Shirley and Shirley
[2010] FMCAfam 213
•12 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHIRLEY & SHIRLEY | [2010] FMCAfam 213 |
| FAMILY LAW – Parenting – interim hearing – mother’s unilateral relocation – existing orders. |
| Family Law Act1975 ss.60CC, 65DAA,100B |
| Applicant: | MR SHIRLEY |
| Respondent: | MS SHIRLEY |
| File Number: | LEC 229 of 2008 |
| Judgment of: | Demack FM |
| Hearing date: | 11 February 2010 |
| Date of Last Submission: | 11 February 2010 |
| Delivered at: | Lismore |
| Delivered on: | 12 February 2010 |
REPRESENTATION
| Solicitors for the Applicant: | B L Crane & Associates |
| Solicitors for the Respondent: | Somerville Laundry Lomax |
ORDERS UNTIL FURTHER ORDER
That the Orders dated 10 December 2008 by Federal Magistrate Howard be discharged.
That except as otherwise stated, the father and the mother are to have equal shared parental responsibility for the major long term issues of the child [X] born [in] 2007 (“the child”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)they shall inform the other parent about the decision to be made;
(b)they shall consult with each other on terms that they agree; and
(c)they shall make a genuine effort to come to a joint decision.
That not withstanding the provisions of Order 2:
(a)the mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.
That notwithstanding Order 2, in the event that the mother and father are unable to agree in respect of medical or educational matters, the father shall make the determination.
That the mother and father shall:
(a)keep the other parent informed at all times of their residential address and landline contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children; and
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing presence of the children.
That the children are to live with, spend time with and/or communicate with their mother and father as agreed between the parents and if they fail to agree then as follows:
(a)That the child spend time with the mother at all times as agreed between the parents in writing and failing agreement as follows:
(i)commencing 19 February 2010 from 12:00 noon Friday until 12:00 noon Tuesday and each alternate week thereafter;
(ii)for periods of up to seven (7) days during time the mother is on annual leave and is available to care for the child, provided twenty eight (28) days notice in writing is given to the father and that such periods do not occur more than four (4) times each year and do not occur consecutively with the time in Order 11a above;
(iii)on Mother’s Day weekend if the child is not already spending time with the mother from 6:00pm Friday until 6:00pm Sunday; and
(iv)in the event that the mother is in the Lismore area, on the giving of seven (7) days notice to the father in writing, and on the basis that the child attends her usual activities, the child shall spend time with the mother in the Lismore area for periods up to forty eight (48) hour in any fortnight period.
(b)That otherwise the child shall live with the father and:
(i)That the father is permitted to have four (4) block periods each year of one (1) week’s duration with the child, provided he gives the mother twenty eight (28) days notice in writing and provided that such periods do not occur consecutively with the time in Order 11a above.
That the child shall communicate with the parties on the telephone at all reasonable times and the parties shall:
(a)ensure that the child is available to receive the telephone call;
(b)arrange for the child to telephone the other parent on the following night if, for any unforseen circumstances, the child misses the telephone call from that parent;
(c)ensure that the child has privacy during the conversation.
That if the child is not attending school:
(a)the child shall be collected by the mother or her nominee from the father or his nominee at the commencement of her time with the child at [F]; and
(b)the child shall be returned by the mother or her nominee to the father or his nominee at the conclusion of time of her time with the child at [F].
That the mother shall ensure that during times the child is spending time with her:
(a)the mother to ensure no person in her household uses illegal substances (including marijuana) whilst the child is present in her home;
(b)the mother is personally available at all times to supervise the child;
(c)the child is provided with appropriate accommodation in that she has her own bed and sleeps in a room with her siblings only;
(d)that the mother does not consume any alcohol and ensures other adults do not consume alcohol to excess in the child’s presence; and
(e)the mother shall not relocate her residence from Property C, [P], Queensland.
That upon a request made in writing by the father, through his solicitor, the mother, through her solicitor, is to provide a hair follicle sample in the directed manner for testing for the presence of illicit substances. In the first instance the father is to pay the full cost, with the ultimate instance of costs reserved.
