Sharp and Daley
[2008] FMCAfam 568
•6 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHARP & DALEY | [2008] FMCAfam 568 |
| FAMILY LAW – Re-location – six year old child has not spent time with the father for two years prior to trial – relevant legal principles. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA, 65DAC, 68B, 114(3) The Constitution, s.92 |
| Mills & Watson [2008] FMCAfam 2 Sampson & Hartnett (No.10) [2007] FamCA 1365 AMS & AIF (1999) FLC 92-852 A v A: Re-location Approach (2000) FLC 93-035 U v U (2002) FLC 93-112 Bolito & Cohen (2005) FLC 93-224 BJZ & KEM [2007] FMCAfam 86 H & H [2007] FMCAfam 27 S & B [2006] FMCAfam 447 |
| Applicant: | MR SHARP |
| Respondent: | MS DALEY |
| File Number: | ADC 1069 of 2007 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 20 & 21 September 2007 |
| Date of Last Submission: | 20 November 2007 (via written submission) |
| Delivered at: | Adelaide |
| Delivered on: | 6 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hicks |
| Solicitors for the Applicant: | Mead Robson Steele |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Robinson & Mason |
ORDERS
The child [A] born in 2002 do live with the mother.
The mother do have the sole parental responsibility for the long-term care, welfare and development of the said child.
The application of the father for orders by way of injunction restraining the mother from changing the principal place of address of the said child from Adelaide or without notice to him be and the same is hereby refused.
The parties do all such things as may be reasonably required to facilitate the said child spending time with the father as follows:
(a)on one (1) day of a weekend on four (4) consecutive weekends for periods of not less than two (2) nor more than three (3) hours at the [N] Children’s Contact Service under the supervision of an officer of that service, the dates and times of such time-spent to be as specified in writing by the management of such service, being the earliest dates reasonably available to the parties following upon the enrolment of the parties in the said service, with the parties and each of them to forthwith do all such things as may be reasonably required to facilitate their enrolment in such service and to share equally all costs arising from their enrolment and attendance at such service;
(b)until the said child shall have attained the age of eight (8) years, in [X], Western Australia for one (1) period in each of the said child’s school holidays following upon the said child’s re-location to [X], being three (3) consecutive days between the hours of 10:00am and 4:00pm on such days, the time-spent on the first day of each such period to be taken in the presence of the nominee of the mother, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period;
(c)thereafter and until the said child shall have attained the age of nine (9) years, in [X], Western Australia for one (1) period of three (3) days in each of the said child’s school holidays being from 10:00am on the first day to 6:00pm on the third day, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period; and
(d)thereafter, and until the said child shall have attained the age of ten (1) years, in Adelaide for a period of one (1) week in each of the said child’s school holidays following upon the conclusion of Term 1 and Term 3 and for one (1) week in the said child’s Christmas school holidays, not including Christmas Day, but otherwise on days specified in writing by the father to the mother not less than forty-two (42) days prior to the first day of each such period, with the costs of the said child’s air travel to and from Adelaide to be shared equally by the parties, with liberty to apply granted to both parties from sixty (6) days prior to the said child having attained the age of nine (9) years as to whether such air travel should be un-accompanied and otherwise as to the terms and conditions of such air travel.
Drug Testing
(a)The exercise by the father of all time-spent pursuant to paragraph (4) hereof shall be conditional upon him providing on the two occasions specified in sub-paragraph (e) hereof to the mother a certificate from a qualified medical practitioner, or their authorised delegate, evidencing the absence of any trace of any class of the following illicit substances in a sample of his urine tested so as to determine the presence of such substances, namely:
(i)benzodiazepines;
(ii)opiates;
(iii)methadone;
(iv)amphetamine;
(v)cannabinoids;
(vi)barbiturates; and
(vii)cocaine.
(b)The provision by the father of each urine sample tested for the purposes of the provision of the certificate shall be personally supervised and observed by a qualified medical practitioner, or their authorised delegate, in accordance with the chain of custody protocol specified in AS/NZ4308:2001.
(c)Each sample shall be tested within seven (7) days of its provision.
(d)Each certificate shall be provided within (7) days of testing.
(e)The two occasions referred to in sub-paragraph (a) hereof are:
(i)the giving of written notification by the father to the mother for each period of time-spent pursuant to paragraph (4) hereof; and
(ii)a date not more than seven (7) days prior to the first day of each such period of time-spent.
There be liberty to the father to apply for time-spent orders in the event that the mother ceases to have her principal place of residence at [X] in Western Australia.
There be liberty to the mother to apply for discharge or variation of the time-spent orders provided in paragraph (4) hereof in the event that any of the periods of time-spent described in that paragraph are not exercised by the father other than by reason of the mother’s failure to comply with such orders.
Each party do keep the other party informed at all times of their current postal and residential address and, in any event, inform the other in writing within fourteen (14) days of any change to such postal or residential address.
The mother do all such things as may be reasonably required to authorise the officers of any school at which the said child shall attend to provide to the father such information in relation to the said child’s schooling as he may request from time to time.
The mother do keep the father informed at all times of the name and address of the school at which the said child shall attend from time to time and, in any event, inform the father within fourteen (14) days of any such change of school.
The mother do all such things as may be reasonably required to facilitate the said child communicating by telephone with the father on the fourth Sunday of each month at 6:00pm (Central Standard Time), with the mother to telephone the father at his land-line telephone number at such times, such telephone call not to exceed fifteen (15) minutes in length and with the mother to bear the costs associated with such telephone communication.
The father do forthwith provide the mother in writing the details of his land-line telephone number and advise the mother in writing within fourteen (14) days in the event of any change in such telephone number.
In the event that the father shall have acquired and installed at his home such equipment as will facilitate his communication with the said child by way of visual internet communication (“web-cam”) and shall have advised the mother in writing of his having acquired such equipment then and in that event, the mother shall within twenty-eight (28) days of receiving such advice in writing, acquire and install such equipment at her home as will enable the said child to communicate with the father by web-cam and thereafter the mother shall do all such things as are necessary to ensure that the said child communicates with the father by web-cam at the times specified for telephone communication in paragraph (11) hereof in lieu of such telephone communication but otherwise on the same terms and conditions of such telephone communication.
All applications do otherwise stand dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sharp & Daley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1069 of 2007
| MR SHARP |
Applicant
And
| MS DALEY |
Respondent
REASONS FOR JUDGMENT
This is a re-location case.
The parties have never married. The mother is 24 years of age. The father is 23 years of age. They have one child namely [A] born in 2002 and so a six year old.
The mother wants to move with the child to [X] in Western Australia. She says that it is not in the best interests of the child that she have a relationship with the father. She says that even if a relationship should be promoted it should not impede her move with the child to Western Australia.
