Tremper and Harpon
[2010] FamCA 148
•2 March, 2010
FAMILY COURT OF AUSTRALIA
| TREMPER & HARPON | [2010] FamCA 148 |
| FAMILY LAW - CHILDREN - with whom a child lives - relocation - child with particular vulnerabilities - expert evidence of short and long term detriment if moves - application to relocate child’s residence dismissed. |
| Family Law Act 1975 (Cth), s.60B(1), s.60(CA), s.60CC(1),(3)(e), s.60CC(4) and (4A), s.61DA, s.61DA(2), s.65DAA (1), (2) and (5), s.65DAA(1)(a), (b) and (2)(c), (d) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| Ahcraft & Haber (2010) FamCA 6 Sampson & Hartnett (No. 10) (2007) FLC 93-350 Starr & Duggan [2009] FamCAFC 115 |
| FATHER: | Mr Tremper |
| MOTHER: | Ms Harpon |
| FILE NUMBER: | DGC | 1130 | of | 2009 |
| DATE DELIVERED: | 2 March, 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Brown J |
| HEARING DATE: | 27, 28 and 29 January, and 1 and 5 February, 2010 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Glover |
| SOLICITOR FOR THE FATHER: | Julie Taylor |
| COUNSEL FOR THE MOTHER: | Ms. Smallwood |
| SOLICITOR FOR THE MOTHER: | Susan Ruffin |
Orders
That all previous orders and injunctions which relate to the child … born … March, 2004 be discharged.
That the father and mother have equal shared parental responsibility for the child.
That the child remain enrolled at J Primary School in W until further order, or at such other school on which his parents agree.
That each of the parties be restrained from locating the child’s residence with him or her at a location which would render it not reasonably practicable for the child to attend J Primary School in W or such other school as is agreed between them, save with the written consent of the other.
That the child live with the father :
(a)during school terms in 2010, from the conclusion of school on Friday until the commencement of school on Monday in each alternate weekend, commencing :
(i)on 5 March, 2010; and
(ii)recommencing on the first weekend of each school term;
(b)commencing in the first school term in 2011, from the conclusion of school on Friday until the commencement of school on Tuesday in each weekend commencing on the first weekend of each school term;
(c) during school terms, from the conclusion of school on Monday until the commencement of school on Tuesday, in each alternate week, commencing :
(i)on 15 March, 2010; and
(ii)recommencing on the third Monday in each school term if the school term commences on a Monday and otherwise on the second Monday in each school term;
(d)for one week in each school term holiday as agreed between the parties and, failing agreement :
(i)the first week in 2010 and each alternate year thereafter, commencing at the conclusion of the last school day of the term and concluding at 5:00 pm. on the seventh day thereafter (with the result that the child spends seven nights with the father); and
(ii)the second half in 2011 and each alternate year thereafter, commencing at 5:00 pm. on the second Saturday of the holiday and concluding at 5:00 pm. on the last Saturday of the holiday;
(e)during the school summer holiday in 2010/2011 for two periods of eight days which shall be, unless the parties agree otherwise, at least eight days apart, at times to be agreed and, failing agreement :
(i)from 12:00 noon on 31 December, 2010 until 12:00 noon on 8 January, 2011; and
(ii)from 12:00 noon on 16 January, 2011 until 12:00 noon on 24 January, 2011;
(f)commencing in the school summer holiday in 2011/2012, for one half of the summer period at times to be agreed and, failing agreement, and subject to sub-paragraphs (g) and (h) hereof :
(i)the first half in 2011/2012 and each alternate year thereafter; and
(ii)the second half in 2012/2013 and each alternate year thereafter;
(g)from 3:00 pm. on Christmas Day until 5:00 pm. on Boxing Day in 2011 and each alternate year thereafter;
(h)from 5:00 pm. on Christmas Eve until 3:00 pm. on Christmas Day in 2010 and each alternate year thereafter.
(i)in the event the child would not otherwise live with the father for any part of his birthday, then on the child’s birthday at times to be agreed and, failing agreement :
(i)if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and
(ii)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;
(j)in the event the child would not otherwise live with the father on Fathers’ Day, from 9:00 am. on Fathers’ Day until the commencement of school on the following Monday;
(k)at such other times as are agreed between the parties.
That in the event the child would not otherwise live with the mother for any part of his birthday, then the child live with the mother on his birthday at times to be agreed and, failing agreement :
(a)if the birthday falls on a school day, from the conclusion of school until 6:30 pm.; and
(b)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;
That in the event the child would not otherwise live with the mother on Mothers’ Day, and notwithstanding paragraph (5)(a) and (b) hereof, from 9:00 am. on Mothers’ Day until the commencement of school on the following Monday.
That the child live with the mother at all times other than those specified in paragraph (5) hereof.
That each party have liberal telephone communication with the child when he is not in his or her respective care.
That changeovers which occur other than at the commencement or conclusion of a school day take place at a location agreed by the parties and, failing agreement, outside J Primary School in W, or such other school as the child attends, and each of the parties be at liberty to arrange for another adult to attend such changeovers, either with the party or in lieu of the party.
That each of the parties be at liberty to attend events, activities, and functions at the child’s school which are routinely attended by parents.
That each of the parties be at liberty to arrange with the principal of the child’s school to obtain, at his or her expense (if any), copies of :
(a)all school reports for the child and reports of any medical practitioner, psychologist, counsellor or like professional to whom the child is referred by the school;
(b)application forms for school photos of the child; and
(c)newsletters and other publications routinely provided to parents.
That each of the parties keep the other advised of any significant illness or accident experienced by the child when in his or care and provide details of each treating medical practitioner or like professional involved with the child and authorise the medical practitioner or like professional to speak with the other party about the child’s symptoms, prognosis and treatment.
That each party keep the other informed of any appointments for the child with, and reports of, specialist medical practitioners, psychologists, speech or other therapists, or like professionals and that both parties be at liberty to attend such appointments, subject always to the consent of the treating professional.
That as soon as practicable both parties complete a Post Separation Parenting course.
That each of the parties keep the other advised of the residential address at which the child lives with him or her and of a telephone number at which he or she can be contacted and advise of any change within 24 hours of such change.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym TREMPER & HARPON is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 1130 of 2009
| Mr Tremper |
Father
And
| Ms Harpon |
Mother
REASONS FOR JUDGMENT
The child, R, was born in the South Gippsland town of W in March, 2004. His parents had lived together in that town since the preceding year. His father, Mr Tremper, was born in W; it was common ground that his family is well known and respected in the area. The child’s mother, Ms Harpon, was born in Newcastle in New South Wales and lived there until moving to W to pursue her relationship with the father in June 2003; her mother and best friends remain in the Newcastle area.
In late 2008 the father became suspicious that the mother was having an affair. In the face of her denials, he taped her phone calls and obtained proof. Presented with the tape, the mother admitted to a brief sexual liaison with a co-worker. Despite some mutual attempts at saving the relationship, the mother announced it was over on 9 February, 2009 and she and the child left the matrimonial home on 21 April, 2009. Litigation commenced when the father filed an application in the Federal Magistrates’ Court on 16 April, 2009 in which, amongst other orders, he sought to restrain the mother from moving the child’s residence outside a 20 km. radius of the W Post Office. In a response filed on 12 May, 2009 the wife sought to relocate the child’s residence to Newcastle.
The mother alleges that the father, his family and friends have closed ranks against her and that she became the subject of gossip, a poison pen letter and attacks which damaged her car tyres and cut off her electricity. A few friends have stood by her but she felt, and continues to feel, isolated and very distressed; she finds life in W untenable. She wants to take the child to live with her in Newcastle. She believes that in Newcastle, with the loving support of family and friends, she will be the secure, confident and happy person she once was and provide optimal mothering for the child. If the child is not permitted to move the mother will not leave him; she will live somewhere in the environs of South Gippsland and endeavour to cope with the hand dealt to her.
The father wants the child to remain living in close proximity to W and move between his parents’ homes, spending significant periods of time with his father, but not half the time. From his perspective the mother overstates the problems facing her in W and, more importantly, understates the problems facing the child were he to move away from his father and the community in which he lives in W. It is his submission that the child’s best interests demand that he be able to maintain the close, loving and productive relationship he now enjoys with his father, extended paternal family and friends in W. Were the court to find that the child’s best interests would be served by moving to live with the mother in Newcastle, the father will not move to Newcastle but will endeavour to maintain a relationship with his son from a distance.
The case commenced in the Federal Magistrates’ Court. On 12 May, 2009 it was adjourned for a trial before Federal Magistrate Riley on 14 October, 2009 at the Dandenong registry. A family report was prepared and trial material filed, as ordered. On 14 October, 2009 the parties and at least some of their witnesses attended the Dandenong registry in anticipation of the trial, the parties travelling from W and one of the mother’s witnesses from Newcastle. The trial did not commence. Instead, Federal Magistrate Riley ordered that the case be transferred to this court “to be listed on a date to be advised with a request that the matter be heard urgently”. The Federal Magistrate’s order of 14 October, 2009 contained four notations, as follows :
A.The father’s counsel estimates that the matter will take up to 5 days to hear and the mother’s counsel estimates 2-3 days. There are 10 witnesses who are all required for cross-examination.
B.The mother wishes to relocate with [the child] to Newcastle before he begins school next year and says she will relocate without him if needs be.