THE COURT FURTHER ORDERS
That pursuant to rule 15.09 of the Federal Magistrates Court Rules2001 Ms Virginia Longmore be appointed a court expert in this matter.
That the parties and the child attend upon Ms Longmore on a date and time to be advised for the purposes of the preparation of a family report to be made available to the Court.
That the Federal Magistrates Court of Australia be responsible for payment of the cost of preparation of the family report.
That this matter be adjourned to 9:15am on 11 May 2010 in the Federal Magistrates Court of Australia at Lismore.
IT IS NOTED that publication of this judgment under the pseudonym Shirley & Shirley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LISMORE |
LEC 229 of 2008
| MR SHIRLEY |
Applicant
And
| MS SHIRLEY |
Respondent
REASONS FOR JUDGMENT
Ex Tempore
[X] was born [in] 2007; [it will shortly be] her 3rd birthday. Her parents separated [in] 2008 when she was 14 months old. By 10 September 2008, litigation had not only been commenced and a family report undertaken, but a final hearing had also been undertaken after consent was reached on a raft of parenting orders. The orders made, in part by consent and in part by the court, on 10 December 2008 provided for the parents to have equal shared parental responsibility, but for in the event that they could not agree in respect of medical or educational issues and the father would make the determination of those issues.
In terms of time with each parent, [X] was to live with the mother from 5pm on a Saturday to 10am on a Tuesday in week one, and 5pm on a Saturday to 10am on a Wednesday in week two, on a two-week rotation, and otherwise to live with her father; that is, it was a three night, four night, four night, three night regime.
At the time of the family report interviews in mid-October 2008, the mother was working as a [occupation omitted] in Lismore. She and her older two children, [Y] and [Z], who are presently aged 17 and 15, were living outside Lismore; the mother was not, according paragraph 17 of the family report, in any relationship. To the family report writer the mother contemplated a need in the future to move, for work reasons, to a larger city like Brisbane, but according to paragraph 16 of the family report, she had no plans to move in the near future.
At paragraph 24 the family report writer advises:
… Mrs Shirley wanted it known that she held powerful negative feelings towards Mr Shirley which she was unable to put into words.
At this same time the father was living in a house owned by his parents on his own and was not in a relationship. He managed his own [transport] business. He too lived outside Lismore in an area not far from the mother's home.
The family report writer formed the view that the parents' discontent of each other and criticisms of each other were related to the relative recency of their final separation. She considered that the conflict and animosity between them was high and that they would both benefit from some post separation parenting counselling or courses.
Earlier interim orders had provided for [X] to live with the mother and spend particular time with her father. This required many handovers between the parties each fortnight, which presented too many opportunities for conflict. The family report writer formed the view that each parent had much to offer the child and each had a good relationship with her, but that they needed to work through their communication and conflict issues. The family report writer cautioned that if the parties were not able to work on these issues successfully, then at paragraph 63 she states:
… there is a high chance that they will continue as they are now and that a significant shared care arrangement will become increasingly problematic.
She goes on to say, at paragraphs 64 and 65, this:
64. If the Court decides against equal shared care and indeed neither parent is requesting this, then the report writer supports Mr Shirley's proposal that [X] spend week days with him and weekends with her mother, with the proviso that she spends significant time with her mother the week she will be spending the weekend with her father. It is important for a child of [X]'s age to spend significant time with both parents weekly.
65. This recommendation is based on Mr Shirley's increased availability to care for [X] during the week, the parents’ inability to make joint decisions in relation to [X]'s health, educational or other needs and that Mr Shirley appears more motivated to resolve the communication issues between he and Mrs Shirley. If the Court agrees with this arrangement then the family report writer recommends that Mr Shirley be responsible for the final decision regarding health and educational matters when the parents are unable to agree.
The orders, then, which were made by consent, included everything bar the actual time orders. The mother, therefore, consented to the equal shared parental responsibity order, which included the tie breaker order. The orders about time were made by the Court.
