Sawyer and Becker
[2009] FMCAfam 289
•3 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAWYER & BECKER | [2009] FMCAfam 289 |
| FAMILY LAW – Parenting – relocation – overwhelming expert evidence that child cannot be separated from his primary attachment figure – child able to tolerate separation from secondary attachment figure and maintain relationship. |
| Family Law Act 1975 (Cth), ss.60CC (2), (3) & (4) |
| A & A: Relocation Approach (2000) FLC 93-035 M & S (2007) FLC 93-313 |
| Applicant: | MR SAWYER |
| Respondent: | MR BECKER |
| File Number: | AYC 441 of 2008 |
| Judgment of: | Henderson FM |
| Hearing dates: | 2, 3 & 4 March 2009 |
| Date of Last Submission: | 4 March 2009 |
| Delivered at: | Parramatta |
| Delivered on: | 3 April 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Kell Moore Solicitors |
| Counsel for the Respondent: | Ms Wheeler |
| Solicitors for the Respondent: | Westminster Lawyers Pty Ltd |
ORDERS
The mother is permitted to relocate the child, [X] born in 2005, to the Northern Territory to live in forthwith.
The parents to have equal shared parental responsibility for the child.
The child to live with the mother.
In the event the father remains living in [M, Victoria], the child to spend time with the father as follows:
(a)In Victoria:
(i)For twenty-one (21) days in the Northern Territory Christmas school holiday period;
(ii)For five (5) days in each of the Northern Territory April and September/October school holiday period;
(iii)For fourteen (14) days in the Northern Territory mid year school holiday period.
(iv)Such time is to be effected by the mother causing the child to be delivered to Melbourne Airport at the commencement of the father’s time and collecting the child from Melbourne Airport at the cessation of the father’s time; or as otherwise agreed if the mother is driving to Melbourne to effect [X] spending time with his father.
(b)For one period during each school term with the father to fly to the Northern Territory to spend time with the child in his environment which is to include staying overnight and taking the child to and from school, for a period of no more than seven (7) days in his father’s care on any one occasion and by giving the mother twenty-one (21) days notice of his intention to travel.
(c)On any other occasion the mother travels to Victoria with the child the mother is to notify the father and the child is to spend time with his father on that occasion.
(d)At all other times as is agreed including agreement as to payment of travel costs.
(e)Travel costs to be borne by the father for two mid term visits.
(f)The mother to be otherwise responsible for travel costs associated with the child spending time with the father in orders 4(a), (b) & (c).
(g)The child is to communicate with the father via webcam each day as agreed, failing agreement between 6pm and 7pm, Northern Territory time.
(h)The child is to communicate with the father by telephone on three occasions each week as agreed.
(i)The father is permitted to communicate with the child by letter, gift, and present and other communication.
In the event the father relocates to the an area which is geographically proximate to the mother’s home the child to spend time with the father:
(a)From Thursday after school to the commencement of school Monday each alternate week;
(b)Each Thursday from after school to the commencement of school Friday morning;
(c)Half of all school holiday periods when the father’s time in orders 5(a) & (b) is suspended.
(d)At all other times as is agreed
IT IS NOTED that publication of this judgment under the pseudonym Sawyer & Becker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
AYC 441 of 2008
| MR SAWYER |
Applicant
And
| MR BECKER |
Respondent
REASONS FOR JUDGMENT
The matter of Sawyer and Becker was a final hearing heard at the Albury Registry on 2, 3 and 4 March 2009.
Ms Haughton of Counsel appeared for the Applicant Father and
Ms Wheeler of Counsel appeared for the Respondent Mother.
The proceedings concern the mother’s request to remove the child, [X] born in 2005, to the Northern Territory to live with herself, his older brother [D] born in 2002, and the maternal grandmother. The mother is stationed in Katherine with the Northern Territory [workplace omitted].
The mother is a [occupation omitted] with the Northern Territory [workplace omitted] having previously been with the Victorian [workplace omitted]. She has completed her training and is due to commence active [omitted] duties on 10 March 2009.
The mother removed herself, [D] and [X] to the Northern Territory between the first and third of October 2008.
The father brought an application on an urgent basis seeking the child be returned to the [M] area. I heard that application on 30 October 2008 and ordered the mother to cause the child to be returned to the [M] area by Monday 10 November 2008.
Upon his return the child was to live with the Father pending the mother’s return to [M]. When the mother returned [X] was to live with her and spend each alternate weekend with the father and one additional Saturday per month and at other times as agreed.
The child’s mother returned to the [M] area some time on the 27th of December 2008 and the father returned him to her care two days earlier than he need have done. His behaviour was appropriate and child focussed and demonstrated an understanding of the needs of his son.
[X] had been separated from his mother for seven weeks and, as the evidence at the hearing unfolded, it became clear [X] had missed his mother profoundly during that time.
A family report was prepared by Dr Todd Jacobson. At the time the mother was interviewed by Dr Jacobson she told him that if [X] were not permitted to be removed to the Northern Territory she would remain in the [M] area.
The mother’s position changed between the time of the interview on
5 February 2009and the hearing. The mother’s position at the commencement of the hearing was that she would move to the Northern Territory whether I permitted [X] to go with her or not.
Evidence
The evidence is as follows:
For the father I read:
a)Amended Application filed 27 October 2008;
b)Affidavit filed 4 February 2009;
c)Affidavit of Ms S, his sister, filed 6 February 2009. Ms S was not required for cross examination;
d)The father was examined and cross examined.
The father tendered the following exhibits:
a)
Father’s Exhibit 1: The Employment Offer made to the mother from the Northern Territory [workplace omitted] dated
5 September 2008together with a letter of acceptance from the mother dated 11 September 2008.
b)
Father’s Exhibit 2: A letter from the father to the mother dated
27 December 2008.
c)Father’s Exhibit 3: Affidavit of Mr Andrew James Price, the father’s solicitor, in relation to the mother’s re-employment with the Victorian [workplace omitted].
d)Father’s Exhibit 4: Plane costs for Darwin to Melbourne and Melbourne to Darwin trips.
e)
Father’s Exhibit 5: Statement of the Mother’s Mortgage up to
31 December 2008in respect of the property she owns in the [M] area.
f)Father’s Exhibit 6: Letter from father’s lawyers to the mother’s lawyers regarding private mediation dated 18 August 2008.
g)Father’s Exhibit 7: Letter from mother’s lawyers to the father’s lawyers dated 12 February 2009 in relation to care arrangements for [X].
h)Father’s Exhibit 8: Letter from father’s lawyers to the mother’s lawyers dated 2 December 2008 and reply dated 19 January 2009.
i)Father’s Exhibit 9: Letter from father’s lawyers to the mother’s lawyers dated 20 January 2009.
For the mother I read:
a)Response filed 24 October 2008;
b)Affidavits filed 24 October 2008 and 28 January 2009;
c)Affidavit of her mother, Ms B, filed 28 January 2009;
d)The mother and maternal grandmother were examined and cross examined.
The mother tendered the following exhibits:
a)Mother’s Exhibit 1: Plane costs which she says are applicable, Melbourne – Darwin.
b)Mother’s Exhibit 2: Letter from the [S] Surgery.
c)Mother’s Exhibit 3: The most current internet downloads from the Northern Territory [workplace omitted] concerning the accelerated recruitment program which the mother was offered and accepted.
The Report of Mr Todd Jacobson was marked Court Exhibit 1.
Mr Jacobson was examined by telephone link.
Additional oral evidence was given by telephone by Mr G of the Recruitment Department of the Victorian [workplace omitted].
Orders sought by the parties
The orders the father sought were that:
a)The mother be restrained from removing [X] to the Northern Territory; and
b)The child lives with each parent on a week about basis.
If the mother was permitted to relocate to the Northern Territory with [X] the father wished to spend as much time as possible with his son in [M]. He would want the mother to fly the child to Melbourne for each school holiday together with some time in the Northern Territory during school terms.
In the event such an order was made the father would consider moving to the Northern Territory. If that occurred he sought an equal time order.
If the mother left for the Northern Territory and the child remained in Victoria the father proposed the mother spend only half school holidays with [X] in the Northern Territory and some time mid term in [M] and at all other times by agreement.
The orders the mother sought were that:
a)The mother be permitted to relocate with the child to the Northern Territory.
b)The child spend time with his father for:
i)21 days of the Northern Territory Christmas school holidays in [M];
ii)Five days in each of the two short Northern Territory school holidays in [M];
iii)A period of 14 days in the long mid term Northern Territory school holidays in [M]; and
iv)On one occasion during each school term for two nights and three days in [M] at the mother’s cost or for the father to fly to the Northern Territory and the mother would accommodate him in her home or find cheaper accommodation for him.
c)The father to attend the Northern Territory on any occasion he was able to do so to spend time with the child.
d)The father to communicate with the child by Skype, telephone, email and the like.