C. Dr. [N], family consultant, has noted that [the child] has special vulnerabilities and recommended that the mother remain with [the child] in the [W] area.
D.Pursuant to ss.62B and 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
As no parenting orders were made, the last notation was otiose.
The mother maintained her stance that she would move to Newcastle, with or without the child, until the afternoon of the third day of the trial. It is probable it was only then that she understood that the court could accede to the father’s application and that the child might stay in W. The reality of the situation hit her with sudden and dreadful clarity; she realised she could not live away from her child.
The court can infer that the father’s apprehension of the potential for an order allowing the child to relocate led to no equivalent realisation. Asked whether he would contemplate a move to Newcastle if the child lived there, he said he would not “at this stage, at this point in time”, that he had not “even thought about really leaving [W]” and that he would probably stay in W. He had looked “generally” for jobs in New South Wales a number of months ago but could not say if work would be available to him in Newcastle.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(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).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
The objects point the way to an optimum outcome. As noted, the first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
Neither counsel cited any authority in their final submissions, save for a reference to a recent decision of Young J. in Ahcraft & Haber (2010) FamCA 6 in which his Honour made a passing reference to MRR & GR [2009] HCATrans 316. On 3 December, 2009 the High Court (French CJ., Gummow, Hayne, Keifel and Bell JJ.) heard argument in an appeal in that case by a mother against an order which compelled the parties’ child to live in Mount Isa rather than Sydney, as the mother sought. Prior to setting aside the orders of the Full Court of this court (which had upheld the Federal Magistrate who made the original order; see Rosa & Rosa [2009] FamCACF 81) and remitting the matter to the Federal Magistrates’ Court for a rehearing de novo, French CJ. expressed the court’s opinion in these terms :
The Court is of the opinion that the Full Court of the Family Court of Australia should have held that (a) it was not open to the federal magistrate to find that it was reasonably practicable within the meaning of section 65DAA(1)(b) of the Family law Act 1975 for the child, MJR, to spend equal time or substantial and significant time with each of the child’s parents; and that (b), accordingly it was not open to the federal magistrate to consider making an order as described in section 65DAA(1)(c).
[orders pronounced]
The Court will state its reasons for making these orders more fully at a later date. What interim arrangements should be made pending the rehearing of this matter in the Federal Magistrates Court is a matter for agreement between the parties or, if needs be, the subject of some fresh application to the Federal Magistrates Court for interim orders.
The court provided the transcript of the High Court hearing to counsel in this case. Neither made any submission referrable to it. Neither submitted that this court should await the High Court’s more detailed reasons for its decision, which have not yet been delivered.
The Full Court of this court has considered issues referrable to relocation cases in a number of recent decisions, including Taylor & Barker (2007) FLC 93-345, Sampson & Hartnett (No.10) (2007) FLC 93-350, Starr & Duggan [2009] FamCAFC 115 and McCall & Clark (2009) FLC 93-405, as well as Rosa & Rosa.
In Starr & Duggan the Full Court (Boland, Thackray and Watts JJ.) noted at [37] that appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate. The Full Court went on to identify what it referred to as “a logical approach” to the decision making process in a relocation case, as follows :
38. However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to :
·first make findings concerning the relevant s 60CC factors;
·then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
39. Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
In Fitzroy & Fitzroy and Ors. [2009] FamCA 954 Murphy J considered the principles which have emerged from recent decisions of the High Court and Full Court applicable to determination of relocation cases, together with the relevant statutory provisions, at [16] to [18], as follows :
16.Specifically, as I said there, [a reference to an earlier decision of his Honour, in Pitkin & Hendry [2008] FamCA 186] the principles emerging from the Act and the decisions which bind me are, in my view, as follows:
·A “relocation case” is not a specific sub-category of parenting case and no principles specific to such cases apply. Such cases are simply cases in which parenting orders are sought in particular factual circumstances.
·A relocation case falls to be determined like any other parenting case: the fact-finding (or value-finding) exercise required by s 60CC is directed toward ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
·Relocation cases, like all parenting cases, involve a determination of best interests as the measure by which legitimate rights and freedoms of the parties must give way to the rights and interests of the children.
·In that way, best interests is the paramount, but not the sole, consideration whatever be the nature of the order informed by findings as to best interests. That includes orders relating to parental responsibility and the rebuttal of the presumption in favour of equal shared parental responsibility in particular;
·All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their children’s best interests. “Relocation cases” are no different.
·The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
·The court is not bound by the parties’ proposals. Where the evidence points to an alternative being in the best interests of the children, orders should be crafted by the court accordingly.
·Findings in respect of the relevant s 60CC considerations, and an ultimate analysis and balancing of those findings should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s 65DAA mandates it or because either is a proposal of the parties or looms as a potential order.
·Findings relevant to s 65DAA, if applicable, can, and often more appropriately should, be made as part of the s 60CC exercise, because, although requiring a specific process, any s 65DAA considerations are founded ultimately in findings as to best interests.
·Findings necessary to underpin an ultimate finding of “reasonable practicability” (s 65DAA(5)) can be, and often more appropriately are, conducted as part of the s 60CC exercise. Any specificity inherent in those s 65DAA(5) factors which do not overlap with s 60CC considerations can often readily be accommodated within the s 60CC exercise (s 60CC(3)(m)). As best interests governs the s 65DAA exercise, it is often convenient and appropriate to consider any matters directly relevant to s 65DAA(5) within the overall assessment of best interests. Of course, those findings, must be applied as the s 65DAA process requires.
·The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought often be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. Equally, the court may need to craft orders for parental responsibility where the children’s best interests require it.
17.Further, it is necessary in my view to bear in mind what was said by Gummow & Callinan JJ in U and U ((2002) 29 FamLR 74 @ para 92), which is something, it might be said, emerging as much from the fact of parenthood as from the Act: “…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred”.
18.The tyranny of this country’s (and this State’s) distances has frequently been commented upon. Intact families dealing with the exigencies of raising children – particularly those living outside the major population centres - will frequently undertake a drive of many hours for the purposes of facilitating sporting, cultural and educational opportunities for their children. Such sacrifices are the stuff of parenting.
In Ahcraft & Haber Young J. endorsed this summary, at [61].
Murphy J’s summary is cogent and in endorsing it I would add only one rider. In the second last dot point in [16] his Honour noted that “best interests governs the s.65DAA exercise”; for that reason he found it to be often convenient and appropriate to consider any matters directly relevant to s.65DAA(5) within the overall assessment of best interests, and apply those findings as the s.65DAA process requires.
As s.60CA provides that in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration, a finding that best interests “govern” another provision of Part VII of the Act may be justified, particularly given the notes to s.65DAA which refer to s.60CA. However, it is important to bear in mind the very specific process envisaged by s.65DAA, which is in these terms :
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) 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.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Sections 65DAA(1) and (2) require the court to consider a number of matters if a parenting order provides, or is to provide, that a child’s parents are to have equal shared parental responsibility for the child. Section 65DAA(1)(a) and s.65DAA(2)(c) require the court to consider (respectively) whether the child spending equal time with each of the parents, or spending substantial and significant time with each of the parents, would be in the best interests of the child. In determining what is in a child’s best interests, the court must have regard to s.60CC. Having considered matters referable to the child’s best interests, the court must then consider whether (respectively) the child spending equal time with each of the parents or the child spending substantial and significant time with each of the parents, is reasonably practicable.
When considering whether the respective orders would be in the best interests of the child, pursuant to s.60CC, issues of practicability may be considered under a number of sub-sections. Section 60CC(3)(e) requires the court to consider the practical difficulty and expense of a child spending time with and communicating with a parent, but questions of practicability could be considered under many of the considerations contained in s.60CC(3). Findings under s.60CC nevertheless relate to consideration of the child’s best interests. Having considered matters referrable to the best interests under s.65DAA(1)(a) and/or s.65DAA(2)(c), the court must then move to a consideration of the reasonable practicability of an order for, respectively, equal time or substantial and significant time. Consideration of reasonable practicability pursuant to s.65DAA(1)(b) and/or s.65DAA(2)(d) should not be subsumed into the preceding sub-paragraphs; separate and subsequent consideration to that relating to best interests is required.
What the court cannot do is elevate s.65DAA(1)(b) and (2)(d) to the determinative factors. Its obligation is not to consider which of the options advanced by the parties (whether as a primary or “fallback” position) would allow the child to spend at least significant and substantial time with both parents and then, based on that finding, prefer that option and make orders to give effect to it.
EVIDENCE
Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
A great deal of material was before the court. The father relied on six affidavits sworn by him on, variously, 6 April, 2009, 23 April, 2009, 23 July, 2009, 30 September, 2009, 13 October, 2009 and 24 January, 2010. He also relied on affidavits sworn by the following people :
· his sister, Mrs A, sworn 30 September, 2009;
· his mother, Mrs Tremper, sworn 13 October, 2009;
· his girlfriend, Ms S, sworn 13 October, 2009;
· one of his oldest friends, Mr R, sworn 1 October, 2009; and
· the manager of the company for which he works, Mr Y, sworn 30 September, 2009.
The father, Mrs. A, Mrs Tremper, Ms. S and Mr. R were cross-examined. Mrs. A was cross-examined by telephone at the very end of the trial as she underwent significant surgery during the trial and was not well enough to travel.
Counsel for the mother did not seek to cross-examine Mr. Y.
