Waters and Hailes
[2009] FMCAfam 148
•27 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WATERS & HAILES | [2009] FMCAfam 148 |
| FAMILY LAW – Parenting application – relocation of 5 year old child from Newcastle to Melbourne – consideration of “meaningful relationship” – consideration of primary carer’s “happiness” if prevented from relocating – consideration of equal shared care arrangement. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Makita (Australia)Pty Ltd v Sprowles (2001) 52 NSWLR 705 AMS and AIF (1999) 24 Fam LR 756 Goode & Goode (2007) 36 Fam LR 422, (2206) FLC 93-286 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Baker (2008) 37 Fam LR 461 U & U (2002 211 CLR 238, 191 ALR 289; [2002] HCA 36; 29 Fam LR 74; (2002) FLC 93-112; Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458 Mazorski v Albright (2008) 37 Fam LR 518 C & S (1998) FAMCA 66 T v N (2004) 31 Fam LR 281 Sampson v Hartnett (No 10) (2008) 38 Fam LR 315 |
| Applicant: | MR WATERS |
| Respondent: | MS HAILES |
| File Number: | NCC1485 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 3, 4 & 17 February 2009 |
| Date of Last Submission: | 17 February 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 27 February 2009 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Ms O’Rourke |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the Respondent: | Mr Levick |
| Solicitors for the Respondent: | Turnbull Hill Solicitors |
ORDERS
That the parents have equal shared parental responsibility for the child [X] born in 2004.
That the child live with the mother.
That the mother be permitted to relocate the residence of the child to Melbourne Victoria.
That in the event that the father resides in Newcastle New South Wales the child spend time with the father during Victorian school terms as agreed between the parties and failing agreement as follows:-
(a)In Newcastle on the third and eighth weekends of each school term from 6pm Friday to 5pm Sunday; and
(b)In Melbourne on the fifth weekend of each school term from after school Friday to before school Monday;
That in the event that the father resides in Newcastle New South Wales the child spend time with the father during the Victorian school holidays as agreed between the parties and failing agreement as follows:-
(a)In Newcastle at the end of terms 1 and 3 from 6pm on the first Saturday of the holiday period until 5pm on the third Saturday of the holiday period;
(b)In Newcastle at the end of term 2:-
(i)In odd numbered years from 6pm on the first Saturday of the holiday period to 5pm on the second Saturday of the holiday period; and
(ii)In even numbered years from 6pm on the second Saturday of the holiday period to 5pm on the third Saturday of the holiday period.
(c)In Newcastle at the end of term 4:-
(i)In odd numbered years from 6pm on the first Saturday of the holiday period until 5pm on the day being the midpoint of the holiday period with the exception that if the mother is in Newcastle the child shall live with the mother from 4pm Christmas Day to 4pm Boxing Day;
(ii)In even numbered years from 6pm on the day being the midpoint of the holiday period until 5pm on the final Saturday of the holiday period and, should the child be in Newcastle, from 4pm on Christmas Day to 4pm Boxing Day.
That for the purposes of implementation of orders (4) (a) and (5) the mother is to make all necessary travel arrangements to ensure that the father is able to spend time with the child pursuant to those orders including paying the costs of transporting the child to Newcastle.
In the event that the father lives in Melbourne then, notwithstanding anything else in these orders, the father spend time with the child as agreed between the parties and failing agreement as follows:-
(a)During Victorian school terms every alternate weekend from after school Thursday to before school Monday unless the father’s residence is more than a 30 minute drive from the child’s school and in such an event the periods of time will commence at 5pm Friday and conclude at 5pm Sunday;
(b)For one half of each school holiday period as agreed between the parties, or failing agreement, for the first half of school holidays in odd numbered years and the second half of the school holidays in even numbered years;
(c)In even numbered years between 4pm Christmas Day and 4pm Boxing Day;
(d)If Father’s Day falls on a weekend when the father is not spending time with the child pursuant to order 7(a) then from 9am to 5pm on Father’s Day;
(e)The father spending time with the child be suspended on the following occasions:
(i)In odd numbered years between 4pm Christmas Day and 4pm Boxing Day;
(ii)On Mother’s Day from 9am.
That for the purposes of implementation of Order (7) unless otherwise agreed between the parties the father is to collect the child from and return the child to his school or the mother’s residence which ever is applicable at the commencement and conclusion of such periods of time.
That each parent be at liberty to make and receive telephone and other electronic communication to and from the child at all reasonable times.
That each parent do all acts and things necessary, including providing a written authority to any school that the child attends to ensure that each parent receives copies of school reports, school newsletters and other correspondence from the school.
That in the event that the child requires medical treatment, the parent caring for the child notify the other parent as soon as practicable.
IT IS NOTED that publication of this judgment under the pseudonym Waters & Hailes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1485 of 2008
| MR WATERS |
Applicant
And
| MS HAILES |
Respondent
REASONS FOR JUDGMENT
Introduction
[X] is the 5 year old son of Mr Waters and Ms Hailes. Mr Waters lives in [H] a suburb of Newcastle New South Wales. In May 2008 Ms Hailes relocated from Newcastle to live with her partner Mr H in Melbourne Victoria. The father does not want [X] to live in Melbourne and has therefore brought an application to this court seeking orders that [X] be returned to live in Newcastle.
Interim parenting orders were made by consent on 30 June 2008 providing an arrangement whereby [X]’s care would be shared by his parents and he would live in the Newcastle area for four weeks over a six week cycle and in the other two weeks he would live in Melbourne with his mother. This was never intended to be a long term arrangement. [X] has reached school age and therefore more permanent arrangements need to be put into place.
Background
The parties married in February 2001 and separated in July or August 2004. No divorce order has been made.
[X] was only six months of age when they separated. After separation the child spent time with the father one day most weeks from 9am to 2pm. This was by agreement between the parties. No orders or parenting plan had been entered into. During 2007 the father spent eight weeks in Europe and upon his return resumed the weekly periods of time with [X].
