TAIT & HOWSE

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAIT & HOWSE

[2015] FCCA 2415

Catchwords:
FAMILY LAW – Children – parenting orders – final orders – best interests of the child – parental responsibility – equal shared parental responsibility – one child – girl aged 3 years 6 months – equal time – whether it is in the child’s best interests and reasonably practicable to spend equal time with each parent – substantial and significant time – whether it is in the child’s best interests and reasonably practicable to spend substantial and significant time with each parent – reasonable practicality – where parents live a considerable distance from each other – “the tyranny of distance” – consideration of the likely effect of change in the child’s circumstances – whether child should live with father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Hall & Hall (1979) 5 Fam LR 609; FLC 90-713

Applicant:

MR TAIT

Respondent:

MS HOWSE

File Number:

SYC 2194 of 2013

Judgment of:

Judge Scarlett

Hearing dates:

8-10 April 2015

Date of Last Submission:

10 April 2015

Delivered at:

Sydney

Delivered on:

26 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Bell

Solicitors for the Applicant:

Messenger Family Law

Counsel for the Respondent:

Ms Shearman

Solicitors for the Respondent:

Sheekey Williams

ORDERS

The Applicant father and the Respondent mother are to have equal shared parental responsibility for the child X born (omitted) 2011.
All major long term decisions affecting the child X are to be made jointly by the parties.
The child X is to live with the mother.
The father is to spend time with the child X each month following the making of these Orders and concluding on 1 January 2017:
(a)for the first fortnight of the cycle, each alternate weekend from 9:00 am on the Friday until 3:00 pm on Sunday in the (omitted) or (omitted) area of New South Wales PROVIDED THAT the place is not to be further than a radius of 65 kilometres from the mother’s principal place of residence;
(b)for the second fortnight of the cycle from 4:00 pm on the Friday until 4:00 pm the following Sunday week;
(c)on the child’s birthday, being (omitted) in each year, if the father is not otherwise spending time with the child in accordance with these Orders, from 3:00 pm until 8:00 am the following day, each alternate year commencing in December 2015;
(d)from 9:00 am until 4:00 pm on Fathers’ Day in the (omitted) or (omitted) area of New South Wales PROVIDED THAT the place is not to be further than a radius of 65 kilometres from the mother’s principal place of residence;
(e)from 9:00 am on Christmas Eve until 5:00 pm on 2 January during 2015 and all odd numbered years thereafter;
(f)for two (2) periods of time during the Christmas/January school holidays, one for a period of fourteen (14) days and one for a period of seven (7) days, at times to be agreed between the parties; and
(g)at such other times as the parties may agree.
From and after 1 January 2017, the father is to spend time with the child X:
(a)for the entirety of the April and September school holiday periods in each year, from 12:00 noon on the first Saturday of the school holiday period until 12:00 noon on the last Saturday of the school holiday period;
(b)for half of all the Christmas/January school holiday periods as agreed between the parties but, failing agreement, for the first half of the school holiday periods in odd numbered years and for the second half of the school holiday period in even numbered years, to commence at 12:00 noon on the relevant Saturday of the school holiday period and to conclude at 12:00 noon on the last Saturday of the school holiday period;
(c)for one weekend each month during the school term from 9:00 am on Friday until 3:00 pm on Sunday in the (omitted) or (omitted) area of New South Wales PROVIDED THAT the place is not to be further than a radius of 65 kilometres from the mother’s principal place of residence and for this purpose the father must provide the mother with fourteen (14) days’ notice of which weekend he will spend with the child X;
(d)on the child’s birthday, being (omitted) in each year, if the father is not otherwise spending time with the child in accordance with these Orders, from 3:00 pm until 8:00 am the following day each alternate year commencing in December 2017;
(e)from 9:00 am on Good Friday until 5:00 pm on Easter Monday in even numbered years;
(f)for the weekend of Fathers’ Day, if the father is not otherwise spending time with the child in accordance with these Orders, from 9:00 am on the Friday immediately before Fathers’ Day until 3:00 pm on the Sunday of Fathers’ Day in the (omitted) or (omitted) area of New South Wales PROVIDED THAT the place is not to be further than a radius of 65 kilometres from the mother’s principal place of residence; and
(g)at such other times as the parties may agree.
For the purposes of Orders (4)(b),(e) and (f) and (5)(a), (b) and (e) the father is to collect the child X from the mother in (omitted), New South Wales and return the child to the mother in (omitted), New South Wales.
The father’s time with the child X is to be suspended as follows:
(a)on the child’s birthday if the father is otherwise spending time with the child in accordance with these Orders, from 3:00 pm until 5:00 pm;
(b)from 9:00 am on Good Friday until 5:00 pm on Easter Monday in odd numbered years;
(c)for the weekend of Mothers’ Day from 9:00 am on the Friday before Mothers’ Day until 3:00 pm on the Sunday of Mothers’ Day; and
(d)at such other times as the parties may agree.
When the child X is in the care of one parent in accordance with these Orders the other parent is to be able to Skype or telephone the child each evening or at the request of the child PROVIDED THAT if the parents are unable to use a computer for Skype then the other parent is to telephone the child.
In the event that any issues arise under these Orders the parties will, in the first instance, attend Relationships Australia for the purposes of entering into mediation to resolve the issues.
Each party is restrained by injunction from consuming alcohol to excess or administering to themselves any illicit drug at any time whilst the child X is in their care in accordance with these Orders or for period of twelve (12) hours beforehand.
The parties are restrained from abusing, belittling, criticising, denigrating or insulting the other in the presence or hearing of the child X or permitting any third party to do so.
The parties are restrained from discussing these proceedings with the child X.
Each party must:
(a)keep the other party advised at all times of their residential address, landline and mobile telephone numbers;
(b)advise the other party in the event that the child suffers any serious illness or injury, attends upon a medical practitioner or is admitted to a hospital before the medical appointment or the child’s admission to hospital if reasonably possible;
(c)advise the other party of the name and address of the child’s current general medical practitioner and any other medical practitioner who has examined the child and made any recommendations about the child’s care;
(d)authorise any medical practitioner or other health professional upon whom the child may attend from time to time to communicate with the other party in respect of the child’s medical condition and other requirements and follow the recommendations of the said medical practitioner or other health professional;
(e)advise the other party by text message of all sporting, extra-curricular activities and significant school activities in which the child X is involved and not do any act or thing to hinder or prevent the other party from attending such activities; and
(f)authorise all schools which the child may attend from time to time to:
(i)provide the other party, at the other party’s expense, with copies of all school reports, school notices and information about school photographs in relation to the child X;
(ii)communicate with the other party about the child’s progress at school; and
(iii)permit the other party to attend all school functions to which parents are normally invited subject to any relevant school policy.