It is not disputed that the father has not seen the child since February 2005.
The father seeks orders that he spend time with the child on a gradually increasing basis until he is spending time with her regularly on alternate weekends and for half school holidays and on other occasions.
The affidavits and evidence before me was essentially that of the parties, although I heard from a psychiatrist whom the father had attended upon prior to the trial and material arising from his attendance upon a psychologist was also in evidence.
Much of the cross-examination of the parties was taken up with matters relating to events in their short relationship but there was no dispute as to the important aspects of that chronology. I turn to a summary of the evidence before me.
The parties met in 2000 when the mother was 17 and the father was 16. They had both experienced some degree of difficulty with their families and schooling and both regularly used drugs. The mother attributed her rebellious behaviour in her teenage years to the death of her mother when she was 15 years of age and her inability to cope with her grief. The father gave varying accounts to mental health personnel with whom he has interacted over the years, the psychiatrist upon whom he attended, the mother and the Court as to the provenance of his behavioural problems and as to his experiences growing up.
The parties lived together between November 2001 and February 2002. The child was born during the later part of this short relationship. The father suggested in evidence that they had reconciled for a short period in mid 2002 but his evidence was vague and the mother denied it and I accepted her denials.
The mother acknowledged that she used drugs, including the intravenous use of amphetamines, during the relationship but that she eschewed drug use after becoming aware she was pregnant. The father’s drug use continued and was still continuing at the time of trial, according to him, to a very limited extent.
For the first year of the child’s life the mother contended and the father essentially did not dispute that he spent time with the child on approximately half a dozen occasions, always in the presence of the mother and sometimes with his mother present.
During the second year of the child’s life the father spent two periods of time with the child at a play centre.
His lack of time with the child during her first two years was said by him to be a function of the mother’s oppositional attitude and said by her to be because of his lack of commitment to the child, his preoccupation with his reviving his relationship with the mother and the priority he gave to drug use.
The father agreed to a change in the child’s surname from "Sharp" to "Daley" in April 2003. He said he did so upon the basis of an assurance by the mother that she would facilitate additional contact between he and [A], which he says did not occur.
The father appears to have instructed solicitors to assist him as early as May 2003.
He says that throughout 2003 and into 2004 the mother resisted most of the attempts by him to arrange to spend time with his daughter.
The mother says that the parties separated after an argument involving the father’s drug taking. Her evidence was coherent and convincing. Once again the father’s denials were vague and unconvincing.
The father instituted proceedings in the Federal Magistrates Court in April 2004.
The mother said that her confidence in coming to arrangements with the father about his spending time with [A] were undermined by her knowledge of his brother, Mr S, being a regular drug user and the general instability of his family. We did not hear from any of the father’s family members during the trial. Neither did we hear from his present partner and I will discuss her absence hereunder. The mother said that her difficulties in consenting to the father spending time with the child in these first two years were also complicated by what she alleged was his practice of using time with the child (at which she was present) to attempt to revive their relationship. The father’s case was conducted upon the basis of him admitting that he found the break up of the relationship with the mother very difficult to accept. I did not take him to challenge the mother’s assertions in this regard.
On 13 October 2004 this Court ordered that the father spend three periods of one hour with the child. Thereafter his time with the child was to be each Tuesday for two hours commencing at 10.00am and each Friday at the same time or each Wednesday for two hours commencing at 2.30pm. These orders were conditional upon the father having leave from his employment. The first three periods of time-spent were to take place at the [W] Pre-school Centre and was to be supervised by an individual at that Centre who was named. Certain injunctions were made regulating the father’s conduct towards the mother and his alcohol and drug use. The matter was adjourned until
11 January 2005.
The mother says that shortly after the orders were made in October the parties agreed that unsupervised time-spent was to occur too soon in the relationship between the father and the child. An exchange of letters between the solicitors for the parties confirmed that the mother was to remain present for a further four periods of time-spent and the parties agreed for the mother to go away with the child on a holiday in the early part of December 2004. The mother says that the father was haphazard in abiding by the arrangements. In particular, he did not take up time-spent that was due on New Year’s Eve. She says that she was concerned about the level of supervision provided by the father to the child in periods she witnessed and she continued to make allegations about his usage of drugs, and in particular cannabis. She said that the child’s behaviour following periods of time-spent regressed. In January 2005 during a period of time-spent with the child at the father’s home in the presence of the mother the father called the police and the police attended following an altercation between the parties. The incident ended, apparently, with the parties and the child, the father’s mother, her partner and the father’s girlfriend all being present while the father exercised some time-spent with the child at a local McDonalds restaurant. The parties disagreed about very little relating to what happened on this particular occasion and their account of the event is a good index of the poor state of their relationship at this time.
As noted above, the father’s account of events during the early stages of the Court proceedings differed in that he emphasised the mother’s oppositional attitude to the making of arrangements for him to see the child. He denied any continuing drug use.
When the matter returned to the Court on 1 February 2005 Federal Magistrate Bennett appointed an Independent Children’s Lawyer, listed the matter for trial in October 2005, made the necessary procedural orders including an order for the preparation of a s.62G family report, made orders for the father to spend time with the child each weekend on either a Saturday or a Sunday for gradually increasing periods up to five hours and made orders for random drug tests to be performed by the father.
It is following these orders that the father’s commitment to the whole process of re-establishing his relationship with his daughter came under considerable challenge.
In March 2005 the parties reached an agreement in relation to parenting orders relating to [A]. The document which is in handwriting and signed by each of the parties indicated that they agreed that his time with [A] should remain as it then was but noted their agreement that it should increase gradually to overnight time. It specifically noted their intention to resolve the matter “outside of the Court process”. The father says that he thought the mother was to instruct her solicitors to lodge the document as some form of consent order. But the mother’s solicitor had written to the father’s solicitor enclosing a copy of the handwritten agreement and invited his solicitor to draw the relevant minutes of order. In the meantime arrangements had been made for the family consultant to prepare the relevant family report. A report dated 27 May 2005 from Dr J was in evidence before me. The report notes that the father did not participate and that his solicitors had indicated to her his non-responsiveness to written communication. The report noted that [A] had a good relationship with her mother and her then boyfriend a Mr L (she is no longer in a relationship with him) but also noted, presumably upon the basis of the affidavit material that Dr J had read, that “there was some evidence that (the mother) had obstructed (the father’s) contact with [A]… (and this had) negatively impacted on (the father’s) ability to establish a strong relationship with [A]”. However she also noted Mr Sharp’s lack of any completion of the drug tests ordered by Federal Magistrate Bennett. The report was obviously of limited assistance in the light of the father’s non-involvement.