The mother relied on affidavits sworn by her on 11 May, 2009, 7 October, 2009 and 19 January, 2010. She also relied on an affidavit sworn by her mother, Mrs F on 7 October, 2009 and a psychologist, Ms B, sworn 12 October, 2009. The mother, Mrs. F and Ms. B were cross-examined.
In the course of the trial it became apparent that a psychologist, Ms G, who saw the child in mid-2009 had seen him again in January 2010 and, at the request of the mother, prepared a report. Counsel for the mother sought leave to call Ms G, which was granted. However, Ms G was unavailable. Her report dated 15 January, 2010 was tendered. Absent any reliable evidence of the history given to her or her knowledge of the opinions of other experts involved with the child, little weight can be placed on it.
Pursuant to an order made in the Federal Magistrates’ Court on 12 May, 2009, a psychologist, Dr. N, prepared a family report dated 31 August, 2009 which is annexed to an affidavit sworn by her on 30 September, 2009. At the request of the father’s solicitor, Dr. N prepared a short additional report, dated 14 September, 2009, responding to a question about holiday time with the child; it, too, is annexed to the affidavit sworn by Dr. N.
It could be said that litigation encourages a party to focus on negative aspects of the other party; in a hard-fought case about the residence of a child a party may think it necessary to exaggerate the faults of the other parent and underestimate his or her strengths. This may be done strategically, or on legal advice, or unconsciously, as the past is reconstructed to support the case to be advanced.
Litigation may also encourage a tendency to rake over the past, revisiting old arguments and disappointments. In this case there was a significant focus on the circumstances in which the father obtained proof of his suspicions of infidelity and the minutia of the parties’ daily lives in the period after that discovery, in which they tried (at least in theory) but failed to undo the damage.
The mother’s affidavits are almost unremittingly negative about the father. He tried to force her into having an abortion; he was always verbally aggressive, threatening and controlling; he and others who support him have harassed and attempted to harm her; he preferred fishing, drinking and attending gym to parenting the child; before and after separation he got his parents to look after the child, rather than looking after him himself; he harassed and pressured her to reconcile until August 2009; he failed to provide proper financial support for her in the first months after separation; he was negligent in his treatment of the child’s eczema and is neglectful of the child’s general health; he is unco-operative and inflexible about arrangements; he has played little part in the child’s life at kindergarten; his housekeeping is bad; women (or a woman) have slept in his bed when the child has stayed with him; he lies about the nature and extent of his socialising.
Cross-examined the mother did not resile from her evidence of being overborne, controlled and, at times, intimidated by the father when they were together or from any of the allegations (mainly speculative) about the role he and his friends and family have played in ostracising her in W. However, most of the allegations of poor parenting were not pressed and in final submissions her counsel conceded that the mother did not dispute that the father is capable of parenting the child on a day to day basis.
For his part the father deposed that the mother had frequently abused and belittled him when they were together; she used foul language; she kicked him whilst he was on the toilet and punched him in the head and chest on two occasions; she lied when she said he was not a hands-on parent and played little role in the child’s care prior to separation; she has a propensity to binge drink; she has ignored advice about maintaining a civil relationship in front of the child. Far from being frightened of him, the mother has stormed into his house with the child in the early morning and berated him and friends who were staying and returned later in the day to take photographs on which she relied in the trial. When the father had concerns about the child’s development, the mother derided these concerns and told him to take the child to a paediatrician if he were so concerned about it; she took the child to the skate park when he had a cold and she had given him children’s Panadol; she abuses him in front of the child. Notwithstanding these allegations, the father deposed in his affidavit that the mother is a good and loving mother to the child and it was not part of his case that she could not provide appropriate day to day care.
Having regard to the concessions on both sides, there is no need to deal with allegations which were not pressed. Further, some which were pressed, and which were clearly of significance to the parties, have little relevance to the issues to be determined. Into that category I put most of the evidence about a potential abortion in 2003 and much of the evidence of events immediately before and after the affair which precipitated the parties’ eventual separation. I do not doubt that these matters loom large for the parties, particularly those referable to the ultimate breakdown of their relationship. Their grief, anger, sorrow, regret and other emotions are unique to them; that other relationships and marriages may breakdown in similar circumstances is irrelevant to them. However, the behaviours described and the allegations each make are not objectively unique, particularly when an affair has led to separation. Behaviour seen by one party as subjectively aberrant may, viewed objectively, be neither unusual nor unexpected in such circumstances. It may not be laudable and, in the case of violence or abuse, can never be condoned.
Evaluation of parties and witnesses
The father is 41 and has worked as a tradesman for over twenty years. Save for a brief period with the mother in Newcastle, he has lived in W all his life. He has three siblings. He still lives in the house the parties built at C but envisaged its sale and a move back into W.
The father did not present as an articulate man and he struggled to express himself, at times. It is probable his recollection of events is coloured by his distress at the mother’s infidelity, exacerbated by her assumption that the child would move with her to Newcastle after their separation. I am satisfied that in general he endeavoured to tell the truth.
The mother was more articulate and expressive than the father. She is passionate in her advocacy of the need for her and the child to live in Newcastle. From her perspective the relationship was unhappy for a long time and the affair an act of desperation; the response of the father and his family and friends is disproportionate. Despite the many criticisms she made of him as a man and a father in the periods prior to and after separation, it was her case that she agreed to discuss some form of reconciliation with him as late as mid May 2009, which must cast some doubts on the genuine nature of her alleged concerns. I accept her evidence that she is very unhappy in W and sees a move to Newcastle, with the child, as the panacea for her unhappiness.
I am satisfied the mother, like the father, tended to reconstruct events to suit her case on occasions but I am also satisfied that her accounts of at least two events (a phone call with the father’s sister in December 2008 and an attendance at the father’s home in May 2009) were distorted and exaggerated to give a completely false picture. She may now believe that the accounts she gave are factually based but I have less confidence in her capacity for objective recollection than that of the father.
Mrs. Tremper’s evidence was that she is more disappointed than angry with the mother. She was understandably partisan to her son’s cause. In both her affidavit and her oral evidence she refrained from criticising the mother, with whom she has had nothing to do since separation. She could not be said to be empathetic to the mother.
The court did not see the father’s sister, Mrs. A, as she was cross-examined by telephone, but she was an impressive witness, readily conceding a number of offensive and insulting things said by her to the mother when the mother rang her minutes after she learnt from her brother of the affair. I prefer her account of that telephone conversation to that of the mother. Although W is a small town, Mrs. A had not laid eyes on the mother from the time of separation until the trial. She is a teaching aide who works at the school at which A has been enrolled in 2010, albeit not in his class. She has two sons, aged 11 and 12, one of whom attends that primary school.
Mr. R has been a friend of the father for some 35 years. He is a salesman, married and has five daughters aged between six and eighteen, three of whom attend J Primary School. He was an impressive witness.
Ms. S presented as an intelligent, astute and honest woman, perceptive about the challenges of the step-parent role. She lives in Melbourne and is responsible for the management of a number of businesses. She has no children of her own. Having met the father in March 2009 her evidence was of commencing a sexual relationship in July that year. I prefer her account of events on 17 May, 2009 to that of the mother.
The father’s manager at work, Mr. Y, was not required for cross-examination. The husband’s employer is a power company. Mr. Y’s evidence of the flexibility available to accommodate the father’s childcare arrangements was not challenged.
The mother’s mother, Mrs. F, lives with her husband in a one bedroom apartment in Ministry of Housing accommodation in the heart of Newcastle. In what might have been a throw-away line, one witness referred to Mrs. F having six husbands; the evidence is of three. The mother’s parents separated when she (the mother) was five and her own evidence was of being told later that she had not coped well with their separation.
Mrs. F presented as rather distracted and confused in the witness box. Her recollection of her daughter’s movements between W and Newcastle was not good. I am satisfied she supports her daughter’s desire to return to Newcastle and would do what she could to support them there. I also accept that she and her daughter are very close.
Ms. B is a psychologist who prepared a report dated 8 October, 2009. Ms. B presented as a pleasant and unassuming woman who readily conceded the Medicare fiction generated to allow her to prepare a report to support the mother’s desire to move to Newcastle. It must be said that when Dr. N, another psychologist, gave evidence, the difference between them was starkly illustrated. Dr. N was incisive, perceptive, analytical, articulate and objective. Ms. B’s evidence was rambling and very imprecise and clearly slanted to achieve the mother’s aim.
In her affidavit Ms. B swore that the mother :
. . . has requested me to prepare a report in relation to her request to move interstate and the affect on her health if she remains living in the [W] area.
I am satisfied that in order to obtain a report to rely on in the trial, to counter what she saw as unfavourable aspects of the family report, the mother obtained a referral from a general practitioner which entitled her to six clinical sessions with a psychologist, paid by Medicare. The ostensible purpose of the sessions was therapeutic; the real purpose was forensic. In a transparent attempt to mask the real purpose, a report was sent by Ms. B to the GP after her court report was prepared, as the GP has to report to Medicare in each case. The court cannot say if the GP were a party to the deception or whether she made the referral in good faith, believing the mother would be treated by Ms. B.
Ms. B found it almost impossible to say what it was she was assessing. Asked about the topics covered with the mother, she resorted to reading out her notes. She was unable to differentiate with certainty which parts of her report recounted a history given to her by the mother and which were her assessments or opinions; asked about statements in the report, she often commenced her answer with “I think”. She could not be sure when she read Dr. N’s report. She made no attempt to probe or tease out the history given to her by the mother but accepted it absolutely. Her opinions were based, to a significant extent, on a barrage of written tests she had the mother complete, most of which were, necessarily, self-reporting.
