Twiner & Field

FAMILY COURT OF AUSTRALIA

TWINER & FIELD

[2009] FamCA 212

FAMILY LAW – CHILDREN - With whom a child lives – relocation – best interests of child – nature of meaningful relationship with father – child and father had spent little time together

FAMILY LAW – CHILD SUPPORT – Departure order sought to increase father’s child support assessable income – whether the father had concealed income and financial resources – whether the father had a higher earning capacity - no evidence of concealed property – insufficient evidence of higher earning capacity – departure order refused

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
U v U (2001) 211 CLR 238
C & G [2006] FamCA 994
Elspeth & Peter [2006] FamCA 1385

APPLICANT:

Mr Twiner

RESPONDENT:

Ms Field

INDEPENDENT CHILDREN’S LAWYER:

Rhonda Paget

FILE NUMBER:

CAC

944

2007

DATE DELIVERED:

11 February 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

20-22 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jarvis

SOLICITOR FOR THE APPLICANT:

Pappas J

COUNSEL FOR THE RESPONDENT:

Mr Moss

SOLICITOR FOR THE RESPONDENT:

Ms Smithies

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Payget

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

it is ordered that:

Note: Orders made 18^th March after consideration of further submissions from the parties.

The mother Ms Field have sole parental responsibility for the child N born … February 2004 (“the child”).
The child reside with his mother.
The mother be permitted to relocate to Tasmania with the child.
Until the child turns 10 years old, the father Mr Twiner spend time with the child in Tasmania in the first week of each school holiday period on each day Monday to Friday from 9am until 4pm, unless the parents otherwise agree on suitable times.
For the purpose of Order 4, the father is to collect the child from the mother’s home and return the child to the mother’s home on each of those days.
a.     For the purpose of Order 4, the mother pay the airfare for the father for his return from Tasmania to Canberra for the June and September and December/January school holidays. The father will pay for his own fare from Canberra to Tasmania for each of the aforesaid periods.
b.      The mother will book and pay for the airfare for the father and may do so on the best fare price reasonably available once she has been notified of his attendance and the fact that he has purchased his own fare to Tasmania and has indicated the date on which he proposes to return to Canberra airport.
c.      The mother will not be obliged to pay for or book the fare between Tasmania and Canberra unless the father confirms in writing to her not less than 30 days prior to the proposed time that he will be coming to Tasmania that he will attend, that he has booked his fare and the date on which he proposes to return to Australia.
d.      The father pay all other costs associated with spending time with the child in Tasmania.
When the child turns 10 years old, for the first week of the April and September school holidays from Monday until Saturday the child will spend time with the father at the father’s home unless the parents otherwise agree. The father will meet the child at Canberra Airport. The father will pay for the cost of the child’s return airfares. The father will spend time with the child in Tasmania for one week in the December/January holidays being the first week of January unless otherwise agreed.
The mother keep the father informed of issues related to the child’s care, welfare and development as provided:
b. The mother send the father an email within 24 hours of the child receiving medical attention from a doctor or medical specialist.
c. The mother send the father copies of the child’s school reports when the child commences school.
The father be permitted to send cards, letters and photographs to the child. The mother allow the child to read and display those items as the child wishes.
The father be permitted to telephone the child on Wednesday and Saturday evenings at 5:30pm or as otherwise agreed by the parties.
The child be permitted to telephone and write to the father as and when he wishes.
The mother and father will provide their email and postal addresses and telephone numbers to each other for the purpose of facilitating communication regarding the welfare of the child as set out in orders 5, 6 and 7.
a.     The father be and is hereby restrained from consuming alcohol or any illicit drugs when he is spending time with the child.
b.      Or from using marijuana or other illicit drugs for a period of 12 hours prior to the time he is to spend with the child.
c.      The father be and is hereby required to undertake a supervised urine analysis test for illicit substances not less than 14 days prior to the time when he is to spend time with the child and will provide a copy of the test results to the mother no less than 7 days prior to his spending time with the child.
There be a departure from administrative assessment of child support payable by the father for the period 27 February 2004 to 30 June 2008 and the father's child support income be fixed at an annual rate of $72, 000.00.
The Child Support Registrar be requested to give effect to these orders by calculating child support payable by the father as soon as practicable.
The child support owing be paid as a lump sum to the mother into an account nominated by her by 1 April 2009.
If the father fails to make the payment as indicated in Order 15, interest accrue on the sum owing at a rate 2% above the prime interest rate from time to time prescribed by the Reserve Bank of Australia calculated on monthly rests.
The name of the child N, born on … February 2004, is removed from the Airport Watch List.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
The matter is removed from the pending cases list.

IT IS NOTED THAT:

I note that I received submissions from each of the father, the mother and the Independent Children’s Lawyer at my request, about the form the orders should take prior to finally making these orders.
In large measure the father’s orders were relevant more to questions of appeal than to the substance and form of the orders. I note that if the father proposes to appeal against the orders made in this matter he should do so promptly in accordance with the Rules.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 944 of 2007

MR TWINER

Applicant

And

MS FIELD

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting and relocation matter. The mother proposes to relocate with the child from Canberra to Hobart. The father opposes the relocation and seeks that the child live with him on the South Coast of NSW. There is one child, N, who is four years old.

