Rossi and Rossi
[2008] FMCAfam 1098
•8 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ROSSI & ROSSI | [2008] FMCAfam 1098 |
| FAMILY LAW – Parenting – mother living in Western Australia and seeks child live with her there – competing applications as to with whom 8 year old boy should live – close relationship with each parent – mother’s mental state – allegations of violence. |
| Family Law Act 1975(Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 65D, 65DA, 65DAA, 65DAC |
| A & A: Relocation Approach (2000) FLC 93-035 AMS & AIF; AIF & AMS (1999) FLC 92-852 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 KB & TC (2005) FLC 93-224 H & W (1995) FLC 92-598 M & S [2006] FamCA 1408 Morgan & Miles [2007] FLC 93-343 R & R; Children’s Wishes (2000) FLC 93-000 Taylor & Barker [2007] FamCA 1246 U v U (2002) 211 CLR 238 W & R (2006) 35 Fam LR 608 |
| Applicant: | MR ROSSI |
| Respondent: | MS ROSSI |
| File Number: | SYC 6908 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 18 & 19 September 2008 |
| Place of hearing: | Sydney |
| Date of Last Submission: | 19 September 2008 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Staunton & Thompson |
| Counsel for the Respondent: | Ms Boyle |
| Solicitors for the Respondent: | Reid Family Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Stewart |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
[X] born in 2000 live with the father.
Subject to Order (6) [X] spend time with the mother as follows:
(a)In the school holidays at the end of Terms 1, 2 and 3, until [X] is in Year 8 from the first Sunday until the last Saturday of the school holidays;
(b)
In the 2009/2010 Christmas school holidays and in alternate years thereafter, from the first Sunday of the school holidays for
3 weeks;
(c)In the 2010/2011 Christmas school holidays and in alternate years thereafter, from 2 January for 3 weeks;
(d)On any weekend during school terms in the Sydney region for any period between after school Friday and before school Monday (or before school Tuesday if Monday is a public holiday) when the mother will give the father at least 7 days notice of her intention to come to Sydney and the times she intends spending with [X], and unless otherwise agreed, the mother will collect and deliver [X] from the father’s residence;
(e)
For up to 7 consecutive days during any school term, time to be spent in Sydney, when the mother will give the father at least
14 days notice of her intention to spend this time with [X] and when [X] will live with the mother and the mother will be responsible for transporting [X] to and from school each day; and
(f)For any other period or alternative period agreed between the parties.
The father be permitted to travel with [X] to Brazil in the 2008/9 school holiday period for a period not exceeding 6 weeks provided that the father:
(a)Gives the mother 30 days notice of [X]’s itinerary;
(b)Provides the mother with [X]’s contact details and addresses at each place [X] is staying;
(c)Provides the mother with the names of persons who [X] will stay with; and
(d)Provides the mother with a copy of [X]’s return air ticket.
The mother be at liberty to telephone [X] at any reasonable time while [X] is in South America, and the father ensure [X] telephones the mother at least twice each week.
From the time [X] starts Year 8, unless otherwise agreed between the parties, [X] spend one short school holiday period each year in Sydney, or one half of two short school holiday periods in Sydney, being the whole of the holidays at the end of Term 1 unless otherwise agreed.
Unless otherwise provided or agreed between the parties in writing, for the purpose of facilitating the time [X] spends with the mother pursuant to these Orders:
(a)The father will purchase return air tickets for [X] to fly from Sydney to Perth for the Christmas school holidays and for the June/July school holidays, ensuring [X] arrives no later than 4.00p.m. Perth time or 4.00p.m. Sydney time on travel days;
(b)Upon booking the flights the father provide the mother no later than 30 days prior to [X]’s departure details of the flight numbers, dates and times of departure and arrival of the flights [X] will take;
(c)The mother purchase return air tickets for [X] to fly from Sydney to Perth at all other times; and
(d)Unless otherwise provided in these Orders, upon booking the flights, the mother provide the father no later than 30 days prior to [X]’s departure details of the flight numbers, dates and times of departure and arrival of the flights [X] will take.
Each party set up at their own expense, as soon as practicable but within 8 weeks, a computer with internet connection and a webcam and download web communication software such as “Skype” which will enable the parties to communicate with [X] free of charge via webcam over the internet.
When [X] is spending time with the mother the father be permitted to telephone [X] at 7.00p.m. (Western Australia time) each evening and the mother ensure [X] is available to speak with the father.
The mother communicate with [X] when he is living with the father as follows:
(a)At all times as agreed between the parties;
(b)Each day by either webcam or by email or by MSN or telephone; and
(c)By telephone at least three times each week.
The parties have equal shared parental responsibility for [X].
Each party have sole responsibility for making decisions concerning other aspects of the care welfare and development and parental responsibility for [X] on a day-to-day basis during periods when [X] is living with either of them.
The mother remain under the care of a psychiatrist or psychologist for as long as recommended, take medication as prescribed, and follow treatment recommendations.
Each party ensure [X]’s medical needs are met and that [X] attends appointments as recommended by medical practitioners or health professionals.
Each party inform the other by telephone and email and keep the other informed of the following:
(a)Any medical appointments for [X], including those with therapists and counsellors;
(b)The name and contact number of medical practitioners, counsellors and any other health professional who treats [X];
(c)If [X] is ill for more than two days whilst in their care, the nature of the illness and the name of the treating medical practitioner; and
(d)The full medical history of [X] including the names and addresses of medical practitioners whom [X] has seen in the last two years.
In the event [X] suffers illness or injury requiring hospital admission the parent having care of [X] at that time shall inform the other party as soon as is reasonably practicable and shall authorise provision to the other parent information about [X]’s condition, diagnosis and treatment.
Each party ensure the other party is given full authority to discuss [X]’s welfare with any treating medical practitioner, treating professional education officer or teacher of [X].
Each party advise the other party of any change within 7 days to:
(a)[X]’s residential and/or postal address;
(b)Contact telephone numbers both mobile and landline for [X] and the parent;
(c)Email address;
(d)Skype address; and
(e)Identification details necessary for the purpose of booking air travel.
Without admissions each party be restrained from using illicit drugs or consuming alcohol to a level beyond the legal limit whilst [X] is in that party’s care and under that party’s supervision.
Neither party denigrate the other party or a person with whom the other party has a relationship in the presence or hearing of [X] or permit [X] to remain in the presence or hearing of any other person denigrating the other party.
