S and H
[2002] FMCAfam 203
•7 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & H | [2002] FMCAfam 203 |
| FAMILY LAW – Parenting orders – children – residence – relocation – sexual abuse – domestic violence alleged by wife – evidence – expert evidence – expert expresses opinion about party not examined – expert witness assumed the role of an advocate – residence order made in favour of husband. |
B v B, Family Law Reform Act (1997) FLC 92-755 – cited
A v A, Relocation Approach (2000) FLC 93-035 – applied
AMS v AIF (1999) FLC92-852 – cited
JG v BG (1994) FLC 92-515 – applied
Patsalou v Patsalou (1995) FLC 92-580 – applied
R & R, Children’s Wishes (2000) FLC93-3000 – applied
H & W (1995) FLC 92-598 – cited
A v A (1998) FLC 92-800 – considered
Re W and W: Abuse allegations; expert evidence (2001) FLC 93-085 – applied
Family Law Act 1975, ss.62G2, 65E, 60B, 68F2
Evidence Act 1994 (Cth), s.140
| Applicant: | M S |
| Respondent: | S M H |
| File No: | HBM2308 of 2001 |
| Delivered on: | 7 November 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 8 – 16 July 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr T McGuire |
| Solicitors for the Applicant: | Temple-Smith Barclay Solicitors |
| Solicitor Advocate for the Respondent: | Ms C Trueman |
| Solicitors for the Respondent: | Murdoch Clarke Solicitors |
| Solicitor Advocate for the Child’s Representative: | Mr J Whitehouse |
| Solicitors for the Child’s Representative: | Corby & Co Solicitors |
ORDERS
That all previous orders are discharged.
That the parties have joint responsibility for making decisions about the long term care, welfare and development of the child H M S born
8 May 1997 (“the child”).That the parties have responsibility for making decisions about the day to day care, welfare and development of the said child whilst the child is in their respective care.
That the child live with the father.
That the mother have contact with the child as follows:
(a)Until H starts her formal education from 4.00pm Thursday until 4.00pm Sunday each alternate weekend, commencing the first weekend that the mother was due to have weekend contact to the child.
(b)For one half of each gazetted school holiday, being the second half in 2002 and the first half in 2003 alternating annually thereafter.
(c)For the whole of the mid-year June school holidays.
(d)On the weekend that includes Mother’s Day. This contact is to be exercised in D or its close environs if contact is otherwise to occur in Hobart on either weekend adjacent to the Mother’s Day weekend.
(e)For three hours after school (in D or its environs) on H’s birthday in years ending in an even number and for the same period on the day following H’s birthday in years ending in an odd number.
(f)As such other times as the parties may agree.
That contact is suspended on the weekend that includes the Father’s Day weekend.
Upon the child starting her formal schooling order 5(a) is discharged. Thereafter the mother shall have alternate weekend contact to the child as follows:
(a)Each fourth weekend from 5.00pm Friday until 3.00pm Sunday (in Hobart) commencing the second weekend after H starts school, and
(b)Each fourth weekend from after school Friday until the start of school Monday commencing the fourth weekend after H starts school. This contact is to be exercised within 50 kilometres of D.
SCHOOL HOLIDAY CONTACT:
(a)SHALL commence at 9.00am.
(b)SHALL conclude at 2.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
(d)Pupil free days are deemed to be school holidays.
(e)Christmas 2003/2004 is defined as a year ending in an odd number.
(f)Years ending in a zero are defined as years ending in an even number.
(g)If a residence period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday.
Other than holiday contact or contact exercised in the D environs, the father shall deliver the child to the mother at C post office at the start of contact and the mother shall return the child to the father at the same place at the end of contact.
Both parties shall notify the other as soon as practical in the event that the child suffers from any illness or accident and requires medical treatment whilst she is in their care.
The parties are to keep each other notified of their current residential address and phone number and notify each other of any changes in residential address and/or phone number within fourteen days of the date of such change.
That each of the parties is entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child copies of any reports, notices or other advice concerning the child’s education, health and welfare.
Unless otherwise provided in these orders, after each school holiday weekend contact shall resume on the first weekend after term starts if the mother has exercised contact during the first half of the preceding school holidays and on the second weekend if she has exercised contact during the second half of the school holidays.
That pursuant to section 62F(2) of the Family Law Act 1975 the parties attend confidential counselling at a date and time nominated by the Manager of PDR services of the Registry of the Court for the purposes of developing an improved communication between the parties.
That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged.
That the Solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
HBM2308 of 2001
| M S |
Applicant
And
| S M H |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings comprise competing residence applications. They relate to the parties’ only child H M S born 8 May 1997 (“the child”).
The application
M S (“the father”) commenced these proceedings when he filed an application in the Family Court on 31 January 2001. He sought the orders set out below:
1.That the child of the parties namely H M S born the 8th day of May 1997 (aged 3 years) reside with the Applicant Father.
2.That the Father be responsible for the day to day care, welfare and development of the said child.
3.That the parties jointly be responsible for the long term care, welfare and development of the said child.
4.That the said child have contact with the Respondent Mother as follows:
(a)Each second weekend between Friday afternoon and Sunday afternoon.
(b)For one half of each Tasmanian Gazetted school holiday.
5.That the Respondent Mother pay the Applicant Father’s costs of and incidental to these proceedings.
Included in his initiating application was an application that he be granted interim residence of the child.
In an outline of the case document filed prior to the start of the hearing his counsel indicated that the father sought an additional order “that the mother be refused permission and/or be restrained from permanently relocating the child H M S from the Municipality of D”.
S M H (“the mother”) filed a response to the father’s application on
2 February 2001. At the hearing she relied on an amended response that was filed on 5 June 2002. The orders sought by her at the hearing are set out below:
1.That the child H M S (the child) born on 8th May 1997 reside with the Respondent Mother, S M H.
2.That the Respondent Mother be permitted to relocate with the child to Hobart.
3.That the Applicant Father, M S, have contact with the child as follows:
(i)In the year 2002:
(a)Each alternate weekend from 4.00pm Thursday until the Following Sunday at 5.00pm;
(b)On Christmas Day from 10.00 am until 4.00pm;
(c)On Easter Sunday from 2.00pm until 2.00pm the following Tuesday;
(d)For one week in the mid-year June and one week in the mid-year September school holidays;
(e)For three weeks during the Christmas summer school holidays;
(f)Such further contact as is agreed to between the parties from time to time.
(i)In the year 2003 as follows:
(a)Each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(b)On Christmas Day from 10.00am until 4.00pam;
(c)On Easter Sunday from 2.00pm until 2.00pm the following Tuesday;
(d)For one week in the mid-year June and one week in the mid-year September school holidays;
(e)For three weeks during the Christmas summer school holidays;
(f)Such further contact as is agreed to between the parties from time to time.
4.That for the purpose of contact as referred to in Order 3 herein the Applicant Father will collect the child at the commencement of contact outside the C Police Station and the Applicant Father will return the child to the C Police Station at the conclusion of contact for collection by the Respondent Mother.
5.That the Applicant Father be and is hereby restrained from taking or consuming any illicit mind altering substance or illegal drugs nor consume any alcohol to excess during any contact period.
6.That the Respondent Mother have the sole responsibility for making decisions about the day to day care, welfare and development of the child.
7.That both the Respondent Mother and the Applicant Father retain the long term decisions about the long term care, welfare and development of the child.
8.That the Father pay the Mother’s costs of and incidental to this application.
It was not until the end of the hearing that the child’s representative indicated the orders he invited the court to make on the child’s behalf. The thrust of his proposal[1] was that H continues to live with him and have contact with her mother.
[1] Exhibit 19
Background summary
The mother was born on 22 November 1962 and is 39 years old.
The father was born on 23 January 1963 and is 38 years old.
They commenced cohabitation in either 1986 or 1988. Nothing turns on the resolution of this factual dispute.
They finally separated on 11 October 2000. At separation they continued to live at the family home. The father moved into a shed at the rear of the property, while the mother and child continued to live in the house.
On 14 January 2001 the mother moved to Hobart. When she moved she took H with her. This was the catalyst for these proceedings.
On 1 October 2001 Federal Magistrate Roberts ordered that the child live with her father.
On 6 October 2001 the parties gave effect to orders made by Federal Magistrate Roberts that H live with the father. The mother lodged an appeal against the decision. She did not apply to stay the operation of the orders pending the hearing of the appeal.
On 28 March 2002 the Full Court of the Family Court ordered that the mother’s appeal succeed. The competing residence applications were remitted for re-hearing.
The evidence
The applicant father relied on the following evidence:
·His affidavits filed 13 July 2001 and 26 June 2002 as well as his oral testimony.
·Two affidavits by his father, R S, filed on 18 July 2001 and 26 June 2002 and his oral testimony.
·Two affidavits by his mother, E I S filed 18 July 2001 and 26 June 2002 and her oral testimony.
