Velos and Velos
[2013] FCCA 2006
•29 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VELOS & VELOS | [2013] FCCA 2006 |
| Catchwords: FAMILY LAW – Children – relocation – child spending limited overnight time with father – relocation not supported by family report writer – child’s best interests – child to remain living in Adelaide. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC |
| B & B (1997) FLC 92-755 MRR & GRR [2010] HCA 4 |
| Applicant: | MR VELOS |
| Respondent: | MS VELOS |
| File Number: | ADC 3389 of 2007 |
| Judgment of: | Judge Kelly |
| Hearing dates: | 29 and 30 August 2013 |
| Date of Last Submission: | 9 September 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 29 November 2013 |
REPRESENTATION
| The Applicant: | In Person |
| The Respondent: | In Person |
ORDERS
The mother’s Application for sole parental responsibility of the child X born (omitted) 2003 is dismissed.
The mother’s Application to relocate X’s primary residence to Melbourne is dismissed.
X live with the mother.
X spend time with the father as follows:
(a)during school terms:
(i)each alternate weekend from the conclusion of school on Friday until 6.00pm Sunday (or 6.00pm Monday in the event of a public holiday), recommencing on the first weekend of each school term;
(ii)each intervening week from the conclusion of school on Friday until the commencement of (omitted) College tutoring on Saturday (or 11.00am if X is not attending (omitted) College tutoring), concluding at the end of first term 2014;
(iii)thereafter each intervening week from the conclusion of school Thursday until the commencement of school Friday commencing second term 2014 and recommencing on the second Thursday of each school term thereafter;
(b)for one half of each short school holiday period at times to be agreed between the parties or in default of agreement from the conclusion of school on the last day of school term until 5.00pm on the Saturday one week following;
(c)for one half of each Christmas school holiday period at times to be agreed between the parties or in default of agreement as follows:
(i)in 2013 from the conclusion of school on the last day of term until 6.00pm on the Friday one week following and for a two week period commencing at 6.00pm on the last Saturday in December 2013 and concluding at 6.00pm on the Sunday two weeks later;
(ii)for the first half of the Christmas school holiday period in 2014 and each alternate year thereafter commencing at 10.00am on the first Saturday of the holiday period and concluding at 6.00pm on the middle Saturday (or such other day as reflects the middle day of the holiday period);
(iii)for the second half of the Christmas school holiday period in 2015 and each alternate year thereafter commencing at 10.00am on the middle Saturday (or such other day as reflects the middle day of the holiday period) and concluding at 6.00pm on the day prior to the commencement of the next school term.
(d)For Easter as follows:
(i)in the event the Easter weekend falls during the April school holiday period, then X’s school holiday time will continue with no variation;
(ii)in the event the Easter weekend falls outside of the April school holiday period then X shall spend time with each parent as agreed between them and in default of agreement as follows:
A.in the mother’s care from the conclusion of school on the Thursday until 6.00pm on Easter Monday in 2014 and each alternate year thereafter;
B.in the father’s care from the conclusion of school on the Thursday until 6.00pm on Easter Monday in 2015 and each alternate year thereafter.
The father collect X from, and return her to school where handovers take place on a school day.
All other handovers (excluding Christmas Day) shall take place by the father collecting X from and returning her to the mother’s home address PROVIDED that the father does not enter upon the mother’s premises (defined as entering beyond the front fence of her home).
With respect to paragraph 3.d.i and 3.d.ii of the Orders of 13 November 2008 regarding Christmas Day arrangements, the parent who does not have the care of X on Christmas morning will collect X from the other parent’s home at 3.00pm on Christmas Day.
Each parent is at liberty to communicate with X by Skype or telephone on at least two (2) occasions during any week that X is not in that parent’s care.
Each parent shall facilitate any request from X to communicate with her other parent by Skype or telephone.
Each parent provide the other parent with at least five (5) days’ notice of any request to vary the existing care arrangements to enable X to attend a special occasion.
The parties do all things necessary to support X’s educational progress and academic development.
The parties arrange further tutoring or educational support for X as they may agree, taking into account any recommendations from the school based educational assessment to be completed in fourth term 2013.
The parties consult and reach agreement in relation to sporting or extracurricular activities and tuition arrangements that impact upon X’s time in both parents’ care.
Both parents ensure X’s attendance at sporting or extracurricular activities and tuition that fall while X is in that parent’s care.
Both parents ensure X’s ongoing attendance with her counsellor Mr J as required (or such other counsellor as they may agree from time to time).
Both parents exchange their current address and notify the other parent at least seven (7) days prior to any change in their residential address or contact telephone number.
Each parent is restrained from attending at the other parent’s home address SAVE and except for handovers as ordered by this Court or upon invitation from the other parent.
The parties attend family dispute resolution or family counselling with a counsellor or community based organisation to be agreed between them in an effort to develop and improve their co-parenting communication and co-operation, with such mediation/counselling to commence no later than 28 February 2014.
The parties attend further family dispute resolution as may be required from time to time in relation to any major long term parenting issues about which they are unable to agree including, but not limited to:
(a)any change to X’s school enrolment, including her enrolment at High School;
(b)the appropriate tutoring or educational support for X.
All orders pronounced 30 January 2012 are discharged.
The Orders of 13 November 2008 remain in force SAVE for the following paragraphs which are discharged:
(a)paragraph 3.a (with respect to school term time arrangements);
(b)paragraph 3.b and 3.c (with respect to school holiday arrangements);
(c)paragraph 3.d.iii (with respect to Easter arrangements);
(d)paragraph 4 (with respect to handovers);
(e)paragraph 6 (with respect to X’s passport being held in the Registry);
(f)paragraph 12 (with respect to telephone communication).
All proceedings are dismissed as finalised.
IT IS NOTED that publication of this judgment under the pseudonym Velos & Velos is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 3389 of 2007
| MR VELOS |
Applicant
And
| MS VELOS |
Respondent
REASONS FOR JUDGMENT
Introduction
X is ten years old. She has lived in her mother’s primary care since her parents separated in 2006 and also spends regular time in her father’s care. X’s parenting arrangements have largely been governed by Court order as her parents have been unable to resolve their parenting disputes in any other way.
The current proceedings have arisen because the mother wishes to move to live in Melbourne with X. The father argues that X should remain living in Adelaide and spend increased time in his care.
The parties’ proposals
The father is seeking orders that X remain living in Adelaide and spend time with him as follows:
a)during school terms, on alternate weekends from the conclusion of school Friday until the commencement of school Monday and from the conclusion of school on Tuesday until the commencement of school on Wednesday each week;
b)for the first half of each short school holiday period and one half of the Christmas school holidays, either on a week about basis or an alternate week/fortnight basis.
