Terry and Keeler
[2008] FMCAfam 300
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TERRY & KEELER | [2008] FMCAfam 300 |
| FAMILY LAW – Parenting – best interests of the child – meaningful relationship with both parents – relocation. |
| Child Support (Assessment) Act 1989 (Cth), s.106A Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 60CC (1), (3)(b), (c), (d), (e), (f), (g), (h), (i), (j), 60CC (4), (4A), 61DA, 61DA (2), 65DAA |
| AMS v AIF (1999) 199 CLR 160 Bolitho & Cohen (2005) FLC ¶93-224 F v F (2008) 38 Fam LR 52 Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2008) 37 Fam LR 518 Morgan v Miles (2008) 38 Fam LR 275 Sampson v Hartnett (No 10) (2008) 38 Fam LR 315 U v U (2002) 211 CLR 238 W and G (No 2) (2005) FLC ¶93-248 |
| Applicant: | MR TERRY |
| Respondent: | MS KEELER |
| File Number: | CAM 1001 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 25 & 26 March 2008 |
| Date of Last Submission: | 11 June 2008 |
| Delivered at: | Canberra |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brzostowski SC |
| Solicitors for the Applicant: | Mazengarb Barralet Family Lawyers |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | Legal Aid ACT |
ORDERS
Until further Order, the Mother have sole parental responsibility of the child, [X] born in 2006.
[X] live with her Mother.
Unless otherwise agreed in writing between the parents and until further Order, [X] will spend time with her Father over the next
12 month period as follows:-
(a)For six months, twice weekly for two hours supervised by [M] or facilitated through some mutually agreed third party;
(b)For the following six months, three times per week for two hours, supervised by [M] or facilitated through some mutually agreed third party.
At the conclusion of this 12 month period, it is requested that
Ms Connor review the care arrangements for [X] and prepare an updated family report for the Court. I direct the parents to contact Sue Connor and Associates on [phone number omitted] in June 2008 to make appropriate arrangements to see Ms Connor.
A declaration be made pursuant to section 106A of the Child Support (Assessment) Act 1989, that the Mother is entitled to an administrative assessment of child support for [X] because the person from whom she sought payment of child support is the parent of the child.
Both parents do all acts and things necessary to ensure that the Father is included on [X]’s birth certificate.
The Father attend a parenting course and produce a certificate or other such written confirmation of completing the course to the Court and to the Mother’s solicitors.
The Mother be restrained from relocating with [X] to Queensland without either an order of the Court, or the written agreement of the Father.
Each parent notify the other of their current telephone numbers including mobile telephone numbers and landlines, their current addresses, and each parent shall notify the other of any change of telephone number and/or address within 48 hours of such change.
The Mother shall provide to the Father the names of [X]’s treating doctors and/or medical specialists and shall give such written authorities as are necessary to enable the Father to obtain information about any medical condition or treatment the child may experience from time to time.
The matter be adjourned to a date to be advised by the Court in August 2009, or after the completion of the updated family report.
IT IS NOTED that publication of this judgment under the pseudonym Terry & Keeler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 1001 of 2006
| MR TERRY |
Applicant
And
| MS KEELER |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is a delightful little girl. She is scarcely two years old. During the trial, all those in Court could not fail to see her gentle and relaxed attitude with her Father when viewing some photographs and short video footage of her during different supervised time with her Father, Mr Terry. Whether one accepts or rejects Mr Terry’s attitude displayed in this pictorial evidence as genuine (it was suggested on behalf of Ms Keeler that Mr Terry’s actions were contrived for the purposes of the camera), there could be no feigning of [X]’s comfort at being in her Father’s presence. It is against that background that the following matters should properly, but not exclusively, be viewed.