The father’s time with [X] increased to block periods of overnight time when the 2008 interim orders were made. The parties disagree as to the circumstances surrounding the reasons why the child had not spent more time with the father up to that point.
The mother met Mr H in 2007 when they both worked for [R]. She ceased her employment prior to her move to Melbourne in early 2008. Mr H remains employed by [R] as a finance and business partner for Victoria and Tasmania.
The mother was due to deliver a baby to be called [Y] between the hearing and the delivery of this judgment. Mr H is the father.
They live in a modern town house in [P] which is about a 45 minute drive from the centre of Melbourne in the south east suburbs. The property is owned by Mr H but is currently on the market for sale. There is a mortgage over the property. They have paid a deposit on a block of land at [M] which is a ten minute drive from [P]. It is their intention to build a four bedroom home on that property. The estate is a modern estate with all of the appropriate amenities for families.
The father lives in a house he owns with his mother in [H]. There is no mortgage over this property. His parents live about a 15 minute walk away. Apart from some work as a [omitted] the father has been unemployed since August 2007. Until then he had an extensive work history in the fields of human resources, industrial relations and occupational health and safety.
The mother’s parents and her brother also live in Newcastle as do other members of the paternal family. The maternal grandparents and a paternal aunt have assisted the mother in the care of the child from time to time.
The father pays the mother $26.00 per month in Child Support.
Issues
The significant issue for determination is where and with whom this child should live.
The father proposes that [X] live in Newcastle with both parties on an equal shared care basis or in the alternative primarily with him. The alternate case would see the child spend time with the mother for four weekends out of every five during the school term from Friday afternoon to Monday morning. Although the father does not want [X] to live in Melbourne, Ms O’Rourke submitted that if the court was persuaded to make such an order the father would seek provision for the child spending time with him in Newcastle during the school holidays and on some weekends during the school term. The father also invited the court, if it was so minded to order the child live in Melbourne to also make provision for an equal shared care arrangement in the event the father is able to relocate to that city.
The mother sought orders that the child would live primarily with her in Melbourne and spend time with his father in Newcastle on one weekend and in Melbourne on another weekend during the school term. She proposed the child would spend most of the school holiday times with the father although she sought some holiday time for the child to be with her during the middle and end of the year.
If the court was not minded to allow the child to live in Melbourne the mother still sought orders providing for him to live primarily with her and spend significant and substantial time with the father. She did not support an equal shared care arrangement.
The evidence
The applicant father relied on:-
a)his initiating application filed 10 June 2008;
b)his affidavit filed 14 January 2009; and
c)a joint affidavit by Mr and Mrs W the paternal grandparents also filed 14 January 2009.
The respondent mother relied on:-
a)her response filed 27 June 2008;
b)her affidavits filed:-
i)27 June 2008; and
ii)16 January 2009;
c)the affidavits of Mr H filed:-
i)27 June 2008; and
ii)30 January 2009; and
d)the affidavit of Mr O, the maternal grandfather, filed 16 January 2009.
A family report was prepared by Dr Todd Jacobson and was released by the court on 9 December 2008.
Both the mother and father gave evidence and were cross-examined. Mr H, Mr O and Dr Jacobson were also cross-examined.
A number of documents were tended.
I have had regard to all of the evidence both oral and written.
Family Report
Mr Levick for the mother argued that the court would have little confidence in the report of Dr Jacobson such that it would not carry much weight. He complained that Dr Jacobson arrived at his opinion based on one issue alone rather than analysing all of the relevant factors a family report writer would normally consider when preparing a report. In paragraph [80] of the report Dr Jacobson says:
“[80] ………As Mr Waters has no intention of relocating to Melbourne, the writer recommends that [X] be prevented from living with Ms Hailes outside the Newcastle area.”
Mr Levick said he was making a Makita & Sprowles argument[1] although I do not understand him to be saying that the report as a whole should be rejected. Whilst the view expressed in paragraph [80] could be said to go to the ultimate issue for determination it remains admissible.[2] Less weight may be given to such views if the approach adopted by the report writer is flawed or not readily ascertainable by the court.[3]
[1] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
[2] Section 80 Evidence Act 1905
[3] Makita (Australia) Pty Ltd v Sprowles ibid
Dr Jacobson was cross-examined and his conclusion in paragraph [80] was tested. He said that that opinion was a summary of his conclusions. I was left with the impression however that Dr Jacobson saw no way in which the child could live in Melbourne and continue to develop and maintain his relationship with the father.[4] His final recommendation appears to be based on the father’s desire not to move to Melbourne rather than a weighing up of all of the other relevant considerations such as the child’s attachment and relationship to and with the mother and Mr H as well as the effect on the mother’s parenting in the event that the child was ordered to live in Newcastle. Although some of these issues were discussed in the report they do not appear to have been taken into account by Dr Jacobson in arriving at his final conclusion. This approach is regrettably flawed.
[4] Paragraphs [79] and [80] of the report.
The extent of the father’s desire not to move to Melbourne or his capacity to travel there is a question of fact for determination by the court and is just one factor the court is required to weigh up in determining the whole dispute. I do not propose to give any weight to the conclusion Dr Jacobson arrived at based on the father’s intentions.
Despite the unfortunate approach adopted by Dr Jacobson in coming to his recommendation, his observations of the child with the parents and Mr H and his analysis thereof are otherwise helpful in assisting the court to weigh up the many other factors for determination.
Credit
Counsel for the mother argued that where the evidence of the parties differed the court would prefer the evidence of the mother. In support of that submission the court was directed to the father’s evidence of a conversation with the principal of [P] School. The father gave evidence that the day before he had a conversation with the principal but when questioned about that conversation he gave three different answers. Firstly he said that he didn’t say anything to the principal about [X] attending [H] School but later in his evidence said he did not recall. On further questioning he said that he did discuss the whole situation.
Quite often when witnesses are giving evidence they are nervous and given the nature of family law proceedings also emotional, however it is surprising in this case that the father gave three different versions as to a conversation that took place just the day before that evidence was given.