The father otherwise seeks to continue the previous orders pronounced by this Court in relation to special occasions, handovers, parental responsibility, parental communication and so on. He also seeks orders in relation to X’s co-sleeping, educational support and an order that the mother keep him informed of her residential address.
In the event X is allowed to relocate to Melbourne, the father seeks orders that she spend time in his care on alternate weekends during school terms and for one half of each school holiday period.
The mother seeks that all previous parenting orders be discharged and that the following parenting orders apply:
a)X live with her.
b)that she have sole parental responsibility for X.
c)that X is permitted to relocate to Melbourne, Victoria.
d)that X spend time with the father on occasional weekends during school terms and for one half of each school holiday period at times to be agreed between the parties.
e)that X communicate with either parent by telephone, Skype or any other social media at least twice a week when X is not already in that parent’s care.
The mother believes that Melbourne offers a much better future for her and X, but her commitment to X is such that she will remain in Adelaide, in the event X is not permitted to relocate to Melbourne. Should X remain living in Adelaide, the mother proposes that X spend time in the father’s care during school terms on alternate weekends from Friday to Sunday, together with one half of each school holiday period and on special occasions.
The mother opposes any mid-week overnight time for X, arguing that similar arrangements had been unsuccessful in earlier years.
Legal principles
In accordance with s.65D, the Court is empowered to make such parenting order as it thinks proper. When making a parenting order, the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision-making responsibilities. This section focuses on the importance of parents having a meaningful involvement in their child’s lives, upon the need to protect children from harm and upon parents fulfilling their parenting duties and obligations.
Section 60CC sets out the factors the Court must apply in determining the children’s best interests. In Goode & Goode (2006) FamCA 1346 the Full Court noted that s.60B provides the context in which the various factors in s.60CC are “examined, weighed and applied in the individual case”.[1] Although that case dealt with interim parenting issues, the Full Court’s reasons provide guidance about the legislative pathway the Court should follow in any parenting case and their comments apply equally to final hearings.
[1] Goode & Goode (2006) FamCA 1346 @ para.10
First, the Court should address the considerations set out in s.60CC. Section 60CC is divided into primary considerations and additional considerations. There are two primary considerations:
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 the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In the event these considerations are in conflict, issues regarding safety in s.60CC(2)(b) should prevail. Section 60CC(3) then sets out a range of additional considerations which must also be taken into account.
Section 61DA requires the Court to presume that it is in the child’s best interests for their parents to share parental responsibility equally, unless the presumption does not apply or is rebutted. An order for equal shared parental responsibility triggers the effect of s.65DAA, which requires the Court to consider whether it will be in the child’s best interests to spend equal time, or substantial and significant time with each parent.
As discussed by the High Court in MRR v GR[2], s.65DAA involves a two step process. First, the Court must ask whether equal time (or substantial and significant time) is in the child’s best interests. If the answer to that question is “yes”, the Court must also ask whether such an outcome is “reasonably practicable”. It is only when both questions are answered in the affirmative that the Court must consider making an order for equal time or substantial and significant time.
[2] MRR v GR [2010] HCA 4 @ para.13
Relocation disputes are particularly difficult cases to determine. Whatever decision the Court makes about the child’s best interests, one parent will inevitably feel aggrieved and distressed by the outcome.
While the child’s best interests is the Court’s primary consideration, it is not the only consideration. Weighing up the child’s right to a meaningful relationship with both parents against a parent’s right to freedom of movement is a process that requires careful analysis.[3] However, the Court’s responsibility in such cases is no different to any other parenting dispute, at the end of the day. If, after careful analysis, the child’s best interests conflict with a parent’s right to live where they choose, the Family Law Act requires that the child’s best interests should prevail.[4]
[3] B & B (1997) FLC 92-755
[4] AMS v AIF; AIF v AMS (1999) FLC 92-852, per Kirby J
The authorities have consistently stated that each party’s parenting proposal, including any proposed relocation, must be assessed against the relative legislative considerations.[5] In Morgan & Miles [2007] FamCA 1230, Boland J considered the principles applicable to determining relocation applications. Her Honour observed:
“That the child’s best interest remains the paramount, but not the sole consideration; that a parent wishing to move does not need to demonstrate compelling reasons; that a judicial officer must consider all proposals and may himself or herself be required to formulate proposals in the child’s best interests; that the child’s best interests must be weighed and balanced with the right of the proposed relocating parent’s freedom of movement”.
What the legislation now requires is a consideration of the competing proposals against the criteria in section 60CC, informed by section 60B, and if a parenting order is made or proposed to be made and the presumption of equal shared parental responsibility applies, the consequences of an order for equal shared parental responsibility must be considered”.[6]
[5] Morgan & Miles [2007] FamCA 1230; McCall & Clark (2009) FLC 93-405;
[6] Morgan & Miles supra @ paras.80-81
Two years later the Full Court said in McCall & Clark (2009) FLC 93‑405:
“… it appears to us that dealing with a parenting application involving a relocation where the presumption applies and an order is made for equal shared parental responsibility a court must consider:
(a)whether equal time (or substantial and significant time) with both parents would be in the child’s best interests;
(b) consider and weigh up an equal time (or substantial and significant time) regime against all the factors having advantages for the child in the relocation proposal, including considering the matters in s 65DAA(5); and then
(c) consider whether an order should be made for equal time (or substantial or significant time) in one location, or for the child to reside with one parent in a distant location, with such other orders as will maintain the benefit of a meaningful relationship for the child if appropriate to do so;[7]
[7] McCall & Clark, supra @ para.69
The Family Law Act emphasises the children’s right to maintain a meaningful relationship with each parent.[8] The legislation does not define what is meant by a meaningful relationship but the concept has been discussed at length in various judgments. In McCall & Clark, the Full Court endorsed the comments of Brown J in Mazorski & Albright (2007) 37 FamLR 518 where Her Honour said:
“A meaningful relationship or meaningful involvement is one which is important, significant and valuable to a child.”
Her Honour went on to note that it is a qualitative adjective, not strictly a quantitative one. That is to say, a meaningful relationship should be measured by the quality of the parent/child relationship, not simply by the number of hours or nights spent together.
[8] See ss60B(1)(a), 60CC(2)(a)
Both parties support X’s right to maintain a meaningful relationship with the other parent, but they disagree about whether it will be possible for X to maintain a meaningful relationship with her father if she moves to Melbourne.
I will address the relevant considerations set out in s.60CC in order to identify those factors that are most significant in determining X’s best interests.
Background
The parties married in (omitted) 2001 and separated in August 2006. There has been extensive litigation between the parties in the past, all of which eventually resolved by consent, albeit the pathway to these final agreements was inevitably fraught.
