W and P - [2007] FMCAfam 105

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & P

[2007] FMCAfam 105

FAMILY LAW – Application by mother to relocate to Tasmania with child – strongly opposed by father seeking shared parenting regime – consideration of Goode v Goode [2006] FamCA 1346 – mother permitted to relocate – child to spend time with father.

Family Law Act 1975, ss.4, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(c), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(j), 60CC(3)(l), 61DA, 61DA(1), 61DA(2)(b), 61DB
Family Law Amendment (Shared Parental Responsibility) Act 2006

Goode v Goode [2006] FamCA 1346
A v A [2000] FamCA 382
U v U [2002] 211 CLR 238
M & S (formerly E) [2006] FamCA 1408

Applicant:

GKW

Respondent:

WAP

File number:

MLM 5984 of 2006

Judgment of:

Burchardt FM

Hearing date:

18, 19 and 21 December 2006

Date of last submission:

21 December 2006

Delivered at:

Melbourne

Delivered on:

7 March 2007

REPRESENTATION

Counsel for the Applicant:

Ms Bender

Solicitors for the Applicant:

Kelly Rajak, Victoria Legal Aid

The Respondent:

In person

Counsel for the Independent Children's Lawyer:

Ms Hooper

Solicitors for the Independent Children's Lawyer:

MacGregor Solicitors

THE COURT ORDERS THAT:

The Applicant have sole parental responsibility for the child of the relationship NWAP born 17 June 2004 (“the Child”).
The child live with the mother but spend time with and communicate with the father as provided in these orders.
The mother have permission to relocate to Tasmania and reside there with the child.
The father communicate with the child by telephone at any reasonable time.
Pending the child’s relocation to the State of Tasmania, and/or or such times that the father is resident in the same State as the child, the father spend time with him:
(i)from 6.00 pm Friday until 6.00 pm Sunday to extend to 6.00 pm Monday if the father has a rostered day off, or, upon the child commencing school, the Monday is a non school day, during school term, in each alternate week.
The father spend time with and communicate with the child:
(i)every second weekend from Friday as soon as practicable after the child arrives at Tullamarine Airport on the Rex Airlines flight scheduled to arrive at 5.50 pm to Sunday, returning on the Rex Airlines flight scheduled to depart at 5.00 pm;
(ii)
changeover is to be achieved by the mother delivering the child to the father at his place of residence at the commencement on Fridays and for the child to be delivered to the mother at Tullamarine Airport on the Sundays,

at a time enabling him to travel on the Rex Airlines flight scheduled to depart at 5.00 pm;
(iii)
from Friday as soon as practicable after the child arrives at Tullamarine Airport on the Rex Airlines flight scheduled to arrive at 5.50 pm until Sunday at a time enabling him

to travel on the Rex Airlines flight scheduled to depart at 5.00 pm on the Father’s Day weekend if the child is not otherwise in Melbourne pursuant to these orders;
(iv)from a time to be determined on 22 December 2007 until 6.00 pm on Boxing Day in 2007;
(v)for a period of five days on summer vacation in 2007 to 2008 as agreed between the parties and failing agreement from 12 January 2008;
(vi)for one week in each of the Tasmanian Kindergarten term holidays in 2008 as agreed between the parties and failing agreement the first week commencing on the first Saturday of the holidays and concluding the second Saturday of the holidays with collection and return to occur at times to be determined;
(vii)from 12 noon Boxing Day 2008 until a time to be determined on 30 December 2008;
(viii)for one week in the 2008 to 2009 long summer vacation as agreed between the parties and failing agreement from 12 January 2009;
(ix)the weekend time be suspended during Kindergarten holidays and recommence on the first weekend of term;
(x)at such other times as the parties agree.
The Applicant is to ensure that the Respondent is authorised in relation to any Crèche, Kindergarten or School that the child attends so as to discuss the child’s progress and also obtain at the father’s expense copies of any information that is usually distributed to parents.
The father be at liberty to attend any School events including but not limited to any parent teacher interviews, school concerts and sporting days.
The mother ensures that the father is authorised in relation to the child’s medical practitioner so as to discuss information regarding the child’s health.
Both the Applicant and the Respondent shall keep the other parent informed at times of their current contact details and residential address.
Both the Applicant and the Respondent shall immediately notify the other parent in the event of any medical emergency, hospitalisation or serious illness involving the child whilst the child is in their care.
The Applicant and the Respondent both be restrained from denigrating the other parent within the hearing or the presence of the child and from allowing the child to be exposed to other persons who are doing so.
The Applicant and the Respondent are both restrained from consuming any illicit substances, or alcohol to excess, 24 hours prior to or during any period of time that the child is in their care.
The Applicant is to establish a communications book and she will ensure that it contains information about the child’s routine, any medication the child is taking and other matters pertaining to the child’s care welfare and development prior to the child spending time with the father and both parties shall use the book to exchange parental information about the child.
That Applicant and the Respondent shall communicate by SMS, email or telephone regarding flight details and travel arrangements for the child. The Applicant shall accompany the child on all flights.
The cost of the child’s air tickets to and from Melbourne pursuant to these orders be paid half by the Applicant and half by the Respondent.
These orders remain in effect for two years, and thereafter until further order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 5984 of 2006