Neither party contented for any order other than equal shared parental responsibility. No violence, poor behaviour or substance abuse was alleged by either parent.
As the evidence unfolded it became clear that if I permitted the mother to remove [X]’s residence to the Northern Territory the father would seriously contemplate moving as well. The father and [X] are closely attached. The mother agreed with this and was supportive of the father relocating.
The father has no other children. [X] is his only child. He owns no property. He works as a [tradesman] earning a modest income of gross $36,000 per annum. The father is assessed to pay $18 a week in child support. He pays the mother $40 per week. This too is a modest sum.
The mother’s evidence was that [X]’s brother, [D], spends no time with his father due to his father’s choice. The mother became very emotional when giving this evidence. It was painful for her.
The attitude of [X]’s father and [D]’s father could not be more opposed. [D]’s father pays $900 a month child support.
Short chronology
The father is 40 years of age and the mother is 32 years of age.
The mother’s child [D] was born in 2002.
The parties were not in a committed relationship.
Their son was born in 2005 and the father admitted in cross-examination that he was absolutely delighted with the birth of his son. He did not believe that he would ever have children.
The parties have attended several mediation sessions regarding the care of [X] preferring and being able to work out these arrangements between themselves.
I made it clear at the hearing that in my view the only reason the parties had presented to Court was due to:
a)The mother’s desire to move to the Northern Territory to take up a position in the Northern Territory [workplace omitted]; and
b)The mother’s actual move in October 2008 without agreement or Court order.
Otherwise these parties would never have presented to a Court. For, despite them not having lived together or having been in a committed relationship, they have been able to ensure that their son has developed a strong, affectionate and close bond with his father. Their various agreements for the time [X] spent with his father which arrangements changed as he grew were commensurate with his age, emotional needs and appropriate. Each party is to be congratulated on their parenting arrangements.
This is a relocation matter and consistent with the well known case law starting as long ago as A & A: Relocation Approach (2000)
FLC93-035 my task is to set out the competing proposals of the parties, including any proposal that the Court regards as appropriate, assess the consequences of each proposal for the child having regard to the matters under section 60CC(2),(3), and (4) of the Family Law Act and to come to a decision that I ought make in the child’s best interests.
Relocation cases are extremely difficult. Whatever decision is made one parent will be bitterly disappointed and hurt. These matters are often further complicated because, as here, we have two loving, competent, caring parents with whom this child has an excellent relationship. Whatever decision I make, one parent will be grief stricken.
The father’s evidence
The father agrees that in or about January 2008 the mother mentioned to him she was considering making an application for the accelerated recruitment program with the Northern Territory [workplace omitted]. It also came out in evidence that the father mentioned at or around the same time that he might go to Broome for a short period of time to do [omitted] work.
The parties attended mediation in February 2008 to discuss this issue. The mother’s case is that the father said he would not object to the mother moving to the Northern Territory with the child. The father had to concede that was the case at that time.
The mother went about her enquires in relation to joining the Northern Territory [workplace omitted].
The next time this issue came up was on 17 July 2008. The father agreed that was correct and it is consistent with the mother’s affidavit at paragraph 38. The mother told him in a telephone conversation that she had put in her application to be accepted into the accelerated recruitment program. The mother did not tell the father before submitting her application.
The father said in cross examination he told the mother not to sign anything; that he needed to go over the details of the proposal and that he would need a few days to think about the consequences of his agreeing to [X] being removed to the Northern Territory. The father said he had not consented to [X] being removed at that time rather that he had not objected to [X] moving. I accept the father’s evidence on this point and it is not inconsistent with the mother’s version of events.
The mother accepted the offer for the accelerated recruitment program in September 2008 and resigned from the Victorian [workplace omitted]. She took these steps prior to informing the father.
On 1 October 2008 the parties attended mediation in relation to this issue and the mother told the father that she had resigned from the Victorian [workplace omitted] and she was moving to the Northern Territory forthwith.
The father had told her at the mediation that he did not agree to her removing [X]. He was unsure when the mother actually proposed to leave and when he went to collect his son on 3 October 2008 he found the house locked and empty. Naturally the father was extremely upset.
He filed his application for the return of the child and I subsequently made orders on 30 October 2008 for [X]’s return which occurred.
[X] was in the Northern Territory for five weeks.
I accept the father’s evidence that he did not know the mother had to take up her place at the course on 13 October 2008 and that the mother did not specifically tell him when she was moving.
However, the father knew on 1 October 2008 that the mother intended to move with the child to the Northern Territory in short order and the mother knew on 1 October 2008 the father did not consent to her taking [X] with her.
The father agreed it is three hours from Melbourne Airport to his home and I accept from the mother it is a similar time for travel from Katherine to Darwin Airport.
The father agreed with Ms Wheeler that [X] was an unexpected joy.
He said to her “that is a good way to put it. Before his birth I was on my own”.
The father agreed that the mother has always been [X]’s primary carer and that he was gradually increasing his time with his son. He made no criticism of the mother. His words were “She is a good mum”.
He agreed [X] has a loving extended family on his mother’s side and on his father’s side who all live in the [M] area.
He agreed [X] is safe with his mother and that he has lived with her, his maternal grandmother and [D] his entire life.
The father agreed that his son was comfortable in his care and that was in great part due to the secure family base the mother provided for him. He agreed his son had been less secure in his care since January 2009 when he returned to his mother’s care. Further there was one occasion in September 2008 when he did not want to spend time with the father and again in January 2009.
Despite the father’s affidavit evidence asserting [X] handled being away from his mother surprisingly well, the father finally conceded in cross examination that [X] had missed his mother and that this became more pronounced towards the end of the seven weeks.
It came out in cross examination from both parents that [X]’s behaviour had regressed significantly during and after the seven weeks he spent away from his mother.
[X]’s use of his dummy has regressed such that he was wanting and using his dummy during the day as well as at night. His mother said he had to have two dummies, one in his mouth and one in his hand, otherwise he became fretful. He was regressing by wanting to use a bottle during the day and at night. This was something both parents agreed he had been effectively weaned off prior to his sole time with his father.
The father said he had been unable to have [X] sleep in his own bed at all during these seven weeks. The father said he had been making progress towards [X] sleeping independently prior to the mother’s move. The father said the child had simply been too unsettled to sleep in his own bed during the seven weeks.
On 29 January 2009 [X] did not want to see his father. The mother had to get on the floor and crawl under a table to cajole the child for twenty minutes into spending time with his father. This is behaviour of a child who has suffered stress at being removed from his mother for seven weeks.
The father was critical of the mother for this incident. I found to the contrary after cross examination. She had done everything she could. Dr Jacobson was unaware of this behaviour when the report was prepared.
These behaviours show just how deeply [X] missed his mother. It is a testament to his close and strong relationship with his father that he was able to manage as well as he did for that period of time.
Dr Jacobson was unaware of the extent of [X]’s regression when he interviewed the parents.
The father said in his affidavit that he was amazed at how well [X] had adjusted. However on the evidence he did not adjust well at all. The father conceded that [X] may have done as well as he did because he wanted to please his father who was standing in substitution for his mother, his primary attachment figure, rather than actually adjusting well to being separated from her.
The father did not put in his affidavit that the child was sleeping with him in his bed or the child’s regression in the use of the dummy and bottle. His affidavit painted a picture of a child doing well. He was not.
Under cross examination it became clear the child was fretting and pining for his mother during the whole of the time, not just towards the end. The father’s evidence that he could not leave the child’s bedroom if the child was not asleep was telling.
[X] was struggling emotionally during this period from being separated from his mother for such a lengthy period.
The father struggled with the concept that the child’s primary base was with his mother. He kept saying “and with me. He lives with me too”. He did not see what was being asked was “how would [X] see things from his point of view”. Once Dr Jacobson gave his evidence it became clear that [X]’s primary attachment is clearly his mother although he has a strong relationship with his father.
The father said that his son is now clingy to him at changeover and ultimately agreed he was a bit clingy during the seven weeks wanting to know where he was all the time, not sleeping in his own bed and the like.
The father said it was not enough for [X] to know where he was, he needed to see him or be able to hear his voice. The father agreed [X] needed to keep him in sight consistently. That behaviour was not in his affidavit and nor was Dr Jacobson aware of it. These matters only came out in cross examination.
The father said he believed the reason the child behaved this way was because he had been taken to the Northern Territory by his mother. He said he did not get the feeling that the child was unsettled or clingy because he was missing his mother.
I disagree with the father’s view that the child’s behaviour was linked to him being separated from his father for five weeks. The father may have believed this but it is a view that is ultimately against the weight of the evidence.
[X] was unsettled because he was living with his father and was separated from his mother; the parent with whom he has his primary attachment.
It was put to the father that perhaps the child was clingy not only because he was missing his mother, but also that he had never spent such a long period of time with his father. The father said such a thought had not occurred to him prior to the question being asked.