The father be restrained from discussing with [X] or in the presence or hearing of [X] any aspect of the mother’s mental health.
The mother be restrained from discussing with [X] or in the presence or hearing of [X] any matter relating to the parenting of [X] by the father or the father’s partner Ms C.
Neither party discuss parenting arrangements with [X] or within the presence or hearing of [X].
The parties communicate primarily by way of written communication including email and text messages unless urgency requires communication by telephone.
The father be restrained from permitting [X] to spend overnight time with the maternal grandmother unless supervised by the father.
[X] remain enrolled at R School until he completes his primary school education and neither party change [X]’s school without agreement in writing or order of the Court.
Each party be restrained from changing the address of [X] from the [M] or [P] Local Council areas without written agreement or order of the Court.
The father arrange for [X] to be included on the father’s Medicare card and the mother sign all paperwork necessary to enable this to occur.
Each party keep the other party informed of the name, age and sex of the other residents in their homes and a description of the amenities in the home.
Except as otherwise provided, each party be restrained from removing [X] from the Commonwealth of Australia or from applying for passports or travel documents overseas in respect of [X] without the written consent of the other party which will not be unreasonably withheld.
The mother return to the father [X]’s passport on [X]’s return from spending time with the mother in the October 2008 school holidays.
In relation to [X]’s school education:
(a)The father give necessary authorities to enable the school to forward copies of [X]’s school reports and school photos to the mother, and the mother to meet any expense;
(b)The father keep the mother fully informed of [X]’s progress at school, both academically and behaviourally;
(c)The father inform the mother as soon as he receives notice of the date and time of parent/teacher interviews, date and time of sporting events or other activities to which parents are invited; and
(d)The father to do whatever is necessary to ensure the mother has access to all school information relating to [X].
In the event the mother provides [X] with a mobile telephone to facilitate their communication, the father ensure the phone battery remains fully charged.
The father make immediate arrangements to enrol in the Triple P Parenting Programme and upon completion of the Programme the father provide written verification of completion by the course provider to the Independent Children’s Lawyer.
The mother make immediate arrangements to enrol in and complete a post-separation parenting course and provide written verification of completion to the Independent Children’s Lawyer.
The father make immediate arrangements for [X] to consult a child psychologist and the father ensure [X] attends all appointments as recommended and for as long as recommended and the father provide written advice to the Independent Children’s Lawyer of these arrangements.
The Independent Children’s Lawyer remain in the matter until Orders (34) to (36) have been complied with.
The Independent Children’s Lawyer have liberty to apply at 3 days notice.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
IT IS NOTED that publication of this judgment under the pseudonym Rossi & Rossi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 6908 of 2007
| MR ROSSI |
Applicant
And
| MS ROSSI |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns parenting arrangements for [X] who is 8 years of age. [X] is the only child of the parties and neither party has other children. The parties separated in February 2002 when [X] was 18 months of age. Until September 2007, when the mother moved to [B], Western Australia with [X], the parties lived in close proximity to one another on Sydney’s northern beaches. Since November 2007, as a result of a Court order, [X] has been living with the father at [C]. The parties are in dispute as to with whom [X] will live in the long term.
Shortly after separation in early 2002, orders were made by [M] Local Court providing for [X] to live with the mother and to spend time with the father as agreed between the parties. At that time, each party was living on Sydney’s northern beaches, and according to the father, [X] spent frequent time with him, including a continuous period of 4 weeks at the end of 2006 when the mother was unwell. The mother says the father had very little involvement in [X]’s life until he was 4 years of age. In fact, even when the mother asked the father to care for [X] when she was hospitalised for 2 months at the end of 2001, the mother claims the father arranged for others to look after him. The parties agree however, that in the 12 month period until September 2007, [X] was spending 7 nights a fortnight with each of them.
In late September 2007, the mother removed [X] from school and moved with him to [B] without the father’s knowledge or consent. The father did not know where the mother had taken [X]. As a result of the father’s application to have [X] returned to Sydney, the court ordered [X]’s return to the father in Sydney and for [X] to live with the father until the mother also returned. [X] was returned to the father on
14 November 2007. The mother has not returned to live in Sydney so [X] has remained living with the father. In December 2007, the court made orders by consent providing for [X] to remain living with the father, to communicate daily with the mother, and to spend time with the mother in all school holidays. The mother has called [X] almost every night since he returned to Sydney. She has also regularly sent text messages and cards to him.
[X] was attending M School at the time of the mother’s relocation, but there was no place for him there when [X] was returned to the father. [X] has therefore been attending R School since November 2007.
The mother is 40 years and the father 34 years of age. The father was born in Brazil and migrated to Australia in 1996. His first language is Portuguese. The mother was born in New Zealand. The father is a permanent resident and the mother an Australian citizen. The parties lived together a few months before they married in November 1999. [X] was born in August 2000. The parties separated in early 2002.
The father lives in 3 bedroom rental accommodation at [C] on Sydney’s Northern Beaches. He lives one block from [X]’s school with his fiancée, Ms C, and his 21 year old cousin Mr T. Ms C and Mr T are Brazilian. Ms C is on a temporary resident visa studying English. Mr T is a chef. The father works full time as a [horticulturalist] from approximately 7.00a.m. until 3.30 p.m. each weekday.
The mother lives in spacious shared rental accommodation in [B] [Western Australia], close to the extended H family, her closest friends. The mother works 15 hours a week [in the Retail Industry] at [supermarket omitted] in [B] with some flexibility in her working hours. She has also received the Disability Support Pension since June 2008.
Dr Ronnie Zuessman, psychologist, prepared a report for the assistance of the court. In his strongly held view, it is in [X]’s best interests for both parties to live in the same proximity on the Northern Beaches of Sydney where [X] is most closely connected with family, school and the community. If the mother remains living in [B], Dr Zuessman recommends that [X] live with the father and spend time with the mother by agreement, to include significant portions of the school holidays.
[B] is a township south of Perth with a population of 15 to 20,000. From Sydney, it is an approximately 5 hour plane trip to Perth and a further 3 hour drive to [B].
