Spencer and Davidson
[2011] FMCAfam 529
•25 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPENCER & DAVIDSON | [2011] FMCAfam 529 |
| FAMILY LAW – Parenting – relocation – mother in [B] – father on Gold Coast. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA |
| Carlyle & Muldoon [2011] FamCA 51 Clark & Ryan (1960) 103 CLR 486 Collu v Rinaldo [2010] FamCAFC 53 (25 March 2010) MRR & GR [2010] HCA 4 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 |
| Applicant: | MR SPENCER |
| Respondent: | MS DAVIDSON |
| File Number: | BRC 5631 of 2010 |
| Judgment of: | Howard FM |
| Hearing dates: | 21 & 22 February & 7, 8 & 9 March 2011 |
| Date of Last Submission: | 9 March 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 25 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | DK Law |
| Counsel for the Respondent: | Mr Sullivan SC |
| Solicitors for the Respondent: | Small Myers Hughes |
ORDERS
The parties have 21 days to submit draft orders to reflect these Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Spencer & Davidson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 5631 of 2010
| MR SPENCER |
Applicant
And
| MS DAVIDSON |
Respondent
REASONS FOR JUDGMENT
Background
The applicant father, Mr Spencer, was born [in] 1970. The respondent mother, Ms Davidson, was born [in] 1980.
The parties commenced their relationship on 24 March 2005. The parties commenced cohabitation in approximately August 2005. The parties were married [in] 2008. The parties separated on a final basis on 4 May 2010.
The parties have two children. [X] was born [in] 2007. [Y] was born [in] 2010.
The parties cannot agree on parenting orders. The mother wants to live with the children in [B], New South Wales. The father wants the children to return to live primarily on the Gold Coast, Queensland.
The father has one child from a previous relationship. That child is [Z]. [Z] is nine years of age. [Z] was born [in] 2001. [Z] lives with her mother (Ms L) and her stepfather on the Gold Coast. [Z] spends time with the father (Mr Spencer).
The parties were separated under the same roof for a period of time. The mother left the former matrimonial home on 19 May 2010.
At or around that time, the mother and the two children left the Gold Coast and went to [T], New South Wales, in order to stay with the maternal grandfather. The father has stated in his affidavit filed 25 January 2011, inter alia:
“7. It was agreed at that time that it would be appropriate for her and the children to travel to [T] to be with her father for a short holiday whilst we sorted everything out. It was also agreed that such travel would be for a short time only and that she would return a short time later so that she would be living on the Gold Coast. During counselling with Relationship’s Australia we signed a parenting plan which provided for
Ms Davidson to return to Queensland as agreed between the parties. Annexed hereto and marked PS1 is a copy of that part of the plan.”The mother says that she was, effectively, “forced into” agreeing to a parenting plan in those terms because that was the only option that she had in order, “to be able to leave the matrimonial home”. I note the mother’s evidence at page 123 of the transcript (22 February 2011) from lines 20 to 30. I accept the mother’s evidence as stated at that part of the transcript. Further, I note the following evidence from the mother contained in her affidavit filed 24 January 2011. The mother states in relation to this issue, inter alia:
“14. While the Plan stated that the children and I would ultimately move back to Queensland, the timeframe of any return was to be the subject of further discussion and agreement between Mr Spencer and I. It was never agreed, as Mr Spencer alleges, that my moving to [T] was to be a “holiday”.
15. On the day we left to go to [T] Mr Spencer assisted me with loading the children’s and my belongings in the car and so was aware that I had packed the following:
(a) [X]’s timber junior bed and mattress together with all of his sheets, blankets, quilts and cot bumpers;
(b) [Y]’s timber cot and mattress plus all of her sheets, blankets, quilts and cot bumpers;
(c) all of [X]’s clothes and shoes;
(d) all of [Y]’s clothes including those clothes that would fit her up to size 2;
(e) half of my clothes (being warmer items as [T] is cold in Autumn);
(f) a timber dolls house and a rocking horse;
(g) the equivalent of 6 boxes of the children’s books, toys, art and craft materials, and my [omitted] text books;
(h) a box of personal effects such as birth certificates, jewellery, crystal candle holders, a crystal photo frame with 4 generations photo, and a silver photo frame with a memorial card of my brother;
(i) 2 expanding folders of personal documentation.
Annexed hereto and marked “PJD2” is a true copy of an email from Mr Spencer wherein he confirms he assisted me with loading items onto the back of my father’s vehicle.
16. Such was the volume of the items referred to above, they filled up my Honda CRV and my father’s dual cab ute.
17. My intention was to get away from the Gold Coast and the circumstances confronting me at the time. I had no idea how long I would be living in [T] when I went. I certainly never agreed with Mr Spencer that I would only be going for a couple of weeks. We never agreed in counselling that I was going to stay in [T] for just a couple of weeks. The Parenting Plan truly reflects the open nature of what was agreed between us with respect to my intended length of stay in [T].
18. From my perspective, signing the Plan was a means to get away from Mr Spencer, and I signed it despite Mr Spencer dictating its terms to me. For example, Mr Spencer told me I could only go to [T] and nowhere else, that I was not allowed to take the children to my mother’s house, and that my returning to Queensland had to be included in the document. When I said to Mr Spencer that I did not want these terms included in the Plan he would storm off saying such things as “this isn’t going to work”, “I’m not going to sign it unless Queensland is in there” and “you can only go to [T] otherwise I’ll go to the Court house and get an order that makes you stay on the Gold Coast.” I felt at least if I could commence living with my father in [T], it would be a step in the right direction. In this regard:
(a) I had asked Mr Spencer to leave our rented accommodation in [omitted] a number of times in the weeks prior to my physically leaving, all of which he refused. At my requests to leave Mr Spencer would reply by saying such things as “It’s my home, I don’t have to go anywhere”, “It’s my name on the lease so I’ve got a right to be here” and that he was “legally bound” to provide a home for [Z]. This is despite the fact that [Y] was only 4 weeks old at the time and [X] only 3 years of age;
…
(c) without anywhere else to go, and no other means to support myself with two dependant infant children, I felt that I either had to sign the Parenting Plan stating I could go but perhaps have to return to Queensland, or stay living in our house with Mr Spencer. As to living in the house with Mr Spencer, initially after we separated I slept on the couch but after 8 days Mr Spencer offered for me to sleep in the master bedroom, which I did. However, Mr Spencer would then come into the bedroom at all hours of the day and night and would hover over me while I was breastfeeding [Y], sometimes kissing her on the head as she was being fed which I found to be an invasion of my personal space and from which I had no ability to retreat.
19. My goal in moving to my father’s residence in [T] was threefold, namely:
(a) I ceased working in March 2010 so that I could care for [Y] full time. Once Mr Spencer and I had separated, I did not wish to continue living with Mr Spencer but wished to continue to care for the children full time. With [Y] being so young, I was not in a position to go back to work and pay rent in alternate accommodation;
(b) I was feeling very fatigued at the time as I had been averaging only 1-2 hours sleep per night;
(c) being on call twenty-four hours a day to care for (and breastfeed) [Y], and also ensure that [X]’s routine was met.”
The mother has included a copy of the parenting plan as annexure PJD1 to her affidavit filed 24 January 2011. The mother’s copy of the parenting plan is a more complete copy than the annexure included in the father’s affidavit. The parenting plan itself relevantly states – in handwriting – on the fourth page (or sheet) of the annexure:
“OUR DECISIONS ABOUT OUR LIVING ARRANGEMENTS
Children to remain with Ms Davidson at “[omitted]”, [T] (Mr D’s residence).
[X] to be able to stay over with [Mr Spencer] at agreed times.
Children to reside in Queensland within a timeframe as agreed between parents (within a reasonable driving distance).”
I accept the mother’s evidence as quoted above from paragraphs 14 to 19 of her affidavit filed 24 January 2011.
In my view, the mother had very little alternative at the time of separation. She was the primary carer for a three year old ([X]) and a one month old ([Y]). The mother was tired and she had no accommodation readily available to her on the Gold Coast.
I note that the mother states further in her affidavit, inter alia:
“23. The children and I lived with my father and his partner in [T] from 19 May 2010 until 26 June 2010 at which time I moved with the children to [B] (in NSW) where we have since remained.