Background

The mother and father met over the Internet in October 2002. They were in a relationship for approximately one year and never lived together. The relationship between the mother and father had ended prior to the child’s birth in February 2004 and contact between the father and child has been infrequent. The child has lived with his mother in Canberra since birth. The father has spent time with the child:
§ On five occasions in 2004 for a few hours at a time;
§ In June 2005, for two hours on alternate Fridays supervised by a Contact centre;
§ No contact between 4 February and mid-May 2006 when the mother took child to Tasmania;
§ From June 2006, for four hours on alternate Tuesdays. This was the first unsupervised time;
§ From December 2006, for seven hours on alternate Sundays;
§ From January 2007, for seven hours on alternate Tuesdays;
§ From June 2007, supervised time for seven hours every third Tuesday. Supervised by the paternal grandmother at her home;
§ From September 2007, supervised time for six hours every third Tuesday. Supervised by the paternal grandmother at her home.
In February 2006, when the child was age two, the mother unilaterally relocated with the child to Tasmania. Court orders were made in May 2006 requiring their return to Canberra. From June 2006 until September 2006, the father spent time with the child on one day for four hours in alternate weeks. This time was increased to seven hours and supervised by the paternal grandparents at their home on the South Coast. At present the child spends one weekend in three at his grandparent’s home with his father.
The relationship between the parents is acrimonious. There is no co-operation between the parents and according to the Family Report, there seems to be no prospect of being able to co-operate or communicate in the future.[1] Each parent is adamant that he or she will not move to where the other lives.
[1] Family Report 17 September 07, paragraph 3.

Orders sought

Both parents seek equal shared parental responsibility.
The mother seeks that she be permitted to relocate to Tasmania, for reasons of more affordable housing and better social support, and to escape the acrimony associated with the father. In her minute of orders sought, the mother proposed that the child spend time with the father for four weeks in one year. This would occur by the child travelling to the South Coast. She sought that the child’s times with the father continue to be supervised. Further time could be spent with the child if the father travels to Tasmania.
The mother also seeks a departure order under the Child Support (Assessment) Act 1989 that the father’s assessable income for the purposes of child support be increased to $100,000 per annum and that there be a lump sum payment of child support as a capitalised sum paid into a trust account and disbursed periodically.
The father seeks to restrain the mother from relocating. He proposes that the child live with the mother and spend time with the father every second weekend and half of school holidays. He would prefer the mother to relocate closer to the South Coast, to make it more practicable for him to spend time with the child. In that case, the father proposes incremental increases in the time they spend together, eventually graduating to a shared care arrangement. The father submits that his proposal would provide the child with the benefit of spending time with the paternal grandparents and the child’s half-brother, (born February 2005) who all reside on the South Coast.

the law

Section 60B sets out the objects and principles that underpin the Part VII of the Act that relates to children. They are:
(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).
Both of these subsections refer to and operate within the overriding consideration of the child’s best interests. In addition, s 60CA of the Family Law Act prescribes that in making a parenting order I must do so on the basis that the child’s best interests are the paramount consideration.
Section 60CC prescribes a list of factors that I must consider in assessing the child’s best interests. They are:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
I must also go on to consider:
(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 Proposals

I am not limited to considering the proposals put forward by the parties[2]. The range of possible arrangements is:
·    The child live with the mother in Canberra and continue to spend some weekends with the father;
·    The child live with the mother in Tasmania (either immediately or after a further period of time in Canberra); and spend time with the father where possible;
·    The child live with the mother in Tasmania and the father also move to Tasmania;
·    The child live with the mother on the South Coast and spend time with the father;
·    The child live with the father on the South Coast and spend time with the mother either in Canberra or on the South Coast or in Tasmania where possible.

Section 60CC

[2] U v. U (2002) 211 CLR 238

Primary Considerations

There are four matters raised in evidence in this matter that are possibly relevant to the need to protect the child from exposure to violence, neglect, abuse and harm.
The first is that the mother made allegations of sexual abuse of the chid by the father. Counsel for the mother indicated to me during the hearing that the allegations were not pursued by the mother. There was no other evidence of abuse occurring and I do not find that there are reasonable grounds to believe that the child has suffered child abuse.
In addition, there was an AVO against the mother after she slapped the father in an argument. She expressed deep regret for that action and explained it as an aberration. There is no other evidence of violence committed by the mother.
The mother submitted in her affidavit that she was fearful of the father. There had been some incidents of the father allegedly following the mother after handover. In cross-examination the mother said that she did not have any basis for feeling afraid of him and neither party sought to make violence an issue in these proceedings. There is no other evidence of violence.
The mother alleged that the father had been accessing pornography involving young people. She submitted that this may expose the child to a risk of psychological harm. The father admitted the presence of pornography on an old computer that he had given to Ms V. He explained that it was sent to him by a friend at work and that he had forgotten it was on the files. It was alleged that the pornography contained images of children, which the father denied. It is not possible for me to make a positive finding that the father’s involvement with pornography was either intentional or ongoing. As such I cannot conclude that there would be an unacceptable risk[3] to the child on the basis of this allegation.
[3] As set out in M v M (1988) CLR (1988) 166 CLR 69 and B v B (1988) 82 ALR 584
The other primary consideration is the benefit to the child of having a meaningful relationship with both parents. The child already has a meaningful relationship with his mother, from which he benefits in many ways, particularly in the sense of security, stability, and financial, emotional and physical care.