In addition to the video and other material just mentioned, I wish to frame these reasons with some other matters, taken primarily from two recent judgments in the Family Court. They are well known to family law practitioners. The judgments are those of the Full Court in Goode v Goode (2007) 36 Fam LR 422 and W and G (No 2) (2005) FLC ¶93-248, the latter being a decision of Carmody J.[1]
[1] To these cases should be added the Full Court’s later pronouncements in Keach & Keach (2007) FLC ¶93-353, and Sampson v Hartnett (No 10) (2008) 38 Fam LR 315, as well as the decisions of Dessau J in M v S (2008) 37 Fam LR 32, Brown J in Mazorski v Albright (2008) 37 Fam LR 518, and Boland J in Morgan v Miles (2008) 38 Fam LR 275. The relocation cases are relevant for reasons set out later in this judgment.
In Goode v Goode (at p.443 [72]), the Full Court said:
… it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.[2]
[2] Brown J stated the intent of the Act pithily: “The provisions in the Family Law Act 1975 (Cth) … 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.” Mazorski v Albright (2008) 37 Fam LR 518 at p.519 [3].
In W and G (No 2) Carmody J said (at p.80,067: [45]):
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.
Issues in Dispute
The principal issue for determination in these proceedings is `what parenting orders should be made in [X]’s best interests?’ This is to be resolved, on the one hand, having regard to the statutory and judicial matrix prescribed by Part VII of the Family Law Act (“the Act”) and relevant judicial authority of the kind already noted, and on the other hand, having due regard to the factual milieu of the case, which includes an entrenched if not endemic antipathy by [X]'s Mother, Ms Keeler, towards her Father, Mr Terry. In addition to parenting orders, there is the additional consideration regarding Ms Keeler’s wish to relocate to Queensland, and whether Mr Terry’s name should be added to [X]’s birth certificate, which Ms Keeler opposes. All of that said, there is agreement between the parties, on the face of the documents filed on the proceedings, that [X] should live with her Mother, Ms Keeler. A final matter that coloured the proceedings, and clearly colours the relationship, is the contention by Ms Keeler that [X] was conceived in circumstances where, during the course of drinks with Mr Terry at a local hotel, her drinks were “spiked”, after which she says that she has little recollection of events until she awoke the following morning with Mr Terry `groping her in bed.’
Proposals of the Parties
By way of general background, three matters may be noted before I detail the various proposals of the parties. First, Mr Terry and Ms Keeler met while she was engaged in the sex industry.[3] They pursued a short relationship in 2000 and 2001. Thereafter, and subject to what is discussed later, they maintained a somewhat sporadic friendship. Mr Terry maintains that it continued to be an intimate relationship; Ms Keeler denies that this was the case.[4] Secondly, Ms Keeler has two children from earlier relationships: [Y], who is 23 years old, and [Z][Z], who is 9. Thirdly, Mr Terry has no other children.
[3] See Transcript (25th March 2008) p.47. Mr Terry’s evidence about the relationship with Ms Keeler commencing while she was working in the sex industry was given in the course of his cross-examination by Ms Keeler’s Counsel, Ms Tonkin.
[4] See, for example, Transcript (25th March 2008) p.12.
Mr Terry filed an application on 7th July 2006 in which he sought orders whereby he would spend time with [X], “as agreed or ordered” but initially no less than three times per week for one hour each time, and that Ms Keeler not change [X]’s residence without Mr Terry’s permission or pursuant to a Court order.
In her Response, filed on 8th September 2006, Ms Keeler sought orders for [X] to live with her, that [X] spend time with her Father “as agreed between the parties from time to time”, and that she [and [X]] be permitted to relocate to Queensland.
On 12th September 2007, Ms Keeler confirmed in documents filed with the Court that she sought to have sole parental responsibility for [X], that she be allowed to relocate to Queensland, and that “there be no orders for the child to spend time with the Father or that any order for the child to spend time with the Father require supervision.” Ms Keeler also sought an order in which, if the Court ordered that Mr Terry spend time with [X], there be a declaration (pursuant to s.106A of the Child Support (Assessment) Act1989 (Cth)) that Ms Keeler is entitled to an administrative assessment.
