Stretton and Belby
[2011] FMCAfam 523
•1 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STRETTON & BELBY | [2011] FMCAfam 523 |
| FAMILY LAW – Parenting – application by father for equal shared parental responsibility and for equal time – cross-application by mother for equal shared parental responsibility, leave to relocate and for graduated increases in orders in respect of time to be spent by the father with the child, aged 1 year – consideration of effect upon the parent with whom the child is primarily attached of not given leave to relocate – consideration of effect upon the child’s relationship with the other parent and possible deterioration in such relationship if leave given to relocate – consideration of recommendations of the family reporter for a moratorium in relation to further established parental bonds with the child prior to relocation – balancing of all such issues in a finely contested matter – acknowledgement on the part of the father of the primary attachment to the mother – acknowledgement by the father of the possibility of him being able to relocate – considerations attaching to such an acknowledgment – determination to facilitate one year to develop further the father/child relationship and to provide opportunities to seek and obtain alternate work in the locality in which the mother wishes to reside – leave granted to relocate after one year – orders for gradual increases in time to be spent by father with the child but encompass significant and substantial time with the child and involvement in the child’s life. |
| Family Law Act 1975, ss.60CA, 60CC (2), (3), (3)(m), 61B, 61C, 61C(2), 61D (1), (2), 61DA(2), (4), 65DAC, 65DAE (1) and (2) |
| Lansa & Clovelly [2010] FAMCA of 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell and Chappell (2008) FLC 93-382 MRR & GR (2010) FLC 93-424 Goode v Goode (2006) FLC 93-286 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MR STRETTON |
| Respondent: | MS BELBY |
| File Number: | TVC 680 of 2010 |
| Judgment of: | Coker FM |
| Hearing dates: | 17 & 18 March 2011 |
| Dates of Last Submission: | 17 & 18 March 2011 |
| Delivered at: | Townsville |
| Delivered on: | 1 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Betts |
| Solicitors for the Applicant: | Lee Turnbull & Co |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Michael Sing Lawyers |
ORDERS
That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2010, including but not limited to:
(a)the child’s education;
(b)the child’s religious and cultural upbringing;
(c)the child’s health; and
(d)the child’s name.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
Notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
UNTIL THE CHILD ATTAINS THE AGE OF TWO YEARS
That the child live with :
(a)The Mother in Townsville from 8.00am Monday until 5.30pm Friday; and
(b)The Father in Townsville from 5.30pm Friday until 8.00am Monday.
UPON THE CHILD ATTAINING TWO YEARS OF AGE AND PRIOR TO THE CHILD COMMENCING PRE-PREP
That if the Mother and the Father are living in the same locality, be that Townsville or the Gold Coast, then the child live with:
(a)The Father from 5.30pm Thursday until 8.00am Monday in each alternate week and that in the other week the child live with the Father from 5.30pm Wednesday until 8.00am Thursday; and
(b)Otherwise, the child live with the Mother.
ONCE THE CHILD COMMENCES PRE-PREP
That if the parents are living in the same locality, the child live with each parent on a week-about basis, with changeovers occurring on Friday with the parent who has had the child to deliver the child to school on Friday and that the parent who has not spent the week with the child to collect the child on that Friday afternoon.
HOLIDAYS
That upon the child turning 2 years of age and until the child commences pre-prep, that each parent have the opportunity to spend two two-week periods with the child, provided however that notice is given in writing no less than 28 days prior to the commencement of any such period of time to the other parent and provided however that such periods do not include Christmas Day, the Easter weekend, the child’s birthday, either parents’ birthday, Mothers Day or Fathers Day.
That upon the child commencing pre-prep, then such periods as are provided for herein shall be suspended during the gazetted school holiday periods and that each parent is to spend one half of the school holiday periods with the child, with the Mother to have the first half in odd numbered years, and the Father to have the second half in odd numbered years, and the Mother to have the second half in even numbered years and the Father to have the first half in even numbered years.
RELOCATION
That the Mother be given leave to relocate with the child to the Gold Coast as and from the first day of July 2012.
That unless agreed in writing as between the parents or pursuant to an order of a court of competent jurisdiction, the Mother does not have leave to relocate to any other place than the area defined by the borders of the Gold Coast City Council and that unless consented to in writing by the Father or ordered by a court of competent jurisdiction, the Mother is required to relocate to the Gold Coast by 4.00pm on 31 August 2012.
That in the event of the Father not living in the same locality as the Mother pursuant to these orders, then the Father spend time with the child until the child commences pre-prep, at all reasonable times as agreed and, failing agreement:
(a)For two periods of up to four (4) nights, such periods to be at least 28 days apart in each four-month period of January-April, May-August and September-December in each year upon the given of at least 14 days notice in writing to the Mother of his intention to spend such time with the child; and
(b)For two two-week periods with the child, provided however that notice is given in writing no less than 28 days prior to the commencement of any such period of time to the Mother and provided however that such periods do not include Christmas Day, the Easter weekend, the child’s birthday, either parents’ birthday, Mothers Day or Fathers Day
That in the event of the Father not living in the same locality as the Mother pursuant to these orders, then the Father spend time with the child upon the child commencing pre-prep, at all reasonable times as agreed and, failing agreement:
(a)For two periods of up to nine (9) days from after school on a Friday until 5.00pm on the Sunday following nine days later in each gazetted school term, provided however that the Father gives at least 28 days notice in writing to the Mother of his intention to spend such time with the child and for the Father to ensure that during any such period of time that the child continues participation in all regular school and extra-curricular activities.
(b)For one half of the school holiday periods, with the Mother to have the first half in odd numbered years and the Father to have the second half in odd numbered years, and the Mother to have the second half in even numbered years and the Father to have the first half in even numbered years.
That for the purposes of defining the first and second half of gazetted school holiday periods that the following apply:
(a)the first half of a gazetted Easter school holiday period is 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)the second half of the gazetted Easter school holiday period is from 6.00pm Tuesday following the Easter public holidays to 6.00pm on Sunday preceding the recommencement of school;
(c)the first half of a gazetted June/July or September/October school holidays shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(d)the second half of a gazetted June/July or September/October school holidays commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(e)
the first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling
22 days later;
(f)the second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That the child shall be permitted to communicate with the parents by telephone, webcam and/or other electronic means as may be able to be arranged at all such times as the child may request, with the parent having the child in their care to facilitate the call and ensuring that the child is able to take the call in a quiet and private environment.
That the parent not having the child in their care shall be able to communicate with the child by telephone, webcam and/or by other electronic means on Tuesdays and Fridays at 6.00pm, or on other days and times as may be agreed in writing, with the parent not having the child in their care to be responsible for making the call and the parent having the child in their care to ensure she is available to take the call in a quiet and private environment.
That the parents shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child; and
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
That by this order, the parents irrevocably authorise the schools, day care centres, extra-curricular activity providers, medical specialists and other treating health care practitioners, attended by the child to give each parent information about the child’s progress, treatment or as the case may be and to provide any and all documentation requested by a parent (at the requesting parent’s expense).
That unless otherwise ordered pursuant to these orders or agreed in writing, that the Father shall be responsible for the collection of the child from the Mother’s residence at the beginning of any period of time that the child is living with or spending time with him and that the Mother shall be responsible for the collection of the child from the Father’s residence at the conclusion of any period of time that the child is living with or spending time with him.
That when the child is spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to take the child overseas and in relation to same:
(a)The travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child sill stay) at least 28 days prior to the scheduled departure;
(b)Upon receipt of same the other parent shall forthwith release to the travelling parent the passport for the child;
(c)The travelling parent shall then provide to the other parent a copy of the return air tickets for the child; and
(d)During the trip the travelling parent shall arrange for the child to telephone the other parent on at least one occasion on every second day that the child is overseas.
That the parties sign a passport application and do all such things necessary for an Australian Passport to be issued in the name of the child, within 14 days from the date of these Orders.
That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents, before making any further application to a Court shall, save in the case of emergency:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney- General; or
(b)Participate in family dispute resolution with a Family Relationship Centre, or a person authorised under section 10G of the Family Law Act 1975.
IT IS NOTED that publication of this judgment under the pseudonym Stretton & Belby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 680 of 2010
| MR STRETTON |
Applicant
And
| MS BELBY |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to orders sought with regard to the parenting of the child, [X]. [X] was born [in] 2010 and has, therefore, just recently turned one year of age. She is the child of the relationship between Mr Stretton, whom I shall refer to as “the father” and
Ms Belby, whom I shall refer to as “the mother”.
These proceedings have come on most quickly. The parties only separated, it would seem, at or about the end of May 2010, or a couple of weeks later, on or about 16 June 2010. No matter what, the report writer, who has prepared both a report and a supplementary report, indicated that there were still raw emotions, particularly when the first report was prepared in September of 2010, and that that coloured certain of the issues in relation to this matter.
The proceedings, unfortunately, were commenced in a situation of difficulty for the parties. The mother had moved to the Gold Coast, where she had family support. The father says that that was not by consent but was rather, at best, agreed in the short term so that she could seek some family support and deal with issues that had arisen in the relationship. The mother says, having gone to the Gold Coast and separated whilst they were there, that it was not as if there was any unilateral action on her part and that she should, at the time of separation, have been able to remain at the Gold Coast.
In any event, that was a matter which needed to be dealt with on an urgent basis, and on 2 August 2010 orders were made, following an interim hearing, which required the mother’s return to Townsville, at least until such time as the matter could be more fully considered and heard.