The original proceedings commenced with the father’s Application filed 20 June 2007 and concluded with final consent orders on 13 November 2008. Those orders provided for X to live with the mother and spend time with the father during school terms on alternate weekends from Friday through to Monday, overnight on intervening Wednesdays, for half of all school holidays and on special occasions. Various injunctions were pronounced, including an order restraining both parties from moving X’s place of residence from the Adelaide metropolitan area. Handover arrangements, overseas travel and other specific issues were also dealt with.
Both parents agree that X is a particularly sensitive child and that her emotional welfare and development has been compromised by the ongoing conflict between her parents. One of the most obvious representations of X’s emotional difficulties relates to her sleeping problems. X became reluctant to sleep over in her father’s care and handovers then became extremely problematic, to the point where the father physically restrained X on one occasion, which X found very distressing. These difficulties led to a situation where the mother withheld X from the father, out of concern for her daughter’s emotional welfare and the father then filed further proceedings, seeking to preserve his relationship with X.
Various interim orders were put in place at that time, in an attempt to provide a ‘circuit breaker’ for X. To their credit, both parties were able to reflect upon the feedback provided to them by the Family Consultant[10] and agreed to vary X’s living arrangements during the remainder of 2011. She recommenced spending day visits with the father before eventually progressing to overnight time as agreed between the parties, once they felt X was ready.
[10] S.11F Family Consultant memoranda dated 1 July 2011 and 23 November 2011
Ultimately, those proceedings were resolved by way of consent orders on 30 January 2012. Those orders provide for X to spend one night per week in the father’s care, with an additional night during school holiday periods. These orders reflected a significant reduction in X’s overnight time in her father’s care, but both parties agreed the orders were in X’s best interests, given the difficulties she was experiencing in settling to sleep away from her mother and the distress she was experiencing surrounding the transition between her parents’ households. The 2008 orders otherwise continued, with some minor variations.
X’s parenting arrangements continued throughout 2012 without major incident, but there seems to have been little appreciable improvement in communication or co-operation between the parents. The mother arranged various extracurricular activities for X and the father arranged tutoring for her on Fridays, but there is little evidence to suggest that the parties discussed any of these arrangements, let alone reached any agreement about them.
In mid 2012 the mother commenced a relationship with her partner, Mr D, who lives in Melbourne. Their relationship developed to the point where she introduced him to X and began to seriously consider a future together. In October 2012, the mother spoke to the father about the possibility that she and X might move to live in Melbourne.
The father refused to consider X moving away from Adelaide, but agreed to the mother and X travelling to Melbourne over the Christmas 2012 school holidays. However, in early January 2013 the mother informed the father that she and X were not returning from Melbourne. The mother’s actions were in clear breach of the existing parenting orders.
The father filed an urgent Application on 8 January 2013, which was listed before Mead FM (as she then was) on 10 January 2013. Her Honour ordered that X spend a block of two weeks in the father’s care and adjourned the proceedings to 25 January 2013, to allow the mother time to respond to the father’s Application.
Both parties represented themselves on 25 January 2013. Following submissions, the mother was again restrained from changing X’s primary place of residence from the Adelaide metropolitan area, pending further order of the Court. Orders were made for the continuation of the existing parenting arrangements in the event the mother returned to Adelaide but if not, the Court ordered that X reside in the mother’s care on alternate weekends and for one half of school holidays.
The mother was unable to make arrangements for her immediate return to Adelaide and accordingly X remained in the father’s primary care for a number of weeks. In March 2013 X travelled overseas with her father and stepmother for a period of 10 days, to enjoy a family holiday in (country omitted). X returned to Adelaide with her paternal grandparents while the father and his wife stayed on for a few days.
The mother eventually returned to Adelaide and resumed primary care of X on 16 March 2013, following X’s return from (country omitted). I accept that the mother returned to Adelaide as soon as she was practicably able to do so. Nonetheless, this must have been an unsettling time for X, who had never spent such a long period away from her mother’s primary care.
Following the father’s return from (country omitted), an unfortunate incident occurred at X’s school on 26 March 2013. The father was not convinced the mother had genuinely returned to live in Adelaide and decided that he should resume primary care of X. Accordingly he and his partner went to collect X early from school, intending to inform the mother once they had done so. The mother was already present at the school and what then occurred was a very unpleasant exchange between the adults, in X’s presence. X eventually left with her mother, but was clearly distressed by the incident.
The parties and X attended a Child Inclusive s.11F Child Dispute Conference on 10 April 2013, but unfortunately this intervention did not assist the parties to resolve their dispute. Accordingly at the directions hearing on 11 April 2013 the matter was listed for trial and a s.62G family report was ordered.
Both parties continue to blame each other for the difficulties regarding X’s care and welfare. They are unable to agree about the extent to which X “co‑sleeps” with one parent or the other, in order to settle at night. They each blame the other for X’s sleeping anxieties. They are unable to agree about the best way to support X with her learning difficulties. They are unable to agree about her participation in extracurricular activities. All in all, it is hardly surprising they remain unable to agree about X’s longer term living arrangements.
The hearing
The trial proceeded on 29 and 30 August 2013 and concluded with the parties presenting their final submissions on 9 September 2013. Both parties have represented themselves throughout these proceedings and continued to do so during the trial. The father was granted leave to have the assistance of his current wife as a McKenzie Friend.
The father relied upon all of the Affidavits filed by him since the commencement of these proceedings – on 8 January 2013, 21 January 2013, 1 March 2013, 8 April 2013, 30 April 2013, 29 May 2013, 14 August 2013, 15 August 2013 and 28 August 2013. He also filed Affidavits from a range of supporting witnesses but ultimately proceeded to rely only upon the Affidavit of his mother, Ms V, filed 14 August 2013.
The mother relied upon her trial Affidavit filed 27 August 2013 together with the Affidavit of her partner, Mr D, filed 23 August 2013.
Both parties attended and were cross examined, as were their supporting witnesses. The s.62G family assessment report was prepared by Ms N and was released on 23 July 2013. Ms N also gave evidence and was cross examined by both parties.
At the conclusion of the hearing I congratulated the parties on the way they had conducted themselves during the hearing. Both parties were generally polite and courteous towards each other, even during the difficult process of cross examination.
I am satisfied both parties gave their evidence honestly and to the best of their recollection. Inevitably, however, they both view past events through a prism of hostility and distrust, which undermines the reliability of their evidence.
Mr Velos was prepared to concede that his past behaviour was not always child focussed, but he believes he has gained much better insight into X’s needs and his own parental responsibilities in recent times. While any such increased insight is pleasing, the father still remained focussed on the mother’s past wrongdoings, as he saw them.
