Spain and Spain
[2007] FamCA 883
•23 August 2007
FAMILY COURT OF AUSTRALIA
| SPAIN & SPAIN | [2007] FamCA 883 |
| FAMILY LAW - CHILDREN - Child related proceedings - Relocation |
| Family Law Act 1975 (Cth) |
A v A Relocation Approach (2000) FLC ¶93-035
H v L (2000) FLC ¶93-036
AMS v AIF; AIF v AMS (1999) FLC ¶92-852
D and SV (2003) FLC ¶93-137
U and U (2002) FLC ¶93-112
M & K [2007] FMCA Fam 26
| APPLICANT: | Ms Spain |
| 1ST RESPONDENT: | Mr Spain |
| 2ND RESPONDENT: | Mrs Spain |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYF | 2455 | of | 2004 |
| DATE DELIVERED: | 23 August 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 21-23 November 2006 and 6-8 August 2007 |
REPRESENTATION
| APPLICANT: | In person |
| 1ST RESPONDENT: | In person |
| 2ND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs O'Connor |
Orders
Definition Section:
In these orders the following words have the following meaning:
(a) “the mother” is Ms Spain.
(b) “the father” is Mr Spain.
(c)“the father’s new family” is his wife Mrs Spain and their daughter R.
(d) “[the child]” is M Spain born … February 2003.
All prior orders relating to the parenting of the child are discharged.
The parents have equal shared parental responsibility for their son M Spain born … February 2003.
The child reside with each of his parents as follows:
The father:
(a)Until the child commences school, each alternate weekend from Thursday afternoon until Monday morning (or such other four night per fortnight block period the parties may agree upon as more workable for the child and themselves). The changeovers to take place inside the G Police Station unless the parties otherwise agree in writing.
(b)In the event of the father living in an area which is not more than 45 minutes drive from the mother’s residence prior to the time the child commences school then the child is to live with his father from Thursday afternoon until Monday morning each alternate week (or such other four night per fortnight block period the parties may agree upon) and from Wednesday afternoon until the following morning in the other week. The changeover to take place at a site nominated by the mother.
(c)During the Christmas period at the end of 2007 for a block period of five nights in addition to the alternate weekend time, at a time to be agreed to between the parties.
(d)Subject to other orders made herein, as and from the time the child commences school, each alternate weekend from after school on Friday until Sunday evening. The changeovers to take place at a site nominated by the mother and being about half way between the parties’ respective residences.
(e)In the event of the father living in an area which is not more than 45 minutes drive from the child’s school, then the child is to live with his father during school term from after school on Thursday until school time on Monday each alternate weekend. He is also in such circumstances to live with his father each other Wednesday from after school until school time the next day.
(f)Once the child commences school and during his first year of schooling he is to spend a five night block with his father in each of the holidays at the end of the first, second and third school terms and two blocks of five nights in the Christmas school holidays (such blocks separated by at least a week). In the 2008 school year and thereafter the child is to spend half his school holidays with his father.
(g)In the 2008 school year the child is to live with his father from the conclusion of school on Wednesday until commencement of school the following Monday each alternate weekend.
(h)In the 2009 school year and thereafter the child is to live with his father each alternate week. The parties are to determine by agreement when the changeover is to occur.
(i)Such other times as the parties may agree upon.
The Mother:
At all other times.
Pending Further Order the mother is not to locate the child’s residence with her outside of the Lake Macquarie/Newcastle area without the written consent of the father.
The parents are to ensure that the child spends time with each of his parents around Christmas Day and his birthday. These occasions are to be shared equitably between the parents in a configuration of time which they are to agree upon in writing.
The child is to spend time with his sister R on her birthday and with any other of his future siblings their birthdays.
Each party is restrained from changing their residential address without first giving 28 days prior written notice to the other. This time limit does not apply to the mother’s current requirement to move from her present accommodation.
Wherever changeover of the child from one parents care to the other requires the parties to do so face to face then each parent may have their partner effect that change over for them.
In the event of the parties being in dispute about any aspect of the care of the child in the future they are not to commence any proceeding in a Court in relation to such dispute (otherwise than in the case of an emergency) without first attending upon a Relationship Centre for the purpose of endeavouring to resolve the dispute. The party commencing the proceedings is to be in a position to provide to the Court a letter from the Relationship Centre attesting to the attempted resolution.
The parties are to continue to use a communication book which is to be used to advise the other parent of the activities the child has been involved in during the time with the parent and any news items which might assist the other parent to communicate with the child about his time in the other parent’s house. The communication book is otherwise to be used to convey other relevant information about the child.
The parents are to ensure that they behave civilly and respectfully with each other at all times.
The mother is to select a changeover site for the child in the event that changeover cannot be affected at his school. Within six months from the date of these orders the changeover site is not to be a Police Station.
Neither parent is to enrol the child in any extra curricular activity without the consent of the other. Once the parents have agreed to participation by the child in an extra curricular activity each party is to ensure the child’s attendance at that activity.
Each parent is to ensure that the other is aware of any school event which parents are invited to attend or permitted to attend. Each parent is to be permitted to attend such event (subject to any school embargo).
In the event of this matter requiring any further Court attendance during a period of two years from the date hereof then the matter is to be initiated in the Family Court of Australia and listed before me in the first place.
The time the child is to spend with his father under these orders is to be spent with his sister R and Mrs Spain during periods when the father is away from his home due to work commitments.
Each parent is to encourage the child to speak to the other on the telephone when the parent calls. Each parent is to have reasonable telephone time with the child when he is with the other parent.
Neither party is to use corporal punishment in chastising the child. Further each party is to ensure that no other person uses corporal punishment in the discipline of the child.
Pursuant to Section 65DA(2) and Section 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The exhibits may be returned upon the usual undertakings.
All material produced in response to subpoenas be returned to the party who produced it.
The Independent Children's Lawyer’s application for costs is dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Le Poer Trench delivered this day will for all publication and reporting purposes be referred to as Spain and Spain
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2455 of 2004
| Ms Spain |
Applicant
And
| Mr Spain |
1st Respondent
And
| Mrs Spain |
2nd Respondent
REASONS FOR JUDGMENT
Introduction
M Spain born in February 2003 is the son of Ms Spain (the mother) and Mr Spain (the father). He has lived with his mother since the parents’ separation about the end of 2003. He has been spending time with his father since the separation.
These proceedings were necessitated because the parents could not agree about the relocation of the child with his mother to Townsville. The mother wishes to move to Townsville to be with her fiancé Mr X who is a member of the Defence Services and is stationed at Townsville.
The father has remarried. His wife is Mrs Spain. They have a child R who was born in the second half of 2006.
Background Facts
The parties married in about April 2002. The child was born in February 2003. The parties separated in December 2003. The child has principally resided with the mother since that date. In March 2005 the parties were divorced. Since the divorce the father has remarried Mrs Spain in August 2005.
Final orders were made in the Court on 29th April 2005 following a hearing before Justice Rose. Those orders were amended under the slip rule on the 5th May 2005. The orders only provided for day time contact on one occasion each week. Changeovers were to be effected at a Police Station.
In August and November 2005 there were enforcement proceedings in the Court relating to alleged breaches of the Court orders.
In about 2004 the mother commenced a relationship with Mr X. The mother and Mr X are now engaged and the mother says they will marry after they have had a chance to test their relationship in a full time domestic environment. Mr X is a member of the Army and is stationed at Townsville. He has not applied for a posting to a position closer to Sydney.
The parties spoke following the orders made by Justice Rose and reached some agreements to vary those orders. The father was keen to move to overnight time with the child and the parties discussed and it seems reached some agreement about this commencing at the end of December 2005. Unfortunately this agreement broke down and there was a period of time when the father did not see the child.
The mother in her affidavit filed on the 30th January 2006 describes an incident which occurred at the B Police Station which in my opinion evidences high level conflict between the parties to which the child was exposed. It goes on to describe conflict of extreme nature and a reading of the affidavit reflects poorly on the parenting capacity of each of the parties. On the 1st February 2006 the father filed an affidavit which largely admitted the contents of the mother’s affidavit filed 30th January 2006.
The case was before Judicial Registrar Loughnan on the 13th March 2006 where interim orders were made which specified dates upon which the child was to spend time with his father.
On the 3rd April 2006 the matter was before me in relation to an expedition application. The case was expedited and a Family Report ordered. The issues to be determined were both children and property.
The matter was listed before me to commence a 4 day hearing on the 21st November 2006. On the 27th September 2006 the parties elected to deal with their property as a “Small Claim” under Rule 11.15.