GKW

Applicant

And

WAP

Respondent

REASONS FOR JUDGMENT

This difficult and troubling matter concerns the future of NWAP (“the child”) who was born on 17 June 2004. The child's father, the Respondent, was born on 2 May 1965 and his mother, the Applicant, was born on 2 February 1981. The parents never married, but commenced a relationship in or about May 2004, shortly before the child's birth. According to affidavit material filed by the Applicant and not contradicted by the Respondent, the child was conceived during a prior period in which the parties were in a sexual relationship but did not consider themselves to be boyfriend and girlfriend. It would appear that the parties first met a few years before that when the Respondent used to drink at a bar at which the Applicant worked. The Applicant moved into the Respondent's home as a housemate in 2003.
Both parties have had a somewhat troubled life. The Applicant, according to her own account, started using heroin in about 2000 and became addicted. The Applicant deposed in her affidavit filed on 10 June 2006 that her then boyfriend committed suicide at about the time of her addiction. She has deposed that she moved to Sydney to try to get off heroin but that things got worse. In March 2003, the Applicant went on the buprenorphine program but came off it in April 2004 whilst she was pregnant. She deposed that she thereafter remained free of heroin use for two years. She asserts in her affidavit that she lapsed again in or about May 2006 at a time when the child had been removed from her care, at a time when she and the Respondent were "fighting constantly and I felt very stressed".
It would appear from the Respondent's affidavit filed on 20 July 2006 that he has used marijuana daily since his teenage years, and that he used speed or ecstasy on a regular basis until the parties separated on 3 July 2006.
It appears that the parties moved from Melbourne to Darwin in 2004 where they lived for some time and then spent six months in Queensland before returning to Melbourne. It would appear that despite a long-standing back problem, the Respondent has been able to support himself in the building industry for many years, and from the tenor of his evidence he predominantly works in a supervisory capacity. The Applicant by contrast is unskilled, although she has expressed a desire at an appropriate time to enter into further study with a view to improving her qualifications and her capacity to obtain employment. She wishes at the moment, however, to devote herself to being the primary caregiver for the child.
Ultimately, the issues in this case boil down to a very significant primary issue, namely whether or not the Applicant should be permitted to relocate with the child to live in Tasmania with her parents. While there are a number of matters that require to be considered in the event that such application were to be granted, such as the arrangements for the child to spend time with and communicate with his father, and there are also obviously issues as to who should be the primary carer if the application is not granted, and in any event as to what arrangements should subsist for any non-custodial parent to see the child, it is this first issue that occupied the majority of the proceeding and which requires to be addressed first.
Each of the parties sought that they be the primary caregiver for the child and asserted that they had in fact been the primary caregiver during the period of cohabitation between the parties from 2004 until July 2006.
In her affidavit filed on 10 July 2006, the Applicant asserted that she had been the child's primary caregiver since birth. At that time the parties were in very stressful circumstances arising out of their very recent separation. Following some to-ing and fro-ing, the child was in his mother's care.
In his affidavit filed on 20 July 2006, the Respondent did not directly contradict the Applicant's assertion but did make a number of criticisms of the Applicant as a mother and carer. He asserted that on occasions the Applicant would not get out of bed before 10.00 am and would still be asleep when the Respondent came home for morning tea, with the son playing by himself. He asserted that the Applicant gave the child little variety in his meals and rarely bathed him, brushed his teeth in the evening or put him to bed. The Respondent said he had always done these things. He also said that following an accident in April 2006 he had had three months off work and that during this time he was the full-time caregiver for his son.
In her further affidavit filed on 14 August 2006, the Applicant denied the assertions made by the Respondent as to her care of the child, save that she admitted (paragraph 14) in the three months prior to August she had been working four to six evenings a week and that accordingly the Respondent put the child to bed during this time. She nonetheless repeated her assertion that she had been the primary caregiver for the child since his birth.
In his further affidavit filed on 15 November 2006, the Respondent simply denied what the Applicant had said in her second affidavit and stated baldly, "I was the primary caregiver from April 2006 until June 2006."
It should be noted that the child has lived with his mother pursuant to interim orders made by this Court on 25 July 2006, but I note the terms of s.61DB of the Family Law Act 1975 (“the Act”).
It should be noted that in her final affidavit filed on 28 November 2006, the Applicant makes a number of criticisms of the Respondent's manner of caring for the child when he is in his care, but these criticisms were not pressed in cross-examination.
It should, however, be noted that in an interview with the family consultant, Mr Neu, the Applicant advised that although she had remained at home on a full-time basis for the first three months of the child's life, thereafter she worked in a bar from 6.00 pm to either 5.00 am or 12.00 pm to bring in additional money from September 2004 until May 2005. It appears that the Respondent cared for the child whilst this was the case and that the Applicant cared for the child while his father worked.
In all the circumstances it seems to me that Mr Neu is correct and that both parents have had a substantial role in caring for the child since his birth, but when one bears in mind that the care provided by the Respondent was never more than roughly equal with that provided by the Applicant even when she was working, it seems more probable than otherwise that it is his mother who has provided the greatest degree of care to him during his short life.
I spent some time on this aspect of the controversy because the parties themselves gave it such emphasis in their affidavit evidence. It was of course by no means the only relevant matter of fact that was in dispute. A particularly vivid dispute arose over the use of heroin by the Applicant and the use of other drugs by both parties, and more particularly by the Respondent. In her first affidavit the Applicant deposed, as I have detailed earlier, that she had been a drug addict from 2000 until 2003 when she went on to do the buprenorphine program. She admitted in paragraph 14 of that affidavit that she had used heroin on one occasion again in around May 2006.
The Applicant went on to describe the Respondent as a drug user who used speed regularly, at least once a week, and smoked marijuana daily. She also deposed that the Respondent uses ecstasy on a weekly basis. She deposed in paragraph 15 that it would be appropriate for the Respondent to provide drug screens if the child was to spend time with him.
In the Respondent's affidavit dated 20 July 2006, the Respondent asserted relevantly that the Applicant:
“… is a drug addict and takes heroin. She is not prepared to admit she has an addiction to heroin and even lied to me during her pregnancy to say she was not on drugs.”
He went on to assert that the Applicant still associates with friends who use drugs. The Respondent also asserted that the Applicant had admitted to him of using heroin whilst she was pregnant, indeed this being the occasion that caused him to lose his temper and smash up her car.
He has, as I recited earlier, admitted continuing use of marijuana on a daily basis, but said he had not used speed or ecstasy since

