THWAITE & HATCHER

[2012] FamCA 619

FAMILY COURT OF AUSTRALIA

THWAITE & HATCHER [2012] FamCA 619

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – where the child will live with the mother – where the mother and father will have equal shared parental responsibility

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child - where the child will live with the mother – where the mother and father will have equal shared parental responsibility – where the child will have graduated time with the father – where the child will spend substantial and significant time with the father

FAMILY LAW – RELOCATION – whether the mother can take the child interstate – where father is established in Brisbane – where the mother is ordered to live within 50 kilometres of her current residence unless she first obtains the written consent of the father

Family Law Act 1975(Cth) s 4, s 60B, s 60CA, s 60CC, s 61DA, s 62B, s 65AA, s 65 DAA
Domestic and Family Violence Protection Act 1989 (Qld)

B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Cowley & Mendoza [2010] FamCA 597
Heath & Hemming [2011] FamCA 749
Preston & Preston [2011] FamCA 618

APPLICANT: Mr Thwaite

RESPONDENT: Ms Hatcher

INDEPENDENT CHILDREN’S LAWYER: Rob Grant

FILE NUMBER: BRC 1579 of 2009

DATE DELIVERED: 1 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 1 and 2 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Black

SOLICITOR FOR THE APPLICANT: Rhonda Sheehy & Associates

COUNSEL FOR THE RESPONDENT: Mr Bunning

SOLICITOR FOR THE RESPONDENT: DA Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Grant & Associates

Orders

1.The mother and the father have equal shared parental responsibility for the child L born … October 2008 (“the child”).

2.The child shall live with the mother.

3.The mother shall not relocate the child’s residence outside an area of 50 km radius from her current residence, without the prior written consent of the father.

4.The mother and the father shall take all reasonable steps to ensure that the child spends time with the father at all times as may be agreed between the parties but failing any other agreement as follows:

(a)For a period of 3 months from the date of these orders:

(i)each Saturday from 9.00 am to 2.00 pm, with changeover to occur at the E Contact Centre;

(ii)each Sunday from 9.00 am to 2.00 pm, with changeover to occur at the E Contact Centre;

(b)Thereafter for a period of 1 month:

(i)each Saturday from 9.00 am to 5.00 pm, with changeover to occur at the E Contact Centre;

(ii)each Sunday from 9.00 am to 5.00 pm, with changeover to occur at the E Contact Centre;

(c)Thereafter for a period of 2 months:

(i)each Saturday from 9.00 am to 11.00 am Sunday, with changeover to occur at the E Contact Centre;

(d)Thereafter for a period of 4 visits:

(i)each Saturday from 9.00 am to 5.00 pm Sunday, with changeover to occur at the E Contact Centre;

(e)Thereafter for a period of four visits:

(i)each Friday from 4.00 pm to 5.00 pm Sunday, with changeover to occur at the E Contact Centre;

(f)Thereafter and until the child commences preparatory schooling:

(i)for two consecutive weekends out of three, from 5.00 pm Friday to 5.00 pm Sunday;

(ii)during gazetted school holiday periods:

A.     for the March/April 2013 school holiday period from 5.00 pm on Friday 5 April 2013 to 5.00 pm Monday 8 April 2013 and from 5.00 pm Friday 12 April 2013 to 5.00 pm Monday 15 April 2013;

B.     thereafter for half of each school holiday period and in particular for the first half in even numbered years and the second half in odd numbered years;

(g)From the time the child commences preparatory schooling:

(i)each alternative weekend commencing after school on Friday to 5.00 pm Sunday, such time to be extended to 5.00 pm Monday if the Monday is a Queensland gazetted public holiday;

(ii)subject to Order 5 hereof, for half of each school holiday period and in particular for the first half in even number years and the second half in odd number years.

5.Notwithstanding the terms of Order 4 above, the child shall spend time with each of his parents commencing immediately as follows:

(a)On each Father’s Day, with the father, if he is not otherwise with the father on that day pursuant to these orders, from 9.00 am to 2.00 pm;

(b)On each Mother’s Day, with the mother from 9.00 am, such that if the child is spending time with the father that weekend otherwise pursuant to these Orders, the child shall be returned to the mother’s care at 9 am on that Mother’s Day;

(c)With the father from 5.00 pm Christmas Eve to 2.00 pm Christmas Day in even numbered years and from 2 pm Christmas Day to 5.00 pm Boxing Day in odd numbered years.

(d)With the mother from 2.00 pm Christmas Day to 5.00 pm Boxing Day in even numbered years and from 5 pm Christmas Eve to 2 pm Christmas Day in odd numbered years.

(e)With the father from 1.00 pm to 5.00 pm on the child’s Birthday until he commences preparatory schooling, if he is not otherwise seeing the father on that day pursuant to Order 4 of these orders.

(f)With the father on the child’s Birthday once he commences preparatory schooling, if he is not already spending time with the father pursuant to Order 4 of these orders, as follows:

(i)If it is a school day from 3.00 pm to 5.00 pm;

(ii)If it is a non-school day from 1.00 pm to 5.00 pm.

(g)On the child’s Birthday if he is spending time with the father pursuant to Order 4 hereof, then he will be returned to his mother at 1.00 pm for a period of 4 hours.

6.The mother shall be permitted to travel interstate with the child, provided that:

(a)The mother gives to the father at least 4 (four) weeks notice, in writing;

(b)The mother does not travel with the child during a period when pursuant to these Orders the child is to spend time with the father, unless the father has given his prior consent in writing.

7.When the child is not spending time with the father pursuant to Orders 4 and 5 of these Orders, he will communicate with the father by telephone on Mondays, Wednesdays and Fridays between 6.00 pm and 6.30 pm, with the father to instigate the calls to the mother’s nominated landline or mobile telephone number and with the mother to ensure that the child is available to receive the call in a quiet and private area.

