Robson and Johns
[2008] FMCAfam 721
•4 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROBSON & JOHNS | [2008] FMCAfam 721 |
| FAMILY LAW – Interim orders – parenting proceedings – relocation from Central Coast to Port Macquarie by mother and child – father to have supervised time with child at Interrelate in first instance – best interests of the child. |
| Family Law Act 1975 (Cth) – Part VII |
| B v B; Family Law (Reform) Act 1995 (1997) 21 Fam LR 676 D & SV (2003) 30 Fam LR 91; FLC 93-137 Taylor & Barker [2007] Fam CA 1246; (2008) 37 Fam LR 461 |
| Applicant: | MR ROBSON |
| Respondent: | MS JOHNS |
| File Number: | NCC 1398 of 2008 |
| Judgment of: | Coakes FM |
| Hearing date: | 1 July 2008 |
| Date of Last Submission: | 1 July 2008 |
| Delivered at: | Newcastle |
| Delivered on: | 4 July 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Sullivan |
| Solicitors for the Applicant: | Turner Freeman |
| Solicitor for the Respondent: | Ms Olesen |
| Solicitors for the Respondent: | Craney Family Lawyers |
ORDERS
The child [A] born in 2006 (‘[A]’) live with the mother.
The parents MR ROBSON and MS JOHNS have equal shared parental responsibility for [A].
The mother is restrained from changing the place of residence of [A] to a place outside [Z] (near [Y] New South Wales) or the township of [Y] New South Wales or the township of Port Macquarie New South Wales without the leave of the Court unless it is to a place to the south of Port Macquarie and closer to the district where the father is living.
[A] is to spend time with the father supervised by Interrelate at Port Macquarie.
Each party must;
(a)Contact Interrelate (‘the Contact Centre’) within seven (7) days and arrange an appointment for assessment for suitability for supervision of [A] spending time with the father;
(b)Attend the assessment, by telephone if not accessible to the Contact Centre;
(c)Comply with any appointments made by the Contact Centre for supervised time;
(d)Comply with all reasonable rules of the Contact Centre;
(e)Comply with all reasonable requests or directions of the staff of the Contact Centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in Order 5 above then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
If the Contact Centre recommends the parties or either of them participate in a program or programs, either party or the Independent Children’s Lawyer may relist the matter for mention on three (3) days notice.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the father is to have contact with [A] each alternate Saturday or Sunday as nominated by the Contact Centre and at times nominated by the Contact Centre and such contact is to occur at the Contact Centre at Port Macquarie.
The mother MS JOHNS or her nominee known to [A] is to deliver [A] to and collect [A] from the Contact Centre at the time specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
The time [A] spends with the father under Order 8 above is to be supervised by the Contact Centre and each of the parties must pay one half of any reasonable fees for the supervision on each occasion of supervision.
The father must not attend the Contact Centre or its vicinity before the time with [A] is to start and must promptly leave the contact centre and the vicinity at the time his time with [A] is to end.
If the Contact Centre during the currency of these Orders declines or is unable to continue to provide its services, or the director of the Contact Centre recommends in writing to the parties a variation of these Orders, then either party or the Independent Children’s Lawyer may on seven (7) days written notice to the other party and the Court restore the matter to the list.
The period of time provided with the child in these Orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.
The Independent Children’s Lawyer is to obtain from the Contact Centre in time for the pre trial directions hearing on 13 October 2008 a report as to the fathers time with the child at the Contact Centre and his ability to parent [A].
A sealed copy of these Orders is to be forwarded by the Court to the Contact Centre.
Nothing in these Orders precludes the parties from agreeing in writing as to the father spending any additional time with [A] under conditions agreed between them, or in absence of agreement by the mother.
Each of the parties is required to notify the other within forty eight (48) hours of change of residential address, landline telephone number and mobile telephone number and advise the other of the new particulars in each such case.
The mother is to inform the father as soon as practicable in the event of any of the following events occurring:
(a)[A] being admitted to hospital;
(b)[A] being involved in an accident in which she receives injury;
(c)[A] being taken to a doctor for emergency treatment following illness or being treated by an ambulance crew.
The mother is to inform the father as soon as practicable upon admission to hospital for confinement and is to cause the father to be informed through her solicitors of the arrangements made for the care of [A] during such confinement.