Those orders provided for the child to return to Townsville, and additionally then went on to provide for the parties to have equal shared parental responsibility and, if the mother were living in Townsville, then the child live with the mother and live with the father for different periods. The child was to live with the father from
5.30 pm on Friday until 8 am on Monday, as well as between 4 pm and 7 pm on Wednesday. It provided what might most commonly be referred to as a “4:3 split” in relation to the nights that were spent with each parent.
The orders then went on to provide that, in the event of the mother not living in the same locality as the father, that being Townsville, then that the child live with the father and the mother spend time with and communicate with the child at all reasonable times. Such a situation did not arise in these proceedings.
The orders that were put in effect and which were then taken up by the mother included for the mother to have the opportunity to maintain the sole use and occupation of the former matrimonial home, situate at Property H. The mother continues to reside in that accommodation at this time, though orders have now been made in relation to property settlement as between the parties and, as a result of those orders, there is specifically in place an arrangement with regard to the mother vacating the property.
Orders 7 through 10 of the orders which were made by consent on 22 February 2011 are relevant in relation to those arrangements, and are in these terms:
7. That the Wife have the right to the sole use and occupation of the property situated at Property H (“the Property H”) and the Mazda 323 Protégé, Queensland Registration [omitted] (“The Mazda 323”) up to 30 days from the date that the Federal Magistrates Court makes final children’s orders (in the matter which is presently before the Federal Magistrates Court and is listed for final hearing in Townsville on 17 & 18 March 2011), with the Wife to maintain the Property H and the Mazda 323 in substantially its condition, fair wear and tear excepted.
8. That on the Wife vacating the Property H and returning the Mazda 323 to the Husband, (the Wife will ensure that the Property H is left in a clean and tidy manner and that the Mazda 323 is returned in a clean and tidy manner), the Husband then have the right to the sole use and occupation of both the Property H and Mazda 323.
9. That within two (2) days from the date that the Federal Magistrates Court makes final children’s orders (in the matter which is presently before the Federal Magistrates Court and is listed for final hearing in Townsville on 17 & 18 March 2011) the Husband pay to the Wife the sum of $9,010.00 by depositing that amount into the Wife’s Heritage Building Society Bank Account – [branch and account details omitted].
10. That the Husband continue to be responsible for the outgoings associated with the [H] property including payments of the mortgage, rates, water rates and utilities.
It is clear, therefore, that by about the end of July 2011 the mother will be no longer residing in the residence at Property H, but rather will have to have put in place alternative arrangements with regard to her accommodation.
The parties have very different perspectives in relation to what might be the appropriate arrangements to be put in place with regard to the parenting of the child, [X]. The final orders that are sought by the father are detailed in his case outline filed at the commencement of the proceedings. They are in these terms:
1.That the Father and Mother have equal shared parental responsibility for major long term issues of the child, [X] born [in] 2010, including but not limited to:
a.The child’s education (both current and future);
b.The child’s religious and cultural upbringing;
c.The child’s health;
d.the names of the child;
e.Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
2.The parties are to consult with each other about decisions to be made in exercise of their equal shared parental responsibility as follows:-
a.They shall inform the other parent about the decision to be made;
b.they shall consult with each other on terms that they agree;
c.They shall make a genuine effort to come to a joint decision.
3.Notwithstanding Order 1 herein:-
a.The Mother shall be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with her;
b.The Father shall be responsible for the daily care, welfare and development of the child whilst the child is living with or spending time with him.
4.That the child live with each parent as follows:
a.That until the child reaches the age of two (2), with the mother from 8am Monday until 12 noon Friday and with the father from 12 noon Friday until 8am Monday;
b.Once the child turns two (2), then on a two week rotation as follows:
(i) Week one with the mother from 8am Monday until 5.30pm Thursday and with the father from 5.30pm Thursday until 8am Monday; and
(ii) In week two with the mother from 8am Monday until 12 noon Friday and with the father from 12 noon Friday until 8am Monday.
c.That once the child commences pre-prep the child live with each parent on a week about basis with changeovers occurring on Fridays with the parent who has had the child to deliver the child to school on Friday, and with the parent who is to commence their week with the child to collect the child from school on Friday afternoon.
5.That each parent have block time with the child as follows:
a.Until the child turns two (2), a period of two (2) weeks each year;
b.From the age of two (2) until the child commences pre-prep, then for a period of four (4) weeks per year;
c.From pre-prep onwards, for one half of school holidays with the father to have the first half in even numbered years and the second half in odd numbered years.
6.That the Father spend time with the child from 2.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in odd numbered years and the Mother spend time with the child from 2.00pm Christmas Eve until 2.00pm Christmas Day in odd numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in even numbered years.
7.That if the child is with the Father and the Mother is in the locality, then the Mother spend time with the child on the following occasions:-
a.On Mothers Day from 9.00am until 5.00pm;
b.On the Mother’s birthday if on a school day from 3.00pm until 7.00pm. If on a non-school day from 9.00am until 4.00pm
c.On the child’s birthdays if on a school day for at least two (2) hours. If on a non-school day fore at least four (4) hours.
8.That if the child is with the Mother and the Father is in the locality, then the Father spend time with the child on the following occasions:-
a.On Fathers Day from 9.00am until 5.00pm;
b.On the Father’s birthday if on a school day from 3.00pm until 7.00pm. If on a non-school day from 9.00am until 4.00pm
c.On the child’s birthdays if on a school day for at least two (2) hours. If on a non-school day fore at least four (4) hours.
9.That the Mother and Father shall keep each other informed of their contact telephone number and addresses and will advise each other within forty-eight (48) hours when there is a change to such details.
10.That if either parent intends to take the child out of the Townsville locality for a period of in excess of forty-eight (48) hours, then they are to provide in writing to the other parent a contact address, contact telephone number and details of where the child will be travelling to and if the child is flying, then flight itineraries for the child’s flight.
11.This order shall be sufficient authority for all schools, medical practitioners, general and special dentists and other special persons dealing with the child to provide to the parents any and all information, including but not limited to school reports, newsletters, school photographs, orders forms sought by them and effect their request at their individual expense (if any).
The mother’s proposals are contained within the case outline filed on her behalf on 15 March 2011. The orders are comprehensive and are as follows:
1. That the following parenting orders shall apply for the child, [X] born [in] 2010 (“the Child”) unless the Mother and Father (collectively, the Parents”) agree otherwise, in writing.
Parental responsibility
2. That except as otherwise agreed, in writing, Parents are to have equal shared parental responsibility for the major long-term decisions for the Child.
3. That the Parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision. They are not, however, required to consult with each other about the daily care of the Child.
Exchange of information
4. That the Parents shall:
(a) keep the other parent informed at all times of their residential address and contact telephone number;
(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the Child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the Child;
(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the Child.
5. By this order, the Parents irrevocably authorise the schools, day care centres, extracurricular activity providers, medical specialists and other treating health care practitioners, attended by the Child to give each parent information about the Child’s progress, treatment or as the case may be, and to provide any and all documentation requested by a parent (at the requesting parent’s expense).
6. That during the time the child is with either parent, that parent shall:
(a) respect the privacy of the other parent and not question the Child about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c) not denigrate or insult the other parent in the presence or hearing of the Child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the Child.
Relocation
7. That the Mother be at liberty to forthwith relocate with the Child to the Gold Coast.
Living arrangements for the child
8. That should the Mother reside on the Gold Coast, the Father spend time with the Child as agreed between the Parents, in writing, but failing agreement as follows:
(a) Until the Child attains two (2) years of age:
i. from 8am to 7pm Saturday, from 8am to 7pm Sunday, and as many evenings on weeknights as the Father is able to commit to during a ten (10) day period commencing Friday to the following Monday, with the Mother to travel to Townsville with the Child to facilitate such time four times per year.
(b) That once the Child attains two (2) years of age until the Child attains four (4) years of age:
i. from 8am to 7pm Saturday, from 8am to 7pm Sunday, and as many evenings on weeknights as the Father is able to commit to during a seven (7) day period from Saturday to the following Saturday, and at the conclusion of the seven (7) day period with overnight time to commence, from 8am Saturday to 7pm Thursday, with the Mother to travel to Townsville with the Child to facilitate such time four times per year.
(c) That once the Child attains four (4) years of age until the Child commences school:
i. from 8am to 7pm Saturday, from 8am Sunday to 7pm the following Monday week (8 nights in total), with the Mother to travel to Townsville with the Child to facilitate such time four times per year.
(d) That once the Child commences school:
i. for as much of the gazetted school holiday periods as the Father can practically manage (but not exceeding 10 days), and for one half of the Christmas school holiday period, with the school holiday period to commence on the day after the last day of school term, and conclude at 12.00pm two (2) days before the school term commences.
9. That should the Mother reside in Townsville then the Father spend time with the Child as agreed between the parties,, in writing, but failing agreement as follows:
(a) That until the Child attains two (2) years of age:
i. each alternate weekend from 8am Saturday to 7pm Saturday and from 8am to 7pm Sunday, and each alternate Wednesday from 4:00pm to 7:00pm
(b) That once the Child attains two (2) years of age until the Child attains four (4) years of age:
i. each alternate weekend from 8am Saturday to 7pm Sunday, and each alternate Wednesday from 4:00pm to 8:00am Thursday;
(c) That once the Child commences school:
i. each alternate week from after school Thursday before school Monday; and
ii. for one half of the gazetted school holiday periods with the school holiday period to commence on the day after the last day of school term, and conclude at 12.00pm two (2) days before the school term commences.
