Walpole and Zepps
[2007] FMCAfam 884
•29 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALPOLE & ZEPPS | [2007] FMCAfam 884 |
| FAMILY LAW – Parenting – relocation – mother seeks to move to Darwin with the child – effect on child’s meaningful relationship with father. |
| Family Law Act 1975 (Cth) ss.60B, 60CC(2) (3) and (4) |
| A and A: Relocation Approach (2000) FLC 93-035 B & B [2006] FamCA 1207 |
| Applicant: | MS WALPOLE |
| Respondent: | MR ZEPPS |
| File number: | PAM 4038 of 2006 |
| Judgment of: | Henderson FM |
| Hearing dates: | 10 & 11 September 2007 |
| Date of last submission: | 11 September 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 29 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Winfield |
| Solicitors for the Applicant: | White Barnes |
| Counsel for the Respondent: | Mr Schroder |
| Solicitors for the Respondent: | Harman & Co |
ORDERS
The mother be permitted to relocate with the child, [D] born in 2001, to Darwin two weeks prior to the commencement of the Darwin school term and thereafter the child live with the mother.
The parents have equal shared parental responsibility for the child
The child spend time with the father as follows:
(a)For all school holidays except for two weeks in the Christmas school holidays:
(i)School holiday periods during school term to be calculated from and commence the first Saturday after school ceases and to end the Friday before School resumes;
(ii)School holiday periods during Christmas in odd numbered years to be calculated from and commence the first Saturday after school ceases for a period of 28 days and to end on the 28th day;
(iii)School holiday periods during Christmas in even numbered years to be calculated from and commence the 15th day after school breaks up and end the Friday before School resumes;
(b)At all times the father is in Darwin by the father giving the mother 21 days notification.
The parents to share the cost of air travel for the child to and from Darwin each calendar year with the mother to pay for the first two return air tickets and the father the father the remaining two return air tickets.
The parents to notify each other 14 days prior to school holidays commencing of the time and flight number of the child’s return flight from Darwin to Sydney and Sydney to Darwin.
The child to communicate with the father by telephone, email on six occasions each week and the mother to facilitate the child’s communication with father in all respects.
The mother to facilitate the child speaking to his maternal grandmother on no less than one occasion each week.
The mother to forthwith notify the father of the child’s residential address and telephone number in Darwin.
The mother to forthwith notify the father of the school the child is to attend in Darwin in 2008 and to give all consents necessary and sign all authorities with the school to ensure the father receives copies of the child’s school reports and notification of school events with any cost associated in complying with this order to be borne by the mother.
The mother forthwith notify the father of any serious injury to the child, hospitalisation or ongoing medical treatment including the name and contact details of any treating health professional.
The father is permitted to contact any of the child’s treating health professional at any time and the mother is to facilitate this order being carried out.
Parents to undergo a parenting after separation course to be completed within the time determined by the service provider.
IT IS NOTED that publication of this judgment under the pseudonym Walpole & Zepps is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 4038 of 2006
| MS WALPOLE |
Applicant
And
| MR ZEPPS |
Respondent
REASONS FOR JUDGMENT
The matter of Walpole and Zepps was heard by me on the 10 and 11 September 2007.
The mother was the Applicant and was represented by Ms Winfield of Counsel. The father was the Respondent and was represented by
Mr Schroder of Counsel.
The mother’s Application was that she and [D], born in 2001, aged 6, live in Darwin from 2008 where the mother’s fiancé, Mr C lives. Mr C is a serving member in the Australian Army.
The father opposes the mother’s relocation to Darwin and proposes that the child remain in Sydney and that he and the mother have equal time with their son.
The father said in the event I did not permit the mother to remove [D] to Darwin and the mother chose to move to Darwin without the child, [D] should live with him.
The mother’s position is that if I do not permit her to remove [D] to Darwin she will stay in Sydney. The mother’s attachment to her son is such that she would not contemplate anything other than being his primary carer.
There is no issue other than that the parents have equal shared parental responsibility for [D]. Thus the considerations of the child spending equal time with his parents or substantial and significant time with one parent and living with the other must be considered.
As this is a relocation matter I must set out clearly the parties competing proposals.
The orders the mother sought were set out in her Amended Application filed 14 August 2007 and were :
a)She and [D] remove themselves to Darwin;
b)That thereafter the child spend all school holidays with his father except for two weeks in the Christmas school holidays;
c)That the parties have joint parental responsibility for the child;
d)The father have communication with the child by telephone, email or webcam;
e)The parties equally bear the costs of [D]’s travel;
f)That the father be permitted to spend time with the child in Darwin by giving the mother some notification thereof and paying his own cost.
The orders the father sought were set out in his Amended Response and were :
a)That if the mother moves to the Northern Territory his son lives with him.
b)That in the event the mother remains living in Sydney, his son spend time with him:
i)In week one from after school Wednesday to before school the following Monday;
ii)In week two from after school Wednesday to before school Friday;
iii)For one half of each school holiday period together with special days such as birthdays, Fathers Day and the like.
c)That each party agree to advise the other concerning their son’s health, education and welfare, and their residential address.
Relocation matters are the most difficult matters that fall to be determined by a judicial officer. This is particularly so where, as here, I have found after hearing the parties and their respective partners give evidence that each parent and their partner has much to offer their son as parents.
The parents and their partners are committed and caring people. Whichever order I make today, one parent and their partner will be extremely disappointed, distressed and much put upon by my decision.
At the outset I reiterate the only order I can make is an order in a child’s best interest and that the child’s best interest although my paramount consideration is not the only consideration.
In order for me to determine what order is in the child’s best interest I must analyse the evidence and apply that evidence to the factors set out under ss.60CC(2), (3) and (4) of the Family Law Act 1975 (Cth).
I must have regard to the principles set out in the Act under s.60B which is, in part, ensuring that children have the benefit of both parents having a meaningful involvement in their lives and that children have a right to spend time with each parent and their extended families including grandparents.
As this is a relocation matter there is an additional step which is to set out with particularity the competing proposals of the parties and weigh up the consequences for the child of the competing proposals.
The steps are:
a)ascertaining the relevant facts;
b)ascertaining the parties competing proposals; and
c)weighing up the consequences for the child of the competing proposals; and then
d)assessing those consequences and proposals having regard to the matters set out in s.60CC (2), (3), and (4) of the Act; and then
e)making a decision which I regard in the exercise of my discretion as an order in the child’s best interest.
There are many decisions concerning relocation including those determined prior to and post the amendments of July 2006. The commonality of these various decisions is that each case falls to be determined upon the facts particular to the matter.
The Full Court’s decision of A and A: Relocation Approach[1] is still applicable law despite the July 2006 amendments.
[1] A and A: Relocation Approach (2000) FLC 93-035
In determining cases involving relocation of the child the court must consider the arrangement that each parent proposes to ensure the child maintains contact with and continues to benefit from a meaningful relationship with the other parent.
