W and W
[2002] FMCAfam 356
•8 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2002] FMCAfam 356 |
| CHILDREN – Residency – relocation – application to remove child interstate – best interests of child. |
| Applicant: | CJ W |
| Respondent: | R D W |
| File No: | (P)ADM4301 of 2001 |
| Delivered on: | 8 November 2002 |
| Delivered at: | Adelaide |
| Hearing Date: | 27 June 2002 |
| Judgment of: | Mead FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Richards |
| Solicitors for the Applicant: | Clelands |
| Counsel for the Respondent: | Ms Nelson |
| Solicitors for the Respondent: | Townsends |
ORDERS
That all previous orders made herein or in the Family Court of Australia as regards children’s issues be and the same are hereby discharged.
That the husband and the wife do have the joint responsibility for the long term care, welfare and development of LDW BORN 18th March 1998.
That the said child do reside with the wife who shall be at liberty as and from 25th November 2002 to relocate L to Queensland.
That the wife give and the husband do have contact with L as follows:-
(a) From 5pm Friday to 5pm Sunday commencing 8th November 2002 and concluding 24th November 2002;
(b) For the entirety of the Queensland April and September/October school holiday periods in each year from the first day thereof to the last day thereof;
(c) For one half of the Queensland July school holiday period in each year from the first day thereof to the evening of the eighth day thereof;
(d) For fourteen days during each Queensland Christmas school holiday period as follows:-
(i)From the 11th day of January 2003 to 25th day of January 2003;
(ii)From the morning of the 23rd day of December 2003 to the evening of the 6th day of January 2004 and each alternate year thereafter between the same times;
(iii)From the morning of the 27th day of December 2004 to the afternoon of the 10th day of January 2005 between the same times.
(e)By way of telephone on Tuesday and Friday each week between 7pm and 7.30pm Queensland time with the wife to facilitate L telephoning the husband on his landline telephone number.
(f) At such additional times in Queensland that the parties may agree from time to time for up to seven consecutive days PROVIDED HOWEVER that should L be attending at preschool or school the husband will stay proximate enough to such educational institution to enable him to facilitate L’s attendance at kindergarten or school on those days.
That for the purposes of all contact to be given and taken in South Australia the wife shall be solely responsible for the costs of L’S accompanied air travel for as long as it is necessary for him to be accompanied between Queensland and Adelaide with the husband to be responsible for collecting L from the Adelaide Airport at the commencement of each such period of contact and returning him thereto at the conclusion of each such period of contact.
That for the purposes of any contact in Queensland the husband collect L from the wife’s residence at the commencement thereof and return him thereto at the conclusion of such contact period.
The wife do keep the husband informed at all times of any educational institution attended by L from time to time including the full name, address and telephone number of each such institution AND FURTHER that the wife do authorise the principal of each such institution to release to the husband at his request and at his cost, copies of any school newsletters, information sheets, school reports, photographs and the like from time to time.
That the wife do keep the husband informed at all times of L’s residential address and landline telephone number AND FURTHER that she provide to the husband not less than 28 days notice in writing of any intention to change L’s principal place of residence.
That the husband and the wife do keep each other informed at all times of contact landline telephone numbers and if applicable mobile telephone numbers.
That the husband and the wife do forthwith notify the other of them in the event of L suffering any serious illness or injury whilst in their respective care AND FURTHER the name, address and telephone number of any hospital to which L may be admitted at any time whilst in their respective care.
That all applications do otherwise stand dismissed.
Pursuant to Section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
(P) ADM4301 of 2001
| CJW |
Applicant
And
| RDW |
Respondent
Introduction
Before the Court is the wife’s application for orders that are intended to enable her to move from South Australia with the parties child LDW born 18th March 1998 and reside in or about the Rockhampton area of Queensland. The wife has specified the contact orders that she seeks in the event of her application being successful.
The husband seeks residence of L together with the responsibility for his day to day care, welfare and development. He proposes that the parties have the joint responsibility for L’s long term care, welfare and development and specifies the orders that he proposes with respect to the wife’s contact with L.
He further seeks an order restraining the wife from removing L from the State of South Australia without his written consent and specifies the contact he seeks in the event that he is not successful in his residence application. In any event he proposes that the wife be restrained from removing L from the State of South Australia without his written consent.
Documents and evidence relied upon by the parties
The wife relied upon the following documents:
a)Her application filed 22nd May 2002;
b)Her affidavits filed 22nd May 2002 and 21st June 2002;
c)The affidavits of her mother RP filed 22nd May 2002 and 21st June 2002;
d)The affidavit of her father PP filed 22nd May 2002;
e)The affidavits of HK filed 22nd May 2002 and 21st June 2002.
In addition to the material contained in the affidavits the wife, her father and Mr K gave oral evidence in chief at trial and the evidence of the wife and her three witnesses was the subject of cross examination.
The husband relied upon the following documents:-
a)His response filed 7th June 2002;
b)His affidavit filed 7th June 2002 and his further affidavit tendered at the hearing on 27th June 2002;
c)The affidavit of RJW, his mother tendered on 27th June 2002;
d)The affidavit of LFC tendered at the hearing on 27th June 2002.
The husband gave oral evidence in chief at the time of trial and the evidence of the husband and his mother was the subject of cross examination. Ms C was not required for cross examination.
Background
The parties married on 13th June 1997 and separated on 4th October 2000. The wife does not dispute the assertion of the husband that, between the date of the parties marriage and 28th March 1998, the husband for the most part lived away from home during the working week and that from 28th March 1998 until the date of separation the parties lived together on a full time basis at Ardrossan. L was born on the 18th March 1998 and is now aged 4 ½ years.
At the time of the parties separation the wife left the former matrimonial home with L and went to reside with her parents at their house which was in the same street as the former parties home in Ardrossan. For a short period after the parties separated there appears to have been an amicable relationship between the husband and his parents-in-law and he was able to attend at their home regularly to see L both there and to also take him to the former matrimonial home.
Tensions between the husband and wife following upon their separation were exacerbated by her forming a relationship with Mr K who was the South Australian Operations Manager at CS, the employer of both the husband and the wife. The wife was employed as a chemist by CS and the husband being employed in management in a position subordinate to Mr K.
Notwithstanding the tension between the parties they were able to negotiate arrangements both in relation to L and with regard to settlement of property and on 16th January 2001 orders were made by consent in the Family Court of Australia. They provided inter alia that the parties would be equally responsible for L’s long term care, welfare and development, that L would reside with the wife who would have the sole responsibility for his day to day care, welfare and development and that the husband would have contact with L on each alternate weekend from 5pm on Friday until 6pm on Sunday evening and at such other times as the parties may agree.
In January 2001 Mr K moved to reside with the wife and L in the wife’s parents’ household. The previously civil relationship between the husband and the wife’s parents deteriorated and the contact arrangements became more formalised in accordance with the terms of the consent order. It is the common ground of the parties that from the time of the order. The wife has facilitated additional contact between the husband and L on an overnight basis on Wednesday of most weeks.
From the time of L’s birth until he was some eight weeks old the wife was on maternity leave and remained at home to care for L. During that time the husband continued in his full time employment. From approximately early May 1998 to November 1998 L was cared for in the parties home by JL. The parties left for work together and returned home together at the end of each day and it is common ground that when the parties were at home they shared the responsibility for L’s care. The wife breastfed L for the first twelve months of his life. In the event that L was unwell the wife remained home from work to care for him.
In or about November 1998, by agreement between the husband and the wife and the wife’s parents, the wife’s mother RP commenced to care for L in her home during the day.
At the time of the planning of the parties marriage there was a disagreement between the parties and the wife’s parents as to aspects of the wedding itself which resulted in a “falling out” between the parties and the wife’s parents and the parties going to Ireland to be married.
The wife’s parents did not attend the wedding and there was little significant contact between the wife and her parents between the time of the wedding and approximately November 1998.
At the time of the parties marriage the wife’s parents were living in Wallaroo on Yorke Peninsula but they subsequently moved to Sale in Victoria, returning to Ardrossan in or about November of 1998 when it was agreed that the wife’s mother would care for L.
The arrangement as to the care of L by the wife’s mother continued from approximately November 1998 to October 2000 when the parties separated and during that time the parties paid the wife’s mother for the provision of that care.
Initially the wife’s mother cared for L in the parties home but as he became a little older the parties would take L to the wife’s parents home on their way to work and collect him on their way home.
The wife’s mother continued to care for L after the parties separated as of course the wife and L moved to reside in her parents’ home. That arrangement continued until April 2001.
In January 2001 Mr K had moved into the wife’s parents’ home to reside with the wife and in April 2001 Mr K, the wife and L moved from the wife’s parents’ home in Ardrossan to reside in Kadina.
The wife’s parents, and in particular her mother, were upset about her decision to move to Kadina to live and in fact the wife’s mother was so distressed about no longer caring for L that she travelled to Fiji to spend some three months or so with her family.
There was little contact between the wife and her parents between April 2001 and November 2001 at which time the wife moved back to live with her parents following upon a disagreement with Mr K which led to a short separation between them.
During the time that the wife resided in Kadina L attended at child care during the day. The alternate weekend and Wednesday night contact continued to be taken by the husband, albeit that there were apparently unilateral alterations made by the wife to the arrangements from time to time. It is common ground of the parties however that although there were changes to the strict terms of the alternate weekend contact order and the informal Wednesday night contact arrangements, the husband and the wife were usually able to negotiate “make up” contact.
When the wife and Mr K moved to live in Kadina in April 2001, the wife’s parents moved from Ardrossan to Port Vincent which is also on Yorke Peninsula. It was to that residence that the wife moved in November 2001.
Between November 2001 and the date of trial the wife and L continued to reside at her parent’s home at Port Vincent with Mr K also staying there with the wife on a regular basis on three to four nights a week and often on weekends, particularly on those weekends when L was with his father.