·Two affidavits of his partner F G G filed 18 July 2001 and 26 June 2002 and her oral testimony.
·Two affidavits from P B C filed 18 July 2001 and 26 June 2002 and his oral testimony.
·A T, child protection worker, gave oral testimony.
The respondent mother relied on the following evidence:
·Her affidavit filed 11 June 2002 and her oral testimony;
·Affidavit of D D filed 11 June 2002 and her oral testimony.
·Affidavit of J S filed 11 June 2002 and her oral testimony.
·Affidavit of B R filed 11 June 2002 and her oral testimony.
·Affidavit of her father M J H filed 11 June 2002 and his oral evidence.
·Affidavit of C C filed 11 June 2002 and her oral testimony.
·Two affidavits by her counsellor K M filed 18 July 2001 and 19 June 2002 and her oral testimony.
·Affidavit of a social worker C W filed 11 June 2002 and her oral testimony.
·Acting Sergeant G P T gave oral testimony.
·Constable K A H gave oral testimony.
·Constable A Jane M gave oral testimony.
Both parties tendered documents that became exhibits in the proceedings.
Pursuant to s.62G(2) of the Family Law Act 1975 on 28 March 2001 Deputy Registrar Weidtmann ordered that a family report be prepared for the hearing. Yvonne Malakoff, a psychologist, prepared the report. It became an exhibit[2] . The recommendations contained in her report are set out below:
An order of residence in favour of Mr S would create further disruption to H. The report indicates H remaining in the care of her mother outweighs the desirability of her returning to the D area and living in the primary care of her father. It is recommended that orders be made to enable H to have regular contact with her father. The current contact arrangements achieve this objective however once H has started full time school it will not be possible to sustain these arrangements if Ms H continues to reside in Hobart given H will attend school on the Friday. The three and a half hours travel time may become more problematic once H is older and visit for shorter periods. Lengthy contact periods during school holiday times could compensate for less regular and shorter visits during the school terms. Should Mr S and Ms H reside closer together in future, which may involve Mr S relocating, other options may emerge.
[2] Exhibit 18
On 12 April 2002 the court ordered that the earlier family report be updated. Fortunately, Ms Malakoff was able to prepare the second report. As with the earlier report, the report dated 25 June 2002 became an exhibit in the child representative’s case. Ms Malakoff gave evidence by telephone. The recommendations contained in her second report are set out below:
It is difficult to make a clear recommendation because of the conflicting information given by the parents; the information indicates they can both provide for H’s physical and emotional needs; the logistical problems of contact given that the parents live over three hours drive apart. If the court were to find that both parents are equally able to meet H’s physical and emotional needs, including the need to have contact with the other parent, an order in favour of Ms H may be indicated given that it seems H has a stronger attachment to her mother even despite the likely questionable disclosures made by Ms H to H. If the court finds that Mr S is better able to meet these needs then an order in his favour may be indicated, particularly given that H is accustomed to being in his care now. However, should the court conclude a systematic pattern of abuse occurred during the relationship then a range of negative implications flows which would include concern about whether Mr S has the necessary attributes to be primarily responsible for H’s welfare. If Ms H and Mr S were to reside in close proximity the assessment indicates H’s interests would best be served by residing with her mother and having regular contact with her father. Orders should take into account the fact that the parents cannot work cooperatively. Thus orders will need to be clearly defined and avoid the need for contact between the parents as far as possible.
On the same day that the court ordered that an updated Family Report be prepared, it also ordered that the child be separately represented. The Legal Aid Commission of Tasmania gave effect to the order and H was represented throughout the hearing.
Court orders
Hannon J heard the competing applications for interim residence on
15 February 2001. On that day, Hannon J made the following orders.
1.That until further order the child H M S born on 8 May 1997 reside with the respondent mother.
2.That until further order the mother have sole responsibility for the day to day care, welfare and development of the said child.
3.That until further order the applicant father have contact with the said child as follow:
(a)between 9am on Friday 16 February 2001 and 5pm Sunday 18 February 2001;
(b)Each alternate week from Thursday at 5pm until Sunday at 5pm commencing on Thursday 1 March 2001;
(c)In Hobart upon the father giving to the mother one week’s notice in writing of his intention to exercise that contact.
4.That for the purpose of contact referred to in paragraphs 3(a) and (b) the mother shall deliver the said child to the father outside the C Police Station at the commencement of contact and the father shall deliver the said child to the mother outside the C Police Station at the conclusion of contact.
5.That the father’s application for interim orders filed on 31 January 2001 be otherwise dismissed and removed from the Active Pending Cases List.
The proceedings were transferred from the Family Court of Australia to the Federal Magistrates Court on 28 March 2001.
The competing applications for final residence were heard before Federal Magistrates Roberts at the end of July 2001.
On 1 October 2001 Federal Magistrates Robert delivered his reasons for decision and made final orders. The orders determined the competing applications for residence and are set out below:
1.That the child H M S (“the child”) reside with the father M S (“the father”).
2.That in order to give effect to order 1 hereof the mother S M H (“the mother”) do deliver the child to the father at the C Police Station at 11.30am on Saturday 6 October 2001.
3.That the mother do have contact with the child as follows:
(a)During the 2001/2002 long summer school holidays and in each second year thereafter for the first half of such school holiday;
(b)During the 2002/2003 long summer school holidays and in each second year thereafter for the second half of such school holiday;
(c)During the Easter school break for the second half thereof in 2002 and in each second school year thereafter.
(d)During the Easter school break for the first half in 2003 and in each second year thereafter;
(e)For the second half of each other school holiday;
(f)During school terms from Friday at 5pm until Sunday at 5pm for the first two out of every three weekends commencing on 12 October 2001;’
(g)On Mother’s Day from 9am until 5pm if contact is not otherwise provided for in these orders.
4.That if contact as hereby ordered includes a Father’s Day in any year that contact shall end at 9.00am on Father’s Day.
5.That for the purpose of such contact:
(a) The mother shall collect the child from the father at the start of each contact period;
(b) If the mother lives within 50 kilometres of the father’s residence, the father shall collect the child from the mother’s residence at the end of each contact period;
(c) If the mother does not live within 50 kilometres of the father’s residence, the mother shall deliver the child to the father at the end of each contact period.
6.That the parties have liberty to apply in relation to the implementation and interpretation of these orders.
7.That save as to costs all extant applications be otherwise dismissed.
On 28 March 2002 the Full Court of the Family Court Granted the mother leave to appeal an order made 14 September 2001, whereby Federal Magistrates Roberts had refused her application to re-open the proceedings after judgment had been reserved. That appeal was allowed. The final residence order made 1 October 2001 was stayed for a period of fourteen days. The purpose of this order was to enable the father to make an application for orders that he have interim residence of the child. This was necessary because the parties had complied with Federal Magistrates Roberts orders and the child had been living with her father pursuant to the 1 October 2001 orders since 6 October 2001. The effect, unless their operation was stayed, of the orders made by the Full Court was that Hannon J’s orders of 15 February 2001 became the operative orders.
In the event, the parties agreed that they would continue to implement the orders made by Federal Magistrate Roberts. They have done so without further order.
The issues
The primary issues at trial included the following:
·The nature of the child’s relationship with the parties.
·The child’s wishes and the weight that should be attached to them.
·Whether the mother demonstrated a lack of judgment pursuing allegations of sexual abuse.
·The parties’ capacity to meet the child’s emotional and psychological needs.
·The nature and extent of family violence.
·The father’s capacity to be an appropriate role model for the child.
·The extent to which the parties will maintain and promote the child’s relationship with her other parent.
·The effect on the child of again changing where she lives.
·The parties’ attitudes to the responsibilities of parenthood.
Credit
This is one of those unusual matters in which it is necessary and proper to make credit findings. The mother’s evidence in a number of material respects was unsatisfactory, not as a consequence of inadvertence, but rather because I am satisfied she deliberately attempted to mislead the court. The mother is a woman of quick intelligence and I do not accept important differences in her evidence on significant matters are mistaken.
For example, in her affidavits when describing the child’s interview with A T, Child Protection Officer on 14 October 2001, the mother said “I asked H if she could tell A what she told me about her bottom. H told A that ”Daddy gives her treats on her botty” and that she didn’t like them because they hurt her”[3]
[3] Paragraph 14 Mother’s affidavit
Ms T gave evidence. She reports that H said, “Dad asked me to close my eyes and I well get a treat”. H then said, “He touches my bottom”[4]. Nowhere does H mention that she was hurt. Similarly, the mother alleges that she told Ms T that H has had two or three vaginal infections after visiting with her father. Ms T denied that the mother gave her this information.
