Swayne and Settle
[2008] FMCAfam 682
•23 September 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SWAYNE & SETTLE | [2008] FMCAfam 682 |
| FAMILY LAW – Parenting – best interests of the child – relocation. |
| Family Law Act 1975, Part VII, ss.60B, 60B(1) & (2), 60CA, 60CC (2), (3), (3)(c) – (g), (i), (l), (4), (4A), 61DA, 65DAA, 65DAA (1), (2) |
| AMS v AIF (1999) 199 CLR 160 R. Chisholm, “Recent Cases: To what extent can the court make orders that inhibit a parent’s right to relocate?” (2008) 22 Australian Journal of Family Law 154 |
| Applicant: | MR SWAYNE |
| Respondent: | MS SETTLE |
| File Number: | CAC 383 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 23 May & 13 June 2008 |
| Date of Last Submission: | 13 June 2008 |
| Delivered at: | Canberra |
| Delivered on: | 23 September 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Lessli Strong and Associates |
| Counsel for the Respondent: | Mr Gill |
| Solicitors for the Respondent: | Evans Yeend Family Lawyers |
ORDERS
All previous parenting Orders be discharged.
The child, [C] born in 2006, live with the Mother.
The parties equally share parental responsibility for the child.
The Father spend time with the child as follows:
(a)From the date of the Orders to 18th April 2009:
(i)From 10.00am Saturday to 4.00pm Sunday on each alternate weekend;
(ii)From 10:00am to 4:00pm in the alternate Saturday;
(iii)For such further or other times as may be agreed between the parties.
(b)From 18th April 2009 to 18th April 2010:
(i)From 5:00pm Friday to 4:00pm Sunday on each alternate weekend;
(ii)From 10:00am to 4:00pm in the alternate Saturday;
(iii)For such further or other times as may be agreed between the parties.
(c)From 18th April 2010 and thereafter:
(i)From 5:00pm Friday to 8:00am Monday on each alternate weekend;
(ii)For one half of each of the NSW school holiday periods as agreed between the parties, and failing agreement, the second half;
(iii)For such further or other times as may be agreed between the parties.
The Father be personally available to supervise the child during periods of time the child is to be in his care, and if he is unavailable to supervise the child, shall give the Mother the first option of caring for the child in the alternative.
For the purposes of these orders the school holiday period shall be defined as commencing at 9:00am on the day immediately following the conclusion of the school term, and concluding at 5:00pm the day before the commencement of the next school term period.
For the purposes of these Orders, the Father’s time pursuant to Order 4 (c)(i) shall be suspended during each of the school holiday periods.
For the purposes of the changeover of the child pursuant to Order 4 inclusive, that the Mother will deliver the child to the maternal grandmother’s residence at the commencement of the Father’s time for his collection of the child, and the Father shall return to the child to the maternal grandfather’s home at the conclusion of his time with the child.
In addition to the Father’s time pursuant to Order 4 herein, the Father spend time with the child as follows:
(a)On the child’s birthday as agreed between the parties or, failing agreement, for two hours if the birthday falls on a weekday and for four hours if the birthday falls on a weekend;
(b)At Christmas as agreed between the parties or, failing agreement:
(i)From 9.00am on Christmas Eve to 3.00pm on Christmas Day in each alternate year commencing in 2008; and
(ii)From 3.00pm on Christmas Day until 6.00pm on Boxing Day in each alternate year commencing in 2009.
(c)On Father’s Day from 10.00am to 5.00pm;
(d)On the Father’s birthday as agreed between the parties or, failing agreement, for two hours if the birthday falls on a weekday and for four hours if the birthday falls on a weekend;
The Father communicate with the child by telephone as follows:
(a)Each Tuesday and Thursday between 6.00pm to 6.30pm with the father to telephone the child for the purposes of initiating such communication.
If the child were to be ordinarily in the Father’s care pursuant to these Orders, the Father’s time with the child shall be suspended on the following occasions:
(a)On Mother’s Day from 10.00am to 5.00pm;
(b)On the Mother’s birthday as agreed between the parties or, failing agreement, for two hours if the birthday falls on a weekday and for four hours if the birthday falls on a weekend.