The father demonstrated a limited insight into the needs of his son at this point and could not make the admission that his regressive behaviour was due to his separation from his mother.
After some time the father conceded that his son living with him for such a long period of time may well have been the cause of him being unsettled. He agreed that living with him was a huge change for his son.
The father was critical that he did not know when the mother was returning to [M] and critical that he could not contact her whilst she was on the road travelling from Katherine to [M].
However, from the mother’s evidence it became clear that her mobile phone reception was very patchy on such a long trip. It took her three days to travel from Katherine to [M]. She contacted her father when she could to pass messages to the father concerning her arrival time. However, consistent with the father’s understanding of his son’s needs, the father ensured [X] came into his mother’s care as soon as was possible.
Much was made of statements the child said which were put in his affidavit such as [X] saying “I hate you daddy” when he did not get his own way. When the father was asked why he would put such things in his affidavit, he said “it’s just a true statement of what had happened”.
[X] would have picked up on his parent’s poor communication and anger at what had happened and what was proposed. It would have been difficult for them to hide their respective disappointments. For the mother her disappointment at what she saw as the change in the father’s attitude to her taking [X] to the Northern Territory. For the father his disappointment when he discovered the mother had left without his consent.
Both parents agree that they do not like their son to use the “hate” word and they discourage that use. However, the father had not communicated his concerns regarding [X]’s use of this word and other behaviour in the communication book. He agreed that when [X] said to him “Ma and Mum hate you daddy” he did not raise this with the mother even though he was concerned about it. Communication is an issue here.
The father agreed that until the mother had gone to the Northern Territory he had never even contemplated that his son would live with him full-time. The father clearly believes it is in the child’s best interests to remain in [M] with his mother and father. If the mother is determined to live in the Northern Territory then he said it was better for [X] to stay in [M] with him and spend time with her and his extended family on both sides.
The father was black and white. I do not criticise him for this. Relocation matters are black and white for parents.
The father agreed that to lose his mother would be a big loss to the child, as would losing his brother, [D], and his maternal grandmother to whom he is closely attached.
The father agreed that [X] believed he was having a long holiday with him in November / December 2008 and not that he was living with his father. That is something the father agreed the mother instilled in the child and the father agreed to continue that belief. The father accepted it would be different for [X] to live with him permanently as compared to the seven week “holiday” he had with him.
The father was asked whether he had spoken to anyone about the potential problems [X] may experience in living with him to the exclusion of his mother. The father said he had spoken with family and friends. He had not sought any professional advice. The father said that he would be available for his son but had no other strategies in mind.
The father said that if [X] stayed in [M] the child should spend half of the school holidays with his mother in Katherine and the mother could travel to Victoria to see him during the school term. The father maintained it would only be half the school holidays.
The father agreed that he did not tell the mother on 26 July 2008 that he had taken the child to the doctor. Much was made of that by Counsel for the mother. I am not so sure that is such a big issue.
The father, interestingly, sought child support from the mother whilst the child lived with him for seven weeks. This is despite the fact the father pays the very small sum of $40 per week to the mother for child support.
It came out in evidence that the father smokes cigarettes. He spends $87 a week on cigarettes and only $40 per week in child support. That caused me some concern. The father made no contribution towards the child’s Christening costs. He made much of saying to the mother she could take $150 as a contribution to the Christening from the $250 she owed him from the time of the birth of the child.
The father is very careful with his money and has not been generous to the mother in support of his son. This money she owed him was a loan so the mother could build a shed for her and her children to live in on the property she and her mother jointly purchased.
The father enrolled the child in swimming lessons in [W] but did not take the child every Saturday and did not tell the mother when he was not taking him on Saturdays. The mother was unaware the child had not been attending swimming lessons. The father said he had asked the mother to take the child to swimming on the weekends when he could not. I do not accept that evidence.
The father said in his affidavit that the mother had been unreasonable in preventing him spending time with his child. I formed the contrary view. The mother had taken a child-focused and appropriate staged approach to the child spending increasing time with his father. This approach has been successful and is a large part of the reason the child has such a strong and secure bond with his father. I do not accept any criticism of the mother in that regard.
The father said “My affidavit is all about what is best for my son from my perspective”. I agree. There is much force in Ms Wheeler’s submissions that the father’s focus was on his needs as a father rather than the needs of the child. For example, the father wanted to be the first port of call for babysitting and the like. Such an order is just impracticable and does not work, particularly when parents cannot communicate.
The father was critical of the mother in his affidavit for the child not being a good eater. However the father has the same difficulty when [X] lived with him. He agreed [X] was not eating very well and he had always been a bit fussy about his food.
The father said the child told him he needed to step around “dog pooh” in the mother’s laundry. I can find nothing untoward about that. That is what happens when you have animals in a house. It does not mean that it had been there for weeks or was not cleaned up. These criticisms were petty.
There was some issue about the father not taking [D] when [D] wanted to spend time with the father and [X]. I am unable to make a clear finding on that but it does seem that the father has not taken [D] at times when perhaps he could have. The father agreed that he told [D] in August 2008 he would come and pick him up, and that he failed to do so. The father could not remember why that was.
I accept that the father did deliver a letter to the mother on 27 January 2008 saying he did not agree to the mother removing the child from the [M] area.
The mother’s case is that the father said to her in February 2008 that he would not make it difficult for her and “I’ll look into moving as well”. She further said in July 2008 the father rang her and said “if you pay my relocation expenses I won’t stop you moving”. The mother said she could not afford to do that. The mother had, at that stage, put in her application for the accelerated recruitment program.
The father agreed that his memory was that the mother did tell him she was going to apply for this job. He disagreed that he intimated to her that he would agree to her removing the child if she paid his relocation expenses. He denied that conversation.
There is clearly inconsistency with what is written in the letter in January 2008 and what was said in conversations between the parents as is often the case in these extremely difficult matters. I do not take much heed of that particular letter.
The father said in his oral evidence that he told the mother on 17 July 2008 that he did not agree to her going to the Northern Territory. It is clear that that this was said to her on 21 July 2008. The father said “If it is in my affidavit I must have said it then”. The father made a proper concession.
I have formed a view from this evidence that as at 17 July 2008 the mother was getting mixed messages from the father as to whether he agreed, did not agree, would make it difficult, would not make it difficult, would consider moving himself or would not consider moving. He was likely ambivalent.
I accept that the father never said to the mother “I give you permission to take the child to the Northern Territory” and that is not what the mother asserts in any event.
What the mother asserts is that until 1 October 2008 when the father said “I do not agree to you taking [X]” she thought there was a chance he might agree. By that time her plans were so far in train that she believed she had no option but to continue with them. She would say the father left it to the last minute to say “I do not agree to you taking my son” and it was the father’s ambivalence which led her to take the actions she did.
In answer to the mother’s position all the father could say to that was
“I never gave consent for [X] to go”. I accept that. The father said
“I was allowing myself time to consider”. The father conceded the mother may have got mixed messages. I have formed the view she did get mixed messages at least up to 21 July 2008 when I accept he informed her he did not consent to her taking [X].
The mother’s chronology of events is the preferred version up to
21 July 2008. It is clear on 21 July 2008 the father withdrew his consent. The mother said that is the first time that she knew he disagreed on the issue and that she was upset. The mother no doubt became angry and upset as she had believed prior to that conversation the father would not stand in her way.
The mother had lodged her application for the accelerated recruitment program believing there would not be an issue and clearly there now was.
I accept the mother’s evidence that the father did not tell her until
21 July 2008that he did not agree to [X] going to the Northern Territory and that this was a time after she had put in her application for the accelerated recruitment program.
It was put to the father that the parties had a conversation in August 2008 where the father said “if you tell me where you are going to be posted I’ll agree to [X] going”. The father denied that conversation.
I am unable to make a finding on whether that conversion took place.
The father denied saying to the mother “that’s nice” in September 2008 when the mother told him that she had been accepted into the accelerated recruitment program.
The father would not concede that it made little sense for the parents to have individual sessions of mediation and then a joint session if there was no prospect of agreeing to the child relocating. This is a part of the mother’s case.
The mother resigned from the Victorian [workplace omitted] in September 2008. She did not tell the father prior to or at the time she took this step. It was put to the father the mother resigned from the Victorian [workplace omitted] in September 2008 because he had said to her in August 2008 “Now I know where you are going. You can go”. The father denies this.
The father spoke to [X] on the 6th, 8th, 15th, 18th, 21st, and 23rd October but did not put that in his affidavit. He indicated that he had no contact with the child after the mother removed him to the Northern Territory, when clearly he had some.
It does not surprise me the child said in a telephone conversation “Mummy won’t let me come to your house”. No doubt the child asked to go to the father’s house. However, given that the mother and the child were in Katherine and the father in [M] that could hardly be achieved. There can be no criticism of the mother here. The father’s recitation of his telephone calls with the child at paragraph 49 of his affidavit did not add anything to this case.
