Samuel and Wright
[2009] FMCAfam 1170
•20 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMUEL & WRIGHT | [2009] FMCAfam 1170 |
| FAMILY LAW – Children – mother wishes to relocate to Victoria with child – mother will relocate even if child not permitted to relocate – best interests – meaningful relationship with both parents – which parent will encourage relationship with other parent – family violence. |
| Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZU |
| Carpenter and Lunn (2008) FLC 93-377 Chappell and Chappell (2008) FLC 93-382 |
| Applicant: | MR SAMUEL |
| Respondent: | MS WRIGHT |
| File Number: | LNC 796 of 2007 |
| Judgment of: | Roberts FM |
| Hearing dates: | 20, 21 & 22 October 2009 |
| Date of Last Submission: | 22 October 2009 |
| Delivered at: | Launceston |
| Delivered on: | 20 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Tucker |
| Solicitors for the Applicant: | Grant Tucker |
| The Respondent was not represented. |
| Counsel for the ICL: | Mr P Welch |
| Solicitors for the ICL: | Philip Welch |
ORDERS
That MR SAMUEL (“the father”) and MS WRIGHT (“the mother”) have equal shared parental responsibility for [X] born [in] 2003 (“the child”).
That the child is to live with the father, with such to commence at the end of the current Tasmanian school term or when the mother moves to live in Victoria, whichever is the sooner.
That the child is to spend time and communicate with the mother as follows:
(a)In Victoria for five weeks during the child’s long summer school holidays, commencing on 28 December in odd numbered years and commencing on 22 December in even numbered years;
(b)In Victoria for two weeks during the child’s May/June school holiday each year;
(c)In Victoria for one week during the child’s August/September school holiday each year;
(d)In Victoria for at least half of the child’s Easter school break each year as agreed but failing agreement during the first half in even numbered years and the second half in odd numbered years;
(e)During other reasonable times in Tasmania upon the mother providing the father with reasonable notice of her intention to be in Tasmania;
(f)Telephone or internet communication at any reasonable times.
That for the purpose of the preceding Order hereof the parties are to contribute to the costs of the airfares for the child (and any necessary accompanying person) as may be agreed between them, but failing agreement the mother is to book and pay for such airfares from Tasmania to Victoria and the father is to book and pay for such airfares from Victoria to Tasmania.
That each party is restrained from denigrating the other parent in the presence of the child or from allowing the child to remain in the presence of any person denigrating the other parent.
IT IS NOTED that publication of this judgment under the pseudonym Samuel & Wright is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LAUNCESTON |
LNC 796 of 2007
| MR SAMUEL |
Applicant
And
| MS WRIGHT |
Respondent
REASONS FOR JUDGMENT
In both Carpenter and Lunn[1] and Chappell and Chappell[2] slightly differently constituted Full Courts of the Family Court said:
… … The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.
[1] (2008) FLC 93-377, Finn, Boland & Thackray JJ on 19 August 2008
[2] (2008) FLC 93-382, Warnick, Boland and Thackray JJ on 15 September 2008
In an earlier 2008 decision[3], FM Walters had expressed a similar view.
[3] Mills & Watson [2008] FMCAfam 2 at paragraph 1
In my view, those views make grammatical and legal common sense, which I intend to apply.
The issues
The main issue that the Court must decide is whether [X] born [in] 2003 (“the child”) should live with his mother in Victoria or with his father in Tasmania.
The Applicant is MR SAMUEL (“the father”) and the Respondent is MS WRIGHT (“the mother”).
The father’s proposal as set out in his Case Outline was as follows:
1. That all extant Orders be and are hereby discharged.
2. That the parties share equal parental responsibility for child of the parties’ marriage namely [X] born [in] 2003.
3. That the aforesaid child lives with the applicant father.
4. That the respondent mother (if living in Tasmania) spend time with the child as follows;-
a. Each alternate weekend from Friday after school until Monday before school.
b. One half of all school holiday periods.
c. On special occasions such as Christmas, the child’s Birthday, Easter as may be agreed from time to time between the parties.
d. Reasonable telephone contact at any time.
e. Other times to be agreed between the parties.