Legal principles
His Honour Justice Kirby in the High Court decision of AMS & AIF; AIF & AMS (1999) FLC 92-852 said [1]:
…each [relocation] case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression…
[1] At paragraph 142
Parenting orders are governed by Part VII of the Family Law Act 1975. Section 60CA provides that the child’s best interests are the paramount consideration when considering particular parenting orders and to determine the child’s best interests the court must consider the primary matters set out in section 60CC(2) and the additional matters set out in section 60CC(3). Section 60CC(4) requires that the court consider the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Section 60CC(4A) provides that if the parties have separated, the Court must have particular regard to events that have happened, and circumstances that have existed, since the separation occurred. Section 65D provides, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
As the Full Court held in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, relocation cases are not a separate category within the Act to be determined by their own principles and rules. Each is a case under Part VII relating to the best interests of the children. The Full Court in A & A: Relocation Approach (2000) FLC 93-035 stated the guiding principles to be applied in relocation cases[2]:
a)The best interests of the child are the paramount consideration but not the sole consideration;
b)A court cannot require the applicant to demonstrate “compelling reasons” for the relocation;
c)The court must evaluate the competing proposals presented and weigh up the advantages and disadvantages of each for the child’s best interests;
d)This should not be done in a way that separates the issue of relocation from that of residence;
e)The court must weigh the evidence as to how each proposal would hold advantages and disadvantages for the child’s best interests; and
f)The court must refer to the principles underlying the objects of the parenting provisions of the Family Law Act and the relationship between those principles and the factors which must be considered when deciding what orders are in a child’s best interests.
[2] As summarised in the Family Law Council, Discussion Paper: Relocation (Feb. 2006), Commonwealth of Australia, pp.10-11.
The Full Court in A & A then set out a 3-step summary of the correct approach to be applied in cases involving a proposal to relocate the residence of a child[3]:
[3] Ibid pp10-12.
a)Identify the competing proposals of the parties;
b)Explain the advantages and disadvantages of each proposal by examining the section 68F(2) factors (now the section 60CC factors) with regard to the objects of the parenting provisions of the Act, which includes an evaluation of the “reasons for relocation as they bear upon the child’s best interests” against other factors; and
c)Explain why one proposal is to be preferred having regard to the best interests of the child as the paramount, but not sole consideration.
The High Court in U v U [4] modified the approach in A & A when Gummow and Callinan JJ said:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question… the objective is always to achieve the child’s best interests.
[4] (2002) 211 CLR 238
In KB & TC[5] the Full Court said:
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A & A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant section 68F(2)factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
[5] (2005) FLC 93-224
In M & S [6] her Honour Justice Dessau considered the impact of the July 2006 amendments on relocation cases. Her Honour concluded[7]:
… the legislature has not diminished the best interests test as integral to any parenting issues, including the difficult issue of relocation.
[6] [2006] FamCA 1408
[7] At paragraphs 38 to 39
In the more recent decision of Morgan & Miles [8], her Honour Justice Boland examined in detail the impact of the 2006 amendments on relocation cases. Her Honour held that the earlier core principles which must be applied when determining a parenting matter involving relocation remain valid [9]:
·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 may himself or herself be required to formulate proposals in the child’s best interests; and
·the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement.
[8] [2007] FLC 93-343
[9] At paragraph 80
The competing proposals
The High Court has held that the court is not confined to the proposals of the parties when deciding a relocation case[10]. I invited both parties’ legal representatives and the Independent Children’s Lawyer’s counsel to submit as to whether the court should consider options other than those put by each party.
[10] AMS & AIF; AIF & AMS (1999) FLC 92-852 and U v U (2002) FLC 93-112
The father tells Dr Zuessman that he will not relocate to Western Australia if the court orders that [X] live with the mother. However, in cross examination, the father modifies his position. He says that although he has lived only in Sydney since migrating to Australia over 10 years ago, and although his connections and his employment are in Sydney, if the court ordered [X] to live with the mother in [B], he would move to Western Australia and his fiancé would move with him. He says, “I will follow him but I don’t want to go”. The father does not say whether he would live in [B]. However, the father says he has better opportunities in Sydney, is settled on the northern beaches of Sydney, and does not want to leave Sydney.
I am not satisfied the father relocating to [B] or Western Australia is a realistic option. [B] is a small town and neither party adduces evidence of employment prospects there or of opportunities for Ms C to continue her English language education. The father has no connections in [B] or in Western Australia and if he were not able to find work in [B], he may still live a long distance from [X].
The mother says that whatever the outcome of these proceedings, she will remain living in [B] where she feels supported by the H family and where she believes she can maintain good health.
Neither party’s legal representative nor counsel for the Independent Children’s Lawyer invites the court to consider any other option for [X] other than each party’s primary proposal. I have concluded the only realistic options to consider are those preferred by each party.
Details of the father’s proposal. [X] would remain at R School and would attend before school care and after school care on most school days. [X] would remain living with the father in his rental accommodation in [C], with the father’s fiancé and cousin in the household. The father would continue to work each weekday as a [horticulturalist], leaving home early and finishing at 3.30p.m. [X] would retain contact with his friends at school and with his cousin [Y], who lives with the maternal grandmother nearby. [X] may or may not have the opportunity to participate in team sports and other extra curricular activities but would continue to enjoy camping and a variety of activities with the father. [X] would spend the whole of the short school holidays with the mother in [B], and half the Christmas school holidays. [X] would communicate with the mother every day by either email, phone or webcam.
Details of the mother’s proposal
. [X] would return to [N] College in [B] where he spent a few weeks in 2007, and would be collected and delivered to school by his mother on most weekdays. [X] would spend the majority of holiday time in Sydney with the father and communicate with him daily by email, phone or webcam. The mother would have the support of her closest friends of 20 years, Mr and
Mrs H and Mrs H’s extended family, and would continue to be monitored by her doctor and psychiatrist in relation to her bipolar condition. [X] would have the friendship of the H’s two children, 11 and 15 years of age, to whom he is close. [X] would live with the mother in her 3 bedroom rented house with garage and garden, perhaps shared with another tenant. [X] would participate in team sports and swimming lessons. The mother would work part-time, if possible during [X]’s school hours, at [supermarket omitted] stores.
Evaluation of each proposal against the child’s best interests having regard to the principles underlying the objects of the Act.
The objects of the parenting provisions of the Family Law Act, set out in section 60B of the Act, are to ensure that the best interests of children are met by (in summary):
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
As already noted, in deciding the arrangements that will promote the best interests of a particular child, the court must consider the matters set out in section 60CC (2) (3) and (4) of the Act as far as relevant in the circumstances of each case. The primary considerations I must consider are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
THE PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both the child’s parents.
