Walton and Dunham
[2009] FMCAfam 1088
•21 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALTON & DUNHAM | [2009] FMCAfam 1088 |
| FAMILY LAW – Parenting – application by mother to relocate with child aged 3½. |
| Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA, 61DAC,65DAC(3), 64C |
| Morgan & Miles [2007] FamCA 1230 Mazorski & Albright (2007) 37 FamLR 518 Godfrey & Sanders [2007] FamCA 102 AMS & AFS (1999) 199 CLR 160 |
| Applicant: | MS WALTON |
| Respondent: | MR DUNHAM |
| File Number: | PAC 5314 of 2008 |
| Judgment of: | Terry FM |
| Hearing dates: | 1 & 2 October 2009 |
| Dates of Last Submissions: | 1 & 2 October 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 21 October 2009 |
REPRESENTATION
| Applicant: | Self represented |
| Counsel for the Respondent: | Ms Petrie |
| Solicitors for the Respondent: | Fay Rose Legal |
ORDERS
That all previous parenting orders concerning [X] born in 2006 are discharged.
That the parents have equal shared parental responsibility for the child.
That the mother’s application to relocate the child’s place of residence from Sydney is dismissed.
That the child live with the mother.
That the child spend time with the father as follows:
(a)until the child begins full time school from 8.00am on Friday until the commencement of preschool on Monday (or the commencement of pre-school on Tuesday if Monday is a public holiday) each alternate week commencing on 23 October 2009;
(b)once the child beings full time school:
(i)from the conclusion of school on Thursday until the commencement of school on Monday (or the commencement of school on Tuesday if Monday is a public holiday) each alternate week during school terms commencing on the second Thursday of each school term; and
(ii)for half of each school holiday period as agreed between the parents and in the absence of agreement the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years;
(c)for three (3) hours on the child’s birthday if it falls on a day when the child is not otherwise spending time with the father as agreed between the parties and in the absence of agreement from the conclusion of school until 6.00pm if the birthday falls on a school day and from 1.00pm until 4:00pm if the birthday falls on a non-school day;
(d)from 9.00am until 6.00pm on Father’s Day if it falls on a weekend when the child is not otherwise with the father;
(e)from 9.00am on Good Friday to 6.00pm on Easter Monday in alternate years commencing 2011;
(f)from 9.00am on Christmas Eve until 1.00pm on Christmas Day in odd numbered years and from 1.00pm on Christmas Day until 6.00pm on Boxing Day in even numbered years;
(g)at such additional or alternate times as may be agreed between the parties.
That notwithstanding any other provisions of these orders:
(a)if Mother’s Day falls on a weekend when the child is with the father, the father shall return the child to the mother at 9.00am on Mother’s Day;
(b)if the child’s birthday falls on a day when the child is with the father the child shall spend three (3) hours with the mother as agreed between the parties and in the absence of agreement from the conclusion of school until 6.00pm if the birthday falls on a school day and from 1pm until 4:00pm if the birthday falls on a non-school day;
(c)the child shall spend time with the mother from 9.00am on Christmas Eve until 1.00pm Christmas Day in even numbered years and 1.00pm on Christmas Day until 6.00pm Boxing Day in odd numbered years;
(d)the child shall spend time with the mother from 9.00am on Good Friday until 6.00pm on Easter Monday in alternate years commencing 2012.
That for the purposes of the child spending time with the father the father shall collect the child from pre-school or school or if neither is open from the mother’s home at the commencement of his time with the child and return her to pre-school or school or if neither is open to the mother’s home at the conclusion of his time with the child
That each parent shall keep the other informed of their residential and postal addresses and their landline and mobile telephone numbers and notify the other parent of any change to these details within forty eight hours of the change.
That if either parent intends to travel away from their usual residential address with the child for a holiday during their period of holiday time with the child, they shall advise the other party at least seven days prior to departure of the dates of departure and return and the address and telephone number of the place where the child will be residing during the holiday.
That each parent shall:-
(a)keep the other informed of the names and addresses of any medical or other health practitioner who treats the child and authorise those practitioners to provide to each parent information required by each of them concerning the child;
(b)promptly inform the other parent if the child while in their care is involved in a serious accident or diagnosed as suffering from a serious medical condition and each parent shall be at liberty to visit the child in hospital.
That each parent shall within 14 days enrol in a Parenting after Separation course and after enrolling diligently attend all sessions required to complete the course.
That neither parent shall denigrate the other parent to or in the presence of the child.
AND IT IS NOTED
That the father would welcome the opportunity to spend some time with [Y] and the mother is encouraged to facilitate such time if [Y] expresses a wish to spend time with the father.
IT IS NOTED that publication of this judgment under the pseudonym Walton & Dunham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5314 of 2008
| MS WALTON |
Applicant
And
| MR DUNHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
1.
Ms Walton and Mr Dunham separated in October 2008.
Since separation they have lived close to each other in Sydney and their daughter [X], born in April 2006, has lived with the mother and spent regular time with the father.
2.The principal issue in dispute at the hearing was whether the mother should be able to relocate with [X], either to Queensland or to Orange.
3.The other issues in dispute were as follows:
i)whether, if the mother remains in Sydney, the father’s time with [X] once she commences full time school should be from the conclusion of school on Thursday until the commencement of school on Monday, or from Friday until Monday;
ii)whether, if the mother remains in Sydney, the father should continue to do all the dropping off and picking up for changeovers or whether the parents should share this task;
iii)whether once [X] commenced full time school she should spend time with the father for half of the school holidays or only when the father is himself on holidays;
iv)whether an order should be made about the father spending time with [Y], 8, the mother’s child from a previous relationship.