Or in the alternative the respondent mother (if living interstate) spend time with the aforesaid child as follows;
a. One half of all relevant school holiday periods.
b. Further times in Tasmania upon provision of sufficient notice.
c. Telephone or internet communication at any reasonable time.
5. Such further or other Orders the Court deems appropriate.
In the witness box the father varied his proposal slightly. He suggested that, if the mother is living in Victoria, the child should spend the whole of the Tasmanian term school holidays and one third of the Christmas school holidays with her in Victoria. However, in his closing submissions, the father’s counsel had received fresh instructions and the father’s proposal was varied again. He proposed that in relation to school holidays the child should spend two weeks with his mother at the end of Term 1, one week at the end of Term 2 and five weeks during the long Christmas school holiday. In addition, there should be telephone and internet contact at reasonable times.
In her Case Outline the mother sought Orders as follows:
1. That Ms Wright (“The Mother”) have sole parental responsibility for [X] born [in] 2003 (“the child”) due to the escalation of disclosures of abuse and neglect from the child.
2. That the child live with the Mother and the Mother be permitted to relocate to Victoria with the child.
3. That the child spend time with the father as follows:
(a) For half of term 1 gazetted Victorian school holidays.
(b) For half of term 2 gazetted Victorian school holidays.
(c) For half of term 3 gazetted Victorian school holidays.
(d) For half of the longer summer Victorian school holidays including Christmas in 2010 and each alternate year thereafter;
(f) Other such times as agreed between the parties.
4. That the child communicate with the Father as follows:
(a) By way of telephone where the Father shall telephone the child’s mobile telephone between 4pm and 6pm 3 nights per week or other such reasonable times as may be agreed;
(b) Via webcam once per week and other such reasonable times that may be agreed.
5. That the Mother shall facilitate additional time between the child and the Father if the Father is to travel to Melbourne upon the Father providing fourteen (14) days notice as to the specific times he is travelling and the time he elects to spend with the child.
6. That the Mother shall facilitate additional time between the father and the child if she is travelling to Tasmania and shall provide the Father with fourteen (14) days notice as to her proposed travel.
7. That both parties shall be restrained from using physical discipline on the child.
8. That neither party denigrate to or in the presence of the child.
9. That the Mother shall authorise the child’s school to forward copies of all school reports, school notices and other relevant information of the child to the Father.
10. That each party shall notify the other as soon as practicable if the child sustains a serious injury or illness.
In response to a question from me at the start of the hearing, the Independent Child’s Lawyer (“ICL”) indicated a preliminary view that he supported the father. That position had not changed by the end of the hearing.
Background
In this section I propose only to give a very brief outline of the background to the dispute between the parties. I will refer to other relevant factual matters below when I consider those factors that the law requires me to consider.
The parties commenced their relationship in 2002. The child was born in late 2003. The parties married in January 2006 and separated in January 2007. Both have re-partnered.
The father and his new partner have had a child; a daughter ([A]) who was born in December 2008. The mother and her new partner have had two more children; a son ([Y]) born in January 2008 and a daughter ([Z]) who was born approximately one month before the hearing of this matter.
Since the parties separated, the father has had regular contact with [X], apart from two extensive periods when the mother unilaterally stopped contact, contrary to the father's wishes. I shall refer to that more below.
The mother wishes to leave Tasmania to live in Victoria with her new partner. She wants to take [X] with her, but she made it very clear that she will be moving to Victoria with her other two children even if she is not allowed to take him to live there.
Relevant Law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[4].
[4] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
children have the right to know and be cared for by both their parents; and
children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
parents should agree about the future parenting of their children[6].
[6] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[7].
[7] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[8].
[8] Subsection 60CC(3)
Clearly, the mother wishes to relocate the child from Tasmania to Victoria.