IT IS NOTED that publication of this judgment under the pseudonym Tait & Howse is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2194 of 2013

MR TAIT

Applicant

And

MS HOWSE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for parenting orders by the father of a little girl called X who is now three and a half years old. She was born on (omitted) 2011. X lives with her mother and spends time with her father on a regular basis as a result of Interim Consent Orders made on 12 August 2013. The father wants the child to live with him.
The situation is complicated by the fact that the parents live a considerable distance away from each other. The father lives in Sydney and the mother and the child live in the New South Wales country town of (omitted).

Orders Sought

The father, by his Amended Initiating Application filed on 24 October 2013 seeks the following Orders:
1. That the Applicant Father and the Respondent Mother shall have equal shared parental responsibility for and shall make joint decisions in relation to major long term issues affecting the child, namely X, born (omitted) 2011 (“the child”) including but not limited to:
1.1    The child’s education, including but not limited to enrolment at pre-schools, schools, school activities and extra curricular activities.
1.2    The child’s religious and cultural upbringing.
1.3    The child’s health.
1.4    The child’s names.
1.5    All changes to the child and to the parents’ living arrangements that make it significantly more difficult for the child to spend time with each of the parents under these orders.
2. Each parent shall individually have sole responsibility for making decisions concerning other aspects of the care, welfare and development and parental responsibility of the child on a day to day basis during periods when the child is living with or spending time with that respective parent.
3, 4, 5 (deleted)
6. That the child live with the Applicant Father and spend time with the Respondent Mother as follows: (i) The child shall spend time with the Respondent Mother each alternate weekend from the Saturday until the following Wednesday and each alternate weekend from the Saturday to the Wednesday thereafter, with the changeover to occur at (omitted) at 4pm on the Saturday and 3:30pm on the Wednesday, with each parent or his or her nominee attending at changeover. (ii) For one half of all school holidays, by agreement, however, failing agreement, the first half in even numbered years and the second half in odd numbered years. Once the child starts school, the changeovers each alternate weekend will occur at (omitted) at 6pm on the Friday and at (omitted) at 5pm Sunday evenings.
7. The child shall have unlimited telephone and telephone video contact with the Respondent Mother and/or the child’s maternal Grandparents and, once the child attains school age, the child shall have unlimited electronic communication with the Respondent Mother and/or the child’s maternal Grandparents in addition to the unlimited telephone and telephone video contact with the Respondent Mother and/or the child’s maternal Grandparents.
8. The child will spend the Christmas period in each even numbered year with the Respondent Mother, commencing from 4pm on 23 December 2014 until 11am on 28 December 2014 and each even numbered year thereafter, and with the Applicant Father and/or the child’s Paternal Grandparents for the same period from 23 December 2013 and each odd numbered year thereafter.
9. Once the child attains school age, the Applicant Father and Respondent Mother are permitted to travel overseas with the child for a period of up to 21 (twenty one) days duration each year, provided they provide the other parent with 30 (thirty0 days written notice (or such other notice period, as agreed between the parents) of their intention to do so. Any holidays taken pursuant to this order are to be taken within the child’s school holidays, unless otherwise agreed in writing between the parents. Such notice is to include dates of travel, itinerary, contact details for the child for the duration of the trip and return ticketing details. Both parties are to sign any passport or visa application forms in respect of the child within 14 days of being requested to do so by the other parent.
10.    The Applicant Father and Respondent Mother shall keep each other informed at all times of their residential addresses, email addresses and contact telephone numbers and shall advise the other of any change within 7 (seven) days of such change.
11.    Once the child starts pre-school and later school, that neither parent is precluded from attending any pre-school or school functions, pre-school or school activities or extra curricular activities involving the child in the event that such function or activity occurs at a time when the child is living with the other parent.
12.    Neither parent shall enrol the child in an extra curricular activity or school without first obtaining the parent’s consent to the child being so enrolled.
13.    Each parent will provide such consents and authorities as may be required:
13.1 By any pre-school or school attended by the child to enable both the Applicant Father and the Respondent Mother to receive reports, notices and correspondence relating to the child and to permit both parents to attend special events or other pre-school or school activities involving the child and to speak to the child’s teachers concerning the performance of the child at pre-school or school; and
13.2 by any hospital, medical practitioner or health care professional including counsellors, psychologists and/or psychiatrists to receive information and reposts in relation to the child’s health, welfare and treatment.
14.    Each parent shall as soon as practicable contact the other parent to advise in the event that the child:
14.1 Becomes seriously ill;
14.2 Is hospitalised; or
14.3 Is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission into hospital.
15.    The parents will consult each other prior to any decision being made that will impact on the child’s schooling, residence or holiday travel.
16.    The Respondent Mother will pay the Applicant Father’s costs of suit.
The mother, by the Minute of Order contained in her Case Outline, seeks the following Orders:
1. That the child live with the mother.
2. That the parties have equal shared parental responsibility for the child, X born (omitted) 2011.
3. That all major long term decisions affecting the child be made jointly by the parties.
4. (deleted)
5. That the father have the following contact with the child each month following the making of these Orders and concluding on 1 January 2017:
a. For the first fortnight of the cycle, each alternate weekend from Friday 9am until Sunday at 3pm in the (omitted) or (omitted) area NSW but not to be further than a 65km radius from the principal place of residence of the mother;
b. For the second fortnight of the cycle, from 4pm on Friday until 4pm the following Sunday week;
c. On the child’s birthday, if the father is not otherwise spending time with the child, from 3pm until 8.00 am the following day, each alternate year commencing in 2015;
d. From 9am Christmas Eve until 5pm on 2 January during odd numbered years;
e. For two periods of time during the Christmas school holidays, one for a period of fourteen days and one for a period of seven days, at times to be agreed between the parties; and
f.   As otherwise agreed between the parties.
6. That from 1 January 2017, the father spend the following time with the child:
a. For the entirety of the April and September school holiday periods each year, from 12 noon on the first Saturday of the school holiday period until 12 noon on the last Saturday of the school holiday period;
b. For half of all Christmas school holiday periods as agreed between the parties, but failing agreement, for the first half of the school holiday periods in odd numbered years, and for the second half of the school holiday period in even numbered years, to commence at 12 noon on the relevant Saturday of the holiday period and to conclude at 12 noon on the last Saturday of the holiday period;
c. For one weekend each month during the school term, from Friday 9am until Sunday at 3pm in the (omitted) or (omitted) area NSW but not to be further than a 65km radius from the principal place of residence of the mother, with the father to provide the mother with 14 days’ notice of which weekend he will spend with the child;
d. On the child’s birthday, if the father is not otherwise spending time with the child, from 4pm until 8am the following day each alternate year commencing 2017;
e. From 9am Good Friday until 5pm Easter Monday in even numbered years;
f.   For the Father’s Day Weekend, if the father is not otherwise spending time with the child, from 9am Friday until 3pm Sunday, in the (omitted) or (omitted) area NSW but not to be further than a 65km radius from the principal place of residence of the mother; and
g. As otherwise agreed between the parties.
7. That for the purposes of Orders 5 (b), (d), (e) and 6 (a), (b) and (e) above, the father is to collect the child from the mother in (omitted) NSW, and the father is to return the child to the mother in (omitted) NSW.
8. That the father’s time with the child be suspended as follows:
a. On the child’s birthday, if the father is spending time with the child, from 3pm until 5pm;
b. From 9am Good Friday until 5pm Easter Monday in odd numbered years;
c. For the Mother’s Day Weekend from 9am Friday until 3pm Sunday; and
d. As otherwise agreed between the parties.
9.     That when the child is in the care of one parent, the other parent shall be able to Skype or telephone the child on each evening or at the request of the child. If the parents are unable to use a computer for Skype, then other parent shall telephone the child.
10.    That in the event that any issues arise under these orders, the parties will, in the first instance, attend Relationships Australia for the purposes of entering into mediation to resolve the issues.
11.    That each party be restrained from consuming alcohol to excess, or taking any illicit drugs, whilst the child is in their care.
12.    That each party be restrained from denigrating, belittling, insulting or abusing the other, or discussing any aspect of the parenting matter in the presence of the child or on or via any public forum or social media platform including Facebook and will use their best endeavours to ensure that no other person does so. That each party:
a. Keep the other advised at all times of their residential address, landline and mobile telephone numbers;
b. Advise the other in the event that the child suffers any serious illness or injury, attends a doctor or is admitted to hospital, before the appointment or admittance where possible;
c. Advise the other of the child’s current general practitioner and any other medical practitioner who the child has been examined by and who has made current recommendations about the child’s care;
d. Authorise any medical practitioner or health professional upon whom the child may attend from time to time to communicate with the other in respect of their medical condition and other requirements and each party will follow the recommendations of such practitioner or health professional;
e. Advise the other by text message of all sporting, extra-curricular and significant school activities in which the child is involved in and not object to the other attending such activities; and
f.   Authorise all schools which the child may attend from time to time to:
i.   Provide the other, at the expense of the other, copies of all school reports, school notices and school photographs in relation to the child;
ii. Communicate with the other in respect of the child’s progress at school; and
iii.     Permit the other to attend all school functions to which parents are normally invited, subject to any school policy in relation thereto.
13.    Any further or other Orders as this Honourable Court deems fit.