The benefit he currently derives from having a relationship with his father is less clear. That is not to suggest that there could not, in the future, be a relationship with his father that would be of benefit. This would depend not only on the living arrangements of the parents but also on the father’s capacity to provide a benefit to the child.
In his evidence, the father asserted his love for his child and desire to spend time with him. However, when pressed as to whether he would take time off work or move from the South Coast to do so, he indicated that he would not. He said “it’s a tempting option [to spend more time with him], but my [work], my whole world is down the Coast…it would just rip it up.”[4] He also indicated that he did not wish to move to Canberra because he does not like the cold. When questioned about the possibility of visiting the child in Tasmania, he responded that it was too stressful to travel all that way.[5] He agreed that the birth of his child was significant, but that he’d had “a lot of significant events.”[6] His preferred result was that the mother and child move to the south coast so that he could be close by. Throughout his evidence, the father consistently displayed a self-centred attitude rather than a child-centred one.
[4] Evidence of the father in cross-examination on 20 February 2008 at approximately 3pm
[5] Evidence of the father in cross-examination on 20 February 2008 at approximately 3:40pm
[6] Evidence of the father in cross-examination on 20 February 2008 at approximately 4pm
This attitude was also observed in the Family Report of March 2007. The reporter wrote: “I would like to have heard [the father] talk of his two sons in the same detail he spoke about himself as he left me in some doubt regarding his level of child focus. However I can accept that this may improve with his maturity as a father.”
While it is likely that there is some benefit to the child in having a meaningful relationship with his father, it is not clear that the benefit, either current or potential, would be so significant as to rule out the possibility of the mother’s relocation. The legislation does not require that a finding of some benefit must outweigh other benefits to the child. Nor does the legislation prescribe that a court must make orders in the hope that a relationship would become more beneficial or more meaningful. The best interests of the child, as considered by all of the relevant s 60CC factors, are paramount; the primary consideration alone is not paramount. This will become clearer after assessment of the additional considerations.
I will first address the additional considerations, to help inform my view about the benefit to the child of having a meaningful relationship with his father. I will then return to this primary consideration.

The views of the child:

The child is four years old. He has not expressed any views to the Family Consultant. In any case, I do not consider that he is of an age and maturity that his views ought to be given significant weight.

Child’s relationship with parents and other people

The child has a good relationship with his mother. She has been his primary carer since his birth. The September 2007 Family Report stated that “At the time I observed [the child] with his mother I noticed that he spoke to her spontaneously and sought her touch and affection in a familiar fashion and always responded to her in a positive fashion.” Notwithstanding the disparaging assessment by the father of the mother’s care of the child, I find that she has properly and adequately looked after his physical, emotional and developmental needs.
The nature of the child’s relationship with his father is a little more difficult to gauge. The father submits that he loves the child very much and the child enjoys the time he spends with the father. The father’s mother is of the same opinion.[7] The child has spent only limited amounts of time with the father and, for reasons which are disputed, there were significant periods without any contact.
[7] Affidavit of the paternal grandmother, sworn 9 November 2006
The mother indicated in an affidavit[8] that she does not think the child derives significant benefit from the time he spends with his father, as he does not exhibit a willingness to speak to his father on the phone and does not speak very much about the time he spends with his father. The Family Report from 7 March 2007 indicated that, in the reporter’s opinion, there were signs of “attachment in the making if it does not currently exist” and that with regular time together, the child could reasonably develop his relationship with the father.
[8] Affidavit of the mother, sworn 21 November 2007, paragraphs 65 -68,
However, the same Family Report assessed that “…the extent or strength of [the child’s] emotional attachment to his father is both doubtful and uncertain. What is certain is that attachment has not been boosted by regular, frequent and extended time spent together since [the child’s] birth.”
The September 2007 report noted that the child “seemed reasonably at ease with [the father]. He responded to his father’s direction without objection and interacted with him in positive ways. He initiated minimal conversation with his father during the time they were together.” In comparison to the time observed with his mother, the Report notes: “I observed [the child] to be significantly more demonstrative towards his mother than I observed him to be towards his father with whom he showed no spontaneous affection or touch.”
The father has another son, N’s half-brother, who is one year younger than N. The evidence of both the mother and father was that the two boys enjoyed each other’s company. The father submits that it is important for the child to spend time with his half-brother and that this can occur on the South Coast while in his father’s care.
The child’s paternal grandparents also live on the South Coast, and the child has spent time with them. It is difficult to measure how close the child is to these relatives. However, it may be that with the opportunity to spend more time with them, these relationships could assume more significance.
The mother is not in contact with her parents. The mother does not have any relatives in Tasmania. The child’s only relatives that may be significant to him are those that live on the South Coast.

Willingness and ability to facilitate child’s relationship with the other parent

The relationship between the parents is by no means cooperative or congenial or even civil. The September 2007 Family Report indicated that “The parents continue to have an extremely poor relationship with each other and view each other with suspicion and mistrust that borders on disdain…Each party is unconcerned about the value of the function of the other in the upbringing of their son, [N].”
The mother, while accepting that some involvement of the father is important for the child, does not have a high regard for the parenting ability of the father. The father asserts that the mother has failed to allow contact to occur. The most extreme example of the mother’s unwillingness to facilitate the father’s involvement is her unilateral relocation to Tasmania. This occurred without the father’s knowledge. However, since her return to Canberra she has cooperated in arranging for visits between the child and the father.
However there was also evidence from the mother that she had initiated contact with the father and the father’s mother after the birth of the child, but that the father had been busy with the planning of his wedding.
The mother proposed that she was willing to facilitate contact between the father and the child even if they were to live in Tasmania. She indicated that she would be willing to encourage the child to have telephone calls with the father, send and receive mail and have internet contact, as well as physical visits where possible. It is unclear how that could feasibly occur, given the child’s young age, the father’s unwillingness to be absent from his business and the current financial circumstances of the parties.
It is clear from the mother’s proposal that she considers that the best interests of the child would be better served by the life and opportunities that could be afforded by her moving with him to Tasmania, rather than by frequent contact with his father.
The father has generally not been in a position to prevent the child’s relationship with his mother. There was one incident on 10 October 2006 where the father seemingly refused to return the child and drove to the South Coast after the mother arrived to collect the child. The child was subsequently returned to the mother’s care by the police.
Of more concern is the attitude of the father towards the mother. In the September 2007 Family Report the father commented that the mother was emotionally unstable, “sick in the head” and he is observed to “generally reject most of the mother’s issues and allegations with contempt.” The Reporter assessed that the father is “unsympathetic towards the role and function of [the mother] in [the child’s] life and the skills she brings to her parenting. He is mostly dismissive of the mother and is denigrating of her in his remarks.” This is concerning as I am not convinced that he would shield the child from these views. This is discussed somewhat below in regard to parental responsibility.