If necessary, the Court may of its own motion devise a regime which would adequately fulfil the child’s rights to regular time with and maintaining the benefit of a meaningful relationship with a parent who no longer lives in close physical proximity.
The Court may put forward a proposal which may be different to either party’s proposal if this is considered to be in the child’s best interest. If I determined to go down such a path I must let the parties know what my thinking process is.
As his Honour Kirby J said in AMS v AIF[2] at 193:
[For relocation within Australia] the attention of the decision maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare.
[2] AMS v AIF (1999) 199 CLR 160
This process was discussed by His Honour Kay J in his decision of Godfrey & Sanders[3]. This was an appeal form a decision of a Federal Magistrate who had not to permitted a mother to remove the children from Victoria to interstate. The appeal was upheld and his Honour made orders that the mother be permitted to relocate herself and the children from Victoria. This was a decision under the new legislation
[3] Godfrey & Sanders [2007] FamCA 102
His Honour said the primary consideration under s.60CC(2) is that an order should ensure the maintenance of the benefit to a child of a meaningful relationship with each of their parents. His Honour said at paragraph 36:
Even if the move results in diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
His Honour said that the learned Federal Magistrate had erred in concluding that the maintenance of that meaningful relationship by continuing the time the children were spending with their father at its present level was necessarily more significant to the welfare of the children than allowing their primary carer giver to get on with her life as she chose and to endeavour to maximise the opportunity for the children to be adequately supported.
That statement clearly and concisely summarises the tension inherent in relocation matters for the courts and parents.
Present facts
In this matter there is no malfeasance or mere whim of the mother to move to Darwin. She is marrying Mr C early next year. She is pregnant with their child and is due to give birth in April next year. She has not removed the child to Darwin unilaterally. She has brought her application to the court and has approached this matter in an adult and appropriate way seeking the courts permission to live in Darwin with her fiancé and her son from the commencement of the school term in 2008.
Both the mother and the father’s positions are understandable, child focused, and have at their centre a careful decision that each parent regards is best for their child.
The issues
The issues are as follows:
a)If the child and the mother move to Darwin the consequence of that move upon the child’s relationship with the father and the present benefit to the child of the meaningful relationship he has with his father and the father’s family.
b)The child and the mother remaining in Sydney: The issues arising are the impact on the mother of being separated from her fiancé, being a single mother with two young children to care for and the consequences that may have on her son by way of a negative impact on her hitherto high standards of parenting.
c)The father and his partner, Ms B, moving to the Northern Territory and the difficulty that would cause the father and Ms B in uprooting them from their home and their present occupations.
d)These issues are to be considered in circumstances where the parents will have equal share parental responsibility.
The Evidence
For the mother I read:
a)Her affidavit sworn 13 August 2007;
b)The affidavit of her fiancé, Mr C, sworn 10 August 2007.
c)The affidavit of her mother, Ms J, sworn 13 August 2007
The mother tendered to me five exhibits:
a)Mother’s Exhibit 1 – A print out of the salary of her fiancé;
b)Mother’s Exhibit 2 – the details concerning Qantas travel for children travelling as unaccompanied or accompanied minors;
c)Mother’s Exhibit 3 – Northern Territory school term dates;
d)Mother’s Exhibit 4 – photographs of the property that the mother and her fiancé have rented in Northern Territory;
e)Mother’s Exhibit 5 – the father’s work roster.
The mother, Mr C and the maternal grandmother were examined and cross examined.
For the father I read:
a)His affidavit filed 27 August 2007;
b)The affidavit of his partner, Ms B, filed 6 September 2007.
The father tendered one exhibit:
a)Father’s Exhibit 1 - a letter from his employer advising that the father had the capacity to have flexible working hours.
Both the father and Ms B were examined and cross examined.
A Family Report was prepared by Jennifer Butler. The report was marked Court Exhibit 1. Ms Butler was examined and cross examined.
Short Chronology
The mother was born in 1980
The father was born in 1981.
The parties commenced their relationship in December 2000. The relationship lasted for about 6 weeks.
The mother and father have never lived together.
In February 2001 the mother informed the father she was pregnant.
Their son [D] was born in 2001 and is aged 6 years.
The father spent little time with the child at his birth. The father visited the child once in hospital, twice in his first week at home after his birth, and once a week for 30 minutes.
The father required the mother to carry out a DNA testing in October 2001 which showed that he was the child’s father.
The mother and [D] meet the paternal grandparents for the first time in November 2001 some two months after their grandson’s birth.
In January 2002 the mother returned to work and [D] was cared for by his maternal aunt, a friend, and the paternal grandmother.
[D] was cared for by his paternal grandmother from 12 noon to 7.30pm on a Sunday. This was the only time [D] spent in the care of his father who was at that time living with his mother.
The father did not commence paying child support until May 2002.
The father travelled overseas for six months in May 2002 and the paternal grandmother maintained her care of [D] to assist the mother working.
The paternal grandmother assisted the mother whenever it was required on Fridays through to Saturday nights and on Sundays. The mother has affection for the paternal family and [D] has a close relationship with his paternal grandmother.
In September 2002 the mother and [D] moved from their own residence to live with her mother.
The father returned from overseas in November 2002 and continued to see his son at his mother’s home.
The father had met Ms B in England in February 2002. She came to Australian in November 2002 but returned to England in 2003.
Ms B returned to live in Australia in October 2003.
In 2004 the father commenced working at F Council where he continues to work.
The father was paying child support of $120 per week.
In 2004 the mother met Mr C.
In April 2005 the father moved into his own home. [D] was at that time 4 years and 6 months, and from that period of time all parties agree that the father’s involvement with [D] began to increase.
Prior to that time, [D] had seen his father at his grandmother’s home.
In May 2005, Mr C smacked [D]. The mother told him not to do this.
The mother commenced a TAFE course in July 2005 and the father assisted her in caring for [D] each weekend.
In July 2005, Mr C went to Darwin. The mother asserts she first raised with the father the possibility of her moving to Darwin with [D] in December 2005.
The mother and Mr C’s relationship developed in 2005.
The mother and Mr C became engaged in July 2006.
The father’s child support was reduced to about $105 a week in August 2006.
The mother filed her Application to relocate to Darwin in August 2006.
[D] commenced formal education in 2007 at G School.
The father enrolled [D] in soccer over the mother’s objection in July 2007.
The mother and Mr C will be marrying in January 2008.
On 17 November 2006 interim orders were made by me which provided that the father spend time with [D] in one week from after school Friday to before school Monday and from after school Friday to 2.00pm Saturday in the alternate week.
Prior to that time the father was spending time with his son two afternoons a week from 3.30pm to 9.00pm and each weekend that the mother was working.
These parties struggle under a difficulty in that they had never lived together as parents and [D] has never lived with his parents together. Thus for [D] his parents being separated is a normal event This however causes the parents difficulty in that they have no knowledge of each other as parents.