Background

The parties’ lawyers have each prepared a helpful and detailed chronology of relevant events. Recourse has been had to each of those chronologies to set out relevant and agreed facts.
The father was born on (omitted) 1987. He is now 28 years of age.
The mother was born on (omitted) 1992. She is now 22 years of age, shortly to turn 23.
The parties commenced dating on (omitted) 2010. They started living together on 1 December that same year and separated in June the following year.
The child X was born on (omitted) 2011.
The father commenced spending time with the child from December that year.
The mother commenced a relationship with one Mr R in (omitted) 2012.
The father was spending time with the child on alternate weekends from March 2012.
The parties reconciled late in March 2012.
On 6 July 2012 the mother moved to Sydney with the child and commenced living with the father.
The parties separated on 1 November 2012. On 22 November 2012 the mother left Sydney with the child and moved back to the township of (omitted) (near (omitted)), in country New South Wales.
Between 14 December 2012 and 24 March 2013 the father was spending time with the child by arrangement with the mother.
The parties attended mediation at a Family Relationship Centre on 11 February 2013. The mother agreed that the father would spend time with the child on alternate weekends in the (omitted) area.
The parties again attended mediation at a Family Relationship Centre on 8 March 2013. They came to an agreement about the father spending time with the child on alternate weekends in (omitted) and in Sydney, with changeover to take place at (omitted).
The father claimed that on 24 April 2013 the mother refused to allow the child to spend time with him that had previously been agreed or to provide him with details of the child’s medical practitioners when she reported that the child had been ill.
On 24 April 2013 the father commenced proceedings in this Court by filing an Application for parenting orders, seeking that the child should spend time with him.

Procedural History

The Application for Parenting Orders was returnable on 13 May 2013. On that date the mother was ordered to file and serve a Response and an affidavit in support by 3 June and the parties were directed to attend a Child Dispute Conference.
On 17 June 2013 the parties attended a Child Dispute Conference and the mother was again ordered to file and serve a Response and a supporting affidavit. The Application was listed for an interim hearing on 12 August.
On 12 August 2013, the parties entered into Interim Consent Orders providing that:
a)They were to have equal shared parental responsibility in relation to long term issues affecting the child;
b)Each parent was to have sole responsibility for making decisions about other aspects of the child’s care, welfare and development at times when the child was living with or spending time with that parent;
c)The child was to live with the mother;
d)The child would spend time with the father on weekends over a six week cycle;
e)The mother was to facilitate telephone communication between the child and the father;
f)Some changeovers were to occur at (omitted);
g)The parties would keep each other informed about their residential addresses, their email addresses and contact telephone numbers;
h)Each parent would provide necessary consents and authorities for hospitals, medical practitioners and other health professionals;
i)The mother was to ensure that the child was fully assessed by a general practitioner within 30 days and the parties would both ensure that the child received any recommended treatment;
j)Each parent would advise the other parent in the event of the child becoming ill or was hospitalised or was involved in an accident requiring medical or hospital treatment; and
k)The parents would consult each other prior to making any decision that would impact on the child’s time with the father or the child’s residence.
A Family Report was also ordered.
On 16 December 2013 the Application was listed for final hearing to commence on 7 October 2014.
The Family Report was released to the parties on 11 September 2014.
The mother filed a Further Amended Response on 12 September 2014.
As it turned out, the Application did not proceed to final hearing on 7 October. The hearing dates were vacated. Fresh hearing dates were set to take place with priority on 17 and 18 December 2014.
The mother filed a further Amended Response on 2 December 2014.
The final hearing did not take place on 17 December. The previous day, the mother sought an adjournment of the final hearing because she required surgery.
The application for an adjournment was granted and the final hearing was set for 8 to 10 April 2015.
On 17 December 2014, the parties entered into further interim consent orders relating to time between the father and the child on various dates between 14 December 2014 and 19 April 2015.
The final hearing commenced on 8 April and continued until 10 April 2015.