The father agreed daily telephone calls do not work for [X]: “sometimes he talks, sometimes he doesn’t”.
The father complained about the child playing football as a criticism of the mother acting without his agreement. Neither of the mother’s children plays football.
The father said the mother had made decisions without telling him, such as the school the child would attend. The child has not started school. The mother raised with him that that he should attend the same school as his brother which from her point of view makes perfect sense.
The father said that he wanted the child to go to school at [M] because that suited the father. It would not have suited the mother. The father agreed it was not a viable option for [X] to go to a different school to his brother. Those criticisms of the mother were simply not made out.
It appeared to me that the father’s insecurities as a father were what were coming out in these criticisms rather than the mother’s lack of communicating with him. The father thought he was on the back foot, acted like he was on the back foot and therefore was on the back foot. There is little in the criticisms the father has made of the mother in these small compass matters.
The father said the mother was dictating to him. She was not. It was the father’s insecurities as a parent which was dictating to him. The mother is an experienced parent. She has another child and she does a good job with the children. The father has agreed.
The father has never complained about [X] remaining in his mother’s care. It is only the move to the Northern Territory that brought these criticisms on and, of course, that the mother went to the Northern Territory with [X] against his wishes.
There was a real issue about the father having [X] on the child’s birthday. The father said he had organised a party and the mother had been unfair in not permitting the child to spend time with him on the child’s birthday.
As I see the evidence, the mother was the parent who had actually organised a party. She told the father several days before the child’s birthday of the party and invited him to attend. The father chose not to attend. That is a matter entirely for him. He criticised the mother. There is no valid criticism of her in this regard.
I simply did not accept the father’s evidence about the party he said he had organised for his son. He had not. His criticism of the mother was most unfair.
The father could not see that he could give the child two birthdays, two Christmases and the like and the “real” day did not matter to the child but to him. The father said “I had never thought of that”.
The father appeared to me to be fairly rigid with little flexibility and room for movement. His view was often that what has occurred in the past must continue to occur in the future.
The father complained that [D] was underweight, anaemic and was not a healthy child. When the mother read the father’s affidavit this statement caused her such concern she took [D] to a paediatrician. The paediatrician reported he was perfectly healthy and was in the high percentile of weight for his age.
I do not know what the father believed he would gain or benefit from by putting that clearly incorrect and inaccurate statement in his affidavit. This shows poor behaviour, conduct and attitude by the father and clutching at straws. Much of the father’s criticisms of the mother were just that, clutching at straws, and have had no impact on the decision I have made.
It was poignant to hear the father say that when [X] returned from the Northern Territory, the child ran straight to him. This relationship is strong. It was as strong as ever despite the five weeks separation. The father agreed it was a strong relationship. The five weeks had done little, if anything, to damage, interfere with or change this child’s excellent relationship with his father.
The mother had made a photo book of [X], herself, [D] and the maternal grandmother which [X] had with him when he went to [M].
The mother had asked the father for photographs of himself and the child so she could do the same for the [X] when he went to the Northern Territory. The father did not provide any photographs. I do not know why no further photographs were provided. The mother’s behaviour is child focused and appropriate and the father lacked understanding of what the mother was trying to achieve.
The father’s evidence was that [X] has one photo of his father. Why the father would not provide more photos of himself I do not know.
The father had made no enquiries about getting skype so he could communicate with his son whilst he was in the Northern Territory. The mother has done all that running and has agreed to pay for a web cam on the father’s computer.
The father agreed the mother’s proposal ensured there would be no longer than five weeks between [X]’s visits with him and that this was do-able for him. He agreed the mother’s proposal meant [X] would continue to live with his mother, grandmother and [D].
He agreed that on his proposal [X] would no longer live with his mother, grandmother and brother and would only spend half of the Victorian school holidays with them. He was firm that this was the best alternative for [X] if the mother was to move the Northern Territory.
The father could not explain why [X] would on his proposal only spend half of the holidays with his mother whereas on the mother’s proposal the child would spend nearly all of his holidays with his father.
The father said he could see it was his responsibility to pay some of the costs of the airfare. He agreed that it would be important for him to spend some time in the Northern Territory to see his son’s environment, school and the like. The mother said the father could stay at her home as she has a spare bedroom, and if that was too uncomfortable she would endeavour to find cheaper accommodation for the father.
The father confirmed that if the mother took [X] to the Northern Territory he would look into relocating there. I accept such a move would come at great personal cost.
It was clear the father had contemplated going to Broome in January 2008. The father said this was for a short period of time. However, such a move would have been a relocation and he would have been away from his son. It is interesting that being away from his son was not a matter that at that time weighed on the father’s mind.
The father agreed [X] may blame himself if his mother, brother and grandmother were to move away and he stays with the father. The father agreed such an outcome would be difficult for [X].
He agreed the manifestation of such an outcome for [X] could be: headaches, sleep disturbance, acting out, eating habits disturbed, and the like. The father ultimately said he would seek professional help if there was a problem.
The mother’s evidence
The mother was living, at the time of the hearing, in [M] with her father.
The mother is required to return to the Northern Territory to take up her posting on 10 March 2009.
The mother has been allocated a five bedroom home as part of her salary package with the Northern Territory [workplace omitted]. This is a benefit of $18,000 per annum paid as rent or the same amount would be paid towards a mortgage if the mother purchases a home. This package is a substantial financial benefit to the mother and the children. [D]’s father pays reasonable child support at $900 per month but [X]’s father pays very limited child support of $160 a month.
The mother has lived with her mother since prior to the birth of [D]. She has a home in the [M] area in which her mother has a beneficial interest and it is on the market for sale.
The mother’s home is not rented and she will struggle to pay the mortgage in the future if the home is not sold. She is on leave without pay but has been mistakenly paid and will have to repay that money in the future. I found that evidence understandable and I accept it. I did not understand Ms Haughton’s submission that the mother had lied. She had not.
Ms Haughton submitted that the mother had paid $95,000 off the home loan for the property she purchased thus she cannot be having monetary problems. However, she still had a $200,000 mortgage for a property worth $340,000 of which her mother owns a share so those figures just did not make any sense to me.
Furthermore, this is not really the issue. It is clear under the case law that the parties do not need to provide reasons for relocation although the mother has.
The mother was ahead in her mortgage as at December 2008 and therefore she has leeway with the mortgage. Hopefully she is able to sell the property before mortgage arrears accrue. All this evidence does is to satisfy me that the mother is a good money manager.
The mother has managed well supporting herself and her children. She has purchased property by co-purchasing it with her mother. Although the home is in her sole name I accept her mother has a significant equitable interest in the property.
It was put to the mother that her pay in Victoria was $71,563, the same amount she is now earning in the Northern Territory. The mother said the Victorian pay included her base rate and allowances. Her Northern Territory salary is at the base rate only. I am satisfied on the evidence the base rate in the Northern Territory [workplace omitted] is some $10,000 greater than the Victorian [workplace omitted] at the same level.
The salary package in the Northern Territory [workplace omitted] is significantly better than the Victorian [workplace omitted] being a $10,000 increase in the base salary together with the $18,000 housing allowance. This totals $28,000 per annum over and above the base salary for a similar position in the Victorian [workplace omitted].
The mother has seven weeks annual leave in her new position. Her work schedule means she has four days off in a row and then four days on of 12 hour shifts, and in a six week period she has an additional six days off in a row. She has significant down time in this new job. She has prospects for acceleration and advancement in the Northern Territory [workplace omitted].
The cross examination of the mother was at times unnecessarily aggressive. This is not a case of witnesses not telling the truth. If the mother did not want to relocate to the Northern Territory these parents would never have come to a Court.
I found both the mother and the father to be open and honest people who freely admitted mistakes they had made. Aggressive cross examination of the mother did not assist me in making a decision in the exercise of my discretion as to what was in the best interests of [X].
The mother agreed that the cheapest air flight she had been able to find was about $239 one way. A direct flight from Darwin to Melbourne is four and a half hours with three hours driving on either side. This is a good 10 hours travel for [X] to reach his father’s home in [M] and his mother’s home in Katherine. The mother said she would not always fly. There would be times she would drive down with both children and spend time with her father and other family members.
I formed the view that this proposal for [X] to do all the mid term travel would be too onerous for him. There would not be enough time for him to recover from the flight before he had to return to school. If the child is permitted to go to the Northern Territory the father will fly to the Northern Territory to spend time with his son mid term.
The mother said the father was initially supportive of her decision to go to the Northern Territory and that is one of the reasons she went ahead with her application and made her plans as she did.
The mother was criticised for her answer at paragraph 24 of the family report when she said did not have a job in Victoria. The statement was correct at the time and presently. She does not have a job in Victoria. She did not at the time the report was prepared. There is nothing untoward about that comment.