The mother was equally unable to see any capacity for improvement within her co-parenting relationship with the father. Both parties tended to blame the other parent for all past difficulties and presented as very fixed in their view of each other.
I am satisfied both supporting witnesses gave their evidence honestly and to the best of their recollection. Ms N was cross examined at some length by both parties and her evidence was of great assistance to the Court.
I will discuss the parties’ evidence within my consideration of the relevant legislative provisions. It is important for the parties to remember that the Court is not required to rule on every issue in dispute between them. Rather, my obligation is to make findings on those matters that I consider relevant to X’s future best interests, within the overall legislative framework.
I note the father sought leave to re-open the hearing and provide further evidence on a specific topic, but I have declined this request.
Section 60CC primary considerations
(a) benefit to the child of having a meaningful relationship with both parents
I am satisfied that X loves both parents and enjoys a positive relationship with each of them. Ms N confirmed this, noting that X’s interactions with her mother were “positive” and that her interactions with the father and his wife were “a delight to observe”[11].
[11] Ms N’ family report dated 19 July 2013, paras.69, 70
I conclude that it is in X’s best interests to maintain a meaningful relationship with both of her parents as she grows up.
(b) the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence
I do not consider X is at risk of being abused or neglected by either of her parents. While the mother criticises the father’s day‑to‑day parenting capacity, I do not consider the evidence presented justifies any conclusion that the father has failed to attend to X’s day‑to‑day care. Rather, I consider the mother’s evidence on this topic reflects the degree of hostility between the parties and a tendency in each parent to find fault with the other parent’s behaviour.
Both parties accuse the other parent of behaving in ways that undermine X’s psychological welfare. Both parents should reflect upon the extent to which their own behaviour may have added to X’s emotional insecurity by exposing her to their ongoing hostility and by failing to provide a secure co-parenting environment for her. Notwithstanding this comment, I do not consider X is at risk of psychological harm in either parent’s care.
The mother has alleged that the father was physically and emotionally violent towards her during their relationship. She says that she feels intimidated by the father and that his behaviour since separation has added to those difficulties. The father denied the mother’s allegations and any suggestion that he has behaved violently or aggressively towards her.
Allegations of family violence must always be taken seriously by the Court. It is well understood that children’s emotional welfare is adversely affected when they are exposed to, or live in an environment where family violence occurs. It may be that aspects of the father’s past behaviour fall within the definition of family violence[12], or that the mother experienced his behaviour as frightening or intimidating at times.
[12] Section 4, Family Law Act 1975 (as amended)
However, notwithstanding those difficulties that may have occurred during the parties’ relationship and in the early post-separation period, the parties have entered into consent orders in 2008 and again in January 2012. Those orders have ensured that X has maintained a meaningful relationship with her father over the intervening years. Both orders have allowed for the father to attend at the mother’s home for handovers, when necessary.
Given that history, I do not consider it is helpful to now re-open and undertake a detailed analysis of the parties’ past behaviour prior to the consent orders in 2008 and 2012. Clearly the parties continue to have a difficult co-parenting relationship now, whatever the original cause. That difficult relationship remains a relevant factor to take into account now, rather than events that occurred three to five years ago. I do not consider that the evidence suggests X is at risk of being exposed to family violence now, or in the future.
Section 60CC additional considerations
(a) X’s views
In the course of her interview with Ms N, X expressed some hesitation about disclosing her true views, out of concern at upsetting her father. Ms N noted that X struggled with a divided sense of loyalty and was more aligned with her mother than with her father. At the commencement of her interview, she told Ms N “please don’t tell my dad anything I say” because she was scared he would get angry and cry. Further in the interview X is reported as saying “I’ve always told everyone I speak to not to tell my dad anything” because she was afraid of how he would react.
Ms N reassured X that her parents would not become angry or sad, which allowed X to speak freely. Ms N’s report then goes on: “X stated that she had always told her father that she wanted to stay in Adelaide but in fact she wanted to live in Melbourne.”[13]
[13] Ms N's Family Assessment dated 19 July 2013, para.61
X described both of her parents as kind and went on to describe a positive relationship with her father and her stepmother Ms M. Notwithstanding this positive relationship, X continued to express some hesitation and uncertainty about her father’s behaviour. When discussing her experience of being bullied at school, X told Ms N “her father said that he would go to her school and ‘teach those kids a lesson’ and this worried her”. Further again, Ms N writes “X reported that her father was a (occupation omitted) and that “he tells me about his gun licence and I get afraid that he will shoot my mum to have me.”[14] Clearly some of X’s anxiety is focussed around her father and his previous over-reactive responses to conflict.
[14] Ibid, paras.62, 65
While X expressed a clear view in favour of moving to Melbourne with her mother, Ms N was concerned that X may have been influenced by her mother’s views on the subject, given her strong allegiance to her mother. Ms N went on:
“It was not possible for a child of X’s age to have the cognitive abilities to fully comprehend the consequences of a move for both herself individually and for her attachment with her father”.[15]
[15] Ibid, para.75
I take X’s views into account in my decision, but they are not determinative, given her age and overall level of maturity.
(b) the nature of X’s relationship with each of her parents and other significant people
X enjoys a loving and important relationship with each of her parents, albeit she is more closely aligned with her mother, in an emotional sense. The observed interaction between X and her father was relaxed and affectionate, which suggests that X’s experience of her relationship with her father is positive, despite the issues she raised during her interview.
X has clearly developed a comfortable relationship with her stepmother as well, based on Ms N’s observations. The mother gave evidence that X has also developed a close and comfortable relationship with her partner Mr D. I accept that may be the case, but their stepparent/stepdaughter relationship is still at an early stage. No doubt it will continue to develop, as they spend more time together.
X has obviously enjoyed a close relationship with her paternal grandmother in the past. Ms V Senior assisted the mother with childcare when X was younger and she gave evidence that X currently spends time with her every couple of months or so. The paternal grandmother clearly loves her granddaughter and values their relationship.
No doubt X also values her relationship with her grandmother and extended paternal family, but the father may have overstated the extent of these relationships. This is not to understate the importance of X’s sense of place within her extended paternal family, but I conclude these relationships would be maintained, whether X is living in Adelaide or in Melbourne.
(c) the extent to which each parent has taken or failed to take the opportunity to participate in parenting decisions and to spend time with or communicate with X;
(f) each parent’s capacity to provide for X’s needs, including her emotional and intellectual needs; and
(i) each parent’s attitude towards X and towards the responsibilities of parenthood
It is useful to discuss these considerations together, as they are inter-related.