9.1 The Mother be permitted to travel to the Gold Coast four (4) times per year for up to three (3) weeks on each occasion, upon the provision of at least 1 months written notice to the Father of her intention to do so.
10. That should the Father reside on the Gold Coast then the Father spend time with the Child as agreed between the parties, in writing, but failing agreement as follows:
(a) That until the Child attains two (2) years of age:
i. each alternate weekend from 8am Saturday to 7pm Saturday and from 8am to 7pm Sunday, and each alternate Wednesday from 4:00pm to 7:00pm
(b) That once the Child attains two (2) years of age until the Child attains four (4) years of age:
i. each alternate weekend from 8am Saturday to 7pm Sunday, and each alternate Wednesday from 4:00pm to 8:00am Thursday;
(c) That once the Child commences school:
i. each alternate week from after school Thursday before school Monday; and
ii. for one half of the gazetted school holiday periods with the school holiday period to commence on the day after the last day of school term, and conclude at 12.00pm two (2) days before the school term commences.
10.1 The Father be permitted to travel to Townsville four (4) times per year for up to one weekend on each occasion, upon the provision of at least 1 months written notice to the Father of her intention to do so.
11. That notwithstanding any previous Orders, the Child shall spend time with the Parents on special occasions as follows:
(a) for Christmas Day:
i. from 12.00pm 22 December until 12.00pm Christmas Day in even numbered years with the Mother and in odd numbered years with the Father; and
ii. from 12.00pm Christmas Day until 5.00pm 28 December in odd numbered years with the Mother and in even numbered years with the Father;
(e) for Easter:
i. from 5.30pm Easter Thursday to 12:00pm Easter Monday in even numbered years (with the Child to be with the Mother in odd number years);
(f) on the birthday of the Child (with the parent the Child is not living with on the day):
i. if a school day, from after school until 6.00pm;
ii. if a non-school day, from 1.00pm until 6.00pm;
iii. with that parent to be responsible to collect and return the Child.
12. The Child shall be permitted to communicate with the Parents on the telephone and/or webcam at such times as a child reasonably requests and that parent shall facilitate the call and ensure the Child’s privacy during same.
Specific Issues
13. That the Father abstain from consuming alcohol six hours prior to and during the time the Father is to spend time with the Child.
Changeover
14. That unless otherwise agreed, the Father shall be responsible for collecting the Child from the Mother’s residence at the beginning and returning the Child to the Mother’s residence at the end of the Child’s time with the Father.
Travel Out of the Country
15. That when the Child is spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to take the Child overseas and in relation to same:
(a) the travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates; a contact telephone number for the travelling parent and the Child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the Child will stay) at least 28 days prior to the scheduled departure;
(b) upon receipt of same the other parent shall forthwith release to the travelling parent the passports for the Child;
(c) the travelling parent shall then provide to the other parent a copy of the return air tickets for the Child;
(d) during the trip the travelling parent shall arrange for the Child to telephone the other parent on at least one (1) occasion on every second day that the Child is overseas.
Passport
16. That the parties sign a passport application and do all such things necessary for an Australian Passport to be issued in the name of the Child within fourteen (14) days from the date of these Orders.
Dispute Resolution
17. That in the event that there is a dispute about the Child or about the interpretation, implementation or enforcement of these orders, the parents before making any further application to a Court shall, save in the case of emergency:
(a) either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney- General; or
(b) participate in family dispute resolution with a Family Relationship Centre or a person authorised under s.10G of the Family Law Act 1975.
Parenting Orders Programme
18. That the parties shall undertake a Parenting Orders Programme.
19. That the parties, within seven (7) days of the date of service upon them of these Orders, contact the Parenting Orders Programme Co-ordinator (or nominee) for intake into the programme.
20. That the parties shall comply with any reasonable direction of the Programme Co-ordinator and in particular:
(a) attend as requested for the purposes of assessment as to whether they are suitable for participation in the programme;
(b) advise the Programme Co-ordinator of their contact telephone number and advise the Programme Co-ordinator of any change in that number;
(c) attend and participate in the programme as requested including attending referrals to treating health professionals as recommended by the Programme Co-ordinator (provided that either party may refuse at their election to participate in joint sessions);
(d) attend a Triple P parenting programme or equivalent parenting programme as nominated by the Programme Co-ordinator;
(e) that in the event that either party refuses or fails to attend the programme or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the Programme Co-ordinator, then the matter may be relisted by either party on the giving of 24 hours notice.
21. That for the purposes of the programme:
(a) a copy of these orders will be sent to the Programme Co-ordinator;
(b) the parties shall supply to the Programme Co-ordinator a copy of any parenting orders or parenting plan;
(c) within seven (7) days, the parties should contact the Programme Coordinator on telephone to arrange an intake interview;
(d) the parties are at liberty to supply to the Programme Co-ordinator a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.
22. That in the event that either party refuses or neglects to execute a deed and/or instrument in compliance with the preceding Orders, an officer of the Federal Magistrates Court of Australia be appointed pursuant to Section 106A of The Family Law Act 1975 to execute all deeds and/or instruments in the name of either party and do all acts and things to give validity and operation to the deeds and/or instruments. That the costs associated with such application be paid by the defaulting party on an indemnity basis.
Quite simply, the positions between the parties can be summarised as them having equal shared parental responsibility, but that, from the father’s perspective, the mother, and of course [X], remain living in close proximity to him in Townsville, and there be a development over time such that, by the time [X] commences pre‑prep at school, which one would think would be in 2015, that there be equal time spent in each parent’s household.
From the mother’s perspective, it is proposed that she should be able to move to the Gold Coast, where she has family support, and that the father’s time with [X] be limited to opportunities that could be occasioned when the father was in the same locality as the mother, or on occasions when the mother concedes that she would travel with the child to Townsville, on four occasions each year.
The mother’s proposals, however, do not provide for any opportunities for overnight time until [X] turns two years of age, and only then after there have been block periods of daytime time spent by the father with the child, totalling five nights. Once [X] turned four, it was proposed that there be four occasions when the mother would travel to Townsville for the father to spend time with the child for a total of eight nights on each of those occasions, but with a one-day daytime period preceding, and from [X]’s commencement of school that there be gazetted school holiday periods, though it is noteworthy that the mother’s proposal in that regard was that they be for no period exceeding 10 days, so that she would have the opportunity to spend some time with [X] during the school holiday periods, except for the Christmas school holiday period where half is proposed.
The mother did propose alternative arrangements in the event of her continuing to reside in Townsville, as can be seen from the orders as detailed.
The issues at large in relation to this matter remained live during the entirety of the hearing. The issues were, in fact, identified by the report writer in the first report, which was released on 22 September 2010. The issues were as follows:
· The mother’s application to relocate with [X] to the Gold Coast including the mother’s potential to adjust/accept remaining in Townsville over the long term.
· Each parent’s general presentation.
· Each parent’s current parenting capacity.
· The influence of other family members on the parent’s capacity to develop a positive post-separation parenting relationship.
· The willingness of each party to facilitate a relationship between [X] and the other parent and [X]’s capacity to maintain a close and meaningful relationship with the parent she will not live with.
· [X]’s attachment relationships with her parents and effect on her of living a long distance from either parent.
· Allegations of individual instability made by each parent about the other. From the father’s perspective this involves allegations that the mother has a mental illness and from the mother’s perspective this involves allegations that the father is an alcoholic.
I could not agree more with the issues that were detailed by the report writer and, unfortunately, it would seem that those issues remained live right up to trial and were again identified in the addendum report released on 11 March 2011. The issues noted there totalled eight:
· The mother’s application to relocate with [X] to the Gold Coast including the mother’s potential to adjust/accept remaining in Townsville over the long term.
· Each parent’s general presentation.
· Each parent’s current parenting capacity.
· The willingness of each party to facilitate a relationship between [X] and the other parent and [X]’s capacity to maintain a close and meaningful relationship with the parent she will not live with.
· [X]’s attachment relationships with her parents.
· The parent’s emerging post-separation relationship.
· How the parents are coping with sharing parental responsibility for and care of [X].
· [X]’s adjustment to living in a shared care arrangement.
I should note at the commencement of these reasons that I was most assisted by the reports prepared by Ms O, in relation to this matter. I will come a little later in this judgment to the evidence of Ms O. Before addressing that, however, it is important that I should also note the evidence that was otherwise called on behalf of the parties, as well as, of course, the evidence of both the mother and the father.
Insofar as the father was concerned, understandably, particularly in light of the issues noted by Ms O, referring to the influence of other family members on the parents’ capacity to develop a positive post‑separation parenting relationship, the father’s sister, Ms R, and his father, Mr S, were deponents to affidavits and also were required for cross-examination.
Ms R is a [occupation omitted] in Townsville. She has two children, [Y] and [Z], and comments about her close relationship with her brother. I was very impressed with Ms R. She had what one might consider to be the normal comments in relation to her observations of the father’s relationship with [X]. She indicated that the father consistently provides appropriate care to [X] and that [X] loves spending time with her father. She indicated that she was available to assist the father in the care of [X] on Wednesdays, Thursdays and Fridays, as she does not work on those days and in fact is, in any event, was engaged in the care of her own children, [Y] and [Z].
Ms R was not in any way challenged in relation to her observations of the relationship between [X] and her father and, in particular, was not challenged as to the comment that she made in paragraph 16 of her affidavit, which was in these terms:
I know that [X] just loves spending time with Mr Stretton, and as [X] becomes older I observe that bond is strengthening more and more.