The law in relation to relocation of children is very fully set out by Boland J in Morgan & Miles[9]. I do not propose to restate all of what her Honour said. However, I think that it is worth setting out what she said at paragraph 80:
[9] (2007) FLC 93-343
It follows from my exposition of the legislation, that earlier core principles:
- that the child’s best interests remain the paramount but not sole consideration;
- that a parent wishing to move does not need to demonstrate “compelling” reasons;
- that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
- the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,
remain valid.
Those “earlier core principles” to which her Honour referred come from decisions such as AMS v AIF; AIF v AMS[10], A v A; Relocation Approach[11] and U v U[12].
[10] (1999) FLC 92-852
[11] (2000) FLC 92-035
[12] (2002) 211 CLR 238, (2002) FLC 93-112
It is not surprising that relocation cases often cause significant anguish for the litigating parents and are difficult for courts to decide. The difficulties were succinctly put by Brown FM as follows[13]:
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.
[13] P & P [2006] FMCAfam 518
It is clear that the court is not bound by either of the parents’ proposals. It must do what is in the child’s best interests. See Bolitho and Cohen[14].
[14] (2005) FLC 93-224
The evidence
Although my directions of the 16 June 2009 specified that there should be only one trial affidavit by each party and one affidavit from each witness, neither party complied with that. In particular, the parties each relied upon multiple affidavits of their own. As a consequence, I had before me the following affidavits:
a)Filed on behalf of the father:
i)Four affidavits by the father; and
ii)Two affidavits by the father’s partner (Ms H);
b)Filed on behalf of the mother:
i)Five affidavits by the mother; and
ii)One each by her partner (Mr A), her own mother, a friend and a doctor; and.
c)Two affidavits by a school psychologist filed on behalf of the ICL.
Apart from the doctor, all of those deponents were cross-examined.
In addition, I had before me a Family Report prepared by a Family Consultant on 31 July 2009 (“the Family Report”). The author of the Family report was also cross-examined.
There had been an earlier Family Report, but the Family Consultant who prepared that earlier report was not called to give any sworn evidence. Consequently, I feel that I cannot take into account any opinion expressed by that Family Consultant.[15] Although some of the opinions from the first Family Report are reported upon in the second Family Report, I have specifically excluded them from my consideration of the issues before me. However, that does not preclude me from relying upon some of the unchallenged factual matters contained in that first Family Report, if that is necessary.
[15] See section 69ZU of the Act
As mentioned above, I will refer in greater detail to the evidence in this matter when considering those matters that I am required to consider.
Credit
In the main, I found the parties and witnesses to be generally honest. However, before turning to the section 60CC considerations, I should make some comment about credit.
In the case of the father, I find that he understated his involvement in family violence, and I will refer to that in more detail in my section 60CC consideration of family violence below.
I also find that the mother and her own mother tended to exaggerate and put “spin” on the evidence when it suited the mother’s case.
In the case of the mother, a good example was the report that she made to the police on 18 February 2008 of an incident that had taken place almost 14 months beforehand.[16] In that report she gives a detailed account of what happened on New Year's Eve 2006/07, yet it was quite clear from the evidence that she herself was very intoxicated on the night in question.
[16] Annexure “B” to her affidavit filed 19 March 2008
I also note that her report to the police was somewhat different from her account of the same incident in an affidavit sworn three days after she made that report to the police.[17]
[17] Paragraph 14(x) of her affidavit filed 22 February 2008
Further, her evidence was that she was advised by her lawyer to make such a late report to the police and yet she concluded her report to the police in the following terms:
I have now come forward to report the incident because I feel that (the father) has gotten away with too much and have heard that he may have acted violently towards ex-partners, and I feel I have an obligation just in case he treats his current partner the same way as he treated me.
It does not come as a great surprise to me that, in the second Family Report, the following is noted by the Family Consultant in relation to her perusal of police reports:
In a file note from 11/2/2009, a query is raised whether the mother is “digging up dirt to put before the Family Law Court” or making a “payback allegation”.