I am confident both parties take their responsibilities as X’s parent very seriously. They are devoted to X’s welfare and want the best for their daughter as she grows up. There is no doubt the mother has demonstrated her capacity to meet X’s needs. She is a devoted and competent primary care giver who has been positive and proactive in supporting X’s participation in extracurricular activities or additional tuition and in helping X deal with friendship issues and bullying at school.
The existing parenting orders provide for the parties to share equally in parental responsibility. Notwithstanding those orders, it would seem that the practical reality has been that the mother has taken responsibility for making decisions in relation to X’s welfare, such as choice of school, or extracurricular activities. Clearly the mother should have been more pro-active in consulting with the father before choosing X’s school, or enrolling her in any specific activity. Nonetheless, it would seem the father has generally fallen in with the mother’s decisions, in some acknowledgement that he accepts that the mother will make decisions that are appropriate for X.
X has been frightened or worried by her father’s angry responses in the past and the father concedes that he has failed to appreciate the impact his behaviour may have upon X’s emotional welfare. An obvious example of this is the occasion in 2011 when he intervened in a handover by physically manhandling X into his car. While the father downplays the extent of this incident, the impact upon X is clear, as discussed by her when interviewed by Family Consultant Ms K in April 2013. In the course of this interview X described how “her father had dragged her out of the bedroom at her mother’s house when she refused to spend time with him at his house. She said that her father had held her down in the car, and in the scuffle smacked her in the face.”[16]
Clearly this incident still weighs in X’s mind from time to time.
[16] Family Consultant Memorandum dated 10 April 2013, para.11.
The father says he has developed greater insight into X’s emotional needs and the impact of his behaviour, but the incident at X’s school on 26 March 2013 suggests otherwise. The father knew the mother had returned to Adelaide and that X had been in her mother’s care for some 10 days. While he may have held some doubts about whether the mother had returned permanently, that in no way justified his decision to collect X early from school without the mother’s knowledge.
Upon realising the mother had already arrived at the school, Mr Velos should simply have allowed X to leave school with her mother, rather than enter into a public confrontation, which X clearly found traumatic.[17] This incident suggests the father still lacks insight into the impact his behaviour has upon X.
[17] Family Assessment report, para.66
Similarly, X’s comment that her father’s response to the bullying she experienced was to say that he would ‘teach those kids a lesson’, is hardly an example of insightful parenting.
On a more positive note, the father has demonstrated greater involvement in X’s overall welfare in the last two years. He arranged tutoring support for her in 2012 and has been more actively engaged with X’s school this year in relation to X’s learning difficulties. He recently arranged counselling for X following the Family Consultant’s feedback during the s.11F process in April 2013. While he should have consulted with the mother about these arrangements, it nonetheless indicates a more proactive approach to his parenting responsibilities.
X’s sleeping difficulties and anxiety
While both parties are devoted to X’s best interests, they continue to have limited capacity to negotiate on any given topic, as opposed to one parent simply acquiescing to the other parent’s decisions from time to time.
X’s sleeping difficulties are a case in point. Both parties have acknowledged that X has experienced significant anxiety which cause her difficulties with sleeping, to the extent that she routinely needed a parent nearby as she goes to sleep. The father blames X’s difficulties upon the mother, arguing that she continues to allow X to co-sleep with her in her own bed. He says the mother encourages X’s emotional dependence upon her and has failed to seek appropriate professional support for X.
The mother disputes this, saying X was perfectly content to sleep alone until the problems that arose for X within the father’s care in late 2010/early 2011. The mother says that the father failed to respond appropriately to X’s distress, which led to X’s anxiety escalating and to her ongoing sleeping difficulties. She rejects any suggestion that she did not seek appropriate professional advice for X at this time, pointing out that X resumed sleeping alone and eventually resumed staying overnight in her father’s care as well.
The extent to which X still requires “co‑sleeping” support from either parent was unclear. The mother says X does not sleep in her (the mother’s) bed and she does not consider X has an ongoing problem. The father points out that the mother and X were living in motel accommodation at the time of the hearing, so the mother was inevitably nearby as X went to sleep.
The father concedes that he still lies down with X while she is going to sleep. This may provide some reassurance for X, but equally it also deprives X of the opportunity to develop a greater sense of self-resilience around her bedtime routines. Nonetheless, Mr Velos is reluctant to change that pattern at present. The father is concerned that any intervention on his part will not be supported by the mother and may lead to a repeat of the difficulties that arose in 2011. Sadly, X’s sleeping difficulties have become a point of conflict between the parents rather than an opportunity for them to co‑parent positively in order to meet their daughter’s emotional needs.
Turning to the present, the father arranged counselling for X with Mr J, as recommended by Family Consultant Ms K in April 2013. X has been consulting with Mr J for approximately six months. The mother complains that the father has not forwarded Mr J’s contact details to her and the father concedes that he did not do so. Accordingly the mother has not been in contact with Mr J regarding the progress of X’s counselling.
While the Court ordered the father to provide Mr J’s contact details to the Registry (to be passed on to the family consultant), the Court failed to formally direct the father to provide Mr J’s contact details to the mother. This was clearly an oversight. Having said that, the father should have provided this information to the mother in any event.
X’s counselling seems to have focussed generally on X’s anxiety and some bullying issues at school.[18] I note in passing that X credits her mother with providing the most help in dealing with the bullying issue.[19] The father intends seeking advice from Mr J regarding X’s sleeping issues which seems a sensible approach, although it is surprising Mr J has not yet specifically addressed this as yet.
[18] Ibid, para 71
[19] Ibid, para 62
In any event, even though the mother has not yet met Mr J, she noted that X was happy to continue seeing Mr J and therefore the mother is content for the counselling to continue, albeit she commented that X’s problems with bullying at school had now resolved.
The father feels that X requires support for her anxiety and sleeping issues as well as the bullying that occurred earlier this year. It may be that her sleeping issues will settle further once this Court process is finalised and X again has some certainty around her living arrangements, but that cannot be guaranteed. Ms N also recommends further counselling for X. It is important that the mother actively supports X both through her attendance at counselling and by helping X to learn – or re-learn – how to settle to sleep without needing a parent in the room with her.
While both parents have supported X’s need for counselling from time to time, they have been singularly unable to act jointly to support their daughter in this regard. In addition, there is little evidence to suggest that either parent has considered the extent to which their hostile co-parenting relationship is also a cause of ongoing anxiety for X.
X’s learning difficulties
Turning to X’s schooling issues, both parents acknowledge that X is struggling academically. They have each sought to assist X in this regard but once again, they seem unable to communicate about the problem in order to better support their daughter. Following concerns raised by the school in 2012, the father organised tutoring that year, but no evidence was presented to indicate whether that tutoring had assisted X.