The evidence
4.
The mother relied on her amended initiating application filed on
1 September 2009and her affidavits filed on 7 November 2008,
1 September 2009(as to annexure 1) and 14 September 2009.
5.The father relied on his response filed on 9 April 2009, his affidavits filed on 9 April 2009 and 2 September 2009 and the affidavits of his partner Ms B and his mother Ms P, both filed on 2 September 2009.
6.Ms P was not required for cross-examination but the mother; father and Ms B were cross-examined.
7.
A Family Report was prepared by Norman Goodsell, and
Mr Goodsell was also cross-examined.
8.The mother did not provide an affidavit from her fiancé Mr S. At the urging of the Court the mother arranged for Mr S to give oral evidence by telephone and he was cross-examined by the father’s counsel.
Background
9.
The mother and father started going out in December 2004.
In June or July 2005 the mother fell pregnant with [X] and in August or September 2005 the parties commenced living together. They separated in October 2008.
10.The mother has a son [Y], who was about three when the parties’ relationship commenced. [Y]’s father is deceased and [Y] lived with the parties throughout their relationship.
11.The relationship does not appear to have been a particularly happy one.
12.The mother complained that the father was verbally abusive to her, mean with money, harsh with [Y], failed to take part in family life and smashed up her belongings.
13.The father complained that the mother was verbally abusive to him, gambled extensively, drank too much and threw his clothes out onto the lawn when she was angry.
14.
In April 2008 an incident occurred which resulted in the mother calling the police to complain that the father had assaulted her. The father was questioned at the police station but was not charged, contrary to the information the mother gave to
Mr Goodsell, and the mother did not apply for an apprehended violence order.
15.The mother met Mr S on the internet in October 2008 and it was her evidence that they formed a relationship almost straight away. The father said that the mother’s relationship with Mr S was the reason why he and the mother finally separated. The mother said the reason she and the father separated was that she had had enough of the father’s behaviour.
16.On 7 November 2008 the mother applied to the Federal Magistrates Court at Parramatta for a recovery order in respect of [X]. She also sought a final order that she be permitted to relocate to Queensland with [X] in 2009.
17.On 11 November 2008 interim orders were made which provided for [X] to live with the mother and spend time with the father each alternate weekend from 9.00am on Friday until Monday morning and each Tuesday from 3.00pm to 7.00pm.
18.Both parents have grievances about the operation of the orders. The mother complained that the father was often either late or early picking [X] up and dropping her off and was unreliable on Tuesdays.
19.The father said that the order for him to spend time with [X] on Tuesdays was impractical because of his work commitments, and was somewhat resentful of the fact that the mother would not routinely agree to him having make up time if he missed the Tuesday.
20.
The mother filed a contravention application on 14 September 2009 in which she alleged that the father had breached the orders by collecting [X] on 4 September 2009 when it was not his weekend. The father said that the mother was wrong and
4 September 2009was his weekend.
21.At the commencement of the hearing the mother to her credit agreed to withdraw the contravention application so that the court could concentrate on hearing and determining the bigger issues between the parties.
The parties present circumstances
22.The mother lives with [Y], 8, and [X], 3 ½, in the home in [B] in which the parties lived prior to separation.
23.The mother is employed [in the Childcare Industry] attended by [X]. Prior to that she was employed at a [omitted].
24.The mother said that she and Mr S planned to marry in November 2010.
25.Mr S lives in [M], Queensland. He is about 25 and has no children. He has visited the mother in Sydney on a number of occasions over the last twelve months. He stayed with the mother for several weeks over the Christmas 2008/9 period and he has travelled to Sydney on a few occasions for the weekend. The mother has visited Mr S in Queensland on at least one occasion and has met some members of his family.
26.The mother has many relatives in Sydney. The maternal grandmother lives reasonably near to the mother and [X] spends time with her maternal relatives.
27.The father lives in a two bedroom unit in [S]. He is a [occupation omitted] and works 76 hours per fortnight on a shift roster.
28.The father lives with Ms B, 21. He has been in a relationship with Ms B for about eight months and they have lived together for about two months. Ms B is a student [omitted] who also works part time in a [omitted].
29.Ms B was a pleasantly spoken and responsive witness and I accept her evidence that she is happy to assist the father with the care of [X] as required.
30.The father’s extended family live in Sydney or NSW.
31.The paternal grandmother works at [in the Administration Industry] and like the father lives in [S]. She regularly spends time with [X] on Fridays and is willing and able to assist the father with [X] should this be necessary.
The mother’s proposal to relocate
32.The mother’s primary proposal was that she be able to live with [X] in Queensland. The mother said that she had always wanted to live in Queensland, and had discussed moving to Queensland with the father prior to separation although she conceded that the father had not been interested in the idea.
33.The mother maintained that Queensland had less crime and would provide her with more job opportunities, but there was no evidence to support these claims.
34.Queensland of course is also where Mr S lives. He is an [occupation omitted].
35.Mr S lives and works in [M] and appears to have some family connections there, but the mother was optimistic that if she moved to Bundaberg, which is about two and a half hours from [M], Mr S would also move to Bundaberg and she and Mr S could commence living together. Mr S confirmed that he looked favourably on this option.
36.Mr S has not yet made any inquiries about accommodation or employment in Bundaberg. The mother conceded that she had not made any specific inquiries about the availability of accommodation or employment for herself in Bundaberg but she was confident that she would have no difficulty obtaining either employment or accommodation.