[4] Exhibit 10
In her affidavit evidence the mother said, “On Tuesday 13 February after leaving court with my sister J, I received a text message from M threatening me that he was going to send over “B” to rape me and show me a good time. I was very upset by this.”[5] Her sister, J S, swore an affidavit that addressed this event. The mother showed her the SMS text message. Ms S’s evidence is that the message was “I am sending B over to give you a good time”[6] The father agrees that he did send an SMS message. The reference to B was that he intended to bring B to give evidence in the proceedings to refute allegations concerning the father’s sexual behaviour. Whilst there is an apparent partial consistency between the mother and her sister’s evidence there is an important distinction between an explicit threat to rape in the mother’s testimony and at best an inference that may possibly be drawn from Ms S’s evidence.
[5] Paragraph 22 Mother’s affidavit
[6] Paragraph 18
The father agreed that he did send a message. The message was to the effect that B would come to Tasmania, which B would enjoy. He intended to imply that B would be called as witness to refute an allegation that it was the father that introduced a sexually transmitted disease to the mother. The mother kept the SMS message and showed it to C C. C C says the message was, “B is going to enjoy his holiday in Tas from QLD”. This is consistent with the father’s evidence. There is no evidence that more than one message was sent relating to B. Ms C’s evidence strongly suggests that Ms S’s evidence is unreliable on this issue. The mother’s evidence is a manifest exaggeration. Whether it is a deliberate misrepresentation or a hysterical misconstruction is not clear to me. However, it is an example of significantly erroneous evidence given by the mother.
Whether or not the father consented to the mother’s decision to take H to live in Hobart on 14 January 2001 is a significant issue. Prior to cross examination in this hearing the mother had previously sworn five affidavits. Also she had given oral evidence at the first hearing. When pressed during cross examination, she alleged that the father had agreed that she and H could live in Hobart. His consent, she said, anticipated a departure at the end of January 2001. By contrast, the general effect of her prior testimony, whether oral or written, was that she had been unable to discuss matters concerning H with the father. The mother was obviously discomforted when giving evidence on this issue and I accept the father’s counsel’s submissions that the evidence that she had the father’s agreement was fabricated. Cross examination on this issue proceeded over a period of time. I am satisfied that the evidence was not given in error.
Similarly, in evidence to resist the father’s application for interim residence the mother denied his allegation that she had been diagnosed as suffering from depression. Her explanation that she had either forgotten attendances upon doctors or had not been advised of the medical practitioner’s opinion defies credulity. Between 28 June 1999 and 16 July 1999 she was seen as a patient at O Clinic. She self referred via her general practitioner Dr V N. A preliminary diagnosis was made at the first appointment of “major depression”. At the second appointment she was prescribed an antidepressant, Zoloft. Dr R saw her again one week later to discuss the effect of the antidepressant. She had also seen Dr R, a consultant in Melbourne. Dr R diagnosed her as suffering from depression and referred her to a private psychiatric clinic. Whether or not she was depressed at the time she swore her affidavit is not the point. The relevant issue is her denial that she had been depressed or previously diagnosed as being so.
I accept the submission made by the father’s counsel that where there is a conflict between the father’s evidence and the mother’s, I should prefer the father’s. By comparison to the mother the father was a more honest witness. I am satisfied the he tried to give an honest account of events, including those that had the potential to adversely affect his application. Nevertheless there are some instances where I preferred the mother’s evidence. Those are identified in these reasons.
The father’s circumstances and proposals
The family home at A Street D was sold in mid-January 2002. Upon its sale, the father and H moved into rented premises at 16 L Place, D. It is a three bedroom home, one of which is set aside for H. The home is rented pursuant to a twelve months lease. The father and his partner, Ms G, plan to live together in the reasonably proximate future. They have delayed doing so, pending the completion of these proceedings and the resolution of the parties outstanding financial issues. Ms G will sell her home at T Beach and she and the father plan to purchase a home in the vicinity of D. Some evenings Ms G stays at his place and he and H also visit and stay at hers.
The father’s current income is $880 per fortnight. He receives $680 per fortnight by way of government benefits. This includes $140 rent subsidy. He earns about $100 per week as a carpenter.
The father has enrolled H at school. She attends D Primary School, Monday and Wednesday each week. One day a week she attends day care with Ms B. He does not accept work on Thursday or Friday and cares for H himself. His home is close to H’s school and he takes H to and from school. He plans to return to the paid workforce, only working during school hours.
The father’s parents are elderly. They have been significantly involved in H’s life since her birth. Mrs S suffered an aneurism and has undergone major brain surgery. She has also suffered a heart attack. Mr S senior is in reasonable health. I am satisfied that to the extent that may be required of them, their health does not interfere with their capacity to complement the father’s care of the child by occasionally babysitting H. H often attends their home on either Wednesday or Thursday afternoons. Mr and Mrs S have their other grandchildren at home at the same time and this gives the cousins the chance to spend time together. Usually H is there between 4.00pm and 6.00pm. Occasionally she and the father stay for the evening meal.
The father plans that H will continue to attend D Public School where she has settled well. The father has close friends and many family members in the D area. These include both parents and three of his four siblings and their families. He and H are well established in the D area and his plan is that they will continue to live there. It is his strong preference that the mother return to D or at least the north west region. Should she do so he will facilitate her more extensive involvement in some of H’s activities such as gymnastics and school.
The mother’s circumstances and proposals
The mother lives at 18 P Street, West Hobart. She moved to Hobart in January 2001 and plans to continue to live there. She too awaits a resolution of the property issues and hopes that she will be able to buy a home in Hobart. The mother plans that H will attend school at L Primary School, which school is close to her home. At present the mother receives a NewStart allowance. She has been able to obtain some casual employment as an administration support assistant. Her part time employment ended prior to the start of the hearing. Presently she is enrolled at I College and in September 2002 will start a Diploma in Remedial Massage. She has undertaken Reiki training and anticipates that she will obtain her qualifications as a Reiki healer and consultant by the end of this year. The mother hopes that she will be able to obtain part time employment working during school hours. She believes she has much greater prospects of obtaining employment in Hobart than she would have in D.
The mother’s family and friends are generally located in the D-R area. She has a sister who lives at M about one hour’s drive from Hobart. Importantly for her, her counsellor K M is located in Hobart. She has at least one longstanding friend, C C, who lives in Hobart. Otherwise her friendships are of comparatively recent duration.
Chronology
After the parties established their relationship, they left Tasmania and went travelling throughout Australia. The mother returned to Tasmania in about November 1990. She stayed with the father’s parents until he returned from far north Queensland in September 1991. Together they purchased their home at A Street in October 1991.
H’s birth caused catastrophic injuries to the mother. Within only days of her discharge from hospital, the mother’s health deteriorated dramatically. She was readmitted to hospital and underwent emergency surgery. On the same day that she was admitted the father had travelled to Hobart to be with his mother. She was undergoing major brain surgery, an operation of many hours duration. Whilst in Hobart he received a telephone call from the mother’s father who explained the mother’s dramatically deteriorating health. Immediately the father returned to Launceston. The mother then underwent eight further operations until her last operation on 8 November 1998. During the second hospitalisation H was admitted with her and remained with her at the hospital during the three – four weeks she was a patient. During the subsequent hospitalisations H was not admitted.
As most families would, both the father’s and mother’s families provided a lot of help to the parties during this period. Although in her affidavit the mother alleges, “I have always been the primary care giver and have always attended to H’s day to day needs”[7] that was not the case. Because she was seriously ill and underwent numerous substantial operations during the first fifteen months of H’s life, the mother’s capacity to care for her daughter was substantially impaired. For the first six months of H’s life the paternal grandparents cared for her at least each Thursday morning.
[7] Paragraph 8 Affidavit 11 June 2002
The father gave up his casual work after H’s birth. He did not return to work until H was about nine months old. I accept his evidence that during the first nine months of H’s life he was substantially involved in H’s care, as well as caring for the mother. When her health permitted the mother did as much as she could to involve herself in H’s care. However, because of her pain and colostomy bags she had difficulty bending and holding the baby on her stomach. The pain medication meant that she had to discontinue breastfeeding.
When H was nine months old the father obtained employment as a foreman on a building site at A College. The parties enrolled H in daycare 2–3 days a week. Most days the father dropped H at Mrs J’s daycare centre on his way to work. When he was unable to, the mother or one of his parents did so. His A College position lasted about 4–5 months. He was then unemployed for a further 4–5 months during which time he took such casual work as became available. He was not able to get much work in the months prior to the mother’s final operation. They decided they needed a new start and agreed that once she had recovered from her surgery, the father would go to Broome. Her final surgery, reversal of the ileostomy, required an overnight stay in hospital. Compared to the earlier surgery it was a small procedure from which she recovered quickly. Four weeks after she had been hospitalised the father went to Broome.
The father obtained work in Broome and remained there for 5–6 months. Each four weeks he returned to Launceston and spent the weekend with the mother and child. By that time, H’s daycare arrangements had changed and she was attending daycare with Ms B. Whilst the father was in Broome in addition to daycare, H was cared for by the father’s parents one day a week. Otherwise, the mother was responsible for the child’s care. Ultimately the parties agreed that they would not relocate to Broome, and the father gave up his employment and returned to the family at D.