On the 3rd day of the trial namely 23rd November 2006 the parties reached an interim agreement which became terms of settlement. The matter was then adjourned for mention to a date in February 2007. The agreement reached between the parties provided for alternate weekend time for the child with either his father (if available) or with the father’s new wife and his sister R from Thursday afternoon to Sunday afternoon. The parties were to attend at Unifam for counselling. The notations attached to the orders evidenced an acceptance by the parties that their behaviour as parents had been unacceptable so far as the child was concerned and that they resolved to make a change.
In essence what happened on the 23rd November was that the mother agreed to postpone her move to Townsville until at least Easter time in 2007 in order to attend on Unifam and endeavour to improve the joint parenting of the child.
The parties did attend at Unifam however each party had different expectations of what would happen with that counselling and eventually it broke down. Thus a date was set to conclude the hearing.
I should record that from my observation the parties have made a major change in the manner in which they are co-parenting the child. The atmosphere in the court as generated by the parties when the hearing resumed in August was entirely different to that experienced by me in November 2006. Each party appears to have a good understanding of the damage which they potentially inflict on the child if they continue to be in conflict which is apparent to the child. The child is also showing signs of finding the relationship between his parents less stressful.
The case proceeded as part of the Children’s Cases Project and the parties filed affidavits which addressed specific topics. The mother filed her affidavit on the 20th September 2006. Her partner Mr X filed an affidavit on the 2nd November 2006. The mother filed a further affidavit on the 6th November 2006.
The father did not file an affidavit however he gave oral evidence addressing the topics on the first day of the trial in November 2006. Mrs Spain filed an affidavit on the 25th September 2006.
In her affidavit filed 20th September 2006 the mother gave evidence in relation to alleged domestic violence. She annexed a copy of an Interim Apprehended Violence Order. The material in paragraphs 37 and following contains specific facts of alleged violence and intimidation by the father of the mother and members of her family who have been her support. The mother was not questioned about any of the matters she alleged. I therefore find that the father has exhibited violence towards the mother and members of her family as alleged by the mother in her said affidavit.
There is no real issue between the parties that each will be appropriate carers for the child. Although the father has complained about certain aspects of the child’s clothing this largely is a non issue. The mother was concerned about the father’s physical punishment of the child.
The evidence arising from the Family Report of Ms F dated 31 May 2006
Ms F records some non-contentious history which includes that the child has lived primarily with his mother in the Newcastle area since the parties’ separation. The child has spent time with his father since the separation including two hours each week immediately after the separation. Extending to twice a week for two hours on a Thursday night and four to five hours each weekend until July 2004. Time spent by the child with his father was thereafter 9.00 am to 5.00 pm each Saturday. Following hearing in May 2005 the child had one day a week contact with his father on Sundays being from 9.00 am to 5.00 pm. This extended to overnight contact with the father after New Year’s Eve 2005. Interim consent orders were made in March 2006 which resulted in contact being from Friday afternoon 5.00 pm to Sunday afternoon at 5.00 pm with changeovers at police stations. The evidence discloses that the child currently spends three evenings a fortnight with his father.
Although the proposals of both the mother and the father have changed from that which was before the court in May 2006 the family reporter records the statement from the father that he proposes that he and his wife would also relocate to Townsville in the event of the mother being permitted to take the child to Townsville. On that occasion although the father’s new wife supported the father’s application for the child to live with them she did not support moving the family to Townsville if the child was relocated there. By the time of the conclusion of the hearing before me recently Mrs Spain had changed her position so that she now supported the father in moving to Townsville if that was absolutely necessary.
The mother reported high levels of conflict between she and the father in and around the hearing which took place in March and April 2005. She reported further conflict in relation to her wishing to take the child to Queensland to visit her fiancée. The mother alleged that there were occasions when the father had not returned the child on the appropriate day.
The mother reported high levels of conflict exhibited to the child at changeovers including changeovers at the police station. She reported that the child refused to talk (by telephone) with either parent when he was in the care of the other parent.
The mother said that the child had known her fiancé Mr X for about two and a half years and had a good relationship with him.
An issue arose between the parties about where the handover of the child should take place. The mother insisted on it taking place at the B police station and the father was insistent on it taking place other than in front of a police station. The mother said to the counsellor that she would not participate in providing the child for time with his father unless the handover took place at B police station as she was concerned for her safety.
The Family Consultant Ms F also saw Mr X. She recited some history provided by Mr X.
When the Family Consultant saw the father he raised his concerns about changeovers for the child. He also raised concerns about the mother’s parenting. He claimed that she did not provide religious eduction to the child and further that she does not discipline him adequately. There were other minor complaints. The father said that he could not afford to continue funding the travel associated with contact between he and his son. He said he would be using public transport. The father further complained that some time in about the middle of 2006 the mother had rung the police and the Department of Community Services. He said that the mother had made a complaint about the child’s safety in his house. As a consequence, he alleged, police had visited his house at 10.00 pm and required to see the child.
Ms F reported when she observed the child with his parents and also with the father’s new wife that his transition from his mother to his father was characterised by pleasure at seeing his father but an inability to say goodbye to his mother. She said all three adults were observed to interact with the child in a responsive way. She said the child demonstrated proximity seeking behaviour towards the three adults.
In paragraph 44 Ms F reports as follows:
“At the end of the observations [the father] demanded that [the child] help to pack up the toys. When [the child] did not, [the father] told [the child] that if he did not co-operate he would give [the child] a smack. [The child] begrudgingly picked up a few toys. [The mother] managed difficult behaviour in [the child] by ignoring the behaviour and moving him onto other activities, guiding him to more acceptable behaviour. This suggests a difference in parenting styles which are used by the parents. In general, the counsellor’s view is that the parents both managed [the child] adequately, however, the father may need to develop a range of management strategies that offer alternatives to the use of physical punishment in setting limits.”
Ms F reports that on 17 May 2006 the child was observed with Mr X and his mother. She said the child demonstrated eye contact and a range of positive interactions with both Mr X and his mother and that this would suggest that he felt happy in their company.
Under the heading “Evaluation” Ms F reports that there are two main issues in the case: the potential effects of the relocation that is proposed by the mother and whether the child’s residence should be changed from the mother to the father.
In paragraph 47 the counsellor reported:
“Counsellor’s assessment is that the parental dynamic can be described as [the father] reacting to any perceived exclusion or rejection by becoming aggressive, retaliatory and provocative and when such aggression is directed at [the mother], she responds by becoming increasingly rigid in order to protect herself. This dynamic can result in rapid escalations of conflict and both parents becoming locked into an intense struggle.”
She further reports in paragraph 49:
“It is likely that if the court makes a finding that [the father] feels is an adverse one, he will respond in a negative way by finding a way to demonstrate his defiance and/or challenge court orders, for example, by refusing to return [the child] from contact.”
…
There is evidence already that [the child] is aware of and affected by the chronic nature of disputation between the parents.
…
In addition, [the mother’s] disappointment and frustration at having to delay her own plans, plus having to deal with the ongoing stress of contact and dealing with [the father] is likely to have a negative emotional impact on her, thus also negatively affecting [the child].”
Ms F recommended that the child continue to live primarily with his mother. She has been his primary caretaker. Ms F said that she saw no evidence which would suggest the mother is not providing a good standard of care for the child. She concluded that the child should experience a direct benefit from his mother being in a relationship with Mr X where she experiences emotional support and security.
Ms F advocated the institution of weekly contact for the child with his parents however she spoke of the contra indicating ongoing conflict which the child would be likely to be exposed to if weekly contact was to occur. She subsequently recommended that fortnightly contact would be in his best interests.
Ms F spoke of the necessity to ensure that the child had significant contact with his father at the time of the birth of the step sibling so that the relationship between the child and his step sibling would be put on a good initial footing.
Ms F explored the positive outcomes for the child if his mother relocated to Townsville and ultimately she recommended that this should be permitted.
On 31 July 2007 Ms B signed a further report. This report was to be an update from the earlier report from Ms F. It was necessary to introduce a new Family Consultant as Ms F was no longer available to the Court.
In the report she refers to the existence of an Apprehended Violence Order which was issued for two years in September 2006 naming the mother as the protected person.
Ms B referred to a problem which is attended to this case namely the father’s requirement to work away from home as a member of the defence forces. The father in his evidence advised that as a member of the defence forces attached to the navy he was required to travel with his ship. He advised me during the course of evidence that the standing orders from the head of the Navy required that serving naval personnel be able to be at home for not less than 120 days each year. This same requirement could apply to Mr X if he was attached to a ship.
As a consequence of the father being absent from the home quite frequently the mother has agreed to the child spending time with the father’s new wife and also their child R. The mother and Mrs Spain have been able to work well and co-operatively in making arrangements for the child to spend time with R when the father is at sea but during times that the child would normally be in his father’s care.