37.The mother said that if she moved to Bundaberg [X] could travel to Sydney to spend time with the father on one weekend each month until she commenced full time school, and thereafter she could spend time with the father in Sydney during the school holidays. The mother proposed that she and the father share the costs of travel.
38.The mother said that if she was not able to relocate to Bundaberg she would like to relocate to Orange. The advantages of Orange were that it had a university which the mother could attend and there were [omitted] in the area where Mr S could get a job.
39.The mother and Mr S both conceded that they had not made any inquiries about accommodation or employment in Orange.
40.Orange is about three to three and a half hours drive from where the father lives. The mother said that if she lived in Orange [X] could still spend alternate weekends with the father, from Friday until Sunday, with the travelling to be shared.
41.The father is opposed to [X] leaving Sydney.
42.There was no exploration at the hearing of whether it might be feasible for the father to himself move if he wanted to remain close to [X]. However the father has a job in Sydney, his partner is studying and his family are predominantly in Sydney. The father has no connection with Orange or Bundaberg. There was no evidence that he had ever talked of leaving Sydney, and there is no realistic likelihood of the father relocating no matter what order I make about where [X] should live.
The current state of the law concerning relocations
43.In Morgan & Miles[1], Justice Boland considered the principles applicable to determining relocation applications. She reviewed the state of the law prior to the amendments to the 1 July 2006 Family Law Act 1975 (Cth), and considered how the amendments had affected the previous situation.
[1] Morgan & Miles [2007] FamCA 1230.
44.She observed that:
“The Act does not treat “relocation” cases as a special category of parenting cases. In this respect the amending Act has effected no change to the law.”
45.Justice Boland then said that:
“It follows from my exposition of the legislation, that earlier core principles:
(a)That the child’s best interests remain the paramount but not the sole consideration;
(b)That a parent wishing to move does not need to demonstrate “compelling” reasons;
(c)That a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests;
(d)The child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement
remain valid.”
46.She stated that what the legislation now requires is:
(a)Consideration of the competing proposals against the criteria in section 60CC informed by section 60B;
(b)If a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility must be considered.”
[X]’s best interests
47.Sections 60CC(2) & (3) of the Family Law Act 1975 (Cth), set out the matters to which I must have regard in order to determine [X]’s best interests.
48.The primary considerations in s.60CC(2) are as follows:
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.”
49.In the 2007 case of Mazorski & Albright Brown J considered the phrase “meaningful relationship.” After setting out the [dictionary] definition of “meaningful” and “meaning” she said as follows:
“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 objects 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.”[2]
[2] Mazorski & Albright (2007) 37 FamLR 518.
50.[X] has a meaningful relationship with both of her parents at present, in other words, she has a relationship with both of them which is important, significant and valuable to her.
51.If [X] remains in Sydney she will continue to see her father regularly and there is every reason to suppose that her meaningful relationship with her father will continue.
52.If the mother relocates to Orange, the father could continue to spend time with [X] on alternate weekends, although he would not be able to spend time with her on any school nights or take her to school. He would however still be able to maintain a meaningful relationship with her.
53.If the mother relocates to Queensland, the amount of direct physical contact [X] has with her father will inevitably diminish. However provided that the mother promoted the relationship between [X] and the father and complied with court orders about the [X] spending time with the father, and provided that [X]’s direct face to face time with the father was supplemented with communication by telephone (including skype/webcam), there is no reason why [X] could not continue to have a meaningful relationship with her father.
54.As Kay J said in Godfrey & Sanders[3]
“Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
[3] Godfrey & Sanders [2007] FamCA 102.
55.As to the second primary consideration, I do not consider that [X] is likely to be exposed to abuse (as it is defined in the Family Law Act), neglect or family violence in the separate care of either of her parents.
56.Turning to the additional considerations in s.60CC(3), I must first consider any views expressed by the child. [X] is only 3 ½ and there was no evidence that she had a view about future parenting arrangements.
57.I must consider the nature of the relationship of the child with:
i)each of the child’s parents; and
ii)other persons (including grandparents or other relatives of the child).
58.The father, although highly critical of the mother, did not question that [X] had a good relationship with her mother and I am satisfied that [X] and the mother have a good relationship.
59.I also accept that [X] has a good relationship with her brother [Y].
60.The mother was not entirely ready to accept that [X] had a good relationship with the father. Mr Goodsell commented that:
“[The mother] in some respects….appeared ambivalent about the father/daughter relationship. On the one hand she made numerous criticisms of Mr Dunham as a parent, yet she was accepting of [X] spending time with him, saying there was a “bond” between them.”[4]
[4] Family Report paragraph 23.
61.The mother said that [X] was reluctant to go to the father when he came to pick her up, and she saw this as evidence that [X] did not enjoy spending time with the father.
62.Mr Goodsell said in oral evidence that reluctance by a child to make the transition between parents was hardly ever a sign that the child did not want to spend time with a parent.
63.He said that there were a number of reasons why changeover difficulties might occur, such as the child’s age and the cues they almost unconsciously picked up from their parents. He said that children who showed reluctance about going from one parent to the other at the commencement of a period of time often showed similar reluctance about parting from the other parent at the end of the time, and it was the father’ evidence, which I accept, that this was the case with [X].
64.Mr Goodsell prepared a thorough report and was able to expand appropriately in cross-examination on the reasoning behind his conclusions and recommendations. I place weight on
Mr Goodsell’s evidence.65.