Mr Levick also suggested that the father was untruthful in his affidavit or in what he said to the family report writer in relation to the issue of family violence. He stated in paragraphs [16] and [72] of his affidavit that there was no issue of family violence in their relationship but told the report writer that he had been subjected to violence from the mother. It was not put to the report writer that he had recorded that information incorrectly and the father’s case was not run on the basis of there being family violence between the parties.
Mr Levick submitted the father’s demeanour during his cross-examination would lead the court to be sceptical of his evidence. He suggested the father was argumentative and was at pains to say all he wanted to say. I had cause on a few occasions to remind him to remain focused on the questions. On one occasion the father told Mr Levick he found him annoying.
The adversarial process is difficult for most litigants and Mr Waters was no exception. He was not able to easily follow the process of listening to the questions being asked and answering only those questions. He was clearly angry at times. During the mother’s evidence I observed him to sit back from his solicitor-advocate and look towards the wall away from the proceedings. He did this for quite some time during that evidence. He looked very stressed and angry.
The mother on the other hand presented as someone who was prepared to make admissions against her own interest conceding at times she could have done things differently. She appeared more able to step back and be objective when giving her evidence.
I find the father was clearly frustrated by the legal process and the circumstances surrounding the dispute. He presented as having a rigid personality and has probably found it difficult to be objective about the issues between the parties. The father’s perceptions have coloured his view of reality and as such I am persuaded the mother is a better historian than he is. Overall I am persuaded where their evidence differs the mother’s version is to be generally preferred. I will however determine some of the more significant factual disputes when I consider the various factors in deciding what is in this child’s best interests.
Legal principles
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[5] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [6]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[5] Section 60CA
[6] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[7]
[7] Section 60B lists the objects and principles for Pt VII.
In determining what is in a child’s best interests the court must consider the matters set out in s.60CC.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[9]
[8] Section 61DA
[9] Sections 61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the children spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
This legislative approach must be followed in all parenting cases.[10] This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[11] In Taylor v Barker[12] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[10] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[11] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[12] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[13]
[13] ibid at page 480
Presumption of equal shared parental responsibility
There is no evidence that this child or any other child in the care of the parties has been subjected to family violence or abuse. I am therefore satisfied that the presumption of equal shared parental responsibility applies.
Both parties seek an order that there be equal shared parental responsibility. For the reasons I will discuss later in this judgment I have some concerns as to the ability of the parties to effectively communicate about [X] but I am satisfied the level of dispute between them is not sufficient to warrant making a sole responsibility order. I therefore find that it is in [X]’s best interests to make the order sought by both parties.
Consideration of equal time or substantial and significant time
Having decided that the presumption applies and that an order for equal shared parental responsibility should be made I am required to consider if it is in this child’s best interests and that it is reasonably practicable for him to spend equal time with each parent. In determining this I will have regard to the factors set out in s.60CC.
Clearly if the parties live in different states it is just not practicable for an equal time arrangement to be put into place. I will consider the issue of reasonable practicality below but, consistent with the authorities I have outlined above, in determining the substantive matter I will consider firstly whether or not it is in [X]’s best interests to spend equal time or substantial and significant time with both parents and then consider the issue of relocation as part of the mother’s proposal and in the context of [X]’s needs and the overall circumstances.
When analysing the factors set out in s.60CC however I will refer to the various options together in order to avoid any unnecessary repetition.
The primary considerations: s.60CC(2)
The benefit to the child of having a meaningful relationship with both of the child’s parents
There can be no doubt that [X] would benefit from having a meaningful relationship with both his parents. Care needs to be taken however when considering this factor. A “meaningful relationship” is not necessarily one that is achieved by ensuring a child spends a certain amount of time with a parent. It is more likely to be achieved by the quality of that time. With respect I adopt the view of her Honour Justice Brown in Mazorski v Albright[14] where her Honour says:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
[14] (2008) 37 Fam LR 518 at 526 [26]
Dr Jacobson observed the child’s primary attachment was to his mother and that he had a good if not excellent relationship with both parents. He opined that that relationship was likely to have come about by him having spent regular and frequent time with each parent.
The report writer interviewed the parties in November last year. [X] had only been spending overnight and block periods of time with the father since about May or June but apart from a couple of months in 2007 when the father was overseas the child had spent time with the father most weeks. This regularity has no doubt assisted the development of the father-son relationship.
The report writer expressed the opinion that for a child of [X]’s age to maintain and develop a relationship with each parent he needs to spend frequent periods of time with them both. This was more important than the duration of that time. The basis of this opinion was that in a five year old child the child’s cognitive skills are not sufficiently developed to maintain a mental representation of each parent during prolonged periods of separation. The longer the period of separation the greater the chances of that mental image eroding leading to a dissipation of the relationship. The consequences of that happening would be that when the child spends time with the parent that he has not seen for some time they would need to re-establish their relationship before it could go on to develop. Dr Jacobson was of the view that if the child lived in Melbourne and was to spend two weeks with the father during school holidays, that would be insufficient time to properly re-establish the relationship let alone develop it. This would be of less a concern if he was older.
When cross-examined on this point the report writer said that in the event that the child is living in Melbourne he should see his father at least every three weeks in order to avoid the erosion of the father-son relationship. It is clear from the report and the evidence given by
Dr Jacobson that he proceeded on the basis that [X] was unlikely to see his father during school term. He took the view that the father would not be able to visit Melbourne and therefore the child would not see him regularly. He was also concerned that if the reverse were the situation and the mother lived in Melbourne and the child lived with the father in Newcastle his relationship with the mother would be eroded.
In the event that the child lived with the mother in Melbourne it would be important to ensure he was able to see his father during school term and not just during school holidays. The mother’s proposal would see at least one weekend visit to Newcastle during term time and a visit by the father to Melbourne on another weekend. Given Dr Jacobson’s evidence this may fall short of that which is required to avoid erosion of the relationship. A further weekend in either venue would however ensure that the child does not spend longer than three weekends a term away from the father.
If the father’s proposal for [X] to remain living in Newcastle is adopted the child would be able to continue to develop and maintain his relationship with both parents as he would be able to spend time with both of them regularly.