3 July 2006.
In her affidavit dated 11 August 2006, the Applicant at paragraph 10 repeated her admission of past drug addiction. She went on to say, however, that she had voluntarily undertaken drug screens on 11 July 2006 and on 9 August 2006 which were clear. She also attested at paragraph 13 that she was prepared to continue undertaking random drug screens and was happy to do as many as necessary. She deposed further that she was attending counselling in relation to her drug problems and that she proposed to continue to do so.
She repeated that the Respondent had used speed, ecstasy and marijuana during her relationship with him and deposed that the Respondent would offer her drugs when he himself used.
In his 14 November 2006 affidavit, the Respondent repeated his assertion that the Applicant was still addicted to heroin but did not otherwise elaborate.
In her 27 November 2006 affidavit, the Applicant freely admitted an episode of heroin use during her pregnancy, of which she remained extremely ashamed. She, however, repeated that she had not thereafter used drugs until May 2006 when she did so on two occasions.
At paragraphs 51 and 52 of her affidavit, the Applicant detailed her ongoing endeavours to remain clear of heroin use and in particular her provision of drug screens and the counselling she was receiving through the local Shire Youth Service. It is also clear that the Applicant has actively addressed the prospect of ongoing counselling in the event that she relocates to Tasmania.
She deposed that her best prospects of staying clean indefinitely were in Tasmania where she would have the support of her parents and extended family and would be free of the negative aspects of the Respondent's behaviour towards her.
Although the Applicant went on in that affidavit to make observations about the Respondent's use of drugs, they do not take the matter any further in an evidentiary way.
From answers given in cross‑examination, it is clear that the Applicant is going to make every endeavour of which she is able to remain free from heroin and other unlawful substances. Wherever she may endeavour to do this, it will plainly be a major challenge for her. It is clear on any view that her use of heroin since 2003 has been fleeting and has occurred under circumstances of particular stress. She has voluntarily complied with requests for drug screening which counsel for the Independent Children's Lawyer submits shows that she has been clean of drugs since July of this year. Exhibit A2 is to this effect.
I am prepared to accept the submissions made by counsel for the Applicant and the Independent Children’s Lawyer that the Applicant has been drug‑free for this period. That was her evidence, and it was not shaken in cross-examination. The Applicant has made transparent endeavours to stay off heroin, and put measures in place to assist her through counselling to do so.
The Respondent's attitude towards drug-taking is rather more opaque. It is fair to say that the Respondent has always regarded, and in truth continues to regard, his own use of speed, ecstasy and marijuana as unobjectionable because they are purely recreational drugs and do not involve injection. He acknowledged to Mr Neu that the outrage he expresses in respect of the Applicant's use of heroin is to an extent hypocritical, but nonetheless that was his judgment.
The Respondent was adamant that he had not used any drugs since separation, and asserted that this was because he had come to a realisation that such abstinence was necessary in order for him to have any relationship with the child. Nonetheless, and the transcript shows this, he persisted in the attitude at page 105 line 31, "I have never admitted that I was a drug addict, I only used recreationally."
While the Respondent said on more than one occasion that he now appreciated in the light of these proceedings that his use of these illicit drugs was inappropriate, I think that taken overall, his evidence can be fairly summarised as being that he has ceased to use illicit drugs only because of the impact such usage might have upon his capacity to see the child and not from any inherent understanding that his drug use might be inappropriate.
I note further that there are some aspects of the Respondent's evidence about his alleged cessation of drug use that are of concern. Mr Neu recorded following his interview with the Respondent that the Respondent had indicated to Mr Neu that he had had three drug screens and that all three were clear of drugs. This was in fact not the case. The first two showed continuing cannabis use. The second of those drug tests took place on 6 September 2006, 10 weeks after he had allegedly ceased to use.
While the Respondent explained the exchange with Mr Neu on the basis that it was a misunderstanding and the drug test in September on the basis that the cannabis might have remained in his system until that time and he repeated strongly his denial that he had used any cannabis since 3 July 2006, I am left with some doubt, although I am not able to form any positive view, as to the Respondent's ongoing attitude towards drug-taking. He asserted at page 137 at 21, "I have never had a drug problem."
Additionally, I note that the Respondent did not take a drug screen when requested by the Independent Children's Lawyer to do so in December 2006. The Respondent explained this by a denial that he had received the request. I am prepared to, as it were, give the Respondent the benefit of the doubt in this regard, and therefore draw no negative inference from the failure to take the drug test as requested. What is, however, of concern is the fact that the Respondent continues to believe that he has no drug problem, and has not volunteered (completely unlike the Applicant) to take drug tests, albeit that he did indicate to the Court that he would be prepared to do so if ordered.