8.When the child is spending time with the father for half of gazetted school holidays, he will communicate with the mother by telephone on Mondays, Wednesdays and Fridays between 6.00 pm and 6.30 pm, with the mother to instigate the calls to the father’s nominated landline or mobile telephone number and with the father to ensure that the child is available to receive the call in a quiet and private area.

9.Each parent is at liberty to communicate with the child by email, letter or Skype if it is available and each parent shall take all reasonable steps to ensure that email and skype communication is available to the child and the other parent whilst the child is in his or her respective care.

10.Except as otherwise agreed between the mother and the father, the child’s transition between the care of the mother and the father will occur as follows:

(a)Prior to the child commencing preparatory schooling, from the service station situated B in the State of Queensland.

(b)Once the child commences preparatory schooling, from the school and if it is to occur on a non-school day then at the service station situated in B in the State of Queensland.

11.The mother and the father are to share equally any costs associated with the use of the B Contact Centre for the child’s transition between them.

12.That each of the mother and the father will:

(a)Keep the other informed at all times of their residential address and landline or mobile telephone number, and current email address to enable communication between the child and each parent;

(b)Keep the other informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise that practitioner to give to the other parent, at that other parent’s  expense, information the other parent may request from time to time about the child;

(c)Inform the other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child and authorise any treating medical practitioner to release the child’s medical information to the other parent, at the other parent’s expense.

13.Each parent shall authorise and request the Principal of any school attended by the child to give to each parent at each parent’s expense copies of all school reports, notices and correspondence in relation to the child’s academic progress, sport and extra-curricular activities and general school functions and activities and other information about the child’s educational progress and each parent is authorised to provide a copy of these Orders to any such Principal in support of such request.

14.Each parent is restrained from:

(a)Making any derogatory comment about the other parent or her or his relatives to or in the presence or hearing of the child;

(b)Commenting, discussing or referring to any issues raised in these proceedings or in dispute between the parents or the evidence given by either of them or any of their witnesses

and each parent shall use his or her best endeavours to ensure that no other person does any of those things to or in the child’s presence or hearing.

15.The mother shall not consume or be affected by alcohol to the extent that she would have a blood alcohol concentration in excess of the legal limit for driving a motor car, or consume or be affected by illicit substances, during any period when the child is in her care.

16.The father shall not knowingly consume alcoholic beverages or be adversely affected by alcohol, or consume or be affected by illicit substances, during any period when the child is in his care.

17.All other applications not dealt with by these Orders are dismissed

18.The Independent Children’s Lawyer is discharged in fourteen days from the date hereof.

19.Pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that my follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Thwaite & Hatcher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1579  of 2009

Mr Thwaite

Applicant

And

Mr Hatcher

Respondent

REASONS FOR JUDGMENT

Introduction  

1.L is three years old (“the child”). He will turn four in October this year. Since he was only two months old his parents have not lived together. They did not live together for very long before he was conceived and their relationship was never a very stable or functional one. Nevertheless, both of the child’s parents love him dearly and both want to be closely involved in his life, providing parenting to him as he grows. It is their inability, to this point in the child’s life, to agree as to each other’s role in the child’s parenting that brings them to this Court. Accordingly, it is now for this Court to determine, according to law, what parenting arrangements should be put in place for this little boy.

2.The mother is now forty-three years of age. The father is thirty-six. They knew each other for a time before they commenced a relationship but they began to live together in a marriage-like relationship in the middle of 2007.

3.The mother became pregnant soon after they started living together but, sadly, that pregnancy did not go to full-term and they lost their first baby due to serious complications. The couple soon enjoyed another pregnancy and, happily, the child, was born on 8 October, 2008. The couple separated in December that year, and they have been in conflict, particularly with respect to the parenting of the child, ever since.

4.Although there is quite a deal of disagreement between the mother and the father about detail, there can be no disagreement that their relatively short relationship was tumultuous, characterised by abuse of alcohol by both of them, family violence by each against the other, and dysfunctional interaction for much of the time. Despite this, they had purchased a home at R, Queensland in which they were living at the time their child was born and when they separated. Indeed, at the time they separated, the maternal grandmother had also been living with the family in that home for about nine months.

5.The couple’s separation occurred when the father asked his mother-in-law to leave the home and the mother determined to go with her, taking the infant as well. Proceedings ensued under the Domestic and Family Violence Protection Act 1989 (Qld) and the mother obtained an order excluding the father from the property, allowing her, the maternal grandmother, and the child to resume occupation.

6.Although the father tried to, he did not get to spend time with the child for some months after the separation. He commenced proceedings in the Federal Magistrates Court in February 2009, seeking orders that provided for the baby to spend some time with him. In April that same year, the mother filed her Response. She asked the Court for orders that she be permitted to move with the child to the New South Wales mid-western country town of Town Y, the town where she had spent much of the latter years of her childhood. She initially sought orders that the time that the child spent with the father be limited, not just by the factors associated with the distance between Town Y and Brisbane, but limited by the requirement for it to be supervised as well, on an indefinite, ongoing basis.

7.In April 2009, orders were made in the FMC for, amongst other things, the child to spend time with the father, supervised by the paternal grandparents for a few hours each alternate weekend and restraining the mother from moving from south-east Queensland.

8.In May 2009, a family report was prepared by Ms W, consultant social worker. Ms W recommended that the father’s time with the baby be limited to supervised time at a contact centre, so that the supervision was professional and allowed for independent reporting back to the Court. Ms W also favoured permitting relocation of the mother and child to NSW, but not for some time, so that the child could have “an established relationship” with the father before he went to live interstate.

