WENTWORTH and WENTWORTH & Anor

[2013] FamCA 156

FAMILY COURT OF AUSTRALIA

WENTWORTH & WENTWORTH AND ANOR [2013] FamCA 156

FAMILY LAW - CHILDREN – Living Arrangements – Non-Parent – where the child lives with the paternal grandmother – where the child spends time with the father – where the child has only day time contact with the father, with frequency dependent upon distance of the father’s residence from the paternal grandmother’s residence – injunction restraining the father from bringing the child into contact with the mother – where no order is made for the child to spend time with the mother – where the child has no meaningful relationship with the mother – where the father was unable to meet all of the child’s needs – where the child’s wish to spend only day time with the father was given weight – where the paternal grandmother had been the primary carer of the child for the past three years – where the mother had failed to participate in the proceedings

FAMILY LAW – RELOCATION – where the paternal grandmother desired to relocate with the child from Queensland to New South Wales – where the paternal grandmother had originally relocated from New South Wales to Queensland to assist in the care of the child – where advantages of relocation precluded any injunction restraining it after the conclusion of the current school year

FAMILY LAW – PARENTAL RESPONSIBILITY – where the paternal grandmother has sole parental responsibility – where the presumption of equal shared parental responsibility was rebutted by the evidence – where communication between the paternal grandmother and father  had broken down

Child Protection Act (Qld)
Family Law Act (Cth) ss 4, 60B, 60CA, 60CC, 61B, 64B, 65D, 61DA, 65AA, 65DAA, 65DAC and 65DAE
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Allesch v Maunz (2000) 203 CLR 172
AMS v AIF (1999) 199 CLR 160
Dennett & Norman [2007] FamCA 57
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Malcolm v Monroe [2011] FLC 93-460
McCall v Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Potts & Bims & Ors [2007] FamCA 394
RCB v Forrest & Ors (2012) FLC 93-517
Rice v Asplund (1979) FLC 90-725
Sampson v Hartnett (No.10) (2007) FLC 93-350
Taylor v Taylor (1979) 143 CLR 1
U v U (2002) 211 CLR 238

APPLICANT: Ms Wentworth

FIRST RESPONDENT: Mr Wentworth

SECOND RESPONDENT: Ms A

INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

FILE NUMBER: BRC 6907 of 2011

DATE DELIVERED: 18 March 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane

JUDGMENT OF: Austin J

HEARING DATE: 26, 27 & 28 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Linklater-Steele

SOLICITOR FOR THE APPLICANT: Parker Family Law

COUNSEL FOR THE FIRST RESPONDENT: N/A

SOLICITOR FOR THE FIRST RESPONDENT: N/A

COUNSEL FOR THE SECOND RESPONDENT: N/A

SOLICITOR FOR THE SECOND RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr D Carlton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Sarah Cleeland Family Lawyers

Orders

1. All former orders relating to the child B, born … October 2004, (“the child”) are discharged.

2. The applicant (“the paternal grandmother”) shall have sole parental responsibility for the child.

3. The child shall live with the paternal grandmother.

4. The paternal grandmother is restrained from locating the child’s residence to a place outside a radius of 25 kilometres from the post office at C suburb, Queensland prior to the conclusion of the fourth school term in 2013 in the State of Queensland.

5. The paternal grandmother and father shall take all reasonable steps to ensure that the child spends time with the father as follows, or as otherwise agreed:

   (a)Whilst ever the father lives within 150 kilometres of the paternal grandmother and the child:

   (i)From 9.00 am until 5.00 pm each Sunday;

   (ii)From 9.00 am until 5.00 pm on each of the last seven days in each school holiday period;

   (iii)From 9.00 am until 5.00 pm on Father’s Day; and

   (iv)From 9.00 am until 5.00 pm on Boxing Day.

   (b)Whilst ever the father lives more than 150 kilometres from the paternal grandmother and the child:

   (i)From 9.00 am until 5.00 pm on Sunday on the third and seventh weekends of each school term in the State where the child is then attending school;

   (ii)From 9.00 am until 5.00 pm on each of the last seven days in each school holiday period;

   (iii)From 9.00 am until 5.00 pm on Father’s Day; and

   (iv)From 9.00 am until 5.00 pm on Boxing Day

6. Unless otherwise agreed, for the purposes of implementing the time spent by the child with the father:

   (a)Pursuant to Order 5(a) hereof, the father shall cause the collection of the child from the paternal grandmother at the commencement of her time with him at the venue nominated by the paternal grandmother not less than seven days in advance and the paternal grandmother shall cause the collection of the child from the father at the conclusion of her time with him at the venue nominated by the father not less than seven days in advance; and

   (b)Pursuant to Orders 5(b)(i), 5(b)(iii) and 5(b)(iv) hereof, the father shall cause the collection of the child from the paternal grandmother at the commencement of her time with him at the venue nominated by the paternal grandmother not less than seven days in advance and return the child to the paternal grandmother at the same place at the conclusion of the child’s time with him.

   (c)Pursuant to Order 5(b)(ii) hereof:

   (i)The paternal grandmother shall cause the child to be delivered to and collected from the father at the commencement and conclusion of the time spent by the child with him at the venue nominated by him not less than 21 days in advance in the autumn and spring school holidays; and

   (ii)The father shall cause the child to be collected from and returned to the paternal grandmother at the commencement and conclusion of the time spent by the child with him at the venue nominated by the paternal grandmother not less than 21 days in advance in the summer and winter school holidays.

7. Unless otherwise agreed, the paternal grandmother and father shall take all reasonable steps to ensure that the child communicates privately by telephone with the father each Tuesday and Thursday when the child is living with the paternal grandmother and on the child’s birthday, between 6.00 pm and 6.30 pm, and for that purpose the paternal grandmother shall ensure the child telephones the father on the telephone number provided by him to the paternal grandmother and the father shall ensure that he is able to receive the child’s calls on that number at that time.

8. The father is restrained from consuming any alcohol during any period in which the child spends time with him, and also during the period of 12 hours immediately preceding such time.

9. The father is restrained from causing or allowing the child to spend time or communicate with the mother whilst the child is spending time with him.

10. Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.

11. Each party is restrained from denigrating the other in the presence or hearing of the child, and from permitting the child to remain in the presence or hearing of another person denigrating the other.

12. The paternal grandmother shall authorise and request the principal of any school attended by the child to provide to the father and the mother, at their own expense, copies of all school reports and school photograph order forms relating to the child.