The arrangements for H’s attendance at daycare continued. Fortunately the father obtained reasonably regular casual employment. The mother returned to work at the end of October 1999 at the Burnie office of the Department of Community and Health Services. She had previously worked at the Department of Community and Health Services for six years between 1991 and January 1997. She obtained further casual work during February 2000. H had continued to attend Ms B’s child care two days a week and when the mother worked she was cared for one or two days each week by the father’s parents.
By at least the start of 2000 the father was working full time. He worked a standard 8-hour day. During early 2000 he did some minor building work for F G. Their relationship developed gradually and is likely to be the reason that the father ended his relationship with the mother. The father was still working full time when the parties separated.
Although their capacity to discuss matters was quite limited, upon their separation the parties discussed H’s future care arrangements. Financially, it was difficult for them to keep the former matrimonial home going. The mother was keen to leave it, which the father did not oppose. He had left the home not long after their separation. During their discussions about future arrangements, the mother raised the prospect that she and H would live in Queensland. Emphatically the father rejected this possibility. The mother made inquiries of local real estate agents and inspected a number of rental properties in the D region. Provided the mother remained in D, the father did not challenge her continued care of H. His desire was that H have free and easy contact with both of her parents, an outcome that he considered was only achievable if the parties live in close proximity to each other.
On 13 January 2001, the father spent time at the A Street home with H. The mother gave no indication that she had made arrangements to leave D with H the next day. On 14 January 2001 the father telephoned the mother concerning plans that he come to the home that evening for dinner. She told him not to. That afternoon when he went to see H he found that the house was closed up, the furniture was gone and the power had been disconnected.
The mother went into accommodation arranged through a women’s support group. Understandably, she was cautious about the father’s reaction to her subterfuge. As she anticipated, he was furious with her. Both parties moved quickly and obtained legal advice
On 28 January 2001 the father arrived at the mother’s home at about 9.15am. She was not expecting him. This was the first time they had seen each other since her move to Hobart. Although he denies it, I accept that the parties argued and that the father demanded to have contact with H. Eventually agreement was reached that he would have contact, supervised by the mother, in a local park. Other than the mother’s concern that the father may take H back to D there was no reason that the contact needed supervision. Her concern is inconsistent with her assertion during the trial that the father agreed that she could live with H in Hobart.
On 6 February 2001 the mother took H to see a child psychologist. She did so without the father’s prior knowledge or consent. The mother was unable to explain why the psychologist recorded H’s name as “H”.
On 12 February 2001 the father arrived at the Brown Street property at about 4.00pm. The mother’s sister, J S was at her home. Ms S answered the front door to the father’s knocking. She asked him to wait whilst she ran out to the backyard to tell the mother that he was at the front door. I accept her evidence that the father, “…jumped the side fence to gain access into the backyard without permission and stormed into the house”[8]. She heard him say to someone on his mobile phone, ‘I can’t do anything, her sister is here”. After the mother asked the father to leave the father said to H, “Your mother is a fucking horrible bitch and this is all her fault.”[9] The mother telephoned the police and the father left the home. It follows that I do not accept the father’s oral testimony that he has never walked into the house uninvited. Because they were afraid the father might return and try to take H, the mother, her sister and H left the home and stayed in a hotel at North Hobart.
[8] Paragraph 20
[9] Paragraph 20.
After the interim hearing the mother’s family conferred and agreed that the mother and H should stay with her sister D D and her family at M. They remained there for the following week.
On 22 March 2001 the mother enrolled H at F Pre Kinder School. H was enrolled as “S-H”.
On about 30 March 2001 the mother moved into her current premises. She did not tell the father her new address.
On 27 May 2001, on the father’s invitation, the parties met at A Street to discuss the issues and attempt to resolve the competing applications. J S was present during the discussions. Not surprisingly the discussion ranged between civility and abuse.
On 15 July 2001 the mother had H christened in the Anglican religion. The mother used the surname “S-H” for the christening. She did not have the father’s consent to do so. The mother explained that she had always wanted H to carry both parties’ surnames. She started to use the hyphenated surname without informing the father that she had done so.
The mother has complied with the contact orders made by Hannon J. Other than the weekend of 19 June 2001, when H had influenza the contact occurred as ordered. Before the 2001 Father’s Day weekend, the parties agreed that contact changeover would take place at 12 noon on Thursday rather than 5.00pm. H had a cold when the mother delivered her. Over the following days she continued to be unwell. On 1 September 2001 the father took her to the doctor. Dr S prescribed a course of antibiotics and Ventolin inhaler. He provided a medical certificate that said, “In my opinion, this child will be unfit for any and all travel from 1 September 2001 to 8 September 2001 inclusive.”[10] H was due to return to her mother the following day. Correctly the father assumed the mother would take H back to Hobart. That is about a three and a half hour drive. The father attempted to contact the mother, but was unable to do so. He then telephoned her sister J S requesting that she ask the mother to call him. When the mother telephoned him they argued about how and when H was to return to the mother. The father made it clear to the mother that he was going to implement the doctor’s advice and would not return H to the mother until she was well enough to travel. The mother spoke to her father and asked him to intervene on her behalf. The father and Mr M H spoke but were not able to resolve the impasse.
[10] Father’s Affidavit 26 June 2002
At about 10.00am on 2 September 2002 the mother telephoned the police. She spoke to Acting Sergeant M. At about 12 noon the mother attended the police station and, accompanied by Acting Sergeant L they went to P C’s home. On the way to the police station the mother had driven past the father’s home and saw that his car was not there. Correctly she deduced that he was likely to be at his friend’s home. With the police she arrived at the C’s home at about a 12.30pm. While Mr C saw that H, “had a bit of a sniffle” he did not believe she looked unwell and felt that she was well enough to be outdoors.
When the mother and police arrived Mr C and the father were sitting outside smoking. Constable K H accompanied Acting Sergeant L. Together they explained their role to the father and Mr C. Constable H stopped the conversation between the mother and the father because it was heated. She saw H and concluded that H did not look sick. When the father showed Dr S’s certificate to her she was concerned about its authenticity given the lack of letterhead. Mr C was rude and aggressive to the police and ordered them and the mother off his property. In spite of the mother’s advice to the father, relayed through the police, that she was not returning to Hobart for a few days the father refused to hand H over to her.
The mother returned to the police station at about 3.00pm. She spoke to Acting Sergeant T who was the afternoon supervisor of the station. Acting Sergeant T told the mother that he would visit the father and see if agreement could be reached concerning H’s return to her. Sensibly, he decided that this was best handled without the mother’s presence. At about 9.30pm he and Constable A M went to the father’s home. There is a significant dispute between the evidence given by Sergeant T and Constable M with that given by the father. He has made a complaint about Sergeant T’s conduct that evening. I do not accept that the complaint is genuinely made. Rather it is a belated attempt by him to try and minimise the damage that police evidence about his behaviour that evening may cause to his parenting application. Where there is a conflict between the evidence given by the police officers and that given by the father, I prefer the police officers’ evidence.
When the father answered the door he saw both police officers, who were in uniform. The police remained for about three minutes. The police stood side by side and were within the arc of the porch light. Both saw that the father had glassy eyes. His speech and behaviour were erratic. In spite of their police uniform he repeatedly asked whether they were social workers. His voice got louder and louder and he was peering at the officers’ badges. The father says Sergeant T “chested” him and was trying to provoke a violent reaction by him. He says that the Sergeant called him “a fucking poofter”. Both police officers deny this. Constable M agrees that the father was agitated and erratic in his movements. Both police officers believe he was affected by some substance. He explained to the family reporter that “he may have seemed a bit dodgy.”[11] Neither officer saw anything that suggested he had awoken from a deep sleep, as he suggested. He was properly dressed and obviously aroused. The father’s counsel emphasised that the police did not inspect the premises, nor apply for a warrant. He submitted that if they had reasonable grounds for believing that the father was affected by an illicit substance they could have done so. I accept that the police did not believe they had proper grounds for obtaining a warrant, nor indeed good reason for doing so. This does not undermine the veracity of their observations. Because of his behaviour that evening, long standing recreational use of marijuana and his unsatisfactory evidence concerning his prior dealings with police concerning his drug usage I am satisfied that it is likely the father was affected by a drug, probably marijuana, that evening. H slept through the entire event.
[11] Exhibit 18 page 2
The next morning the father took H back to the doctor. The doctor agreed that H was well enough to travel. I am satisfied H was always well enough to travel and that the father took H to the doctor that morning to try and retrieve a situation that had apparently got out of control. That morning the mother again went with the police and attempted to retrieve H from the father. H was at her paternal grandparent’s place. Initially the father refused to return H, saying he would do so later in the day. However, the police pressed the issue and he agreed to return the child. The mother and police drove to the father’s parents’ home. The father arrived before they did. When the father handed H to her mother she was distressed. As they drove away H said to the mother, “Are the police going to lock me up, am I going to gaol, have I done something wrong mummy”.[12] Extraordinarily, in spite of H’s distress the mother took her to the police station. H became distraught upon entering the police station. After speaking briefly with police officers the mother then left. She returned to Hobart on 4 September 2001.