I am satisfied that [X] enjoys a meaningful relationship with both his parents. Dr Zuessman observes [X] to have a close and loving relationship with each of his parents.
I find it inevitable however, that [X]’s relationship will not be the same with the party with whom he is not living most of the time. [X] will not have the chance to engage with each parent day to day as he did when they lived in close proximity to one another. However, I am not satisfied this means [X]’s relationship with both parties will not remain meaningful.
Each party proposes that [X] spends the majority of his school holidays with the other party. I am satisfied that [X] will therefore spend enough time with each parent to continue to enjoy a meaningful relationship with each of them. The only issue which arises under this factor concerns the consequences for [X] if either party fails to recognise the importance to [X] of a continuing meaningful relationship with his other parent, which I will deal with later in these Reasons.
I am not satisfied my findings under this factor favour either party’s proposal.
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
Each party has behaved badly, at times involving verbal and physical violence during their relationship and since separation, many times in [X]’s presence. [X]’s pre-school and school records, which describe a child with a propensity to anti-social and extremely aggressive behaviour towards teachers and other children, leave me in no doubt that the parties’ conduct towards one another has been a cause of serious emotional problems for [X].
Each party has been extensively involved in excessive drinking and drug use in the past which has doubtless exacerbated the conflict between them. The mother has also suffered from bipolar disorder which, when combined with excessive alcohol consumption, has led to seriously anti-social and abusive conduct. In early 2002, the mother was aggressive and abusive towards police. In 2004, the mother attended [X]’s pre-school while intoxicated causing the police to place [X] in the father’s care. In November 2005, the police described the mother yelling profanities at them and members of the public in the early hours of the morning. In 2006, the mother called the police over an altercation she was having with her sister. In cross examination, the mother concedes, “if I am unwell, I can get violent if I have been drinking”.
The father too, has demonstrated a propensity for aggressive and highly inappropriate behaviour while heavily intoxicated. As a result, the police have intervened on a number of occasions. Once in 2001, when both parties were intoxicated, the father assaulted the mother so badly he was convicted of assault occasioning actual bodily harm[11]. The incident occurred in front of [X] and there was blood on [X]’s cot. I am persuaded this was not an isolated assault. In November 2003, police observed the father gaining access to the mother’s residence via a balcony, the parties screaming at each other and the father under the influence of alcohol. The mother alleges that the father assaulted her at other times and on countless occasions demeaned her, calling her such things as “fucking slut” and “crazy nutcase”. I am satisfied the term “fucking idiot” was used frequently by each party to the other in front of [X].
[11] Exhibit 3
Neither party gives Dr Zuessman an honest history in relation to this abusive conduct. Each party underplays the severity and significance of their violent conduct and each shows poor insight into the impact of this behaviour on [X].
I am persuaded that the father failed to moderate his behaviour even when he became aware the mother suffered from bipolar disorder and gave the mother limited, if any, emotional support as she struggled with a mental illness and the care of a disturbed young child. While not excusing the mother’s behaviour, I find it likely that the father’s aggressive bullying conduct diminished the mother’s confidence and may have provoked some of her extreme and aggressive reactions.
Each party claims to have changed, particularly over the last
12 months. Each denies current excessive alcohol consumption or illicit drug use. The mother says she recognises the need to limit her alcohol intake while taking prescribed mood stabilising medication and there is no evidence to contradict the mother’s assertion. Her friends, Mr and Mrs H, confirm the mother is now a moderate social drinker. For his part, the father acknowledges the influence of alcohol on his poor judgment in the past. His fiancé, an impressive witness, describes a calm, happy and loving household with the father and [X]. Ms K, a family friend of the father’s, describes the father as a polite, good and loving man with a warm and loving family.
Until March this year, the father acknowledges using physical discipline on [X]. The father concedes that at times he lost his temper with [X] and hit him, at times too hard. I therefore accept the mother’s claim that on Christmas Eve 2006, the father lost his temper with [X] and belted him leaving “red marks all over his bottom.” I accept also that after Easter 2007, [X] was returned to the mother with bruises on his arms.
The father tells Dr Zuessman he no longer disciplines [X] physically. He has listened to advice from Ms H, psychologist who he has consulted about [X], and has learned from other parents at the school and from his fiancé that there are calm, effective forms of non-physical discipline which he is now using.
Although [X] tells Dr Zuessman that both his parents use physical discipline I accept Dr Zuessman’s opinion that he is not concerned about [X]’s safety in the care of his father. It is clear from [X]’s most recent school report that his behaviour has settled markedly this year.
I am satisfied [X] has not been protected by either party in the past from physical or psychological harm and that he has been exposed to numerous incidents of family violence. I find it likely this has adversely affected each party’s capacity to parent and is likely to explain, at least in part, [X]’s anti-social and aggressive behaviour at school. I am persuaded however, that over the last 12 months each party has recognised the need to change, and that it is now much less likely [X] will be exposed to such harm in the future.
As already noted, because I am not persuaded either party fully appreciates the impact on [X] of their past behaviour. I have ordered each party to attend a post-separation parenting course to better understand the damage conflict causes children.
THE ADDITIONAL CONSIDERATIONS
The child’s expressed views and the weight those views should be given.
Dr Zuessman reports[12] that [X] was glad a judge would decide where he would live. [X] said to Dr Zuessman “I don’t want to say who I want to live with.” He says he misses his mother when with his father, and misses his father when with the mother. Dr Zuessman says [13]:
[X] has been placed in an untenable position of having to make a choice between his parents when he loves both and needs the love, affection, and guidance of both. His expressed view is to be relieved of the burden of choosing and this should be respected.
[12] Exhibit 1
[13] Paragraph 130
Dr Zuessman goes on to say [14]:
[X] would prefer his parents to be near one another and, hence, near to him. As a result of the circumstances, [X] is somewhat distressed and anxious, and likely has a perspective that he will not reach his goal. This may also contribute to some difficulties in interpersonal adjustment with peers.
[14] Paragraph 131
The Full Court in H v W (1995) FLC 92-598 at 81,947-8 and in R and R: Children’s Wishes (2000) FLC 93-000 at 87,071, said the wishes of children are important and proper weight should be attached to any wishes expressed by a child, depending on their basis and the maturity of the child:
…including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.