The father claimed in his evidence before me that he had changed address at or about the time the report writer was writing to him to try to set up appointments. He said that his then girlfriend had simply placed all of his correspondence in a pile at the new address and not brought it to his attention for some time. This was also his explanation for his failure to respond to his lawyer’s requests. By 20 May 2005 his lawyer had filed a Notice of Ceasing to Act.
The father’s evidence as to his problems arising from the change of address was not convincing. In other words, it does not provide in my view an explanation for his failure to keep in touch with his own legal representatives. The mother says that this is accounted for by his knowledge of his obligation at the time to undergo drug screen testing. His other problem is that it coincides with a cessation of his spending time with the child.
After the orders made in February 2005, he spent some time with the child in May but no further time with her until the Court hearing on 8 July (he does not see the child again at all except for two fortuitous meetings in December 2005). He says that he was trying to contact the mother by telephone after May 2005. He denies the mother’s allegations that she was attempting to contact him but he acknowledges that apart from a SMS message of 1 July 2005 he was not in communication with her. Whether or not the mother made the efforts she did to contact him during this period, his own evidence establishes that he must have known that she was not adhering to their informal agreement made in March. It is difficult to follow why in that circumstance he was not anxious to contact his solicitor and revivify the court process. It may have something to do with his continuing to use drugs during this period. Certainly no adequate explanation was provided by the father for his supine inactivity during this period.
When he did not attend the trial on 8 July 2005 Federal Magistrate Reithmuller made orders that [A] reside with the mother and that the father have such contact with her as the parties agreed. These orders were made with the consent of the Independent Children’s Lawyer.
I am not prepared to find that the mother behaved inappropriately in not instructing her counsel to bring the March 2005 agreement to the attention of the Federal Magistrate who made the orders. By July 2005 she had not heard from him (apart from a text message) for several months. I have read the transcript of the proceedings before the Federal Magistrate that day and I am not satisfied that there was any irregularity about the way the matter proceeded. I am not satisfied the father was misled by the mother about the legal effectiveness of the March document. It was an attempt to resolve the matters. It did not lead to a cessation of the proceedings because the father fell out of touch with his own lawyer and with everyone else associated with the proceedings. In those circumstances the mother was entitled to proceed to have them heard and determined.
The father says that he attempted to contact the mother following the court orders (though he did not actually know that orders had been made, he said, until January 2006). He says that she agreed that he could spend time with the child provided he produced a clear drug test result. The mother denies this particular discussion took place. Like a number of the father’s contentions as to the mother’s conduct it is not something that assists him because his own evidence was that he did not undergo the drug tests anyway. He says he could not contact her again as she had moved address and that is why he did not have the drug tests carried out. I do not follow the logic of that explanation. In any event, the mother denies she moved address at this time and, importantly, the same solicitors continued to represent her throughout the proceedings. There was no impediment to the father contacting her through her solicitors.
By this stage the father says that his problems in having a relationship with his daughter and in dealing with the mother had brought on anxiety and depression. His mental state was not assisted by the chance meetings with the mother and the child on two occasions in short succession in December 2005.
The father’s first affidavit filed following the orders made by Federal Magistrate Reithmuller describes only one incident of the mother and child and the father coming across each other fortuitously and he places the event in mid 2006, coinciding with what he says was his mental breakdown. The mother in her responsive affidavit said that there was two events in short succession and they occurred in December 2005. The father admitted that there was a second incident but he continued to place the timing of the events as at mid 2006. The mother’s evidence as to dates and sequence of events was far more coherent than that of the father. He had not mentioned the second event at all in his affidavit. I accept that the events occurred in December 2005 in accordance with the mother’s evidence. As to the detail of the interactions, I do not think a great deal turns on them. In the first of the events the father sees the mother whilst they are both on the road in their vehicles driving in opposite directions. The father turns around and follows the mother to the home of her then boyfriend’s father. The second incident was more significant in that the father’s behaviour was said by the mother to be intimidatory. The mother was with her sister and with [A] at the [R] Shopping Centre. They were seen by the father’s girlfriend. The mother arranged for her sister to leave the centre with [A]. As the mother left the food court area she was confronted by the father. He followed the mother as she tried to leave the premises and the mother sought and obtained the assistance of shopping centre security staff to leave the building and subsequently reported the matter to the police.
That is the last time the parties have had any communication.
Sometime towards the middle of 2006 the father sought the assistance of the [P] Mental Health Service and a Mr G in particular. His report of 10 November 2006 to the Legal Services Commission was admitted into evidence by consent (it appears as an annexure to the mother’s trial affidavit and no objection was taken to it - in fact, the mother annexed a great deal of material from the father’s interaction with Mr G over the period June 2006 to April 2007 to her affidavit and much of the cross-examination of the father was taken up with a scrutiny of the information provided by him to Mr G). His involvement with Mr G followed his presentation to the psychiatric unit at [F] Medical Centre in late May 2006. He had an appointment with the registrar of that service on 1 June 2006 and notes arising from that interview were also before the Court.
The father says that his interactions with Mr G have been very beneficial to him in understanding and coping with what he said was his depression arising out of his lack of contact with his daughter. Certainly he obtained the sympathy of Mr G who reported in the letter to the Legal Services Commission referred to above:
To cut a long story short, Luke has one of the most abusive upbringing (sic) I have ever worked with. He was on the streets at a very early age, got into the most self destructive behaviours imaginable and has had to deal with stuff that most people can’t even dream about.
Unfortunately, the father conceded that he had exaggerated a great deal of the information he provided to Mr G. The abuse that he suffered at the hands of his parents (Mr G speaks of him in one of his notes as being “brutalised” by both parents) turned out to be being smacked on the bottom with an open hand. He had referred to his father using the belt in one of his trial affidavits but appeared to resile from this in his oral evidence. His oral evidence focused upon the abuse being in the presence of arguments between his mother and father. In any event, he accepted that his description of his parents being harsh and abusive given to Mr G was inaccurate. He thought that his parents were persons whom it was perfectly appropriate that [A] interact with.
There were a number of matters about which he informed the various mental health personnel in 2006 that he was anxious to resile from at the time of trial. So, for example, he did not actually have any experience when young of visualising “spirits”; when he spoke of torturing animals as a child he was really only referring to childish pranks which did not harm his pets; the stabbing of another child at school involved a minor incident with a pencil and that was the appropriate way to characterise other stabbing incidents which were alleged to have occurred at high school; whereas he advised the psychiatric registrar on 1 June 2006 that he drank 1-2 bottles of vodka per day, that was not true - even when he drank a great deal which was as far back as 2004 it was wine only and, indeed, he now claims not to drink alcohol at all.