For her part, the maternal grandmother was prepared to believe apparently outrageous claims by the child and not accept that the child “tends to make up stories” and has told “whoppers”, notwithstanding that the mother made such an admission to the author of the second family report.[18]
[18] See paragraph 49 below.
Primary considerations
The benefit to the child of having meaningful relationships with both parents
I quoted at paragraph 24 above the decision in P & P. Earlier in that decision FM Brown had said that “there is no satisfactory outcome in this case. The various options available cannot be manipulated like the surface of a Rubik’s Cube to reach a perfect result”.[19] This case is no different, especially because the Court finds itself faced with only two stark options.
[19] P & P [2006] FMCAfam 518 at paragraph 21
In M & S, Dessau J said at paragraph 45: [20]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful.
[20] (2007) FLC 93-313
In a similar vein, in the relocation case of Godfrey & Sanders, Kay J (sitting as the Full Court) said: [21]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[21] [2007] FamCA 102
However, in a 2008 article[22], Professor Richard Chisholm[23] (a former judge of the Family Court of Australia) was clearly critical of Kay J’s comments as referred to above. He said:
In my view, with respect, this is an unhelpful way of looking at it, and it led the appeal court into error. It suggests that the legislation seeks to ensure that children have a meaningful relationship with parents, but nothing more. This is not so. The Act does not aspire to anything: it speaks of the benefit to the child of a meaningful relationship. Thinking in terms of various grades of relationships can to lead to the mistaken conclusion that the legislative intention is satisfied provided that ultimately the child still has a ‘meaningful relationship’ with the non-relocating parent. Since it is plausible to say that visits every few months, plus electronic communications, can often sustain a ‘meaningful relationship’, this approach would suggest that so long as this minimal threshold is met, the court should routinely permit relocations. In my view that would be an erroneous interpretation, and would deflect the court from the careful analysis that the legislation requires.
What I see as the mistake made in the appeal judgment might have been influenced by the fact that in her comprehensive and admirable trial judgment, her Honour tended to characterise the problem as being whether the children would have a meaningful relationship with the father if the relocation were allowed. This approach created the opportunity for the appeal court to find, rightly or wrongly, that there was ‘no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in such circumstances’, losing sight of the key task of considering, and giving particular importance to, the benefit of that meaningful relationship. [24]
[22] (2008) 22 Australian Journal of Family Law : “The meaning of ‘meaningful’: Exploring a key term in the Family Law Act amendments of 2006”, commencing at page 193
[23] Hon Prof, Faculty of Law, University of Sydney, Visiting Fellow, Australian National University
[24] Footnotes omitted
Generally, the Court needs to balance any benefit to the child of relocation against any reduction in the quality of the relationship with the non-relocating parent. However, in this matter the mother has presented the Court with only two stark options. If I permit the mother to take the child to live in Victoria, it is inevitable that he will spend less time with his father (even if the mother sticks to her proposal for contact with his father). On the other hand, if the child is to remain in Tasmania, he will spend considerably less time with his mother because she will move to Victoria without him.
It seems perfectly clear to me therefore that the outcome of this matter will be influenced very much by which parent is more likely to encourage and promote a meaningful relationship between the child and the absent parent. I shall consider that in greater detail below.
The need to protect the child from harm from abuse, neglect or family violence
As can be seen from paragraph 8 above, the mother is saying that there has been an “escalation of disclosures of abuse and neglect from the child.”
There have been a number of notifications to the Tasmanian child protection services, but nothing has been substantiated. The mother has alleged that the child may have witnessed some pornographic material on a computer, and she (and her mother) clearly blame the father. At one point, a child protection worker concluded that abuse may have occurred, but was “not convinced that the father was the perpetrator”.
I note also that, even after being aware of allegations by the mother, the father more recently reported concerns to the child protection services and the police himself. In my view, it would be most unlikely for a perpetrator of abuse to raise concerns about such abuse with the authorities that are charged to carry out investigations.