[X] clearly feels the conflict. Dr Zuessman points out the importance for [X] of stability and certainty from a resolution of these proceedings. I am not satisfied this factor favours either party’s proposal.
The nature of the relationships between the child and each parent and the child and other persons.
As already noted, I am satisfied [X] enjoys a close and loving relationship with each party. Dr Zuessman reports “it appears that both Ms Rossi and Mr Rossi care about and love their son, [X].” [15]
[15] Paragraph 114
[X] does not have the benefit of his father’s extended family close by, as they live in Brazil. The father will take [X] to Brazil over the Christmas holidays to spend time with them all. [X] does enjoy a good relationship with Ms C, the father’s fiancé, and with Mr T, the father’s first cousin both of whom live in the father’s household. Ms C deposes to living in a happy home with the father, [X] and Mr T, in which she says everyone gets on well together.
[X] is close to a school friend [name omitted] and has established friendships at R School.
On his mother’s side, [X] loves his first cousin [Y] who lives with the maternal grandmother and [X] enjoys time with them both. Unfortunately, the mother has a poor relationship with her mother, alleging a childhood of significant abuse and neglect in her care. The mother says her mother took no interest in [X] while the mother was living on the northern beaches, though she lived nearby. The father, however has kept [X] in contact with the maternal grandmother. A real issue arises for the mother in this case, because she does not want [X] spending time with the maternal grandmother unless supervised by the father. I will deal with this issue later on. The mother’s sister lives in [M] and although there have been problems between the mother and her sister in the past, the mother’s sister supported the mother during these proceedings. The maternal grandmother did not make herself available for cross-examination at the hearing.
[X] has a fond relationship with Mr and Mrs H and their children.
Mr H describes [X]’s excitement at seeing them when arriving at Perth airport for the holidays.
Given he has lived his whole life in the Northern Beaches of Sydney, [X] is more familiar with the Sydney environment and those significant to him there, than he is with the [B] environment. This factor therefore favours the father’s proposal.
The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
As reported by Dr Zuessman, each party acknowledges [X]’s need for a relationship with the other parent, and each expresses an intention to facilitate [X]’s relationship with the other parent.
The father tells Dr Zuessman that [X] would like to see more of his mother:
[X] seems fine with the fact that he only see (sic) his mother during the school holidays but I think he would love to see his mum more often if it is possible. I have no objection to that, as long this (sic) extra contact is in Sydney.
Since November last year when [X] began living with the father, the father has ensured [X] has spent holidays with the mother in accordance with the Court’s orders and has ensured [X]’s almost daily communication with the mother. The father encourages the mother to install the skype programme to improve [X]’s opportunities to communicate with the mother during school terms. The father says the mother is a “good mother” taking responsibility for [X]’s health and arranging [X]’s participation in a range of activities. He acknowledges in hindsight, that he has not always, in the last 12 months, given the mother information he should have given her about [X] and can see the importance for [X] of doing so in the future. He does, however, stress the importance of the mother to [X] and [X]’s need to spend frequent time with her. I find the father’s position at hearing on this issue, consistent with his acceptance of the mother’s significant role in [X]’s life prior to her move to [B]. Until the move, even when he knew of the mother’s mental illness, the father did not seek orders for [X] to live with him for longer periods. I find the father’s stated view that the mother is of fundamental importance in [X]’s life, is genuinely held, and that the father will continue to promote [X]’s relationship with the mother, whatever the outcome of this case.
I find the mother’s assertion that she understands the importance to [X] of his relationship with his father, contradicts her sudden decision to move [X] to [B] without telling [X] or the father about her intentions. Until the mother left Sydney in September 2007, despite the problems in their communication and her concerns about the way in which the father was treating [X], the mother always ensured [X] spent time with the father, including approximately equal time in the 12 months leading up to her relocation to [B]. The mother complains in fact, that the father was not as available for [X] as he should have been in the early years after their separation. Nevertheless, the mother took [X] to the other side of the country 12 months ago, without the father’s agreement or knowledge, and asks the court to accept that she did so for [X]’s benefit.
Dr Zuessman says[16]:
It is in the child’s best interests to be able to sustain a relationship with both parents. All actions by each parent should be weighed against this measure.
[16] At paragraph 129
The mother gives Dr Zuessman a number of reasons for her decision to move so suddenly from Sydney to [B]. Firstly, she says she was not coping with the situation she was in, including her housing department accommodation, her feelings of alienation at [X]’s school and her feelings of being “psychologically abused by the father all the time”. Secondly, she wanted to be with her friends who were relocating to [B]. Thirdly, it was the “final straw” when the father had the maternal grandmother to [X]’s 7th birthday party, knowing the extent of her negative feelings for her mother. In addition, the mother says she believed it was right, as the custodial parent, and that the father would be “happy about the idea”. The mother tells Dr Zuessman that her own father took three years to find her mother, herself and her two siblings when they were young children, after the mother took them from Australia to New Zealand without her father’s knowledge or consent.
Dr Zuessman says the mother put herself ahead of [X] when she made the decision to relocate. In his view, the mother’s judgment was impaired when she made the decision[17]:
…[she] deprived [X] of his close relationship with his father and caused [X] confusion and distress. Clearly caught up in her own rationalisations, Ms Rossi set about to meet her own needs and not her son’s. This is reinforced by Ms Rossi’s commitment to remain in Western Australia even if the Court finds that [X] should remain in New South Wales.
[17] At paragraph 128
In cross-examination, the mother says the father loves [X] and has done some positive things for him including teaching him about Brazilian culture, “taking him places and having fun with him”, but suggests her presence in his day to day life is enough. I find the mother shows little insight into the fundamental importance of [X] having the father’s presence in his day to day life as well.
I do not accept the mother believed the father would be happy about her move with [X] from Sydney. I am persuaded the mother was well aware the father would have opposed the move had she told him her plans, which is why she chose not to tell him. I am in no doubt that the mother moved to [B] to be near the H family. Mr H says the mother spent “hundreds of hours on the phone” to them when they lived in France for 6 years. It is clear the mother is dependent on her close friendship with the H family and regards Mr and Mrs H and Mrs H’s extended family, as her own family. When Mr and Mrs H told the mother they were returning to Australia from France, the mother decided to join them wherever they decided to settle. I find the mother needs and intends to remain geographically near the H family, whatever the implications for [X].