[12] Paragraph 99
The mother was deeply distressed by the court’s decision that H live with her father. When she told H that H would be living with her father H said, “no, no, please mummy I want to stay with you”. During the following days H continued to be upset and wanted to sleep with her mother. During the drive to her father’s on 6 October 2001 H cried saying, “why can’t I stay with you mummy”. In spite of her desire to minimise her daughter’s distress, the mother’s level of distress was so great that it is likely she exacerbated the child’s difficulties rather than lessened them.
However once she arrived at her father’s home, H settled quite quickly. It was as he said “like she had never left”. H assumed she was staying with her father for a while and it was only after a few months had passed that he explained that she was living with him, visiting her mother. He was able to reinstate many of the features of H’s daily life so that her life with her father is quite similar to its pattern prior to her removal to Hobart. Unfortunately the mother did not return many of H’s clothes, toys and personal possessions when H went to live with her father. Despite subsequent requests that she does so, she maintained her refusal. This is a decision that she had difficulty explaining in the context of H’s best interests. I am satisfied that it was motivated by personal grief and a desire to make it less likely that H would comfortably settle into life with her father.
On 10 March 2002 H was unwell whilst with her mother. On the drive back to D she was distressed and vomited. During the evening H continued to be unwell and was clearly suffering from asthma. After she had a restless night the father spoke to his family doctor. She was taken by ambulance to M Hospital where she was placed on a nebuliser and a series of tests were undertaken. She was prescribed Ventolin and antibiotics and released from hospital that day. The father sent the mother a text message the following day advising that H had been taken to hospital. The mother telephoned him and they argued about whether her smoking had induced H’s asthma attack. When she called the father again he declined to take her call. The mother then made a series of phone calls before she again telephoned the father. The mother is extremely critical that the father did not telephone her so that she could participate in H’s admission to hospital. However, she was in hospital a comparatively short time and it is unlikely that even had she been made aware she could have arrived from Hobart prior to H’s discharge. Her presence may well have unsettled rather than assisted H. This is because the mother readily overreacts to issues concerning the father’s care of H and the tensions between her parents are only too apparent to H.
In both her affidavit and oral testimony the mother complains that the father failed to tell her what school H was attending. She rang a series of schools before discovering that H was attending the school that the mother and father had always planned she would attend. However, I accept that the father instructed his solicitors to write to the mother’s solicitors providing details of H’s enrolment at school. Although the mother’s solicitors received the letter it was not provided to her. Of course the mother could have asked the child or father. As is her want, she took the longer route.
On 22 April 2002 the father advised the mother that H was to have her adenoids removed the following Friday. The father asked the mother to change her contact weekend so that H could recover from the surgery before she exercised contact. The mother confirmed the father’s information with the surgeon, Mr G. The father refused her offer to take H to Burnie for the operation. The father declined the mother’s request to visit H immediately after the surgery, but nonetheless she arrived at his home at 4.35pm on Friday 26 April 2002. Not surprisingly the father was there. He was with H on the way back from hospital. The mother telephoned him and was advised they would arrive home in about 30 minutes. She waited at his home. H was obviously unwell. The mother asked to see the child. Although H was asleep the father lifted the cover from her face at which point H woke. H began to cry. When the father took her inside she vomited a large quantity of blood.
Relevant law
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act [13]
[13] (1997) FLC 92-755
The relevant law is that contained in the decision by the Full Court of the Family Court, A v A: Relocation Approach[14]. In that decision the Full Court reviews AMS v AIF[15] and provides an application of the manner in which judicial officers should approach the adjudication of these matters. The Full Court held[16]:
[14] (2000) FLC 93-035
[15] (1999) FLC 92-852
[16] at paragraph 108 from 87,551 to 87,553
"It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s.60B provide guidance to a court's obligation to consider the matters in s.68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1.A court will identify the relevant competing proposals;
2.For each relevant s.68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·As one, but only one, of the matters considered under s.68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
a) None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
b) The importance of a party's right to freedom of movement:
· In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s.92 of the Constitution, where applicable.
· In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss.60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court."
The manner in which the Court must examine family violence in proceedings for a parenting order is identified in JG and BG[17] and also Patsalou and Patsalou[18]. Evidence of family violence is relevant insofar as it assists the Court in determining what orders will best promote the interests of the children. The Court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. So far as the evidence allows, the Court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the Court has a responsibility to consider the effect on a child of a violent parental role model.
Section 68F(2) — determining the child’s best interests
[17] (1994) FLC 92-515
[18] (1995) FLC 92-580
The child’s wishes, maturity, sex and background
One of the issues in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. Recently the Full Court of the Family Court considered this issue in R and R: Children's Wishes [19]. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W [20]. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children's best wishes." R and R: Children’s wishes[21].
[19] (2000) FLC 93-3000
[20] (1995) FLC 92-598
[21] supra
H is acutely aware of her parents’ dispute about where she should live and with whom. Unfortunately, she has also become aware of the court proceedings. Whilst her awareness is partly explained by her participation in the family report investigative process, there is evidence that strongly indicates the mother has discussed the proceedings with the child. Perhaps inadvertently, but certainly carelessly she has allowed H to be drawn into issues that are beyond her comprehension. Also she has exposed H to her critical views of the father, to such a degree that she has influenced the child’s perceptions of him. Thus a cautious assessment of H’s asserted wishes must be considered.
H had just celebrated her fourth birthday when Ms Malakoff first saw her. Ms Malakoff did not discuss with H in a detailed way the child’s wishes in relation to residence. She observed H with her parents and as a result of her observations and discussions with the parties concluded, “H has a good relationship with both her parents” and “there are indicators that H has experienced stress since her parents’ separation and is aware of the conflict between them. H has problems of diarrhoea and there are times when she has not had a bowel movement for serval days. Both parents considered stress contributed to her bowel problems, but Mr S stated his belief a poor diet may be a contributing factor. H reported she is now sleeping in her mother’s bed because she is scared in her own bed. H avoided answering some questions about her parents during the individual session with her. The discussion with Ms L indicated H is guarded during sessions with her.”[22]
[22] Page 4 exhibit 17
When the second interviews took place with the family reporter, H was 5 years old. She was no longer living with her mother and had returned to D where she was living with her father. H chatted throughout the sessions with her parents and during her individual session with Ms Malakoff. H told the reporter that she, “wanted to be with her Mama”, that “Mum is best for me”. She explained to the reporter that she enjoys her school and friends and that the gaps between contact with her mother were too long. She dislikes the travel between D and Hobart.
H reported that she was a “little sad” at the end of the contact with her mother but was “happy again quickly” once she was back with her father[23].
[23] Page 4 Exhibit 18
Sometime after the May 2002 holidays H talked to her paternal grandmother about her interview with Ms Malakoff. When she was doing so H was sitting scribbling and painting. H raised the issue not her grandmother. The conversation was unguarded and she spoke freely. She told Mrs S that she would be going to live in Hobart soon and that her mother was taking her to Disneyland. She then said, “Mummy is going to court. This time there are going to be two women judges and things will be different.” Although the mother denies that she has said this to H, I am satisfied that she is the primary source of H’s understanding of the court process.
The reporter concluded that the mother has attempted to influence H’s view of her father negatively. Her concerns were aroused when H asked her not to tell her father about what her mother had told her. She concluded, “H has indicated a preference to live with her Mother. It seems likely Ms H has tried to influence H in this decision”. A most concerning example of this is the child’s statement to the reporter that “Mum told me, he [the father] wasn’t doing proper things when I was a baby.” H did not make statements to the reporter that revealed that she had been exposed to similarly inappropriate and negative comments by the father about the mother. Their absence is important. It undermines the mother’s evidence that the child has made many statements to her such as “he tells me everyday how much he hates you”[24]. I do not accept that the father does this.
[24] Paragraph 143 Mothers affidavit
The mother’s implacable belief that H has a strongly held desire to live with her is an important aspect of her case. Her views are not tempered by H’s age or the fact that H does not have the life experiences to reach a mature and balanced decision concerning her future. When a child becomes embroiled in a passionate dispute, as this child has been, the child is vulnerable to pressure from those to whom she is closely attached. H’s statements to Mrs S and the reporter satisfy me that the child is aware that her mother strongly wants her to return to her in Hobart. H is likely to be motivated to try to and please her mother, a factor that has probably affected the way in which she discussed her wishes with the reporter. Whilst I accept that H does have a slight preference to live with her mother, I am not satisfied that her views are maturely formed on a careful consideration of the competing proposals. Statements that H has made to her mother about her wishes are highly likely to be heavily influenced by the mother. They differ in quality and intensity to those given in the more neutral setting provided by the family reporter. In the more neutral environment the family reporter was able to ascertain a truer understanding of the child’s wishes.