I also note that on one occasion the mother conceded that her own brothers could have had a significant influence upon the child.
In addition, the mother admitted to the second Family Consultant that the child “tends to make up stories” and has told “whoppers”. Somewhat amazingly, the mother and her own mother appear unable to keep that in mind when the child says anything that portrays the father in an adverse light, especially in relation to violence and/or abuse. A recent example can be seen from the maternal grandmother's affidavit. She says the following took place in January 2009:
(The child) and I were talking on the front step when (the child) said: “My daddy makes me watch doodle videos and I have to do what's on the video”.
I asked (the child) what he meant and he said: “Dad put my doodle in (another child’s) bottom". (The child) then said that he tried to run away and hide under the eight ball table. He said his dad pulled him out from under the eight ball table and put all his clothes in the wash and then made him do it to (the other child) again. (The child) then told me that he got into trouble because he wasn't doing it right… …
I asked (the child) who was there and (he) said “all Daddy's friends” I asked him again who was there and he said “Dad, Ms H, Nanny [Samuel], Ms C and Mr M”
(The child) then told me that they said “if he told anyone Daddy would cut his neck off and put him in the rubbish bin”
The fact that such events would take place at the instigation of the father in the presence of his partner, his mother and two other adults defies belief. However, the credibility of the events described is stretched even further when one considers that the father had himself made reports to the authorities of his concerns about sexualised behaviour on the part of the child.
It is perfectly clear to me that the father is very concerned about his son’s behaviour, but on the evidence available to me, I am unable to lay the blame at his feet (as the mother would have me do). Indeed, I consider it to be much more likely that he is not to blame.
I also accept that the child has made up stories, and this even extends to blaming his father for things that the father did not do. Indeed, there is an example of this in an annexure to one of the mother’s affidavits. [25] That document suggests that in March 2008 the child was saying that a mark on his leg was the result of being hit by his father, when in fact it was a mole.
[25] See Annexure “A” to the mother’s affidavit filed 19 March 2008
Although the mother and her family deny it, I have no doubt that the child hears his father being spoken of in derogatory terms in the household of the mother and her family. I therefore believe that it is likely that he says things in their presence that he thinks they would like to hear. Combining that with his tendency to make up stories, it is not difficult to envisage situations where he says things about his father that are not very nice and are quite untrue.
The affidavit material filed on behalf of the mother suggested that the father neglected the child by leaving him alone in the house (and that he had “smoked the house out” cooking some pancakes. I accept the evidence of the father and his partner that this simply did not happen.
I will refer to family violence below.
Relevant additional considerations
The child’s views
The child will be just six years old when this decision is handed down, so I do not consider him to be old enough to have any meaningful appreciation of the matters that I must take into account.
The child’s relationships with the parents and other people
I have no doubt that the child has a warm and loving relationship with his mother and he appears to be comfortable in the presence of his stepfather. Certainly, he has called his stepfather “dad” from time to time but that is not unusual. Unfortunately, it is clear that the mother and her partner have done little to dissuade the child from calling him that, thereby causing a conflict of loyalty that is unnecessary.
Similarly, I have no reason to believe that the child has anything other than normal sibling relationships with the two children in his mother's household and the other child in his father's household.
When the child was seen with his father's family by the family consultant, she reported as follows:
He impressed as being noticeably more relaxed and cheerful in their company. There was an atmosphere of warmth between them as a family group.
The mother's partner has a daughter in Victoria ([T]), who was aged seven years at the time of the hearing. He indicated in his affidavit that [X] and [T] had spent time together in Melbourne for two separate periods during December 2008 and then again over Easter in 2009. Although he said that they get along very well, their limited time together must mean that their relationship is not yet very close.
The willingness and ability of the parents to facilitate and encourage the child’s relationships with the other parent
As suggested above, this factor is of particular importance in this matter because, whatever the outcome, the child will be deprived of the company of one of his parents for significant periods of time. It is therefore vital that during those periods the other parent encourages and promotes the child's relationship with the absent parent.
