Talbot and Kaine

[2008] FamCA 794

FAMILY COURT OF AUSTRALIA

TALBOT & KAINE [2008] FamCA 794

FAMILY LAW – CHILDREN – equal shared responsibility – re-location – with whom a child lives – with whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Talbot

RESPONDENT: Ms Kaine

FILE NUMBER: PAC 2679 of 2008

DATE DELIVERED: 1 September 2008

PLACE HEARD:: Parramatta

PLACE DELIVERED: Parramatta

JUDGMENT OF: Loughnan JR

HEARING DATE: 1 September 2008

REPRESENTATION

FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Heard McEwan Legal

Orders

1. Orders are made in terms of the Interim Orders sought by the mother in her Response to Initiating Application in terms of paragraphs 1, 2, 3, 4, 5, 7 and 8 as set out hereunder:

   “1.That the mother and father are to have equal shared parental responsibility for the child […] born […] November 2005 in relation to the care, welfare and development of a long-term nature involving the child to include, but not be limited to, issues about:-

   (e)    the education of the child – both current and future;

   (f)     the religion of the child;

   (g)    the health of the child;

   (h)any change to the child’s living arrangements that may make it significantly more difficult for the child to spend time with any parent.

   2.That the mother be permitted to relocate to a 100km radius of the Brisbane post office in Queensland with the child […] born […] November 2005.

   3.That the child is to live with the mother.

   4.That within 48 hours of the Mother’s arrival in Brisbane, that she do all acts and things necessary to ensure that “SKYPE” is installed, set up and in a working manner for the purpose of the Father contacting the child each Sunday and Wednesday between 7.00 pm and 7.30 pm.  Each party to maintain a computer, webcam and internet connection to ensure that the connection is readily available.

   5.That the child is to spend time with the father as follows:-

   5.1Until the child attains the age of 5 years:

   5.1.1For three separate occasions per year the Mother will cause the child to return to Sydney for no less than seven nights duration with the Father to spend time with the child for five days between 9.00 am and 7.00 pm.

   5.2After the child attains the age of 5 years:

   5.2.1For one half of each school holiday period as agreed and failing agreement for the first half in odd numbered years and for the second half in even numbered years.

   7.That changeover in accordance with Order 5 herein shall occur at [R] McDonald’s Restaurant.

8.That for the purposes of Order 5 that the Mother and Father shall equally share the cost of the child’s return airfares.”

1. That the father provide the mother with at least 28 days prior written notice of the periods that he would like the child brought to Sydney pursuant to paragraph 5.1.

2. That in addition the child spend time with the father for up to two weekends every three months and provided that that time is to be exercised in the Brisbane area between 9:00 am and 7:00 pm on each day or weekend when the father is in attendance and those weekends are to be as notified by the father at least 21 days in advance in writing to the mother.

3. That the father spend time with the child prior to the mother and child leaving for Queensland from 10:00 am 1:00 pm each Sunday and 3:00 pm to 4:30 pm each Wednesday.

4. That as soon as practicable the mother notify the father in writing of her residential address in Queensland and her landline and mobile telephone numbers in Queensland.

5. The proceedings are adjourned to the Registrar’s List at 9:30 am on 16 September 2008 to consider any application for change of venue of the proceedings to Brisbane and the further management of the proceedings otherwise.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2679 of 2008

MR TALBOT

Applicant

And

MS KAINE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a child, a son, who was born in November 2005 and is two years and nine months of age.  The father is 22, the mother is 30. The father lives with his partner, Ms J. The mother lives with her parents. She has a partner, Mr S.  They live apart she says, but they spend time together.  They have a child who was born in November 2007 and is nine months of age.

2. The parties started to live together in October or November 2004 and separated in February 2006.  From February 2006 to August 2006 they were living apart but under one roof.  In August 2006, the father moved out to live with his partner, where she was living with her mother and sister.

3. Arrangements were made for the father and the child to spend time together.  The parties had a number of disputes about it.  The first overnight occasion was 22 overnight to 23 September 2007. That followed mediation undertaken at a Family Relationship Centre, and then from October 2007 they fell into a pattern of every second weekend.

4. At Christmas time each of the parties was travelling, but the mother told the father that she thought the overnight time was causing the child some stress, and said that it would cease. I think that is about the last time that the father saw the child until August just gone, when by consent, orders were made for one day a week, two hours a day, up to three hours a day.

5. The father started these proceedings in June and has filed an amended application which seeks on an interim basis, that the parties retain equal shared parental responsibility, that the child live with the mother and spend time with the father every weekend, from Friday 3.30 pm until Sunday at 7.30 pm, Father's Day, during the Christmas holidays from 1 o'clock on Christmas Day through to 6.30 pm on 5 January, and each second year after that, some time on the child's birthday and every Tuesday from 3 pm to 7.30 and every Wednesday from 3 pm to 7.30, collection at McDonalds at R. The father seeks that an Independent Child Lawyer be appointed for the child and seeks that the mother be restrained from relocating the child outside the boundaries of the Bankstown City Council area.  Those times are similar to the times that he sought in his original application.

6. The mother seeks interim orders that she be permitted to relocate to a place which is within 100 kilometres of the Brisbane Post Office, that the child live with her, that she facilitate Skype communication with the child on a regular basis, until the child attains five years of age there be three separate occasions per year where the mother would bring the child back to Sydney for no less than seven nights duration, during which the father would spend five days, 9 am to 7 pm with the child.  After the child attains five years of age, for half the school holidays, and failing agreement, the first half. The mother will give 21 days notice of the periods when she wants to come back. Changeover will be at McDonalds at R, that the parties share equally the cost of the child's return airfares.