9.In June 2009, further orders were made in the FMC for the time the child spent with the father to be supervised at a contact centre twice per week and for the appointment of an Independent Children’s Lawyer. In October 2009, some further orders in respect of supervised time at contact centres were made and the matter was transferred to this Court.

10.The child continued to spend supervised time with the father at contact centres throughout 2010 and the parties were seen by psychiatrist, Associate Professor V late in that year. Professor V provided a report in December 2010 in which he opined, principally, that there was no psychiatric reason why the time the child spent with his father needed to continue to be supervised.

11.In January 2011, the Family Consultant, Ms D, saw the family and prepared a family report for the Court’s assistance. Ms D described the parents’ competing proposals as resulting in, whichever was accepted by the Court, a “no win” situation for the child. Although she found it difficult to provide any definite recommendation as to the future parenting arrangements for the child, she did express the opinion that the child “has not been provided with sufficient opportunity to develop a meaningful relationship with his father; one that may sustain a future relocation to Town Y if given ample time now” and she did say that she thought the child’s time with his father could transition to unsupervised time.

12.Thereafter, in February 2011, further orders were made by Barry J in this Court, with the consent of the parties, for the child to spend unsupervised time with the father between 9 am and 2 pm each Saturday with transitions of care to take place at a contact centre. That took place up until the trial on 1 and 2 September, 2011, without too much complaint by either parent against the other. I expect it has continued to take place since the trial. 

13.The demands of hearing cases and delivering judgments in this busy Court have prevented me from delivering my judgment in this matter before now. To the extent that has caused anguish and inconvenience to either parent beyond any they already experience through their parental conflict, I express my regret. It is hoped that the parenting orders the Court now makes will provide a foundation for a co-operative, child-focused relationship between the parents of this little boy in the future.

PRINCIPLES TO BE APPLIED

14.The Court is being asked to determine, principally, the amount of time that the child gets to spend in his father’s care. In addition to that, the Court is being asked by the mother, in circumstances where the father does not seek to take over the principal parenting role, to permit her to move the child from south-east Queensland to mid-west New South Wales.

15.It is now abundantly clear that such cases where one parent wants to move a child some distance away from the other parent, commonly referred to as “relocation” cases, must still be determined by way of the specific statutory framework of Part VII of the Family Law Act (“the Act”), in the same way as any parenting orders case is determined.[1]

[1]See the discussion by Murphy J in Cowley & Mendoza [2010] FamCA 597, the discussion by Kent J in Heath v Hemming [2011] FamCA 749 and the discussion by me in Preston v Preston [2011] FamCA 618 and all the authorities referred to in those decisions

16.Parenting orders that the Court makes in respect of this little boy must be made with regard to the child’s best interests being the paramount consideration (s 60CA and s 65AA). The Act expressly sets out how to determine what is in the best interests of children who are the subject of proceedings. In determining what is in the best interests of the child, consideration must be given to the expressly stated “primary” and “additional” considerations (see s 60CC(1), (2) and (3)). The process of determining how the child’s best interests are served by particular parenting orders is indeed a broad one, as one of those “additional” considerations, namely s 60CC(3)(m), provides for “any other fact or circumstance that the Court thinks is relevant”, to be considered.

17.The determination of parenting orders that are in the best interests of children must also be performed against the expressly stated Objects of Part VII of the Act and the Principles underlying them. These Objects and Principles are set out in s 60B. It is, in my view, important for the Court to remind itself of these in a case where one parent is seeking orders permitting her to relocate a child a significant distance away from the other parent.

18.Section 60B provides:

(1)The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)parents should agree about the future parenting of their children; and

(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

19.In Preston & Preston [2011] FamCA 618, at paragraphs [37] – [47], I discussed the application of these Objects and Principles in parenting orders cases and the relationship between them and the matters required by s60CC to be considered when determining the best interests of the child or children in question. I referred to the Full Court’s decision in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 and to the principles set out therein.

20.As Nicholson CJ, Fogarty and Lindenmayer JJ, in a joint judgment, said in that case, the ultimate obligation of the Court is to apply in a commonsense way the individual sections of the Act so as to achieve the best interests of the children in the particular case, with the weight to be attached to the individual components of the statutory provisions varying, sometimes significantly, from case to case.

21.Relevantly, I consider, their Honours also pointed out in that case that it is well accepted that in most cases meaningful contact by children with both of their parents is important to their welfare in the short and long-term whilst acknowledging that there may be cases where the best interests of the children will require contact with a parent, or even both parents, to be curtailed or even terminated.

22.That said, having regard to the provisions of Part VII of the Family Law Act and the discussion of them in the relevant authoritative decisions, the Court is now required, in my view, to take the steps set out as follows:

·apply the presumption of equal shared parental responsibility (s 61DA (1))

·determine whether there is abuse of a child or family violence, which means that the presumption does not apply( s 61DA(2))

·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility (s 61DA(4))

·if the presumption applies:

·determine whether it is in the child’s best interests for there to be an order for equal time with each parent (s 65DAA(1)(a))

·make findings as to the matters set out in section 65DAA(5) which are as follows:

Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

·as a result of this enquiry, make findings as to whether an “equal time” order is reasonably practicable(s 65 DAA (1)(b))

·if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order (s 65DAA(3))

·if neither an equal time order, nor a substantial and significant time order, is to be made, proceed to determine what orders are in a child’s best interests.

23.At various stages along the pathway just set out the best interests of the subject child have to be determined. This is done by giving weight, in appropriate amounts, to the “primary” and “additional” considerations as set out in s 60CC that are relevant to the particular child in all of the factual circumstances of the case, considered against, and informed by, the Objects and underlying Principles stated in the Act. I respectfully accept, as observed by Kent J in Heath & Hemming [2011] FamCA 749 at [87], that it is appropriate to undertake consideration of, and make findings about, each of the s 60CC “best interests” considerations having regard to the respective proposals of each of the parties before commencing down the pathway just set out. After considering, weighing and assessing the evidence adduced in the proceedings, it is appropriate for the Court to indicate to which of the matters greater significance is attached and how all of the matters balance out.