13. The paternal grandmother and father shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

14. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

15. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

16. Any and all outstanding applications are dismissed.

Notation

(A)No order is made prescribing the time to be spent by the child with the mother or the communication that is to occur between them, the arrangements for which, if it is to occur, will be decided by the paternal grandmother as an incident of her sole parental responsibility for the child.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wentworth & Wentworth and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6907 of 2011

Ms Wentworth

Applicant

And

Mr Wentworth

First Respondent

And

Ms A

Second Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings entail a dispute over the parenting orders that should be made in respect of the only child of the respondent parents. The applicant is the paternal grandmother.

2. The mother did not usefully participate in the litigation and so the contest narrowed to a dispute between the paternal grandmother and father about the allocation of parental responsibility for the child, with whom the child would live, and the nature of her continuing interaction with the other parties.

3. Although the paternal grandmother and father have both lived in relatively close proximity to one another in the south east corner of Queensland since 2007, the paternal grandmother desired that she be able to return with the child to live in the Sydney metropolitan area in NSW. The father was resistant to both the child’s residence with the paternal grandmother and their proposed relocation to live in Sydney.

Background

1. The female child who is the subject of the proceedings was born in October 2004 and is now eight years of age.

2. Orders concerning the child were originally made between the mother and father in the Federal Magistrates Court on 7 April 2006, but those orders did not regulate the child’s parenting arrangements for long.

3. Only months later in October 2006 the Queensland Department of Child Safety (“the Department”) took the child from the mother and placed her into the care of the father.[1] A child protection order was subsequently made under the Child Protection Act (Qld) by the Children’s Court in January 2007 granting custody of the child to the chief executive of the Department.[2]

   [1] Paternal grandmother’s affidavit, para 8; Father’s affidavit, para 5

   [2] Father’s affidavit, Annexure E; First Family Report, para 4.6

4. Some time later during 2007 the Department removed the child from the care of the father and placed her into the care of the paternal grandmother, where she remained for at least a year and perhaps closer to two years.[3] That occurred because the Department found the father to be a willing parent, but lacking the capacity to care for the child without assistance.[4] That conclusion mirrored the paternal grandmother’s opinion. Despite the father’s suspicion about her motives, the paternal grandmother has made no secret of the fact that she relocated from NSW to Queensland to take over the care of the child because she considered the father was unable to do so alone.[5]

   [3] Paternal grandmother’s affidavit, paras 8, 55; First Family Report, paras 4.10, 10.6

   [4] Father’s affidavit, Annexure E

   [5] Father’s affidavit, para 117; First Family Report, para 7.6

5. The Department later returned the child to the care of the father in January 2009 upon expiration of the child protection order,[6] over the objection of the paternal grandmother.[7]

   [6] Paternal grandmother’s affidavit, para 10; Father’s affidavit, paras 6-8, Annexure B

   [7] First Family Report, para 3.1

6. During 2009, by virtue of cooperation between the father and paternal grandmother the child began spending weekends with the paternal grandmother and when she later started school in 2010 she began living with the paternal grandmother during the school week and spending time with the father on weekends.[8] Consequently, the child has lived predominantly with the paternal grandmother since February 2010.[9]

   [8] Paternal grandmother’s affidavit, paras 6, 11; First Family Report, paras 3.4, 4.12

   [9] Paternal grandmother’s affidavit, paras 6, 73, 151

7. In July 2011 the paternal grandmother decided to preclude the child from spending time with the father because of her concerns about her safety in his care[10] and she instituted these proceedings shortly after in August 2011.

   [10] Paternal grandmother’s affidavit, paras 13, 28-40

8. The paternal grandmother and father then negotiated consensual interim parenting orders, which were made by the Court on 23 August 2011. Those orders provided for the child to live with the paternal grandmother and to spend time with the father each Sunday.

9. Although the paternal grandmother later also offered to allow the child to spend extra time with the father on other days, the father did not avail himself of that offer and the child’s interaction with him has been confined to Sundays.[11]

   [11] Paternal grandmother’s affidavit, paras 14-15

10. The orders made in August 2011 remain in existence, but there has not been complete compliance with them. The paternal grandmother alleged the father’s compliance with the orders was unacceptably lax, both in respect of the time he allowed the child to spend with him and his telephone communication with her.[12] The father contended he fully complied with the orders permitting the child to spend time with him, other than when in conflict with his employment commitments,[13] and further, his inconsistent telephone communication with the child was due to either deficient mobile telephone reception or the child’s mobile telephone not being sufficiently charged.[14]

    [12] Second Family Report, paras 4.2, 4.4

    [13] Second Family Report, para 4.3

    [14] Second Family Report, para 4.5; Father’s affidavit, para 108

Proposal and primary evidence of the paternal grandmother

1. The paternal grandmother proposed the orders set out in her Amended Application filed on 13 June 2012 which provided for the child to live with her and for her to have sole parental responsibility for the child. She wanted to live with the child in Sydney, NSW rather than in Queensland.

2. As for the child’s interaction with the father, she essentially proposed continuation of the existing interim regime, provided the father also relocates to Sydney, allowing for the child to spend time with the father each Sunday and also for seven consecutive days during each school holiday period, though not overnight. She also proposed curbs on the father’s behaviour during the occasions of the child’s visits with him, including a restraint on allowing the child to come into contact with the mother.

3. Despite contravention of prior procedural orders,[15] with the consent of the father and Independent Children’s Lawyer, the paternal grandmother was permitted to rely upon the following evidence:

   a)Her affidavit filed on 18 July 2012;

   b)The affidavit of her son, Mr D, filed on 19 July 2012; and

   c)The affidavit of Mr E filed on 19 July 2012.

   [15] Order 5 made on 30 May 2012

Proposal and primary evidence of the father

1. The father pressed for the orders set out within his Amended Response filed on 23 August 2012, which provided for the child to live with him and for him to have sole parental responsibility for her. The father proposed that he have unfettered control over the nature and frequency of the child’s interaction with both the paternal grandmother and mother.

2. As was the case with the paternal grandmother, the father failed to comply with former procedural orders concerning the evidence upon which he was permitted to rely.[16] Notwithstanding, with the consent of the paternal grandmother and Independent Children’s Lawyer, the father was granted leave to rely upon:

   a)His affidavit filed on 23 August 2012;

   b)The affidavit of his brother, Mr F, filed on 20 August 2012;

   c)The affidavit of Ms G filed on 20 August 2012;

   d)The affidavit of Ms H filed on 20 August 2012; and

   e)The affidavit of Ms I filed on 20 August 2012.

   [16] Order 5 made on 30 May 2012

3. The father’s application, made on the morning of the second day of trial, to call even more witnesses to give oral evidence was refused.

