 2013, as referred to in the Family Report. That recommendation was that X should live with the mother and if the parents were to reside in close proximity with each other, then X was to spend time each alternate weekend and one half of the holidays with the father.
At the conclusion of the trial, the ICL supported a continuation of the long standing arrangement of X living primarily with the father and spending holiday time with the mother. The view of the Report Writer at the conclusion of the trial changed after hearing about some of the evidence given by the mother which was quite different to assertions in her affidavit and reported in the Family Report. The Family Report Writer’s recommendation ultimately changed and she no longer supported a change of residence for X. Ms L’s recommendation was that X should live with the father and continue to spend time with the mother during school holidays and any other time the mother came to (omitted).
The Court has considered each of the relevant section s.60 CC matters together with the primary considerations. In terms of the competing proposals of each of the parents, whilst I note that the wishes of X are to live with his mother, I am satisfied that, even allowing for these views, there are other significant more pressing issues that are of concern to the Court which are beyond X’s understanding. In terms of X’s wishes I also consider that given that X has never lived with his mother and noting his age and the wonderful times he has on holidays with his mother, that there is force in the submission of the ICL that X has had plenty of good times with his mother and does not yet have the maturity to understand that living with her on a full-time basis would not be like being on a permanent holiday.
In terms of the capacity to parent and the attitude towards parenting, as is evident from my reasons the Court has significant concerns about the mothers artificial air of superiority as a parent and her derogatory attitude towards the father as seen in her criticisms of all aspects of his parenting which have not been upheld by the Court. It is seen also in the mother’s fixation that because the father has saved up money he must be a drug dealer. There is unfortunately a superficial attitude toward parenting shown by the mother in that she seems to believe that a parent with financial strength is to be preferred to a parent who has less income or assets. What makes the mother’s assertion in this regard even more tenuous is that she does not have the wealth that she purports to have; rather her de facto partner has an income which is supporting himself, the mother and their young child Y. As I have referred to elsewhere, I am not satisfied that the mother, who up to this point has made no financial contribution to the father for the ongoing costs of raising X, has the financial capacity to sustain any of her proposed plans. It seems to me on the material before me that it will be a stretch for the mother herself to pay one half of any airfares based on her own income and it will only be through the ongoing agreement of her de facto partner that this could occur. I am satisfied that the father, who has been solely responsible for the travel and cost of travel, would continue to ensure that X had holidays with the mother, whereas I have no confidence that the mother would ensure that X spend time with the father, given her financial situation and noting she has not contributed to costs in the past.
The mother’s vehement criticisms of the father’s parenting are also inconsistent with the mother’s decision not to ever bring proceedings in relation to X despite these alleged concerns. The mother’s decision never to travel to (omitted) to spend any additional time with X when the mother could have easily done so whilst living in (omitted) is also a puzzling decision by the mother if she truly believed that X was in need of her or if he was truly being parented so poorly by the father.
Overall, the court is of the view that the mother’s application was more about her regret and sorrow about not raising X which she has carried with her since X was a toddler and since agreeing that X could live with the father back in 2007. The Court’s consideration is about what is in X’s interest in the long term. The mother’s regrets about past choices and decisions are not matters which shape X’s future arrangements. The mother should know she is a much loved mother, even though X has not been in her primary care.
Having considered the proposals of the mother and father I am satisfied that the best interests of X are served by an order that sees X remain living with the father and spending time with the mother during the holiday periods as proposed by the father. I am satisfied that this proposal will enable X to continue his loving and meaningful relationship with his mother and it will enable X to continue his sibling relationship with young Y. The Court has suggested to the mother that Skype contact in lieu of phone contact would enable both the mother and Y and to actually see X and thus enhance their regular opportunities build their relationships.
Overall, I am satisfied that each of the mother and father are good parents in their own right and that they each have much to offer X. Importantly, the Court is satisfied that the orders made at the conclusion of this hearing which are supported by the ICL are orders which will enable X to achieve his full potential in life which will include having a healthy, loving relationship with both of his parents.
I consider that X should spend time in each of the school holidays with the mother, and that skipping a holiday between Easter and June by not having time at Easter is too long a break. I do not intend to order that all of the travel for X is to be by air, as the father has traditionally driven to and from (omitted) and may wish to do so to the (omitted) as he has in the past driven on to Brisbane. Rail is also an option for the father. Each of the parties have indicated they are not going to move to live in the other’s city, so I do not intend to make orders as to what should occur if they live in the same town. The Court is satisfied however, that the order which is in X’s best interest is an order that he lives primarily with the father.
I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Willis
Associate:
Date: 12 August 2014
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