I accept that that is the case. I accept that Ms R is close to her brother and, as she indicated in cross-examination, if her brother was not in the same locality as her, she would still support him in his residence at, for example, the Gold Coast and would support his visits to Townsville with [X], if that was to occur. Her response was understandable and was simply to the effect that that would “of course” be the case. I take Ms R at her word in relation to this matter, and in particular with regard to the support that she currently provides to the father and would, of course, continue to provide in the future.
The paternal grandfather also filed an affidavit in relation to this matter. He noted at paragraph 7 of the affidavit similar observations to those that were noted by his daughter. He says the following:
I have observed Mr Stretton to have a close and loving relationship with [X]. I also have no doubt [X] has a close and loving relationship with Ms Belby.
Mr S senior commented about his enjoyment in spending time with all of his grandchildren and of his willingness to provide assistance, as would Ms R, in relation to the care of [X], if that were called upon.
Mr S senior was cross-examined about the fact that he had recently returned to full-time work, and he indicated that that was the case. He also indicated, however, that he was of retirement age and, in fact, would, if it were offered, take a redundancy package. He indicated that he would reorganise his timetable, as, no doubt, would the father, to ensure that there was a person properly available and able to provide care and supervision for [X] on occasions when [X] was in the father’s care.
He acknowledged that he did not have a current retirement plan, but I accept that, as he indicated, it was to some extent a very flexible arrangement and that if he chose to do so he could retire or, as he said, transfer sick leave that he had previously accumulated to carer’s leave, and that would provide him with seven months available time to utilise in any way that he saw as appropriate.
Mr S senior also, and again similar to Ms R, indicated that he would travel to the Gold Coast so as to take the opportunity to spend time with [X], and of course also to provide support for the father if he were living at the Gold Coast, so as to maintain the close association with [X] that had developed over time. Additionally, he indicated that his home would be open and available for the father at any time, should the father be living at the Gold Coast, but take the opportunity to spend time and to holiday with his family, in the Townsville area.
I was impressed by Mr S senior. I thought that he was a genuine man, obviously supportive of his son, but also attempting to put the best interests of [X] to the fore. No doubt familial attachments become relevant in relation to such matters, but I gained the distinct impression that there was not necessarily a black-and-white attitude adopted by
Mr S, such that everything his son said was right and everything that the mother might suggest was incorrect. I gained the distinct impression that he would, as he suggested he had done in the past, take on as best he could the role of a mediator, so as to attempt to facilitate agreement between the mother and the father.
Where there was criticism of the paternal grandfather, in relation to his dealings with the mother, I was more inclined to the view that any dispute that there might now be as to the type of relationship that existed between the paternal grandfather and the mother would be more, one arising from different perceptions that each had of the relationship as between them, and that it was more likely than not, a case of the paternal grandfather minimising any degree of dispute between he and the mother, and similarly the mother perhaps exaggerating any minor dispute that might have arisen as between she and Mr S senior or, prior to her death, the interaction with the paternal grandmother.
I accept, as I did with Ms R, that Mr S senior would be, as he indicated, a supportive and genuine assistance to the father in relation to any care that might be needed, either directly with regard to [X] and her needs, or in providing support for the father, in any way necessary.
Called on behalf of the mother was her mother, Ms B. Ms B gave evidence in her affidavit filed on 4 March 2011 that she and her husband would provide both financial and emotional support for the mother and [X]. In particular, Ms B indicated that the mother would be able to return to live in the home occupied by Ms B and her husband, as well as their son Mr D, who was particularly close to his sister, the mother in these proceedings.
She indicated, and I accept, that there would not be any financial contribution required from the mother in relation to occupation of the former family home, and that that would be, obviously, of financial benefit to the mother and enable her to take steps to improve her financial circumstances. I also accept that there have been limitations in the opportunities that she and her husband, as well as the child’s uncles, have had to spend time with [X], as a result of the requirement for the mother to live in North Queensland.
The maternal grandmother was not questioned in relation to much of that which was contained within her affidavit, to which I have referred. In particular, she was not challenged at all in relation to the contents at paragraph 8, which spoke of the recognition of the importance of the relationship between [X] and her father, as well as his extended family.
In paragraph 8, Ms B made the following comments:
We understand it is in [X]’s best interests to have a close and loving relationship with Mr Stretton and his family. We would do all we could to encourage the relationship between [X] and
Mr Stretton’s family. Mr Stretton is also welcome to come to our home to spend time with [X] so that he can do so in a family home environment. It would also assist with saving costs.
Whilst, with respect, it may be that that is a little naïve in its general appreciation of the difficulties that arise when a relationship has broken down and one parent or the other is to spend time in the other family’s presence or household, I have no doubt that the offer was made genuinely in relation to this matter, and whilst there may be some difficulties there would be some real attempt on the part of Mr and
Ms B to facilitate opportunities for the father to spend time with [X], in the event of her living with the mother at the Gold Coast.
More particularly, I was impressed with Ms B’s evidence given cross-examination. She was asked particularly about her son, Mr D, and the relationship that Mr D had with his sister, the mother, in these proceedings. She acknowledged that their relationship was very close, and went on to acknowledge that she was aware of the difficulties that her son was currently having in relation to criminal charges. More significantly, however, Ms B was full and frank, as, unfortunately, the mother was not, in relation to discussions of those criminal charges brought against Mr D.
They relate, apparently, to an issue of fraud as an employee, though full particulars have never been made known in relation to that particular aspect of the matter. What was noteworthy, however, was that, when asked whether her son was potentially in serious trouble with the law, she acknowledged that that was the case and that all members of the family, including the mother were aware of this, and again, she noted that the mother was aware of the serious nature of the charges brought against Mr D and that it was known by all in the family, that they were of a criminal nature.
I accept that there was knowledge held by the mother in relation to the charges that apparently have been brought against her brother, and, whilst there may be again a degree of minimisation on the part of the mother as to those charges, and therefore a reflection on the character of her brother, it was troubling that the bland denials which were made by the mother were made, when it was clearly apparent that information of a greater extent was known to her.
As counsel for the father quite properly put, if she had simply acknowledged that he was the subject of a charge but that the family were, “sticking together”, as she indicated was the case in relation to the family law proceedings, then the matter would have and could have gone no further. The fact that there was an untruth, however, gives rise to other concerns in relation to the mother and to her character generally.
Similarly, there were concerns that arose in relation to the mother’s truthfulness with regard to discussions relating to her relationship with her family and the fact that there had been difficulties in the relationship between the mother and her parents and other family members, as recently as 2007, when there had been, apparently, some self-harm on the part of the mother. The mother’s refusal, and it did appear that it was a determined attempt on the part of the mother to not acknowledge that there had been any such difficulties in relationships between she and her parents, did her no credit.
However, it was to the credit of Ms B that there was, I thought, a far more forthright and open exchange of information in relation to the difficulties that had occurred in the past but which, to a significant degree, if not entirely, had been dealt with within the family, and there was very clearly that closeness that the mother now indicated existed. I was impressed with the evidence of Ms B in relation to this matter.
Also called on the part of the mother was her treating psychologist,
Ms G. Ms G had sworn an affidavit on 4 March 2011 to which she annexed a copy of a brief report that had been prepared, in relation to her interaction with the mother. Ms G had not prepared the report in accordance with the rules relating to the giving of expert evidence, but, in light of many of the comments that she made, I am more inclined to think that, whilst Ms G has professional qualifications, it was not really a situation where her report was a professional report or was of great assistance in relation to these proceedings.
In fact, when asked by counsel for the father in cross-examination what treatment Ms G had given to the mother, her answer was, I thought, telling, in that she indicated that she had been:
...providing support and validating her experience.
She was asked, having given that response, whether she was what might be most accurately described as a “professionally trained sympathetic ear”, and she acknowledged that that was perhaps a reasonable note of her position and role, in relation to the treatment of the mother, at least at this time.
That perhaps becomes more clear when it is obvious that Ms G acknowledged that, certainly at the commencement of her treatment of the mother, she had relied on the accuracy of the information that had been given by the mother and, as she indicated, it was “not my job to assess the accuracy of that information”. Rather, she said, it was necessary to treat and to provide for the needs of her patient, on the basis of the difficulties that they present with.
I am inclined, therefore, to the view that, whilst Ms G provided a sympathetic ear and a sounding board for the mother, there is little that I could properly gather from her report. Certainly, she noted that the mother reported to her experiencing stress as a result of separation from [X] during times the child was with her father, and separation from her family as a result of being required, at least, until now, to reside in Townsville.
Ms G did note, however, that the mother’s primary source of support and her long-term relationships are on the Gold Coast, and I must say that I would also think that that is perhaps an accurate reflection of the mother’s position, in relation to these matters.
Whilst Ms G was not necessarily treating the mother at the present time, there is some assistance to be gained from her report, at least insofar as noting that the various stressors that are currently confirmed by the mother would:
...not have a positive impact on her psychological wellbeing and her ability to provide her daughter with the standard of parenting she desires.
I note that similar concerns were expressed by Ms O in the family reports that have been provided.
I do not necessarily criticise Ms G in relation to the report prepared in respect of this matter, but I must say that the weight, if any, that would be given to the concerns that are expressed by Ms G, as having been observed by her in relation to this matter is greatly diminished, as a result of the somewhat “one-sided nature” of the information provided, in order to prepare this particular matter.