Clearly (omitted) Primary was sufficiently concerned to arrange a psycho-educational assessment for X through the Education Department at the beginning of 2013. This assessment was conducted by Ms S in March 2013 but surprisingly, Ms S’s report was not made available to the parties until August 2013.[20]
[20] (omitted) Psychological report prepared by Ms S, 12 August 2013, Annexure ‘L’ to mother’s Affidavit filed 27 August 2013
The assessment certainly raises concerns. X’s performance in reading and writing was significantly lower than her overall comprehension and reasoning results. Ms S noted that X’s profile may be consistent with a diagnosis of a specific learning disorder, but recommended that X participate in a further assessment six months later, following on from some additional literacy support.
In light of the ongoing concerns, the mother was proactive in arranging for X to attend additional tutoring through (omitted) College, and took this step well prior to receiving Ms S’s report. The father has co-operated with these arrangements even though the mother did not discuss this proposal with him prior to enrolling X.
The mother believes the (omitted) College tutoring has worked well for X, but the father disagrees. He would prefer to see X receive the school based literacy support recommended by Ms S, rather than the tutoring approach offered by (omitted) College.
Ms S recommended a further updated assessment be undertaken in fourth term 2013, which should provide some independent feedback about X’s progress. If X’s reading and literacy has not improved across the intervening months, then one would expect the parents would agree to implement the recommendations put forward by Ms S at that time.
Hopefully, the parties will be able to work more co‑operatively once they receive this updated assessment, as it will indicate whether or not X has benefitted from the (omitted) College tuition. Hopefully arrangements for this second assessment are in hand through (omitted) Primary.
Other concerns raised by the parties
The father is critical of the mother’s current living arrangements. The mother gave evidence that upon her return from Melbourne in March 2013, she stayed with friends for a few months but that accommodation was not available longer term. She tried to locate rental accommodation but it proved difficult, given that she works full time and was limited to ‘pet friendly’ options. Given these difficulties and that she needed to focus on preparing for the trial, the mother decided to move into temporary motel accommodation in July 2013.
Clearly this is not an appropriate option, in the longer term. However, I accept that the mother’s living arrangements were temporary and that she and X will move into more appropriate accommodation as soon as possible.
I am generally satisfied that both parents provide appropriately for X’s day to day care. Both parents raise a number of other criticisms, but I am not satisfied that either party’s concerns are made out, on the evidence before me. Some complaints simply reflect the parties’ different views and expectations, while other complaints are based solely on comments X has apparently made. With all due respect to the parties and X, children may unintentionally misinterpret or misreport events at times. The parties should be careful not to over react to X’s account of life in her other parent’s household.
(ca) the extent to which each parent has fulfilled, or failed to fulfil, their obligations to maintain the child
Both parties earn a relatively modest income. The mother clearly devotes all of her resources to support herself and X and has met the expenses associated with a range of extracurricular activities. At present it appears that the mother is meeting the costs associated with X's College tutoring and is also responsible for X’s medical and dental expenses, some of which were quite high.
The father pays modest child support. The mother complains that he does not make any other contribution to X’s needs although the father points out that he paid for her tutoring in 2012 and is paying for her counselling with Mr J. Clearly the poor level of communication between the parents has made it impossible for there to be any productive negotiation about these additional, unusual expenses for X. While these issues continue to be a source of conflict between the parties, the evidence is not sufficient for me to find that either parent has failed to fulfil their obligation to provide financial support for X.
(d) the likely effect of any changes in X’s circumstances, including the likely effect of any separation from either parent
This is a significant factor in my decision. If X moves to live in Melbourne and the father remains living in Adelaide then she will see her father far less frequently. Ms N was concerned that this may undermine X’s relationship with the father, as she would no longer be able to spend regular time in her father’s care.[21]
[21] Ibid, para.66
The father says that he cannot contemplate moving to live in Melbourne. While he had considered pursuing employment interstate in 2010/11, he gave evidence that he was looking at relatively short term options for one to two years, or ‘fly in/fly out’ type positions, where he could return regularly to Adelaide. He and his wife are now employed in Adelaide and all of their extended family and social networks are here.
X is presently spending only one night per week in her father’s care. At the time of trial she has not spent any extensive overnight time in her father’s care for over two years, aside from the period across January-March 2013, while her mother was in Melbourne. In that context, the mother’s proposal that X would be able to maintain a meaningful relationship with her father by spending occasional weekend and extended school holiday time with her father seems surprising, given X spends such limited time in her father’s care at present.
The mother did not address this issue to any great extent. It may be that X will adapt easily to longer school holiday time in her father’s care, but this scenario remains untested. I note that at the conclusion of the trial on 9 September 2013 the parties agreed that X would spend half of the October 2013 school holidays with her father. Hopefully these arrangements proceeded smoothly for X.
If X moves to Melbourne she will leave (omitted) Primary School, where she has attended all of her primary school years to date. The mother is confident X would adapt easily to a new school, particularly given she would be leaving behind the bullying that she has experienced at (omitted) Primary. The father believes X will benefit from remaining in a familiar school environment and argues the mother is overstating the impact of the bullying, which the school resolved relatively quickly.
I accept that X is settled at (omitted) Primary, but the reality is children sometimes change schools, for a range of different reasons. I am confident that the mother has made appropriate enquiries and would choose an appropriate and properly supportive school for X in Melbourne, if X were to move to Melbourne. I do not consider this to be a significant factor.
There remains a question mark over X’s present learning difficulties and the best way to support X in that regard, whether in Adelaide or Melbourne. However I have no doubt there are similar tutoring or school based learning supports available for X in either city.
There are clearly benefits for X in moving to Melbourne. Presently her mother works full time and X has a long day at school and after hours school care. By contrast, the mother and X would be living with Mr D and would enjoy the financial support available within that relationship, which would provide a considerably more comfortable lifestyle for X than the mother is presently able to offer to her daughter.
The mother would not need to work full time, which will give her greater flexibility. She is confident that she can obtain suitable part time employment through Mr D’s range of companies and would be able to limit her work to school hours, thereby ensuring she was available to care for X after school.
An obvious further advantage for X in moving to Melbourne is that she will be removed from the immediacy of the ongoing conflict between her parents, particularly the risk of that conflict spilling over into her school environment.
Ms N noted that X has been affected by the ongoing conflict between her parents. In the course of her interview X discussed the recent fight between her parents “in minute detail as if traumatised by the experience and reliving the trauma as she spoke. She stated that she had been shaking and scared at the time and that she knew that her dad was angry at her mother at the time.”[22] Protecting X from her anxiety about ongoing conflict between her parents would clearly be a positive outcome for her.