Mr Goodsell observed [X] with the father, his mother and
Ms B and said as follows:
“[X] showed no distress leaving her mother in the waiting room when I took her to see the other adults. She came happily and willingly with me, indicating that she was comfortable parting from Ms Walton and suggesting that the reported clingy behaviour at the start of contact is likely associated with a perception of parental conflict and loss, rather than being due to any apprehension toward her father.
[X]’s behaviour with her father during the play period confirmed this opinion, as she related to him (and to a lesser extent with the other adults) in a positive and spontaneous fashion. Mr Dunham was able to manage the time effectively and participate in his daughter’s activities. The child showed every sign of feeling secure with him, involving him in her play and frequently smiling.
At the end of the session, [X] gave the three adults kisses and hugs and returned without difficulty to her mother, calling back to her father that she would see him next time.”[5]
[5] Family Report paragraph 43-45.
66.Mr Goodsell’s evidence supports a finding that [X] has a good relationship with her father, his partner and the paternal grandmother.
67.Mr S and the mother both said that Mr S had a good relationship with [X]. The mother did not however arrange for Mr S to attend the family report interviews and I have no objective evidence about his relationship with [X].
68.The mother’s opinion about the father’s relationship with [X] and about [Y]’s attitude to the father proved to be unreliable, and I therefore am not prepared to place much weight on the mother’s opinion about Mr S’s relationship with [X]. All I can say is that Mr S was pleasantly spoken on the telephone and he may relate well enough to [X]. He has spent limited time with her to date.
69.I must consider 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.
70.The mother has complied with the court orders concerning [X] spending time with the father but I am not convinced that she has a particularly strong willingness and ability to facilitate and encourage a close and continuing relationship between the father and [X].
71.The mother was highly critical of the father, both in her affidavit and during her interview with Mr Goodsell. She questioned his level of interest [X] prior to separation. She was reluctant to concede that he had a good relationship with [X].
72.If [X] continued to live in Sydney and the father continued to see [X] each alternate weekend and during school holidays, the fact that the mother’s heart was not in promoting the father/daughter relationship may not matter so much.
73.If the mother moved to Queensland, the fact that she does not strongly value [X]’s relationship with the father and is highly critical of the father could have negative consequences for [X]. [X] would be exposed for much longer periods at a stretch to a less than positive view of the father without the counterbalancing experience of seeing the father regularly.
74.The father in his turn was highly critical of the mother, both in his affidavits and during his interview with Mr Goodsell. I would not rate the father’s willingness and ability to facilitate and encourage a close and continuing relationship between the mother and [X] as high either.
75.I must consider the likely effect of any change in the child’s circumstances, including the likely effect of separation of the child from:
(a) either of her parents; or
(b) any other child, or other person (including any grandparent or other relative of the children) with whom the child has been living.
76.If the mother relocates, [X] will experience a significant change in her circumstances.
77.The father saw it as a negative that [X] would move from the place where she was born and had lived all her life. However I agree with the mother’s submission that at 3½ [X]’s security is more tied to living with her mother and [Y] than to living in a particular place.
78.The mother’s statement that [X] would not miss her father if she moved to Queensland was self serving and likely to be wrong, but nevertheless, it is more likely than not that [X] would adapt to a move to Queensland or indeed a move to Orange provided that she had the continuity of living with her mother and brother.
79.The fact that [X] might adapt does not necessarily mean that the change would be a good one for [X].
80.If [X] moved to Queensland there would inevitably be a significant reduction in the amount of face to face time she spent with the father.
81.For reasons to be discussed in more detail later in this judgment I consider that the mother’s proposal that [X] spend time with her father once each month until she commenced full time school if she moved to Bundaberg is unrealistic. It would be beyond the parties financial means and would be far too tiring for [X].
82.If the mother moves to Bundaberg the reality is likely to be that [X] would see the father on only a few occasions each year. This would certainly be the case once [X] commenced school.
83.While [X] could still have a meaningful relationship with her father if she relocated to Queensland, the father would effectively be relegated to a holiday parent. He would not have any opportunity to be involved with [X] on school days. The father is a good parent who is keen to be involved with [X] on a regular basis. He will provide input into [X]’s life which is quite different to that provided by the mother. It would be a significant loss for [X] if the father was prevented by distance from fulfilling that role.
84.[X]’s regular contact with her paternal extended family would also cease if she moved to Queensland. [X] currently spends time with her extended family in Sydney on both sides. She enjoys regular Friday night visits with her paternal grandmother and has an opportunity as a result to regularly interact with her cousins.
85.If the mother moved to Orange the father would still theoretically be able to see [X] on alternate weekends, and [X] could still see her extended paternal family fairly frequently, but in order to do so she would have to travel for about three hours each way every alternate weekend.
86.The tiring nature of the travel and the cost of even this travel could result in the travel being cut back at some stage.
87.Even if the alternate weekends were maintained, the father would lose the Friday he has with [X] at present and his time on the weekends would be less than it is at present. He would have to return [X] to the mother on Sunday afternoon rather than return her to pre-school or later school on Monday mornings. It is unlikely that he would be able to attend extra-curricular activities and school events. Once again [X] would lose the chance of having a caring father involved in a range of aspects of her life.
88.Therefore while [X] might adapt to a move to Bundaberg or to Orange because she continued to live with her mother, the likely effect of either move would be a diminution in the quality of her relationship with her father.
89.The mother argued that the overall effect of a relocation would be a positive one for [X]. [X] would be living, the mother maintained, in a more relaxed quieter place. The mother would be happier, and once she and Mr S started to lived together the whole family would benefit from the income Mr S would bring into the home.