24.As Kent J went on to observe in Heath v Hemming at [101], parenting cases in which a parent proposes a relocation

bring into sharp focus the central issue of balancing statutory imperatives concerning children’s best interests in the context of the legitimate and competing interests of parents. The task is to achieve, by the application of the law, Orders which are legitimate by reference to both “best interests” considerations and the rights of parents, including a right to choose where the parent lives. In some cases, the determination of “best interests” may well mean that one party’s choice is effectively outweighed in the balance. Alternatively, proper balancing may result in the child’s “best interests” being served by Orders which do not give one parent “optimal” arrangements or outcomes.

25.      I respectfully agree with his Honour’s observations.

SECTION 60 CC CONSIDERATIONS

26.This little boy was only two months old when his parents separated on a final basis. He was nearly five months old before he started spending any time with his father after that separation and only two years and ten months of age at the time of the trial. From the time that he started seeing his father after separation, the time that he spent with his father was limited in duration and supervised, either by the child’s mother, the paternal grandparents or professionals at a children’s contact centre. It was only in February 2011, after a consistent history of supervised visits and after reports were prepared by psychiatrist, Professor V, and the Family Consultant, Ms D, that the child started spending time with his father for five hours each Saturday on an unsupervised basis, pursuant to orders made with the consent of the parties. That is what was happening at the time of trial and I presume has been happening ever since.

25.It could hardly be surprising, against this factual history, that the child is primarily attached to his mother. Indeed, as Ms D acknowledged in her report, there was no dispute between the parties about this fact. Additionally, Ms D noted that, at least when she saw them on 19 January 2011, the child did not have a meaningful attachment with his father. Ms D went on, critically in my view, to express the opinion that in order to sustain the primary attachment to his mother and to develop and maintain an attachment with his father, parenting arrangements would be required that do not prohibit his time with each parent for long periods of time.

26.Ms D quickly went on to give some idea as to what she meant by that. She opined that at his age, the child could, as a statement of general proposition, not be separated from either of his parents for more than three to four days without it having some affect upon his attachment to them. It is frequent time with a parent that is required, she opined, to build a healthy attachment and a meaningful relationship. Her evidence was that if the child experiences, at this young age, both of his parents being nurturing and addressing his basic care needs on a frequent basis, he will internalise that his parents are reliable, safe and secure providers which sets up the basis on which he builds in order to develop into a well adjusted, emotionally healthy, independent, productive adult. As the child grows, the positive memories that he develops of his parents providing nurturing care for him would afford the child the capacity to sustain longer periods of time away from one or both of his parents with minimal to no impact upon his attachment to them.

27.I find no reason not to accept any of that assessment. It is, in my view, in the overall determination of this case, very significant evidence. It resonates with the oral evidence I heard at trial that the child was very much enjoying the periods of longer, unsupervised time that he was spending with his father at his father’s home each Saturday, joined by his paternal grandparents each other Saturday. The mother said in cross-examination that she believed that the father and the child enjoy their time together and that the child had even begun to verbalise his understanding and expectation of going to “daddy’s house”.

28.Clearly, the child, as he was growing and experiencing more of his father’s  nurture and care, was beginning to develop the relationship with his father that Ms D was speaking of, the benefit to him of which the Court must have consideration to. I cannot find, though, that the nature of the relationship had reached a point at which it could yet sustain long periods of separation.

29.Much of the parents’ respective cases against each other were devoted to raising the issues of domestic violence perpetrated by each against the other, the emotional vulnerabilities of the other and the history of each parent’s abuse of alcohol.

30.As Professor V identified in his report, alcohol abuse clearly was a significant issue in respect of both of the parents. It led, as it so often does, to much of the turmoil in their relationship and fuelled episodes of violence between them. The Professor observed, on the accounts of each of the parents, that any alcohol abuse related issues were in remission or significantly moderated and, if this was accepted, then the issue of previous alcohol abuse ought not to affect the determination of this case save for restraint by the parents in respect of drinking while caring for the child.

31.The father’s evidence was that he had greatly reduced his alcohol intake from around June 2009. It was clear that the mother did not trust the father in respect of his assertions of moderate and controlled drinking. However, apart from some limited support for that view that she obtained from a Queensland Police Service document produced under subpoena, she had no other evidence supporting her position. I must say that I formed the impression that the father was to a degree deliberately understating his current alcohol intake, but I did also get a sense that his assertions that he had actually moderated his intake were honest and that he was also acutely conscious of the need to responsibly exercise restraint in alcohol consumption around the child.

32.In the same respect, I accept from the evidence, particularly the report of Professor V and the QPS and Queensland Health records that form part of exhibit 3, that the mother was also understating and minimising her own vulnerabilities and past behaviour with respect to alcohol abuse, her role in the domestic violence and her mental health history.

33.Having considered all of the evidence, I accept the opinion of Professor V that the personality vulnerabilities of these two parents do not render either of them incapable of being effective parents. With suitable restraint in respect of the consumption of alcohol when the child is in their care, I am quite satisfied that each of them will provide their child with appropriate parenting and will protect him from, and not expose him to, abuse, neglect or family violence. Notwithstanding the evidence the mother adduced about the father in respect of alcohol abuse and domestic violence, one of the first pieces of oral evidence the mother gave during the trial was the expression of her belief that the father would be protective of their child.