Ms. B’s account of the basis of her diagnosis that the mother had experienced “a major depressive episode: moderate to severe” demonstrates the problem. Using the diagnostic criteria from DSM-IV, Ms. B asked the mother if she experienced any of the listed symptoms. The mother said yes to five, which led to the diagnosis. Taxed with this, Ms. B said “I guess it could be seen as leading”.
In her report Ms. B essayed a critical analysis of Dr. N’s family report which commenced with her opinion that :
(1) The report failed to directly assess the presence and impact of psychologically abusive behaviour in the relationship, in the context of potential family violence.
and concluded :
(7) The report may have underestimated the impact of isolation on Ms. [Harpon] as her mother described a history of recurring distress at times of separation from her family, since pre-school.
Ms. B’s own account of the evidence on which she based the second of the criticisms cited demonstrates the slim foundations on which she sought to build, she recording Mrs. F’s advice that the mother suffered when her father left the family, when the mother was in kindergarten, and that a teacher told her the mother “was upset” when she attended a ten day school camp in grade two or three.
Prudently, counsel for the mother did not seek to place weight on these or the five other criticisms Ms. B made of Dr. N’s report.
I have significant doubts about the efficacy of the process adopted by Ms. B and am satisfied considerable caution needs to be exercised when considering the weight to be given to her opinion.
These concerns were exacerbated when the mother was cross-examined about an offer made by her to bring the child back to Wollongong once a month, if she were allowed to move. She frankly said that this was suggested by Ms. B, who was “offering helpful suggestions” throughout the sessions.
Ms. B frankly conceded that statements on a couple of post-it notes she stuck on her file notes expressed her thoughts. One said “Not acceptable that a woman is trapped in another State amongst a hostile family”. Asked “acceptable to whom”, Ms. B said “society”, then added “and myself as a psychologist”. On the other post-it note she wrote : “Nature of [W], despite rapid growth still has a small town culture among the long-term locals with information readily exchanged and a lack of privacy”. Ms. B said this was to remind her of the importance of this, as Dr. N did not have regard to it. The court could not find that Ms. B brought an open mind to the professional work she undertook with the mother.
Dr. N presented as an intelligent, detached and insightful witness. Her oral evidence was cogent, lucid and always directly responsive; her analysis was penetrating. Despite skilful cross-examination by counsel for the mother, Dr. N maintained the opinions expressed in the family report and her recommendations. She made it clear that her main focus was on the child. Counsel for the father described her evidence as compelling, an accurate assessment. That said, her expert opinion, which I find to be sound, forms only part of the whole of the evidence which the court must consider.
Brief history of the relationship to separation
In 2003 the mother sold a unit she owned in Newcastle and moved to W to live with the father. Save for a brief period in which he lived with her in Newcastle, the father had lived in W all his life; his family have been there for over fifty years. The mother’s evidence was that she saw her future in W. In Newcastle they had discussed having a baby and she had gone off the pill.
The mother’s pregnancy was confirmed in July 2003. Her evidence was that the father was initially very glad. However, she was very homesick and he was concerned about the viability of the relationship and, according to the mother, he changed his mind and felt the pregnancy should be terminated. He did not agree with that account. The bottom line is that an appointment was made at a clinic when she was about eight weeks pregnant and after discussions with a counsellor there, both resolved to proceed with the pregnancy.
The mother worked for a business in W during the pregnancy, leaving some four weeks before the birth. The mother’s evidence was that although she did not socialise with others who worked there, they liked her and talked to her and were “friends at work”. She currently works one day a week at the business.
In March, 2004 the child was born. When he was about twelve months old the mother started work as a consultant with a retail business, which involved her taking products to parties about twice a week, mainly on weekends or at night. The parties were arranged around the father’s availability to care for the child. In about September 2006 the mother applied for and obtained work with a company which is involved with promotions and the launch of new lines, or displays, in supermarkets. At one point she accepted an eight week job at a nearby coastal town which was then extended for a further two weeks but generally this was part-time work, from time to time. The father was supportive of it and his mother frequently looked after the child.
Although the mother’s account was of a relationship which was troubled and unsatisfactory from the outset, it was her evidence that she believed it to be “a permanent relationship” and that when she turned 35 in March 2006, she discussed with the father the potential for another baby. He was happy to go along with that. She experienced some fertility problems, had “a few operations” to assist and after eight months in which she had not become pregnant, was referred to a specialist in early 2007.
In about November 2006 the mother started permanent part-time work at a supermarket in W, working 24 hours a week in the evenings. She remained in that job until January 2009. Again, the father was supportive of this work, which was undertaken when he was available to look after the child.
The parties decided to build a home and in July/August 2007 a building contract was signed for a house to be built on five acres of land at C, a few kilometres from W. The father worked as much overtime and at call work as he could and the mother maintained her paid work at the supermarket.
It is probable the project put additional strain on their already troubled relationship. The mother agreed that she wanted everything to be perfect and had clear ideas about the fittings and furnishings she wanted. In August or September 2008 the family moved into the new home.
In October 2008 the mother commenced a sexual liaison with a co-worker at the supermarket. He was married, with children, and his wife was pregnant. The mother said she thought about the effect of the affair on the father and knew that their relationship would be over if he found out. It was her evidence that she had tried to leave him on other occasions but had either been talked out of it, lacked the courage or feared the impact on the child.
The mother’s evidence was that the father had always been a jealous and possessive man and had accused or suspected her of infidelity in the past. Many years earlier he had discovered (she alleged through listening to a phone conversation she had with her mother, he (which I accept) by reading an SMS message on a phone she left in the car) that she was meeting a man in Melbourne. Her evidence was that this was an innocent arrangement but if the father were inclined to jealousy, the making of the assignation without advice to him can only have honed his suspicions.
At some point in October 2008 Mr. R’s wife, who also worked at the supermarket, told the father that the mother seemed to be rather too friendly with a co-worker. The mother agreed that it was around then that their intimacy started and they began sending texts and being “more open”. Taxed about the affair by the father, the mother denied it. On one occasion he drove to her work place around midnight and watched her leave; she returned home and he followed her. He later attached a tape recorder to a spare phone plug in a shed and tape recorded calls made on the landline.
Counsel for the mother sought to attack the father’s credit by reference to the different accounts he gave from time to time about the nature and extent of the phone tapping. At one point he said it was for a couple of days, then four days, then six to ten days. I am not satisfied the discrepancies can carry the weight counsel sought to place on them. This was clearly a time of great turmoil. The father had accused the mother of having an affair and she had denied it. He is not the first partner in those circumstances to take steps to try and catch out the allegedly unfaithful partner. In this case he succeeded; his suspicions were justified.
The mother’s evidence was that when she eventually admitted to having an affair, after hearing the taped conversation, both of the parties cried. She said the father “just got up from the table and walked away from me”. The affair stopped at that point, but she believed the relationship with the father was finished as “I know what he is like”. She agreed that he said they could work through it but said she knew it was over, in her heart.
In mid November 2008, soon after the affair was discovered, the mother took the child with her to Newcastle for four days, as a nephew had been diagnosed with kidney disease.
The mother’s evidence was of getting legal advice late in November or early December 2008.
In late November or early December 2008 a police member applied for an intervention order, naming the father as defendant and the mother as the aggrieved family member. The parties were still living together. The father was served with the application but did not attend the court hearing on 5 December, 2008 when the court made an order which prohibited him from assaulting, harassing, threatening, intimidating or behaving in an offensive manner towards the mother and from damaging or threatening to damage or interfere with any property of hers. Although paragraph 4 of the order restrained him from causing or allowing “the child/children named in this order to hear or witness any of the behaviour prohibited by this order or other family violence at any time”, the child was not named in the order. In those circumstances there is little point in commenting further about a provision which appears to envisage a breach of its own earlier injunction. The intervention order was expressed to expire on 5 December, 2009. It led to cancellation of the father’s firearm licence.
The mother’s evidence was of seeking this intervention order after the father became abusive to her late on the evening of 23 November, 2008; she said the abuse continued unabated for nearly an hour, that he pinned her to the bed and spat in her face three times. The father agreed he had spat in her face in the course of an argument but did not otherwise agree with her description. His evidence, which I accept, is that it occurred once.
In December 2008 the father rang his sister, Mrs A, and told her of the mother’s affair. The mother heard his end of the call. Her evidence was that he asked his sister to tell the sister-in-law of the man with whom he wife had the affair that the affair was ongoing. It appears Mrs. A knew the sister-in-law, called Ms K. When this was first put to Mrs. A, she agreed with the account. Later, she said her brother asked her if she intended to tell Ms K, and she said no. She said nothing to Ms K.
It is difficult for parties to accurately recall the exact terms of phone conversations had or overheard many months earlier. The mother’s recollection of the father’s words may be more accurate. However, I do not accept her account of what followed.
It is common ground that the mother rang Mrs. A immediately after the father hung up. Her evidence was of wanting to tell Mrs. A that the affair was over and she should not say anything to Ms K; according to her, she told Mrs. A that too many people had been hurt already. Her statements were met by a flood of abuse and insults; Mrs. A called her a slut and a fucking whore, said she had never liked her, alleged the child was not the father’s child and criticized her mother.