In her “Minute of Orders Sought,” filed on 20th March 2008, Ms Keeler confirmed that she asked the Court to make orders providing that [X] live with her, that she have sole parental responsibility, that she be permitted to relocate to Queensland, and that there be either no orders for [X] to spend time with her Father, or that any order for such time require that it be supervised.
On 14th September 2007, Mr Terry filed a document entitled “Orders Sought by the Applicant Father,” pursuant to which he sought orders whereby he and Ms Keeler have equal shared parental responsibility for [X] and that Mr Terry spend supervised time with [X] for 4 hours each week. The orders also provided that the supervised time be reviewed by a Regulation 7 Consultant within 6 months of the [final] order being made. He maintained that he wished to ensure that Ms Keeler and [X] did not move from the ACT.
I will deal firstly with the parenting issue, then with relocation, acknowledging immediately that the two issues overlap significantly. However, before doing so I should note one other matter briefly by way of the procedural history of the matter.
Procedural History
The substantive hearing was conducted in March this year. Written submissions were received from Counsel for the parties in early and mid-June respectively. In late June an application was filed by Mr Terry in which he sought to adduce further evidence in the proceedings. I heard that application on 9th July. In the event, I refused that application.
Parenting Issues
This aspect of the matter will be considered from the following perspectives: (a) the applicant Father, Mr Terry, (b) the respondent Mother, Ms Keeler, and (c) the Regulation 7 Consultant, Ms Connor.
The Evidence of Mr Terry: Mr Terry’s evidence may be categorised and considered in two respects. The first relates to his relationship with Ms Keeler; the second concerns his relationship with [X]. I will deal with his evidence essentially under these two broad categories.
Put simply, the relationship with Ms Keeler is poor. This bald statement needs to be qualified. It is decidedly poor from Ms Keeler’s side who seems to bear something akin to a grudge that she became pregnant to Mr Terry. In consequence, she seems most determined to limit his time with [X]. I will deal with this aspect in more detail later in these reasons.
From Mr Terry’s perspective, I detected no hint of hostility toward Ms Keeler but only, or primarily, a concern to protect his relationship with [X]. That said, his actions have not always shown an appropriate degree of sensitivity – and much else besides – either towards Ms Keeler or to ensuring, via Ms Keeler, that his relationship with [X] is promoted or secured. He also agreed in the course of cross-examination that there is “zero communication” between the parties.[5]
[5] Transcript (25th March 2008) p.10.
For example, even while Ms Keeler was in hospital after the premature birth of [X], Mr Terry was initiating legal proceedings to seek orders in relation to [X].[6] As well, for some time he resisted DNA testing to confirm that [X] was his daughter.[7] I need not go in to the details of these events beyond the Transcript references noted. However, to state what should be obvious, neither action could reasonably be said to be remotely sensitive, especially commencing proceedings, in the light of the surrounding circumstances.
[6] See Transcript (25th March 2008) p.28.
[7] See, for example, the cross examination of Mr Terry in relation to paternity testing, Transcript (25th March, 2008) pp.29-31. Consent Orders were made on 18th September 2006, which required Mr Terry to undertake paternity testing.
Other matters, also showing the difficulties between [X]’s parents, were canvassed at the trial, such as a contest over Mr Terry’s name on the birth certificate. This particular matter, and others too, also need not be addressed further, especially since Ms Keeler has agreed to put Mr Terry’s name on [X]’s birth certificate. They strike me as but instances of the difficulties between the parties. Lest it remain an issue, Mr Terry’s name should be added to [X]’s birth certificate, which would require both parties to complete the necessary paperwork to ensure that this occurs.
Mr Terry confirmed in evidence that he has been putting money into a bank account for [X] for the last twelve months. I have no reason to doubt this evidence of putting aside $50.00 per week, nor was it formally challenged. However, if he has not done so to date, he should contact the Child Support Agency immediately to ensure that [X] is appropriately provided for through the CSA. For more abundant caution, there will be an order that Mr Terry contact the CSA immediately for child support assessment.[8]
[8] As already noted, in Ms Keeler’s Minute of Orders Sought, (filed 20th March 2008) Order 5 seeks that “…in the event that the Court makes an order for the child to spend time with the father, then the Court make a declaration pursuant to s.106A of the Child Support (Assessment) Act 1989 that the Mother is entitled to an administrative assessment of child support because the person from whom she sought payment of child support is a parent of the child.”