24. I left [T] as my father (who is nearly 60 years of age) could only provide limited assistance to the children and once he advised me that he intended on selling the [T] property. I decided it would be more advantageous for the children and I to live in [B] where I have a large network of family support and could provide a stable living environment for the children.
25. At paragraph 2i of Mr Spencer's Affidavit filed 27 July 2010 he accuses me of moving to [B] after my Solicitor was served with his Initiating Application on 24 June 2010 such that “at that time [I] would have been aware that [he] opposed any relocation of the children.” This is not correct.
26. I had already made arrangements to move to [B] before I was aware of Mr Spencer’s intended Application. Mr Spencer did not tell me he was intending to apply to this Court. Only after Mr Spencer’s Solicitors had filed his Application did they tell my Solicitors that they had filed one. Mr Spencer’s Solicitor did not indicate to my Solicitors before service exactly what Orders Mr Spencer was seeking. I was told he had filed an Application before I completed my move to [B] but I was not told that he sought an Order that I return with the children to live on the Gold Coast and I only became aware of this when I was provided with a copy of Mr Spencer’s Application and supporting documents on 29 June 2010 (after I had already moved to [B]) when my Solicitor emailed the documents to me. Annexed hereto and marked “PJD3” is a true copy of the email from my Solicitor attaching the said documents.”
I accept this evidence.
The maternal grandfather is currently trying to sell his property at [T] and intends moving further south in New South Wales, closer to the town of [B]. The maternal grandmother and various other members of the maternal family live in the town of [B].
Best interests of the children
The Court must, of course, decide any parenting case after there has been a consideration of the best interests of the children. The best interests of the children are referred to as being the “paramount consideration” in the making of a parenting order. In this regard, I note the terms of section 60CA of the Family Law Act1975 (hereinafter “the Act”).
The legislation then sets out, in section 60CC, how it is that a Court is to determine what is in a child’s best interests. The primary considerations are set out in section 60CC(2) of the Act. That section states:
“Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
The Court has had the benefit of a family report from Mr J. There is no doubt that both of these parents have much to offer the two children. I find that there will be benefits to both children in having a meaningful relationship with both parents.
In a recent decision of the Family Court of Australia, O’Reilly J in Carlyle & Muldoon [2011] FamCA, her Honour stated at paragraphs 71 and 72:
“71. The concept of “meaningful relationship” was examined by the Full Court in McCall & Clark (2009) FLC 93-405 at [108]-[122]. At [119] the Full Court conclude in favour of “the prospective approach”, accepting at [121] as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski & Albright [2007] 37 FamLR 518 and Bennett J in G & C [2006] FamCA 994. Thus, the Full Court concluded at [122] that the legislation requires a court to focus on the benefit to a child of a meaningful or significant relationship.
72. Section 60B of the Act provides that the objects of Part VII are to ensure the best interests of children are met by (amongst other things) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests and protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Plainly, one of these objects may impact upon the other.”
Looking prospectively it is clear on the evidence of this case that there will be a benefit to both children in having a meaningful relationship with both parents. That much is clear from the evidence of Mr J. Given the young age of the children, the best outcome for the children would be achieved if both parents were living in the same city or town. This much is clear from the evidence of Mr J.
In this particular case, there is no evidence before the Court to suggest that the children in any way need protection from physical or psychological harm. An issue has arisen in the case whereby the mother alleges that the father engaged in controlling and aggressive behaviour towards her – both during and after the relationship. I will refer to that issue later in these Reasons for Judgment. There is no evidence that the children have in any way been exposed to any form of physical or psychological harm.
Additional considerations for the Court in determining what is in a child’s best interests are set out in the legislation in section 60CC(3).
Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to weight it should give to the child’s views.
The children are still very young. [X] is four years of age. [Y] is one year old. The children are so young that section 60CC(3)(a) is not relevant in this case.
Section 60CC(3)(b) – The nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
Mr J, psychologist, prepared a family report in this case dated
28 September 2010. It was released to the parties by the Court on
4 October 2010. Mr J gave evidence at the trial. He confirmed that the report contains his opinions. The Court accepted the report into evidence, but inadvertently it was not given an exhibit number. It will be marked as exhibit 10. Mr J was cross-examined by counsel for both the mother and the father.
Mr J observed the children with the mother and the maternal grandmother. Mr J noted at paragraph 7.2 of his report:
“Ms Davidson was relaxed in her interactions with the children. She spoke appropriately and respectfully to them at all times. [Y] was content to be nursed by her mother and [X] was physically comfortable in both his mother’s and grandmother’s presence.”
Mr J noted the interaction between the children and the father, along with [Z], and with Ms L ([Z]’s mother, who accompanied the father to the interview session).
I note that Mr J stated, inter alia:
“7.10 In the waiting room, Mr Spencer was very attentive to [X]. He kept a close eye on him and often gently instructed him on how to behave appropriately. He offered him positive encouragement; for example, “Good boy… good listening”. [X] was very social in the waiting area but he obeyed his father’s instructions. Mr Spencer was patient with his son, despite having to constantly repeat himself.
7.11 [X] came happily to play with his father and was excited to show him the toys.
7.12 Mr Spencer got down on the floor with [X] and held [Y]. [Y] did not fuss at all when passed to her father by her mother.
…
7.15 [Z] was happy to assist [X] with his play and structured a game with him with the cash register. [Z] operated the register and [X] bought dinosaurs.
7.16 When [Y] began to fuss a little, [Z] hugged and kissed her.
7.17 [Z] appeared to enjoy close and positive relationships with both [X] and [Y].
7.18 When [Z] left the play area, [X] attempted to follow her out.
7.19 [Z]’s mother, Ms L, then briefly joined the play session. She spoke appropriately to [X] and [Y] at all times.
7.20 Mr Spencer was relaxed in his interactions with his three children. He varied his intonation and used an engaging voice. He spoke appropriately and respectfully to the children. All three children appeared physically comfortable with him.”
From the observations made by Mr J, I find that [X] enjoys a close and loving relationship with the mother, the maternal grandmother, the father and [Z]. There was also appropriate interaction between [X] and Ms L.
So far as [Y] is concerned – obviously she is still very young – but from the observations made by Mr J it is apparent that [Y] also has the benefit of a loving relationship with the mother, the maternal grandmother, the father and [Z].
Section 60CC(3)(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
It is apparent from the observations noted above that the children (and in particular [X], having regard to the fact that he is the older child) have no difficulty moving from one parent to the other. The children moved with ease from the mother to the father. To my mind the inference that should be drawn by the Court in relation to those observations by Mr J is that both parents must be encouraging the relationship between the children and the other parent.
Mr Linklater-Steele of Counsel (appearing on behalf of the father) has submitted to the Court that the mother has a negative view of the father, and has also submitted that the mother has sought to minimise the role and ability of the father. He referred to paragraph 4.8 of Mr J’s report. That paragraph states:
“4.8 She stated that she was [X]’s primary carer and that she took responsibility for reading to him, playing with him and bathing him – “[Mr Spencer] helped out now and again but I took responsibility for [X]…a lot of the time [Mr Spencer] sat on his computer”. She acknowledged that the father “occasionally” played with [X] but said that his favourite thing to do was to “watch him play…he does not interact with them…it’s for show…if he played with them, I instigated it”.”
The father is concerned because the mother has used the words “It’s for show” when apparently referring to the father playing/interacting with the children. Family report interviews were conducted on 8 September 2010. As at that date, [Y] was only five months old. [X] was three years and six months of age. Both children had been living full-time with the mother away from the Gold Coast from the date of final separation – 19 May 2010. There could not have been any time for any meaningful interaction between the father and [Y]. The mother’s views, therefore, it seems, must relate to the father interacting with [X]. Her comments have to be seen in the proper context.
It is the father’s evidence (which I accept) as stated in paragraph 5 of his affidavit filed 25 January 2011 that the relationship between the mother and the father began to deteriorate after the birth of [X] and was heightened by [Y]’s birth. If the parents’ relationship unfortunately began to deteriorate after the birth of [X], it is perhaps not surprising that the mother’s perception of the father was not as positive as it otherwise might have been.