Mrs. A was adamant in her denial of calling the mother a whore to her face or to anyone else, or her mother a slut, but volunteered she had called the mother a slut on the phone in December 2008. She deposed to saying “shocking things”; that she did not believe the child was her brother’s son, that the mother’s mother was a bad influence on her, that she had bent over backwards for the mother. She yelled at the mother; she was very, very upset and angry. The two critical differences in the two accounts are the actual language used by Mrs. A and the mother, and the circumstances in which the call was made by the mother.
Mrs. A’s evidence, which I accept, was that she first learnt of the affair from her brother in the phone call immediately preceding that of the mother. She is very close to her brother and was devastated by the advice. Within moments, the mother rang her and launched into a tirade of abuse, furious that the father had spoken to her about the affair. She yelled that it was none of Mrs. A’s business and accused her of telling people about the affair, of which she (Mrs. A) had been ignorant until moments earlier. Angry and distressed, Mrs. A, as she later confessed to her brother, “gave as good as she got”.
I am satisfied the mother exaggerated the language and insults of Mrs. A and censored the account of her own insulting language and anger. I am also satisfied the mother commenced the call as Mrs. A described.
The mother’s evidence was that she complained about Mrs. A’s abuse to the father, who told her his sister had been very upset and was sorry. There has been no conversation between the two women since.
In December 2008 the mother started seeing a counsellor at … in W, Ms X. She saw her fortnightly until the end of November 2009 when Ms. X went on holidays.
The mother’s evidence was that it was Ms. X who suggested, after the family report was released in early September 2009, that she see Ms. B; she went to Dr. M for a referral. The mother seemed to believe that Ms. X could not give evidence; she said Ms. X was unable to do so. The court can say nothing of the work undertaken by Ms. X save that, through it, the mother was led to a realisation that what she had gone through was “not acceptable” and a form of abuse, and that the realisation made her feel worse, rather than better. When asked about the benefits of this counselling the mother said :
That it wasn’t my fault. That I wasn’t to feel guilty about taking [the child] away from his dad. I wasn’t to feel guilty about what had happened.
This must have been a very tense time for the family. In this climate, the mother booked fares to Newcastle in mid-December 2008 for the child and herself for a four day holiday. The father did not oppose this. The three of them had Christmas lunch together (they did not, as they usually did, spend Christmas Day with his extended family) and she and the child left in the afternoon of Christmas Day. Once in Newcastle, the mother advised the father she would be away for a further two week period. She spent the first of these weeks with her mother in Newcastle and the second with her brother and his family on the New South Wales north coast. The father spoke with the child on the phone on numerous occasions.
The mother’s explanation for this unilateral extension of the child’s time in New South Wales was an incident which she said occurred in the supermarket in December. She said the father entered the store when she was working. He berated her and distressed her so much that she went to her manager and offered her immediate resignation. He suggested that she take two weeks off because he did not want to lose her.
The father’s evidence was of hearing rumours that the mother was continuing her affair and of going to her work place and drawing her aside to speak quietly.
It is unlikely the altercation in the supermarket was as dramatic as the mother deposed. However big the supermarket and however few customers were in the aisle in which they spoke, it is improbable a loud argument – or one-sided tirade – would have gone unobserved. Further, while the intervention order did not forbid contact (as they were living in the same house), it certainly proscribed conduct of the sort alleged by the mother, which could be characterised as harassing, intimidating and offensive. The mother’s own evidence was that the father never breached the intervention order and, much later, she sought an amendment to it so its reach would extend to restraining contact with her. Nevertheless, it is probable the mother was distressed and, without advice to the father, decided to extend her holiday. Given that he, at least, thought they were trying to resolve their problems and maintain their relationship, this was not an auspicious start to 2009.
In January 2009 the mother and the child returned from the north coast to W. She said she felt better. However, she felt humiliated by what she had done and began to feel the effects of exclusion from the lives of former friends. Her evidence was that no-one said anything about the affair to her but that the father’s family and friends ignored her. Two good friends of the husband who lived nearby stopped waving to her when she drove past. His cousin and her wife looked the other way when they saw her.
On 14 January, 2009 the mother signed a statutory declaration to support the father’s application for restoration of his firearms licence for use on the farm and during the duck season. She wrote :
[The father and I] have resolved our differences. I feel confident and safe for [the father] to have his guns return (sic) to him for farm and duck season use.
The mother’s evidence was of receiving a poison pen letter when she collected mail on 8 February, 2009. She said nothing of it to the father until March 2009. She believes the father knew of the letter because he asked her several times if she had collected their mail, which was delivered to a local shop and held for them. She believes the author to be the father’s sister, Mrs A. A month or two after its receipt, the mother told the father of the letter and her belief it came from his sister. She did not show him the letter; it was produced for the first time in the courtroom. He told her not to be ridiculous; it was “rubbish” to blame his sister.
The letter and the envelope in which it came were tendered by the father, not the mother. The envelope is postmarked 3 February, 2009 in W. The mother’s evidence was of the letter getting wet at her home and much of it is illegible. The words slut, fucking slut and fuck recur.
The father and Mrs. A both denied any knowledge of the letter. The mother appeared to discount the potential for the author to be the wife of the man with whom she had the affair or someone connected with her; there is reference in it to “[illegible] you have done to your [illegible] …ody else’s marriage”, which supports that potential. The court cannot find that the father and/or Mrs. A were involved in its production or posting.
The parties maintained a semblance of a relationship until 9 February, 2009 when the mother told the father that the relationship was over, that she was taking the child to Newcastle to live and that she hoped to be in Newcastle by the end of the following week. There is no evidence she gave any thought to the impact on the child of the proposed move; it is probable her focus was on her desire to escape the climate in which she was living with the father. Her evidence was that the poison-pen letter was the last straw. The father obtained immediate legal advice and on 10 February, 2009 his solicitor wrote to the mother, advising he did not consent to the child’s relocation and seeking an undertaking that the mother would not take him to Newcastle. The mother again consulted a solicitor, who confirmed in a letter dated 13 February, 2009 that she did want to relocate with the child but would not do so without the father’s consent or a court order, as she realised it “would be likely to result in recovery proceedings”. In that letter the solicitor advised that the child would be holidaying with the mother for two to three weeks in Newcastle to celebrate her birthday on 2 March, 2009; this was announced as fact, not a request.
With the father’s consent, the mother did take the child to Newcastle for two weeks in March 2009, spending her birthday there. The father maintained regular telephone contact with the child.
On 16 April, 2009 the father issued the application which commenced these proceedings. The parties were still living in their jointly owned home, albeit separately, and both were involved in caring for the child.
The mother’s evidence was that on 21 April, 2009 she moved to a two bedroom unit in W with the child as she could not cope with the tension in the home and was becoming increasingly depressed, anxious and scared. The father’s evidence was of being advised that day by a friend that there was a removal truck at the C house and of going home to discover much of the contents of the home removed. The mother told him she was moving to W with the child.
Cross-examined, the mother agreed that she went to the real estate agent some three weeks prior to the move; she told her mother, but not the father, she was leaving. Her mother then came to W from Newcastle to visit and stayed in the family home with the parties and the child in the week prior to the move, saying nothing to the father of the proposed move. She stayed a further week to help the mother settle “in the rented accommodation”.
In these circumstances the father filed an amended application and sought that times be abridged; the return date of his application was brought forward from 25 May to 12 May, 2009.
Since separation
On 12 May, 2009 interim orders were made, by consent. They provided for the child to live with the mother and spend four nights a fortnight with the father. Over a fortnight, the child would see his father – sometimes only for a short period – on eight days. The father attributed responsibility for the fragmented arrangement to the fact the mother insisted the child could not be away from her for more than one night; she attributed it to the necessity for the father’s time with the child to be co-ordinated with his work hours, particularly the Mondays on which he did not work. Giving evidence, Dr. N described the arrangements as atrocious. Nevertheless, those arrangements remained in force from May until the trial and it is probable the frequent changeovers have been stressful for the child and his parents.
Much of the evidence went to events on Sunday 17 May, 2009, some five days after the interim orders were made. The father was scheduled to collect the child at 10:00 am. that day. The previous night he, Ms. S and Ms. S’s sister had dinner in N. I accept Ms. S’s account of the evening and of what occurred the following morning, including her account of who drank alcohol and how much.
I am satisfied that the mother arrived at the house, with the child, unannounced, shortly prior to 8:00 am. The door was closed. Undeterred, she let herself in. Ms S’s sister was sleeping on the couch and Ms. S was in the father’s bedroom. The mother kept insisting that she needed to get something out of the bedroom; the father attempted to dissuade her. The mother screamed at him, using abusive language, despite the child’s presence; I accept Ms. S’s evidence that the mother was using what she described as “the c word”. Eventually, the mother left with the child.
The father’s evidence, which I accept, was of Ms S’s sister taking the child into the lounge as the mother screamed abuse at the father. The child started whacking his head with his hands and rocked back and forth in distress.
Ms. S’s evidence was of hearing the mother yelling words to the effect :
On Thursday when we spoke, we agreed that we would make time to sit down on Sunday morning to discuss getting back together and making the family work.