Much was sought to be made of the mother’s ability to reapply to the Victorian [workplace omitted] and that her careful answers “I will not have a job to go back to” were in some way structured to avoid the reality. What the mother said was a fact. The mother is not a member of the Victorian [workplace omitted]. She resigned in September 2008 and she does not have a job to go back to.
The mother was pressed about enquiries she had made as to reemployment. The mother said she had not directly made any enquiries but she had found out that if she reapplied it could take her up to 12 months to get back in from a friend, Ms K, who had reapplied.
The mother was asked “You don’t get special treatment because you had been in the [occupation omitted]?” She said no.
It was put to the mother that she had deliberately made no enquiries concerning re-employment. The mother was under no obligation to do so. That evidence did not assist me.
Evidence from Mr G proved there would be no special treatment to anyone who had previously been a member of the Victorian [workplace omitted] in a re-application and the mother’s evidence on this point was correct.
The mother agreed she could have made more enquiries concerning this issue.
It was put to the mother that the father told her in February 2008 that he was opposed to her going to the Northern Territory. The mother said “No, he did not oppose it. He wanted to know when, where and where I would be stationed”. That has a ring of truth and is consistent with the father’s evidence in any event.
The father said he was concerned when he saw in a newspaper that there was a “Relocation Sale” at the mother’s address. The mother’s evidence was that her father was having a sale, the address was incorrect in the paper and at her home there was a sign that said to go to her father’s home which was just down the road. I accept the mother’s evidence.
There was no subterfuge at this time. The father knew the mother was planning to go to the Northern Territory. She had told him so. The one piece of evidence that is clear is that the mother told him that that was what she was doing.
I accept the mother only told the father she had applied to join the accelerated recruitment program on 17 July 2008 which was well after her actual date of application. However the father knew in January 2008 this is what the mother planned to do.
The mother agreed that when the father saw the advertisement in the paper headed “Relocation Sale” with the mother’s mobile and address he would have been concerned. The mother said this was an error and I accept her evidence on that issue.
Crucial parts of the evidence in this matter are events that occurred after 17 July 2008.
The mother accepted she received a letter from the father’s solicitor dated 29 July 2008 stating that that the father objected to [X] being taken to the Northern Territory. The mother could not escape that the letter clearly set out the father’s objection to the move and that if she did move a recovery order would be sought.
The letter reads as follows:
We confirm that your client wishes to relocate to the Northern Territory with a view to joining the Northern Territory [workplace omitted]. We further confirm our instructions that your client has made an application to the Northern Territory [workplace omitted] on or before 4 July 2008 however did not inform our client of her intentions to relocate [X] until 17 July 2008.
In any event, we are instructed that our client does not consent to your client relocating [X] to the Northern Territory.
We further confirm that in the event your client relocates, without an Order of the Court, we are instructed to make an immediate Application to the Court to have [X] recovered back to [M].
When the mother received that letter it sent a clear message that she needed to obtain the Court’s permission to relocate [X] to the Northern Territory in face of the father’s clear opposition. That is one of the reasons I made the Order that the child return to [M].
The mother believed she had instructed her solicitors to respond to this correspondence. However, nothing could be found in the file. I accept Ms Wheeler appeared in Court without an instructing solicitor or the file and there were thus difficulties in obtaining any letter.
Mediation was organised for the parties by the mother’s solicitors. The parents each had one separate meeting. The parents had further joint mediation on 1 October 2008. The mother said there were indications that the father might change his mind between the period of his solicitor’s letter of 29 July 2008 and the joint mediation on 1 October 2008.
These are the mother’s reasons for that belief:
(1)At the separate mediation sessions the mother said she was clear to the mediator that unless the father consented to her taking [X] to the Northern Territory she was not interested in a joint mediation.
(2)When the joint mediation was organised some time later the mother said this gave her some confidence and hope that the father had indicated in his mediation session that he was prepared to allow the mother to take [X] to the Northern Territory.
(3)The mother said the father rang her in August and said to her “If you tell me where you’re being posted I will agree to you going”. The mother said after that call she immediately rang the Northern Territory [workplace omitted] and was told she could be posted to either Darwin or Katherine. The mother says she immediately told the father.
The evidence of this conversation was not in her affidavit. Neither did the mother follow up this asserted conversation with the father with a letter from her solicitors. I have some difficulty accepting that this conversation occurred in mid August as alleged by the mother.
Some of the reasons I have this difficulty are firstly that the mother resigned from the Victorian [workplace omitted] on 11 September 2008 after she received her letter of offer from the Northern Territory [workplace omitted] on 5 September 2008. The mother admitted she did not tell the father she had received an offer and accepted it or that she had resigned. I cannot imagine the mother not telling the father these significant events if he had said to her, as the mother asserts he did in a phone conversation in mid August, “If you tell me where you’re being posted I will agree to you going?
Secondly the mother did not instruct her solicitors to write to the father and advise him that she had resigned her position with the Victorian [workplace omitted] and accepted the Northern Territory [workplace omitted] offer even after she asserts the father said to her “if you tell me where you are going I will agree to your going”. The appropriate thing to have done here was strike while the iron was hot and confirm his consent with a letter. This was not done.
The mother admitted that at the joint mediation on 1 October 2008 she clearly knew then that the father did not want her to take [X] to the Northern Territory but she went ahead and did so.
On these facts there is some force in the submissions by the father that the mother went about her plans after the letter of 29 July 2008 with a degree of subterfuge. Her actions do support a finding that she did not want the father to know what she was doing. She failed to inform him when she received her offer, accepted same and resigned. Yet she asks me to accept that she believed up until 1October 2008 the father would not stand in her way by his comments such as “If I know where you are posted I might let you go” and “if you pay my removalists costs I might let you go”.
The mother cannot escape the clear intention of the letter of 29 July 2008. The letter of 29 July 2008 is consistent with the mother’s own affidavit where she said the father told her on 21 July 2008 in a phone conversation “I have just decided that it is not in [X]’s best interests for [X] to move”.
I do accept however that the father may have been ambivalent or oscillated from the mother’s point of view in his communication to her.
I do not blame the father for some vacillation. This is a very serious and difficult decision to contemplate let alone make. The mother should have told him when she resigned from the Victorian [workplace omitted] and accepted the offer from the Northern Territory [workplace omitted]. The mother should have brought the matter to Court to obtain the Court’s permission to relocate with the child at least when she received the father’s solicitors letter of 29 July 2008. She chose not to and the consequence was that the child was removed from her care for seven weeks.
There is some force to Ms Haughton’s submission that the mother put a fait-accompli to the father as she did to the Court. That is, that she just told him on 1 October 2008 that she would be moving and did so. The mother cannot escape that she took this action in full knowledge of the consequences that came home to roost.
I accept that the father possibly did tell the mother in a conversation on 18 July 2008 that if she paid his removalist costs he would contemplate coming to the Northern Territory. I accept the father was vacillating at this time. I do not criticise the father for this. It was a momentous decision.
What is clear is that the mother knew from 21 July 2008 that the father did not consent to her taking [X] to the Northern Territory. Vacillation by him is not agreement.
The mother gave evidence that she intended to stay in Katherine for two years. The father is concerned that if he removed himself to Katherine the mother may decide to go to Darwin, Tennant Creek or Alice Springs which are the available postings.
I accept the mother’s evidence that she intends to stay in Katherine. If she does move I accept she will only seek a posting to Darwin not to Tennant Creek a small, isolated community, or Alice Springs. One of her reasons was that the level of education outside Darwin and Katherine would not be appropriate for her children.
The mother can apply for a transfer or a promotion after her first year of service has been completed or in exceptional circumstances. The mother said she will apply for a position of [occupation omitted] which she says is available to her at Katherine. This is the same rank she achieved with the Victorian [workplace omitted]. Her ultimate aim is to be a [occupation omitted] which can be achieved in Katherine and Darwin. The mother gave evidence there were many positions for [occupation omitted] and [occupation omitted] at Katherine.
The sum of the evidence in relation to the mother’s promotions and possible move is that if she does move it will be to Darwin, an even more convenient city for the father than is Katherine.
Ms Haughton put to the mother paragraph 30 of the report. The report writer said that [X] “explained that his mother wants to live far away from his father ‘because she doesn’t like him’”. It was put to the mother that this was indicative of conversations the mother has had with the child. The mother said she has never said that to the child or as far as she is aware in his hearing.
From subsequent cross examination of Dr Jacobson it became clear I could not accept the proposition put to the mother. These words could have been heard by [X] in his father’s home or his mother’s home.
I make nothing of that conversation. Try as we might we cannot always ensure that children do not overhear adult conversations.
I do not see that [X] could have the strength of the relationship he obviously has with his father if his mother has spoken negatively about the father to him, not positively promoted the relationship and if the father had not taken up every opportunity to spend the time he has with [X].
The mother agreed she had called the father “a son of a bitch” for breaking up the boys. The mother is most concerned that [D] and [X] stay together. She denied using the word “fucking”. I make no finding on that issue.