The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
This is not a case where the child has been exposed to abuse or family violence. The father told the report writer that he had been subjected to a physical altercation perpetrated by the mother. His affidavit evidence was contrary to this. I am satisfied that although there may have been inappropriate exchanges between the parents in front of the child from time to time he has not been exposed to abuse or family violence.
The father raised with the report writer concerns that the proposed residence for the child was not fenced and the child may be at risk of falling into a river near by or from oncoming traffic in a laneway. Having observed the mother and her partner I was left with the impression that they would take all due care and attention of [X] and I do not share the father’s concerns in this regard.
Mr H has introduced [X] to Australian Rules Football. The father considers this to be a violent sport. Whilst some would share the father’s opinion I have no evidence that [X] would be at risk if he were to follow an interest in this sport.
During the cross-examination of the father he gave evidence of having left the house after the child was in bed one night to go to the shops close by to purchase some items. The child became aware of his absence when he noticed those items in the fridge the next morning. The father said that his time away amounted to no more time than if he was in the bathroom. The house was locked in his absence. The father clearly did not appreciate the risk to the child at the time if there was a fire or intrusion from a stranger. This is concerning and may be an example of the child being at risk of neglect in the father’s care. I am however satisfied that the father is overall a caring parent and having the issue highlighted in these proceedings his attention has been brought to the dangers of leaving a child alone for even the shortest periods of time.
Notwithstanding my comments about the possible neglect by the father I am satisfied that this is not a determinative consideration in the case.
The additional considerations: section 60CC (3)
Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
[X] was interviewed by Dr Jacobson in both Melbourne and Newcastle. Whilst in Melbourne he told the report writer that he wanted to live in Melbourne with his mother. When he was interviewed in Newcastle he said that he wanted to live in both cities and with both parents. He did not have an understanding of the issues associated with the distance between the two households which is understandable given his age.
Because of his young age [X] does not have the maturity to understand the consequences of the views he has expressed and I will therefore not give any weight to them other than to confirm my finding that he loves both his parents and wants them to remain in his life.
The nature of the relationship of the child with each of the child’s parents and other persons
I am satisfied that [X] not only has an excellent relationship with his parents he also has a close relationship with the mother’s partner,
Mr H. This was confirmed in the evidence of Dr Jacobson and was not contested by the father.
His extended family has also played a significant role in his life. This would continue if he remains living in Newcastle as both sets of grandparents live in the Newcastle area as does other members of each family. Should [X] live in Melbourne his time with his extended family will be diminished however there is no suggestion that they will not be able to spend time with him if he was to visit his father in Newcastle.
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
The father took the view that the mother had sought to restrict and limit his time with [X] and accordingly the court would not be persuaded that she possessed the necessary willingness to promote a continuing relationship between father and son. The mother denied restricting the father’s time with [X] and gave evidence that he did not take up opportunities offered to him to spend extra time with the child.
The father’s evidence was that at least every six months he asked to have [X] overnight. The mother would refuse this request saying to him that [X] was not ready for overnight time. According to the mother she wanted the father to increase his day time contact with the child before moving to overnight time however the father did not want to do this.
Mr O, the mother’s father, gave evidence that on a number of occasions the father was offered more time with [X] but the father consistently refused to take up these opportunities. He would suggest to the father that [X] stay with him until later in the day and the mother would collect him on her way home from work. The father denied this. I was impressed with Mr H’s evidence and accept that the father was offered on a number of occasions more time with [X].
In July 2005 the parties entered into a Binding Financial Agreement. In that document the following was recited:[15]
[X] resides with Ms Hailes and will continue to do so. [X] generally has contact with Mr Waters on one day per week and occasionally on two days per week. Mr Waters is not currently having overnight contact with [X]. Mr Waters pays Ms Hailes child support of $5.00 per week.
[15] Recital G.
The father was legally represented in relation to the Binding Financial Agreement. Mr Levick argued that the father did nothing to increase his time with [X] and the inference should be drawn by this recital and the fact that he was legally represented that he did not intend to increase that time. I do not accept this submission. The recital specifically refers to the father not ‘currently’ spending overnight time with the child. The inference to be drawn from this is that both parties envisaged a time when he would be spending overnight time with his father.
It was not however until the mother indicated to the father that she intended to move to Melbourne that he took legal action to increase his time with the child.
Often witnesses honestly believe that circumstances exist based on their perceptions of events. Objectively however the circumstances may be quite different. The father clearly believed the mother was trying to restrict his time with the child by not allowing him to spend overnight time when he asked for it. The mother on the other hand believed that before the overnight time should commence the father needed to spend more time than the five hours once a week. The father’s reluctance to build up this time is unexplained but would have led the mother to be more hesitant about allowing the overnight time. I was not persuaded she was deliberately restricting the child’s time with the father but preferred a more conservative approach to build up the time first.
Another example of the perceptions of the parties being different was the belief the father had that the mother imposed a number of rules on his time with the child. His evidence was that she required him to have his mobile telephone on at all times and he was to follow a strict schedule for feeding and nap times. The mother said that she was trying to help with the time so that it went well not only for the child but also the father. I accept her evidence but also accept that the father interpreted this quite legitimate approach by the mother as interfering.
When I consider those matters I am not persuaded that the mother was either deliberately or indirectly restrictive of the father’s time. The delay in the child spending overnight time with his father arose out of the inability of the father to objectively understand the mother’s approach and their lack of positive communication.
Ms O’Rourke argued that the way the mother organised her move to Melbourne suggests that she is not supportive of a continuation of the relationship between the child and his father.
The mother’s evidence is that by about January 2008 she and Mr H had decided that they would live together in Melbourne. Mr H’s evidence was along similar lines. It was not until March that the mother told the father of her decision. Whilst this may be surprising I accept the submission by Mr Levick that there was nothing sinister in her not telling the father immediately. During January and February the father was spending significant periods of time in Melbourne as he was developing a relationship with Ms B who lived there. He was not seeing [X] as often during this period of time.