90.A real difficulty for the mother’s case is that it cannot be known for certain whether a move to Queensland or to Orange for that matter will in fact deliver the benefits the mother hopes for or will even work out.
91.The mother has made no inquiries about accommodation or employment in either Bundaberg or Orange and she might face unexpected difficulties with these matters. The mother has never lived in either of these places nor lived with Mr S. It is unknown whether the relationship will stand the test if Mr S commences living with the mother full time remains to be seen. Mr S may face difficulties with employment or be unhappy in Bundaberg or Orange.
92.I must consider the practical difficulty and expense of the 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 a parent on a regular basis.
93.While [X] lives in Sydney there is no significant practical difficulty or expense involved in her spending time with her father.
94.If [X] moves to Bundaberg there will be considerable difficulty and expense in this occurring.
95.The mother proposed that she would bring [X] to Sydney on one weekend each month to spend time with the father. She said that she would drive from Bundaberg to Brisbane and then fly to Sydney with [X]. The drive would take more than five hours and the plane trip in excess of an hour. Once the mother and [X] arrived in Sydney [X] would need to travel from Sydney airport to the father’s home.
96.The mother conceded that this would be a huge amount of travel for [X], especially if she was required to do it on Friday and then again in reverse on the Sunday afternoon or Monday morning.
97.Expenses associated with this travel would include the cost of petrol for the trip between Bundaberg and Brisbane and two return airfares between Sydney and Brisbane.
98.It was clear when the mother gave evidence that she had not attempted to work out how much this travel might cost.
99.The mother is employed [in the Childcare Industry] and said that if she moved to Bundaberg she might work in this field or obtain other work such as work as [in the Hospitality Industry]. The mother was confident that she would easily obtain employment in Bundaberg but the she does not work in particularly highly paid occupations.
100.I am not satisfied that the mother could meet the costs involved (or even a half share of the costs involved) in bringing [X] to Sydney one weekend per month between now and [X] commencing full time school.
101.The tiring nature of the travel for [X] could result in the frequency of travel dropping away even if the parents were somehow able to afford the cost.
102.Once [X] commenced school she would spend time with the father only during school holidays.
103.This would make the travel more manageable because it would be less frequent and [X] would stay in Sydney for longer before being required to turn around and go home. [X] would be able to travel as an unaccompanied minor (if the parents agreed to this) once she turned five and this would reduce the travel costs. Once again I have no evidence about the costs of travel but it is more likely that the mother could manage to meet half of the cost of travel of this nature.
104.If the mother moved only to Orange, [X] could still theoretically spend alternate weekends with the father. This would however involve travel by motor vehicle of some three to three and a half hours each way.
105.The mother insisted that [X] would not find this too tiring because she had done long car trips before without a problem. Those trips have only been occasional however and the situation might be different if [X] had to make a trip of this kind every fortnight. The father’s weekend time would be cut back in this scenario, and he would have to return [X] on Sunday and would not be able to take her to school on Monday.
106.The mother had not turned her mind to the costs of this travel either.
107.I must consider the capacity of each of the parents to provide for the needs of the child, including her emotional and intellectual needs.
108.The father questioned the mother’s parenting capacity. He said that she was “an alcohohic, a drug user and compulsive gambler.”[6]
[6] Family Report paragraph 13.
109.The mother denied these allegations. Mr Goodsell commented that the mother “presented as articulate and there were no obvious signs of alcoholism or drug dependence.”[7]
[7] Family Report paragraph 30.
110.The father complained that the mother did not take care of [X] physically, in that she came to him dirty, with her hair hopelessly tangled and her teeth not brushed. The mother strongly denied that she was neglectful of [X].
111.The mother in her turn questioned the father’s parenting skills.
112.Mr Goodsell summed the situation up well in his report when he said as follows:
“The parent’s made allegations about the other’s parenting, but their criticisms tended to be in general terms, without much detailed evidence put forward at the interviews. [X]’s physical appearance and behaviour, her natural communication with
Ms Walton, as well as her observed interactions with
Mr Dunham, suggest that she is being adequately looked after and shares attachments to her parents.”[8]
[8] Family Report paragraph 51.
113.I am satisfied that each parent has the capacity to provide for [X]’s needs including her emotional and intellectual needs.
114.
The mother was critical of the father for leaving [X] with his mother on Friday nights, but in my view this does not suggest that there is any deficiency in the father’s parenting capacity.
The paternal grandmother (whose evidence was unchallenged) enjoys the opportunity to spend time with [X]. While with the paternal grandmother [X] is able to spend time with six other grandchildren and with members of the father’s extended family.
115.It is important for [X] that she is able to spend time with her grandmother and other members of her extended paternal family as well as with the father.
116.I must consider 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 is relevant.
117.Matters relevant to this consideration have been dealt with elsewhere in the judgement.
118.I must consider the attitude of each parent to the duties and responsibilities of parenthood.
119.The father has taken the opportunity to spend time regularly with his daughter since separation and has set up a room for her in his home. He has shown himself both willing and able to fulfil his duties and responsibilities as a parent.
120.The father is paying child support for [X].
121.In doing those things the father has shown a good attitude to the duties and responsibilities of parenthood.
122.The mother wishes to relocate but she has gone about things the right way by making an application to the court and has not attempted to relocate unilaterally. She has complied with court orders concerning [X] spending time with her father. In doing those things the mother has shown a good attitude to the duties and responsibilities of parenthood.
123.It was the father’s case that the mother made it difficult during their relationship for his extended family to spend time with [X].