When the father saw Ms B he said that he was now seeking an equal time parenting arrangement or alternatively in the event that the mother relocates herself to Townsville that the child lives with him and spends regular time with the mother and Mr X in either Sydney or Townsville. He reiterated that he and his wife were willing to move to the Newcastle area in order to be closer to the child. And he said that they would also consider moving to Townsville.
Ms B identified the ongoing parental difference in approach to physical punishment. The father denied that physical punishment was used in any course other than as a last resort for wilful disobedience and not childish irresponsibility.
Following the interruption of the hearing the parties agreed to attend at Unifam in G. It was only when the Unifam counselling concluded due to the father not wishing to participate further that the matter came back before me for finalisation. The father’s failure to participate in the Unifam project really arose as a result of a misunderstanding on his part as to what was to take place in that process. The father wanted face to face mediation to take place between he and the mother. The mother had a different idea of what was to happen as indeed it appears did the Unifam consultant as well.
Both parties confirmed they had received no contact from the Department of Community Services during the past twelve months.
Both parents told Ms B that they each believed that since the hearing in November 2006 there had been some improvement in their ability to communicate. They were now using a communication book. With rare complaint from the mother it was conceded that the communication book was working reasonably well although again there were differences in understanding as to the use of the communications book.
Ms B said that both parents spoke of having communicated by telephone to “clarify information or to vary the existing parenting arrangements.”
Ms B said that throughout the interviews there were indications of an amicable relationship developing between the mother and the step mother. She also said that there were indications that although both parents have made attempts to better shield the child from the conflict he is still aware of the tension. Both parents reported the changeovers during the last eight months have improved.
Ms B reported that there were indications on the day of the interviews that the child can move freely between the four adults although he tended to orientate himself more towards his mother. The parents reported the child appears better able to cope with the changeovers. They also reported a change in the child now being prepared to speak to the other parent on the phone.
In evidence before me each of the parents told the child that they were trying to improve the relationship between them.
Ms B recorded an emerging connection between the child and his sister R. She said that the child clearly identified his sister as part of his family group and enjoys spending time with her.
In relation to the mother Ms B says that:
“she appeared willing and able to support [the child’s] ongoing relationship with his father, step mother and sister. She was able to talk of ways in which she could support these relationships from a distance. Advantages to [the child] of a possible move to Townsville could be their possible lessening in his exposure to the parental conflict and hostility as well as living with the mother who may well feel more contented and supported. On the other hand [the child] clearly has a positive attachment to his father and enjoys spending time with him, his step mother and his sister. These relationships could well be compromised by such a move, especially given his young age and his limited ability to independently maintain relationships from a distance.”
…
“With respect to the mother’s relocation to Townsville, the family consultant finds it difficult to make a recommendation as each party’s proposal appears to have some merit.”
Ms B then makes two recommendations:
“(a) It is recommended that parents have equal shared parental responsibility for [the child].
(b) It is recommended that [the child] live primarily with his mother and spend regular and frequent time with his father, step mother and his family.”
Ms F gave oral evidence during the first hearing period. She reported that the hostility between the parents is just as intense now as it had been when she had seen them for an earlier report. She said the hostility is focussed more on Family Court proceedings. She spoke of her description of the child as compartmentalised in his life. She said that people who compartmentalise their lives can develop personality disorders. She opined that the child was adopting this strategy to cope with the current conflict. She was very concerned about the allegation that the child had not urinated during the whole of one period of time with his father and for the Family Consultant this represented an indication of anxiety in the child.
She spoke of the recent evidence of the parties that the child is now sometimes speaking to his parents by telephone. She said that this may indicate that he is less exposed to conflict. She raised her concerns about the father’s use of corporal punishment with the child. She said that the father had told her he did use smacking.
Ms F was taken to a recommendation she had made that the father should undertake psychotherapy. She said she would be concerned in the event of the father not having done so. She said she had recommended psychotherapy in an earlier report because of the nature of the father’s behaviour patterns. She thought it was the best intervention. She said the father needed self-regulation of his responses and anger. She said that he had agreed to participate with psychotherapy whilst in court.
Ms F cautioned about moving the contact to blocks of five days. She raised her concerns that the conflict between the parties is such that if it doesn’t cease it will reach a position where one parent will not be seeing the child. She opined that week about would be contrary to the child’s best interests.
During the father’s questioning of Ms F he told her that he had been speaking to a navy psychologist over a period of six months. He said that the navy psychologist opined that the father did not have an anger problem. Ms F said that in her opinion the father did have difficulty in relating to situations.
Ms F was asked her opinion about the impact on the mother if she was not able to relocate and then the impact on the child of that fact. She said that it will impact on the child according to the reaction of the mother. Her disappointment and frustrations would be visible to him. She anticipated that the conflict will continue for the mother and therefore for the child. She also said that in her opinion it would be very distressing for the father and his wife if the child was to relocate to Townsville. She therefore concluded that the child would be distressed by his father’s distress. She said it could help if there was regular phone contact.
When the hearing resumed Ms B was required for oral evidence.
Ms B recommended that if the child was living in Townsville he have regular phone calls with his father. She said he should speak to him at least every second day. In relation to face to face contact she said the child should have two weekends a term if that can be managed with his father. He should also spend time during school holidays. Ms B understood that in such circumstances the child would see his father at least once a month.
Ms B says at the moment the child is spending from Thursday to Sunday with his father, step mother and sister each alternate weekend. She said that during discussions with the mother the mother agreed that the child could have a five day block with his father during school holidays if the mother was living in Townsville. Ms B said this would have to be in gradual increments. Ms B said that the child has a good attachment with his father, he loves his father, if he does not see him he will feel sad. Extra time such as in blocks may help to balance out this sadness. As the child gets older there will be other ways he can share time with his father such as emails, letters and webcams. She thought it would probably be not until the child is seven before he got much benefit out of emails however she said that the providing of emails would get the child into a regular habit and reinforce the contact with his father.
Ms B was of the view that the current arrangement for the amount of time that the child spends with his father should continue in the event of the mother remaining in the Newcastle area even if the father was to move closer. In relation to this the mother had agreed that in the event of that occurrence she would agree to extending the time the child could spend with his father to four nights/days a fortnight.
Ms B was asked by the father questions which included whether she thought that the child was compartmentalised. She said that on the day of the interviews the child was able to move between all four adults. This would be contra indicating compartmentalisation.
When asked about the reduction in conflict between the parents Ms B agreed that appeared to be evident however the mother was continuing to request the changeover occur at the police station which suggested to her still an underlying degree of conflict.
Ms B was asked by the father to opine the best case scenario for the child in terms of his living arrangements. She said “something similar to the current arrangement.”
Ms B was asked by the mother that if she relocates to Townsville and if the child spends four to five days during each school holiday period with his father and in addition to that the father comes to Townsville for one weekend in each term would that be sufficient so far as the child is concerned? Ms B said that she would like to see another weekend each school term so that there were two weekends each term together with four to five days during school holidays which could be increased over time.
At the conclusion of the submissions by each of the parties and the Independent Children’s Lawyer I asked Ms B to come back to court and answer a further question. The question I asked her was this. If the child resides in Townsville with his mother and sees his father for four or five days during each school holiday period and for two weekends during each school term and in addition to that has telephone contact and possibly email contact would that be sufficient to ensure that the core values and ingredients and attachments in the relationship between the child and his father would not be damaged.
Ms B informed me that in those circumstances there will be some impact upon the relationship with the father. She said what will determine the level of the impact will be the amount of support given to the child in respect of his relationship with his father by each of the parties. She said that she believed that the mother had the ability to provide a positive image of the father for the child. She was of the view that the child would be able to maintain his attachment with his father.
Each of the mother and father signed and filed affidavits which were read by me in the proceedings. They each filed and served financial statements. Each of their partners signed affidavits.
Each of the parties gave oral evidence. The husband gave oral evidence in chief and advised me that for him the issues were the impact on the child of a move to Townsville with his mother. The child’s relationship with R and the child’s relationship with his Sydney family and church.
The father told me that he proposes to move close to where the mother lives when the child starts school. It had been part of his proposal for a long period that this occur. If however the child is allowed to move to Townsville then the father would propose to move to Townsville at a time before the child started school. The move to Townsville by the father would mean that he would have his wife and their child R living in Townsville and the father would be able to spend about six weeks a year in Townsville. Otherwise he would be attached to his current ship or alternatively he would have to leave the armed services and find a job in the civilian world. If a job suitable to his qualifications was not available in Townsville then he would have to work somewhere else and travel to Townsville as he was able to.
The father said that the child has a good and close relationship with his sister R. He said he had a relationship with his sister prior to her birth. He was prepared with the family for the birth of his sister. The father says that the child now uses ever opportunity to sit next to the baby capsule and have physical contact with his sister.