Mr K has at all times maintained a work residence at Ardrossan and on occasions since November 1991 the wife has stayed with him at that residence and she and Mr K have also stayed together in Adelaide.
Although the wife and Mr K have not resided on their own with L in a family unit since their reconciliation after a short separation in November 1991, they have spent most nights together in her parent’s residence or at the Ardrossan residence or in Adelaide.
Since November 1991 the wife’s mother Mrs P has cared for L whilst the wife has been at work at CS. As of the date of the parties separation until the time of trial the husband, the wife and Mr K all continued to work at CS, although shortly prior to the trial Mr K resigned, the wife resigned (and in fact at the time of the trial was on annual leave prior to leaving her employment) and the husband was promoted to Mr K’s previous managerial position.
After attending an interview in April and early May of 2002, the wife was on 21st May 2002 offered employment with AMCL in Gladstone, Queensland, with her employment to commence on the 8th July 2002. The wife accepted that offer of employment.
On 6th May 2002 Mr K was offered the position of Queensland Operations Manager with CS which involved him relocating to Bajool near to Rockhampton in Queensland. Mr K accepted that position.
Mr W was appointed the South Australian Operations Manager of CS on 5th June 2002 with his position being effective as at the 1st July 2002.
Issues before the Court
The issues that the Court are being asked to determine are whether L should reside with his father in Ardrossan or with his mother initially in Gladstone in Queensland and then within the next twelve to eighteen months in Rockhampton in Queensland. In the interim orders sought by the wife she sought an order that she be at liberty to relocate with L to the State of Queensland. In the wife’s final orders however, she sought a variation of the contact order made by consent on 16th January 2001. The effect of that variation would be to enable her to reside with L in Queensland as they would provide for contact during school holidays in South Australia, by way of telephone and additional contact to be taken by the husband in Queensland.
In the husband’s response he seeks residence and proposes contact to the wife predicated on her living sufficiently close to Ardrossan that she was able to take contact to L on what might be described as the more “usual” basis of alternate weekends, school holidays and the like.
He seeks an order restraining the wife from removing L from the State of South Australia without his written consent and seeks a continuation of the existing contact arrangements namely alternate weekends and Wednesday evenings overnight as well as specific orders in relation to Christmas Day and Father’s Day.
He further seeks orders in relation to school holiday contact at such time as L commences attending at school which presumably will be in the first half of the 2003 school year.
The Law
The Full Court has determined that certain guidelines should apply to the determination of a parenting case that involves a proposal to relocate the residence of a child. The guidelines are summarised in paragraph 108 of A & A: Relocation Approach (2000) FLC 93-035, and restated in paragraph 77 of H & L (2000) FLC 93-036. The guidelines are as follows:
108. It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:
In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:
·The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.
·A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:
·It is necessary for a court to evaluate each of the proposals advanced by the parties.
·A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.
·The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.
·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.
·It is to be expected that reasons for decision will display three stages of analysis and:
1. A court will identify the relevant competing proposals;
2. For each relevant s68F(2) factor, a court will set out attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.
3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
· The process of evaluating the proposals must have regard to the following issues:
(a)None of the parties bears an onus:
· In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.
(b)The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.
(c)Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
· In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.
Having set out those detailed guidelines, I also refer to the matters set out in paragraph 74 of the Full Court’s decision in A & A…..
I.In our view, the use of a structured series of analytical steps is an aid to the decision making transparency and minimises the risks of a Court falling into appealable error of the kind discussed in an AMS v AIF: AIF v AMS(SUPRA). In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay & Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said at paragraph 109:-
“Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the matters referred to in Section 68F (2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under Section 68(F) 2.”
Parenting orders including residence and contact orders are dealt with in Part V11 of the Family Law Act 1975. The objects of Part VII are set out in s.60B. Section 60B(2) provides that the principles underlying the objects are that, except when it is or would be contrary to a child's best interests:
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)That children have a right of contact, on a regular basis, with both their parents and with other people significant in their care, welfare and development; and
c)Parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children.
In making parenting orders, s.65E requires that the Court must regard the best interests of the child as the paramount consideration. The objects of the Act as stated, are subject to that provision.
Section 68F(2) provides a list of matters which the Court must consider when determining what is in the child's best interests in a contested matter regarding residence and/or contact. In addition to the matters set out in sub-paragraphs (a) to (k) inclusive, sub-paragraph (l) enables the Court to consider any other fact or circumstance the Court thinks is relevant and thus enables matters individual to a particular child to be considered along with the other matters expressed in s 68F(2).
(a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Courts thinks are relevant to the weight it should give to the child’s wishes.
(b)The nature of the relationship of the child with each of the child’s parents and with other persons.
(c)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)Either of his or her parents;
(ii)Any other child, or other person with whom he or she has been living.
(d)The practical difficulty and expense of a child having contact 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.
(e)The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs.
(f)The child’s maturity, sex and background (including any need to maintain a connection with the life style, culture and traditions of Aboriginal people or Torres Strait Islanders) and any other characteristics of the child that the Court thinks relevant.
(g)The need to protect the child from physical or psychological harm caused, or that may be caused by:
(i)Being subjected or exposed to abuse, ill treatment, violence or other behaviour;
(ii)Being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards or may affect another person.
(h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
(i)Any family violence involving the child or a member of the child’s family.
(j)Any family violence order that applies to the child or a member of the child’s family.
(k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(l)Any other facts or circumstance that the Court thinks is relevant.
The wife’s proposal
The wife proposals that she retain residence of L but that she be permitted to relocate initially to Gladstone and then to Rockhampton in Queensland where she will be employed with AMCL.
She proposes that she and L will reside with Mr K, her current partner, initially in Gladstone and then after some twelve to eighteen months in Rockhampton as that will be the new base for her employment.
The wife proposes that she and Mr K will both work on a full time basis and that her mother Mr RP will care for L other than at times when he is at kindergarten and then school, or when she and Mr K are at home.
It is proposed that Mrs P share their residence and that she remain living with them for the first eighteen months or so that they are in Queensland.
The wife proposes that the contact orders made by consent in the Family Court of Australia at Adelaide on 16th January 2001 be varied so that rather than the contact on alternate weekends provided for in that order the husband have contact with L for three two week periods and one seven day period per annum, with those contact periods to coincide with L’s school holiday periods in Queensland but to take place in South Australia. She also proposes that the husband have contact with L by way of regular telephone contact.
The wife proposes that she pay for all air fares for L to be flown from Queensland to South Australia and return during the school holiday contact periods and that the husband be at liberty to take further additional contact with L in Queensland, presumably at times as agreed between the parties although she does not specify that in her application.
The wife’s application does not specify her proposals in relation to the specific details of L’s travel, but in paragraph 28 of her affidavit filed herein on 22nd May 2002, she proposes that for the first eighteen months that she resides in Queensland with L the mother will accompany on the flight from Queensland to Adelaide at the commencement of each contact period and accompany him back to Queensland at the conclusion of each contact period at her own (ie the grandmother’s) expense.
She further proposes that at the end of that eighteen month period her brother, who also resides in Queensland, would meet L at the Brisbane Airport when he arrived on the flight from Rockhampton and ensure that he was transferred to the Brisbane to Adelaide flight.
The husband’s proposal
The husband proposes that he will remain resident in Ardrossan on Yorke Peninsula in South Australia, that L will reside with him and that he will have the responsibility for L’s day to day care, welfare and development.
He proposes to continue his full time employment as State Operations Manager for CS and for CW, a licensed child care provider in Ardrossan who is known to L, to provide child care for L during the husband’s working hours other than when L is at kindergarten or at school.
The contact proposals for the wife are predicated on the wife living in sufficient proximity to enable her to take contact on alternate weekends and on one overnight period during the week. The husband further proposes that the wife have contact with L during school holidays, on Christmas Day in each year, on Mother’s Day and by way of telephone.
The husband proposes in the alternative that L reside with the wife, for him to be able to take contact with L on each alternate weekend and on Wednesday night of each week, on Father’s Day and for part of Christmas Day in each year and that he have further contact on the basis of half of each of the school holidays at such time as L commences attending school.
The husband proposes that the wife be restrained and an injunction be granted restraining her from removing L from the State of South Australia without his written consent, which is to be obtained not less than 3 weeks prior to an anticipated date of departure.
The wife’s evidence
The wife was clear and concise in her evidence as to her reasons for wishing to relocate from Ardrossan to Queensland. The wife gave evidence that she commenced what she referred to as a “casual relationship” with Mr HK in approximately July 2000. Mr K was at that time the State Operations Manager for CS in South Australia, the company that employed both the husband and the wife. The wife was employed at C S as a technical co-ordinator and the husband in a managerial position. Mr K was Mr W’s “immediate boss”.
It was common ground that the wife left the former matrimonial home with L on the 4th October 2000 and moved to reside with her parents who lived in the same street in the same town. Mr K continued to reside with his wife also in Ardrossan until January 2001. At that time he left his home and moved to reside with the wife in the home of her parents.
It was clearly the view of the wife, and I find a reasonable view, that as a result of continuing to work with the husband as well as Mr K, together with all of the relevant parties continuing to live in the same small country town, she needed to move away from that environment. In April 2001 the wife, Mr K and L all moved to live in Kadina. Kadina is some 45 minutes drive from Ardrossan.
The wife continued to live in Kadina with Mr K until November 2001 when they had an argument about his attendance at a Melbourne Cup luncheon and decided to separate. By that time the wife’s parents had moved to Port Vincent and the wife and L relocated from Kadina to Port Vincent.
During the time that the wife and L resided in Kadina L attended at child care during the day, in contrast to being cared for by the wife’s mother since he was some eight to nine months old.
In January 2001 the husband and the wife reached agreement in relation to child issues and property settlement and an order was made whereby the husband was entitled to have contact with L on each alternate weekend for the entire weekend. The wife said that from about the time of the order she had agreed to additional contact overnight on Wednesday of each week. Although the wife moved initially to Kadina and then to Port Vincent, both of those towns were sufficiently proximate to Ardrossan for the husband to be able to continue taking contact with L on alternate weekends and on Wednesday nights.