Absence of the mother

1. The mother failed to appear at Court for the final trial and so the trial proceeded in her absence.

2. The mother has taken no active part in the proceedings for nearly a year. Her last appearance before the Court was by telephone on 7 March 2012. The procedural orders made from time to time by the Court were forwarded to the mother’s last known address for service, disclosed in her Notice of Address for Service filed on 9 November 2011. She is believed to still live in Western Australia.[17]

   [17] First Family Report, para 3.6; Second Family Report, paras 9.3, 10.2

3. Despite orders to do so,[18] the mother failed to file either a Notice of Address for Service or a Response. Nor did she file any affidavit material.

   [18] Orders 3-4 made on 7 March 2012; Order 2 made on 30 May 2012

4. The mother also failed to attend upon the Family Consultant for interview, despite numerous attempts by the Family Consultant to establish contact with her for that purpose.[19]

   [19] First Family Report, paras 1.3, 10.1; Second Family Report, paras 1.3, 6.8

5. It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity to appear and present their case so that their litigious dispute may be decided fairly. But being afforded the opportunity and making use of it are different things. If a party eschews the given opportunity to be heard by voluntary withdrawal from the proceedings there is no miscarriage of justice by the continuation of the trial in that party’s absence. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182-186, 189-191; Taylor v Taylor (1979) 143 CLR 1 at 4).

Proposal and evidence of the independent children’s lawyer

1. The Independent Children’s Lawyer began the trial with a provisional view that the child should live with the paternal grandmother, which view was galvanised by the evidence. The Independent Children’s Lawyer proposed final orders which were generally consistent with those proposed by the paternal grandmother.[20]

   [20] Exhibit ICL1

2. The Independent Children’s Lawyer did not adduce any separate evidence, but did rely upon the evidence of the Family Consultant comprised within his two Family Reports dated 8 February 2012 and 31 July 2012, annexed to his affidavits sworn on those two dates. The Family Consultant’s evidence in cross-examination was balanced, rational and convincing.

Applicable legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).

1. However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.

2. In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

3. If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

4. The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the child

1. Where the provisions of ss 60B and 60CC of the Act refer specifically to “parents” in the context of objects, principles, and considerations relevant to the determination of a child’s best interests, the legislature does not intend those relevant factors to extend to parties or third parties who are not parents of the subject children (see Aldridge & Keaton (2009) FLC 93-421 at [44]-[48], [65], [74], [109]-[112], [119]; Potts & Bims & Ors [2007] FamCA 394 at [8]-[9]). Nevertheless, the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders (see Aldridge & Keaton at [59]-[61], [75]-[81], [83]; Dennett & Norman [2007] FamCA 57 at [53]-[60]).

2. Although some of the factors prescribed for consideration under s 60CC(3) of the Act refer only to parents, those factors insofar as they concern a grandparent may still be considered under s 60CC(3)(m) of the Act, and carry the same weight under whichever provision they are discussed (see Aldridge & Keaton at [111]-[112], [119]). Consequently, I will deal with the father and the paternal grandmother simultaneously under all of the relevant criteria set out within s 60CC(3) of the Act.

3. Moreover, since these proceedings were commenced before 7 June 2012, the amendments to the Act, and in particular to s 60CC thereof, wrought by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 do not apply (see Schedule 1, items 44 and 45).

Best interests – primary considerations

Section 60CC(2)(a)

1. There was no dispute about the quality of the child’s relationship with the father. It is characterised by warmth and physical affection.[21] The child loves the father and will undoubtedly continue to derive benefit from her relationship with him. Orders must be made to preserve the quality of their relationship.

   [21] First Family Report, para 9.3

2. There is a paucity of evidence about the nature of the child’s relationship with the mother. According to the paternal grandmother and the father, the mother has not been materially involved in the child’s care since at least 2007,[22] but she has seen the child intermittently. Although the father deposed that the child only saw the mother under his personal supervision,[23] it was later revealed in cross-examination that was not always the case.

   [22] First Family Report, para 10.2; Second Family Report, para 10.2

   [23] Second Family Report, para 4.6; Father’s affidavit, paras 11-12, 21

3. The child rarely sees the mother and there is no evidence as to the frequency of their communication by telephone, internet or letter. That has been the predicament for most of the child’s life. The child could not remember when she last saw the mother.[24] The state of the evidence precludes any finding that the child’s relationship with the mother is meaningful to her, or even if it is, that the child does, and will continue to, derive benefit from it.

   [24] Second Family Report, para 9.13

4. The nature of the child’s relationship with the paternal grandmother is a consideration under s 60CC(3)(b) of the Act.

Section 60CC(2)(b)

1. The paternal grandmother and the father made reciprocal allegations about their impaired parenting capacity but, with one exception, neither contended that the child was at risk of physical or psychological harm in the other’s care as a consequence of subjection or exposure to abuse, family violence or neglect.

2. The father adduced evidence which tended to suggest the paternal grandmother had physically abused the child, it being alleged that she struck the child and caused the child to suffer some form of head injury which was later treated by the application of ice by a school teacher.[25] However, for several reasons, such evidence was insufficient to prove either the occurrence of past physical abuse or the unacceptable risk of its future occurrence.

   [25] Father’s affidavit, para 110

3. First, even if the child did report such abuse to the father, as he deposed, the child’s representations were not necessarily truthful. The father alleged in cross-examination that the child was exaggerating the seriousness of incidents which had occurred within his home so logic dictates the child’s report about her physical abuse by the paternal grandmother may also have been inaccurate. It would be illogical to assume the literal correctness of all representations made by the child to the father, but conversely doubt the correctness of her representations to the paternal grandmother and Independent Children’s Lawyer.

4. Second, if the incident occurred in the manner the father alleged the child had reported to him then it would likely have been noted in the child’s school personnel file, but no evidence was adduced to demonstrate that was so. The absence of such corroboration tends to detract from the reliability of the child’s representations to the father.

5. Third, the father confronted the paternal grandmother with the allegation in cross-examination and she forcefully and convincingly refuted it. She explained how the child had accidentally bumped her head on a bathroom door and that she was the one who applied ice to the injury.

6. Fourth, the father alleged in cross-examination the incident had occurred in July 2012 and that he reported the incident to the Family Consultant during his second interview by telephone shortly afterwards in July 2012. The Family Consultant said he had neither a recollection nor contemporaneous note of having been told about such an event by the father, and further, that such a report would have been memorable and very important to him, unsurprisingly because of the repercussions for the child’s continuing residence with the paternal grandmother. The evidence of the Family Consultant was starkly inconsistent with the father’s evidence and inherently more credible. I am inclined to the conclusion that the father did not tell the Family Consultant of the incident, which means the father either fabricated the evidence or did not consider the incident sufficiently consequential to tell the Family Consultant.

7. The former of those two alternatives is consistent with the father’s admissions that he was prepared to make exaggerated allegations against the mother in affidavit evidence filed by him in former litigation between them.[26] Surprisingly, the father seemed to consider that such exaggeration by him was justified, given his umbrage about the mother’s exaggerated allegations against him. The father’s admissions only served to prove his willingness to give less than frank evidence when it suits him.