IT IS NOTED that publication of this judgment under the pseudonym Robson & Johns is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1398 of 2008
| MR ROBSON |
Applicant
And
| MS JOHNS |
Respondent
REASONS FOR JUDGMENT
Ex tempore
Introduction
The competing applications before me last Tuesday 1 July 2008 relate to the one child of the parents relationship namely [A] born in 2006 who is now just two years of age.
The parents separated on 1 May 2008 when the mother decided to end their eight year relationship and moved from [X] on the Central Coast to stay with her parents at [Z], a short distance from [Y] and on the mid north coast of New South Wales, some thirty kilometres inland from Port Macquarie.
The mother did not inform the father beforehand of either her proposal to end the relationship or to move with [A] to her parent’s home. The mother says that she did not tell the father she was leaving because she was afraid of his reaction although there is no evidence of what she thought that reaction may be.
It is common ground that the father has not spent any time with [A] since separation on 1 May 2008. There are no existing parenting Orders and the parents had not separated for any significant period before
1 May 2008.
The interim competing applications
In his application filed 30 May 2008 the father asks that [A] live with him and that she spend time with the mother as agreed between them but in the absence of agreement, broadly, until [A] commences school, for one week each month, for ten days at Christmas commencing on
21 December in odd numbered years, and communicate each day by telephone if the mother lives in the Port Macquarie area. If the mother is not living in the Port Macquarie area the father proposes [A] spend time with the mother each week from 9.00am Monday until 5.00pm Thursday and for defined times on Mothers Day, [A]’s birthday and at Christmas. The father also proposes a number of other practical parenting Orders.
The essence of the father’s application is that [A] live with him if the mother elects to remain in the Port Macquarie area. If the mother returns to the Central Coast district the father proposes a shared care arrangement but with a greater proportion of each week spent with him, in other words from 5.00pm Thursday until 9.00am Monday morning.
In her amended response filed on 30 June 2008 the mother proposes on an interim and final basis that [A] live with her within a 100 kilometre radius of the post office at [Y], that [A] spend time with the father for the next two years each alternate weekend for two hours and supervised at the Interrelate Contact Centre at Port Macquarie. The mother asks for Orders that the father enrol in and complete an anger management course and undergo an assessment to assess his use of substance abuse including any codeine based medication and that he also attend upon a psychiatrist for the purposes of obtaining a report as to his present mental health. The mother proposes the father spend unsupervised time after September 2010 for various defined periods, broadly half holidays and special occasions. The mother proposes a number of other practical parenting Orders. The mother also seeks to change [A]’s given surname from Robson to Robson-Johns.
The evidence
I read the affidavits of the father sworn 28 May and filed 30 May 2008, his affidavit sworn 6 June and filed 27 June 2008 and his affidavit sworn 27 June and filed 30 June 2008. I declined to read the father’s witnesses affidavits.
In the mothers case I read her affidavit sworn 20 June and filed 24 June 2008. I declined to read her witnesses affidavits. It is unfortunate it was necessary for me to remind both solicitors of necessary and appropriate evidence to put before the Court in interim parenting applications and to provide relevant evidence to enable the Court to determine arrangements for their young child until the final hearing can take place. It is unfortunate that I was obliged to invoke rule 15.29 of the Federal Magistrates Court Rules 2001 and to strike out substantial portions of both the father’s affidavits and the mother’s affidavit for the reason that the material was either inadmissible or unnecessary or irrelevant and make Orders that the solicitors not charge professional fees for those parts of the affidavits.
General law in parenting cases
So far as the relevant law is concerned I have regard to part VII of the Family Law Act 1975.
The significant sections are, and to which I must have regard, section 60CA which provides that in deciding whether to make a particular parenting Order in relation to a child the Court must regard the best interests of the child as the paramount consideration.
I must consider, in determining a child’s best interests, the matters set out in section 60CC. They are broken down into two primary considerations. First, the benefit to the child of having a meaningful relationship with both of the child’s parents, and second, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
There are a number of additional considerations in section 60CC(3) to which I must have regard in so far as they are relevant and I must also have regard to section 60CC(4) and must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent.
I must also have regard to section 60B which sets out the objects of part VII and the principles underlying those objects. I must have regard to section 61DA which provides for a presumption of equal shared parental responsibility when a parenting Order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence.
The presumption applies when the Court makes an interim Order unless the Court considers it would not be appropriate in the circumstances for that presumption to apply. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the best interests of the child or reasonably practicable, the Court must then consider making an Order, if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (section 65 DAA).