It is indeed unfortunate for this particular child that the mother has chosen to live in Victoria irrespective of what I decide. While one can sympathise with the mother, it is very clear that she has been put in a very difficult situation by her partner's determination not to live in Tasmania. In this regard, he has clearly put the maintenance of his relationship with [T] (with whom he spends weekends fortnightly) above the potential for the mother to maintain her relationship with the child (who currently lives permanently in her household).
I must have significant concerns about the mother’s willingness and ability to facilitate and encourage the child's relationship with his father. I say this for the following reasons:
a)I have already found that it is likely that the child hears his father being spoken of in derogatory terms in the household of the mother; and
b)the mother withheld the child from the father for two very significant periods in the past.
When the mother moved to live with her parents approximately one hour's drive away from the father, she did not even tell father that she was doing so. Her evidence was that she had relied upon her cousin to tell father that she was moving. Frankly, I was not impressed by her evidence in relation to this and I find that she has not given an adequate explanation of her failure to tell the father why she needed to move so far away.
It appears that when the mother has been concerned by “disclosures” by the child in the past and has ceased contact between him and his father, she has not willingly resumed such contact when Child Protection and police investigations have not substantiated her concerns.
I also note that on those two occasions when the mother denied the father contact with the child for some months at a time, it was necessary for the father to obtain interim orders before his contact with the child was resumed.
The likely effect of any change in the child’s circumstances
There have been a number of significant changes in this child's short lifetime and there will shortly be another significant change when his mother moves to Melbourne.
How the child was affected by past changes was set out quite fully in the second Family Report. It is worth setting out in full what was said:
42. The year 2007 was a very disruptive year for (the child). His paternal grandmother, who had a major role in his early life, had moved away to [R]; his parents separated in acrimony; his father re-partnered; his mother started spending time in Melbourne with a new partner; he was having frequent earaches and needed grommets; and he was moving between his parents’ homes and his grandparents in an unpredictable manner. There was an expectation that he would move away with his mother to live in Melbourne. By September his behaviour was so disturbed that his mother considered seeking psychological help for him. Instead,(the mother) moved from the marital home, went away on a holiday with her new partner, and was generally unwell as she was expecting a new baby. In October a further major disruption occurred in (the child’s) life. His mother’s new partner arrived to live with them and he stopped seeing his father and the paternal extended family.
43. In 2008, (the child) had further changes and challenges in his life. In early 2008, a new baby brother is born. (The mother) reported that (the child’s) behaviour was very challenging and she could not trust him to behave kindly to his brother or to small animals. In March, (he) started seeing his father again. In July, he moved to [R] when the family moved in with the maternal grandparents and an uncle. [X] changed school from [L] to [C]. In August his stepfather, who he was calling ‘dad’, moved away to live in Melbourne. His mother and baby brother then travel often to Melbourne to see a ‘sister’ he has not met, T. …… The mother reports that the time with [X] and his father progressed well following the (first Family Report) and she was happy for block holiday time to occur. In December, (the father) reports that (the child) was displaying disturbing sexualized behaviour. (The mother) discloses concerns about incidents at her home. They each suspect and blame the other household for having exposed (the child) to sexually explicit material. Around this time, a baby sister is born. (The mother) reports that (the child’s) behaviour was extremely difficult to manage during her trips to Melbourne with him in December and in January 2009. (The child) finally meets his step-sister T while in Melbourne.
44. In late January 2009, (the child) again stops seeing his father and the paternal extended family, including his new sister. In May 2009, his stepfather moved back to Tasmania to live with them for a period of time. His mother is again unwell with a pregnancy. In June 2009, (the child) starts seeing his ‘real-dad’ again and meets up with his sister who is now six months old.
The Family Consultant went on to say:
45. (The child) has experienced enormous changes and instability during the previous three years of his short life. Without having the stable support of two parents who were able to communicate about his welfare, (he) has faced enormous developmental and emotional challenges by himself. Not surprisingly he has co-opted the support of a powerful fantasy figure, a super-hero of his own age, Ben-10. It is important that (the child) is now placed in a home environment that provides him with stability and predictability to enable him to concentrate on his education and other developmental tasks of childhood.