The father gave evidence stating that his father lives in Sydney. His wife’s parents live in the Sydney area. The child sees his paternal grandfather approximately once a month and he sees Mrs Spain’s parents approximately three times every two months. The father and his wife are members of their local Anglican church and attend weekly. The child attends Sunday School when he is with his father.
When the hearing resumed in August this year the father said that in February this year he was offered a job with the Department of Defence as a civil public servant. He has submitted his discharge which takes one year to effect. If he continues with his discharge notice he will be discharged on 25 February 2008. He can revoke his discharge and he can notify the Department of Defence he will not take on the civil post. He told me that the advantage to him of staying in the military related to the provision of housing.
In his cross examination by the Independent Children’s Lawyer the father told me that the move to Townsville will take him approximately three months to organise. He confirmed that it was his firm commitment to move to Townsville if the mother moved there. The father said that in the event of the child not moving to Townsville he will be able to spend more time with the child. He said that he would be busy for approximately three weeks following the trial with a posting at sea. He said after August 2007 he would be in Sydney and he will be in Sydney until mid September 2007. On … September 2007 he will be in Melbourne for two weeks and then from that time until April 2008 the ship will be undergoing a refit and he will be shore based.
The mother gave oral evidence. She said that her parents were moving to Queensland although they would be living about 1,000 kilometres south of Townsville. In her early evidence the mother said that she was proposing to bring the child to Sydney four times of the year to spend time with his father. She said that the airfares were approximately $520 return for herself and the child. In her later evidence she said that she was able to get fares from Townsville to Sydney for $129 one way. That same fare applies whether it is a full fare or a child fare. If the mother brought the child to Sydney to see his father she would be able to stay with friends and family during that time. The mother said that Mr X would be stationed in Townsville until 2008 and then she was unaware of where he would be posted. She said that he has specialty training and would be posted to ships or as an instructor in Wagga, Sydney or Townsville.
The mother said that she found out about Mr X’s move to Townsville in November 2005. She did not file seeking relocation until March 2006 as she still hadn’t decided about the relationship. She did not tell the father about the move to Townsville until she was certain herself. She first informed the father about her proposed move in January 2006.
The mother said that when the parties meet for changeovers in order to try and avoid conflict they don’t talk to each other.
The mother further said that the child was now prepared to talk to the other parent on the phone and that was different to the position when the parties saw the Family Consultant.
In terms of her interaction with the father the mother told me that she still feared that the father might use violence against her. She said that since the orders made by Justice Rose she has brought two recovery orders. One was in February 2006 and the other in November 2006.
When asked why it was better for the child to live with her in Townsville she said that he would be part of a loving family. She anticipated that she and Mr X would have children. She would not contemplate having further children unless she was living with Mr X. She believed there would be less chance that the child would be exposed to conflict between his parents. She described continuing conflict between the parents and said the last conflict-free discussion she was able to have with the father was on 13 October 2006.
The mother described the changeovers of care for the child from one house to the other as very conflictual. She said where the handovers took place between she and Mrs Spain they were far more relaxed.
At the time the case commenced its hearing before me in November the mother said that by operation of the orders of Judicial Registrar Johnston made in July 2006 all orders for time for the father to spend with the child had been suspended. When asked what she intended in terms of the child seeing his father in the near future she replied it would depend on whether the father says he was prepared to comply with the obligations under the order. To that end she said he would need to tell her that he is willing to follow the orders. He would need to sign a document. The mother would prepare the document. She was reasonably confident that she and the father would be able to work out some acceptable wording for the document. The mother reported that the child had told her that he hated daddy and Mrs Spain because they yell at him and he said he didn’t want to see them again. The mother said that she had believed what he had to say. She did however tell him that his father and Mrs Spain loved him. She says that she tries to promote the father and Mrs Spain to the child. She confirmed that on the day the child made that negative statement about his father he in fact spoke to his father on the phone later in the day. The mother in answer to questions from the father confirmed that there was an Apprehended Violence Order in place but she also confirmed that the father is permitted to communicate with the mother for the purposes of arranging contact with the child. The mother denied that at H Local Court she had arranged for the police to arrest the father. She said that she had been at the H court after the Apprehended Violence Order was made. She said the father had approached her and was aggressive to her. She said this was seen by a police officer who stepped in and said to the father he could be charged for his action. The police officer apparently went back into the court and came out and the father was arrested and taken away. The mother was asked to give a statement which she did.
The mother agreed that from May to October 2005 there was a period of six months of relative cooperation between the parents.
When the hearing resumed before me the mother told me that Mr X will be in Townsville for at least another year. She also told me that the place she was renting will have to be vacated by 30 August 2007.
The mother said that if she was allowed to take the child to live with her in Townsville she proposed to encourage the relationship between the child and the father in the following ways: (a) face to face contact; (b) phone contact; (c) email contact; (d) mail contact; (e) webcam; (f) photos; and (g) talking to the child about his father. She proposed the telephone time would work where calls would be placed if the child wanted to speak to his father or alternatively if the father wanted to talk to the child. The mother said that she would talk to the child about his little sister and keep her memory alive for him. She would be happy to pass on information about what his sister is saying and doing.
The mother agreed that since the parties were in court last in November 2006 there has been a reduction in their conflict. She agreed that the parties have been using a communication book with success. She said it hadn’t been entirely successful but on most occasions she said it worked well. She suggested the father might be more expansive and describe what activities the child has engaged in with his father during the course of their time together. This would enable her to speak to the child about those activities and reinforce the relationship between the child and his father. The mother said that when the changeovers take place between she and Mrs Spain they work well. She said however when the father is there there is still conflict. The conflict largely takes the form of the father either ignoring the mother or failing to respond to any question that she raises. The mother conceded the father sometimes says “hello”, “goodbye” and “thank you”. She complained that the father appeared to deliberately avoid any interaction with the mother.
The mother said that if she does not move to Townsville she will remain living in the same region. She said she is on the edge of Lake Macquarie at the moment but would wish to live either on the edge of Lake Macquarie or Newcastle. She confirmed that she would not marry Mr X until they could live together. She would not marry simply to reap extra benefits that may be available through the army. She said it was not a good start to a marriage if the marriage was undertaken for that reason. In the mother’s opinion a marriage can’t work where there’s 2,500 kilometres between where the husband and wife each live.
The mother said that she would not enrol the child in a school without discussing it first with the father. The mother confirmed that she had agreed with the father to extend the time that he has with the child from three days to four days per fortnight.
The mother does not hold a driver licence. She has a learner permit and has help that permit for a number of years. When she can afford to obtain her driver licence she will do so.
The mother confirmed that recently on her birthday the child was with the father and she confirmed that the child made her a present which she received on his return from time with the father.
In respect of telephone contact the mother confirmed that in the week before the resumed hearing the child had been talking to Mrs Spain on the phone every day of the week.
The mother advised that it was her intention to work in the near future. She confirmed that if she and Mr X were to start a family it would mean that she would not be able to work for some time. When it is time to cease work she said that she would have the advantage of the baby bonus and she would be able to work until she was about eight months pregnant. She said that there appeared to be ample opportunity for work in Townsville in the retail sector.
The mother confirmed that she would bring the child to Sydney on four occasions each year during school holidays so that he might spend time with his father. She also said that she would bring the child to Sydney on four occasions during school term so that he might see his father. She requested that on one other occasion each school term the father travel to Townsville and spend time with the child.
The mother confirmed that the father currently pays child support at the rate of $350 per month. She confirmed that if the father’s child support was reduced or disappeared she and Mr X would still be able to live and support the child at a reasonable level.
The mother’s new partner Mr X gave oral evidence. He said that he came back to Australia from deployment in November 2006. He has obtained a private rental property in Townsville. He currently has an open-ended employment/enlistment with the army. In order to leave the army he is required to give six months’ notice. He made it clear that he has no desire to leave the army.
In February 2008 Mr X will have an opportunity to sign a retention contract at his current rank with the armed services. Mr X intends to remain in the army for another ten years if possible. He is a … specialist holding the rank of corporal. He has an income of about $53,000 per annum. There is a possibility that he will be posted overseas again and it may be in about the middle of next year. It would be for about five months. Mr X confirmed that he and the mother would have the financial capacity to fund airfares to bring the child to Sydney on two occasions per school term and on four other occasions each year during school holidays. He confirmed that he was aware that airfares were as low as $129 one way for an adult. He confirmed that he would also drive down to Sydney stopping with relatives along the way. The trip from Townsville to Sydney takes three days by road. He confirmed that the prospects of the mother obtaining part time work were good.