Evidence

The father relied on the following affidavits:
a)His affidavit of 12 September 2014 (in part);
b)His affidavit of 8 December 2014;
c)The affidavit of his mother, Ms J of 10 September 2014;
d)The affidavit of his sister Ms N (nee Tait) of 11 September 2014; and
e)The affidavit of Ms L of 17 December 2014.
Ms N did not give evidence, as a medical certificate was tendered showing that she was ill and unfit for court attendance over the period of the final hearing.
The father, his mother, and Ms L all gave oral evidence and were cross-examined by Ms Shearman of counsel, who appeared for the mother.
It was the father’s evidence that the mother has suffered intermittently with depression, post-traumatic stress and post-natal depression. He expressed concern for the child’s welfare whilst in the care of her mother and complained that the mother had been physically and verbally aggressive towards him. He complained that the mother had reneged on arrangements for him to spend time with the child and had threatened to seek an Apprehended Violence order against him if he continued to contact her on a regular basis about the child.
The mother did in fact apply for an Apprehended Violence Order against him in May 2013 at Leeton Local Court. The father defended the Application and on 14 October 2013 the Application was dismissed after the mother apparently withdrew her Application.[1]
[1] Affidavit of Mr Tait 12.9.2014 at paragraph [42]]
The father complained about the cost of travel and the distance he had to travel in order to spend time with the child even after the interim parenting orders were made. At times, the mother would say to him that she was unable to travel to (omitted) for the changeover and he would then have to travel to (omitted). It was a consistent feature of his evidence that the mother had not been cooperative in assisting with the travel arrangements for him to spend time with the child.
The father deposed in his affidavit of 12 September 2014 that he was concerned for the child’s safety because of the mother’s relationship with Mr R, who had a history of being involved in drugs and alcohol.
The father also expressed concern about the fact that the mother and Mr R had put an advertisement on a website seeking another woman to join them in sexual activities, including swinging, threesome, fetishes and bondage and discipline. He tendered two photographs from the website showing the mother and, in one case, Mr R either naked or scantily dressed in suggestive poses. The father expressed concern that the mother was being placed under pressure by Mr R to engage in this behaviour and that this might have an adverse effect on the child.
The father also did not accept the assurances from Mr R given to the Family Consultant when preparing the Family Report that he had changed his behaviour, citing an incident at the (omitted) Club on 8 December 2013 set out in the affidavit of Ms L.
The father deposed that his concerns for the child’s safety and wellbeing had prompted him to amend his Application so that he was seeking that the child should live with him and spend time with the mother, rather than continue to live with the mother and spend time with him.
The father noted that the Family Report had recommended that the child should spend more time with him but he was finding the car travel time to and from (omitted) to be too much and he could not afford to travel by air.
The father proposed that the child would live with him at his home in suburban Sydney. There is a bedroom for the child in that home. When the child has stayed with him for a week in Sydney his aunt cares for the child during the day on Mondays and his mother cares for her during the day on Wednesdays and Fridays. He either takes the day off work, or works from home on Tuesdays and Thursdays. He looks after the child himself on those days. He proposed that the child would live with him for nine days at a time and then spend five days at a time with her mother, as well as spending half of all school holidays with her.
In cross-examination, the father confirmed that his mother would provide him with this assistance to care for the child. He gave the mother credit for her care of X, conceding that she was a good mother to the child.
The paternal grandmother, Ms J, deposed in her affidavit that she had had a close relationship with the mother and had tried to support her through her illnesses and post-natal depression. She stated that:
I am aware that Ms Howse was often volatile and aggressive towards Mr Tait but have observed that Mr Tait always responded calmly towards Ms Howse. Mr Tait is a devoted father to X.[2]
[2] Affidavit of Ms Tait 10.9.2014 at paragraph [5]
In her affidavit the grandmother stated that her family was very closely bonded to X and stated:
We are very concerned for X’s welfare and believe that it is in her best interest that she lives with her father full time now and in preparation for starting school.[3]
[3] Ibid at [47]
Ms J adhered to her evidence in chief in cross-examination.
Ms L deposed in her affidavit of 8 September 2014 that she had been present at the (omitted) Club on Sunday 8 December 2013 when the mother and Mr R were present. She spoke briefly to the mother about the child’s birthday.
Ms L deposed that about twenty minutes later Mr R approached her and started “yelling at (her) like a crazy person”. She went on to state that:
I cannot remember word for word the abuse that came out of his mouth, as I was shocked, but he said things along the line of: “Do you know Mr Tait? Do you? Do you? Well he’s nothing but a child molesting wife basher”. Mr R went on shouting this sort of abuse about Mr Tait. I shouted back at him. He claimed that I had said something to Ms Howse, which I had not said, but I cannot remember what I was supposed to have said to her. Whatever he said that I had said to Ms Howse was untrue, so I yelled at him and said: “Your girlfriend is a filthy liar”.[4]
[4] Affidavit of Ms L 8.9.2014 at [5]
Ms L maintained her account of the incident under cross-examination.
The mother relied on the following affidavits:
a)her affidavit of 11 September 2014; and
b)the affidavit of Mr R of 11 September 2014.
Both the mother and Mr R gave oral evidence. They were cross-examined by Mr Bell of Counsel, for the father.
It was the mother’s evidence that she and the father separated on a final basis in November 2012. She is currently in a relationship with Mr R. She complained that during the time she lived with the father he displayed “bullying, intimidating and controlling behaviour” towards her.[5] It was her evidence that when she discovered that she was pregnant the father kept asking her to have an abortion, which she refused to do.
[5] Affidavit of Ms Howse 11.9.2014 at [18]