I just do not see either of these people are parent’s who would badmouth the other or their family to the child. I accept that the consequence of this court action has made people angry, upset and speak in tones and use words they may not ordinarily use. But that does not convince me that in the long term denigration, or fear of denigration, of either parent in the others household will occur or is even a remote possibility.
Much was made by Ms Haughton that the costs associated with travelling from Katherine to Melbourne would eat up the mother’s additional income. The mother does not have to provide reasons for a move nor prove that her proposals are the best economically for her.
The mother’s desire to join the Northern Territory [workplace omitted] will result in a base income of $28,000 greater than her previous employment at the same rank together with significant time off active duty and holiday time. It is the package the mother was weighing up, not only the income. Time with children is an important commodity.
It is clear the mother intends to return to Melbourne frequently to ensure [X] spent time with his father and paternal family, as well as [D] spending time with his maternal grandfather. [D]’s father has chosen to spend no time with him. [D] has a very close relationship with his maternal grandfather. The mother is keen for that relationship to be fostered by spending time with him in the holidays.
Both parents reported [X] has difficulty with phone conversations. It was put to the mother she listens in on [X]’s phone calls to his father. The mother said [X] does not like to hold the phone to his ear, he fidgets and he runs around. The mother said she sits the child on her lap and helps him hold the phone so he can speak to his father. That is why she hears his telephone conversations. Not because she is listening in.
The father agreed that sometimes [X] is good on the phone and other times he is not. Skype would be a good option for [X] as he can see his dad or mum and is not holding a phone to his ear. The mother will ensure the father has that facility. Thus he can see his son every day, if he wishes, in real time.
Criticism was sought to be made of the mother for not letting the father spend additional time with [X] in the [M] area when she returned. However, as the evidence unfolded from the parents, it is clear [X] had significantly missed his mother, he had suffered from the separation and he was anxious and clingy. In those circumstances I do not criticise the mother for her decision to adhere to the orders I made.
It is clear to me [X] needed significant time to re-establish and re-integrate his relationship with his mother. [X] had pined for her in those seven weeks and the father ultimately had to agree this was so. The use of the dummy and bottle and not letting his father out of his sight and being unable to sleep in is own bed are clear indicia of such pining and missing of his primary carer. The mother said [X] had regressed significantly with the use of his dummy and bottle. He has woken up in the middle of the night and said “Mummy don’t go”.
The mother gave the father make up time when the father returned the child to her early in January, and they agreed on [X] having a week’s holiday with his father. Thus there is some level of communication and co-operation between the parents despite these difficult proceedings.
Dr Jacobson commented that the parents still had a platform for continued co-operation in the future. I am confident once these proceedings are over that within a short time the parent’s hitherto impressive level of co-operation will resume.
The mother’s position changed between the date of the interview for the report on 5 February 2009 and the hearing. At the report interview she said she would stay in [M] if [X] could not move with her. At the hearing she said she would leave for the Northern Territory whether [X] was permitted to go with her or not.
It was put to the mother that she was now holding the Court to ransom. That submission suggests that the Court would not make an order for the child to live with the father and the mother knew that was the likely outcome.
At the time the mother told the Court she would move in any event the evidence from the expert was that for [X] to live in the Northern Territory on the mother’s then proposal meant he would be unable to maintain his relationship with his father. Secondly, if in the unlikely event the mother moved without the child Dr Jacobson said he had no concerns about the father’s ability to care for him. Dr Jacobson’s recommendation was that the child not be permitted to relocate to the Northern Territory.
That was the state of the expert evidence at the time the mother told the Court she would move in any event. The submission that the mother was holding the Court to ransom cannot be sustained.
The mother went on to say that she cannot stay in Victoria because she does not have a job. That was made out at this hearing.
The mother said her change of heart came about because her father sat her down after the last Court hearing and spoke to her about facing the “worst case scenario”, that is [X] not being able to go with her. The mother has both children to consider. Not just [X]. That comes through in the family report where she is most concerned at [X] and [D] being separated. These brothers are closely attached.
The mother said that she disagreed with Dr Jacobson’s concerns in his report that [X] would have difficulty maintaining his relationship with his father over distance. She said this was because the child and the father have a good relationship. Her evidence was that even when [X] was away from his father for five weeks in October to November 2008, when he saw his father at the airport he ran to him. There was not one fracture in or diminution of his relationship with his father.
The mother said the father and [X] have a strong, bonded relationship. The mother said:
If I left with [X] he can still have a relationship with his father and his brother. If [X] remains with his father his relationship with his brother will suffer.
Evidence of maternal grandmother
The maternal grandmother was called. I did not find her evidence added anything other than she is a committed, caring grandmother who has always assisted her daughter to advance in her career as a [occupation omitted] whilst being a single mother of two young children. She is going to Katherine with her daughter to continue her assistance. The maternal grandmother would like to obtain work but at this stage she has not been successful.
Evidence of Mr G
Mr G gave evidence by telephone in relation to the process for
re-applying to the Victorian [workplace omitted] in the event the mother chose to do so. He is the very man people make such applications to. This was very different to the information obtained by Mr Andrew Price, solicitor, and contained in his affidavit.
Mr G’s evidence was that the first stage is to fill out an application form. He said he is the person who determines whether there is a need to sit a pre-entrance exam or just attend an interview with a [occupation omitted]. Because of the mother’s prior record he would probably waive the exam and she would just attend an interview with a [occupation omitted] or himself. After the application form is submitted and the interview held he would conduct background checks on prior history of [omitted] and the like.
If the mother was already an officer in another jurisdiction, which she is, he would seek her Human Resources records in relation to conduct and progress and employment history. Mr G said the type of background check depends on the [workplace omitted] they are leaving and the information the Applicant themselves needs to provide.
The earliest time the mother could be accepted would be between 5 to 6 months after the interview. The longest time was between 11 to 12 months. At the end of either period the training course of 20 weeks would need to be completed.
The question of whether they re-accept someone is re-evaluated on every occasion. The applicant must complete a medical, attend a doctor, attend fitness testing, and do reference checks on the three previous officers in charge of them.
Following the selection interview they have to attend the [omitted] for 20 weeks and then they are sent to a position commensurate with their skills and ability and of course family commitments are taken into account as to where people are stationed.
Because of her prior history as a [occupation omitted] the mother would not be placed in the first available [omitted] course but in one with others of her skill level. It could be well over 12 months before the mother was re-employed.
The affidavit of Mr Andrew Price, solicitor, filed in answer to this issue is incorrect and is not read.
Ms Haughton pressed Mr G on the issue that as the mother had previously been a [occupation omitted] with the Victorian [workplace omitted] then surely she would get a shorter course or some favourable treatment. Mr G responded firmly:
No. She cannot. There are no exceptions.
Mr G did state that she would be offered a [occupation omitted] position on her return.
After this evidence the mother’s case that she did not have a job in Victoria was made out. I accept, however, that the mother has caused this series of event to play out.
Evidence of Dr Jacobson
Dr Jacobson was called and gave evidence by telephone.
Dr Jacobson’s report recommended that:
1. Ms. Becker and Mr. Sawyer equally share the parental responsibility for [X]’s long-term care, development and welfare.
2. [X] not be permitted to relocate to the Northern Territory.
3. [X] to spend time with Mr. Sawyer regularly and frequently.
4. The Judicial Officer give consideration to Mr. Sawyer’s proposals for a shared residence arrangement.
Those recommendations were made on the basis of the parties then applications and statements to him. In particular, the mother telling
Dr Jacobson that if the Court did not adopt her proposal and she was required to remain living in Victoria:
she would not become so disabled that she could not perform her role as [X]’s mother. However, she described the likelihood that her self-esteem would suffer and this might have a negative flow on effect, not only to [X] but also to [D].
The mother told Dr Jacobson that she believed [D]’s feelings and well-being were not being considered and that she had done what she believed was best for her children in obtaining a higher paid job in the Northern Territory. The mother was clear that she did not have a job in the Victorian [workplace omitted] which I accept is true, and that if she stayed she would have to look for another job and rely on government assistance.
Dr Jacobson observed [X] and his father interacting well, as he did with both parents. These are each competent and caring parents.
[X] and [D] interacted well.
Dr Jacobson opined at paragraph 44 of his report:
nothing replaces actual face-to-face involvement; face-to-face interactions entails highly complex factors that include familiar features of the parent such as smell and movement, not to mention the various activities it accords a parent and child.
Dr Jacobson opined that young children need the experience of spending face-to-face time with a parent. Older children can go longer between visits.
The parents impressed him as:
interested and concerned parents who have [X]’s best interests at the forefront of their thinking. They each want good things for their son and they should be commended for this. However, Ms. Becker’s pursuit of good things for [X] is at odds with the good things Mr. Sawyer wants for his son. It is the writer’s opinion as a psychologist that a solid financial foundation does not replace a foundation for a solid relationship. If [X] has a solid relationship with his father, their relationship will last longer and has the potential to benefit him more than any material possession.