One thing I know now, that the family report writer didn't know, is that the mother had been in a relationship at the time of the family report interviews with a man she continues to be in a relationship with now. Mr H is presently aged 44. He has been in a relationship with the mother since July 2008, so he swears in his affidavit of 9 February 2010.
In his affidavit filed by leave yesterday, he tells the court that in January 2003 he was sentenced to six years imprisonment, with a non‑parole period of four years, for producing amphetamines, receiving, and tax fraud. He was released on parole in January 2007 and concluded his parole in January 2009.
He says that he hasn't used illicit substances since his arrest in 2002. He doesn't declare any further information about his past drug use. He has worked [in the automobile industry] for the same company for the last three years, which must mean it was shortly after his release. He also had unspecified traffic convictions.
The fact of Mr H has particular relevance. As order 15(a) of the orders of 10 December 2008 states:
15. That the parents shall (when the child is in their care):
(a) not reside with any other person without the written consent of the other party; and …
In moving to Brisbane, the mother and Mr H are said to have now commenced cohabitation; indeed, they have jointly signed a lease for premises. The father believed them to have been living together, at least periodically, in [B]. This appears to have been confirmed during a telephone conversation between the mother and the father's solicitor on 9 December 2009.
[X] is three [shortly], she has started pre-school one day per week this year. I am told she will start kindy in 2012 when she turns five.
The arrangements, which were Court mandated by the December 2008 orders, would not remain workable when [X] reaches school age if the parents were not living in sufficient proximity to the school at that time.
Another fact known now, and unknown by the family report writer, was that the mother would, in fact, move away from the Lismore district prior to final hearing. The mother proffers in her affidavit that she did that for work reasons, and implies that any view contrary to that as may be held by the father is not only wrong, but malicious. The mother annexes to an affidavit a reference on [company omitted] letterhead by Mr C, a "To whom it may concern" letter of 12 May 2009. It reads that she left the employment of that company in October 2008 and:
She left our employment due to a very acrimonious separation with her husband and reluctantly terminated her employment with us.
She left there in October 2008; that is, within a very few short weeks of the family report interviews. She did not leave there to take up better employment opportunities on, I stress, her own evidence. The mother has now moved further away from the father. She is now in Brisbane, in [P]. She was made redundant in November 2009 and says that she was unable to pay her rent in [B]. There is no evidence of what steps she took at the time to secure any other employment. She says she moved to Brisbane for work; she remains, at this date, unemployed.
This background is important. Both parents come to the court seeking to change the December 2008 orders. Neither seeks to argue that the orders should remain as they are. The mother says that a shared care arrangement on a seven-day basis should now occur. She says that through her solicitor who appeared on her behalf at the hearing yesterday. Up until that time the mother had been representing herself and had prepared her own material. The response prepared by the mother and filed on 2 February 2010 said otherwise. It said that the child should live with the father from 10am Friday until 3pm Monday each alternate week. The orders that the mother sough in her response also provided that the mother make the determination in the event that the parents are unable to agree in respect of medical or educational matters.
The father's application is for [X] to live with him and to spend fortnightly weekends with the mother. The minute of order handed to the court yesterday by the solicitor for the father included that the times, on a fortnightly basis, would be from 4 o'clock on Friday until 4 o'clock on Sunday each alternate weekend. The submissions made on behalf of the father included that that weekend time could be extended and the submission seemed to be extended a little.
During the course of submissions I asked the solicitor appearing on behalf of the mother for the mother's position with respect to moving back to [B] on an interim basis, and the orders continuing. The instructions from the mother are that she cannot do that for financial reasons and present lease obligations, as well as the schooling arrangements for her two older children. The mother instructs that she will remain living in Brisbane.
The evidence which I have before me comes respectively from each of the parties. The father also reads and relies upon an affidavit by a local hairdresser, who speaks about steps the father has taken with respect to attending to nits in the child's hair. He also reads, and relies upon, an affidavit by Ms P, who is the mother of the mother and who is estranged from her daughter.