34.What did still appear as an issue between the parents, was their respective capacities to trust and amicably communicate with the other. Not surprisingly given their tumultuous short relationship, they had not demonstrated such capacities in a convincing manner to the time of trial. The child’s transition between them was still being effected at a children’s contact centre. A communication book was being used to transfer information between them and the mother doubted their capacity to verbally communicate in a child focused way, although the father was a little more optimistic.

35.I expect, however, that this should gradually improve as the mother experiences the child being cared for on a regular, unsupervised basis by the father in a way that allows her to grow more trusting of him. I do not accept that the existing levels of distrust will continue unabated.

36.As well as the child having the important relationships with each of his parents, he has relationships of importance with his maternal grandmother and his paternal grandparents. His maternal grandmother is quite significant in his life as she has been living with the mother and the child in the same home since the child was born. The father and the paternal grandparents have close relationships and spend a lot of time with each other. The paternal grandparents have been closely involved when the father has been spending time with the child since he commenced these proceedings and have been enjoying the regular time that they have been spending with the child, particularly since the father’s time has no longer been supervised since early in 2011. The interest, the presence and the emotional and practical support offered by the child’s grandparents on both sides of his family has been, and, I am satisfied, will continue to be, a beneficial factor in this little boy’s life. I am satisfied that the child’s relationships with those grandparents should continue to be nurtured.

37.The mother’s proposal to move to Town Y in New South Wales would, I find, effect significant change in the child’s life. She proposes moving down there as it is her town of origin and she has numerous other members of her extended family living there. Her elderly maternal grandmother lives there and her mother is reasonably keen to move back down there to be near her own elderly mother. There is a residential property that the maternal grandmother is the registered owner of that the mother would be able to live in with the child. The mother asserts she would have the benefit of the additional support of family and the potential to obtain some employment, expressing some interest in being a teachers’ aid. She asserts that she would have a home to live in down in that town with security of tenure, that she simply could not afford to obtain here in Brisbane, at least in an area that is desirable to her. The mother asserts she would be happier there and more likely to be able to make a better life for herself and the child. She asserts that the child has cousins who are children also living in and around that town.

38.In the context of her proposal, the mother says the child can maintain his relationship with his father by travelling to Brisbane on four occasions per year to spend a few hours on each such occasion with him. She also proposes the child spend a few hours with his father each month if the father can travel down to her town, and that the father and child can otherwise communicate through the usual forms of electronic communications technology on a regular basis. I observe at this point that Ms. D gave evidence that a minimum of fortnightly contact between the father and child would be required so as to maintain a meaningful relationship between them at this stage of the child’s life.

39.Of course, it is not unreasonable for the mother to want to move back to that town and to make her home there. Freedom of movement within this country is a fundamental right that is, in my view at least, probably taken for granted, if not undervalued, by many Australians. Whilst this Court’s jurisdiction extends to preventing the mother from taking the child to live with her if determined not to be in his best interests, it certainly does not extend to preventing the mother from going if that is what she intends to do. However, as is common and generally unsurprising in parenting cases where such a proposal is being considered, the mother made it clear that she would not herself still move to New South Wales if the Court did not make orders permitting her to take the parties’ young child with her. This is where there is a neat intersection between consideration of what is in the best interests of the child and consideration of the legitimate, competing rights of the adults involved. Whilst all the time acknowledging, respecting and considering legitimate, competing adult rights, it is to remembered that it is the paramountcy of the best interests of the subject child, as mandated by the Act, that is ultimately determinative of the outcome.

40.I am satisfied that the father would not move to New South Wales to live in that relatively small country town if I permit the mother to take the child down there to live with her. Certainly, he had not re-partnered at the time of trial. He is now 36 years of age and has no other children. He has worked the majority of his adult life as a tradesman, in the building industry, and at time of trial, he said he had not really worked for some eighteen months due to the stress of the parenting dispute and the pending litigation. He gave evidence that he had made some inquiries, which I considered cursory at best, about employment and accommodation in the NSW country town and it did not look promising or very attractive to him. The father made it clear that he did not want to move down there. He has lived in the Brisbane area all of his life. His parents live here and he is close to them. All of his building industry contacts are here and he hoped to be able to get his business going again once the stress of the proceedings was behind him. I got no real sense that the father was flexible or adventurous enough to leave all he knows behind and to move to and commence life in a small town in another State with no employment or family support of his own in that town. On all of the evidence before me in this case, I do not consider my finding that the father would not move to that town to reflect any unreasonableness on his part. In isolation, each parent’s desire to live where he or she wants to live is legitimate and reasonable.

41.What is clear to me is that if the mother is permitted to take the child with her and move to New South Wales as she proposes, the child will have very limited opportunity to continue to develop his attachment to his father and his relationship with him. Similarly, the opportunity for him to develop his relationships with his paternal grandparents will also be curtailed.

42.Whilst the father gave oral evidence that he hoped to get back into work soon after the trial, such that he could earn an income that would facilitate regular (weekly the father said) travel to that NSW country town to spend time with his child if the child is living down there, I did not consider his expressed hope, or intention (if it could be described as that), to be realistic. Frequent travel by road would be impracticable having regard to distance and time required. Commercial air travel would require flights into and out of Canberra as well as road travel for another two hours each way at least. That would necessitate vehicle hire. Additionally, the father would have to pay for short term accommodation in order to spend any significant time with the child. The cost of all that is, realistically, completely prohibitive to frequent, regular travel by the father. At best, I am satisfied that he might be able to do that a couple of times per year if the child lives down there.

43.The mother proposes sending the child up here to Queensland four times per year. The mother currently has fairly limited financial resources and income. Even with employment in NSW, I would not expect her financial position to be significantly better than it is now or could be if she obtained employment here in Brisbane.  The cost of such travel to Queensland, by air or land, accompanied as the child would have to be, is, in my view, also substantially prohibitive of such proposed arrangements being realistic at the present time in the child’s life.