One area that I disagree with Dr Jacobson is the words “If [X] has a solid relationship”. [X] has a solid relationship with his father. That is clear from the evidence of his delight and joy when seeing his father at the airport after a separation of five weeks. That is also clear from his ability to have lived with his father for seven weeks with few temper tantrums or acting out behaviours.
Although [X] regressed in the use of the dummy and bottle and not sleeping on his own at night he could not have settled with his father as well as he did whilst being separated from his primary attachment figure if he did not have the strong bond he clearly has.
Ms Wheeler told Dr Jacobson that the parents did not dispute in front of the child and he had not witnessed any poor behaviour.
Dr Jacobson said that he found [X] hard to understand and he let [X] talk. Dr Jacobson was more direct with [D]. [X] said he liked to live “where mummy lives”. Dr Jacobson said that where words are in brackets they are the words that the person he is speaking to has actually said. Dr Jacobson agreed it was not a successful interview with [X].
Dr Jacobson agreed that [X] probably did not have a sense of where the Northern Territory is and does not understand what a move to there means.
Dr Jacobson did not explore with the parents [X]’s comment that his mother wants to live far away from his father “because she doesn’t like him”. He agreed that that such a comment could have been made at either parent’s home.
Dr Jacobson agreed that [X]’s mother was his primary attachment figure, and if he is taken away from her he could possibly suffer depression, withdrawal from family and friends, and experience grief and loss. The sequela of events could include impaired personal functioning, problems at school, risk taking behaviour, anti-social behaviour and the like. He could suffer anxiety, tummy aches, headaches, and weepiness. Dr Jacobson said there is one theory that separation from primary carers at such a young age is a basis for borderline personality disorders later in life. I cannot make a finding on that theory for it is just that.
Dr Jacobson took notes of [D]’s interview. Dr Jacobson reported that:
[D] said that he enjoyed living in the Northern Territory because it was “very hot” there…..
When asked about living in Victoria, [D] had similarly favourable things to say…While he said that he would like to continue living in the Northern Territory, if his mother were to live in Victoria, he too, would like to live in Victoria.
Dr Jacobson said that [D] became upset when they were talking about the time [X] was living with his father. He agreed the boys had a cohesive relationship, that [D] acted out the role of big brother in attitude and behaviour and that [X] looked up to his older brother for guidance. If they were separated he agreed each would feel great sorrow and miss each other.
He was asked by Ms Wheeler if such a separation could lead to similar behaviour and sequela as being separated from the primary carer.
Dr Jacobson said probably not as severe, but certainly some of that sequela could occur. He agreed separation of the boys from each other could have some long lasting effects on each of them.
Ms Wheeler put to Dr Jacobson that when [X] lived with his father for seven weeks he would have made a concentrated effort to please his father because the child had been separated from his primary carer.
Dr Jacobson agreed that could well be true. Ms Wheeler asked if seven weeks away from his mother was a long time and Dr Jacobsen agreed “Yes it is a long time”.
At the time of the report Dr Jacobson was unaware that [X] had regressed such that he wanted his dummy during the day as well as the night, wanted to have a bottle during the day, when he returned to his mother he had to have two dummies, one in his hand and one in his mouth. Dr Jacobson was also unaware [X] did not sleep in his own bed at all whilst with his father or was unable to tolerate his father being out of his sight.
Dr Jacobson was asked what this evidence showed. Dr Jacobson said this behaviour meant the child was missing his mother so much he had regressed in his behaviour and that this regression was consistent with the child suffering in having been parted from his primary carer.
Dr Jacobson was told of the incident after the mother’s return to Victoria where it took her and the father 20 minutes to cajole [X] to leave with his father. [X] had hidden under a table and his mother crawled on all fours under the table in an effort to encourage him to leave with his father.
Dr Jacobson said:
I was unaware of the extent of the regression of this child after being reunited with his mother whilst the interview was being conducted.
Dr Jacobson was asked “does this cause you concern if it happens again?” Dr Jacobson replied:
The separation was too long and it has had a negative affect on [X]’s attachment and may have a negative affect on [X]’s attachment in the future including to other people and other members of his family. This is a real risk for children of this age. That is the reason why it is so important children not be separated from their primary attachment figure at a young age.
The mother’s ultimate proposal to remove [X] to the Northern Territory was put to Dr Jacobson. That proposal is that [X] spend 21 days in the Christmas school holidays, 14 days in June/July and five days at Easter and in September, in Melbourne together with one period of three days and two nights in each of the four school terms with his father in Melbourne or the Northern Territory. [X] may miss some school for those trips and the mother would pay for the air fares.
Dr Jacobson said:
I feel better about that arrangement. I thought there was going to be eight to nine weeks between [X] seeing his father. Four or five weeks is much better. Four weeks is better, five weeks is pushing it. I do think [X] could tolerate five weeks.
Dr Jacobson was of the view [X] could tolerate a mid-term visit twice a year; otherwise his father should come to the Northern Territory.
Dr Jacobson was asked:
is that arrangement better for the child than living with his father in Victoria when the mother says she cannot stay in Victoria and has to relocate to the Northern Territory because she has no job?
Dr Jacobson said:
the alternative of the child living with the mother in the Northern Territory with the proposal as outlined by her is a far, far better outcome than the child living with his father in Victoria because his primary attachment will not be disturbed. That fact would change my recommendation.
He can cope with living away from his father as his father is his secondary attachment figure. He cannot cope with living away from his mother. It is a far better proposition, that is, to live away from his secondary attachment figure than living away from his primary attachment figure which is his mother.
Ms Haughton asked Dr Jacobson some questions.
Dr Jacobson said that in his view [D]’s secondary attachment is his grandfather and he would be well able to cope at being separated from him provided he was seeing him on a regular basis, and it is clear he would on the mother’s proposal.
Dr Jacobson said the father should travel up and return rather than having the child travel. He said how a child travels depends on how a parent travels. If the parent handles it the child will handle it. For the secondary attachment, which in this case is the father, “frequency of time is the issue rather than duration”.
Dr Jacobson agreed an extended family is of enormous benefit to a child. A family gives the child a sense of stability and certainty. It was then put to him that “if the child lives with the father in Victoria and the mother came down and saw him on the same proposal as the mother proposes for the father would that not be appropriate?”.
Dr Jacobson said:
No, no, no. We are talking about a primary attachment figure here. They need to spend all their time with that figure. So there is no reasonable period of separation from the mother.
Dr Jacobson said that if [X] lived in Victoria the mother should remain. He then said to me directly:
I plead with you that the Court does nothing to disrupt the attachment of [X] with his mother.
The Law
This is a relocation case and I must, consistent with the case law set out in many decisions starting with A & A: Relocation Approach (2000) FLC 93-035, set out the parties competing proposals and any others I consider appropriate.
Available Options
Firstly, the mother’s proposal, that she remove herself, both children and her mother to the Northern Territory and [X] spend time with the father in Victoria and in the Northern Territory in accordance with her proposal.
Secondly, that the mother removes herself and [D] to the Northern Territory and [X] lives with his father in Victoria and spends time with the mother in the Northern Territory in accordance with the father’s proposal.
Thirdly, the mother and [X] remain in Victoria and the live with arrangements I should put in place. The father seeks an equal time arrangement. The mother has no such proposal as she will live in the Northern territory no matter what order I make.
Fourthly the mother, children, grandmother and father all live in the Northern Territory and the care arrangements I should put in place for that eventuality.
Fifthly, the father’s proposal that I order the mother to remain with the child in Victoria for 12 months. That is not an option. I have no power to restrain the mother’s choice of residence only a power to restrain her choice of residence for the child. I will not make what is in effect an interim order in a matter such as this as it is inconsistent with my obligations under the Act and in particular section 60CC(3)(l) “to make an order that would be least likely to lead to further proceedings”. Such an order is against the child’s best interests.
In reality there are only three competing proposals that are viable as I am satisfied the mother will not remain in Victoria no matter what order I make. They are options 1, 2 and 4.
Dr Jacobson’s evidence was extremely clear and cogently put. In his expert opinion, due to the regressive behaviour [X] demonstrated when separated from his mother for seven weeks, to ensure his continued and future emotional well-being and health the Court should do nothing to disrupt [X]’s attachment to his primary attachment figure who is his mother.
As I am satisfied the mother will not remain in Victoria despite
Ms Haughton submitting this is all a bluff by her then on the basis of the expert’s opinion, the only option is for [X] to live in the Northern Territory with his mother, his brother and his grandmother.
However, the expert’s opinion is but one part of the evidence I must assess in the determination of this issue.
Equal shared parental responsibility
The first matter I am tasked with is to determine whether I ought to rebut the presumption of equal shared parental responsibility. There are no indicia for such a rebuttal and neither party contended for it.