The mother deposed that when the child was born the father persuaded her against her will to enter into an arrangement whereby when the father came to see baby one weekend every month the child would spend all day on the Saturday and half of the Sunday in his care, even though she did not think that this was an appropriate arrangement.[6]
[6] Ibid at [37]
The mother stated that in April 2012 she was diagnosed with post-natal depression and started seeing a psychologist at (omitted) Community Health Centre until about June 2012.
The mother resumed her relationship with the father in June of that year and moved to Sydney with the child and lived with the father for the next five months.
In about August 2012 the mother began seeing a clinical psychologist called Ms L for treatment for her post-natal depression. She continued to see Ms L until October 2012.
The mother deposed that in August and November 2012 the father had assaulted her, the most recent occasion being on 18 November 2012.
It is a part of the mother’s case that she is now in “a positive and loving relationship” with Mr R.[7] They do not live together. He has two daughters from previous relationships. He shares the care of the younger child and spends time with the older girl during the school holidays, as her mother lives in (omitted).
[7] Affidavit of Ms Howse 1.9.2014 at [107]
The mother states that she is aware of Mr R’s criminal history but says:
Mr R has attended rehabilitation and counselling and I am not concerned about Mr R repeating this behaviour, nor do I believe that he is a threat to either myself or to X. Mr R is a loving and caring person and would do anything for his two daughters, and for X as well. There has been no further incidents since October 2011 and I have not seen any violent or abusive behaviour from Mr R since we commenced a relationship.[8]
[8] Ibid at [110]
The mother gave a different account of the incident at the (omitted) Club on 8 December 2013, claiming that Ms L had said to her:
“Mr Tait would love to hear you’re out tonight”.
The mother deposed that she was upset by that comment and told Mr R, who then spoke to Ms L “calmly” and asked her to mind her own business.[9]
[9] Ibid at [113]
Mr R in his affidavit of 11 September 2014 gives a basically similar account of the incident, and specifically denies that he screamed abuse at anyone or made abusive allegations about the father.[10]
[10] Affidavit of Mr R 11.9.2014 at [16]
The mother agreed that she and Mr R placed an advertisement on the Internet, saying:
We wanted to try something different. I never intended that X would be present in the home when these activities occurred and I agree that taking part in these activities whilst X is in the home would be inappropriate.
However, no one responded to our advertisement and the subscription ran out after one month.[11]
[11] Affidavit of Ms Howse 11.9.2014 at [115]-[116]
The mother deposed that the child attends day care on Mondays and Tuesdays and she intends to increase this time to three or four days each week. She believes that the child has essentially the same routine in each household although she and the father do not agree on discipline.
The mother proposes that X should continue to reside with her. The father works full-time, whereas she does not work and is available to care for the child on a full time basis. She deposed that she believes it is important that the child should have a strong relationship with her father and expressed a willingness to facilitate this relationship. However, she believes that it would be too onerous for the child to travel to Sydney for weekends once she starts school, pointing out that the car trip takes about eight and half hours.[12]
[12] Ibid at [131]-[132]
The mother deposed that since she moved back to (omitted) after her separation from the father she has felt “safe, calm and comfortable” and has not suffered from any more mental health issues.[13]
[13] Ibid at [138]
The mother was cross-examined by Mr Bell of Counsel for the father. She maintained her evidence and was not shaken in cross-examination. She spoke positively of her relationship with Mr R, but said that she was not yet ready for him to move in to live with her.
The mother said that her nephew Mr L has moved back in to live with her, which he had done previously. Mr L is apparently estranged from his mother and his father.
Mr Bell asked the mother about the possibility of the child traveling by air to spend time with her father. The mother said she had not made any inquiries and had never flown herself. She was unaware about the possibility of the child traveling as an unaccompanied minor but believed that she was too young at this stage.
The mother was an impressive witness. My contemporaneous notes record her as being “a calm and forthright witness”.
Mr R’s affidavit supported the mother’s case. He deposed that he suffered a work accident in 2011 in which he seriously injured his shoulder. He stated that he was prescribed Valium, Mogadon and Stilnox, as well as Panadeine Forte and Codeine Forte and became addicted to those drugs.
Mr R deposed that whilst he was addicted he was involved in an incident on 28 June “2014” but this appears to be a typographical error, as it is clear that the incident took place in 2011. In that incident he assaulted his ex-girlfriend and damaged the house in which they were residing. As a result, he was charged with a number of offences and sentenced accordingly:
11.    As a result of this incident, I was convicted and sentenced as follows:
(a)    Assault Occasioning Actual Bodily Harm, sentenced to 12 months imprisonment (suspended);
(b)    Common Assault, sentenced to 18 months good behaviour bond;
(c)     Destroy/Damage Property, fined $440.00;
(d)    Stalk/Intimidate intend fear of physical harm, sentenced to 24 months good behaviour bond;
(e)     Assault officer in execution of duty, sentenced to 24 months good behaviour bond;
(f)     Assault officer in execution of duty, sentenced to 24 months god behaviour bond; and
(g)    Resist officer in execution of duty, sentenced to 24 months good behaviour bond.[14]
[14] Affidavit of Mr R 11.9.2014 at [11]
Mr R further deposed that he underwent drug rehabilitation of his own accord at (omitted) House at (omitted) Hospital in (omitted) and attended a drug and alcohol counsellor, a psychologist and a grief and anger management counsellor. He also attended AA meetings for two years.[15]
[15] Ibid at [13]
Mr R was cross-examined in some detail by Mr Bell for the father. He maintained his account of the incident at the (omitted) Club. He appeared to speak frankly and openly about his drug addiction history and described how he had attended a live in rehabilitation course. He said he had not used cannabis since he attended the rehabilitation course, nor had he come to the attention of the Police since the incident of June 2011.
Mr R appeared to speak frankly in giving his oral evidence.