   [26] Exhibit PGM2

8. The father’s evidence in these proceedings corroborated that fact. Several examples illustrate the point. The father said in his affidavit “I do not use alcohol nor have any issue with the use of alcohol and havn’t for many years (sic)”,[27] but admitted in cross-examination he had consumed alcohol several times within the past year. He also said in his affidavit that he had only ever allowed the child to see the mother under his supervision,[28] but admitted in cross-examination there had been occasions when he had not supervised them. He also said in cross-examination that the mother has not stayed at his home since mid 2011, but then later conceded she had stayed with him in January and February 2012 for perhaps as long as several weeks. As those simple examples demonstrate, the father’s evidence was liable to be inaccurate.

   [27] Father’s affidavit, para 60

   [28] Father’s affidavit, paras 12, 21

9. The alternate explanation for the contradiction between the evidence of the father and Family Consultant was that the father did not consider the alleged physical abuse consequential, which is consistent with the position adopted by him in the proceedings. He did not propose any order to address or inhibit the prospect of the child’s future abuse by the paternal grandmother, implying it is not really a genuine concern to him.

10. Lastly, the child did not report to the Family Consultant that she was the subject of any physical abuse by the paternal grandmother. On the contrary, her demeanour towards, and comments about, the paternal grandmother uniformly demonstrated her adoration of the paternal grandmother.

Best interests – additional considerations

Section 60CC(3)(a)

1. The child expressed views about her future parenting arrangements stridently, clearly, and consistently.

2. The child told the Family Consultant in January 2012 and July 2012 that she liked living with the paternal grandmother, she saw enough of the father, and she would not presently like to spend time overnight with him, although she may wish to do so at some point in the future.[29] She expressed apprehension about spending overnight time with the father because of violent incidents she had witnessed in his home, her worry that he might get drunk, him acting “silly”, and his use of profane language.[30] In recent months the child has made similar comments to the paternal grandmother.[31]

   [29] First Family Report, paras 9.16, 9.18; Second Family Report, para 9.14

   [30] Second Family Report, paras 9.10, 9.11, 9.12, 9.14, 9.16

   [31] Paternal grandmother’s affidavit, paras 91-92

3. The Family Consultant said it was “significant” that the child expressed a desire not to spend overnight time with the father.[32] In cross-examination the Family Consultant elaborated that the views expressed by the child were consistent with her experiences. He at least implied her views should carry some weight, notwithstanding her still tender age. I accept that her views about her continuing residence with the paternal grandmother should be accorded some, but not inordinate or overriding, weight.

   [32] First Family Report, para 10.12

4. However, not all of the child’s expressed views should carry weight. She also told the Family Consultant she wanted to live in Sydney.[33] I pay no heed to that evidence because, having regard to the closeness of the child to the paternal grandmother, she was likely only stating a view she knew accorded with the paternal grandmother’s desire. She has no experience of living permanently in Sydney and her views are probably the result of favourable descriptions offered to her by the paternal grandmother, whereas the views she stated about living with the paternal grandmother and only having short visits with the father were born of her own experience.

   [33] Second Family Report, para 9.17

Section 60CC(3)(b)

1. The nature of the child’s relationships with the father and mother has already been addressed under s 60CC(2)(a) of the Act.

2. Of critical importance in these proceedings is the nature of the child’s relationship with the paternal grandmother. The child told the Family Consultant one of her wishes was for the paternal grandmother “to never die”.[34] According to the Family Consultant, whose evidence I accept, the child “sources her primary security from the [paternal] grandmother and her environment”.[35]

   [34] Second Family Report, para 9.16; Paternal grandmother’s affidavit, para 82

   [35] First Family Report, para 10.13; Second Family Report, para 10.11

3. That conclusion is unsurprising since she has lived with the paternal grandmother continuously for the past three years, which is a significant factor in the context of the child’s grossly disrupted residential history. The child endured frequent exchanges between the mother and father following their separation, removal from the mother’s care by the Department in 2006, the switching of her subsequent placements by the Department from the father to the paternal grandmother and back to the father between 2007 and 2009, and finally, the change of her residence back to the paternal grandmother from the father in 2010.

4. I accept the paternal grandmother’s evidence in cross-examination that the child calls her house “home” and the father’s house “Daddy’s place”. Such nomenclature illustrates the child’s true feelings about her place of residence.

5. According to the evidence, the only other family members the child sees are those living in Sydney, whom the paternal grandmother ensures she sees on a regular basis in school holiday periods.

6. There is no evidence of the child’s interaction with any family members in Queensland, apart from the father and Ms H. The father adduced evidence of other relatives living in Queensland,[36] but there is no evidence of their involvement with the child. The Family Consultant said in cross-examination that the child did not speak to him about any family members other than his cousins in Sydney.

   [36] Father’s affidavit, para 37

Sections 60CC(3)(c), (4)

1. Perhaps the most significant grievance agitated by the father in these proceedings was his perception that the paternal grandmother deliberately minimises his importance in the child’s life. He alleged to the Family Consultant and also in evidence that the paternal grandmother was “coaching” the child to feel apprehensive about him.[37] While that may be the father’s honest opinion, it is not necessarily a correct one. The Family Consultant said in cross-examination he did not believe the child had been coached by the paternal grandmother to hold or espouse adverse views about the father.

   [37] Second Family Report, paras 3.6, 10.7

2. The father’s brother gave evidence of an instance when the paternal grandmother denigrated the father in the presence of him, his family, and the child.[38] In cross-examination the brother confirmed that incident occurred in May 2011. He was not challenged about the accuracy of his evidence and so I accept the paternal grandmother acted as he alleged, about which the paternal grandmother should be abashed, but that evidence must be considered in context. It happened once, just prior to the paternal grandmother severing the child’s interaction with the father due to her concerns about him and his perceived deficient care of her.

   [38] Affidavit of Mr F, pars 7-10

3. The father is not immune from similar criticism. There was unchallenged evidence that he denigrated the paternal grandmother in the presence of the child and discussed the litigation with her.[39]

   [39] Paternal grandmother’s affidavit, paras 108-111, 114

4. Those criticisms aside, the preponderance of evidence demonstrates the paternal grandmother is supportive of the ongoing relationship between the child and the father. She said in evidence several times how much the child loved the father, but explained she was acting to prioritise the child’s safety. She told the father “I love all my boys but I have to put [the child] in front of both of us”.

5. She made remarks to the father of much the same ilk by way of letter in 2007, when she was instrumental in having the Department move the child into her care. She told the father she was “heartbroken” about what she felt compelled to do, but that she and the father were not as important as “[the child] and her safety, future and happiness”.[40] Although the letter is undated the paternal grandmother confirmed in cross-examination when it was written.