[22] Ms N’s family assessment report, para.66
This is not to say that relocating to Melbourne is the only way to achieve this outcome, of course. Both parents could commit to improving their co-parenting dynamic, to ensure a similar outcome for X, whether or not both parents are living in Adelaide.
Ms N concluded that ongoing counselling would assist X to build her own resilience and learn to manage her anxiety more effectively. I am confident that appropriate counselling support can be arranged for X as easily in Melbourne as in Adelaide, given that X seems to experience her counselling relationship with Mr J as enjoyable, but not overly helpful.
The father argues that all of the benefits in Melbourne are really benefits for the mother but I consider that is a short sighted interpretation of the mother’s evidence. Clearly if the mother is living in an environment that is financially more comfortable and emotionally more supportive, those benefits also flow on to X. Nonetheless, at the present time the mother’s relationship with Mr D is relatively new and certainly untested. They have not yet lived together for any extended period and to that extent, a move to Melbourne is a leap into the unknown, both for X and for the mother.
X is just ten years old. Both Ms N and Mr J describe her as an anxious child who has clearly been affected by the ongoing conflict between her parents. Given that X is not yet settled into a regime of spending multiple nights in her father’s care, I remain concerned that the potential risk to X’s relationship with her father outweighs the potential benefits available to her in Melbourne, at least at the present time.
(e) practical difficulty and expense
There are no practical difficulties with X spending time with each of her parents while they both live in Adelaide. That situation will change dramatically in the event X lives with her mother in Melbourne and her father remains living in Adelaide.
If X moves to live in Melbourne, inevitably there will be greater expense and effort involved in maintaining physical contact with her father. Realistically, the cost and inconvenience of travel between Melbourne and Adelaide would dictate that X could not reasonably travel to Adelaide more than once or twice each school term, together with school holiday visits. This would result in X spending time with her father approximately once per calendar month – for two or three nights during school term time and with a longer visit during each school holiday period.
This would be a significant change for X, who presently spends time with her father each week.
The mother also proposes that X and the father could communicate regularly by Skype and telephone. While Skype and phone calls cannot replace the parent/child intimacy created by actually spending time together, there is no doubt telecommunication can assist in maintaining a long distance relationship. The Court would expect both parents would facilitate such communication, if necessary.
(g) the maturity, sex, lifestyle and cultural background relevant to X
The mother migrated to Australia from the (country omitted) and is anxious to ensure that X grows up with an understanding and appreciation of her (country omitted) culture and heritage. She has enrolled X in (country omitted) language classes and traditional dance and choir through the (country omitted) Club in Adelaide, activities which she says X has greatly enjoyed.
The mother says a number of her (country omitted) friends, whom she has known for many years, now live in Melbourne. She points out there is a large (country omitted) community in and around (omitted) and that Mr D’s family background is also (country omitted). All of these social relationships will further support X’s participation in her (country omitted) heritage, a social network that is not available to her in Adelaide.
The father enjoys an equally rich cultural heritage. His father is (country omitted) and his mother is also (country omitted). However, he did not present any significant evidence in relation to this topic and it seems that the mother places greater emphasis upon her cultural heritage and traditions than does the father.
(l) whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is well understood that ongoing litigation can have a detrimental affect upon children. They find themselves living in a situation where their parents are distracted by the litigation process and are focussed on conflict and dispute rather than co-operation and resolution. Children often feel responsible for the conflict and feel that it is their responsibility to ‘sort it out’ for their parents, rather than being able to trust that their parents will do so.
Unfortunately, I have no confidence that any orders pronounced by the Court will guarantee an end to further litigation. On the contrary, the present litigation seems to have brought up further areas of disagreement between the parties regarding X’s counselling and educational needs.
Conclusion
Parental responsibility
The parties have enjoyed equal shared parental responsibility since the consent orders in November 2008, but the evidence suggests that they have struggled to meet their obligations under this order. There are few occasions when they have actively consulted in relation to major long term issues or seem to have made any genuine effort to come to a joint decision about long term issues affecting X’s care.[23]
[23] Family Law Act 1975, section 65DAC(3)
Despite these difficulties, I am not satisfied the mother has placed sufficient evidence before the Court to justify discharging the existing order for equal shared parental responsibility. On the contrary, I consider both parents have a great deal to offer X as she grows up. While their co-parenting relationship remains difficult, that does not automatically mean an order for sole parental responsibility is the only option. I would be more inclined to order some regular, structured co-parenting mediation for the parents, to assist their communication.
Discharging the order for equal shared parental responsibility would convey a very poor message to both parents and ultimately to X. I am particularly concerned that the mother’s current hostility towards the father may lead to a situation where she may exercise sole parental responsibility in such a way as to exclude or undermine the father’s role in X’s life. I am not suggesting the mother would do so deliberately, rather that the lack of trust and goodwill between the parties would make this outcome almost inevitable.
I conclude that the parties should continue to share parental responsibility equally for X.
Equal time, or substantial and significant time?
Notwithstanding the ongoing order for equal shared parental responsibility, I conclude that it is not in X’s best interests to spend equal time with each parent, given the parties currently have a limited capacity to co-parent their daughter, and given X’s underlying anxiety. Accordingly X should remain living in her mother’s primary care.
Section 65DAA directs the Court to consider whether X should spend substantial and significant time with each parent, if equal time is not appropriate. Both parties agree that the existing parenting arrangement should be varied, whether X remains living in Adelaide or moves to Melbourne.
The January 2012 orders provide for X to spend only one night each week in her father’s care, with an additional night during school holidays. I conclude that it will be in X’s best interests to be able to spend substantial and significant time in each parent’s care. Ms N gave evidence that X enjoys a warm relationship with her father, which will be strengthened if she is able to spend extended time in his care. Reinforcing X’s experience of her father’s parenting capacity should also help address her anxieties and assist her to become more independent around her sleeping routines.
At this stage I conclude that an extension of X’s time within the current regime of weekly visits would be most appropriate. X is still experiencing sleeping difficulties. The father is concerned that any significant change in the pattern of X’s time in his care could undermine X’s willingness to stay overnight for longer periods. I agree that it is a significant leap of faith to assume that X will adjust easily to longer school holiday time in her father’s care. In my view it is in X’s best interests to make this adjustment while maintaining regular weekly time in her father’s care and in otherwise familiar circumstances for her in Adelaide.
Obviously the distance between Adelaide and Melbourne means it is impossible for X to spend time with her father on a weekly basis. The mother argues that X can still maintain a meaningful relationship with her father while living in Melbourne, even if they spend time together less frequently. She points out that X will be able to keep in contact with her father by telephone and Skype, in addition to longer school holiday time together. While X’s weekend visits may be less frequent, the mother argues that she will enjoy the whole of the weekend with her father, rather than only one night.