The father’s view also is that when he visited the children, when they were staying in [T], that he should have been able to see the children on one particular weekend when he made a request to see them on the Sunday as well as the Saturday. The mother says that the father had decided he would go back to the Gold Coast and did not make a request to see the children on the Sunday.
There is also a dispute between the parties concerning some occasions in Sydney (when the interim orders were operating). The import of the father’s contention is that there were occasions when he was available to see the children for longer periods of time than was strictly provided for in the orders. The father says that the mother made excuses (such as an excuse that the child [Y] was asleep) and thus thwarted the efforts of the father to spend more time with the children in Sydney.
In relation to those occasions which have occurred between the time of final separation and the present time – when the father says that he wanted to spend more time with the children but he was prevented from doing so by the mother – I note that both parties are adamant that their view of what occurred is the correct view.
I find that the mother has not thwarted the father or attempted to deny him access to the children. The mother complied with the interim orders by travelling, as required, with the two young children from [B] to Sydney in order to facilitate the father’s time with the children. There may have been instances when the father wanted to spend a bit more time with the children in Sydney. Having observed the mother in the witness box, I conclude that, if the mother did decide that the extra time was not suitable, that she did so keeping in mind first and foremost the needs of the children in relation to sleeping, feeding, etcetera.
Frankly, it could not have been an easy task for the mother to take the two young children from [B] to Sydney in accordance with the interim orders. I note that the mother did obtain assistance from the maternal grandmother and, on occasions, from other family members.
I return to the matters I referred to at the beginning of my discussion concerning this subsection. [X] is happy, relaxed and comfortable transitioning from the mother to the father (indeed, both ways). Furthermore, [X] is also happy, relaxed and comfortable when in the presence of the father. To my mind, this shows that [X] wants to spend time with the father and enjoys spending time with the father.
I note the following paragraphs of Mr J’s report:
“10.11 I am very concerned that the mother does not prioritise the children’s relationships with the father. Her proposal provides for the father to spend only a relatively small amount of time with the children.
…
10.16 I felt that Ms Davidson’s comment to me that she did not believe that it was reasonable to have to relocate to the Gold Coast ‘for the sake of one person and an older half-sister’ was a very telling response. The description of Mr Spencer as ‘one person’ does not reflect strong value in the father’s role as the children’s parent. At the same time, her comment with respect to [Z] shows little understanding of the value that [Z] places on her relationships with her younger siblings.
…
10.24 Certainly, Mr Spencer is having difficulties adjusting to the finality of the separation. He would prefer to engage in counselling with Ms Davidson and try to reconcile.
Ms Davidson, at this stage, seems to have moved beyond that point. Mr Spencer has also been seeing a psychologist under a mental health plan. No doubt, one could predict that his emotional well-being may deteriorate if the mother’s proposal is accepted.10.25 While the father spoke in glowing terms of Ms Davidson as a mother, I heard little praise of the father from
Ms Davidson. I consider that the father would be far more likely to facilitate the children’s relationships with the mother than Ms Davidson would facilitate their relationships with him.”My view is that the mother must be encouraging the children (at this stage, particularly [X]) – concerning [X]’s relationship with the father. On the balance of probabilities, I find that the mother is willing and able to facilitate and encourage a close and continuing relationship between the children and the father. If there is any concern by the report writer about the mother not prioritising the children’s relationships or time with the father, this can be addressed by putting in place specific parenting orders.
The mother’s comments also have to be viewed in light of the fact that the mother also takes the view that the father was, both during the relationship and post-separation, “controlling and aggressive”. I note paragraph 22 of the mother’s affidavit filed 24 January 2011. I will refer to that issue later in these Reasons for Judgment.
Note that the father spoke in glowing terms of Ms Davidson as a mother. To my mind, that is a clear and sensible concession on the part of the father that Ms Davidson performed her role as a mother admirably. I also note that the father appears not necessarily to have moved on from his relationship with the mother. I note from paragraph 10.24 of Mr J’s report that the father (at that stage) wanted to engage in counselling with a view to reconciling with the mother.
I note the mother’s evidence included between paragraphs numbered 62 and 64 of her Affidavit filed 24 January 2011. In those paragraphs, the mother has stated:
“62. Both during our relationship and since separation I have not done anything to undermine Mr Spencer’s relationship with the children. I do all I can to encourage that relationship, and would like that to be mutual.
…
64. Both prior to and subsequent to Mr J writing his report I have actively encouraged the children’s relationship with
Mr Spencer, as detailed below:(a) I have repeatedly offered and/or agreed for Mr Spencer to spend extra time with the children over and above what is in the current Orders, including [X] spending an extra week with Mr Spencer during the recent Christmas holidays;
(b) since August 2010 I have regularly sent Mr Spencer MMS photographs of the children, sending a dozen photos in December alone (I can produce a copy of my phone account which shows the MMS’s being sent if requested to do so);
(c) I originally emailed Mr Spencer photographs of the children, copies of drawings which [X] has done and information such as [Y]’s health check information however, I stopped doing this initially because I did not have internet reception when I was living at my grandmother’s house but subsequently, because
Mr Spencer accused me of only sending these things because of the family report;(d) I actively encouraged [X] to do some drawings for
Mr Spencer for Father’s Day which we gave to
Mr Spencer together with a Father’s Day card;(e) at Christmas time I gave Mr Spencer a photograph of the children taken with Father Christmas together with an A3 size placement which I assisted [X] to make. Sadly,
Mr Spencer was dismissive of the photo and held the placemat gingerly as if it was contaminated;(f) during the nightly phone calls I update Mr Spencer regarding the children’s wellbeing, the activities they have been doing that day and any other topics of interest;
(g) I have agreed for Mr Spencer to speak to [X] on the phone over and above what is in the Orders despite
Mr Spencer not offering me the same courtesy;(h) whenever the children reach any milestones such as getting teeth, doing first and/or detailed drawings, I send Mr Spencer a text message letting him know of the particular milestone.”
I accept this evidence on behalf of the mother.
I do not accept the evidence of Mr J that, “the father would be far more likely to facilitate the children’s relationships with the mother than Ms Davidson would facilitate their relationships with him”. As noted, I have accepted the evidence of the mother from paragraphs 62 and 64 of her trial Affidavit. Furthermore, I note that the mother complied with the interim orders – in circumstances where it could not have been easy to facilitate the travelling and accommodation of two very young children from [B] to Sydney for the father’s time to be spent with the children. To my mind, this does show the mother’s commitment to facilitating the children spending time with the father.
Having noted the good relationship between the two children and the mother, and having regard to my impression of the father generally from his evidence given in the witness box, I find that he is willing and able to facilitate and encourage a close and continuing relationship between the children and the mother.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom or she has been living.
If the parents were living in the same city or town, then there would be no particular impact upon the ability of the children to form appropriate attachments and ongoing relationships with both parents. The difficulty, of course, in this case comes about because the mother wants to live with the children in the town of [B], New South Wales, whereas the father is well-settled on the Gold Coast, Queensland.
It is apparent from the evidence of Mr J that it will be difficult for the father to establish an appropriate attachment and relationship with [Y] through regular weekly contact if the children are living with the mother in [B]. It will be possible if all parties are living on the Gold Coast or otherwise within “reasonably close geographical proximity with one another” (to use Mr J’s terminology).
Section 60CC(3)(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
If the parents are living in the same geographical location there will be minimal difficulties or expenses to enable the children to spend time with both parents.
Since the making of the interim orders on 28 July 2010 the mother has been living primarily in [B] and the father has been living on the Gold Coast. There has been ongoing contact. Obviously, this poses great practical difficulties and expenses for the parties.
If the mother remains living permanently in [B] and the father remains living on the Gold Coast, then there will be, of course, ongoing difficulties and expenses incurred by the parties in making arrangements for the children to spend time with the non-residential parent.
The general thrust of the evidence of Mr J is that this will impact upon the ability of the children to maintain personal relations and other direct contact with the father on a regular basis.
Section 60CC(3)(f) – The capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
My view is that both the mother and the father have the capacity in this case to provide for the needs of the children, including their emotional and intellectual needs. Having regard to the very young age of [Y], it must be said at this stage that it is the mother who primarily has the capacity to provide for [Y]’s day-to-day needs. I note that [Y] continues to be breastfed. My findings in this regard accord with the opinion of Mr J.