The mother’s evidence
The difficulty for the mother is further compounded by her view that the father took little interest in his son up until the time he moved into his own home. She believes that whilst he was living in his mother’s home he went about his business doing what he wished and it was [D]’s grandmother who cared for him and spent time with him.
The mother agrees that since the father moved into his own home with Ms B his time with [D] has increased and that [D] is now benefiting from a meaningful relationship with his father.
The mother has a real issue with Ms B. She believes Ms B fusses over [D] unnecessarily, takes far too many photographs of him, and is really quite obsessed with him. There was, I found, a degree of immaturity in the mother’s attitude to Ms B. Ms B presented in her evidence as a thoughtful, caring person who was very much attached to the child and the mother’s attitude to her did the mother little credit. There was simply no reason for the mother to have such a dislike of Ms B, but she does.
All parties agreed that [D] is a happy, intelligent and outgoing child.
The mother agrees that [D] has two loving families in Sydney.
The mother agreed by removing herself to Darwin she would be separating herself from her family and [D] from his maternal and paternal extended family. The mother reluctantly agreed that if he moved to Darwin this would be the biggest change in [D]’s young life thus far.
The mother had great difficulty conceding that if [D] was living in Darwin the father could not be as involved in his schooling as he is at present. The father currently takes [D] to and drops him off at school, attends sport on the weekend, speaks with the Headmaster, attends school concerts and the like. [D] enjoys and has benefited from this substantial and significant time with his father
The mother said if [D] was in Darwin his father could be involved in [D]’s schooling in other ways by [D] speaking to him on the phone or the webcam and telling his dad what he had done that day. When [D] went to Sydney he could take his projects and his workbook to show his father.
That is true. However it did the mother little credit not to admit that the father will miss out on being involved day to day in [D]’s school as he and the mother both presently are. The mother did admit that the father would not be physically there as he was now.
The mother had difficulty in seeing the position from the father’s point of view in terms of the impact on the father and [D] of [D] living in Darwin and the father no longer being in close proximity to his son.
A concern I had was that the mother believed Mr C could take the role of [D]’s father in his schooling and education and she did not see the difficulty for the child or the difficulty with her attitude for the father.
The Family Consultant remarked that [D] sought permission from his mother to go to his father at the reporting session. The mother agreed that happened but she did not agree that if she went to the Northern Territory, [D] would forget his father. She said:
Not at all. The strong bonds with his father are there already. [D] has always looked to me for reassurance. It’s not been forced and that’s because [D] and I were on our own for so long.
That last phrase is the key to the mother’s view of the father. She believes he abandoned her and [D] to pursue his own life and has only realised what he missed out on in the last two years or so.
Despite this I accept the mother’s evidence that that there is no way she could or would wish to break the bond between the father and the child. There is some force and truth in her belief of abandonment yet [D] has a strong bond with his father despite her belief.
The mother said she would never leave her child and would always be with him and if I ordered he was not to go to Darwin she would remain in Sydney.
The mother said if she stayed in Sydney, the time [D] should spend with his father would be three nights out of fourteen. Currently he has four nights out of fourteen.
The Family Consultant reported that both parties agreed that the current arrangements were working well. The mother was questioned on why she wanted to reduce the time [D] spent with his father should each remain in Sydney. The mother said this was because she had to have him ready for school, he was always tired and mid week was not appropriate and that she would like a weekend with [D].
The mother ultimately agreed that four nights a week with [D] and his father would be appropriate but she would just like a different regime to that which is now in place. There is some force in that argument. [D] should have a weekend with each parent now that his mother will not be working on the weekend due to her pregnancy if he remains in Sydney.
The mother disagreed that [D] could spend five to six nights or anything approaching equal time with his father. She does not believe he is emotionally able to be separated from her for such lengthy periods of time and that [D] would not like that separation.
It was put to the mother that she was not supportive of [D]’s time with his father. The mother said “No that’s not right at all. I just don’t agree with the number of nights the father sought”.
It is difficult to reconcile the position the father takes that the mother is not supportive of his relationship with the child, when it is clear the child has a very good relationship with him in circumstances where the parties did not live together and, on the father’s own evidence, he had not been much involved in the child’s first two or three years of life. That is half his life as at this hearing.
The mother, however, had difficulty understanding the inconsistency in her position that it was permissible for Mr C to engage in activities with [D] that the father liked to engage in with his son but that it was not permissible for Ms B to engage in activities with [D] when [D] was with is father that the mother enjoyed.
This attitude demonstrated a lack of maturity on the mother’s part rather than a lack of a child focused attitude. The mother agreed that she and Ms B did not get on. In cross examination of Ms B it became clear to me this was at the mother’s feet and had very little to do with Ms B.
The mother believed that Ms B was supplanting her role as a mother. Nothing could have been further from the truth as the evidence unfolded.
The mother said she wanted to attend every soccer match, every game, but could not understand if the father wanted to do the same. This is an immature attitude to take.
The mother agreed that [D] picked up on the discomfort and poor relationship she had with Ms B when they attended an event together such as soccer or at his school.
The mother was then asked:
if your turning up on the father’s weekend with [D] at soccer was causing him discomfort, have you ever thought it might be better to step back and not turn up?
The mother said “No”. This shows little capacity to see the position from [D]’s best interest and minimise tension. By turning up on the father’s time she is placing her child in a conflicted situation because of her attitude to Ms B. There is certainly a blurring of the mother’s needs and [D]’s needs at times.
To be fair to the mother, the orders I made resulted in soccer always being the father’s time and seeing your child play sport is something all parents should be able to share.
I had crafted the interim orders on the basis that the mother said she would not be working on Thursday nights once [D] started school. However the mother has continued to work on Thursday nights and [D] has been cared for by his maternal grandmother. The father had asked whether he could spend time with the child during this period by collecting him from school on Thursday and returning him to his mother on Thursday night. This was refused.
I made the orders based upon the mother’s evidence at that time she would be ceasing work on Thursdays. She did not. This did the mother little credit. There would have been nothing wrong with the child spending an additional afternoon with his father. It shows an inflexible attitude by the mother at times.
The mother was asked whether [D]’s relationship with her parents was more important than his relationship with his father. The mother’s answer was “It is just as significant”. It is not as significant.
Mr C has three other children, [K], 13, [A] 5, and a child to a woman called [G]. He rarely sees the older children and does not see the third child. I do not criticise Mr C however it is of concern to the court that Mr C has no relationship with his three children. Mr C not seeing his children is not a good role model for [D].
The mother said she believes the father and Ms B play happy families with her son and she did not want to interfere with that as she did not want them to interfere with her life.
I do not criticise the mother or Mr C for the Darwin posting. He is a member of the regular army and this is how the Army approaches its fulltime employees. It is clear that the mother has been open with the father in that when she realised her relationship with Mr C may be a long term relationship she notified the father that Mr C would likely be moving to Darwin and she may wish to follow him.