The wife gave evidence in paragraph 15 of her affidavit filed on 22nd May 2002 of her reasons for seeking alternative employment away from the Yorke Peninsula of South Australia. She referred to what she perceived as increasing difficulties in continuing to work with the husband, her concerns about L being raised in a small country town with limited schooling options and limited employment options and her desire to further her career in the knowledge of what she understood to be lack of employment advancement opportunities in the CS Company in South Australia.
She said she had looked for alternative employment in Adelaide but that she had been unable to secure such employment and that in April 2002 she was offered a two year contract by her current employer in Rockhampton, Queensland. She said she declined the offer due to lack of certainty in the position but that she subsequently obtained the position that she applied for and accepted at AMC located in Gladstone, Queensland.
The wife said that in April of 2002 Mr K was offered a job promotion at CS in Queensland which he declined due to his wish to remain with her in South Australia. She said however that he had also now secured a position near to Gladstone which in fact is the position of State Manager for Queensland in the CS Company. She said her new employment represented a significant increase in income from some $48,000 per year to approximately $65,000 per year.
The wife gave additional oral evidence at trial to the effect that she first formed her intention to move away from Ardrossan in or about November 2001. She said that she deliberately made a point of applying for jobs outside of the Ardrossan area as she did not want to work in close proximity to the husband. Her evidence was that she applied for approximately 12 or so jobs, that she was asked for one interview with A but that she declined the interview as the rate of pay was the same if not less than her current rate of pay. Her evidence was that there were no other interviews offered.
The wife gave evidence as to her qualifications and said that there were no other industries on Yorke Peninsula other than CS that would employ people with her skills and expertise.
She was frank in her evidence that in late April or early May of 2002, when an internal memo was circulated in CS in relation to the position of Queensland State Manager, she and Mr K discussed the issue. She understood that he was interested in the job and told him that she would consider favourably moving to Queensland with him.
She said that Mr K spoke to the company on her behalf which led to the offer of a two year contract for her with the company in Queensland, but she subsequently declined that offer. She became aware of the position at AMC through accessing the internet, applied for the position with the encouragement of Mr K, and accepted the position. She accepted the position prior to filing her application to vary contact orders in the Court. Mr K also accepted the position as the Queensland State Manager of CS.
In oral evidence the wife told the Court that she would take the position with AMC subject to being able to relocate to Queensland with L, and further said that if she could not take L to Queensland that she would not go. In cross examination , the wife repeated that she would not go to Queensland if she could not take L with her.
She agreed that she had signed acceptance of the job offer with AMC on 21st May 2002, the day prior to filing her application in the Court. Her explanation for that was that she was under the impression that the case would not be heard for some time and so she had no option but to accept the position and she thought that she could not apply to the Court to be able to relocate to Queensland until she had accepted the job offer.
The wife conceded that she would be able to find employment commensurate with her qualifications in South Australia, that she would be able to continue her relationship with Mr K even if he went to Queensland and she remained in South Australia and indeed said that she and Mr K would marry even if she lived in South Australia and he in Queensland.
The wife further conceded in cross examination that she and Mr K had agreed between them prior to her attending in Queensland for an interview with AMC that if she was successful in her application he would accept the job offer as Queensland State Manager for CS, but that if she was unsuccessful he would not move to Queensland.
In cross examination the wife conceded that L is always excited to see his father and that he runs and jumps into his arms and that he loves his father. She agreed with the suggestion that the husband was devoted to L and that L was strongly attached to Mr W.
The wife conceded that one of the options before to the Court was for L to reside with his father and she said that if that occurred she would want as much contact as possible. She said that she would be seeking contact different to that which she had proposed for the husband, namely contact during school holidays, because even if L did not reside with her she would remain in South Australia as she felt that it was important to remain close to him.
She said that she was not denying that it was important for L to be close to his father but that “I need to get on with my life for L’s sake as well”. She said that she thought the holiday contact was different to that experienced hitherto by L as regards his father, but that it would be quality time and sufficient for the maintenance of that relationship.
She conceded that if L lived with his father and she was offered the amount of contact that she was offering it would not be enough because L would miss her. When asked why the situation of the husband was different, her response was to the effect that as she had been the primary care giver for L it was a different situation to that of the husband having only had contact on alternate weekends and Wednesdays.
In cross examination the wife agreed that she had not organised a house in Gladstone at that time but said that she had been to inspect some houses the previous week. When questioned about her having researching appropriate pre-schools in Gladstone and primary school options for L in Rockhampton as specified in paragraph 29 of her affidavit filed on 22nd May 2002, she conceded that some of the school enquiries had been made by her mother and that in fact the two schools to which she had referred in her evidence, she had “just driven past”. She said that she had asked her mother to make the enquiries because she was working.
She later said that she had received assistance from relatives in Rockhampton, Brisbane and Gladstone in relation to appropriate schooling and that she had in fact spoken to people at the Clinton primary school and that she had rung other primary schools.
She conceded that one of the schools that she was considering was a Catholic school, that she was not Catholic and that she had not discussed the issue of a Catholic education with the husband. She stated that L had in fact been enrolled by the parties to commence attendance at Scotch College in Adelaide for his high school years.
In relation to contact issues, the essence of the wife’s cross examination was a concession that on occasions she unilaterally made decisions as to when the husband would take contact, and changed arrangements on occasions. She said however, and I accept, that even with changes in arrangements from time to time, the effect of the husband’s contact was contact on each alternate weekend and on a Wednesday evening which the wife correctly asserted was additional to the contact provided for in the order of January 2001.
The wife said that she was offering telephone contact between L and the husband if she moved to Queensland and initially denied that she was not permitting telephone contact. She eventually conceded that she had told the husband in an email on 22nd January 2001 that he could not have telephone contact and went on to say “he always has been able to except when I say it is not on”.
I find that the wife has been less than forthcoming in relation to telephone contact but otherwise in the main she has complied with the terms of the consent order made in the Family Court of Australia on 16th January 2001 and indeed has fostered additional contact between the husband and the child by way of Wednesday night contact.
I find that the contact arrangements have been changed on occasions at the unilateral whim of the wife but that make-up or alternative arrangements have been able to be made between the parties, albeit in acrimonious circumstances from time to time. I find that the husband’s contact with L has been by and large in accordance with the order and indeed he has had contact in addition to that provided for in the order.
I note that the husband has at no time prior to these proceedings filed any proceedings either in respect of contravention of an order or proceedings seeking to increase the amount of contact that he has with L. The husband has not asserted to any degree in these proceedings that he has sought significant additional contact with L that has been refused.
In relation to the wife’s proposal that her mother care for L for the first eighteen months or so that she and Mr K move to Queensland, the wife conceded, when asked whether her relationship with her mother was volatile, that she and her mother had what she described as an “open relationship” where her mother says what she thinks in relation to issues. She conceded that her mother was disappointed in her when she began her relationship with Mr K but said that those issues had now been resolved.
When the wife was questioned about arrangements for child care in the event that her mother did not accompany she and Mr K to Queensland, she stated that although she had not inspected any child care facilities she assumed that they were available and she saw child care as a reasonable alternative. The wife said that she would not be prepared for CW’s to care for L but conceded that was for personal reasons and that Ms W’s is generally regarded as an “adequate, competent child carer”.
In cross examination the wife said that she and Mr K had not discussed when he would retire, but had discussed his retirement as an option if she was not successful in being able to take L to Queensland as that would enable Mr K to stay home and care for L. She said that Mr K would be able to access his superannuation.
The wife conceded that L had experienced many disruptions to his day to day existence to date in his life but said that he had not been affected by those changes. She did not concede that a further move to Gladstone and then to Rockhampton would be disruptive to L notwithstanding that it would involve a change from not only towns but schools fairly shortly after he first commenced attending at school.
She conceded that the first three months of her employment were on a probationary basis with no real security in relation to the position after that date, but said that if her employment was terminated she would continue to live in Queensland with Mr K and look for alternative employment.
She said that if she was not successful in obtaining alternative employment then she had no idea what she would do and likewise had no idea what she would do if she and Mr K had difficulties in their relationship. She said that if relations became strained between she and her mother such that her mother was not prepared to continue caring for L whilst she was at work then she would arrange for L to be in child care during non kindergarten or school time.
She denied that her relationship with her parents had been strained on occasions, particularly after she and the husband decided to marry in Ireland and after she and Mr K moved to Kadina. She did concede that there disagreements with her parents about the numbers to attend at the wedding which led to the parties deciding to marry in Ireland and also that her mother was disappointed when she commenced her relationship with Mr K, primarily due to the age difference between she and Mr K and that in fact her mother tried to talk her out of the relationship. She said however that those difficulties had been resolved.
Significantly, the wife conceded in cross examination that her motivating factor in applying to the Court to vary the contact orders to enable her to relocate to Queensland was to remove herself from her work environment at CS and the Ardrossan/Yorke Peninsula area. She conceded that she and Mr K did not need to move a significant distance from Ardrossan to live together as a family and that in fact they had achieved that in Kadina for a few months. She said however that she wanted to “start a new life away from working with the husband and a new life away from Ardrossan and the history of life there”.
I find that the wife attempted to put her position to the Court as clearly and truthfully as possible and for the most part I accept her evidence. I find that she minimised the difficulties that she and her mother have experienced in their relationship over the years, in particular for a significant period of time after the husband and the wife married in Ireland rather than in Australia as planned and also for the period between April and November 2001 when she resided in Kadina with Mr K.
I find however that those difficulties seem to have resolved and that for the most part from the time L was approximately 8 or 9 months old to the date of hearing, the wife and her parents have been able to work co-operatively and the wife’s parents had provided invaluable assistance to both of the parties as regards L’s day to day care.