These issues, as to who had been the primary carer for the child and the parties' respective drug use and attitude towards drugs, occupied much of the time spent in evidence. There were of course a number of other issues examined.
It is appropriate, however, in my view to turn at this point to the recent authoritative judgment of the Full Court of the Family Court of Australia in the case of Goode v Goode [2006] FamCA 1346 (“Goode”), a decision given by Bryant CJ, Finn and Boland JJ on 15 December 2006. In my respectful view, that judgment provides this Court with authoritative guidance as to how this Court, and indeed the Family Court of Australia, should proceed in cases involving children such as this. Although Goode was a case involving an appeal in relation to interim orders, it is in my respectful view clear that the Court intended its observations to apply to final hearings also (bearing in mind the necessary differences between the two sorts of hearings).
The Court summarised the amendments to part VII of the Family Law Act 1975 in paragraph 65 and at paragraphs 81 to 82 set out how interim proceedings (and by implication final proceedings, subject, as I have indicated, to relevant adaptation) should be conducted.
One matter that both counsel for the Applicant and for the Independent Children's Lawyer raised but did not address in any detail was the extent to which former authorities such as A v A [2000] FamCA 382 and U v U [2002] 211 CLR 238 were still wholly applicable in the light of Goode. This is not a criticism of counsel. The decision of the Full Court was handed down less than one week before they made their submissions and there is of course as yet no authority, at least of which I am aware, on this question.
It is of course clear that the precise way in which Goode may be said to operate on earlier authority about relocation will necessarily have to await the decision of a superior Court. In my respectful view, however, I should endeavour to follow what the Full Court described in Goode as "the legislative pathway" (Goode at 81) as set out in paragraph 82 of that decision.