Section 60CC(3)(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.
There are no particular findings in this case needed under this particular subsection – except to note that the children are, of course, very young; and in that regard I refer back to my comments made in my consideration of s.60CC(3)(d).
Section 60CC(3)(h) is not relevant in this case.
Section 60CC(3)(i) – The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I note paragraphs 6–11 in the mother’s affidavit filed 24 January 2011. In those paragraphs, the mother has stated:
“6. Since his birth, I have been [X]’s primary caregiver undertaking such things as the following:
(a) feeding him ([X] was breastfed for 12 months);
(b) changing his nappies;
(c) bathing and clothing him;
(d) attending all specialist appointments;
(e) monitoring his immunisations;
(f) waking and assisting him to wake up;
(g) feeding him breakfast;
(h) getting him dressed for Kindy;
(i) brushing his teeth, brushing his hair and attending to his grooming;
(j) dropping him off at Kindy and picking him up (usually with Mr Spencer as we only had one motor vehicle);
(k) preparing his dinner and feeding him (although he can now feed himself);
(l) playing with him and reading him stories;
(m) dressing him for bed;
(n) putting him to bed.
7. I have also been responsible for making the majority of decisions regarding [X]’s care, for example choosing a kindergarten for [X] to attend, organising his medical appointments and medication, organising his social activities, clothing, bedroom items, toys and presents etc.
8. Even when I returned to work 12 months after [X] was born I continued to attend to nearly all of his day to day care.
9. As Mr Spencer was working fulltime during our relationships, his parental role with [X] was limited and he rarely participated in the day to day tasks although he did make [X]’s lunch most days and would take him to swimming lessons on Saturday mornings.
10. My care of [Y] has been very similar to that of [X], my attending to her day to day needs including breastfeeding her, changing her, bathing and clothing her, attending to all doctor’s appointments, monitoring her immunisations and generally looking after her welfare.
11. I acknowledge that as [Y] was only 3 weeks old when Mr Spencer and I separated, Mr Spencer has not been able to actively participate in caring for [Y]’s day to day needs.”
I accept this evidence of the mother.
I note that the father has stated, in paragraph 4 of his affidavit filed 25 January 2011:
“4. During the course of the relationship Ms Davidson and I shared the day to day care of [X]. Whilst she was at home during the day I would assist in the duties both in the morning prior to going to work and in the evenings after work. I would help feed and bath [X]. I would also attend to making meals for us both and assist in maintaining the home.”
I do not accept that the day-to-day care of [X] was shared between the mother and the father, as asserted by the father. I do accept that the father was involved to some extent. This finding is not meant as a criticism of the father – he was, after all, working full-time, and it is apparent that the parties had an agreement or understanding that the mother would stay at home and provide the primary care for the children whilst the father carried out the “breadwinning” role. I do note that the mother did return to work 12 months after [X] was born. I also note her evidence and accept her evidence to the effect that she continued to attend to nearly all of [X]’s day-to-day care even after returning to work.
Whilst it is the case that, when the parties were together, it was demonstrably the case that the mother was the primary carer for the children, since separation, the father has had the opportunity to be the sole carer (on those occasions permitted within the terms of the interim order) for [X]. It is apparent that the father has fully accepted the responsibilities of parenthood, and he has demonstrated this by his actions. The father has an excellent and loving attitude towards both of the children.
The mother has always fully accepted the responsibilities of parenthood and has demonstrated this by her actions. The mother has a loving and appropriate attitude towards the children (as does the father).
There is no need, in this case, for any particular findings to be made concerning s.60CC(3)(j) and (k).
Section 60CC(3)(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
The children in this case are very young. I do not consider that there is any particular order that it will be preferable to make that will be least likely to lead to the institution of further proceedings concerning the children in this matter.
Section 60CC(3)(m) – Any other fact or circumstance that the Court thinks is relevant
Financial matters
I note from the mother’s affidavit filed 24 January 2011 that she has stated, between paragraphs 27 and 37, as follows:
“27. I am seeking the Court’s permission for the children and I to remain living in [B] so that I can continue to provide the children with their day to day care in accommodation that I can afford in a supportive environment.
28. I am presently the full time parent of both [X] and [Y] such that my earning capacity is negligible and I am unsure how I could secure accommodation on the Gold Coast.
29. The children and I are currently living in a large 5 bedroom house at [address omitted], [B] which we moved into on 29 October 2010. My mother also lives with us having moved in on 8 January 2011.
30. The home has 5 bedrooms which enables the 4 of us to have our own bedrooms. Both [X] and [Y] have their own playrooms which I have equipped with their toys and play things. The property has a large fenced yard for the children to play in and is so big that [X] refers to it as “the park”.
31. The costs for a similar although smaller rental property on the Gold Coast would be $450.00 to $460.00 per week. Annexed hereto and marked “PJD4” are rental printouts from Realestate.com showing the costs of similar properties on the Gold Coast.
32. My mother lives in a separate section of the house which affords us space and privacy while at the same time provides me with security and company when needed.
33. I am presently financially dependent upon Government pensions (namely sole parenting payment, family tax benefit parts A and B and rent assistance) which, while paid fortnightly, total $600.43 per week. Mr Spencer also pays child support of $37.73 per week (paid fortnightly). Thus my total income is $638.16 per week.
34. My estimated weekly expenses are as follows:
(a) rent $205.00 per week;
(b) groceries (including the children’s necessities like nappies) $100.00 per week;
(c) car insurance/registration/maintenance and petrol expenses $110.00 per week;
(d) accommodation in Sydney $55.00 per week (based on 2 out of 4 weekends);
(e) home insurance $10.00 per week;
(f) health and health related expenses $35.00 per week;
(g) electricity $12.00 per week;
(h) phone and internet expenses $20.00 per week;
(i) clothes and shoes for the children $30.00 per week;
(j) toys and books for the children $20.00 per week;
(k) clothing and shoes for me $25.00 per week;
(l) children’s activities (e.g. swimming lessons) $15.00 per week;
(m) entertainment/hobbies/sport $20.00 per week;
(n) child care expenses $50.00 per week (expected estimated cost);
(o) books and magazines $6.00 per week;
(p) gifts for the children $5.00 per week;
(q) hairdressing for myself and the children $15.00 per week;
Total weekly expenses $733.00
35. As my expenses are greater than my income my mother and extended family financially assist me with incidental costs and by contributing to the costs of my travelling to and staying in Sydney.
36. If I were to live on the Gold Coast I estimate my expected weekly expenses for myself and the children will be as follows:
(a) rent $450.00 (based on my renting a property similar to the former matrimonial home. Annexed hereto and marked “PJD5” are true copies of printouts from realestate.com showing the rental costs for properties similar to the former matrimonial home.)
(b) groceries (including nappies) $150.00 per week;
(c) car insurance/registration/maintenance and petrol expenses $100.00 per week;
(d) home insurance $20.00 per week;
(e) health and health related expenses $35.00 per week;
(f) electricity $25.00 per week;
(g) phone and internet expenses $40.00 per week;
(h) clothes and shoes for the children $30.00 per week;
(i) toy and books for the children $20.00 per week;
(j) clothing and shoes for me $25.00 per week;
(k) children’s activities (e.g. swimming lessons) $15.00 per week
(l) entertainment/hobbies/sport $20.00 per week;
(m) holidays $20.00 per week (so that I can visit my family in [B] twice each year);
(n) child care expenses $50.00 per week (expected estimated cost);
(o) books and magazines $6.00 per week;
(p) gifts for the children $5.00 per week;
(q) hairdressing for myself and the children $15.00 per week;
Total estimate of expected weekly expenses $1,026.00
37. Based on the above estimated weekly expenses, the shortfall between my income and expenses is $387.84 per week. Further, if my care arrangements with the children are altered significantly, I understand that the amount I will receive by way of Centrelink pensions is reduced, making my obtaining accommodation on the Gold Coast even more difficult.”
I accept this evidence on behalf of the mother.
I note that exhibits 8 and 9 reveal that the mother’s evidence concerning rental assistance via Centrelink was essentially accurate.