The evidence before from the mother includes affidavits by herself. There are two affidavits from Mr H; the second one produced after the mother instructed a solicitor. That short affidavit places squarely before the court Mr H’s past criminal history, that material not having been earlier disclosed when the mother was representing herself. Also read before the court on behalf of the mother are two affidavits from persons known to the mother, who attest to her good and kind parenting capacity, that of Mr D and Ms L.
On the Court file, and not read on behalf of the mother by the solicitor appearing on behalf of the mother, are an affidavit each by [Z] and [Y]. [Y] was born in 1992. He is, therefore, presently recently turned 17. His little sister, [Z], was born in 1994. She is 15 going on 16. The solicitor for the mother did not read that material before me. It is clear that the filing of that material was in breach of s.100B of the Family Law Act1975 (“the Act”) which prohibits such filing of material without leave of the Court. The mother, in preparing material, caused her two children to prepare material, which she filed. The only inference that can be drawn from that course of events is that the mother intended the court to take notice of evidence of her two children, who are minors in the eyes of the law. It was quite right for Mr Hunter to not rely upon the material. That does not take away, though, from the fact that the mother caused her children to become involved in litigation and to provide evidence to the court with respect to matters which are not, it seems to me, matters about which they should be asked to express a view on oath. They are children. Even if they are nearing the age of adulthood, they are, in the eyes of the law, still children, and should be protected from litigation and the stresses and strains of it, and not brought into the bear pit.
The law
This is an interim hearing and an interim hearing only. Where there are disputes with respect to facts, I cannot determine them on an interim basis. I must have, as my paramount consideration, the best interests of [X]. I am mindful of the objects and principles set out in s.60B of the Act.
I am mindful of the legislative framework and the steps that I must go through in determining what is in [X]'s best interests. I must consider the issue of parental responsibility and then I must go on to consider what time [X] spends with each parent.
The parents seem to have, for the most part, agreed that they should have equal shared parental responsibility, but for the tie breaker on issues of health and education. It seems to me that the decision as to whether there should be a tie breaker, and if so, who should hold that responsibility, will need to be attended to by a determination of what is in [X]'s best interests.
It seems to me, also, that the fact of a majority agreement that equal shared parental responsibility should be maintained means that I should be turning my mind to equal time and/or substantial and significant time for [X] with her parents. I'm mindful that, in attending to equal time and substantial and significant time issues, I must address the practicality factors which are set out in s.65DAA; I will therefore now attend to the issues of the best interests factors under s.60CC and the reasonable practicality factors in s.65DAA.
There are two primary considerations: the benefit to [X] in having a meaningful relationship with both of her parents, and the need to protect [X] from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence. Both parents speak of having a good and meaningful relationship with [X]. Neither parent makes any particular allegations of [X]'s relationship with the other parent being less meaningful or less significant. The complaints that they make about each other are many and varied but do not include that [X] does not have a meaningful relationship with both of her parents.
For the last year she has been living in a shared care arrangement being three days, four days, four days, three days up until December 2009. The mother seeks that shared care continue on a seven night, seven night basis. The father seeks that the time now be predominantly living with him and the child spending time with the mother.
In terms of the times, then, which are proposed, there will be a difference in terms of real time in each parent's care. Whether that will make a significant change to the child's capacity to continue to have a meaningful relationship with both parents is not something about which I have any particular evidence before me.
[X] turns three [shortly]. It seems to be accepted by the parties that the four night, three night, three night, four night arrangement was one which was age appropriate to [X] in December 2008 when she was not yet two, and she needed to have frequent and real time with both parents, not being too long removed from either of them. It seems to be accepted that the reason for that is because, as a child of that age, she needed to be able to develop and maintain secure attachments to both parents, and that her capacity to understand the movement between both parents was limited by dint of her age, and that it would be best for her to continue to see both parents on a very regular basis.