Most significant of all are his inconsistency as to drug use. He advised the Assessment and Crisis Intervention Service (ACIS) personnel on
30 May 2006that he had used amphetamines intravenously on a daily basis in the past. This was inconsistent with information provided in an affidavit to this Court that he had only ever taken amphetamines and heroin orally. His explanation for this was to suggest that the amphetamine was only taken intravenously when the mother injected him. She denied ever having done that and I accept her denials.
He disclosed the mental health personnel a history of self harming as a child including a suicide attempt at 14 years when he slashed his wrists and tried to hang himself. He admitted in his evidence that he attempted to commit suicide when he was 15. When he referred to overdosing on amphetamines to the medical staff he said in his evidence that he was referring to an occasion when he became unwell as a result of the mother giving him a large dose of amphetamine.
Two attempts to stab himself following arguments with the mother, as disclosed to the mental health personnel, he said in his evidence did occur and occurred when he and the mother were living together and following arguments. The description he gave in evidence of the attempt to hang himself which is an event he reported on 30 May 2006 was unconvincing. I did not gain the impression that he was giving me an accurate account of the event. It was either more serious than what he was describing or it did not occur at all, but if it occurred, I do not think it occurred in the way that he described in his evidence.
The father did not call Mr G to give evidence.
All of this evidence was very unsatisfactory. It is of concern that the father would provide seriously misleading accounts of his experiences in early life to the very person, Mr G, whom he said was a person who had provided him with significant ongoing assistance. I formed the view that if he could not be frank and open with Mr G he was unlikely to have been frank and open with the Court about these matters. I accept that some of the information he provided to Mr G and to ACIS was given for the purposes of eliciting sympathy and attention. I am not certain about the level of his drug use and whether he was a regular intravenous amphetamine user and user of heroin. It is difficult to disentangle his various stories on these matters. It is clear, however, that he has been a regular user of cannabis.
All of these problems undercut the utility to the Court of the opinions expressed by Dr B in his report and in his evidence. There is no doubting Dr B’s expertise in psychiatry or the careful attention that he brought to the evaluation of Mr Sharp. He only met with Mr Sharp once for the purposes of his report though he was given copies of all affidavits filed by the parties to that point.
His report contained a useful series of insights into the father’s personality. By the time the father attended upon him he was aware from affidavit material filed by the mother and documents produced upon subpoena that there were problems from the point of the conduct of his case with some of the information he had provided Mr G and his account of his experience with his parents and of his history of drug use and other behaviour is quite different when it is given to Dr B.
Dr B only discovered when he entered the witness box that the father had conceded in cross-examination of the exaggeration of many of his reports to Mr G. I do not think that this detracts significantly from the value of Dr B’s report and evidence. I think that I can still repose some confidence in the opinions expressed by Dr B in relation to the father’s personality, for example. I formed the view that the father had been giving a more accurate account to Dr B of his life experiences than he gave to Mr G.
Dr B was able to provide us with an insight as to the extent to which the father had been affected by the demise of his relationship with the mother and of his lack of a relationship with his child. The father’s description to Dr B of the mother being stronger than him and influential over him was consistent with the presentation of the parties in the witness box. Dr B’s opinion was that the father did not suffer from a severe mental illness but rather had an unstable and immature personality. He had an inability to deal with strong emotions. He had benefited from the psycho-therapy in which he was participating with Mr G. He adopted black and white thinking to avoid awareness of past painful experiences. All of these insights of Dr B seemed to me to be on the mark though his evaluation of the worth of the father’s treatment by Mr G is undercut, as noted above, by the inaccuracy of the father’s accounts to Mr G of various matters.
One matter I did not think that the father reported candidly to either
Mr G or Dr B was the level of his past and present drug use. He admitted a relapse to Mr G in terms of marijuana usage in March of 2005. He told Dr B he was still taking marijuana occasionally when he saw him in August of 2007. The father could have put the issue of his marijuana usage out of bounds by producing meaningful drug test screening results but did not do so.
I have summarised Dr B’s insights very briefly but I have taken into account his careful analysis of the father’s personality in evaluating all of the evidence that relates to the father.
The father did not call his current female companion to give evidence. Neither did she file an affidavit. He told Dr B and he told the Court that he had been in a relationship with her for four to five years. He told
Dr B that the counselling with Mr G had helped him improve his relationship. I would have been assisted by hearing from this lady. It would have been an opportunity to assess the changes in the father’s lifestyle and attitudes to parenting and other issues from a different perspective. There was no explanation as to why he did not call her.
I am not drawing an inference that her evidence would not have helped him so much as noting the absence of the evidence and the opportunity missed by the father to support the case he presented to me with independent evidence.
Dr B noted that the father had been unemployed for some time. His employment seems to have ceased at about the time that his relationship with the mother ceased. He receives a disability pension despite having no diagnosed mental or other illness. He seemed to be able-bodied and he had a history of employment when with the mother. I was left with a lack of understanding as to why he was currently not employed.
I turn to an account of the competing applications of the parties.
The mother seeks to re-locate with [A] to [X] in Western Australia. Her grandfather lives in that part of the State. Her father, who is a federal policeman, was at the time of trial about to be posted there. Her application consisted of two alternatives. She submitted that there was no benefit to the child in having a relationship with the father revived at this time but in the event that the Court thought that there should be an opportunity for a relationship she proposed that the father and the child have six supervised time-spent sessions at the [N] Children’s Contact Centre and that following her re-location with the child to [X] the father spend time with the child in Western Australia on one occasion each year over a two week period and during two separate two week periods in South Australia. The proposal was one of some complexity. The Western Australian fortnight would consist of alternate days beginning at periods of three hours per day and working up to periods of five hours per day. The time-spent would be supervised by a child-care worker paid for by the mother. The two South Australian fortnights also involved supervised time-spent, this time at the [N] Children’s Contact Centre. The mother proposed that the father pay his costs of travel to Western Australia and the child’s costs of travel to South Australia. In addition, she proposed ‘web-cam’ communication and telephone communication each week, should the Court consider that initiatives should be taken to revive and maintain the relationship. The mother did not seek any order regulating the allocation of parental responsibility.
The father’s proposal was that the child reside with the mother but that the parties have joint parental responsibility in respect of the long-term care, welfare and development of the child. He proposed that the mother be restrained from changing her principal place of residence without giving him six weeks written notice and obtaining his written consent. He proposed a gradually increasing regime of time-spent with the child beginning with six consecutive fortnightly periods of two hours at the [O] Children’s Contact Service at [M] moving through consecutive Sundays for periods of three hours and then five hours (six of each) on an unsupervised basis, six consecutive Sundays for a period of eight hours unsupervised, the alternate weekends 10am on Saturday until 5pm on Sunday on six occasions culminating in alternate weekend time from 5pm on Friday until 5pm on Sunday and for one half of all school holiday periods, all such time obviously unsupervised by this point. He sought a series of other orders relating to the provision of medical information and facilitating communication with the child and other matters.