44.Coupled with the practical and financial constraints on the child spending frequent, regular time with his father if he is moved to NSW, is another issue. As already noted, the mother is currently distrustful of the father. I am satisfied that she is also very protective of the child and has been rather unwilling to consider and permit, of her own volition, extending the periods of time that the child spends with the father. Indeed, she said in oral evidence during the trial, that she did not consider the child would be ready to have “sleep overs” with the father until he was at least four or five years old. The orders she seeks from the Court do not provide for that until the child turns five. I am far from convinced that the mother is yet emotionally ready to facilitate and promote a close and continuing relationship between father and child. I consider that her expressions of willingness and capacity to do so between that NSW country town and south-east Queensland are not realistic, even if honestly expressed.

45.Accordingly, I am satisfied that the change in the child’s circumstances that would be wrought by orders permitting him to be taken to live in NSW at this stage of his development will have the effect of making it very unlikely, if not virtually impossible, for a meaningful relationship to develop between him and his father. Similarly, although less importantly in respect of its consequences for his sound development, I am satisfied that the same can be said of meaningful relationships with his paternal grandparents.

46.It is necessary, of course, having regard to the mother’s position that she will not move to NSW if not permitted to move the child with her as well as the fact that her principal care of the child is unchallenged, to consider the circumstances that would leave the mother in.

47.The mother is now forty three years of age. She has lived most of her adult life here in Queensland although born in NSW and having spent a lot of her childhood in that NSW town. She was, before the birth of the parties’ child generally employed in secretarial/administrative positions. She has not worked since the birth of the child and had received income support from the Commonwealth as well. She has not received a great deal of child support from the father due to his not working for the long period leading up to the trial in this matter. She and her mother and the child have been living on the southern outskirts of Brisbane, essentially in a caretaker role on a semi-rural block whilst the owners were travelling. The mother and her mother received a reduction in the rent they paid in return. This has made life a little easier for them. That arrangement was expected to end around Christmas 2011.

48.The mother and her mother are, clearly, extremely close. The maternal grandparents moved to Brisbane, presumably to be nearer their daughter, in 1999. In 2003, the maternal grandfather passed away and thereafter the mother and maternal grandmother built a home together at R. The precise financial dealings between them in respect of this were not clear to me. I was a little troubled by the evidence that I heard about this and the way it was given. I was left with the impression that the mother was not being entirely frank about the matter, such that I could not be sure that the mother does not in fact currently have a beneficial interest in property in NSW registered in her mother’s name.

49.Money was said to have been advanced to the mother by the maternal grandmother from the sale proceeds of the R property that was said to have been built by both the mother and her mother. The money said to have been advanced was said to have been used to buy the P home that the father and mother bought and lived in during their relationship and then quickly sold when it ended. When it was sold, a lot of money was said to have been repaid by the mother to the maternal grandmother and that money has been used, amongst other things to buy the house in NSW that the mother said she was going to be able to move into. By the time of trial, the evidence was that this property in NSW was in fact on the market in any event. I was not convinced that the mother was not the beneficial owner of that property. If she was, she would therefore be entitled to the proceeds of that property’s sale and has more resources than she gave evidence of.

50.The maternal grandmother moved back to the NSW country town in 2007, the same year the mother and father started to live together. As already noted, she returned to live with the mother and the father in their P property in early 2008, before the child was born. She has lived here in Queensland with the mother and the child since then. Whilst she made it clear that she, too, would like to move back to NSW, she left me in no doubt that if the mother and the child do not move back to NSW then she will not either. In fact, the grandmother, who impressed me as a caring and considerate woman, left me with every impression that whilst she and her daughter would be disappointed if they were not able to move to NSW, they would “cope” with that situation and look to purchase a suitable property somewhere, probably on the south side of Brisbane, for the three generations to live in. I was left with no doubt that the maternal grandmother, who is retired and in apparently good health, would be staying with her daughter and presenting as available to assist the mother in caring for the child whenever that might be necessary.

51.That assistance would probably be needed by the mother. The mother said, and I accept, that she would have to try to find work in Brisbane if she was staying here. She asserted that this would be a financial imperative, particularly once they had to move out of the property they were living in with reduced rent. I expect the mother would find suitable work and would continue to have the assistance of her mother. I consider that between them they would be able to locate suitable accommodation, either to purchase or to rent. I am satisfied the father will start working again, generating his own income and that the child support he pays to the mother will begin to increase, providing her with some welcome additional income that would help ease any additional financial impact upon her of remaining in south-east Queensland.

52.With the support of her mother and a wider circle of friends that the mother says she has who live at the Gold Coast, the Sunshine Coast and at Redcliffe, I am satisfied that the mother, though disappointed, would manage without any detrimental impact upon her mental wellbeing. Professor V gave evidence that with support in Queensland, he did not consider that remaining away from NSW would bring on a major depressive episode for the mother and that he considers that the mother has the capacity to hold out in Queensland. The Professor said that her disappointment would not itself bring about any mental illness. Accordingly, I am satisfied that there would be no relevant impairment of her emotional capacity to parent the child if she remains in Queensland because of not being permitted to take the child to live in NSW. 

53.I did not get the impression that the father was in some way trying to intimidate or control the mother by not agreeing to her taking the child to NSW as opposed to being motivated by a genuine desire to play an important role in the child’s life. I am satisfied that he loves his son deeply and wants to parent him meaningfully. I am satisfied that he will continue to responsibly meet the obligations and duties of parenthood if he is able to and that such capacity would be severely diminished if the child lives in NSW. I consider the evidence that was adduced by the mother of the conversation between the mother and the father where the proposed move was being discussed and the father apparently sought to link possible consent to the proposed move with a property division that was satisfactory to him as properly explained by the father when he said he was considering that in the context of being able to afford frequent, regular time with the child. I do not consider it evidences bad faith on his part that militates against his position when balancing ‘best interests’ considerations.