Mr X confirmed that if the mother was not able to relocate the child to Townsville he will then discuss the situation with his command. He would discuss getting married and possibly moving down to Sydney. His enquiries show that there is unlikely to be a posting that would be attractive to him. He conceded that he was a member of … and that he could obtain positions in any army unit. However he said his training was as a … specialist. His evidence was that if he did get a move to Sydney it would be an attachment to a ship and that unless the ship was alongside for a refit he would have to spend substantial periods of time at sea and therefore be away from the mother and the child. He also confirmed that he could leave the army and get a job in the civilian world. He agreed that he could obtain a job outside the armed services which paid well, however it would not have job security. He said most of the jobs were attached to a contract and when the contract ran out the job finished.
I asked Mr X what he would do if after six or twelve months of living in Townsville with the child and the mother it became apparent to him that the child was not coping with being separated from his father. He said that by that time he would be married and he would apply for a married separation and move the mother and the child to Sydney. He would then move for a transfer back to the ships. That would mean less time with the family but there might be the possibility of a refit.
Mr X confirmed that he owned a computer and would connect to the internet if the mother and the child moved to Townsville. He confirmed he would obtain a webcam. He confirmed that if the mother and the child lived in Townsville with him he would stand as a step parent for the child and support him as best he could.
I was very impressed with Mr X as a witness and a person. He seemed to me to be very honest and committed to his relationship with the mother. He clearly has an affection for the child and a desire to fit in to a role which is supportive of the mother but does not intrude on the father’s relationship with the child.
Credit
The Mother
The mother and Mr X gave their evidence in a straight forward and apparently honest manner. There was nothing about the manner in which they gave their evidence or its content which suggested to me they were being dishonest.
The Father
The father and his wife Mrs Spain gave their evidence in a straight forward and apparently honest manner. There was nothing about the manner in which they gave their evidence or its content which suggested to me they were being dishonest.
Relevant Law
Legal principles
The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that:
“… 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 for the child.”
Subsection (4) provides as follows:
“… 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.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
Relevant Law in relation to relocation
The principles to be applied in relocation cases are enunciated in A-v-A Relocation Approach (2000) FLC ¶93-035 and H-v-L (2000) FLC ¶93-036. In A-v-A (supra) the Full Court noted the leading authority for the determination of a parenting case where the proposals of one of the parties seeks to relocate the residence of a child is AMS -v- AIF; AIF -v- AMS(1999) FLC ¶92-852. The Full Court noted that the High Court's finding, in that case, that "relocation cases are but a particular example of proceedings under Part VII".
The Full Court held the following binding principles of law flowed from the decision in AIF -v- AMS; AMS -v- AIF (supra) when a parenting case involved a proposal to relocate the residence of a child:
·the welfare or best interests of the child under the relevant legislation, remains the paramount consideration but not the sole consideration
·a court cannot require an applicant for the child's relocation to demonstrate compelling reasons for the relocation of a child's residence "contrary to the proposition that the welfare of the child would be better promoted by" maintenance of the existing circumstances.
At the conclusion of its decision in A-v-A (supra) the Full Court set out, in addition to the two above binding principles, the following guidelines to be applied in relocation cases:
·“A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be permitted.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child’s best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (1) of that subsection.
·The object and principles of s.60B provide guidance to a court’s obligation to consider the matters in s.68F(2) that arise in the context of the particular case.”
The Full Court in the case of D and SV (2003) FLC ¶93-137 revisited the question of relocation and looked at what changes might be expected to the “parental relationship” with the non resident parent if the relocation was not prevented.
In D and SV the Full Court set out how the principles to be applied in
re-location cases have emerged. It seems to me that the distillation of those principles gives rise to the following:
(a)The guidelines set out in A v A; Relocation approach (2000) FLC
¶93-035 should be followed;(b)The Court should not be restricted in its orders to those orders sought by the parties. If there are other orders which cater to the best interests of the children then, subject to the rules of procedural fairness, the Court should make such orders. See U and U (2002) FLC 93-112.
(c)Where the undisputed residence parent wishes to move the question to be answered is whether in all the circumstances it is appropriate to restrain him or her from being able to choose the children’s place of residence.
(d)In most relocation cases it is inevitable that the quantity and nature of contact with the non residence parent will change. As a result the “parental role” changes. The very important matter for the Court to consider is whether the nature, frequency and duration of contact which could be expected to occur following the proposed re-location is adequate to ensure the “core values” or “fundamentals” of the “parental relationship” are maintained. With some children the quantity and frequency (more particularly the reduction in quantity and frequency) of contact with the non residential parent will, as a result of the relocation, be such that because of the developmental stage of the child or the particular make up of the child, the parental relationship will be damaged, perhaps irreparably.
(e)There may be other reasons why the Court would grant or refuse the injunction against the resident parent.
As referred to earlier the “parental role” is best described as, “the means by which core values and behaviours are exchanged, and influence applied”. The “Parental relationship” is “the closeness or attachment between the children and the parent”. (see Alvaro and Alvaro unreported decision Le Poer Trench J. 22/4/2004)
In a decision handed down on 14 February 2007 Federal Magistrate Altobelli (formerly Professor of Law) considered in depth the impact of the Family Law Amendment (Shared Parenting Responsibility) Act 2006 on relocation cases. I here incorporate part of his judgement M & K [2007] FMCA Fam 26:
“Brown FM considered the meaning of “meaningful” in the context of s 60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of 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 practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of “meaningful” to s 65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
Relocation cases raise all of these issues.
...
Relocation cases are invariably very difficult for all concerned, involving as they do two competing and irreconcilable claims of right. These claims of right arise when the parents of a child have separated and for legitimate reasons wish to take different directions as to where they will live in future. On the one hand, there is the right of a parent to live how and where he or she wishes and to get on with life as he or she sees fit, both as a parent and as an individual, separate from the other parent concerned. On the other hand, it is the right of a child to maintain a meaningful relationship with both his or her parents, in the now changed circumstances of his or her parents’ separation.[1]
[1] P & P [2006] FMCA Fam 518 at 21.
...
In U & U,[2] the majority judgment again addresses the freedom of movement issue, at pp 89 090-1. In the majority judgment their Honours observed as follows:
Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent… ‘Contact’ with both parents is desirable and important. So too is the presence of a ‘stress-free environment’ for the child, to the extent of course, that it is possible for it to exist in a fractured emotional relationship. It is unlikely that many of such situations will admit of perfect solutions.… The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[3]
It may be unfortunate, perhaps, that the majority described freedom of mobility as a right, thus creating the expectation in some litigants that it is a right that can be enforced by the courts exercising jurisdiction under the Family Law Act. It clearly is not an enforceable right in this context. But, as the High Court again clearly articulates, whatever the status to be given to freedom of movement – “it must defer to the expressed paramount consideration.”
It is possible that in some cases the notion of freedom of movement on the one hand, and the paramount considerations of the child’s best interest on the other hand, have been put in the metaphorical balance which occurs as judgment is being exercised in these very difficult cases. If that is the case there must be serious concern about putting such different notions “in the balance.” It is more akin to comparing apples to oranges, than apples to apples. Indeed, there is no comparison because the High Court and the Full Court have repeatedly stated that the notion of freedom of movement defers to the paramount consideration of the best interests of a child. There is a place for considering freedom of movement in the difficult exercise of judgment that occurs in relocation cases. However, the consideration is not a weighty one. Far more weight must be attributed to the expressly articulated considerations referred to in s 60CC, than to the unarticulated interest of the parent’s’ freedom of mobility that has somehow crept into the Part VII exercise of judgment. If the legislature had intended to somehow elevate parental mobility to an equivalent status with the existing considerations in s 60CC it could have done so. Clearly the post 1 July 2006 amendments do not. Some may regard this as harsh and disappointing. Some might say that it disregards the clear statistics indicating that the Australian population as a highly mobile one.[4] Nonetheless, the Family Law Act is silent about a parent’s freedom of movement. Indeed, arguably the Act imposes a fetter that did not exist before 1 July 2006 by saying that shared parental responsibility carries with it the obligation to make decisions jointly, and to consult and make a genuine effort to come to a joint decision, in relation to major long-term issues: s 65DAC. The definition of major long-term issues in s 4(1) includes issues about changing the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The High Court identified in AMS v AIF and AIF v AMS[5] that parenthood has always had an impact on the wishes and mobility of parents. It is not just freedom of mobility that is affected by parenthood – many other personal freedoms are likewise affected. Family law in its broad sense already recognises that parenthood carries with it responsibilities irrespective of the nature of the relationship between the parents of the child. For example there are obligations to financially provide for the children. Howsoever one might have perceived a person’s freedom to deal with their finances as they wish before parenthood, once they become a parent it is an unquestionable incident of parenthood that that very same freedom is not just curtailed, but converted into a legal obligation. Can’t the same be said for freedom of mobility? In any event, to describe it as a “freedom” is, in my opinion, highly problematic. The emotive use of the word itself tends to assert a certain superiority and precedence over other obligations in a context where there is no objective basis for it. It would be equally emotive and problematic to reconceptualise the notion of freedom of movement into the freedom to disrupt the relationship between child and parent. And that is one reason why contemporary Australian family law asserts the primacy of the best interests of the child, even in parenting cases where the proposal of one of the parties involved relocation.”