Identifying the competing proposals of the parties

The proposal of the Applicant is that she be permitted to relocate to Tasmania to live in the first instance with her parents and of course taking the child with her. Her proposals as to the child spending time with and communicating with his father are set out in the written proposals put forward on the final day of hearing. There are alternative proposals put by the Applicant in the event that she is not permitted to relocate.
The Respondent has provided a handwritten schedule of final orders on the footing that the child live with him which provide for the Applicant to have time with the child structured around the Respondent's anticipated working pattern. In the alternative, the Respondent seeks a regime whereby the child live with him, once again almost half a year, notwithstanding that he lives with his mother primarily. Those proposed final orders are also on the Court file.
The orders sought by the Independent Children's Lawyer are that the child live with his mother in Tasmania but spend time with his father in the manner indicated in the minutes of proposed orders sought by the Independent Children's Lawyer. There is an alternative posited in the Independent Children's Lawyer's proposed orders that governs the possibility that the Applicant not be permitted to relocate to Tasmania.
The Applicant has proposed that there be equal shared parental responsibility. The Respondent’s response sought that he have sole parental responsibility.

Identifying the issues in dispute

I have already substantially done this. There are three issues. The first is whether or not the child lives primarily with his mother or his father. The second is whether the mother be permitted, in the event that she is the primary caregiver, to relocate to Tasmania. The third is the arrangements for the non-custodial parent (if I may use such a term) to spend time with and communicate with the child.

Agreed or uncontested relevant facts

These have already been dealt with.

Section 60CC matters

Section 60CC(2)(a)

There is no question that it is likely to be to the benefit of the child that he have a meaningful relationship with both of his parents. This is so obvious that it is not necessary to further elaborate.

Section 60CC(2)(b)

This is not so easy a matter. Both parties have made allegations of neglect of the child which I think are at least in part made out. It is common cause that both parents continued to use drugs during the first two years of the child's life and this must of itself have exposed him to the risk of neglect, even if not of abuse. Nonetheless, I have dealt above with the question of the parties' ongoing problems with drugs out of which this question of neglect primarily arose.
As to family violence, I accept the submissions of the Independent Children's Lawyer that the Respondent has conducted himself in a fashion that might reasonably be said to expose the child to the risk of family violence. It should be noted that family violence is not defined by s.4 of the Act to be limited to actual assaults. There is no doubt that the conduct of the Respondent in smashing up the Applicant's car and in sending her the text messages, being Exhibit A to the Applicant’s

27 November 2006 affidavit, to which I will return later in this judgment, has exposed the child to the risk of family violence. Albeit that the child himself is of the tenderest years, the fact is that the Respondent's conduct towards the Applicant has in the past exposed her to family violence within the terms of the extended definition of family violence in s.4 of the Act.