It is also necessary for me to consider in the context of this case established case law in relation to relocation and the effect, if any, of the amending legislation, that is the Family Law Amendment (Shared Parental Responsibility) Act 2006 which came into effect on 1 July 2006.
It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention them either in part VII as it was or pursuant to the amending Act. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[1]
[1]Paskandy & Paskandy (1999) 25 Fam LR 607; FLC92-878 (paragraph 40)
The father’s circumstances
The father lives in the jointly owned family home at [X] on the Central Coast which became the family home in May 2004. The home is heavily mortgaged and is presently listed for sale. I was told that there is unlikely to be any surplus from the proceeds of sale and in fact there may be a deficit.
The father has been employed for the last seven and a half years in the field of Information Technology with the same company and is on a salary of about $90,000.00 per year. The father is able to perform his work from home two days per week and has other flexibility as to the hours during which he can work from home. He otherwise travels to Sydney for the remainder of his working week and drives to and fro for that purpose.
The father has retained the one family motor car.
In late 2004 the father was diagnosed with ADHD and prescribed dexamphetamine. By March 2006 the father concluded his prescribed dose of dexamphetamine was unsuccessful and increased his dosage without medical advice. Instead of taking two tablets he was taking between three and five tablets which he thought calmed his symptoms and enabled him to remain focused, but he concluded he was becoming addicted to dexamphetamine and felt that he was having mood swings.
The father describes [A]’s birth as being very traumatic for the mother with [A] being very small. It would not be surprising if the birth of [A], their second child, was an intensely emotional experience for each of the parents given that in December of 2001 their first child [B] was born prematurely and perhaps not surprisingly caused both parents emotional difficulties consequent upon his death.
By December 2007 the father concluded that the dexamphetamine prescribed for him was no longer effective and that he was becoming more addicted to such medication. After consultation with his doctor, the father commenced a different medication but suffered withdrawal symptoms from the dexamphetamine including tiredness, anxiety, aggression and moments of depression. The father also admits to use of marijuana which he asserts he no longer uses.
At the end of April 2008 the parents were shopping in their local supermarket when an argument ensued about certain items which the mother wanted and the father thought were either excessive or unnecessary. [A] was with them. The parents argued and the father left the supermarket without [A] and declined the mother’s subsequent telephone requests to return suggesting that she meet him at the car. The father turned off his mobile phone but after waiting for about twenty minutes and not being able to communicate with the mother sent her an SMS message saying:
“Are you coming? Or I am leaving”
The father then left the vicinity of the supermarket and returned home after a further twenty or thirty minutes. On arriving at home he sent the mother a further SMS message saying:
“If you don’t call or pick up the phone I will cancel your phone now”
The father thought the mother would be worried about her telephone service being cancelled and would return his call but did not do so.
I find on the admissions made by the father as to this incident that he lacks insight into the necessity to put [A]’s needs before his own. The father was controlling in his behaviour toward the mother with no regard to the consequences for [A]. The mother says that she was left in the supermarket without money to pay for the groceries and was obliged to call her mother and then a neighbour to collect her and [A]. Whilst the father subsequently apologised to the mother that does not excuse his conduct.
During one of the telephone conversations following separation the father proposed visiting the mother in the [Y] district and spending time alone with [A]. The mother required either that she or her parents be present, neither of which was acceptable to the father. The mother apparently feared the father may abscond with [A].
It seems to me that both parents were being unreasonable as to this proposal and did not take into account [A]’s best interests. The father could have spent time with [A] with the mother in close proximity even though it may have been uncomfortable for each of them. The mother brings no evidence of the father threatening in the past to take [A] out of the country.
The mother’s circumstances
The mother says that she has cared for [A] on a full time basis since her birth in June 2006. The father does not deny this assertion. When [A] was between six and nine months of age the mother returned to part time work in a pharmacy to assist with the household finances. During that time [A] was in day care but when the day care mother could no long care for [A] the mother ceased work and became a full time parent at home.
The mother suffered from post natal depression during 2007 and sought medical advice and treatment. She also saw a counsellor for about twelve months and whom she last saw in March of this year.
The mother asserts that her parents were staying with her and the father on the Central Coast in late April of 2008 because she was suffering from severe vomiting as a consequence of her present pregnancy and she was bed bound most of the days.
Both the mother and the father recount an argument between them at about this time concerning the car seat for [A]. It is common ground that the car seat became a tug of war between the mother and the father at about 5.00am with different versions of what was said and what happened. The mother asserts that the father shoved her with his hand knocking her to the floor. The father denies that assertion but the father says that the genesis of the argument was that the mother proposed to take [A] and go to her parents with the father saying that the mother was not going to take [A] to her parents.