I have no evidence before me presently with respect to whether either arrangement which is being presently proffered by either party is more age appropriate than the other. A family report will assist me with that, and a family report will be ordered by me regardless of the outcome of this decision.
In terms of the need to protect the child from physical or psychological harm with respect to matters of abuse, neglect or family violence, the mother makes some allegations in her material with respect to matters that she says constitute family violence perpetrated by the father on her during the relationship. That evidence, it seems to me, is of no moment with respect to the decision that I make today with respect to [X]. Such matters, if in fact they were found to be true, are historical, and there are no issues with respect to [X] being exposed to violence in the father's household.
There are issues of poor communication and inappropriate speaking with each other at handovers. I can't make any finding with respect to who is responsible for that, whether both parents are responsible, whether there is some particular harm being afforded to the child above and beyond the distress that she must experience if she observes her parents being upset by each other.
The father has expressed some concern with respect to the mother's alcohol use, and he raises the issue of some historic drug use by the mother. He also raises the issue of knowing little about Mr H and that the mother, as best as he could tell, seems to wish to reveal very little about Mr H. He is concerned, he says through his solicitor, with respect to Mr H's past criminal conviction, which he views as serious.
He, also through his solicitor, expresses his concern that part of the mother's lack of candour about Mr H includes that Mr H has three children to a previous relationship, with whom he spends no time, and who Mr H doesn't reveal through his own material.
Further, the father is concerned with respect to the fact that the orders of December 2008 clearly placed a requirement on both parties that in the event that they were going to be living with another party - with another person, that they receive the written consent of the other party. Such an order, it seems to me, place an obligation on the parties above and beyond what would be ordinarily required. The Family Law Act1975 provides a definition for major long term issues. It says this:
Major long term issues in relation to a child means issues about the care, welfare and development of the child of a long term nature, and includes, but is not limited to, issues of that nature about:
(a) the child's education, both current and future, and
(b) the child's religious and cultural upbringing, and
(c) the child's health, and
(d) the child's name, and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long term issue in relation to the child; however, the decision will involve a major long term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Order 15(a) of the orders of 10 December 2008, in saying that:
The parents shall, when the child is in their care, not reside with any other adult person without the written consent of the other party -
are placing fairly and squarely as a significant issue between them that they not form a relationship which involves living together without the written consent of another party. In doing that, the parties have, by consent, gone beyond what the Family Law Act 1975 would ordinarily provide for parents.
The father says through his solicitor that he is concerned that the mother's lack of disclosure with respect to Mr H, and the fact of the relationship is such that he considers that there may be a need to protect the child. The need to protect the child arises in the father's submission from the lack of information that the mother is prepared to place before him with respect to Mr H.
In terms of additional considerations, [X] is going to be three [shortly], and therefore her views are not before the court in any meaningful way, and I wouldn't expect them to be. She has, as best as I can tell, a good and secure attachment to both her mother and her father.
In her mother's household she has older siblings, [Y] and [Z]. In her mother's household, Mr H lives, and presently there is another young adult relative of Mr H living with them on a weekly basis.
In the father's household there is him; his parents live close by, and I understand that the maternal grandmother lives close by and the father facilitates some time between the child and the maternal grandmother.
The parents both make a lengthy catalogue of complaints about the other parent's willingness and ability to facilitate and encourage a close and continuing relationship between [X] and themself.
The mother's complaints about the father include the following, and I will speak of some of them in a little more detail. She complains about the child having untreated head lice in the father's care. She complains that the father unilaterally withheld the child in December 2009; that he won't communicate about the child; that he won't take her calls; he disagrees with her about immunisation issues and takes that matter into his own hands without reference to her; he is a liar; the child is a fussy eater and her diet is not being catered for properly by the father; the father continues to smoke heavily; the father has, in the past, viewed pornography; the father has been financially irresponsible; the father provides no flexibility with respect to times of contact; the father makes up unfounded allegations abut the mother, like her being sacked from work; the father won't make the obvious change to weekly handovers to lessen the travel time for the child; the father doesn't make arrangements in a timely way, for example, about Father's Day, which he then later complains about; the father changes the child's clothes at handover, in the mother's presence; the father has previously been violent towards her; the father has a habit of misrepresentation of the facts.