I find that H has a mild preference to live with her mother. She strongly desires to have a continuing relationship with both of her parents. Nothing suggests she even contemplates that her relationships with both parents and her extended family should be disrupted. Her wishes have been influenced by her mother’s negative view of the father, a factor that lessens the weight that might otherwise be appropriate. I am not satisfied that the father has allowed the child’s views to be influenced in the same way. In spite of the mother’s evidence to the contrary he has generally been more cautious in the child’s presence and has not exposed her to some of the negative opinions he has of the mother. H’s obvious desire to maintain her key relationships is an important factor in this matter. As will become apparent this favours the father’s, rather than the mother’s, application. Because her wishes as to her residence have been inappropriately influenced, they give way to other matters more important to her welfare.
Nature of the child’s relationships
Both parents love H deeply and she loves both of them. The father’s positive attitude to the child’s attachment to the mother was manifest in his evidence. He readily acknowledged H’s love of her mother and throughout his discussions with the family reporter recognised the importance of H maintaining a relationship with her mother. Although she ultimately made a similar concession the mother’s acknowledgment of the quality of the child’s relationship with the father was not readily forthcoming. The comparative difference in their approach to this important issue can be seen from the father’s open acknowledgment of it to the family reporter and in his oral testimony and the mother’s comparatively reluctant acknowledgment. Underpinning the mother’s belief about the child’s relationship with the father is her strongly held attitude that his relationship with H is uncaring and potentially, albeit not actually, abusive.
In May 2001 the counsellor observed that H had a good relationship with both of her parents and that both were able to actively engage her in child orientated activities. As a result of her observations and discussions she concluded that both parents, “are able to physically care for H”. I agree. She recommended that H remain living with her mother rather than live with the father. Although not explicitly stated in her report the flavour of her primary findings and recommendations satisfy me that she considered that H’s primary attachment was with her mother.
From the time H was about nine months old the mother was more substantially involved in the child’s care than the father was. Whilst there were periods when he was unemployed, he was much more substantially in paid employment than the mother. In the year prior to separation the mother’s paid employment was limited and she and H were able to spend considerably greater time together than the father could. Implicitly, the father recognised the child’s attachment to the mother when at separation H remained in her mother’s care. That care arrangement would have continued without challenge by him had the mother not taken H to Hobart.
Once H moved to Hobart she was cared for almost exclusively, but for periods of contact, by the mother. This continued for about eight months. Because the mother was primarily responsible for H’s day to day care the child’s primary attachment to her mother strengthened and by September 2001 H was primarily attached to her mother. Her attachment to her mother, however, was not all encompassing. During the May 2001 observation session the family reporter reports, “H was delighted to see her father and his interactions with H indicated that that they were accustomed to playing together. Observations of H with her father did not support Ms H’s assertion that Mr S provided little care for H or that he might be emotionally abusive to her”[25].
[25] Page 3 Exhibit 17
During the first nine month’s of H’s life the father was very substantially involved in her care. Other than the first period of hospitalisation, the father cared for H whilst the mother underwent repeated surgical procedures. During the mother’s recovery and at other times when she was too ill to care for herself, let alone a child, the father was primarily responsible for H’s care. This gave their relationship a solid base of loving and nurturing care by the father towards his infant daughter. Other than the period when he was in Broome, he was an important part of H’s daily life. I do not accept the mother’s evidence that he was routinely away fishing or absent from the house pursuing his own social interests anywhere near the extent that she asserts. Thus I am satisfied that just as the reporter later observed, at separation H had a good relationship with her father. They were deeply attached to each other and the child was comfortable and happy in his company.
Since October 2001 the father has been primarily responsible for H’s day to day care. The mother’s involvement decreased substantially and has been structured in accordance with the orders made by Federal Magistrates Roberts. The combined effect of H’s previously solid relationship with her father and his much greater day to day responsibility for her care during the last twelve months has enhanced the quality of their relationship and H’s attachment to him.
I agree with the family reporter that H’s discussions with her reveal a slight preference that she live with her mother. Those wishes must be treated cautiously because of H’s age and the attempts made by the mother to influence them. The mother’s evidence is that at contact changeover H was sometimes hysterical about returning to her father. She gave a forced concession that this was occurring less and less often. The court viewed a video[26] taken without H’s knowledge or the mother’s consent that captured H’s return from contact. It showed that H moved comfortably from her mother to her father and that H was not at all distressed. The video is consistent with H’s account to the family reporter that she was happy once she is back with her father. It similarly corroborates the thrust of the father’s evidence on this issue.
[26] Exhibit 11
H’s relationship with both of her parents is essential to her sense of wellbeing, happiness and security. She needs regular and significant interaction with both of them. Although she is primarily attached to her mother her attachment to her father is deep and committed. It is apparent that there is little to distinguish the quality and importance of the child’s relationship with each of the parents.
H has always enjoyed a significant relationship with her paternal grandparents. She enjoys their company and is used to seeing them frequently. Because she has enjoyed a greater than usual amount of time with her grandparents H would miss them if she were not able to enjoy their free and ready availability which occurs whilst living in reasonably close proximity to them.
H is also close to members of her mother’s family. Prior to separation, the mother’s parents and sisters were not as substantially involved in H’s care as the father’s parents were. Since separation, the mother’s family has provided her with strong support and the amount of time that H has enjoyed with her maternal relatives has increased. Since H has lived with her father it has increased further. That is because the mother spends many of her contact weekends staying with her family at R. Although the distinction is a fine one, H’s relationship with her maternal relatives is not as strongly based as that with her paternal grandparents. By comparison to her paternal grandparents, H is used to slightly longer absences between visits with her maternal relatives.
Should H live in Hobart the opportunity for easy and regular contact with both sides of her extended family will reduce. The maternal grandparents are unlikely to move to Hobart. Virtually all of H’s family to whom she is close are likely to remain in the D region indefinitely. The long term effect of a reduction in the frequency of contact that H has with members of her extended family is that they will slowly weaken. Her opportunity to enjoy these relationships will lessen. Such an outcome would be inconsistent with her best interests. The father’s proposals make the accessibility of the child’s relationships with her extended family much easier to maintain than the mother’s do. This is a relevant although not critical matter that weighs in favour of the orders sought by him.
H has a comfortable relationship with F G. Ms G impressed me. She clearly understands that her relationship with H must be based on friendship and that it does not usurp the maternal relationship H has with her mother.
Changing the child’s circumstances
This is an important issue in this matter. Since separation H has experienced two major changes in her circumstances. The family reporter correctly emphasised that at separation H needed stability until long term decisions could be implemented. When the mother moved H to Hobart she acted impulsively and with little consideration for H. Her decision was self-focussed and ruptured the reasonably smooth transition H was making to her parent’s separation. Although H had the comfort of continuing to live with her prime care giver when she was in Hobart, she was stressed by her circumstances. Her stress was partly reflected in her inability to sleep in her own bed and toileting problems.
Although at a superficial level H returned to her father without obvious continuing distress, separation from her mother is likely to have been initially confusing and in the early months traumatic. H had not been separated from her mother other than for periods of contact since separation and had enjoyed her mother’s primary and daily care in the years prior to separation. Neither parent was able to explain the difficult events that had overtaken H, which can only have increased her confusion. In the time that has passed since then, the family reporter concludes, which conclusion accords with my own findings, that H’s stability is now with her father and family members in the north-west. I am satisfied that H has adjusted to living in her father’s primary care. He recognises the benefits of stability for this child much more than the mother does. This is probably because he is a more settled person. When giving evidence he presented as a calm and reliable person. His personal security and stability makes it more likely that he values stability and can achieve it for the child to a greater degree than the mother can.
The mother has not demonstrated the same commitment to stability and consistency that the father has. Her decision to move to Hobart disrupted H’s relationships with family, friends and her father. Her proposal that H return to Hobart again misunderstands the effect of this on the child by asserting that she would be returning to an environment with which she is familiar. Although H has previously lived in Hobart, her friendships and schooling have been established in D. Her time in Hobart was too brief for a child of her age to establish meaningful connections there.
H has adjusted to a considerable degree to living with her father and having substantial contact with her mother. If the mother is successful H will have to leave her father and live with her mother in Hobart. The mother’s proposals when compared to the father’s do not promote stability and security.
As is apparent I am not satisfied that a court should impose further change on this child unless there are good reasons associated with her welfare for doing so. I am satisfied that there are not. The findings made pursuant to the subsection favour the father’s proposal and carry significant weight.