The Family Reports

A Family Report was prepared by Ms L, a Family Consultant, and completed on 3 December 2013. The Report was comprehensively updated by Ms L on 10 September 2014. Ms L also gave oral evidence at the final hearing.
For the purposes of the earlier Report, Ms L interviewed the following people on 25 November 2013:
a)the father;
b)the mother;
c)Ms N, the child’s paternal aunt: and
d)Mr R.
The Family Consultant also observed the child X, then aged just less than two years, with each of her parents.
When she interviewed the father, Ms L was aware that it was the father’s case that he wanted the child to live with him. She noted that the father said that whilst he was initially agreeable to the child living with her mother and spending time with him, he had changed his mind “because of concerns he has about Ms Howse’s boyfriend, as well as ongoing concerns he has about aspects of Ms Howse’s parenting”.[16]
[16] Family Report 3.12.2013 page 8 paragraph 24
The mother told the Family Consultant that her relationship with the father had been marked by fights on various occasions. She said that she had suffered very badly from post-natal depression after X’s birth. The father had become annoyed with her when she could not find energy to do tasks around the house and hit her on the arm during an argument.

The mother also said that she suffered from post-traumatic stress disorder as a result of an abusive relationship in which she was involved between the ages of fourteen and seventeen. She was seeing a counsellor in (omitted) to deal with this issue.
The mother told the Family Consultant about her relationship with Mr R[17] and spoke of that relationship in positive terms.
[17] Incorrectly referred to as “Mr R” in the Family Report
The Family Consultant described Mr R as “a mild mannered and affable man” who spoke of his unfortunate past but volunteered to answer any questions to prove that he had changed his life. He spoke, apparently quite frankly, about his addiction that led to the incident where he assaulted his ex-wife (or ex-girlfriend) and damaged the house. He told Ms L that he had been assessed as being in a state of drug induced psychosis at the time.[18]
[18] Family Report page 14 paragraph 45
Mr R said that he strongly supported the father having a relationship with X because he himself had a good relationship with his two daughters from previous relationships.
The Family Consultant also interviewed the father’s sister, Ms N, who, along with her seven year old daughter, was living at the time with the father. Ms J does not have any relationship with her child’s father because he was a drug user who had relapsed and was currently in prison.
The Family Consultant observed the child X with each of her parents and spoke positively of her interaction with each of them. Of the father, she said:
Overall, their interaction was noted to be warmly affectionate and very positive. No concerns were noted.[19]
[19] Family Report 3.12.2013 page 17 at [57]
The Family Consultant described the interaction between mother and daughter in this way:
Overall, Ms Howse was observed to respond appropriately to X and with a great deal of warmth and enthusiasm. No concerns were noted.[20]
[20] Ibid page 17 at [60]
In her evaluation, the Family Consultant stated that the mother’s life had settled down considerably since she left Sydney with the child approximately twelve months previously and said:
Although Ms Howse is still very young, these positive changes in such a short period of time auger well for the future. X’s development appears to be normal for a child of her age and she has a secure attachment to both parents, who responded to her warmly and with clearly genuine affection.[21]
[21] Ibid page 19 at [67]
The Family Consultant said of Mr R:
Mr R’s police records indicate that there have been no further incidents since October 2011. This suggests that his recollection of this incident as being one-off and ‘life changing’ (in a positive sense) is genuine, which means that he is unlikely to pose a risk to X and Ms Howse.[22]
[22] Ibid page 20 at [68]
Ms L expressed the view that it would definitely be in the child’s best interests for her to spend more time with her father. However, she qualified this by reference by saying that:
…the tyranny of distance – and it is, unfortunately, a considerable distance – makes this more difficult than it otherwise would be. Mr Tait has said that he finds the constant long drives very tiring and expensive and this is completely understandable. But however difficult the drive is for Mr Tait, it is magnified many times over for a small child.[23]
[23] Family Report 3.12.2013 page 20 at [69]
The Family Consultant recommended that:
a)the parents should equally share parental responsibility for the child;
b)the child should live with her mother;
c)the child should spend time with her father:
i)alternate weekends in a six week cycle with two of the weekends occurring in the (omitted)/(omitted) area between 1 and 3 consecutive nights and with the middle weekend in Sydney;
ii)regular video calls;
iii)four consecutive nights in Sydney during school holiday periods from January 2014;
iv)one week in Sydney in each school holiday period from December 2014; and
v)other times as negotiated between the parties.[24]
[24] Ibid page 22 at [75]
The same Family Consultant, Ms L, prepared an updated Family Report which was completed on 10 September 2014 and released to the parties the same day.
The interviews for the updated Family Report were conducted on 8 September 2014, some ten months after the interviews for the earlier Report. Again, the Family Consultant interviewed:
a)the father;
b)the mother;
c)Ms N, the paternal aunt; and
d)Mr R.
On this occasion, the Family Consultant also interviewed Ms J, the child’s paternal grandmother
Ms L again observed the child with her father. She also conducted informal observations of the child with her mother, Mr R and members of the child’s extended paternal family.[25]
[25] Family Report 10.9.2014 page 3
The father gave a number of reasons as to why he believed that X would be better off in his primary care, particularly:
a)his belief that the child would have many opportunities in life if she were to grow up in Sydney rather than in a small country town, including a wider choice of schools, many more extra-curricular activities and more things to do on weekends; and
b)his belief that he is the more capable parent.[26]
[26] Ibid at [16] & [17]
The mother was described as presenting “in a much more relaxed way than she did at the time of the last Family Report. She appeared more confident in herself and she was noticeably more emotionally stable”.[27]
[27] Ibid at [21]
The mother told the Family Consultant that she could not conceive of moving away from the (omitted)/(omitted) area to Sydney because she feels very settled where she is. She needs to be close to her parents, both of whom are unwell.
The mother also said that she would like to be able to negotiate with the father about parenting arrangements for X once she starts school in 2017 and felt confident that she and the father would be able to do so. She rejected the father’s concerns about her parenting ability and expressed the strong view that the child should continue to live primarily with her.
The Family Consultant reported that Mr R presented in a similar fashion to the way he had done at the time or preparation of the earlier Family Report. Interestingly, Mr R said that the fact that he and the mother live separately worked well in that it enables them to concentrate on their own children when they are with them:
Mr R (sic) said that he needs to spend a lot of one to one time with his daughter A (aged 4 years) because her mother has just had a new baby and A is struggling to cope with this.[28]
[28] Family Report 10.9.2014 at [29]
Mr R reported no further involvement with the Police or any adverse incidents since the earlier Report was prepared.
The father’s sister, Ms N, again spoke highly of her brother’s commitment to his daughter and expressed support for his proposal to become the child’s full time carer. She told the Family Consultant that she intended to move out of the home which she currently shares with her brother because she believed it was time that she and the child started living on their own.
Ms J, the paternal grandmother, told Ms L that she cares for the child for two days in the week that the child spends with the father and also assists the father on other occasions. She was supportive of the father’s plan for X to live with him on a full time basis. She expressed the view that the child would be well able to cope with the change in arrangements. She also spoke of the greater opportunities available in Sydney and expressed the view that her son was the more competent parent.
The Family Consultant observed the child with her father and noted that she seemed “very relaxed and comfortable”[29] with him. Ms L also observed the child in her interaction with her mother and her extended family. She noted that:
…the two families appeared to get on well with each other, with no obvious tension in the room (which clearly contributed to X’s happiness).[30]
[29] Ibid at [36]
[30] Ibid at [40]
In her evaluation, the Family Consultant noted that the parties had agreed to an arrangement whereby X was to spend one week a month with her father as well as an additional weekend, in line with the recommendations in the earlier Family Report.
Ms L noted that the father’s proposal that the child should spend equal time with each parent over the next two years based on the fact that the child enjoys the time she spends with him in Sydney and would benefit from extending the time she spends with him so that she could move with minimal stress into an arrangement where she is in the primary care of her father once she commences school. However, Ms L stated firmly:
This argument has some merit, if the long-term plan is for Mr Tait to take on X’s primary care. However, as noted in the last Family Report, there would have to be compelling and meritorious reasons for reversing X’s primary care arrangements and these are simply not evident in this matter.[31]
[31] Family Report 10.9.2014 at [43]
Ms L was not persuaded that the father’s view and that of his family, that the mother was “a markedly less competent parent”[32] was credible, nor was she persuaded by the argument that living in Sydney would be better for the child than living in a rural community.
[32] Ibid at [44]
In particular, Ms L was concerned about the logistics of a shared care arrangement between the parents with such a significant travelling distance between their homes. She did not support the idea of the child attending two different pre-schools, nor did she support the idea of the child missing two weeks of pre-school at a time if she were only to attend the one.
The Family Consultant recommended that:
a)The parents should have equal shared parental responsibility for the child;
b)The child should live with the mother; and
c)The child should spend time with the father:
i)12 noon Friday to 12 noon Sunday on a monthly basis;
ii)9:00 am Friday to 3:00 pm Sunday on a monthly basis in the (omitted) area;
iii)At least one week in each school holiday period and two periods of two weeks in the Christmas school holidays; and
iv)Skype calls at least twice a week.
Ms L gave oral evidence. In cross-examination by Mr Bell, for the father, she was asked extensively about her assessment of the mother’s friend, Mr R. She said that when assessing risk it must be on the balance of probabilities and one cannot just form a belief on the basis of nothing.
Ms L said that Mr R was able to talk about the incident in 2011. The material from the Police was “fairly chilling” about his behaviour. She said that Mr R talked at length about the incident and what had happened to him. He told her that he no longer used drugs and only drank socially. Further, the incident in June 2011 in which Mr R was involved concerned a domestic relationship with a former partner. Ms L said she was aware that alcohol and prescription drugs were involved. Significantly, Ms L said that Mr R made no attempt to downplay the incident. She also said that the mother appeared confident that Mr R would not behave in that way again.
Ms L said that Mr R told her that he had shared care of his younger daughter. He was living in the same street as the mother but not with her. They were living in two separate residences.
As to the parenting arrangements between the parents, Ms L said that if they were not living so far apart she would have been recommending shared care.
Ms L said that she had seen a shift in the parties’ attitudes over the past 18 months. Once the lawyers are out of the picture she believed that they would be more easily able to accommodate each other. She expressed the view that the parents were learning as they went as to how to communicate with each other.
In answer to a question by Ms Shearman of Counsel for the mother, Ms L said that the child X still has a primary carer, her mother, although she has moved between households all her life. She would miss her mother dreadfully if there were to be a reversal of the current arrangement.
Further, Ms L said that the child needed the security of having a primary carer. She may feel she had done something wrong and was being punished if she were to go into the primary care of her father. She may even feel her mother did not love her any more.
On the subject of air travel for a child, Ms L opined that between the ages of seven and eight is a prudent age for children to travel by air as unaccompanied minors.
In summary, the Family Consultant said that X struck her as an incredibly well looked after, well nurtured and well-loved child.
The Family Consultant, in my view, did not resile from any of the views that she had expressed in the two Family Reports, and was consistent in her recommendation that the child should continue to reside in the primary care of her mother.