I conclude that the father can be more reliably trusted to ensure [X]’s relationship is maintained with the mother than the mother can be trusted to ensure the maintenance of [X]’s relationship with the father.
This is an important consideration.
The likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either parent or any other child or other person with whom the child has been living.
[X] lived primarily with his mother until two years ago when he was aged 6. The parties then divided his time equally between them for approximately 12 months. [X] then spent two months in [B] with his mother alone. Apart from spending school holidays with his mother, [X] has lived with his father for the past year.
I accept Dr Zuessman’s evidence that [X] is angry with both his parents because he cannot have them both near him. I accept that [X] wants and needs both his parents in close proximity to him.
Apart from living just under 2 months in [B], [X] has always lived on Sydney’s northern beaches and as reported by Dr Zuessman, the northern beaches is his familiar base. If [X] lives in [B], he will spend much less time on the northern beaches, less time with his father, with his cousin [Y], to whom he is very close and with his school friends. If he relocates to Western Australia, [X] will have to change schools again and will lose the friendships he has made at R School. Although he would return to the school he attended briefly in 4th term last year, a move to [B] would be his 4th change of school since he started school in 2006. As discussed in more detail later, [X] has struggled at school and has only recently started to settle.
There is no question that a permanent move to [B] would be a big change for [X] which would require significant adjustment. I find the mother underestimates the significance of such a change for [X]. She is so keen to extol the benefits of life in a small country town against the negatives of Sydney, she pays almost no heed to the impact on [X] of the loss of not just regular time with his father, but of so much that is familiar to him.
I give considerable weight to this factor.
The practical difficulty and expense of a child spending time with and communicating with a parent.
As the air and road travel between the parties is in excess of 8 hours [X] must travel between Sydney and [B] to spend time with each parent and others significant in his life. Regrettably, this practical difficulty limits the amount of time [X] can spend with his non-resident parent and puts an onus on the non-resident parent to travel a long distance to ensure some involvement in [X]’s school and extra curricular life. Although [X] appears to have managed the trips between Sydney and [B] in 2008, I am satisfied that it would be too onerous for [X] to travel more often than during his school holidays. [X] knows his parents live a very long way from one another. The mother overheard [X] explaining why he must speak loudly on the phone to his mother “I’m trying to talk to my mamma. She’s on the other side of the world.”
[X] will have the opportunity to communicate with his non-resident parent by email, phone and webcam when the mother buys a computer and establishes a webcam connection.
The cost of travel is an issue in this case. The father works full time but does not earn a high income. The mother works only part-time and relies for additional support on a disability support pension. I am satisfied the parties should share equally the costs of [X]’s travel.
The capacity of each parent and any other person to provide for the needs of the child including emotional and intellectual needs.
I have earlier made findings about the negative impact of each party’s past substance abuse and aggressive behaviour on [X]. I am satisfied both parties have failed in the past to meet [X]’s need every day for consistent and loving parenting and both have contributed to his history of behavioural difficulties. At interview with Dr Zuessman, the father acknowledges his propensity for excessive drinking in the past leading to aggressive and angry outbursts towards the mother and to some bad decisions. He acknowledges using excessive physical discipline on [X]. Dr Zuessman says:
…it appears that alcohol has been linked to aggressive behaviour and some violence between himself and Ms Rossi. It is likely that this also could have contributed to alleged instances of emotional and verbal abuse.
However, the father says that since [X] has been living with him this year, he has made dramatic changes to his lifestyle and to the way he disciplines [X]. Dr Zuessman reports[18]:
Mr Rossi said that about one year ago he changed, having recognised that there were “moments when I could have take (sic) a better decision” when he was under the influence. He indicated that he now only has an occasional glass of wine.
[18] At paragraph 86
The father tells Dr Zuessman that he has been improving his parenting skills and no longer uses physical discipline. He tells Dr Zuessman that [X] needs “lots of love, good education, health, security, peas (sic) of mind and his parents to look after him.”
Dr Zuessman believes, as a result of interview and psychological testing, that the father has appropriate parenting skills and that [X] is physically and emotionally safe in his care.
The mother suffers from a mental illness known as bipolar affective disorder, Type 1. She was diagnosed during a 2 month stay in a psychiatric facility in 2001. As earlier noted, the mother acknowledges behaving aggressively at times when unwell, particularly when under the influence of alcohol. The mother’s treating psychiatrist in [B] says in June 2008 that she is now in “full remission” and compliant with mood stabilising medication. Yet in June 2008, the mother tells
Dr Zuessman that as a result of her bipolar condition and at the suggestion of her doctor, she was granted a disability support pension to enable her to work fewer hours. The mother tells Dr Zuessman she is “proud to be bi-polar” and “I’ve got such insight into my bipolar, it’s amazing.” Dr Zuessman, however, observes the mother having[19]:
…some difficulties with retrieval of short term memory or with maintaining concentration. …[her] mood appeared to be somewhat anxious and her expression of affect was broad. Her form of thought was at times circumstantial, sometimes wandering before returning to the point. Thought content was also at times vague.
[19] At paragraph 55
Given her history of significant alcohol abuse and her bipolar condition, Dr Zuessman believes the mother should abstain from consuming alcohol altogether [20] and that she should have her mental state regularly monitored.
[20] At paragraph 124
The mother says she must be careful to exercise, eat well and have plenty of sleep. She says she consults her treating doctors if she feels unwell. Her friend Mrs H, says she is aware from conversations with the mother, that the mother has approached her doctor to have her medication adjusted three or four times this year, though from her contact with the mother, Mrs H says she is unable to tell when the mother needs medical assistance for her mental illness.
The father says he would be concerned if [X] were living with the mother too far away from him, as he needs to step in to care for [X] when the mother is unwell. Counsel for the Independent Children’s Lawyer submits the court should have concerns that the mother has been heavily intoxicated at times since commencing treatment for her bipolar condition.
In Dr Zuessman’s opinion[21]:
Having a bipolar disorder does not in itself mean that a person is impaired in their functioning or is inappropriate as a parent. However, without having some current impairment in functioning, it is not clear how Ms Rossi would recently have been placed on a disability support pension.
[21] At paragraph 127
I agree with Dr Zuessman that the mother’s need for a pension because of her bipolar condition suggests she does suffer some impairment in function as a result. While I accept each party’s evidence as to their choice of a much healthier lifestyle in the last 12 months, I am not persuaded I can totally disregard the mother’s mental health when considering the mother’s parenting capacity.