Practical difficulties and expense of contact
Although in her evidence the mother alleged that the father had agreed to her relocation to Hobart with the child I do not accept this evidence. This was an important factual issue and the mother’s belated revelation was an attempt by her to avert criticism that her decision to move H to Hobart was a poor one measured against H’s best interests. Hobart is about a three and a half hour drive from D. There is no reliable public transport and the effort involved in regular contact between Hobart and D is substantial. H’s experience of it, is that it is arduous and tiring. This accords with the father’s observation of the effect of the long travel on the child but is inconsistent with the mother’s report to the family reporter that the travel didn’t seem to bother H. The distance between D and Hobart creates difficulty of expense and frequency of contact. Once H’s schooling becomes more onerous her capacity to manage a fortnightly return trip between the two cities reduces. I accept the father’s assessment that it means the child is overly tired and this almost inevitably make the following school day a strain for her. Eventually she will come to resent the travel and become increasingly resistant to it. There is a prospect that she will increasingly resent the parent whose circumstances require her to regularly travel these distances. She may also come into contact with the parent with who she usually lives.
After H returned from a contact visit with the father she told her mother that, “A big boy pulled her pants down”. The child could not tell her mother who the big boy was. She referred to a boy “R”. On 7 August 2001 the mother took H to the doctor again. They attended upon Dr N. Dr N’s records reveal that H had an irritated vulva. He reached a preliminary view that H had thrush[35]. He advised the mother to apply Caniston cream to the child.
[35] Exhibit 3
Later that day the mother contacted the Department of Community and Health Services. She reported H’s statement and her belief that H may be referring to Ms G’s 17 year old son. The child protection worker advised that, “There may be many explanations for what the little girl is saying and it may be an idea to address these concerns with the ex-partner.”[36]The mother did not make any inquiry of the father, either directly or through her solicitors.
[36] Exhibit 10
Ms G’s son is a full time student who lives in a university residential college in Hobart. He returns home during university vacation, mid-year and at Christmas time. The mother’s conclusion that H was referring to Ms G’s son is a process reached by confused logic. Sensibly she thought about boys that H may come into contact with whilst in her father’s care. Unreasonably, she rejected consideration of boys who may be bigger than H. For example, she has numerous older male cousins with whom she comes in contact as well as the children of family friends. Her decision to postulate to Dr N and the child protection worker that H probably described Ms G’s son when she had such little information that could justify her statement is unfortunately revealing. It demonstrates the mother’s preparedness to readily reach a sinister conclusion about the father’s care. Too readily she again demonstrated her preferred approach is to disregard relevant information which is not critical of the father in preference for a conclusion that shows him in a poor light.
Unbeknownst to the mother, on a contact weekend that coincided with the AFL grand final, probably during September 2001, H fell and banged her groin area. Her father checked and saw that she was not bleeding. Later H complained that passing urine hurt. The father took her to Dr N who he says prescribed antibiotics. The father alleges that at the end of contact he gave the antibiotics to the mother and that he rang later advising her that the urine analysis was clear. The mother denies receiving any such information. Whilst I accept that the child injured herself, I do not accept that the father told the mother about it. He had good reason to anticipate that her reaction would be exaggerated and highly critical of him. By this time he was well aware that the mother alleged he had sexually, physically, emotionally and financially abused her. Although he did not say so, it is highly likely that he withheld the information from the mother fearing that she may go so far as to wrongly accuse him of abusing their daughter.
On the first weekend that H exercised contact to her mother after Federal Magistrates Roberts’ orders were given effect to H said, “My botty hurts Mama”[37]. H could not recall how she hurt it. Her mother settled her and reminded her that no one was allowed to touch her there. H said, “But mummy they do hurt me there”. When asked who hurt her H said, “My daddy does, because sometimes he gives me favours on my botty in bed, but I don’t like them mummy ‘cause they hurt me”. H explained that she did not mean she had been smacked. The mother then contacted the Department of Community and Health Services.
[37] Paragraph 113
I have already made findings about the content of these interviews and do not repeat them. After interviewing H with her mother on 14 October 2001 the Child Protection Officer, Ms T concluded that the mother may have prompted H with her disclosures and advised Ms H that she should return H to her father.
A second interview was conducted at the father’s home. At the second interview the coordinator of intake and assessment, Mr J C, accompanied Ms T. H remembered Ms T and happily accompanied her to her bedroom. Her father was not present during the interview. H was unable to recall the matters she had previously told Ms T that related to being touched on her bottom. This reinforced the Child Protection Officer’s preliminary view that H’s original statements had been prompted or coached by others. H’s mother denies that she coached H to make these disclosures. I accept her denials. This does not mean, however, that I do not consider that the mother has created the environment, which resulted in the child reporting events that have not happened to her.
On 20 or 21 December 2001 H came to her mother’s care for four weeks contact. On Christmas Day the mother noticed that H had a quite smelly vaginal area. H said to her mother, “That her daddy was very naughty”. Again the mother decided to take H to the doctor for an examination. She took the first available appointment, which was 28 December 2001 with Dr N. Dr N observed that H had an inflamed vulva and malodorous perineum. He took a swab from her vulva and her skin. The laboratory analysis reported that the swab taken from her vulva was normal. Her skin had numerous mixed bacteria. She was prescribed antibiotics. Dr N advised the mother that the child’s symptoms might be due to poor hygiene. Since then H has not had any further bouts of vaginal inflammation or discharge, nor has she made any statements of the type reported by her mother.
The father denies that he has behaved in an inappropriate sexual way towards H. He and Ms G are adamant that her son has only met H on four or five occasions and that he and H were not alone during any of them. There is no evidence that contradicts this evidence. The Department of Community and Health Services concluded that the allegations that H may have been exposed to inappropriate sexual contact are unsubstantiated.
Although she denied it, I am satisfied that the mother is hyper-vigilant in matters that concern H and her father. She has a very poor view of Mr S as a father and searches for signs that he may neglect or mistreat H. I have no doubt that H is acutely aware of her mother’s distrust of her father and that her parents are in serious dispute about her. I consider it most unlikely that the mother is able to talk to H about matters concerning her father’s dealing with her in a calm, neutral fashion. Rather the conversations are likely to be emotionally charged. Although she would not mean to do so the mother misconstrues H’s words. It is highly probable that she creates an environment that in itself suggests to H that the child should make a complaint of some type about her father. The family reporter described her parenting style as “smothering”. When she gave her evidence the mother was very distressed, almost continuously so. Her behaviour surrounding H’s enrolment at school and hospitalisation verged on hysterical. It lacked judgment. This reinforces my comfortable satisfaction that the mother is neither a reliable reporter of matters concerning her daughter nor capable of providing a neutral environment vis the father.
Recurring vaginal infections in a child can indeed be a legitimate cause for concern. Particularly that the child’s hygiene is not adequately addressed and a sign that the child may be being sexually assaulted. The doctors consulted by the mother were made aware of her concerns that H may be being interfered with. She recounted H’s statements. None suggested that H’s symptoms were consistent with the mother’s fears. H was interviewed twice by a Child Protection Officer who concluded that H’s statements were coached. Rather than coached, my assessment is that the mother has unwittingly embellished the child’s statements.
I am satisfied that H has not been sexually interfered with by her father nor that Rodney G pulled her pants down. Perhaps another child did. The possible identity of that child will not now ever be revealed. The event does not play on H’s mind and it is unlikely that she will remember the person or the event. In itself the event is unremarkable. Her mother’s anxiety and H’s awareness of her mother’s suspicion of her father, even if accurately reported, contaminate H’s statements to her mother. I am comfortably satisfied that this child has not been sexually interfered with by her father or at all.
Had the mother known of the September 2001 fall she says that she may not have contacted the department in October 2001. This is because she is satisfied that H’s subsequent description of being hurt by her father is explained by the fall. I did not accept this evidence. Demeanour needs to be considered carefully. Having seen and heard the mother during the course of the trial she left a powerful impression that she “holds residual fears that abuse did occur”[38].
[38] Page 2 Exhibit 18
H’s statements were made by a child exposed to an environment hostile to the father and those associated with him. It is an environment that fuels criticisms and complaint by H; which statements in turn are accepted without judgment. Away from her mother’s influence it becomes apparent that H disavows or simply does not recall what it is that was supposed to have happened to her. There is a real risk that this pattern will continue. This will almost inevitably seriously damage the child’s relationship with her father. There is also a high likelihood that the mother will continue to misinterpret and report H’s statements to agencies required to investigate the child’s circumstances. Eventually this will be gruelling and unsettling for the child. This is a significant factor that weighs substantially in favour of the father’s application. It is important that the child be able to form and maintain her own opinion of her father, an opinion that will reflect their happy and secure relationship. Unless they have substantial and frequent time together the risk of long term damage to their relationship because of the mother’s anxiously suspicious attitude to the father is substantial.