The Family Consultant had this to say about the effect upon the child of moving to Melbourne with his mother:
If (he) lives with his mother in Melbourne, he will have the challenge of adapting to living in a different state without any extended family influence or support. His mother impressed as being a somewhat immature young woman with somewhat simplistic thought processes who may struggle (to) adapt to her new surroundings, especially without the support of her family. She will experience her relationship with (the mother’s partner) in very different circumstances and she will have the responsibility of two very young children to take care of. (The mother) appears to be a somewhat impressionable and impulsive young woman …. Living with (her) would place (the child) at some risk, especially given his history of challenging behaviours. Even if (the mother) remains in Tasmania, she has said that she would move away from Launceston. This does not take (the child’s) needs into account.
On the other hand, the family Consultant was more positive about the possibility of the child living with his father. She said:
The stabilizing factor for (the child) if he remained with (the father) would be to have the continued support of his extended paternal family, including his ‘fishing buddy’ grandfather, the familiarity of his surroundings and the inclusion in a very warm, nurturing family environment. It was evident that despite the extended period of time that he did not see his father, his step-mother and his baby sister, (the child) has retained a warm and very loving relationship with them.
The Family Consultant went on to say:
49. Despite the significant periods of time that (the child) has experienced not seeing his father in the last 2 years, it is likely that he could adapt to a change in residence from living with his mother to living with his father. Such a significant move from an established status quo should never be undertaken lightly. However, there would seem to be sufficient risk associated with the alternative - allowing (the child) to relocate away from Launceston - that the adjustments that he would need to make in changing residence are likely to have less long-term associated risks. In particular, it is important for (the child) to have continuity and security in his relationships with his parents, siblings and extended family. There is a possibility that (the child) could experience further disruptions in his relationship with his father if he was to remain in the care of his mother, as she does not appear to have sufficiently promoted their relationship in the past. (The child) would need to have the security of having regular time with (the mother) to know that he can maintain his relationship with her, his siblings and the extended family.
I accept the expertise of the Family Consultant and find that her opinions are well founded.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Because the mother has presented the court with only two real options, both of which involve the child being in a different State from one of his parents, it is clear that the both options will involve similar difficulties and expense in relation to contact with the parent who is in another State. This appeared to be accepted by all during closing submissions.
Interestingly, neither party addressed how the cost of the child's travel between Tasmania and Victoria would be met. I make the assumption therefore that they assume that those costs should be shared and I will make appropriate orders.
The capacity of the parents to provide for the child’s needs
I have no doubt that either party can provide for the child's physical and intellectual needs. However, because the mother has shown an inability to appreciate and promote the child's need for a relationship with his father, that must cause me some concern in relation to her ability to properly provide for the child's emotional needs.
It is clear to me that the mother and her partner have not properly recognized the confusion in the child's mind that has resulted from their failure to consistently insist that the child should not call her new partner “dad”. Although the child does know the difference between his “real dad” and his “step-dad”, the Family Report makes it quite clear that he does get confused on occasions. The Family Consultant said:
While children often manage to find their own solution to this issue, it would seem that (the child) has become confused by the lack of promotion of his father by his mother, by the promotion of (her partner) as a replacement father figure, and by the enforced periods of time away from (his father).
On the other hand, the Family Consultant said that the father and his partner are to be commended on their mature management of this issue with the child.[26]
The attitudes of the parents to the child and to parental responsibilities
[26] See paragraph 50 of the second Family Report
In many ways this consideration overlaps with those referred to above and I do not feel the need to repeat what I have already said.
Any family violence and family violence orders
Family violence, and the extent of it were clearly issues in dispute between the parties. I have already found that the mother exaggerated the level of violence on the part of the father one New Year's Eve, but I do not believe that there was no violence at all. In short, I conclude that the mother overstated the level of violence, whereas the father understated it.