Before turning to the evidence of Ms O, which was, I thought, particularly significant in relation to the matter, it is important that I should also address first the evidence of the mother and the father. Whilst neither the mother or the father are terribly young, in the sense of being parents, the father being 27 years of age and the mother 26 years of age, I must say that I unfortunately gained a distinct impression that both the mother and the father were a little self‑centred in their approach to these proceedings.
There was certainly an element in the evidence of both the mother and the father, of an entitlement that they had to their relationship with [X] being facilitated upon the terms and upon the basis that they wanted rather than, to any real extent, an appreciation of the needs of the child being to the fore, and therefore the need for them to work together and to compromise with each other. In fact, comments of that nature were made by Ms O in the reports that were given, and also in her oral evidence. That is not to say, however, that both parents are not more than capable of providing for the day-to-day needs of the child and to ensure that, in time, her emotional and intellectual needs, as well as her physical requirements, would not be met in every way.
Insofar as the father was concerned, I thought that he was nothing short of one of the most genuine parents, when it came to his determination to foster and develop his relationship with [X]. His comments to the report writer and also to the court, that he would put [X]’s needs to the fore and, if necessary, would, notwithstanding his reluctance, look at a move to follow the mother and child, so that he would be able to maintain a close relationship with them, was without doubt a genuine expression of the father’s very real wish to maintain that close relationship with the child, that he believed genuinely to be in the best interests of the child.
I have no doubt that the father is able and will continue to be able to meet, in every respect, the needs of the child. It is noteworthy that, from the first report to the second report, over a period of some six months or so, Ms O noted the very much closer relationship that existed between [X] and her father and the fact that there was a distinction that could obviously be drawn between [X]’s “tracking” her mother’s movements whilst in her father’s arms on the first occasion that interviews were conducted to the very much more settled arrangements that existed when observing [X] with her father on the second occasion.
Quite clearly, Ms O noted the fact that the child:
...sat comfortably in her father’s arms and enjoyed the attention he showed her.
Ms O also commented:
Mr Stretton was significantly more confident in his care and interactions with [X].
And:
Mr Stretton has now had six months to spend with [X], as her primary carer, and has had time to confidently settle into his parental role.
It is clear that the relationship between the father and [X] has improved and no doubt will continue to improve over time. The real issue here, as I have indicated earlier, is how that can be done.
The father, I thought, to a significant degree, idealised the role that he could perform in relation to the child’s life. Ms O had commented negatively about concerns, relating to the father apparently considering that he and members of his family could meet all of the needs in relation to the child, without a real appreciation of the very real significance and importance to [X], of a relationship with her mother.
That was evidenced, I thought, on a couple of occasions in evidence that was given, particularly when the father, when answering questions relating to the care arrangements to be put in place with regard to [X], seemed to have no appreciation whatsoever of the fact that, whilst there would be, obviously, benefits of interaction with his sister, the child’s aunt, and her children, [X]’s cousins, there was a balance to be looked at, and one which did not favour other family members, over and above the mother being available to provide that care and supervision.
Again, the distinct impression of the father’s view in that regard was that, if he provided suitable arrangements in relation to [X]’s care, then that was all that mattered, without, if you like, the more “in-depth” appreciation of the fact that, if he was not available to care and the mother was available to care, then there was, obviously, benefits to the child which outweighed the convenience to him of such arrangements or the wishes that might be expressed on the part of other family members, including his father and sister.
Notwithstanding that, however, I have no doubts that the father is able to reorganise his time, at least to some degree, to ensure that he is able to be involved closely in [X]’s life and that he would put that to the fore in relation to ensuring that his work was secondary, as best it could be, to the time that would be available to be spent with [X].
I am satisfied that the father is able now to meet those needs in relation to the child, and that, as time passes, he will become, as already observed by Ms O, more and more comfortable in that role, and more particularly, that [X] will become more comfortable with him in that role.
That’s not to say, however, that there could not and should not be significant improvements in the interactions between the mother and the father. The fact is that [X] is only one year of age. She will require, and is entitled to expect, both of her parents communicating well and ensuring that there is proper discussion and exchange between them, with regard to the decisions to be made, in relation to her future long-term best interests.
Both the mother and the father propose that there should be equal shared parental responsibility, but at the present time there are certainly, at least on occasions, concerns as to the capacity of the parents to communicate properly with each other. Both acknowledge that there had been improvements over time in relation to their communication, though both quite obviously saw that there could be further development. In that regard, there certainly needed to be steps taken by both parents, but, as I am speaking about the father here, certainly on the part of the father, to improve his capacity to communicate with the mother and to appreciate her perspective.
The exchange that occurred over what might be called the “pierced ear incident” and the fact that the father was abusive of the mother is troubling, particularly so in light of the fact that, as he says, he had [X] in his arms at the time and the child must obviously have picked up the tension that existed, between the mother and the father. It is not an easy task, but it is an essential task to ensure that if there is, as both parents propose, equal shared parental responsibility, that there be a recognition of the fact that there must be compromise and flexibility, on the part of both parents in that regard.
Notwithstanding those few criticisms in relation to the father, I am generally satisfied that his relationship with the child is one of a positive nature, that his relationship with the child is one that he puts to the fore, and is one that he is determined to strengthen and develop.
What does trouble me, however, and I have already commented briefly upon it, is the fact that there is, at least at this stage, a lack of full appreciation, I would think, on the part of the father, of the importance of the relationship with the mother. The perception that was noted by Ms O, and I must say to some extent it was apparent to me, that the father and his family would be able, as a single unit, to meet all of [X]’s needs does give rise to a concern as to the full appreciation of the importance of the mother in the child’s life and of the need for that to be fostered and developed.
It is noteworthy, however, and to the father’s credit, that he has taken certain steps in relation to attending parenting courses and the like, to help him better appreciate the issues that will arise and the difficulties that certainly will occur on occasion in respect of he and the mother parenting separate and apart. I was, notwithstanding these few issues, generally impressed with the father and his capacity in relation to this matter.
Similarly, I was impressed with the mother and her capacity to meet the physical needs of [X]. There is clearly no doubt that there is the primary attachment, in fact the mother emphasised it repeatedly in her evidence, between she and [X]. What is troubling and what continued to be troubling, however, was that there was a lack of appreciation, I thought, to any real extent, on the part of the mother of the importance of the emotional attachment that [X] should have with both her mother and her father.
I gained the distinct impression that there was a real lack of appreciation, to any real extent, on the part of the mother of the importance of the father in the child’s life and the real benefits to [X] of having that close association with the father. The mother seemed very quick to minimise any benefit or importance to [X] of that relationship being fostered and developed, and was very quick to exaggerate and emphasise the importance to [X] of, in all respects, being aligned with the mother and her wishes. In fact, I gained the distinct impression that, whilst the mother denied it, there was a very close affiliation, at least, from the mother’s perspective, of the benefits to the child, if there were benefits to her.
Whilst I am mindful, of course, of the need for the mother to be settled, stable and happy in her life, because that would emphasise her capacity as a mother, I gained the distinct impression that the mother being happy was, if anything, more to the fore in believing that, if she was happy, the child would be happy, and the fact that it might be, in many respects, devastating for the father to have a significant separation from the child, was of little consequence.
Ms O, when asked about that, noted that if, as the mother proposed immediately, there was a significant reduction in time spent by the father with the child, including down to no overnight periods, as well as very limited opportunities for interaction of any nature, if in fact the mother were immediately to travel to the Gold Coast, that the child would be confused and that it would affect her bond with her father, in no real respect appears to have influenced the mother in her feelings, or wishes with regard to this matter.
I was troubled by much of the mother’s evidence, therefore, in relation to the fostering of a relationship with the father. It was emphasised in both reports by Ms O, and of course on the part of the legal representatives for both parties, that there was an issue with regard to each parent’s capacity to facilitate a relationship between [X] and the other parent and their family. It was also noteworthy that there had to be a consideration of the child’s capacity to maintain a close and meaningful relationship with the parent with whom she will not live.
The fact is that the mother, unfortunately, I thought, placed very little weight on that, as a significant issue. If you like, “she talked the talk”, but my impression was that it was very different when she was asked to, “walk the walk”. The mother was very much inclined to the view, as I have said, that what was right for her was right for [X] and the father was not even perhaps a secondary consideration in that regard, but simply the child’s father, and if he loved the child, as he clearly did, then that was all that was important.
The mother was, I thought, nonconciliatory in relation to her interaction with the father, and there was a very real lack of flexibility in relation to arrangements that might need, over many years to come, to be made with regard to the parenting of [X].
That is not to say, as I have already indicated, that the father also needed to consider elements of flexibility and the need to put the child’s best interests ahead of what either his or the mother’s wishes might be, but I gained, unfortunately, the distinct impression that the mother was far less likely to properly appreciate the benefits of that in relation to the child and that, therefore, there would be little flexibility on the part of the mother, when it came to putting the child’s best interests ahead of her wishes.
In fact, as I have commented already and will, no doubt, comment further in these reasons, Ms O noted that the mother was not, “as conciliatory as she sees herself”. The impression I got was that the mother saw herself in almost some spectacular light, as a parent who was able to ensure that the child’s best interests were in every way met, simply by ensuring that the child did whatever the mother wanted.
I gained, unfortunately, an impression that the mother was very quick to see herself as the sole arbiter and determiner of what might or might not be in the best interests of the child. It gave rise to the continued difficulties that the parents were experiencing in relation to issues with regard to their communication with each other and their discussion, as to what was in the best interests of the child.