The mother urges the Court to accept that the positive benefits associated with a move to Melbourne outweigh the negative impact of X spending less frequent time with her father.
I accept that X’s day to day care will be promoted equally well, whether she is living in Adelaide or Melbourne. There are appropriate extracurricular activities and tuition opportunities available for X in either city. The mother will continue to support X’s connection with her (country omitted) heritage, albeit this may be easier in Melbourne, given the mother’s social network there and a larger (country omitted) community generally. In addition, X’s financial circumstances will certainly improve in the event she and the mother move to live with Mr D in Melbourne. The mother would not need to work full time and would therefore be more available to X outside of school hours.
Against those positive benefits for X in relocating to live in Melbourne, must be weighed the impact upon her relationship with her father and extended paternal family. It is difficult to see how X can maintain a meaningful relationship with her father between Adelaide and Melbourne, unless she feels comfortable staying overnight in his care for extended periods, especially during school holidays.
This remains a relatively untested reality for X. While X has recently spent a week in her father’s care during the October 2013 school holidays, she has not spent regular, extended periods of time in her father’s care for nearly two years. Given X’s anxious disposition and her sleeping difficulties, the Court cannot be confident that X will make this transition easily, especially if this occurs at the same time that she is moving to a new city and adapting to a new school, new friendships and a new stepfather-figure in Mr D.
Taking into account all of the matters discussed in these Reasons, I cannot be satisfied that it is in X’s best interests that she move to live in Melbourne. X presently enjoys a strong and meaningful relationship with both parents and I am concerned that her relationship with her father may be jeopardised if she moves away from Adelaide at this time.
Reasonable practicability
In accordance with s.65DAA(5), the Court must also be satisfied that it is reasonably practicable for the mother and X to remain living in Adelaide. In that regard, I note that the mother has lived in Adelaide since 2001. She has stable employment here and until recently has had no difficulty in arranging suitable accommodation. Given the mother is employed and has a stable tenancy record, I am confident she will be able to arrange appropriate accommodation again, if she has not already done so.
I conclude that it is reasonably practicable for the mother and X to remain living in Adelaide.
While the mother feels isolated in Adelaide she does have some friends that she can call on for support. I accept that Mr D is another important source of emotional support for the mother, but their relationship is relatively new. The mother met Mr D in mid 2012. X first met Mr D in November 2012. Obviously no one can predict the long term viability of a new relationship, but it would have been more reassuring to know that the mother’s relationship with Mr D had been ongoing for a longer period before deciding to move in together in January 2013.
While I do not doubt the genuine love and affection between the mother and Mr D, neither of them demonstrated any great insight into issues that may arise within their relationship in the future. Mr D has never been in a step parent role. The cost and effort involved in X travelling to and from Adelaide will be considerable. I appreciate it would be difficult for the mother and Mr D to be planning their future, given the uncertainty and stress surrounding these Court proceedings. However, the circumstances in which events unfolded in January 2013 do little to reassure me that the mother and Mr D have considered their future together calmly and carefully.
I appreciate this outcome will be extremely disappointing for the mother. She does not see her future here and may blame the father for the fact that she is now forced to remain living in Adelaide. I can only urge the mother to accept that the Court has focussed on X’s best interests, based on the available evidence. She should not allow her disappointment to impact upon X, or upon X’s relationship with her father. X can only benefit by continuing to develop a secure and settled relationship with her father, such that she feels comfortable spending extended time in his care.
Managing an interstate relationship is difficult and requires a great deal of effort. The question is whether those challenges should be faced by X, as she tries to maintain a long distance relationship with her father, or by the mother and Mr D. Clearly a long distance relationship will not provide the same level of emotional support and security that she or Mr D would hope for, but as adults, the mother and Mr D are better equipped to deal with these challenges than is ten year old X.
This is not to say that X’s circumstances may not change in the future. This decision may have been different if the mother’s relationship with Mr D was more longstanding, or if X was older, or if the Court was confident of X’s capacity to spend extended overnight time in her father’s care. However, none of these circumstances exist at present.
X’s future parenting arrangements
Having determined that it is in X’s best interests to remain living in Adelaide, the Court must determine what specific parenting arrangements should apply. Both parents now agree that X should spend extended holiday time in her father’s care. Hopefully this will prove to be an easy transition for X, given that both parents support this change and that the stress surrounding these Court proceedings will have finished.
The mother proposes that X spend time with her father on alternate weekends during school terms, however X is used to seeing her father each week and this may be too long a gap between visits. Equally, the father’s proposal for four nights per fortnight may be too big a change for X.
I conclude that a regime where X spends overnight time in her father’s care each week should continue but that this time be extended to two nights on alternate weekends (or longer, if a public holiday). The longer overnight stays on alternate weekends and during the school holidays will enable X to develop a greater sense of security in her father’s care and hopefully, will assist her to resolve her sleeping difficulties.
I agree that midweek overnight time is inappropriate in the short term, while X makes the adjustment to full weekends and longer school holiday periods in her father’s care. In the longer term, I do not see any real difficulty in eventually introducing a midweek overnight stay in alternate weeks. I will structure the orders such that X has the opportunity to adjust to longer weekend and school holiday time, before varying the current alternate Friday overnight to a midweek night, commencing in second term 2014.
I am satisfied these parenting arrangements are in X’s best interests and are also reasonably practicable, given that X will remain living in Adelaide.
Other parenting issues
Regarding the remaining issues in dispute, I will order that the parties arrange further tutoring or educational support for X as they may agree, taking into account any recommendations from the next school based psycho-educational assessment to be completed in Term 4. Both parties should also support X’s ongoing counselling, which will provide support for her as she adjusts to the new care arrangements.
The mother is opposed to releasing her residential address to the father. Clearly the father knew the mother’s previous address, given that the January 2012 orders provided for handovers to take place at the mother’s home. There is no evidence suggesting any problems have occurred since then.
While I appreciate the mother may have been reluctant to release her address whilst staying with friends, I am not satisfied that there is any basis to withhold X’s address from either parent, provided appropriate safeguards are in place.
Otherwise I intend discharging the orders of 30 January 2012 but will repeat those orders that are still relevant, regarding Christmas Day handovers, five days’ notice of any request to vary arrangements and X’s extracurricular activities. The earlier 2008 orders will remain in effect, save as now varied or discharged by these orders.
I now make orders as published at the commencement of these Reasons.
I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 29 November 2013
[9] Mazorski & Albright (2007) 37 FamLR 518 @ para.26
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