The father, likewise, has a catalogue of complaints about the care of the child in the mother's household. He says the mother is more interested in herself and her adult relationships than the child; she gave the child an unusual and strange haircut which distressed the child. The mother is secretive with respect to matters about which the father says he should properly know, for example, her address, her plans to move, what people are living in the house. He says that the mother's alcohol consumption level has an impact on her capacity to parent. He complains that [X] has been left in [Y]'s inappropriate care and has also been taken on an aeroplane by the mother, indicating the mother doesn't have the capacity to make appropriate arrangements for [X]'s care when she is otherwise unavailable. The mother didn't make the child available on Father's Day, as is provided for in the order. The child has been returned to him at the end of time with the mother in a dirty condition.
Some of those matters may be more pertinent to the issue of capacity and to the attitude to the child and to the responsibilities of parenthood, but I raise them under the issue of their willingness and ability to facilitate and encourage a close and continuing relationship. The level of complaints that these parents find to make about each other is high.
The events of late 2009 need to be placed on the record. In November 2009 the mother was made redundant from her work at [B].
On 5 December 2009 the mother wrote a note to the father which, as best as I can tell, he received at handover. A photograph of that note was taken by the mother, and that's exhibit 4. It says this:
[Mr Shirley],
[X]'s only two (2) and is doing a lot of unnecessary [sic] travelling. It would be better for her to only travel once a week not twice a week so will you agree to Saturday change overs. We still have her seven (7) nights each fortnight but she is doing half the travelling. You can let me know what time on Saturday each week.
Annexed to the mother's affidavit of 2 February 2010, a document prepared by herself is annexure B, headed "The [Mr Shirley] files!" It is some form of diary kept by the mother in a typed form. She says there, under the date Saturday, 5 December 2009:
Saturday 5 Dec. 2009. Gave [Mr Shirley] a note when I picked up [X] in relation to doing travelling less.
I take that to be exhibit 4. The following text messages ensued:
[Mr Shirley]:
I do not agree with ur [sic] proposal. It is not in her best interest. I am not going to interrupt her swimming lessons etc and our daughter is 3 in two months not 2 as you stated in your letter I will be picking her up Tuesday morning 10am as the court order states.
Me:
How is it not in her best interest? Less travel and more stable routine.
[Mr Shirley]:
So u [sic] are u [sic] going to only work every second week
Me:
It's not about me [Mr Shirley]. It's about raising a little girl with some stability in a bad situation.
[Mr Shirley]:
In the last 5 months u [sic] cancelled ur [sic] time with [X] 3 times and returned her 1 day early on 4 occasions so how is that stable Il [sic] pick her up on Tuesday 10am
Me:
I'm trying to make it stable. Stop making it about me and think about [X].
[Mr Shirley]:
I am providing her stability. My daughter is my number one priority.
On 9 December 2009 the solicitor for the father had a telephone conversation with the mother. That telephone conversation is set out in a letter written by the solicitor of the father to the mother of 11 December 2009 and sent by email. It's annexed to the father's affidavit of 17 December 2009. The solicitor for the father at that stage advised the mother that her client had learned through persons other than the mother that the mother was relocating to Brisbane.
The solicitor put that to the mother. The mother responded to the solicitor that she had no intention of relocating. The solicitor put it again to the mother that she was relocating and the mother said that she was not relocating from Property A and commented "Where would
Mr Shirley get such an idea?"On 11 December 2009, the removalists attended at the mother's address at [B] and she moved to Brisbane.
On 12 December 2009, when the child was next due to move from her father's care into the mother's care, the father failed to make the child available for time. On 14 December 2009 the father swore his material with respect to the commencing proceedings for a change of orders. The first return date for those orders was the beginning of February 2010.