The mother asserts that in the past the father became violent when he had run out of his medication and threw objects at her which the father denies.
The mother asserts that there was other physical violence between her and the father but does not provide any particulars. The mother asserts that the father was unpredictable in his behaviour and reacted aggressively to situations but does not provide any particulars or detailed evidence. Although police have been called on three occasions it is common ground that no action was taken by the police and that no Apprehended Violence Order has been sought by the mother or issued by the police.
The mother does not assert that the father has been physically violent toward [A] although she does refer to two incidents when the father apparently growled at [A] like a dog which the father denies. The father also denies the assertion that he has made derogatory comments of the mother in [A]’s presence, calling the mother a slut or a bitch.
The mother asserts that she has been a full time parent to [A] and is able to continue to do so. Her parent’s home at [Z] is familiar to her as is the district where she currently lives. She proposes to remain living with her parents until she finds accommodation in Port Macquarie for which she is presently looking. She proposes to live in the areas of [W] or [U] or in the town area. She receives a supporting parent’s pension of $552.00 per fortnight and a Family Tax Benefit of $336.00 per fortnight and child support of $200.00 per week pursuant to an assessment which has now issued. She anticipates receiving rental allowance of up to $190.00 per fortnight.
I am satisfied on what I was told by the mother’s solicitor on instructions from the mother that she has sufficient income to support herself and [A] reasonably well.
The mother asserts that she has the support of her parents on the
Mid North Coast as well as friends from school. The mother asserts that if she were to return to the Central Coast she would not have the same support although she has close friends in that district but no family.
Application of the principles and the legislation to the facts in this case
There are many matters in dispute between the parents. It is not possible for the Court to make findings of fact in relation to matters in issue between the parents during an interim hearing which by its very nature proceeds on the papers and is intended to put into place suitable arrangements for the child until the final hearing can take place.
I have not had the benefit of hearing or observing either of the parents give evidence in the witness box and for that reason I am unable to make any findings of fact where there is a dispute between them as to what occurred. I gave limited observations earlier in these reasons as to those matters in which there is common ground as to an occurrence but not necessarily the factual details.
I am mindful of s.60B(1)(a) which provides that one of the objects of part VII is to ensure that the best interests of children are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child.
Section 60CC requires that the Court must consider the benefit to the child of having a meaningful relationship with both of the child’s parents.
The very considerable difficulty I am faced with on the evidence in this case is that I am unable to determine at all the nature of the father’s relationship with [A]. I am unable to make any findings or assessment as to the father’s meaningful involvement in [A]’s upbringing, day to day activities, looking after her health, looking after her daily needs, his activities with her and the nature of his relationship with her.
The only evidence adduced by the father as to his care of [A] appears in paragraphs 27 and 28 of his affidavit filed 30 June 2008. The father’s evidence is that he frequently bathed [A] on a weekend, and on one occasion when the mother was admitted to hospital for about nine and a half hours he looked after [A] during the day and had no difficulty feeding, bathing and playing with her or putting her to bed. Further the father gives no evidence at all of how he would propose to care for [A] if I were to accede to his primary application that [A] live with him.
Consequently, I am unable to make any assessment at all of the nature of the father’s relationship with [A] nor his ability to care for her in the absence of the mother.
It is not appropriate for me to consider [A] spending time with her father in the presence of the mother. Such is their relationship that this would most likely lead to an argument in the presence of [A] and that is not in her best interests.
Whilst it is clear there has been family violence between the parents, it is not possible for me to determine whether such violence has had any adverse affect upon [A].
The mother says the father would help with the care of [A] if she asked him to do something, for example changing her nappy. The mother says that the father bathed [A] very rarely and would rather do something else than feed her.
Since I cannot be satisfied as to the nature of the father’s relationship with [A] I conclude that the only appropriate manner in which his relationship with [A] may continue is for it to be supervised by an independent organisation. Whilst this is not the optimum manner in which a parent should spend time with a child, it seems to me that this will be in [A]’s best interests and I propose to Order that the Independent Children’s Lawyer obtain a report from the Contact Centre as to observations of the father with the child.
It is unfortunate that the affidavits of both parents focused wholly upon the deficiencies of the other.
On the morning of the hearing I referred the parents to a Child Dispute Resolution Conference with Ms Coshaw, a Family Consultant.