[2] U and U (2002) FLC 93-112
[3] U & U (supra) at 89,090-1
[4] See, for example, “Discussion Paper on Relocation” (Family Law Council, February 2006) at paragraphs 1.1-1.3 and the April 2006 HILDA survey “Families, Incomes and Jobs: A statistical report of the HILDA survey” which is discussed briefly in the Editorial in (2006) 20 AJFL 113-114.
[5] [1999] HCA 26
It seems to me that FM Altobelli clearly outlines the complexities now being faced by trial Judges. It is necessary to integrate into a reasonably well understood line of authority, flowing from the Full Court of the Family Court of Australia relating to re-location cases, the amendments to the Act which became effective in July 2006.
I have highlighted in the above set out quotation FM Altobelli’s attempt at defining “meaningful relationship” as used in section 60CC(2)(a). It seems to me that the discussion surrounding the meaning of the words is a good one and I agree with his interpretation.
Ultimately I need in the conclusion to look at whether the proposed orders of the Court will enable a meaningful relationship between the children and each of their parents.
Considering the Guidelines developed by the Full Court
The evaluation of the competing proposals.
Each party’s competing proposals have been identified in these reasons. The advantages and disadvantages of each proposal will be considered by me hereafter. I will consider the orders to be made at the conclusion of the reasons. This consideration will include looking to see whether any orders not sought by each party could better serve the best interest of the child.
Section 60CC Considerations
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents
The evidence of Ms B the Family Consultant confirms that if the child lived in Townsville with his mother and was able to spend block periods of time with the father during each school holiday period and also spend time with his father during two weekends each school term then he would see his father approximately on one occasion in each month. That frequency of time supplemented by telephone calls every couple of days and a supportive emotional environment would allow the child to continue a meaningful relationship with his father. Ms B predicts that the child would be able to maintain his attachment to his father.
In the event of the father moving to live in Townsville it is uncertain what frequency the child might expect to see his father. The father says that he would be able to spend six weeks in Townsville each year. He says the trips will probably be for about one week each however there is no certainty about that. It is unclear whether he might be able to visit for occasional weekends. It is clear that the child would spend frequent time with his sister and with Mrs Spain as the mother has agreed that the child should continue to spend time with them even if the father is not present. This in itself is an unusual facit of this case.
If the mother remains living in the area where she currently resides it is the father’s intention to move his family to that same area when the child commences school so that his two children can attend the same school and further so he can participate in all aspects of the child’s life.
(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 only evidence of possible harm being perpetrated on the child is psychological harm which may be generated by being exposed to the conflict between his parents. There is also a concern as to the impact on the child of his father’s practice of using corporal punishment in chastising the child. The use of corporal punishment is not advocated by child psychologists and specialist child development students who give evidence in cases which I have heard. I have never heard evidence which supports the application of corporal punishment to children. I accept that the father uses this type of punishment as a last resort. There is no evidence that the child shows any fear of his father, quite the opposite. None the less I propose to make orders which prevent either party using corporal punishment on the child. This will not adversely impact on the mother as her evidence is that she does not use corporal punishment with the child. The father will have to find some other “last resort” method of discipline. There can be no defence of corporal punishment for young children in an advanced western civilised society.
Additional considerations
(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
The child is too young to express his views in a clear and meaningful way.
(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)
The evidence supports a finding that the child has a good and close relationship with each of his parents. His attachment to his mother is assessed to be different to his attachment to his father. This is largely a function of the traditional and principal carer of the child. The child has good and appropriate relationships with Mrs Spain, R and with Mr X.
(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
Each of the parties professes to support and encourage a close and continuing relationship between the child and the other parent. I accept those assertions. Despite considerable and open conflict between the parties I accept that they have each been dedicated to the opinion that the child has an entitlement to a close relationship with 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
This consideration is relevant to this case in that the mother’s proposal to relocate to Townsville with Mr X will reduce the time that the child can spend with his father. The child is still very young and despite Ms B’s optimism that the child’s attachment to his father will not change if he has the time with his father as proposed by the mother, I carry concerns about that. There would be a great distance between the child and his father if the father did not move to Townsville and there remains many possibilities for the arrangement proposed by the mother to break down at least to some degree. One of those possibilities is that the mother and Mr X find they can no longer afford to fund airfares at the rate they are proposing. Further if the father does move to Townsville I have difficulty seeing how he will be able to spend enough time with the child to maintain his attachment to him.
The father raises the concern about the relationship between the child and his sister R. It will be important for his sister to see the child very frequently for her to be able to build her connection to the child and to enable them to develop their sibling bond. Given her young age it is reasonable to conclude that her attachment/bond with the child is likely to be different if it develops in circumstances where she does not see him very frequently.
The child does have a good relationship with Mrs Spain and that relationship is likely to change if the frequency of time he spends with her was to change.
(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
This consideration applies in this case because of the distance that may be between the child and his father if the father does not move to Townsville. I have set out the evidence of the parties about this cost earlier in these reasons. Given the financial circumstances of the parties it could become a problem and potentially interfere with the relationship between the child and his father.
(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
Each of the parents has a good capacity to provide for the needs of the child. That capacity has been diverted by the high level of conflict between them and their slightly different approach to parenting and discipline. The child’s emotional health appears to be reasonably intact at this time however each party has given evidence which is illustrative of the child exhibiting signs of reaction to the parental conflict.
(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
The child is a 4 year old male child. There is no evidence to suggest that his gender impacts upon his attachments or dependency on either of his parents.
(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
This is mot applicable in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Each of the parents has shown both appropriate and inappropriate exhibition of responsibility as a parent. I have canvassed the facts which illustrate this earlier. When they engage in conflict they are irresponsible particularly because much of this has occurred in the presence or hearing of the child. They have, responsibly actively worked to reduce the conflict between them. Each are clearly dedicated parents.
(j)any family violence involving the child or a member of the child’s family
There have been AVO proceedings against the father and orders have been made. The father has been charged with breaching AVO orders.
(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
There is a final order for an AVO and as best I know the proceedings were contested. There is evidence of both parties being present at the H Local Court in relation to AVO proceedings. An order was made. Outside the Court the father attempted to speak with the mother. The father was arrested for breaching an AVO.
(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
This is a case which would best benefit from final orders.
(m)any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance.
Section 60CC(4) & (4A)
There is evidence which touches on this consideration I have referred to elsewhere in these reasons. The father has not failed to participate in sharing time with the child but he has failed to exercise time because it was not available. The orders of the Court provided at one time for a suspension of orders in event of the father breaching orders. The father did breach the orders by failing to return the child on one occasion. The mother then did not make the child available for time with his father. The mother has had to obtain two recovery orders for the child.
The Family Consultant spoke of action and reaction between the parents which was not child focused. That seems to me to be a very good interpretation of the parties’ behaviour.
In short the behaviour of each parent has caused an interference in the relationship between the child and his father and reduced the time the child has been able to spend with his father.
I note that the parents post separation relationship has matured and developed after the proceedings were listed before me. I have done my best to emphasis for the parents the damage they perpetrate on the child through conflict. I see good signs of their developing an understanding and a move to put his needs ahead of their own.
Section 61DA
This section requires the Court to consider making an order for equal shared parental responsibility. The section refers to a presumption which is rebutted by evidence of abuse or family violence. In this case there is evidence of family violence which has resulted in the Local Court making an apprehended violence order. There is the evidence of the mother setting out the facts which gave rise to the original apprehended violence order. I am satisfied the actions of the father as described by the mother amount to domestic violence within the meaning of the Family Law Act.
The Court being satisfied that the presumption ought not apply does not mean that the Court should not make an order for equal shared parental responsibility.
In this case I am satisfied that the behaviour of each of the parties towards the other has changed dramatically over the last 12 months. The relationship between the parents, ably supported by each of their partners, is now more aptly described as reasonably co-operative and fundamentally child focused. There is still room for improvement however it is fair to say the relationship is now at least on the right track.
The submissions of each party are consistent with them each desiring an order for equal shared parental responsibility. Each wishes to co-operatively parent the child with the input and consensus of the other. The mother seeks an order for “joint responsibility for long term care”.
The Independent Children’s Lawyer did not submit against an order for equal shared parental responsibility.
Ms B the Family Consultant recommended there be an order for equal shared parental responsibility.
I conclude therefore that it is appropriate to make an order for equal shared parental responsibility.
Section 65DAA
This section requires me to consider whether it would be in the child’s best interest to spend equal time with each of his parents. This obligation arises as a result of my proposal to make an order for equal shared parental responsibility. If it is not appropriate to make an order for equal time I must consider making an order for the child to spend substantial and significant time with his father.