I note that the father pays $410 rent per week in the former matrimonial residence. I do note that where the father had originally stated in paragraph 37 of his affidavit that he was paying $260 by way of rent per week, it transpired under cross-examination that the father actually receives $160 per week by way of a subsidy from his own mother to assist him with the rent in his current premises. This is a crucial issue in the case. The mother has maintained from the outset that she cannot afford to return to live on the Gold Coast. Frankly, I consider that the father was less than candid in his affidavit when he stated that he only paid $260 by way of rent per week. The rent that he pays on the former matrimonial residence is $410 per week. It seems the father cannot afford to continue living there, and so he is looking to move.
I consider that it is reasonable for the mother, when considering a possible move back to the Gold Coast, to review accommodation of a similar standard to the former matrimonial residence. The mother would need premises which are appropriate for the full-time care of two very small children.
Some reference was made in the evidence to the “National Rental Assistance Scheme”. I note the mother’s evidence in this regard is contained in her affidavit in paragraphs numbered 38 and 39. In those paragraphs the mother stated:
“38. I note at paragraph 2x of Mr Spencer's Affidavit filed 27 July 2010 he states that I am eligible for the National Rental Affordability Scheme (“NRAS”) through the Queensland Government which would “see [me] able to have a new house for very low rent. Even less than what is available in [B] that [I] was looking for”.
39. On 11 January 2011 I telephoned the [omitted] Housing Service Centre and spoke to a person who identified herself as Ms C. The purpose of my call was to enquire about my obtaining accommodation on the Gold Coast through NRAS. Ms C told me that there are 5000 properties on the Gold Coast and applicants must first undertake an assessment to ascertain their eligibility for one of these properties. Applicants are then categorised into 5 levels ranging from no need to very high need. When I asked Ms C what the waiting times were for a property she said that they no longer give waiting times and “even if [I] were to fall into the very high need category, [I] would still be waiting years.””
I accept the mother’s evidence in relation to the inquiries that she made concerning the National Rental Assistance Scheme.
A comparison of the mother’s weekly expenses, if living in [B] as opposed to the Gold Coast, reveals that the cost of renting suitable accommodation is clearly more affordable for the mother in [B]. In [B], the maternal grandmother lives with the mother and many accommodation-related costs are shared.
Ms R gave evidence in this case. Ms R was a friend of the parties when they were together. Ms R has generously offered for the mother and the two children to live in her house with her husband for as long as the mother needs to, should the mother return to the Gold Coast. This is indeed a generous offer from Ms R; however, I note that the offer relates to the mother and the children living in one bedroom.
Furthermore, I note that there did not appear to be any close relationship between the mother and Ms R. The mother has not spoken to Ms R since separation. Ms R has been called as a witness in the father’s case. Whilst her offer is generous indeed, I do not consider it reasonable to expect that the mother would take up the offer of living with her two young children in one bedroom in a house owned by people to whom she did not appear to be particularly close.
Mr Sullivan of Senior Counsel, on behalf of the mother, provided the Court with an aide memoire concerning the mother’s current income and her possible income. Each of the items included in the aide memoire are supported by the evidence. Even if the mother were to perform 30 hours work per week, her total income would, at best, be $758. It does seem to be the case that the mother would have the benefit of an extra $150 on top of that, bringing the mother’s total income to approximately $908. This takes account of $100 per week by way of support that the maternal grandmother would be able to provide to the mother, should the mother return to live on the Gold Coast. It also takes into account a $50 payment relating to kindergarten.
Mr Sullivan SC therefore submitted that the mother’s best possible income, if working on the Gold Coast (and receiving the extra $100 per week from her mother) would be $908 per week. I note paragraph 36 of the mother’s affidavit. I have already accepted that evidence from the mother. The mother, in fact, would need $1026 per week if she were to relocate to live on the Gold Coast. This would be without any unforeseen expenses.
I do note that the father has offered to pay to the mother $30 per week as well as one half of a rental bond to assist her to relocate with the children to the Gold Coast.
Conclusion in relation to financial matters
Even if the mother returned to work 30 hours per week, it does not seem at this point in time that she will be able to boost her income any higher than approximately $908 per week. This amount of money per week is, on the available evidence, sufficient for her to live with the two children sharing a house with her mother in the town of [B]. On the evidence before the Court, $908 per week is not a sufficient amount of income per week to allow the mother to live in appropriate accommodation on the Gold Coast. The father placed before the Court one example of a rental property. Annexure PS20 to the father’s affidavit dated 25 January 2011 shows a property at [omitted], Queensland. The rental is stated as $278 per week. The document also, however, notes:
“National Rental Affordability Scheme – Queensland.”
There is no evidence that the mother is eligible for such a scheme. The only evidence concerning the National Rental Affordability Scheme – and, in particular, the mother’s ability to actually obtain such assistance – is contained in the mother’s affidavit at paragraphs 38 and 39. I have earlier referred to that evidence from the mother and I have accepted that evidence from the mother.
The financial issues have loomed large in this case from the outset. It is apparent that, even when the parties were together, they appeared to accumulate considerable debt. Fortunately, the father received an inheritance of approximately $80,000 and the parties were able to retire debt.
It is apparent that the father is unable to afford to continue living in his current premises. I do not consider that it is reasonable to expect the mother to access premises on or near the Gold Coast which would not be at least of a similar standard to the former matrimonial premises. There is no evidence to suggest that the former matrimonial residence was extravagant.
I have concluded, therefore, that, on the available evidence, from a financial perspective, the mother is not able to afford to live with the two children on the Gold Coast.
In Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010), the Full Court of the Family Court of Australia at paragraph 355 stated:
“...in determining best interests, the obligation is to “consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out”.
The mother is the primary carer. The mother cannot afford to live with the children on the Gold Coast, on the available evidence. In balancing out the various considerations presented by the evidence in this case, the Court must, in my view, attach great significance to the fact that the mother is financially unable to afford to live in appropriate accommodation on the Gold Coast.
The report of Mr J
I note paragraph 10.26 of the report of Mr J. In that paragraph he states, in relation to the mother:
“She is concerned about the financial viability of living there.”
Mr J was there referring to the Gold Coast. Mr J did state under cross-examination that he did not, in forming his opinion, closely consider the question of whether or not the mother could actually afford to live with the children on the Gold Coast. In particular I note the evidence of Mr J from page 224 of the Transcript – from approximately line 30 through to page 228, line 28.
I note the following evidence from Mr J. At paragraph 10.20 Mr J noted:
“10.20 It is my opinion that the children’s interests are best served by having equally strong relationships with each of their parents. To this end, it is in their best interests for their parents to live within reasonably close geographical proximity to one another.”
In relation to the opinion expressed by Mr J in paragraph 10.20, this is undoubtedly correct. I accept that evidence from Mr J.
The very great difficulty for these parents is the financial issue. As noted earlier, Mr J did not examine the financial issues in any detail. It is indeed an extremely difficult and unfortunate situation that the father finds himself in. He cannot financially afford to provide any significant funding to assist the mother on an ongoing basis to relocate to the Gold Coast. Furthermore, the father sees his daughter, [Z], on a regular basis and wants to continue to be able to do so by continuing to reside primarily on the Gold Coast. But the evidence reveals that the mother cannot financially afford to live on the Gold Coast.
It seems to me that an order requiring the children live primarily on the Gold Coast would necessarily mean that the mother would return to the Gold Coast (as that is her evidence). The mother will then be placed in a situation where her expenses exceed her income. Given that the mother is the primary carer for the two young children, the financial situation is not sustainable.
Some evidence was led at the trial concerning the possibility that the father might be able to move to Sydney. I accept the evidence from the mother and maternal grandmother that there was serious consideration by the mother and the father to a possible move to Sydney. To that end, the father applied for a large number of jobs in Sydney. This certainly seems to confirm the mother’s evidence that serious consideration was given to a move by the parties to Sydney. As part of the possible move to Sydney by the parties, the father accepts that he suggested that the mother could live in [B] with her mother.
It was somewhat unclear as to whether or not that was intended as some sort of a permanent arrangement or an arrangement that the father envisaged occurring now and then. In any event, it was clearly, at some stage, in the contemplation of the parties that they might move as a family to Sydney and that this would necessarily mean that the mother was closer to her extended family.