Submissions

Counsel for the Applicant father submitted that his client was a good father who was well able to care for X. He had done the “heavy lifting”, to use a phrase of the Family Consultant, along the way in seeking to spend time with his daughter.
It was conjectural as to who would be present in the mother’s household with her and the child. Mr R and one or both of his daughters could be there. There was also some uncertainty about the mother’s nephew Mr L, who appeared to have “a lot on his plate” with his own troubled parental background.
Mr Bell submitted that the father’s Application is a “future oriented” application. Once school starts, he submitted, X should live with her father.
Mr Bell also submitted that X is thriving and everyone acknowledges that fact.
Counsel for the mother, Ms Shearman, also borrowed a phrase from the Family Consultant when she referred to “the tyranny of distance” as having an effect on the parenting arrangements for this child.
Ms Shearman that there were two issues of risk to be considered:
a)The risk of Mr R relapsing; and
b)The risk of psychological harm to X if there were to be a reversal of the care arrangements.
It was submitted that, following on from the Family Consultant’s recommendations, it would be harmful for the child to have to attend two separate pre-schools.
As for the father’s proposed travel arrangements for the child, Ms Shearman noted that the Family Consultant was critical of a seven hour travel time for the child as being exhausting. In addition, again following on from the Family Consultant’s evidence, unaccompanied air travel would not really be feasible until the child is seven or eight years old.
It was submitted that the evidence did not show that Mr R would be a risk to the child, or to her mother. Ms Shearman said that Mr R would not be looking after his two daughters if it was thought that he posed a risk to them.
It was also would pose a psychological risk to the child if she were to be removed from her primary attachment figure, her mother.

Applications for Parenting Orders

When is dealing with applications for parenting orders, it must consider various sections contained in Part VII of the Family Law Act 1975 (Cth). The particular sections to be referred to are:
a)Section 60B, setting out the objects of Part VII and the principles underlying those objects;
b)Section 60CA, providing that the Court must regard the best interests of the child as the paramount consideration;
c)Section 60CC, which shows how the Court determines what is in a child’s best interests;
d)Section 61DA, which contains the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child; and
e)Section 65DAA, which applies that if a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child and requires the Court to consider whether it is both in the best interests of the child and reasonably practicable for the child to spend equal time with each parent or, in the alternative, to spend substantial and significant time with each parent.
All of those matters have been considered in this case, so far as they are relevant.

Equal shared parental responsibility

There is no issue that the parties should have equal parental responsibility for the child X. Each party seeks this Order and it is recommended by the Family Consultant in each of the Family Reports.
I propose to make such an order.

Section 65DAA of the Family Law Act 1975

The Court is required by s. 65DAA(1) of the Act to consider whether it is both in the best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make such an order, it is then required by s.65DAA(2) to consider whether the child spending substantial and significant time with each of her parents would be both in her best interests and reasonably practicable.
The immediate difficulty here is the distance between the residences of the child’s two parents and the length of time it takes to travel by car from the father’s home in Sydney and the mother’s home in (omitted), in country New South Wales.
Subsection 65DAA(5) sets out a number of matters to which the Court must have regard in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents. There are two matters that stand out:
(a) how far apart the parents live from each other; and
…
(d) the impact that an arrangement of that kind would have on the child;
To my mind, the distance between the parties’ homes and the necessary travel time would be sufficient to render an equal time arrangement unviable. The Family Consultant has already adverted to this in the Family Reports and in her oral evidence. As she said in her evidence, if the parents were not living so far apart she would have been recommending shared care. The trouble is, they are living so far apart and neither parent wishes to move closer to the other, for what appear to me to be legitimate reasons in each case.
The other issue, which was raised by the Family Consultant, whose evidence I accept, is the undesirability of the child either attending two different pre-schools or, in the alternative, attending one pre-school but regularly being away for two weeks at a time. This would be highly disruptive for the child.
It is for these reasons that I am satisfied that it would not be reasonably practicable for the child to spend equal time with each parent. It may be reasonably practicable for her to spend substantial and significant time with each parent, but the physical distance between the parties’ homes remains a consideration.
The best interests of the child must be regarded as the paramount consideration. Accordingly, the Court must consider whether it is in this little girl’s best interests to go from the primary care of her mother to the primary care of her father.
It is clear that there is a considerable benefit to X in having a meaningful relationship with each of her parents. She obviously loves them both and they both love her. The Family Reports clearly illustrate the warmth of the relationship between each parent and the child.
The Court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The father has raised concerns about:
a)the mother’s history of post-natal depression and post-traumatic stress disorder, leading to violent behaviour during the time she was cohabiting with the father; and
b)Mr R’s history of criminal charges and addiction to prescribed medication, combined with abuse of alcohol.
To my mind, both of these concerns are not supported by the evidence before the Court. The Family Report and the mother’s own evidence lead to the conclusion that her past difficulties in this area are behind her. The Family Consultant remarked on the mother’s presentation at the more recent interview for the updated Family Report, noting that she appeared to be more relaxed, more confident in herself and noticeably more emotionally stable.[33]
[33] Family Report 10.9.2014 at [21]