I do not intend at length to go through all of the evidence in relation to those difficulties and the position taken by the mother in relation to them, but it is clear that having the child’s ears pierced when not further consulting with the father was not an appropriate step to take. It was clear that the mother, immediately seizing upon a suggestion of a total cessation of overnight periods of time with the father in the first family report, was not something that could have been considered to be properly appreciated by her, when it would have such radical effects upon the father and the father’s relationship with the child, and it again emphasised, as was noted by Ms O, the fact that neither the mother or the father, to any real extent, appreciated what obligations and responsibilities fell upon them when, as they both suggested, there should be equal shared parental responsibility.
The distinct impression that was gained in relation to this matter was, that the mother was determined, as she said she was the primary carer, to get her own way in relation to whatever might be appropriate.
I was troubled, as I commented earlier, also by the fact that I did not consider the mother to be as truthful a witness as might have been hoped to be the case, because it leads to a real concern as to whether the mother would, as she said and emphasised that the court should accept, would foster and develop the relationship with the father. The mother had made a number of decisions and taken a number of steps in separation which did not reflect well upon her, and certainly did not reflect well upon her appreciation of the importance of the father in the life of the child, or in fact the relevance of the father, in relation to any such matters.
The mother referred to herself in a Facebook page as a “widow”. There were no, “ifs, buts or maybes”, as to how that occurred, though the mother tried to suggest that perhaps her Facebook page had been, “hacked into”. The mother showed little appreciation of feelings of the father, and when, in conjunction with that entry on her Facebook page, within a day or so before she had left a rather unpleasant display at the former matrimonial home, which could only be construed as a funeral coffin with a suggestion of the end of the relationship contained within it, means that there was a hurtful and determined nature on the part of the mother, to get her own wish.
The fact that she lied, and she did lie, to the police in order to have the two dogs that had previously been in the care of both she and the father taken into her care was also troubling, as was her lack of frankness and veracity in relation to the charges made against her brother, Mr D. It was also clear that the mother placed her parents and family support as far more beneficial to [X], than would be the situation of the family support provided by the father.
As I said before, both parents lacked, I thought, a real and mature appreciation of the benefits that could flow to [X] from a beneficial relationship with each other and with extended family members, and that makes the making of orders with regard to equal shared parental responsibility more difficult.
In that respect, I note the fact, as I have said, that both parents seek orders for equal shared parental responsibility, but such a decision is one that still, in the ultimate determination, falls upon the court. Both the mother and the father, therefore, are able, clearly, to meet the day-to-day needs of the child, but there is a very real concern that neither parent fully appreciates or recognises the importance of the other, in the life of the child.
Such matters were touched upon very significantly by the report writer in relation to the evidence given in respect of this matter. It is noteworthy that the report writer, in her recommendations, suggests, as I think a starting point in the first report, that there should be a moratorium put in place in relation to the mother’s capacity to relocate, and that this moratorium should last until [X] was five years of age. A moratorium is still recommended in the second report, but it is suggested that that would be perhaps only until [X] was two years of age, there being greater weight clearly placed by Ms O upon her concerns in relation to the mother and her acute desire to move back to what she sees as her place of origin and therefore, what she sees as the place best suited for her to be able to be the most appropriate and best parent she can be.
I was enormously impressed with the evidence of Ms O in relation to this matter. She was, I should say, an expert who I thought was fully apprised of the information available in relation to this matter and had turned her mind specifically to the positives and the negatives in relation to each of the parents. I thought that her comments in the second report relating to the father’s determination to avoid full or proper participation in the report was acknowledged to have arisen from a feeling of disappointment on the part of the father with regard to the initial recommendations, but her assessment of the character of the father, as a result of not being able to put to one side those feelings, was of assistance.
I thought Ms O’ assessment of the emotional dependence, and to some extent physical dependence, of each parent upon their extended family was an astute observation, in relation to this matter.
It is noteworthy that Ms O recognised that there was a continuing dependence by the father upon his family, and perhaps even to some extent, following the death of his mother, a greater reliance upon the support and encouragement of his father and his sister. By the same token, however, she acknowledged that the mother had perhaps “idealised life at the Gold Coast”, especially when she was so unhappy in Townsville. There was, I thought, a real appreciation of the conflicting issues in relation to the positions taken by both the mother and the father.
Of particular assistance in relation to this matter, however, was the information provided by Ms O, not only in the written reports but also in her oral evidence, of the effects upon a parent, in this case, the mother, if there was not a full appreciation given to her real desire to return to what she sees, as her place of origin. She acknowledged also that the father may have serious adjustment issues if he were to move to the Gold Coast, and that, whilst he made, quite properly, that offer to do all that he could to support his daughter, as he reported to her, “I’m in it for the long haul”, he may not have fully explored or certainly appreciated the difficulties that would be inherent in a move by him, away from that close association with his own family.
By the same token, however, Ms O noted on more than one occasion that research had shown that the primary attachment, which here is acknowledged by her and recognised by the father as being to the mother, is most significant in a child’s adjustment, and that there was a risk to [X], if the mother was not able to cope.
She acknowledged that if the mother was not coping, she would not parent as well, and in answer to further questions in that regard noted again, that research had shown reductions in capacity to fully and appropriately parent, if there was that continuing lack of ability to cope with the situation that a parent was in.
More particularly, Ms O again noted that there was a direct correlation in relation to a mother’s adjustment and a child’s adjustment post-separation, to the world in general. Ms O stressed that the child would take on the mother’s, “emotional baggage” and would be affected by it. As Ms O indicated, she would learn dysfunctional ways of being part of the world, because of the unhappiness on the part of her mother. It was telling evidence in relation to this matter, and it was a matter which obviously is of significance in relation to the determination of these proceedings.
I must say that I was also assisted by the evidence of Ms O in relation to my own queries raised with regard to the mother’s and the father’s capacity to cope with a change in situation, whether there is a moratorium or not, but most particularly by Ms O’s assessment of how [X] might deal with change.
Ms O noted that, if, as I put to her, the mother was required for say a period of 12 months to remain in the same locality as the father, so as to further foster and further develop the relationship, particularly as
Ms O had indicated that she thought that it would be appropriate until at least two years of age, then she believed that the mother would be able to cope with such a situation, knowing that there was what I might call “light at the end of the tunnel”.
Insofar as the father was concerned, she, interestingly, was not as positive as to the father’s capacity to cope. I had raised with her the issue of the fact that the father had said that he would go out of his way to put the child to the fore and, if necessary, would relocate. I inquired whether, if the father had some time to put in place arrangements, perhaps the 12-month period similar to that which I had raised in relation to the mother’s remaining in the locality, whether the father would be able to readjust and to make plans for the future. She indicated that she was not sure. She thought that it might depend on how the father perceived the outcome of the proceedings and whether he looked at it defensively, to see what was wrong with it, and therefore appointed blame, perhaps toward the mother, or whether he looked at it as an opportunity to best use his time to develop his relationship with [X] and also to ensure that there were opportunities for the future.
I must say that Ms O’s astute assessments in relation to the parents was of considerable assistance in relation to this matter, and in particular her assessment of each party’s capacity to adapt to change was of assistance in relation to these proceedings.
Most significantly, however, I was aided by Ms O’s comments in relation to how the child would deal with any radical change, in relation to the arrangements that were currently in place. At present, pursuant to the orders that were made in August of 2010, [X] spends three nights a week in the care of her father and there is also the opportunity for a midweek period of some three or four hours in the father’s care. If that were to change immediately to no night-time opportunities and very significant gaps in time spent with the father, then Ms O indicated that the child would be confused. More particularly, and I think significantly, in relation to this matter, Ms O also noted that such a radical change at this time, when the child was only just one year of age, would, without doubt, interrupt her bond with her father.
I must say that I found Ms O’s evidence in relation to this matter to be of very particular assistance to me. It reflected an acute understanding of the dynamics of this family and of the effects upon both the mother and the father of the changes that the other proposed in relation to the parenting of the child. Most particularly, however, it addressed the concerns that obviously must arise in relation to the primary attachment being to the mother and the fact that the mother is not, at this stage, functioning at an optimal level, because of the fact that she does not have the support that she so obviously wishes and which, if anything, will, to a significant degree, alter and perhaps even deteriorate, as a result of the fact that, pursuant to the property orders that have already been entered into, the mother, one month after the making of these orders in relation to parenting, will no longer have the settled and stable arrangement of remaining in the home at Property H.
All in all, I was greatly assisted by both the report and addendum report prepared by Ms O and, I thought, her well‑considered oral evidence, in relation to these proceedings.
I turn now to the law in relation to this matter.
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FAMCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “PARENTAL RESPONSIBILITY” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties especially in relation to with whom the child should live and where the child should live. In Lansa & Clovelly, Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict”. That is not so much what arises here but rather a lack of genuine appreciation by either parent of the importance of the other in [X]’s life.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
The issue of parental responsibility is clearly one of the most significant issues to be determined in relation to the parenting of a child. Here, fortunately, the parties are in agreement that there should be equal shared parental responsibility. That is recognised by both parents as being the appropriate course to follow in relation to the matter, notwithstanding the fact that both, at least to some degree, complain about the difficulties in communication that exists between them.
Both however, were adamant that they could “try harder” and work toward a more consultative approach in relation to arrangements to be made with regard to the parenting of their child. Quite clearly, [X] deserves the parents to work together, and they both recognise that no matter what might be the final arrangements in relation to parenting, it is appropriate that both have significant input in relation to the parenting decisions to be made, particularly those of a long term nature.