Section 60CC(3) additional considerations

A number of the subparagraphs of s.60CC(3) are of no relevance or have already been dealt with.
There is no doubt, however (s.60CC(3)(c)) that the mother is committed to facilitating and encouraging a close and continuing relationship between the child and his father. The transcript at page 75 is perfectly clear. While the Applicant self-evidently does not have a wholly beneficent view of the Respondent, the tenor of her answers given generally in this regard convince me that she has a proper and appropriate regard to these matters.
By way of regrettable contrast, the same cannot be said, as the Independent Children's Lawyer submitted, of the father. That this is so is apparent from his affidavit material and from the evidence he gave to the Court. Nowhere, regrettably, is this better illustrated than in the text messages sent by the Respondent to the Applicant from 13 July 2006 until 21 July 2006, which are Exhibit A to the Applicant's affidavit sworn on 27 November 2006, and in the answers that the Respondent gave in cross-examination about those text messages.
The text messages show, inter alia, the very poor regard in which the Respondent holds the Applicant both as an individual and as a mother. They assert a positive intention on the part of the Respondent to bring home to the child the fact that his mother has been addicted to drugs. The tenor of these messages (to which I shall again return later), apart from being offensive, is consistent with the evidence given by the Respondent, who expressed in the ultimate no regret for them, which I think can be fairly characterised as expressing the lowest possible opinion of the Applicant. Taking this material and the answers given by the Respondent in his evidence and in his affidavit material, I have no hesitation accepting the submissions both by the Applicant's counsel and by counsel for the Independent Children's Lawyer that this will "exemplify his attitude and his contempt of the mother" (page 188 at 41).
While the Respondent sought to explain his text messages as having been written in understandable anger, this does not qualify the force of the preceding remarks. Taking the evidence as a whole, I have no doubt that the Respondent would struggle, notwithstanding his appropriate conduct in passing the child to his mother at the time of the interview with Mr Neu, in properly facilitating the child's relationship with his mother. To the contrary, I think there is every prospect that the Respondent would seek to denigrate the mother at every opportunity. His outrage at the mother's taking of drugs both, on one occasion, during the child's gestation and in the period in mid-2006 had a stentorian ring that I think time will be most unlikely to dissipate.

The likely effect of any changes in the child's circumstances (s.60CC(3)(d))

Self-evidently, any change in the child's circumstances is likely to be, to a greater or lesser extent, distressing to him. If he were to be transferred from the primary care of his mother to his father, that is likely to stress him, and by the same token, if he transfers to Tasmania and sees less of his father, that is also likely to cause distress. The extent of such distress is, however, impossible to establish in advance of the event, and I note the answer of Mr Neu at page 169 in cross‑examination:
“In my view, if the court decided, hypothetically, that would relocate and would go through the routine of travel, however often it would occur, initially I would expect a child of this age to have some degree of uncomfortableness and stress as they get through it, but most children of a variety of ages just accommodate what is occurring in their life, and this is, shall we say, their lot, then they would just go along with it I would imagine.”
Thus, while it is quite clear that any orders that the Court may make in this instance are likely to involve some measure of discomfiture to the child, it is in my view more likely than otherwise that the child will in the ultimate, after what may well be a somewhat difficult introductory period, be able to accommodate any change that the Court may order.

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 (s.60CC(3)(e))

There is no doubt that should the child relocate to Tasmania, this will engender a degree of difficulty in continuing close contact with the Respondent. That is so because of the practicalities of the matter and because of its expense. It is not possible in advance of the event to calibrate the extent to which these difficulties may affect the child's right to maintain personal relations and direct contact with his father in the event that he moves to Tasmania. It is reasonable to presuppose that there will on any view be a measure of such dislocation.

The capacity of each of the child's parents and any other person to provide for the needs of the child (s.60CC(3)(f))

There is no doubt that each of the parents is able, at least to an acceptable degree, to provide for the child's needs. I reject the criticisms made by each of the parents of the other's parenting skills. From the report of Mr Neu it is plain that whatever their skills, the child has a close relationship with them both.
However, it should be noted that the maternal grandparents both have a capacity to contribute to the needs of the child and are likely to do so. By way of contrast, the evidence is that the Respondent is not particularly close to his family and there is no evidence to suggest that any of his family, including the daughter who is presently living with him, have any particularly developed capacity to attend to the child's needs.

Any family violence involving the child or a member of the child's family (s.60CC(3)(j))

I have already dealt with this matter above. There is a history of family violence by the father against the mother.

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings (s.60CC(3)(l))

For reasons to which I shall return, it is in fact desirable to make what in effect are ultimately interim orders in respect to this child.

Section 60CC(4)

I have considered the s.60CC(4) matters but in the circumstances of this case they have already been considered above.

Does the presumption in section 61DA apply?