124.I accept that the paternal grandmother has only been able to spend time with [X] and forge a bond with [X] since the father has had time with [X] pursuant to court orders. The paternal grandmother, whose evidence was unchallenged, said that
“Prior to the past 11 months I have not been allowed access to my granddaughter due to disagreements and threats by the mother. I have always tried to resolve out problems in the means of communicating through my son Mr Dunham but it led nowhere. Ms Walton had stopped all of the family on our side from seeing [X].”[9]
[9] Affidavit of Ms P paragraph 6.
125.The mother remains critical of the father for allowing people other than himself to care for [X].
126.One of the principles in s.60B of the Family Law Act 1975 (Cth), is that children have a right to spend time on a regular basis with, and communicate on a regular basis with, both of their parents and other people significant to their care welfare and development (such as grandparents and other relatives).
127.There was no evidence that any member of the father’s family is an unsuitable person to spend time with [X], and in attempting to restrict [X]’s time with her paternal relatives without good cause the mother does not show a good attitude to the duties and responsibilities of parenthood.
128.I must consider any family violence involving the child or a member of the child’s family.
129.The mother alleged that in April 2008 the father assaulted her while she was driving home from a friend’s place. The father gave a diametrically different version of events about this incident in which he said he was in fact driving the car and the mother was walking. He denied assaulting the mother.
130.The mother called the police and the father was taken to the police station and interviewed. He was not charged.
131.It is impossible for me to make findings about exactly what occurred during the incident between the parents in April 2008.
132.The mother alleged that during the relationship the father “punched and smashed up a lot of [her] things in a fit of rage.”[10] She also alleged that the police were called to the home on a number of occasions during the relationship due to the father’s “violence and smashing things up.”[11]
[10] Mother’s affidavit filed 7 November 2008 paragraph 5.
[11] Mother’s affidavit filed 14 September 2009 paragraph 10.
133.The father vehemently denied that he had ever deliberately damaged the mother’s property and there was no independent evidence to corroborate the mother’s claims.
134.I am not able to prefer the mother’s evidence to the father’s. I am not satisfied on the balance of probabilities that the father was violent to the mother during the relationship or that he damaged her property.
135.There was no evidence that any family violence had occurred after the end of the relationship.
136.There has never been a family violence order between the parents or any other relevant persons.
137.I must consider 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.
138.It is frequently difficult to predict which order is least likely to lead to further proceedings.
139.If the mother is not able to relocate she could make a further application to relocate in the future if circumstances change.
140.If the mother does relocate, further proceedings could eventuate for many reasons, for example because the mother does not stay in the place to which she now says she intends to go, because the relocation impacts adversely on [X] or because there is non-compliance with orders about [X] spending time with the father.
141.I must consider any other relevant matter.
142.There are a number of additional relevant matters. The first is the state of the relationship between the parents.
143.The mother and father have a poor relationship. They are still highly critical of each other, twelve months after separation.
144.The father complained that when he collected [X] from the mother’s home she was verbally abusive to him and on at least one occasion “followed [him] out into the street yelling at [him].”[12]
[12] Father’s affidavit filed 2 September 2009 paragraph 3 & 4.
145.I incline to believe that some events of this kind have occurred although it is possible that the father is overstating their frequency and severity. I also incline to believe that the father is hypercritical of the mother’s parenting and insufficiently willing to give her credit for the good job she is doing with [X].
146.The parents have had regular disagreements about the operation of the interim orders and have found it difficult to compromise and reach agreement. If the ability of the parents to communicate effectively and resolve disputes does not improve, and their attitude toward each other remains strongly negative, there is a risk that travel arrangements or communication might break down on occasions if the mother relocates.
147.As Mr Goodsell put it:
“The existing parental communication is negative, and one would predict the potential for further deterioration, should the parties reside in different states. This would significantly affect their capacity to negotiate ongoing arrangements for [X]’s relationship with her father and his family.”[13]
[13] Family Report paragraph 58.
148.The parents would be assisted by attending a post separation parenting course, which are designed to help parents to form a businesslike relationship around the parenting of their daughter.
149.There is no guarantee that if the parents do such a course their communication or their goodwill towards each other will improve, but I intend to order that each parent enrol in and complete such a course.
150.The second relevant matter is whether the father’s work arrangements might mean that he would be unable to get [X] to school on Friday if his time with her on alternate weekends commenced after school on Thursday.
151.The mother said that the fact that the father had found it difficult to organise himself so as to spend time with [X] on Tuesdays between 3pm and 7pm was an indication that he might have trouble getting [X] to school on Friday mornings.
152.The father said that the Friday mornings would be quite different, as either he would drop [X] at school if he was not working that day or his partner would, and that his mother could also be called upon to assist if necessary.
153.I accept the father’s evidence that he is willing to make proper arrangements to get [X] to school on Friday mornings, and I accept that Ms B and Ms P are both available to assist him.
154.However it is very important for the father to note that if I do ultimately make the order he seeks, it will be his responsibility to get [X] to school on Friday. He cannot expect the mother to take up the slack. This would not be in the spirit of the orders and would simply lead to further conflict between the parties.
155.A third relevant consideration is the possible effect on the mother, and therefore the possible flow on effect on [X], if the mother is not able to relocate as she wishes.
156.The mother is keen to move from Sydney and she identified many benefits which she perceived would flow from such a move.
157.The mother will be unhappy and resentful if she is not able to move. However she has satisfactory accommodation in Sydney and she has many family members in Sydney. She has a job in Sydney and she is able to study for her [omitted] qualification in Sydney. Although the mother would like to move there was no evidence that she was especially unhappy in Sydney and no suggestion that she might become depressed or ill if not permitted to move.