The second issue to which I have already referred concerns Mr Terry’s relationship with [X]. I noted at the beginning of these reasons the obvious and unconcerned delight [X] had being with her Father in the course of their supervised time together. It also cannot but be the case that their relationship is in its very early stages and must be nurtured gently.
At the conclusion of her Report, Ms Connor said this in relation to Mr Terry: “In the interview situation and from the formal assessment, I could see no reason to be concerned about Mr Terry. Indeed, he impressed me as a caring, pleasant man who merely wanted to gradually establish contact with his only child.”[9]
[9] Regulation 7 Report of Ms Connor (11th September 2007) par.7.2, p.16. This Report was formally tendered and marked Exhibit F.
I share Ms Connor’s assessment. By way of general observation, I found Mr Terry’s evidence to be direct, unevasive and focussed essentially on [X]’s best interests. At the same time, he is clearly in the embryonic stages of appreciating his responsibilities of parenthood. He should do at least one parenting course, if not more, to assist him in this regard. There will be an order to this effect.
Discrete Issues
Three other issues do need some brief, discrete attention. They relate to “relocation”, the allegation of Ms Keeler’s drinks being “spiked,” and the criticism of Mr Terry that he has no long-term plan for his time and relationship with [X].
Relocation. In relation to this matter, Mr Terry said that he could, perhaps, consider relocating to Queensland in the event that Ms Keeler did so. However, he noted that because of the nature of his business and general work commitments, it would financially disadvantage him to a significant degree.[10]
[10] Transcript (25th March 2008) pp.41-42.
I will comment further below, but I should note here that even if Ms Keeler were to relocate to Queensland, in my view, the evidence is very clear that her disquiet about Mr Terry having any time with [X] would still be present. Such a move may palliate slightly her concern and obviously diminish the prospect (albeit extremely unlikely) that Mr Terry might “drop in” to see [X], but it would not alleviate her fundamental disposition that she does not wish Mr Terry to spend time with [X].
Mr Terry stated in evidence that he was unaware that Ms Keeler was contemplating moving to Queensland so as to be with her extended family. He was aware that one of Ms Keeler’s daughters ([Z]) was spending time with her Father (G), but stated that he (Mr Terry) was unaware that Ms Keeler was staying in Canberra solely or principally so as to ensure that [Z] could spend time with her Father.[11]
[11] Transcript (25th March 2008) p.12.
Drink Spiking & `Consensual Sex’. The facts and controversy surrounding this matter were perhaps the most contentious in the course of the proceedings.
It seemed not to be in dispute that Mr Terry and Ms Keeler went for a drink in mid-December 2005 at an establishment called “[omitted] Pub.” The contest surrounded (a) whether Ms Keeler’s drinks were spiked, (b) whether Mr Terry spiked the drinks, (c) whether the sexual intercourse that took place back at Ms Keeler’s residence that evening or following morning was consensual, and (d) whether (on Mr Terry’s evidence) Ms Keeler invited him to spend the night at her place, or (on Ms Keeler’s evidence) Mr Terry had formally “pre-arranged” the evening and the intimate events that took place.
In relation to this last aspect, the situation is claimed that a young nephew of his ([J]), who was friends with one of Ms Keeler’s daughters, was to come over and spend the night at Ms Keeler’s.
Mr Terry’s evidence was that his sister had arranged this the day before with Ms Keeler.[12]
[12] Transcript (25th March 2008) p.13.
Unsurprisingly, the evidence of the parties is seriously conflicting over each of the points raised in par. [29] above. Mr Terry denies that he spiked Ms Keeler’s drink, or that their sexual encounter was other than consensual. He also gave evidence that on or about Christmas Day in 2005, Ms Keeler sent Mr Terry a text message implying that she was pregnant because the text message said that he `should have worn a condom.’[13] She contended that her reference to the use of a condom related more to her concern about contracting a STD than about being pregnant.