I do accept that it is probably the case that the primary reason that the father did not move to Sydney and does not wish to move to Sydney relates to his relationship with [Z]. The father sees [Z] very regularly, in accordance with consent orders. Mr J says that he observed no problems whatsoever in the relationship between the father and [Z]. Mr J also notes that the father has a good relationship with his first wife, Ms L.
Mr J concludes, in paragraph 10.21, inter alia:
“In considering the issue of reasonable practicability of relocation, it seems to me that it would be easier for the mother to relocate than for the father.”
The issue of “reasonable practicability” is one for determination by the Court.
An examination of “reasonable practicability” calls to mind section 65DAA of the Act. I will refer to that section later in these reasons for judgment. I note what the High Court of Australia had to say in MRR & GR [2010] HCA 4, especially between paragraphs 14 and 19. Any consideration of “reasonable practicability” must necessarily entail a consideration of evidence concerning financial matters, including the cost of available, suitable accommodation and employment opportunities. I note that Mr J conceded under cross-examination he did not turn his mind in any great detail to financial matters.
In view of the findings I have made on the available evidence concerning financial matters, I have concluded that it is not “reasonably practicable” for the mother to live on the Gold Coast.
Therefore, on the one hand I accept the evidence of Mr J to the effect that the best interests of the children will be served if the parents live “within reasonably close geographical proximity to one another” – the reality is that the mother cannot afford to live on the Gold Coast and the father is not willing to move to Sydney (or [B]). The financial issues create an insurmountable problem preventing the mother returning to the Gold Coast. It will be noted that, later in these Reasons, I have specifically concluded that the mother should remain as the primary carer.
Family support
I note the evidence of the mother contained between paragraphs 40 and 48. In those paragraphs, the mother stated:
“40. In addition to the financial difficulties of my returning to the Gold Coast, by my living in [B] I have the support and encouragement of a large family network who live within close proximity to the children and I and who assist me when needed.
41. Specifically, in addition to my Mother, my aunts ([names omitted]), my uncles ([names omitted]) and my cousins ([names omitted]), regularly provide me with physical and emotional support by helping me as follows:
(a) by helping with the grocery shopping and housework;
(b) by undertaking maintenance work around the home such as minor repairs, assembling furniture, mowing the lawns;
(c) by providing the children with clothing, toys and gifts;
(d) by caring for [X] and [Y] when I need to attend appointments;
(e) by entertaining [X] and [Y] so that I can attend to the housework;
(f) by occasionally accompanying me to Sydney on weekends when Mr Spencer is spending time with the children or when he is collecting [X] from the airport to take him back to the Gold Coast.
42. In addition, [aunts’ names omitted] have assisted me financially by paying for some minor expenses such as groceries, entertainment costs for [X] and [Y] and by paying for some of my costs associated with travelling to Sydney. Family members have also lent or given me items of furniture to furnish my home.
43. All of my family members regularly visit the children and I and we have open invitations to visit their homes which we often do.
44. [Name omitted] is only 1 year older than [X] and the two of them play together often as the family only lives a few minutes drive from our home. [X] and [name omitted] refer to each other as “best friends”.
45. I do not have any family on the Gold Coast (the only reason I initially moved there being my relationship with Mr Spencer) and as such I would not have a similar network of support were I ordered to return to live there, contrary to what Mr Spencer says at paragraph 2aa of his Affidavit filed 27 July 2010.
46. In the 8 months since Mr Spencer and I separated, none of the people Mr Spencer and I associated with when I was living on the Gold Coast have contacted me to enquire how the children or I are doing. I have only ever received one offer of accommodation on the Gold Coast (for a weekend only) and this was made through Mr Spencer’s Solicitors back in July 2010.
47. I do have one friend on the Gold Coast, Ms H. Ms H and I became friends through our mutual interest in [sport omitted] and from having children of a similar age. Our friendship was of a casual nature and still in its infancy when I separated from Mr Spencer. I have not heard from Ms H since I left the Gold Coast.
48. The support I received from my family is invaluable to my emotional wellbeing and I do not feel I would be able to cope adequately with the demands of raising two very young children if I were to be isolated from my family. I am humbled and extremely grateful for the support that has been offered to me together with the love and affection my family has shown towards the children and I.”
I accept this evidence of the mother. Clearly, the mother receives a considerable amount of practical as well as emotional support from her extended family living in [B].
The mother’s health
The mother relied upon an affidavit and report from Ms S. Ms S is a “nationally registered clinical counsellor”. It seems that the mother has attended upon Ms S for counselling. Mr Linklater-Steele, Counsel on behalf of the father, objected to the evidence of Ms S on the basis that Ms S is not an expert and her evidence ought not be received as expert opinion evidence. Mr Linklater-Steele referred to the decision of the Court of Appeal in New South Wales in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. I note at paragraph 85 the Court stated:
“85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reach: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414, on a “combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).”
I note that Mr Sullivan SC, on behalf of the mother, relied upon a decision of the High Court in Clark & Ryan (1960) 103 CLR 486. At page 491, Dixon CJ stated:
“The rule of evidence relating to the admissibility of expert testimony as it affects the case cannot be put better than it was by J. W. Smith in the notes to Carter v. Boehm, 1 Smith L.C., 7th ed. (1876) p. 577. ‘On the one hand’ that author wrote, ‘it appears to be admitted that the opinion of witnesses possessing peculiar skills is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it.’ Then after the citation of authority the author proceeds: ‘While on the other hand, it does not seem to be contended that the opinions of witnesses can be received when the inquiry is into a subject-matter the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it.’ Adopted by Harding A.C.J. in Reg. v. Camm (1883) 1. Q.L.J. 136.
In R. v. Parker (1912) V.L.R. 152, one of the cases establishing the evidentiary use of finger prints to prove identity, Cussen J in that connexion said that expert witnesses may give in evidence statements based on their own experience or study but that they cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves or to formulate their empirical knowledge as a universal law. To this should be added the observation made by Vaughan Williams J during the argument of Reg. v. Silverlock (1894) 2 Q.B. 766., viz. ‘No one should be allowed to give evidence as an expert unless his profession or course of study gives him more opportunity of judging than other people.’ (1894) 2 Q.B. at p. 7679. The words ‘profession or course of study’ have of course a wide meaning and application; see per Lord Russell C.J. (1894) 2 Q.B. at p. 771. The evidence of Mr Foster Joy included much that offended against these principles. Some of it was evidence of opinion that lay outside any qualifications that upon any view however benevolent he could be supposed to possess. Some of it was an attempt to guide the jury upon matters which it was within the ordinary capacity of jurors to determine for themselves. Perhaps particular pieces of evidence may be picked out concerning the behaviour of the kind of semi-trailer the defendant Clark drove but Mr Foster Joy was not qualified by practical experience to give evidence of their behaviour in fact. In short no small part of his evidence was outside the range of opinion evidence by experts and as to more still Mr Foster Joy was not a qualified expert. The objection to its admissibility should have been sustained.”
To her credit, Ms S stated that she is not an expert and did not profess to be providing opinion evidence. Her report itself does contain some “opinion” paragraphs.
I have formed the view that Ms S’s evidence should only be accepted on a limited basis. I am prepared to accept her evidence concerning statements made to her by the mother. Some of these statements or “fears” expressed by the mother were also noted by Mr J:
(a)fear of continual harassment (by the father);
(b)fear of losing family support;
(c)uncertainty of making friends;
(d)loss of employment opportunities leading to personal and professional goals not being realised;
(e)fear of isolation;
(f)fear of financial problems.
I accept the evidence of Mr J (whom I note is qualified as a psychologist) that the matters outlined above are risk factors which could lead to depression if an order is put in place whereby the mother was (essentially) forced to live on the Gold Coast. I note paragraph 10.21 of Mr J’s written report where he stated, inter alia:
“I have taken note of Ms S’s report on the mother. It is understandable that Ms Davidson is suffering from some psychological adjustment difficulties at the moment and that she is anxious about having to relocate without support. At the same time, I do not see that she is suffering from any clinical condition.”