Section 61DA requires the Court to presume that it is in the best interests of the child to have equal shared parental responsibility for the child (s.61DA(1)) unless there are reasonable grounds to believe that a parent of the child has engaged in, relevantly, family violence (s.61DA(2)(b)).
For the reasons earlier described, it is apparent that the Respondent has engaged in family violence and accordingly the presumption does not apply. I will order that the mother have sole parental responsibility for the child, as urged by counsel for the Independent Children’s Lawyer.

If the presumption is not applied or is rebutted, the making of such order as is in the best interests of the child as a result of consideration of one or more of the matters in section 60CC and whether or not it is necessary to consider equal time or substantial and significant time being spent by the non-custodial parent with the child

This brings us to the heart of the matter.
I have no doubt that it remains in the child's best interests to be primarily in the care of his mother. Not only as I find has this been predominantly the case since his birth, but it is the recommendation of the report writer, Mr Neu, and of the Independent Children's Lawyer. This is a two-year-old child, who obviously is devoted to his father to an extent perhaps slightly beyond even the norm, but on any view he is greatly attached to his mother and she has always been his primary caregiver.
The next significant and vital issue is whether or not the mother should be permitted to relocate to Tasmania and take the child with her. This issue has always been at the heart of the proceeding.
Arguments in favour of the mother being permitted to relocate to Tasmania include:
·the likely greater chance that the mother not resume the use of heroin;
·the certainty that the mother will have the support of her father, mother and extended family in her endeavours both not to return to the use of heroin and to look after the child;
·the love and support that would be given to the child from his extended family in Tasmania;
·the greater sense of peace and ease that would obtain in the mother in returning to the place where she grew up and where she knows most of the local inhabitants;
·the enhanced prospects of the Applicant being able to pursue employment and further education in Tasmania;
·the benefits to the child of all of the above producing in his mother a more settled and happy set of circumstances;
·the benefits to the child of all of the above.
Negative aspects of the possible return to Tasmania include:
·the fact that should she wish to do so, it is at least possible that the Applicant could obtain heroin in Tasmania;
·the fact that the Applicant's mother is most unlikely to facilitate the relationship between the child and his father;
·the very real risk that the relationship between the child and the Respondent will be less easy to maintain;
·the anger that the Respondent may feel in the event that this course of action is permitted and any result and the consequences thereof;
·the possible, although in the circumstances less likely, distress that may be caused to the child through the lack of contact with his half-sibling and her son who presently reside with the Respondent.
In the event that the child were to remain in Victoria but remain predominantly in the care of his mother, the positive outcomes of such a situation would include:
·the proximity of the child to his father and the relative ease of the maintenance of his relationship both with his father and those persons in his father's family with whom he might be put into contact;
·the absence of anger on the part of the father at his removal to Tasmania.
Negative aspects of the mother remaining in Victoria would include:
·the relative proximity in physical terms of the Applicant to the supply of heroin;
·the absence of the support mechanisms available in Tasmania and by contrast the relative lack of support mechanisms in Victoria (noting nonetheless that the Applicant does have close family, including a brother, in Victoria);
·the obverse of the other benefits associated with the Applicant relocating to Tasmania.
I have observed on more than one occasion during the conduct of the trial in this proceeding that this is a difficult and troubling matter. It remains so now as I am endeavouring to conclude it. In the ultimate, however, I am convinced that it is appropriate to allow the mother to relocate to Tasmania. The balance in terms of the child's best interests is overwhelming.
If the child relocates to Tasmania, his mother plainly has a better chance of adhering to her commendable six-month experiment in abstention from heroin. That is plainly in the child's best interests. Furthermore, given that it is in the child's interests to stay primarily in the care of his mother, as I have found, it is almost necessarily the fact that he is better going where she is.
This is only and considerably enhanced by the immediate availability of the maternal grandparents, who impressed me as sincere and loving parents, and the uncontested availability of other extended family including the child's great-grandparents in the immediate vicinity of where it is proposed that he live in Tasmania.
In the ultimate, the only significant, but very significant, difficulty with relocation is the impact that it will have upon the child's relationship with his father.
It is not possible to fudge this issue. This is a stark case in which one is balancing two completely irreconcilable propositions. On the one hand it is plainly in the child's best interests that his mother relocate to Tasmania for the reasons already described and that he stay with her, and on the other hand it is plainly detrimental to his best interests that he be removed from the regular and frequent contact he has experienced thus far in his life with his father.
Both the Independent Children's Lawyer and counsel for the Applicant, and, in a sense, implicitly the Respondent, admitted that this was a balancing issue. Mr Neu plainly thought so. He himself had found this matter difficult and, in response to a question from the bench, indicated that (page 181), "It was really a very fine balancing as opposed to 10 tonne. It was 49 on one and 51 on the other."
I do not wish to enter into a percentage analysis of this matter. I would agree that there are arguments on both sides.
Nonetheless, taking all the relevant considerations into account, I am of the clear view that it is better that the child go with his mother to live in Tasmania. This is the best outcome for him. The various concerns associated with the possible diminution of his contact with and relationship with his father can be addressed in the form of orders that I propose to make.
In my opinion, the Respondent is correct in his criticisms of the regimes proposed y the Applicant and by the Independent Children’s Lawyer. The idea that he should see his child for five days a month in Tasmania as proposed by the Independent Children's Lawyer or every other weekend or possibly every third weekend as proposed by the Applicant mother are expensive and unwieldy. I think that the child's best interests will be met by seeing his father every alternate weekend from Friday till Sunday in Melbourne, the child to be flown to Melbourne with his mother, and with changeover to be at the father's place of residence and return at Tullamarine. This is not of course substantial and significant time within the meaning of the Act but it is in my view best practicable result that can be imposed.