I have touched on this matter earlier in these reasons. The evidence of the Family Consultant recommended against orders for equal time forthwith. The Family Consultant said that there should be a graduating process of time that the child would spend with his father and his family.
There are various reasons why equal time is not appropriate in cases. One is a poor parental relationship and the other is geographical proximity. There are other reasons however those two stand out in this case.
I have dealt with the parental relationship. It seems to me that the relationship has now improved to a level where the parties could manage equal shared time.
The consideration of geographical proximity is really dealt with by the father’s firm proposal to relocate his residence to a place in close proximity to the mother’s residence.
Another matter of concern is that the child has been traditionally principally cared for by his mother. He should be given an opportunity to gradually increase his dependence on each of his parents and be able to adapt to that change.
I consider that the best interests of the child dictate that there be a graduating increase in the time he spends with his father to one of equal shared time. This should occur in 2009 and should be contingent upon the parties living in reasonably close proximity to each other.
The Submissions
The Independent Children’s Lawyer submitted that the mother should be able to move to Townsville with the child. In support of that submission she said that both counsellors who have prepared reports in the case had recommended that proposal and that it would provide the mother with financial and emotional security. It was submitted that the mother should be permitted to get on with her life. In answer to the submission of the father that the case was really about putting Mr X’s career ahead of the best interests of the child the Independent Children’s Lawyer said that Mr X had given good reasons for not leaving the army or moving in the armed services to Sydney. She submitted that Mr X was an impressive witness, he was truthful and sincere. The Independent Children’s Lawyer submitted that if the father moved his family to Townsville in fact the child would see less of his father in those circumstances than circumstances where the father remained living in the Sydney area and exercising the time with the child as proposed by the mother. It was submitted that the evidence showed the conflict between the parties has lessened but it has not disappeared. The Independent Children’s Lawyer said the father’s cross examination of the mother indicated a level of lack of respect for the mother.
The Independent Children’s Lawyer submitted that the time proposed by the mother for the child to spend with his father in aggregate would not be much less than the current arrangement or the anticipated arrangement for the child to spend time between each parent had they remained living where they currently do.
It was submitted that if the mother was not permitted to move then the time that the child should spend with his father should increase to four nights per week but not become week about at this time. The arrangement for the child to spend time with his father would need to be flexible having regard to his father’s work commitments.
The mother’s submissions
The mother supported the submissions made by the Independent Children’s Lawyer. In relation to the cost of travel for the child should he be living in Townsville the mother said that she and Mr X will be able to afford to pay for all of the travel if that was absolutely necessary. However she submitted that in fairness the father should contribute something towards the travel costs. The mother submitted that if she remained living in the Newcastle area there will have to be a change to the current arrangement in respect of the time that the child spends with his father when the child starts school. This would of course depend on where the father was living. The mother asked for an order which would enable Mr X to do changeovers of time for the child with each parent if she was not available. There was no real opposition to such a proposal. In the meantime the mother submitted that the changeovers should continue to occur at a police station.
The mother said that if permitted to move to Townsville until such time as the child started school she would undertake responsibility to bring the child to Sydney each month to spend a four day block with his father.
The father’s submissions
The father said that his work commitment guaranteed him at least 120 days per year in his home base. Otherwise he had a requirement to move with the ship that he is attached to. The father said that evidence shows that the conflict between the parents has substantially improved. The parties have moved to using a communication book and the evidence supports a conclusion that their communication has improved dramatically. The father submitted that the move of the child to Townsville could potentially put at risk the relationship between the child and his sister and his father. This of course would depend on the availability of the father to spend time with the child and also whether the father moved his whole family to Townsville. The father said that he had considered all the relevant sections of the Family Law Act and could find nothing in there which required the court to consider that the mother is entitled to have a new life. He submitted that in relation to Mr X’s evidence it was clear that he had an open-ended enlistment. He could get out of the army on six months notice. He said he intends to sign for another ten years. He could get a posting to Sydney to work on the ships. He referred to the evidence of Mr X that if the mother couldn’t move to Townsville he would apply for a transfer to Sydney. (This is not completely the evidence of Mr X on this point as to which I have set out earlier in these reasons).
The father submitted that the reality is that if the child is permitted to move to Townsville with his mother then the father will move his family to Townsville as well. If the child is not permitted to relocate with his mother to Townsville then Mr X will move to Sydney. The father said that if the mother remains in the Lake Macquarie area he proposes to move there. He said he wants to be close to the school where the child attends. It is his intention that both his children would attend school together and have as close a relationship as possible. The father said it’s his intention to be able to participate in every aspect of the child’s life. He said he would not be able to do that if he was not living in close proximity to the child.
The father casts doubt on the continuation of cheap air tickets at $129 one way. He says this is a product of a price war between airlines in Australia and there is no guarantee that will continue. If the price of air tickets were to revert to that paid prior to the advent of the cheap airlines then it would be very difficult for each of the parties to fund the type and extent of time for the child to spend with his father as is proposed at the moment.
The father conceded that Mr X will be a good step father for the child. He said the move by his family to Townsville would place considerable pressures on the family and would dislocate them from their extended family. Not only would he and his current wife be very substantially removed from family support so will the mother be removed from her family support by living in Townsville.
The Independent Children’s Lawyer made an application for costs at the conclusion of the submissions. She seeks an order that the father pay $9,000 being his share of the costs of the Independent Children’s Lawyer. The mother will not be required to pay anything towards the Independent Children’s Lawyer fees as she had been the recipient of a legal aid grant.
The advantages and disadvantages of each party’s proposal
This is a somewhat difficult case to consider the pros and cons of the competing proposals as the father has made it clear that if the child is permitted to relocate to Townsville then he will relocate his family to Townsville as well. He also proposes to relocate to an area close to the mother’s residence if she is not permitted to relocate and remains in the Lake Macquarie area. The mother also has made it clear that she would not relocate to Townsville unless she was able to take the child with her. Such an approach really puts an end to the realistic assessment of the father’s competing residence application. Lest there be some argument elsewhere about the fete of the father’s application for residence of the child I have concluded it would not be in the child’s best interest to change his residence. No such outcome is recommended by a Family Consultant. The mother is in my opinion doing a good job of caring for the child at this time. The child is attached to his mother in a way which is different to his attachment to his father. He has an attachment of greater dependency upon his mother than his father. The Family Consultant recommends a graduating increase in the time the child spends with his father.
Doing the best I can I consider the following as the advantages and disadvantages of the parties other proposals.
Advantages of the mother’s proposal
1.If there is distance between the parties (geographical) the child may be protected from any ongoing parental conflict.
2.The ability of the mother to reside with Mr X will give her emotional and financial security. The mother and Mr X also propose to marry and have further children. With the mother living in Townsville with her partner Mr X it is anticipated that the quality of her parenting will be at its highest given her feeling of personal satisfaction.
The mother is anticipated to be able to obtain employment in Townsville to assist with the family finances.
In all probability the child would have his father’s new family living in Townsville with him and he would see a considerable amount of his sister and step mother.
Disadvantages of the mother’s proposal
1.With the child and his mother living in Townsville and the father relocated to Townsville the child is anticipated to in fact spend less time with his father than he would if the father remained living in the Sydney area whilst the mother was in Townsville.
2.The move to Townsville is in no means said to be a final move. The mother will follow the career of Mr X and if he is moved to another army location then she and the child will also move. Mr X could be moved next year.
3.The father and his wife will be substantially affected by having to move to Townsville. The move will mean that the father will only be able to spend about six weeks a year in Townsville with his family. Otherwise he will be either attached to his ship and at sea or alternatively living close to the base where his ship is located. This type of life would put considerable stress on the relationship between the father and his new wife. In addition Mrs Spain (the father’s new wife) initially opposed the move to Townsville as it would separate her by a large geographical distance from her family. She clearly has a close relationship with her family and she would be significantly affected by being separated from them by such a distance. There is still the possibility that a move of the father’s family to Townsville might cause irreparable damage to the relationship between the father and his wife.
4.The fact that the parties would be still living in close proximity to each other would mean that there was an increased prospect of the child being exposed to their conflict.
5.The relationship between the mother and Mr X has not had a real test under domestic conditions over a period of time. They have had little opportunity to share a house together and to get to know each other in the drudgery of day to day domestic life. The mother is appropriately cautious about this deficit in their relationship and has said she would not consider marriage until she had had an opportunity to test the relationship in such a way.
6.The father is likely to be discontented with the arrangements which impact so radically on his family.
7.If the father was unable to relocate his family to Townsville there is the possibility that the financial circumstances of both families may not be able to afford the amount of travel for the child as proposed by the mother.