I find that the wife was not as frank as she may have been as regards the changes in contact arrangements from time to time. I find that most of the changes had been made by her without consultation with the husband and indeed on the basis of her simply informing the husband of what would or would not happen at a particular time. I find that such a dictatorial attitude extended to her advice to the husband as to her intentions to relocate to Queensland with L. I find however that notwithstanding the rather high handed attitude of the wife in that regard, contact has progressed well, the wife has facilitated contact over and above that provided for in the order and that she freely concedes a close and loving relationship between the husband and L.
I find that the wife’s decision to move to Queensland and take up employment in Gladstone follows upon her contemplating such a course of action for several months. I find that she is extremely anxious to move away from the Yorke Peninsula area and to start a new life with Mr K away from her old place of employment and her place of residence. I find that the wife derives considerable satisfaction and achievement from her employment in that her stated enthusiasm for the position that she has accepted at AMC derives not solely from the perspective of it being a long way from the Yorke Peninsula area of South Australia, but also from the nature of the employment, the prospects of advancement and the increased salary.
I find that the wife’s enthusiasm for such a move has resulted in a degree of lack of proper consideration for the impact of such a move on L and find that she has thought little about her circumstances in the event of the job and/or her relationship with Mr K being unsuitable or unsuccessful.
I am not convinced that the wife genuinely believes that the contact she is offering the husband in the event that she and L relocate to Queensland is sufficient contact to enable L and his father to maintain their previously close relationship. I make that observation on the basis of the wife’s concession that if the circumstances were reversed she would in fact consider that such an amount of contact was not sufficient for her to maintain a satisfactory relationship with L. I do not accept the wife’s assertion that the parties circumstances in that regard are different because of her role as primary care-giver for L since the parties separation in October 2000 and the father’s role as a contact taking parent.
I find that the wife’s desire to move to Queensland is of greater significance to her than the issues of stability and continuity for L and the maintenance of a close relationship between L and his father. I place little weight on the wife’s assertion that it is not in L’s best interests to be raised in Ardrossan because it is a small country town with limited schooling options. That is not to say that the arrangements the wife proposes for L as regards places of residence and schooling in the event of a move to Queensland are unsatisfactory from his perspective. Notwithstanding that the wife was unclear in relation to any specific proposals for housing for she and Mr K and L, I place little weight on such lack of certainty due to the circumstances of this matter and the fact that both Mr K and the wife, if they relocate to Queensland, will be earning significant income and will be more than capable of obtaining suitable accommodation. I am also satisfied that in towns the size of Gladstone and Rockhampton there will be suitable child care centres, pre-schools and schools. There is some merit, and I accept the wife’s assertion, that in due course if L was to be raised and educated in Ardrossan, there may be limited employment opportunities available for him there, a feature of many rural areas throughout Australia. I do not however find that Gladstone or Rockhampton would necessarily offer superior employment opportunities in the future for L. In any event L’s future employment is a long way in the future and of little relevance in this case.
Mr K gave evidence in affidavits filed in the Court on 22nd May 2002 and 21st June 2002 and also gave further oral evidence. I accept Mr K as a witness of truth and find that he is committed to his relationship with the wife.
I find that he has an affectionate relationship with L and that he is prepared to accept responsibility for L with respect to housing, education and the like. I accept that the issue of the wife moving to Queensland arose initially because of employment opportunities for Mr K in Queensland and accept that he declined the initial possibility of employment in Queensland due to the wife declining to accept an offer of contract employment for a two year period.
I find that he was supportive of the wife seeking employment in Queensland and that immediately upon her accepting the position at AMC, he accepted the position as Queensland State Manager of CS.
I accept Mr K’s evidence that it is his intention that he and the wife marry as soon as possible. I also accept that he was at the time of trial the most senior officer in CS in South Australia, that he has been employed with CS for many years and that the only job commensurate with his level of seniority and expertise within the company in Australia other than as a State Manager is in Geelong as the National Manager, a position currently held by Mr MM who offered him the position as Queensland State Manager of CS.
I was unable to obtain any assistance either from Mr K’s evidence in chief or from cross examination as to his attitude as to the maintenance of the relationship between L and Mr W.
I find that Mr K has taken a somewhat passive role in relation to the issues of L’s care, education and contact with his father and has been content to leave those issues to be dealt with by the wife and to a lesser extent the wife’s mother. I find that he is very supportive of the wife and content to permit the wife’s mother to share the household with he, the wife and L in Queensland in the event that is where they move in due course.
There is no evidence before me that would lead me to have any concerns as to the suitability of Mr K forming part of a household in which L may reside.
The wife also called her parents Mrs RJP and Mr PJP to give evidence.
Mrs RP filed two affidavits on the 25th May 2002 and 21st June 2002 respectively, with Mr PJP filing an affidavit on 21st May 2002 and also giving additional evidence in chief at trial.
Mrs RP gave evidence in her first affidavit as to her role in assisting in the care of L and her preparedness to travel to Queensland with L if her daughter and L moved to Gladstone to live.
In her second affidavit she denied her relationship with her daughter had been variable and referred to the open and honest nature of the relationship between them. She said that such an open relationship on occasions caused conflict was because of the wife effectively having to divide her loyalties between her mother and her husband.
She denied the assertion of the husband that on occasions she had made his contact with L difficult.
She denied the content of various telephone conversations she had with other employees at her daughter’s work place at a time when she was disapproving of her daughter’s relationship with Mr K.
She referred to she and her husband moving from Ardrossan to Port Vincent to live because they wanted to be closer to his work and not because of any disagreement with the applicant. That move took place at the time that the wife moved to Kadina to live with L and Mr K.
In cross examination Mrs P conceded that she was very upset when she became aware of the wife’s relationship with Mr K and that when the wife moved to Kadina to live with Mr K (which had the effect of Mrs P no longer having the care of L on a daily basis) she was extremely upset. She said in fact that she was so upset about the wife’s decision to move to Kadina and put L into child care, which she said was a sudden decision, that in fact she went to Fiji and spent time with her family. She said that it was very important for her to maintain contact with L, and that she was upset during the time that L resided in Kadina and that she thought L would have been very upset as well. She said that the level of her distress caused her to want to keep away from L because she knew that L would be upset if they had personal contact, and that during the period of time that the wife lived in Kadina she only had contact with the wife by way of telephone.
Contrary to her assertions in paragraph 7 of the affidavit filed on
21st June 2002, Mrs P conceded in cross examination that she did, after the wife moved to live with Mr K in Kadina, telephone various people at CS, including the husband’s witness LC, and spoke to them about her attitudes concerning her daughter.
She told the Court that she couldn’t remember what she actually said but that it could have been what Ms C said in her affidavit as she, Mrs P, was very upset at the time. She offered that she had also spoken to other people at CS “along the same lines”.
She said it was not that she had become angry and made those phone calls because of the wife’s relationship with Mr K but rather, because she was upset about their move to Kadina resulting in her not having the care of L any more.
Mrs P said in cross examination that she was not aware of a disagreement with the wife in relation to the wedding taking place in Ireland, but that at the time she wasn’t going to go to Ireland to their wedding.
I find that Mrs P was less than frank in her evidence in chief as to the volatile nature of the relationship between she and the wife, particularly when the husband and the wife decided to marry in Ireland rather than in Australia. I find that resulted in very little contact between the wife and her parents for some twelve to fourteen months, during which time the wife’s parents moved from Yorke Peninsula to reside in Sale in Victoria.
I also find that there was little contact between the wife and her mother between April and November 2001 during which time the wife lived in Kadina with Mr K and had L cared for in child care rather than by her mother. I find that the lack of contact arose primarily as a result of the anger felt by the wife’s mother towards the wife at that time because of the wife’s decisions regarding her living arrangements and those of L.
It appears that those issues have resolved but they certainly illustrate a volatility in the relationship between the wife and her mother that is not adequately explained by suggestions that they have a free and open relationship and that a frank expression of views is sometimes confused by others as a volatile relationship.
That would certainly not explain Mrs P’s behaviour as regards telephone calls to her daughter’s place of employment which seemed to have had the sole purpose of denigrating her daughter and her relationship with Mr K.
It does to my mind raise a concern about the wife’s proposal that her mother form part of her household for up to eighteen months after a move to Queensland, and the possibility of disputes arising if her mother and Mr K, in particular, don’t have identical views on some issue, particularly with respect to L.
I particularly note the comments made by Mrs P in paragraph 11 of her affidavit filed on 21st June 2002 where she says:- “…….It may appear volatile to the respondent because the applicant and I discuss everything openly and honestly and the applicant has always been allowed to do what she thinks is the right thing for her even if it meant disagreement with my husband and I”. The suggestion that Mrs P sees the wife’s decision making processes at the age of 32 as being “allowed”, coupled with what I find to be almost a need for Mrs P to have a close, caring relationship with L, raises in my mind the distinct possibility of areas of disagreement between the wife and her mother. This finding is reinforced by the break in the relationship between the wife and her mother after the parties wedding in Ireland.
Both in her evidence in chief and in cross examination Mrs P denied that she had caused difficulties with regards to the husband’s contact with L or that she had at any time changed her mind about him being welcome in her home. However, she conceded in cross examination that she did at one time change her mind about the husband taking L to his house from their house, which had been the pattern that had evolved shortly after the parties separation.
She conceded that the letter that she had written to Mr W setting out her feelings towards him, which was “Annexure RDW 3” to his affidavit filed on 7th June 2002, was not a letter the like of which she would have enjoyed receiving and she conceded that the reference in that letter to him influencing the wife to “hurt the people she loved”, was a reference to the parties marrying in Ireland. She said “I can’t get over that – we were hurt”. She denied that she had taken sides in the dispute. She further said that it was in her nature to have to say what she wanted to say to the husband at that time, but that she had now expressed her views and simply wanted everyone to get on well.
I find that Mrs P was less than frank as regards her evidence in relation to her attitude to Mr W and that certainly once she had accepted Mr K as someone she thought was suitable to be sharing her daughter’s life, the friendly attitude that she exhibited towards Mr W following upon the parties’ separation hardened significantly. I find that the change in her previous cooperative attitude towards Mr W’s contact with L, although explained by her as a situation where the wife took over responsibility for the contact arrangements rather than she and Mr P, was at the very least a passive resistance on her part to Mr W’ contact with L.
That attitude, in my mind, was illustrated clearly in cross examination when Mrs P conceded that although Mr W had seen L around the Court precincts over the days of the trial, that she didn’t think that it was necessary to arrange for L to see his father at all because the wife’s family “have a lot on our mind”.
In relation to the issue of L being told about going to live in Queensland, the evidence that Mrs P gave in cross examination was in stark contrast to that of the wife.
When the wife was questioned about whether or not she had told L that he was going to live in Gladstone, she replied that she had not told him that and that she didn’t know where such information would have come from as she knew her mother didn’t “tell him”.
When asked about that issue in cross examination, Mrs P in fact offered, in a matter of fact way, that the issue of moving to Queensland had in fact been explained to L and that he had been to see the lawyers. She said he had been told that was because his mother had obtained a job in Queensland and that his father didn’t want him to go. Apparently when he had asked why, Mrs P had told him it was because his father would miss him. She went on to say that she had told L that they were seeing lawyers and that if the lawyers said it was alright he would go to live in Queensland and come back to see his father, but if the lawyers said he couldn’t go that his mother was not going back to work at CS and L would be home with his mother until she got a new job. I find that Mrs P was telling the truth in that regard and that the wife misled the Court as regards that issue.
I find that Mrs P has a very close relationship with L, to the extent of almost having a need to spend significant time with him.
I make those findings firstly based on her severe reaction when the wife moved to Kadina with Mr K and removed L from her mother’s care for a period of some months and secondly, her preparedness, which I accept, to leave her home and husband in South Australia and live in Queensland with her daughter, Mr K and L for eighteen months or so to care for L during non kindergarten or school time. The extent of her distress in 2001 in my view indicates that the cultural reasons outlined in paragraph 12 of Mrs P’s affidavit filed on 22nd May 2002, are not sufficient explanation for her preparedness to move to Queensland.
There is no doubt in my mind that if Mrs P did move to Queensland with the wife and Mr K, she would be perfectly capable of caring for L and it would be an arrangement that L would no doubt enjoy as he has certainly been used to it for most of his life.
In addition to the evidence contained in the affidavit of Mr PJP filed 22nd May 2002, the wife’s father, he gave evidence in chief at trial. Mr P was frank in his affidavit to the effect that he was supportive of his daughter wanting to move away from Ardrossan to start a new life and was supportive of the prospects of career advancement for her. He indicated that he was supportive of his wife moving to Queensland to help care for L and raised the possibility of he and his wife retiring within 4 years and moving to Queensland themselves. He was critical of the husband’s attitude to the input of he and his wife to L’s care over his life.
In his oral evidence he confirmed the ability of he and Mrs P to finance travelling back and forth to Queensland on occasions and said that he intended to retire within 2 years from his employment in a Credit Union.
He confirmed that there was no communication between he and Mr W at contact handovers save and except for his efforts to say good morning to which he rarely received a response, and he went so far as to say that Mr W rarely even looked at him.
He talked about two occasions when the husband had been to the home of he and his wife since November 2001, but it was clear that even on those occasions the atmosphere was tense and there was little if any communication between Mr W and either Mr or Mrs P.
He said that at L’s birthday party that they held in March of 2002, the husband attended at their invitation, that he didn’t interact with them but that he interacted positively with L.
He said that after Mr K moved into their home, the relationship between he (Mr P) and the husband became strained, that Mr W was no longer invited to meals and that he was not free to see L on the same basis as he had between approximately November 2000 and January 2001.
Mr P confirmed that the parties decision to marry in Ireland was something that was still hurtful to he and his wife and confirmed his wife’s evidence to the effect that the decision to marry in Ireland was the matter referred to in the letter written to the husband by Mrs P to which I have previously referred.
Mr P confirmed that when L went to live in Kadina with his mother in April 2001, that his wife was so upset that she “had to go to Fiji to get over it”, and that she was both angry and tearful when she was upset about that issue.
Mr P conceded that although he limited opportunity to observe the interaction between L and his father at contact handovers, he had observed that L was very fond of his father and further said that L talked about his father at home and about the things that he and his father did together.
I find that Mr P was a witness of truth who attempted to put his attitudes to his daughter and his support of her desire to move to Queensland honestly before the Court.
I find that he has been supportive of the role his wife has played in the care of L over the years and that he is genuinely supportive of her moving to Queensland to care for L if required, notwithstanding that it would mean he and his wife spending a significant time apart.
I accept his evidence that he and his wife are financially able to facilitate transport for Mrs P between South Australia and Queensland.
I find that although Mr P and Mr W had an amicable relationship for a couple of months after the parties separation in October 2000, that by at least January 2001 that relationship had cooled significantly, and I find that Mr P does not currently hold the husband in high regard. He is critical of Mr W’s lack of communication with him, but was unable to satisfactorily explain in cross examination why he didn’t try to speak with Mr W at L’s birthday party held in Mr and Mrs P’s shed in March 2002, or why he got L to go inside the home and get a bottle of beer to take out to his father rather than doing it himself.
I accept Mr P’s evidence to the effect that he and his wife have lived in numerous places over the last few years and accept as a reasonable likelihood that he and Mrs P would move to Queensland to live upon his retirement if the wife, Mr K and L moved to live in Queensland.
The husband’s evidence
The husband gave evidence in his affidavit filed on 7th June 2002 that he was proposing for L to reside with him in Ardrossan in a two bedroom house with all modern conveniences. He proposed that L would be cared for by a suitably qualified child carer whilst he was in employment and that in due course that L would attend at the Ardrossan Area School, which provides education from primary school to year 12.
He said that L had a strong relationship with his parents who live in Adelaide and with his brothers and their children, and that he sees his parents on a regular basis.
The husband was concerned about a substantial reduction in the amount of contact that he could have with L if the wife was able to take him to Queensland to live.
It was obvious that the husband had suffered a great deal of anguish as a result of his marriage breakdown and particular of the fact of his wife commencing a relationship with his immediate superior at CS, where of course both he and the wife were employed.
There was little difference between the parties as regards their evidence in relation to the history of L’s care arrangements. He raised his concerns about difficulties he perceived in the relationship between the wife and her parents and in particular her mother on occasions.
Mr W raised his concern as to the age difference between the wife and Mr K, but reasonably said that he was unable to comment on the relationship between Mr K and L.
Mr W referred to his proposal of child care for L in the event that L lived with him in Ardrossan. An affidavit of Mr W was tendered in the Court on 27th June 2002 annexing a nationally recognised training certificate for KW who would be his proposed care provider in Ardrossan. His assertion to the Court that she would be available to care for L was not the subject of dispute on the part of the wife, who as I have said previously admitted to the Court that her objection to Mrs W was based on personal reasons and not connected to any doubts as to her ability to provide adequate child care.
Mr W disputed in his evidence that the wife’s desire to move to Queensland was motivated by a desire to advance her career and increase her earnings. He told the Court that her qualifications were sought after in the area of food technology and that there was work commensurate with her qualifications and experience available in Adelaide.
The wife conceded in cross examination that she would be able to find employment in South Australia commensurate with her qualifications. She did however say that of the dozen or so jobs that she enquired of in late 2001, early 2002, she was only offered an interview by one company, namely A and she in fact declined that interview as the rate of pay being offered was the same if not less than the amount she was receiving at that time from CS.
The wife’s remuneration package with AMCL as offered to her by letter dated 21st May 2002 totals $70,850 per annum being a base salary of $65,000 and superannuation contributions of $5,850. There are also various salary sacrifice options available to her.
It was clear from the husband’s evidence that he firmly held to the view that the sole motivation in the wife wanting to move to Queensland was to “…..destroy my relationship with the child and to facilitate a relationship with her present partner and to make my relationship with the child dysfunctional”. This was set out in paragraph 20 of the husband’s affidavit filed herein on 7th June 2002.
The husband said in evidence that he was concerned about the huge impact the wife’s proposed moved to Queensland would have on his relationship with L. He has seen L on each alternate weekend and overnight for one day of each week for the best part of two years. He said L had an equally close relationship with both he and the wife prior to separation and after separation as they had both worked on a full time basis during the whole of L’s life and L had, at least during their working hours, been cared for by others, primarily the wife’s mother.
The husband was concerned that the wife and Mr K had only lived together for a short period of time, that a separation had arisen between them and that for the majority of time that they had been in a relationship that they had not lived together in a family unit with L.
The husband gave evidence in paragraph 18 of his affidavit filed
7th June 2002 as to what he described as the wife’s “cavalier attitude” to the issues of residency and contact and the orders in place at that time. He also referred to his concerns as to what he regarded as the inappropriateness of the wife accepting the position with AMC in Queensland prior to making this application to the Court.
Mr W is of the view that L’s best interests would be served by being raised in Ardrossan. He referred to the educational facilities available in the town and the benefits of a close knit country community. He was concerned about the prospect of L being separated not only from him but from members of his extended family and viewed with some scepticism the proposal of the wife’s mother to live in Queensland with the wife, Mr K and L for an extended period of time.
Mr W also gave evidence in chief at trial and referred to the amicable relationship he had with Mr and Mrs P following immediately upon separating from the wife which enabled him to see L on an almost daily basis, have meals at the P’s home on occasion and take L to his house from the P’s home. He described that relationship breaking down, his perception of Mr and Mrs P’s changing attitudes towards him which resulted in it being more difficult for him to have contact with L, and the receipt of the letter from Mrs P which he thought was in approximately February 2001. He said the contents of the letter did not affect him as much as he thought because of the change in the relationship between he and Mrs P which had developed by that time.
His evidence was that he is now not allowed to pick L up if the wife is not at her parents home, although he can drop L off on a Thursday sometimes if the wife is not at home. He gave evidence to the effect that on other occasions he is told to arrive earlier or later at the P’s home to enable the wife to be present at contact handovers.
Under cross examination Mr W said that he makes a conscious choice not to communicate with Mr P at contact handovers because of his concerns that anything he says will be “twisted or turned around on me”. He conceded that such an attitude resulted in him making a conscious decision not to communicate with L’s primary care givers, but denied that it was bitterness that was leading him to act in that manner.
He said that he held the wife responsible for the breakdown in the parties marriage, that he was not bitter towards her but rather, no longer respected her. He agreed that he had told the wife that he would like L to know why the marriage broke down and that he could see the point in telling L his version of the marriage breakdown if for example L resented him at some stage for not being “there for him”. He conceded that he would have to bear some responsibility for the breakdown of the parties marriage by virtue of the fact that he was a party to the marriage.
His criticisms with regard to the wife’s care of L were what he perceived to be the wife’s late notification of contact changes or complete cancellation of contact periods, his contact time with L having been “cut and cut and cut” and his contact with L being impacted on due to the wife’s periodic unavailability at the time of handover which on occasions meant that the contact period did not occur.
Mr W conceded that he had not spoken with either of the maternal grandparents since approximately November 2001, that L would know that he did not communicate with L’s grandfather but said that he was unable to see that such knowledge would have an effect on L. He agreed however that L was observing this behaviour in people that he loved.
When asked why he would not say hello to Mr P if Mr P said hello to him at handover, he responded “my choice I guess”. When asked by Mr Richards what it would take to change his attitude towards Mr and Mrs P, he said that he didn’t know but that maybe that if they were civil to him and for example, invited him to their home, he may take a different view towards them. He agreed that one way to commence a change in his attitude would be to have conversation with Mr P on Thursday mornings, but his evidence was to the effect that he did not see why that would occur.
He agreed with the proposition that if Mr P said hello to him at a contact handover occasion, the next step would be up to him and he volunteered that the proceedings before the Court had “opened my eyes”. Mr W agreed that it might be more appropriate for him to communicate with Mr P but said that he hadn’t done it before because he had been hurt by their attitude and they had prevented him from seeing L. He conceded that he knew that Mr and Mrs P would rather that he and the wife made contact arrangements between themselves “as adults”.
Mr W conceded that after the negotiation resulting in the consent orders in January 2001, for the most part contact in accordance with those orders had occurred He agreed that prior to these proceedings there had been no need for him to seek legal advice or to seek any variation to the existing orders. He said that he had not filed any documents previously but was now trying to maintain as much contact with L as possible in light of what he perceives as the wife’s attitude as to contact and the difficulty that she caused in that regard leading to a decrease in time that he could spend with L.
He conceded that the wife had always permitted contact over and above that provided for in the order, and when asked if she should receive any credit for having fostered the additional contact, he said no such credit was due to her as it was no imposition on her to permit such additional contact.
Mr W said in cross examination that he agreed with a proposition put to him, namely, that he thought the wife was intending to destroy his relationship with L. He said his opinion was based on the wife having already done so by cutting back on his contact time. He said the relationship that he had with L was very dear to his heart. When asked why he hadn’t sought advice from a lawyer to obtain greater definition within the existing orders for contact, he replied that he had attempted to negotiate those issues with the wife directly as he thought they should be able to do that themselves without the need for legal assistance.
Mr W, when questioned about his complaints as to missing a contact period during one of the January holidays when L travelled to Adelaide with Mr and Mrs P, said he would like to be offered the opportunity to care for L if Mr and Mrs P were going away when L was in their care and that he could take leave from his employment for that purpose. He conceded however that he had not made such an offer to Mr and Mrs P.
Mr W conceded in cross examination that it was a valid point that he needed to communicate with the wife and her parents as L’s care givers on a better level than had occurred prior to the hearing. He said that when L was living with the wife and Mr K in Kadina he had no problems with regards to contact and the problems only arose at the time the wife resided in her parents home.
He conceded that if he had a better relationship with the wife they could sort out more of the problems with regards to L, particularly contact issues, but held the view that if the wife moves to Queensland they would not be in a position to sort out contact issues.
The husband said that he is entitled to five weeks annual leave, that he is not eligible at this time for long service leave and that he hadn’t applied for holiday contact prior to these proceedings as he had been told by the wife that he couldn’t take L away until she decided L was ready. This was a point that was conceded by the wife in cross examination. She further conceded that her attitudes in that regard had changed since she had formed the intention to move to Queensland with L. Mr W denied that he had not sought holiday contact at an earlier time because the current alternate weekend and Wednesday night contact suited his arrangements.
Mr W conceded that the arrangements by Mr and Mrs P for L’s care on a day to day basis were good arrangements and he did not deny that Mr and Mrs P had a loving and responsible attitude towards L. He was not prepared to concede that if the wife moved to Adelaide to live with L it would be in L’s best interests and said rather, that such a move would be in the wife’s best interests. He said one issue that arose was that if the wife moved to Adelaide with L he would not see his maternal grandparents as often.
He then said, almost as an aside, that if the wife and L moved to Adelaide to live, his parents could care for L whilst the wife was at work. He conceded that he had just thought of that on the spur of the moment and agreed that the wife had no proper relationship with his parents.
Mr W thought that if L was in day care rather than being cared for by his grandparents there would be some advantages to L and he suggested that one such advantage would be L having the chance to socialise. He said that if L resided with him, once L started school there would be a minimal need for after school care and that he would obtain additional assistance with his parents travelling to Ardrossan to assist him on an “as needs basis”.
Mr W said that during school holidays when he was not on leave he could share L’s holiday time with the wife, and that his parents and one of his close friends would be prepared to have L stay with them. Mr W did not dispute that the effect of the current arrangements was contact on each alternate weekend with an additional overnight period each week. He said that the fault that he complained about on the part of the wife was that in his view L should be able to see both of his parents, although he understood that was more difficult as he and the wife had separated.
He held to his view that the wife’s actions in attempting to move to Queensland were an attempt to undermine his relationship with L, but conceded that he had more contact under the current arrangements than the wife was required to provide under the existing order.
Mr W very reluctantly conceded that the wife could cut his contact with L considerably bearing in mind at least the Wednesday night overnight contact was not the subject of a specific order, and that by not doing so she had in fact furthered his relationship with L.
In re-examination Mr W said that he was not allowed to talk with L on the phone due to a direction to that effect by the wife in one of her emails and indeed that was conceded by the wife in cross examination.
There was evidence before me as to some friendships L had formed with young children in the Ardrossan area but I find that friendships between young children are often transitory in nature, although they may be less so in a small country town where it is likely that such children would progress through the education system together.
I find that the most significant change for L under the wife’s proposal would be the change in regularity and quantity of contact with his father.
L has had significant contact with his father since the parties separation in October 2002. For the first few weeks after the parties separated the contact was of short duration but very regular due to the ability of the husband to attend informally at the wife’s parents’ home which was in the same street and see L either in their home or take L to the former matrimonial home.
I find that such a regular contact arrangement had ceased by at least January 2001 but that from thereon the husband has had contact with L on average each alternate weekend for the entirety of the weekend and each Wednesday night overnight. I find that such regular contact has been advantageous for L in that it has enabled him to maintain a close and loving relationship with his father.
Under the wife’s proposal L’s contact with his father will be confined to seven weeks in each twelve month period with three blocks of fourteen days and one block of seven days. This represents a dramatic change in both the quantity of contact L could have with his father and the structure of such contact. To date the husband has not taken contact for extended periods, with such contact neither having been offered nor sought. There is therefore no evidence before me as to how L will adapt to such contact.
The wife conceded in her evidence that she had hitherto told the husband that she was not prepared for him to take L for blocks of holiday contact until such time as she considered that he was ready for such contact, but that she had reassessed that attitude in light of her desire to move to reside with L in Queensland.
I find that the wife’s acceptance of the suitability of block periods of contact is based less on a genuine reconsideration of what is in L’s best interests, and more on a pragmatic approach to the issue of contact to facilitate her desire to move to Queensland. That is not to say however that I am of the view that such contact would be inappropriate for L.
I am satisfied that L has a close and loving relationship with the husband. I am satisfied that, should the wife and L remain in South Australia, on the history of contact to date it would be appropriate for the husband to commence taking contact to L for extended periods of time. I am satisfied as to the husband’s ability to provide appropriate care for L during extended periods of contact.
I find on the evidence that L is genuinely pleased to see his father on each occasion of contact and that if he were not to see his father for some eight to ten weeks at a time, and in all probability be confined to telephone contact with him during that time, he would miss his father. I am not convinced that telephone contact between such a young child and a parent is always satisfactory from the view point of either participant. Nevertheless, it is a way of maintaining contact over long distances and does enable direct communication.
I am satisfied that although the change proposed by the wife would have a significant effect on L, his relationship with his father is close, loving and solidly established and could be maintained by four significant periods of extended contact during each twelve month period interspersed with regular telephone contact and the possibility of additional personal contact with his father in Queensland.
The wife’s proposal would involve L’s other main care giver and the person to whom, other than his parents, I find he has the closest relationship, namely his maternal grandmother, continuing at least for some time her role in L’s day to day care. If however she were not to remain in Queensland for any significant length of time, I find that L’s relationship with her, and indeed with his maternal grandfather, is so well established that visits with them in South Australia from time to time, or indeed visits from them to him in Queensland from time to time would be sufficient to maintain that relationship.
The husband’s proposal that L reside with him would be a significant change indeed in L’s circumstances. It is common ground that the husband has at no time been L’s primary care giver.
I find that from L’s birth in March 1998 to the parties separation in October 2000, the parties shared the responsibility for L’s care during their non-working hours and I accept the evidence of the wife that on occasions when L needed parental care or other input during working hours, it was more likely the wife that provided that additional care than the husband. Nevertheless, there is no evidence to suggest that such was a frequent event.
From the time the wife returned to full time employment at the conclusion of her maternity leave until L was some eight months or so old he was cared for during working hours by a nanny in the parties’ home. From the time he was some eight months old until the parties separation in October 2000, L was cared for during his parents working hours initially in the parties’ home by the wife’s mother and thereafter in the home of the maternal grandparents.
From October 2000 to the present L has resided in his mother’s household being that of the maternal grandparents other than for the period of April 2001 to November 2001. The wife’s mother has been responsible for L’s care in that time during the wife’s working hours with the wife assuming otherwise the role of primary care giver.
The husband has cared for L on average for two full days and two full nights and for one further overnight period in each fourteen day period. Under the husband’s proposal L would reside with him and be cared for during non kindergarten or school times and during the husband’s working times by KW. Ms W is well known to L and to both of the parties, but has never provided regular care for L.
The husband would otherwise assume the primary care giving responsibility for L, and the wife would have contact with L for two full days and three nights as well as one additional overnight period in each fourteen day period until L commenced attending at school.
Thereafter, she would have contact on two days and two nights and on one further overnight occasion during each fourteen day period during school terms, for half of the South Australian school holiday periods and for specific times on Christmas Day and Mother’s Day in each year. He also proposes that L would be able to have telephone contact with his mother twice a week for not less than ten minutes.
The husband is not proposing that the wife be restrained from leaving South Australia, but rather that she be restrained from removing L from South Australia.
The wife was clear in answers in cross-examination, and I accept, that if she is unable to relocate to Queensland with L then she would remain in South Australia whether or not L was residing with her.
The husband’s proposal would also involve a significant change in L’s circumstances as regards his close relationship with his maternal grandmother and his reliance on her for care for a significant proportion of his waking hours.
The father’s proposal would involve L remaining on the Yorke Peninsula of South Australia in the town of Ardrossan which is well known to L and indeed is an insignificant change to L’s current circumstances as the husband remains living in the former matrimonial home and L stays there on contact visits.
The husband’s proposal therefore would result in L living in the vicinity of the towns in which he has always lived but involve a complete change in his day to day care arrangements, including a change in the parent who assumes primary responsibility for such care.
I find that L’s mother and maternal grandmother have been, at least since October 2000, L’s primary care givers, save and except that the maternal grandmother had no part to play in L’s care between April and November 2001.
I would be concerned about such a dramatic change in L’s primary care arrangements without there being evidence before me of anything that would substantiate the need for such a change. L has rarely, if ever, spent more than two consecutive days in his father’s care since October 2000.
Neither party adduced any evidence as to the likely affect on L of such a change. I do note however that he is only 4 ½ years old and that his primary attachments are certainly to his mother and his maternal grand mother.
I would be concerned that notwithstanding his close and loving relationship with his father, the effect of such a dramatic change in his primary care arrangements may be confusing and distressing for him and not be in his best interests.
The husband’s proposal of course was also argued in the alternative in that he proposed that if L was not to reside with him, he should have contact with L for two full days and three nights as well as an additional overnight period in each fourteen day period, and once L commenced attending at school, for half of each of the school holiday periods. He also proposed that he have contact on Christmas Day and Father’s Day in each year as well as by telephone on two occasions during the week for not less than 10 minutes.
I find that such an alternative proposal on the part of the husband was an implicit acknowledgment that a change of residence involving a change of primary care giver, may not be in L’s best interests. It was to my mind at the very least an acknowledgment that the likely affect on L may be substantial and an acknowledgment that L’s circumstances to date have involved his primary care being provided by his mother and his maternal grandmother.
Both of the husband’s proposals facilitate L maintaining regular and extensive contact with each of his parents.
The husband’s alternative proposal of extended contact, with L remaining living with the wife in South Australia would to my mind have little effect on L’s circumstances. The primary care would continue to be provided by his mother and he would continue to have regular and indeed, extended appropriate contact periods with his father. He would also maintain his close relationship with his maternal grandmother. It might be said that in an ideal world such a result would ensure that L’s best interests remain paramount. However, his best interests, although the paramount consideration, are, as I have said previously, not the only consideration.
For such an outcome to be achieved the wife must be restrained from removing L from the South Australia without the written consent of the husband, with that written consent to be obtained not less than three weeks prior to the anticipated date of departure.
The fact that the parties have been unable to reach agreement in relation to the wife’s proposed relocation, indicates that the husband is unlikely to provide written consent to the wife to remove L from the State of South Australia, at least on a permanent basis.
It is clear that constitutionally the wife has a right to freedom of movement. That right is not absolute, and may have to give way to other factors relevant to L’s interests if those factors are of greater weight and significance.
The husband’s alternative proposal involves the mother remaining on the Yorke Peninsula of South Australia as the residence parent. I have previously found that if the wife is not permitted to relocate to Queensland with L she will remain in South Australia as either the residence parent or the contact parent. It is therefore nonsensical to regard the mother as being free to relocate without L. I have found that she would not do so and therefore to restrain the mother from removing L from South Australia without the father’s written consent is to effectively restrain the mother from leaving South Australia.
It is clear on the evidence that the wife is anxious to move away from the Yorke Peninsula of South Australia as soon as possible. This desire arises from various factors including her current proximity to the husband, the fact that she feels uncomfortable living in a close knit community near to that of the husband and her previous place of employment, her wish to continue in her new relationship with her and the husband’s previous employer and to live with him, and her wish to obtain satisfying and well paid employment.
Taking all of those matters into account, it is possible that if the mother was to remain in her current environment, she may well become unhappy, resentful and dissatisfied. This is particularly so bearing in mind the commitments I find that she and Mr K have made to each other as regards their future together and Mr K’s move to Queensland for his employment. If the husband’s proposal was acceded to the wife would be denied an otherwise freely exercisable right to freedom of movement because of the need to ensure and promote the ongoing relationship between L and the husband. The wife’s relationship with L may be affected in these circumstances.
That difficulty was discussed in the case of FRAGOMELI and FRAGOMELI [1993] FLC 92-393 where at page 80, 023 the Court said “…..The custodial parent’s freedom of movement and his or her right to choose where to live may itself be a factor in the welfare of the child. As the person responsible for the custody of the child, the custodian’s ability to function effectively is important to the child’s welfare….. A child’s welfare may well be adversely affected if the custodian’s movement are restricted. If the Court were to interfere unduly with the way of life which the custodial parent legitimately proposes to adopt, there may be frustration and bitterness which may adversely affect the child….”
I am aware that neither of the husband’s proposals prevent the mother from relocating herself to Queensland. However, as I find that she would not make such a move without L, they amount to a complete restriction on the mother’s ability to move.
I find, in light of the wife’s responses in cross-examination in this regard, which I accept, that the wife now places her role as L’s primary care giver over and above her desire to relocate.
I find, taking into account the matters raised in FRAGOMELI’s case to which I have previously referred, that the mother is likely to be unhappy, frustrated and dissatisfied if such a restriction is placed on her right of freedom to movement. She will effectively be prevented from living her life in the manner she wishes with her new partner in a new area with what she clearly perceives to be a significant improvement in her employment situation.
Such frustration and bitterness may affect L. The wife would in effect be forced to remain in South Australia, either on the Yorke Peninsula, which is in the immediate environment of the husband, or alternatively, in Adelaide if she is able to obtain suitable employment in Adelaide. She may them be without her current partner unless he gave up his employment in Queensland, and without the ability to take up the employment she has been offered in Queensland, which to her mind is both potentially more satisfying and certainly better paid than her current employment. Such a scenario could well result in L becoming aware of his mother’s unhappiness.
Section 68F (d) (2)
The practical difficulty and expense of a child having contact 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
The wife’s proposal would result in L moving to North Queensland which by its very distance from the Yorke Peninsula area of South Australia will create a practical difficulty for L in maintaining personal relations and direct contact with his father on a regular basis. It will also involve significant travel expense.
I accept the wife’s evidence that at least for the first eighteen months she is prepared to assume the responsibility for L’s travel between Queensland and South Australia and the cost of that travel. I have no evidence before me as to her intentions thereafter at least in respect of cost.
Under the wife’s proposal the child would travel between Queensland and Adelaide by aeroplane with presumably a car trip from Adelaide to the Yorke Peninsula of South Australia. The distance and the cost of such travel will affect the frequency with which L is able to have personal contact with his father. It will not impact on L’s ability to have regular telephone contact with his father, although I have already pointed out the sometimes unsatisfactory nature of telephone contact involving such a young child. The wife’s proposal also involves the possibility of contact being taken by the husband in Queensland, but neither party took up that issue in evidence in chief or cross examination.
The relevant issue is whether those difficulties will substantially affect L’s right to maintain personal relations and direct contact with his father.
Under the wife’s proposal L would have blocks of holiday contact with his father on four occasions per year with three of those occasions being for two weeks and one occasion being for one week.
Although this is a significantly different form of contact from that which has occurred hitherto, I have previously found that L’s close relationship with his father could be maintained by such a contact regime.
The husband’s two proposals both involve L remaining in South Australia and proximate enough to the husband to make alternate weekend contact and weekday overnight contact feasible in terms of distance to be travelled. This would presumably involve L either remaining on the Yorke Peninsula, or somewhere in the Adelaide metropolitan area, although even that distance would in my mind preclude the weeknight overnight contact as it would simply involve too much travel for both the parties, but more particularly, L.
I find that these proposals would not create any practical difficulties for L in maintaining personal relations and direct contact with either his mother or his father on a regular basis, nor would they involve significant travel expense.
Section 68F (2) (e)
The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs
I find on the evidence that both parties have the capacity to provide for L’s needs including his emotional and intellectual needs.
Neither party led any evidence complaining as to the standard of care provided for L by the other of them and both parties conceded L’s close and loving relationship with the other of them, which indicates that they are well able to provide for his emotional needs.
Both parties are well educated and have the capacity for well paid and satisfying employment and would be both well equipped in due course to provide adequately for L’s intellectual needs.
I find however a level of concern as to the husband’s appreciation of the extent of L’s attachment to his mother, and probably also to his maternal grandmother. It is the wife and her mother who have been L’s primary care givers since the parties separation in October 2000, some two years ago.
I am also concerned as to the husband’s attitude towards the wife, particularly in relation to the issue of contact. There is little doubt that the wife has taken it upon herself on many occasions to vary contact arrangements to suit herself without any proper consideration of the husband’s arrangements. It is equally clear however that the wife has facilitated contact over and above that required by the terms of the consent order and it was concerning that the husband was not prepared to give any credit whatsoever to the wife in that regard. He is clearly very angry with the wife and I find makes little effort to insulate L from those feelings.
The husband’s primary proposal to the Court involves a dramatic change in L’s day to day living arrangements, such that the husband would assume the role of primary care giver. L would be cared for during the husband’s working hours by someone with whom he is familiar, but on whom he has never been dependent for care, with the wife having contact with L on alternate weekends, once during the week and presumably being responsible for facilitating L’s ongoing relationship with her parents during the time that he is in her care.
There is nothing to suggest that the husband would be facilitating contact between L and the maternal grandparents whilst L is in his care, in light of evidence as to his relationship with L’s maternal grandparents.
He was quite frank as to his attitude as to Mr and Mrs P and his lack of desire to have any communication in particular with Mr P who has made the effort on occasions at contact handover. The husband has not considered the impact of his attitude to Mr P on L who must be aware of the frosty atmosphere at contact handovers and this is a matter of concern in light of L’s very close attachment to both his father and his maternal grandfather.
I find taking into account my concerns as to the husband’s appreciation of the extent of L’s attachment to his mother, maternal grandmother and maternal grandfather, his dismissive attitude of the wife’s efforts as regards the facilitation of additional contact over the last two years and his dismissal of any overtures of friendship from Mr P, that he has a degree of insensitivity to these issues which has the potential of impacting on L’s emotional state.
No evidence was called by the husband as to the possible emotional impact on L of such a dramatic change.
I find nothing in the evidence to suggest that the husband has properly considered the emotional impact on L of such a change and I find that his proposal for such a change is predicated more on his desire to have L remain living in South Australia, rather than a suggestion that such a change in residence is in L’s best interests.
Section 68F (2) (f) (g) (i) (j)
I find that the matters referred to herein are not relevant to these proceedings.
Section 68F (2) (h)
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that the wife has demonstrated a proper and appropriate attitude to L and to the responsibilities of parenthood as regards issues of housing, day to day care and childcare arrangements, where appropriate, to date.
I find, as referred to previously herein in paragraph 89, that the wife initially gave less consideration to the impact of her proposed move to Queensland on L than may have been appropriate. I find however that the wife is genuine when she says that if she cannot take L to Queensland with her, she will remain in South Australia as either the resident or contact parent and as a result I find that she can be relied upon to place L's needs before her own needs.
I find that she has taken an appropriate attitude to the husband’s contact with L since the parties separation in October 2000, albeit that she has taken somewhat a dictatorial attitude towards the husband in that regard on occasions. The fact of the matter remains however and it is common ground that she has in the main complied with the order for contact since 16th January 2001, and that she has facilitated additional overnight contact once per week on average since that time, notwithstanding there was no legal obligation on her so to do. I reject the assertion of the husband that she should not be given any credit for that course of action. I find that it represents a mature attitude to the maintenance of L’s relationship with his father.
I am satisfied that whether the wife lived in Queensland. or on the Yorke Peninsula, or in Adelaide with L, she would make proper arrangements for L’s welfare including the maintenance of L’s relationship with his father.
The wife’s proposal contemplates L continuing to reside in her household as he has done since separation in October 2000 and I find on the evidence that the wife has at least turned her mind to issues of housing and education in Queensland, albeit that at the time of trial definite proposals were difficult due to the distances involved.
I find that the wife’s proposal that her mother accompany she and Mr K and L to Queensland and continue her role in L’s day to day care for the first eighteen months or so of that transition is a genuine attempt to act responsibly towards L and to disrupt his existence as little as possible.
The husband has had less opportunity to demonstrate his attitudes to L and to the responsibilities of parenthood of L since separation, as of course his time with L has been significantly less than that of the wife.
I find, however, that at least until such time as the wife indicated a desire to move to Queensland, the husband was satisfied with the amount of contact he was able to have with L, albeit that he was clearly frustrated at times when the wife unilaterally changed contact arrangements. He was not so dissatisfied , however, as to at any time bring contravention applications in the Court, or to file any applications for extended contact.
I find that from the time of the parties separation in October 2000 until the time of these proceedings, the husband at least considered the arrangements as regards L to be acceptable.
The husband, for his part, did not interfere in the wife’s day to day arrangements for L and regularly took the contact to L to which he was both entitled pursuant to the order, and which he was offered by the wife, and to that end I find that he has at all times demonstrated an appropriate caring and responsible attitude to L and to the responsibilities of parenthood.
The husband’s first proposal would involve L residing with him and having contact with his mother.
Although I find that the husband would in all probability be capable of adequately fulfilling the responsibilities of parenthood on a day to day basis, he has demonstrated an attitude to L more reflective of his own needs than those of L. Such an attitude, together with what I find to be the husband’s lack of appreciation of how his attitude towards L’s mother and grandparents can impact on L’s emotional health, demonstrates in my mind a concern as regards the capacity of the husband to act responsibly in regards to some aspects of his parental role. I find that there is no doubt however that the husband’s first proposal as regards residence arose as a result of genuine distress as to the possibility of L being removed from his immediate physical environment.
As I have said previously, the husband’s second proposal is far more indicative of a balanced and sensible attitude towards L, where the emphasis on the part of the husband is on L’s needs rather than his own and it indicates a clear capacity to act responsibly in relation to parenting issues. The proposal does however, in my mind, ignore the possibility of L’s stability and happiness being impacted upon by what I would find to be an understandable frustration on the part of the wife if she is to be prevented from relocating to Queensland and the way of life she proposes to adopt in Queensland.
Section 68F (2) (k) (l)
I find that the matters referred to herein are not relevant to these proceedings
Conclusion
Having regard to all of the matters herein I find that L’s best interests would be served by the wife retaining the residency of L.
L has at all times since separation lived in his mother’s household and I have found that his mother has been the primary care giver since the parties separation in October 2000, with her mother playing a significant role in L’s day to day care.
I find that L’s primary attachments are to his mother and to a lesser extent, his maternal grandmother. That is not to say that he has anything other than a close and loving relationship with his father.
The mother’s proposal involves moving with L initially to Rockhampton and then to Gladstone in Queensland to reside with her partner Mr K and to work on a full time basis with AMC. Mr K is employed on a full time basis in the same area with CS.
The wife further proposes that her mother Mrs RP accompany she and L to Queensland, that she form part of the household in which L will reside for the first eighteen months or so of the move and that she continue of her role of care-giving whilst the wife is unavailable for L’s care.
The wife proposes that if her mother is unable to stay for the full eighteen months, or alternatively for some reason or other does not accompany her to Queensland, that L will attend at appropriate day care facilities prior to attending at kindergarten and school.
The wife proposes that she and Mr K will obtain suitable accommodation initially in Rockhampton and then in Gladstone and that when appropriate L will commence at pre-school and then school. The wife proposes that she will be residing in Rockhampton for approximately eighteen months and thereafter in Gladstone.
The wife proposes that L travel to South Australia to have contact with the husband on four occasions in each year, three of those occasions being for fourteen days and the fourth occasion being for seven days. The wife further proposes that the husband have regular telephone contact with L and that the husband have the facility to take additional contact with L at his expense and at his request in Queensland.
I find that such a proposal will be least disruptive for L in that the day to day existence to which he has become accustomed over the last 2 years will continue almost unchanged, save and except that he will be living in a different place and will not have regular weekly and fortnightly contact with his father.
I find that the strength of his relationship with his father is such that the relationship will be able to be maintained by four blocks of contact each year and I find that the wife has the financial capacity to facilitate such contact.
I find that the wife has at all times since the parties separated facilitated a regular contact regime between L and his father and that she will continue to do so even if she moves to Queensland.
I find that L is of an age to be able to have telephone conversations with his father, which will at least to some degree ameliorate any feelings of sadness L may experience by not being able to see his father as often as he might like.
I have previously found that from L’s perspective an ideal situation would probably involve having alternate weekend and school holiday contact with his father.
I note however that L’s best interests although paramount are not the sole consideration and the wife’s freedom of movement is an important consideration, albeit a consideration that in some circumstances may have had to give way to other factors relevant to L’s best interests.
I find however that even if the wife moves to Queensland to live with L the arrangements for L under the wife’s proposal will facilitate L’s best interests, will enable him to maintain a close and loving relationship with each of his parents, will enable him to continue to be cared for by his mother in a new and appropriate environment in Queensland and to build on the already close relationship that he has with his father during extended periods of contact each year.
I find that the husband’s proposal that he assume the primary responsibility for L’s care is not in L’s best interests for the reasons to which I have previously referred to herein and that such a change for L would be disruptive and potentially distressing for him.
I find that the husband’s proposal that L remain living with his mother in South Australia is unnecessarily restrictive on the wife's constitutional right of freedom to movement and I do not find in the circumstances of this case that such a right must give way to other factors relevant to L’s care to achieve an outcome that is in L’s best interests.
I certify that the preceding three hundred and thirty-seven (337) paragraphs are a true copy of the reasons for judgment of Mead FM
Associate:
Date:
0
0
0