The mother admitted that her relationship with Mr C increased in intensity from January 2006 to June 2006 and she did not anticipate this would occur. Therefore she did not discuss with the father prior to June 2006 the Darwin move with any particularity. I accept the mother’s evidence. It had a ring of truth.
Mr C only returned to Australia in July 2007 from his posting in Iraq.
The mother agreed that she should have raised with the father issues such as moving [D] to Darwin at the first possible opportunity. However I did not see any subterfuge or attempt to cut the father out of [D]’s life.
I accept the mother’s evidence that it was not until she was certain that she and Mr C had a long term future that she raised the distinct possibility of moving to Darwin. The mother said that it was only when she realised that she could not be parted from Mr C and she saw how much [D] missed Mr C that she raised the issue of removing herself and [D] to Darwin with the father.
The mother did not show much insight into the impact on [D] and [D]’s relationship with his father of a move to Darwin. The mother has a somewhat simple view on the matter. She says she and [D] cannot be separated, her reasons for moving to Darwin are valid and matters of the heart, which I accept, and thus that [D] should move with her and the father should accept this as being in [D]’s best interest.
The mother was somewhat shocked when the father so emphatically opposed the move. The mother was shocked when the father said she could go to Darwin but that his son was staying and would live with him.
It was then put to the mother that Mr C could be deployed at the drop of a hat to an overseas posting. His last deployment to Iraq was for six and a half months and the mother may find herself in Darwin with two young children to care for and her husband being deployed to an overseas country for six and a half months. The mother said she believed she could cope and what has become hardest for her is living without Mr C and being parted from him.
It is a fact that Mr C can be deployed for manoeuvres for two weeks at a time leaving the mother, the new baby and [D] alone in Darwin without family support which she clearly has now with her own family and the father’s family.
Mr C had picked this particular infantry battalion as it was one of the prime infantry battalions in the army. In those circumstances I accept the mother’s evidence she would not get any compassionate leave from Darwin to Sydney or from Sydney to Darwin because of her pregnancy.
It was reported in the Family Report that [D] was not particularly adept at nor interested in speaking on the phone. The telephone contact has not been a way for the child to communicate with his mother and father. If [D] is removed to Darwin this must be addressed as it will be one of the primary sources of communication between [D] and his father on a daily basis.
All parties agreed that [D] was reluctant to speak to his father on the telephone. The mother said she had no concerns about this which I found extraordinary in circumstances where she proposed to remove herself to Darwin. The mother did not think she had had any need to telephone the father unless something particular had happened.
However the mother says she will ensure [D] telephones his father, that she has a webcam set up on her computer, and she will ensure that [D] emails his father if they removed themselves to Darwin.
My concern was the mother seemed to have no capacity to encourage the child to telephone his father now whilst living in Sydney. Perhaps it is not as important as [D] prefers to see his father in the flesh. I am not sure. Indeed that is what the mother said. She said [D] does not feel the need to speak to his Dad on the telephone because he sees him every weekend. This may be the reason, I am unable to say.
What is of interest is that [D] can speak regularly on the telephone to his “Nona,” his paternal grandmother, without any problems but not his father. Clearly he has a capacity to use the telephone
It was put to the mother whether she is concerned when [D] asks her things like “Do you like my dad?” The mother said “Oh kids say things at this age.”
It was put to the mother that [D] is becoming more curious about his father. The mother said “Not about his father, just the situation because [D] knows he can see his Dad anytime he wants”. I found that extraordinary as a six year old child would not know he could see his father whenever he wanted too. That is the mother’s responsibility.
It was put to the mother that the only way the child could have a proper emotional relationship with his father was if he stayed in Sydney. She said “No that is not correct.”
The Family Consultant’s report at paragraph thirteen states:
Ms Walpole believes that [D] will cope well with living away from his father. She firmly believes that she is all that [D] needs. “As long as [D] is with me that’s all that matters to him… [D] is dependent on me… [D] says he loves me more”. Ms Walpole acknowledged the value of Mr Zepps being involved in [D]’s life across a range of activities however stated she does not believe their relationship is dependent on him being so involved. She believes that the relationship between [D] and his father strengthened over the past two years because he gives [D] whatever he wants rather than because they spent regular time together.
This shows the somewhat the symbiotic relationship the mother has with the child. The mother said “[D] loves me more than anyone else in the world including his father”.
It was put to the mother that, if she firmly believed that all [D] need was her, why would she positively promote a relationship with the father. The mother said “I have soft spot for the paternal family”. It is fairly clear [D]’s paternal grandmother is an exceptional woman who has been of great assistance to this young mother when she felt so abandoned by [D]’s father.
The mother agreed that the father has taken on a more responsible role with [D] in the last two years and that his relationship has strengthened with his son because of this. The mother was of the view that Mr C meets [D]’s needs at a higher level than his father does, but she would promote [D]’s relationship with his father because “he is his father”.
The mother could not think of one positive thing to say about the father. The mother was an extremely honest witness on this issue. She has an opinion of the father based upon what she perceives as her abandonment by him when she was pregnant and for at least two to three years of [D]’s young life.
[D] was asked to identify his family members by the Family Consultant at paragraph 34. He wrote “[D] and mum”. He identified members of his family being himself, his mother and Mr C. He included his cat Garfield.
Much was made of this by Mr Schroder in cross examination. However when I read paragraph thirty five of the Family Consultant’s report, [D] acknowledges he has two homes, his mother's and his father’s. He said he has a lot of pets at his father’s home including his two dogs, and a turtle and a fish.
He wouldn’t want to stay at “daddy’s place” more “but at mum’s”. When attempting to elicit conversation about his time at his father’s house, he kept referring back to “[Mr C] and mummy”.
While Mr Schroder attempted to put this as in someway critical of the mother, I am not so certain that I can make such a finding on the evidence. One of the difficulties is that the father played a minimal role in the child’s early development up to the age of three, a time when children’s secure and primary attachments are formed.
The child has a close bond with his Nona who played a significant role in his life from his birth. The child’s concept of family and who is there for him may well be grounded in fact, rather than the mother negatively referring to the father. The conduct that it is now on display may be the consequences of the choices the father made when his son was young.
[D] went on to say he liked “mummy’s house better”, that they were all going to Darwin and he feels closest to his mother. He told the Family Consultant that if he has a bad dream he would want his mother to help him and if he was sick he would want his mother to look after him. When he feels sad his “mummy” makes him feel better and he would give a present to his mother. If he had a wish it would be to “live with mum and have lots of toys”. When asked what it would be like to be away from his mother he said he would feel sad.
These are not observations of a child who has a negative attitude towards his father. These are observations of a child who is primarily bonded and attached to his mother in consequence, in part, of his father being effectively absent from his life at a time when he formed his secure attachments.
The fact that [D] knows he has two families and two homes in these circumstances is a credit to the mother, not a criticism of her.