   [40] Father’s affidavit, Annexure H

6. The paternal grandmother and father acknowledge the child enjoys a genuinely loving relationship with the father. The father agreed in cross-examination that the child is affectionate towards him, eager to see him and tells him she loves him. Given that the child has lived with the paternal grandmother for the past three years it is highly improbable the child would have such a strong relationship with the father if the paternal grandmother failed to promote it as an important relationship, or worse still, actively worked to undermine it. As the High Court has recognised, children are invariably vulnerable to the influence of the adults who have control of them (see RCB v Forrest & Ors(2012) FLC 93-517 at [52]). If the paternal grandmother was intent on spoiling the child’s relationship with the father that would likely have already eventuated, but it has not.

7. I am satisfied the paternal grandmother is generally willing and able to facilitate and encourage a close and continuing relationship between the child and the father.

8. Likewise, I am satisfied the father is generally willing and able to facilitate and encourage a close and continuing relationship between the child and paternal grandmother. Although he would prefer the child to live with him, he openly acknowledges the imperative of the child maintaining her positive relationship with the paternal grandmother.

Section 60CC(3)(d)

1. If orders are made as proposed by the paternal grandmother, enabling her and the child to move to Sydney, the child will be affected by the change to some extent. That is because she will spend time with the father much less frequently than presently, unless the father also decides to relocate to Sydney.

2. However, even if the paternal grandmother and child relocate to Sydney and the father chooses to remain resident in Queensland, although the child will necessarily spend less time with him, the quality of their relationship is unlikely to wane significantly. The child has a well developed loving relationship with the father and she is now old enough to retain her cherished memories of him in the intervals of their physical separation. Nonetheless, orders should be made which require their personal interaction with sufficient frequency to obviate any prospect of their relationship corroding.

3. On the other hand, if the child is to live with the father, it is likely the paternal grandmother would remain resident in close proximity to them and the child would spend time with her regularly. Although the child would still see plenty of each party on a weekly basis, the fundamental restructure of the child’s primary residence would be a substantial change for the child to manage. The Family Consultant said in cross-examination, and I accept, the child would find that change “extremely difficult” to cope with.

Section 60CC(3)(e)

1. Presently, there is no undue difficulty or expense involved in the child living with the paternal grandmother and spending one day each week with the father. That is because the paternal grandmother and father live in reasonably close proximity to one another in south east Queensland.

2. However, the paternal grandmother wishes to alter that arrangement. She wants to relocate her residence with the child to Sydney, NSW, and the father wishes to remain resident in Queensland, in which case the current regime could not continue. It could only continue if the parties continue to live close together, either in Queensland or in Sydney.

3. In the event the paternal grandmother and father live a long distance apart there will be considerable difficulty and expense involved in ensuring that the child spends time with the party with whom she does not live.

Section 60CC(3)(f)

1. The paternal grandmother has the proven capacity to provide for all of the physical, emotional and intellectual needs of the child.

2. The paternal grandmother works to derive income, but only on Sundays, which is the day on which the child presently spends time with the father. Otherwise, the paternal grandmother is available for the remainder of each week to care for the child. Despite limited income she has managed to make adequate provision for the child’s financial support.[41]

   [41] Paternal grandmother’s affidavit, para 72

3. The child has thrived in her care in the last few years. It is common ground the child has a restricted learning capacity, but independent reports from her school indicate that her educational progress is sound, her effort is high, and her behaviour is good.[42] The paternal grandmother retains a tutor to assist the child with her academic progress.[43]

   [42] First Family Report, para 5.1; Second Family Report, para 5.1;

   [43] Paternal grandmother’s affidavit, para 89

4. By comparison, the father does not have the capacity to provide for all of the child’s needs. He intends to remain in gainful employment, which would continue to impede his ability to care for the child on a full-time basis.

5. The father remains in full-time employment.[44] His commitment to employment is the reason why he allowed the child to begin living primarily with the paternal grandmother in early 2010. He starts work at 6.00 am each morning.[45] His need to leave home so early each weekday to attend to his work duties renders him unavailable to care for the child. Until the child began living with the paternal grandmother the father was reliant upon help from neighbours to care for the child, to whom he delivered the child at 5.00 am.[46]

   [44] First Family Report, para 6.6; Second Family Report, para 6.6

   [45] Father’s affidavit, para 14

   [46] Affidavit of Ms G

6. The father regards his employment as an important component of his life. A conflicting work commitment was the reason he did not attend upon the Family Consultant in person for his second interview in July 2012.[47] It was also the reason he did not allow the child to spend time with him on about six consecutive weekends.[48] The inference fairly arises that he prioritises his employment above full-time care of the child, which is merely an observation of fact rather than a criticism of him.

   [47] Second Family Report, paras 1.3, 9.2, 10.3

   [48] Paternal grandmother’s affidavit, paras 16, 100, 101

Section 60CC(3)(g)

1. It is uncontroversial that the father has been troubled in the past by addiction to illicit drugs and excessive use of alcohol.[49] The father professed a complete transition of his lifestyle, but his evidence was not particularly convincing.

   [49] First Family Report, paras 8.8, 8.9, 10.9; Second Family Report, para 3.4

2. The father flatly deposed that he does not use alcohol,[50] but that was untrue. In cross-examination he admitted his recent consumption of alcohol, albeit irregularly and not to excess. He also told the Family Consultant he had not used illicit drugs for many years,[51] but that was also untrue. The father presented at hospital with the mother as recently as April 2011 for treatment of a stab wound to his arm. He told the hospital staff that a steak knife pierced his arm when he “fell over drunk” while “preparing a tackle box for camping”. The medical notes suggest he admitted consuming one litre of bourbon. Significantly, he also told staff he had last injected himself intravenously with drugs the week before.[52] That could not have been a reference to the manner of his use of prescriptive drugs because he admitted taking them orally.

   [50] Father’s affidavit, para 60

   [51] First Family Report, para 8.8

   [52] Exhibit PGM3

3. The father denied he said such things at the hospital, pointing to the general inaccuracy of the notes in that they described the mother as his “wife”. There is no doubt that description of the mother was incorrect because she was never married to the father, but that error does not impugn the reliability of the remainder of the notes. The father admitted he had attended the hospital at that time for treatment of such a wound so there is no doubt the notes correctly refer to him. I much prefer the accuracy of contemporaneous medical notes made by the hospital staff to the current recollections of the father, particularly when other aspects of the father’s evidence proved inaccurate.

4. There is no evidence of drunkenness or illicit drug use by the father more recently than that incident in April 2011, but he continues to use prescribed medication to prevent his “substance dependence”.[53]

   [53] First Family Report, paras 6.6, 8.8

5. The father’s past lifestyle has been anathema to his occupation as a full-time parent. Although the father may have improved his condition, the proven stability and dependability of the paternal grandmother is a superior option.