The Mother shall provide an authority to each of the child’s treating medical professionals authorizing the release of information to the Father in relation to the child’s medical health and treatment.
Each party shall advise the other as soon as practicable in relation to any medical emergency involving the child or any prescription medication or treatment that the child requires.
The Mother shall provide an authority to the child’s day care, preschool or school authorizing the release of information to the Father in relation to care or educational activities, reports, photographs and invitations and that the Father be at liberty to attend any event that involves the child at day care, preschool or school.
The parties shall exchange a communication book at the commencement and conclusion of the Father’s time with the child with the communication book to advise the other parent of matters concerning the care, welfare and development of the child while in the other party’s care.
Both parents shall keep the other informed of their current residential address and a landline and/or mobile telephone number in writing, and shall provide 7 days notice to the other parent should these details change.
Each party enroll in and complete a parenting course and to provide evidence in writing of the completion of that course to the other party.
A Family Consultant produce an updated family report in approximately 18 months time, to assess how the care arrangements in relation to [C] are progressing. In this respect, I direct the parties to contact the appointed Family Consultant in September 2009 to make the appropriate arrangements.
Upon receipt of the updated family report above, either of the parties be granted liberty to have the matter relisted upon 14 days notice.
IT IS NOTED that publication of this judgment under the pseudonym Swayne & Settle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 383 of 2007
| MR SWAYNE |
Applicant
And
| MS SETTLE |
Respondent
REASONS FOR JUDGMENT
Introduction
[C] is just over two years old. His parents, Mr Swayne and Ms Settle, are both young. [C] was conceived while his Mother was still at school.
Unlike many matters that come before this Court, there are few areas of dispute between the parties. Put another way: there is much agreement between [C]’s young parents. Both agree that he should continue to live with his Mother. Both agree that they have equal shared parental responsibility for their son.
The central issue is to decide between the competing applications of [C]’s parents, which relate essentially to what time [C] should spend with his Father, and over what time and to what degree that time should be increased.
There is one “wrinkle”, however.[1] In her original application, and in her “Orders Sought,” Ms Settle said that she wished to relocate from Canberra, where her Mother and the rest of her family live, to Goulburn, where her Father lives. She had also lived there herself, somewhat briefly, with her then new partner, Mr R. Unfortunately, that relationship no longer exists. At the time of the trial, Ms Settle lived with her Mother, albeit not too comfortably.
[1] Mr Gill, Counsel for Ms Settle, described it as “… the only joker in the pack.” Transcript (23rd May 2008) p.88.
The `relocation wrinkle’ took an interesting turn in the course of the second day of hearing in mid-June. Her experienced Counsel, Mr Gill, submitted that rather than the Court making any formal determination – one way or the other – about his client relocating, a “third way” was for the Court essentially to ignore the relocation and simply make orders that were in [C]’s best interests. In Mr Gill’s view, the Court could and should disregard relocation as an issue in the trial.[2] This would allow Ms Settle to live wherever she could best afford to do so, but of course comply with orders regarding [C] spending time with his Father. To say the least, it was a novel, interesting and in many respects a not unattractive submission. I will come back to it in due course.
[2] In his own words, Mr Gill submitted [first par. p.27] Transcript (13th June 2008):
“Now, if I could take your Honour then to the question of Goulburn, and again if I can emphasise that at the end of the proceedings, your Honour may well be of the view that Goulburn just simply is not a matter that requires either an order permitting her to relocate or an order restraining, but it is a matter in which the Court can be ambivalent, particularly if the Court embraces the orders that are made - that are sought by my client or recommended by the family report writer, because then it is a question of logistics for the mother to deal with, however she is going to deal with that. And what is clear is that she has dealt with a frequency quite similar to that which has been recommended by the report writer, even whilst she resided in Goulburn. So, the movement to Goulburn is not an impediment to the sort of thing that the family report writer recommends.”
See also similar references by Mr Gill in his final submissions, Transcript (13th June 2008) pp.19 & 20.
Proposals of the Parties
The formal orders sought by the parties are listed summarily as follows, notwithstanding that both parties agree that [C] should live with his Mother, and that both parents should have equal shared parental responsibility for their son.