The orders sought by him were plainly predicated on the mother and the child continuing to live in the general region of metropolitan Adelaide.
These are proceedings pursuant to Part VII of the Family Law Act 1975 (the ‘Act’).
[A]’s best interests remain the paramount consideration in the making of any parenting orders relating to her. That is set out in s.60CA, which says that the objects of Part VII of the Act are:
(1) The Objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separate, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Considerable legislative guidance is provided in ascertaining the best interests of a child. The primary considerations are set out in s.60CC(2):
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations are set out in s.60CC(3):
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)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;
(f)the capacity of:
(i) each of the child's parents; and
(ii) 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;
(g) 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
(m)any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) makes more specific provision in relation to s.60CC(3)(c) and (3)(i):
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
Section 61DA(1) of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The presumption does not apply in the circumstances set out by s.61DA(2), (3) and (4):
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
If the presumption applies then s.65DAA of the Act is engaged.
Federal Magistrate Walters in Mills & Watson [2008] FMCAfam 2 at paras. [72] to [76] summarises the effect of these various provisions:
72. Where parents are ordered to have equal shared parental responsibility for their child (whether as a result of the application of the presumption referred to above, or otherwise), the court must go on to consider whether the child spending equal time with each parent would be both reasonably practicable and in the child's best interests. If it is, then the court must consider whether or not it should make an order to that effect. If the court comes to the conclusion that an order for equal time should not be made, then it must then go on to consider whether the child spending "substantial and significant time" with each parent would be both reasonably practicable and in the best interests of the child. If it is, then the court must consider whether or not it should make an order to that effect.
73.The sequence in which the court should consider the various provisions discussed above (and other relevant matters) is not clear from Part VII itself. In Taylor & Barker (2007) FamCA 1246, however, the Full Court said:
… (Given) that the concept of the child's best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that section 60CC(1) provides that in determining what is in the child's best interests, the court must consider the matters set out in subsection (2) ("primary considerations") and subsection (3) ("additional considerations") of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child's best interests. (Emphasis added)
74.The Full Court in Taylor & Barker added that failure to follow the above approach (which it clearly regards as "the logical approach") does not necessarily amount to an appealable error. Such an error would arise, however, if a trial judge failed to give adequate reasons or did not have regard to "the matters which the legislation requires must be considered".
75,Having summarised the effect of the amendments to Part VII in paragraph 65 of its judgment in Goode, the Full Court then described the "legislative pathway" that "must be followed" in interim proceedings in paragraph 82. There seems to be no reason, however, why the same pathway ought not to be followed at trial, where final orders are sought.
76.The relevant steps (as modified for a final hearing) are as follows:
a)Identify the parties’ competing proposals.
b)Identify the issues in dispute in the proceedings.
c)Make relevant findings in relation to the facts.
d)Consider the relevant section 60CC factors and (if possible) make findings about them.
e)Decide whether the presumption in section 61DA (that equal shared parental responsibility is in a child's best interests) applies.
f)If the section 61DA presumption applies, then consider whether it has been rebutted (because its application would not be in the child's best interests).
g)If the section 61DA presumption applies, and has not been rebutted, then consider making an order that the child spend equal time with the parents ─ unless equal time would be either:
i) contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC; or
ii) impracticable.
h)If equal time is not in the child's best interests, or is impracticable, then consider making an order that the child spend substantial and significant time with the other parent - unless (in turn) substantial and significant time would also be either:
i) contrary to the child's best interests as a result of the application of one or more of the factors in section 60CC; or
ii) impracticable.
i)Bear in mind, however, that it is only necessary to consider whether it would be “reasonably practicable” for a child to spend equal time with each parent (or substantial and significant time, as the case may be) if a conclusion has already been reached to the effect that it would be in the child’s best interests to spend equal time with each parent (or substantial and significant time, as the case may be).
j)If the section 61DA presumption has been rebutted or does not otherwise apply, or if it does apply but "neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child's best interests", then issues regarding the child's living arrangements and the time that the child is to spend with each of the parents are "at large and to be determined in accordance with the child's best interests" (or, in other words, as a result of consideration of the objects and principles in section 60B and the factors set out in section 60CC).
k)The court is not relieved from having to consider equal time, or substantial and significant time, simply because neither party has sought orders to that effect - although the court would only make orders of this nature if it were to conclude that it would be in the best interests of the child to do so, and after affording procedural fairness to the parties (by informing them that equal time, or substantial and significant time, is being considered, and by giving them an adequate opportunity to lead evidence or make submissions in relation to the subject, including the issue of impracticability).
l)Throughout the entire process, the court must bear in mind that the child's best interests "remain the overriding consideration", and that the child's best interests are to be “ascertained by a consideration of the objects and principles in section 60B and the primary and additional considerations in section 60CC”. (Footnotes omitted)
The decision of the Full Court of the Family Court in Sampson & Hartnett (No.10) [2007] FamCA 1365 discusses in detail the legislative basis for the Court’s powers to prevent a parent from re-locating. Once again they are conveniently summarised by Walters FM in Mills & Watson (supra) at [83] - [94]. The issue is that one to which His Honour returns at [163] - [173], following his examination of the argument advanced in that case that the Federal Magistrates Court of Australia (indeed all courts exercising jurisdiction under the Act) lacked jurisdiction to make a re-location order with respect to an ex-nuptial child. That argument (which was essentially about the meaning of Division 12F of Part VII of the Act) depended, to a significant extent, upon whether the power exercised pursuant to the jurisdiction was to be found in s.114(3) or 68B(2) of the Act. Ultimately, His Honour was satisfied that the Court did have both the jurisdiction and the power to make an order where, as here, the child is an ex-nuptial child though he did have doubts whether s.114(3) was the source of the power. That controversy need not detain me here. The jurisdictional issue as to this ex-nuptial child was not agitated before me. The legislative basis of the power was also not in issue; I proceed upon the basis that either s.114(3) or 68B(2) of the Act is the source of such power.
As to the principles guiding the approach of the Court to re-location cases in the light of s.92 of the Constitution of the Commonwealth of Australia, I am guided by the decision of the High Court in AMS & AIF (1999) FLC 92-852. The principles which emerged from that case were the subject of further discussion by the Full Court of the Family Court in A v A: Re-location Approach (2000) FLC 93-035 but the usefulness of that discussion has been undermined by the subsequent High Court decision of U v U (2002) FLC 93-112 and the decision of the Full Court of the Family Court in Bolito & Cohen (2005) FLC 93-224. The strictures associated with the approach of the Full Court in A v A (supra) have been rendered to some extent otiose by the significant changes to the Act which came into effect on 1 July 2006. For the reasons I discussed in BJZ & KEM [2007] FMCAfam 86 at [12] - [29], I am not certain that the full significance of the interaction between s.92 of the Constitution and the existing provisions of Part VII of the Act has been the subject of a great deal of attention of litigants or their advisers. Once again, no issue as to whether the orders that I am being asked to make by the father may be liable to be found inconsistent with the operation of s.92 of the Constitution arose in this case. It was not an issue that was agitated by the mother.