Section  60CC(3)(h), (6)

1. Neither party identified the child or themselves as Indigenous Australians.

Sections 60CC(3)(i), (4)

1. For reasons which remain quite opaque, the father persisted in his contention that the child had been improperly withheld from him by the paternal grandmother. He told the Family Consultant the paternal grandmother had “kidnapped” the child[54] and he made similar remarks repeatedly in both evidence and submissions.

   [54] First Family Report, para 3.5

2. It also remained unclear as to whether the father genuinely held such a perception or merely made the submission for purported tactical advantage. It does not really matter. The contention was false, as the father was bound to concede.

3. The child began living primarily with the paternal grandmother from early 2010 when she started school. In all likelihood that residential change for the child occurred with his consent. Even if it was not with his consent, it was certainly with his acquiescence. The arrangement was consolidated when the parties subsequently agreed to interim parenting orders to perpetuate that regime after these proceedings were commenced in August 2011.

4. The father’s position on the issue was all the more perplexing as it was linked to his attitude about the payment of child support, which has been indefensibly obdurate. He said in cross-examination he made no regular payments of child support to the paternal grandmother because he was “angry [the child] was being kept from [him]”. However, there was no evidence that the paternal grandmother contravened the consent orders made in August 2011, and further, the father declined to spend the extra time with the child offered to him by the paternal grandmother.

5. Not only has the father never paid any child support to the paternal grandmother for the child, he continued to receive a Centrelink payment for the child which should have been paid to the paternal grandmother for her use as the child’s primary carer. The payments were deposited directly to the father’s bank account and the nature of the deposits was identified on his bank statements. The father improperly received an aggregate total of some $11,500,[55] which overpayment to him is now being coercively repaid in small increments.[56] The only evidence of financial support offered by the father for the child was his purchase of an IPad for her.[57] In such circumstances, although some of the father’s witnesses considered him to be “caring” and “loving”, they must surely be mistaken to also consider him “responsible” and a “provider”.[58]

   [55] Paternal grandmother’s affidavit, paras 73, 144

   [56] Father’s affidavit, para 95

   [57] Father’s affidavit, paras 94-95

   [58] Affidavits of Ms I and Ms G

6. The father’s commitment to compliance with the Court orders has also been lax on occasions. He has been late to collect the child and has returned her to the paternal grandmother either late or early.[59] He has also left the child in the care of others.[60] That unreliability convinced the paternal grandmother’s to relocate back to Sydney, about which decision the father was informed in April 2012.[61]

   [59] Paternal grandmother’s affidavit, paras 98-99

   [60] Paternal grandmother’s affidavit, paras 102-103

   [61] Paternal grandmother’s affidavit, para 104

7. The Family Consultant said in cross-examination the father had left him with the impression following their consultation that he really wanted to revert to the old regime under which the child lived with the paternal grandmother and spent every weekend with him, rather than for the child to live with him permanently. The father did not challenge the Family Consultant about the validity of that impression, permitting an inference that it was correctly formed.

8. If the Family Consultant’s impression is correct, it is insincere of the father to continue pressing his application for the child to live with him. If orders were made for the child to live with the father and that is not his genuine desire, it is easy to envisage how the father might again cede primary care of the child to the paternal grandmother, as he did in early 2010, and the parties would be back in the same predicament in which they now find themselves.

9. The evidence warrants a conclusion that, for various reasons over a protracted period, the father has demonstrated an impaired attitude to the responsibilities of parenthood.

Section 60CC(3)(j)

1. No evidence of family violence was adduced. Although it is common ground the father was involved in past physical or verbal altercations with third parties in and around his home, those violent episodes were not “family violence” as defined in the Act (s 4).

Section 60CC(3)(k)

1. There is no family violence order in existence involving the child or any member of her family.

Section 60CC(3)(l)

1. The parties have endured a lengthy history of litigation concerning the child in this and other jurisdictions, so presumably they are now desirous of an outcome which minimises the chance of further proceedings about the child being instituted.

2. No submission was made to the effect that making orders more closely resembling those proposed by the paternal grandmother and Independent Children’s Lawyer or those proposed by the father would either increase or diminish the chance of further proceedings.

Section 60CC(3)(m)

1. The paternal grandmother asserted she was in good health and no aspect of her health precluded her continuing primary care for the child. She was not contradicted and I accept her evidence.

Parenting orders

1. The presumption of equal shared parental responsibility under s 61DA applies only to the “parents” of the child. Despite the integral role played by the paternal grandmother in the child’s life, she does not presumptively share any parental responsibility for the child.

2. As already observed, there was no evidence of “family violence” so as to displace operation of the presumption of equal shared parental responsibility (s 61DA(2)).

3. Nevertheless, the paternal grandmother, father, and Independent Children’s Lawyer all argued that the presumption was rebutted and that the person with whom the child resides should have sole parental responsibility for the child because that result would promote her best interests (s 61DA(4)). I accept that submission, which was consistent with the evidence of both the father and paternal grandmother.

4. The father said in cross-examination he and the paternal grandmother “don’t really speak at all” and, apart from an occasional letter or text message, they did not correspond with one another either.

5. The paternal grandmother called one of her other sons as a witness in her case. The father called another brother as a witness in his case. It became achingly apparent as the trial progressed that a schism has developed in the family and the rancour felt by the father and his supportive brother towards the paternal grandmother is unlikely to subside any time soon. On present indications, it would be impossible for the paternal grandmother and father to exercise equal shared parental responsibility in the manner expected under the Act (s 65DAC). It is inevitable that one of them must have sole parental responsibility for the child. The paternal grandmother, father, and Independent Children’s Lawyer all agreed with that proposition.

6. Of course, the person with whom the child lives must be allocated sole parental responsibility for her. It would be absurd to allocate sole parental responsibility to the person with whom the child does not live.

7. The evidence demands that the child continue to live with the paternal grandmother. The considerations which dictate that result are the child’s superior attachment to the paternal grandmother, the emotional disturbance the child would inevitably suffer if she was wrenched from the security of the paternal grandmother’s care to live with the father, the superior proven record of the paternal grandmother as the primary carer for the child, and the impediment to the father’s primary care of the child created by his commitment to full-time work.

8. As the child will live with the paternal grandmother, the next question to be addressed is whether the paternal grandmother should be restrained from relocating the child’s residence to Sydney.