Mr C’s evidence
Mr C was called to give evidence. He was asked about his failure to spend time with his children and he said it was too difficult for the mother of his youngest child and would cause the child to be distressed so they agreed he would not see the child. The other children live some distance away and are older. He does see them although not frequently. He has telephone contact and e-mail contact with his daughters and he rings them as well.
I was not impressed by Mr C’s lack of commitment to his relationship with his daughters. His excuse was that he was not going to use his children as a rag doll and a fight between the parents. That is not a child focused attitude at all.
Mr C gave evidence that he did not think that the father had been a significant player in [D]’s life from what he had been told by the mother. I found this extraordinary evidence given that the father was caring for [D] almost every weekend at that time.
I asked Mr C what he thought a significant player was if it was not someone who cared for a child every weekend. Mr C then said “I reckon he’s a lucky dad because I when I went to Court all I got was every second weekend”. The objective evidence and Mr C’s assessment of it just do not sit together.
Mr C said he thought September 2006 was the clincher for him wanting Ms Walpole and [D] to come to Darwin to live with him. They became engaged in July 2006. The battalion split and he was told on
5 December 2006that he would be going to Darwin. It would be twelve months before he could be deployed again, but he could be deployed and be away for six and a half months with two plane flights each twelve months to return to Sydney. He gets one and a half days each month additional recreation leave for any overseas time he has.
Mr C proposes to stay in the army for eight years to obtain Corporal rank, then perhaps get out and join customs service and be transferred back to his home state of NSW.
It is clear from the Family Consultant’s report and Mr C’s evidence that he has no intention of leaving the army. He sees it as a good job, a good career for him and it gives stability for his new family. He does not wish to leave the army and if the mother and [D] cannot relocate he is concerned that this will have a negative impact on his family particularly now that the mother is pregnant. This fact was not known at the time the report was prepared in July 2007.
Maternal grandmother’s evidence
The maternal grandmother was cross examined. The maternal grandmother has an extremely negative attitude towards the father. I am most concerned that [D] is living in an environment where such a hostile attitude to his father by the grandmother must be visible to the child.
Although she has a strong attachment to [D] she has absolutely no time for the father. I found her evidence extremely defensive and of little assistance to me.
One can only imagine the comments that are being made in the maternal grandmother’s home which [D] may unfortunately hear. It would be in [D]’s best interests to be removed from that home if he is to maintain a strong and beneficial relationship with his father.
However that will not be possible if the mother does not relocate to Darwin. The mother will remain living in her mother’s home for economic reasons and for assistance with her new born.
The grandmother’s evidence was as follows. She was asked:
Do you think the father has the best interest for [D] in opposing the Northern Territory move?
She replied, “No”.
She was asked:
Do you think the mother is being selfish?
She replied, “No”.
She was then questioned on paragraph 103 of her affidavit. It reads:
I do not believe that the father in refusing to allow [D] to live with his mother in Darwin really has [D]’s best interests at heart. I believe it is really a self-motivated thing for him and his partner. I think it is really more about controlling Ms Walpole and [D] now as opposed to thinking about what is in [D]’s best interests and I believe that it is more beneficial for [D] to live with his mother who has been his main carer all of his life and who has in the past demonstrated her ability to facilitate and encourage the relationship between [D] and Mr Zepps as opposed to [D] living with Mr Zepps who has become very inflexible in the past 18 months in respect of arrangements for [D] – I do not believe he would give Ms Walpole the same courtesy.
The grandmother said she believed that the father was controlling, and wants to keep Ms Walpole in Sydney for his own purposes. She was asked what she based her opinion on. She said “what goes on in that household”.
The grandmother said that the father was stopping [D] having his own life with his mother. “[D] said he wants to be with his mummy and [Mr C] and wants to be happy”. The father is not seeking to take [D] away from his mother.
The grandmother would not concede that the mother was being unfair in not letting [D] spend time with his father on Thursday nights when she was still working.
It was quite apparent that the grandmother could not at any point concede that the father had a genuine interest in this child. This demonstrated a lack of insight into the negative impact that a move to Darwin would have on this little boy and his relationship with his father. There is no understanding of anything from the father’s point of view when it concerns [D] from the maternal grandmother.
The grandmother said [D] did not speak much about what he did with his father at her home. I formed the view he could not. The grandmother has such an implacably negative attitude to the father that the child would have picked up on that quickly.
The grandmother was asked whether anyone had said to her that [D] not speaking about events at his father’s home was the behaviour of a child who feels he cannot speak freely and positively of his father. “No” said the grandmother.
The grandmother was asked what she meant when she stated that the father was inflexible. She said “everything had to be Mr Zepps’s way. He was not compromising”. This meant, in the grandmother’s words, that the father was becoming more inflexible because he was seeking more time with his son.
I formed the view that the mother can be inflexible when it comes to the father spending more time with the child than orders provide. The mother’s position may have been influenced by living in her mother’s household.
Although the maternal grandmother has been a wonderful support to the mother and will continue to be, I have formed the view she has a very negative attitude to the father and her attitude to the father is not healthy for [D] to be exposed to.
The grandmother said [D]’s home is with her at the present time. I formed the view this home would be poisonous for the health of relationship between the father and [D] continuing.
I accept the mother has a very supportive family in Sydney.
The father’s evidence
The father was called on the second day of the hearing.
I was struck by the fact that these young parents had not needed the Court’s assistance until their son was four years and eleven months of age.
It was put to the father that he told the Family Consultant that he only commenced to be involved in [D]’s life about two years ago. The father said that was not true and it was not what the Family Consultant meant to say. He did not concede that when he was living with his mother, his mother did most of the caring for the child.
The father went overseas in June 2002 for six months when [D] was eight months of age. He then returned to live with his parents.
The father bought a home and moved into that home in April 2005 with his girlfriend, Ms B, when [D] was four. Up until the time the father bought his own home, [D] had slept in the grandparent’s room. It is clear to me that [D] was primarily attached to the paternal grandmother rather than his father at age 4 years. Things have changed however.
The father complained that the mother would not get him his own sets of photographs at Day Care. He is perfectly capable of buying his own set of photographs. The mother offered him a photograph in any event.
The father said in paragraph fifty nine of his affidavit:
Ms Walpole has said “I do not consider Ms B as a step-parent as you two aren’t married, I do not need to be respectful of Ms B or [D]’s relationship with Ms B”. On another occasion Ms Walpole’s mother, Ms J said “Who is [Ms B], [Ms B] is nobody”.
On the evidence I have formed the view that these things are likely to have been said by the mother and the maternal grandmother. It is a poor attitude these women have for someone who is a significant person in the father’s life, who is a caring and competent person and she and [D] have a good relationship.
The father agreed that Mr C was the first relationship the mother had formed since [D]’s birth. The father said it had not even crossed his mind that the mother would go to Darwin and that the proposal really came out of the blue for him.
The father agreed that he and the mother had very poor communication and the mother has a difficulty with Ms B. The father said he observed Ms B taking a backwards step when Ms Walpole was around from what he observed as Ms B’s behaviour with [D] in their home. He agreed that the mother may not know this.