158.It cannot automatically be assumed that if the mother is unable to relocate her relationship with Mr S will end. The mother said that Mr S “would work anywhere if he could get a job” and conceded that he had “not looked for work anywhere.” Mr S admitted that he had not looked for work in Bundaberg, Orange or Sydney and conceded that he might be able to get work in Sydney.
159.A fourth relevant matter is the father’s relationship with [Y]. The father sought an order which would permit him to spend time with [Y].
160.It was the mother’s case that the father was harsh with [Y] during the relationship and did not spend the time with him that [Y] craved. It was the mother’s case that [Y] now did not want anything to do with the father.
161.The mother also alleged that on one occasion during the relationship the father struck [Y] hard across the head and verbally abused him.
162.Such an action would come within the definition of “abuse” in the Family Law Act 1975 (Cth). The father vehemently denied the allegation however and I cannot be satisfied on the balance of probabilities that the father acted as alleged.
163.Mr Goodsell interviewed [Y] and said that at the start of the interview, [Y] told him that the father had “smacked him and called him names” but that he could not remember the actual occasions or names.
164.Mr Goodsell said that:
“Later in the interview [Y] spoke more positively about the father. He told me that they had gone fishing together and that he had ‘fun’. When asked why he no longer visited Mr Dunham, [Y] replied that he would like to see him but his mother had told him he couldn’t go. He thought this was because of the adults’ dispute over [X] going to Queensland.”[14]
[14] Family Report paragraph 50.
165.I prefer Mr Goodsell’s evidence to the mother’s. Mr Goodsell was an objective observer and his judgment is not clouded by emotion or by resentment toward the father as the mother’s is. I am satisfied that [Y] would be happy enough to spend time with the father.
Parental Responsibility
166.Pursuant to s.61DA of the Family Law Act 1975 (Cth), I am required to apply a presumption that it is in [X]’s best interests that her parents have equal shared parental responsibility for her, absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the child or another child who at the time was a member of parent’s family, or family violence.
167.I am not satisfied that there are any reasonable grounds to believe that either parent has engaged in family violence or in abuse of either [X] or [Y].
168.The presumption therefore applies, unless rebutted by a finding that it would not be in [X]’s best interests for the presumption to apply.
169.If I make an order for equal shared parental responsibility the parents will be required to consult before making a decision about major long terms issues. Section 65DAC(3) provides that before making a decision about a major long term issue for the child a parent is required to :
(a) to consult the other person in relation to the decision to be made about that issue;
(b) to make a genuine effort to come to a joint decision about that issue.
170.The parents do not have a good relationship at present and may find it difficult to consult productively with each other. It would certainly not be in [X]’s best interests if her parents were constantly in dispute and unable to reach agreement about arrangements for her care.
171.The parents will only be required to consult about major long term issues however, not day to day issues, and major long term issues will not arise frequently. Major long term issues which could arise would be choice of school, change of surname, relocation or overseas travel.
172.Even parents who have are able to communicate well are not always able to reach an agreement about major long term issues.
173.[X] has two good parents who adore their daughter and will remain involved with her in the future. I am satisfied that it is in [X]’s best interests that I make an order for equal shared parental responsibility.
Conclusion
174.As I intend to make an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act 1975 (Cth), to consider whether an order that [X] spend equal time or alternatively substantial and significant time with each of her parents is in her best interests and reasonably practicable
175.Neither of the parents proposed that an order be made for equal time. The parents agreed that if [X] remained in Sydney she should live with her mother and spend time with her father.
176.They agreed that until [X] commenced full time school this time would be from 8.00am Friday until Monday morning on alternate weekends. This would come within the definition of substantial and significant time in s.65DAA(3).
177.The father proposed that once [X] commenced full time school her time with him should commence after school on Thursday. The mother objected to this, but her only reason for objecting was a concern that the father might not be able to get [X] to school on Friday morning.
178.If [X] was with the father on Thursday night, a school night, it would give the father an opportunity to be involved in a different aspect of [X]’s care. He may for example be able to hear her school reader. I am satisfied that the father would be able to get [X] to school on Friday mornings.
179.I am satisfied that if [X] remained in Sydney it would be in her best interests once she commenced full time school to spend time with the father from after school on Thursday until the commencement of school on Monday in each alternate week.
180.The parents agreed that the father should spend time with [X] during school holidays. The father sought an order that [X] spend half of the school holidays with him, while the mother proposed that the father spend time with [X] during the holidays only if he was himself on holidays.
181.The father gets four weeks holiday a year whereas [X] will get about twelve weeks holidays per year.
182.If the mother was not working there might be some merit in the mother’s proposal that [X] should spend school holidays with the mother unless the father was himself on holiday. However the mother works just as the father does, and she also is only likely to get four weeks holiday per year. [X] is likely to be required to spend some time in vacation care no matter which parent she is with during school holidays.
183.If the father is willing to share with the mother the burden of paying for holiday care for [X] during school holidays then that is to his credit. [X] may also be able to enjoy some additional time with the father’s family during the school holidays if she is in the father’s care and the father has to work. In my view an order that [X] spend half the school holidays with her father would be in her best interests.
184.The issue then is whether an arrangement whereby [X] lives with her mother in Sydney, which would allow her to spend the time outlined above with the father, or an arrangement whereby she lives in Bundaberg or Orange and has reduced time with her father is to be preferred.