9. Although the Independent Children’s Lawyer proposed a specific order “permitting” the paternal grandmother to relocate to Sydney with the child,[62] such an order is neither a parenting order nor a mandatory or restrictive injunction made under ss 64B, 68B or 114 of the Act, and accordingly, is not a proper exercise of the Court’s power. Parties enjoy as much residential freedom as is compatible with their obligations pertaining to the child (see AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; Sampson v Hartnett (No.10) (2007) FLC 93-350) and so an injunction will restrain a relocation only when that is necessary.

   [62] Exhibit ICL1, Order 5

10. Significantly, it should not be assumed that the paternal grandmother must subordinate her wish to relocate her residence to the wish of the father to stay put and pursue his life in the place of his choosing (see U v U (2002) 211 CLR 238 at 286). The paternal grandmother bears no onus of proving the existence of compelling reasons for her proposed relocation (see U v U at 261). Nor does the father bear any onus of proving the existence of compelling reasons for his decision to remain (see Malcolm v Monroe [2011] FLC 93-460 at [83]). However, the reasons for and against the proposed relocation will inform the inquiry about whether the relocation is a proper exercise of parental responsibility (see U v U at 285; Malcolm v Monroe at [81], [83]).

11. The paternal grandmother’s desire to move back to Sydney has been fomenting for some time.[63] The father has been on notice of her intention since April 2012. The father believes the paternal grandmother’s proposal to relocate back to Sydney is “rash”,[64] but I do not accept his characterisation of her decision. The paternal grandmother is inclined to relocate with the child back to Sydney for several valid reasons.

    [63] Paternal grandmother’s affidavit, para 16

    [64] Father’s affidavit, para 36

12. She formerly lived in Sydney and only moved to Queensland in 2007 to take over, or at least assist the father with, care of the child. Her two other sons and their children still live in Sydney, albeit that one son supports her and the other son is estranged from her and is instead supportive of the father. Nonetheless, the child has strong relationships with their cousins, who are the children of the father’s two brothers.[65]

    [65] Paternal grandmother’s affidavit, paras 118, 122

13. It is the paternal grandmother’s intention to live in an apartment in J suburb owned by one of her sons until she can sell her own apartment in Queensland and use the sale proceeds to buy her own apartment in the southern suburbs of Sydney.[66] The paternal grandmother would be living amongst her other family members in Sydney,[67] whom she envisages may be relied upon as “back up carers”. The availability of such family support, including reliable quality child care, financial assistance, and emotional support, can be very important considerations and are matters to be balanced and weighed when considering competing residential proposals (see McCall v Clark (2009) FLC 93-405 at [131]-[135]; Hepburn & Noble (2010) FLC 93-438 at [43], [49]-[64]).

    [66] Paternal grandmother’s affidavit, paras 123, 125, 127, 128;

    [67] Paternal grandmother’s affidavit, para 130; Affidavit of Mr E, para 7

14. The paternal grandmother also remains apprehensive about her safety in Queensland,[68] which is understandable, since the father has previously pushed his face into physical contact with her face and threatened menacingly through gritted teeth “Don’t you touch my daughter, you fucking cunt”.[69] The father deposed that he has “never been a violent person”,[70] but acting in that way towards his own mother, as I accept he did, was unquestionably aggressive, if not violent. The paternal grandmother’s apprehension of the father in such circumstances is quite reasonable.

    [68] Paternal grandmother’s affidavit, para 118

    [69] Paternal grandmother’s affidavit, para 136

    [70] Father’s affidavit, para 91

15. Any relocation would entail a change of school for the child. However, I accept the uncontroversial evidence that the child is sociable and makes friends relatively easily. Her resilience is such that she will likely cope with a change of school without too much difficulty. The paternal grandmother intends that she be enrolled at K School, relatively near to where they would be living in Sydney.

16. The father’s only ties to Queensland are his current home, which he leases from a governmental housing commission, and his current employment.[71]

    [71] Paternal grandmother’s affidavit, para 133

17. The only opposition he ever articulated to the paternal grandmother about her proposal to move back to Sydney was the potential loss of his current home in Queensland.[72] He conceded in cross-examination he could move back to Sydney, but he did not really want to. If he is eligible for public housing in Queensland, I infer he is probably also eligible for public housing in Sydney.

    [72] Paternal grandmother’s affidavit, paras 104, 121

18. The father reported to the Family Consultant in January 2012 that he had distant relationships with his parents and both brothers.[73] However, one of his brothers gave evidence to support his case, suggesting their relationship has thawed. The father did not disavow the proposition that he would be able to stay in Sydney, at least in the short term, with that brother. Nor did he challenge the paternal grandmother’s proposition that he could probably stay for the short term with the paternal grandfather.[74]

    [73] First Family Report, para 8.3

    [74] Paternal grandmother’s affidavit, para 133

19. A residential move back to Sydney would not likely be financially ruinous for the father. His work history suggests he is a willing and reliable worker with good prospects of employment wherever he lives. He said in cross-examination he had changed employers about 10 times in Queensland and has still managed to maintain reasonably full employment.

20. Even if he chooses to remain resident in Queensland, he conceded his income is sufficient to cover the cost of return travel to, and accommodation in, Sydney on a reasonably regular basis in order to visit the child. He said he earns $900 per week gross and is able to save $2,000 to $3,000 each quarter, which he could use to travel to and stay in Sydney. He said if the child remained living with him in Queensland he would take the child to Sydney once per month to visit the paternal grandmother. In such circumstances, the father clearly envisages having reasonable financial freedom.

21. The father actually discussed the prospect of the child moving to Sydney to live with his brother rather than with the paternal grandmother. His brother deposed to the viability of such an option.[75] The brother said in cross-examination he believed the child would cope adequately with the change of residence to his home in Sydney, so both he and the father must regard the child’s inter-state relocation of residence as viable.

    [75] Affidavit of Mr F, para 3

1. On balance, the paternal grandmother’s reasons for the relocation are stronger than the father’s reasons for the move being restrained.

2. The paternal grandmother told the Family Consultant in July 2012 that she was prepared to delay her proposed move to Sydney until the conclusion of the 2012 school year,[76] but that time has now passed. During her cross-examination the paternal grandmother said she was now prepared to delay the proposed move to Sydney until the end of the 2013 school year. Accordingly, an order is made restraining the paternal grandmother from relocating the child’s residence until that time. Besides not interrupting the child’s academic progress during this year, such delay will enable the father sufficient time within which to make alternate accommodation and employment arrangements if he too chooses to relocate to Sydney.

   [76] Second Family Report, para 2.3

3. Consideration must now move to the manner in which the child will spend time with the father, for both the remainder of 2013 and thereafter. As from 2014, the orders will need to provide for both alternatives of the father choosing to relocate near the paternal grandmother and remaining resident in Queensland.