The child was not made available by the father until the matter was first mentioned before me. I ordered that there be time during the short period of adjournment that I was giving the parties and the child spend time with the mother on the weekend in between the last mention and the interim hearing yesterday.
The mother says that this is an example of the father's attitude towards her and his failure to foster a relationship between the child and her. The father submits that the child was withheld on the basis that the mother was continuing to fail to disclose in any meaningful and complete manner the arrangements that she had made for the child and the fact of her relationship with Mr H.
There are two serious parts of the order of 10 December 2008 that the mother has failed to comply with. One is the order which I take to be most serious, with respect to an order by consent that neither party reside with any other adult person without the written consent of the other party, and secondly, that contrary to a sharing of parental responsibility, the mother, in a failure on her part, has changed the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The mother, in her note to the father of 5 December 2009, knew at that stage that she was going to be moving from [B]; that is not what she discloses to the father. She discloses to the father that the travel for the child is too much and needs to be changed to make it seven nights about. For the mother to now criticise the father for failing to provide the child when she was in breach of the order in those two serious respects demonstrates a complete failure on the mother's part to have any insight into her own responsibilities for the situation that she finds herself in.
There is no such thing as an interim relocation, as far as I am aware. If the mother seeks to move further away from where the father lives, then that is a matter which she may attend to at a final hearing of the matter.
Neither parent, though, comes to this court seeking that the orders which were made on 10 December 2008 remain in place. The father says now, for a number of reasons, that shared care cannot work, not least of which is the distance which is involved between the parties now, but for a whole range of other reasons.
The mother says that the four night, three night, three night, four night arrangement can no longer exist because of the distance between the parties, but says that equal time can still exist on a seven night, seven night regime.
In terms of the effect of changes on [X], on the father's proposal [X] would live with him and spend time with the mother every second weekend. That change would mean that she would no longer be living at least half of her time with her two older siblings, [Y] and [Z]. They have been children that she has lived with her entire life whilst in her mother's care.
The father would also, of course, necessarily mean that the child was with the mother significantly less time than she presently is.
The mother's proposal would change the method by which [X] spends time with her parents but would, in effect, mean that she remained in her parents' care each half time.
In terms of what difficulty and expense there might be with the arrangements, regardless of whether the parents do equal driving or whether one does more driving than the other, the reality is that [X] is the one who has to do all of the travel. I'm not much interested in whether the mother or the father have to do more travel themselves, but it seems to me that the mother has created a situation wherefore [X] to spend regular time with both parents, has a large impost on her in terms of travelling time.
The mother is aware of that, which is why she proffers a week about arrangement. What she doesn't proffer is moving close back to the Lismore area. The mother has now twice inched herself further away from where the father lives. She has inched herself further away from [X] being able to spend time with both of her parents in a way which is comfortable and frequent and in her best interests.
Both times the mother has inched herself away, she has placed at the basis for that employment, and there is no evidence to suggest that that is the truth. The evidence with respect to her moving from [her employer] is that she told [her employer] she was leaving because of an acrimonious separation. She did not need to leave [her occupation] for employment purposes, and she has now moved to Brisbane, where she is unemployed.
In terms of the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs, I am satisfied that both parents are able, on an interim basis, to attend to the child's daily needs.
In terms of any relevant factor with respect to the child, I consider her age to be a relevant factor. I have nothing before me which helps me to understand, in particular, what are the particular needs in terms of attachment for a child who is aged three.
In terms of the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents, I have touched on this already. It seems to me that the evidence that the mother produces, with respect to why the orders should be made that she seeks, does not amount to a child focused argument. The mother presents a fait accompli; she suggests a way that the time between the parents could be equally split, but does not do that, it seems to me, in a way which arises from any focus on the child.
I take those factors into account also under ss.60CC(4) and (4)(A).
I'm also required, pursuant to s.65DAA to consider how far apart the parents live from each other. The mother is now in [P] in the south east of Brisbane, and the father remains living outside of Lismore, which is the area where the parties lived at the point of separation, and up until a time in between the family report being prepared and the trial happening a period of less than two months.