The principles to be extracted from the authorities referred to above are usefully summarised by Altobelli FM in H & H [2007] FMCAfam 27 at [50] as follows:
Before considering Goode & Goode, however, the law as it existed before 1 July 2006 should be summarized. The three most significant decisions in recent times have been the High Courts decision in AMS v AIF and AIF v AMS [1999] HCA 26; the Full Court’s decision in A v A: Relocation Approach (2000) FLC 93-035; and the High Court’s decision in U and U (2002) FLC 93-112. There is an excellent and succinct discussion about the law emerging from these cases in the Family Law Council’s Discussion Paper on Relocation in paragraphs 3.14 to 3.35. For present purposes the summary set out at 3.35 will suffice:
In summary, the “general consistency of approach” that can be drawn from the discussion above about the legislative provisions and case law regarding the best interests of the child is as follows.
·Relocation cases are not a special category of cases. The Family Law Act does not specifically mention ‘relocation’ and the cases are best described as “parenting cases where the proposal of one of the parties involves relocation” (A v A: Relocation approach (2000) FLC 93-035 at 87,541, quoting Paskandy v Paskandy (1999) FLC 92-878 at 86,453).
·The best interests of the child is the “paramount consideration, but not the sole consideration”. For example, the interests of the parents can be considered if they are relevant to the best interests of the child.
·The court must consider the competing proposals for the future care of the child, but is not limited to the proposals presented by the parties. All the proposals need to be evaluated in terms of the advantages and disadvantages for the best interests of the child and the court should explain why a particular proposal is preferred.
·The issue of relocation cannot be separated from the issue of residence and the best interests of the child. The relevant factors in subsection 68F(2) must be considered and the weight given to each should be explained by the court. The object and principles in section 60B provide guidance for this exercise.
·A court cannot require the person who wishes to relocate to demonstrate “compelling reasons” for relocation as this would incorrectly focus on the parent’s interests instead of the best interests of the child.
·It should not be assumed that the contact parent cannot relocate as well, as the interests of the child (not the parent/s) must be paramount (Family Law Council Discussion Paper, Relocation, Canberra, February 2006).
So in applying myself to my Part VII task I bear in mind the extent to which the need to facilitate a relationship between the child and her father such that the father has a meaningful involvement in her life and the child’s right to know and to spend time on a regular basis with her father is at the core of the objects and principles of the legislative scheme.
Bearing in mind that [A]’s best interests will be the paramount consideration in any parenting order I make, I turn to an evaluation of her best interests. At the outset, of course, I remind myself of the primary considerations referred to at [57] above. If [A] travels with her mother to [X], having not spent any time with her father since July 2005 (or having only spent the time that is contemplated by the mother in her fall-back position of time-spent at the Contact Service prior to departure) realistically there will be little opportunity for the development of a meaningful relationship. Meaningful in this context I take to have the meaning described by Brown FM in S & B [2006] FMCAfam 447. At [187] His Honour says:
The legislature has also elevated the importance of a child having "a meaningful relationship" with both his or her parents. In this context, the use of the word "meaningful" by the legislature is interesting. The ordinary definition of "meaning" and "meaningful", when attached to an idea or some object, denotes the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is "meaningful" to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The granting of the mother’s application will mean that one of the two matters to which primary consideration must be given will not be salient in the life of this child. That is a very significant matter.
In terms of the other primary consideration there is no basis for suggesting that the father would perpetrate abuse upon the child or anything of that nature. Having heard his evidence, and having regard to the evidence of Dr B and the report of the psychologist Mr G I find that the father continues to use cannabis and is likely to do so into the future. The risks associated with his continuing cannabis use to the welfare of the child are obvious. He might use whilst the child is in his care and be inattentive or negligent in respect of her care; its long term effects may operate to render him less likely to make significant contributions to the welfare of the child. I recognise these possibilities and I will deal with his drug use further hereunder but I do not think it is of such magnitude as to bring to bear the second of the primary considerations in that I do not consider he poses a direct threat to the child in terms of abuse or neglect or family violence.
The child’s views are not a factor in this case given her age. No family assessment was available in the matter. I have the mother’s account of the child’s reluctance to spend time with the father but it was not developed in the evidence and her account of the child’s views has to be approached with obvious caution.
There is nothing to indicate the child does not have a secure attachment and good relationship with the mother. Again, I have nothing independently supportive of this proposition but her evidence indicated that she was a conscientious and attentive mother. The father did not suggest otherwise. His criticisms of her parenting were limited to her attitude to his involvement with the child.
It is self evident, however, that the child has no present relationship with him. She was three and a half years of age when she last interacted with him. Her interaction with him since the parties separated has been detailed above and was erratic and, when it occurred, of brief duration. I am not presently having regard to where responsibility for that lies (that is discussed hereunder) but I am simply noting the factual realities of the limited relationship between father and child to date. The relationship of the child with extended family was not a matter that either party suggested had particular significance in this case. The mother’s father and grandfather will be able to see the child regularly if she relocates. But the nature or quality of those relationships were not explored in the evidence. If the father is unable to have a meaningful relationship with the child on account of the mother’s move to [X] then self-evidently his extended family will be unable to have any such relationship with the child.
The father maintains that the mother has since separation of the parties demonstrated an oppositional attitude to his having a relationship with the child but the evidence did not persuade me that such was the case. Given that the parties had separated on account of the father’s drug-taking her caution with respect to him spending time with [A], reflected in the modesty of the orders of October 2004 (which were in any event further watered down by the private arrangements of the parties) and February 2005, is understandable. I did not accept the father’s criticisms of the mother in respect of the period leading up to the orders made ex parte at the trial or of her conduct on that day. The March 2005 agreement was evidenced in the documents before Federal Magistrate Reithmuller. His attempts to explain lack of receipt of communications from the Court (in respect of the report ordered), his own solicitor and the mother were unconvincing and I infer that he had other priorities at this time, probably related to his continuing drug use. Similarly, I do not accept that the mother behaved unreasonably in respect of the two fortuitous meetings in December 2005. They are not an index of her oppositional attitude to his spending time with the child. Her desire to move to [X] was only manifested once he brought his most recent application in February 2007 and it is a proposal that effectively disqualifies him from regenerating his relationship with the child. So we must approach the mother’s attitude to him with some caution. It is in this context that the Court scrutinises the reasons she promotes for her move to [X]; not because the Court is suggesting she carries an onus of establishing reasons for the move but because the bona fides are an important factor in the evaluation of the child’s best interests, especially under s.60CC(3)(c). The mother’s father lives in Western Australia. Her sister will be redeployed overseas at some stage in the near future. Her grandfather is unwell. These seem to me to be real and not fabricated imperatives. Furthermore, I did not think that the mother sought to tailor her evidence to make the move appear to be one which was without negatives as well as positives. She properly conceded in cross-examination a range of supports she has in Adelaide that would not be available to her in [X] - for example a close friend who has recently had a child, a number of other friendships and extended friendships [A] had through her school, as well as the support of her general practitioner who had been of considerable assistance to her in dealing with her difficulties and especially her obsessive compulsive disorder. She also acknowledged that her father could be transferred from [X] following the cessation of his two year posting.