According to the mother’s report to the police about that particular New Year's Eve, it is clear that the father was attempting to get away from the mother and, if she had just let him go, she may not have been injured at all. While that does not excuse the father in relation to any violence that he perpetrated, it does not absolve the mother from some responsibility for what occurred. I also note that the mother says that “everyone was highly intoxicated” and each of the parties must take responsibility for his or her own intoxication.[27]
[27] As appears to have been confirmed on 10 November 2009 by the High Court in C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47
The mother set out her allegations about family violence in paragraphs 10 to 14 of her affidavit filed 22 February 2008, and in particular in sub-paragraphs (i) to (xi) of paragraph 14. The father's response to that was simply to say:
I deny paragraph 10 to 14 of her affidavit. Those allegations are just lies.
One of the allegations made by the mother was that she obtained a Family Violence Order in 2006 and the police records produced pursuant to a subpoena appear to confirm that. Consequently, I cannot accept the father's blanket denials in relation to violence.
I conclude on the balance of probabilities that there was more violence than the father is prepared to admit, but less than what is now stated by the mother. However, I also conclude that the potential for future violent interchanges between these parties is now considerably reduced because:
a)they are no longer together and have both re-partnered;
b)they are older and are probably more mature as a result of their increased parental responsibilities. In this regard, I accept that the father “has matured from the youthful drinking and socialising culture that exists for young football players”[28]; and
c)they will be living in different States.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
[28] See paragraph 48 of the second Family Report
Given what I have said above about the likelihood that the mother will not fully promote the child's relationship with his father, it seems to me that if the mother is allowed to take the child to live in Victoria, the chances of further litigation will be increased. In this regard, I would anticipate difficulties arising in relation to the child spending time with his father in Tasmania and the probability that the father would then institute proceedings for enforcement.
On the other hand, I conclude that if the child remains in Tasmania, the father will better promote his relationship with his mother and there will be less chance of enforcement proceedings being commenced.
Should there be equal shared parental responsibility?
Section 61da provides a presumption that it is in the best interests of the children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence. I have already indicated that I do not believe that the father has abused the child, but I am of the view that there has been sufficient family violence for the presumption not to apply.
However, if the presumption does not apply, it does not automatically follow that sole parental responsibility will be ordered. The court may make such parenting orders as it considers proper in the particular circumstances of the case.
The father says that there should be equal shared parental responsibility, whereas the mother seeks an order that would provide her with sole parental responsibility. This reinforces my view that the father will be more inclusive in relation to the child, and when I take into account the mother's evidence that communication between the parents has been improving, I form the view that it is in the child's best interests for his parents to share responsibility for him equally.
With whom should the child live?
Section 65DAA of the Act provides that if the parents are to have equal shared parental responsibility, the court must consider whether the child spending equal time with each of the parents would be in the child’s best interests and whether it would be reasonably practicable.
Clearly, if a child's parents are living in different States it is just not practicable for the child to spend equal time with each of them.
Having considered the matters set out above, I conclude that it is in this particular child's best interests for him to live with his father and spend a regular time during school holidays with his mother. In this regard, I consider the proposal put forward by the father's counsel in his closing submissions to be the most appropriate.
I do not know how quickly the mother will move to Victoria after she becomes aware of my decision. If it is to be after the end of this school term, it will be in the child’s best interests for him to continue living with her until the end of the school year so that he can stay at his current school. However, if she moves before the end of this school year, it will clearly be in his interests for him to live with his father from the time that she leaves. I will address this in the orders that I make.
It is clear to me that the child will require ongoing professional assistance. Until now, this has been provided by the school psychologist. Unfortunately, that particular psychologist will not be available at the next school that the child will attend. However, her notes and a referral will be made available to another school psychologist. I also have confidence that the father and his partner will seek any additional professional assistance that may be required if the child’s challenging behaviour continues.
The Orders that I make are set out at the start of these Reasons.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
[5] See subsection 60B(1)
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