Advantages of the father’s proposal
1.In the father’s proposal he has always been clear that he will live close to where the child lives when the child starts his schooling. It has been the father’s proposal to move to the Lake Macquarie area where the mother currently lives when the child starts school. He proposes to do this so that his two children might attend the same school and so that he might have the ability to be involved in the child’s schooling himself and in every aspect of his life.
2.The father’s proposal for the child, if the child lives in Townsville, is again that the father will relocate his family to Townsville.
3.In the event of the father relocating his family to Townsville this will have a very dislocating impact on the father’s family and on the father himself. The father would be required to continue in serving in the armed forces until February next year and during that time he will be attached to a ship. The ship is apparently predominantly based out of Sydney and so the shore time that the father will have will commence in Sydney.
4.The father’s primary position is that the mother should not be permitted to relocate the child to Townsville and in fact out of the area where she currently lives. As a fall back the father seeks an order for residence himself. The mother has made it clear that she will not relocate without the child and so the pressing on the father’s residence application has largely been unnecessary.
5.As between the mother and father it is clear that the child’s primary attachment is to his mother who has been his principal carer in his life so far. That is not to say that the child does not have a close attachment to his father but there is a discernible difference as referred to in the Family Reports which have been exhibited in this hearing. The advantages of the father’s proposal is that he would not have to relocate his family further than the Newcastle/Lake Macquarie area and therefore his wife will be able to maintain her close connections with her own family. Likewise the father will be able to continue his connection with his family. The position in relation to the mother is unchanged because her parents have now moved to southern Queensland and she would be no closer to them were she to move to Townsville rather than staying where she is now.
Disadvantages of the father’s proposal
1.The proximity of the parents will mean the probability increases of the child being exposed to further conflict between them.
2.The mother’s inability to progress her relationship with Mr X means that she is likely to be upset and feel isolated from him. If he is unable to transfer to Sydney or unable to arrange trips to see her regularly she is likely to be discontented with aspects of her life to say the least. There could be the potential for more severe repercussions to her health if she descended into depression.
3.The mother’s ability to be an effective and good mother to the child may be impaired in some way.
Conclusion
This is a case in which the child has the potential to be the loser in each possible outcome. If he moves to Townsville with his mother then his relationship with his father is likely to be different whether his father moves to Townsville with his family or not. If the father does move his family to Townsville then his wife is likely to feel isolated and unhappy about the distance she lives from her family. It needs to be recalled that when the case commenced before me Mrs Spain was adamant that she would not move to Townsville with the father and so that family unit was facing a potential crisis of its own. If the mother is prevented by Court Order from moving the child to Townsville then she is likely to be frustrated disappointed and discontented by that result as it precludes her developing her relationship with Mr X.
The Court is required to remember that the mother has the right of freedom of movement within Australia guaranteed by the Constitution. That right can only be overridden by the “best interests of the child” principles which apply in the consideration of relocation cases.
If the mother remains living in the Lake Macquarie area then the father will be able to relocate his family to that area in circumstances where his wife is likely to be more content because she will still be in close proximity to her family which resides in the Sydney area. The father will be able to see the child more frequently than if he was in Townsville. He will be able to participate more fully in the daily life of the child. There would be a greater ability to extend the time the child spends in his father’s care as he grows older. There seems to be a greater opportunity for the father to obtain employment in the civilian world if he choses to leave the Navy.
The father’s submissions were concise and clear. He said that the case was really about Mr X’s career. He submitted that the mother has no real desire to live in Townsville as a geographical location. Her desire is to live with Mr X. Even if she did move to Townsville there is no guarantee as to the availability for Mr X to remain living in that place well into the future. He may be deployed overseas and he may be posted elsewhere in Australia. This could occur as early as 2008. Mr X conceded that he could apply for a transfer to the Sydney area however that would mean he would be attached to a ship and therefore required to attend sea duty. He says that if the mother is not able to move to Townsville then he would speak to his superiors about the situation and enlist their help in moving him to Sydney.
It seems that the mother would be just as happy to be living with Mr X in the Sydney area as she would be living with him in Townsville.
The father’s submission that this case is all about the career opportunity of Mr X has considerable merit. It is hard to mount a case to the contrary. In deed in the whole case Mr X is the only person who would not be disrupted by a move of the mother and the child to Townsville.
I am concerned about Mr X’s commitment to the mother and to the child. As I said earlier I was very impressed with Mr X as a witness and a person. I agree with the father that Mr X should make an excellent step father for the child. His personality as best I could judge it seemed much more relaxed and accommodating than the strident and potentially confronting personality of the father. It seemed to me, as best one can judge these things, that the mother and Mr X had complimenting personalities and that they would be likely to create a quiet and relaxing home for the child. Having set out all those matters I was concerned that Mr X did not appear to understand or perhaps appreciate the disruption he was asking the mother and the child to be part of. It must have been clear to him that the way to solve this problem was for him to seek transfer to Sydney. Yet he appeared reasonably resolute to prioritise his army career to that of the needs of both the mother and the child. He does seem to be committed to trying to move to Sydney if the mother cannot move to Townsville or if the child is unhappy about being so far from his father or not being able to see his father as frequently as he is used to. However, with respect to him, once the mother has moved to Townsville the damage will have been done and two families will be significantly disrupted and potentially damaged in terms of their developing relationships.
Again it is worthwhile recalling the evidence of Mr X when I asked him what he would do if he found after six months of the child living in Townsville that he was missing his father to such an extent that he was clearly unhappy. He said that in those circumstances he would move the family back to the Sydney area and if necessary commute between Townsville and Sydney. He would apply for a transfer.
In the preparation of this judgement I have changed my mind about the best result for the child on four occasions. I have agonised about the best orders to make in the case. The parties themselves acknowledged in submissions how difficult a decision it would be for me. In the end I have concluded that the orders which are in the best interests of the child are those that see him remaining living with his mother in the Lake Macquarie/Newcastle area. My weighing of the advantages and disadvantages in each proposal has fallen significantly for me in favour of the child not moving to Townsville.
In reaching my decision I have been struck by the extraordinary commitment of the father to his continued parenting of the child. I should also play tribute to the mother who I think is an excellent mother for the child. She has at all times before me shown an acceptance of the possibility of being restrained from moving to Townsville and is prepared for that result notwithstanding the personal disappointment which it will bring to her. She does however appear to me to understand the best interests requirements and is I am satisfied dedicated to giving the child as good and wholesome a childhood as she can. She has worked hard to change the nature of the relationship she has with the father for the benefit of the child. This was done in the face of some very confronting and strident behaviour by the father. I am satisfied that the father’s behaviour towards the mother contributed very significantly to the behaviour of the mother in withholding contact between the child and his father in the past, a matter I commented upon in the hearing and in these reasons.
Independent Children’s Lawyers Legal Costs
At the conclusion of the hearing the Independent Children’s Lawyer made an application for the father to pay legal costs. The claim was for $9,000 representing one half of the costs incurred. Having seen the involvement of the Independent Children's Lawyer I accept that the quantum of the claim is appropriate.
I have heard evidence about the financial circumstances of the parties. If I was to order the father to make a payment of legal costs I know that he would have to borrow the funds.
Each of the parties have represented themselves in the hearing. The mother has a grant of legal aid to cover her share of the costs of the Independent Children's Lawyer.
Taking into account all of the relevant considerations under section 117 of the Act I would not exercise my discretion and make an order for costs against the father.
The Orders
I propose to make orders for the child to spend 4 nights per fortnight in one block with his father and/or his new family until the child starts school. In the event of the father relocating to an area within 45 minutes drive of the mother’s residence this amount of time should increase by one overnight period in the off week.
Once the child starts school there will have to be a change in the care arrangements unless the father lives close to the mother’s residence.
There should be school holiday block time for the child and his father.
The child should spend time with each of his parents on Christmas Day and also on his birthday. The child should also be with his father for R’s birthday and with his mother for the birthday of any of his siblings born to his mother.
An order should be made restraining the parties from using corporal punishment with the child.
Orders should be made to restrict conflict between the parties. These will include preventing the parties enrolling the child in extra curricular activities not agreed to or supported by the other. Each parent should participate in the child’s school life.
The child should be able to enjoy frequent telephone contact with each parent.
Changeovers of the child between one parent and another should move away from a Police Station sooner rather than later. It paints a very poor picture for the child of his parents’ ability to treat each other civilly as human beings let alone parents who love him dearly. On the other hand it is entirely unacceptable that the mother should feel endangered when in the presence of the father without police protection.
I propose to impose orders which neither of the parties or the Independent Children's Lawyer has sought. I do so because I see the orders as being in the child’s best interests and as being orders where no legitimate opposition could be established. They include orders preventing the use of corporal punishment.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 23 August 2007
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Family Law
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