Relevant characteristics of the child.
[X] is of Brazilian origin on his father’s side and is exposed to the Portuguese language in the father’s household. The father, Ms C and Mr T all have Portuguese as their first language, but speak English when with [X] because he has a very limited grasp of Portuguese.
Orders already made in these proceedings provide for [X] to travel to Brazil with the father in December this year for 6 weeks during the summer school holidays. Ms C will spend some of the holiday with them. The father wants to introduce [X] to extended family and expose [X] to the Brazilian culture. He hopes [X] might become more interested in learning the Portuguese language. Ms C says she and [X] are having fun teaching each other words in Portuguese and English respectively.
I am satisfied both parties recognise that [X] will benefit from learning Portuguese, getting to know his paternal extended family and learning about the Brazilian culture. The mother took [X] as a baby to a playgroup for children of Brazilian heritage. Both parties tell
Dr Zuessman that it would be in [X]’s interests for him to have access to his Brazilian heritage in as many ways as possible, including learning the language. The mother is actually critical of the father for not taking [X] to Portuguese classes to prepare him for his South American holiday.
I am impressed by the mother’s attitude on this issue, and am satisfied that she will encourage [X]’s engagement with the Brazilian culture and language under the guidance of the father, whatever decision I make.
Each party’s attitude to the child and to the responsibilities of parenthood.
Each party has demonstrated shortcomings in meeting parental responsibilities, some of which I have dealt with already.
The mother accepted primary responsibility for [X]’s care until two years ago, and I am satisfied the mother made significant efforts to address [X]’s behavioural and learning difficulties. The father acknowledges that with only minor assistance from him, it was the mother who arranged for [X] to attended [D] pre-school to help him with transition to school and it was the mother who ensured [X] had access to the therapy he needed to help him moderate his behaviour. I accept the mother’s claim that she attempted to involve the father in these referrals for [X] with minimal success. I accept the mother was so concerned about the father’s approach to parenting [X] that in 2005 she stopped [X]’s overnight time with the father to force him to undertake a parenting course. The parties then agreed the father would take steps to change his parenting style, but under pressure from the father who did not undertake a parenting course, the mother reinstated overnight time. The father’s resistance to changing his parenting approach to assist [X], is unimpressive. [X]’s therapist, Ms H, records in her clinical notes [22] that the father ignored her referral to attend the Triple P programme which she decided the father definitely needed. At hearing, the father could give no satisfactory explanation.
[22] Exhibit 4
I accept that the mother found it difficult to work effectively with the father for [X]’s benefit. The father appears to have chosen to ignore the mother, rather than work with her. The mother was faced with managing a challenging young child who was not fitting in at school and whose behaviour at home was awful. The mother needed the father’s support and [X] needed consistent parenting. I am persuaded this did not happen, and that the father must accept much of the responsibility for this.
The extent to which each parent has fulfilled or failed to fulfil his or her responsibilities as a parent including spending time with the child, participating in decision –making about his welfare, and facilitating the other parent to do the same, and the extent to which each parent and party has fulfilled his or her obligation to maintain the child.
[X] was 18 months of age when the parties separated, after an unhappy and volatile relationship. Mr and Mrs H observed the father demeaning and undermining the mother using language such as “you are a stupid wife and a fucked cook”. The parties’ relationship since separation has been characterised by further conflict. As already noted, I am satisfied in the early years after separation, the father drank to excess and at times behaved in an intimidating manner towards the mother. I am not satisfied the father gave the mother appropriate support, as [X]’s mother, when she was diagnosed with bipolar disorder. I accept that the father behaved selfishly when he handed [X] over to the care of others when the mother required longer term assistance with his care. As acknowledged at hearing by the father, I find the father behaved irresponsibly when he lost his temper with [X] and physically disciplined him.
Dr Zuessman says he had concerns about each party’s past behaviour as a parent, not just the father’s. I have already noted examples of the mother’s irresponsible behaviour when intoxicated. I have also dealt with the mother’s parental irresponsibility in removing [X] from his father to live in [B], causing disruption to [X]’s schooling and his growing confidence.
I am satisfied that each parent must accept some responsibility for the difficulties faced by [X] over many years. [X] has been a challenging child, exhibiting significant behavioural problems from the time he started pre-school until only a few months ago. Incident reports from his first pre-school at [N], annexed to the mother’s affidavits,[23] describe [X]’s extremely aggressive and anti-social behaviour towards teachers at pre-school in May 2005. He was hitting out, kicking, punching in the face, screaming and using foul language. The teacher “felt his rage”. At times [X] imitated sexual acts on other children. He was asked to leave. [X] then attended [D] pre-school for children with special problems, from where he was referred to a number of therapists including a behavioural therapist, Ms H. In 2007, [X] showed some improvement at school. At the end of his first semester, the school reports [24]:
[X] has made great progress since joining 1D in January. His reading and writing skills are both showing great signs of improvement. This is thanks to his sessions with STLA volunteers and his application, both in these sessions at school and at home…[X]’s concentration, listening skills and attention span are still problems…The presentation of his work sometimes lacks care but this is beginning to improve…
[23] Mother’s affidavit sworn August 2008
[24] Annexure PR1 to father’s affidavit sworn 3 October 2007
Shortly after this report the mother moved [X] from this school. [X] had to adjust to a new school for 2 months. [X] then had to change to another new school, which he has now attended for nearly 12 months. I am not persuaded the mother appreciates just how hard it would be for [X] to change schools again. This is a serious consideration.
I am satisfied the father has shown a different and more positive attitude to the responsibilities of parenting in the last few months. The father took [X] back to Ms H for counselling to help him adjust to the move back to Sydney. The father has taken a greater role in [X]’s school work, he has promoted [X]’s friendships, he has changed his manner of discipline, and he has ensured [X]’s frequent communication and time with the mother. Ms C observes the father being organised in the home and encouraging [X] with his homework and ensuring he is well organised and prepared for school. She says [X] is now “a sweet and gentle boy.”
[X]’s school report for the first half of 2008 is positive about his progress and it is noteworthy that in his father’s care he did not miss a single day of school. The report reads[25]:
[X] is a happy, polite student who seems to enjoy school life. In class, he is co-operative and well-mannered and usually takes pride in the presentation of his work. [X] is learning to be a more focused learner and is trying to listen more carefully in class.