The parties and Ms. S were cross-examined at some length about this conversation. It is clear there had been a conversation between the parties the previous Thursday; it is quite possible that in the course of it, the father gave the mother the impression that he was interested in the family getting back together. It is also possible the conversation was misconstrued by the mother, and that it had more to do with them working out a modus operandi in the future. Although the father and Ms. S had not yet commenced a sexual relationship, Ms. S had been careful to ascertain that he was not in a continuing relationship as they explored their own and it is probable the father was not only embarrassed by his former partner’s antics, but by the potential for the Thursday discussions to be raised.
The mother’s account of this incident, which I do not accept to be true, was of telephoning the father four times on the Saturday to “let him know I needed to speak to him about [the child] and that I will deliver him to his home early the next day so he could talk”. The orders provided for the father to collect the child from the mother, not for her to deliver him. She said nothing in her affidavit of any discussion about reconciliation : she needed to speak to him about the child. As she did not depose to speaking to the father on the Saturday, a reasonable inference is that she did not. Nevertheless, she went to the home at “approximately 9:00 am.” (I am satisfied it was much earlier), entered without invitation or authority, to discover a woman sleeping on the lounge in the family room and, in due course, another woman in the father’s bedroom. She deposed to her great distress at the state of the house; she alleged there were empty wine and other alcohol bottles and cans all over the kitchen and that the house was filthy and stunk of alcohol. She deposed that :
I told [the father] that I would return at 10:00 am. and expected the house to be clean and safe for [the child] and for the women to be gone. When I returned with [the child] the house was still messy and the women’s personal items were still around but [the father] was alone. [The child] seemed confused and upset by what he had seen and I asked [the father] to please keep the house tidy and not have strange women there when [the child] was with him.
The father agreed that the mother, having left after her earlier intrusion, sent him a text message at 9:45 am. in which she said she would be dropping the child off at 10:00 am. and wanted to ensure the house was clean and the women gone. He rang and said he would collect the child from her, as provided in the orders. She insisted on bringing the child to the house so he asked the women to leave.
His evidence, which I accept, was of the mother arriving again at 10:00 am. and being argumentative and abusive. She spoke of realising what she had thrown away and being unhappy he had moved on with his life. She picked up Ms. S’s shoes and those of Ms S’s sister, which were in the garage; kicked them around before throwing them into puddles outside the house; then began to sob uncontrollably. The father tried to console her and settle her down.
There was no account in that paragraph of her affidavit sworn 7 October, 2009 of a later return to the home, of again entering uninvited, and of taking photographs.
The mother subsequently deposed to returning to the father’s home at about 4:30 pm. that afternoon to “check that he had cleaned up the house and the women had left”. Again, “I let myself in to see for myself”. She then took a series of photographs which she annexed to an affidavit she swore on 19 January, 2010.
The mother’s evidence about the photographs did her no credit. Her complaints about the items on the floor were risible; the photos show the child’s playing cards and his cricket wickets, together with his drum set. So were her complaints about the kitchen, in which washed dishes were stacked on the draining board and rubbish was in a rubbish bag. Her evidence reached a low point when she endeavoured to identify a plastic bag of powder in a smudgy photo of a bathroom and allege it was a drug.
It is probable the mother saw herself as entitled to control and direct the father’s time with the child. She complained of his intrusion into her life after separation but felt comfortable about intruding into his. She complained about the father’s verbal abuse of her but was comfortable about verbally abusing him and his friends, as she had his sister in December 2008, and exposing the child to that abuse. She alleged she was intimidated by him but was prepared to let herself into his house, without invitation, and confront him.
The father again agreed to the mother taking the child to Newcastle in June/July 2009 and they were away for about a fortnight. Make-up time was provided on their return.
On 30 August, 2009 Dr. N’s family report was released. It recorded the mother’s expressed view, when pressed about her plans if the child were not allowed to move to Newcastle, that she would never leave the child and that she would then try “to make a life for myself [in [W]]”.
Soon after that, the mother decided she could not or would not maintain that position. As the notation to the order of 14 October, 2009 records, the mother had by then formulated a different plan : she would live in Newcastle, with or without the child.
Three days after Dr. N completed her report, the mother applied to vary and extend the intervention order made on 5 December, 2008, prior to the parties’ separation. On the application she set out her reasons for seeking the variation and extension, as follows :
So that the respondent is not allowed to approach me other than those days that he picks up his son. And so that the respondent cannot follow me and that he can only speak to me about our sons welfare. And so that he respondent cannot come within 200 metres of me on days that he doesn’t have our son. That the order be extended 12 months.
The father’s evidence was of being served with this application “out of the blue” on 7 September, 2009. On 18 September, 2009 the parties agreed to give mutual undertakings and the application was withdrawn.
The mother’s evidence was of the father continually pressuring her to reconcile and making statements about what she had bought and where she had been. The father’s evidence was of the mother behaving inconsistently between June and September 2009. On occasions she behaved “like a crazy woman” in front of the child, yelling when he returned the child at 7:50 pm. rather than 7:30 pm; ringing him eight times on one weekend, with calls made as late as 23:40 pm.; insisting on joining him at McDonalds when he was there with the child, and then making a scene; banging on the window of his car and saying he could not pick the child up the following weekend when he offered to give her a charger for the child’s DVD player rather than money to buy one. At other times they were able to co-operate and communicate; one night they had a Chinese meal together and spoke about the child’s activities, health and schooling and on another she came to the C house for a coffee and played with the child there. He took the child to Auskick and, on occasions, the mother came to watch.
It was soon after receiving the family report that the mother saw her GP and obtained the referral to Ms. B.
The child’s consultations with experts
On 29 May, 2009 the child was referred by a GP, Dr. W, to Ms. G, a psychologist. In a letter to Dr. N, dated 17 July, 2009, Ms. G noted that Dr. W requested counselling for the child after his parents’ separation and that she was writing the letter at the mother’s request.
In her affidavit sworn on 7 October, 2009 the mother deposed to obtaining the referral because she had significant concerns about the child’s emotional welfare because he had witnessed “so much verbal abuse and aggression in the months leading up to our leaving the home” and was returning from time with his father very angry. Her evidence was of seeking advice about how best to respond to the child to assist him cope with the separation and to give the child an independent adult to whom he could voice any concerns he had. She said she deliberately did not tell the father that the child was going to see Ms. G as :
I did not trust [the father] to restrain from inappropriate comments to [the child] and was worried that he would say things to interfere with [the child’s] trust of Ms. [G]. [The child] only went to Ms. [G] on three occasions.
This is a compelling illustration.
The mother proposed that if the child had to remain in W he live with her for ten days a fortnight and with his father for four days a fortnight, during school terms. If he lived with her in Newcastle, the child could spend school holidays with his father. She spoke of the potential to bring the child to Victoria once a month, if she could afford it, and of the father’s financial capacity to pay for travel to Newcastle at weekends and to extend weekends to include Mondays on which he is rostered off.
Whatever arrangements were made in respect of the father’s travel to Newcastle, the child’s time with his father in W would be very different and more rewarding for the child than time with his father in Newcastle, unless the father moved to Newcastle. That a move to Newcastle would impact on the father’s relationship with the child was acknowledged in counsel for the mother’s repeated weighing of the benefits of a move with the disadvantages; the major disadvantage was conceded to be the loss of the close connection.
In final submissions, counsel for the mother made a submission which illustrated the mother’s until then unspoken acknowledgment of the potential affect on the child’s relationship with his father were they not to live close together. It was her submission that if the mother and the child lived in Newcastle and the child travelled to W to spend time with the father, orders should require the father to be in substantial attendance during those periods because, among other reasons, it would be “imperative that he spends as much time with [the child] as he can during those periods of time”.
ADDITIONAL CONSIDERATIONS
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is too young for his views to be determinative. His statement to Ms. G in January 2010 that he was going to live in Newcastle is indicative of his awareness of the dispute. Each of the parents accused the other of being insensitive in these respects and of either discouraging or encouraging the notion of a move. Evidence of that sort is not unusual in these cases and I do not find it detracts from either of the parents’ parenting capacities.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
Dr. N was very complimentary about both parents. The child has a close and loving relationship with his mother and his father.
I place weight on Dr. N’s evidence that the child’s capacity to spend “longish periods of more than a week” away from either parent might be compromised because of his apparent cognitive problems and because he is probably without the verbals skills to make that known to either parent. It was her evidence that with his vulnerabilities, he needs to see and spend time with both parents frequently and regularly; this is an imperative.
In her report Dr. N considered arrangements which could be made were the child to move with his mother to Newcastle and his father stay in W. In her opinion it is difficult to envisage any practical arrangement that would meet the child’s needs. She anticipated that any school holiday arrangement would be likely to cause stress and emotional upheaval for the child on a regular basis and anything more frequent seemed unsustainable on a practical level.
The child has a close relationship with his paternal grandparents. To her credit, the mother was not critical of their relationship with the child, although she did make some reference to their ages. I have no hesitation in finding that the paternal grandmother can and does look after the child in an appropriate way and no criticism was made of her husband. The father’s sister plays a significant role in his life and in that of the child; she and her family are well known to him and spend a lot of time with him, as do other members of the extended Tremper family.
There was little evidence about the maternal grandmother’s relationship with her grandson but I am satisfied it is warm and loving. That relationship has developed with them living far apart; they see each other when the maternal grandmother is in W or the child in Newcastle. No doubt there is some telephone contact. The mother is close enough to her brother and his family to have spent a week with them in northern New South Wales fairly recently and there is no reason to suppose members of that family do not have a good relationship with the child. Northern New South Wales is a long way from Newcastle.