There is some truth in the father’s assertion both to the Family Consultant and in his oral evidence that he went along with the mother for many years and that conflict came about when he tried to have his own independent input into decisions concerning his son. I have formed the view from the evidence, and particularly from the maternal grandmother’s evidence, that that would have been the case. I accept that the mother has made the decisions for [D] in the past and has not wanted the father to be involved in those decisions. Her comment that all [D] needs is her supports that finding.
The father showed insight into the impact that the conflict between he and the mother and, in particular, the conflict between the mother and Ms B has on the child. He said that [D] does not seem at ease and will hesitate before approaching him. The father said that when [D] is with him he is a normal happy little boy. The school says he is doing well.
The incident involving the mother and Ms B at the school was really most unfortunate and I find that fault for this lays at the feet of the mother. For reasons that I am unable to understand the mother feels threatened by Ms B.
The father has a greater understanding than the mother of the impact on the child of the conflict between his parents.
The father was not consulted by the mother when [D] was attending after school care. It was two terms before he knew about this. That does the mother little credit. However, the father again made a unilateral decision to enrol the child in soccer against the mother’s express wishes. Again, this did the father little credit. The father agreed this did him little credit.
What this bespeaks is that the lack of communication between the parents makes it difficult for them to cooperatively co-parent their son and would make a shared care arrangement difficult to work in a practical and efficient way for their son.
The father is most concerned that the conflicted relationship he has with the mother means that [D] cannot speak comfortably about him when he is with his mother. He is concerned that if [D] went to Darwin the strength of their relationship would be very dependent on the mother’s encouragement. The father has little faith in the mother’s capacity in this regard.
It was confirmed by the maternal grandmother that [D] does not speak about his father at their home. I do not know whether that is the maternal grandmother’s fault or the mother’s fault. However it shows the level of understanding the father has concerning his son.
The father agreed that, at the moment, everyone was in limbo It was like the pause button had been hit on their lives. Although he wants his son to have as normal a life as possible everyone is in limbo at the moment. It is clear the father wants to protect his son from the dispute between the adults.
The father did not agree with the mother’s view that Ms B took responsibility for the child. The father said that he took responsibility but that Ms B was there and was a significant part of the child’s life in his household.
At paragraph 20 the father reported that if [D] is permitted to relocate he strongly believed it will adversely affect his relationship. He described their relationship as close and as going from strength to strength, and that at his age he and [D] can bond more closely as father and son. If [D] went to Darwin he does not believe [D] will relate to him in the same way and that holidays is not enough time to parent in the manner he wishes to do so.
The father is most concerned about maintaining his relationship with the child over the telephone. [D] does not speak to him on the telephone. This was confirmed by his mother. The father said that if [D] goes to Darwin he will do all he can to maintain his relationship and he will ring his son. He agreed that ringing his son more often may encourage him to start speaking on the telephone.
The father noted that his son needed some space when he was on the telephone and that both his parents should give him that space. Again the father has shown real understanding the needs of his son.
The father said he would attend any communication course necessary and did not expect the mother to pay for all the flights to and from Darwin.
The father says he believes he is more able to promote a positive relationship between the child and the mother than the mother is able to promote between the child and him. The father said [D] was quite comfortable talking to him and telling him about things that had happened in his mother’s house and his grandmother’s house. From the evidence I would agree this is correct.
The father agreed that this is not a fifty-fifty situation. It is an all or nothing situation and there is no other arrangement that can work than what the mother proposes if she relocates [D] to Darwin.
The father agreed that if the mother remained in Sydney this could possibly have an adverse impact on her relationship with Mr C, and therefore an adverse impact on [D].
One area the father showed a lack of understanding was when questioned whether he thought that if [D] lived with him four nights in one week he would miss his mother. The father said he would not miss his mum. I find to the contrary. This child is very closely attached and emotionally bonded to his mother and such a significant change in his care would have a negative impact on him.
The father said he believed that the mother said to him the child could go and live with his father permanently. I do not accept this. The mother would never abandon the child.
The father agreed that he had considered moving to the Northern Territory, but it was really not appropriate for him at this point in time.
It was put to the father that he had failed to take up an opportunity to help with reading at [D]’s school on Mondays. The father said he had no idea this was an event. The father was shown [D]’s folder which goes between the parties as a form of a communication book. He said he had not seen that letter before. I do not criticise the father for this. There is clearly a lack of communication between these parents and if they spoke civilly to each other the mother could have told the father about this important issue. The father said the mother could have told him about it and he would have listed to her.
The father said he accepted some responsibility for the tension between he and the mother particularly as a result of his enrolling the child in soccer and swimming on Fridays.
The Family Consultant’s evidence
The Family Consultant opined that [D] could adjust to three to four nights in one week a fortnight and two nights the other week with his father if:
a)the father and the mother lived closer together; and
b)this happened gradually over time;
but that [D] would very much miss his mother.
The Family Consultant said there was a difference between separation on a shared care basis and separation over a long distance. [D] has grown to have a good relationship with his father but it is not as close as the emotional attachment he has to his mother. [D] showed anxiety when his parents were together and they did not acknowledge each other. This was rather infantile behaviour from both of them.
The Family Consultant said at paragraph 47:
It is unclear whether it would be in the child’s best interests for his new family unit to be separated when he already exists within one separated family unit.
The mother and Mr C have plans to marry and extend their family. Their child is to be born in April 2008. This family would be impeded if they were forced to live apart. The mother has stated that she will not leave [D] if relocation is not permitted. However, the mother and
Mr C’s relationship as a couple remains largely untested. They have not lived together for any significant period of time and their relationship has been one over distance.
The Family Consultant said at paragraph 46 that the mother wishes to relocate to Darwin with Mr C who has no choice over that relocation. The report states:
Ms. Walpole has proposed everything she can in order to ensure that [D] spends as much time with his father as possible. [D]’s relationship with his father would be dependent on the Ms. Walpole encouraging and promoting that relationship. Ms. Walpole very clearly demonstrated a negative attitude towards Mr. Zepps and a sense of ownership over [D] which does raise concerns at whether she would sufficiently honour her intention to promote the father son relationship.
In relation to that last comment despite the honest and truthful answers the mother gave about her negative attitude to the father, she has promoted [D]’s relationship with his father as evidenced by the nature of the relationship he has with him.
The Family Consultant agreed that the stress to the mother in being separated from Mr C could have an adverse effect on the child.
The Family Consultant agreed that the growing relationship [D] is experiencing with his father has in no way diminished the significant relationship he has with his mother.
The Family Consultant said boys around the ages of 10 to 11 begin to seek a closer relationship with their father which she agreed would be difficult to develop if the child is in Darwin. The Family Consultant said it would be more difficult but not impossible.
The Family Consultant said it required significant encouragement and effort by the residential parent to maintain a relationship over distance and time.