Mr J stated under cross-examination that the mother, during the interview with him seemed tearful, emotionally fragile and anxious. Mr J considered that the level of the mother’s anxiety was “subclinical”. He did, however, think that her anxiety was reaching to a degree of paranoia.
Mr J, under cross-examination by Mr Sullivan SC, agreed that the “fears” outlined above, that were noted by both Mr J and Ms S, are matters of risk in relation to future anxiety and mental health issues. Mr J did point out that he did not conduct a “psychological assessment”.
As mentioned earlier herein Mr Sullivan SC queried Mr J under cross-examination in relation to Mr J’s assessment that from a reasonably practicable point of view the mother should relocate back to the Gold Coast. Mr J there stated that he did not specifically address the financial issue when drawing that conclusion.
Mr J noted that the mother’s anxiety was real and was related primarily to two issues, namely (1) financial issues and (2) the question of harassment by the father.
Mr J did note that there was some evidence of the mother suffering depression in the past. He noted that there are some risk factors, as pointed out earlier herein. Mr J stated that he considered that it was “reasonable to argue that the mother would be susceptible to depression in the future”. He did say that the possibility may reduce if the mother received appropriate counselling.
The mother’s evidence is that the father was controlling both during the relationship and has attempted to be controlling after the end of the relationship. Under cross-examination, the mother was questioned in relation to the so-called “controlling” attitudes of the father. In re‑examination this was further explored by Mr Sullivan. The evidence as it appears in the transcript in re‑examination begins at page 179. The evidence proceeds as follows:
“Mr Sullivan: You were asked questions in relation to why you regarded the husband as controlling, and I know that this is a private question, but you did indicate towards the end of that one of the issues you felt was part of the sexual relations. Can you, as best you can, indicate what you meant by that?
Mr Linklater-Steele: Well, I object to that. This is re-examination. She was challenged on the basis that that revelation was not put forward in the affidavit. I object to her now giving effectively evidence-in-chief in re-examination.
His Honour: Well, it does seem to me that it did arise in the cross-examination, Mr Linklater-Steele. I’m going to allow the question.
Mr Sullivan: Your Honour, it arose. I just didn’t want it to sit there without, in effect, examining.
His Honour: Go on.
Mr Sullivan: Could you just ---?
Ms Davidson: --- I didn’t want to bring it up. It started off as a joke where we were – and quite a long time ago – when we were on a prospective client’s boat that his partner – he got her jewellery because she performed oral sex on her partner, and we thought it was funny at the time, but it progressed from being a joke to if I wanted money to get my hair done or for something for myself I would come and there would be money on the bedside table.
Mr Sullivan: Now, is that something you spoke to Mr J about?
Ms Davidson: No.
His Honour: Well, what do you mean there would have been money on the bedside table? ---
Ms Davidson: There would be money on the bedside table with the premise that I was going to perform an act on him.
His Honour: I will give you leave to cross-examine on this if you want to, Mr Linklater-Steele.
Mr Linklater-Steele: Yes, your Honour.
His Honour: All right. Anything else, Mr Sullivan?
Mr Sullivan: You talked about whether you spoke to other people about your concerns, and you talked about putting up a façade. Can you explain what you meant by that? ---
Ms Davidson: There were problems in our relationship for a long time and we fought quite often, and if we were attending somebody else’s house I would – I relished that time and I wouldn’t give any indication that there were problems, even when I was asked. I’m a very private person. I don’t share that. I didn’t even share a lot of my concerns with my most closest family members. Even today is probably a revelation. I just didn’t want people knowing.
Mr Sullivan: No further questions, your Honour.
Mr Linklater-Steele: Seek leave, your Honour.
His Honour: Yes, you have leave.
Mr Linklater-Steele: Are you saying that for money you performed a sexual act? ---
Ms Davidson: It was the only way that I was able to get things for myself.
Mr Linklater-Steele: You’re not suggesting that as a joke between two married people, if you wanted $50 to go and buy something, he would say, in a joking fashion, I will leave it on the bedside table? ---
Ms Davidson: There wasn’t just the money given.
Mr Linklater-Steele: No. That’s what I’m struggling to understand. Are you saying to this court that the evidence is that he would extort, effectively, sexual favours from you and then provide you with money? ---
Ms Davidson: Yes.
Mr Linklater-Steele: Not as a joke between couples, I’ll leave it on the bedside table, yuk yuk, joke joke? ---
Ms Davidson: It started off that way but it wasn’t that after the first time.
Mr Linklater-Steele: So how long a period do you say that this went on for? ---
Ms Davidson: I think I may have been pregnant with [X] when it first started.
Mr Linklater-Steele: So, again, you’re pregnant and he’s demanding sex from you on the basis you won’t get any housekeeping money? ---
Ms Davidson: No, that I wouldn’t get money for me to be able to buy something for myself.
Mr Linklater-Steele: You had your own bank accounts? ---
Ms Davidson: I have had a bank account in my name, yes.
Mr Linklater-Steele: You had access to the joint bank account? ---
Ms Davidson: No, I didn’t.
Mr Linklater-Steele: Didn’t have any access to the joint bank account? ---
Ms Davidson: I had the opportunity to but I never did.
Mr Linklater-Steele: So you could have drawn money out of your own bank account, you could have drawn money out of the joint account, but you say you didn’t do this; you had to endure this behaviour? ---
Ms Davidson: I had minimal money in my account. All my money was used ---
Mr Linklater-Steele: Listen to my question, ma’am. My question is this, in case you didn’t understand. You had the ability to draw money out of your account, you had the ability to draw money out of the joint account, didn’t you? ---
Ms Davidson: If there was money to draw, yes.
Mr Linklater-Steele: You were debt free, ma’am. You had money. Ma’am, you’re just making this up? ---
Ms Davidson: Even after the time that there were debts paid we were not debt free, and that was the late stages of the relationship.
Mr Linklater-Steele: And do you say that you’ve revealed this to your counsellor, this fact? ---
Ms Davidson: Yes, I do.
Mr Linklater-Steele: All right. And you’ve revealed it to your mother, have you? ---
Ms Davidson: Eventually I had.
Mr Linklater-Steele: When? ---
Ms Davidson: After I had spoken to my counsellor.
Mr Linklater-Steele: I see. But you didn’t think to tell the court that? ---
Ms Davidson: I didn’t want to tell the court that.
Mr Linklater-Steele: I see. Ma’am, I suggest to you you’re just making that up; it never happened? ---
Ms Davidson: You’re incorrect.
Mr Linklater-Steele: On how many occasions do you say this occurred? ---
Ms Davidson: Minimum five.
Mr Linklater-Steele: Minimum five. Over what period of time? ---
Ms Davidson: It was – I was pregnant with [X] in 2006, so three, four years.
Mr Linklater-Steele: So over a three or four year period, on five occasions, your husband said to you if you want money you have to give me sex? ---
Ms Davidson: Minimum of five, yes.
Mr Linklater-Steele: Right, but that’s the proposition that you’re asking us to accept, that he would say to you, unless you give me sex, I am not going to give you any money, and then ---
His Honour: What’s your answer? You can’t just ----?
Ms Davidson: Sorry.
His Honour: ---Move your head?
Ms Davidson: ---Yes.
Mr Linklater-Steele: All right. And then you would give him sex and then he would pay you money? ---
Ms Davidson: That’s correct.
Mr Linklater-Steele: And it wasn’t as a joke between two married people about just leaving ordinary money, leaving it on the bedside table? ---
Ms Davidson: I don’t consider that to be overly funny.
Mr Linklater-Steele: All right. I suggest to you – you say it started out as a joke. Was it not a joke? ---
Ms Davidson: In the first instance it was.
Mr Linklater-Steele: Right, I see. Could it be, ma’am, your interpretation now after separation of these events? ---
Ms Davidson: No, it’s not.
Mr Linklater-Steele: I see. No further questions. Thank you, your Honour.
His Honour: I just have a question for you? ---
Ms Davidson: Yes, your Honour.