I note that the Respondent suggested that his time with the child should run from 6.00 pm Friday till 6.00 pm on Sunday. I think that the time of arrival on Friday is reasonable, bearing in mind that the Applicant does not work, the Respondent does, and it is in no way impracticable for the Applicant to ensure that the child is delivered to his father by that time at his father's place of residence.
By contrast, I think that 6.00 pm is too late a time at which to return the child to his mother's care, bearing in mind the 45-minute flight to Burnie.
I propose to hear from the parties as to the availability of flights at or about 5.00 pm on Sundays, and subject to further submissions or agreement, I would propose that the child be redelivered to his mother at Tullamarine Airport at an appropriate time to enable him to catch a flight at around about 5.00 pm on Sundays.
I note that the costs of such travel are likely to be not insubstantial, but I also note that the Applicant herself proposed to pay for one of each alternate flights, and I think that this is an appropriate outcome.
The Applicant will be assessed for child support, and I would expect the Applicant to concede that the Respondent should be reimbursed out of such child support as he is required to pay the costs of one out of each two visits. This is a matter of mechanics that can be addressed following further submissions.
Other ancillary issues as to time at Christmas and the like can be addressed following receipt of these reasons.

Further Hearings

As indicated to the parties during the conduct of the trial, it is my firm view that it is not appropriate at this stage to start to make orders that may govern the child's circumstances once he attends school. So much has been dependent upon the outcome of the dispute as to whether or not the mother be permitted to relocate.
Furthermore, it is as yet uncertain that the mother will be able to stay clear of heroin and indeed whether the father will be able to stay clear of illicit drugs himself.
I would propose that these orders continue for a period of two years. This unfortunately has the necessary effect that the parties will have to litigate further, but in my opinion this is highly likely in any event. Even if it were not, and one would hope that the intervening time will allow the feelings of the Applicant and Respondent towards one another to become more rounded and less adversarial, the reality is that this is the preferable outcome because it is not now possible to foresee the march of events.
I have prepared proposed minutes of orders which give, in large part, effect to these reasons for judgment. I have largely ordered the ancillary orders sought by the mother, which are generally in my view appropriate. I will re-list the matter to enable the parties to make such submissions as they may feel appropriate to give effect to the various matters left undecided by these reasons.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 7 March 2007

ADDENDUM

Since preparing these reasons for judgment I have become aware of the decisions of the Family Court of Australia in M & S (formerly E) [2006] FamCA 1408 a decision of Dessau J, which has subsequently been applied by Kay J in a decision given on 23 February 2007 but not yet publicly released.
Those decisions expressed the view that “the legislative changes wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 do not cast an onus of proof on the relocating parent and the child’s best interests remain the paramount consideration.”
I am fortified in the conclusions I have expressed in these reasons for judgment by those recent authorities of the Family Court of Australia.