Effect of change in circumstances

Significant changes of circumstances would occur if the mother and child moved to Tasmania. These would be the loss of opportunity to spend time with the father, his grandparents and his half-brother.
.At the time of hearing, the child spends one weekend in every three with the father on the South Coast, supervised by the grandmother. This time has afforded the opportunity of the development of a more meaningful relationship with those relatives. The Family Report of March 2007 indicates that a relocation would “interrupt any processes of attachment that might be occurring…There is a risk that relocation at this time will threaten what might be reasonably described as fragile attachment and put at risk [the child’s] memories of his father given that he will be absent for extended periods.” This view was somewhat qualified in considering that if the relationship with his father is not of sufficient strength or benefit, then there would not be the same sense of loss as otherwise might have been.
The subsequent report is of the same view, commenting that “If [the child] is living in Tasmania [the father] will be a marginal figure in his life given the distance and costs along with the apparent limited financial situation of each of the parents.”
However, because of the father’s attitude to parenthood and issues of his capacity to provide for the child and his willingness to be available to care for the child, discussed below, I am unconvinced that more time spent with the father would improve the benefit for the child in the relationship with his father.
The child’s moving to Tasmania would affect the relationships with his grandparents and half-brother. Those relationships could be maintained in some way with the support and diligence of all of the adults involved. Unfortunately for the child, I do not regard support or diligence as likely to be forthcoming from anyone involved. This is an issue to be considered in the overall balance of the facts of this case.

Difficulty and expense of spending time

At present the arrangements for spending time are that the mother drives to the South Coast - a drive of approximately three and a half hours - to allow the child and father to spend time together at the grandparents’ home. The father gave evidence that his work commitments are such that he is unavailable every weekend but that his mother would be able to assist in caring for the child. This was because he is involved in selling the produce from his business at markets on weekends and these markets are held at various places around the South Coast. In the next year, the child will commence school during the week, making it more difficult for the father to spend time with him, even if the child remained in Canberra, as the only available time would be on weekends. The father gave contradictory and unconvincing evidence as to his willingness and ability to employ someone to allow him the time to spend with the child on weekends.
If the child and mother relocated to Tasmania, it will be more difficult and expensive to arrange time to be spent with the father. The mother is optimistic about her employment prosects in Tasmania as a nurse. The father gave evidence that he is also optimistic about his business prospects, which has two consequences: he will be able to afford flights to Tasmania, but he may be less flexible in regard to working hours.
There are difficulties and expense associated with the father’s spending time with the child whether the mother remains in Canberra or relocates to Tasmania. As such, the obstacle to the child spending more time with the father is not the mother’s plan to relocate but the father’s inability in the future to prioritise time with the child or to arrange his life to suit the child, rather than the reverse, which he seems to expect.

Capacity of parents and others to provide for the child

The capacity of the mother to provide for the child’s emotional and intellectual needs is sufficiently demonstrated by the past pattern of care she has provided. I found her evidence in court and the evidence of the Family Reports and of the paternal grandmother to corroborate the view that she is capable and willing to continue to provide for the child.
However, it was part of the mother’s argument that her ability to continue to do this will be compromised if she is restrained from leaving Canberra. The mother submitted, and provided evidence from her psychologist, that she would be much happier in Tasmania and that there would be less chance of her depression being exacerbated.
Her psychologist’s opinion in November 2007 was that “[i]f [the mother] is not able to relocate to Tasmania I would have concerns that her depression would become more severe and could impact on her parenting of [the child]….It is expected that if [the mother] was able to relocate to Tasmania her symptoms would abate as she would perceive she then had control over her life and her ability to parent her child.”
The mother’s happiness is primarily relevant in so far as it affects the child. She has so far been able to parent the child while living in Canberra and I believe her commitment to the child to be such that she would continue to do so regardless of where she lived. Therefore, in this case the mother’s happiness is not a factor that would of itself dominate my decision one way or another. However, in the long-term, the potential benefit to the child of the mother’s improved mental health and his protection from the risk of her deteriorated mental health are matters that I consider to be relevant to the child’s best interests. This must be weighed against the potential benefit that living close to the father might offer.
Submissions were made in regard to the mother’s future capacity to provide for the child financially. The mother submits that the move to Tasmania would allow her the opportunity to purchase a home for herself and the child. This would provide security and stability for the child. Her evidence was that she was unable to afford this in Canberra and that she did not wish to live on the South Coast. She gave evidence of friends that were willing to support her move, both financially and otherwise and of her eligibility for a low-interest loan. She indicated that she believed her employment prospects to be greater in Tasmania than in Canberra.
I am not convinced of the last of these statements. Her employment has been as a nurse. These are not occupations that are geographically related such as a miner or pilot and I did not have sufficient or convincing evidence about the certainty of her employment in Tasmania. She had not obtained an offer of employment at the time of trial and I was not made aware of difficulties in obtaining employment in Canberra.
The evidence about the support of friends and availability of housing was more compelling. These would be substantial advantages for the mother and therefore, for the child and would increase the mother’s capacity to provide for his needs.
The capacity of the father is less clear. The comments from the Family Report of March 2007 are telling: “From his conversation and from my observation of him with [the child] I suspect that [the father] is still unfamiliar with the developmental needs of young children and he at times may not be able to distinguish between his own needs and [the child’s] needs.” This analysis is consistent with my assessment of him from his evidence in court as discussed above in relation to the primary consideration.
In addition, the mother raised concerns about the father’s drug and alcohol use. The father denied any current use of marijuana but admitted that he had used it in the past. Evidence was given by Mr B, a previous tenant in the father’s home, as to the presence of marijuana and materials used to smoke marijuana in that house when she attended the house to collect her things. She was not challenged about this evidence. The mother asserted in her affidavits that she worried about the father’s use of alcohol and drugs particularly when he is stressed, asserting that it may lead to a loss of self-control.
The Independent Children’s Lawyer did not submit that the use of marijuana was a factor that affected the time spent with the child, but that a suitable order restraining his use of that substance and submission to urinalysis may be appropriate.
In general, the father was not a credible witness and was self-serving in his evidence. I am satisfied that his use of marijuana is more extensive than he admitted but agree with the submission of the Independent Children’s Lawyer that it is an issue that can be managed if necessary by appropriate court orders.
I am significantly less satisfied about the father’s capacity to care for the child. He has not demonstrated an attitude of willingness to put the child first. His use of marijuana and alcohol has the potential to operate to the detriment of the child, although it could be managed by supervision and orders as the Independent Children’s Lawyer suggests.
From the limited evidence available it seems that the paternal grandmother is able and willing to care for the child. She may continue to be involved in the father’s care of the child, which has the possibility to mitigate some of the possible risks to the child whilst in the father’s care, importantly his denigration of the mother, possible drug use and lack of child-focus. Although the relationship with and capacity of the paternal grandmother is important, it is the benefit to the child in a meaningful relationship with his parents that is the crucial part of my consideration. The grandmother’s capacity to provide some care for the child does not necessarily compensate for the father’s particular short-comings in this case. I will consider this in my final conclusion.