7. I am to make orders in the best interests of a child.  In doing so, the legislation sets out a number of things the Court is to take into account.  There are primary considerations and they relate to the importance of a child having a relationship with each parent, and the need for a child to be protected from abuse or neglect. 

8. If the mother is allowed to move the risk is that there will no meaningful time between the father and the child.  Having said that, the father says he has not seen the child for eight months and yet when he saw the child recently, their relationship was still apparent. However, a child's understanding of time is different to that of an adult and if the child is limited to three occasions a year plus the odd weekend, the risk is that the child's relationship with the father will be strained.

9. In relation to neglect, the father's affidavit is full of allegations of neglect, but he does not press them.  He is now satisfied that the mother cares for the child well and he says that he put that evidence in on the basis of it providing background for the case.

10. In terms of the other matters the Court is to take into account, the legislation reinforces that the Court should look at how the parties actually performed against various criteria. As to the impact of the removal, here the father did not see the child for eight months but the mother proposes more frequent visits that that after she moves to Queensland. She proposes more frequent visits than the parties could organise when they both lived in Sydney.

11. As to the capacity of the parents, there is now no criticism of either party. The father's affidavit contains quite serious allegations of inadequate clothing, inadequate feeding, inadequate cleaning, the child being battered and bruised when he saw the child after periods of separation, the child being in a very unclean state, unkempt and not washed, teeth not cleaned and bad breath. He reports some occasions when the child was referred to a doctor when he was in the father’s care.  None of that is pursued today. The father is a bit of an unknown quantity; there has been, as I say, no time spent for about eight months.  The mother is content for unsupervised time, all day, for up to five days in a row, so, presumably, she thinks that the child will be safe with the father.

12. As to the relationship between the child and the parents, there is no issue about the child and the mother having a good relationship.  The father wants that to continue; he wants the child to live mostly with the mother.  He has left the child with the mother unchallenged for eight months.  He filed no application until six months had gone by, so, there is no issue about that.  The mother says she wants the child to spend time with the father, day only, until five years of age.  She must think there is a reasonable relationship between the child and the father.  The husband says there is a reasonable relationship, or he would do, if he had filed a more recent affidavit.

13. As to other people, there is not really any evidence about the relationship between the partners of the parties and the child.

14. The worrying aspect of the case, is this issue about the father not taking timely action to do something about the fact that he was not seeing the child.  He says that the mother told him not to bother going around in December or January, and he has effectively taken that to heart.  He wanted to avoid conflict between the mother and himself in front of the child. That is all good but there are lots of ways of handing a child over without the parents being together. Thus I am left with something that cannot be explained, and that is there being no real action by the father to cause the child to have some time with him. It may only be my impression but I do not detect in the father an attitude that he would do anything to spend time with the child.  I raised the possibility, for example, of him travelling to Queensland to visit the child and he was not terribly thrilled about that idea.

15. It is very unusual for an order to be made on an interim basis permitting someone to relocate with a child. I do not think I have made three of them in 12 years. That is because if there is a real issue of relationships, and there are real issues for the Court to decide, then it is almost impossible to get to the bottom of them without there being an Independent Child Lawyer, some investigation from people independent of the parties about how things are going, and a bit of expert evidence about the relationship between the child and the parents.  I do not have that here.

16. The parties saw a counsellor.  The counsellor tells us that there was no outcome, no agreement reached about relocation, no agreement reached in relation to the father not seeing the child for eight months, no agreement about specific issues, a judicial decision is required, there is no need for an Independent Child Lawyer, no need for the intervention of a State authority, no need for individual case management, no further child dispute conferences desirable or useful.  So, I take from that, that nothing in what the parties have said suggests the child is in trouble.

17. The child has been left for eight months without any meaningful time with the father. In those circumstances, the mother and her partner say, without challenge, there is a new job in Queensland for the partner and they have a baby together. Thus there is a knock-on effect here; if the mother was restrained from leaving Sydney, then there is a nine month old child that does not see that child's father. There is no evidence about any flexibility in the mother's partner's new job but there is no challenge to the evidence.  The father accepts that there is a job in Queensland and there is $15,000 pa more income, as has been asserted, and there will be better support available for this child and for the other child, in those circumstances.

18. So, weighing all those things up and cognizant of the risks for the relationship between the father and the child, it seems to me that the balance favours the child and the mother going.

19. This is only an interim proceeding.  There are issues for the future about where the rest of the case is run, whether the parties want to continue to run a case at all.  The natural venue for the proceedings would probably be Brisbane if the case is to go too much past today.  Any expert evidence would need to come from Brisbane and so on.

20. I am going to make the orders that the mother has proposed, and I will make an additional order that the father can attend upon the child in Queensland for weekends when he is there, on giving some notice.  I will make the orders that the mother is proposing in relation to travel and handover, but I think the sensible course is for the father to give the notice about when he would like the child to come down, rather than the mother doing it, and hopefully, the parties can make this work.  I told the mother through her solicitor, that, in my experience, the enthusiasm of parties who are allowed to move to provide time between a child and the other parent, diminishes to over time. The mother needs to be careful about that. She has made a promise to the Court that she will foster this very difficult thing, a relationship across 1000 kilometres or more, and she needs to deliver on her promise.  If she cannot do that, then when the case comes before a Judge on a final basis, then there might be a re-evaluation of who is best able to focus on the best interests of this child.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate:  Jay McMullen

Date:  23 September 2008