As was indicated and commented upon, by Murphy J, in Lansa & Clovelly, to rebut the presumption of equal shared parental responsibility, it is necessary for the court to make a finding that it would not be in the best interests of the child, for the presumption to be applied. Whilst, of course, a court is not bound by the agreement of the parties, and in fact it is clear that the paramount consideration is the welfare and the best interests of the child, and the court must be satisfied that what is to occur, even if agreed, is in the best interests of the child, I am of the view that what the parties propose in this respect, is the appropriate course to follow.
The parties are intelligent young people. Whilst there have certainly been criticisms made of both in respect of how they have dealt with this difficult phase of their lives, I have no doubt that it is in the best interests of this child that there should be equal shared parental responsibility, and that the parents can, and will, appropriately deal with each other so as to ensure that the decisions to be made, now and into the future, affecting the long term welfare of [X] are properly considered and determined, by the two of them.
Having decided that equal shared parental responsibility is the appropriate course to follow in relation to the matter, the court is inexorably directed, pursuant to the provisions of the Family Law Act to section 65DAA. What is detailed there, is that the court is to consider the child spending equal time, or substantial and significant time with each parent in certain circumstances.
Section 65DAA (1) through (5) is in these terms:
Equal time
65DAA(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
65DAA(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
65DAA(3) [Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
65DAA(4) [Subsection (3) does not limit other matters to which court can have regard] Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
65DAA(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) 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 (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
The child’s relationship with her parents is, of course, her primary relationship, but there are also as noted in section 60CC(3)(b)(ii) a requirement to consider the relationship that the child has with other persons, including any grandparent or relative of the child. In that respect, there are again competing perspectives to be looked at in relation to the matter, because it is obvious that [X] has those normal filial attachments to the extended family of both the mother and the father.
The fact is that no matter with whom the child was to spend the majority of her time, there would obviously be the opportunity, particularly as she grows and develops, to foster the relationship with other members of her family, and to ensure that the existing bonds are further developed.
It would be remiss of me, however, not to note, as was acknowledged by the father, emphasised by the mother and recognised by the report writer, that the primary attachment of [X] is to her mother.
Relevant also in relation to this matter, is a consideration of those issues arising pursuant to the provisions of 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.
There are, as is perhaps almost always the case, positives and negatives in relation to each parent in that regard. Certainly Ms O noted concerns in respect of both the mother and the father’s appreciation of the significance of the other parent in the child’s life, at least when it came to balancing that significance against what they each considered to be the great significance of their relationship, with the child.
From the mother’s perspective, it appears clear, and it was emphasised by her repeatedly in evidence given in relation to this matter that the primary attachment was to her and it was almost, as I have noted previously, a situation of the mother feeling that if she were happy and got orders which provided for what she wanted in relation to this matter, then almost by way of a, “trickle down effect,” [X] would be happy.
It was troubling because it showed a less than positive appreciation by the mother of the importance of the father to the child and the importance of the relationship being further fostered and developed, over and above that which already exists. The mother’s position in respect of that position troubled me, because I gained the distinct impression that there was little genuine appreciation of the importance, not only to the father but more particularly to [X], in the relationship being fostered and developed, than that which was stated by her, rather blandly, in the proceedings before me.
Balanced against that, unfortunately, were similar concerns that arose in relation to the father. Ms O noted, on a number of occasions, that there appeared to be a somewhat elitist or superior stance taken by the father in relation to his capacities and, in particular, his families capacities to provide for each and every need of [X], and in that instance it was of concern because there was, similar to the stance taken by the mother, a distinction that could be drawn between what each parent stated was their intent and willingness to facilitate the relationship with the other parent, as opposed to what the actual observations of their behaviours would indicate.
In the end, both parents would no doubt put the best interests of the child to the fore and whilst there was a less than optimal indication by either parent of a willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent, I am satisfied that both would, when put to the test, ensure that the needs of the child were to the fore and that the child’s right to a meaningful relationship with the other parent was fostered and developed.
Section 60CC(3)(d) is also relevant in relation to this matter because it requires the court to look at a multitude of competing effects that might occur in relation to the child, dependent upon what orders were made. Obviously, if the orders sought by the father were to be put into effect, then there would be no geographic change on the child, though the orders that have been agreed in relation to property settlement to be effected between the parties, means that there will certainly be a change of residence for the mother, whether that is to another place in Townsville or to the Gold Coast as she seeks.
If there were less of a geographic upheaval in relation to [X], however, it would need to be balanced against the concerns that were repeatedly expressed by Ms O and which I believe are genuinely existing in relation to the mother and to her happiness or contentment. It is a factor which properly needs to be considered and, of course, in a finely balanced case, is a matter of real significance. As the Full Court noted in McCall & Clark (2009) FLC 93-405, it is an element to be looked at, particularly if it affects one parent or the other’s capacity to provide the best that they can as a parent for the child.
Balanced against those types of considerations, however, are the obvious effects that would be had upon [X] if, for example, the mother were able to move and therefore that there was a very great reduction in the time or opportunities for time to be spent by the father with the child. No doubt any change to the existing arrangements would be difficult for [X], but when one considers that a physical change of residence would be disturbing but far more disturbing would be the situation if the mother’s capacity to parent and to continue as the primary carer was significantly affected, as a result of her unhappiness, then the balance between the types of affect that might occur, clearly favour orders in time being made in terms of those which are sought by the mother.
Of course, if such orders were to be made then the considerations that must be looked at pursuant to the provisions of section 60CC(3)(e) become very relevant. There would be obvious difficulties, both practically and financially that would arise from arrangements being put in place in terms of that which is sought by the mother. It may not, however, be so daunting a situation if, as the father suggested, he would “do anything for his daughter” and that included him looking for alternative employment in the same locality as the mother, so as to continue his close involvement with the child.
I have no doubt that the parents would appropriately make arrangements in relation to [X] spending time with the other parent, no matter what locality she was to live in or no matter which parent she were to live with, but it is a factor that must be looked at, particularly in light of the fact that at the current time the mother is not in employment and that therefore there would be a serious financial difficulty imposed upon the father and, perhaps to a lesser extent but just as dire, upon the mother, if the parties were to live significant distances apart.
Relevant in relation to this matter, as is always the case, are those matters which need to be considered pursuant to provisions of section 60CC(3)(f) and (i). Each of the parents are clearly able to meet the intellectual needs of the child. There was no suggestion that either was not properly appreciative of the importance of a good education and appropriate goal-setting for a child, as well as, of course, the assistance that would be necessary in relation to [X]’s path along through education.
Each parent would be able to meet, no doubt, the fundamental emotional needs of the child, though, as I have already commented, there are some doubts that I have in relation to each parent’s complete capacity to recognise the emotional consequences for [X], if the relationship with the other parent were not fostered and developed. On a basic level, however, each parent has the appropriate capacity to provide for the child and to ensure that emotional and intellectual needs are appropriately dealt with.
Similarly each parent has a loving and close relationship with their daughter and, of course, their attitude to the child is an appropriate and proper one, where there would be, in my view, little or no possibility of either parent acting in a manner other than which would be caring and protective of the child in every proper manner. Of course, that is not to say that either parent could not improve in their attitude to the responsibilities of parenthood and I have already, of course, commented upon such issues, particularly with regard to the exchanges between the parents in the presence of the child and the obvious consequences of that.
Similarly, both could improve in their genuine recognition of the importance of the other parent in the child’s life but in an overall view, there is little that could be said of a critical nature in relation to either parents current capacity to meet the needs of the child, including emotional and intellectual needs or the more wide-ranging responsibilities that arise in relation to parenting.
There is, however, a need to recognise that whilst there is that current capacity vested in each parent, there is also a concern as to, in the longer term, the capacity of each parent to provide for the child’s intellectual and more particularly, emotional needs. In that respect, I refer, of course, to the issue to which I have already commented in respect of the mother, which is the effect upon her capacity to parent if there were a refusal to allow her to relocate, as she seeks, such that there would be an impediment on her close interaction and therefore provision of support from members of her family.
She is the primary carer. She is the parent who certainly in the shorter term, is recognised as being the one who will be more significantly involved in the day to day care and provision for the child and it is a factor that must, obviously, be considered in relation to the final arrangements that might be made, with regard to the parenting of [X].
I have previously commented about issues in relation to domestic violence and the pleasing findings that are made with regard to it being of little or no relevance in relation to the determination of this matter. Similarly, there are no issues which would give rise to difficulties in respect of the parenting of the child attaching to issues with regard to the maturity, lifestyle, sex or background of the parties which might effect their capacity to parent. Neither parent suggests any cultural issues, be they Aboriginal or Torres Strait Islander cultural matter or other cultural issues which might be relevant in relation to the determination of these proceedings.
Section 60CC(3)(l) requires the Court consider the various orders that are to be made and the alternatives that are proposed and to, as best as possible, make orders that would be least likely to lead to the institution of further proceedings in relation to the child. Of course, there is no perfect answer and certainly it is impossible for a Court or for anyone, to determine what the future might hold. What is obvious, however, is that providing a settled and stable structure, in light of the current circumstances that exist, is the best basis upon which it would be hoped that there would be less likelihood of further proceedings being commenced.