Maturity, sex, lifestyle, background

There are no particular considerations of cultural background or maturity that require particular consideration.

Aboriginal or Torres Strait Islander culture

This is not relevant in this case.

Attitudes to the child and to parenting

This consideration overlaps with the capacity to provide for the child and the primary consideration.

Family Violence

This has been addressed above in the primary consideration.

Possibility of further proceedings

Arrangements which would require the mother to stay in Canberra and provide regular weekends of time for the child to spend with his father (and others) are potentially more likely to produce further litigation seeking variations relating to those times than would block times at less frequent intervals associated with perhaps his living in somewhere like Tasmania. However, this is conjecture and as such in this case is not a factor which significantly affects the outcome.

Past fulfilment of parental responsibilities

The mother has failed in some respects in including the father in the parenting of the child. As mentioned above, there was a loss of contact with the father prior to the birth and sporadic contact afterwards. Her unilateral relocation also indicates a failure on her part to include the father. However she has not otherwise failed to support or care for the child. She has taken her responsibility as a parent seriously and has demonstrated a child-focussed approach.
The father has met his child support obligations as assessed, although these are not of a significant amount. He has not altered his own life in order to better fulfil his responsibilities as a parent. He has not supported the mother in her role as the primary carer. While he wishes to enjoy more time with the child, it is not likely, from past conduct or from his evidence in court that he wishes to incur more responsibility.

Primary Consideration

It is not a foregone conclusion that the child will necessarily benefit from time with a parent. It is a matter which requires evaluation in all of the circumstances.[9] As such, ordering a parent to have time with a child does not necessarily create a benefit for the child.
[9] C & G [2006] FamCA 994 at [67]ff; see also Elspeth & Peter [2006] FamCA 1385
For the reasons contained in my assessment of the additional considerations, I conclude that the benefit to the child in having a meaningful relationship with his father is the same regardless of where he lives. This is primarily because of the father’s inability to prioritise the child over his own life, the father’s work commitments make it unlikely that the child can spend substantial time with the father that would possibly enable an improvement in the relationship. The Family Report suggested that regular time has not led to an improved relationship between the child the father and because of the father’s poor attitude to supporting the mother’s role in the child’s life.

Weighing the competing proposals

There are no compelling reasons to suggest the mother and child should move to the South Coast. There are compelling reasons for the child to continue to live primarily with his mother.
The competing proposals then are between the child’s living in Canberra and seeing his father on occasional weekends (although this is limited by the father’s work commitments on weekends that involve the majority of the weekend and travelling) and the mother and child living in Tasmania.
This requires me to weigh up the benefit to the child in having more regular time with the father as opposed to the benefit to the child in relocating with his mother to Tasmania.
The benefits of the child relocating to Tasmania are that the mother may be more financially secure. There is little if any objective evidence to support that assertion other than the support of her friends and the possibility that housing is more affordable.
The second potential benefit is that if the child’s mother is happier then this is likely to have a positive effect on his own well being. In this case, I accept that there would be an improvement to the mother’s happiness. However, I am not persuaded that it would be so significant as to suggest that relocating is the only way in which she will be able to care for the child.
However, if the mother is obliged to stay in Canberra this may produce an unsatisfactory result. His mother would be unhappy and her depression potentially exacerbated and there would be little advantage to outweigh this cost. That is, the advantage of remaining in Canberra would be to be closer to the father, but as analysed above, this is unlikely to produce a substantial amount of time together.
The problems associated with the child’s moving to Tasmania include the cost of the time that he would spend with his father. The cost of an occasional airfare may not, in the end, significantly outweigh the cost of petrol associated with the present arrangements.
Neither party suggests that there isn’t some advantage for the child in having a relationship with his father. However, it is possible that a relationship across the distance could be as significant to the child as that relationship which currently exists.