His Honour: In the dynamics that were operating in your relationship, would there have been any consequences if you had just used the cash card and accessed the joint account to, say, withdraw $50 to get your hair cut or whatever?---
Ms Davidson: I was constantly told, your Honour, in [Mr Spencer]’s previous relationship that his wife had abused money, that she had racked up debts on the credit cards, and then when he had used the money from the accounts to pay for the credit card that she had said, well, where’s all the money gone, and I honestly didn’t want to get into that sort of a situation where those accusations were made against me, your Honour.
His Honour: Anything arising out of that?
Mr Linklater-Steele: That’s not really a response to your Honour’s question. You asked a fairly direct question and she gave you a story about what she had been told. I took it your Honour’s question was ---
His Honour: The court would have to rely upon inferences from what she said if any conclusion was going to be drawn.
Mr Linklater-Steele: Yes, but – perhaps I need to clarify, your Honour, if I may.
His Honour: Go ahead.
Mr Linklater-Steele: You’re not saying that you were threatened at any stage or not allowed to withdraw any money, are you? ---
Ms Davidson: No, there was not a threat.
Mr Linklater-Steele: You were never told that you couldn’t withdraw money, were you? ---
Ms Davidson: Not in direct terms.
Mr Linklater-Steele: And on occasions, ma’am, the bank statements demonstrate you did withdraw money, didn’t you? ---
Ms Davidson: After I was told that I could.
Mr Linklater-Steele: Thank you, your honour.
His Honour: All right. Thank you. You’re excused as a witness.
Ms Davidson: Thank you.
His Honour: You can go back to your seat.”
The father gave further testimony in relation to this issue.
I accept the mother’s evidence in relation to this issue. The father says that it was only ever raised as a joke (apparently, initially by the mother). The mother admits that it was first raised as a joke, but beyond that it was not a joke. The father denies that there was ever any occasion that he actually had sex with the mother and left money for her or gave her money as a result.
I note that the mother had told her own mother about one incident about this issue. I accept the maternal grandmother’s evidence in that regard.
I note the mother told Ms S about it. It is referred to in Ms S’s notes, which are included as exhibit 6. I accept Ms S’s evidence that the mother told her about that issue, and I also accept Ms S’s evidence that, when the mother was telling her about that issue, that the mother appeared distraught.
I note the father’s complete denial that any such incident ever occurred. I do not believe the father in this regard. I accept the mother’s evidence. I accept the mother’s testimony to the effect that the father was, in some respects of the relationship, “controlling”. I also specifically accept the evidence of the mother that she was only ever allowed to actually access the joint account “after I was told that I could”.
I accept that the mother did not include references in her affidavit to this particular issue because she was extremely embarrassed and ashamed of what occurred.
The broader issue concerning the mother’s ability to access the bank accounts goes beyond the issue related to the sexual act and adds further weight to the mother’s assertions that the father was “controlling” during the relationship.
Conclusion on the best interests of the children
Having regard to the findings that I have made – particularly in relation to the financial matters; the mother’s anxiety; the family support available to the mother in [B] (amongst other findings) – I have reached the conclusion that the best interests of the children in this case will be served by an order allowing the mother to remain to live primarily with the children in [B].
The mother has always been the primary carer for these two very young children. Both parties seek orders that would see a continuation of the mother in the primary carer role for the two children. Even if it was contended by the father that he should become the primary carer, I do not consider that it is appropriate. On the evidence of Mr J, [Y] is still being breastfed. Indeed, Mr J recommends in paragraph 10.28 that [Y]’s time with the father ought be restricted to day visits until she is 18 months old – “at which time she will cope better with longer periods away from her primary attachment figure”. Mr J continued:
“As a rough guide, I would suggest that one overnight per week with her father at age two and two overnights per week from age three would fit with her developmental needs.”
The best interests of the children would be served if the mother remains as the primary carer. In view of the findings that the Court has made (referred to in summary form in paragraph 103 of these Reasons for Judgment) I have reached the conclusion that the best interests of the children lie in allowing them to remain living primarily with the mother in the town of [B], New South Wales.
There will need to be in place orders to enable holiday time and other regular time during the year for the father.
I consider there should also be some orders put in place to cover the possibility that the father may move to Sydney or somewhere closer to [B].
Section 61DA
Both parties accept in this case that there should be an order for equal shared parental responsibility. Such an order will be made.
Section 65DAA
I referred earlier to the decision of the High Court in MRR & GR. I note that the High Court stated, between paragraphs 14 and 19 in that decision:
“14. His Honour treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. The Full Court acknowledged that his Honour “did not expressly address the issue of whether an equal time arrangement would be ‘reasonably practicable’” [13]. However, the Court observed, his Honour went on to consider, at length, the matters to be considered under s 60CC in determining what arrangements are in the child’s best interests [14]. But those matters could be relevant only to the question posed by par (a) of s 65DAA(1), not the question in par (b), which required consideration of other, different matters.
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA (1) is not determinative of the questions arising under s 65DAA (1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
16. Had consideration been given to the question only one conclusion could have been reached, one which did not permit the making of the order. From the time that she returned to Mount Isa to the date of the hearing the mother had been required to live in a caravan park, and live there with the child on alternate weeks. Apart from the facilities being limited, it could not be said that such an environment is usually ideal for a child. The availability of alternative accommodation did not seem likely. Rental accommodation is scarce in Mount Isa and the waiting lists for it long. The mother said that she could not afford good quality accommodation in any event and the cheaper rental properties were in “rough” areas.
17. The mother had limited opportunities for employment in Mount Isa. When the parties lived in Sydney she had worked part-time. She had full-time opportunities available to her with her previous employer in Sydney which provided her with flexibility of hours. In Mount Isa the mother supported herself from social services payments and income from casual employment. The disparity between her income and that of the father had not been addressed by the time of the hearing. She said there was no employment in Mount Isa for someone of her experience and there were limited opportunities for flexible hours.
18. The evidence of the Family Consultant was that the mother was “definitely despondent” about being in Mount Isa, as her living conditions were not good and she was isolated from her family. The Family Consultant said that the mother was depressed and recommended that she attend counselling. The finding of Coker FM that “the mother’s anguish and depression in being in Mount Isa … can, to a significant degree if not in their entirety, be dealt with by … counselling” [15] is not supported by this evidence.
19. The evidence before his Honour did not permit an affirmative answer to the question in s 65DAA(1)(b). It follows that there was no power to make the orders for equal time parenting. It was necessary for his Honour to proceed to consider whether substantial and significant time spent by the child with each parent was in the child’s best interests (given that equal time was not possible) and whether that was reasonably practicable. That would require consideration of the mother being resident in Sydney. But without a finding as to practicability no conclusion could be reached. At the rehearing of this matter afresh, the necessary determinations will be made on the evidence as to the practicability of such orders, given the circumstances pertaining to the parties as they then stand.”
Looking firstly at s.65DAA(1), neither party seeks orders that the children spend equal time with both parents. Furthermore, the opinion evidence of Mr J would not support such an order. It would not be in the best interests of the children for such an order to be made.
In any event, having regard to my conclusion in relation to best interests, an order for equal time is not reasonably practicable (with the mother living in [B] and the father living on the Gold Coast).
Section 65DAA(2) – Is an order for substantial and significant time appropriate?
To my mind, such an order may well be appropriate concerning young [X] (this is consistent with Mr J’s opinion). Indeed, it would also be appropriate, in accordance with the opinion of Mr J, in relation to [Y]. Therefore, looking at the best interests of the children, an order for substantial and significant time would be appropriate.
But, of course, as pointed out by the High Court in MRR & GR, the Court must look at the question of reasonable practicability. It will be seen that I have already concluded that the matters that must be taken into account in relation to the question of reasonable practicability would not permit an order for substantial and significant time between the children and the father - if the father is living on the Gold Coast and the mother is living in [B]. The only way that an order of substantial and significant time will be reasonably practicable is if the father is living in reasonably close geographical proximity to [B] – or if the father is able to arrange extended visits to [B].
Conclusion
This is indeed a difficult relocation case. It is most unfortunate that the parents are not able to live “within reasonably close geographical proximity to one another”.
I have concluded, though, that the best interests of the children will be served if they are allowed to live primarily with the mother in the town of [B]. I would ask that the parties forward to the Court appropriate orders to reflect the reasons for judgment.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Howard FM
Date: 25 July 2011
0
6
1