54.Further, I do not accept the submission of counsel for the mother that I would find the father has deliberately not worked so as to reduce his child support obligations. I am confident the father’s work situation will improve and that he will begin contributing more equitably to the financial support of the parties’ child.

55.Ultimately, I conclude, after balancing all of these competing considerations, that it is in the subject child’s best interests to have the continued opportunity to develop an attachment to his father and, therewith, a  meaningful relationship with him. As I see it, that is only probable if he remains living in the Brisbane area at this time of his life. Continuing to live in the Brisbane area has the added benefit for the child of facilitating the development of better relationships with his paternal grandparents as well as being able to maintain his current relationship with his maternal grandmother. Although this outcome cuts across the mother’s right to choose where she lives, I conclude that the mother’s capacity to provide for the physical, emotional and intellectual needs of the child will not be impeded by her inability to move with the child to NSW in such a way that, notwithstanding all other considerations, the child’s best interests demand that such a move be permitted.

56.Further, I am not persuaded that the appropriate outcome is to let the mother move the child to NSW after a certain period of time, such as six months, as submitted by counsel for the mother. Whether that is considered to be in the child’s best interests in the longer term, is a matter that will very much depend on assessment of facts that are likely to be quite different from those that exist now or can be reasonably foreseen at this point in time, including an assessment of whether or not the child’s relationship with each parent could sustain long periods away from them.

PARENTAL RESPONSIBILITY

57.When considering the parenting orders to be made in this case, the s61DA statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence. Although there is dispute between the parties as to the exact nature of the actual family violence that occurred between them, there is no dispute that family violence occurred. I have not, particularly in the light of the evidence of Professor V that I have referred to, considered it necessary to set out the competing allegations and make specific findings about them. I will not do that.

58.Although the presumption does not mandatorily apply, I am satisfied in this case  that making an order that the parents share equally parental responsibility for the child is nevertheless in the best interests of their child. The father seeks such an order. The mother opposes it, citing the father’s angry, confrontational behaviour as the principal reason why she should have sole parental responsibility. The Independent Children’s Lawyer contends that sharing it equally will be in the child’s best interests.

59.An equal shared parental responsibility order mandates consultation of the other parent in relation to any decision to be made about major long-term issues in relation to the child. It also mandates genuine effort to come to a joint decision about that issue. (s 65DAC). Major long-term issues, in relation to the child, are issues about the care, welfare and development of a long-term nature and include (but are not limited to) issues of that nature about the child’s education (current and future), religious and cultural upbringing, health, name and changes to his living arrangements that would make it significantly more difficult to spend time with a parent. (s 4(1)).

60.Whilst such mandatory consultation, along with genuine effort to come to a joint decision about a major long-term issue in relation to a child, might not be in a child’s best interests in circumstances of chronic high conflict between parents, I am not satisfied that the facts in this case support such a finding in respect of this little boy. I have found that the mother has not yet fully demonstrated a ready capacity to facilitate and encourage a close and continuing relationship between the child and the father. Conferring sole parental responsibility upon her would, in my view, only detract further from the development of such a capacity. Additionally, I am confident that the mother’s distrust of the father’s parenting capacities will reduce and her confidence and trust will grow as he proves himself capable as a father over time, as I am satisfied he will. I am satisfied that their communication in respect of the child will improve and that they will be able to consult and, with genuine effort, be able to reach joint decisions in respect of major long-term issues in respect of this child. Making an order that requires them to try is, in my view, at this stage of this little boy’s life and development, in his best interests.

CONSIDERATION OF CHILD SPENDING EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH PARENT

61.The father does not, in these proceedings, contend that the child spending equal time with him is in the child’s best interests. That is a sensible position to adopt. The history of the matter and the evidence that I have read and heard satisfies me that an equal time care arrangement is not in the child’s best interests and such will not be ordered.

62.The child has now been spending unsupervised time with his father each Saturday from 9.00 am until 2.00 pm, transitioning between the parents at a children’s contact centre, since February last year. Both the father and the Independent Children’s Lawyer submit that a gradual increase in the time that the child spends with his father is in the child’s best interests. The mother proposes that if she is not permitted to relocate the child to NSW that he spend time with the father each alternate weekend between 9.00 am and 3.00 pm on Saturdays and between 10.00 am and 2.00 pm on Sundays. She proposes no gradual increase, although, as I have noted, she was prepared to concede in oral evidence that overnight time or “sleep overs” could commence when the child is four or five. That would be later this year or sometime next year.

63.The graduation of the time the child spends with the father proposed by both the father and the Independent Children’s Lawyer was not too dissimilar. Either way it would culminate in the child spending time with the father on either two consecutive weekends out of every three weekends or each second weekend during school term after he has commenced preparatory schooling as well as time during gazetted school holiday periods. In the meantime though, although there were further differences in the two proposals, neither the father nor the Independent Children’s Lawyer submitted that the child should start spending time with the father on days that fall on weekends and holidays as well as days that fall during the week, save for in respect of any ‘special occasion’ days that may fall coincidentally on week days.

64.Accordingly, no party is submitting that the child’s best interests are served by putting in place orders that provide for the child to immediately start spending “substantial and significant” time (as that term is defined in s65DAA(3)) with the father. However, the two proposals do include provision for time to be spent with the father by the time the child starts his preparatory school year, which will be in 2014, which would meet the definition of “substantial and significant”. 