185.In my view the option of [X] living with the mother in Queensland is the option least likely to be in [X]’s best interests.
186.I accept the mother’s argument that, given [X]’s age, her stability and security is with her mother rather than with a particular place. I accept that notwithstanding that [X] may miss her father if she relocated she might adapt reasonably well to a move to Bundaberg and she would certainly benefit if the mother was happy.
187.[X] might be able to maintain a meaningful relationship with her father even if she lived in Bundaberg, but this would to an extent depend on the mother’s ability to promote the relationship and on travel occurring regularly. I am unconvinced however that the mother has a strong willingness and ability to facilitate and encourage a close and continuing relationship between [X] and the father, and the parties communication is poor.
188.Even if [X] was able to maintain a meaningful relationship with her father after the move, the relationship would be different, with the father relegated to a holiday parent. [X] would lose the opportunity to have the father involved in her life much more frequently and in a range of circumstances.
189.Mr Goodsell did not support the mother’s proposal to relocate to Queensland. He observed after his interview with the mother that there were a “number of unknowns and uncertainties associated with the mother’s proposal to relocate” and that “her plans for [X]’s continuing contact with the father appeared sketchy and unrealistic.”[15]
[15] Family Report paragraphs 52, 56.
190.There are thus potential losses for [X] in a move to Bundaberg, and there is no guarantee that the move will work out for the mother in the positive fashion that the mother hopes.
191.The mother proposed if her application to move to Queensland was unsuccessful, consideration should be given to allowing her to move to Orange. Orange is in a rural area where the mother thought Mr S might be better able to find work, and the mother said that Orange was a reasonable driving distance from Sydney and so [X] could easily continue to see the father every alternate weekend. It would require travel of several hours by car each way, but the mother said that [X] would cope well with this travel, as she had done long car journeys with [X] before.
192.Even if the travel was not too tiring for [X] and the time on alternate weekends occurred regularly, the father would still not have the same time with [X] as he does now once she moved to Orange, and he would have no opportunity to be involved in her school or extra-curricular activities.
193.
The mother’s plans in respect of a move to Orange are as unformed as her plans in relation to Bundaberg. The mother said that she had picked Orange as a possibility because it was within driving distance of Sydney and it was the kind of place where
Mr S might be able to find employment. However the mother has made no inquiries about housing or employment in Orange and Mr S has made no inquiries about employment.
194.
In my view when the three available options are considered, the option which is most likely to be in [X]’s best interests is the option that she remain in Sydney, so that the father as well as the mother can have maximum involvement in her upbringing.
This need not be a bad outcome for the mother, who has a job in Sydney and secure accommodation and employment in Sydney. Mr S conceded that he could move to Sydney and look for work in Sydney.
195.There was no suggestion that the mother would relocate without [X], and therefore the effect of an order preventing the mother from relocating [X]’s place of residence of Sydney is that the mother must remain in Sydney. The mother will effectively be prevented from exercising her right of freedom of movement, and she expressed some resentment during the hearing about the fact that as she saw it the father could effectively prevent her going where she wanted when she wanted.
196.People in the mother’s position sometimes perceive themselves to be victims of the 2006 amendments to the Family Law Act 1975 (Cth), sometimes called the shared parenting laws. However long before the 2006 amendments, the courts recognised that a parent’s right to freedom of movement must sometimes give way in the face of other considerations. In the 1999 High Court case of AMS & AFS[16] Kirby J said as follows:
“One of the objects of modern family law statutes….is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. “[17]
[16] AMS & AFS (1999) 199 CLR 160.
[17] AMS & AFS supra Kirby J paragraph 145.
197.In my view [X]’s interests will best be served by orders dismissing the mother’s application to relocate from Sydney, and providing for [X] to spend regular time with the father in Sydney.
198.Two issues remain. The first is that of changeover. At present the father is doing all of the dropping off and picking up. He would like the mother to do a share of this.
199.Most of the pick ups and drop offs pursuant to the orders I intend to make will be to and from [X]’s school or pre-school and the father will have to do those in any event. I intend to order that the father continue to do the picking up and dropping off on the remaining occasions, which will involve him picking [X] up from and dropping her off at the mother’s home.
200.The parties do not live far apart and this will not be too great a burden on the father. It will be an additional contribution he can make to the welfare of his daughter.
201.The remaining issue is whether an order should be made that [Y] spend time with the father.
202.The fact that the father is not [Y]’s biological father does not prevent such an order being made, as pursuant to s.64C of the Family Law Act the court can make a parenting order in favour of a parent or another person.
203.I accept the evidence of Mr Goodsell that [Y] would like to spend some time with the father. Mr Goodsell recommended that this occur.
204.There would be many benefits to [Y] from spending time with the father. [Y]’s own father is deceased and it would be good for [Y] to feel accepted by his sister’s father. It would be good for him to interact with an adult male who is willing to spend time with him.
205.However [Y] could find himself in a difficult position if I order that he spend time with the father and the mother resents the order.
206.
There is limited information available to me about [Y].
I know nothing of [Y]’s particular interests, whether he is seeing any members of his extended paternal family and when, how he is doing at school and what arrangements might be appropriate for him given that he has had some problems with anger management.
207.I do not consider that I have sufficient evidence to make a finding about whether it is [Y]’s best interests for me to make an order that he spend time with the father and I therefore do not intend to make such an order. I do however intend to make a notation to the effect that the father would welcome spending time with [Y].
208.For all of the above reasons the orders shall be as set out at the beginning of this judgment.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Terry FM
Associate: Barbara Cameron
Date: 22 October 2009
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