The mother told the father of her intention at one of [X]’s swimming lessons in early March. Neither party wanted an argument. I accept the mother’s evidence that when she told him the news the father did not say “No you are not going” but rather “I want shared care”.
Ms O’Rourke invited the court to conclude he was in fact saying no to the move.
The very next morning the father telephoned Relationships Australia to organise a mediation session. The parties attended an intake session on 10 March but through no fault of either party Relationships Australia cancelled two mediation sessions that had been organised for April and May. Ms O’Rourke argued that as he immediately went about organising mediation the court should draw the inference that he was opposed to the relocation of [X] and that the mother should have also been aware of this. Whilst at first glance such a submission has merit I am not satisfied that it can be sustained when all of the evidence is considered.
In April the father travelled to Melbourne again to see Ms B. Whilst there he visited Mr H in his home. Ms B accompanied him. The father accepted the propositions put to him by Mr Levick that he inspected the home and discussed [X] living with the mother and Mr H there. The father did not tell Mr H that he was opposed to the child moving to Melbourne. The mother was never told that until she received a letter dated 6 May 2008 from Legal Aid acting on behalf of the father. By this time the mother had exchanged contracts on the sale of her home.[16] The situation would have been different if the letter from Legal Aid had arrived before she signed the contract.
[16] Exhibit M4: First page of contract for sale dated 28 April 2008
I am satisfied that although the father never told the mother or Mr H in April that he supported the move his actions in visiting and inspecting the property and the conversation he had with Mr H whilst there were such as to lead the mother to believe she would not face any objection from him.
I am not satisfied that the mother deliberately orchestrated a fait accompli. The lack of effective communication between the parties led them to perceive events differently. The mother believing the mediation being organised was to work out how [X]’s relationship with his father could continue.
The father’s attendance at Mr H’s home reflects well on him. It shows that he wanted to know what arrangements would be put into place for his son if he did move. Unfortunately this was interpreted by the mother and Mr H as amounting to if not support at least acquiescence to the move.
Ms O’Rourke submitted that the mother could have gone about the move in a better way. It was submitted that prior to her giving up her employment, selling her home and making the move to Melbourne she should have settled the parenting arrangements with the father first. I accept Ms O’Rourke’s submission however I do not find that the mother’s motivation in approaching the move in this way was designed to thwart a relationship between the child and father or to present a fait accompli. I am satisfied that after she had made the decision in January to move in with Mr H a momentum developed. Her father told her of someone who would be interested in buying her house so it was not marketed in the usual way. She was stressed with her employment and saw the move as a way out of that. She avoided telling the father initially because she wanted to avoid conflict. In the circumstances of the history of their relationship that is not surprising. Notwithstanding all of that the preferable course would have been to talk to the father before resigning her employment and selling her home.
The child has a good relationship with the father which must in part be attributable to the mother’s promotion of that relationship. I am confident that the mother will continue to promote the relationship regardless of whether she lives in Newcastle or Melbourne. No doubt motivated by a desire to move to Melbourne the mother has offered to pay for the travel costs of [X] to and from Newcastle if he were to live in Melbourne but this is also evidence in support of her willingness to continue to promote a relationship between the child and his father.
When the father was overseas in 2007 the mother made arrangements for the child to see the paternal grandparents and the paternal aunt. This is another example of the mother promoting the child’s relationship with the paternal family.
The mother raised some concern as to the father’s ability to promote a relationship between the child and her because of his attitude towards her. The father has described the mother as being self-indulgent.[17] The mother is concerned that he will not be able to put aside those views and will attempt to influence the child. [X] has a good relationship with the mother and her partner. Since June of last year he has spent considerable periods of time with his father and there does not appear to be any evidence of a deterioration of the relationship between mother and son. I am not satisfied that there is any evidence to support the mother’s concerns in this regard.
[17] Affidavit of father filed 14 January 2009 paragraph [13]
When I consider all of these matters I am satisfied that notwithstanding the issues between them the mother and father would continue to promote in [X] a continuing relationship between him and the other parent and the extended families regardless of where either party lived.
The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
This consideration is significant to the issue of relocation. Obviously [X] would not be able to spend frequent time with the father as easily if he was to live in Melbourne and the father was to remain living in Newcastle. Consequently there is a risk that the relationship could be compromised. If he does relocate then it is imperative that he sees his father on a regular basis.
If the father’s application for a week about shared care arrangement is successful [X] would spend a week away from his new born brother as well as his mother. Whilst he is yet to develop a relationship with this baby there is a risk that that bonding would be compromised by only being in the mother’s household every second week.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The father says that if the mother and child lived in Melbourne he would not be able to afford to maintain a relationship with [X] because his financial circumstances would not enable him to travel to Melbourne regularly to see him.
The father has been unemployed for a couple of years and apart from three hours of [omitted] work each week earning $27 per hour he relies on social security for his financial support. Whilst he does not have a mortgage on his home his income is still very modest.
Mr Levick submitted that the father was not completely frank about this issue. He argued that the father was able to visit Melbourne three times in 2008 to see Ms B whilst maintaining that he can not afford to visit his son if he should live there.
Mr Levick further argued that there was nothing preventing him from moving to Melbourne. It was submitted that he had no employment ties in Newcastle otherwise preventing him from leaving and that as he owns a house in Newcastle with his mother he could rent that out to assist in meeting his living costs in Melbourne. The father’s evidence was that he would have to discuss that with his mother and he did not know whether she would agree to it being rented out. Although Mrs W was on affidavit Mr Levick did not cross-examine her.
I am not persuaded the father could easily change his living arrangements. His financial circumstances are very modest and I am not satisfied that it would be easy for him to just pack up and move to Melbourne. However to his credit the father asked the court, if it was minded to allow the child to relocate, to make orders that would provide him with time in Melbourne if he was able to live there.