In terms of the parents’ current and future capacities to implement an arrangement for the child spending time - spending equal time, or substantial or significant time, the mother, by dint of her submission that the time should be seven days about, implies, it seems to me, that the parents have a present and ongoing capacity to implement arrangements and to communicate and resolve difficulties. There is absolutely nothing before me at all which gives me any comfort that the parents have that capacity at all.
The mother was underhanded in suggested to the father that the time should become week about. She was not up front and saying, "I've lost my job, I need to move. This is what I'm doing to try and find work." Or, "I've lost my job, I can't afford my rent. I'm in a financial pickle." What she does is pretends that it's something to do with [X]’s need to travel less and without telling the father that she is about to impose an even longer travel regime on the child by a unilateral relocation further away from where the father lives.
She also fails to tell the father that she is about to commence cohabitation on a full-time basis and fails to take the step that is required by the order by consent, in December 2008, that such step not be taken until there is the written consent of the other party. There is nothing before me at all which would cause me to consider that the parents currently have a capacity to implement an arrangement, or the capacity to communicate and resolve difficulties.
In terms of the impact that whatever arrangement will have on [X], there is nothing before me which would help me to understand what it will mean for [X] to spend week about with either parent, or to spend longer periods of time with one parent and less time with the other parent. [X], I am sure, dearly loves both of her parents. I'm sure she dearly loves her brother and sister in her mother's household. For the bulk of her life her parents have been separated and she has been moving between the two of them. Perhaps a family report will help me understand the impact that the arrangement will have on [X].
In 2008 the family report writer, in her recommendations when balancing the competing proposals, found that the scales weighted more favourably on the father's side.
Going through the exercise on an interim basis, where there are disputes as to facts, as there are many here, and they cannot be determined, the scales still weigh in the father's favour.
I make that finding on an interim basis, based on the mother's material. The mother's own material doesn't support the case that she says. She is indignant when she considers the father has maligned her, yet her own material doesn't support what she says. For reasons which are not supported by evidence, the mother seeks that the equal shared parental responsibility as ordered by consent in December 2008, now be changed so that she holds the tie breaker.
There is no evidence as to why that should be changed and I won't change it. It will remain as it was in that order by consent.
I am satisfied that there is sufficient evidence before me to say that the equal time now needs to end. The family report writer's prophecy, that the arrangements would become increasingly problematic, has come to pass. The mother has caused it to come to pass in moving further away.
The child will live with the father and will spend time with the mother. The child presently is enrolled at pre-school on a Thursday. The mother's time with the child will commence at midday on a Friday every second weekend. It will conclude on Tuesday at midday.
In the event that the mother is in the Lismore area, on the giving of seven days notice to the father, and on the basis that the child attends her usual activities, the child shall spend time with the mother in the Lismore area for periods up to forty eight hours in any fortnight period. If the mother seeks to make herself available in the Lismore area, she may spend time with the child there pursuant to that order.
The mother's time, on a regular basis, which is the fortnightly time, will commence on 19 February. I discharge the orders Howard FM of 10 December 2008. The orders which I now make will, in many respects, be the same as those orders, but they will be made afresh by me today and not by consent. They are interim orders.
That is order 8(b) from the father's minute of order tendered yesterday. That document had not received an exhibit number from me, it will receive an exhibit number now.
The father seeks through the minute of orders sought orders under the heading of (9). The father seeks to have a hair follicle test done with respect to the mother. The father has no recent evidence to suggest that the mother may be using illicit substances. The mother is prepared to comply with a test on the basis that in the first instance, the father meet the entire cost of the test. It seems to me, given the father has no evidence as to why such a test is currently required but that it will somehow give him some peace of mind, I will allow him to have such test taken, at his expense, but it will not be a pre-condition for the mother to spend time with the child.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Demack FM
Associate: E Crutchfield
Date: 9 March 2010
0
0
1