At this stage, I am only evaluating the practical pluses and minuses of the proposal to see whether it tells me anything about the mother’s attitude to the father’s role in the child’s life. I am satisfied that the proposal is promoted by the mother on its own merits and not out of a desire to obstruct the father in pursuing a relationship with the child.
Section 60CC(3)(d) is a matter that brings to account the likely effect of the removal of the child from her school and her friendships associated with that school. I only have the mother’s evidence in that regard. She thought that such absences would be more than compensated for by the advantages of being near her father and grandfather (the child’s grandfather and great-grandfather). I have no reason not to accept her evaluation.
The granting of orders in the terms sought by the father would constitute a change in the child’s circumstances because she does not presently have a relationship with him but I would not make such an order in any event unless I considered it to be in the best interests of the child.
I have already noted the considerable practical obstacles to the father spending time with the child if he is in Adelaide and she is in [X]. The father does not work and has not worked for some time. His eligibility for a disability pension was not readily apparent to me having regard to the evidence of Dr B and Mr G. Whilst he worked for some time following the separation of the parties as a kitchen hand and in some management position in publishing or advertising, he does not appear to have worked for several years. I did not gain the impression that he proposed to work in the near future. I was told nothing about any financial considerations arising from his relationship. A good index of the limitations his financial position imposes upon the flexibility he has with spending time with the child, is his insistence that the introductory periods at the contact centre take place at [M], near where he lives, rather than at [N] Centre as proposed by the mother. He is unlikely in these circumstances to be able to fund travel to [X] by him or travel from [X] by the child to Adelaide at any time in the near future.
I am not at all certain that he would even be able in the short term to set up the “web-cam” facilities that were promoted by the mother as a meaningful way of interacting over the distances involved.
I approach the matter, as indicated above, in the expectation that a granting of the mother’s application will in all likelihood entail the absence of an opportunity for a relationship between the father and the child.
However, there is not an inevitability about that outcome. I do not think that any pessimism that the Court has in relation to the challenges that will be presented to the father and his relationship with his child in the event of a re-location should extinguish the possibility of a future meaningful relationship and, as I will be set out more fully hereunder, I have attempted to frame orders which attempt to ensure the possibility at least of that relationship occurring, subject only to necessary safeguards relating to the father’s history of involvement with drugs.
I had concerns about the capacity of the father to provide for the child’s needs in two important aspects. Firstly, he has shown little enthusiasm for meeting his child support commitments in respect of the child even during periods when he has been working. As at the date of the trial the father was in arrears in respect of child support payments (and they have always been set at a very modest rate) in the amount of approximately $1,000 (see exhibit 1). Whilst Dr B considered the father had given an account to him of a history of stable employment that was not something that was fleshed out in the father’s evidence before me. Secondly, the father’s personality as described by Dr B (“unstable and immature”), his history of drug use, the absence of a firm commitment to building a relationship with his daughter in the past and the failure by him to call any evidence from his long term companion or other family members to attest to any alleged progress in his present capacity to manage life events, in combination leave me with some concern as to whether he has an existing capacity to meet the emotional needs of the child. Of course he has not had an opportunity to demonstrate such a capacity since early 2005 and even to that point he had very little in terms of time and concrete experiences with the child upon which to build such a capacity. Whether or not the mother moved to [X] his ability to build a relationship with the child would face considerable challenges in terms of his commitment, ability to cease using drugs and a lack of experience with her. I am far from convinced of his ability to respond positively to these challenges. He expresses an enthusiasm to Dr B and Mr G and to the Court but gives us little that would enable us to have confidence that his intentions will progress beyond this initial enthusiasm.
I mentioned in the preceding paragraph the failure to call his present companion. She is someone that he has been with, apparently, for some years. This was a surprising omission. With a number of issues relating to his psychological health and capacities as a parent being agitated in the evidence, one would have expected him to call evidence from someone well acquainted with him and able to attest to the progress described by Dr B and in Mr G’s notes. It would have provided an opportunity to test the father’s self-assessment in his evidence in relation to these issues. I am not drawing an inference that the evidence of the companion would not have assisted him. The issues she would have addressed are not capable of the kind of precise definition for the failure to call her to warrant the drawing of such inferences. I am merely noting the significant opportunity lost to the father to promote his case in this way.
There was nothing that arose in the evidence to call into question the mother’s capacity to meet the needs of the child. Dr J in her May 2005 report expressed some concerns as to the need to be sure that the mother was supportive of the relationship between father and child and that opportunity has been given to the Court by the evidence and cross-examination of the mother. Because the father did not participate in the family report process Dr J was unable to take that concern beyond the speculative stage.
In terms of attitude towards the responsibilities of parenthood (and the attitude of the parties to the child is tied up in that) it cannot be seriously contended (and was not contended by the father) that the mother had not accepted and discharged her responsibilities to appropriately parent [A]. I have little doubt that the mother was as enthusiastic a drug taker as the father during their relationship and prior to the advent of the child. Equally, there is little doubt on the evidence before me that she has eschewed drug use since then in a way that the father has not. It may be a function of her having responsibilities which he has not had. Perhaps if he had been given an opportunity to assume more responsibility for the child (which was not possible following the separation of the parties) he would have responded in the same way. We will never know. It is difficult to discern from all of the evidence available to me any distinct acceptance of responsibility for the child by the father, whether financial or otherwise. His attitude to the responsibilities of parenthood are essentially untested but there is not a great deal in the evidence to generate optimism.
Family violence is not a salient feature of this case.