[13] Transcript (25th March 2008) pp.14-15.
These are not criminal proceedings. As noted below, Ms Keeler has never made any complaint to any relevant authority (e.g. the police, rape crisis centre, etc) in relation to the matters raised in these proceedings concerning the `spiking of her drinks’ in December 2005 and subsequent events. Subject to what is said later, nor is the Court in any position to conduct a forensic examination of the veracity of the respective claims made surrounding this incident. The focus must be on orders that are in [X]’s best interests. However grieved Ms Keeler is about what did or did not happen on that night in December 2005, and Mr Terry likewise in relation to the allegations made against him, in my view they are not directly relevant to the determination of parenting orders on the evidence available to the Court.
As well, for reasons that I consider in more detail shortly in relation to Ms Keeler’s evidence, in any event I am not persuaded that her drinks were spiked, or that Mr Terry spiked them, or that the sexual relations between Mr Terry and Ms Keeler were not consensual. This is not to deny that Ms Keeler feels strongly that they were not consensual, or that her drinks were spiked, and that Mr Terry spiked them. As indicated, I will return to her evidence on these matters again shortly.
Long-term Parenting Plans for [X]. It was insistently put to Mr Terry that he did not have any proposal before the Court regarding his plans for his long-term relationship with [X].[14]
[14] See, for example, Transcript (25th March 2008) pp.9 & 10.
The short answers to this criticism, in my view, are twofold. First, as already stated, Mr Terry is necessarily in the very early stages of the relationship with his young daughter. It is an embryonic `work in progress.’ As already indicated, orders will be made that Mr Terry attend a parenting course as soon as practicable. Secondly, as recommended by the Family Consultant, Ms Connor, the progress or otherwise of the relationships between the parties and [X] should be reviewed in 12 month’s time. With the benefit of a further report from Ms Connor, among other things, in the event that matters proceed relatively smoothly, I would expect that an additional recommendation will be, and I would be minded to order it in any event, that the parties attend something like the ARCK program. There will be an order for a review, as recommended by Ms Connor, in 12 month’s time.
The Evidence of Ms Keeler. Much of Ms Keeler’s extensive time in the witness box was taken up in her cross-examination by Mr Brzostowski, Senior Counsel for Mr Terry. That process, not surprisingly, focussed on a significant range of inconsistencies between what Ms Keeler had stated in earlier-filed affidavits and the position on certain issues that she assumed at the trial. I need not, and will not, traverse all of the areas the subject of cross-examination. I will, however, note a few matters (as briefly as possible) relating to issues or events that have already been mentioned, most notably the allegation of “drink spiking” and non-consensual sex between the parties. They are relevant to issues of credibility, and to some extent, to the relationship of [X]’s parents and their capacity to promote and facilitate a meaningful relationship between [X] and the other parent.
In par.15 of her affidavit filed on 14th September 2006 (Exhibit E),
Ms Keeler states: “[Mr Terry] and I had a brief sexual encounter in December 2005. [Mr Terry] had come to visit with his nephew, [J]. [Mr Terry] and I had both had too much to drink and he stayed the night. The next morning [Mr Terry] left. [J]’s mother then collected him later in the day.” These same matters were essentially repeated, and only modest amendment, in her affidavit filed on 30th July 2007. They were significantly modified, and the reference to the parties’ both having `too much to drink’ deleted, in her affidavit filed on 20th March 2008. No reasonable or plausible explanation for the disparities between the two earlier affidavits and the March 08 affidavit was provided notwithstanding significant cross-examination by Mr Brzostowski.
Clearly there is no complaint about either her drinks being spiked or that there was any non-consensual sexual encounter according to this version of events as deposed to in September 2006.