Parental Responsibility

Section 61DA of the Act directs that I apply a presumption of shared parental responsibility, which is rebutted if the best interests of the child indicate that parental responsibility ought not to be shared.
The presumption does not apply where there are reasonable grounds to believe that there has been child abuse or family violence.
Allegations of child abuse and family violence have been addressed above and I find that they do not arise so as to exclude the presumption from applying. Therefore the presumption applies unless the child’s best interests indicate otherwise.
This is a case where the parties do not communicate and handovers of the child have occurred through a supervisor. The prospect of the parties’ communicating and making significant decisions together about the child’s care and development is highly unlikely. The negative effects of parental conflict upon children have been a subject of recent research.[10] In this case, the Family Report of March 2007 highlighted the potential consequence for the child: “While he has aspirations to be an effective father to [the child], [the father’s] negative value concerning [the mother] are overt and unless there is a reconsideration of these views it is more likely than not that they will be imposed on [the child] which can only be to his detriment.” In this situation, an order requiring equal shared parental responsibility would seem to increase the arena for conflict and exacerbate those effects on this child. As the Report later notes, this is likely to be the case regardless of whether the parties live close to each other or quite remotely.
[10] Jennifer McIntosh & Richard Chisholm, ‘Shared Care and Children’s Best Interests in Conflicted Separation’ (2008) 20(1) Australian Family Lawyer 1
The mother has in effect been exercising sole parental responsibility for the child since his birth. The mother has financially supported the child almost entirely without contribution from the father, save for some minor child support payments, of $21.67 per month in October 2004 and most recently of $25.33 per month in December 2007.
I am satisfied from the evidence before me of both the mother and the father and from the family consultant that the mother has exercised her parental responsibility appropriately.
The Independent Children’s Lawyer submitted that the mother have sole parental responsibility. I accept that submission. The presumption of equal shared parental responsibility is rebutted in the child’s best interests. However desirable it may be in theory for the parents to share parental responsibility, the reality is that these parents cannot. To mandate it would be an exercise in futility and not in the child’s best interests.
The rebuttal of the presumption means that I am not obligated to consider the child spending equal time, or substantial and significant time, with both parents as set out in s 65DAA. That, however, would not preclude me from considering those arrangements, were I to find that it would be in the child’s best interests. In any case, my analysis of the primary consideration militates against such an arrangement.

Conclusion

These are matters which in the end are finely balanced. I am obliged to place the child’s best interests first. The factors that I find weigh most heavily in this regard with me are his close relationship with his mother and the potential psychological and possible physical and financial benefits to the mother in relocation. While I am concerned again about the financial and physical practicability of arrangements for the child to spend time with his father if the mother should relocate, more concerning is with the father’s lack of child focus and his inability, in my opinion, to place the interests of the child ahead of his own. I am also deeply concerned about the father’s disparaging and critical analysis of the mother’s ability to look after the child in circumstances where events have shown her to be, overall, to put the child’s best interests ahead of her own.
In the circumstances, the balance of these considerations means that in my opinion, the best interests of the child dictate that I should permit his mother to relocate with him to Tasmania.
Given the time that has elapsed since the hearing of this matter (for which I sincerely apologise) I am uncertain as to the arrangements either parent would propose about the time the child might spend with his father when he and his mother are living in Tasmania.
The father’s declared intention during the course of the hearing was that he would be unable to travel both for financial and also for work reasons.
Because of the child’s age it would seem that the only reasonable orders that might be made would involve the father’s spending time with him in Tasmania during each of the school holidays. Initially such time would reasonably only involve from say 9am to 5pm on each day but after a period (perhaps a year) would be in the order of spending a week with his father within Tasmania itself.
The mother’s travel to Tasmania is her own choice and not necessarily as I have indicated during my judgment something that would promote any relationship between the child and his father. In such circumstances it is reasonable that she should contribute to the cost of the time that the child spends with his father. I have in mind that an appropriate order would be that she would pay on three times a year the economy airfares (on a pre-booked discount rate) between Canberra and Hobart for the father. He would be responsible for his accommodation during the period he was down there. In my opinion it would be appropriate if he himself paid for his own transport to Tasmania on the fourth occasion for the other school holidays and paid for his accommodation. It would also be appropriate for him to have other time with the child in Tasmania by agreement if he were prepared to travel down at other times.
It is difficult to predict how these arrangements might work out but if the child were successfully seeing his father and enjoying the time he was spending with him then when the child is a little older and able to travel by himself the sorts of arrangements that were proposed by the Independent Children’s Lawyer may become more appropriate. This would mean that the child might travel to Canberra by air and be met by his father there. This arrangement would enable him to spend some time with his father and his father’s family. (Nothing however would preclude the father’s mother travelling with him to Tasmania at his or her expense to spend time with the child in any event.)
I will allow a period of three weeks from the date of this judgment to enable each of the parents to make submissions in writing about the arrangements for the time that the child will spend with his father after his mother moves with him to Tasmania. If I receive no submissions from either parent I will make such orders as are consistent with what I have set out above as I consider reasonable on the evidence I presently have before me. If either parent seeks to have the matter re-listed before me to make oral submissions I will entertain such an application in chambers and advise the parties of the outcome.