A memorandum was prepared by Ms Coshaw who recommended the appointment of an Independent Children’s Lawyer due to the allegations by the mother of the father’s drug misuse, allegations by each parent of poor mental health of the other and allegations of family violence.I have made an Order for an Independent Children’s Lawyer for these reasons and because I could not be satisfied that either parent is able to present a case at a final hearing which deals objectively with the matters that I am required to decide.
As to the matters referred to in section 60CC(3) to which I must have regard, it seems to me that [A] has a close relationship with her mother, which is not denied by the father and that she has the ability to care for her, a further matter not denied by the father as I was told by his solicitor (sub paragraph b).
The mother has not shown a willingness to foster [A]’s relationship with the father since separation and the parents are presently unable, as a consequence of their conflict with each other, to negotiate arrangements for [A] to spend time with the father (sub paragraph c).
I am unable to make any finding as to the effect upon [A] of the separation from her father for reasons given earlier because, quite simply, there is no detailed evidence before me as to the father’s involvement with the upbringing of [A] thus far (sub paragraph d).
There is practical difficulty and expense for the father to spend time with [A] if the mother remains living in the Port Macquarie district but the father has the ability to travel by road, since he has the motor car and I am aware from other cases coming before me involving travel between Sydney, the Central Coast and the Port Macquarie district that there are train services and coach services also available (sub paragraph e).
I am not able to ignore the fact that the mother is pregnant and that she has had a difficult pregnancy in the past. The baby is due in mid September. The mother does not have a motor car or indeed a driving license. She would be obliged to travel by train or by coach to enable [A] to spend time with the father, all be driven by a friend or relative. In all the circumstances I find that is a burden she should not be obliged to bear at this stage.
It seems to me on the evidence before me that the mother has the capacity to provide for the physical needs of [A] and her emotional and intellectual needs, and has been able to do so thus far. I am not able to make any such finding in respect of the father and this will remain for determination at the final hearing (sub paragraph f).
I have referred earlier in these reasons to the poor attitude of the father toward the child and the responsibility to parenthood and no further observation is necessary. Equally, the mother has displayed a poor attitude in removing the child to Port Macquarie without prior notice to the father or considering other alternatives in remaining in the district where she was living (sub paragraph i).
I must also consider whether the parents should have equal shared parental responsibility for [A] (s.61DA). The making of a parenting Order triggers the presumption that it is in the best interests of the child for parents to have equal shared parental responsibility. When the Court makes an interim Order the presumption applies unless the Court considers it would not be appropriate in the circumstances (s.61DA (3)).
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61DA(2)).
Whilst there is evidence before me of family violence, the nature and extent of such family violence as alleged cannot be determined until the final hearing given the denials to which I have referred.
It seems to me that it is appropriate to make an Order for equal shared parental responsibility for the reason that between now and the time of the final hearing, and with the imminent birth of another child, the parents will need to discuss relevant matters concerning [A] and hopefully reach an agreement. On the evidence before me the child to be born in mid September is also a child of both the mother and the father. Whilst I am not confident as to the parent’s ability to communicate effectively I would urge upon them the necessity to do so for the sake of their daughter and unborn child. Their separation is recent, and emotions are still running high. It is to be hoped that with this passage of Court litigation behind them, each will think hard about and put into place constructive discussion. The Court can do only so much. The end responsibility for successful parenting lies with the parents.
As to the issue of relocation, the evidence before me as to the travelling time between [X] and [Y] or Port Macquarie is somewhere between three and a half or four hours. Ms Sullivan told me on the fathers instructions it is a return journey of about eight hundred kilometres.
I do not accept this assertion. It is more likely to be a return journey of six hundred kilometres based on my experience of travel to and from Port Macquarie for circuit work.
Case law before the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 which came into effect on
1 July 2006 establishes a number of principles to be applied in determining parenting applications where one parent wishes to relocate the child’s place of residence[2]. In my view these principles are also applicable to interim parenting cases involving relocation. These principles include the following:
a)The best interests of the child are the paramount but not the sole consideration.
b)The applicant is not required to demonstrate ‘compelling reasons’ for the proposed relocation.
c)A Court must evaluate and weigh the competing proposals of the parties against the relevant provisions of the Act and may, subject to procedural fairness considerations, formulate its own proposals in the best interests of the child.
d)The evaluation of the competing proposals is to be undertaken as part of the overall determination of the issue where the child or children should live – the relocation issue is not a separate issue.
e)That the objects and principles in s.60B (as it then was) informed or guided a Court in applying the criteria relevant to ‘best interests’ (then determined having regard to s.68F(2) factors.
f)A Court will take into account a parent’s right of freedom of movement, but that right must defer if the welfare of a child would be adversely affected.