Notwithstanding his very modest means given he was able to travel to Melbourne three times in 2008 I am satisfied that he would be able to afford at least one journey to Melbourne a term and if orders are made specifying the particular weekend he would be able to book airline tickets well in advance to take advantage of discounted airfares. I have arrived at that decision even though I accept the submission of
Ms O’Rourke that in early 2008 the father was not seeing the child for lengthy periods and therefore his expenses to look after the child when in his care were not as great as they are now.
Another practical difficulty if the child was to live in Melbourne and was travelling to Newcastle regularly especially on weekends is the prospect that he may have to leave school early on some days.
Dr Jacobson saw no problem with this especially in his early school years but he added the qualification that he was not an educationalist.
I am satisfied that he could afford two Fridays off school each term without causing his education to suffer.
The capacity of the parents to provide for the child’s needs, their attitude to the child, the responsibilities of parenthood demonstrated by each of them including the extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
Mr Levick was critical of the father’s commitment to providing financial support to the mother for [X]. His evidence was that he had paid child support through the Child Support Agency and had purchased other times for the child as well as meeting half of the fees for swimming lessons.
The father is unemployed and therefore does not have a significant income. He has made payments in accordance with the assessment from the Child Support Agency. The father was emphatic when giving evidence on this point that he had done the right thing by the child by paying in accordance with this assessment. However there was a period when he was earning around $1300 per week and although he was not reassessed during this period did not offer any greater contribution to the mother. The way the father presented his evidence on this point led me to conclude he did not consider it necessary to contribute anything more than that which was assessed. He did not see the moral obligation to financially support his son as being greater than the legal obligation. I found his evidence and attitude on this point disappointing.
The father is unlikely to be providing much by way of financial support in the future unless he obtains employment and a new assessment is carried out. He tendered his Centrelink diary[18] showing his attempts to obtain employment and I am satisfied that he has made a concerted effort to look for work. However he has been unemployed for some time now and there does not appear to be any real prospect of change in the foreseeable future especially given the current economic circumstances.
[18] Exhibit F5
The financial support for [X] currently comes from Mr H.
Apart from one issue there is nothing in the evidence that either party would not be able to provide for the child’s emotional and intellectual needs. The issue of concern relates to how the father has approached the issue of discipline. I found his evidence that he spoke to [X] on at least 10 occasions about how he is disciplined in the mother’s household to be disappointing. The reasoning behind those questions was apparently to learn better ways to discipline [X]. Such an approach shows a lack of insight into parenting. The father, although unintentionally, shifted the parenting role onto the child.
Any family violence involving the child or a member of the child’s family and any family violence order that applies to the child or a member of the child’s family if the order is a final order or the making of the order was contested by a person
There are no family violence orders in place and there is no history of family violence.
Any other relevant fact or circumstance
It was submitted on behalf of the mother that if she was ordered to return to Newcastle she would be placed under enormous pressure the consequences of which would not be in the child’s best interests.
Ms O’Rourke submitted however that the circumstance the mother finds herself in is solely of her own making. It was submitted that the court must determine the matter “without the impediment of recent development” to use the words of his Honour Warnick J in C & S.[19] Whilst the court should be careful to not place too much weight on any recent development each case will be determined on its own merits and the circumstances the parties find themselves in and how they arrived there are relevant matters to be considered when weighing up the competing proposals. For the reasons I have expressed elsewhere in this judgment I have not found the mother to have deliberately orchestrated her current circumstances in order to present the father with no alternative but to accept the move of [X].
[19] (1998) FAMCA 66 at page 9
There is no doubt the mother would be unhappy with the decision to return but there is no evidence that her capacity to parent in itself would be compromised by her unhappiness. However the implications of such a move are significant when the day to day practicalities are considered.
Initially she would have to live with her parents as her home has been sold. She is entirely dependent on Mr H financially. He has a home in Melbourne with a mortgage. He has a well paid position with [R] earning $112,106 per year.
The mother would not be able to live with Mr H, with whom she has just had a child, for some time. He is required by his contract of employment[20] to give 6 weeks notice of his intention to resign. If he were to resign he would not easily obtain employment of a similar nature in Newcastle such that they could afford to live here and meet his obligations on the property in Melbourne. His employment history is in working with businesses with turnovers in excess of $100 million. Whilst he may be able to work as an accountant his particular skills limit his employability.
[20] Exhibit M2
The financial consequences are obvious and the father is not in a position to provide financial support to the mother. She was the main financial provider for [X] for many years and now that responsibility has been taken up by Mr H.
If the child was to live in Melbourne he would have a home to live in and a step-father who would be able to continue to support him and his mother. To order his return to Newcastle risks jeopardising his home and financial security. A consideration of this issue favours the mother’s proposal.
Before I turn to the next consideration I propose to deal with the submission by Mr Levick that the court could infer that the mother would be less happy if she was required to live in Newcastle. I have already found that that was likely but there was no evidence that her capacity to parent would be compromised by that unhappiness. In Taylor v Barker the Full Court considered what weight should be given to the question of a parent’s happiness and contentment. Their Honours the Chief Justice and Finn J held:
[113] it will be seen from the passages from his honour’s judgment which we have set out throughout these reasons, that 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 that 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 the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case.[21]
[21] (2008) 37 Fam LR 461 at page 486 [113]
The Deputy Chief Justice dissented on this point. His Honour said:
[126] It is perhaps reasonable to infer as his Honour did that if a parent wishing to relocate has fallen in love with someone, and wants to share his or her life with that person and either shares having a child with that person or even wants to do so, that not being able to do so would make the person unhappy (indeed that is the conclusion their Honours the Chief Justice and Finn J reached). If that were enough it seems to me that there would be very few applications for relocation which would not succeed.
[127] The Act does not prescribe parental “happiness” as such, as a factor in determining the best interests of a child. It could be said that the point is so obvious that it does not need legislative prescription. However, the happiness of one parent is not necessarily the happiness of the other and in relocation cases it would be rare for the two to coincide. It is possibly reasonable to infer that the unhappiness of one parent may impact on a child who is with that parent and even more so if the child is more closely associated with that parent or perhaps more closely attached to him or her. It may be that evidence in the form of an expert opinion based on observation and fact rather than conjecture may establish the veracity of such an inference in an appropriate case.