In Mr Swayne’s Minute of Orders Sought filed 21st May 2008, he seeks an order that the Mother be restrained from moving [C]’s residence from the Canberra region. He proposes that his time with [C] increase in two-monthly increments as follows:
a)First increment: Each alternate weekend (Saturday to Sunday) combined with two daytime periods in the off-week (Saturday and Wednesday);
b)Second increment: Friday evening to Sunday afternoon on three weekends out of four, and one overnight in the remaining week;
c)Third increment: Friday evening to Monday morning for three weeks out of four, and one overnight in the remaining week;
d)Fourth increment: Friday evening to Monday morning for three weeks out of four, and two nights in the off-week; and
e)Final Increment from January 2009: Five night blocks for five weeks each year during the Father’s holiday periods.
Mr Swayne also seeks orders for special time with [C] on occasions such as the Father’s Day weekend, his birthday, [C]’s birthday, and Christmas and Easter holiday periods. He proposes that the arrangements be reviewed when [C] commences school.
In her Minute of Orders Sought filed 23rd May 2008 (notwithstanding Mr Gill’s oral submissions noted earlier in relation to the relocation issue), Ms Settle seeks permission to relocate to Goulburn and thereafter an order that she be restrained from relocating [C]’s residence outside of the Canberra/Queanbeyan/Goulburn region.
Ms Settle also seeks orders that Mr Swayne’s time with [C] increase on a yearly basis as follows, unless the parents otherwise agree to additional time:-
a)Year One: For one overnight each alternate weekend, and one day in the off-weekend;
b)Year Two: From Friday evening to Sunday afternoon each alternate weekend, and one day in the off-weekend;
c)Year Three: From Friday evening to Monday morning each alternate weekend, and half of each school holiday period.
Ms Settle also seeks specific orders for time with each parent in relation to special days such as Father’s and Mother’s Day, Christmas Day and [C]’s birthday. She further proposes that the parents exchange a communication book, and that they both attend and complete a parenting course.
The Evidence
I will deal firstly with the evidence of Mr Swayne and Ms Settle, then with that from the Regulation 7 Consultant, Ms Styles. In many respects, the evidence from both parents was relatively uncontroversial. As well, some of the matters raised by Ms Settle against Mr Swayne relate to incidents shortly after [C] was born.[3] Their relevance to making parenting orders is, in my view, somewhat remote. In those circumstances I will deal with them only briefly.
[3] These incidents are canvassed in a number of documents filed in the proceedings, as well as during the trial. See, for example, Transcript (23rd May 2008) pp.11-16.
The Evidence of Mr Swayne: Mr Swayne’s evidence was given in a straight-forward way. He struck me as being a young Father with understandably somewhat limited parenting experience. He readily admitted that he liked a drink or two, but that his drinking was no longer a problem. He said that drinking was an issue when he lived with Ms Settle, now some time ago, and that he did get drunk recently at a wedding. Otherwise, he said that he has stopped drinking.[4]
[4] Generally, see Transcript (23rd May 2008) pp.17-18 & 20-22.
His claims in this regard are plausible, but they also reflected that he remains a young man susceptible to the various influences regularly encountered from friends and others to engage in drinking, sometimes to excess. That said, he seemed to me to be genuinely committed to significant involvement in [C]’s life, and was prepared to cut back on his work commitments to ensure that he could be available for his son.
Mr Swayne’s commitment was not questioned by Ms Settle. Her concerns related to his understanding of [C]’s needs, and his parenting capacity more generally based on his limited [parenting] experience. In a number of important respects, Ms Styles shared similar concerns; I will consider Report and oral evidence soon enough.
Mr Swayne expressed disquiet that Ms Styles, in his view, did not listen to him in the course of the interview prior to the preparation of her Report. He also acknowledged that perhaps [C] might not be able to cope with the schedule he proposed for increased time with him.[5] His proposals certainly are for a rather quick transition to increased time with [C]. And while he has attended one parenting course, he was more than open to attending more such courses.[6] There will be such an order.
[5] Transcript (23rd May 2008) pp.26-27.