4. The Independent Children’s Lawyer suggested a demarcation distance of 150 kilometres, so that if the paternal grandmother and father live within that distance the child would spend more time with the father than if they live beyond that distance of one another. The choice of that distance was apparently arbitrary, but neither of the participating parties made a better suggestion and neither of them objected to the Independent Children’s Lawyer’s suggestion. I am attracted to the idea because it is a distance beyond which would involve an undesirable amount of travel for the child on a regular basis when the child will not be spending overnights with the father. It also allows the father considerable latitude about the location of his new residence if he decides to also move back to Sydney or its surrounding areas.

5. In the event the father chooses to live more than 150 kilometres from the paternal grandmother there will be intervals approximating five weeks duration between the child’s visits with him. The father must not believe those intervals will compromise their relationship because he voluntarily chose not to see the child for six weeks recently whilst he worked away to earn extra income.

6. I accept the Family Consultant’s opinion that it “may be counter-productive for [the child’s] emotional/psychological well-being” for orders to be made compelling her to spend overnight time with the father contrary to her clearly expressed views.[77]

   [77] First Family Report, para 10.12

7. I also concur with the Family Consultant’s opinion that, presently, there is little alternative but for an order to be made limiting the time spent by the child with the father to daytime periods.[78]

   [78] First Family Report, para 10.13; Second Family Report, para 10.11

8. Perhaps inevitably, the child’s view about spending overnight time with the father will change as she grows and matures. She will likely be more willing to spend overnight time with the father when she is older. However, there is no evidence upon which the Court can currently venture any prediction about when that might be. It would therefore be a mistake to build into the orders any future expansion of the interaction between the child and the father, since such expansion would be speculative and have no evidentiary foundation. Consequently, the orders reflect only the evidence as to current circumstances. The paternal grandmother will be able to exercise her parental responsibility as time passes to determine whether the child should spend more time with the father. If the paternal grandmother and father cannot agree on that issue then, subject to changed circumstances being established (see Rice v Asplund (1979) FLC 90-725), further litigation may unfortunately be necessary.

9. The orders make provision for the child to spend time with the father on consecutive days for one week in each school holiday period, which is generally consistent with the proposals of the paternal grandmother and Independent Children’s Lawyer.[79] The father is at liberty to nominate the changeover venue in the autumn and spring school holidays, which means he may nominate a venue close to his home if he chooses to remain resident in Queensland and require the paternal grandmother and child to travel to him so as to ameliorate the drain on his funds. The paternal grandmother was prepared to undertake that burden in every school holiday period,[80] but twice each year is sufficient commitment. The paternal grandmother has the reciprocal liberty in the summer and winter school holidays.

   [79] Amended Application, Orders 4B(b), 4B(c); Exhibit ICL1, Orders 6(b)(i), 6(b)(ii)

   [80] Amended Application, Order 4B(b)

10. The changeover venues are not nominated in the orders because of the uncertainty over where the father will choose to live. The orders therefore require the parties to nominate such venues to one another, with reasonable notice, depending upon the proximity of their homes and whether the child will be spending time with the father on only one day or on consecutive days.

11. The Family Consultant countenanced the prospect of the child spending a few hours with the father on a midweek evening,[81] but I reject that idea. It was previously offered by the paternal grandmother and rejected by the father. In any event, midweek interaction between the child and the father would be impossible unless the father chooses to live in very close proximity to the paternal grandmother.

    [81] First Family Report, para 10.14

12. The past problems in achieving reliably regular telephone communication between the child and the father mean that some alternative strategy must be employed. The orders therefore require the paternal grandmother to ensure that the child initiates calls to the father on the telephone number supplied by him. Such telephone communication will be especially important if the father chooses to remain living in Queensland after the paternal grandmother and child move to Sydney. The orders require the telephone communication to occur twice each week, which is generally consistent with the Family Consultant’s advice in cross-examination and the proposal of the Independent Children’s Lawyer.[82]

    [82] Exhibit ICL1, Orders 6(a)(ii), 6(b)(iii)

13. Other orders governing the behaviour of the paternal grandmother and father could not be the subject of sensible objection. The orders differ from the injunctions proposed by the paternal grandmother[83] and Independent Children’s Lawyer,[84] which were largely expressed in aspirational rather than enforceable terms.

    [83] Amended Application, Order 5

    [84] Exhibit ICL1, Order 8

14. In the absence of the mother’s participation in the proceedings there remains the question about the nature of the orders, if any, that should regulate the child’s interaction with her. There could be little doubt that she has experienced serious personal problems in her life,[85] which cannot be ignored.

    [85] Paternal grandmother’s affidavit, para 46

15. The disinclination of the mother to participate in the proceedings suggests she is not particularly concerned about the ultimate parenting arrangements for the child. Rather than make no orders regulating the child’s interaction with the mother at all, the other parties posited different solutions.

16. The paternal grandmother proposed an order precluding the father from bringing the child into contact with the mother.[86] Presumably she intended ensuring in future that the child does not spend any time with the mother, which decision would be open to her in the exercise of her sole parental responsibility for the child while the child is within her care.

    [86] Amended Application, Order 5

17. The Independent Children’s Lawyer proposed a less restrictive order, only restraining the father from allowing the child to spend time with the mother other than under his direct supervision.[87] During final submissions that proposal was refined so that the Court was requested to make the father’s observance of that injunction a condition precedent to the child spending time with him. The effect of that proposal would be that breach of the injunction by the father would result in indefinite suspension of the child’s interaction with him. The paternal grandmother did not consider that to be necessary and was content for the injunction to simply impose an independent obligation upon the father.

    [87] Exhibit ICL1, Order 8(g)

18. The father proposed an order to the effect that any interaction between the child and the mother must be the subject of his agreement, thereby leaving him with ultimate control.[88] The father said in cross-examination he would not feel comfortable leaving the child in the mother’s unsupervised care, despite admitting he had done so on past occasions. Even the mother’s own adult daughter, Ms H, said she would be concerned about the child seeing the mother unless the father was also present.

    [88] Amended Response, Order 3

19. Having regard to the attitudes of the paternal grandmother and Independent Children’s Lawyer, the consistency between their attitudes and the concerns of the father and Ms H, and the mother’s disinterest, no specific order will be made regulating the child’s interaction with the mother. The paternal grandmother, as an incident of her sole parental responsibility for the child, will be the one to make future decisions about whether and under what circumstances the child may see and communicate with the mother. Moreover, the father should be precluded from allowing the child to see the mother when the child is in his care, but compliance with that injunction will not be made a condition precedent to the child’s expenditure of time with the father.

20. I am satisfied the orders set out at the commencement of these reasons reflect the best interests of the child.

I certify that the preceding one hundred and forty two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 March 2013.

Associate

Date:  18 March 2013

     Paternal grandmother’s affidavit, para 77

     Affidavit of Mr D, paras 3-7