In par.17 of the same affidavit, Ms Keeler deposes to Mr Terry coming over to her place on New Years Eve and saying to her that he wanted to get back together with Ms Keeler and have a baby together. She advised him then, she says, that she was pregnant. Again, there is no complaint about any previous non-consensual sexual liaison, or any allegation about drinks being spiked.
In the course of her cross-examination, she confirmed that she had drunk perhaps 3 or 4 `Vodka Cruisers’ at [omitted] Pub. She contended that such a quantity of drinks would not have been sufficient to impact to any substantial degree on her sobriety: “… it’s certainly not enough drinks to get anyone drunk.”[15]
[15] See Transcript (26th March 2008) p.102.
Ms Keeler confirmed that she never went to a rape crisis centre, the police, any hospital or clinic in relation to the alleged drink spiking/ non-consensual intercourse incident. In answer to further questions from Mr Brzostowski regarding avenues she could have pursued - but did not - in relation to substantiating her claims to have been `date raped,’ she confirmed that she was aware of blood and urine tests.[16]
[16] Transcript (26th March 2008) pp.103 & 104.
I will only mention two other aspects of Ms Keeler’s evidence. First, in an answer that must rank as “remarkable” (to say the least), she contended that she did not think she had been raped by Mr Terry (“I guess I didn’t really look at it that way at first.”), and then suggested that “I guess I felt he had a right because he was my ex boyfriend.”[17] Such a proposition takes the notion of “rights’ to a new and disturbing level!
[17] Transcript (26th March 2008) pp.106 & 109-110.
Shortly after the alleged `date rape’ event, Ms Keeler asked Mr Terry to house-sit her residence while she went to Queensland for six weeks. I agree with the import of Mr Brzostowski’s questions to Ms Keeler in this regard, where he asked her: “The real point is I suggest that it would be most unlikely for a person to have her rapist mind her house for six weeks if indeed that was a rape?”[18] And even on her return from Queensland, Ms Keeler rang Mr Terry and asked him to pick her up from the airport. All of these actions are exceedingly difficult to reconcile with her claims regarding the `date rape’ allegation.
[18] Transcript (26th March 2008) p.109.
There is one final thing to mention. In completing the necessary “intake” forms at [M], Ms Keeler claimed that [X] was at risk of physical or sexual abuse from Mr Terry. In cross-examination, she conceded, somewhat reluctantly, that she had “misinterpreted the question.” She agreed with Mr Brzostowski as follows: “… there is not the slightest conduct ever shown in anything that has happened to suggest that [X] would be at risk from him [Mr Terry]? No, at this stage, no.”[19]
[19] Transcript (26th March 2008) p.136.
Ms Connor noted (Report: par.4.2) that Ms Keeler intimated that
Mr Terry was a paedophile who “could not wait to get his hands on [X].” She (Ms Keeler) did not believe he was capable of caring for a baby. In the light of her admission in cross-examination referred to in the previous paragraph, and that there is not a shred of evidence to support it, the terrible suggestion that Mr Terry is a paedophile should be disregarded as irrelevant for the purposes of these proceedings.
At the conclusion of her Report (par.7.2), Ms Connor said:
Ms Keeler impressed as a self centred woman who was preoccupied with her own needs and wants. She was not able to understand how a positive relationship with Mr Terry would enhance [X]’s self worth and self esteem as she gets older, or to recognise that Mr Terry could make a useful contribution to their daughter’s upbringing.
I agree with Ms Connor’s assessment.[20] To the degree necessary, I should also formally record that where there is any inconsistency in the evidence between the parties, I prefer that given by Mr Terry.[21] I move to consider the evidence of Ms Connor.
[20] Ms Connor also noted in her Report (par.5.50) that there were invalid test results in relation to Ms Keeler due to “validity concerns.”
[21] I do not propose dealing with other matters raised in the course of the trial, such as the failure to put Mr Terry’s name on [X]’s birth certificate, as well as issues relating to the limited time that Mr Terry has spent with [X] and the often-times seemingly patent disregard of Ms Keeler to facilitate agreed times between [X] and her Father. A third issue not canvassed here relates to the differing versions of events at [omitted] Hospital following [X]’s birth. In my view, all such matters are simply further instances of the dissonance in the relationship between [X]’s parents.