[2] B & B; Family Law (Reform) Act 1995 (1997) 21 Fam LR 676
In the case of Morgan v Miles [2007] FamCA 1230 Her Honour Justice Boland sitting as the Full Court of the Family Court[3] considered the effect upon interim parenting cases involving a relocation, and the principles to be applied, after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006. Her Honour at paragraphs 80 and 81 said this:
[80] “It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and my himself or herself be required to formulate proposals in the child’s best interest; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
[3] Morgan v Miles (2008) 38 FamLR 275
remain valid.
[81] What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility.
But there is not specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determine in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s.60CC factors, and hen applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.”
Since I have found that it is appropriate to order equal shared parental responsibility I am required to consider whether it is in [A]’s best interests to spend equal time with each of her parents and whether it is reasonably practicable (section 65DAA (1)).
This is not a case where it is in [A]’s best interests to spend equal time with her father. For the reasons given earlier, I am not satisfied as to his ability to appropriately look after her without the assistance of the mother or indeed any other person, and the father is silent as to his proposals pending a final hearing. The father makes no proposal to move to the Port Macquarie district and the mother does not propose to move back to the Central Coast.
I must then consider whether substantial and significant time with each of the parents would be in [A]’s best interests (s.65DAA (2)).
For the same reasons, this is not practicable or reasonably practicable having regard to the distance the parents live from each other and their present inability to communicate successfully and resolve difficulties that might arise in implementing such an arrangement as evidenced from the conversations they have had with each other since separation and their inability to come to an agreement for [A] to spend time with the father.
I would be concerned also that such an arrangement may impact adversely upon [A] if she is removed for substantial and significant periods from the care of her mother who has no doubt been her primary carer and to whom in all likelihood she is primarily attached.
Conclusion
Having regard to the competing applications to which I have referred at the beginning of these reasons for judgement, it is appropriate for [A] to remain living with her mother in the Port Macquarie district, and limited to that area for the relatively short period prior to the final hearing. The final hearing is in February 2009.
Interrelate now conduct a Contact Centre in Port Macquarie which opened on the 1 July 2008 and for which there is currently no waiting list. It is appropriate for [A] to spend time with the father at such centre at fortnightly intervals. It seems to me that whilst that is not the optimum arrangement, it enables the father to maintain and develop his relationship with his daughter.
The requirement for the father’s time with the child to be supervised arises from the lack of evidence of his ability to care for the child in his own case and not the mother’s assertions as to his violent propensity or mood swings. I cannot make any presumption as to his ability to care for the child and it would be wrong to do so. I take into account in particular that the father has the ability to travel to Port Macquarie.
I accept it may represent some inconvenience for the father.
I take into account also the mothers current pregnancy and the imminent birth of the new baby. She now has a doctor for [A] in the district where she lives and has made arrangements to see an obstetrician.
Doing the best I can, it seems to me that the Orders I propose to make are unlikely to affect the father’s relationship with [A] adversely. To the contrary, it will ensure that he is able to spend regular time with her, bearing in mind he has not spent any time with her since 1 May 2008.
I will also make Orders that the Independent Children’s Lawyer obtain a report from the contact centre as to the father’s time with [A] and his ability to parent her. The purpose of that Order is to consider when the matter comes before me on 13 October 2008 for pre trial direction whether the father’s time with [A] should be unsupervised if such application is made.
This is a matter where I have considered requiring the mother to return to the Central Coast district with [A] but find on balance that it is not in [A]’s best interests weighed against the uncertainty of accommodation, the imminent birth of a new baby and the mothers past difficulty giving birth and the stability she presently has living with her parents and their immediate availability if she lives in Port Macquarie.
I make the following Orders.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate:
Date:
AMS v AIF (1999) 24 Fam LR 756; FLC 92-852
Paskandy & Paskandy (1999) 25 Fam LR 607; FLC 92-878 (paragraph 40)
A & A Relocation Approach (2000) 26 Fam LR 382; FLC 93-035
Goode & Goode [2006] Fam CA 1346
Taylor and Barker [2007] Fam CA 1246
Bolitho v Cohen (2005) 33 Fam LR 471; FLC 93-224.
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