[25] Paragraph 1 to father’s affidavit sworn 25 August 2008
These considerations favour the father’s case.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested.
I have nothing further to add here.
Whether preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child.
Despite the significant difficulties these parties have experienced during their relationship and in the 6 years since separation, they have managed the parenting arrangements for [X] substantially by agreement until late last year when the mother’s relocation with [X] created an impasse. Each party has heard from Dr Zuessman about how damaging this litigation has been for [X] and each party must now understand the sadness he feels. I am satisfied that neither parent will be quick to embark on more litigation whatever decision I make.
Any other relevant fact or circumstance.
The parties do not agree about [X]’s contact with the maternal grandmother. The father believes [X]’s relationships with extended family are important on both his side and the mother’s side, and the father wants [X] to spend time with the maternal grandmother. He says this is even more important as [X]’s cousin [Y] lives with the maternal grandmother and [X] and [Y] are very close. He does, however, recognise and acknowledge that the mother is fearful of [X] spending unsupervised time with her mother.
The mother says her mother neglected and abused her during her childhood and failed to protect her from sexual abuse over 3 years by a family member, when the mother was 4 to 7 years of age. At the request of the mother, the father agrees not to leave [X] with the maternal grandmother overnight without his supervision, but wants [X] to have the opportunity to spend unsupervised time with her during the day. While he understands the mother’s feelings about her mother, the father does not accept [X] should be prevented from enjoying day time with her unsupervised, particularly as she has been assessed as a suitable full time carer for [Y].
I am not persuaded that there is a basis for a restraint on [X] spending unsupervised time with the maternal grandmother. It will be a matter for the father to decide those arrangements.
PARENTAL RESPONSIBILITY
Section 61C(1) provides that each parent has parental responsibility for the child but by section 61C(3) the joint parental responsibility is subject to any order the court may make.
When making a parenting order, section 61DA of the Family Law Act requires the court to apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for their welfare, although that presumption can be rebutted in certain circumstances. Section 65DAC provides that all decisions about major long term issues be made jointly by those who share parental responsibility. Major long term issues are defined in section 4 of the Act as education, religious and cultural, health, name and changes in living arrangements that make it significantly more difficult for the child to spend time with a parent. The application of this presumption triggers the application of section 65DAA (1) which requires the court to:
a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
c)if it is, consider making an order to provide for (including a provision in the order) for the child to spend equal time with each of the parents.
Section 65DAA(2) provides that if the court does not make an order for equal time, the court must consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such an arrangement is reasonably practicable. Substantial and significant time and reasonable practicality are defined in section 65DAA(3) and (5).
In the present case, each party seeks an order for equal shared responsibility and this is recommended by the Court expert. I agree with Dr Zuessman that it is in [X]’s best interests for the parties to have equal shared parental responsibility. It is essential for [X]’s welfare that his parents learn to work cooperatively for his benefit. To deny either party an equal share in major decisions concerning [X]’s welfare, would undermine this important objective. Because I have made an order for equal shared parental responsibility, I am required to consider whether making orders that [X] should spend equal time, or if not equal time, substantial and significant time with each parent would be in [X]’s best interests and whether it is reasonably practicable. In the present case, given the geographical distance between the parties, such arrangements are not reasonably practicable and neither party has proposed such arrangements. I am satisfied however that it is in [X]’s best interests for him to spend as much time as practicable, given cost and distance, with the parent with whom he is not living.
Conclusion
[X] is 8 years of age. He has spent most of the first 6 years of his life in the primary care of the mother and only the last year in the primary care of the father. [X] wants and needs to spend lots of time with both his parents and for that to occur the parties need to live in relatively close proximity to one another. Dr Zuessman says a shared care or substantial care arrangement would probably be best for [X] in these circumstances. However, the mother has made it clear she will not return to live in Sydney, whatever the outcome of this case. The father says he will move to Western Australia (not necessarily [B]) if [X] lives with the mother, but highlights the financial and emotional strain such a move would cause him. As already noted, I have concluded the only realistic alternatives are [X] living with the mother in [B] or [X] remaining with the father at [C]. This means, whatever the result of this case, the circumstances will remain difficult for [X].
Dr Zuessman says the Court must ensure [X] has the care and nurturance of both parents, that he has relief from the conflict between his parents, that he has regularity and predictability in his life, that he has support from extended family and from his peer group, that he has professional support to help him manage the various stressors he has experienced and continues to experience, particularly as his parents cannot work out where he should live. In Dr Zuessman’s opinion, [X] has a greater social network and a greater familiarity with his locale in Sydney and he is settled in school here. Therefore he recommends [X] remains in Sydney. The Independent Children’s Lawyer supports the father’s case.
On a careful weighing of the competing factors, I agree that [X] should remain in Sydney and spend most of his school holidays with the mother in [B]. I accept that this decision will be very distressing for the mother.
The mother says [26]:
I love [X] very much – he’s my life. I feel my role as his mother is to love him and nurture him, to give him a good education and to give him the best life I can so he grows into a good man. [X] and I have a close and loving relationship and I believe his best interests would be met by living with me in a stable and loving environment where his needs are put before anything else.
[26] Paragraph 125 of mother’s affidavit sworn August 2008
[X] will have daily communication with the mother by webcam or phone or email and the mother will be free to come to Sydney during school terms to spend time with [X]. The father encourages the mother to spend as much time as she can manage with [X] in Sydney. [X] will however, have the stability of continuing his life as he has known it for the past year. He will remain in his school with teachers and friends he now knows well. As recommended by Dr Zuessman, the father will take [X] to counselling to help him adjust to the permanence of his mother’s absence from his life day to day. I encourage the father to make arrangements for him to participate in team sports. Each party will attend a post separation parenting course to learn the importance of cooperative parenting and constructive communication. Dr Zuessman reports the parties being able to discuss issues of concern to [X] in a joint interview. I urge the parties to engage in dialogue for [X]’s benefit. Dr Zuessman says [27]:
It is in [X]’s best interests for Ms Rossi and Mr Rossi to commit to personal, individual responsibility to communicate in a civil, dignified manner with the other parent at all times.
[27] Paragraph 135
I have made a number of orders agreed by the parties in relation to the exchange of information and care in discussing certain matters in front of [X]. I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X].
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Sexton FM.
Associate: Skye Owen
Date: 8 October 2008
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