Evidence of Family Consultant: Ms Connor
In addition to her Report, Ms Connor gave oral evidence at the trial. The substance of that evidence may be summarised as follows.
First, for a child of [X]’s young years, it is important that time with the non-resident parent be short but frequent. In this regard, Ms Connor said that any change to the time that [X] spends with her Father in relation to an interstate move by her Mother should, in her view, be delayed until [X] is at least 5 years old.
Secondly, the success of the relationship between [X] and her Father will, to a significant degree, depend on the attitudes of both parents to each other.
Thirdly, Ms Connor recommended that the time that [X] spends with her Father should be built up.
Fourthly, she considered that Ms Keeler was more concerned and stressed about the time [X] spends with Mr Terry than about relocation. Indeed, Ms Connor observed that she (and also the Court) did not know very much about the family support that Ms Keeler claimed she sought in Queensland. It is certainly the case that the evidence in favour of a relocation to Queensland as being in [X]’s “best interests” was, at its highest, very scant.
Fifthly, and in my view significantly, Ms Connor confirmed that wherever Ms Keeler lived, she would be stressed by [X] spending time with her Father.[22]
[22] All of the above matters are taken from Ms Connor’s evidence: see Transcript (26th March 2008) pp.149-157.
For the sake of completeness, I note here that Ms Connor concluded her Report recommending that Mr Terry have supervised time at [M], if possible on a twice weekly basis for short visits of an hour each. This accords, of course, with her more recent evidence regarding the importance of short, frequent time between [X] and Mr Terry and that the time gradually be increased. Ms Connor also recommended that the issue of “contact” be reviewed in 12 months. I will certainly be making an order that will conform with this second recommendation.
Statutory & Other Considerations
The Court is asked here to make parenting orders in relation to [X]. In those circumstances, as required by s.60CA, her best interests must be the paramount consideration. In determining those interests, I must have regard to the relevant provisions of Part VII, particularly s.60B and s.60CC, as well as the applicability of s.61DA, and s.65DAA.
Such matters are not altered by virtue of the fact that Ms Keeler seeks an order permitting her to relocate. This is because, as the High Court has consistently stated, where there is any conflict between the best interests of a child and the desires and wishes of the parents, the interests of the child are to prevail.[23] Indeed, in the light of the High Court decisions just referred to, and important Full Court authority such as Bolitho & Cohen and Sampson v Hartnett (No 10),[24] it may fairly be said that relocation is but a species, albeit a rather specialised form, of the genus “parenting order,” which requires the exact consideration of Part VII of the Act as prescribed by the Full Court in Goode v Goode.[25]
[23] See, for example, AMS v AIF (1999) 199 CLR 160 per Kirby J at [144] & Hayne J at [217-219]; U v U (2002) 211 CLR 238 per Gummow & Callinan JJ at [80 & 89].
[24] (2005) FLC ¶93-224 & (2008) 38 Fam LR 315 respectively.
[25] (2007) 36 Fam LR 422.
I begin with s.61DA and the presumption of equal shared parental responsibility. While there is nothing, in my view, that would attract the operation of s.61DA(2) in relation to risk of abuse of the child or family violence, the utterly strained relationship between the parents at this time militates against such an order. The relationship is so taut, essentially from Ms Keeler’s side, that it would not be in [X]’s best interests, in the immediate future, if an order was made that there be equal shared parental responsibility.[26] As well, Mr Terry’s parenting skills and general appreciation of the responsibilities are clearly still in an early `growth phase.’ For these reasons, there will be an order that, subject to further order, Ms Keeler have sole parental responsibility for [X]. Such an order obviates the need to consider s.65DAA.