[128] It is another thing in my opinion to elevate an inference, not directly supported by evidence, to the conclusive factor in preferring the new family of the parent proposing to relocate to the relationship between the child and his or her other parent.[22]
[22] ibid at pages 487-488 [126]-[128] inclusive
With respect I prefer the approach adopted by his Honour the Deputy Chief Justice. There can be no doubt that a parent would be unhappy if forced by order of a court or other significant circumstance to live in an area where they do not want to. In my view the relevant question to ask in those circumstances is how will that unhappiness impact on the child. Without some form of evidence to assist the court to determine that question there is a risk that the unhappiness would be given too much weight. Many parents are able to put aside their unhappiness for the sake of their children. It does not always follow that their parenting would be compromised when disappointed about their life circumstances. It is regrettable in this case that the family report writer did not explore this issue in more detail.
The reasonable practicality of a child spending equal or substantial and significant time with both parents
In determining whether a child should spend equal time or substantial and significant time with both parents s.65DAA(5) of the Family Law Act requires the court to consider the following:
a)How far apart the parents live from each other; and
b)The parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
c)The parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
d)The impact that an arrangement of that kind would have on the child; and
e)Such other matters as the court considers relevant.
These considerations are important because in order for an equal shared care arrangement to work not only must the parties live in close proximity to enable the child to move freely and easily between the respective homes the parents must be able to communicate well so that the transition between the homes is seamless or at the very least any difficulties for the child are minimised.
In T v N (shared residence)[23] her Honour Federal Magistrate Ryan, as she then was, considered the factors the court should be particularly mindful to examine when determining equal shared care cases. Many of those factors have been incorporated into s.65DAA(5).[24] The factors are also relevant to cases where the court is considering making an order for a child to spend significant and substantial time with a parent.
[23] (2004) 31 Fam LR 281
[24] Section 65DAA was inserted into the Family Law Act1975 by the Family Law Amendment (Shared Parental Responsibility) Act 2006
The non-exhaustive list of factors provided by her Honour remains a good guide to determining cases such as this. The list includes:
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Whether the homes are sufficiently proximate so that the child can maintain friendships in both homes;
·The prior history of caring for the child, and whether the parties have demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment;
·Whether the parties agree or disagree on matters relevant to the child’s day to day care, diet and sleeping pattern;
·Whether if the parties disagree on the these matters there is a likelihood that they would be able to reach a reasonable compromise;
·Whether they share similar ambitions for the child, for example as to religious adherence, cultural identity and extra curricular activities;
·Whether they can address on a continuing basis the practical considerations that arise when a child lives in two homes;
·Whether each party respects the other party as a parent;
·The child’s wishes and the factors that influence those wishes; and
·Where the child’s siblings live.
Ms O’Rourke submitted that the parental conflict is on the lower end of the “conflicted family scale”. Whilst I accept that submission there have been a number of instances where the parties have failed to communicate effectively about their son and parenting arrangements such that I do not have confidence they will be able to maintain a shared parenting regime. Dr Jacobson also formed the view that a shared parenting arrangement would be inappropriate in this case because of the lack of communication and coordination between the parents.
A significant example of this lack of parental coordination is where the father caused [X] to attend his first day of school at [H] School without telling the mother before hand that he would do so. Whilst the mother knew that the father had enrolled him in this school, just as she had enrolled him in [P] School in Melbourne she did not believe that the father would take him to school until the dispute between them had been determined by the court given the matter was listed for hearing the week after the commencement of the school year.
The father was of the view that the mother should have presumed that the child would have gone to school that day because she knew that he was enrolled and he was living with the father pursuant to the interim orders on that day.
I accept the mother’s evidence that she was not told about [X]’s attendance at school until [X] himself told her later that afternoon. The mother did not take him to school when he returned into her care. At the hearing I asked for and received an undertaking from both parents for him not to be taken to school until this decision was delivered.
The mother’s evidence in this regard impressed. She remained respectful whilst clearly angry about the father’s decision. The first day of school is an important one for children and for parents. [X] and the mother were deprived of sharing this day together. Dr Jacobson gave the opinion that [X] was likely to get over this incident if indeed he was affected by it at all – that may be so. The real issue however is the father’s approach to the issue.
Whilst the father was no doubt motivated by a desire to see that [X] did not miss out on any schooling I accept the mother’s submissions that his actions showed a complete lack of insight into the child’s needs to have parents who are able to liaise and communicate about important parenting matters such as this. This incident is one that caused me to consider making a sole parenting responsibility order despite both parties seeking a joint order. I am hopeful the father has learnt from this litigation the importance of liaising with the mother but in trying to predict the future behaviour of parents the court needs to look at their past behaviour. When doing so I do not have confidence the parents will be able to effectively communicate to make an equal shared care arrangement work.
The parties also have different approaches to parenting. The father sees no problem in giving the child some beer. He adopts what he calls a European approach to the consumption of alcohol. He says if the child is given alcohol at home and in small quantities he will not seek it out when away from home and will grow to have a responsible attitude to alcohol consumption. The mother prefers that the child not be given any alcohol. The father gave evidence of having completed a responsible service of alcohol course and although that course is related to service of alcohol in a commercial environment I am somewhat surprised that he took such a strong view of his approach. He is unlikely to change this attitude. This is likely to lead to further friction between the parties such that a week about or other form of equal shared care arrangement may be compromised.
There were also different approaches to discipline, bed times and home routines which may make the transition difficult for the child.
Since June 2008 the parties have had a form of shared care arrangement for [X] at least for four of the six weeks of the cycle provided for in the interim orders. There is no evidence that this arrangement has compromised his relationship with either parent or has in any way negatively affected his development. The arrangement however was only temporary regardless of whether the mother lived in Melbourne or Newcastle. Because of the other factors militating against a shared care arrangement working I would need to see a much longer period of successful shared care before being satisfied that such an arrangement is likely to work in the long term.