Child Support

The orders in relation to child support sought by the mother are as follows:
a)That leave be granted under section 112 of the Child Support (Assessment) Act to depart from the administrative assessment for the child support periods from 27 April 2004 to the last day falling more than 18 months from the date of the order for departure.
b)That pursuant to section 116 and 117 Part 6A of the Child Support (Assessment) Act 1989 the administrative assessment for the previous and current child support periods, and for all child support periods until [the child’s] eighteenth birthday be departed from by increasing [the father’s] child support income amount to $100,000 (or such other amount as the court determines) on the grounds that: -
i)Section 117(2)(c)(ia); because of the income, property and financial resources of [the father]; or in the alternative
ii)Section 117(2)(c)(ib); because of his earning capacity.
c)That any amount payable by way of child support (“the lump sum amount”) pursuant to these orders be capitalised and paid forthwith into a trust account nominated by the mother on trust for both parties and paid out fortnightly to the wife in equal instalments until the end of the last relevant child support period.
d)That the lump sum payment be made to the trust account within 28 days of the date of these orders failing which the father’s property [on the South Coast] be sold and the proceeds after payment out of the usual costs associated with the sale and the mortgage be applied first to the nominated trust account to pay the full amount of the lump sum payment and the remainder to the father.
The power to make a departure order arises from s 116 of the Child Support (Assessment) Act 1989. Section 116(1)(b) provides that an application under Division 4 may be made: [if]“both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; …
Subsection (i) is satisfied. As in my opinion is sub-section (ii). Further litigation should be avoided if possible.
The father has fulfilled his obligation to pay as assessed by the Child Support Agency. These payments have been assessed using the income information provided to the Child Support Agency by the father.
The mother’s argument (in essence) about the father is that he has failed properly to make a full and frank disclosure of his financial circumstances and that he has income or financial resources or assets which should be available to enable him to make a more substantial contribution for child support.
She further argues that as a consequence of his failure to make a full and frank disclosure in these proceedings he should not be trusted (in effect) to make a full and frank disclosure in the future and that accordingly this Court should make an order that capitalises future financial contributions from the father based on a nominated income of $100,000 per annum (or such other amount as the Court determines).
In my opinion the father has failed to make a full and frank disclosure as the Act requires and as his obligation at law requires.
His evidence about his financial circumstances was highly unsatisfactory on a number of levels. He has engaged in a cash business selling produce over a number of years. He has produced no believable records in relation to his business. The evidence of Ms V is that she saw him collect upwards of $1,400 in one day. None of these matters in itself however would provide evidence (or at least reliable evidence) that the father was earning money at any particular rate at any particular time.
There was also some evidence in affidavit form that the father was growing and selling marijuana. If this were so (and I cannot on the evidence make such a finding) it is unlikely that he would declare that income to the Income Tax Commissioner. I am satisfied that the father used marijuana extensively in the past and I am satisfied on the evidence that he grew marijuana from time to time. The extent to which he had any form of commercial operation is however not satisfactorily demonstrated from the evidence of those who observed him.
In addition to evidence about income from the sale of produce, there are the peculiar circumstances relating to T Company Pty Ltd and the purchase of the property in B. The chain of control for money that went into that property is asserted by the father to have simply been, on his part, as a conduit for money from his parents. However, he failed to elucidate the steps in the various transactions.
While it would be difficult for me to conclude satisfactorily that he had an equitable or beneficial interest in the property, what is clear from the documents produced which became exhibits from the ANZ Bank is that he was able to obtain a loan for some $115,000 from the bank. Various bank files were produced which contained copies of the same document which set out his means and assets for the purposes of obtaining the loan. This document dated 10 September 2007 and signed by the father shows that he had assets at the relevant time of $1.8 million and that he was receiving rental income.[11] This document showed that he had average monthly net income of $4,635 as well as rental income of $1,950. His gross income was therefore $6,117.
[11] Exhibit M1
The father in his oral evidence claimed that these were not figures he had given to the bank and that they were, in effect, the construct of the bank manager. The father’s evidence was a little unclear about whether he signed the document when the figures were there or that the document was blank and the figures were filled in afterwards.
There is also among the exhibits a typed version of the hand-written document filled out (so it is asserted) by the bank manager. This document is also signed by the father.
I do not accept that the bank manager constructed or invented the figures that appear on the document. There is no reason for the bank manager to invent figures or to create a situation where the father obtained a loan of quite substantial proportions from the bank. It was not in the bank manager’s interest to falsify or invent figures simply to provide a loan to the father, particularly if the reality was that the bank manager knew that the father may not be able to repay the loan on his actual income. Moreover the figures provided were curiously precise. It is possible that the bank manager, in his desire to help the father, was so Machiavellian in his cunning that he invented figures that appeared to be genuine rather than rounded less believable figures. It is also feasible that the father did not sign any document with these figures on it.
It is however, significantly more likely and I find on the balance of probabilities that the figures were supplied by the father to the bank manager; that the bank manager recorded those figures and that the father verified them by his signature after they had been added to the form.
In this regard I note that the father did not call the bank manager to verify that the bank manager had completed the forms after the father had signed or that he, the bank manager, had invented the figures for the purposes of the document. While the overall evidence stops short of permitting the direct application of the rule in Jones v Dunkel[12] because it was not satisfactorily proved that the bank manager was available and could have given evidence, it can at least be presumed that what may have been corroborating evidence for the father was not available or called and this renders the conclusions I have reached above in my opinion more likely. In further support of the conclusions I have reached is the father’s general inability to explain his contradictory statements to various people about his income.
[12] (1959) 101 CLR 298
It was submitted that where a party has failed to meet his obligations to the Court to disclose his true financial situation the Court is entitled to draw an adverse inference against that party if there is material upon which some inference against the party can be drawn (Stein v Stein[13], Black v Kellner[14], Chang v Su[15])[16].
[13] (1986) FLC 91-779
[14] (1992) FLC 92-287
[15] (2002) FLC 93-117
[16] Page 4 submissions of the mother on child support