[6] See the discussion at Transcript (23rd May 2008) pp.27-29.
Two final matters may be noted. First, [C]’s parents have been endeavouring to communicate via a communication book. That seems to have been of rather limited success. However, my impression of both Mr Swayne and Ms Settle is that once these proceedings are over and the so-called `dust of litigation’ settles, they both have the capacity to communicate about matters relevant to [C]’s care and welfare. This would have to be more than simply what he has eaten and when he has slept, these being essentially the limit of matters summarily canvassed by Mr Swayne in the communication book thus far. The further parenting courses I order Mr Swayne to attend should assist in issues of communication.
Secondly, there arose in the course of the trial a series of questions regarding child support. It seemed to bemuse Mr Swayne because, from his perspective, he has been paying the amount assessed by the Child Support Agency. He was surprised when it was put to him that Ms Settle had been getting a sum considerably less than the amount he has been paying. I mention this only to indicate that this was but another issue where there had been some contest but which, on closer examination, indicated that the fault did not rest with either of the parties and or that when each of them looked at it more closely they were basically content with what had been explained. In any event, Mr Swayne provided evidence that he was paying child support and in the amount for which he had been assessed.[7] I move to consider Ms Settle’s evidence.
[7] See the various discussions at the trial, Transcript (23rd May 2008) pp.24, 33-34 & 53, and Exhibits B & C, being respectively two letters from the Child Support Agency and Bank Statements from the Commonwealth Bank..
The Evidence of Ms Settle. Ms Settle presented as a genuinely dedicated and competent Mother. She has been [C]’s primary care-giver (a completely inadequate description of her as his Mother) since his birth, and has done so notwithstanding a degree of disability from her cerebral palsy which, in her own words that cannot be doubted, “affects the whole of the left side of my body, particularly from my hip to my foot.” She deposes to often experiencing leg pain, and that her leg will fall asleep after sitting for extended periods, such as after driving for 45 minutes or so.[8]
[8] See Ms Settle’s affidavit filed 8th May 2008, pars.81-84. In this same place she deposed to finding the travel between Goulburn (her then residence) and Canberra “particularly difficult, not only as a result of my disability but because of the ongoing cost.” Such matters are significant in relation to issues of relocation.
At the same time, there were a number of matters in her evidence that were either inconsistent or implausible or unrealistic. Again, without wishing or intending to be critical, this assessment was not and should not be taken as criticism of her parenting of [C] but more a reflection of choices made and proposed plans for the future.
For example, Ms Settle has completed some subjects towards the necessary qualifications to become a [occupation omitted]. Those subjects have been completed at [R]. She proposed that she could and wished to complete these qualifications at the TAFE at Marulan. Counsel for Mr Swayne pointed out that there is no such institution at Marulan. It was clear that her inquiries in this regard were less than complete.[9]
[9] In this regard, see Ms Settle’s confirmation in later cross-examination that she had not made any detailed inquiries regarding the studies available in Marulan. Transcript (13th June 2008) pp.6-9.
Similarly, she said that she wanted to move to Goulburn for [C]’s and for her own safety.[10] Yet there was no evidence before the Court that either she or [C] were in any danger, at least from Mr Swayne. And in any event, in her orders sought (as noted above), she proposes that [C] spend gradually increased time with his Father. This is hardly the kind of order of someone who is concerned about their safety and that of her son. Moreover, Ms Settle confirmed that she wanted [C] to have a relationship with Mr Swayne, and that she did not seek to present that Mr Swayne was violent.[11] She also said that she was happy to communicate with Mr Swayne.[12]
[10] Transcript (23rd May 2008) p.65.
[11] Transcript (23rd May 2008) pp.66 & 68.
[12] Transcript (23rd May 2008) pp.82-83. Comments such as these regarding her contentment in having contact with Mr Swayne, undercuts, in my view, the import of a domestic violence order application, dealt with by consent on the basis of various undertakings, that was sought on 12th July 2007 at Goulburn Local Court.
Ms Settle contended that she wished to go to Goulburn even though she agreed or conceded that: (a) she had a limited relationship with her Father, (b) her Father was unable to provide any financial support to her due to his own financial difficulties, (c) she is no longer in a relationship with Mr R (who lives in Goulburn) with no prospect of that relationship being rekindled, (d) she is unsure of her father’s actual location in the Goulburn region, (e) the [occupation omitted] courses she requires to complete her qualifications are likely to be at [R] where she has studied previously, (f) and she agreed with a range of propositions from Ms Haughton, Counsel for Mr Swayne, each of which confirmed that it would be best for her and for [C] to remain in Canberra where she has the benefit of a range of family members for support. She would also have Mr Swayne to care for [C] when she resumed her [occupation omitted] studies, not to mention if she wished to go out with friends.[13]
[13] These various proposition are recorded at Transcript (23rd May 2008) pp.74-76.
It will be readily apparent from this outline why Mr Gill submitted that it was unnecessary for me to make any formal order in relation to relocation, albeit that he was perhaps rather seeking that there be no order formally restraining his client from moving, with [C], outside of the Canberra region as sought by Mr Swayne. In any event, I do not propose formally making any order, one way or the other, in relation to relocation. As Mr Gill submitted, what orders I make in relation to the time that [C] spends with his Father will essentially, or in large measure, determine where Ms Settle lives.[14] I accept this proposition, subject to noting that I take this course on the basis that wherever
Ms Settle lives must not impact adversely on the ready accessibility that Mr Swayne has to [C], which currently exists because Ms Settle is living in Canberra. In accepting Mr Gill’s submission, and because of the orders I make in relation to [C] and his Father, it is, in my view, unnecessary in this matter to consider the usual raft of important relocation cases that would otherwise warrant discussion.[15]
[14] In this regard, see the comments by Professor Chisholm in his commentary on Sampson v Hartnett (No 10) (2008) 38 Fam LR 315 concerning the three ways in which courts traditionally have dealt with relocation. The learned former Justice of the Family Court said: “The second way an order could inhibit a parent’s choice of residence is by imposing particular obligations that the parent could not comply with unless the parent lived in a particular place.” R. Chisholm, “Recent Cases: To what extent can the court make orders that inhibit a parent’s right to relocate?” (2008) 22 Australian Journal of Family Law 154 at p.155.
[15] For the sake of completeness, should it be remotely necessary, a summary of principles in so-called “relocation cases,” which principles are drawn primarily from High Court and Full Court decisions beginning with AMS v AIF (1999) 199 CLR 160, is set out in my judgment in F v F (2008) 38 Fam LR 52 at pp.56-58 [7] – [8].
One final matter should be observed. In a number of important areas in her life that will affect [C], Ms Settle admitted that she had not made any or many inquiries. For example, when she was questioned by
Ms Haughton about her eligibility for housing in Canberra because of her disability (and presumably in the light of her being a single Mother), she acknowledged readily that she did not know “what was around.”[16] The same response came in relation to details regarding the requirements for and availability of courses to complete her [occupation omitted] qualifications.[17] I mention these matters not to be overly critical of Ms Settle but simply to highlight that there are a range of decisions she has to, or will, make regarding her life and work and thereby its effects on [C] and, as at the time of the trial, the factual bases upon which she could make them were not in place. I can move to consider Ms Styles’ Report and other evidence.
[16] Transcript (23rd May 2008) p.83.
[17] Transcript (23rd May 2008) p.75.
Evidence of Regulation 7 Consultant
In the course of her evidence at the trial Ms Styles confirmed that her Report was written at a time when Ms Settle was living in Goulburn. That is somewhat relevant in the sense of Ms Styles being conscious of the amount of travelling that was then occurring to facilitate the time that [C] spent with his Father. It is also relevant, and rather more so, that Ms Settle was then living in what she thought was a secure, long term relationship with Mr R. As noted earlier in these reasons, that is no longer the case both in relation to the relationship with Mr R and with Ms Settle now living in Canberra.
Towards the end of her Report (dated 3rd March 2008: par.7.8),
Ms Styles quite fairly stated:
This seemed like a matter that the parties should be able to settle themselves, particularly if Mr Swayne were able to respect
Ms Settle’s parenting skills and experience. Similarly Ms Settle would need to accept that Mr Swayne would develop his own routines with [C] over time.
Respectfully, I agree with Ms Styles’ observations. And in the course of the trial, it did appear that Ms Settle (as I have noted in passing already) had adopted a more conciliatory approach to Mr Swayne. This was proper and is very much to her credit.
I also accept and agree with Ms Styles’ observations in the following paragraphs taken from her Report:
5.15 At one point, when Mr Swayne was talking about shared care until [C] started school, I invited him to consider what arrangement might work well for [C] at this stage of his life. “I would have liked to see both parents when I wanted to see them”, he replied, adding, “I don’t think having me out of his life would be good for him.” This response probably said more about
Mr Swayne’s own experience at age 14 than about his son who was not yet two.
7.2 I had no doubt that Mr Swayne was capable of managing the physical care of [C]. His experience with younger siblings would enable him to do this with confidence. I had some reservations about his understanding of the emotional needs of a small child. He appeared to be suggesting that [C] could move straight into a “fifty fifty” arrangement until he went to preschool, having not yet spent one night with him. Such a change would represent a major upheaval in [C]’s life, and was likely to have a lasting impact. It was understandably difficult for Mr Swayne to distance himself from his own desire to have more involvement in [C]’s life. His enthusiasm to be a good dad perhaps blinded him to considerations such as [C]’s long-term emotional security. He was inclined to impose his own experience of parental separation (at age 14) on [C], who was not yet two.
Turning to Ms Styles’ evidence at the trial, I took three particular matters from it: firstly, her agreement with Ms Settle’s proposal (previously noted in these reasons), which Ms Styles thought was even more advantageous over her own graduated increase in the time that [C] spend with Mr Swayne. Secondly, she emphasised the need to `take things cautiously’ in increasing time between [C] and
Mr Swayne. Thirdly, she noted, as she did in her Report, that
Mr Swayne had some limitations on his emotional and other understanding of [C]’s needs.[18]
[18] See Transcript (23rd May 2008) pp.47-50 for the detailed examination of Ms Styles by Mr Gill on these matters.
I accept Ms Styles’ observations on these matters. It remains then to consider the statutory pathway and judicial signposts in the light of the evidence provided to the Court.
The Statutory Pathway & Judicial Signposts
I have noted that both parties seek orders for equal shared parental responsibility for [C]. There is no evidence that would militate against there being such an order. Accordingly, such an order will be made. By virtue of that order and the operation of s.61DA, the Court is thereby required to consider, pursuant to s.65DAA, whether an order for equal time should be made, or if not, whether there should be an order for substantial and significant time. There being no application for equal time, and considering that such an order in the circumstances of the case is not (in my view) in [C]’s best interests, I will consider an order for substantial and significant time after I have addressed objects and principles of, and the primary and secondary considerations in, s.60B and s.60CC of the Act.
In Mazorski v Albright (a relatively recent relocation case) Brown J summarised neatly the objects and principles of the Family Law Act 1975 (“the Act”), as well as the operative provisions that apply where there is an order for equal shared parental responsibility.[19] Her Honour said, at [3] – [6]:
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[19] (2008) 37 Fam LR 518.
A little later in her judgment, Brown J continued, at [13] & [14]:
Nevertheless, amendments to that part of the Act dealing with applications for parenting orders could be said to place far more emphasis on the importance of substantial parental involvement in their children’s lives, as noted by the Full Court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286. For example, s.60B(1)(a) now provides that an object of Part VII of the Act is to ensure that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child. This object is consistent with the introduction of the presumption in favour of equal shared parental responsibility, and is more specific about that meaningful involvement than was its predecessor.
The principles underlying the objects set out in s. 60B(2) are very similar to those they replaced, although s.60B(2)(b) is more specific about the right of children to spend time and communicate on a regular basis with parents and other significant people, such as grandparents and other relatives.