[26] As something of an aside, it may be that another factor that hinders the relationship between Mr Terry and Ms Keeler is that Ms Keeler’s eldest daughter, [Y], has not spoken with her Mother since learning of her pregnancy with [X]. As well, it appears that [Y] enjoys a good relationship with Mr Terry, presumably to the chagrin of Ms Keeler.
I hasten to add that, subject to what Ms Connor recommends in her further report in 12 month’s time, I would be more than prepared to re-visit this order. I turn to consider s.60B and s.60CC.
The objects and principles set out in s.60B of the Act are plain. I have previously noted Brown J summary of them in Mazorski v Albright where her Honour said: “The provisions in the Family Law Act 1975 (Cth) (the Act) relating to children rest on twin pillars. The first is the importance of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm.”[27] Brown J then noted how these twin pillars, which are stressed in s.60B, are reiterated in the primary considerations in s.60CC(1).
[27] (2008) 37 Fam LR 518 at p.519 [3].
The issue here is to determine what orders will ensure that [X] has a meaningful relationship with both of her parents, and that they both have a meaningful involvement in her life to the maximum extent consistent with her best interests, in the light of their heavily strained relationship.
Given her age, there are no views of the child to consider. For the purposes of s.60CC(3)(b), (f), (g), and (i), I have already noted that
Mr Terry’s experience as a parent is limited, especially compared to
Ms Keeler’s as [X]’s primary carer, as well as having two older children.For the purposes of s.60CC(3)(c), as well as s.60CC(4) and (4A), I have also noted on a number of occasions the strain between [X]’s parents, which impacts directly on each party’s capacity to facilitate and encourage a close and continuing relationship between [X] and the other parent. From what has been said, Ms Keeler will not, without a court order, promote any relationship between [X] and Mr Terry. I do not regard Mr Terry’s position as being anywhere near as entrenched or as hostile to [X]'s Mother as Ms Keeler is to Mr Terry.
I do not regard sub-paragraphs (d), (e), and (h) as having any impact, or relevance, in these proceedings.
Ms Keeler contended that during the course of the time that she and Mr Terry lived together in 2000/2001, he physically and verbally abused her. In cross-examination, she conceded that it was more verbal than physical. Having regard to how long ago the alleged incidents are claimed to have occurred, to genuine question marks over Ms Keeler’s evidence generally, and as already observed, there is no evidence at all regarding any risk to [X], I do not regard sub-paragraph (j) as having any import to the orders to be made.
Relocation
The final matter to consider is the formal application of Ms Keeler to relocate to Queensland. I have already noted a range of relevant cases. The principles applicable in relocation cases, derived from a broad range of High Court and Full Court authority, are summarised in my judgment in F v F.[28]
[28] F v F (2008) 38 Fam LR 52 at pp.56-58 [7-8].
From what has been said already, and in the light of the recommendations of Ms Connor regarding the importance for [X] to establish a sound basis for her relationship with Mr Terry through short but frequent time with him, I do not accede to the application to relocate. I do not regard a relocation to be in [X]’s best interests. Even if I were minded to consider that Ms Keeler has made out a case for relocation (a proposition I reject), in any event, on the available evidence such a proposal puts Ms Keeler’s interests ahead of [X]’s. In such circumstances, and in accordance with established authority, [X]’s best interests must prevail. To this end, and for more abundant caution, I formally restrain Ms Keeler from relocating to Queensland without either an order of the Court or the written agreement of Mr Terry.
Conclusion
[X]’s best interests are best served by seeking to continue with a graduated increase in the time that she spends with her Father. That should remain supervised, not because of any risk to [X], but so as to provide a forum where both parents can be readily observed and to ensure that [X] is quarantined (to the degree possible) from the angst and acrimony between her parents. In my view, that supervised time (either at [M] or some other agreed agency, or facilitated through some mutually agreed third party) should be twice weekly for six months, and thereafter for the next six months, three times per week, also supervised. At the conclusion or towards the end of that twelve month period, I request Ms Connor to review the arrangements involving [X] and to prepare a further report for the Court.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: R. Davidson
Date: 29 August 2008
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