In that respect it is noteworthy, therefore, that the orders which are sought by the mother and which would enable her to relocate at some stage to the Gold Coast area, and to therefore be much closer to her family, would provide a better opportunity for a happy life and therefore a more adjusted more settled life for both the mother and the child. More particularly, and of course it is to the father’s very great credit, there is every real prospect that with time, the father may also be able to find employment in the same locality as that which the mother seeks to live in and that therefore there would be that greater opportunity for significant involvement by the father in the child’s life, both on a physical and emotional level, and that that, one would think, would be more likely to ensure a stable and settled routine and a circumstance which would be less likely to lead to further proceedings.
The alternative, of course, is to require that [X] remain in Townsville or surrounds in which case the mother has already indicated that she would remain, because of her close attachment to the child, but what that would also mean is that there would be, as Ms O noted with concern, a real prospect of a decline in the mother’s own capacity to parent and her own emotional and mental wellbeing, such that there would be significant effects upon the mother’s lifestyle and therefore, of course, upon the child generally.
It is a factor that needs to be considered because if the mother were to deteriorate insofar as her emotional balance or stability were concerned, then there would be a real prospect of further proceedings instituted by her seeking further opportunities to relocate or even possibly further proceedings instituted by the father seeking a readjustment or reconsideration of issues in relation to parenting because of those concerns relating to the mother’s health and wellbeing. It is a factor that is relevant in relation to this matter.
In the end, it is a finely balanced case. It is a situation of two loving, caring and nurturing parents both wishing to have as much involvement and significance in the life of their daughter as can possibly be arranged. Unfortunately, as is so often the case in a country the size of Australia, the pressures and “pulls” upon each of the parents, including their own family attachments and wishes with regard to their future, mean that very significant distances might be put in between where one parent is settled and stable and where another parent would be settled and stable.
It is a relevant consideration in relation to this matter and it is, in the end, what has lead me to form the view that subject to there being the moratorium which was, I think properly suggested by Ms O, so as to facilitate further fostering and development of the relationship between the father and the child, that there would then be an opportunity for the mother to relocate. It would provide not only that benefit to the mother of knowing that she would be able to return to the locality in which her family resides and therefore would provide that contentment which would enable her to be the best parent she could be but it would also enable, with time, an opportunity for the father to consider his own relocation, to seek alternative employment and to ensure that he has the opportunity to be more closely involved on a longer term basis in the life if the child.
I intend, generally, therefore to put in orders with respect to that particular aspect of the matter but I should note that I intend to make orders which in fact are, to some extent, directive upon the mother. By that, I mean that with the opportunity to relocate, in time, will come a positive obligation to do so. In particular, the mother will not be able to change her mind because of the establishment of a relationship in North Queensland or in any other place. The father will be able to make arrangements with assurance in relation to a move to be facilitated by him and it would be inappropriate, in the extreme, for the mother to consider that there were other open alternatives to her without a more complete, and if you like, fresh investigation of the interests and welfare of the child.
Having made those final comments in respect of the matter, however, the orders that I intend to make in relation to this matter are as follows:
(1)That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2010, including but not limited to:
(a)the child’s education;
(b)the child’s religious and cultural upbringing;
(c)the child’s health; and
(d) the child’s name.
(2)That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a) They shall inform the other parent about the decision to be made;
(b) They shall consult with each other on terms that they agree; and
(c) They shall make a genuine effort to come to a joint decision.
(3)Notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
UNTIL THE CHILD ATTAINS THE AGE OF TWO YEARS
(4)That the child live with:
(a)The Mother in Townsville from 8.00am Monday until 5.30pm Friday; and
(b)The Father in Townsville from 5.30pm Friday until 8.00am Monday.
UPON THE CHILD ATTAINING TWO YEARS OF AGE AND PRIOR TO THE CHILD COMMENCING PRE-PREP
(5)That if the Mother and the Father are living in the same locality, be that Townsville or the Gold Coast, then the child live with:
(a)The Father from 5.30pm Thursday until 8.00am Monday in each alternate week and that in the other week the child live with the Father from 5.30pm Wednesday until 8.00am Thursday; and
(b)Otherwise, the child live with the Mother.
ONCE THE CHILD COMMENCES PRE-PREP
(6)That if the parents are living in the same locality, the child live with each parent on a week-about basis, with changeovers occurring on Friday with the parent who has had the child to deliver the child to school on Friday and that the parent who has not spent the week with the child to collect the child on that Friday afternoon.
HOLIDAYS
(7)That upon the child turning 2 years of age and until the child commences pre-prep, that each parent have the opportunity to spend two two-week periods with the child, provided however that notice is given in writing no less than 28 days prior to the commencement of any such period of time to the other parent and provided however that such periods do not include Christmas Day, the Easter weekend, the child’s birthday, either parents’ birthday, Mothers Day or Fathers Day.
(8)That upon the child commencing pre-prep, then such periods as are provided for herein shall be suspended during the gazetted school holiday periods and that each parent is to spend one half of the school holiday periods with the child, with the Mother to have the first half in odd numbered years, and the Father to have the second half in odd numbered years, and the Mother to have the second half in even numbered years and the Father to have the first half in even numbered years.
RELOCATION
(9)That the Mother be given leave to relocate with the child to the Gold Coast as and from the first day of July 2012.
(10)That unless agreed in writing as between the parents or pursuant to an order of a court of competent jurisdiction, the Mother does not have leave to relocate to any other place than the area defined by the borders of the Gold Coast City Council and that unless consented to in writing by the Father or ordered by a court of competent jurisdiction, the Mother is required to relocate to the Gold Coast by 4.00pm on 31 August 2012.
(11)That in the event of the Father not living in the same locality as the Mother pursuant to these orders, then the Father spend time with the child until the child commences pre-prep, at all reasonable times as agreed and, failing agreement:
(a)For two periods of up to four (4) nights, such periods to be at least 28 days apart in each four-month period of January-April, May-August and September-December in each year upon the given of at least 14 days notice in writing to the Mother of his intention to spend such time with the child; and
(b)For two two-week periods with the child, provided however that notice is given in writing no less than 28 days prior to the commencement of any such period of time to the Mother and provided however that such periods do not include Christmas Day, the Easter weekend, the child’s birthday, either parents’ birthday, Mothers Day or Fathers Day.
(12)That in the event of the Father not living in the same locality as the Mother pursuant to these orders, then the Father spend time with the child upon the child commencing pre-prep, at all reasonable times as agreed and, failing agreement:
(a)For two periods of up to nine (9) days from after school on a Friday until 5.00pm on the Sunday following nine days later in each gazetted school term, provided however that the Father gives at least 28 days notice in writing to the Mother of his intention to spend such time with the child and for the Father to ensure that during any such period of time that the child continues participation in all regular school and extra-curricular activities.
(b)For one half of the school holiday periods, with the Mother to have the first half in odd numbered years and the Father to have the second half in odd numbered years, and the Mother to have the second half in even numbered years and the Father to have the first half in even numbered years.
(13)That for the purposes of defining the first and second half of gazetted school holiday periods that the following apply:
(a)the first half of a gazetted Easter school holiday period is 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Tuesday;
(b)the second half of the gazetted Easter school holiday period is from 6.00pm Tuesday following the Easter public holidays to 6.00pm on Sunday preceding the recommencement of school;
(c)the first half of a gazetted June/July or September/October school holidays shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(d)the second half of a gazetted June/July or September/October school holidays commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(e)the first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(f)the second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
(14)That the child shall be permitted to communicate with the parents by telephone, webcam and/or other electronic means as may be able to be arranged at all such times as the child may request, with the parent having the child in their care to facilitate the call and ensuring that the child is able to take the call in a quiet and private environment.
(15)That the parent not having the child in their care shall be able to communicate with the child by telephone, webcam and/or by other electronic means on Tuesdays and Fridays at 6.00pm, or on other days and times as may be agreed in writing, with the parent not having the child in their care to be responsible for making the call and the parent having the child in their care to ensure she is available to take the call in a quiet and private environment.
(16)That the parents shall:
(a)keep the other parent informed at all times of their residential address and contact telephone number;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child; and
(c) inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
(17)That by this order, the parents irrevocably authorise the schools, day care centres, extra-curricular activity providers, medical specialists and other treating health care practitioners, attended by the child to give each parent information about the child’s progress, treatment or as the case may be and to provide any and all documentation requested by a parent (at the requesting parent’s expense).
(18)That unless otherwise ordered pursuant to these orders or agreed in writing, that the Father shall be responsible for the collection of the child from the Mother’s residence at the beginning of any period of time that the child is living with or spending time with him and that the Mother shall be responsible for the collection of the child from the Father’s residence at the conclusion of any period of time that the child is living with or spending time with him.
(19)That when the child is spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to take the child overseas and in relation to same:
(a)The travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the child and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the child sill stay) at least 28 days prior to the scheduled departure;
(b)Upon receipt of same the other parent shall forthwith release to the travelling parent the passport for the child;
(c)The travelling parent shall then provide to the other parent a copy of the return air tickets for the child; and
(d)During the trip the travelling parent shall arrange for the child to telephone the other parent on at least one occasion on every second day that the child is overseas.
(20)That the parties sign a passport application and do all such things necessary for an Australian Passport to be issued in the name of the child, within 14 days from the date of these Orders.
(21)That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these orders, the parents, before making any further application to a Court shall, save in the case of emergency:
(a)Either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 or by the Commonwealth Attorney- General; or
(b)Participate in family dispute resolution with a Family Relationship Centre, or a person authorised under section 10G of the Family Law Act 1975.
I certify that the preceding one hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Coker FM
Date: 1 July 2011
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