Ms. S has spent a lot of time with the child since commencing a relationship with the father and has looked after him on occasions when the father has been called out on call. She impressed as a sensible and thoughtful woman with an understanding of the subtleties of their interaction and I accept her evidence of her relationship with the child.
The mother professed concern about who would care for the child when the father was called out to work on the one week in three (soon to be one week in four) he is rostered on call.
The paternal grandmother, Ms. S, Mr. R and Mrs. A have all looked after the child on occasions when the father has been called out. The mother seemed to see this as a deficit; a preferable view is that it is indicative of the loving and supportive community in which the child resides in W and of the sound support available to the father.
In final submissions counsel for the wife said one reason for an order requiring the father’s “substantial attendance” with the child when the child is in his care was to “stop the father doing on-call work at those times”. This is an unrealistic demand and misunderstands the nature of family life. Families should be a haven but they do not need to be a fortress.
The father’s base salary is about $60,000 per annum but it has risen to about $100,000 through on-call work. The evidence of Mr. R and the paternal grandmother was that the father has always collected the child from them on his return from a call and taken him home. Parents in paid employment have work obligations and all parents have an obligation to financially support their children. Friends and family members routinely assist with child-care. I am satisfied the father has always made appropriate arrangements for the child when he is on-call.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude. I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The mother has generally facilitated the father’s relationship with the child. She offered more time with him shortly prior to the trial listing in October, an offer that was not accepted as the father believed it was better to stay in the existing routine until the litigation was resolved, then anticipating a resolution through that trial. The mother’s complaints about the father getting assistance when the child is in his care, or leaving him with his parents at times, may have more to do with the sense she feels of being solely responsible for the child when he is with her, than with any genuine concern about the child spending time with relatives and friends.
The father, too, has acknowledged the importance of the mother in the child’s life. Although he initially sought orders which would result in a shared parenting regime within a few years, in final submissions he acknowledged that such orders would be arbitrary and sought that the child spend five nights a week with him during school terms.
I accept that the mother played a larger role in the child’s kindergarten life and, when the parties were together, in aspects relating to his health.
I have no doubt that each of the parents has the capacity to provide for the child’s needs, including his emotional and intellectual needs. Nor do I doubt that each of the parents endeavours to prioritise the child’s needs above their own. Both have provided high quality and responsive parenting to the child.
The mother complained that the father failed to provide financially for the child between her move from the family home on 21 April, 2009, without notice, and a child-support assessment in June 2009, calculated on a child support income of just under $100,000. There is no evidence of any discussion about financial arrangements prior to 21 April, 2009. I accept the mother’s evidence of struggling financially in that period. Child support has been paid as assessed.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Much of the evidence which relates to the potential for the child to have a meaningful relationship with his father if he were to live in Newcastle is also referable to this sub-paragraph. Dr. N was and remains adamant that a move to Newcastle, without his father, will impact detrimentally on the child in the short and, potentially, the long term. She made it clear that leaving W would involve more for the child than losing the involvement his father has in his life. She referred to his peers at kindergarten, some of whom would start school with him at J Primary School; to the paternal family networks and to “the community” he knows in W. This community includes family friends like the Rs, and their children at J School and those involved with him professionally, like Dr. H and those who run the social skills program at the local hospital. The child has a place in the personal and geographic community in W; it is the only one he has known. Dr. N’s evidence was that any change is likely to produce anxiety in the child and there is an exponential effect : the more changes, the greater the anxiety.
As counsel for the mother submitted, the father’s proposals involve a change for the child. To date, save when spending holiday time with his father, the child is not away from his mother for more than one night at a time. The father’s proposals – based on Dr. N’s recommendations – would have him away from his mother for a four night block in each fortnight. If the child must stay in W, his mother’s proposals involve a three night block away from her in each fortnight. Dr. N was comfortable about expressing the view that either of these arrangements would work well for the child and would be much better than the present “atrocious” arrangement.
Despite Dr. N’s concern about the child’s capacity to be away from one parent for more than a week, the mother proposed, were she and the child to live in Newcastle, that the child spend the whole of two of the three school term holidays with his father. It was her evidence that the child did not cope well with being away from her for seven days in the summer holidays in 2009/2010. The father did not agree with her account of the child’s response at that time, but if the mother were genuinely concerned, one would not have expected her to agitate for the child to spend two weeks away from her in the first term holidays in 2010, only a few months later.
The orders the father proposed were the child to live with him in W (this was at a time the mother was adamant she would live in Newcastle, with or without the child) involved the child spending more than a week away from him during holiday periods. He did not agree the child was distressed as the mother alleged in the recent summer holidays but his proposal, too, would be counter to Dr. N’s recommendation.
As the mother no longer intends to go to Newcastle with or without the child, the court need not consider the effect on him of living hundreds of kilometres from his mother.
A move to Newcastle would impact adversely on the child’s relationships with his paternal grandparents and members of that family in W. That is a matter on which I place weight but it is not determinative. The child has a good relationship with his maternal grandmother now; were he to live in Newcastle that would be fostered. There is no evidence any other relatives of the mother live in Newcastle. She does have a community of friends there.
I have not considered the parties’ respective proposals in depth, being satisfied that each would ensure, if the child were in his or her care, that the child is appropriately housed and looked after. The mother would need to obtain accommodation in either town. She gave notice to vacate her rented flat in W in January 2010 and was forced to obtain temporary accommodation when she realised that a judgment would not be delivered on the last day of the trial. In Newcastle the child and she would initially live with her mother and step-father; while theirs is a small flat, I am satisfied it would be appropriate in the short term and that she would do everything necessary to obtain more appropriate accommodation as soon as practicable. If she and the child are to remain in W they will need to do that there, too. The father, too, may need to find new accommodation if the C house is sold.
I am satisfied the parents would arrange for the child to see a paediatrician or other medical or therapeutic specialists if that is necessary, in either W or Newcastle. The child will have an aide at school in either town.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Although the mother believed her financial situation would be better in Newcastle, as her mother could assist with childcare and she hoped to work longer hours there, it is unlikely she would be in a financial position to be able to afford frequent travel for her and the child between Newcastle and W. The father earns a good income and has more capacity than the mother to pay the costs of such travel. He pointed out that more was involved than an airfare; a trip to Newcastle for the weekend involves the drive (including tolls) from W to the airport, parking at the airport, hire of a car in Newcastle and accommodation in Newcastle. I am satisfied he could afford to visit Newcastle one weekend a month, juggling that with his on-call arrangements, but more frequent travel may prove difficult.
The maternal grandmother spent about five weeks in W in 2009. She is on a pension but was able to fund that travel. Since November 2009 the mother has had at least five trips to Newcastle.
The mother tended to understate the time, costs and demands of travel between Newcastle and W when giving evidence of the child’s capacity to travel once he is at school. It is a two to two and a half hour trip from Tullamarine to W, so four to five hours of the weekend would be on the road. She had not checked timetables for travel on Friday afternoons and Sunday evenings. It is improbable she would have the financial capacity to bring him to W once a month as she suggested in the short term, but she hoped her financial situation would improve in Newcastle.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I take into account the child’s special needs and the parties’ respective responses to them.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
The intervention order obtained prior to the parties’ physical separation expired in December 2009.
I do not ignore the mother’s account of her experience of the parties’ relationship. Many women stay in relationships which are physically or emotionally abusive, sometimes because they come to accept them as the norm, or through fear, or financial imperatives. It is probable the father did become suspicious of the mother and that she felt constrained by those suspicions. I do not find substance in her allegations of being pushed by the father after a party or her more general allegations of intimidation.
The mother’s evidence was that she did not tell Ms. X or Ms. B that the father was abusive or aggressive. She explained “the things that had happened in the relationship” and they told her they were not acceptable. I accept that women in abusive relationships may not recognise or be able to name the abuse until they leave. In this case I find it probable the mother has reconstructed aspects of the parties’ life together, and interpreted other aspects, as (she now believes) abusive which did not then have that character.
A simple illustration is the mother’s complaint that soon after the affair was discovered in late 2008, the father agreed to her using one of their vehicles on a weekend on which he went away (in another vehicle). She could not find the keys. Eventually she discovered them in the vehicle and the battery flat. This was presented as proof of the father’s aggressive, hostile and intimidatory stance. Cross-examined, the mother agreed that the keys were routinely left in the vehicle when it was parked at the C property and there had been on-going problems with the battery, which had gone flat before.
The mother’s evidence was that since separation she has found nails in her tyres on four occasions. Two occurred in June or July 2009; the second two were in November 2009. She deposed to three of these in her affidavit. She also alleged the father was involved in electricity to her flat being turned off, which resulted in the spoiling of food in the freezer.
The father’s evidence was of having two flat tyres himself in mid 2009, one of which was caused by a nail.
The mother also alleged that the father was effectively stalking her; he spoke with her of things she had done and things she had bought, and harassed her to reconcile as late as August 2009. As found earlier, it was these allegations that led her to file the application to vary and extend the existing intervention order, litigation which was settled by the parties entering mutual undertakings. She did not allege he had been engaged in these activities since then, save for the general allegations about damage to her tyres in November 2009. I prefer his evidence of her erratic reactions to him in mid July, as earlier found.