When the mother arranged H’s christening she advised the father that she would do so and invited him to attend. He is an atheist and was uninterested in the mother’s plans for H. The mother’s sister heard her invite the father. The particular significance of the christening is that it revealed the mother’s incremental change of the child’s surname. She did not discuss this with the father. It was a step taken without regard to the child’s established identity and the father’s interest in the name by which the child was known. That the name change was effected by subterfuge reveals that the mother was aware that this step was taken contrary to the father’s position. She had already taken steps to use a hyphenated surname and also that the child use only her surname. She did not consider that this was likely to become confusing for the child and may have involved the child’s participation in her mother’s subterfuge. That is, keeping the name change secret from her father. This incident is instructive when understanding the mother’s attitude to her responsibilities as a parent and undermines her evidence that she values the child’s relationship with the father and respects his role as H’s parent. Similarly, her refusal to allow H to take her clothes and toys when the change of residence was given effect to is an unfortunately clear demonstration of a parent putting their own needs ahead of the child’s. It was a lapse of judgment at the time that has not been rectified since.
The mother does not carry an onus to establish good reason for her decision to move to Hobart. Nonetheless the decision was subject to close scrutiny because it revealed the manner in which the mother made an important decision affecting the child. The court is satisfied that the mother’s decision to move to Hobart placed her desire to build a new life in a larger city well ahead of the benefits to the child of stability, security and a free and easy relationship with her father. A parent’s interests do not always have to give way to their child’s interests. Understanding the manner in which a parent balanced the competing interests before making a decision adverse to the child’s interest can give some insight into the parent’s attitude to the responsibilities of parenting. The mother gave scant regard to the child’s interests and almost none to the father’s relationship with his daughter. It reinforces my comfortable satisfaction that where there is a conflict between an outcome that promotes the mother’s self interest as compared to maintaining the child and father’s relationship it is likely that the latter will give way to the former. This weights significantly in favour of the father’s application for residence.
When H first came to live with her father neither parent gave her an adequate explanation about the impact of the court’s decision. Because she was profoundly distressed, the mother’s emotional distress almost certainly unsettled H and added to her uncertainty about what was happening to her. Curiously, the father did not offer H any explanation about what was happening to her. He left it to H to work out for herself. The child needed more than that. Not only did she need his calm support, but also a simple, age appropriate explanation about her change in residence. Importantly, she needed strong reassurance that she would have regular contact to her mother.
When the father pushed his way into the mother’s house and yelled at her during contact changeover he demonstrated very poor judgment as a parent. The child was exposed to behaviour that she should not have been. He bears responsibility for the incident that I have already made findings about. Similarly, his failure to return H over the Father’s Day weekend and that incident in its entirety showed little regard for court orders or the distress that he knew his actions would provoke in the mother. These regretful incidents, however, do not define the father’s attitude to the responsibility of parenthood or his usual mode of behaviour. They were aberrant and I am satisfied are unlikely to recur.
Capacity to meet the child’s needs
Both parents are ambitious that H succeeds educationally. Ms R reported that the school is happy with H’s progress. The school prepared a report, which became an exhibit[39]. It shows that H is doing well and has established nice friendships. Importantly her father has become involved in school and community activities that complement the child’s education. H is settled at school and achieving in accordance with her chronological age. Both parties impressed as intelligent people and whether H is at school in Hobart in her mother’s care or D in her father’s care, both will ensure that she receives a well rounded and appropriate education.
[39] Exhibit 5
An important part of the mother’s case is that the father abuses marijuana and at times other drugs. Both parties used marijuana quite extensively during their cohabitation. At one point, well prior to H’s birth, the father maintained a marijuana crop under their house. It was used by both of them and probably their friends. Both agreed that marijuana helped them relax as well as helping the mother manage pain. Because the mother used marijuana extensively, including extensively after H was born, her complaint that the father did so as well is curious. Evidentially the father dealt with this issue poorly. He gave varying accounts of when he last used marijuana and attempted to convey the impression that he had not used marijuana for about
two–three years. His criminal antecedents were produced in answer to a subpoena. Relying on it and the mother’s testimony, the mother’s solicitor tested the father’s evidence and it became clear that he had used marijuana more recently. On 27 July 2001 his home was raided by 8 members of the drug squad during which raid they found a small quantity of marijuana. He received a caution in relation to using, cultivating and possessing marijuana.
Marijuana use is illegal in Tasmania. The issue for the court is the extent to which the parties use of it will limit their capacity to effectively parent their daughter. The father’s use of marijuana is more recent than the mother’s. Neither, however, still use it extensively nor does the evidence satisfy me that their use of it poses an unacceptable risk to H that in the care of either parent she will be placed in a situation at risk because of their use of cannabis. When the police attended his home on Father’s Day 2001, H was asleep. Had an emergency arisen concerning the child the father’s capacity to respond to it was impaired to a small degree because he had been using marijuana. It was not impaired to a degree that the child was at risk. Because of the mother’s prior use of marijuana, often in concert with the father, it is likely that both parents previously accepted that the risk to H because of their use of cannabis was relatively insignificant. It is likely that that was so.
Further proceedings
Parenting orders are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospects for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties moving on with their lives. It can undermine their capacity to parent to the fullest extent of their ability. At present, these parties are extraordinarily hostile to each other. Further litigation will keep that hostility at the forefront and undermine such capacity as they have to let the past go. To the extent possible I am satisfied the court should make orders that will be least likely to involve these parties and child in future litigation.
This issue has only marginal relevance in the matter. I have already found that the child dislikes travelling between her parents homes. There is a prospect that her compliance with the rigours of travel required on the mother’s proposals will create difficulty maintaining good compliance with the contact orders in the long term. As a consequence this may result in contravention proceedings. Because the travel demands on the child need not be as great if she lives with her father this outcome is less likely.
Conclusion
I am conscious of the mother’s right to freedom of movement and I take into account the sense of security that she believes she would gain by living in Hobart. In no sense does she have to justify her desire to move to Hobart. There is no onus she must meet. The only issue is the child’s best interests. I have sympathy for her and the situation in which she finds herself.
In order to give effect to the mother’s primary application for residence I must make orders that conflict with the child’s opportunity for regular contact with both parents. When evaluated comparably, the mother’s proposal does not offer the child the level of security and stability that the father’s will. H has undergone significant changes in residence during the last eighteen months. She could manage a further change in residence. That however is not the end of this issue. Whilst inevitably children have to cope with changes in their lives as they grow up
I cannot see that it is in a child’s best interest to force change unnecessarily.
H is attached to both parents and I agree with the family reporter that both have the capacity to provide well for her physical and intellectual needs. Her stability now is with her father and family members in north-western Tasmania. Whilst in the early period after she returned to D she was distressed at contact changeover, the video of recent contact changeovers demonstrates that H is no longer distressed when separating from her mother and returning to live with her father. She is well settled in school and enjoys her father’s participation in her school life. Whilst H expressed a desire to live with her mother, for the reasons I have already outlined her wishes must be treated cautiously. To a much greater degree than the father has, the mother has attempted to influence the child’s wishes.
Although H has a stronger attachment to her mother the difference in attachment is not substantial and does not override other factors more relevant to the child’s long term welfare.
At separation, H needed stability, in terms of her home, her extended family relations and importantly the constancy of her relationships with her parents. When the mother moved to Hobart she acted impulsively and gave scant regard to the child’s best interests. Since then, the mother has exaggerated prior history and come to believe that she was the victim of an abusive relationship. As I found during this judgment this has impaired her judgment and she has drawn adverse conclusions about incidents and issues involving the father and child that auger poorly for her capacity to maintain and promote the child’s relationship with the father in the future.
The father does not have the support available to him in Hobart that the mother has available to her in north-western Tasmania. Already H dislikes travelling between Hobart and D, an attitude that is likely to persist. Once she starts school regular contact will best be maintained if it can be supplemented by a parent travelling rather than H always doing it. Because she has family and friends in north-western Tasmania the mother can travel and exercise overnight contact in an environment that is friendly and familiar to the child. By comparison the father does not have the financial capacity to supplement contact by regularly travelling to Hobart. It would be necessary for him to stay in rental accommodation which is demonstrably less satisfactory.
In her father’s care H will be able to maintain her friendships and close family relationships. The essential structure of her daily life will continue. She will enjoy regular contact to her mother, which must take into account distance and change to some extent when the child starts school. The parties will be required to attend confidential counselling with the aim of enhancing communication between them. Both have changes to make if this is to be achieved. It is in H’s interests that they attempt to do so. Because communication has been difficult I have made orders that provide for the provision of information and, as the court counsellor indicated was necessary, set out with particularity the contact arrangements. H will spend more of the school holidays with her mother than with her father. The difference is not substantial, but it is important that the child have block periods of time with her mother so that they can maximise the enjoyment that their relationship provides.
Because the mother will have contact in north-western Tasmania she will have more of the burden of travel than the father will. He resents the effort of travel and complains about the cost of it. Nonetheless, he will be required to regularly deliver the child to the mother at C. There is no good reason why he should not do so. This will clearly demonstrate to H his active support of her relationship with her mother.
Having considered the entirety of the evidence I am satisfied that the orders I will make are orders that are in the best interests of the child. For these reasons I make the orders identified at the commencement of the judgment.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 6 November 2002
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