In framing the orders in these proceedings, I have had regard to the objects and principles of s.60B(1) & (2), and the primary considerations in s.60CC(2), concerning the importance of ensuring that [C] has a meaningful relationship with both of his parents, and that both of them are meaningfully involved in his life to the maximum extent and degree consistent with his best interests. Summarily, the orders I propose, largely follow those proposed by Ms Settle, and are, in my view, in accord with the principles espoused by Ms Styles. I have framed them having regard to the following additional considerations set out in s.60CC(3).
Given [C]’s age, there are no views of the child to consider. Secondly, the evidence confirms that [C] already has a meaningful relationship with both parents, albeit that the relationship with his Father, understandably, remains rather nascent.
I have noted that, notwithstanding some tensions in the past, certainly during the trial both parents made it clear that they recognised the importance of [C] having a meaningful relationship, and spending appropriate time, with both parents. In this respect, and particularly for the purposes of s.60CC(3)(c), (f), (i), and s.60CC(4) and (4A), I regard the capacities of both parents to promote and facilitate a continuing relationship with the other parent, their attitude to [C], and to their responsibilities of parenthood, like a number of other things, also to be in its early stages. Fortunately, in my view, the signs are reasonably promising. Certainly, both have a clear commitment to their parenting of [C], albeit that Mr Swayne’s appreciation of the practicalities, and not a few other things, associated therewith remain to be seen. It is clearly the case that Ms Settle has been able to provide for all of [C]’s needs, including emotional and intellectual needs. Subject to what is said below, Mr Swayne’s capacity in this regard might properly be referred to as something akin to a `work in progress’ that will unfold over time.[20]
[20] See Ms Haughton’s submissions, on behalf of Mr Swayne, in this regard confirming that both parties in the past, and seemingly now are more than intent on working together in relation to caring for [C]. See Transcript (13th June 2008) p.17.
I do not consider, for the purposes of s.60CC(3)(d), that the gradual changes proposed in the time that [C] spends with his Father will adversely affect him in any material respect provided appropriate sensitivity is employed by both of his parents in handling and preparing [C] for the changes in times. Similarly, because of the view that I have formed and expressed regarding the obvious advantages of Ms Settle continuing her professional qualifications in Canberra, and the other matters detailed in paragraph [18] of these reasons, the “practical difficulty and expense” issues outlined in s.60CC(3)(e) do not arise. This is to say that, assuming both of [C]’s parents continue to live in the Canberra-Queanbeyan region, the considerations in this sub-paragraph of s.60CC(3) are essentially irrelevant.
Given the young ages of [C] and his parents, to ensure that there is a reliable monitoring of progress on relevant fronts, and having due regard to s.60CC(3)(g), I will order that there be an updated Report from a Family Consultant, to be prepared in 18 month’s time to assess how [C] is progressing, and obviously also to report on the respective capacities and advances of his parents. I consider also that such an order for a further report, together with the other orders, fits within the object and purport of s.60CC(3)(l). Upon receipt of the Report, either of the parties, or of course the Court, may have the matter re-listed, on 14 day’s notice.
In my view, there are no relevant issues of family violence for consideration here. In the light of what has been said, I can turn to s.65DAA.
S 65DAA Considerations
In paragraph [30] of these reasons I noted Ms Styles’ evidence that there be a rather graduated increase in time between [C] and his Father.[21] In my view, as I have already indicated, Ms Settle’s proposed orders best fit with both Ms Styles’ recommendation and with the requirements set out in s.65DAA.
[21] In paragraph 8.1 of her Report, Ms Styles simply stated: “I recommend that Mr Swayne have contact with [C] according to a gradually increasing schedule.”
Conclusion
I have emphasised a number of times in these reasons the following: (a) [C]’s young age; (b) the quite young ages of [C]’s parents and, especially in Mr Swayne’s case, a relative degree of inexperience in his parenting skills; (c) the genuine commitment of both parents to care and provide for [C]’s welfare; (d) the significant range of factors that point to it being in Ms Settle’s best interests for her to remain in Canberra, especially for family support, completion of her professional qualifications, and to facilitate time between [C] and his Father, as well as to utilise Mr Swayne’s availability to care for and spend time with [C].
For all of the above reasons, the orders to be made are, in my view, in [C]’s best interests as prescribed by s.60CA of the Act.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: R. Davidson
Date: 23 September 2008
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