The evidence does not establish it is more probable than not that the father or people associated with him were involved in whatever damage was done to the tyres or the food in the freezer. In a sense that is irrelevant; if the tyres were damaged as a result of deliberate acts, the mother is justified in feeling very distressed. I do take that legitimate distress into account when considering the impact on the mother of an order which, given her concession that she will stay with the child, would involve her in staying in W or close to W.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Finality of litigation is generally in a child’s best interests and Dr. N’s evidence satisfies me that change and disruption are likely to have a more adverse affect on the child than on many children of his age. The parties need to know where the child is to live, so supporting networks can be put in place for the child. To their credit, they agreed that the child should start school in W, pending the judgment. I place no weight on that in the sense of an established status quo.
(m)any other fact or circumstances that the court thinks is relevant;
I place weight on the objects and principles set out in s.60B.
I take into account the importance to an adult of freedom of movement and the mother’s belief that it is unreasonable and punitive to require her to live in close proximity to the father in W. Whilst priority must be accorded to the child’s best interests and rights, the court must also consider the legitimate interests and desires of the parents.
I also place weight on the importance to the child of his mother’s happiness and wellbeing. Unwarranted interference in the life of a parent which impinges on his or her happiness can affect the welfare and the best interests of a child. However, as noted by Kirby J. in AMS v. AIF; AIF v. AMS (1999) FLC 92-852 at 150, and by Gummow and Callinan JJ. (with whom Gleeson CJ., McHugh and Hayne JJ. agreed) in U & U (2002) FLC 93-112 at 89,090, the touchstone for the ultimate decision must remain the welfare or best interests of the child and the weight to be accorded to a right of freedom of mobility of a parent, and a parent’s happiness, must defer to that expressed paramount consideration.
I take into account Mrs. A’s employment at J Primary School and the probability the two women would see each other if the child stays at the school. Mrs. A spoke in a direct and convincing way of the ethos of the school and her commitment to professional conduct and I accept she meant what she said. I also accept that the mother would find it more difficult to accept and could be apprehensive about exposure to Mrs. A.
It is common ground that the child is thriving in W. It is common ground he has made great progress in the second half of 2009, once the immediate turmoil involving his parents’ separation passed. No doubt the mother would say that he will continue to make gains with her in Newcastle, but the evidence satisfies me that it is his close involvement with both parents, their complementary parenting of him, and his life in the W community, which have led to his present presentation. I am also satisfied that a removal of his father’s close involvement will impact as described by Dr. N and that the child’s anxiety is likely to increase exponentially with changes.
For a few months the mother asserted she would go to Newcastle with or without the child. In the trial she reverted to her earlier position, which was that she would stay in W if the child were to live there and try and make a life for them both. She should be commended for that, not criticised for, in desperation, considering a different scenario. She is prepared to live a life which she presently sees as untenable if that is the price to be paid for living with her son.
The father was not prepared to make a similar sacrifice. Ms. S was candid in her response to questions about the future plans of her and the father. Nothing had been decided. She said if the child were not in W, “who knows where we could end up” but she envisaged them living as a couple in W at some time in the future, “regardless of where [the child] lived”. She said her job meant she would not consider a permanent move for 12 to 24 months; if the child went to Newcastle, the father might move to Melbourne to live with her for about 12 months and then both return to live in W.
Although the court could not rule out a later move to Newcastle were the child to live there, it could not find that the father would follow the child and make a new life for himself in Newcastle so he could play the parenting role to which he aspires. His family has been established in W for decades and his family base there is much broader than that of the mother in Newcastle. He has worked for over twenty years in the area and sees it as the child’s home, as the child has lived there since his birth. However strong are his roots in and ties to W, I do take into account the mother’s greater willingness to prioritise her relationship with her son in the event she is unsuccessful in her application to relocate.
Presumption of Equal Shared Parental Responsibility
Neither party submitted that any order should be made other than an order for equal shared parental responsibility. Thus the court must consider the provisions of s.65DAA.
I am not satisfied that spending equal time with each of his parents would be in the child’s best interests. In this respect I place weight on Dr. N’s evidence that shared time would be too stressful for the child. The father does not seek such an order.
I am satisfied that spending substantial and significant time with each of his parents would be in the child’s best interests. Again, I place weight on Dr. N’s evidence and her interpretation of the evidence of other experts which is before the court but who were not called, as well as the other evidence to which I have adverted.
The mother agreed the father should spend significant and substantial time with the child if she and the child moved to Newcastle and the father followed them. She agreed he should spend significant and substantial time with the child if she, the child and the father lived in W. The court can find that the mother herself believes it to be in the child’s best interests to spend such time with his father.
If the mother and the child live in Newcastle and the father does not, it would not be reasonably practicable for the child to spend significant and substantial time with his father, as defined in s.65DAA(3). Distance – not the parties’ capacities to communicate, or resolve differences, or implement an arrangement – precludes it. If living in Newcastle with his mother were found to be in the child’s best interests, the court would find it not reasonably practicable to order significant and substantial time and would make orders for time with his father in W during school holidays and on such weekends as the father could travel to Newcastle.
If it is in the child’s best interests to stay living in the community in which he is thriving in W, it would be reasonably practicable for him to spend significant and substantial time with both parents.
CONCLUSION
I am satisfied that the child’s best interests will be met by remaining in W, living predominantly with his mother, spending the frequent and regular time with his father which Dr. N found imperative, and living in the wider community with which he is familiar. In W both parents can be involved in the child’s daily life and provide the input which Dr. N finds so essential. Substantial and significant time with both parents is reasonably practicable in W.
The father sought that the child live with him from the conclusion of school on Friday until the commencement of school the following Tuesday during school terms, as well as on Monday nights in each alternate week. It was the mother’s submission that, were the three of them to live in or around W, that the alternate weekend time be from the conclusion of school on Friday until the commencement of school on Monday.
Under the existing orders, the child has been spending four nights a fortnight with his father. The child has just started school. His mother will need to find new accommodation in or around W. While the disruption in his life will be nothing like that which would have occurred had he moved to Newcastle, as he will remain living within the community of family and friends he has always known, there are changes for him to accommodate. He has less capacity to accommodate change than many other children of his age. In those circumstances I am satisfied that until the commencement of the 2011 school year, the orders proposed by the mother are more appropriate and less likely to exacerbate the child’s tendency to anxiety. From the commencement of the 2011 school year, the weekend time will extend until the commencement of school on Tuesday.
Orders will enable both of the parties to play a role in the child’s school life, which will be to his advantage.
I am satisfied the child should spend one week of each school term holiday with his father and the balance of the time with his mother. In the 2010/2011 summer holiday period the child will spend two periods of eight days with his father, with a minimum period of eight days between them. These arrangements will always be subject to agreement between the parties to the contrary; they will be in the best position to monitor the child’s development and maturity.
From the summer holidays in 2011/2012, the child will spend half the period with each of his parents.
Orders will provide that the child spend time with each of his parents on his birthday, with the mother on Mothers’ Day and with the father on Fathers’ Day.
The father sought to restrain the mother from moving the child’s residence beyond twenty kilometres radius of W. I do not find such an arbitrary limit appropriate. It was agreed that were the child not to move to Newcastle, he would attend J Primary School. It is in the child’s best interests that the stress be removed from changeovers and most of the changeovers during school terms can take place at his school. The mother will need to live at a location which allows her to maintain the child’s attendance at J Primary School, unless she and the father can agree to a change.
It is not unusual for families in regional Victoria to travel considerable distances for purposes related to education, sport or other recreations. The court can be confident the mother will not wish to expose the child to the stressor of unreasonable travel and she may well live within twenty kilometres of W. However, rather than a specific distance, orders will provide that the child’s residence not be moved to an area in which it is not reasonably practicable for him to attend J Primary School.
The father did not suggest that the injunction restraining the mother from living outside a twenty kilometre radius of W should apply to him. Nothing in the evidence suggests he intends to move from W if the child is to live in that area. However, he enrolled the child at J Primary School and sought that the child attend that school and the court has found it to be in the child’s best interests that his father can play a very active role in his life, which is not limited to time only at weekends and school holidays. In these circumstances it is reasonable that the child not live, when with the father, at a location which would render it impracticable to attend J Primary School. I am satisfied each of the parties should be restrained, absent agreement, from locating the child’s residence at a location which meant it would not be reasonably practicable for him to attend that school.
Such an order does not preclude a parent removing the child from the area during holidays or at weekends. I place weight on Dr. N’s opinion that frequent visits to Newcastle are likely to go a long way to assisting the mother’s adjustment to remaining in Victoria.
At times each of the parties have taken the child for an assessment by a professional without advice to the other. They may have acted on the advice of third parties but it is not constructive parenting and not consistent with an order for equal shared parental responsibility. Advice need not be given if the child is taken to a general practitioner for a routine health problem, but the other party is to be advised if an appointment is made with a medical specialist, psychologist, therapist (speech or otherwise) or like treating professional and each of the parties should be able to be involved with that treating professional.
The father sought that each of the parties attend a post separation parenting course and I am satisfied that is likely to be in the child’s best interests. In making that order I do not suggest there are deficits in their parenting which need to be specifically addressed; rather, such courses can provide valuable insights into the way children respond after separation and constructive parenting advice.
I find no substance in the mother’s application for any order requiring the father to be in substantial attendance when the child is in his care.
I certify that the preceding
295 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.
Dated the day of 2010.
…………………………………………
Associate.
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