The Family Consultant said the mother was not anxious about Ms B’s involvement in [D]’s life, rather she did not like it but she accepts it. The Family Consultant agreed that [D]’s relationship with Ms B had not diminished his relationship with his mother.
The Family Consultant believed both parents will benefit from a post separation course.
The Family Consultant said the mother expressed genuine interest in maintaining her son’s relationship with his father over time. However she had also said things that implied an attitude that her commitment may wane over time.
The Family Consultant was concerned, as was I, that the mother believed [D] had a responsibility to call his father on the telephone. Clearly he does not. That is the mother’s responsibility. [D] needs much as encouragement from each parent to telephone the other parent.
It is ideal, the Family Consultant said, that [D] spends the maximum time he can with each of his parents. She was most reluctant to say that it is ideal for [D] to remain in Sydney. The Family Consultant said that she had formed the view that the mother had the capacity to see [D]’s needs as separate to her own, but that she is still suffering from the father abandoning her and [D] as a family.
Ms B’s evidence
Ms B was called. She agreed that she and the mother have a communication problem, but she was unaware why that is. She agreed that the mother has said to her “Do not fuss”.
The mother’s family stared daggers at Ms B when she was giving evidence, in particular the maternal grandmother. I could not fathom or understand the reason for this. The mother did not behave in this manner.
Ms B was asked about the incident at [D]’s school when the mother became upset. She was asked whether perhaps she should have left the classroom. Ms B said had she known the mother would be upset she would not have gone at all. She agreed she did not walk away at the time.
Thus we have the spectacle of two women fighting over one child.
Ms B is open to counselling or any suggestion so that she and
Ms Walpole’s relationship can improve. Ms B said that she and the father were planning to have their own child and she is most concerned about her relationship with Ms Walpole as Ms Walpole has told her not to open the car door or come inside. This is immature behaviour from the mother
It is clear that Ms B and the father cannot move to Darwin. They would have no money to do so; they have just bought a home. Ms B is going back to University.
Submissions
The submissions of the mother’s Counsel were that I ought not to focus on what the mother says but what has happened. Deeds, she said, speak louder than words. [D] has a good relationship with his father and one that is continuing to strengthen as it grows.
The mother has gone about this matter in the correct way. This is not a matter where I have had to ask her to return from Darwin. The mother has brought an application to court and has not taken unilateral action. I agreed with that submission.
The mother has balanced the needs of herself, [D], and her unborn baby. She has determined the balance is that moving to Darwin is in her family’s best interest.
I agree with the submission that the father’s relationship with [D] will not in any way be severed because of the move to Darwin. It is far too strong a bond for that occur.
The mother said, and I accept, she will use the child support that the father pays towards [D]’s airfares, and Mr C will support her and her two children.
Both parents have complied with all prior obligations under previous orders.
The more settled [D]’s mother is the better it will be for [D]. His mother is his primary carer and he is particularly closely emotionally attached to her.
The father’s submissions were that the mother’s negative attitude to the father will result in the child’s relationship with his father being undermined as a result of the consequence of the vast distance between Darwin and Sydney.
It was the father’s submission that the mother cannot be trusted to put in the effort required to maintain the child’s relationship with his father over such a vast distance.
The objects of the Act which require a child to have the benefit of both parents involvement in his life and to spend time with each parent and the child’s extended families cannot be sustained if [D] lives in Darwin.
The benefit to the child of a meaningful relationship with his father is at a real risk of being severed if he does not continue to see his father at a similar level to that which he sees him now.
I must now evaluate the competing proposals.
[D] staying in Sydney
The father only seeks his son live with him primarily if I do not permit the mother to take [D] to Darwin and she moves there without him. The mother said if I make such an order she will remain in Sydney. Thus I do not need to consider this as an option at this time.
The parents agree and I will order equal shared parental responsibility.
In those circumstances I must consider:
a.the child spending equal time with each parent;
b.or if that is not an order in the child’s best interest, the child spending significant and substantial time with one parent and living with the other;
c.or if that is not an order in the child’s best interest an order I consider will be in the child’s best interest.
I agree with the mother and the Family Consultant that at this time the child is too young and too emotionally attached to the mother to spend equal time with his father. Thus I would not make an order for shared time.
If the child stays in Sydney the mother’s application that he spend four nights fortnightly with his father would be an order in the child’s best interest. It is an order for substantial and significant time and is similar to that in operation presently.
I would change the current orders to ensure the mother had a weekend with [D]; otherwise there would be a minimal change in the child’s care arrangement if he stays in Sydney. All parents agree the current arrangements are working well
There will be a significant impact on the mother and upon her parenting capacity if she and the child stay in Sydney. The Family Consultant squarely raises those issues in paragraphs 46 and 47. The Family Consultant noted the negative impact on the mother of not moving to Darwin.
The Family Consultant was concerned that the separation from Mr C would stress the mother and result in [D] living in another separated family unit when he already exists in a separated unit. The Family Consultant was not sure this would be in his best interests.
I am concerned these negative impacts will flow over to [D] and the mother will have real difficulties in continuing to promote her son’s relationship with his father
As Kay J said in the decision of Godfrey & Sanders at paragraph 44:
there must be a balance of the meaningful relationship with the father with the primary care giver getting on with the life she chose and endeavouring to maximise opportunities for the children to be adequately supported.
Financial support was a significant issue in that particular matter.
At this time the mother has a high capacity to parent her son and, despite her evident negative attitude to the father as a parent and man which came out in her honest answers in cross examination, her son has a good relationship with his father. The Family Consultant reports [D] has an established bond with his father and therefore an internalised sense of who is father is.
I accept the father’s position that having regard to the nature of Mr C’s employment with the army he could be moving somewhere else in two years, and his son may be in the position of moving to various capital cities. I accept that movement of that type, if not handled well, could have a negative impact on the child’s wellbeing.
Both the parents, the mother throughout the child’s life and the father in the last two years, have carried out their parental responsibilities to a high degree.
When the child was young I accept the mother’s position that the father did at a level abandon her and the child. The mother has strong affection and feelings for the father’s family as they clearly assisted her and supported her at a difficult time in her life. This is one of the reasons [D] can happily chat with his Nona on the telephone yet does not do so with his father.
If the mother stays in Sydney she will continue to live with her mother. I am most concerned that [D] be taken out of his present poisonous and negative household with the maternal grandmother. The continuation of those living arrangements and the negative attitude to the father and
Ms B in that household will have a significant and serious impact on this child’s meaningful relationship with his father in the future.
[D] relocating to Darwin
If [D] lives in Darwin with his mother he cannot spend significant and substantial time with his father as it is not reasonably practicable to do so.
The negatives of such a move are that [D] will be separated from his father and paternal family, and the relationship which is growing stronger each day may be diminished. The father believes it will be.
[D] will not have the involvement that he presently enjoys with his father each week, his father taking him too and collecting him from school, taking him to sporting fixtures, and being involved, effectively, in his day to day care. That will not be something that [D] and his father will continue to enjoy.