65.I accept such a gradual increase in the time the child spends with his father up to the point where he ultimately is spending “substantial and significant” time with him is in the child’s best interests. I am satisfied that by the time such time that the child does spend with his father meets the statutory definition of “substantial and significant” that it will be reasonably practicable for him to spend that time with him having regard to all of the matters set out in 65DAA(5). I will be making an order restraining the mother from relocating the child’s residence outside an area of 50 kilometres from her current residence without the father’s prior written consent, as proposed by the Independent Children’s Lawyer. With such restraint in place, I am satisfied that the parents will be living close enough to each other for the “substantial and significant” time care regimen to be implemented with reasonable practicability. I am also confident that the parents’ capacity to implement such an arrangement by then, and their capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement, will be suitably developed for it to be reasonably practicable. My orders will provide for a gradual increase in the time the child spends with the father, culminating in provision of “substantial and significant” time with him.

66.There are, as I have noted, differences between the regimens of graduated time that the child spends with the father as proposed by the Independent Children’s Lawyer and the father. In the end, I am satisfied that the graduated regimen proposed by the Independent Children’s Lawyer ought to be adopted and put in place as reflecting the Court’s determination as to what is in the best interests of the child. I am so satisfied, not the least because the Independent Children’s Lawyer and counsel representing him, whose duty it is to impartially assess the evidence before making submissions as to what is in the child’s best interests, have put forward the proposal, but also because I consider a slower graduated increase than that proposed by the father to be in the child’s best interests. I am also mindful of the fact that the mother will more readily accept the regimen proposed by the Independent Children’s Lawyer if ordered by the Court than one proposed by the father. Such better acceptance by the mother will give the arrangements, in my view, a greater prospect of being successfully implemented.

67.In respect of the issue of alcohol consumption, I will impose restraint on the mother in the form proposed by the Independent Children’s Lawyer. That obliges her to remain below the blood alcohol level associated with lawfully driving a motor vehicle whenever the child is in her care. I do not consider that too restrictive having regard to the amount of time the child is in her care and the history of her alcohol abuse. However, in respect of the father, I will impose a total prohibition on him consuming or being affected by alcohol at any time the child is in his care. I consider that appropriate having regard to his history, my concerns about the actual level of his reduced consumption, the more limited time the child will be in his care and the mother’s views about the matter. Again, such a prohibition will give the mother greater confidence that the child is being well cared for. I will apply appropriate drafting to take into account the possibility of inadvertent consumption of alcohol contained in food such as desserts.

68.There is another parenting matter that remains in dispute between the parties. The mother applies for an order that she be permitted to change the child’s name by adding her family name after the child’s current family name that is the father’s family name. She gave evidence that she sought this so as to provide a connection for the child with herself through his name, as well as with his father and because she feels it will enable the child to more readily identify with both parents. That was the extent of her evidence about the issue.

69.The father opposed that application. He gave no evidence in affidavit going to the reasons for his opposition. In oral evidence, he said that the mother had chosen to register the child’s name as the father’s name at birth and that there had never been any “suggestion otherwise”.  That was the extent of his evidence about the issue.

70.The Independent Children’s Lawyer did not make a submission about the issue.

71.Such an order can, no doubt, be made by the Court. The Court has been making decisions on this type of application as long as it has existed. Such an order is a parenting order and must be made having regard to the best interests of the child as opposed to parental rights and expectations. Certain principles to be considered and evaluated have emerged from the authorities.[2] The child should not be subjected unnecessarily to any confusion of identity. The short and long term effects of any change of name must be considered. The advantages, both in the short and long term which may accrue to the child if the name remains as it is now, must be considered. The present and ongoing involvement of both parents in the life of the child must be considered. Due consideration must also be given to the fact of the child’s current name registration and any earlier agreement that evidenced. That list is by no means exclusive of any other relevant considerations.

[2]Flanagan v Handcock (2001) FLC 93-074 in which the following cases were reviewed: George and Radford (1976) FLC 90-060; Chapman and Palmer (1978) FLC 90-510; Beach and Stemmler (1979) FLC 90-692; Kelley and Kelley (1981) FLC 91-002; Skrabl and Leach (1989) FLC 92-016 and Mahoney and McKenzie [1993] FamCA 78; (1993) FLC 92-408

72.As I view the very limited evidence given by the parties, it appears clear that the child’s name was chosen and registered by agreement between the parties when he was born and the mother’s current position now reflects a change of preference by her following the breakdown of the parties’ relationship. There is no evidence at all supporting a finding that the child is in any way currently confused about his identity or embarrassed about his name.

73.In fact, I am concerned that adding the mother’s family name to the end of the child’s current name without a hyphen would probably lead to some confusion in the child about his identity as he grows and starts going to school. I consider this likely to occur as I am not satisfied the mother is totally committed to promoting and fostering the relationship between the child and the father just yet and am concerned that she might just start using her family name as the child’s family name, treating his current family name as a middle name that does not get used regularly.  The mother did not apply for the name to be hyphenated and she applies for her family name to come last. Although in oral evidence, when asked by me, she did assert that a hyphenated name would be suitable and that it did not matter in which order the names appeared, the circumstances under which this modified position emerged does not make me confident that the mother is committed to that position being best for the child.

74.The child is too young yet to express, in any meaningful way, a preference about the issue. By my orders, the father will have on ongoing involvement in the child’s life and the child will continue to identify with him and his family. The child is at an age now where he, no doubt, already identifies himself by name and his name is as it was fixed by his parents at birth. I am not satisfied, on the evidence that I have considered, that the child’s best interests require, at this point in his life, for his name to be changed as sought by the mother. I will not so order.

75.I will make other parenting orders on matters about which there was little dispute, generally in accord with the orders proposed by the Independent Children’s Lawyer.

76.I order in accordance with the Orders set out at the commencement of these reasons.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 August 2012.

Associate: 

Date:  1 August 2012