Sub-section (4) of s.60CC amplifies the Court’s responsibilities to consider sub-s.(3)(c) and (i). I think the Court must be careful to distinguish that aspect of the father’s failure to participate in decisions about the child and failure to spend time with the child and failure to communicate with the child which is the result of his voluntary decision making from any failure to fulfil those responsibilities which has simply been a function of his absence from the child’s life. Nevertheless, in the year 2005 in particular and especially in the period leading up to and following the appointed trial it is difficult to understand the father’s retirement from active pursuit of his relationship with the child as other than his own decision. I reject his contention that the mother’s out-of-court initiatives led him to desist from furthering Court action which he otherwise abandoned. The mother did what was necessary to instruct her solicitor to draw orders in relation to the relevant out-of-court agreement (see [25] hereof). The father did nothing. In 2006, he is preoccupied with his own personal crisis including continuing use of drugs.
It is not possible to prognosticate as to which outcome to the proceedings is more likely to lead to the institution of further proceedings in the future in relation to the child. If the father is unsuccessful in seeking to restrain the mother from changing her principle place of residence (in other words if he is unable to prevent the relocation) it might be thought he will make some further application at a future time. He may not. If the mother is unsuccessful and is obliged to remain in Adelaide she may promote a different application in the future in the sense of relocation to a different part of Australia, but I think that is unlikely. I have already indicated that I regard her proposal as a bona fide one. There is little goodwill or trust between the parties and no communication. That suggests that if some kind of regular spend-time regime is instituted that further litigation in respect of the extension or contraction of the time or relating to the behaviour, real or apprehended, on the part of either party is likely to occur.
Section 60CC(l) is a consideration that arises in determining a child’s best interests in respect of any parenting order including the allocation of parental responsibility. I think it is an especially relevant consideration in this case and I now turn to the question of the application of the presumption of equal shared parental responsibility. Sub-section (2) of s.61DA is not applicable in the circumstances of this case. Sub-section (4) is, however. Section 65DAC provides as follows:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility or a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
If the parties were to be required to consult about major long terms issues it would be the first time that this has happened in [A]’s short life. It is difficult to discern any benefit to the child that would arise from the mother having to open lines of communication for the first time with the father about these matters. Their communication is likely to be fraught with tension and distrust. The father’s contribution to such decision making would be exercised in relation to a child with whom he is not familiar. The personality of the father is unlikely to contribute to the amelioration of these difficulties. I consider that the child’s best interests would be met by the mother exercising sole parental responsibility.
Mr Hicks, in a compelling submission on behalf of the father argued that the move to [X] was not in [A]’s best interest regardless of the issue of the father’s relationship with her. I have described above the disadvantages to the child of authorising the mother’s relocation. Further, he pointed to the mother’s inconsistent attitude towards the question of the father’s relationship with the child. It was only as the trial evidence progressed that the mother, for the first time, made any proposals relating to the child having a relationship with the father.
Mr Hicks drew the Court’s attention to the progress the father had made with Mr G and his positive attitude to self improvement. He said they were matters which indicated that the child would benefit from having an opportunity of a relationship with her father.
I have taken those matters into account in the exercise of balancing all of the competing matters which go to an evaluation of [A]’s best interests and ultimately have determined that there should not be any impediment to the mother relocating with the child in accordance with her proposal. She has exercised responsibility for the child without assistance or involvement of the father for all of the child’s life. I am satisfied that the principle reason for the absence of the father from the child’s life is his own decision making and life choices. I am satisfied that the mother is proposing the move because she considers it will be of benefit to the child. Of course, she would not be making the move if she did not think it had benefits for her personally, especially the opportunity to live in proximity to her father and grandfather. There was, too, implicit in the mother’s proposals an element of a “fresh start” with the child. I accept that there was a half-heartedness about the mother’s proposals for the father to spend time with the child. I suspect her position at the end of the trial in relation to this topic was a function of the advice provided to her. Realistically, her own proposals provide very little basis for the construction of a relationship prior to her departure but I still think it is an opportunity that should be taken. There is about her father’s future employment the possibility of further relocation and the ordinary vicissitudes of life indicate the possibility of a return to Adelaide in any event. Perhaps with the opportunity for some interaction with her father prior to her departure, the child will find that a basis has been laid for meaningful time to be spent with him during school vacations and the like. Perhaps the father’s enthusiasm for such interaction will diminish once the outcome of this trial is published. Perhaps he will not place himself in a position where he is able to make a contribution to the costs associated with such interaction. I do think that he should be responsible for one half of such costs in the light of his incapacity to make any meaningful contribution to the financial support of the child.
Ultimately, I did not think that the evidence provided a basis for inferring that there would be meaningful or tangible benefits to the child from taking the steps necessary to try to resurrect the relationship in the manner proposed by the father. The whole of the evidence leads me to doubt both the benefits to the child from such a relationship and the likelihood of the relationship being revived in a meaningful way. Certainly, I do not think that the likelihood of such benefits arising is of sufficient magnitude to thwart the mother’s ability to relocate in accordance with what I accept are her genuine reasons for doing so. We should only make orders keeping the mother and child in Adelaide if the evidence enabled us to find that it was more likely than not that the child’s relationship with the father would flourish in a way that would provide benefits to her. I am not satisfied that such evidence is available.
But that does not mean that there is no utility in providing the child with an opportunity to meet with the father before her departure to see whether the basis can be laid for meaningful interaction in the future or for the construction of orders which would facilitate time-spent in [X] in the next few years. Such time-spent should be structured to allow for the growth in the familiarity of the child and father such that they can then make the transition to overnight time and then to time being spent between them in Adelaide. Such orders should maximise the opportunity being made available to the father to demonstrate that he his prioritising his relationship with his daughter. The Court will take the mother at her word that she will constructively assist in this process. The Court is somewhat sceptical as to the father’s commitment to the process for the reasons given above but can see nothing about the graduated time-spent regime I have proposed which would be contrary to the child’s best interests.
Orders should be made which take the process up to the point of introduction of holiday time-spent in Adelaide. Significant events in the life of either party (it is important to remember that they are both relatively young parents) may already have occurred by that point so we should not formulate orders which carry us too far into the future. Liberty to apply can be given at that point to concretise travel arrangements and liberty to apply until that point should be reserved to the mother in the event that the father fails to take advantage of the opportunities provided.
The time-spent should occur only if the father is no longer using drugs. The orders for testing I have made give effect to this.
Such a regime is in my view an appropriate response to the Court’s obligations to regard as a primary consideration the child having an opportunity to develop a relationship with her father. It does not unreasonably interfere with the mother’s entitlement to relocate with the child. The orders place significant obligations on the father to attend in Western Australia but it is appropriate and in the child’s interests to challenge the father in that regard.
The parties should be obliged to keep the other informed of their postal and residential addresses. The mother should keep the father advised of details of the child’s schooling and do whatever is required to authorise the school to release information as to her progress to him upon his making the request.
For the foregoing reasons I propose to make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate: Ms N. Julius
Date: 6 June 2008
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