There is no doubt the move will have some benefits for [D]. [D]’s mother will be a happier and more content mother. She will be living with the man she is to marry, the father of her unborn child, and she will continue in her primary role as [D]’s carer. Although she will be separated from her family who have been a great source of support to her, they are clearly able and capable of travelling to be in Darwin with her.
In the matter of Clapton & Springer[4] May J refers to the decision of B & B[5] where Warnick J said, and May J quotes:
In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
[4] Clapton & Springer [2007] FamCA 1184
[5] B & B [2006] FamCA 1207
His Honour went on to say there will always be “a degree of discomfort” upon the formulaic application of the best interests principle in a relocation matter. However, the question then under appeal:
is whether that discomfort is merely due to the state of the law, albeit correctly applied, or whether an appealable error has occurred.
The legislation, at s.60CC(2), makes it clear it is the benefit of meaningful relationship for the child that must be maintained not the benefit of the meaningful relationship for the parent. There is both a quantitative and qualitative aspect to the section.
Justice Kay J said in the matter of Godfrey & Sanders[6]:
[6] Godfrey & Sanders [2007] FamCA 102
what the legislation aspires to promote is a meaningful relationship, not an optimal relationship
That is really the gravamen of the question for me.
If [D] remains in Sydney with his mother in close proximity to his father the quality of [D]’s relationship with his father would be at one level optimised. However, the competing factors against such an order being on balance in [D]’s best interest are:
a)The mother who is his primary carer and with whom he is very closely emotionally attached would suffer by being required to remain in Sydney with her new born and be separated from her soon to be husband. This will have a negative will impact on her parenting capacity.
b)The mother’s negative attitude to the father as a man and parent would be further entrenched as she would see the father stopping her from getting on with her life.
c)I am concerned that the mother may put little effort into maintaining the present meaningful relationship between the child and the father due to her feelings of being firstly abandoned by the father and now controlled by him. Such feelings could be overwhelming and the child’s relationship with his father may be diminished significantly.
d)The mother’s negative attitude will spill over to [D] due to their close emotional bond and cause him further stress and anxiety.
e)The child will remain in his maternal grandparent’s home, a home I have found is poisonous in terms of fostering the child’s relationship with his father.
I have formed the view that it is better for [D]’s continued relationship with his father that he be living in a home where his mother is happy, where his mother is content, and away from the negative influence of the maternal grandmother insofar as the father and [D]’s relationship is concerned.
On the other hand I accept the father’s concern that the mother’s negative attitude towards him may result in her being unable or unwilling to put the significant effort into maintaining a positive attitude to the father and maintaining the child’s right to a meaningful relationship with his father.
The mother has a high opinion of the paternal grandmother and a strong affection for the father’s family. Both the mother and [D] enjoy this shared affection.
I am satisfied this affection has been the impetus for the mother to ensure [D] has a relationship with his father. I do not see the move to Darwin undermining this affection and it will continue to focus the mother’s obligation to promote [D]’s relationship with his father from a distance. It is a pity that the maternal grandmother does not have the same positive attitude as the paternal grandmother to the importance of the child’s relationship with his mother and his father.
There is no doubt that removing the child to Darwin will have a significant impact on the child. He will be attending a new school. He will be in a much smaller state. He will be separated from his maternal and paternal grandparents with whom he has an excellent relationship and, most importantly, he will only be seeing his father and Ms B on holidays, or on rare occasions the father can travel to Darwin. On the father’s best evidence that was likely to be once a year. Thus there would be significant change for the child.
I have formed the view that the father has a very positive and appropriate attitude to his child. He is perceptive of his child’s needs and he understands the conflict his son faces in his mother’s household where there is a negative view of the father.
The mother is not as perceptive to the child’s needs or the impact of her negative view and the negative view of her mother on the child. The mother feels threatened by the father and his partner. That feeling of threat would be even further compounded if I do not permit the mother to relocate to Darwin.
Findings
On balance I have formed the view that an order that the mother be permitted to relocate with the child to Darwin is in the child’s best interests despite this resulting in the child not being able to spend significant and substantial time with his father.
I am most concerned that if the mother does not relocate to Darwin that her hitherto high level of parenting will be significantly impacted which will cause this child to suffer from his mother’s clear anxiety and distress in being separated from Mr C.
I am concerned that if the mother does not relocate to Darwin she will continue to live at the home of her mother and the negative attitude the maternal grandmother has towards the father will spill over to the child and will significantly impact the positive and good relationship he presently has with his father.
The child moving to Darwin and the mother being happy, living with the man she loves in an intact family unit and moving on with her life will, in short time, spill over to the benefit of [D]. The mother’s happiness and contentment in her own home will help her to provide an even better level of encouragement to positively promote the relationship with the father and the child from a distance.
The mother has managed to ensure [D] has a strong relationship with his father whilst living in the Sydney area. With the affection for the paternal family shared by her and [D] I am satisfied that, despite her feelings towards the father, she will continue to maintain a positive and strong relationship between the father and the child. There is much force in Ms Winfield’s submission that actions speak louder than words.
The Family Consultant reports [D] has an established bond with his father and therefore an internalised sense of who is father is. I have formed the view [D]’s sense of his father is sufficiently developed such that he will continue to benefit from a meaningful relationship with his father even if he is living in Darwin with his mother. I accept [D] living in Darwin and his father living in Sydney means the relationship will not be optimal.
The father can see his son on any occasion he is able to travel to Darwin and will be spending all but two weeks of the school holiday period with his child every year. I am satisfied the paternal grandparents will be welcome to see [D] in Darwin and will of course see him on his holidays with the father in Sydney. [D]'s Nona can continue to speak to him on the telephone.
As I was settling this judgement the Full Court handed down a decision on relocation being an appeal from my brother Brewster FM. Brewster FM permitted a mother to relocate with a child aged 10 years to Queensland from Canberra to be with her fiancé and the father of her young baby. The child was enjoying significant and substantial time with the father in Canberra
The facts of that matter which is known as Taylor & Barker[7] have similarities to this matter. The appeal was dismissed by a majority of two to one. Their Honours Chief Justice Bryant and Justice Finn comprised the majority. His Honour DCJ Faulks the minority.
[7] Taylor & Barker [2007] FamCA 1246
At paragraph 113 of the judgment Their Honours say:
this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that the factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view be said that his Honour was wrong in elevating this factor together with impact on the mother and on the subject child of her not being permitted to relocate to join the man she wanted to marry, to be the decisive factor or factors in this case.
This decision is further support for the difficult and finely balanced decision I have come to. These are orders which, although not ideal, are on balance and in the circumstances of this matter the orders I consider are in the child’s best interests.
I certify that the preceding two hundred and seventy-three (273) paragraphs are a true copy of the reasons for judgment of Henderson FM
Associate: A. Morris
Date: 29 October 2007
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