An equal shared care arrangement would also see [X] separated from his brother [Y] for a week at a time. [Y] was born during these proceedings and given his young age it is important for [X] and [Y] to develop their sibling relationship. Living primarily with the mother would optimise this development.
The issue of proximity of households is important in this case not only when considering the issue of relocation. If the mother was to return to Newcastle she would at least initially live with her parents in [E]. Although [E] is a suburb of Newcastle it is far enough away from [H] to make a shared care arrangement difficult. Although the father’s choice of school at [H] is close by his home the child would have considerable travel to and from his grandparent’s home in [E] if he remained at that school. This would also compromise his ability to socialise with any friends he makes through school when he is living with his mother.
Obviously if the parties live in different states the issue of proximity itself would mean a shared care arrangement would not work.
In the event that the child was to live in Melbourne and the father moved there he would need to move close to where the child either lived or went to school if a shared care option was to work. If the father lived within a 30 minute drive of the child’s school the prospects of shared parenting would be improved but as the other reasons I have considered would be applicable regardless of where the father and mother lived I am not persuaded such an arrangement is in [X]’s best interests.
I am satisfied when I consider all of these matters that it is not in [X]’s best interests to live in an equal shared care arrangement with both parents. Further even if the mother was to return to live in Newcastle it would not be practicable.
Turning then to whether it would be in [X]’s best interests to spend significant and substantial time with both parents.
The father’s alternate case was that [X] should live primarily with him and spend significant and substantial time with the mother. Whilst that was his position it was not argued with any force at the hearing. That is understandable as there was no evidence to support changing a long standing arrangement where the child has lived with the mother all his life and the parties separated when he was only six months old.
The consideration may have been different if the mother indicated that she did not intend to return to Newcastle if the child was ordered to live here. The mother indicated that although she would not like such an order she would return and would prefer to remain [X]’s primary carer. Given such commitment it was not necessary for the court to consider its powers to make coercive orders for her to return the child.[25]
[25] Sampson v Hartnett (No 10) (2008) 38 Fam LR 315
I intend therefore to proceed on the basis of considering the child spending significant and substantial time with the father whilst living primarily with the mother.
Although there are too many factors militating against an equal shared care arrangement the child’s relationship with the father is good if not excellent. Such a relationship needs to be fostered and maintained. I am satisfied that he would benefit from spending more than just weekend time with the father if he was to live in close proximity to him. If he was to spend from Thursday afternoons after school until Monday mornings before school in each alternate week the father would be able to be involved with the school and provide greater opportunity for [X] to live with his father at times other than normal weekends. This would only succeed however if the father lived close to the child’s school.
If the mother lived at [E] and the father in [H] this would be possible. If both parents lived in Melbourne the father would need to live no more than a 30 minute drive from the child’s school to ensure that the travelling is not too much for the child.
When I consider the issue of whether the child should spend significant and substantial time with the father I am satisfied that the child would benefit from such an arrangement if the parties lived in close proximity to each other. In the event that they remained living in different states the child would need to spend at least three weekends a term and for some extended periods during school holidays in order for him to have that substantial time with the father.
It is also important for the child to have significant and substantial time with the mother during holidays. If he is to live in Melbourne the mother’s proposal of him having half the mid year and end of year holidays with her would provide that opportunity.
Discussion
Having determined that it is not in [X]’s best interests to live in a shared care arrangement with both parents but that it would be in his best interests to live primarily with the mother and spend significant and substantial time with the father I turn to a consideration of the more significant advantages and disadvantages of the competing proposals.
I am satisfied the following advantages would exist for [X] if he lived in Newcastle:
a)His mother would continue to care for him appropriately;
b)He would be able to see his father on a regular alternate weekend basis from Thursday afternoon to Monday morning and for half of the school holidays providing an opportunity for [X] to maintain and develop his good relationship with the father; and
c)He would be able to maintain his relationship with both extended families by having regular time with them.
The following disadvantage would exist if [X] lived in Newcastle:
a)
Although the mother would continue to provide appropriate care for [X] her financial situation would be significantly compromised as her sole means of support comes from Mr H.
I am not satisfied he can easily obtain employment in Newcastle. This would mean at least for some time the mother would not be able to either live with her partner with whom she has a new baby or provide the level of financial and home security she currently can for [X].
The advantages for [X] in living in Melbourne would be:
a)The mother would have the security of a home and definite financial support from Mr H relieving her of the concern of how she will house and provide for [X] as well as [Y]; and
b)The stability of the mother’s relationship would be maintained by Mr H and her continuing to live together with their son [Y] as well as [X].
The disadvantages that would flow if [X] lived in Melbourne would be:
a)There is a risk the child’s relationship with the father may erode if he does not see him regularly;
b)The child’s relationship with the extended families may also diminish unless he gets opportunities to spend time with them; and
c)There would be frequent travel for the child and father in order to maintain their relationship.
The competing advantages and disadvantages do not carry the same weight however all of the ones I have highlighted are significant. When I weigh them all up along with my considerations set out in this judgment I have come to the conclusion that [X]’s best interests would be served by living with his mother in Melbourne. This will provide him with a financially secure home environment and although there will be travel involved for everyone I am satisfied that it is not so onerous as to make it impossible to maintain the father-son relationship which is vitally important.
The best outcome would be for the father to live in Melbourne. In saying that I am not suggesting that in cases such as this a non-primary carer parent should be expected to pack up and move each time the primary carer wishes to. In this case it was the mother’s choice to commence a relationship with a man in another state and I would understand if the father felt powerless and angry when he heard of the mother’s decision to move. My primary concern however is [X]’s best interests and I am of the view that they would be served if the father could see a way to move to Melbourne in the future. This would then enable the child to spend more regular time with his father. Fortunately the father was open to this when he instructed his solicitor-advocate to seek orders to cover that possibility if the court was persuaded to allow the child to live in Melbourne.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding one hundred and forty-one-one (141) paragraphs are a true copy of the reasons for judgment of LAPTHORN FM
Associate: Helen Drysdale
Date: 27 February 2009
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