Dr Jacobson recommended equal shared parental responsibility. Thus the parents will equally share parental responsibility.
Having so found I must then determine whether there should be equal time or if not whether there ought to be significant and substantial time spent with the child and his parents.
Equal time or significant and substantial time can only be achieved if both parents live in the same area, that is, the mother and father in the [M] area or the mother and father in the Northern Territory.
Equal time is contraindicated from Dr Jacobson’s evidence because he says as clear as a bell:
No, no, no. We are talking about a primary attachment figure here. They need to spend all their time with that figure. So there is no reasonable period of separation from the mother…
For the secondary attachment frequency of time is the issue rather than duration.
Thus if both parties live in the same geographical location the order I would make as one in [X]’s best interests is for substantial and significant time as due to [X]’s age and his attachment to his mother equal time would be contraindicated at this stage.
Primary Considerations
The primary considerations I must have regard to are contained in ss60CC(2)(a) and (b).
There are no violence or abuse issues in this matter.
Any order I make must ensure the benefit to the child of a meaningful relationship with both parents.
The child is primarily attached to his mother. He suffered significantly when he was removed from her care for seven weeks in November/December 2008 and his behaviour regressed.
The benefit to the child of a meaningful relationship with his mother really means he must live with her. His need on the expert evidence is to spend all his time with her. To remove him from her primary care in order to maximise his relationship with his father would result in significant emotional and psychological harm to him. His behaviour and ability to form and sustain relationships now and in the future would be adversely affected and his regressive behaviour continues.
I am satisfied on the evidence that this is what would occur if I made the order contended for by the father namely [X] live with him whilst the mother lives in the Northern Territory.
Dr Jacobson’s position was that it is “do-able” for [X] to be separated from his father who is his secondary attachment figure and that the proposal of time that the mother puts forward is also “do-able” in order fro [X] to maintain his relationship with his father.
Dr Jacobson said [X] can tolerate a separation from his father. He cannot tolerate separation from his mother who his primary attachment figure.
Dr Jacobson said the alternative put forward by the mother of the child living with her in the Northern Territory and the proposal outlined for the child to spend time with and communicate with his father is a “far, far” better outcome than the child living with the father in Victoria and the mother living in the Northern Territory.
On this evidence [X] can live in the Northern Territory and maintain the benefit of his meaningful relationship with his father.
I accept this may not result in the maximum relationship with his father but to maximise or optimise his relationship with his father when the mother is living in the Northern Territory means a separation from his primary attachment figure and this will have dire emotional and psychological consequences for him as outlined by Dr Jacobson.
The decision of Dessau J in M & S (2007) FLC 93-313 is authority for the proposition that section 60CC(2)(a) does not mean the optimum relationship but the best relationship in the circumstances having regard to the best interests principles.
The evidence is clear a disruption to [X]’s relationship with his mother will have far greater long term and short term negative consequences for him than a disruption to his relationship with his father.
According to Dr Jacobson the regime of time that the mother has put forward in her proposal will provide [X] with proper time with his father in order to maintain his relationship with him.
If the father removes himself to the Northern Territory then [X] can spend significant and substantial time with his father on a weekly basis without difficulty. That scenario would provide the optimal outcome for [X] and maximise his relationship with his parents as he would not be separated from his primary attachment figure, his mother, and would be secure in his secondary attachment figure, his father.
Additional Considerations sections 60CC(3)& (4)
Views of the child. [X] is too young to express any views. They are not relevant to this matter.
The nature of the relationship of the child with each of the child's parents; and other persons (including any grandparent or other relative of the child). [X] is primarily attached to his mother and, according to Dr Jacobson, he needs to spend all his time with her and cannot be separated from her. His secondary attachment is to his father and he can tolerate separation provided he has meaningful and frequent time with him which Dr Jacobson said can be maintained on the mother’s proposal.
[X] has a strong attachment to his brother, [D], which can only be achieved by his living in the Northern Territory as the mother will live in the Northern Territory, not Victoria.
[X] is attached to his grandmother.
If [X] lives with his father in Victoria he will suffer the loss of his primary attachment and his secondary attachments to his brother and grandmother.
If the father lives in the Northern Territory all attachments can be maintained.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living. The mother’s proposal that the child live in the Northern Territory is a significant change. The child lived there for a period of five weeks without any difficulty. [X] will be commencing school in 2010 which is a further change no matter which state he lives in. He will be living with his mother, his brother and grandmother with whom he has lived all his life. However, his circumstances will have changed and he will not have the extended paternal and maternal family surrounding him as he presently does in living in Victoria.
If he remains in Victoria with his father his circumstances will significantly change. He will be separated from his primary attachment figure and although he will have his father and his extended family, to use Dr Jacobson’s words:
No, no, no. We are talking about a primary attachment figure here. They need to spend all their time with that figure. So there is no reasonable period of separation from the mother.
I plead with you that the Court does nothing to disrupt the attachment of [X] with his mother.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis. There is a significant expense. With the mother and the child in the Northern Territory, she has expense of delivering the child to Victoria and the father has the expense of travelling to the Northern Territory. However, the mother would be sending [D] down to visit his grandfather and she herself would travel down to visit her extended family, thus part of that expense would always have been borne by the mother in these circumstances.
If the child remains in Victoria with his father, again there will be the same cost for each party to ensure the child spends time with his mother, brother and grandmother.
The capacity of each of the child's parents, and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs. Each of these parents has a high capacity as parents. They are committed, loving, and competent parents who have ensured that, even though they have never lived together, their son has a strong relationship with his father and a strong relationship with his mother.
The child’s paternal and maternal family each have much to offer him. He has lived with his maternal grandmother all his life.
[X]’s mother is an experienced parent and the father agreed she was a good mother. The father is not as experienced as she is and I detected some insecurity in his parenting style. He sought to lay blame at the mother’s feet for trivial and small matters which he did not make out, such as complaints in relation to soccer and schooling which decisions had not even been made by the mother.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant. This is not a relevant consideration.
If the child is an Aboriginal child or a Torres Strait Islander child: the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right. This is not a relevant consideration as the child is not Aboriginal.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents. The mother has a high level of parenting and takes her responsibility as a parent seriously. Her behaviour in July 2008 when she continued with the offer of the accelerated recruitment program despite the father saying on 21 July 2008 and confirming in a letter from his solicitor on 29 July 2008 that he did not agree to her taking [X] to the Northern Territory is a serious lapse in her hitherto exemplary record as a parent.
This was something she wanted to do and she believed it was best. However, she knew the father disagreed and went ahead anyway. Had she come to the Court initially and asked for an order, matters may have turned out very differently.
The father takes his responsibility as a parent highly except for one area. In my view the father pays very minimal child support. He has a low income and choses to spend $84 a week on cigarettes. He pays $40 a week for child support. Forty dollars a week support for a child is a very small sum indeed.
Other than those matters each parent takes their responsibilities seriously.
Any family violence involving the child or a member of the child's family. There are no family violence issues in this matter.
Findings
This is a matter where the expert evidence changed significantly once the true factual situation was made known to him. Namely, the regression in [X]’s behaviour which showed the suffering he experienced in being separated from his mother for seven weeks in November/December 2008. His regressive behaviour when known to Dr Jacobson made it clear to him that [X] cannot be separated from his mother and he must live where she lives.
Dr Jacobson believed the mother’s proposal to remove the child to the Northern Territory is preferred to the father’s primary proposal that the child remain in Victoria with him particularly when he had regard to the mother’s proposal for [X]’s time with his father.
On the basis of the firm and clear expert opinion, the order I should make in [X]’s best interests is that [X] live in the Northern Territory with his mother.
The further evidence I have relied upon to support the decision that such an order is one in [X]’s best interests is:
a)that the mother is the most experienced parent of the two and showed exceptional understanding of her child’s needs when he came to live with his father by making the photo book for him and telling him he was on a holiday; and
b)if [X] lived in [M] with his father he would also be separated from two of his secondary attachment figures, his brother and his maternal grandmother.
The best outcome for [X] is that consequent upon this living in the Northern Territory his father moves to be close to his son. In such an eventuality [X] could spend significant and substantial time with his father and his father would be involved day to day with his son’s activities, something his mother is desirous of and encourages.
The reason I am of the view that the mother will encourage this close connection is:
(1)She always has;
(2)She is most distressed that [D]’s father plays no part in his life; and
(3)She does not want this for [X].
In all the circumstances and on the weight of the evidence the order that is in [X]’s best interest is that he lives with his mother and thus her application to remove the child to the Northern Territory is the preferred option as this child cannot be separated from her.
I will make orders in the event the father relocates to the Northern Territory, as he indicated he would consider, for [X] to spend significant and substantial time with him.
I make the orders as set out at the commencement of this decision.
I certify that the preceding three hundred and nineteen (319) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: A. Morris
Date: 3 April 2009
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