While it is frequently said that the decisions in Black v Kellner and Weir v Weir[17] permit the Court to make robust decisions about a person’s income or assets if that person has been found not to have made a full and frank disclosure in my opinion neither decision permits the Court to conclude without other evidence any particular figure for the non-disclosing person’s income or for the assets. In my opinion it is not open to a court to simply make an order for a figure satisfactory to the other party without there being some basis for concluding that the asset or income is likely to exist.
[17] (1993) FLC 92-338
In this matter for the reasons set out above I have determined that the father has failed to make the full and frank disclosure. It is difficult if not impossible for me to make any satisfactory conclusion about how much he may be earning or indeed may have earned or will earn in the future. Even if I were to accept the evidence of Ms V (and I do on this point) that he earned $1,400 in one day that does not mean that he continued to earn $1,400 on every day or will continue to earn that amount in the future.
However, in this case the father has failed to fulfil his obligations to the Court and at the same time has made disclosures and assertions to another institution (in this case the bank). These disclosures could be assumed to have been made to persuade the bank to give him some benefit then he should hardly complain if the Court were to accept his word as to his income at the time as disclosed to the bank and to further assume or infer from the fact that this was in connexion with a loan that the father expected and was likely to continue to have an income of that amount for some time.
This means, in my opinion, that it would be open to the Court to conclude that for the period of departure sought up until the time of the Court hearing at least, the father’s income was as he disclosed it to the bank. The loan was over a period of 30 years which may indicate that his income was likely to remain at that level for that length of time. This period would surpass the date of the child’s 18^th birthday.
Such a conclusion, however, falls short of permitting the Court to find that he would be likely to have that income for the rest of his working life, or perhaps more appropriately, for the time during which he has an obligation to support his son. Moreover, as it is difficult in the circumstances to conclude precisely what is the situation relating to the father’s assets, it becomes difficult if not impossible to be satisfied that there would be sufficient assets to enable a capitalisation of his future child support obligations even if it would appropriate to make determinations as far into the future as would be the case in this matter. Notwithstanding the bank loan is of 30 years duration, the difference is that the bank has its interest secured by property. Therefore the duration of the loan does not necessarily reflect the bank’s conclusion that the father is expected to have that level of income for 30 years but rather that, in any case, the bank will recover its money.
The child was born in 2004 and the father’s obligation to contribute to his support will not terminate until 2022. It is open to the parents to reach some agreement to capitalise future sums in relation to child support and if, as may be the case, the father has to liquidate some of his resources to pay what would be the arrears of child support based on what I find to be his income over the relevant period, it may be appropriate for the father to offer to negotiate and find some way of providing a figure that will ultimately satisfy his obligations for the next 14 years. I stop short of saying it would be appropriate to do so or that it would be right to do so. Nevertheless irrespective of whether or not it is right or proper and open to the parents to do it, it is not open to me to make a determination for such a long and indeterminate period during which the parties’ respective resources cannot be safely or even reasonably predicted.
However that was only one leg of the submissions on behalf of the mother. The mother also asserted the father had the capacity because of his background and education to earn more money and that his failure to do so should not be allowed to affect the proper support of his son. Partially in support of this contention is the exhibit which is the father’s curriculum vittae as produced by him. Impressive though it is, his ability to convert his impressive CV into dollars from income is not proved and I am not satisfied that on the basis of potential alone the father ought properly to be the subject of a departure order. In particular, it would be impossible to determine to what extent a departure might be possible because no evidence was given about jobs that he might obtain with his superior qualifications or the income that he would reasonably be expected to derive from such jobs.
In summary therefore it seems to me that I should find that the father had an income during the relevant period of departure up to the time of the hearing at the rate of $6,110 which is some $72,000 a year and that I should order a departure (all other matters being equal) for the period of the years 2004, 2005, 2006, 2007 and 2008. I do not believe that I have evidence relating to the year 2008/2009 that I could satisfactorily base a departure upon but I do not preclude such an order being made if other evidence is brought forward in the course of a new application for departure to the Registrar of Child Support.
In addition, nothing that I have said in this judgment precludes the mother from continuing to make departure orders from now until their son is 18 years old if she believes she is justified in doing so.
The order I make will determine the income and therefore permit the making of an amended assessment (by way of departure) by the Registrar but it seems that a reasonable assessment of what that would bring about as payment for arrears (according to the Child Support Calculator) would be in the order of $42,971. That is not a determination on my part but merely an indication of what I understand would be the effect of the order that I am about to make.
It is necessary that I should find that if I were to find grounds for departure (which I have) that I should also find that such a departure will be just and equitable. The grounds upon which I find that it would be just and equitable are as follows:
a.The father has a duty to provide for his son.
b.There is nothing extraordinary about the child’s needs that make it unjust or inequitable for the father to support him.
c.The child does not have any property, income or financial resources that would allow him to support himself.
d.The father has had for the relevant periods on my finding sufficient income and resources to have made payments appropriate for an income of $72,000 a year.
e.The father has a commitment to support himself and another child but not so as to preclude payment of child support for his son.
f.The mother has incurred all the costs of caring for their son. These are significant and include accommodation, food and medical.
g.There will be hardship caused to the child and to the mother if some child support order were not made. While the making of the order may cause some initial hardship to the father in terms of accessing the amount of money due to pay for the arrears, for the reasons above I find that he has the capacity to be able to raise such funds and that in any case, the hardship caused to the mother outweighs any possible hardship to the father. In addition, given the minor amount of child support currently paid for his other child, I do not find that there would be hardship for that child caused by this order.
It is also, in accordance with s 117(5), otherwise proper for the order for departure to be made because a failure to do so would cause a higher claim by the mother on Centrelink benefits. The payment of the child support may reduce her benefits which would have the effect of protecting the public purse which is the major basis for the “otherwise proper requirement”.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate:

Date:

[2009] FamCA 212

11 February 2009

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation