Wales and Macy
[2010] FMCAfam 351
•21 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALES & MACY | [2010] FMCAfam 351 |
| FAMILY LAW – Child aged 4 years 1 month – child currently living with mother at [W] near [N] and spending regular time with the father at [G] on the Central Coast – mother has three older children by a previous relationship living with her – the father has an older son by a previous relationship with whom he spends substantial and significant time – the father seeks orders that the mother relocates with the child to the Central Coast district to enable the child to spend substantial and significant time with him – mother seeks to remain with the child at [W]. |
| Family Law Act 1975 (Cth) – Part VII |
|
| Applicant: | MS WALES |
| Respondent: | MR MACY |
| File Number: | NCC 3287 of 2007 |
| Judgment of: | FM Coakes |
| Hearing dates: | 20 November 2009 & 31 March 2010 |
| Date of Last Submission: | 31 March 2010 |
| Delivered at: | Newcastle |
| Delivered on: | 21 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Duane |
| Solicitors for the Applicant: | Gianacas Argiris McDonald |
| Counsel for the Respondent: | Mr M Bateman (for the 1st day of hearing) |
| Solicitors for the Respondent: | J J Lees & Associates (for the 1st day of hearing) |
ORDERS
That all previous parenting orders are discharged.
The parents have equal shared parental responsibility for the child [X] born [in] 2006 (“[X]”).
Each parent is to have sole responsibility for making decisions concerning [X]’s day to day care, welfare and development whilst he is in his or her care respectively.
That the parents are to consult each other in relation to any long term issue in relation to [X] and are to make a genuine effort to come to a joint decision about issues concerning his care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:-
(a)his education both current and future;
(b)his religious and cultural upbringing;
(c)his health;
(d)his name;
(e)changes to living arrangements for him that make it significantly more difficult for him to spend time with either parent.
That each parent is restrained from enrolling [X] in any school for the commencement of his formal or primary education prior to the beginning of 2012.
That [X] live with the mother.
That the mother is restrained from changing [X]’s place of residence more than 20 kms outside [W] unless such place is closer to the father’s place of residence on the Central Coast.
That the father spend time with [X] as follows:
(A) Until [X] commences his formal primary education 2012
(a)from 6.00pm on the Thursday until 6.00pm on the following Sunday each alternate weekend commencing on the first Thursday following the date of these orders;
(b)If not otherwise with the father pursuant to these orders, on Fathers Day weekend from 5.00pm on the Friday until 5.00pm Fathers Day;
(c)from 3.00pm 24 December until 3.00pm 25 December 2011 and 3.00pm 25 December until 5.00pm 26 December 2010.
(d)for one half of the school holidays applicable in the State of New South Wales during 2010 at the end of terms 2 and 3, and for 2 periods each of 7 days and separated by not less than 14 days during the Christmas school holidays in 2010 at the end of term 4 with each such period to be agreed between the mother and the father but in the absence of agreement for the first half of the school holiday periods at the end of terms 2 and 3 commencing at 10.00am on the first Saturday of each such holiday period and concluding at 5.00pm on the second Sunday and with the first of the 7 day periods in the Christmas school holidays commencing at 5.00pm on 26 December and concluding at 5.00pm 7 days later and for the second period to commence at 10.00am on the second last Saturday of the holiday period and to conclude at 5.00pm on the Sunday immediately preceding the commencement of the first school term in 2011 provided that the father is to be on leave from his employment for the whole of the periods of each such school holidays;
(e)during school holiday periods applicable in the State of New South Wales during 2011 at the end of terms 1, 2 and 3 for a period of 10 consecutive nights in each such holiday period as the parents are able to agree but in the absence of agreement from 2pm on the first Saturday until 2.00pm on the Tuesday of the second week of such holiday periods and provided that the father is absent from his employment for the whole of such periods, and for one half of the school holidays at the end of the term 4 in 2011 for such period as is agreed between the parents but in the absence of agreement commencing at 3.00pm on 25 December provided that the father is on leave from his employment for this period;
(f) At such other times and places as the parents are able to agree.
(B) Upon [X] commencing primary school in 2012
(a)during school terms each alternate weekend from 6.00pm Friday until 4.00pm Sunday, extended to 4.00pm Monday if the Monday is a public holiday or pupil free day, commencing on the first weekend of each new school term;
(b)
during school holiday periods applicable in the State of New South Wales at the end of terms 1, 2 and 3 for a period of
10 consecutive nights in each such holiday period as the parents are able to agree but in the absence of agreement from 2.00pm on the first Saturday until 2.00pm on the Tuesday of the second week of each such holiday period.
(c) for one half of the school holidays at the end of the fourth term for such period as is agreed between the parents but in the absence of agreement commencing at 3.00pm on 24 December in odd numbered years and 5.00pm on 26 December in even numbered years;
(d) if not otherwise spending time with the father pursuant to these orders, on Fathers Day weekend from 5.00pm Friday until 5.00pm Fathers Day;
(e)at such others times as the parties may agree.
(C)Upon [X] commencing High School
(a)during school terms each third weekend from 6.00pm on the Friday until 6.00pm on the Sunday, extended to 6.00pm Monday if such Monday is a public holiday or pupil free day, commencing on the first weekend of the new School term if [X] spent time with his father during the first half of the immediately preceding school holiday or on the third weekend if [X] spent time with his father during the second half of the immediately preceding school holiday;
(b)for one half of each school holiday period applicable in the State of New South Wales, including the Christmas holidays, such half to be as agreed but in the absence of agreement for the first half in even numbered years commencing at 10.00am on the first Saturday of such holidays and concluding at 5.00pm on the date mid way through such holidays and in odd numbered years for the second half of such holidays commencing at 10.00am on the mid point of such holidays and concluding at 5.00pm on the last Sunday before school resumes;
(c)if not otherwise spending time with the father pursuant to these orders, on Father’s Day weekend from 5.00pm Friday until 6.00pm Father’s Day;
(d)such other times as the parties may agree.
The times during which [X] is spending time with the father pursuant to these orders is suspended, in so far as it is necessary, or varied, to ensure [X]:
(a)is with the mother on Mothers Day weekend, if [X] is not otherwise living with the mother for such period and from the conclusion of pre-school or school on the Friday until the commencement of pre-school or school on the following Monday morning;
(b)is with the mother from 3.00pm on 24 December until 5.00pm on 26 December in even numbered years until [X] commences High School.
That implementation of the times [X] is to spend with the father is to be effected by the parents or their respective nominees known to [X] meeting at the McDonalds Family Restaurant, [address omitted] for the delivery of [X] to the father at the commencement of such period and the return of [X] to the mother at the conclusion of his time with the father.
That in the event that the mother is proposing to travel beyond [H] to the Central Coast on any occasion that [X] is to spend time with the father pursuant to these orders, the mother is to give not less than
24 hours notice of such proposal to the father by telephone, text message, SMS, email or any other means and the parents are then to implement delivery of [X] to the father and collection of [X] from the father at [omitted] or some other mutually convenient place on the Central Coast and which may also be effected by the nominee of each parent respectively.
That each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number, mobile telephone number and email address and within 24 hours of any such change occurring.
That each parent is to notify the other by SMS text message or mobile telephone if either parent is likely to be more than 10 minutes late in collecting, delivering or returning [X] at the commencement or conclusion of any time [X] is spending with his father pursuant to these orders.
That each parent is to advise the other as soon as possible by the best available means in the event of any of the following occurring:-
(a)[X] being seriously injured or falling seriously ill;
(b)[X] requiring urgent medical treatment from a doctor or ambulance crew;
(c)[X] being admitted to hospital.
That both parents are to authorise in writing the Principal of the
pre-school and school attended by [X] from time to time to supply to the other parent copies of progress reports, school reports, notices relating to pupils at such pre-school or school, school letters, invitations to any carnival, sporting or social functions, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such pre-school or school, and service of a sealed copy of these orders upon such pre-school and school is a sufficient discharge of this order.
That the mother is to ensure that the father’s name, address and telephone number is included on each pre-school and school enrolment form and medical record.
That the mother is restrained from enrolling [X] in any school activity to occur on the Friday afternoon or evening and any school or extra curricular activity to occur on a weekend or holiday period when [X] is due to spend time with his father pursuant to these orders without first discussing the proposed activity and possible enrolment with the father with a view to reaching an agreement, and not to occur unless so agreed.
Within 7 days of the date of these orders the mother is to purchase a communication book for use by the parents and to enable them to communicate with each other about the needs and wishes of [X] and to exchange details of important matters of his daily care, welfare, education, medications and medical treatment with such book to travel with [X] at change over and in a sealed envelope.
Each parent is restrained from denigrating the other parent and members of the other parent’s immediate family and extended family in the presence or hearing of [X] including making rude comments and insulting comments, and each parent is further restrained from causing or permitting any other person to engage in such behaviour in the presence of [X].
Each parent is restrained from using prohibited substances whilst [X] is in the care of each of them respectively, and each parent is to do all things possible to ensure other persons do not use prohibited substances in the presence of [X].
Each parent is restrained from consuming alcohol whilst the child is in the care of each of them respectively to such an extent that his or her parenting ability is impaired.
Each parent is at liberty to obtain all relevant medical records and to consult with [X]’s medical practitioners to obtain any information he or she may require and service of a sealed copy of these orders is sufficient authority for that purpose.
Both parents are to encourage and permit [X] to communicate with the other parent at any time requested by [X], and otherwise, with such communication to be either by telephone, email, text message, SMS, web cam, skype or other electronic communication with each parent to ensure within 3 months of the date of these orders that each has the facilities for communication by such means.
That both parents are to consult with a Family Dispute Resolution practitioner at a Family Relationship Centre or elsewhere or such other family consultant that may be agreed between the parents to assist with:
(a)resolving any dispute between the parents as to the terms or operation of these orders;
(b)reaching agreement about any changes to be made to these orders arising from any change in the needs or circumstances of [X], or the parents, in the event that any dispute or disagreement arises concerning such changes.
Each parent is restrained from making an application to the Court for variation of these orders to take account of the matters specified in Order 24(b) without first having complied with Order 24 in relation to such matters.
IT IS NOTED that publication of this judgment under the pseudonym Wales & Macy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC3287/2007
| MS WALES |
Applicant
And
| MR MACY |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] was born [in] 2006, is now 4 years and 2 months of age and is the only child of the relationship between the parties. Following the separation of his parents in early 2007 he lived primarily with his mother on the Central Coast of New South Wales and spent some time with his father until [X] and his mother moved to [W], near [N] pending the outcome of the final hearing. [X] has continued to spend time with his father.
The mother has three older children living with her from a previous relationship with Mr P, they are respectively [A] born [in] 1997 now aged 12 years, [B] born [in] 1998 now 11 years of age and their younger brother [C] born [in] 2000 now 9 years of age.
[A], [B] and [C] lived with the parties during the course of their relationship and have moved with the mother to [W].
The father has a child by a relationship with his former wife, Ms M, namely [Y] born [in] 1999 and is now 10 years of age. Both the father and his former wife live on the Central Coast. [Y] lives predominately with his mother but spends substantial and significant time with his father pursuant to Orders made in the Family Court of Australia at Newcastle on 1 May 2007 which provide that [Y] spends time with his father, during school terms, each alternate weekend from after school on Thursday until start of school Monday morning, for one half of the school holidays and other special occasions. The evidence establishes that the father spends time with [Y] in addition to the time prescribed by such orders.
The mother has not re-partnered.
The father has re-partnered with Ms P whose daughter [Z] is 12 years old and lives in the father’s household and spends time with her biological father from time to time.
The mother filed her Initiating Application for parenting orders in the Family Court at Newcastle 28 October 2007 seeking orders [X] live with her and spend defined time with the father together with a number of other practical parenting orders.
The father filed his response on 3 December 2007 seeking orders that [X] live with him from 6.00pm on Thursday until 8.00am on Monday in the first week and from 3.00pm on Sunday until 8.00am on Monday in the other week and for half school holidays and other special occasions, together with a number of other practical parenting orders.
The respective applications at the hearing
The respective applications crystallised by the time of hearing and the mother sought orders in accordance with her Amended Initiating Application filed on 5 August 2009, and seeking an order for equal shared parental responsibility with [X] to live predominately with her and spend frequent time with the father prior to commencing his formal education, and on a fortnightly basis from 6.00pm on the Thursday until 6.00pm on the Sunday with additional special occasions on Father’s Day and Christmas. Upon attending school the mother sought orders that fortnightly weekends continue but from 6.00pm on the Friday until 6.00pm on the Sunday with half holidays, special occasions and a number of other practical parenting orders.
The father sought orders pursuant to Draft Minutes of Proposed Orders filed in Court by his Counsel[1] also seeking equal shared parental responsibility but that the mother relocate [X]’s place of residence from [W] to the district within 20 kms of the father’s residence on the Central Coast and to remain living with the mother but to spend time with the father with gradually increasing periods of time until [X] commences his formal education when it would be week about.
[1] Exhibit F2
In the event that the mother did not relocate [X]’s place of residence then the father sought an order that [X] live with him and spend time with the mother as the parents agree.
In the event [X] was living with the mother on the Central Coast, the father sought additional time on a number of special occasions, together with a number of practical parenting orders.
Background facts
The mother is now 36 years of age and is not employed outside the home. She has a proprietary interest in the land she occupies at [W] together with other members of her immediate family. Her children by the previous relationship attend school in [N]. [X] attends pre-school in [N] each Tuesday and every second Thursday.
The father is 38 years of age and he is in full time employment with [omitted].
The parties commenced cohabitation in May of 2004 and continued living on the Central Coast until separation in either late 2006 or early 2007.
The mother remained on the Central Coast until she and the children moved to [W] in April 2009.
The mother has not re-partnered.
The father has been in a relationship with Ms P from early 2008 and they commenced living together in June 2009 with Ms P’s daughter, [Z] who spends week about with her biological father.
Existing orders
A number of orders have been made in these proceedings as follows:
(a)On 3 December 2007 interim consent orders were made in the Family Court of Australia at Newcastle providing that [X] live with the mother and that the father spend fine time with [X] each Saturday from 10.00am until 12 noon and from 10.00am until 1.00pm on Christmas Day and such other time as the parties may agree and there were some others orders.
(b)On 29 January 2008 further interim consent orders were made discharging orders of 3 December 2007, with [X] to continue to live with the mother and to spend time with the father as agreed and in default, from 8.00am until 5.00pm on each day of each alternate weekend and from 6.00pm to 8.00pm on his birthday. There were a number of other practical parenting orders and some injunctions.
(c)On 12 March 2008 further interim consent orders were entered into providing for equal shared parental responsibility, the orders of 29 January 2008 to be discharged, [X] to continue living with the mother and spend time with the father as agreed, or in default from 8.00am Saturday until 6.00pm on Sunday each alternate weekend, and for additional periods on his birthday, on the Father’s Day weekend, at Christmas and communication by telephone and with a number of other practical parenting orders and some injunctions.
(d)On 20 February 2009, consequent upon the transfer of the proceedings from the Family Court to the Federal Magistrates Court, there was no appearance by either party and all outstanding applications were dismissed for want of prosecution.
(e)On 31 March 2009 an order was made restraining the mother from changing [X]’s place of residence (from the Central Coast) and the father was ordered to return [X] to the mother not later than 2pm on 31 March 2009 at her home address at Gwandalan.
(f)On 16 April 2009 further interim orders were made by consent that the father spend time with [X] on a fortnightly basis from 6.00pm Thursday until 6.00pm the following Sunday with changeovers to take place at McDonalds Family Restaurant at [H]. There were some other injunctive orders.
The evidence
The mother relied upon the following affidavits:
(a)her affidavit sworn 31 July 2009 and filed 5 August 2009;
(b)the affidavit of her sister Ms W sworn 31 July 2009 and filed 5 August 2009;
(c)the affidavit of her mother, Ms D sworn 3 August 2009 and filed 5 August 2009.
The father relied upon the following affidavits
(a)his affidavit sworn 27 October 2009 and filed 29 October 2009;
(b)the affidavit of his former wife Ms M affirmed 30 October 2009 and filed 4 November 2009;
(c)The affidavit of his partner Ms P sworn 16 November 2009 and filed 17 November 2009.
I also had the benefit of a Family Report prepared by Ms Dinah Taylor, a Family Consultant attached to the Newcastle Registry published on 14 September 2009.
There were a number of exhibits.
I also had the benefit of listening to and observing the parents and their witnesses required to give evidence both in chief and in cross examination. The father’s former wife and his present partner were not required to give evidence.
I also had the benefit of listening to the evidence of Ms Taylor, the author of the Family Report who was cross examined by the father alone.
I was left with the distinct impression that both parents gave their evidence truthfully, that both parents love [X] very much and each would like what is best for him but at the same time recognising the importance of the role the other parent has to play.
The father was represented by Counsel on the first day of hearing, but just prior to the resumed hearing on 31 March this year, his Solicitors filed a Notice of Withdrawal and the father was without legal representation on 31 March. I therefore explained the procedure to the father for the remainder of the hearing, which he seemed to understand and the father subsequently cross examined the Maternal Grandmother and Maternal Aunt and Ms Taylor.
I was left with the impression that the father tested the evidence, particularly that of Ms Taylor appropriately and competently and was in no way disadvantaged by being obliged to represent himself. It is understandable that his submissions were short, and coloured by inevitable and understandable emotion given that he would like to live much closer to his son and see him much more frequently. In my view, there were no deficiencies in the manner in which the father represented himself or presented his case.
The issues
It seems to me the issues are:-
(a)What are the appropriate parenting arrangements for [X] and in particular should he continue living with his mother at [W] or be required to relocate to the Central Coast with his mother, or in the alternative should he live with his father.
(b)What is the consequence for [X]’s relationship with his mother if [X] lives with his father on the Central Coast.
(c)What is the consequence for [X]’s relationship with his father if he continues living with his mother in [W] and spends time with his father on the Central Coast.
(d)What are the advantages and disadvantages of the proposals put forward by each of the parents.
(e)Given the respective proposals of the parents, should the Court endeavour to formulate different arrangements for the time [X] is to spend with each parent.
The relevant law
I have regard to Part VII of the Family Law Act and in particular the amendments which came into being following the Family Law Amendment (Share Parental Responsibility) Act 2006. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration”.
I must consider, in determining a child's best interests, the matters set out in s.60CC. They are broken down into two primary considerations. Firstly:
“(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an Order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[2].
[2] Sub-s.65 DAA
It is also necessary for me to consider in the context of this case established case law in relation to relocation and the effect, if any, of the amending legislation upon such case law. It has been held that relocation cases are not a special category of case. The Family Law Act 1975 does not specifically mention relocation either in Part VII as it was or pursuant to the amending Act. Cases involving relocation are best described as parenting cases where the proposal of one of the parties involves relocation[3].
[3] Pascale v Pascale (1999) 25 FLR 607 and FLC 92-878 at para.40.
In A v A Relocation Approach (2000)[4], the Full Court of the Family Court of Australia summarised the guidelines to be applied in the determination of a parenting case involving a proposal to relocate the residence of a child. That summary, in effect, is this.
i)the welfare or best interests of the child as the case may be remains the paramount consideration but is not the sole consideration;
ii)a Court cannot require the applicant for the child's relocation to demonstrate compelling reasons for the relocation;
iii)the 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 a discrete issue, namely a primary issue, and a further or separate issue as to whether the relocation should be permitted;
iv)neither party bears an onus to establish that a proposed change to an existing situation or the continuation of an existing situation will best promote the best interests of a child;
v)a parent's rights as to freedom of movement are not to be ignored.
[4] A v A Relocation Approach (2000) 26 Fam LR 382
I also have regard to the High Court decision in U v U (2002)[5] in which the High Court said that:
“Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by movement of a parent.”
[5] U v U (2002) 29 Fam LR 74; FLC 93-112
In D v SV (2003)[6], the Full Court commented on the need to:
“Evaluate all options to determine if the welfare of the children could fit into the mother's right to live where she pleased.”
[6] D v SV (2003) 30 Fam LR 91at 78290; FLC 93-137
The Full Court of the Family Court of Australia late in 2007 gave consideration as to the effect of amending legislation upon relocation. It is reported as Taylor v Barker[7]. In that case Brewster FM permitted the mother to relocate with a 9 year old child to North Queensland from Canberra. The Full Court found that when considering the application of s.65DAA the matters which the Court has to consider under that section, being equal time or substantial and significant time, must initially be considered without regard to any relocation proposal which might also be before the Court.
[7]Taylor & Barker [2007] Fam CA 1246; (2008) 37 Fam LR 461;
The Full Court went on to say that any relocation proposal will then have to be balanced against the option of equal time or of substantial and significant time if either of those options has been found to be in the child's best interests, with the outcome normally emerging from a consideration of whether such an arrangement was reasonably practicable. The Full Court went on to say in paragraph 82:
“We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter and that, at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child's living arrangements.”
At paragraph 83 the Full Court said this:
“However, consistently with what the Full Court said in Goode, the options of the child spending equal time or substantial and significant time with each parent must now be given separate and real consideration notwithstanding that a relocation proposal may also have to be given subsequent consideration with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an equal time or substantial and significant time arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of the child in the case to spend equal time or substantial and significant time with each parent.”
In P v P[8], Brown FM gave very careful consideration to the word "meaningful" in the context of s.60CC(2)(a) and said as follows:
“256. In the context of s.60CC(2)(a) the use of the word "meaningful" by the Legislature is interesting. The ordinary definition of "meaning" and "meaningful" when it is attached to an idea or some object is denoting of the significance or importance of that idea or object. It seems clear that the Court is only to consider whether a relationship is meaningful to the child concerned after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the Legislature intends the Court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
257. The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered meaningful in the context of a parenting order is provided by s.65DAA. The emphasis is on time, but not merely on the extent of that time but rather on its quality and the manner of its utilisation with the child or children concerned. In this context the Court is to consider the parent concerned spending time that falls on weekends, holidays, week days and perhaps most importantly time that allows that parent to be involved in a child's daily routine and occasions of particular significance for both the parent and child.
258. The rationale of s.65DAA is that children benefit in an emotional and developmental sense from feeling that their parents are involved in all aspects of their care which flows from them being exposed to their parents in a variety of settings. These settings include fun activities on holidays and weekends, essentially interacting with their parents in a relaxed setting as well as the day to day reality of the child's life such as supervising homework and bed times, imposing day to day discipline, collection and delivery to school and sports training, essentially spending time with parents in more mundane situations. In this way the child is likely to have a more balanced and richer relationship with the parents concerned.”
[8] P v P [2006] FMCA Fam 518 at para.256 to 258
It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[9].
[9] Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286;
I have considered also the decision in Mazorski and Albright[10], another case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[10] Mazorski & Albright (2007) 37 Fam LR 518; at 526
Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
Her Honour Justice Bennett discussed the terminology in G & C[11] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[11] G & C [2006] FAM CA 994
The recent Full Court decision of McCall & Clark[12] their Honours Bryant, Faulks and Boland concluded that there are three possible interpretations of section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant [13] .
[12] [2009] Fam CAFC 92, (2009) 41 Fam LR 483
[13] Paragraph 119
The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[14].
[14] Paragraph 120
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazurka, and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said[15]:
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[15] Paragraph 122
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The family report
I was greatly assisted by Ms Taylor who prepared the Family Report and gave oral evidence and was cross examined appropriately by the father. Ms Taylor, in my view, is particularly well qualified and has extensive experience in the field of assessing and evaluating children’s relationships by interview and observation of them with their parents and significant other adults.
Ms Taylor has many years of experience in this field. Her qualifications and experience were not the subject of any challenge or criticism in these proceedings.
The Family Report by Ms Taylor identifies accurately in my view the fairly limited issues to be determined, the nature of the dispute between the parents, their relationship and the perception by each of the other[16].
[16] Paragraphs 14 to 22 inclusive of the Family Report
As a consequence of his age Ms Taylor interviewed [X] only briefly and observed him with his mother and maternal half siblings, father and his step-brother [Y].
Ms Taylor reports that [X] could not identify any angry, mean or scary people in his life and presented as an active, affectionate and confident little boy. He was observed to seek out affection from both his parents and half siblings[17].
[17] Paragraph 30 of the Family Report
In her evaluation Ms Taylor found it evident that [X] is dearly loved by the mother and her family and the father and his family and his presentation gives testament to this. Further, he does not seem to be exhibiting any symptoms of being exposed to the parents ongoing conflict at this stage but Ms Taylor cautions that if the hostilities or current “cold war” between them continues [X] may well be negatively affected and become anxious or depressed or may find it too difficult to transition between his parents and choose to align with the mother or the father against the other in order to escape the psychological pain of being the focus of his parents conflict[18].
[18] Paragraph 36 of the Family Report
I have considered very carefully and taken into account the whole of Ms Taylor’s evaluation to which I have referred in the Family Report[19].
[19] Paragraph 35 to 41 inclusive of the Family Report
Ms Taylor made a number of recommendations[20], essentially that [X] remain living with his mother in [W] and that he continue to spend time with his father in accordance with the current interim orders of
16 April 2009, that is from 6.00pm on Thursday until 6.00pm on Sunday until he commences his formal education in 2012 together with some block periods of time once he is four years of age and provided that the father is on leave from his employment, and with increased block periods of time once he is five years of age, again with the proviso that the father is able to take leave from his employment.
[20] Paragraph 42 to 52 inclusive of the Family Report
In cross examination, the father put to Ms Taylor that following his attendance at a Parenting after Separation Course conducted by Relationships Australia he was left with the impression that it would be of benefit to [X] for him to spend substantial and significant time with [X] but that this was contradicted by Ms Taylor’s recommendations which resulted in a progressive reduction in time, especially when [X] commences High School. Mr Macy referred to paragraph 39 of the Family Report in this context.
Ms Taylor responded that until 2012 [X] would be spending substantial and significant time with the father and his family. Ms Taylor said that as [X] gets older and he develops he may not want to spend time every alternate weekend with his father, and as his ability to conduct a relationship by other means develops at the same time whether it be by telephone or email or extended holiday periods, that can still be a very significant relationship. It is not the amount of time but the manner in which the relationship is conducted. It is not possible to conduct the same sort of relationship over a distance as a child becomes older.
The father asked Ms Taylor, based on his experiences with [Y], whether it was correct that older boys want to spend more time with their father.
Ms Taylor responded that the early years of High School are the beginning of adolescence which is a time when emotionally children begin to move away from their parents and immediate family and start to become more involved with their peers, and whilst this has inherent risks, it is part of the normal progression. Ms Taylor said that teenage children have to start to move away from their parents as an essential part of their development to become young adults.
Mr Macy asked Ms Taylor about the difficulty for [X] to develop an interest in sport if he remained living in [W], and in the context of the father having a keen interest in sport.
Ms Taylor responded that team coaches are now well aware of the reality of children spending alternate weekends away from their residential district and often compensated for this by training more children and putting more children on the bench.
Ms Taylor did not think this affected adversely a child’s opportunity to play sport and did not agree with the father’s proposition that this could affect a team’s viability.
At the conclusion of her evidence, Ms Taylor told me that she did not resile from any of her recommendations following the responses she gave to the father’s questions.
Discussion
Historically, the parties have not been able to communicate successfully. I was left with the distinct impression, having observed each of them give evidence, that each feels the other is responsible for poor communication and the continuing conflict between them. It is appropriate that each be cautioned that if, with the cessation of this litigation, there is no concerted effort to improve their communication then [X] is likely to become increasingly aware of his parents hostile feelings which would put him at risk of being negatively affected, as Ms Taylor points out succinctly in paragraph 36 of the Family Report.
Given that on the evidence before me [X] does not seem to have been affected by his parent’s conflict thus far, it would be a tragedy for him if his parents did not make a conscious effort to move forward.
I have some degree of confidence that with the proceedings completed both parents will be able to work towards achieving what is best for [X].
The fact that [X] lives at [W] has placed a consequent difficulty for him to spend time with his father as a consequence of the distance between [W] and [G].
The evidence establishes that distance by road is about 250 kms entailing a journey of between 2-3/4 hours and 3-1/2 hours depending upon prevailing traffic conditions and weather. I find on the evidence the most likely journey time is between 3 hours and 3-1/2 hours at the times when implementation is likely to occur if [X] remains living at [W].
I take into account insofar as the journey is concerned that much is by expressway and dual carriageway and that constant improvements are being made to the Pacific Highway such that in the not too distant future there will be no single lane carriageway. That however does not relieve the tedium of such a journey for [X] or either of his parents.
I am satisfied on the evidence that the mother had good reason to return to [W]. She was living at [W] at the time the parties commenced their relationship and subsequently moved to the Central Coast, she has very significant family support in the district and has an interest in rural property.
The father is critical of the mother’s present accommodation at [W] asserting that it is temporary accommodation, dilapidated, and in a dangerous condition, was not council approved, was possibly the subject of a demolition order, is uninsulated and is surrounded by debris, disused vehicles and machinery and building materials which represent a danger for [X].
The mother was cross examined extensively by Mr Bateman about all such matters and I am satisfied on the mother’s evidence that she has done all she can to make the accommodation comfortable and safe, not only by carrying out considerable improvements but by clearing some of the debris.
Whilst the home may be humble and modest, I find on the evidence it provides appropriate and safe accommodation for the mother and her children[21].
[21] See photographs Exhibits M1, M2, M3 & M4
I am also satisfied on the evidence that there are no outstanding Council notices concerning the home the mother occupies and that it is not the subject of any demolition order.
I am also satisfied on the evidence that the present accommodation occupied by the mother is temporary and that she plans to build a more substantial home for which she has received development application approval from the local authority and adjacent to her sister’s home.
The mother gave detailed evidence as to her financial circumstances. Her income is derived from a combination of single parent Centrelink benefits, tax benefits A and B and Child Support from the father. She repays her father in respect to the loan from him with which she acquired her interest in the land and is able to save monies from her combined income for the costs of improvements to her home. The mother no longer has a liability to pay rent, as she did on the Central Coast where she was paying $260.00 per week.
I am satisfied on the mother’s evidence that she is able to enjoy subsistence living to a large extent growing vegetables, owning egg laying chickens, deriving fruit from a number of fruit trees and having a supply of meat from friends. There is also some supplementary income from owning a small herd of cattle owned by the greater family.
On 4 April 2009, at some time in the afternoon, the father made an ill informed decision to visit the mother’s property without any prior forewarning at all and with a view to taking photographs of the mother’s home and surrounds to assist his case. Not surprisingly, the mother was alarmed and she told the police[22] , that she recognised the father’s work vehicle, saw a female apparently taking photographs and was afraid that the father was there to remove [X] from her care.
[22] Annexure B to the Mother’s affidavit sworn 31 July 2009
Subsequently, the mother obtained a final apprehended violence order against the father made at [omitted] Local Court on 10 August 2009 for a period of 12 months. I accept the father’s evidence that he consented to the making of such an order.
There is no evidence to support the mother’s contention that the father intended to remove [X] from her care at that time. However, it was reasonable for the mother to react with some alarm.
This incident illustrates the tension which exists between the parties. It could have been avoided if the father had given more thought to his actions.
Irrespective of where [X] lives, I propose to order the use of a communication book. The mother gave evidence at the hearing that this had been introduced following the publication of the Family Report and had been working quite successfully. Whilst the father had made inappropriate comments in the communication book in the past, I am satisfied that the parents are now able to focus on beneficial written communication concerning matters relating to [X].
I find on the evidence that [X]’s primary attachment is to his mother which whom he has lived with for the whole of his short life. The parties separated when he was about 12 months of age.
The father acknowledges that the mother is a good mother[23] but is critical of her for deciding to move to [W], although I note that the father subsequently consented to the interim order which enabled the mother to relocate to [W]. During his evidence, the father explained that he was unrepresented at that time and thought it was a temporary order only.
[23] Paragraph 55.24 of the Father’s affidavit sworn 27 October 2009
During his cross examination, the father said that he accepted that the mother had a genuine reason for wanting to stay at [W].
The father was asked if he accepted [X] was happy where he is and the father said:
“[X] is generally a happy kid. It is great that he is happy where he is. He is a very self confident loving and happy child. He will be happy on the Central Coast as well.”
I find on the evidence that the father is not reasonably able to relocate his place of residence to the [W] district, and for a number of reasons.
First, he is in full time employment where he has worked for almost 2 years with some flexibility as to his working hours to take into account his parenting responsibilities. He has 4 weeks annual leave.
Second the father spends substantial and significant time on a fortnightly basis and during the school holidays with his son [Y] as a consequence of Family Court orders to which I have referred earlier in these reasons. Additionally, he spends extra time with [Y] whose mother also lives on the Central Coast.
Third, the father’s present partner, with whom he has been in a relationship for about 2 years has a 12 year old daughter living with them who spends time with her biological father week about and who lives within a close distance of the father’s home. The father has his extended families support on the Central Coast.
Similarly, I find on the evidence that the mother is not reasonably able to return to the Central Coast to live and for the following reasons:
First, she now has an established home at [W] which she has continued to establish on a long term basis. To return to the Central Coast would involve leaving that home, forgoing the financial investment she has made given the inevitable difficulty, or perhaps impossibility of realising the assets she has, given the family involvement, and then being obliged to find rental accommodation.
This would also involve moving her three older children away from the district where they are now settled.
The mother would lose the very considerable support of her extended family who live on the same property where she is currently living.
It is against this background that it is not possible for the Court to make orders in respect of which both parents could feel content.
Application of section 60CC and the legal principles
As to section 60CC I make the following findings:
(2) The primary considerations are:
a) the benefit to the child of having a meaningful relationship with both of the child's parents;
I find on the evidence before me that there is a very significant benefit for [X] in being able to continue to enjoy a meaningful relationship with both his parents. It is clear on the evidence before me that both parents love [X] and have much to offer him.
The evidence establishes that notwithstanding some difficulties in the time [X] has spent with the father since separation, he has been able to maintain a satisfactory if not good relationship with each of his parents in spite of the continuing conflict between them, and after the mother moved to [W].
The issue I am required to decide is whether the meaningful relationship which currently exists can be continued either by [X] remaining in [W] or moving to the Central Coast, living with his mother and spending more frequent time with his father.
The other issue is whether the relationship between [X] and his father is likely to be less meaningful if [X] stays at [W].
I conclude on the evidence before me, and particularly that of
Ms Taylor that [X] will be able to maintain a meaningful relationship whether he lives in either place.
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied on the evidence before me that neither parent will willingly expose [X] to risks of this nature. On the evidence before me, [X] has not been exposed to inappropriate behaviour by his parents which has had any adverse affect upon him but the parents are to be cautioned for the reasons set out earlier in these Reasons for Judgment as to the importance of improving their communication in [X]’s best interests.
(3)Additional considerations are:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
This subsection has no application given [X]’s young age and his present developmental stage. Further, there is no evidence of [X]’s wishes to which I could attach any weight.
b) the nature of the relationship of the child with:
(i)each of the child's parents;
There is no doubt on the evidence before me that [X] has a fond, close and loving relationship with each of his parents. Further, I am satisfied on the evidence that both parents have much to offer him and will continue to be able to do so, irrespective of whether he is living at [W] or on the Central Coast. I am satisfied that the outcome of these proceedings will not adversely affect either parent’s genuine wish, which I find exists on the evidence, to parent him appropriately and equip him for adult life.
(ii)other persons (including any grandparent or other relative of the child);
There are a number of significant other persons with whom [X] enjoys a close and loving relationship including his half siblings in the mother’s household and members of the mother’s extended family and other children living on the same property, and the maternal grandmother, and the father’s household, his son [Y] and the father’s present partner and her 12 year old daughter [Z].
c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Whilst the evidence establishes that following separation [X] did not spend frequent time with the father, and there are a number of reasons asserted by each of the parents as to why this did not occur, I am satisfied that since the mother moved to [W], and since the orders of
16 April 2009 both the mother and the father have been both willing and unable to ensure [X] spends time with his father pursuant to such orders.
In his evidence in chief, that father said he had not spent time with [X] on two occasions pursuant to such orders since Christmas of 2009. In cross examination, the father conceded that the mother had given him an explanation for those occasions. I suggested to the parents that some discussions take place for some make up time and a consent order was made to this effect on 31 March.
I am satisfied on the evidence that both parents will continue to ensure that [X] spends time with the father, irrespective of where he is living.
The present arrangement for change over at [H] works reasonably well for both parents. It is a journey of about 2 hours, or a little less, for the mother and a journey of about 1-1/2 hours or a little less for the father. The evidence establishes that both parents are able to continue to make such journey, and can arrange for a nominee if either is disabled for some reason.
Whilst Ms Taylor suggests that the mother drive to the district where the father lives for 2 months out of 3 before [X] commences his formal education[24], I am not satisfied that this would be an equitable arrangement for either the parents or [X]. In my view, the parents should share the journey equally, or as near as possible in relation to both time and cost. If the mother is to remain at [W], it is appropriate that I make an order for the mother to give some prior notice to the father in the event that she travels close to the area where the father lives if she is proposing to visit her mother who also lives in the Central Coast district to enable changeovers to occur closer to the father’s home.
[24] Paragraph 44 of the Family Report
d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
During cross examination the mother said she could not agree to [X] living with the father and would therefore relocate her place of residence to the Central Coast if the court made such an order. I accept the mother’s evidence.
Consequently, [X] will continue to live with his mother whether it will be at [W] or on the Central Coast. It follows that there will not be any significant change in his present circumstances insofar as he will continue to live with his mother and spend time with this father. Whilst that time may be a little more frequent on the Central Coast, and the father may be able to be more readily involved in his day to day life whether it be at school or at sporting activities or extra curricular activities, he will never the less continue to spend significant time whilst he remains living at [W].
The mother gave evidence that if she moved she would have to find premises to rent and that she would relocate with all four children. The mother said that she had not made enquiries of her mother as to whether she could live with her at [S]. Whilst the mother had lived their previously with the father prior to separation, I infer from the mother’s evidence that it would not be feasible for her to cohabit with her mother.
I find on the evidence that there will be no change in [X]’s circumstances if he continues to live with his mother at [W] and spends time with his father and that there is likely to be no significantly adverse affect in [X]’s circumstances if he were to move with his mother to the Central Coast, but it is likely that in those circumstances [X] will miss the company of his extended family living at [W] and his mother would not have the support or assistance she presently has.
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Whether [X] lives at [W] or on the Central Coast, he will continue to see and benefit from the company of members of the mother’s extended family at [W], and the paternal family on the Central Coast, including [Y], [Z] and the father’s present partner.
Consequently, it seems to me that there is unlikely to be any adverse affect insofar as [X]’s relationship with members of extended families is concerned whether he lives at [W] or on the Central Coast.
e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
There is a considerable practical difficulty if the mother remains at [W] and the father remains on the Central Coast. That difficulty involves a long journey by road which on the evidence of Ms Taylor, [X]’s likely to resist as he gets older, either because it is boring, or because he has other interests or because the journey itself loses appeal. This is a significant factor and it cannot be ignored.
Whilst there is an expense for both parents, it seems to be an expense that each has met.
There is evidence before me as to the difficulties of communication by telephone.
This is not a matter where I propose to make a specific order for telephone communication at certain times. It seems to me on the evidence that [X] is not yet of an age where defined telephone communication would be of benefit to him. Rather, [X] should be encouraged by each parent to contact the other parent by telephone and I am satisfied that both parents will not only do this but also permit him to telephone the other parent when [X] asks that he can do that. It is appropriate also, irrespective of where [X] is living, for there to be provision for other communication by electronic means whether it be email, text message, SMS, webcam, skype or any other form which may develop in the future. I propose to make orders accordingly.
Ms Taylor referred to at length to [X]’s ability to conduct a telephone conversation at different ages[25], and recommended specific times for communication by telephone[26]. For the reasons I have given, I do not propose to adopt that recommendation.
[25] Paragraphs 31 & 32 of the Family Report
[26] Paragraph 45 of the Family Report
If [X] is living on the Central Coast, the practical difficulty of spending time with the father will be removed to a very large extent.
f) the capacity of:
(i)each of the child's parents;
I have no hesitation finding on the evidence before me that both the mother and the father are able to provide not only for [X]’s day to day physical needs but also his emotional and intellectual needs.
[X] attends pre-school 2 days in one week and 1 day in the following week in the [W] district and on the Friday in the district where the father lives when he is spending time with his father.
I am satisfied on the balance of probabilities the mother is in a much stronger position to meet [X]’s financial needs at [W] as opposed to the Central Coast where she would be paying rent and would not have the benefit of the subsistence lifestyle she has currently developed.
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The evidence does not enable me to make a finding as to the extent to which the father’s partner and members of his extended family are able to provide for [X]’s intellectual needs but I am satisfied that they are able to assist the father with his day to day physical needs and his emotional needs.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
As to [X]’s maturity, lifestyle and background, I am satisfied on the evidence that he is a happy little boy enjoying the time with both his parents and thriving at [W].
Ms Taylor found [X] to be an active, affectionate and confident little boy who could not identify any angry, mean or scary people in his life. Ms Taylor observed him to seek out affection from both his parents and half siblings. I find on the evidence that it is to the credit of both parents and notwithstanding their difficulties in communication, both have ensured that he has been brought up to be a little boy of this nature.
h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This has no application on the evidence before me.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
To a limited extent, both parents have failed in their responsibilities of parenthood following separation in failing to communicate successfully or devise a means of communicating successfully and which has led to continuing conflict between them and a failure to resolve that conflict. Each parent continues to have a poor perception of the other but against that, both parents have demonstrated an entirely appropriate attitude to parenting [X] and each has assumed and demonstrated the responsibility of continuing to be able to do so. I was left with the impression from the manner in which the parents gave their evidence that they have respect for each other as parents and recognise the important parenting role that each can play and give [X] both in the short term and the long term.
j) any family violence involving the child or a member of the child's family;
I have referred to this earlier in these Reasons for Judgment and no further comment is necessary.
k) any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
I have referred earlier in these Reasons to the apprehended violence order made at [omitted] Local Court on 10 August 2009 and to which the father consented. That order is in the usual mandatory terms as to a, b and c and there are further orders that the father is not to enter the premises at which the mother may from time to time reside or work, and is not to approach or contact the mother in the usual terms, but there is an exception if it is permitted pursuant to parenting orders made under the Family Law Act.
I am satisfied on the evidence before me that the likelihood of further domestic violence is extremely minimal.
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In framing the orders I propose to make, I would endeavour to avoid the need for further proceedings.
m) any other fact or circumstance that the court thinks is relevant.
Whilst the father would like a specific order for him to spend time with [X] on [X]’s birthday, [Y]’s birthday and the father’s birthday, it is impractical to make such order if [X] remains at [W]. These birthdays are respectively in February, May and June and it is likely that the father will be able to arrange such a celebration at a time when he is seeing [X] about that time.
In my view, it is equally impractical to make such an order if [X] is living on the Central Coast.
Whilst there was some evidence in cross examination of the father about the possibility of him being the father of a child [R] born [in] 2008, I am unable to make any finding to that effect but accept the father’s evidence that he would like to find out if he is the father, but has not been able to communicate successfully with the mother, and I accept his evidence that all things being equal he would like to have a relationship with [R].
The mother hopes to obtain employment once [X] commences his formal education, and probably part time.
I am satisfied on the evidence the father is in a stable relationship with Ms P, and that the father also enjoys an amicable relationship with his former wife, [Y]’s mother, and who was prepared to give an affidavit of support of the father in these proceedings.
Given the distance between the parents’ homes it is impractical for Christmas to be shared once [X] starts school. I propose therefore to make orders that in the absence of agreement [X] spend Christmas with one parent or the other.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these matters at some length earlier in these Reasons and no further observation is necessary.
Section 61DA
When making a parenting order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in this Section.
Whilst both parents proposed equal shared parental responsibility, and whilst that, by itself, is not a reason to make such order I am satisfied from my observations of the parents whilst giving evidence that it is appropriate to make such an order.
Ms Taylor suggested that the mother have sole responsibility for decisions regarding [X] except for critical medical decisions[27]. I am not satisfied on the evidence before that it is appropriate to make such an order. I am satisfied that both parents ought to have input in relation to the longer term decisions and I am reasonably confident they will be able to discuss such matters appropriately, especially upon the cessation of the current litigation. I will define those matters about which they are to confer and I will make orders as to a procedure for resolution if they are unable to agree.
[27] Paragraph 42 of the Family Report
The cessation of litigation will enable them both to focus more upon [X]’s needs to the extent they have not been able to do so in the past.
Section 65DAA
Consequent upon making an order for equal shared parental responsibility the Court must then consider making an order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.
I take into account the matters I am required to take into account under section 65DAA(5), and give the distance between [W] and the Central Coast, this is a matter where practical considerations require substantial and significant time for [X] with his father if he remains at [W] and equally, if he is living on the Central Coast.
The advantages and disadvantages of the prospective proposals
The advantages if [X] remains at [W]
I am satisfied on the evidence before me that [X] is well settled at [W] with his mother and his half siblings. It is apparent from his conversation with Ms Taylor[28] that he likes living on the farm and playing with his cousins. The evidence from both parents is that he is a happy child, and if he remains at [W] he is able to maintain the relationship with members of the mother’s extended family and he has certainty of accommodation in the long term.
[28] Paragraph 29 of the Family Report
The disadvantages if [X] remains at [W]
[X] is unable to see his father as often as if he were living on the Central Coast and he is unable to maintain the relationship he enjoyed with the extended paternal family when he was living on the Central Coast. He is also separated from his step-brother [Y] and there is a long fortnightly journey to maintain the relationship with his father.
The father is not able to be involved as much as he would like in the sense of being able to attend school functions, sporting and extra curricular activities and being involved in the school community although the evidence is less than clear as to the extent to which the father would be able to do this, and it was the subject of evidence given by Ms Taylor when the father cross examined her.
Advantages and disadvantages if the mother moved with [X] to the Central Coast
[X] would be likely to be able to spend more time with his father and there are much better opportunities for the father to be involved in his school activities and any extra curricular activities including sport. [X] told Ms Taylor that he likes sleeping over at his father’s home and likes playing with [Y].
The disadvantages are that on the evidence before me the mother’s financial circumstances would be compromised significantly arising from the need to rent premises from a limited income although there is nothing to suggest that she would not be able to continue to care for [X] appropriately. [X] would be displaced from his present well established rural lifestyle and the mother would be obliged to move her other three children and resettle them as well as [X].
Final conclusion
When I compare the respective proposals and the advantages and disadvantages, my conclusion at the end of the day is that I give greater weight to [X]’s present stability with his mother and the fact that he will be able to maintain a very significant and meaningful relationship with his father if he remains at [W] notwithstanding the distance between [W] and the Central Coast.
I am satisfied that [X] has a strong and growing relationship with his father which will be maintained.
I accept that the father is disappointed with my decision but I take into account his evidence and his earnest wish to be an effective father to [X].
I have taken into account the right of both parents to choose their place of residence and their freedom of movement.
I have considered very carefully whether it is possible for the Court to formulate different arrangements for the time [X] is to spend with each parent and I conclude that it is not possible for me to do so given the parties respective circumstances.
Having concluded that [X] should remain living with his mother at [W] I find on the evidence that the amount of time [X] should spend with his father should be largely as recommended by Ms Taylor with the father to secure leave from his employment during the extended periods prior to [X] commencing his formal schooling in 2012, but for such restriction not to apply once [X] commences school. It is unrealistic in my view to require the father to take leave to that extent when he has other obligations in relation to [Y] and his annual leave is limited. Further, if the father’s relationship with Ms P continues then she will be able to assist with [X]’s care during school holidays, and there are other members of the father’s extended family who could assist.
For these reasons I make the following orders.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: Christine Norman
Date: 19 April 2010
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