The mother was an impressive witness, as I have previously noted, and she certainly appeared to be relatively calm and composed. She appears to be happy in her relationship with Mr R, although that relationship is proceeding in a conservative fashion, as they do not live together at this stage. The mother appears to have recognised the need to obtain treatment for the mental health issues that have previously troubled her and has taken appropriate steps, in my view, to deal with the issue.
Mr R appeared to have confronted the issues of his addiction leading to the disastrous events of June 2011 and taken steps to rectify the situation. He has undergone a process of rehabilitation over a lengthy period, and it is apparent that he has not come under adverse notice from the Police since then. Clearly, there were no proceedings for a breach of his good behaviour bonds, which have now expired.
Mr R gave evidence in a frank and forthright manner and did not shy away from speaking about the incidents in his past. I accept his evidence. The Family Consultant also formed the view that Mr R spoke frankly and honestly to her in the interviews.
It is to Mr R’s credit that he is taking such a positive role in the upbringing of his two daughters from previous relationships. He appears to be committed to his own two children. It is perhaps reassuring that at this stage he and the Respondent mother have not taken the step of living together and they appear to be taking a cautious approach to the development of their relationship.
The father has raised a concern about the matter posted on the Internet by the mother and Mr R, which included some salacious photographs, suggesting that it could be harmful to the child if the mother and Mr R were to be engaged in sexual activity with a third person if the child X were to be in the house.
It was the mother’s evidence that she did not consider it to be appropriate to take part in such activity if the child were in any way present. I accept that evidence.
In any event, the idea went nowhere, as the evidence was that they received no takers for their offer and the advertisement lapsed after a month. It appears to me to have been a piece of silliness which is now in the past and no great weight, if any, should be attached to it.
I am not satisfied that there is any risk of physical or psychological harm to the child if she remains in the care of the mother. There does not appear to be any risk of harm to the child at times when she is in the care of the father, either.
No direct evidence has been led of the child’s views, which is hardly surprising due to her very young age. However, the observations of the Family Consultant indicate that X appears to be happy and comfortable in the presence of both of her parents.
It appears that this child has a warm and loving relationship with both of her parents, her paternal grandmother and her maternal grandparents.
The parents are strongly committed to their daughter. They each seek to be involved in making decisions about her welfare and upbringing, they wish to spend as much time as they can with her and to communicate with her.
It does not appear to be an issue that either parent has failed in his or her obligation to maintain the child.
One important issue is the likely effect of a change of the child’s circumstances if she were to move from the primary care of her mother to the primary care of her father. The evidence of the Family Consultant is that the child would miss her mother dreadfully if she were to go from the care of her mother to the care of her father. Ms L in her oral evidence stated that the child may feel that she was being punished or that her mother did not love her any more. Ms L was firmly of the view that there did not appear to be any meritorious reasons as to why there should be a reversal of the current arrangement whereby the child remains in the primary care of her mother and spends time with her father.
This is a case where, as has been previously stated, where there is a practical difficulty and expense in the child spending time with her father, due to the considerable physical distance between the homes of the two parents. Travelling a long distance by car is tiring for a young child and air travel does not seem to be feasible at this stage, due both to the expense and the child’s young age.
The capacity of both parents to provide for the child’s needs, including emotional and intellectual needs, is beyond question. All of the evidence shows that this child is loved and cared for by both of her parents. Ms L described her in her oral evidence as “an incredibly well looked after, well-nurtured and well-loved child”. Mr Bell said in his submission that X is thriving, everyone acknowledges that.
X is still only a little girl. She was born on (omitted) 2011 and will not reach the age of four until (omitted) this year. She will not start school until 2017. Her state of maturity appears to appropriate for her age. The Family Consultant noted that her speech appeared to be “normal for her age”.[34]
[34] Family Report 10.9.2014 at [39]
The parents appear to have progressed in their relationship as parents and in their approach to parenting. The Family Consultant described them as “learning as they go” in communicating with each other as parents.
There is evidence of family violence between the parents in the past but there are no current concerns. There were proceedings between the parties about a family violence order but that was withdrawn and dismissed. There are no current orders or proceedings.
It is always preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and I am of the view that it is in the child’s best interests to remain in the primary care of her mother and spend time with her father on a regular basis, taking into account the significant distance between the homes of the two parents and the child’s age.
I have considered the father’s view, supported by his mother, that there would be a greater range of opportunities available to the child if she were to live in Sydney rather than a small country town. That may be the case, but there can be a downside to living in a big city and there are positive advantages in living in a country town. I am not persuaded by this argument.
The father’s proposal is that, essentially, there should be shared care arrangement for this child until she starts school, at which stage she would live in his primary care and spend time with her mother. The Family Consultant, consistently in the two Family Reports and in her oral evidence, does not support this proposal on the basis that it is not evident that are good reasons to support this major change in this little girl’s life. Indeed, she sees a detriment to the child, as she said in her evidence.
I am not satisfied that the father’s proposal is in X’s best interests, although I accept that he loves his daughter and wants what he sees is the best for her. If she stays living with her mother, she will have her mother as her full-time carer, at least for the immediate future. If she lives with her father, she will spend some of that time in the care of someone other than her father, as he will not be in a position to leave work and become a full-time carer. This is not in any way a criticism of the paternal grandmother, who gave evidence in these proceedings and clearly loves her granddaughter.
It is clear that I have relied heavily on the Family Reports and the oral evidence of the Family Consultant. It should not be thought, however, that the Family Report decides the case. The Court is not bound to follow the recommendations in the Family Report (see Hall & Hall[35]). It is the Judge who decides the case, not the Family Consultant. The Judge decides the case on the basis of all the evidence, as I have done, not just the Family Report. However, as was stated in Hall, the Family Report is intended to be a helpful and independent source of information to the Court, as the two Family Reports are in this case.
[35] (1979) 5 Fam LR 609; FLC 90-713
In my view, the two Family Reports are of a high quality, detailed and thoughtful. I found the oral evidence of the Family Consultant to be impressive and persuasive.
In the end, however, it is the trial Judge who makes the decision. I am satisfied on the basis of the evidence that it is in this child’s best interests to remain in the primary care of her mother and to spend time, which is close to substantial and significant time, with her father.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 3 September 2015

[2015] FCCA 2415

26 June 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies